Introducing - Break the Silence
I am thrilled to introduce my Substack newsletter, Breaking the Silence. I will report on the latest changes to laws related to employers silencing their workers.
Today is a great day for breaking the silence.
Today, the strongest state law restricting an employer’s ability to silence its workers takes effect. The state to take this lead is Washington.
While California’s Silicon Valley gets a lot of attention, Washington is home to such corporate giants as Microsoft, Amazon, Costco, Boeing, and Starbucks.
If you are an employer with employees or independent contractors in Washington State, take note. Starting today, any new employee agreement may not require an employee or contractor to agree to either a non-disclosure or non-disparagement clause in any agreement.
Here is the key language:
“a provision in an agreement between an employer and employee not to disclose or discuss conduct, or the existence of a settlement involving conduct, that the employee reasonably believed to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, sexual assault, or against a clear mandate of public policy is void and unenforceable.”
Notable:
- The new laws being enacted in Washington and other states not only apply to non-disclosure agreements (NDAs) but also to non-disparagement clauses. This is critical because often non-disparagement clauses can be worded so broadly that they become “effective NDAs”. I wrote about how this happened to me and how it has prolonged my own ability to recover from workplace trauma.
- The Washington State language is extremely broad as to the relevant conduct; see the phase “reasonably believed”. This means, for example, if you were sexually harassed, you don’t have to “prove” the incident happened.
- Retroactivity: Any previously signed employment agreements, “at the outset of employment or during the course of employment” prior to June 9, that contain either a non-disclosure or non-disparagement clause may not be enforced as to those clauses. This is HUGE, and effects potentially millions of workers.
How Washington State’s Law Beats California’s
California was an early state to enact laws limiting non-disclosure agreements and similar silencing mechanisms.
But the Washington State law goes further than California in at least two ways: first by taking silencing mechanisms off the table completely. The California law prohibits silencing mechanisms only after certain kinds of claims has been filed (for example, sexual assault or sexual harassment), but the employee still has the option to agree to a silencing mechanism before filing any claims. This is not ideal because many cases resolve before a claim gets filed, and silencing could still be misused by employers in pre-litigation negotiations.
Secondly, Washington addresses all employee agreements. Another way that silencing clauses are misused is when companies require employees to sign them up front, as a condition of employment. This may make sense to protect certain trade secrets, but the practice is being abused by applying to ANY conduct, even if it’s illegal or unethical. Now, the Washington law voids all blanket NDAs and non-disparagement clauses entered as a condition of employment, no matter when they were signed.
In addition, “in settlements with whistleblowers, employers will no longer be allowed to ask employees to sign confidentiality agreements.” This is critical because whistleblowers often expose wrongdoing impacting public safety.
Today, Washington State creates a new high bar for other states and corporations to follow, with one caveat: No state laws passed so far are retroactive as it relates to settlements. The Washington law voids silencing mechanisms in previous settlements, but only where no money was exchanged. In contrast, some corporate policies are making all previously signed silencing clauses null and void. For example, Pinterest announced last year (as part of a settlement of a shareholder lawsuit) that it was releasing former employees from nondisclosure agreements in cases of racial or gender discrimination. This is critical for getting companies to do better.
Time for all employers to break the silence
In an age of remote work, many companies will find it increasingly difficult to apply various state laws regarding NDAs. As with many other employment policies, it makes sense to create a single policy that at a minimum, follows the strongest state law, which is now Washington State. In addition, nothing is stopping any institution from lifting the veil of silence right now. Specifically, I recommend:
Current agreements: End the enforcement of all silencing mechanisms, which includes NDAs, non-disparagement clauses, and confidentiality clauses, across the board in all previously signed employee contracts, dispute settlements, and severance agreements, regardless of the nature of the dispute or settlement and regardless of whether there was a monetary settlement or not.
Future agreements: Take all silencing mechanisms off the table for any future employment contracts, dispute settlements, and severance agreements.
What is stopping your company, non-profit, or institution from doing this right now? If they are not willing, ask why not? What are they trying to hide?
Want help with your toxic workplace or how to avoid NDAs? See my services.
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