Recent laws strengthen the protections for employees of Federal contractors and subcontractors who disclose waste, fraud, or abuse. One such law provides that agencies may not use appropriated funds to implement or enforce any nondisclosure policy, form, or agreement (NDA) executed by an employee of a Federal contractor or subcontractor, unless the NDA is signed in connection with the conduct of an intelligence or intelligence-related activity, that does not contain the following provisions:
“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.''
Accordingly, if you are an employee/former employee of a Federal contractor or subcontractor who signed an NDA as required by a Department contract, unless you were connected with the conduct of an intelligence or intelligence-related activity, you should read the NDA to incorporate the above provisions.
As indicated above, an NDA signed by an employee of a Federal contractor or subcontractor connected with the conduct of an intelligence- or intelligence-related activity does not require the above provisions. Nevertheless, any such NDA permits disclosures to Congress, or to an authorized official of an executive agency or the Department of Justice, that are essential to reporting a substantial violation of law, provided that any such reporting of waste, fraud, or abuse when involving classified information or classified programs must be consistent with established rules and procedures designed to protect classified information. Thus, at a minimum, the signatory may not disclose any classified information received in the course of such intelligence or intelligence-related activity unless specifically authorized to do so by the United States Government. Controlling Executive Orders and statutory provisions include, but are not limited to, the following:
- Executive Order No. 13526;
- Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents);
- The statutes which protect against disclosure that may compromise the national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code; and
- Section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. 783(b)).