Companies with employees or independent contractors who work or reside in Washington State should take heed that Washington's Silenced No More Act (the act) goes into effect on June 9, 2022. The act places substantial limits on what may be included in some of the most common agreements that employers enter into with their workers. On and after June 9, 2022, employers could find that their existing standard offer letters, proprietary information agreements, separation/settlement agreements, and consulting agreements could potentially violate the new law.
What Is Prohibited, and What Are the Consequences of Violations?
Specifically, the act prohibits employers from entering into or enforcing a provision of any agreement with a current, former, or prospective employee or independent contractor that prohibits discussion or disclosure of any of the following:
- Conduct that the individual reasonably believes to be illegal discrimination, illegal harassment, illegal retaliation, sexual assault, or a wage and hour violation.
- Conduct that is recognized as against a clear mandate of public policy.
- The existence of a settlement involving any of the above conduct (however, the amount of such a settlement can still be subject to non-disclosure obligations).
Following effectiveness of the new law on June 9, 2022, offending provisions are void and unenforceable. Entering into a new agreement on or after June 9, 2022, or attempting to enforce an existing agreement,1 that contains such provisions can result in liability with a minimum damages award of $10,000, plus attorneys' fees and costs.
The act further prohibits an employer from discharging, discriminating, or retaliating against any current, former, or prospective employee or independent contractor for discussing or disclosing any work-related conduct that is illegal or that is recognized as against a clear mandate of public policy, or that the individual reasonably believes to be sexual assault, illegal harassment, illegal discrimination, illegal retaliation, or a wage and hour violation.
What Should Employers Do Now?
Employers with workers who reside in Washington, or who plan to hire workers who reside in Washington, should review their agreements for compliance with the act and consult with employment counsel regarding revisions that may be necessary on a go-forward basis.
For more information, please contact Jason Storck, Joseph Horne, Rachel Herrington, or another attorney in Wilson Sonsini's employment litigation practice. We are available to assist with advising and counseling on the new law and related matters.
[1] Agreements to settle legal claims entered into before June 9, 2022, are exempt from the retroactive effect of the law.
