Brand Story - It has been just over two years since Governor Brown signed the Oregon Workplace Fairness Act (OWFA) into law on June 11, 2019.
The OWFA was passed to address workplace concerns raised by the #MeToo movement. It has broad application, potentially costly repercussions for noncompliance, and created a five-year statute of limitations – one of the longest in the country – for certain kinds of employment claims.
Many of the OWFA’s key provisions became effective on October 1, 2020, as businesses were grappling with an onslaught of COVID-19-related issues. And while the pandemic is certainly not in the rear view, this may be a good time to revisit the law’s provisions.
First and foremost, Oregon employers are now required by law to have a written anti-discrimination policy that checks all of the requirements under the new law. Among other things, the policy must contain a process for reporting “prohibited conduct,” i.e., discrimination/harassment on the basis of race, color, religion, national origin, sex, sexual orientation, age, marital status, an expunged juvenile record, whether a person is in uniformed service, or disability. Prohibited conduct also includes sexual assault – defined as unwanted conduct of sexual nature that is inflicted/compelled on a person by use of force, manipulation, threat, or intimidation.
The policy must also identify individuals to whom reports of prohibited conduct should be made, as well as an alternate. Further, the policy must include statements informing employees: which employment claims are subject to the new five year statute of limitations; that employers cannot coerce employees to enter into a nondisclosure or nondisparagement agreement (including a description of the meaning of those terms); to document any incidents involving prohibited conduct; and that employees claiming to be aggrieved of prohibited conduct may request to enter into non-disparagement, confidentiality, and no-rehire provisions in settlement, separation, and/or severance agreements.
Notably, employers are now required to present a copy of the policy at the time of hire, and make a copy of the policy available to employees in the workplace (consider posting a copy to your intranet for remote workers). Further, employers must “require any individual who is designated by the employer to receive complaints” to provide a copy of the written policy to an employee at the time that the employee discloses information regarding prohibited discrimination or harassment. Accordingly, employers should make sure their written policy meets all the substantive provisions required under the OWFA. In addition, employers should consider revisiting their onboarding protocols and make sure that managers responsible for receiving complaints under the policy’s reporting procedure receive appropriate training to ensure the policy is distributed in accordance with the law.
In addition, the OWFA generally prohibits employers from entering into employment agreements that contain any provision that have the “purpose or effect” of preventing the discussion or disclosure of prohibited conduct. It’s important to note that “agreements” as used here is broadly defined, and even extends to off-premises conduct such as employee gatherings (e.g., harassment at a company holiday party). Violations can be reported to the Oregon Bureau of Labor & Industries (BOLI) or filed directly as a civil lawsuit. The law permits employers to exempt employees “tasked by law” to receive confidential or privileged reports from the prohibition on the aforementioned employment agreements, though the scope of this exemption is presently unclear.
As noted above, with regard to separation, severance, and settlement agreements, employers may include non-disparagement, confidentiality, and/or no-rehire provisions if the aggrieved employee asks for these provisions to be included in their agreement. A word of caution: the language in the statute is vague, leaving a number of unanswered questions on the extent to which these provisions can be included in situations where an employee has not claimed to be aggrieved of “prohibited conduct.” Employers should tread lightly here until clarification is provided by the legislature and/or the courts.
The law also provides some other notable exceptions. For example, an employer may elect to include NDA, confidentiality, or no-rehire provisions in a separation agreement if the employer has made a good faith determination that the employee engaged in prohibited discrimination or harassment. The statute also makes it possible, under select circumstances, for employers to void so-called golden parachute clauses contained in employment agreements with certain employees, provided the employer determines, for example, that the employee entered into an unlawful NDA or violated the employer’s anti-discrimination/harassment policy, and such actions were a substantial contributing factor in the decision to terminate.
Given the OWFA’s broad application, and the potentially costly consequences for noncompliance, employers should revisit their policies and procedures promptly. Employers with questions about this sweeping law should contact their employment counsel.
Christopher Morehead, Attorney
Tonkon Torp LLP