Document Type

Response or Comment

Publication Date

6-2026

Abstract

The following is an informational version of the comment submitted by the authors in response to the Office of Personnel Management's May 27, 2026, Notice with Request for Comment, Confidential Government Information Nondisclosure Agreement. The official version can be found at https://www.regulations.gov/comment/OPM-2026-0100-29768

Office of Personnel Management (OPM) frames its proposed non-disclosure agreement (NDA) as a benign restatement of obligations that already bind federal employees. But the agreement’s sweeping and vaguely defined terms do more than restate existing law. As drafted, the NDA functions as an overbroad restrictive covenant that threatens to chill protected speech and silence legitimate disclosures of waste, fraud, and abuse. The agreement will also suppress the lawful use of workers’ general skills and human capital, deterring skilled workers from entering federal service, and constraining their ability to transition back to private employment. These are precisely the harms that the FTC, the NLRB, and a growing number of state legislatures have moved to curtail by restricting the use of restrictive employment agreements in the private sector. These restrictive employment agreements have no legitimate use with public workers. For these reasons, we urge OPM to withdraw the proposed form.

This comment proceeds in four parts. Part I explains how the vague and overbroad terms of the proposed NDA place federal employees in a position of potentially conflicting obligations and will chill employees from complying with important government accountability laws, including the Freedom of Information Act (“FOIA”). Part II situates the NDA within the existing legal framework that has increasingly sought to prohibit overbroad confidentiality agreements and other restrictive covenants. Part III explains how the proposed NDA suppresses the lawful use of skills and human capital, harms workers, and deters entry into public service. Part IV critiques the proposed NDA for imposing unjustified and unreasonable adhesive terms on government employees, which they cannot realistically refuse.

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