Federal Worker Protection Act

the NDA and, upon request, in any language in which the agency routinely communicates with the employee. (c) Civil Liability.--An agency that imposes a covered NDA that does not comply with the requirements of this section shall be liable to any affected employee for-- (1) a civil penalty of not less than $5,000 per violation; and (2) reasonable attorney's fees and costs incurred in any proceeding to enforce this section. SEC. 4. PRE-CLEARANCE BY THE OFFICE OF SPECIAL COUNSEL. (a) Pre-Clearance Required.--Before any agency may use or distribute a covered NDA template, including any template prepared or distributed by the Office of Personnel Management, the head of the agency shall submit the template to the Office of Special Counsel for review and certification. (b) Review Standard.--The Office of Special Counsel shall review each submitted template and shall-- (1) certify the template if the Office determines that no provision of the template, as applied to the broadest plausible population of covered employees, would restrict, discourage, or reasonably be interpreted to restrict or discourage a protected disclosure; or (2) return to the agency the template with written objections specifying each provision that fails to meet the standard in paragraph (1). (c) Review Period.--The Office of Special Counsel shall complete its review within 60 days of receiving a submission. If the Office fails to act within 60 days, the template shall be deemed provisionally approved, but the Office may revoke provisional approval at any time upon finding a subsequent deficiency. (d) Prohibition on Use Without Clearance.--No agency may impose a covered NDA using a template that has not received certification or provisional approval under this section. Any covered NDA imposed in violation of this subsection shall be void and unenforceable. (e) Public Registry.--The Office of Special Counsel shall maintain a publicly accessible online registry of all templates submitted for review under this section, together with the Office's certification determination or written objections, and shall update the registry within 10 business days of each determination. (f) Annual Review.--The Office of Special Counsel shall review previously certified templates not less than once every two years and may revoke certification upon a finding that the template no longer meets the standard in subsection (b)(1). SEC. 5. PRIVATE RIGHT OF ACTION AGAINST THREATENED OR ACTUAL RETALIATORY NDA ENFORCEMENT. (a) Right of Action.--An employee who is subject to, or is threatened with, retaliatory NDA enforcement may bring a civil action in a United States district court against the agency and against the agency official who directed or carried out the threatened or actual enforcement action. (b) Relief Available.--In an action under this section, the court may award appropriate relief, including-- (1) preliminary or permanent injunctive relief staying any enforcement action or adverse personnel action predicated on the covered NDA; (2) a declaration that the challenged NDA provision is void as applied to the disclosed information; (3) compensatory damages, including lost wages, benefits, and other economic harm; (4) punitive damages against an individual defendant who acted with malice or reckless disregard for the employee's protected disclosure rights; and (5) reasonable attorney's fees and costs. (c) Accrual; Ripeness.--A cause of action under this section accrues upon the earlier of-- (1) any written or oral communication by an agency official to the employee that the employee is under investigation for, or may be subject to discipline arising from, an alleged NDA violation where the underlying conduct would constitute a protected disclosure; or (2) any adverse personnel action predicated in whole or in part on an alleged violation of a covered NDA. (d) Burden of Proof.--In an action under this section-- (1) the employee bears the initial burden of making a prima facie showing that the threatened or actual enforcement action was predicated, at least in part, on a disclosure that the employee reasonably believed to constitute a protected disclosure; and (2) once a prima facie showing is made, the burden shifts to the agency to demonstrate by clear and convincing evidence that the enforcement action would have been taken for reasons entirely independent of the protected disclosure. (e) Exhaustion Not Required.--An employee need not exhaust administrative remedies before bringing an action under this section. (f) Statute of Limitations.--An action under this section must be filed within 3 years of the date of accrual under subsection (c). (g) No Preemption of Other Remedies.--The remedy provided by this section is in addition to, and does not preempt, any remedy available under title 5, United States Code, or any other provision of law. SEC. 6. STATUTORY SUPREMACY OF WHISTLEBLOWER PROTECTION LAWS. (a) Rule of Supremacy.--No covered NDA, NDA template, Executive order, agency policy, memorandum, or other executive-branch instrument shall be construed to-- (1) limit, restrict, condition, discourage, or penalize any protected disclosure; (2) waive, modify, or reduce any right or protection conferred by section 2302 of title 5, United States Code, chapter 4 of such title, section 7211 of such title, or any other Federal statute conferring whistleblower rights upon Federal employees; or (3) serve as the legal basis for any adverse personnel action against an employee arising from a protected disclosure. (b) Conflict; Void Provisions.--In the event of any conflict between a provision of a covered NDA and any provision of the statutes listed in subsection (a)(2), the statutory provision shall control as a matter of law. Any NDA provision that purports to restrict a protected disclosure is void ab initio and shall have no legal effect, regardless of whether the employee signed the NDA or any associated acknowledgment. (c) Affirmative Defense.--In any administrative or judicial proceeding in which an agency invokes a covered NDA to justify an adverse personnel action, an employee may raise as a complete affirmative defense the fact that the underlying disclosure constituted a protected disclosure. The agency shall bear the burden of disproving this defense by clear and convincing evidence. (d) Codification.--The Office of Personnel Management shall incorporate the rule of supremacy established in this section as a mandatory provision in every NDA template it issues, revises, or distributes to agencies. SEC. 7. INSPECTOR GENERAL OVERSIGHT AND REPORTING. (a) Independent IG Review.--Before an agency may impose any covered NDA on its employees, the Inspector General of that agency shall-- (1) independently review the proposed covered NDA or NDA template; (2) provide to the head of the agency a written certification stating whether, in the Inspector General's judgment, the covered NDA complies with all applicable whistleblower protection statutes and this Act; and (3) transmit the certification simultaneously to the Office of Special Counsel, the appropriate congressional oversight committees, and the Government Accountability Office. (b) Negative Certification.--If the Inspector General determines that the covered NDA does not comply with applicable law, the Inspector General shall-- (1) describe in writing each deficiency identified; (2) publish the written description on the agency's public website within 5 business days; and (3) notify Congress as provided in subsection (a)(3). (c) Limitation.--An agency that receives a negative certification may not impose the covered NDA until the identified deficiencies have been remedied and a new certification issued. (d) Annual Report to Congress.--Not later than 90 days after the date of the enactment of this Act, and February 1 of each year thereafter, each Inspector General shall submit to the appropriate congressional committees an annual report on NDA practices at the Inspector General's agency during the preceding fiscal year. Each annual report shall include-- (1) the total number of covered NDAs executed during the preceding fiscal year, disaggregated by bureau, office, and position type; (2) the total number of enforcement proceedings initiated, threatened, or concluded during the preceding fiscal year in which a covered NDA was cited; (3) any instance in which a covered NDA was cited in connection with a personnel action and the underlying conduct of the employee involved a disclosure that the Inspector General believes may have constituted a protected disclosure; (4) any corrective action taken or recommended; and (5) any changes to agency NDA templates made during the preceding fiscal year. (e) GAO Review.--Not later than 18 months after the date of enactment of this Act and every 3 years thereafter, the Comptroller General of the United States shall conduct an audit of agency NDA practices governmentwide and shall submit a report to Congress evaluating agency compliance with this Act. SEC. 8. INSPECTOR GENERAL REMOVAL PROTECTIONS. (a) Prohibition on Removal Following Negative Certification.--The President may not remove, place on administrative leave, or otherwise diminish the duties or authority of an Inspector General within 2 years following the Inspector General's issuance of a negative certification under section 7(b), unless-- (1) the President provides, not fewer than 30 days before the effective date of the removal, written notice to both chambers of Congress specifying the reasons for removal; and (2) the reasons stated in such notice do not include, directly or indirectly, the Inspector General's issuance of a negative certification or the Inspector General's oversight activities under this Act. (b) Senate Confirmation of Successor.--Following the removal of an Inspector General under circumstances described in subsection (a), no person may serve in an acting capacity in the Inspector General position for more than 30 days unless the President has submitted a nomination for a permanent Inspector General to the Senate. The Senate shall endeavor to consider such a nomination within 90 days of receipt. (c) Remedies for Improper Removal.--An Inspector General who is removed in violation of this section may seek reinstatement and compensatory damages in the United States District Court for the District of Columbia. Such action must be filed within 1 year of the effective date of removal. SEC. 9. SEVERABILITY. If any provision of this Act, or the application of any provision to any person or circumstance, is held to be unconstitutional or otherwise invalid, the remainder of this Act and the application of its provisions to other persons or circumstances shall not be affected. SEC. 10. EFFECTIVE DATE. (a) In General.--Except as provided in subsection (b), this Act shall take effect on the date of the enactment of this Act. (b) Transition Period for Existing NDAs.--With respect to covered NDAs executed before the date of enactment of this Act, agencies shall have 180 days from such date of enactment to-- (1) bring existing NDA templates into compliance with sections 3 and 4; and (2) provide written notice to all employees subject to existing covered NDAs of their rights under this Act. (c) Application.--During the transition period described in subsection (b), any covered NDA executed before the date of enactment of this Act shall be construed as if it contained the plain-language rider required by section 3 and shall be subject to the statutory supremacy rule in section 6. SEC. 11. DEFINITIONS. In this Act: (1) Agency.--The term ``agency'' has the meaning given such term in section 2302(a)(2)(C) of title 5, United States Code. (2) Covered nda.--The term ``covered NDA'' means any non- disclosure agreement, confidentiality agreement, or substantially similar instrument that-- (A) is imposed or required by an agency as a condition of employment, continued employment, onboarding, or access to agency systems or information; and (B) applies to any employee whose duties involve access to sensitive, protected, or otherwise non-public Government information. (3) Employee.--The term ``employee'' means-- (A) an ``employee'' as such term is defined in section 2105 of title 5, United States Code; and (B) a contractor or contractor personnel. (4) Inspector general.--The term ``Inspector General'' means an Inspector General appointed under chapter 4 of title 5, United States Code. (5) Office of special counsel.--The term ``Office of Special Counsel'' means the Office of Special Counsel established under section 1211 of title 5, United States Code. (6) Protected disclosure.--The term ``protected disclosure'' has the meaning given the term ``disclosure'' in section 2302(a)(2)(D) of title 5, United States Code, and includes any disclosure to Congress or a Member of Congress. (7) Retaliatory nda enforcement.--The term ``retaliatory NDA enforcement'' means any actual or threatened invocation of a covered NDA by an agency, or any adverse personnel action predicated in whole or in part on an alleged violation of a covered NDA, where the underlying disclosure constituted or would constitute a protected disclosure. <all>