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But employers need to look closely at applicable state laws. Employers should take note that the Act will not be retroactively applied to non-disparagement and nondisclosure provisions contained in legal settlement agreements entered into prior to June 9. So, When is it All Ending? Washington Wage and Hour and Harassment Attorneys. Additionally, employers that opt to settle weak (or even frivolous) claims by employees to avoid the costs and disruption of litigation have a legitimate interest in keeping the terms of such settlements confidential. The bill, a version of which was signed into law in California last year, was championed in Washington by former Apple employee Cher Scarlett and former Googler Chelsey Glasson. Maine and Vermont also have such laws, as does Hawaii. In particular, Washington's Silenced No More Act, which went into effect on June 9, 2022, is one of the most restrictive laws in the country. Over a dozen states have passed new laws restricting NDAs since the advent of the #MeToo movement. KTC's Employment Law Updates provide summaries on recent developments affecting employers in Washington State. The Act does allow an agreement to limit the disclosure of the amount of a settlement. Additionally, the Act prohibits employers from attempting to enforce a provision of any agreement prohibited by the law, whether through a lawsuit, a threat to enforce, or any other attempt to influence a party to comply with a provision in any agreement that is prohibited by the law. Prohibited Practices. Employers may still include a confidentiality provision in the settlement agreements that will prevent an employee from disclosing the amount paid in settlement of a claim.
The new statute also requires employers to provide employees a copy of the employer's anti-discrimination policy as part of any settlement or separation agreement. 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. What are the consequences and repercussions? In effect, blanket NDAs and nondisparagement clauses which fail to carve out such unlawful acts in the workplace will be void, no matter when they were signed. In addition to the recent state laws, legislation limiting the use of NDAs in cases of sexual harassment has recently been advanced by both houses of Congress. The reasoning is straightforward enough: Companies want to protect their reputations, and confidentiality/nondisparagement provisions in settlement agreements have been a way to ensure that unhappy employees do not continue to make disparaging statements about their current or former employers after the parties' disputes have resolved. Employers may still enforce: - Agreements to protect trade secrets, proprietary information, or other confidential information; - Agreements relating to the amounts received in settlement; - Nondisclosure or nondisparagement agreements entered into as part of a settlement agreement that were executed before June 9, 2022. Both versions draw upon the original Silenced No More Act in California, which was inspired by two former Pinterest employees, Ifeoma Ozoma and Aerica Shimizu Banks. Glasson, who settled a long-running pregnancy discrimination suit with Google last month, said she was "intimidated by Google's NDA" as she began considering speaking out. 1795, the Silenced No More Act (herein "E. 1795"), which becomes effective June 9, 2022.
Read through the following FAQ about the Silenced No More Act to see if you have a case against your current or former employer and learn more about the law.
You should not act, or refrain from acting, based upon any information at this website. The Act is retroactive and invalidates any covered nondisclosure or nondisparagement agreement that were entered into at the outset of employment or during employment. After the Act takes effect, employers are subject to actual or statutory damages of $10, 000, whichever is greater, plus attorneys' fees, if they violate any of the law's provisions. However, the Act's retroactive application does not apply to nondisclosure or nondisparagement provisions contained in settlement agreements.
An employer also violates the Act by requesting that employees enter into a prohibited agreement, or attempting to enforce any provision of an agreement prohibited by the new law. Many employees are required to sign employment agreements that include nondisclosure and nondisparagement clauses at the outset of employment. While the Act only applies to applicants and workers in Washington State, employers should be aware of the limits of the new law and rethink their existing employment agreements. The act will implicate nondisclosure and nondisparagement provisions in agreements between companies and current, former, or prospective employees or independent contractors who are residents of Washington state. The 2018 law carved out an exception for non-disclosure/confidentiality clauses entered into as a part of a settlement agreement between employers and employees. High-tech companies like Amazon and Microsoft have long relied on NDAs to restrict outgoing employees from shining light on workplace conflicts. While the law does not define the phrase "employment contract, " the scope of this prohibition appears quite broad. The law requires that every settlement agreement involving harassment, discrimination, or retaliation claims includes a bold, prominent notice that "although the parties may have agreed to keep the settlement and underlying facts confidential, such a provision in an agreement is unenforceable against the employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable. Focused on labor and employment law since 1958, Jackson Lewis P. 's 950+ attorneys located in major cities nationwide consistently identify and respond to new ways workplace law intersects business. This communication is not intended to create or constitute, nor does it create or constitute, an attorney-client or any other legal relationship. This article summarizes aspects of the law and does not constitute legal advice. No Doubt that Washington Employers Must Rethink Nondisclosure Agreements Given Sweeping New Law. SB 331 makes exceptions for the confidentiality of a settlement amount, intellectual property, and other legitimate, proprietary company information. Washington's law may also have implications on employers' ability to require confidentiality during workplace investigations.
The act prohibits employers from entering into or enforcing a provision of any agreement that prohibits discussion or disclosure of: - Conduct that the individual reasonably believes to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault. The law also prohibits employers from punishing an employee or contractor for talking about these acts. Not only are most employment-related agreements covered—including settlement and severance agreements—many types of employment-related claims encompassing a wider range of workplace conduct must remain open for disclosure and discussion, acutely limiting the use of common nondisclosure and nondisparagement provisions. The new law allows for confidentiality as to the amount of any settlement payment.
Specifically, agreements entered on or after January 1, 2022, cannot prohibit disclosure of allegations of harassment or discrimination based on any protected category, not just sex. E. 1795 applies to all conduct that the employee "reasonably believed" to be illegal and covers conduct occurring: - At the workplace; - At work-related events coordinated by or through the employer; - Between employees, whether on or off the employment premises; and. Alerts, commentary, and insights from the attorneys of Pullman & Comley's Labor, Employment Law and Employee Benefits practice on such workplace topics as labor and employment law, counseling and training, litigation, union issues, as well as employee benefits and ERISA matters. However, in Maryland, there is no employee headcount requirement for coverage, so the law applies to any employer in the state; and the law applies with equal force to out-of-state employers with employees working in Maryland (including teleworking).