Silenced No More Act Prohibits Non-Disclosure Agreements for
Claims of Harassment, Discrimination, and Retaliation

On March 24, 2022, Washington State Governor Jay Inslee signed into law E.S.H.B. 1795, the Silenced No More Act (herein “E.S.H.B. 1795”), which becomes effective June 9, 2022. Washington joins California in becoming the second state to pass the Silenced No More Act, which bars employers from using Non-Disclosure Agreements (“NDA”) to prevent workers from discussing certain allegations of illegal workplace activities.

Prohibited Practices

E.S.H.B. 1795 covers both independent contractors and employees and voids any employment-related agreements that contain provisions that prohibit workers from discussing allegations of:

• Illegal discrimination, harassment, or retaliation;
• Wage and hour violations;
• Sexual assault; or
• Conduct that is recognized as a clear violation of public policy

The prohibition includes, but is not limited to, all settlement agreements, non-disclosure agreements, and non-disparagement agreements between an employer and an employee or independent contractor. E.S.H.B. 1795 applies to all conduct that the employee “reasonably believed” to be illegal and covers conduct occurring:

• At the workplace;
• At work-related events coordinated by or through the employer;
• Between employees, whether on or off the employment premises; and
• Between an employee and employer, whether on or off the employment premises.

Except as noted below, E.S.H.B. 1795 retroactively applies to almost all agreements that were made prior to June 9, 2022, meaning an employer-employee agreement that limits the employee’s ability to disclose or discuss covered conduct previously entered into during the course of or at the outset of employment will be void and unenforceable. Additionally. it is unlawful for an employer to even request that an employee or independent contractor to enter into such an agreement.

Exceptions

E.S.H.B. 1795 does not prohibit all forms of nondisclosure agreements. Employers may still enforce:

• Agreements to protect trade secrets, proprietary information, or other confidential information;
• Agreements relating to the amounts received in settlement;
• Nondisclosure or nondisparagement agreements entered into as part of a settlement agreement that were executed before June 9, 2022.

Civil Penalties

Violations of the E.S.H.B. 1795 may result in statutory damages of $10,000 or actual damages, as well as attorneys’ fees and costs.

What Should Employers Do?

Employers should review and revise any employment-related agreements and independent contractor agreements with confidentiality and/or non-disparagement provisions that could be construed to prevent employees from discussing illegal discrimination, harassment, retaliation, wage and hour violations, or sexual assault.  A link to the text of E.S.H.B. 1795 can be found here.

Amendments to Equal Pay and Opportunities Act Includes
New Pay Transparency Requirements

On Mar. 30, 2022, Governor Inslee signed E.S.S.B. 5761 into law, which becomes effective January 1, 2023. E.S.S.B. 5761 revises the existing Washington Equal Pay and Opportunities Act to include new disclosure obligations for employers.

Required Practices

Beginning January 1, 2023, all employers with 15 or more employees must disclose the following salary and benefits information in job postings:

• The salary or pay range for the position; and
• A general description of all other benefits and other compensation to be offered for the position

E.S.S.B. 5761 applies to all job postings made by or on behalf of an employer. A job posting includes any “solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third party, and includes any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.”

Civil Penalties

Violations of this law may result in:

• Actual damages;
• Statutory damages of $5,000 to the plaintiff;
• Attorney fees and costs.

Additionally, employers may be subject to civil penalties of up to $1,000, or 10% of actual damages per offense, payable to the Department of Labor and Industries.

What Should Employers Do?

Employers should review and revise all job postings by January 1, 2023 to include salary or pay ranges, as well as a general description of all other benefits and compensation (i.e. health insurance, 401k, bonuses, etc.) offered to the hired applicant. Employers should ensure that all third-party hiring agencies are aware of this update. Questions remain open as to how broadly this statute will be interpreted, including how broadly courts will interpret “other benefits and compensation.” KTC will continue to monitor and report further developments regarding this new legislation.

The text of E.S.S.B. 5761 can be found here.

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
Prohibits Forced Arbitration of Sexual Assault and Harassment Disputes

On March 3, 2022, President Biden signed H.R. 4445, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (herein “H.R. 4445”), into law. It is effective immediately and applies retroactively to agreements signed before its effective date.

Prohibited Practices

H.R. 4445 renders void and unenforceable any pre-dispute arbitration or class/collective-action agreements with employees that would require cover claims of:

• Sexual assault; and
• Sexual harassment

Except as noted below, employees cannot be compelled to arbitrate or waive their rights to collective action regarding claims of sexual assault or sexual harassment.

Exceptions

An employee that is subject to an existing arbitration clause may voluntarily arbitrate and/or waive their right to collective action for claims of sexual assault or sexual harassment after the dispute arises. Additionally, arbitration agreements and class/collective-action waivers are still enforceable if the parties enter into those agreements after a dispute arises.

What Should Employers Do?

Employers should ensure that any new pre-dispute arbitration and class/collective action waiver agreements expressly exclude claims for sexual harassment or sexual assault in the workplace.  The text of H.R. 4445 can be found here.

Authored by Joshua M. Howard.  KTC’s Employment Law Updates provide summaries on recent developments affecting employers in Washington State. For questions or more information regarding these developments or your employment rights or obligations, please contact the KTC attorney with whom you normally work.