The final provisions of Oregon’s Workplace Fairness Act (OWFA) go into effect on October 1, 2020—less than a month away. All employers doing business in Oregon will need to make changes to their harassment policies and settlement, severance, and separation agreements to be compliant with the OWFA. Below are the highlights of the law’s sweeping changes:
Non-Discrimination and Non-Harassment Policies
The OWFA mandates that employers adopt a written anti-discrimination and anti-harassment policy containing procedures and practices for the reduction and prevention of discrimination under Oregon’s protected categories, which include race, color, religion, sex, sexual orientation, national origin, marital status, age, expunged juvenile record, performance of duty in a uniformed service, or physical or mental disability. At a minimum, the policy must:
- Describe the process to report prohibited conduct, including suspected discrimination, harassment or sexual assault;
- Identify an individual, and an alternate, to whom such reports can be made (for example the Store Manager or HR Director);
- Notify employees that they have five years from the date of the prohibited conduct to pursue legal action;
- State that an employer may not require or coerce an employee to enter into a nondisclosure or nondisparagement agreement (and define those terms);
- Explain that an employee may voluntarily request to enter into an agreement that contains nondisclosure, nondisparagement or no-rehire clauses, but has seven days to revoke the agreement; and
- Include a statement that advises employers and employees to document any incidents involving unlawful discrimination and sexual assault.
Employers must also ensure that all employees have access to the final policy, as well as provide a copy to all new hires and at the time an employee reports information regarding discrimination, harassment, or sexual assault.
Enforcement of Nondisclosure, Nondisparagement, and No-Rehire Provisions in Employment, Settlement, Separation, and Severance Agreements
Employers cannot 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, an employer may enter into a settlement, separation, or severance agreement that contains a nondisclosure, nondisparagement, or no-rehire provision if an employee claiming to be aggrieved by discrimination, harassment, or sexual assault requests to enter into an agreement with such provisions, so long as it allows at least seven days to revoke the agreement, and it does not become effective until after the revocation period has expired.
Employers may void severance agreements for managers who violate discrimination or harassment policies if those violations were a substantial contributing factor in causing the separation from employment.
Statute of Limitations
Beginning in September 2019, the OWFA expanded the statute of limitations for workplace discrimination, harassment, or sexual assault claims from one to five years.