On March 24, 2022, Washington Governor Jay Inslee signed the law Absorbed Substitution Bill of 1795 also known as the “Silenced No More Act” (“the Act”). The law prohibits agreements containing non-disclosure and non-disparagement provisions that prevent an employee or independent contractor from discussing certain violations of the law. Washington becomes the second state (after California) to render void and unenforceable the provisions of employment contracts and independent contractor agreements if they prevent the disclosure of certain unlawful conduct.
The Silenced No More Act renders void and unenforceable any provision of an agreement with a current, former, or prospective employee or independent contractor that prohibits the employee or contractor from “disclosing[ing] or chat[ing] conduct, or the existence of a policy regarding conduct, that the employee [or contractor] reasonably believed under Washington State, federal, or common law to be unlawful discrimination, unlawful harassment, unlawful retaliation, violation of wages and hours work or sexual assault, or which is recognized as contrary to a clear public policy mandate”, where the conduct occurred “in the workplace, at work-related events coordinated by or through the intermediary of the employer, between employees or between an employer and an employee, whether on or off the premises. The law does do not prohibit agreements that restrict the disclosure of the amount paid in settling a claim, nor does the Act prohibit an employer from protecting trade secrets, proprietary information or confidential information that does not involve illegal acts.
The law applies to non-disclosure and non-disparagement provisions contained “in employment contracts, independent contractor agreements, agreements to pay compensation in exchange for release from legal action , or any other agreement between an employer and an employee” or an independent contractor. The Act not only makes the offending provisions unenforceable, it also prohibits employers from requesting or requiring an employee or independent contractor to enter into an agreement containing a prohibited provision. The Act also prohibits employers from “attempting[ing] to enforce a provision of an agreement prohibited by “law”, “whether by way of litigation, threat of performance, or any other attempt to influence a party to comply”.
The law also prohibits employers from “dismissing[ing] or otherwise discriminatory[ing] or retaliation[ing] against an employee [or contractor] for disclosing or discussing conduct that the employee reasonably believed to be unlawful harassment, unlawful discrimination, unlawful retaliation, wage and hour violations, or sexual assault, which is recognized as unlawful in under state, federal, or common law, or which is recognized as contrary to a clear public policy mandate, occurring in the workplace, at work-related events coordinated by or through the employer, between employees [and/or independent contractors]or between an employer and an employee [or independent contractor]whether inside or outside the workplace.
Notably, the Act has retroactive applicability for certain agreements. The law “will invalidate non-disclosure or non-disparagement provisions in agreements created before the effective date” of the law, which “were agreed to at the commencement of employment or during employment “. However, the retroactive application of the law does not apply to “a non-disclosure or non-disparagement provision contained in an agreement to settle a legal claim”.
The law also provides that “[a] non-disclosure or non-disparagement provision in any agreement signed by an employee who is a resident of Washington shall be governed by Washington law”, and states that the law shall “be liberally construed to fulfill its purpose of repair “.
Violations of the law may subject violators to statutory damages of $10,000 or actual damages.
© 2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 88