Washington state passed sweeping new legislation relating to non-disclosure and non-disparagement clauses in employment related agreements. In 2018, Washington implemented legislation in response to the #Metoo movement. The 2018 legislation prohibited employers from requiring employees to sign, as a condition of employment, a nondisclosure agreement that prevented employees from “disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events coordinated by or through the employer, or between employees, or between an employer and an employee, off the employment premises.” The 2018 law carved out an exception for non-disclosure/confidentiality clauses entered into as a part of a settlement agreement between employers and employees.
The new sweeping legislation, known as the Silenced No More Act, makes significant changes to the 2018 law. First, the Silence No More Act prohibits employers from entering into non-disclosure or non-disparagement agreements with employees regarding illegal acts of discrimination, harassment, retaliation, wage and hour violation, and sexual assault. This includes clauses that prohibit discussion of acts the employee “reasonable believed” to be illegal.
The act retroactively voids any such agreements entered into and makes it a violation for an employer to attempt to enforce any non-disparagement or non-disclosure agreement related to the illegal acts. Violators of the act are liable for actual or statutory damages of $10,000, whichever is more. Violations also include attempting to force an employee to enter into such an agreement.
The Silenced No More Act also has significant impact on settlement agreements. While the 2018 act, carved out an exception for non-disclosure confidentiality clauses, the Silenced No More Act prohibits these clauses in settlement agreement with no exceptions. This provision of the Silenced No More Act is not retroactive and went into effect on June 9, 2022. This means that settlement agreements entered into after June 9, 2022 relating to illegal acts of discrimination, harassment, retaliation, wage and hour violation, and sexual assault cannot include confidentiality or non-disparagement clauses. Settlement agreements may keep the amount of the settlement confidential.
The Silenced No More Act differs from Oregon’s Workplace Fairness Act. In Oregon, a settlement agreement regarding discrimination and harassment may include a confidentiality/non-disparagement clause so long as the aggrieved employee requested such a clause. The Washington Act prohibits them in all instances.
What does this mean for your business? Review your employment agreements! If they include language that could reasonably be interpreted to prohibit discussion of discrimination, harassment, retaliation, wage and hour violation, and/or sexual assault, the agreement needs to be revised. To the extent your business entered into these types of agreements with employees in the past, do not attempt to enforce the agreements. If you have a standard settlement agreement template, review the template to ensure it does not include a non-disclosure or disparagement clause that may violate the Silenced No More Act. If you have questions regarding the act or would like an attorney to review your current agreements to ensure compliance, please do not hesitate to contact me at 503-595-6107 or .