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May 10, 2022
Effective June 9, 2022, employers in the State of Washington may not use non-disclosure or non-disparagement provisions in any agreements, including settlement agreements, to prohibit employees or independent contractors from discussing conduct that they reasonably believe constitutes harassment, discrimination, retaliation, wage-and-hour violations, sexual assault, or violations of public policy. The new law – called the “Silenced No More Act” (the “Act”) – expands on a Washington law passed in 2018 that prohibits workplace non-disclosure agreements that operate to silence employees about workplace sexual harassment or sexual assault. The Act includes an anti-retaliation provision and recognizes a private cause of action for violations of the statute.
The Law Does Not Preclude All Confidentiality Provisions
The Act does not preclude an employer from requiring confidentiality regarding the amount of a settlement, even if the settlement resolves claims of harassment, discrimination, retaliation, wage-and-hour violations, sexual assault, or violations of public policy. Nor are employers precluded from using confidentiality provisions to protect company trade secrets, proprietary information, or confidential information.
The Law Is Retroactive
The Act is retroactive and invalidates non-disclosure and non-disparagement provisions in employment agreements that were created before the Act’s effective date and that violate the Act.
Employers in the State of Washington should review their settlement agreement templates and other agreements and policies to ensure compliance with the Act.
The Act continues a trend toward limiting confidentiality. Oregon enacted the Workplace Fairness Act in 2019, with provisions prohibiting certain non-disclosure, non-disparagement, and no-rehire provisions that became effective in 2020. In early 2022, California enacted its own Silenced No More Act, expanding restrictions on the use of confidentiality provisions in certain employment-related settlement agreements. In March 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which prohibits pre-dispute arbitration agreements for sexual harassment and assault claims.
Some companies are following the trend voluntarily. Specifically, following the passage of Washington’s law, Salesforce announced it would adopt “Silenced No More” protections for all U.S. employees. Other employers, such as Google, have clarified their policies, stating, in an SEC filing, that “employees are free to discuss workplace harassment, discrimination and retaliation, even under their current NDAs.” Thus, even if you do not employ workers in the State of Washington, restrictions on confidentiality soon may be coming to your State or workplace.
*Special thanks to Claire Miller, our intern from the University of Notre Dame, for her contributions to this article.