New Washington laws limit harassment nondisclosure agreements

Washington Governor Jay Inslee has signed two new laws intended to encourage public disclosure and discussion of sexual harassment in the workplace. Both of these laws take effect on June 7, 2018.

#1: Substitute Senate Bill 6313

Substitute Senate Bill 6313 makes an employment agreement void and unenforceable if it requires an employee to:

(a) waive the right to pursue a discrimination claim publicly;

(b) waive the right to file a complaint with a state or federal agency; or

(c) use a confidential dispute resolution process.

#2 Substitute Senate Bill 5996

Similarly, Substitute Senate Bill 5996 makes it unlawful to require an employee to sign any employment or nondisclosure agreement that prevents the employee from disclosing or discussing sexual harassment or sexual assault occurring in the workplace. It also prohibits retaliation. Human resources staff, supervisors, or managers who are expected to maintain confidentiality as part of their assigned job duties are excluded, as well as employees asked to maintain confidentiality during a pending harassment investigation. Also, employers are still allowed to include a confidentiality clause in a settlement agreement with an employee or former employee alleging sexual harassment. (Consider, however, that including a confidentiality clause may impact whether the company can take a tax deduction for settlement payments, as a result of the federal Tax Cuts and Jobs Act of 2017; see our recent article.)

Tips for Employers

Review and Modify Existing Agreements

Washington employers who have employment or nondisclosure agreements with their employees should review their existing agreements for provisions that may conflict with these new laws, and modify their templates for future agreements.

Ensure Your Agreements Are Supported by Consideration

Remember that for an agreement to be valid and enforceable it must be supported by consideration; that is, the company must give the employee something of value (money, property, or rights) that the employee is not already entitled to, in exchange for signing the agreement. Continued at-will employment is not sufficient consideration in Washington.

Assistance Rolling Out Revised Agreements

If you need to roll out revised agreements to comply with these new laws, you will need to provide employees with new consideration. Contact your Vigilant employment attorney for more information.

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