Under the house bill, the legislature acknowledged there are existing provisions in non-disclosure and non-disparagement contracts between employers and employees that want to silence victims or those with knowledge of illegal discrimination, illegal harassment, illegal retaliation, wage and hour violations, or sexual assault in the workplace. Employers should update employment-related agreements with nondisclosure or nondisparagement terms now to avoid hefty statutory damages later for noncompliance of $10, 000 or actual civil damages, whichever is greater. The law requires that every settlement agreement involving harassment, discrimination, or retaliation claims includes a bold, prominent notice that "although the parties may have agreed to keep the settlement and underlying facts confidential, such a provision in an agreement is unenforceable against the employer if the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable. This retroactive application, however, does not void similar provisions found in settlement agreements. 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. Washington joins California in becoming the second state to pass the Silenced No More Act, which bars employers from using Non-Disclosure Agreements ("NDA") to prevent workers from discussing certain allegations of illegal workplace activities. This bill will allow all survivors of inappropriate or illegal workplace misconduct to share their experiences if they choose to do so. What Employers Need to Know.
But it does not invalidate nondisclosure and non-disparagement provisions in settlement or severance agreements entered before June 9, 2022. This includes both engaging in litigation against the employee, or the threat of litigation against the employee. A link to the text of E. 1795 can be found here. Most importantly, Washington State's Silenced No More Act applies retroactively and invalidates nondisclosure and non-disparagement provisions entered into "at the outset of employment or during the course of employment" prior to the Act's effective date. What does this mean for your business? Or have separate model agreements and language for every state? Prior to the establishment of a lawyer-client relationship, unsolicited emails from non-clients containing confidential or secret information cannot be protected from disclosure. This includes a wide array of conduct arising in the workplace and at work-related events coordinated by the employer, between the employer or an employee, or between employees, regardless if it occurred on the physical premises.
The act applies to all employers regardless of size and to any company that engages at least one independent contractor in Washington state, and defines an "employee" as a current, former, or prospective employee or independent contractor. While other states such as California, New York, and Illinois have enacted similar NDA-narrowing laws covering different forms of employment discrimination, Washington's new law is arguably the most restrictive. The trend that began with Washington state's Silenced No More law has now spread to 14 states, with two more states considering bills. It was commonplace for employers to instruct complainants, witnesses, and the accused to keep the substance of the investigation confidential. Changes and Clarifications to OWFA. 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). 210) excepted settlement agreements between an an employer and an employee or former employee alleging sexual harassment. 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. I Know Just What You're Thinkin'. Because of the broad scope of the act, the severe penalties, the requirement not to enforce prior agreements, and the mandate of compliance moving forward, it is imperative that Washington employers consult with their legal advisors to ensure compliance with the new law. Finally, the amendment specifies that an employee can recover a civil penalty of up to $5, 000 in a private action claiming a violation of the OWFA, as well as other relief, including lost wages and emotional distress damages. The law provides a private right of action and for civil penalties of either actual damages or statutory damages of $10, 000, whichever is greater.
Non-compliance costs and penalties also vary. Contact us at 800-689-0024 or. Amid #MeToo, Washington previously passed S. 5996 which restricted employers from requiring that, as a condition of employment, employees sign a nondisclosure agreement which restricted their ability to disclose workplace sexual harassment and assault.
Related Practices & Industries. We also handle cases of discrimination, harassment, and other workplace violations. Train managers and supervisors on the implications of the new law, including potential violations for requesting confidentiality and/or taking action against an employee who discusses allegations of illegal conduct. Employers should make sure they have reviewed applicable state law whenever entering into a settlement or severance agreement with an employee and ensure that they are not using boilerplate confidentiality provisions that may violate these increasingly common prohibitions. One likely limitation on this waiver prohibition is the Federal Arbitration Act ("FAA"), which generally makes arbitration agreements enforceable. The new statute also requires employers to provide employees a copy of the employer's anti-discrimination policy as part of any settlement or separation agreement. However, as long as an employer does not seek to enforce those invalid provisions, an employee cannot recover damages. For more information about how this new law could affect your workplace, contact your regular Fisher Phillips attorney, the authors of this Insight, or any attorney in our Seattle office. We can represent workers in Washington state and do so regularly. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.
In 2019, California followed suit. But employers who opt to protect their intellectual property with an NDA should review such agreements to ensure this clause is narrowly limited to this type of information. As such, the law invalidates nondisclosure and nondisparagement provisions in agreements created before June 9, 2022, that were agreed to at the outset of employment or during the course of employment. For years, employers have insisted that confidentiality and nondisparagement agreements be included in settlement agreements in a variety of employment disputes, such as discrimination, harassment, wage and hour, and others. The Washington Act prohibits them in all instances. Under Washington law, employers are already prohibited from requiring employees sign nondisclosure agreements that restrict their ability to disclose workplace sexual harassment and assault.
However, because the law applies retroactively in certain circumstances, Washington employers should immediately review and update their employment agreements with confidentiality and/or nondisparagement provisions and ensure they comply. Attorneys in Pullman & Comley's Labor & Employment practice are available to assist.
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