However, the Act's retroactive application does not apply to nondisclosure or nondisparagement provisions contained in settlement agreements. Signed into law in March of 2022 and based on the same model legislation that California used for its most recent NDA statute (the "Silenced No More" model legislation developed by #MeToo advocates), the Washington law voids all blanket NDAs and non-disparagement clauses entered into as a condition of employment, no matter when they were signed (retroactively and prospectively). The bill is now waiting for Governor Jay Inslee's signature. See our previous legal update here. • Should employers leave NDA provisions in employment, severance, and settlement agreements, even if there are doubts as to their enforceability? For example, Washington's law applies to agreements that limit disclosure of facts that an employee "reasonably believes constitute 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. " Washington Law Banning Non-Disclosure By Employees. The amended OWFA makes it unlawful for an employer to make an offer of settlement or separation conditional upon a request by the employee to include any of these restricted terms. Effective June 9, 2022, an employer-employee agreement that limits the employee's ability to disclose or discuss covered conduct previously entered into during the course of or at the outset of employment will be void and unenforceable. Washington Passes “Silenced No More Act” Eliminating Non-Disclosure Agreements. The bill targets pre-dispute sexual harassment claims and would nullify any NDA that purports to cover them.
The new Washington statute called the "Silence No More" Act, bans NDAs related to all forms of workplace discrimination as well as wage and hour violations and conduct that is "recognized as against a clear mandate of public policy. " In this regard, the law prohibits certain topics, such as: any conduct an employee "reasonably believes" under Washington, federal, or common law to be discrimination, retaliation, harassment, a wage-and-hour violation, sexual assault, or conduct violative of public policy. In discrimination cases, such NDAs are no longer permitted even if the employee requests it, one of the strongest worker protections included in any of the recent statutes. Which NDAs are retroactive under the new law? The statute also specifies that a claimant's identity may remain confidential if the claimant prefers. Silenced no more act washington post. This law amended the Federal Arbitration Act to void arbitration agreements and joint action waivers that purport to apply to claims of sexual assault and harassment. But "Silenced No More" goes further. The Act specifically prohibits agreements containing non-disclosure and non-disparagement provisions that restrict applicants, employees, and independent contractors from openly discussing conduct or a legal settlement involving conduct that the applicant, employee, or contractor "reasonably believed" was illegal discrimination, harassment, retaliation, a wage and hour violation, a sexual assault, or conduct that is "against a clear mandate of public policy. Additionally, employers can still protect trade secrets, proprietary information, or confidential information that does not involve illegal conduct. Notably, this also includes employment-related settlement and severance agreements—though a term prohibiting the disclosure of the amount paid to resolve the matter is still permitted. Washington and Oregon's laws impose monetary sanctions, but others do not. It is also a violation to attempt to enforce a non-compliant NDA, "whether through a lawsuit, a threat to enforce, or any other attempt to influence a party to comply. "
The law states that any worker who reasonably believes the activity is illegal, can speak and disclose information about potentially illegal activity. However, employers need not update existing employment agreements to strike offending provisions—employers will only be in non-compliance and liable for applicable penalties if they attempt to enforce any forbidden terms after the effective date. Review your employment agreements! Several States have Enacted Broad Ban on Non-disclosure Agreements | Blogs | Labor & Employment Law Perspectives | Foley & Lardner LLP. The Act applies to all Washington State employers, irrespective of size. California's law similarly permits confidentiality provisions that protect identifying information at the request of a claimant, as long as the other party is not a government agency or public official. 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.
New State Laws Restrict Employers' Use Of Non-Disclosure Agreements. Washington State, however, takes it a step further by barring confidentiality clauses even if requested by the employee (as defined by the Act). Under Washington law, employers are already prohibited from requiring employees sign nondisclosure agreements that restrict their ability to disclose workplace sexual harassment and assault. Washington State Takes Aim At Workplace NDAs Under Its Silenced No More Act. 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 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. Stop any efforts to enforce employment terms not to disclose or discuss covered conduct previously entered into.
Penalties for Violations. Any links from another site to the blog are beyond the control of Pullman & Comley, LLC and do not convey their approval, support or any relationship to any site or organization. Federal Legislation On The Way: The Speak Out Act. Silenced no more act. Prohibited Practices. Why should people care? Many employees are required to sign employment agreements that include nondisclosure and nondisparagement clauses at the outset of employment.
On March 3, 2022, President Biden signed H. R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (herein "H. 4445"), into law. Washington silenced no more act statute. What does this mean for your business? 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. In March 2022, Governor Kate Brown signed Senate Bill 1586 into law, which amends the OWFA effective January 1, 2023, and clarifies many of the provisions of the original OWFA. Given the number and variety of the new state laws in this area, employers must ensure that their NDAs are compliant with all applicable requirements. Employers may continue to require that employees maintain confidentiality regarding trade secrets, proprietary information, and confidential information that does not involve illegal acts. By: Alexandra Shulman. In settlements with whistleblowers, employers may no longer ask employees to sign comprehensive NDAs.
Additionally, it does not prohibit confidentiality provisions concerning the amount paid in settlement of a claim. Draft their agreements to comply with the most restrictive jurisdiction? 210, that prohibited nondisclosure agreements, waivers or other documents preventing employees from disclosing sexual harassment or sexual assault. This article summarizes aspects of the law and does not constitute legal advice. Or in the case of a lawsuit, include one in settlement agreements.
Employers should thus exercise caution before even mentioning such obligations in any workplace investigation, hiring process (other than trade secrets protection), in workplace policies such as social media use, or at separation of employment. Legislatures in Hawaiʻi, Illinois, Louisiana, Maryland, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Vermont, and Virginia have also passed legislation. Assess employee severance agreements to avoid nondisclosure or nondisparagement provisions that are not compliant with the new law. An up-to-date, state-specific understanding of these new requirements is crucial. None of these state laws falls into an easy categorization. How is this law different than the 2018 version? What should employers, faced with a complex, shifting landscape of NDA-limiting laws, do, as a practical matter?
SB 331 contains some additional parameters that do not apply to negotiated settlements of claims filed in court or with an administrative agency or submitted through an internal workplace complaint procedure, but that are important for employers in the normal course of business. Any other agreement between an employer and employee. Existing agreements that violate the act do not need to be revised, and a violation occurs only if employers attempt to enforce those agreements. Specifically, the act provides for a minimum damages award of $10, 000, plus attorneys' fees and costs. Before proceeding, please note: If you are not a current client of Lane Powell PC, please do not include any information in this email that you or someone else considers to be confidential or secret in nature. The Act also does not clearly define what counts as a "dispute, " which could refer only to a lawsuit, but also could be interpreted to include a claim to the CCHRO or EEOC, or even a report to the employer's HR department. This question is particularly noteworthy because former RCW 49. While the Washington law contains these broad restrictions, note that it does not prohibit employers from requiring the amount paid in settlement of any claim to be kept confidential. It was commonplace for employers to instruct complainants, witnesses, and the accused to keep the substance of the investigation confidential. Permits Employees to Disclose/Discuss Many Types of Workplace Conduct, Limiting Use of Nondisclosure/Nondisparagement Provisions. The law went into effect on January 1st, 2022.
Under the newly enacted law, which repeals the 2018 version, that prohibition extends to settlement agreements, additional types of allegations, and agreements with independent contractors.