
A report by the Government Accountability Office (GAO) found that the IRS has guidance that references whistleblower protections as well as addresses prohibited practices of retaliating against whistleblowers.
But, a specific reference to the anti-gag provision was not part of non-disclosure agreements (NDAs), policies or whistleblower protections training.
Specifically, the GAO reviewed 22 NDAs signed from August 2018 to April 2024 and found that five had a partial reference to the anti-gag provision. However, 17 did not have any reference to the anti-gag provision.
The GAO also found some existing internal guidance referenced NDAs and whistleblower protections, although it did not see proof of a dedicated NDA policy that required the anti-gag provision be included.
Additionally, the GAO also found that the NDA and whistleblower guidance was not readily accessible for employees to find on the IRS intranet site. Training for new hires and annual briefings for all employees, managers and contractors, mentioned the Whistleblower Protection Act of 1989, and addressed the prohibited practices of retaliating against whistleblowers. Even though it is not required, they did not contain the anti-gag provision.
GAO's evaluation came after the Treasury Inspector General for Tax Administration received a congressional
request to assess whether the IRS
complied with the Whistleblower
Protection Enhancement Act of
2012 (WPEA) by including the
required anti-gag provision in its
NDAs and related documentation as
required by law. The anti-gag
provision makes employees aware about their rights and obligations to
report wrongdoing to Congress, the
Inspectors General or the Office of
Special Counsel supersedes NDAs.
Because of the GAO's evaluation, in July 2024, IRS officials updated the NDA form template for contractors with staff-like access and non-procurement employees involved in procurement to include the required anti-gag provision. The IRS also updated its Expert Witness NDA form template in October 2024, the GAO said.
The IRS estimated that roughly 500 to 1,000 IRS employees and 6,000 contractors, sign an NDA every year. Without
anti-gag provisions in the NDAs, employees, and contractors may become hesitant to report on fraud, waste and abuse activities, which would result in reputational harm for the agency.
Additionally, the WPEA Prohibited Personnel Practices states that the NDA policy, form, or agreement must include the anti-gag provision prior to the policy, form or agreement can be enforced. Given that NDAs in use by the IRS at the time of our review did not have anti-gag provisions, they might not be enforceable.
The GAO made four recommendations, telling the IRS to:
• ensure that NDAs, policies, forms as well as other guidance documents include the required anti-gag provision;
• create a dedicated section for NDAs in internal guidance that has the anti-gag provision;
• include information about the anti-gag provision in training programs covering whistleblower protections (e.g., new employee orientation contractor training);
• add a link to TIGTA’s Whistleblower Protections webpage on its internal webpage and pertinent information to the Employee Resource page on its internal webpage to ensure employee knowledge of the whistleblower protections as it relates to the anti-gag provision..
IRS management agreed with the GAO's recommendations. During the evaluation, the IRS updated its NDA template for contractors with staff-like access, non-procurement employees involved in procurement activities and expert witnesses to include the required anti-gag provision. The IRS also created updates to the Fiscal Year 2025 mandatory Prohibited Personnel Practices and Whistleblower training, and the updates are under final legal review.