City of Edmonds needs to STOP THE GAG ORDERS.

PROPOSED RESOLUTION TO EDMONDS CITY COUNCIL

 

Prohibiting Non-disparagement Clauses for City of Edmonds Employees.

 

Whereas, contracts and policies prohibiting or limiting workers from speaking about their employment have drawn greater scrutiny from the National Labor Relations Board (NLRB) in recent years; and

Whereas, in early 2013, an administrative law judge (ALJ) found that non-disparagement provisions incorporated in employment agreements violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by restricting employees’ rights under Section 7 of the NLRA; and 

 Whereas, section 8(a)(1) restricts employers from interfering with employees attempting to exercise their Section 7 rights; and Whereas, under Section 7, employees have the right to choose to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” such as discussing wages, benefits and other terms and conditions of work with other employees; and

Whereas, the Equal Employment Opportunity Commission (EEOC) announced in its 2013-2016 Strategic Enforcement Plan, that it would “target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts” including provisions that prohibit filing charges with the EEOC; and

Whereas, the EEOC has filed a series of federal court actions around the country challenging numerous provisions that commonly appear in employment separation and release agreements including non-disparagement clauses that prohibit employees from making any disparaging statements about the organization and its officers, directors and employees due to the assertion that such provisions are contrary to public policy as they lead employees to believe that participating in an investigation or testifying in a proceeding in which they will be critical of the employer would breach the severance agreement; and

Whereas, in 2016 OSHA enacted a new policy to not approve a “gag” provision that prohibits restricts, or otherwise discourages employees from participating in protected activity, whether in confidentiality or non-disparagement clauses or otherwise.; and

 Whereas, the use of a non-disparagement clauses in the departure of a high ranking public official are an unacceptable affront to Freedom of Information and open government principles; and  

Whereas, in the public sector, non-disparagement clauses do not reflect public sector transparency, or the spirit of open government;

 Now, Therefore, Be It Resolved by the City Council of the City of Edmonds:

 That for purposes of this resolution, "public employee" means any person engaged in service to a public employer in a business of such public employer, and "public employer" means the City of Edmonds, the Mayor and City Council, including, without limitation, any board, department, commission, institution, or agency of such entities.

 Be It Further Resolved that the City shall not seek termination, suspension, or separation agreements that contain any provisions prohibiting or restricting public employees from disclosing or discussing any aspect of such public employee's employment, termination, suspension or separation or any policies, actions or programs of such public employer, except as otherwise required by law.