Employers Take Heed: The Oregon Workplace Fairness Act Goes Into Effect on October 1, 2020

Oregon Workplace Fairness Act (OWFA)

The Oregon Workplace Fairness Act (OWFA) imposes new requirements on every Oregon employer with at least one employee. The new requirements under the OWFA include:

• Employers must have written anti-discrimination policies that contain specific language;
• Employers must make the written anti-discrimination policy available to employees in the workplace, must provide the written anti-discrimination policy to new employees at the time of hire, and must provide the written anti-discrimination policy upon receipt of a discrimination, harassment, or retaliation complaint; and,
• Employers must ensure that certain employment, separation, severance, and settlement agreements comply with new restrictions imposed by the OWFA.

Key Requirements for Anti-Discrimination Policies

The OWFA requires that Oregon employers have written anti-discrimination policies containing certain language. Oregon employers with existing anti-discrimination policies may need to revise their existing policies to comply with the OWFA. The OWFA requires that written anti-discrimination policies include:

• A description of the process to report discrimination, harassment, or retaliation;
• An identification of the individual responsible for receiving reports of discrimination, harassment, or retaliation, including an individual designated as an alternate to receive such reports;
• A statement of the five year statute of limitations for civil actions;
• A statement advising employees and employer to document any incidents involving unlawful discrimination, harassment, or  retaliation;
• A statement that the employer may not require or coerce the employee to enter into a nondisclosure or nondisparagement agreement, with a description of what those terms mean; and,
• A statement explaining that an employee claiming to be aggrieved by discriminatory, harassing, or retaliatory conduct may voluntarily enter into a nondisclosure or nondisparagement agreement, and explaining that the employee will have at least seven days to revoke the agreement.

Employers must make the written anti-discrimination policy available to employees in the workplace, must provide a copy of the anti-discrimination policy to new employees at the time of hire, and must provide a copy of the anti-discrimination policy upon receipt of a discrimination, harassment, or retaliation complaint.

Key Restrictions for Nondisclosure and Nondisparagement Agreements

Except in limited circumstances discussed below, the OWFA prohibits an employer from entering into an agreement with an employee or prospective employee that contains a nondisclosure provision, a nondisparagement provision, or any other provision that has the purpose or effect of preventing the employee from disclosing or discussing conduct that constitutes unlawful discrimination, harassment, or retaliation concerning certain protected classes, including conduct that occurred at the workplace, at work-related events, or off the employment premises.

Key Restrictions for Separation, Severance and Settlement Agreements

The above restrictions concerning nondisclosure and nondisparagement agreements apply to separation, severance, and settlement agreements with employees who have made discrimination claims based on certain protected classes. It is also unlawful for a separation, severance, or settlement agreement to include a provision prohibiting the employee from seeking reemployment as a term or condition of the agreement.

There are very limited exceptions:

• An agreement is lawful if the employee requests the inclusion of nondisclosure, nondisparagement, and/or no rehire provisions and if the employee is given a seven day revocation period after executing the agreement.
• An agreement containing such provisions is lawful if the employer makes a good faith determination that the employee signing the agreement engaged in unlawful discrimination.

Employers with questions about compliance with the OWFA should contact legal counsel. Buckley Law is working with its clients to update their handbooks to meet the law’s obligations. Feel free to contact Bill Gaar or Jillian Pollock if you need assistance or have questions.

As with all your Employment Law matters, seek guidance from an experienced Employment Law attorney. We are here to partner with you. If you have questions or need legal assistance on employment law, please contact William E. Gaar or Jillian A. Pollock at 503-620-8900 or visit our website at www.buckley-law.com.

This material is provided for informational purposes only. The provision of this material does not create an attorney-client relationship between the firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this article are not a substitute for legal counsel. Do not take action in reliance on the contents of this material without seeking the advice of counsel.