The law provides a private right of action and for civil penalties of either actual damages or statutory damages of $10, 000, whichever is greater. Washington joins California in becoming the second state to pass the Silenced No More Act, which bars employers from using Non-Disclosure Agreements ("NDA") to prevent workers from discussing certain allegations of illegal workplace activities. Prior results do not guarantee a similar outcome. The only caveats are that employers can continue to use non-disclosure agreements to safeguard confidential information, proprietary information and trade secrets. The bill also wants to make "void and unenforceable" the provisions preventing an employee to disclose or discuss the conduct or existence of settlement involving the violations that occur at the workplace or at work-related events whether on or off the employment premises.
Washington Silenced No More Act Text
Altogether Mighty Frightening? Unanswered Questions. Most importantly, Washington State's Silenced No More Act applies retroactively and invalidates nondisclosure and non-disparagement provisions entered into "at the outset of employment or during the course of employment" prior to the Act's effective date. The 2018 legislation prohibited employers from requiring employees to sign, as a condition of employment, a nondisclosure agreement that prevented employees from "disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events coordinated by or through the employer, or between employees, or between an employer and an employee, off the employment premises. "
Silenced No More Act Washington Post
Next Steps for Employers. 1795, the Silenced No More Act (herein "E. 1795"), which becomes effective June 9, 2022. Employers should review and revise all job postings by January 1, 2023 to include salary or pay ranges, as well as a general description of all other benefits and compensation (i. e. health insurance, 401k, bonuses, etc. ) As of June 9, 2022, any nondisclosure or nondisparagement provisions in agreements, even those "created before the effective date... and which were agreed to at the outset of employment or during the course of employment" are invalidated. An "employee" broadly covers a current, former, or prospective employee or independent contractor. Nondisclosure and nondisparagement provisions are a thing of the past in agreements between employers and employees when it comes to "illegal acts of discrimination, harassment, retaliation, wage and hour violations, and sexual assault" in the state of Washington, thanks to the Engrossed Substitute House Bill or HB 1795.
Silenced No More Act Washington State
Further, the retroactive invalidation does not apply to nondisclosure or nondisparagement provisions in employment-related settlement or severance agreements entered into before June 9, 2022. The Act prohibits confidentiality, nondisclosure, and non disparagement agreements between employers and employees regarding conduct that an employee reasonably believes to be illegal discrimination, harassment, retaliation, a wage and hour violation, sexual assault, or against a clear mandate of public policy. But employers need to look closely at applicable state laws. For years, employers have insisted that confidentiality and nondisparagement agreements be included in settlement agreements in a variety of employment disputes, such as discrimination, harassment, wage and hour, and others.
Silenced No More Act California
California's "Silent No More" Statute – A Slightly More Modest Approach. The recent legislative attention to NDAs is a response to the #MeToo movement, which highlighted the use of NDAs by "bad actors" to silence victims of sexual harassment. "A nondisclosure or nondisparagement provision in any agreement signed by an employee who is a Washington resident is governed by Washington law. Under the new law, employers cannot enter into "an agreement" with an employee that requires the employee not to discuss conduct that the employee reasonably believes to be illegal discrimination, harassment, retaliation, a wage and hour violation, sexual assault, or against a clear mandate of public policy. Employers should also note that the Act has retroactive applicability for certain agreements. One notable exception is that the Act does not apply retroactively to invalidate nondisclosure or nondisparagement provisions contained in settlement agreements signed prior to June 9, 2022. Still, the amount of a settlement agreement may be kept confidential, and the Act explicitly states it does not apply to nondisclosure of trade secrets and similar proprietary information. • Since these laws vary significantly from jurisdiction to jurisdiction, what should employers with employees in multiple states do?
Silenced No More Act Washington Post Article
The Act affects all employers entering into employment and settlement agreements with Washington employees, limiting the topics that can be included in nondisclosure or nondisparagement provisions in these agreements. Nevertheless, employers should consider amending or updating existing agreements to comply with the new statute to alleviate concern about enforcement efforts when protecting proprietary information and trade secrets. The Act may have broader consequences to employment law than what appears on its face. "It is the intent of the legislature to prohibit non-disclosure and non-disparagement provisions in agreements, which defeat the strong public policy in favour of disclosure, " read the bill. The text of H. 4445 can be found here. This means that settlement agreements entered into after June 9, 2022 relating to illegal acts of discrimination, harassment, retaliation, wage and hour violation, and sexual assault cannot include confidentiality or non-disparagement clauses. Opinions and conclusions in this post are solely those of the author unless otherwise indicated. Indeed, state laws are not uniform in their prohibitions, coverage, and exceptions, and some impose steep penalties for noncompliance. ©2022 Jackson Lewis P. C. This material is provided for informational purposes only. The 2018 law excepted human resources staff, supervisors, or managers when they are expected to maintain confidentiality as part of their assigned job duties.
Employers may continue to require that employees maintain confidentiality regarding trade secrets, proprietary information, and confidential information that does not involve illegal acts. The law does NOT ban NDAs that seek to: - Restrict the disclosure of how much money was paid in a claim settlement; - Protect trade secrets, proprietary information, or confidential information that is not illegal. The White House statement on the Speak Out Act concluded, "the Administration looks forward to continuing to work with the Congress to advance broader legislation that addresses the range of issues implicated in NDAs and nondisparagement clauses, including those related to discrimination on the basis of race, unfair labor practices, and other violations. Additionally, arbitration agreements and class/collective-action waivers are still enforceable if the parties enter into those agreements after a dispute arises. Unlike in Washington, the California statute does not retroactively void all existing agreements, but it does significantly restrict future NDAs. Washington's law applies retroactively and invalidates non-disclosure and non-disparagement provisions in employment agreements created before the Act's effective date that otherwise violate the new law. Other than seeking restrictions on disclosure of settlement or severance amounts, do not ask for non-disclosure and non-disparagement clauses in severance and settlement agreements. The bill targets pre-dispute sexual harassment claims and would nullify any NDA that purports to cover them. Can employers contract around the restrictions in Washington law? In this respect, the law goes further than similar laws in New York, California, and Illinois, each of which have exceptions allowing confidentiality for settlement agreements of discrimination claims, if the employee requests it. 375, when entering into a settlement or separation agreement with an employee who has alleged a claim of discrimination under ORS 659A. A link to the text of E. 1795 can be found here.
Employers should update employment-related agreements with nondisclosure or nondisparagement terms now to avoid hefty statutory damages later for noncompliance of $10, 000 or actual civil damages, whichever is greater. Washington employers are already prohibited from using employment agreements that restrict workers from disclosing claims of workplace sexual assault and sexual harassment – but will soon be unable to use nondisclosure agreements encompassing nearly all common employment claims and all employment agreements, including settlements. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. For instance, in some states, like New York and California, NDAs are generally banned in employment settlement agreements, but not if a complainant wants one. The law also leaves alone confidentiality provisions limited to disclosure of the amount of any settlement. Employers should review all confidentiality, nondisclosure, and nondisparagement provisions contained in their various employment agreements and policies and seek legal assistance in modifying them. Employers also must be diligent in ensuring that they do not try to enforce noncompliant provisions. What are the penalties for violating the new law? Notably, the law not only applies to individuals employed by a Washington state employer, but also covers all employees who are Washington residents. The new law applies to employment agreements, separation and severance agreements, and independent contractor agreements. Effective June 9, the Washington Legislature rescinded the 2018 law in favor of a far stricter restriction on confidentiality and nondisparagement agreements.
Review your employment agreements! Again, employers may still enforce settlement and severance agreements and attendant terms, however, entered into prior to the effective date. Related Practices & Industries. Between an employee and employer, whether on or off the employment premises.