Washington Passes "Silenced No More Act" Eliminating Non-Disclosure Agreements. • Should employers leave NDA provisions in employment, severance, and settlement agreements, even if there are doubts as to their enforceability? For assistance navigating employment-related legal issues, we encourage visiting our Employment Services page and contacting a Schwabe attorney. While the 2018 act, carved out an exception for non-disclosure confidentiality clauses, the Silenced No More Act prohibits these clauses in settlement agreement with no exceptions. An employee that is subject to an existing arbitration clause may voluntarily arbitrate and/or waive their right to collective action for claims of sexual assault or sexual harassment after the dispute arises. The new Act expands the scope of prohibited NDAs to encompass cases beyond sexual assault and sexual harassment and to all employer-employee agreements, including settlements. On March 24, 2022, Governor Inslee signed The Silenced No More Act (Bill 1795). "This is a simple bill that can go a long way toward eradicating misconduct in the workplace that is too often swept under the rug, " Keiser said in a statement. The sweeping legislation went into effect on June 9, 2022 and should serve as a wakeup call for companies to review their existing NDAs and employment agreements, and realize their employees have vastly more freedom to talk publicly about everything from harassment, sexual assault and retaliation to discrimination, safety claims, and wage and hour violations. Other States: A Patchwork Of Still More Ways To Restrict NDAs. What You Need to Know About Washington’s Silenced No More Act –. Additionally, it is a violation of the new law for an employer to even request that an employee enter such "an agreement. "
But employers need to look closely at applicable state laws. Notably, the law not only applies to individuals employed by a Washington state employer, but also covers all employees who are Washington residents. Although an instruction or request to keep a matter confidential (as opposed to a request to enter into an agreement) appears to be permitted, employers should proceed with caution in this realm as the request could be misinterpreted. 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. Despite this retroactive provision, the retroactivity in statute only applies to employment agreements and does not invalidate non-disclosure and non-disparagement provisions in settlement agreements executed prior to the Act's effective date. Silenced no more act washington post. What does the Silenced No More Act NOT protect against? Many employees are required to sign employment agreements that include nondisclosure and nondisparagement clauses at the outset of employment. Federal Legislation On The Way: The Speak Out Act. Review existing employer-employee agreements to make sure nothing violates the new law. However, employees cannot recover damages for agreements already in place unless the employer seeks to enforce these now unlawful provisions. How is this law different than the 2018 version?
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. Using boilerplate agreements or old provisions copied-and-pasted could be a source of potential exposure. Once the law becomes effective, it will repeal and replace a 2018 Washington state law that prohibits employers from using employment agreements to preemptively restrict workers from disclosing claims of workplace-related sexual assault and sexual harassment. This bill will allow all survivors of inappropriate or illegal workplace misconduct to share their experiences if they choose to do so. On the Effective Date, employers will be barred from requesting that workers sign blanket non-disclosure and non-disparagement agreements. The Silenced No More Act prevents Washington businesses from imposing NDAs that prevent workers from discussing "illegal acts of discrimination, harassment, retaliation, wage and hour violations, and sexual assault. " See our legal update regarding this topic here. Effective June 9, 2022, Washington State's Silenced No More Act (the "Act") will prohibit nondisclosure and nondisparagement provisions regarding illegal acts of discrimination, harassment, retaliation, wage and hour violations, and sexual assault in employment agreements. California passed its version of the Silenced No More Act (SB 331) in October 2021. The prohibition extends to non-disparagement provisions to the extent they prevent an employee from disclosing or discussing such illegal conduct. Oregon expressly allows individuals to sue employers that violate state confidentiality laws. Contact us at 800-689-0024 or. The Act broadly defines "employee" to include current, former, and prospective employees, as well as independent contractors; and encompasses all work-related conduct, whether occurring in the workplace or off-site. Washington State Silenced No More Act. The existence of a settlement involving any of the above conduct.
The bill is now waiting for Governor Jay Inslee's signature. With an effective date of June 9, 2022, House Bill 1795, or the "Silenced No More Act, " prevents an employer and employee from agreeing to refrain from discussing conduct that the employee reasonably believed to be illegal discrimination, harassment, retaliation, wage and hour violation, or sexual assault. Who is covered under the act? For existing agreements, a violation occurs only if employers attempt to enforce the provisions that are now unlawful. 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). However, it does not automatically invalidate prior agreements that may violate the law as long as employers (1) don't try or threaten to enforce the otherwise illegal provisions and (2) employers comply going forward with new agreements. Additionally, employers can still protect trade secrets, proprietary information, or confidential information that does not involve illegal conduct. Washington State’s “Silenced No More Act” Curtails the Use of Nondisclosure and Nondisparagement Provisions in Employment Agreements. Special thanks to Lane Powell's 2021/2022 Summer Associate Antonia Gales and 2022 Summer Associate Justine Kim for their assistance in authoring this Legal Update. 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. The term employee in this case refers to current, former, prospective employee, or independent contractor. E. 1795 does not prohibit all forms of nondisclosure agreements.
Who does the Act apply to? The Act does allow an agreement to limit the disclosure of the amount of a settlement. Claims of Harassment, Discrimination, and Retaliation.
After an instance of workplace discrimination or harassment, employers could also negotiate nondisclosure in exchange for payment to settle the claim. On its face, the New Jersey law would seem to prohibit agreements under which employees agree to submit any claims to arbitration. The law also provides for attorneys' fees and costs under certain circumstances. H. 4445 renders void and unenforceable any pre-dispute arbitration or class/collective-action agreements with employees that would require cover claims of: - Sexual assault; and. In short, the Act voids a host of non-disclosure and non-disparagement clauses in employment-related agreements concerning illegal workplace misconduct, including settlement agreements, and gives employees the right to sue for a minimum of $10, 000 in statutory damages and attorney's fees for a broad range of violations. The 2018 version of Washington's law prohibited workplace non-disclosure agreements (NDA) that would stop employees from sharing factual details of sexual harassment or sexual assault that occurred at or about work. Silenced no more act washington dwt. 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.
This extended the ban to include other forms of harassment and discrimination beyond sex based issues. What are the protected topics? Additionally, arbitration agreements and class/collective-action waivers are still enforceable if the parties enter into those agreements after a dispute arises. Nondisclosure agreements ("NDAs") are often intended to protect confidential and proprietary business information, or trade secrets. But employers need to review settlement agreements to ensure that there are not broad non-disparagement or confidentiality provisions, which could trigger the automatic $10, 000 penalty. Employers will need to understand their new reporting and notification obligations under the law and be aware of the rebuttable presumption for workers' compensation coverage. Category: Covid-19This Spring, Washington became the newest state to significantly limit the use of confidentiality and non-disparagement restrictions in employment or independent contractor agreements. Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. Silenced no more act washington university. 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. Lane Powell's team of attorneys are here to help employers develop and implement the strategy that supports their business and employees. Employees can disclose information about workplace activity they reasonable believe to be unlawful, if it includes acts of harassment, discrimination, sexual assault or wage and hour violations.
Internal investigators acting on behalf of the employer should not require investigation witnesses to sign an agreement maintaining confidentiality. This could include, for example, offer letters, employment agreements, restrictive covenant agreements, severance agreements, settlement agreements, independent contractor agreements, and employment policies and handbooks. 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. Assess employee severance agreements to avoid nondisclosure or nondisparagement provisions that are not compliant with the new law. Until now employers in Washington could add non-disclosure agreements into their employment contracts. It is not only a violation of the Act for an employer to seek to enforce such a provision, but also for an employer to request or require that an employee enter into such a provision. 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.
To learn more about Archbright's HR Hotline or find out other ways Archbright can help you, contact us at. Other Blogs by Pullman & Comley. The Act applies to all Washington State employers, irrespective of size. These types of nondisclosure agreements are commonly sought by employers to prevent news of the harassment or assault from being distributed. It is based on Washington law and is intended for use with employees or businesses located in Washington. "A nondisclosure or nondisparagement provision in any agreement signed by an employee who is a Washington resident is governed by Washington law. Washington Wage and Hour and Harassment Attorneys. Keep in mind, that employers may still prevent the "disclosure of the amount paid in settlement of a claim. "
California and Washington have 15% of the population of the United States, 47 million combined, now protected by these laws. The only caveats are that employers can continue to use non-disclosure agreements to safeguard confidential information, proprietary information and trade secrets. Next Steps for Employers.
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