The Justice Department’s Antitrust Division and the Department of Labor's Occupational Safety and Health Administration (OSHA) have jointly stated that non-disclosure agreements (NDAs) which deter individuals from reporting antitrust crimes undermine whistleblower protection laws. This includes the Criminal Antitrust Anti-Retaliation Act of 2019 (CAARA), which prohibits retaliation against employees who report potential criminal antitrust violations or assist federal investigations.
NDAs that conflict with CAARA or hinder employee reports of potential crimes may negatively impact employers during charging decisions and sentencing recommendations by the Antitrust Division. Companies using NDAs to obstruct investigations could face additional federal criminal charges. Such actions also jeopardize a company's ability to meet obligations under the Antitrust Division’s leniency policy, requiring cooperation from current and former employees.
Acting Assistant Attorney General Doha Mekki emphasized, “Members of the public are often best positioned to detect and blow the whistle on antitrust crimes.” Jim Frederick, Deputy Assistant Secretary for OSHA, added, “This collaboration fosters a culture of accountability and upholds the integrity of worker rights.”
Whistleblower protections under CAARA apply to company employees, contractors, subcontractors, or agents who report certain antitrust violations. The law aims to incentivize reporting and support criminal enforcement programs. However, broad NDA wording can deter individuals from reporting illegal activities due to fear of lawsuits or job termination.
Employers should be aware that NDAs discouraging reporting will affect their standing in legal proceedings. Compliance program effectiveness is evaluated based on anonymous or confidential reporting mechanisms without fear of retaliation. Companies not addressing these issues risk losing benefits when decisions are made by the Antitrust Division.
To report potential antitrust crimes, contact the Antitrust Division's Complaint Center. For issues related to government procurement fraud, reach out to the Procurement Collusion Strike Force Tip Center. Information about whistleblower protections can be found in OSHA's Fact Sheet.
