Oregon Employers Face New Obligations Regarding Discrimination and Sexual Assault in Workplace
Oregon Gov. Kate Brown has signed Senate Bill (SB) 726, which significantly changes Oregon employers' obligations with respect to handling discrimination and sexual assault in the workplace. Notably, SB 726 imposes upon all public and private Oregon employers new discrimination policy and complaint process requirements, increases the statute of limitations for certain claims from one year to five years, and makes it an unlawful employment practice for an employer to require nondisclosure and nondisparagement provisions in specific agreements with employees.
New Requirements for Employer Policies
SB 726, signed into law by Gov. Brown on June 11, 2019, mandates that every employer "adopt a written policy containing procedures and practices for the reduction and prevention of discrimination ... including sexual assault." Discrimination is defined to include all protected classes under Oregon law (race, color, religion, sex, sexual orientation, national origin, marital status, age, expunged juvenile record, uniformed service and disability). Sexual assault 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."
Employer policies must, at a minimum:
- include a process for reporting prohibited conduct
- identify the person, and an alternate, to whom employees should report prohibited conduct
- include the applicable statute of limitations for the employee to bring a legal claim
- highlight that an employer may not require or coerce an employee to enter into a nondisclosure or nondisparagement agreement that prevents the employee from discussing discrimination or sexual assault that occurred at work or between employees
- notify the employee that they may request that a nondisclosure or nondisparagement clause be included, and that if they choose to include a nondisclosure or nondisparagement clause, the employee has seven days after the agreement is signed to change his or her mind before the agreement becomes final, and
- encourage employers and employees to documents incidents that could be considered discriminatory conduct or conduct constituting sexual assault
Employers are required to make the policy available to all employees in the workplace and provide a copy of it to each employee at the time of hire and to any employee who reports discriminatory conduct or conduct constituting sexual assault at the time of the report.
The Oregon Bureau of Labor and Industries has been tasked with developing a model policy for employer use.
Importantly, SB 726 also permits employers to void severance provisions of employment agreements with "a person with the authority to hire and fire employees, or the discretion to exercise control over employees" when the employer determines, after conducting a good faith investigation, that the employee engaged in prohibited conduct that was a substantial contributing factor in causing the separation from employment.
Conclusion and Next Steps
The new requirements will take effect 91 days after the legislature adjourns, which is currently scheduled for June 30, 2019. That means that Oregon employers have until Sept. 29, 2019, to review and update their complaint procedures and reporting policies.
Clients seeking further guidance on SB 726 and its potential impact should contact the authors or another member of Holland & Knight's Labor, Employment and Benefits Group.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.