All Oregon employers must comply with new anti-harassment law

On June 4, the Oregon legislature passed SB 726, which will (1) extend the statute of limitations from 1 year to 5 years for complaints and civil lawsuits related to harassment and some types of discrimination; (2) restrict the use of nondisclosure (NDA), nondisparagement, and no-rehire agreements; and (3) require employers to adopt extensive anti-harassment and anti-discrimination policies. This bill is the Oregon legislature’s response to the #MeToo movement, but it goes well beyond sexual harassment to include other types of harassment and discrimination. The bill is on Governor Kate Brown’s desk for signature. We expect the Governor to sign the bill.

Effective on the 91^st day after the legislature adjourns, the bill extends the statute of limitations from 1 year to 5 years for filing discrimination claims and civil lawsuits based on race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, age, expunged juvenile record, disability, or military service. This bill doesn’t extend the time limits for workers compensation’ retaliation claims or for wage and hour claims. It also doesn’t change the rule that, if a worker files a complaint with the Oregon Bureau of Labor and Industries (BOLI), they have just 90 days after the BOLI complaint is resolved to file a civil lawsuit. But for any new incidents that happen on or after the 91^st day after the legislature adjourns, workers will have 5 years to file a claim with BOLI or file a lawsuit in court.

As of October 1, 2020, employers will no longer be allowed to use nondisclosure, nondisparagement, or no-rehire provisions as part of severance agreements or settlements with workers who claim harassment or discrimination based on race, color, religion, sex, sexual orientation, gender identity, national origin, marital status, age, expunged juvenile record, disability, or military service. The law covers incidents of harassment or discrimination between employees at the workplace and between employees at an off-site, work sponsored event, as well as conduct between an employer and a worker that happens anywhere.

Employers will also not be able to use nondisclosure or nondisparagement provisions as a condition of employment, continued employment, promotion, compensation, or benefits. In other words, employers can’t include NDAs or nondisparagement provisions in employment contracts, or in handbooks for which the worker must sign to begin work. Employers will be able to use nondisclosure, nondisparagement, and no-rehire provisions for workers who engage in such harassment or discrimination, whether the workers request them or not. But for the worker who claims to be the victim of such harassment or discrimination, an employer cannot request or coerce that worker into signing any of those provisions. The aggrieved worker must affirmatively request them.

Finally, also effective October 1, 2020, employers must adopt a policy that (1) provides a process for workers to report harassment and discrimination; (2) identifies the individual and an alternate individual responsible for receiving such reports; (3) informs workers of the statute of limitations for filing a BOLI complaint or civil lawsuit related to harassment or discrimination (5 years as of the 91^st day after the current legislature adjourns); (4) includes a statement that the employer may not require or coerce workers into nondisclosure or nondisparagement agreements, including definitions of those terms; (5) includes an explanation that a worker claiming such harassment or discrimination may voluntarily enter into a nondisclosure or nondisparagement agreement, including that a worker has at least 7 days to revoke the agreement; and (6) includes a statement that advises both workers and employers to document any incident involving harassment (including sexual harassment or assault) and discrimination. Employers must then make the policy available to workers at the workplace, give each new hire a copy of the policy at the time of hire, and require the person responsible for receiving reports of harassment and discrimination to give the reporting worker a copy of the policy when the worker makes a report. Although many employers have anti-harassment policies, it’s likely that most employers will now need to update their policies to include these specific provisions.

Tips for employers: This law places many new requirements on employers. BOLI is responsible for enforcement, and is required by the law to create model anti-harassment and anti-discrimination policies, and to place them on their website for employers to use as guidance. We’ll update Vigilant members when BOLI posts the policies and publishes regulations interpreting the new law. We will also be updating our model policy. In the meantime, please contact your Vigilant employment attorney if you need help understanding how this law affects your company.