Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Oregon’s active 2019 legislative session has prompted the need for several policy and handbook updates for employers doing business in Oregon. This Insight provides an overview of the most notable recent employment law developments in Oregon.
Oregon Workplace Fairness Act
On June 11, 2019, Governor Kate Brown signed into law Senate Bill 726 (“Workplace Fairness Act”). The Workplace Fairness Act significantly impacts what employers may and must do with respect to harassment and discrimination claims. Specifically, as part of discrimination or harassment settlements, employees may not be required to agree: (1) not to disclose alleged conduct; or (2) not disparage employers or alleged perpetrators. Employers are also not permitted to require employees to agree to a no-rehire provision as a term or condition of settlement. If an employee requests either of these terms, however, the employer may include it, as long as the employee has seven days following signing the agreement to revoke it. In light of these changes, employers should promptly review and consider updating their standard employment agreements, such as non-disclosure and non-disparagement terms in settlement agreements.
The Workplace Fairness Act also increased the statute of limitations for lawsuits involving workplace misconduct, i.e., harassment and discrimination, from one year to five years, which will increase exposure to employers. This timeframe must be made clear to employees in the employer’s policies. As a matter of course, employers should strive to record and archive reports of discrimination and harassment for at least seven years moving forward.
Finally, the Workplace Fairness Act makes “golden parachute” provisions voidable where an employer finds that an employee engaged in unlawful conduct. The employer must conduct a good-faith investigation of reports of discrimination or harassment. If the employer finds the allegations are true, then the employer may be released from its obligations under the golden parachute provision.
In accordance with the new laws that make up the Workplace Fairness Act, employers should ensure their policies include:
- A process for employees to report prohibited conduct;
- The identity of the person designated by the employer to receive reports of prohibited conduct, including an individual designated as an alternate to receive such reports;
- A description of the applicable statute of limitations (which is now five years);
- A statement that an employer may not require or coerce an employee to enter into a non-disclosure or non-disparagement agreement as part of any settlement, and a description of the meaning of those terms;
- An explanation that an employee claiming to be aggrieved by unlawful conduct may voluntarily request to enter into an agreement that includes non-disclosure and/or non-disparagement terms, including a statement explaining that the employee has at least seven days to revoke the agreement; and
- A statement that advises employers and employees to document any incidents involving unlawful employment discrimination or sexual assault.
Employers should also note they must:
- Make the policies governing employers’ standard employment agreements available to employees within the workplace;
- Provide a copy of the policy to each employee at the time of hire; and
- Require any individual who is designated by the employer to receive complaints to provide a copy of the policy to an employee at the time that the employee discloses information regarding prohibited discrimination or harassment.
The Oregon Court of Appeals recently held that, in the absence of a waiver of meal periods, employers may be strictly liable for ensuring non-exempt employees take their full 30-minute meal breaks. The court ruled that employers must pay wages to non-exempt employees who have not been relieved of duties during the entirety of the required 30-minute meal period.
This change is significant and may require employers to revisit their timekeeping practices and processes for employees. At a minimum, employers should: (1) update employee handbooks to ensure they state that meal break periods are mandatory and that employees are required to obtain permission before returning to work early; (2) work with supervisors and managers to implement processes for monitoring employee break periods; and (3) periodically audit employee break period usage by reviewing weekly timecards, computer usage, and/or any other data showing when employees have worked. Even if these steps cannot guarantee employees will comply with meal break period requirements, they will support an argument that the employer had the correct policies and practices in place to prevent such behavior.
Oregon Pregnancy and Lactation Accommodations
Effective January 1, 2020, all Oregon employers, regardless of number of employees, are required to provide reasonable accommodations for known limitations relating to pregnancy, childbirth and lactation. Such accommodations may include, but are not limited to acquisition or modification of equipment or devices; more frequent or longer break periods; assistance with manual labor; or modification of work schedules or job assignments. The new laws include an undue hardship exception, which is evaluated based on the nature and cost of the accommodation, the financial resources and size of the facility and employer, and the type of operations conducted by the employer. Employers should be cautious about not requiring accommodations where the employee has not specifically requested them, as such conduct could give rise to liability.
Employers are required to post workplace signs about these protections, a template of which is available on the Oregon Bureau of Labor and Industries’ (BOLI) website. For more details about the requirements, see this Littler Insight.
We will continue to follow the evolution of the above laws and regulations governing employer policies and will report on developments as they unfold.