In a Kafkaesque turn of events, the Office of Special Counsel is alleging that top officials in the Commerce Department Office of Inspector General threatened subordinate employees with negative performance reviews if they didn’t sign non-disclosure agreements that barred them from exercising their rights to blow the whistle and petition Congress.

The Special Counsel petitioned the Merit Systems Protection Board to stay enforcement of the non-disclosure agreements, which she argued are an “any other significant change in duties, responsibilities, or working conditions” in retaliation for the employees’ potential for blowing the whistle – a/k/a their “perceived whistleblower” status.

The Special Counsel said in a press release Nov. 30 that “[b]ecause the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.”

MSPB Member Mark A. Robbins, in a single-member decision, Nov. 29 granted the stay request for 45 days, adding that

For purposes of this nonprecedential single-member decision in this ex parte proceeding, I accept OSC’s assertion that the Former Employees’ inability to report perceived wrongdoing to the appropriate authorities as a result of signing the nondisclosure agreement may constitute a “significant change in duties, responsibilities, or working conditions” under 5 U.S.C. § 2302(a)(2)(A)(xi).“

Other examples of “any other significant change in duties, responsibilities, or working conditions” may be found here.

From OSC’s press shop:

OSC Granted Stay in Challenge to Commerce Department Gag Clauses

FOR IMMEDIATE RELEASE
CONTACT: Ann O’Hanlon, (202) 254-3631; aohanlon@osc.gov

WASHINGTON, D.C./November 30, 2012 –

The Merit Systems Protection Board (MSPB) yesterday granted a stay requested by the Office of Special Counsel (OSC) prohibiting enforcement of unlawful gag clauses in settlement agreements between the Commerce Department’s Office of Inspector General (OIG) and four former employees of the OIG, each of whom was coerced into signing an agreement under threat of harm to their career prospects and future employment. The order is available here.

The agreements prohibit employees from voluntarily communicating with OSC or Congress. The employees were told that manufactured negative performance appraisals would be shared with prospective employers if the employees did not sign the nondisclosure agreements.

The MSPB’s action means that the personnel actions taken or threatened to be taken by OIG senior management must cease for 45 days, giving OSC further time to investigate the allegations. These personnel actions include the threatened communication with prospective employers and the imposition of significant changes in the employees’ working conditions.

The order concludes that an agreement restricting employees’ ability to report wrongdoing is a change in working conditions and is therefore a personnel action under the Whistleblower Protection Act.

In addition, the order applies the Lloyd-LaFollette Act, a 1912 law codifying the rights of federal employees to blow the whistle to Congress.

Because the act of disclosing the gag provision may itself be prohibited by the harsh terms of the agreements, OSC is protecting the employees’ identities.

“OSC is committed to ensuring that agencies do not interfere with whistleblowing to Congress,” said Special Counsel Carolyn Lerner. “We are pleased that the MSPB has granted the stay so that OSC can further investigate this matter.”