Washington Employees are Silenced No More

When an employee settles a lawsuit for discrimination against their employer, it has been long been common practice that the employer would make confidentiality and non-disparagement a condition of the settlement. The employer was therefore able to purchase the employee’s silence and would potentially be able to even punish the employee if they ever did breach confidentiality and speak about their experiences. This had a deeply chilling effect on anti-harassment measures in the workplace because instances of harassment, discrimination, and retaliation could all be kept quiet through a legally binding settlement agreement.

In the aftermath of the #MeToo movement, Washington took steps to prevent employers from purchasing a victim’s silence about sexual assault in the workplace by banning non-disclosure provisions of settlement agreements settling sexual assault and sexual harassment lawsuits. But other forms of discrimination were not given the same protection.

That has now changed! Since early summer 2022, it is now illegal in Washington to require non-disclosure agreements preventing employees from disclosing any form of illegal discrimination, harassment, or retaliation—not just limited to sexual assault and harassment. The same statute also protects employees from being forced into non-disclosure agreements for violations of wage and hour laws. The new law, entitled the Silenced No More Act, applies to all conduct at the workplace or at work-related events as well as conduct between employees or between the employer and employees regardless of whether it is at work or offsite. The act gives these protections to employees who “reasonably believed” the conduct in question is illegal harassment, discrimination, retaliation, a wage and hour violation, or sexual assault.

The law specifically provides: “[a]n employer who violates this section […] is 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.” The law does not apply to non-disclosure or non-disparagement provisions in settlement agreements that were signed prior to the law’s effective date of June 9, 2022, but it does invalidate non-disclosure or non-disparagement provisions in other employment contracts which predate the law.

This law does still allow employers to require the amount paid to settle a claim to remain confidential, but employers are no longer allowed to purchase their employees’ silence outright.