I Signed an NDA and Now I'm a Whistleblower. What's Protected?

Can an NDA stop you reporting possible violations to the government?

Contracts cannot lawfully prevent you from reporting possible violations of law to the government. Agencies including the Securities and Exchange Commission, the Equal Employment Opportunity Commission, the National Labor Relations Board and the Occupational Safety and Health Administration have taken the position that agreements restricting such reports are unenforceable to that extent, and some have penalised companies for using them.

The Defend Trade Secrets Act immunity

The federal Defend Trade Secrets Act gives immunity from trade secret liability for disclosures made in confidence to a federal, state or local government official, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law. It also covers disclosures in a complaint or other document filed under seal in a lawsuit. Employers are required to give notice of this immunity in agreements with employees and contractors that cover trade secrets. If they do not, they lose the ability to recover certain enhanced damages and attorney's fees against the person.

SEC whistleblower rules

SEC Rule 21F-17 prohibits anyone from taking action to impede an individual from communicating directly with the SEC about a possible securities law violation, including by enforcing or threatening to enforce a confidentiality agreement. The SEC has brought enforcement actions against companies whose agreements required employees to waive whistleblower awards or notify the company before contacting regulators.

Workplace and harassment protections

• The National Labor Relations Act protects many non-supervisory employees who discuss wages and working conditions or raise concerns together, and the NLRB has found some broad severance confidentiality clauses unlawful.
• The Speak Out Act makes certain pre-dispute nondisclosure and non-disparagement clauses unenforceable in sexual assault and sexual harassment disputes.
• Many states have laws limiting confidentiality in settlements involving harassment or discrimination, and protecting employees who report violations.

What is protected, and what is not

The protections focus on reporting to the right people through the right channels. Generally safer routes include reports to government agencies, disclosures to your own attorney, and filings under seal. Riskier routes include posting documents online, giving them to the media or taking large volumes of files you do not need. Some whistleblower laws protect certain public disclosures, but many do not, and taking documents beyond what is reasonably necessary can create separate claims against you.

Are you protected from retaliation for reporting?

Many federal and state laws protect employees from retaliation for reporting suspected violations, such as being fired, demoted or threatened. Deadlines to file retaliation complaints can be short, sometimes as little as 30 days under certain federal laws, so act promptly if you believe you have been retaliated against.

What do SOX, Dodd-Frank and the False Claims Act add?

Employees of public companies who report suspected securities or shareholder fraud are protected by the Sarbanes-Oxley Act, 18 U.S.C. § 1514A. A retaliation complaint must be filed with the Department of Labor within 180 days after the violation occurs or after the employee becomes aware of it. If the Department has not issued a final decision within 180 days, the employee can take the claim to federal court. A pre-dispute arbitration agreement cannot force a Sarbanes-Oxley whistleblower claim into arbitration.

The Dodd-Frank Act created the SEC's award program. When an SEC action based on original information results in monetary sanctions of more than $1 million, eligible whistleblowers can receive between 10 and 30 percent of the sanctions collected (15 U.S.C. § 78u-6). An NDA cannot take that right away, and the SEC has acted against agreements that tried.

Fraud against the government falls under the False Claims Act. A whistleblower, called a relator, can file a lawsuit on the government's behalf under seal. If the government takes over the case, the relator generally receives 15 to 25 percent of the recovery, and 25 to 30 percent if the relator pursues it alone (31 U.S.C. § 3730(d)). Retaliation remedies include reinstatement, two times back pay and special damages, and a retaliation claim must be brought within three years (§ 3730(h)).

Each program has its own procedures and deadlines, so the order and manner of reporting matter. That is one more reason to speak to a lawyer before sharing documents. Keep copies of what you report, to whom and when, and do not take more documents than you need to support the report.

Practical steps before you report

• Write down what you observed, when and who was involved, from your own knowledge.
• Do not take documents beyond what you are lawfully entitled to access, and get advice before copying anything.
• Identify the right agency for the type of violation.
• Speak to a whistleblower or employment lawyer; many offer free initial consultations, and some agencies have award programmes that require specific procedures.
• Keep communications on personal devices and accounts, not employer systems, while complying with your obligations.

A worked example

Grace, a finance manager, believes her company is misstating revenue. Her employment agreement has a broad NDA. She consults a securities lawyer, who helps her submit a tip to the SEC with the relevant information, following the SEC's procedures. The NDA does not prevent this report. If she had posted internal spreadsheets on social media instead, she would likely have lost that protection and faced claims for disclosing confidential information.

What to look for in your NDA

A well-drafted NDA includes a carve-out confirming that nothing in it prevents you from reporting possible violations to government agencies, participating in investigations or receiving whistleblower awards, and includes the Defend Trade Secrets Act notice. If yours lacks these, the protections generally still apply, but the absence may itself be a problem for the employer.

Common mistakes

• Assuming the NDA prevents any report to authorities.
• Assuming whistleblower protection covers any public disclosure.
• Taking more documents than needed.
• Missing short retaliation deadlines.
• Reporting without advice when a lawyer could guide the process.

Quick checklist

• What law might have been violated, and which agency covers it?
• Does your NDA include a whistleblower carve-out and DTSA notice?
• What information do you need, and are you lawfully able to access it?
• Have you spoken with a lawyer?
• Are you keeping records of any retaliation?

Key terms explained

These terms appear in whistleblower protections.

• Whistleblower: a person who reports suspected wrongdoing.
• DTSA immunity: protection for confidential disclosures of trade secrets to officials or attorneys to report violations.
• Rule 21F-17: an SEC rule against impeding communications with the SEC.
• Retaliation: adverse action taken because someone reported or opposed wrongdoing.
• Under seal: filed with a court in a way that keeps the document confidential.

Can a severance agreement stop you contacting regulators?

Severance and settlement agreements often include broad confidentiality, non-disparagement and release clauses. Lawful agreements carve out the right to report to government agencies, participate in investigations and, in many cases, receive whistleblower awards. If your severance agreement seems to prohibit any contact with regulators, or requires you to notify the company before speaking to an agency, get advice before signing. Our guide to non-disparagement clauses in severance agreements explains what those terms can and cannot restrict.

Internal reporting first?

Some companies have internal reporting channels, and some whistleblower programmes give credit for reporting internally first. But internal reporting is not usually required before going to an agency, and agreements cannot generally require you to report internally before contacting the SEC. A lawyer can advise which route best protects you in your situation.

Keep a timeline

Write a dated timeline of what you observed, who you told, when and what happened next. It helps your lawyer, supports any retaliation claim and keeps your account consistent.

Contractors and whistleblowing

Independent contractors are not covered by every employee whistleblower law, but many protections still apply. The DTSA immunity covers contractors and consultants, SEC rules protect any person communicating with the SEC, and some federal and state laws protect contractors of public bodies or specific industries from retaliation. If you are a contractor, get advice on which protections apply to your situation before you disclose.

Questions to ask a lawyer

Ask which agency to report to, what documents you may lawfully keep, whether an award programme applies, what deadlines apply to retaliation claims, and whether anything in your NDA or severance agreement needs attention.

Get advice first

Whistleblower protections are strong but specific. Before you act, speak to a lawyer who handles these cases. If you want to understand what your NDA or severance agreement says, including whether it contains the required carve-outs, you can upload it for a plain-English review.