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Specifically, the new law bars any 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. On March 24, 2022, Governor Jay Inslee signed into law Engrossed Substitute House Bill 1795, also known as the Silenced No More Act, which expands worker protection in Washington State. An "employee" broadly covers a current, former, or prospective employee or independent contractor. This provision of the Silenced No More Act is not retroactive and went into effect on June 9, 2022. Congress also joined the trend by passing bi-partisan legislation limiting arbitration agreements. Washington's "Silenced No More Act" Goes into Effect on June 9, 2022. However, in Maryland, there is no employee headcount requirement for coverage, so the law applies to any employer in the state; and the law applies with equal force to out-of-state employers with employees working in Maryland (including teleworking). • What should employers do with their employee handbook or personnel policy language to avoid making statements during recruitment or onboarding that might violate the new NDA laws or complicate the settlement of potential future claims? This communication is not intended to create or constitute, nor does it create or constitute, an attorney-client or any other legal relationship. The Oregon law, which becomes effective in January 2023, prohibits employers from requesting confidentiality about both the amount and fact of any settlement. However, these exceptions no longer exist as of June 9, 2022. "Congrats and thank you to @KarenKeiser1, @LizBerryWA, and so many others, " Glasson tweeted Thursday night. Related Practice: Employment. Most employment-related and independent contractor agreements entered into between an employer and a prospective/current/former employee or independent contractor are covered.
The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Please contact a member of the Stokes Lawrence employment group with questions or assistance with compliance with the Silenced No More Act. The law did not, however, prohibit settlement agreements from containing confidentiality provisions. Employers should review and revise any employment-related agreements and independent contractor agreements with confidentiality and/or non-disparagement provisions that could be construed to prevent employees from discussing illegal discrimination, harassment, retaliation, wage and hour violations, or sexual assault. Conversely, an employer remains bound by a confidentiality provision unless "the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable, " in which case the employer may disclose relevant facts about the matter but has no legal remedy against the employee. 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. Washington's 2022 amendment to its Silenced No More Act imposes penalties equal to "actual or statutory damages of $10, 000, whichever is more, " and reasonable attorneys' fees and costs. This website is not an offer to represent you.
Washington state Governor Jay Inslee signed the bill on March 24, 2022, making Washington the second state to pass a Silenced No More Act. The Senate version of the bill was introduced by Sen. Karen Keiser. Specifically, the act provides for a minimum damages award of $10, 000, plus attorneys' fees and costs. 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. See Lane Powell's previous legal updates found here and here. Some state laws–including New Jersey, Illinois, Maine, New York, and Oregon–go beyond sex-based harassment to cover a broader array of issues. Washington recently enacted its "Silenced No More" law that extends this restriction even further. Related Practices & Industries. What should employers do to prepare? 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. This communication is for general information purposes only regarding recent legal developments of interest, and is not a substitute for legal counsel on any subject matter. However, these provisions became particularly controversial in the wake of the #metoo era, when employees alleged these agreements acted as a manner of silencing employees from disclosing gender discrimination and harassment. Employers should review their agreements to identify any nondisclosure and nondisparagement provisions that do not comply with the new law. Claims of Harassment, Discrimination, and Retaliation.
Legislators from Washington have passed the House Bill 1795, dubbed the "Silenced No More Act", that targets non-disclosure agreements which attempt to silence harassment and discrimination in workplaces. The law repealed former RCW 49. Employers who violate the Act are subject to civil penalties—actual or statutory damages of $10, 000 (whichever is greater), plus reasonable attorneys' fees and costs. 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. 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. It is critical, then, for employers to stay up to date on developments in this area. 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. While Washington is the most recent state to pass a law on this subject, it may not be the last. Employers should thus exercise caution before even mentioning such obligations in any workplace investigation, hiring process (other than trade secrets protection), in workplace policies such as social media use, or at separation of employment.
Starting June 9, 2022, the Act applies retroactively to agreements entered before and during employment but, importantly, not to settlement agreements entered with employees after termination. All Washington employers should immediately review and revise any employment agreement with confidentiality and/or nondisparagement provisions. — Your takeaway from reading this summary of Washington's Engrossed Substitute House Bill 1795, commonly known as the "Silenced No More Act, " which becomes law June 9, 2022, and has some important retroactive effects. No reader should act or refrain from acting on the basis of any information included herein without seeking appropriate legal advice on the particular facts and circumstances affecting that reader. Effective June 9, the Washington Legislature rescinded the 2018 law in favor of a far stricter restriction on confidentiality and nondisparagement agreements.
Jay Inslee signed into law the Silenced No M o re Act, greatly restricting the scope of nondisclosure and nondisparagement provisions that employers may enter into with employees who either work or reside in Washington state.
The new NDA laws vary in scope from sweeping to narrow and do not treat NDA issues uniformly. For example, Washington's law applies to agreements that limit disclosure of facts that an employee "reasonably believes constitute 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. " The answer, of course: it depends—principally on the identity or identities of the state(s) where an employer has employees or does its recruiting. The act will implicate nondisclosure and nondisparagement provisions in agreements between companies and current, former, or prospective employees or independent contractors who are residents of Washington state. It is not only a violation of the Act for an employer to seek to enforce such a provision, but also for an employer to request or require that an employee enter into such a provision.
Her testimony and lawsuit against Google helped get the Washington law passed. The New Jersey law allows the parties to agree to a confidentiality provision, but it does not prevent employees from breaking confidentiality. Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. While the bill only applies to employers in Washington state, that covers a number of the tech industry's biggest players, including two of the country's tech giants: Microsoft and Amazon. So, what should Washington companies do in the coming days and weeks?
Oregon's law applies to former employees and limits mediators who are mediating harassment or discrimination claims. An employer may not request or require that an employee enter into any such agreement. 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. Under the new law, employers cannot enter into "an agreement" with an employee that requires the employee not to discuss conduct that the employee reasonably believes to be illegal discrimination, harassment, retaliation, a wage and hour violation, sexual assault, or against a clear mandate of public policy. A job posting includes any "solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third party, and includes any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants. Notably, this also includes employment-related settlement and severance agreements—though a term prohibiting the disclosure of the amount paid to resolve the matter is still permitted. Penalties for violating the new law include liability in a civil suit for actual or statutory damages of $10, 000, whichever is greater, and reasonable attorney fees and costs. Or should they be eliminated? Who does the Act apply to? Notably, agreements to settle legal claims entered into before June 9, 2022, are exempt from the retroactive effect of the law. Violations of this law may result in: - Actual damages; - Statutory damages of $5, 000 to the plaintiff; - Attorney fees and costs. This Standard Document has integrated notes with important explanations and drafting tips. The House Judiciary Committee advanced the Speak Out Act in July, and the Senate followed with its version of the bill on September 15, 2022.