On June 11, 2019, Oregon Governor Kate Brown signed into law the Workplace Fairness Act (“WFA” or “Act”). The Act impacts employment agreements, written policies, practices, settlement and severance agreements . The following summarizes the key requirements of the Act that go into effect October 1, 2020:
- Employers are required to have a written anti-discrimination policy;
- The Act prohibits certain confidentiality, non-rehire, and non-disparagement agreements;
- The Act extends the statute of limitations to five years for discrimination and harassment claims;
- The Act permits “golden parachutes” for bad actors to be voided.
Who does the WFA apply to?
The requirements of the WFA apply to every employer that employs at least one employee in Oregon.
What are the Requirements for a Written Anti-discrimination Policy?
All employers must have a written policy to prevent discrimination and the Act requires employers to adopt a written anti-discrimination and anti-harassment policy by October 1, 2020 that must at minimum include the following:
- a process for an employee to report prohibited conduct, including suspected discrimination, harassment or sexual assault;
- identification of the individual is responsible for receiving reports of prohibited conduct, including an individual designated as an alternate to receive such reports;
- provides an employee five years from a suspected incident of discrimination or harassment to bring a legal action;
- a statement that an employer may not require or coerce an employee to enter into a nondisclosure or non-disparagement agreement and a description of the meaning of those terms;
- an explanation that an employee may voluntarily request to enter into an agreement that contains non-disclosure, non-disparagement or no-rehire clauses, but that they have seven days to revoke the agreement; and
- a documentation process of any incidents of alleged prohibited conduct.
What are the Anti-Harassment Policy Distribution Requirements?
Under the Act, employers must:
- make the final policy available to employees;
- provide a copy to all new hires; and
- provide a copy to an employee at the time the employee reports information regarding suspected prohibited conduct.
How does the WFA Impact Certain Employment Agreements?
Beginning October 1, 2020,
- Employers may not require non-disclosure, non-disparagement and no-rehire provisions in employment or settlement agreements for discrimination, harassment or sexual assault claims. An employer is permitted to include these provisions if:
- the employee requests the provisions and
- the agreement gives the employee seven days to revoke the agreement following signature.
- Employers may void severance agreements for managers who violate discrimination or harassment policies. Employers may void previously entered contractual severance obligations for managers that violate the WFA’s anti-discrimination and harassment policies. These provisions of the WFA requirements appear to be primarily directed at the so-called “golden parachutes” provided to accused harassers terminated for their conduct. Employers are urged to consult with legal counsel before entering into or voiding any such agreements.
How did the WFA Extend the Statue of Limitations for Discrimination, Harassment and Retaliation Claims?
Beginning in September 2019, the WFA expanded the statute of limitations for workplace discrimination, harassment, or sexual assault claims providing employees five years in which to file a complaint with BOLI or with a Court.
Employers with existing anti-discrimination policies will want to make revisions to comply with the new WFA policy and distribution requirements. Policies must be implemented by October 1, 2020. Employers should consult with employment counsel and review any existing employment agreements for overbroad non-disparagement or nondisclosure provisions and any template severance/settlement agreements.
Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2020 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved