Brand Story - Global firm Ogletree, Deakins, Nash, Smoak & Stewart offers guidance, webinar on new practices.
An Oregon Senate bill known as the Oregon Workplace Fairness Act, which addresses workplace discrimination and harassment, was signed into law in June. Although a few of its provisions go into effect on October 1 of this year, the majority of them are not effective until October 1, 2020.
Widely considered to be a response to the #MeToo disclosures of recent years, the bill’s far-reaching language significantly extends the time period in which an employee may file a claim of discrimination, and impacts virtually all types of employment-related agreements.
“There are a few handbook policy revisions that need to be addressed, but the impact of this law goes far beyond that,” says Caroline Guest, an employment attorney and shareholder in the Portland office of global labor and employment law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C. “The law requires very significant changes to employers’ standard employment agreements and potentially their document-retention practices.”
Currently, Oregon employees must file an administrative complaint or a lawsuit in court within one year of the alleged illegal conduct. The new law extends that statute of limitations to five years and applies to prohibited conduct that occurs on or after the date on which SB 726 goes into effect, likely Oct. 1, 2019. Although the statute of limitations has been significantly increased, the law does not contain any requirement that an employer increase the period of time it retains its employment-related records, electronic or otherwise (currently, employers are required to maintain most employment-related records for only 60 days.) This means companies should carefully evaluate whether they want to preserve information that could be relevant to employment claims that might be not be filed until five years down the road. The considerations are complex and will vary from company to company, so Guest advises employers to seek advice from their inside or outside counsel before making any changes in this regard.
Further restrictions will be placed on non-disclosure, non-disparagement and no-rehire provisions in agreements entered into on or after Oct. 1, 2020. Subject to limited exceptions, Oregon employers will no longer be permitted to require any employee or former employee to promise not to disclose the underlying facts of the matter, not disparage the company or any of its employees, or not seek rehire - in exchange for the benefit being offered to the employee through an employment, separation, severance agreement. Currently, it is standard practice for an employer to have a “no rehire” provision in any sort of agreement in which it is paying money either to separate an employee’s employment, or settle a lawsuit the employee filed. Those types of standard provisions are expressly prohibited under the new law.
“Another important change in the law applies in the context of internal investigations into alleged employee misconduct,” Guest explains. “The law will prohibit employers from requiring participants in the investigation from discussing the contents of a conversation they may have with someone who is investigating a complaint. You can say, ‘We would prefer that you keep it confidential because these matters are sensitive for everyone involved,’ but you can’t tell the employees they must do that. The idea is to free employees and former employees to say what they want to say about their workplace experiences, where and when they want to say it.”
Another major revision to the law relates to requirements for detailed written policies specific to the process of reporting an issue. Every Oregon employer will be required to have this policy in place, regardless of whether they employ one or 100 employees in Oregon.
“Among other things, the policy has to affirmatively tell people what the new statute of limitations is; the policy needs to explain how they’re going to document the incident and who is responsible for receiving reports of prohibited conduct, and the policy must be generally available online or in a handbook that the employer can provide,” says Guest.
Guest notes that Oregon’s Bureau of Labor and Industries will be forthcoming with procedures or policies that employers may use as guides as they establish their own policy.
Guest encourages all Oregon employers to take a close look at their standard employment agreements and see what language and policies need to be adjusted or clarified. An employment law firm such as Ogletree Deakins can keep you updated on any developments related to the law and can be available to answer questions related to these sweeping changes in policy and procedure.
Learn More - Ogletree Deakins is hosting a webinar on Sept. 12, 2019, to discuss the new law in depth and provide guidance to employers.
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