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Workplace Fairness Act – Non-Disclosure and Non-Disparagement Agreements
September 28, 2020
By Peter S. Hicks, Shareholder, and Matthew L. Kahl, Associate Attorney

In June 2019, Governor Kate Brown signed Senate Bill 726, more commonly known as Oregon’s Workplace Fairness Act (the “Act”). The Act, which had bipartisan and bicameral support, modified the state’s workplace discrimination and harassment laws. In particular, the Act specifically established new requirements for employers relating to sexual harassment, following a $1.3 million settlement between the State’s Legislative Assembly and the Bureau of Labor and Industries concerning alleged sexual harassment of nine women at the Capital and overall concern resulting from the #MeToo movement. As the operative date of October 1, 2020, is only a few days away, it is imperative that employers ensure policies and procedures are in place to reduce and prevent discrimination and harassment, and review any settlement, termination, or severance agreements to remove any non-disclosure or non-disparagement provisions.

The Act requires all employers to implement formal written anti-discrimination policies relating the unlawful employment practices of refusing to hire or employing an individual or discriminating against an individual in compensation or other terms, conditions, or privileges or employment due to the individual’s race, color, religion, sex, sexual orientation, national origin, marital status, age, expunged juvenile record, military service, disability, or sexual assault. Policies must include certain specific provisions,  including a process for employees to report prohibited conduct, identification of a designated individual and an alternate designated individual to receive such reports, the applicable statute of limitations periods to file a complaint relating to the prohibited conduct, and advising all employees to document any incidents of prohibited conduct. Employers must make the anti-discrimination policy available to all employees, provide a copy of the policy to new employees at the time of hire, and require the designated individual or alternate to provide a copy of the policy to employees when advised of prohibited conduct.

One of the additional requirements for an employer’s anti-discrimination policy is that it include a statement that the employer may not require or coerce an employee to enter into a non-disclosure or non-disparagement agreement. Such agreements, or any agreement that has the purpose or effect of preventing an employee from disclosing or discussing discriminatory or harassing conduct, including sexual assault, are deemed unlawful employment practices by the Act.

Although an employer is not permitted to require an employee to enter into a non-disclosure agreement, the Act does permit an employer to enter into a settlement, separation, or severance agreement containing a non-disclosure provision at the request of the employee. A settlement agreement may also include a provision preventing disclosure of factual information or a no-rehire provision provided such provisions are requested by the employee. An employee who enters into a settlement agreement containing one of the described provisions is permitted to revoke the agreement within seven days of its execution.

Employers should also be aware the Act expands the existing statute of limitations for harassment claims and provides for a private right of action by employees to file a complaint with the Bureau of Labor and Industries and to file a civil action against the employer in circuit court, both within five years of the alleged unlawful employment practice, seeking injunctive and equitable relief including, potentially, punitive damages.

As the Workplace Fairness Act was signed into law over a year ago, the deadline for employers to implement these policies is nearly here. For employers that have not already done so, a thorough review of your handbooks and policies should be conducted immediately. Similarly, severance agreements and releases should also be carefully reviewed for compliance with the Act. Jordan Ramis PC is available to provide any compliance assistance needed. 

Peter Hicks is an employment and commercial litigation attorney and shareholder at Jordan Ramis PC. He can be reached at (541) 797-2079 or peter.hicks@jordanramis.com.

Matthew Kahl is a real estate, municipal, and employment associate attorney at Jordan Ramis PC. He can be reached at (503) 598-5548 or matthew.kahl@jordanramis.com.

Thank you for your interest in this update. The information contained in this update is for the general interest of our readers and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact an attorney in our employment law practice group.