Whistleblowers can’t be muzzled under new Washington law

New law bans nondisclosure and nondisparagement agreements between employers and employees.

Updated: July 2, 2022 - 10:57pm

Nondisclosure and nondisparagement agreements between employers and employees are prohibited in Washington as of June 9 under a new state law. Existing agreements also are declared void and unenforceable.

The “Silenced No More Act,” passed this year, strengthens existing whistleblower protections for workers.

According to the Legislature, such agreements, increasingly required by employers, “perpetuate illegal conduct by silencing those who are victims or who have knowledge of illegal discrimination, illegal harassment, illegal retaliation, wage and hour violations, or sexual assault.”

That undercuts a clear state and federal interest in uncovering illegal activity in the workplace, the law's rationale says.

Employers often require such agreements when settling claims of misconduct. Employers may agree to pay a settlement on the condition that the employee not reveal details of the case. With the case settled, the employer may then fail to remedy the problem.

"Employers that are playing by the rules aren't really going to be affected very much at all. It's the repeat offenders that are going to have trouble," said employment attorney Kathy Barnard according to Law360.

In a possible sign that the law may be affecting employer conduct, Microsoft announced a series of policy changes concerning noncompetition clauses, confidentiality agreements in dispute resolution, pay transparency, and civil rights audit procedures.

The changes were announced June 9 on a company blog, one day before the law went into effect.

Notably, the Washington law applies to behavior and not to financial settlements. Employees cannot be prohibited from revealing actions they reasonably believe are illegal discrimination or harassment, sexual assault, retaliation or wage and hour violations.

However, nondisclosure agreements covering the amount paid to settle a claim, or trade secrets or proprietary information that doesn’t involve illegal conduct are still allowed.

The definitions of employee and workplace are broadly defined. The act covers current, former, and prospective employees as well as independent contractors who live in Washington, regardless of the location of the employer.

Conduct at work or at work related events organized by the employer are covered, regardless of location.

California, New York, Illinois, New Jersey and Oregon also have laws prohibiting NDAs.