LEGAL UPDATE: Washington’s Silenced No More Act is effective June 9, 2022by Michelle Bomberger | May 18, 2023
Washington’s Silenced No More Act is effective June 9, 2022. This Act replaces a 2018 law prohibiting employment agreements that restricted disclosure of claims related to sexual assault and harassment in the workplace in nearly all employment claims and agreements, including settlement agreements. The new Act broadly defines “employee” as current, former, and prospective employees and independent contractors. The Act applies to conduct that occurs 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 premises.
The Act applies to the disclosure of any conduct that an employee reasonably believes to be illegal discrimination, harassment, retaliation, a wage and hour violation, sexual assault, or recognized as against a clear mandate of public policy, with only a few narrow exceptions. Confidentiality agreements protecting intellectual property continue to be enforceable, including trade secrets, proprietary information, or confidential information not involving illegal acts. The amount of a settlement agreement can remain confidential. But the existence of a settlement agreement or the underlying conduct cannot be prohibited from disclosure. The Act is silent on defamation, so employers can pursue claims against employees who make provably false public statements.
It is important to note that the Act is retroactive to any existing agreements. The previous law did not apply to settlement agreements, and you may still enforce confidentiality obligations in settlement agreements that predate the June 9, 2022 effective date. A violation of the law occurs if an employer simply requests employees to enter into any agreement with a prohibited provision or if an employer makes “any attempt” to influence an employee to meet prohibited confidentiality or non-disparagement obligations. Employers will face liability of a $10,000 fine per violation (or actual damages, whichever is greater), along with court costs and attorneys’ fees. However, employees are not able to recover damages based on existing agreements with prohibited provisions unless the employer attempts to enforce them.
This is a significant change for Washington. Employers should take immediate action to come into compliance.
- Because of the retroactive element to the Act, employers should audit any previous agreements for compliance and ensure that any nondisclosure or non-disparagement provisions in agreements are narrowly drafted so as not to risk liability for noncompliance with this new law, including a focus on any agreements with independent contractors. Note that “independent contractors” is not defined, so it could theoretically include any vendor, even a large company.
- Employers should remove any broad non-disparagement or confidentiality provisions that are not limited to the settlement amount in all agreements executed after June 9.
- Exercise caution before mentioning confidentiality obligations in workplace policies around social media, workplace investigations, the hiring process, or separation of employment.