Oregon Legislature Makes Sweeping changes with Workplace Fairness Act

In response to the national #metoo movement, the Oregon legislature passed the 2019 Oregon Workplace Fairness Act. The Workplace Fairness Act (the “Act”) takes aim at employer’s employment agreements, settlement agreements, anti-harassment and discrimination policies as well as increasing the statute of limitations for a number of unlawful employment actions.

The Act was passed in the 2019 legislature and governs activity after September 29, 2019. However, employers are not required to implement the anti-harassment and discrimination policies discussed below until October 2020.

Employment and Severance Agreements

The Act prohibits employers from entering into employment agreements that contain a nondisclosure or non-disparagement provision that prevents employees from discussing workplace harassment or discrimination. In addition, the Act prohibits nondisclosure, non-disparagement, and no-rehire provisions in settlement agreements with an employee claiming to be the subject of harassment or discrimination unless the employee requests to enter into such a provision. If the employee requests to enter into such an agreement, the employee has seven days to revoke the settlement agreement after they have signed. The Act does not prohibit employers from entering into non-disparagement, nondisclosure, and no-rehire provisions with an employee accused of engaging in harassment or discrimination. The Act also allows employers to void severance agreements entered into with an employee who engaged in harassment or discrimination.

Employers entering into settlement agreements will want to ensure there are no accusations of harassment or discrimination before finalizing settlement paperwork. It is important to note that this only applies to employees alleging harassment or discrimination. If the employer is entering into a settlement agreement without such allegations, the employer may still include nondisclosure, non-disparagement, and no-rehire provisions.

Negotiating settlement agreements with employees alleging harassment or discrimination will certainly be somewhat different under this new act. Employers tend to find value in nondisclosure agreements as it keeps their name out of the media. Employers will need to weigh this interest against avoiding litigation or continued litigation.

Anti-Harassment and Discrimination Policy

Employers must also adopt a written anti-harassment and discrimination policy. The Act requires the policy include a process for employees to report prohibited conduct, identify the person to whom employees can report prohibited conduct as well as a backup, include the statute of limitations period for an employee’s right of action for alleging unlawful harassment and discrimination, a statement that the employer cannot require an employee to enter into a nondisclosure or non-disparagement agreement, including a definition of those terms, a statement that an employee may request to enter an agreement with those provisions, and finally, a statement that advises employees to document any incidents involving harassing or discriminatory behavior.

The Oregon Bureau of Labor and Industries will be issuing example policies summer 2020. While waiting for the BOLI examples, employers should review the policies that are in place and ensure they are being followed.

Statute of Limitations

The Act increases the statute of limitation for discrimination and harassment to 5 years. This could have a huge impact on employer record keeping requirements. Employers may want to consider keeping employees’ personnel records for at least 5 years since personnel records can play a key role in defense of harassment and discrimination allegations. The Act, interestingly, does not increase the statute of limitations for retaliation claims. More often than not, harassment and discrimination claims are accompanied by a retaliation claim that the employee was punished or discharged for reporting harassing or discriminatory behavior. Although the Act increases the statute of limitations for harassment and discrimination, we may not see a huge change to the timeline we see these claims brought since the retaliation statute of limitations has not increased.

If you have any questions regarding the Oregon Workplace Fairness Act or how it impacts your business, contact me at mvaniman@sbhlegal.com.