Effective June 8, 2022, Washington has banned the use of legally binding agreements that would prevent an employee from disclosing any misconduct that has occurred in the workplace. The Silence No More Act (HB 1795) aims to ban the use of unlawful non-disclosure and non-disparagement agreements that prohibit an individual from revealing and/or talking about any of the following conduct:
- Harassment;
- Discrimination;
- Retaliation;
- Wage and hour violations;
- Sexual assault;
- Action that is Illegal under state, federal, or common law; or
- Violations against public policy.
Employers continue to remain able to have individuals sign an agreement as long as the provisions of the document speak to the protection of the company’s trade secrets, confidential information, or proprietary information, so long as said activities do not involve any illegal activity. Additionally, employers are still able to enforce a provision in any agreement that prohibits the disclosure of the amount paid in the settlement of a claim.
Scope of Applicability
The scope of applicability regarding HR 1795 is pretty broad. According to HB 1795, this legislation is set to apply to practically everyone in the workplace including:
- Current employees;
- Former employees;
- Prospective employees; and
- Independent contractors.
According to the Washington Department of Labor and Industries (WA L&I), the prohibited non-disclosure and non-disparagement provisions would be applicable to 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.
Moreover, the protections offered through the Silence No More Act, not only apply to the workplace, but they also extend to any conduct that may occur at a workplace event, regardless of whether the incident occurred on or off the employer’s property. The law will also retroactively apply to any agreements that have been previously signed by an employee, prior to the law’s effective date of June 8, 2022.
Finally, it is a violation of this legislation for an employer to discharge, 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 being against a clear mandate of public policy, occurring in the workplace.
Next Steps for Employers
Employers who utilize employment agreements with non-disclosure or non-disparagement provisions will want to partner with legal counsel to ensure proper compliance with the Silence No More Act. It is also highly recommended that employers seek legal assistance with drafting any such documentation or looking to enforce any such previously implemented non-disclosure and non-disparagement agreements that employees may have signed.
