The CFTC has corrected several deficiencies in its forms, policies, and agreements to comply with the 2012 Whistleblower Protection Enhancement Act (WPEA), following an investigation from its Office of Inspector General (CFTC OIG). 

That effort was prompted by a 2024 letter from Senator Chuck Grassley, which urged federal OIGs to ensure that their agencies were not omitting a critical “anti-gag” provision from their nondisclosure agreements or websites, as mandated by WPEA.

WPEA requires that federal agencies include a provision in NDAs stating that nothing in the NDA can stop an employee from making lawful whistleblower disclosures to Congress, Inspectors General, the Office of Special Counsel, or other privileged channels. 

Critically, WPEA renders unenforceable any agreement nondisclosure policy, form, or agreement unenforceable if it lacks the anti-gag provision. 

The law also requires federal agencies clearly post that information, as well as list of the controlling Executive Orders and statutory provisions related to whistleblower protections, on their websites. 

Acting CFTC director Caroline Pham praised the CFTC OIG’s initiative. “Whistleblowers are critical to promoting a well-functioning government, and I applaud the agency efforts to make these protections abundantly clear,” she stated.

Settlement agreements

The CFTC OIG found that in NDAs used prior to April 2023, the CFTC omitted the required anti-gag language from some employment-related settlement agreements. 

The report noted that according to a 2018 statement by the CFTC Office of Special Counsel (OSC), there is legal ambiguity over whether the WPEA’s anti-gag requirement applies to settlement agreements that only restrict disclosure of settlement terms and conditions, as opposed to underlying facts.  

While the pre-April 2023 agreements at issue only restricted the disclosure of settlement terms, the OIG nevertheless recommended that the anti-gag provision be included in the agreements going forward to comply with the plain text of WPEA. 

Website and security clearance forms

The CFTC OIG noted that the CFTC’s public- and internal-facing websites lacked the anti-gag language.

It also identified that the The Division of Administration (DA) Cyber and Physical Security Branch (CPSB) was using an outdated, 2013-era security clearance nondisclosure forms that lacked the anti-gag provision. 

Both the forms and the website have now been updated to include the necessary whistleblower protection language. 

Intra-agency coordination

The CFTC OIG also noted a lack of communication between the agency’s subdivisions on employment settlement agreements. 

As a solution, the CFTC directed its Division of Administration (DA) to coordinate all settlement agreements through the Office of General Counsel (OGC). It also directed its its Office of Equal Employment Opportunity (OEEO) to coordinate settlements with the OCG unless there are conflicts, but to otherwise include the anti-gag provision.