Tonkon Torp attorney Chris Morehead led a session on the Oregon Workplace Fairness Act (OWFA) during the annual Labor & Employment Event, held virtually on June 9. During his session, Chris unpacked key elements of the OWFA, which was passed to address workplace concerns raised by the #MeToo movement. Many of the OWFA’s key provisions became effective on October 1, 2020 and have broad application, potentially costly repercussions for noncompliance, and come with one of the longest statute of limitations in the country for certain kinds of employment claims (five years).
Chris detailed the minimum contents necessary to be in compliance with the OWFA’s mandate that Oregon employers maintain a written anti-discrimination policy. Among other things, the policy must contain a process for reporting “prohibited conduct,” i.e., discrimination/harassment on the basis of race, color, religion, national origin, sex, sexual orientation, age, marital status, an expunged juvenile record, whether a person is in uniformed service, or disability. Prohibited conduct also includes sexual assault – defined as unwanted conduct of sexual nature that is inflicted/compelled on a person by use of force, manipulation, threat, or intimidation.
The OWFA also generally makes it unlawful for employers to enter into employment agreements that contain any provision that have “purpose or effect” of preventing the discussion or disclosure of prohibited conduct. Chris noted that “agreements” as used here is broadly defined, and extend to off-premises conduct such as employee gatherings. Violations can be reported as a BOLI complaint or filed directly as a civil lawsuit. One of the few exemptions in the statute is for employees “tasked by law” to receive confidential or privileged reports, though the scope of this exception is presently unclear.
With regard to separation, severance, and settlement agreements, Chris called out an exception that allows employers to include non-disparagement, non-disclosure, confidentiality, and/or no-rehire provisions if the aggrieved employee asks for these provisions to be included in their agreement. Given the unclear language in the statute, there are a number of unanswered questions on the extent to which these provisions can be included in situations where an employee has not claimed to be aggrieved of “prohibited conduct.” Chris recommends that employers tread lightly until clarification is provided. When an agreement is being created for a harasser, the law also provides notable exceptions. One is that an employer can include NDA, confidentiality, or no-rehire provisions in a separation agreement if the employer has made a good faith determination that the employee engaged in prohibited conduct. The statute also makes it possible for employers to void so-called golden parachutes so long as specific conditions are met. Chris again advises caution when acting on either of these actions, and suggests calling counsel first.
Chris is an associate in Tonkon Torp’s Labor & Employment Practice Group. He works with local, regional, and national employers in such industries as banking, manufacturing, retail, hospitality, and craft beverage, helping clients to solve complicated employment matters and to comply with Oregon employment law.
Learn more about other topics from the 2021 Annual Labor & Employment Event:
Reopening Strategies & Considerations
Mandatory Vaccination Policies
Telecommuting and Flexible Work Schedules
Updates to Labor Law Under the Biden Administration
Diversity, Equity, and Inclusion for Employers