Silenced No More Act Washington

Significantly, the act applies retroactively to existing agreements that contain nondisclosure or nondisparagement provisions prohibiting employees or contractors from engaging in the kind of discussions or disclosures permitted by the act. 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. 112 is not restricted from including confidentiality, non-disparagement, and no-rehire provisions. Although employees cannot recover damages for agreements already in place, any attempt to enforce such provisions or agreements is a violation of the new law. Click HERE for the full text of the Act. 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. The new law allows for confidentiality as to the amount of any settlement payment. The prohibition extends to non-disparagement provisions to the extent they prevent an employee from disclosing or discussing such illegal conduct. The Act applies to all Washington State employers, irrespective of size. What agreements are covered? The notion is that in return for payment to the former employee, the company receives assurances that the individual will not "bad-mouth" the company or publicly discuss the circumstances of their employment separation. The OWFA and the restrictions it imposes on the use of confidentiality provisions are consistent with a recent national trend. If you have a standard settlement agreement template, review the template to ensure it does not include a non-disclosure or disparagement clause that may violate the Silenced No More Act. Employers should thus exercise caution before even mentioning such obligations in any workplace investigation, hiring process (other than trade secrets protection), in workplace policies such as social media use, or at separation of employment.

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Silenced No More Act California

However, employees cannot recover damages for agreements already in place unless the employer seeks to enforce these now unlawful provisions. 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. Lane Powell's team of attorneys are here to help employers develop and implement the strategy that supports their business and employees. Read through the following FAQ about the Silenced No More Act to see if you have a case against your current or former employer and learn more about the law. To ensure compliance, the agreements often stipulate that workers must repay severance money or face other financial penalties if they violate the terms of the deal. Nondisparagement clauses are intended to ensure that employees (even disgruntled ones) will not publicly bad-mouth the company. Under Oregon law, an employee may request that a non-disclosure or non-disparagement clause be included in an employment contract or settlement agreement so long as an attorney represents the employee. What Does the "Silenced No More Act" Mean for Workers in the State of Washington? Posted on July 19, 2022 by James Blankenship. An "employee" broadly covers a current, former, or prospective employee or independent contractor. Nondisclosure and nondisparagement provisions are a thing of the past in agreements between employers and employees when it comes to "illegal acts of discrimination, harassment, retaliation, wage and hour violations, and sexual assault" in the state of Washington, thanks to the Engrossed Substitute House Bill or HB 1795.

Washington Silenced No More Act

Employers should ensure that any new pre-dispute arbitration and class/collective action waiver agreements expressly exclude claims for sexual harassment or sexual assault in the workplace. Washington's "Silenced No More Act" Goes into Effect on June 9, 2022. What Should Employers Do? Oregon's law applies to former employees and limits mediators who are mediating harassment or discrimination claims.

Silenced No More Act Washington University

The new law broadly covers agreements between an employer and an employee or independent contractor, including employment agreements, independent contractor agreements, settlement or severance agreements, and any other agreement between an employer and an employee/independent contractor. Washington's law applies retroactively and invalidates non-disclosure and non-disparagement provisions in employment agreements created before the Act's effective date that otherwise violate the new law. The Act may have broader consequences to employment law than what appears on its face. New York extended protections against harassment to employees previously uncovered by the state's human rights law, enlarged the statute of limitations for harassment claims from three to six years, created protections from retaliation for anyone helping a victim of harassment, and banned "no rehire" provisions against contractors or employees who claim harassment under New York law. Indeed, state laws are not uniform in their prohibitions, coverage, and exceptions, and some impose steep penalties for noncompliance. The new law has a stiff penalty, allowing employees to bring a cause of action for actual or statutory damages of $10, 000, whichever is greater, plus reasonable attorneys' fees and costs. It also included individuals who are asked to participate in an open and ongoing investigation into sexual harassment and requested to maintain confidentiality during the pendency of that investigation.

Silenced No More Act Washington Post Article

"It is the intent of the legislature to prohibit non-disclosure and non-disparagement provisions in agreements, which defeat the strong public policy in favour of disclosure, " read the bill. What should employers do to prepare? Once the law becomes effective, it will repeal and replace a 2018 Washington state law that prohibits employers from using employment agreements to preemptively restrict workers from disclosing claims of workplace-related sexual assault and sexual harassment. As such, the law invalidates nondisclosure and nondisparagement provisions in agreements created before June 9, 2022, that were agreed to at the outset of employment or during the course of employment. Employers in violation of the new law will be subject to damages of the greater of $10, 000 or actual damages. Washington employers are prohibited from (1) retaliating against an employee for disclosing allegations related to the protected topics; (2) requesting that an employee agree to a prohibited provision; or (3) attempting to enforce, threatening to enforce, or attempting to influence a party to comply with a prohibited provision. California's "Silent No More" Statute – A Slightly More Modest Approach. 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. For years, employers have insisted that confidentiality and nondisparagement agreements be included in settlement agreements in a variety of employment disputes, such as discrimination, harassment, wage and hour, and others. What are the penalties for violating the new law? Maintains Confidentiality for Trade Secrets. Again, employers may still enforce settlement and severance agreements and attendant terms, however, entered into prior to the effective date. 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. Both Washington and California's laws permit employers to maintain confidentiality regarding the settlement amount.

Silenced No More Act Washington Times

But the federal courts have enforced the FAA broadly and may find that it preempts New Jersey's new statute on this point. Some employers have wondered how, if at all, the new law impacts confidentiality during workplace investigations. Who is covered under the act? Despite this retroactive provision, the retroactivity in statute only applies to employment agreements and does not invalidate non-disclosure and non-disparagement provisions in settlement agreements executed prior to the Act's effective date. Thus, employers do have certainty that such clauses, common in settlement agreements, remain enforceable if signed before June 9, 2022. However, as long as an employer does not seek to enforce those invalid provisions, an employee cannot recover damages. The statute also specifies that a claimant's identity may remain confidential if the claimant prefers.

Silenced No More Act Washington.Edu

The amended version no longer contains this language. Recommendations For Employers. Carries Heavy Civil Penalties. These states include Arizona, California, Hawaii, Illinois, Louisiana, Maine, Maryland, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Vermont, Virginia, and Washington. Employers must also provide employees a copy of the employer's anti-discrimination policy, the requirements of which are described in ORS 659A. • Should employers leave NDA provisions in employment, severance, and settlement agreements, even if there are doubts as to their enforceability? It was commonplace for employers to instruct complainants, witnesses, and the accused to keep the substance of the investigation confidential. In most states, it is only seeking to enforce an NDA that would potentially get an employer into trouble under the new legislation, and not merely proposing or including an NDA in an agreement. Recently, however, a number of states have enacted laws that limit the use of such provisions.

Until now employers in Washington could add non-disclosure agreements into their employment contracts. More specifically, it prohibits employers from requiring or requesting that workers sign agreements containing nondisclosure or non-disparagement provisions restricting their right to discuss factual information regarding illegal discrimination, harassment, sexual assault, retaliation, wage and hour violations, or any other conduct "that is recognized as against a clear mandate of public policy. " Attempt to enforce an existing agreement that is banned by the law. It does not apply to nondisparagement agreements that relate to other issues. What does this mean for your business? H. 4445 renders void and unenforceable any pre-dispute arbitration or class/collective-action agreements with employees that would require cover claims of: - Sexual assault; and. To read the full article, subscribers may click here. Not only are most employment-related agreements covered—including settlement and severance agreements—many types of employment-related claims encompassing a wider range of workplace conduct must remain open for disclosure and discussion, acutely limiting the use of common nondisclosure and nondisparagement provisions. Between an employee and employer, whether on or off the employment premises. Employers should exercise care when considering what clauses must be revised or eliminated in employee agreements so as to not inadvertently give up any remaining rights. "Congrats and thank you to @KarenKeiser1, @LizBerryWA, and so many others, " Glasson tweeted Thursday night. What are the consequences and repercussions?

For example, employers and employees resolving a wage claim, but not alleged discriminatory conduct, may include such provisions if desired. The Senate version of the bill was introduced by Sen. Karen Keiser. The Speak Out Act is limited in scope, in that it only applies to sexual assault and sexual harassment disputes. The law also leaves alone confidentiality provisions limited to disclosure of the amount of any settlement.

You should not act, or refrain from acting, based upon any information at this website. What agreements are covered under the new law? Laws already exist to ban retaliation, now employers who settle retaliation lawsuits will not be able to put the settlement under an NDA. KTC's Employment Law Updates provide summaries on recent developments affecting employers in Washington State. Her testimony and lawsuit against Google helped get the Washington law passed. Unlike in Washington, the California statute does not retroactively void all existing agreements, but it does significantly restrict future NDAs. Please feel free to contact our Employment Law team for help or review. Although an instruction or request to keep a matter confidential (as opposed to a request to enter into an agreement) appears to be permitted, employers should proceed with caution in this realm as the request could be misinterpreted. Maine enacted a similar statute in May 2022 that prohibits employers from requiring agreements, including settlement agreements, that prevent an employee or prospective employee from disclosing or discussing discrimination, including harassment, occurring between employees or between an employer and an employee. Most employees sign employment agreements at the start of their employment, and employees use this opportunity to limit actions employees can take.

Recipients should consult with counsel before taking any actions based on the information contained within this material. The NDA legislation landscape has quickly become varied to a confounding degree. "Despite the progress we've made in recent years, too many workers are still forced to sign NDAs and settlement agreements that silence them. Seyfarth attorneys can help with any questions that may arise. California's law requires that waivers inform the employee of their right to seek legal guidance, and requires employers to give employees at least five business days to consider the agreement before signing. Employers should review all confidentiality, nondisclosure, and nondisparagement provisions contained in their various employment agreements and policies and seek legal assistance in modifying them.

California and Washington have 15% of the population of the United States, 47 million combined, now protected by these laws.