Recent SEC regulations and a decision from the Administrative Review Board have indicated that signing a nondisclosure or confidentiality agreement does not limit an employee from becoming a whistleblower with one of the federal government’s whistleblower programs.
This article by TELG principal Adam Augustine Carter and TELG managing principal R. Scott Oswald was published by Labor Law Journal on January 28, 2014. The full article is available as a PDF on our site.
Labor Law Journal
Notes On: Can I Be a Whistleblower If I Already Signed a Nondisclosure Agreement?
Your employer is underpaying its taxes. You discover the failure to pay taxes. You feel that you should share this failure with the Internal Revenue Service. In weighing whether to disclose to the IRS you remember that when you were hired you signed a nondisclosure and confidentiality agreement. Will disclosing your employer's violations to the IRS contravene your agreement? Will you be liable for a breach of the agreement?
Recent SEC regulations — 17 C.F.R. § 240.21F-17(a) — and a decision from the Administrative Review Board — Vannoy v. Celanese Corp. — indicate that signing such an agreement does not limit the employee from becoming a whistleblower with one of the federal government's whistleblower programs.
This article will discuss an employee's ordinary duties under a nondisclosure agreement when making a disclosure to a federal whistleblower program. It will review recent regulations and decisions favorable to whistleblowers in context of prior decisions that were more oppressive to whistleblowers. Finally, it will cover best practices for a whistleblower making disclosures to a government agency.