On June 11, 2019, Governor Kate Brown signed Senate Bill (SB) 726 into law. Senate Bill 726 changes Oregon employers’ obligations for handling the resolution of discrimination, sexual harassment, and whistleblower/retaliation claims. Most significantly, the bill makes it an unlawful employment practice to require nondisclosure, non-disparagement, or no-rehire provisions in agreements with employees (except in two limited circumstances). The new law also increases the statute of limitations for certain claims from one to five years.
Senate Bill 726 imposes affirmative obligations on all Oregon employers to “adopt a written policy containing procedures and practices for the reduction and prevention of [prohibited] discrimination . . . including sexual assault . . ..” Prohibited discrimination includes all protected classes under Oregon law (race, color, religion, sex, sexual orientation, national origin, marital status, age, expunged juvenile record, uniformed service and disability). Sexual assault is defined in the relevant Oregon statutes as “unwanted conduct of a sexual nature that is inflicted upon a person or compelled through the use of physical force, manipulation, threat or intimidation.” Whistleblower/retaliation claims may arise if adverse action is taken against an employee because the employee reports an unlawful practice.
The Oregon Bureau of Labor and Industries (BOLI) has been tasked with drafting a model policy that complies with this new law. In the meantime, you should know that, at a minimum, all employers must adopt a policy that:
- Describes a process for reporting prohibited conduct;
- Identifies an individual(s) designated by the employer as the person who is responsible for receiving reports of prohibited conduct;
- States the statute of limitations that applies to an employee’s right to bring an action or complaint;
- Includes a statement that the employer may not require or coerce an employee to enter into a nondisclosure, non-disparagement or no-rehire agreement and defines those terms;
- Gives notice to employees that they may request a nondisclosure, non-disparagement, or no-rehire clause be included in a settlement or severance agreement, and, if they do so, that they will have seven days from the date the agreement is signed to change their mind; and
- Advises all employees and employers to document any incidents of potentially discriminatory conduct or sexual assault.
Senate Bill 726 further mandates that employers must: a) make this new policy available to all employees; b) provide a copy to each new employee at the time of hire; and c) at the time of reporting, provide another copy to an employee who reports any prohibited conduct.
Finally, Senate Bill 726 provides that aggrieved employees may file a claim with BOLI or file a civil action in court and increases the statute of limitations for filing certain claims from one to five years.
These new requirements take effect 91 days after the legislature adjourned, or on September 29, 2019, and apply to all Oregon employers.
If you have questions or concerns about this new law please do not hesitate to contact an employment lawyer in the firm (http://eugenelaw.com/employment-law/).