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Confidentiality During Workplace Investigations in Washington

The Washington law called the Silenced No More Act went into effect on June 9, 2022. The Act prohibits confidentiality, nondisclosure, and non disparagement agreements between employers and employees regarding conduct that an employee reasonably believes to be illegal discrimination, harassment, retaliation, a wage and hour violation, sexual assault, or against a clear mandate of public policy. The law repealed former RCW 49.44.210 and replaced it with RCW 49.44.211.

Some employers have wondered how, if at all, the new law impacts confidentiality during workplace investigations. This question is particularly noteworthy because former RCW 49.44.210 had a carve-out specifically addressing and permitting confidentiality during ongoing workplace investigations. It was commonplace for employers to instruct complainants, witnesses, and the accused to keep the substance of the investigation confidential. The new law does not mention investigations.

So, can Washington employers require confidentiality in workplace investigations following the Silenced No More Act?

Under the new law, employers cannot enter into “an agreement” with an employee that requires the employee not to discuss conduct that the employee reasonably believes to be illegal discrimination, harassment, retaliation, a wage and hour violation, sexual assault, or against a clear mandate of public policy. This broad language likely encompasses most types of workplace investigations. Additionally, it is a violation of the new law for an employer to even request that an employee enter such “an agreement.” Employers are further prohibited from discriminating or retaliating against an employee who discloses such conduct.

Although an instruction or request to keep a matter confidential (as opposed to a request to enter into an agreement) appears to be permitted, employers should proceed with caution in this realm as the request could be misinterpreted. Internal investigators acting on behalf of the employer should not require investigation witnesses to sign an agreement maintaining confidentiality. Also, if a verbal request is made but not honored, employers should refrain from taking any adverse employment action against an employee for discussing what the employee reasonably believes is illegal discrimination, harassment, retaliation, a wage and hour violation, sexual assault, or against a clear mandate of public policy.

Penalties for violating the new law include liability in a civil suit for actual or statutory damages of $10,000, whichever is greater, and reasonable attorney fees and costs. Out-of-state employers with Washington resident employees must also comply with the new law.

Archbright members should contact the HR Hotline for more information about the new law.

To learn more about Archbright’s HR Hotline or find out other ways Archbright can help you, contact us at info@archbright.com.

 

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Beth Touschner

Beth Touschner is an Attorney for Archbright. Prior to joining Archbright, she practiced employment law in Seattle for over ten years. Beth represented clients in state and federal court litigation across Washington, focusing on discrimination, harassment, and whistleblower retaliation cases. As a Staff Attorney, Beth regularly advises members on state and federal leave laws, wage & hour matters, employee complaints and discipline, labor law, and COVID-19 regulations. She also conducts workplace investigations. Beth earned her B.A. from Ohio University and her J.D. and M.P.A. from the University of Akron. She is licensed to practice law in Washington.