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30 Sep

September 2020 Oregon HR Legal Updates

Posted at

2:37pm

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New Oregon Act Restrict Signed Agreements and Strengthens Anti-Discrimination Requirements

What happened?
Oregon has passed new legislation, the Workplace Fairness Act (WFA), that creates new restrictions on signed agreements employees can be required to sign and creates new requirements for employer non-discrimination and non-harassment policies.

What are the details?
The WFA creates two sets of rules that will be applicable to employers in the state of Oregon. The first is a rule prohibiting the use of specific signed agreements.  The second is a new set of expectations regarding employer’s anti-discrimination and anti-harassment policies.  

Signed Agreements

The WFA will remove the ability of employers to require an employee to enter into any agreement with a nondisclosure or nondisparagement provision if it has the purpose or effect of preventing the employee from disclosing or discussing conduct constituting discrimination, harassment, or sexual assault.

However, should an employee who claims to be aggrieved by discrimination, harassment, or sexual assault request to enter into a settlement, separation, or severance agreement that contains a nondisclosure, nondisparagement, or no-rehire provision, it is permissible under the WFA. The employer is required to provide at least seven days to the employee to revoke the agreement, with the agreement not being effective until after this revocation period.

Additionally, employers may void severance agreements for managers who have violated the company’s discrimination and/or harassment policies if the violation were a significant contributing factor to the manager’s separation from employment.

Anti-Harassment and Anti-Discrimination

The WFA will require employers to include a written anti-discrimination and anti-harassment policy. This policy must contain procedures and practices intended to reduce and prevent discrimination under Oregon’s protected categories. The policy must include the following:

  • A description of the process to complain about prohibited conduct, including suspected discrimination, harassment, or sexual assault;
  • Identify who in the organization the violations may be reports to, including a primary and secondary individual;
  • Notify employees that they have five years from the date of the prohibited conduct to pursue legal action;
  • State that an employer may not coerce or require an employee into a nondisclosure or nondisparagement agreement, as well as defining those terms;
  • Explain that an employee does retain their right to request those agreements with a seven-day grace period, if an employee should want to enter into them; and
  • Include a statement that advises employers and employees to document any incidents involving unlawful discrimination and sexual assault.

Note: Employers must give a copy of their anti-harassment and anti-discrimination policies to new employees, and to individuals who make a complaint about a prohibited discrimination or harassment.

Finally, the WFA increases (as mentioned above) the statute of limitations to up to five years for any prohibited behaviors listed above. Law firms operating in Oregon are recommending employers begin holding onto employment records to match this duration in order to provide any evidence they may have on hand, should cases come up years down the road.

The WFA legislation can be found online here.

The Oregon Bureau of Labor and Industries has provided a template policy for employers, which can be found here.

What do employers need to do?
Oregon employers should update their policies regarding signed agreements, anti-discrimination, and anti-harassment. Employers should also look into policies expanding how long they hold on to employment records, in order to protect against the five-year statute of limitations.

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