Oregon’s Workplace Fairness Act
In late March, Governor Kate Brown signed into law a bill that amends Oregon’s Workplace Fairness Act to further restrict what an employer is permitted to request in certain settlement or separation agreements with employees, effective January 1, 2023.
Among other things, the Workplace Fairness Act (WFA) currently restricts employers from requesting confidentiality and non-disparagement provisions to the extent they prevent employees from disclosing or discussing discrimination prohibited by specified statutes, which, generally speaking, prohibit workplace discrimination and sexual assault.
Further, no-hire provisions are prohibited in settlement agreements and separation agreements with employees claiming workplace discrimination or sexual assault.
The WFA does, however allow the provisions when they are requested by the employee.
Senate Bill 1586 expands restricted provisions and clarifies some parts of the current law that are unclear.
In particular, the bill clarifies that the Act does apply to “former” employees and that the prohibition against these clauses applies only to the extent they relate to the discrimination and sexual assault claims described above.
It also explains exactly what the employer cannot do: employers are not allowed to make an offer of settlement conditional upon a request to include in the agreement the prohibited provisions.
Employers are required to provide the employee that is party to the agreement with a copy of its legally required anti-discrimination policy (see ORS 659A.375).
The prohibition on confidentiality and non-disparagement clauses now applies to any clause that prohibits disclosure of (a) the fact that there is a settlement or (b) the amount for which the claim was settled.
Private mediators who are mediating claims or allegations concerning workplace discrimination or sexual assault must provide unrepresented parties a copy of the Oregon Bureau of Labor and Industries’ model policies concerning the WFA.
There are a number of other requirements and prohibitions in both the current WFA and the amendments, so employers should ensure that they’re aware of all such requirements when drafting workplace policies, settlement agreements, and separation agreements.
In addition, employees should make sure they know their rights before signing any employment-related agreements and policies.
Washington’s Silenced No More Act
In 2018, a law took effect prohibiting employers from requiring an employee or applicant to sign an agreement preventing the disclosure of alleged incidents of sexual assault or sexual harassment in the workplace. This restriction did not, however, apply to settlement agreements.
Late last month, Governor Inslee signed into law HB 1795, which expands the scope of claims that cannot be covered by nondisclosure agreements and removes the settlement agreement exception found in the former law, RCW 49.44.210.
It’s important to note that this bill applies not just to prospective, current, and former employees, but also to independent contractors. Further, it makes clear that it covers all employees and independent contractors who reside in Washington, regardless of where the party they’re working for is located.
The new law, effective June 8, 2022, makes void any provision in any agreement between the hiring party and the employee or independent contractor that prohibits the disclosure or discussion of covered conduct or the existence of a settlement relating to covered conduct.
Unlike the Oregon law, the new Washington law does not restrict provisions prohibiting disclosure of any amount paid in settlement.
Covered conduct is any conduct that the employee or independent contractor reasonably believes to be illegal discrimination, illegal harassment, illegal retaliation, sexual assault, a violation of wage and hour laws, or against “a clear mandate of public policy.”
Also unlike the Oregon law, the Washington law is, to some extent, retroactive. The bill states that any existing nondisclosure or non-disparagement agreements entered into “at the outset of employment or during the course of employment” are void and unenforceable.
Here too, there is more to the bill than can be covered in this brief alert. Employers must identify all of the applicable requirements before drafting any employment or independent contractor agreements, any separation or settlement agreements, and any workplace policies.
Employees and independent contractors, too, should make sure they understand the new law before signing any agreements or policies relating to their employment or contracted services.
Because of the retroactive provisions of the new law, employers, employees and independent contractors must also thoroughly review previously executed agreements to determine which provisions are now void and should not be enforced.
**********
Whether you are an employee or an employer, please feel free to contact us if you have any questions about any of the above updates or any other employment-law issues.
For more information about employment law, see Employment Law (in Plain English)®, co-authored by members of this law firm. The book is available through Skyhorse Publishing, Amazon, Barnes & Noble, Powell’s Books, and Bookshop (an online bookstore that allows you to support your favorite independently owned bookstore).
Photo by Mimi Thian on Unsplash
