Non-Disparagement Clauses in Washington State: What to Know
Washington state has enacted strong protections limiting non-disparagement clauses, particularly in the employment context. The state's approach reflects a growing trend toward protecting worker speech.
Washington's Silenced No More Act
Washington's Silenced No More Act (SB 5602), effective June 9, 2022, significantly restricts non-disparagement and nondisclosure provisions in employment agreements. Under this law:
- Employers cannot require employees or independent contractors to sign agreements that prevent them from disclosing or discussing conduct that they reasonably believe to be illegal discrimination, harassment, retaliation, wage theft, or sexual assault.
- The restriction applies to all employment agreements, including settlement and separation agreements.
- Employees must retain the right to report conduct to law enforcement, regulatory agencies, and legal counsel.
- Violations by employers can result in actual damages, statutory damages of $10,000, and reasonable attorneys' fees.
Scope and Limitations
- Employment vs. commercial: The Silenced No More Act focuses on employment agreements. Non-disparagement clauses in purely commercial contracts between businesses are evaluated under standard contract principles and face fewer restrictions.
- What is still restricted: Employers may still protect genuinely proprietary information and trade secrets. The law targets restrictions on discussing illegal conduct, not all confidential business information.
- Retroactivity: The law applies to agreements entered into on or after the effective date. Pre-existing agreements may be governed by prior law.
Red Flags in Washington
- Employment agreements that broadly restrict discussing workplace conditions or illegal conduct
- Separation agreements without carve-outs for government agency communications
- Agreements that impose financial penalties for disclosing harassment or discrimination
- No mention of the employee's retained right to consult legal counsel about the conduct
When to Consult a Lawyer
Washington's strong employee protections make it important to understand your rights before signing any non-disparagement clause. If you are presented with such a clause in an employment or separation agreement, consider consulting a Washington employment attorney to assess compliance with the Silenced No More Act.
This article is for informational purposes only and does not constitute legal advice. Consult a licensed attorney for guidance specific to your situation.