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Washington Update: Employee Confidentiality Limitations Further Narrowed

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Since 2018, Washington has prohibited employers from asking employees to sign agreements as a condition of employment that require the employee to keep confidential allegations of sexual assault or sexual harassment.

Effective June 9, 2022, Washington is extending that prohibition to additional types of allegations, settlement agreements, and agreements with independent contractors.

On March 24, 2022, Governor Inslee signed HB 1795, which among other things adds additional protected topics to RCW 49.44. Under these amendments, it is unlawful for employers to prohibit employees from, or take adverse action against an employee for, disclosing or discussing conduct the employee reasonably believes to be illegal discrimination, harassment, or retaliation, wage and hour violations, sexual assault, or a violation of a clear mandate of public policy.

This prohibition applies to agreements entered into as a condition of employment, as well as settlement or separation agreements. Settlement and separation agreements may prohibit disclosure of the amount of the settlement/severance payment, but cannot prohibit disclosure of the employee’s allegations or the fact of settlement. The prohibition on confidential-allegations-provisions also applies to nondisparagement clauses to the extent that the clause could be read to keep employees from disclosing or discussing the covered conduct.

The new law applies to allegations concerning conduct occurring 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 work premises.

For purposes of this law, “employee” includes current, former, and prospective employees, and independent contractors. Further, the current exception that otherwise allows limitations when needed by HR staff, supervisors, and managers whose roles include obligations to maintain confidentiality will no longer exist as of June 9, 2022.

It is an explicit violation of this new law to (1) retaliate against an employee for disclosing allegations related to the protected topics, (2) request an employee to agree to a prohibited provision, or (3) attempt to enforce a prohibited provision.

Provisions protecting trade secrets, proprietary information, or other confidential information are not affected by this new law, and may continue to be included in employee agreements and enforced. Likewise, confidentiality provisions can still be included in employee handbooks, but employers must be careful to not apply those provisions to, or discipline an employee for, disclosing or discussing allegations related to the protected topics.

HB 1795 provides for a private right of action, with actual or statutory damages of $10K (whichever is greater), and an award of attorney fees.

Except for settlement agreements entered into prior to June 9, 2022, the law applies retroactively to invalidate any applicable provisions included in any existing agreement, and any attempt to enforce or threat to enforce such a provision.

Given the breadth of topics protected under the new law, it is hard to think of any confidentiality-of-allegations provision that would not potentially be in violation of the new statute. Employers should consider removing all provisions requiring employees to keep allegations regarding workplace conduct confidential, and also consider adding an explicit disclaimer that says nothing in the agreement prohibits the employee from discussing unlawful workplace conduct.