Congress Enacts Anti-Gag Provision in Cromnibus Spending Bill
The “cromnibus” spending bill that Congress enacted to fund most federal agencies through September 2015 includes an important anti-gag provision prohibiting government contractors from using confidentiality agreements to bar their employees from blowing the whistle on a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority. Significantly, the anti-gag provision bars contractors and grantees from using any federal appropriation to enforce a nondisclosure agreement that fails to include the following disclaimer:
‘‘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.’’
There is, however, a narrower anti-gag restriction that applies to contractors performing intelligence or intelligence-related activities, and contractors can continue to enforce nondisclosure agreements that comply with the requirements for such agreement that were in effect when the agreements were entered into.
The anti-gag provision is important in combating an alarming trend of government contractors aggressively prosecuting frivolous and retaliatory lawsuits against whistleblowers to deter them form exposing waste, fraud and abuse.
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