On June 7, 2018, new employment laws relating to non-disclosure agreements (NDAs), sexual harassment policies, and discrimination of domestic violence, sexual assault, and stalking victims take effect in Washington State. Here is a summary of the laws, and steps employers should take to ensure compliance with them.
1. Non-Disclosure Agreements
Substitute Senate Bill 5996 prohibits employers from requiring an employee, as a condition of employment, “to sign a nondisclosure agreement, waiver, or other document that prevents the employee from disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events coordinated by or through the employer, or between employees, or between an employer and an employee, off the employment premises.” The law makes such agreements void and unenforceable as against public policy. In addition, the law deems it an unfair practice to discharge or otherwise retaliate against an employee from disclosing or discussing sexual harassment or sexual assault.
Note that the law does not prohibit confidentiality provisions in settlement agreements between an employer and employee or former employee alleging sexual harassment.
A related statute, Engrossed Substitute Senate Bill 6068, declares that NDAs do not bar witness testimony or discovery regarding past instances of sexual harassment or sexual assault by a party to a civil action. This means that employers involved in civil judicial or administrative cases related to sexual harassment or sexual assault cannot rely on previously executed NDAs to prevent disclosure or discovery of past instances of harassment or assault.
Compliance Steps: Employers should review their NDAs and revise them to make clear that the NDAs do not bar disclosure of sexual harassment or sexual assault. Employers should also review and, if necessary, update their anti-harassment and non-discrimination policies and practices to comply with the new law.
2. Employment Discrimination
House Bill 2661 adds new provisions to the Washington State Law Against Discrimination to protect actual or perceived victims of domestic violence, sexual assault, or stalking. Employers may not refuse to hire an otherwise qualified individual or take specified adverse employment actions against an individual because they are an actual or perceived victim of domestic violence, sexual assault, or stalking. In addition, employers must make reasonable safety accommodations for members of this new protected class unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer. “Reasonable safety accommodations” include:
- Modified schedule;
- Changed work telephone number or email address;
- Changed workstation; or
- Installing locks or implementing other safety procedures.
Employers may require that the reasonable safety accommodation be supported by verification, such as an employee’s written statement, that the accommodation is to protect the employee from domestic violence, sexual assault, or stalking.
Employers may not discharge or otherwise retaliate against an individual for exercising their right to a reasonable safety accommodation. In addition, employees or applicants injured by a violation of this statute have the right to file a civil lawsuit to recover damages and attorney fees.
Compliance Steps: Employers should update their anti-harassment and non-discrimination policies to include this new protected class, and ensure that HR personnel are familiar with the reasonable safety accommodation requirements. If presented with a reasonable safety accommodation request, employers should consult with counsel before deciding that the request poses an “undue hardship.”
3. Model Sexual Harassment Policies
Senate Bill 6471 requires the Washington State Human Rights Commission (the Commission) to develop model policies and best practices for employers and employees to keep workplaces safe from sexual harassment. The Commission must adopt model policies and practices by January 1, 2019. Once adopted, the policies and practices will be publicly accessible through the Commission’s website and the Department of Labor and Industries’ website.
Compliance Steps: We will post the model policies and practices when they are available. Employers should compare the models to their anti-harassment and non-discrimination policies and practices, and consider making updates.