While the original focus of the Oregon Workplace Fairness Act (“the Act”) was to address sexual harassment in the workplace, the Act has additional requirements that employers should be aware of and steps that should be taken to ensure compliance

The Act includes regulations regarding discrimination and harassment based on all protected classes in Oregon, as well as conduct that constitutes sexual assault (“prohibited conduct”). Prohibited conduct is defined as unwanted conduct of a sexual nature that is inflicted upon a person or compelled through the use of physical force, manipulation, threat, or intimidation.

The Act also imposes a number of new requirements and restrictions on employers aimed at combating harassment and discrimination both inside and outside of the workplace.

Statute of Limitations
The Statute of limitations for filing a charge of discrimination has been extended from one to five years for most employment related claims (Effective October 1, 2020 for conduct that occurred after September 28, 2019). This rule was prompted by data demonstrating that victims of unlawful discrimination and harassment often take more than one year to come forward. The Act also allows all related acts that occurred prior to the five year statute of limitation period to be considered when at least one act has occurred during the statute of limitations period.

Employer Agreements and Provisions
Under the new law, employers are prohibited from asking for non-disclosure or non-disparagement provisions in employment agreements with employees that have raised concerns regarding claims of discrimination, harassment or sexual assault (effective October 1, 2020). These provisions in employment agreements prevent an employee or prospective employee from disclosing or discussing prohibited conduct that occurred either between employees or between an employer and an employee. This measure was meant to address concerns that these types of agreements limit disclosure from others affected and the ability to corroborate events and experiences.

This rule not only applies to events occurring in the workplace and other work-related events that are off the employment premises coordinated by the employer, but also interactions between an employer and an employee off the employment premises.

Limited exceptions apply under the following circumstances:

• For an employee claiming to be aggrieved by prohibited conduct, non-disclosure and non-disparagement provisions are allowed only when the aggrieved employee requests such provisions and only after a seven-day revocation period in which the aggrieved employee can revoke the agreement.
• For an employee who has been alleged to have engaged in prohibited conduct, these provisions are  allowed if the employer makes a good faith determination that the employee has engaged in protected class discrimination. When an employee is the one accused of prohibited conduct, the employee does not have to request the provision and the employee does not have to be afforded the seven-day revocation period.

Under the law, employers are permitted to void severance agreements for managers who violate harassment or discrimination policies (effective October 1, 2020).

Written non-discrimination policy
In order to inform employees of their rights and the process to submit a report of prohibited conduct, employers are required to adopt a written non-discrimination policy with specific language and provide the policy to employees, following specific guidelines for distribution of the policy (effective October 1, 2020).

The policy must:

• Provide a process for an employee to report prohibited conduct;
• Identify an individual and an alternate individual designated to receive reports and clearly communicate their role;
• Include the statute of limitations period applicable to an employee’s right of action alleging prohibited conduct;
• Include a statement that an employer may not require or coerce an employee to enter into a non-disclosure or non-disparagement agreement;
• Include an explanation that an employee claiming to be aggrieved by prohibited conduct may voluntarily request to enter into a non-disclosure or non-disparagement agreement with a seven-day revocation period; and
• Include a statement that advises employers and employees to document any incidents of prohibited conduct.

BOLI is responsible for creating model procedures and policies that employers may use to comply with this requirement and will post them on their website. These materials are expected to be available early next year. UEA will provide additional information regarding BOLI’s model procedures and policies in a Law Alert when BOLI posts the information on its website.

How to best prepare for the new rule:

• Review your harassment and discrimination policies and revise them as needed to be compliant with the new requirements. Managers and supervisors should be trained on the updated policies.
• Review current procedures and any collective bargaining agreement provisions to ensure document retention policies are sufficient in light of the expanded statute of limitations.
  
• Consult with your IT department to determine how long emails are retained and set up archiving policies, as needed. If an employee is terminated due to prohibited conduct any emails or texts regarding the events should be kept in their personnel file.
  
• Understand the new regulations regarding the non-disclosure, non-disparagement, or no-rehire clauses and apply them to any future employment agreements. 

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Please do not hesitate to reach out to UEA’s employment law attorneys if you need assistance or guidance with any of the new provisions.