However, these exceptions no longer exist as of June 9, 2022. Employers should review and revise any employment-related agreements and independent contractor agreements with confidentiality and/or non-disparagement provisions that could be construed to prevent employees from discussing illegal discrimination, harassment, retaliation, wage and hour violations, or sexual assault. What does the Silenced No More Act NOT protect against? A general description of all other benefits and other compensation to be offered for the position. What is the Washington Silenced No More Act? Employers can also make proactive changes to their employee handbooks and implement clear workplace procedures to reduce the risk of claims in the first place, and to ensure that any claims that do arise in the workplace are handled fairly and effectively.
Silenced No More Act Washington Post
Exercise care to assess which employment agreements must be revised—some nondisclosure or nondisparagement provisions may be retained to preserve rights over protectable interests. California passed its own version of the Silenced No More Act last year. An employee that is subject to an existing arbitration clause may voluntarily arbitrate and/or waive their right to collective action for claims of sexual assault or sexual harassment after the dispute arises. It will allow any worker that has survived inappropriate or illegal misconduct at work to speak truth to power and share their experience, if they so choose, " said Stephanie Van de Motter, founder of the foundation, in a statement. "The way to protect employees from harassment and discrimination is to enable them to speak up. In Oregon, a settlement agreement regarding discrimination and harassment may include a confidentiality/non-disparagement clause so long as the aggrieved employee requested such a clause. It further encompasses conduct occurring in 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. As of June 9, 2022, noncompliant provisions in an employment agreement, contractor agreement, agreement to pay compensation in exchange for the release of a legal claim, or any other agreement between an employer and an employee or contractor are void and unenforceable. We will monitor these developments and provide updates as warranted, so make sure that you are subscribed to Fisher Phillips' Insights to get the most up-to-date information direct to your inbox. The Washington law includes provisions similar to California in banning non-disclosure of workplace assault, workplace harassment, and workplace discrimination. The law will not apply retroactively to invalidate a nondisclosure or nondisparagement provision contained in a settlement agreement. The text of H. 4445 can be found here. Review your employment agreements! You should not act, or refrain from acting, based upon any information at this website.
The prohibition includes, but is not limited to, all settlement agreements, non-disclosure agreements, and non-disparagement agreements between an employer and an employee or independent contractor. New State Laws Restrict Employers' Use Of Non-Disclosure Agreements. What Does the "Silenced No More Act" Mean for Workers in the State of Washington? With an effective date of June 9, 2022, House Bill 1795, or the "Silenced No More Act, " prevents an employer and employee from agreeing to refrain from discussing conduct that the employee reasonably believed to be illegal discrimination, harassment, retaliation, wage and hour violation, or sexual assault. Effective June 9, 2022, Washington State's Silenced No More Act (the "Act") will prohibit nondisclosure and nondisparagement provisions regarding illegal acts of discrimination, harassment, retaliation, wage and hour violations, and sexual assault in employment agreements. A provision that prohibits an employee from disclosing or discussing conduct, or the existence of a settlement involving conduct, reasonably believed to be illegal discrimination, harassment, or 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.
Washington Silenced No More Act Text
However, as long as an employer does not seek to enforce those invalid provisions, an employee cannot recover damages. The only exceptions under the law are that employers may keep the amount paid in a settlement agreement confidential, and that the law does not apply to agreements protecting trade secrets, proprietary information, or confidential information that does not "involve illegal acts. The Speak Out Act is limited in scope, in that it only applies to sexual assault and sexual harassment disputes. If existing agreements contain language that is no longer permissible, consider revising exit letters to specify any unlawful terms that will not be enforced, or consult with counsel before threatening enforcement of those terms. This extended the ban to include other forms of harassment and discrimination beyond sex based issues. 375, when entering into a settlement or separation agreement with an employee who has alleged a claim of discrimination under ORS 659A. On March 24, 2022, Washington Governor Jay Inslee signed "Silenced No More, " E. S. H. B. The act will implicate nondisclosure and nondisparagement provisions in many existing standard offer letters, confidential information and invention assignment agreements, separation or settlement agreements, and consulting/independent contractor agreements. According to the bill, those who are found guilty of enforcing or attempting to enforce such provisions are "liable in a civil cause of action for actual or statutory damages of $10, 000, whichever is more, as well as reasonable attorneys' fees and costs. Penalties for Violations. For instance, in some states, like New York and California, NDAs are generally banned in employment settlement agreements, but not if a complainant wants one. In this respect, the law goes further than similar laws in New York, California, and Illinois, each of which have exceptions allowing confidentiality for settlement agreements of discrimination claims, if the employee requests it. Violation of the Act includes payment of actual damages or $10, 000 whichever is more as well as reasonable attorneys' fees and costs.
What agreements are covered under the new law? Review existing employer-employee agreements to make sure nothing violates the new law. The broad sweep of these laws will no doubt create compliance challenges, especially for multi-state employers. On March 24, 2022, Washington State Governor Jay Inslee signed into law the "Silenced No More Act, " which becomes effective June 9, 2022 ("Effective Date"). Amid #MeToo, Washington previously passed S. 5996 which restricted employers from requiring that, as a condition of employment, employees sign a nondisclosure agreement which restricted their ability to disclose workplace sexual harassment and assault. Additionally, the Act prohibits employers from attempting to enforce a provision of any agreement prohibited by the law, whether through a lawsuit, a threat to enforce, or any other attempt to influence a party to comply with a provision in any agreement that is prohibited by the law. However, employers will still be able to enter into agreements that (1) prohibit the disclosure of the amount paid in a settlement agreement; and (2) protect "trade secrets, proprietary information, or confidential information that does not involve illegal acts. " First, the Silence No More Act prohibits employers from entering into non-disclosure or non-disparagement agreements with employees regarding illegal acts of discrimination, harassment, retaliation, wage and hour violation, and sexual assault. Revise them when necessary. Indeed, state laws are not uniform in their prohibitions, coverage, and exceptions, and some impose steep penalties for noncompliance. California passed its version of the Silenced No More Act (SB 331) in October 2021.
Silenced No More Act Washington.Edu
The existence of a settlement involving any of the above conduct. Employers do not necessarily need to re-paper their current agreements, as employees cannot recover damages for noncompliant provisions in agreements entered into before June 9, 2022, unless the employer seeks to enforce invalid provisions. Employers should update template employment, severance, and settlement agreements to ensure compliance with the new law. The $10, 000 penalty is not a maximum but a minimum, the penalty can increase if statutory or actual damages are higher. Later that year, Oregon passed its Workplace Fairness law. Attempt to enforce an existing agreement that is banned by the law.
This includes a wide array of conduct arising in the workplace and at work-related events coordinated by the employer, between the employer or an employee, or between employees, regardless if it occurred on the physical premises. Employers who are settling employment claims might also consider the impact of this law and revise severance and settlement agreement templates. It is effective immediately and applies retroactively to agreements signed before its effective date. 210 and replaced it with RCW 49. Since 2018, New York has prohibited employers from requiring a nondisclosure provision in any settlement agreement resolving claims of sexual harassment unless the condition of confidentiality is the complainant's preference. Employers should update employment-related agreements with nondisclosure or nondisparagement terms now to avoid hefty statutory damages later for noncompliance of $10, 000 or actual civil damages, whichever is greater. It is not only a violation of the Act for an employer to seek to enforce such a provision, but also for an employer to request or require that an employee enter into such a provision. Nondisparagement clauses are intended to ensure that employees (even disgruntled ones) will not publicly bad-mouth the company. While it was retroactive, the old law did not apply to settlement agreements. Conversely, an employer remains bound by a confidentiality provision unless "the employee publicly reveals sufficient details of the claim so that the employer is reasonably identifiable, " in which case the employer may disclose relevant facts about the matter but has no legal remedy against the employee. The Act makes it illegal for an employer to request an employee to sign a prohibited contract or attempt to enforce a non-compliant agreement.
Silenced No More Act
Contact your Vorys lawyer if you have questions about the new Washington law or similar state laws pertaining to employment and other agreements. Companies with employees or independent contractors who are Washington state residents should be aware that the act will require changes to many commonplace employment and contractor agreements. "This bill is about empowering workers. This extends to allegations arising from the actual workplace and work-related events (on or off the premises) and also conduct that is coordinated by or through the employer, between employees, or between an employee and employer.
The Washington Act prohibits them in all instances. The Act makes Washington the only state other than California to limit nondisclosure and nondisparagement provisions so significantly. Attempt to enforce a prohibited clause. As of June 9, 2022, any nondisclosure or nondisparagement provisions in agreements, even those "created before the effective date... and which were agreed to at the outset of employment or during the course of employment" are invalidated. Or in the case of a lawsuit, include one in settlement agreements. The Act also voids clauses concerning conduct the employee "reasonably believed" to be illegal. The act retroactively voids any such agreements entered into and makes it a violation for an employer to attempt to enforce any non-disparagement or non-disclosure agreement related to the illegal acts. The New Jersey law allows the parties to agree to a confidentiality provision, but it does not prevent employees from breaking confidentiality. Who does the Act apply to? In effect, blanket NDAs and nondisparagement clauses which fail to carve out such unlawful acts in the workplace will be void, no matter when they were signed.
While the 2018 law prohibited Washington employers from requiring an employee to sign an NDA, the Act now prohibits an employer from even requesting an employee to sign a prohibited agreement. Current employees who enter into new NDAs would be covered, however. It also eliminates the 2018 exception for certain employees expected to maintain confidentiality in the course of their job duties, or for individuals participating in an ongoing investigation. Those provisions remain valid and enforceable. E. 1795 covers both independent contractors and employees and voids any employment-related agreements that contain provisions that prohibit workers from discussing allegations of: - Illegal discrimination, harassment, or retaliation; - Wage and hour violations; - Sexual assault; or. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS.
What should employers, faced with a complex, shifting landscape of NDA-limiting laws, do, as a practical matter? Does the Act modify any existing laws? Since October 1, 2020, Oregon employers have operated under the Workplace Fairness Act ("OWFA"), which restricts employers from including confidentiality, non-disparagement, and no-rehire provisions in settlement agreements and separation agreements unless the employee specifically requests them. "Companies routinely use these walk-away agreements during vulnerable moments when people are more likely to sign NDAs and don't yet know what actions will help them recover long-term, financially, emotionally and otherwise, " said Former Google employee and whistleblower Chelsey Glasson in an interview with GeekWire. The Act applies to nondisclosure and nondisparagement provisions in agreements between employers and current, former, and prospective employees, as well as independent contractors.
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