Secrecy, Whistleblowers and Government The following from the Department of Energy provides an example of how government employees are informed that non-disclosure agreements should not restrict or replace their rights as whistleblowers. Under the Enhanced Whistleblower Protection Act, 2012, the following statement applies to any government policy, form or confidentiality agreement (with current or former federal employees), including those in effect before the act`s December effective date. 27, 2012: „These provisions are consistent with the obligations, rights or responsibilities of employees under any existing law or executive order with respect to (1) classified information, (2) notices to Congress, (3) reporting of a violation of laws, rules or regulations, or mismanagement to an inspector general, or mismanagement, gross waste of funds, an abuse of power or a significant and specific threat to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions and responsibilities arising from the control of decrees and legal provisions are incorporated into this Agreement and are controlling. The following decrees and legal provisions will prevail in the event of a conflict with any policy, form or confidentiality agreement of the Agency as of March 14, 2013: • Executive Decree No. 13526; • 5 U.S.C. § 7211 (which governs disclosure to Congress); • 10 U.S.C. § 1034, as amended by the Military Whistleblower Protection Act (which governs disclosure to Congress by military personnel); •Section 2302(b)(8) of Title 5 of the United States Code, as amended by the Whistleblower Protection Act of 1989 (to disclose illegality, waste, fraud, abuse or threats to public health or safety); •Intelligence Identities Protection Act 1982 (50 U.S.C. 421 et seq.) (Regulation of disclosures that confidential government officials may disclose); • Laws that protect against disclosures that could endanger national security, including 18 U.S.C. § 641, 793, 794, 798, and 952; and • Section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. 783(b)). Source: Ministry of Energy. The SEC is not the only government agency cracking down on „pre-taliation risks” in employee confidentiality agreements.
Many others are also focusing their attention on the subject. „This is really a new direction for these agencies,” says Christopher Calsyn of the law firm Crowell Moring. Compliance officers can. A non-disclosure agreement or NDA is a legally valid contract between two parties, such as an employer and an employee, that prohibits the disclosure of information that is considered confidential or protected. Rule 21F-17 states: „No person shall take any action to prevent a person from communicating directly with Commission staff about a potential breach of securities law, including the application or threat of enforcement of a confidentiality agreement. with respect to such communications. However, courts are reluctant to protect a whistleblower if the scope of the disclosure goes beyond what is necessary to further the interests of American public order. See U.S. ex rel.
Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047 (Cir. 9, 2011). In Cafazzo, the Relator indiscriminately recorded eleven gigabytes of data. She „grabbed the whole folder” when she saw something interesting in the file names without reading the individual documents. The Ninth Judicial District upheld the adoption of a summary judgment on the infringement proceedings. The Court of Appeal recognized that „the courts may, in certain cases, for certain documents, consider whether the privacy policy should give way to the needs of the FCA`s litigation in the public interest. However, this would only be the case if the disclosed documents are „reasonably necessary to make an FCA claim.” Otherwise, employees could seize documents and justify them later with the argument that they did so to have a legal dispute against the company.
In other cases, it doesn`t matter because the company will never know about the existence of a whistleblower or their identity. The company will never know who breached their contract. Or the agency (especially the SEC) has recognized their use to protect illegal behavior and introduced a rule prohibiting its enforcement. Marshall likens the SEC`s program to a law enforcement agency`s practice of posting a cash reward notice on the Post`s bulletin board for anyone who provides information leading to the arrest of a bank robber. „A company should not be contractually able to require a whistleblower to waive an SEC award, just as a bank robber should not be contractually able to require community members not to accept an arbitration award if they hand it over to the authorities in response to a poster sought by mail.” he said, adding that he believes a court would eventually consider these agreements null and void. Employers often ask their employees to accept confidentiality at the beginning of their employment, during their promotion, after a new job manual is issued, or as part of severance pay during a severance interview. You may have even received a copy of the agreement, so you may want to do a search of your records to see if you can get your hands on it. In some cases, you may have forgotten that you signed one.
If you are unsure whether you have agreed to keep certain information confidential, we will discuss your options with you. Marshall says more and more companies are trying more creative tactics. „What we`ve seen is that many more companies realize that they can`t make a deal that prevents an employee from reporting information to the SEC,” he explains. „Instead, they are trying to indirectly deter reporting to the SEC by trying to remove the incentive that was established in the whistleblower program.” Sean McKessy, head of the SEC`s whistleblower office, warned companies against the possibility of sanctions through prohibited employment contracts. Similarly, the lawyers who draft them may be excluded from practising before the Commission. Trapped in such an agreement, Macktal challenged the illegal NDA in court in September 1988. The court ruled in his favor and declared such agreements illegal under the federal whistleblower law. The Macktal case banned nationwide restrictive regulations in nuclear and environmental cases. As a result of this case, other hidden money cases were successfully heard by the courts of the Fourth, Fifth and Ninth Districts. In these cases, whistleblowers who had reported misconduct were fired, demoted or transferred and, after filing complaints with the Ministry of Labour for unlawful retaliation against whistleblowers, entered into settlement agreements that illegally restricted protected communications.
The courts have found that such „hidden money” deals violate whistleblower protection. To do this, they require carefully drafted contracts as part of exit agreements and exit negotiations. „You could say that nothing in the agreement prevents you from providing information to government agencies or cooperating with an investigation,” Marshall says. „In the event that you receive compensation or an arbitration award, you agree to waive it. In the event that they participate in one of these bonus programs, they must say that they will not collect. „Some business lawyers are also increasingly concerned about this practice.” We`re seeing a seemingly never-ending series of efforts by companies to find new ways to discourage individuals from providing information to the government,” says David Marshall, a partner at the law firm Katz, Marshall & Banks, which specializes in whistleblowing cases. „Many of them are worded in terms that at first glance seem legitimate, but they can also be used to disrupt conversations with the government.” Companies of all sizes and in many industries require their employees to sign confidentiality agreements that prohibit them from discussing anything about their former employer. A tech giant, for example, doesn`t want the specs of its new tablet to be leaked on the internet. A hedge fund wants to maintain a competitive advantage by protecting its investment strategy. .
