Posted on July 19, 2022 by James Blankenship
Washington now prohibits nondisclosure and nondisparagement agreements between employers and employees relating to certain illegal conduct. The Silenced No More Act was signed into law this spring and makes void and unenforceable any provision in an agreement with a current, former, or prospective employee or independent contractor that bars the employee or contractor from “disclos[ing] or discuss[ing] conduct, or the existence of a settlement involving conduct, that the employee 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,” where the conduct occurred “at the workplace, at work-related events coordinated by or through the employer, between employees, or between an employer and employee, whether on or off the employment premises.” The Act does allow an agreement to limit the disclosure of the amount of a settlement.
It is a violation of the Act by simply requesting or requiring an employee to enter into a covered nondisclosure or nondisparagement agreement, even prior to enforcement. Violation of the Act includes payment of actual damages or $10,000 whichever is more as well as reasonable attorneys’ fees and costs.
The Act is retroactive and invalidates any covered nondisclosure or nondisparagement agreement that were entered into at the outset of employment or during employment. However, any such agreement in the settlement of a prior legal claim remains enforceable but will not be permitted in the future.
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.
Warning: If you use standard employment agreements or severance agreements, there is a good chance they need to be amended. Please feel free to contact our Employment Law team for help or review.