Washington's Silenced No More Act: What it Means for Employers

May 27, 2022   Print PDF

Related Practice: Employment

Category: Covid-19

This Spring, Washington became the newest state to significantly limit the use of confidentiality and non-disparagement restrictions in employment or independent contractor agreements. With an effective date of June 9, 2022, House Bill 1795, or the “Silenced No More Act,” prevents an employer and employee from agreeing to refrain from discussing conduct that the employee reasonably believed to be illegal discrimination, harassment, retaliation, wage and hour violation, or sexual assault. The prohibition extends to non-disparagement provisions to the extent they prevent an employee from disclosing or discussing such illegal conduct.

The law also prohibits any agreement between an employer and employee to keep the settlement of claims based on such illegal conduct confidential, though they can agree to keep the amount of a settlement confidential. In this respect, the law goes further than similar laws in New York, California, and Illinois, each of which have exceptions allowing confidentiality for settlement agreements of discrimination claims, if the employee requests it.

Employers may continue to require that employees maintain confidentiality regarding trade secrets, proprietary information, and confidential information that does not involve illegal acts.

The Silenced No More Act is retroactive to the extent that it invalidates nondisclosure and non-disparagement provisions in existing employment or independent contractor agreements. But it does not invalidate nondisclosure and non-disparagement provisions in settlement or severance agreements entered before June 9, 2022.

Employers who violate the Act are liable for actual or statutory damages of $10,000, whichever is higher, plus attorney fees and costs.

What to do now
  • Revise template employment agreements, offer letters, exit letters, and settlement agreements to ensure that new agreements entered into after June 9 do not contain unlawfully broad nondisclosure provisions or threaten enforcement of newly unlawful provisions.
  • If existing agreements contain language that is no longer permissible, consider revising exit letters to specify any unlawful terms that will not be enforced, or consult with counsel before threatening enforcement of those terms. For existing agreements, a violation occurs only if employers attempt to enforce the provisions that are now unlawful.
  • Review and revise employer policies on confidentiality, including confidentiality restrictions during active investigations, to avoid violation of the statute’s anti-retaliation provision.
  • Train managers and supervisors on the implications of the new law, in particular the prohibition against taking action against an employee who discusses allegations of unlawful conduct.

Unanswered Questions

The Act may have broader consequences to employment law than what appears on its face. In the coming years, employment law practitioners, employers, and the workforce will be watching to see the long-term implications of the Silenced No More Act, including:
  • The extent to which we see an expansion of the existing tort of Wrongful Termination in Violation of Public Policy, given the Act’s prohibition of adverse employment action 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.”
  • Whether the Act’s broadly-written requirement of Washington law for Washington employees will extend to agreements protecting trade secrets or proprietary information that are unrelated to claims of discrimination or harassment.

Please contact a member of the Stokes Lawrence employment group with questions or assistance with compliance with the Silenced No More Act.