Washington’s Silenced No More Act goes into effect June 9, 2022, and employers with Washington employees and contractors need to be ready to comply immediately. Washington previously banned Non-Disclosure Agreements (NDAs) prohibiting employees from disclosing sexual harassment or sexual assault occuring in the workplace. The new law goes much further, continuing a national trend to limit employers’ use of NDAs.
The Act’s breadth is notable. At its core, the law bans NDAs that prohibit employees or contractors from disclosing any unlawful conduct that occurred at work or a work-related event. Specifically, employers can’t prohibit discussion or disclosure of conduct (or the existence of a settlement involving conduct) that the worker “reasonably believed under Washington state, federal, or common law to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault, or that is recognized as against a clear mandate of public policy.” The law applies to any conduct that occurs “at the workplace, at work-related events coordinated by or through the employer, between employees, or between an employer and an employee, whether on or off the employment premises.”
To Whom Does The New Act Apply?
The Silenced No More Act applies broadly to any agreement with a current, former, or prospective employee, as well as independent contractors.
The law will likely require an update to a wide range of employment contracts, including:
- broad employment agreements
- arbitration agreements
- NDA/confidentiality agreements
- non-disparagement agreements
- proprietary information and invention assignment agreements
- severance agreements
- settlement agreements.
Note that the law still permits an NDA that prohibits the disclosure of the amount paid to settle a claim.
Importantly, the Act is retroactive, meaning that it invalidates NDAs or non-disparagement agreements executed both prior to and after the law’s effective date. This poses significant compliance issues for companies. Not only should companies revise their forms of employment agreements with new Washington hires, but companies may need to execute new NDAs with current employees and contractors if the NDAs they have been using don’t comply with the new law.
Steep Penalties for Non-Compliance
Failing to comply with the Act can be costly. Starting June 9, 2022, an employer risks minimum damages of $10,000 plus attorneys’ fees and costs if it (1) requests or requires an employee or contractor to enter into an unlawful NDA or (2) attempts to enforce an existing NDA executed prior to June 9, 2022.
Finally, the law makes clear that employers can’t avoid the new law by including a choice of law provision in the NDA providing that another state’s law will apply. The Act is clear: “A nondisclosure or nondisparagement provision in any agreement signed by an employee who is a Washington resident is governed by Washington law.”
Companies that employ Washington employees or contractors need to carefully review their form employment agreements to ensure compliance with the new law. We’ve got you covered! SixFifty has updated its Employment Agreements toolset to comply with this latest change to Washington employment law.
If you are ready to get started or have any questions, schedule a demo with SixFifty today!