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However, the law does not apply retroactively to such provisions contained in settlement or severance agreements entered into before June 9, 2022. Who is covered by the new law, and is there an exception for human resources and similar employees? 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. Prior to the amendment, the OWFA provided that a confidentiality provision "that prevents the disclosure of factual information relating to a claim of discrimination or conduct that constitutes sexual assault" could be included if the employee requested it. 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. More specifically, it prohibits employers from requiring or requesting that workers sign agreements containing nondisclosure or non-disparagement provisions restricting their right to discuss factual information regarding illegal discrimination, harassment, sexual assault, retaliation, wage and hour violations, or any other conduct "that is recognized as against a clear mandate of public policy. " Interestingly, some exceptions exist. When drafting employment separation or severance agreements, it is relatively common to include non-disclosure and non-disparagement provisions in the documents.
Both Washington and California's laws permit employers to maintain confidentiality regarding the settlement amount. Employers can also make proactive changes to their employee handbooks and implement clear workplace procedures to reduce the risk of claims in the first place, and to ensure that any claims that do arise in the workplace are handled fairly and effectively. Maintains Confidentiality for Trade Secrets. The Washington law called the Silenced No More Act went into effect on June 9, 2022. 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. The new Washington law expressly forbids forum shopping and choice of law provisions. 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. Assess employee severance agreements to avoid nondisclosure or nondisparagement provisions that are not compliant with the new law. Again, employers may still enforce settlement and severance agreements and attendant terms, however, entered into prior to the effective date. Accordingly, because of the variation in state laws regarding such provisions, employers should seek to ensure that form or template agreements satisfy the requirements of the relevant jurisdictions. A Washington compliant agreement between an employer and an employee limiting an employee's competitive activities for a specified period of time after the employment relationship ends. It will allow any worker that has survived inappropriate or illegal misconduct at work to speak truth to power and share their experience, if they so choose, " said Stephanie Van de Motter, founder of the foundation, in a statement.
Posted on July 19, 2022 by James Blankenship. The new sweeping legislation, known as the Silenced No More Act, makes significant changes to the 2018 law. Significantly, the act applies retroactively to existing agreements that contain nondisclosure or nondisparagement provisions prohibiting employees or contractors from engaging in the kind of discussions or disclosures permitted by the act. After an instance of workplace discrimination or harassment, employers could also negotiate nondisclosure in exchange for payment to settle the claim. The information you obtain at this site is not, nor is it intended to be, legal advice, and you should not consider or rely on it as such. 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. 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. 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.
However, these exceptions no longer exist as of June 9, 2022. Until now employers in Washington could add non-disclosure agreements into their employment contracts. Those provisions remain valid and enforceable. 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. Washington state became the second in the nation to pass the Silenced No More Act on Thursday. It also included individuals who are asked to participate in an open and ongoing investigation into sexual harassment and requested to maintain confidentiality during the pendency of that investigation. 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. 112 is not restricted from including confidentiality, non-disparagement, and no-rehire provisions. For questions or more information regarding these developments or your employment rights or obligations, please contact the KTC attorney with whom you normally work. 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.
Recommendations For Employers. The House Judiciary Committee advanced the Speak Out Act in July, and the Senate followed with its version of the bill on September 15, 2022. California, Oregon, and Washington's laws contain exceptions for trade secrets and proprietary business information. The new law applies to employment agreements, separation and severance agreements, and independent contractor agreements. If you believe you signed an illegal NDA or are experiencing restrictions related to a workplace non-disclosure or non-disparagement agreement in Washington state, don't suffer in silence. Meanwhile, other states, such as Hawaii, New Mexico, Louisiana, Nevada, Tennessee, Virginia, Maryland, and Vermont, have passed NDA laws with a more limited scope. What is the consequence for failure to comply with the new law? Employers do not necessarily need to re-paper their current agreements, as employees cannot recover damages for noncompliant provisions in agreements entered into before June 9, 2022, unless the employer seeks to enforce invalid provisions. The act also provides employees and contractors protection against retaliation. Other Blogs by Pullman & Comley. 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. The existence of a settlement involving any of the above conduct.
Additionally, it is a violation of the new law for an employer to even request that an employee enter such "an agreement. " Employers who violate the Act will face a potential $10, 000 fine or actual damages. While Washington is the most recent state to pass a law on this subject, it may not be the last. Employers who violate the Act are subject to civil penalties—actual or statutory damages of $10, 000 (whichever is greater), plus reasonable attorneys' fees and costs. 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. While the law does not define the phrase "employment contract, " the scope of this prohibition appears quite broad. What agreements are covered? Under the new law, Washington employers cannot (1) retaliate against an employee for disclosing allegations related to protected issues; (2) request an employee agree to a provision that the law prohibits; or (3) try to, threaten to enforce, or try to influence a party to comply with a provision that the law prohibits.