Oregon Workplace Fairness Act Provisions Effective October 1, 2020

By Liani J. Reeves & Maryann Yelnosky - Bullard Law

September 28, 2020

The Oregon Legislature’s response to the #MeToo Movement came in the form of sweeping legislation that passed during the 2019 legislative session. The Oregon Workplace Fairness Act (“the Act”) applies to all employers who have at least one employee working in Oregon. The Act expanded unlawful employment practices, clarified employer liability for off duty conduct, and increased the statute of limitations for employees to file an administrative complaint or lawsuit alleging violations of the statutes identified in the Act from one to five years. While some of the provisions went into effect in 2019, the remaining provisions go into effect on October 1, 2020. Employers should be prepared.

The Act impacts claims under ORS 659A.030 (which prohibits discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age, or expunged juvenile record or retaliation for having made a complaint of a violation of an unfair employment practice under Oregon employment law), ORS 659A.082 (which prohibits discrimination based on uniformed service) and ORS 659A.012 (which prohibits discrimination based on disability).  

Limitations on Non-Disclosure, Non-Disparagement, and No-Rehire Clauses

Employers looking to resolve claims of harassment and discrimination under the statutes identified above should be aware that the Act limits the use of non-disclosure, non-disparagement, and no-rehire clauses--terms that have become common to include in employment case settlement agreements. The Act makes a distinction between aggrieved employees who have made complaints under the identified statutes, and those who have not made a complaint.

Effective October 1, it is an unlawful employment practice for an employer to enter into agreements that include non-disclosure or non-disparagement provisions that have the purpose or effect of preventing an employee or prospective employee from disclosing or discussing conduct prohibited under the prescribed statutes that occurred between employees or between an employer and an employee in the workplace or at a work-related event that is off the employment premises and coordinated by or through the employer, or that occurred between an employer and an employee off the employment premises.

An employer may enter into an agreement that includes a non-disclosure, non-disparagement, and no-rehire provision with an employee claiming to be aggrieved by prohibited conduct only when an aggrieved employee requests such provisions and only with a seven-day revocation period in which the aggrieved employee can revoke the agreement.[1]

These provisions are allowed in an agreement with an employee if the employer makes a good faith determination that the employee has engaged in discrimination prohibited under the prescribed statutes.  In the case of an agreement with such an employee, the employee does not have to request the provisions to include them in the agreement and the employee does not have to be afforded the seven-day revocation period.

The Act does not apply to employees who are “tasked by law” to receive confidential or privileged reports of discrimination, sexual assault, or harassment.

New Policy Requirements

While most employers already have policies related to harassment and discrimination, the Act requires employers to adopt a written policy that contains specific procedures and practices. At a minimum, policies must:

•    Provide a process for an employee to report prohibited conduct;
•    Identify an individual and an alternate individual designated to receive reports;
•    Include the statute of limitations period applicable to an employee’s right of action alleging conduct prohibited under the three statutes named in the Act;
•    Include a statement that an employer may not require or coerce an employee to enter into a non-disclosure or non-disparagement agreement;
•    Include an explanation that an employee claiming to be aggrieved by prohibited conduct may voluntarily request to enter into an agreement with non-disclosure, non-disparagement and no rehire provisions with a seven-day revocation period; and
•    Include a statement that advises employers and employees to document any incidents of prohibited conduct.

The Oregon Bureau of Labor and Industries has developed a sample policy that is available on its website.

The Act also requires employers to distribute the policy by:

•    Making the policy available to employees within the workplace;
•    Providing a copy of the policy to each employee at the time of hire; and
•    Requiring any individual designated to receive complaints to provide a copy of the policy to an employee at the time the employee discloses information regarding prohibited conduct.

Voids Severance Agreements with Offending Employees

Employers may now void certain provisions of employment agreements with supervisors or managers that would otherwise require payment of severance or separation payments when the employer determines that the person has engaged in prohibited conduct and that such conduct was a substantial contributing factor in causing the separation from employment.

Increases the Statute of Limitations

The Act had already extended the statute of limitations from one to five years to file an administrative complaint or lawsuit based on prohibited conduct covered by the Act occurring on or after September 29, 2019. Additionally, beginning October 1, 2020, the five-year statute of limitations period also applies to claims for a violation of the Act’s prohibitions of certain non-disclosure, non-disparagement, and no-rehire provisions. The Act does not extend the statute of limitations for federal claims or claims under state law not covered by the Act.

Employer Next Steps

Employers should ensure that they are in compliance with the Act’s October 1, 2020 requirements by considering the following steps:

•    Make sure that discrimination and harassment policies have been revised to come into compliance with the new policy requirements.
•    Review policies, procedures, and collective bargaining agreement provisions that govern document retention to account for the increased statute of limitations.
•    Review carefully and/or consult legal counsel before entering into a non-disclosure, non-disparagement, or no-rehire clause with employees.

As always, we are available to assist with any questions you may have.

[1] If the employee is over 40 years old and the employer is also seeking a release of federal age claims, the two revocation periods can run simultaneously.