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.
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...
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