5 U.S.C. 2302(b)(13) treats implementing or enforcing a nondisclosure policy, form, or agreement without the required statutory statement as a prohibited personnel practice. The statement preserves specified rights and obligations concerning congressional communications, whistleblowing, and protected disclosures. [1]
What the disclaimer does
The required language makes clear that the agreement does not supersede or conflict with identified legal protections and duties. It does not give an employee blanket permission to disclose classified material publicly or ignore lawful handling procedures. The protected recipient, information, and disclosure channel matter. [1]
Review the entire restriction
Keep the actual NDA, implementing emails, instructions, and any threatened or completed personnel action. A supervisor’s broad oral warning may raise a different evidentiary issue from a written agreement missing the statutory language.
For example, an instruction stating that no employee may ever communicate with Congress should be examined against the preserved rights rather than assumed valid because it appears in a confidentiality form.
Where to raise a concern
The Office of Special Counsel investigates prohibited-personnel-practice allegations within its jurisdiction. MSPB remedies and other procedures depend on the claim, employee coverage, and procedural posture. Filing deadlines and forum choices should be checked promptly. [2]
Correction of the form is not the only issue
Adding the required disclaimer can address the wording problem, but it may not resolve a separate retaliatory personnel action already taken. Conversely, finding a missing disclaimer does not mean every confidentiality obligation disappears. Identify whether the requested remedy concerns the form, threatened enforcement, an adverse action, or a protected disclosure channel. Keep the version in force when the conduct occurred; a later revised form may not show what the employee was actually told. When seeking assistance, provide the relevant clause and communications rather than the entire collection of unrelated sensitive records. That makes it easier to evaluate the prohibited practice without unnecessarily redistributing protected information. [1] [2]
Ask for correction of the language and obtain advice before disclosing sensitive information. See federal union rights and limits on federal work stoppages to distinguish protected workplace activity from conduct governed by separate restrictions.
Primary sources
- 5 USC 2302(b)(13) and Federal Employee Nondisclosure Agreements
- OSC: Prohibited Personnel Practices Overview
Sources checked: October 31, 2026.