The Silenced No More Act: Background and Legislative Intent

Washington House Bill 1795, the "Silenced No More Act," was signed into law on May 21, 2022, and took effect on June 9, 2022. The Act amends RCW 49.44.210 and represents the most expansive NDA restriction enacted by any state legislature. Washington's approach differs from other states' post-#MeToo reforms in two critical ways: it covers not just sexual harassment but any illegal workplace act, and it explicitly extends to independent contractors in addition to employees.

The legislative history makes clear that Washington's legislature was responding to specific concerns about how NDAs had been used — particularly in the technology sector — to suppress complaints about illegal workplace conduct ranging from discrimination to wage theft to safety violations. The broad drafting reflects an intentional policy choice to prioritize workers' ability to speak about illegal conduct over employers' interest in confidentiality.

What the Act Prohibits: The Scope of Void NDAs

Under HB 1795, an employer may not require an employee or independent contractor (current or prospective) to sign an NDA, non-disparagement clause, or any agreement that prohibits the person from disclosing or discussing: conduct that the person reasonably believed to be illegal discrimination, illegal harassment (including sexual harassment), illegal retaliation, a wage-and-hour violation, sexual assault, or any other conduct that the person reasonably believed to be illegal.

The "any other conduct that the person reasonably believed to be illegal" language is extraordinary in its breadth. It encompasses nearly any workplace misconduct that an employee might characterize as illegal — which is essentially any conduct that violates a statute, regulation, or common law right. Employers cannot use NDAs to prevent employees from discussing or disclosing their concerns about potential violations of wage laws, safety regulations, discrimination laws, or any other legal requirement.

The Act covers both employees AND independent contractors. This is the most significant distinction between Washington's law and the laws of other states. New York's CPLR 5003-b, for example, applies primarily to employment relationships. Washington's HB 1795 expressly applies to any "person" engaged in work for compensation, whether as an employee or as an independent contractor. Technology companies, creative agencies, and other businesses that rely heavily on contractor workforces cannot use contractor agreements to impose NDAs covering illegal workplace conduct.

Retroactive Application: Existing Agreements Are Also Affected

One of the most significant and controversial aspects of HB 1795 is its retroactive application. The Act provides that any provision in a contract that violates its terms is void and unenforceable — and this includes provisions in contracts that were signed before the Act's effective date of June 9, 2022. The retroactive application means that NDAs signed years or even decades before the Act took effect are now unenforceable to the extent they cover the prohibited categories of disclosure.

The practical implications for employers are substantial. Any existing confidentiality agreement — whether a standalone NDA, a confidentiality provision in an employment agreement, a settlement agreement, or a contractor agreement — that purports to prevent disclosure of illegal workplace conduct is now void to that extent, regardless of when it was signed. Employers who attempt to enforce these provisions against Washington-based workers are exposed to liability under the Act's penalty provisions.

Attempting to enforce a void NDA provision carries significant penalties. Under HB 1795, an employer or organization that violates the Act by requiring an illegal NDA, or by attempting to enforce a void NDA provision, is liable for actual damages (which may include emotional distress), statutory damages of $10,000 per violation, declaratory relief, injunctive relief, and attorney's fees and costs. Courts have discretion to award these remedies, and the $10,000 per-violation statutory damages can accrue across a workforce if an employer systematically uses non-compliant templates.

What Washington NDAs Can Still Cover

Despite the broad restrictions, HB 1795 does not prohibit all workplace confidentiality agreements. Washington employers can still require NDAs and confidentiality provisions for:

The critical distinction is between confidentiality about the employer's legitimate business secrets (permissible) and confidentiality about illegal conduct directed at workers (prohibited). Employers must carefully parse their NDA provisions to identify which fall on which side of this line.

Interaction with Federal Law and Choice of Law

At the federal level, the Speak Out Act (enacted December 2022) limits the enforcement of pre-dispute NDAs in cases involving sexual harassment or assault. Washington's Silenced No More Act is considerably broader — it covers all illegal workplace conduct and applies to both pre- and post-dispute agreements. For Washington-based workers, HB 1795 provides protection that exceeds the federal Speak Out Act in every respect.

For multi-state employers, HB 1795 creates a challenge similar to California's non-compete law: an NDA agreement that designates another state's law as governing will not necessarily escape HB 1795's application. Washington courts will apply the Act as a matter of strong public policy for Washington workers regardless of the choice of law clause in the agreement. The safest approach for employers with Washington-based workers is to draft NDA provisions that are compliant with HB 1795 on their face.

Drafting Washington-Compliant Confidentiality Agreements

To comply with HB 1795 while still providing meaningful confidentiality protection, Washington employers and contractors should structure their agreements as follows:

  1. Expressly limit the definition of "Confidential Information" to exclude any information relating to conduct that the employee or contractor reasonably believes to be illegal discrimination, harassment, retaliation, wage violations, sexual assault, or any other illegal act in the workplace.
  2. Include an express carve-out stating that nothing in the agreement prohibits the person from disclosing or discussing the above categories of conduct to any government agency, law enforcement, attorney, or in any legal proceeding.
  3. Include an express carve-out for participation in regulatory investigations, complaints to the Equal Employment Opportunity Commission, Washington State Human Rights Commission, Department of Labor and Industries, or any other government body.
  4. For settlement agreements: specify that the amount of settlement is confidential but that the underlying facts and events may be freely disclosed by the claimant.
  5. For contractor agreements: ensure that all of the above provisions are included — the Act applies equally to contractor relationships as to employment.
  6. Review existing agreements with Washington-based workers and identify provisions that are now void under HB 1795 to avoid inadvertent reliance on unenforceable terms.

Practical Impact on Washington's Technology and Employer Community

Washington is home to major technology employers including Amazon, Microsoft, Boeing, and thousands of smaller tech companies and startups. Many of these employers relied heavily on broad confidentiality agreements as a matter of standard practice. HB 1795 required a fundamental re-evaluation of these practices.

Since the Act took effect, Washington employment attorneys have reported increased demand for NDA audits and template revisions. Employers who used generic, out-of-state NDA templates that did not include HB 1795's required carve-outs faced the risk of having their entire confidentiality agreements challenged. The lesson for any employer with Washington-based workers is that jurisdiction-specific NDA drafting is not optional — it is legally required.