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Washington State Significantly Limits Nondisclosure and Nondisparagement Agreements

June 28, 2022

Jordan Jeter - Tonkon Torp LLP

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Washington

Washington State’s “Silenced No More Act”—one of the nation’s strictest prohibitions against nondisclosure and nondisparagement agreements—went into effect on June 9, 2022. The Act replaces an earlier 2018 law and expands the definition of “employee,” broadens the types of agreements subject to restrictions, limits exceptions, and provides greater penalties for violations.

Under the Act, any agreement between an employer and employee “not to disclose or discuss 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” is void and unenforceable. Employers may not request or require an employee to enter into any such agreement. Employers also may not attempt to enforce a provision of an agreement prohibited by the Act, whether through a lawsuit or a threat to enforce.

The Act’s protections reach broadly. The Act applies to current, former, and prospective employees, as well as independent contractors.

The Act covers conduct that occurs at the workplace, at work-related events coordinated by or through the employer, between employees, or between an employer and an employee, whether on or off the employment premises.

The claims or complaints that are protected by the Act are more varied than those by similar laws in other states, such as Oregon. The Act is not limited only to allegations or complaints of sexual harassment, sexual assault, and/or discrimination. It includes conduct that may constitute wage and hour violations or, significantly, that is against a clearly mandated public policy. An employee does not need to be correct in raising such concerns; the employee simply needs to reasonably believe that the conduct at issue constitutes such violations.

The Act applies to any employee that resides in Washington, even if the employer is in a different state. With the prevalence of remote work, the inclusion of any Washington resident greatly expands the Act’s application and impacts many Oregon employers with employees who have moved or are performing services from Washington, including Vancouver.

There are only two exceptions to the Act’s prohibitions. First, unlike Oregon’s counterpart, the Workplace Fairness Act, employers of Washington residents can prohibit the disclosure of the amount paid in the settlement of a claim. Second, agreements can include provisions protecting trade secrets, proprietary information, or confidential information that does not involve illegal acts. Notably, and in another distinction from Oregon’s statute, the Silenced No More Act does not provide an exception for agreements requested by the employee themselves.

Another far-reaching consequence of the Act is that it applies retroactively to invalidate agreements created before the effective date, if those agreements were made at the outset of employment or during the course of employment. The Act does not apply retroactively to agreements made to settle a legal claim prior to the effective date.

An employer who violates the Act may be liable for a civil claim of $10,000, as well as reasonable attorneys’ fees and costs.

Given the extensive reach of the Silenced No More Act, any employer with employees that reside in Washington should take this opportunity to review and revise any employment agreements with nondisclosure or nondisparagement provisions. As always, your employment counsel is here to help with that review.

This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.

About Tonkon Torp
Tonkon Torp LLP is a leading business and litigation law firm serving public companies, substantial private enterprises, entrepreneurial businesses, and individuals throughout the Northwest. For more information, visit tonkon.com.