Every employer with at least one Oregon employee must comply with the Oregon Workplace Fairness Act (OWFA) as of October 1, 2020. New requirements include:
- (1) Enacting a new written anti-discrimination policy containing certain language;
- (2) Training management to distribute the policy as required; and
- (3) Avoiding certain employment, severance, separation, and settlement agreements that do not meet new tough legal requirements.
As of October 1, 2020, noncompliance with some of these provisions constitutes an unlawful employment practice and can trigger a civil action for compensatory damages, attorney fees, and punitive damages.
The OWFA was widely viewed as a #MeToo law aimed at limiting confidentiality agreements covering sexual assault, harassment, and discrimination, but the scope of the law is much broader. The law impacts many protected classes beyond sex-based harassment, and imposes affirmative duties on employers and employees.
New Written Anti-Discrimination Policy Requirements
Every employer with one or more Oregon employees must implement a new anti-discrimination policy or revise their written policy to comply with the law. There are no exceptions. This is because the OWFA requires specific statements to be included in the written policy, including stating a five-year statute of limitations on unlawful discrimination claims.
The written policy must contain at least six specific requirements. These generally involve the following categories:
- (1) Detailing the reporting process for complaints;
- (2) Listing the designated and alternative individual(s) responsible for receiving complaints;
- (3) Specifying the five-year statute of limitations for claims described in the law;
- (4) Stating that an employer may not require or coerce an employee to enter into a nondisclosure or nondisparagement agreement, and describing the meaning of those terms;
- (5) Explaining that an employee may voluntarily request a nondisclosure or nondisparagement agreement, which must then provide at least seven days to revoke after signing; and
- (6) Advising employers and employees to document conduct covered by the OWFA.
BOLI has drafted a model policy that employers may use, or employers may work with their human resources or legal counsel to tailor the requirements to their own policies.
Distribution Requirements of New Policy
The mandated policy must be (1) made available to employees within the workplace, (2) provided to each employee at time of hire, and (3) provided to any employee at the time the employee "discloses information regarding prohibited discrimination or harassment," by any individual designated to receive complaints.
Complying with this portion of the law will involve training managers and others designated to receive complaints. Employers will want to obtain and retain a written receipt as proof that the policy was provided in the above circumstances.
The policy must be distributed on or before October 1, 2020. DWT has created policies to assist clients in efficiently complying with the new requirements.
Avoiding Employment, Severance, Separation, and Settlement Agreements with Non-disclosure, Non-Disparagement, and No Re-Hire Provisions
Non-Disclosure and Non-Disparagement Clauses
The OWFA now prohibits entering into any agreement with an employee or prospective employee, as a condition of employment or in order to receive benefits, that contains a non-disclosure provision, non-disparagement provision, or any other provision with the purpose or effect of preventing the employee from disclosing or discussing conduct that constitutes discrimination based on certain protected classes, which go well beyond only sex or gender, or sexual assault (including off-premises conduct as defined by the law).” This covers the majority of protected classes under Oregon law, but does not apply to every type of discrimination or protected class.
However, confidentiality agreements may still be sought on other unrelated business matters so long as the above restricted conduct is excluded. Thus, employers who use such agreements to protect confidential, proprietary, and trade secret information must have such agreements revised to carve out the prohibited areas. Employers should seek legal counsel to understand their rights and obligations.
Severance, Separation, and Settlement Agreements
Importantly, the above provisions also apply to severance and settlement agreements with employees who make discrimination claims based on many protected classes. As of October 1, 2020, it is unlawful for an employer to enter into any severance, separation, or settlement agreement with an employee claiming to have suffered harassment or discrimination based on multiple protected classes, or sexual assault, if the agreement contains the following provisions:
- (1) A nondisclosure, nondisparagement, or other provision prohibiting an employee from disclosing or discussing conduct or factual information about discrimination, harassment, or sexual assault prohibited by certain state statutes (nondisclosure/nondisparagement/confidentiality); and
- (2) Prohibiting the employee from seeking reemployment as a term or condition of the agreement (no rehire).
There are very narrow exceptions:
- (1) First, these severance and settlement agreements are still lawful if the employee voluntarily requests an agreement containing these terms and is allowed seven days to revoke after signing.
- (2) Second, these agreements may be reached without meeting request and revocation requirements if signed with an employee who has been found to have engaged in unlawful discrimination.
- (3) Third, there is an exception allowing confidentiality requirements tasked by law to receive confidential or privileged reports.
Deadline Fast Approaching
Employers with questions about implementing changes and document retention policies should work with their legal counsel.