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United States: DOJ & OSHA – NDAs Can’t Silence Whistleblowers

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In brief

On January 14, 2025, the Department of Justice (DOJ), Antitrust Division and Department of Labor, Occupational Safety and Health Administration (OSHA) issued a Joint Statement1, asserting that non-disclosure agreements (NDAs) undermine whistleblower protection laws, including the Criminal Antitrust Anti-Retaliation Act (CAARA), when they deter or prevent an employee from coming forward. The Antitrust Division noted they are focused on allowing individuals to report antitrust violations without the fear of retaliation. The Joint Statement also warns against using NDAs as an improper shield to obstruct an investigation, which may result in separate federal criminal violations for companies.

Key takeaways

Implement protections in compliance programs: The Antitrust Division’s guidance regarding Evaluation for Corporate Compliance Programs in Criminal Antitrust Investigations considers the existence and effectiveness of reporting mechanisms that employees can use to report potential antitrust violations. Such mechanisms should enable employees to report anonymously and without fear of retaliation and should be clearly set out in a company’s compliance program. Companies should also ensure that their employees, managers, and supervisors are trained on the provisions of CAARA to make clear that they will not face any retaliation for reporting misconduct.

Potential consequences for companies: A company’s NDA policies and anti-retaliation policies are considered when the Antitrust Division makes charging and sentencing decisions. Specifically, the Antitrust Division will scrutinize whether NDAs are used to silence whistleblowers. Companies should note that using NDAs to obstruct an investigation may result in federal criminal violations. A company that interferes with employee cooperation also risks not meeting its obligations under the Antitrust Division’s leniency policy, which requires full cooperation from employees.

NDAs should be carefully evaluated: NDAs must be clear and precise. They should not prevent reporting of antitrust violations or imply that those who report potential crimes or cooperate with law enforcement risk subsequent ramifications by their employer, such as lawsuits, demotion, or termination. NDAs should be consistent with CAARA and should not imply that employees could face adverse consequences for reporting illegal conduct. Fear of retaliation reduces the likelihood that illegal activities will be reported, weakening antitrust detection and enforcement.

In more detail

In light of DOJ and OSHA’s Joint Statement, it is crucial to understand the protections afforded to employees under CAARA.

CAARA prohibits employers from discharging or otherwise retaliating against a worker for (1) reporting potential criminal antitrust violations and related crimes to their employer or the federal government or (2) assisting a federal government investigation or proceeding. This protection promotes whistleblowing by preventing retaliation and ensures individuals can report antitrust violations without concern for job loss or other forms of retribution.

The Antitrust Division’s updated guidance regarding Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations (ECCP)2 (see our alert here), stresses the significance of incorporating confidential reporting mechanisms into compliance programs. These mechanisms enable employees to report potential antitrust violations anonymously or confidentially, without fear of retaliation, which is an “integral element” of an effective compliance program. The Antitrust Division will assess a company’s NDA policies and anti-retaliation training when evaluating the efficacy of a company’s compliance program during criminal antitrust investigations. NDAs or contractual restrictions that hinder an employee’s ability to report could affect outcomes in charging and sentencing decisions by the Antitrust Division. The Antitrust Division’s head of criminal enforcement, Manish Kumar, has also noted that these NDAs could raise obstruction of justice concerns, which could result in additional federal criminal violations.

Acting Assistant Attorney General Doha Mekki has noted that members of the public are best positioned to bring forth invaluable information related to antitrust crimes, and they should feel free to report such activities without fear of consequences by their employer.

Conclusion

The Joint Statement emphasizes the importance of protecting whistleblowers who report antitrust crimes. It is essential for companies to include reporting mechanisms as part of their antitrust compliance policies, as well as safeguards and protections against retaliation for employees who report antitrust violations. Companies should take a fresh look at their NDAs to ensure compliance with CAARA. Using an NDA to impede an antitrust investigation may be a federal offense.

Companies should foster a culture of accountability and compliance by encouraging employees to report potential antitrust violations. This includes providing protective measures and assuring employees understand they can report antitrust violations without retaliation.

Companies that do not update their compliance programs may face consequences the next time they find themselves in front of DOJ.

1 Office of Public Affairs | Justice Department and OSHA Issue Statement on Non-Disclosure Agreements That Deter Reporting of Antitrust Crimes | United States Department of Justice
2 Evaluation of Corporate Compliance Programs in Criminal Antitrust Investigations

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Ashley Eickhof is a senior associate in the Firm's North America Antitrust & Competition Practice Group. She has a proven track record of successfully representing multinational corporations and their executives in high-stakes criminal and civil investigations by federal and state agencies, including the US Department of Justice and Federal Trade Commission. In 2024, Ashley was honored as a "Rising Star" by Legal 500 in both antitrust cartel and antitrust civil litigations/class action defense. Drawing upon her background as a federal prosecutor for the Antitrust Division of the US Department of Justice, Ashley brings invaluable insight to her clients, ensuring effective representation in the most complex legal matters.
Ashley serves as Co-Chair of BakerWomen DC and is on the Steering Committee for the Firm’s Cartel Task Force.

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Jeff Martino brings an in-depth understanding of a wide variety of white collar and fraud related matters to his antitrust litigation and investigations practice. Jeff is co-lead of the Firm's Global Cartel Task Force and represents multinational corporations and their boards and executives in high-stakes criminal and civil investigations by the US Department of Justice (DOJ) and other federal and state agencies. Jeff draws upon his extensive criminal investigations, litigation, and enforcement experience to advise clients through sensitive matters pertaining to international cartel actions and white collar investigations. Prior to joining Baker McKenzie, Jeff spent nearly two decades at the DOJ and his last five years as Chief of DOJ Antitrust Division's New York Office. He has extensive experience as "first chair" on trials and investigations in the most complex areas of criminal antitrust and market manipulation. Jeff's work at the DOJ included providing technical assistance to competition agencies in Asia, Africa, the Americas and Europe and overseeing matters that included international corruption and antitrust cartel offenses that entangled the largest global banks and their key executives.

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Stephen Loertscher is an associate in Baker McKenzie's North America Antitrust & Competition Practice Group, based in the Washington, DC office. Prior to joining the Firm, Stephen worked as a Law Clerk for the United States District Court for the District of Delaware.

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Darley Maw is an associate in Baker McKenzie's Antitrust & Competition Practice Group in New York. She regularly represents and counsels clients across multiple industries in matters pertaining to antitrust, corporate governance, intellectual property, and commercial contract disputes in federal and state court. Prior to joining the Firm, she was a litigation associate at a large national law firm, counseling clients across multiple industries in complex commercial disputes. Prior to that, Darley was a judicial clerk for the Honorable Joel H. Slomsky, US District Court for the Eastern District of Pennsylvania. Darley currently serves as the North America co-chair of Baker Asian Lawyers Network (BALN).

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Natalie Flores is currently the regional knowledge attorney for North America and Latin America in the Global Antitrust & Competition Group in the Firm's Mexico City Office. She has over ten years of experience as an attorney, and manages and executes regional and global legal content projects, training and client initiatives for the Competition Group within the context of the Firm's knowledge strategy across the region. Natalie oversees all regional knowledge for the antitrust and competition group for the Americas, including develop thought leadership, client training, and publications, amongst other antitrust initiatives for the region, and advises a diverse range of industry clients in multijurisdictional competition matters. She has experience in competition litigation, specifically class action. She is an active member of the Firm's various industry groups, with a focus in the Energy, Mining & Infrastructure group of Baker McKenzie. Natalie is on the Board for Mujeres en Energías Renovables (Women in Renewable Energy) en México (MERM), an association dedicated to promoting the development of women in renewable energy, and concentrates on advocating for renewables and the empowerment of women in the sector.

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