Whistleblower Protection Enhancement Act of 2012

On November 27, 2012, President Obama signed the Whistleblower Protection Enhancement Act of 2012 (WPEA), which 

amended the Whistleblower Protection Act of 1989. WPEA provides enhanced protection for government 

whistleblowers by expanding the scope of protection and judicial review.

The Federal Maritime Commission’s (FMC) leadership takes very seriously the protections afforded to whistleblowers 

under WPEA and has taken several actions to implement WPEA at FMC. 

Whistleblower Retaliation Complaint. Whistleblower retaliation is prohibited. Anyone who believes they have been 

the victim of whistleblower retaliation may file a written complaint (Form OSC-11) with the U.S. Office of Special 

Counsel, 1730 M Street, NW, Suite 218, Washington, DC 20036-4505 or online through the OSC website at 

https://osc.gov. 

Questions regarding the actions or information outlined below, or other aspects of WPEA, can be referred to Paul 

Schofield in the Office of the General Counsel. The following links provide further information on whistleblowing and 

whistleblower retaliation. 

Agency Actions and Information Regarding the Whistleblower Protection Enhancement Act of 

2012 (WPEA)

Nondisclosure Agreements. The WPEA requires that any nondisclosure policy, form or agreement (known as an NDA) 

now include the statement set out below, and provides that NDAs executed by FMC without the language may be 

enforced as long as FMC provides notice of this statement. Job applicants and staff of FMC may have been required to 

sign an NDA to access classified or other information. The Classified Information Nondisclosure Agreement (Standard 

Form 312) and other NDAs have been revised in accordance with the WPEA to include the language below. However, 

even if a signed NDA did not include the required new language, the NDA should be read as if the following statement 

were incorporated into any nondisclosure policy, form, or agreement that may have been signed or which is enforced by 

the FMC:

“These provisions are consistent with and do not supersede, conflict with, or otherwise alter the 

employee obligations, rights, or liabilities created by existing statute or Executive order relating to: 

*classified information, 

*communications to Congress, 

*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, or 

*any other whistleblower protection. 

The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling 

Executive orders and statutory provisions are incorporated into this agreement and are controlling.”
The following executive orders and statutory provisions control in the case of any conflict with an agency NDA:

 Executive Order No. 13526;

 Section 7211 of Title 5, United States Code (governing disclosures to Congress);

 Section 1034 of Title 10, United States Code, as amended by the Military Whistleblower Protection Act 

(governing disclosure to Congress by members of the military);

 Section 2302(b)(8) of Title 5, United States Code, as amended by the Whistleblower Protection Act of 1989 

(governing disclosures of illegality, waste, fraud, abuse or public health or safety threats);

 Intelligence Identities Protection Act of 1982 (50 U.S.C. § 421 et seq.) (governing disclosures that could 

expose confidential government agents);

 The statutes which protect against disclosure that may compromise the national security, including sections 

641, 793,794,798, and 952 of Title 18, United States Code; and

 Section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. § 783(b)).

Disclosures Involving Classified Information. The U.S. Office of Special Counsel (OSC) can provide advice on making 

confidential disclosures, as well as disclosures involving classified information. See more information on OSC’s website 

at https://osc.gov. In addition to OSC, classified disclosures may be made to Congress or other person designated to 

receive such disclosures.