Federal Agencies Violate Whistleblower Laws with Gag Orders

• Posted on: Aug 2 2018

Over the past year, the Centers for Disease Control and its parent agency, the Department of Health and Human Services (HHS), made several decisions that undermined the rights of whistleblowers. In December, for example, the CDC recommended that employees avoid using certain words (including “diversity” and “entitlement”) when preparing budget documents for Congress.

Under Federal law, the government is prohibited from restricting the free speech of its employees without clarifying that those restrictions do not impair their right to disclose any illegal activity. 

Action by an Alliance

An alliance of organizations, including the Office of Special Counsel (OSC), an independent agency, which enforces the free speech rights of government employees, and the Government Accountability Project, launched an investigation into the HHS/CDC word ban and other gag orders.

In a May 14 letter, the OSC reported that although this specific CDC/HHS policy did not violate any laws, it could incorrectly make employees believe that they do not have the right to voluntarily blow the whistle on wrongdoing. However, the OSC did report that since January 2017, the HHS explicitly violated the Whistleblower Protection Enhancement Act, including bans on unapproved communication with members of Congress and the media. (This Blog wrote about the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act here.)

Now, the HHS and the Justice Department, which was also caught in violation of whistleblower laws, have both agreed to rewrite their gag-order policies, as well as advise their employees of their rights through an agency-wide email.

An Epidemic?

The HHS and the Justice Department are not the only agencies to have implemented policies that restrict employee speech. Through Freedom of Information Act requests, the OSC has found that many others,  including the Energy Department, the Department of Housing and Urban Development, the Agriculture Department, and the Drug Enforcement Administration, have also implemented policies without outlining their employees’ whistleblower protections. This is important because very few federal employees are even aware of their whistleblower rights and protections, and the policies only add to influence them to believe that exercising their legal rights violates their agency’s rules.

Not only are agencies restricting whistleblower rights, but in March The New York Times reported that the Department of Education was planning something that could restrict whistleblower protections during union contract negotiations.  The Department of Education tried to eliminate a guarantee against retaliation for employees who brought up grievances.  Anti-retaliation measures are an important part of whistleblower protection and a critical factor for whistleblowers who decide to come forward with information about wrongdoing or illegal activity.

Despite the clear direction coming from the OSC and Congress to inform employees of their whistleblower rights, it seems as though it has not had much of an effect on the government’s numerous agencies.

The Benefit of Exposure

The OSC has already held two major departments responsible for restricting whistleblower rights. This is an important step because stopping agencies from implementing policies that undermine whistleblower rights will encourage federal civil servants to voluntarily report wrongdoing without fear of retaliatory action. Ultimately, this exposure and open communication will benefit the public by creating a more efficient and effective government.