Yesterday, the Office of Personnel Management filed a draft governmentwide nondisclosure agreement that two million federal employees could be asked to sign. Many of you have asked for my thoughts.
I spent yesterday and early this morning reading the actual four-page form — not the press releases, not the summaries. The form itself. This post walks through five concerns I have, as I read the document, with full citations so you can check my work.
A few things up front. These are concerns, not predictions about how a court will rule. We are early in this. The NDA is a draft. The public comment period closes thirty days after publication in the Federal Register, and OPM may change the form before it’s final. I’ll update this post as the picture develops.
But these are the issues I think every federal employee should be tracking right now.
Concern One: The Whistleblower Language May Not Match What Congress Required
What the law says. Federal law has long recognized that nondisclosure agreements can be used to silence whistleblowers. To prevent that, Congress passed what is sometimes called the “anti-gag” statute, codified at 5 U.S.C. § 2302(b)(13). The statute says it is a prohibited personnel practice — meaning a violation of federal law that protects employees — for any agency to “implement or enforce” a nondisclosure policy, form, or agreement that does not contain a specific block of language Congress wrote.
That required language must protect, among other things, “the reporting to an Inspector General or the Office of Special Counsel of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
The two agencies named matter. The Inspector General is the watchdog inside each federal agency. The Office of Special Counsel is an independent federal agency Congress created specifically to receive and investigate whistleblower disclosures from federal employees. They are not interchangeable. Congress required both to be named.
What the form says. Paragraph 3 of the OPM draft includes a whistleblower protection clause. The form’s clause protects “the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
Read those two passages next to each other. The statute says “an Inspector General or the Office of Special Counsel.” The form, as I read it, says “an Inspector General” and stops.
Why this matters. The Office of Special Counsel appears to be missing from the required statement. Appendix A of the form separately lists the Whistleblower Protection Act and other statutes, but as I read the law, a reference list in an appendix is not a substitute for the required language in the body of the agreement. The Merit Systems Protection Board has long treated the statutory statement as a required block of text, not a checklist.
If I’m reading the form correctly — and I want you to check this for yourself against the statute and Paragraph 3 of the form — implementing or enforcing this NDA as drafted could itself be a prohibited personnel practice under 5 U.S.C. § 2302(b)(13). This could be a drafting error OPM fixes before finalization. I hope it is. But as drafted, it’s a real concern.
Concern Two: The First Amendment Question — United States v. NTEU
What the law says. Federal employees do not surrender their First Amendment rights when they accept a federal job. The Supreme Court has said so repeatedly, including in Pickering v. Board of Education, 391 U.S. 563 (1968).
The case most directly relevant to a sweeping, advance restriction on federal employee speech is United States v. National Treasury Employees Union, 513 U.S. 454 (1995). In NTEU, the Supreme Court struck down a federal law that broadly prohibited federal employees from accepting honoraria for speeches and articles. The Court held that when the government imposes a prophylactic restriction on federal employee speech — a restriction that applies in advance, to a large group, before any specific speech has occurred — the government has to make a real, evidence-based showing that the restriction’s interest outweighs the speech interests of employees and the public’s interest in hearing them.
What the form says. Paragraph 1 of the OPM draft defines the information employees may not disclose as “all non-public, confidential, or proprietary information, to include, but not be limited to, information relating to internal agency operations, personnel matters, personally identifiable information (PII), personal health information (PHI), procurement processes, or any sensitive, pre-decisional or deliberative material that is not currently publicly available and should not be disclosed under applicable law.”
That definition is sweeping. The phrase “pre-decisional or deliberative material” in particular reaches far beyond classified information or trade secrets. It covers, on its face, the kind of internal conversation that happens in every agency every day — draft policies, dissent memos, candid emails between staff.
Why this matters. As I read this, the form may capture speech federal employees make as private citizens about matters of public concern. That is precisely the speech the Supreme Court has historically protected.
The administration’s justification, as set out in OPM’s notice, points to a handful of recent leaks. That may not be the kind of evidentiary showing NTEU requires for a restriction of this breadth applied to roughly two million people. I am not predicting how a court will come out. I am saying I think there will be litigation, and I think the NTEU analysis is where it lives.
Concern Three: The Privacy Act Statement Contradicts Itself
What the form says. Page 4 of the form contains a Privacy Act Statement — a standard disclosure required when the government collects personal information. The “Effects” line reads:
“Signing the NDA is voluntary; however, failure to sign may result in removal from federal service and potential debarment for refusal to certify compliance with applicable non-disclosure obligations.”
Read that twice. The form says signing is voluntary. The next clause of the same sentence says that if you don’t sign, you can be removed from federal service and barred from future federal employment.
Why this matters. This is not just a wording problem. It’s a consent problem.
In contract law — federal and state — a signature is generally treated as voluntary when the signer has a meaningful choice. A choice between “sign this” and “lose your job and be barred from federal work” may not meet that standard. Federal courts asked to enforce this NDA against an employee will have to grapple with the contradiction in the document itself, and the government will be the party that drafted it. Under the longstanding doctrine of contra proferentem — which translates roughly to “against the drafter” — ambiguities in a contract are construed against the party that wrote it.
I do not know how this plays out. But it could be messy, and it could affect enforceability.
Concern Four: Five Years After You Leave — and Written Permission to Speak
What the form says. Two paragraphs work together here.
Paragraph 2: “Upon leaving employment with the Agency, the Employee agrees not to disclose any Confidential Government Information absent written permission from an authorized agency official.”
Paragraph 7: “The Agreement is effective for a period of 5 years after leaving Federal service.”
Combined: for five years after you leave federal service, you would need written permission from your former agency — typically from the General Counsel, the Records Officer, or your former supervisor — before disclosing covered information.
Why this matters. Five years is not a lifetime, but it is a long time. It is a full presidential election cycle plus one. During that window, the form, as I read it, would require former federal employees to ask permission from the agency they left before talking publicly about a wide range of topics they encountered on the job.
In First Amendment law, requiring a government license before someone can speak is called a prior restraint. Prior restraints have a long, well-developed history in Supreme Court law, going back to Near v. Minnesota, 283 U.S. 697 (1931), and New York Times Co. v. United States, 403 U.S. 713 (1971). They are not categorically forbidden, but they face heavy scrutiny.
As I read this, a five-year, post-employment, written-permission requirement administered by the same agency the employee left raises serious questions. The form names the official who decides, gives that official broad discretion, and provides no clear standard or timeline for response. I think this draws challenges.
Concern Five: This NDA Does Not Sit Alone
This last concern is not about the NDA itself. It’s about what the NDA sits next to.
What’s on the table. OPM has three rules in motion that, taken together, change how federal employment works.
1. The proposed governmentwide NDA discussed in this post. (Docket OPM-2026-0100, May 27, 2026.)
2. A separate proposed rule on Suitability and Fitness, published in the Federal Register on June 3, 2025. See 90 Fed. Reg. 23467. This rule would amend 5 CFR Part 731 to add “refusal to certify compliance with, and/or adhere to, applicable non-disclosure obligations” as a suitability factor. Suitability factors are the basis on which OPM can direct an agency to remove an employee. The comment period on this rule closed July 18, 2025. As of this writing, no final rule has been published.
3. A companion proposed rule on Suitability Action Appeals, published February 6, 2026. See 91 Fed. Reg. 5352. This rule would move appeals of suitability actions out of the Merit Systems Protection Board — the independent body federal employees rely on for due process — and into OPM itself. The comment period closed March 9, 2026. As of this writing, no final rule has been published.
Why this matters. Read those three pieces together. As I read them, the NDA could become a trigger. The suitability rule could make refusal to sign a basis for removal. The appeals rule could change what your appeal rights look like.
I want to be careful here. None of these rules is final. All three are proposed. Comments are in. We do not yet know what the final versions will say. But the architecture of three rules sitting next to each other is what I think federal employees should be paying attention to — not just this one form in isolation.
Could refusal to sign become a suitability factor? Could removal proceed differently than it does today? Could appeal rights look different than they do today? I do not know yet. I think we need to explore this more as the rules move toward final form.
Where That Leaves Us
Five concerns, as I read the document and the surrounding law:
- The whistleblower-protection language in the form may not match what Congress required at 5 U.S.C. § 2302(b)(13).
- The form’s breadth raises First Amendment questions under United States v. NTEU.
- The Privacy Act Statement contradicts itself on whether signing is voluntary.
- The five-year post-employment restriction with a written-permission requirement raises prior-restraint questions.
- The NDA sits next to two other proposed OPM rules that, taken together, could change how refusal to sign is treated.
These are concerns, not conclusions. The form is still a draft. Comments are open. Litigation may come if it goes final in current form.
If you are a federal employee, my advice is the same as it was this morning: read the form yourself. You handle harder documents than this every day. The link is on the OPM docket page at regulations.gov, Docket OPM-2026-0100-0003 or at fedlegalhelp.com/ndatext. Don’t let anyone — including me — tell you what’s in it without reading it yourself.
This post reflects my reading of the draft NDA as published on May 27, 2026, and does not constitute legal advice. Federal employees facing specific employment decisions should consult qualified counsel. The author is the CEO of Southworth PC represents federal employees and applicants in matters before the MSPB, EEOC, OSC, and related forums.