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Whistleblower Protection Enhancement Act – Non-Disclosure Agreement

The Whistleblower Protection Enhancement Act of 2012 (WPEA) was signed into law by President Obama on November 27, 2012. The law strengthens the protections for federal employees who disclose evidence of waste, fraud, or abuse. The WPEA also requires that any non-disclosure policy, form, or agreement (NDA) include the statement copied below, and provides that NDAs executed without the language may be enforced as long as agencies give employees notice of the statement.

Any NDA executed without the below language should be read as if the following language were incorporated into the NDA:

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.

Controlling authorities:

  • Whistleblower Protection Act of 1989, Pub. L. No. 101-12, as amended by Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, codified at 5 U.S.C. 2301 et seq.

  • Notification and Federal Employee Antidiscrimination and Retaliation (No FEAR) Act of 2002, Pub. L. No. 107-174, codified at 5 U.S.C. 2301 note

  • The Inspector General Act of 1978, Pub. L. No. 95-452, as amended, codified at 5 U.S.C. app. 3

  • Section 7211 of Title 5, United States Code (governing disclosures to Congress)

  • Section 1034 of Title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military)

  • Intelligence Identities Protection of Act of 1982, codified at 50 U.S.C. 421 et seq. (governing disclosures that could expose confidential Government agents)
    The criminal statutes of Title 18 protecting against disclosures that may compromise national security, specifically, sections 641, 793, 794, 798 and 952

  • Section 4(b) of the Subversive Activities Act of 1950, codified at 50 U.S.C. 783(b)

  • Executive Order No. 13526, Classified National Security Information

  • Executive Order No. 12968, Access to Classified Information

  • Education Administrative Communication Systems (ACS) Directive OIG: 1-102, Cooperation with and Reporting to the Office of Inspector General

  • Education Administrative Communication Systems (ACS) Directive OIG: 1-102, Procedures for Handling Office of Inspector General Hotline Referrals

  • Education Department Handbook OM-01: Handbook for Classified National Security Information

  • For more information regarding whistleblower complaints please refer to the Office of Inspector General (OIG) at : http://www2.ed.gov/about/offices/list/oig/hotline.html

 
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Last Modified: 08/14/2014