Non-disclosure and non-disparagement clauses were often effective in keeping facts of workplace misconduct safe. As of June 9, 2022, the Silenced No More Act (“Act”) prohibits these types of clauses from being used to block employees from speaking out about prohibited acts of harassment, discrimination, retaliation, sexual assault, and wage-theft in the workplace.[i] Facts regarding this type of misconduct will no longer find a shelf in the basement closet – workers now have a platform to disclose certain inappropriate behavior to whom they wish. Washington is the second state to enact such legislation; it followed the example California set last year.[ii] Employers who violate the Act will be 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.[iii]
Who Does the Act Affect?
The Act casts a fairly wide net. The illegal acts must be recognized as illegal under Washington state, federal, or common law, or recognized as against a clear mandate of public policy, that occurs at the workplace, at work-related events coordinated by or through the employer, between employees, or between an employer and an employee, whether on or off the employment premises.[iv]
Non-disclosure and non-disparagement clauses once silenced victims and those who had knowledge of illegal discrimination, illegal harassment, illegal retaliation, wage and hour violations, or sexual assault. These clauses shielding disclosure of said illegal behavior are now void and unenforceable. Prohibited clauses include those contained in employment agreements, independent contractor agreements, agreements to pay compensation in exchange for the release of a legal claim, or any other agreement between an employer and an employee.[v]
This act is about the empowerment of workers. The ability to now freely share instances of prohibited conduct in the workplace lifts the burden of forced non-disclosure and non-disparagement clauses. Unchecked and potentially prohibited conduct may be more closely scrutinized. Accountability will be the champion of the workplace moving forward. Victims will no longer have to choose between being compensated for their losses and speaking out about unfair treatment.
Accept Responsibility? Yes!
Employers can no longer essentially “buy” the silence of sexual harassment and discrimination victims. Instead, victims of prohibited conduct may now freely share their stories and alert others about potentially harmful and hostile work environments. The ability to speak freely may have an increasing effect on the volume of allegations made, which may mean an increase in the volume of litigation stemming from the same.
Although sometimes difficult for a client to digest, accepting responsibility is a key to diffusing anger in these situations. A client can accept responsibility for a host of things. This includes, but is not limited to, the alleged act, a client’s indirect role in the alleged act, providing a safe work environment, or providing definitive policies to prevent prohibited conduct, i.e., having employees complete mandatory training on proper improper conduct in the workplace.
Reasonableness and common sense are two other important factors in defending against claims of this nature. Regardless of the stage of litigation, being the most reasonable person in the room will bode well for clients. People respond to reason and common sense. It is always best to tell it like it is.
Where Do We Go From Here?
Worker contract formation has been significantly changed. Employers may no longer even attempt to enforce clauses prohibited by the Act. Hopefully this Act will change the workplace in a real and impactful way, not simply with a curbing of the prohibited acts, but more importantly in the mindset of how employers view all workers.
Michael Kutzner, Associate – Tyson & Mendes
Michael Kutzner is an Associate in Tyson & Mendes’ Seattle office. His practice includes general liability and personal injury litigation.
Mr. Kutzner represents individuals and businesses in a wide variety of civil litigation matters. He conducts keen case analysis with forethought to future possibilities. Prior to joining Tyson & Mendes, Mr. Kutzner worked as a criminal defense attorney, representing individuals at all levels of the criminal judicial process, including arraignment, pretrial, motion, trial, and review hearings. He has been successful in case dismissals through pretrial motions, including charges carrying mandatory minimums of 180 days of incarceration.
[i] Hannah Albarazi, One By One, States Are Banning NDAs To Protect Workers, Law360, (Apr. 1, 2022), https://www.law360.com/articles/1476428/one-by-one-states-are-banning-ndas-to-protect-workers.
[iv] WA LEGIS 133 (2022), 2022 Wash. Legis. Serv. Ch. 133 (S.H.B. 1795) (WEST).