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This year, the Washington Legislature has taken note from states like Oregon that seek to include additional protections to employees speaking about issues of sexual assault, abuse, and discrimination. Under the 鈥淪ilenced No More Act鈥� (SNMA), certain nondisclosure and non-disparagement agreements will be declared unlawful and trigger penalties if they are overbroad and prevent employees or independent contractors from discussing workplace conduct that they reasonably believe is unlawful.

Both Oregon and Washington employers should be mindful of these restrictions and consider reviewing their policies and agreements because portions of the SNMA apply to all Washington residents, regardless of where employees work. This means Oregon employers that employ Washington residents need to comply with the SNMA.

Overview

Under the SNMA, employers may not include nondisclosure or non-disparagement provisions in any agreement 鈥� including employment contracts, employment agreements, or severance forms 鈥� that have the force or effect of preventing employees from discussing certain workplace conduct. These topics include workplace conduct that employees or independent contractors reasonably believe constitutes:

• unlawful discrimination, harassment, or retaliation,
• sexual assault
• a wage and hour violation, or
• a breach of a clear mandate of public policy.

The SNMA鈥檚 anti-discrimination provisions prevent Washington employers from disciplining or terminating employees for discussing these topics as well. The SNMA goes so far as to penalize any employer for merely requesting these provisions, attempting to enforce the agreement, or trying to influence a party to comply with a provision in any agreement that is prohibited by the SNMA.

Employers remain free to protect their trade secrets, proprietary information, and 鈥渃onfidential information that does not involve illegal acts.鈥�

Comparing Oregon and Washington laws

There are a handful of notable differences between the SNMA and the Oregon Workplace Fairness Act. (Oregon employers should note that the Legislature this year made some changes to the Oregon Workplace Fairness Act that will take effect on Jan. 1, 2023.)

In Oregon, certain employees may request inclusion of nondisclosure or non-disparagement provisions as part of severance or settlement agreements. However, in Washington, under the SNMA, employers may not agree to such a request.

Additionally, under Washington鈥檚 law, there is no exemption for employees tasked by law to receive confidential reports of discrimination or independent contractors. The SNMA also allows Washington employers to treat the amount of any settlement payment as confidential and prevent employees from disclosing the settlement amount, while under Oregon law, employers may not.

Retroactive application

The SNMA applies retroactively to all nondisclosure or non-disparagement provisions in agreements that were agreed to at the outset of employment or during employment prior to June 9, 2022. However, there is a safe harbor provision for claims of damages arising from employment agreements entered before the effective date, but an employer loses the protection of this safe harbor if it attempts to enforce the agreement. Retroactivity does not apply to a nondisclosure or non-disparagement provision contained in an agreement to settle a legal claim.

Compliance considerations

Under Washington鈥檚 law, the penalties for noncompliance are steep. For violations, employees can claim a statutory penalty of $10,000 or actual damages, whichever is greater. Employees may also recover reasonable attorneys鈥� fees and costs.

In light of the steep penalties the SNMA provides, employers should take time to review their handbook policies, employment agreements (including noncompetition or non-solicitation agreements), independent contractor agreements, and form severance agreements to determine whether they are compliant. Many standard agreements can include broad categories of personnel information that could impermissibly restrict employees鈥� speech. These provisions may need to be redrafted and disclaimers will help insulate employers and manage risk.

Employers may also rethink other policies and practices as to how they handle confidential information. Before seeking to enforce nondisclosure or non-disparagement agreements or policies, or discipline employees for violations, employers should discuss compliance strategies with counsel.

Conclusion

Sustained efforts from the #MeToo movement have created significant changes to how employers can protect the secrecy of their confidential information. Employers will have to be mindful of these changes to appropriately draft and enforce their employment agreements to avoid penalties. Employers also should think twice before disciplining an employee for disclosing sensitive information, depending on the nature of that information.

Josh Goldberg is an attorney with Barran Liebman LLP. He advises and represents employers on various issues. Contact him at 503-276-2107 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91视频 guarantees the accuracy or completeness of any information published herein.