Are employee non-disclosure agreements regarding sexual harassment enforceable in Washington state?

Are Employee Non-Disclosure Agreements Regarding Sexual Harassment Enforceable in Washington?

In Washington state, non-disclosure agreements (NDAs) that attempt to silence employees regarding sexual harassment or sexual assault are void and unenforceable. Under RCW 49.44.210, employers are legally prohibited from requiring employees to sign agreements that prevent the disclosure of these specific types of misconduct.

The Legal Framework: RCW 49.44.210

Washington state has taken a firm stance against the use of "silence clauses" in employment contracts. The law is designed to ensure that victims of workplace harassment are not coerced into silence as a condition of their employment or as part of a severance package.

What the Law Prohibits

• Pre-employment agreements: Employers cannot require you to sign an NDA as a condition of being hired if it restricts your ability to report harassment.
• Ongoing employment: You cannot be forced to sign a waiver that prevents you from discussing sexual harassment that occurs during your tenure.
• Retaliation: Employers are prohibited from taking adverse action against an employee for refusing to sign an unenforceable NDA or for disclosing harassment.

Key takeaway: If your employment contract contains a broad "confidentiality" or "non-disparagement" clause that does not explicitly carve out sexual harassment and assault, that specific provision is legally void under Washington law.

Action Item: Review your current employment agreement for "catch-all" confidentiality clauses. If you find language that broadly prohibits discussing "workplace conduct" or "internal matters," consult with legal counsel to determine if it violates state protections.

Comparison: Enforceable vs. Unenforceable Clauses

How to Identify Red Flags in Your Contract

Even if a clause is technically void, employers may include it to intimidate employees. Recognizing these red flags is the first step in protecting your rights.

• Overly Broad Language: Phrases like "Employee agrees to keep all workplace interactions confidential" are often used to mask illegal NDAs.
• Financial Penalties: Clauses that threaten "liquidated damages" or "forfeiture of severance" for discussing workplace culture are major red flags.
• Lack of Carve-outs: A compliant contract should explicitly state that the confidentiality obligations do not apply to disclosures required by law or reports of harassment.

Steps to Take if You Are Pressured to Sign

1. Do not sign immediately: You have the right to review any contract with an attorney.
2. Request an amendment: Ask the employer to add a specific carve-out for sexual harassment and assault reporting.
3. Document the request: Keep a written record of your request to modify the agreement.
4. Consult the L&I: The Washington State Department of Labor & Industries (L&I) provides resources for employees facing illegal contract terms.

Key takeaway: An employer cannot fire you or deny you a job simply because you requested that an illegal NDA provision be removed or clarified.

Action Item: If you are presented with a contract containing these red flags, draft a formal email to HR or legal counsel requesting that the language be updated to comply with RCW 49.44.210.

The Role of Settlement Agreements

It is a common misconception that settlement agreements are exempt from these rules. While you can agree to keep the financial terms of a settlement confidential, you cannot be legally barred from disclosing the underlying facts of sexual harassment or assault. Any settlement agreement that attempts to do so is contrary to public policy in Washington.

Protecting Your Rights with Technology

Navigating complex employment contracts can be daunting, but you don't have to do it alone. TermScore uses advanced AI to automatically scan your employment agreements for unenforceable clauses, including illegal non-disclosure and non-disparagement provisions. By uploading your document to TermScore, you can instantly identify language that violates Washington law and gain the clarity needed to negotiate with confidence.