When drafting employment separation or severance agreements, it is relatively common to include non-disclosure and non-disparagement provisions in the documents. The notion is that in return for payment to the former employee, the company receives assurances that the individual will not “bad-mouth” the company or publicly discuss the circumstances of their employment separation.
Recently, however, a number of states have enacted laws that limit the use of such provisions. Effective June 9, 2022, Washington State enacted what is likely the broadest ban on company use of non-disclosure and non-disparagement (NDA) provisions. The new Washington statute called the “Silence No More” Act, bans NDAs related to all forms of workplace discrimination as well as wage and hour violations and conduct that is “recognized as against a clear mandate of public policy.” The Act specifically prohibits agreements containing non-disclosure and non-disparagement provisions that restrict applicants, employees, and independent contractors from openly discussing conduct or a legal settlement involving conduct that the applicant, employee, or contractor “reasonably believed” was illegal discrimination, harassment, retaliation, a wage and hour violation, a sexual assault, or conduct that is “against a clear mandate of public policy.
While the Washington law contains these broad restrictions, note that it does not prohibit employers from requiring the amount paid in settlement of any claim to be...
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