The Risks of Stipulated Protective Orders Under Washington's Silenced No More Act

Employers and their attorneys in Washington State need to be extremely cautious when considering stipulated protective orders in litigation involving employees. Enacted in 2022, the Silenced No More Act (SNMA) prohibits a broad range of agreements, including stipulations, with nondisclosure provisions that relate to conduct at the workplace, away from the workplace, between employers and employees, and even between employees themselves—regardless of whether the conduct is ultimately deemed illegal. This means that any attempt to request or require an employee to stipulate to a nondisclosure provision during litigation could violate the SNMA, exposing employers and their attorneys to significant legal risks.

The consequences for violating the SNMA are substantial. Employers can be held liable for $10,000 in statutory damages, plus attorney fees and costs, for each of their attorneys’ requests or requirements that an employee stipulate to a prohibited nondisclosure provision during litigation. Employers may also be liable if they attempt to enforce a stipulated protective order. Moreover, attorneys representing employers can share their clients’ liability under the common law of civil conspiracy. This shared liability highlights the importance for both employers and their legal counsel to ensure full compliance with the SNMA before, during, and after litigation. Ignoring these risks can pose serious financial and legal repercussions.