July 2, 2022

Volume XII, Number 183

Advertisement
Advertisement

July 01, 2022

Subscribe to Latest Legal News and Analysis

June 30, 2022

Subscribe to Latest Legal News and Analysis

June 29, 2022

Subscribe to Latest Legal News and Analysis
Advertisement

Washington Passes “Silenced No More Act” Limiting Nondisclosure and Nondisparagement Provisions In Employment And Independent Contractor Agreements

On March 24, 2022, Washington Governor Jay Inslee signed into law Engrossed Substitute House Bill 1795 also known as the “Silenced No More Act” (“the Act”).  The Act prohibits agreements containing nondisclosure and nondisparagement provisions that prevent an employee or independent contractor from discussing certain violations of law.  Washington becomes the second state (after California) to render provisions in employment and independent contractor agreements void and unenforceable if they prevent disclosures of certain illegal conduct.

The Silenced No More Act renders void and unenforceable any provision in an agreement with a current, former, or prospective employee or independent contractor that bars the employee or contractor from “disclos[ing] or discuss[ing] conduct, or the existence of a settlement involving conduct, that the employee [or contractor] 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,” where the conduct occurred “at the workplace, at work-related events coordinated by or through the employer, between employees, or between an employer and employee, whether on or off the employment premises.”  The Act does not prohibit agreements that restrict the disclosure of the amount paid in the settlement of a claim, nor does the Act prohibit an employer from protecting trade secrets, proprietary information, or confidential information that does not involve illegal acts.

The Act applies to nondisclosure and nondisparagement provisions 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” or independent contractor.  The Act not only renders the offending provisions unenforceable, it also prohibits employers from requesting or requiring an employee or independent contractor to enter into an agreement containing a prohibited provision.  The Act also prohibits employers from “attempt[ing] 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.”

The Act similarly prohibits employers from “discharg[ing] or otherwise discriminat[ing] or retaliat[ing] against an employee [or contractor] 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 [and/or independent contractors], or between an employer and an employee [or independent contractor], whether on or off the employment premises.”

Notably, the Act has retroactive applicability for some agreements.  The Act will “invalidate nondisclosure or nondisparagement provisions in agreements created before the effective date” of the Act, that “were agreed to at the outset of employment or during the course of employment.”  However, the Act’s retroactive application does not apply to “a nondisclosure or nondisparagement provision contained in an agreement to settle a legal claim.”

The Act also provides that “[a] nondisclosure or nondisparagement provision in any agreement signed by an employee who is a Washington resident is governed by Washington law,” and instructs that the law is “to be liberally construed to fulfill its remedial purpose.”

Violations of the Act can subject offenders to statutory damages of $10,000 or actual damages.

© 2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 88
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Guy Brenner, Labor Attorney, Proskauer Rose, arbitration proceedings Lawyer
Partner

Guy Brenner is a partner in the Labor & Employment Law Department and co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues,...

202-416-6830
Associate

Sydney Cone earned her J.D. from Tulane University Law School, where she was the Senior Online Editor of the Tulane Maritime Law Journal and co-president of Tulane Women in the Law.

Prior to law school, Sydney was a paralegal for Lankler, Siffert, and Wohl, LLP, focusing on white collar criminal and civil litigation.

504.310.3043
Advertisement
Advertisement
Advertisement