The Office of Personnel Management (OPM) says its new government-wide nondisclosure agreement (NDA) will not change federal whistleblower law. But the agreement defines the information employees must keep confidential so broadly, covering nearly anything encountered on the job, that it could discourage employees from making the disclosures the law protects.
That is the argument Attorney Richard Renner of The Noble Law Firm made in a formal comment to OPM. You can read it here: Attorney Renner's comment letter.
Attorney Renner filed the letter two days before the deadline, adding to input from national watchdog groups, a group of senators, and a member of Congress, all raising concerns about the same draft rule.
What OPM Is Proposing
OPM published its draft "Confidential Government Information Nondisclosure Agreement" in the Federal Register on May 27. The agency pointed to a string of recent leaks as justification, including disclosures tied to planned immigration enforcement operations, details of a sensitive military mission overseas, and the release of personal information belonging to roughly 4,500 ICE employees.
Under the proposal, individual agencies could choose to require new hires and current employees with access to sensitive material to sign the form, which would then follow the employee in their official personnel file. OPM Director Scott Kupor framed the move as bringing federal practice in line with the private sector, saying the federal government "should not be held to a lower standard" when it comes to confidentiality agreements. Violations of the signed agreement could lead to discipline, removal, debarment from future federal employment, or civil and criminal penalties.
The Core Objection
Attorney Renner's letter focuses on one problem: the NDA defines "confidential information" so broadly that it could cover almost anything an employee learns on the job, not just genuine secrets.
Employees often catch problems by comparing notes with coworkers, including notes about pay. Comparisons like these helped uncover the pay gaps Congress addressed in the Lilly Ledbetter Fair Pay Act. If employees believe pay conversations are now off-limits, they may simply stop having them.
Attorney Renner's letter also points to a 2015 Supreme Court case, Department of Homeland Security v. MacLean. The Court ruled that only Congress, not an agency's own internal policy, can take away a whistleblower's legal protection. An agency-drafted NDA cannot override that decision.
What the Law Already Says
Several federal laws already protect whistleblowers. The Whistleblower Protection Act covers employees who report illegality, waste, fraud, abuse, or safety threats. Separate Department of Labor statutes protect reports involving environmental and workplace safety violations.
None of these protections change under the proposed NDA. Critics argue the real shift is in how safe employees feel using them. Few people facing that decision stop to read a statute. Most are asking simpler questions: will this cost me my job, and will anyone back me up if it does.
A Broader Chorus of Concern
Attorney Renner's comment landed alongside similar objections from organizations and lawmakers across the political spectrum:
- Project On Government Oversight senior policy counsel Joe Spielberger told Federal News Network the proposal "will have a direct chilling effect," even if whistleblower protections remain technically intact.
- The American Federation of Government Employees warned in a statement that OPM "will pressure agencies to make the NDA mandatory," despite the form being billed as optional.
- Rep. Raja Krishnamoorthi (D-Ill.) sent OPM a formal request for a clearer definition of covered information and an explanation of how the rule complies with whistleblower law.
OPM's Response
OPM has maintained that the agreement does not change existing law. A spokesperson told Federal News Network that many of the concerns raised in Congress "seem unwarranted because the issues are addressed in the proposed NDA" itself, and the Federal Register notice states that the form "does not create new substantive restrictions on employee speech or disclosure rights." Employees would still retain their rights to report fraud, waste, or abuse to Congress, an inspector general, or the Office of Special Counsel.
OPM has not said when it will issue a final version of the NDA. If adopted, individual agencies could choose whether to require it, building the form into job postings, new hire onboarding, and the personnel files of current employees.
What This Means for Federal Employees
Federal employees facing these questions – what they can report, what protections already cover them, whether a new document changes anything – can turn to Attorney Renner's whistleblower and retaliation practice at The Noble Law Firm.
Attorney Renner brings:
- Three decades representing federal whistleblowers. He has handled whistleblower cases before the U.S. Department of Labor since 1995.
- A record before federal appellate courts. His amicus brief persuaded the U.S. Supreme Court to take up Lawson v. FMR LLC, restoring whistleblower protections for employees of corporate contractors.
- National recognition. Washingtonian Magazine named him one of the top whistleblower attorneys in Washington, D.C.
- Firsthand experience with retaliation. As former Legal Director of the National Whistleblowers Center, he pursued his own retaliation claim after the organization moved against employees who formed a union, an experience he now brings directly to his clients.
- A trial-ready approach. Every case at The Noble Law Firm is prepared as though it will go before a jury, from the first conversation forward.
Federal employees who are uncertain what they can report, who are already facing retaliation, or who want to understand their rights before signing a new agreement can reach a Raleigh whistleblower rights attorney at The Noble Law Firm. Call (919) 324-3013 or schedule a consultation online.
