In 2019, Oregon Governor Kate Brown signed the Workplace Fairness Act (OWFA), which took full effect as of October 1, 2020. Among other things, the law prohibits employers from requiring employees to enter into agreements that would prevent them from disclosing conduct constituting discrimination and harassment (including sexual assault) prohibited under state law, or that would prevent them from seeking reemployment with the employer, except in narrow circumstances.
In February 2022, both chambers of the Oregon legislature passed Senate Bill (SB) 1586, which would amend the OWFA as follows:
- The law would now apply not just to agreements with current or prospective employees, but also to agreements with former employees.
- When an employer enters into an agreement with a former, current, or prospective employee, “the terms of which release a claim brought against the employer by an employee alleging” harassing or discriminatory conduct, the employer would be prohibited from including “[a] provision that prevents the disclosure of the amount of or fact of any settlement,” unless the employee requests such a provision.
- An employer would be prohibited from making a settlement offer to resolve OWFA-covered claims that is conditional upon an employee’s request to include a provision, such as confidentiality, that is otherwise prohibited absent the employee’s request.
- An employer would be required to provide a copy of its OWFA-compliant antidiscrimination and harassment policies with any agreement to resolve OWFA-covered claims, including at a mediation. (If the aggrieved party is not represented by counsel, then the mediator would be required to provide a copy of the model OWFA-compliant procedures and policies made available by the Oregon Bureau of Labor and Industries.)
- An employee would be able to recover a civil penalty of up to $5,000 in a private action claiming violation of the OWFA, as well as other relief, including lost wages and emotional distress damages.
Provisions included in any agreement in violation of the OWFA would be void and unenforceable. However, such provisions would “not apply to agreements entered into between an employer and a former, current or prospective employee if an employer makes a good faith determination that the employee has engaged in conduct prohibited” under the OWFA. SB 1586 also would not prohibit nondisclosure or nondisparagement agreements that are unrelated to conduct prohibited by the OWFA.
If the governor signs SB 1586 into law, the new requirements will take effect January 1, 2023.
Employers may want to review their nondisclosure, severance, and settlement agreements to ensure compliance with these OWFA amendments.