On March 24, 2022, Governor Inslee signed The Silenced No More Act (Bill 1795). Washington state now joins California as the second state to make non-disparagement and non-disclosure agreements (NDAs) in employer settlements and contracts unenforceable, for harassment and discrimination. 

The ending of non-disclosure agreements affects all companies in the state, including major employers Microsoft and Amazon. California and Washington have 15% of the population of the United States, 47 million combined, now protected by these laws.

The law bans these clauses not just in employment agreements or contracts, but also for independent contractor agreements, settlement releases, severance agreements, any form of agreement between the employee and employer.

The law goes into effect on June 9^th, 2022.

Employee Agreement with Non-Disclosure or Non-Disparagement

Until now employers in Washington could add non-disclosure agreements into their employment contracts. Or in the case of a lawsuit, include one in settlement agreements. Most employees sign employment agreements at the start of their employment, and employees use this opportunity to limit actions employees can take.

After an instance of workplace discrimination or harassment, employers could also negotiate nondisclosure in exchange for payment to settle the claim.  These types of nondisclosure agreements are commonly sought by employers to prevent news of the harassment or assault from being distributed.

California Sexual Assault Non-Disclosure Agreement Ban

California passed SB 820 to prohibit non-disclosure agreements in settlements, if they prevent disclosure of sexual harassment, sexual assault, and discrimination by sex at work or in housing.

California passed SB 331 to extend the limits to include employers preventing disclosure of illegal activity that occurred in the workplace. This extended the ban to include other forms of harassment and discrimination beyond sex based issues. The law adds a requirement in future settlement contracts to include language describing employee rights to disclose. The law went into effect on January 1^st, 2022.

Washington Law Banning Non-Disclosure By Employees

The Washington law includes provisions similar to California in banning non-disclosure of workplace assault, workplace harassment, and workplace discrimination.

The Washington law also includes wage and hour violations and retaliation as activity that is protected from non-disclosure. If a worker and employer agree to settle a case of retaliation by the employer against the employee, such as the worker reporting wage and hour violations and wage theft, the employer cannot include and enforce a non-disclosure agreement to silence the worker.

The law states that any worker who reasonably believes the activity is illegal, can speak and disclose information about potentially illegal activity. Laws already exist to ban retaliation, now employers who settle retaliation lawsuits will not be able to put the settlement under an NDA.

Washington Law Civil Penalties Against Employers

In addition to allowing employees to speak if they reasonably believe the act was illegal, and making non-disclosure agreements for these activities unenforceable, the act also includes $10,000 in civil penalties for employers who violate the law. The $10,000 penalty is not a maximum but a minimum, the penalty can increase if statutory or actual damages are higher.

Employers can be penalized if they:

• Request an employee or contractor enter into an agreement that is banned by the law.
• Attempt to enforce an existing agreement that is banned by the law. This includes both engaging in litigation against the employee, or the threat of litigation against the employee. Threats include influence or threats by both the employer or third parties on their behalf.
• Retaliation, discharge or firing, or discrimination against an employee who disclosures information. Employees can disclose information about workplace activity they reasonable believe to be unlawful, if it includes acts of harassment, discrimination, sexual assault or wage and hour violations.

Washington Wage and Hour and Harassment Attorneys

If you believe you are not being paid for all of the time you have worked or are not being paid overtime properly, we invite you to schedule a consultation with an employment law attorney from Schneider Wallace.

We also handle cases of discrimination, harassment, and other workplace violations. You are entitled to your full pay for your labor, in a workplace free from harassment and discrimination.

Schneider Wallace Cottrell Konecky LLP is a national law firm that represents employees in a wide range of employment law cases, including class action lawsuits involving the failure to pay wages, overtime pay and commissions. We can represent workers in Washington state and do so regularly. Contact us at 800-689-0024 or info@schneiderwallace.com.