We interrupt our posts about the new paid family leave law to tell you about the Workplace Fairness Act. The Act includes new rules for when employers can require non-disclosure and non-disparagement agreements in connection with harassment and discrimination, what employer anti-harassment policies have to include, and an extended statute of limitations for certain harassment/discrimination claims.
With respect to agreements, the Act makes it an unlawful employment practice for an employer to enter into an agreement with an employee or prospective employee, as a condition of employment, continued employment, promotion, compensation or the receipt of benefits, that contains a nondisclosure provision, a non-disparagement provision or any other provision that has the purpose or effect of preventing the employee from disclosing or discussing conduct that constitutes discrimination prohibited by ORS 659A.030, including conduct that constitutes sexual assault; or that constitutes discrimination prohibited by ORS 659A.082 (military service discrimination) or 659A.112 (disability discrimination).
An employer may enter into a settlement, separation or severance agreement that includes a provision that prevents the disclosure of factual information relating to a claim of discrimination or conduct that constitutes sexual assault and/or a no hire provision, if an employee requests such provisions and if the employee has at least seven days after executing the agreement to revoke their acceptance of the agreement.
The law also requires employers to adopt a written anti-harassment policy that, at a minimum, must:
- Provide a process for an employee to report prohibited conduct;
- Identify an individual designated by the employer responsible for receiving reports of prohibited conduct, including an individual designated as an alternate to receive such reports;
- Include the statute of limitations period applicable to an employee’s right of action for alleging unlawful conduct;
- Include a statement that an employer may not require or coerce an employee to enter into a nondisclosure or non-disparagement agreement, including a description of the meaning of those terms;
- Include an explanation that an employee claiming to be aggrieved by conduct described in the law may voluntarily request to enter into an agreement with non-disclosure and non-disparagement provisions and that explains that the employee has at least seven days to revoke the agreement; and
- Include a statement that advises employers and employees to document any incidents involving conduct prohibited by ORS 659A.030, including sexual assault.
Employers must make the anti-harassment policy available to all employees, provide a copy to employees at time of hire, and require the individual(s) designated to receive complaints to hand out the policy to any employee who discloses information regarding prohibited harassment or discrimination.
The law also extends the statute of limitations for claims of discrimination to 5 years from the occurrence of an alleged violation.
The new law takes effect on October 1, 2020.