Washington Prohibits Nondisclosure Agreements Related to Sexual Harassment or Assault
On March 21, 2018, Washington Governor Jay Inslee signed bill SB 5996 (the “Law”), which prohibits employers from requiring as a condition of employment that employees sign a nondisclosure agreement preventing them from discussing workplace sexual harassment or sexual assault. The Law goes into effect on June 7, 2018.
In addition to sexual offenses in the workplace, the Law covers such incidents that occur at work-related events “coordinated by or through the employer,” or between employees, or between an employer and an employee off the employment premises. The new Law also prevents employers from retaliating against employees who disclose workplace sexual harassment or sexual assault.
Notably, however, the Law does not prohibit an employer from including confidentiality provisions in a settlement agreement with an employee regarding sexual harassment allegations. Further, the Law provides exceptions for human resources, supervisory, and managerial staff who are expected to maintain confidentiality as part of their jobs. It also excludes employees who participate in an “open and ongoing” sexual harassment investigation and are requested to maintain confidentiality during that investigation.
Under the Law, “sexual harassment” is defined broadly to mean unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact, or other verbal or physical conduct or communication of a sexual nature if submission to that conduct or communication is, among other things, used as a factor in decisions affecting that individual’s employment or creates a hostile environment. “Sexual assault” is similarly defined as any type of sexual contact or behavior that occurs without the explicit consent of the recipient.
Employers in other states should be aware that the kind of nondisclosure agreements banned by the new Washington law also may be unlawful under federal labor laws protecting concerted activity (i.e., with at least one other employee) for the employees’ mutual aid or protection.
State Commission to Develop Model Policies and Best Practices
Also on March 21, 2018, Governor Inslee signed bill SB 6471, which directs the Washington State Human Rights Commission to create a “work group” to develop model policies and best practices for employers and employees to keep workplaces safe from sexual harassment. The bill requires the agency to adopt the model policies and best practices developed by the work group and to post them on the agency’s website by January 1, 2019.