Summer 2019 has brought significant changes to Oregon employment law. First, the Workplace Protection Act (“WPA”), signed by Governor Kate Brown, limits employers’ use of nondisclosure and nondisparagement agreements with respect to employment discrimination or sexual assault. Under the WPA, an employer may not enter into an agreement with a current or prospective employee that contains a nondisclosure or nondisparagement provision regarding conduct that constitutes employment discrimination or sexual assault. The prohibition applies to employment discrimination or sexual assault that occurred between employees, between an employer and an employee in the workplace or at an off-site work-related event, or between an employer and an employee in an off-site, non-work related situation.
Second, the WPA also requires all employers to have written anti-discrimination policies regarding internal employment discrimination and sexual assault reporting, and it extends the statute of limitations for filing complaints of harassment from one year to five years.
There are two exceptions to the bar on nondisclosure and nondisparagement provisions: first, settlement, separation, or severance agreements with an employee may contain nondisclosure, nondisparagement, or no-rehire provisions if the employee requests them, provided the employee has seven (7) days to revoke the agreement after the parties have signed it. Second, where the employer makes a good faith determination that an employee has engaged in employment discrimination or sexual assault, the employer may enter into a settlement, separation, or severance agreement with that employee that contains nondisclosure, nondisparagement, or no-rehire provisions.
While the WPA will generally take effect 91 days after the Legislative Assembly adjourns (on or about October 1, 2019), the limitations on nondisclosure and nondisparagement agreements will take effect on October 1, 2020.
Meanwhile, Oregon’s new family leave law will provide 12 weeks of paid leave to nearly every employee in the state. While the law does not go into effect until 2023, it is set to become the most generous paid family leave law in the country. The law will provide for 12 weeks of paid time off for new parents and those who need to care for an ill family member who has a serious health condition or for the employee’s own serious health condition. Notably, the law will also provide paid leave for victims of domestic violence, harassment, stalking, or sexual assault. Oregon will be the second state after New Jersey to include victims of domestic violence in its paid family leave law.
The law is unique in that almost all workers in Oregon, including part-time workers, will receive paid leave. The only requirement for eligibility is that the employee must have earned at least $1,000 in wages during the previous year. The law also broadly defines “family” to include spouses, domestic partners, parents, siblings, grandparents, grandchildren, and “any individual related by blood or affinity whose close association with a covered individual is the equivalent of a family relationship.”
Under this new law, many employees will receive full wage replacement during their leave. Weekly benefits are capped at the generous rate of $1,215 -- which means that lower-income workers will see no financial impact if they miss work for a qualifying reason. Higher-income employees will receive a percentage of their ordinary pay.
The new law also provides a job guarantee for workers taking leave. The law makes it unlawful to permanently replace a worker during family leave absence, as the worker must be restored to his or her position upon return.
The law will be funded through a payroll tax that cannot exceed one percent of employee wages, up to a maximum of $132,900 in wages. Employees will pay sixty percent of the total rate and employers will cover forty percent. Businesses with fewer than twenty-five employees will be exempt from paying the tax.
For Oregon employers, the WPA and the new Oregon family leave law provide good reason to re-examine workplace policies. Troutman Sanders has Oregon-licensed employment law attorneys available to provide counseling and guidance to Oregon employers about these new laws.