The Silenced No More Act (WA State)
Under Washington State laws, what is the Silenced No More Act concerning prohibited nondisclosure and nondisparagement provisions in employer-employee agreements? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).
INITIAL MATTERS
On March 24, 2022, Washington State Governor Jay Insley signed into law the Silenced No More Act (hereinafter, "Act"), effective June 9, 2022.
The Policy
The Act was founded upon the following polices identified by the Washington State Legislature:
[1.] The legislature recognizes that there exists a strong public policy in favor of the disclosure of illegal discrimination, illegal harassment, illegal retaliation, wage and hour violations, and sexual assault, that is recognized as illegal under Washington state, federal, or common law, or that is recognized as against a clear mandate of public policy, that occurs at the workplace, at work-related events coordinated by or through the employer, between employees, or between an employer and an employee, whether on or off the employment premises.[2.] Nondisclosure and nondisparagement provisions in agreements between employers and current, former, prospective employees, and independent contractors have become routine and perpetuate illegal conduct by silencing those who are victims or who have knowledge of illegal discrimination, illegal harassment, illegal retaliation, wage and hour violations, or sexual assault.[3.] It is the intent of the legislature to prohibit nondisclosure and nondisparagement provisions in agreements, which defeat the strong public policy in favor of disclosure.
Definition of Employee
For purposes of both this article and the Act (i.e., Section 49.44.211 RCW), the term "'employee' means a current, former, or prospective employee or independent contractor." See RCW 49.44.211(8).
Governing Law
Lastly, "[a] nondisclosure or nondisparagement provision in any agreement signed by an employee who is a Washington resident is governed by Washington law." See RCW 49.44.211(9).
THE SILENCED NO MORE ACT: PROHIBITED NONDISCLOSURE & NONDISPARAGEMENT PROVISIONS
The Act prohibits certain nondisclosure and nondisparagement provisions as follows:
A provision in an agreement by an employer and an employee not to disclose or discuss 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, is void and unenforceable.Prohibited nondisclosure and nondisparagement provisions in agreements concern conduct that occurs at the workplace, at work-related events coordinated by or through the employer, between employees, or between an employer and an employee, whether on or off the employment premises.Prohibited nondisclosure and nondisparagement provisions include those contained in employment agreements, independent contractor agreements, agreements to pay compensation in exchange for the release of a legal claim, or any other agreement between an employer and an employee.
RCW 49.44.211(1) (paragraph formatting added).
VIOLATIONS
There are two primary ways an employer can violate the Act: "It is a violation of … [the Act] for an employer to request or require that an employee enter into any agreement provision that is prohibited by … [the Act]." RCW 49.44.211(4). In addition, "[i]t is a violation of … [the Act] for an employer to attempt to enforce a provision of an agreement prohibited by … [the Act], whether through a lawsuit, a threat to enforce, or any other attempt to influence a party to comply with a provision in any agreement that is prohibited by … [the Act]." RCW 49.44.211(5).
DISCHARGE, DISCRIMINATION, AND RETALIATION
Moreover, employers are also prohibited from engaging in conduct under the Act that infringes on certain employee rights: "It is a violation of … [the Act] for an employer to discharge or otherwise discriminate or retaliate against an employee for disclosing or discussing conduct that the employee reasonably believed to be illegal harassment, illegal discrimination, illegal retaliation, wage and hour violations, or sexual assault, that is recognized as illegal under state, federal, or common law, or that is recognized as against a clear mandate of public policy, occurring in the workplace, at work-related events coordinated by or through the employer, between employees, or between an employer and an employee, whether on or off the employment premises." RCW 49.44.211(3).
EXCEPTIONS
However, the Act contains several exceptions to its coverage. It "does not prohibit the enforcement of a provision in any agreement that prohibits the disclosure of the amount paid in settlement of a claim." RCW 49.44.211(2). "[It] does not prohibit an employer and an employee from protecting trade secrets, proprietary information, or confidential information that does not involve illegal acts." RCW 49.44.211(6). And, lastly, "[it] does not apply to a nondisclosure or nondisparagement provision contained in an agreement to settle a legal claim." RCW 49.44.211(11).
RETROACTIVITY (BEFORE 6/9/22)
The Act is retroactive in certain respects: "As an exercise of the state's police powers and for remedial purposes, … [the Act] is retroactive from June 9, 2022, only to invalidate nondisclosure or nondisparagement provisions in agreements created before June 9, 2022, and which were agreed to at the outset of employment or during the course of employment." RCW 49.44.211(11). Further, the Act "allows the recovery of damages only to prevent the enforcement of those provisions." RCW 49.44.211(11).
REMEDIES (AFTER 6/9/22)
Lastly, the Act provides remedies for violations based on conduct occurring after June 9, 2022. "An employer who violates … [the Act] after June 9, 2022, is liable in a civil cause of action for actual or statutory damages of $10,000, whichever is more, as well as reasonable attorneys' fees and costs." RCW 49.44.211(7).
LEARN MORE
If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group; please see our DISCLAIMER.
–gw
