Oregon’s Legislature just enacted the most significant legislation for Oregon employers in years. The new Workplace Fairness Act has been hailed as a #MeToo law and seems intended to curb incidents of sexual harassment in the workplace, but its reach is significantly broader than that.
Key Changes and Takeaways
- Employers are now required to have a written anti-discrimination policy. Most employers already have one, and this was always best practice, but now it is a requirement. Additionally, anti-discrimination policies must now include the following:
- A description of the process to report suspected discrimination or harassment;
- A specific individual, and an alternate, to whom reports can be made;
- Notice that employees have five years from an alleged incident to bring legal action;
- Notice that employees may not be required to enter into a nondisclosure or nondisparagement agreement, but an employee may request such provisions in an agreement. If an employee makes such a request, the employee has seven days to revoke the agreement; and
- Advice to employees and employers to document any alleged incidents involving discrimination or harassment.
This policy must be provided to all new hires, made available at the workplace, and given to anyone who reports suspected discrimination or harassment.
- Confidentiality, nondisparagement, and no-rehire provisions in a settlement agreement relating to discrimination or sexual assault are prohibited, unless an employee requests it. The new law provides no guidance on what an employee’s “request” must look like – for example, are arm’s-length negotiations on a severance or settlement agreement that includes such a provision sufficient?
- The statute of limitations for many unlawful discrimination claims increases from one year to five years. This is a huge change and will greatly expand the number of discrimination claims against employers. It may also impact employers’ retention policies; we recommend consulting with legal on what, if any, changes you should make going forward.
- “Golden parachutes” for bad actors can be voided. Employers will no longer be forced to pay an executive a generous severance as he or she walks out the door amid sexual assault allegations. If, after a good-faith investigation into reports of discrimination or harassment made against a supervisor, an employer determines the supervisor engaged in unlawful conduct, the employer may void any severance or separation agreement with the supervisor. This provision may make negotiations with incoming executives more difficult, but it may also protect the companies from public pushback.
These changes go into effect this fall (91 days after the Legislature adjourns).