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Washington Employee and Severance NDA

Draft a Washington employee or severance NDA under the Silenced No More Act (RCW 49.44.211), with carve-outs for any conduct the worker believes unlawful.

Introduction

A Washington employee NDA is a confidentiality agreement between a company and a worker that protects the employer's trade secrets and confidential business information. A severance NDA is the version signed at separation, usually inside a release agreement, and it often keeps the terms of the exit private. What separates it from a commercial NDA between two businesses is who signs it: a worker cannot be forced to stay silent about unlawful conduct. In Washington, the Silenced No More Act (RCW 49.44.211) is one of the broadest such laws. It voids any provision barring a worker from discussing conduct they reasonably believed was illegal discrimination, harassment, retaliation, a wage and hour violation, or sexual assault. In a settlement, only the employer's trade secrets and the settlement amount may stay confidential, not the underlying conduct. DocDraft drafts a Washington employee or severance NDA from your facts, with those carve-outs built in, and attorney review is available before anyone signs.

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Key Things to Know

  1. 1

    Washington's Silenced No More Act (RCW 49.44.211) is broad. It voids any NDA or non-disparagement provision covering conduct the employee reasonably believed was illegal discrimination, harassment, retaliation, a wage and hour violation, or sexual assault.

  2. 2

    It expressly reaches wage and hour disputes. Washington is unusual in naming wage and hour violations alongside harassment and discrimination, so pay and overtime complaints cannot be silenced.

  3. 3

    It covers both employment and settlement agreements. Onboarding NDAs and settlement or severance releases are each limited under the Act.

  4. 4

    Only trade secrets and the settlement amount can stay confidential. In a settlement, the parties may keep the employer's trade secrets and the dollar figure private, but not the underlying conduct.

  5. 5

    The worker's reasonable belief is the test. The conduct only needs to be something the employee reasonably believed was illegal under Washington, federal, or common law.

  6. 6

    A violating clause is void and carries risk. Such a provision is void and unenforceable, and trying to enforce it can expose the employer to penalties under the Act.

  7. 7

    The federal floor applies on top. The Speak Out Act and the non-waivable right to report to the EEOC, the NLRB, and the SEC still limit any Washington NDA.

Key decisions before you file

Before you file a Employee and Severance NDA in Washington, a few decisions shape the document: which option to choose and what each one means. The Employee and Severance NDA guide walks through them.

Open the Employee and Severance NDA guide

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WASHINGTON EMPLOYEE NON-DISCLOSURE AGREEMENT

This Employee Non-Disclosure Agreement ("Agreement") is entered into as of [DATE] by and between [COMPANY NAME] ("Company") and [EMPLOYEE NAME] ("Employee"). This Agreement is governed by Washington law.

  1. PURPOSE In the course of Employee's employment, Employee will have access to confidential and proprietary information of the Company. Employee agrees to protect that information on the terms below.

  2. CONFIDENTIAL INFORMATION "Confidential Information" means non-public information the Company treats as confidential, including trade secrets, business and financial data, customer and pricing lists, methods, processes, software, and other proprietary information. Confidential Information does not include information that is or becomes public through no fault of Employee, that Employee lawfully knew before employment, or that is independently developed without use of the Company's information.

  3. OBLIGATIONS Employee agrees to use Confidential Information solely for the benefit of the Company, to not disclose it to any third party without authorization, and to return or destroy all Confidential Information on request or at the end of employment.

  4. PROTECTED DISCLOSURES (WASHINGTON SILENCED NO MORE ACT, RCW 49.44.211) Consistent with RCW 49.44.211, nothing in this Agreement prevents Employee from disclosing or discussing conduct, or the existence of a settlement involving conduct, that Employee reasonably believed under Washington, federal, or common law to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault, or that is against a clear mandate of public policy. Any provision that purports to do so is void and unenforceable. Nothing in this Agreement limits Employee from: (a) reporting to, filing a charge with, or cooperating with any federal, state, or local government agency, including the Washington State Human Rights Commission, the Washington State Department of Labor and Industries, the Equal Employment Opportunity Commission, the National Labor Relations Board, or the Securities and Exchange Commission; (b) discussing wages, hours, or working conditions; or (c) exercising any right that cannot lawfully be waived. Consistent with the federal Speak Out Act, this Agreement does not restrict Employee from speaking about a dispute involving sexual assault or sexual harassment.

  5. SETTLEMENT AND SEPARATION If this Agreement is part of a settlement or separation, the only terms that may be kept confidential are the Company's trade secrets and the amount paid in settlement. This Agreement does not and cannot prohibit Employee from disclosing or discussing the underlying conduct described in Section 4.

  6. DEFEND TRADE SECRETS ACT NOTICE Under the Defend Trade Secrets Act (18 U.S.C. Section 1833(b)), an individual is immune from criminal or civil liability for disclosing a trade secret (i) in confidence to a government official or attorney solely to report or investigate a suspected violation of law, or (ii) in a complaint or other document filed under seal in a lawsuit or other proceeding.

  7. TERM AND ENFORCEMENT Employee's obligations as to Confidential Information continue during and after employment for as long as the information remains confidential. The Company may seek injunctive relief and any other remedy available at law for a breach, subject to the protected disclosures above.

  8. GENERAL This Agreement is governed by Washington law. If any provision is unenforceable, the remaining provisions stay in effect. This Agreement is the entire understanding between the parties on this subject.

[COMPANY NAME] By: [SIGNATURE] Name/Title: [NAME AND TITLE] Date: [DATE]

EMPLOYEE [SIGNATURE] Name: [EMPLOYEE NAME] Date: [DATE]

Washington Requirements for Employee and Severance NDA

Washington Silenced No More Act (RCW 49.44.211)

Draft a Washington employee or severance NDA under the Silenced No More Act (RCW 49.44.211), with carve-outs for any conduct the worker believes unlawful.

Frequently Asked Questions

A Washington employee NDA is a contract in which a worker agrees to keep the employer's confidential information private, typically trade secrets, client and pricing data, internal processes, and other proprietary business information. It applies under Washington law and cannot prevent the worker from discussing conduct they reasonably believe was unlawful. The severance version of the same instrument is signed when the worker leaves.

An employee NDA is usually signed at hire to protect the company's confidential information. A severance NDA is signed at separation, generally inside a release agreement, in exchange for severance pay, and it often keeps the departure terms private. In Washington both are governed by the Silenced No More Act, and in a settlement the only permitted confidentiality is over the employer's trade secrets and the settlement amount, not the conduct at issue.

It is one of the broadest in the country. RCW 49.44.211 voids any agreement not to disclose or discuss conduct the employee reasonably believed was illegal discrimination, illegal harassment, illegal retaliation, a wage and hour violation, or sexual assault, or that is against a clear mandate of public policy. It is not limited to sexual harassment, and it applies to both employment and settlement agreements.

No. Under the Silenced No More Act, a settlement cannot bar the worker from disclosing or discussing the underlying conduct if the employee reasonably believed it was unlawful. The only things the parties may keep confidential are the employer's trade secrets and the amount paid in the settlement. The conduct itself stays open.

Yes, and that is one of the ways Washington goes further than most states. RCW 49.44.211 expressly lists a wage and hour violation among the conduct that cannot be locked behind an NDA or non-disparagement clause. So a Washington agreement cannot silence a worker's complaint about unpaid wages or overtime any more than it can silence a harassment complaint.

The protection turns on the employee's reasonable belief that the conduct was illegal discrimination, harassment, retaliation, a wage and hour violation, or sexual assault under Washington, federal, or common law. The worker does not have to prove the conduct was ultimately unlawful. A reasonable belief at the time is enough for the disclosure to be protected and for any gag on it to be void.

Yes. The Silenced No More Act limits confidentiality over unlawful conduct, not the protection of legitimate trade secrets. A Washington employee or severance NDA can still protect trade secrets, client and pricing data, and other genuine proprietary information, and it should include the federal Defend Trade Secrets Act immunity notice like any well-drafted NDA.

The offending provision is void and unenforceable. Beyond that, the Act attaches consequences to trying to enforce or even requesting such a provision, which can expose the employer to statutory damages and attorney fees. The rest of a properly drafted Washington NDA, including its trade-secret protections, generally remains in effect, so the safe path is to scope it correctly from the start.