by Scott Herson-Hord, on Apr 16, 2024 5:04:44 PM
The Oregon Workplace Fairness Act (OWFA) addresses sexual harassment in the workplace, as well as other requirements regarding diversity, equity, and inclusion (DEI).
The OWFA is just one of many Oregon Labor Laws employers need to comply with. Here is what employers need to know about managing OWFA requirements and maintaining compliance.
Oregon Workplace Fairness Act Overview
The Oregon Workplace Fairness Act (OWFA) includes requirements regarding discrimination based on protected classes in Oregon.
Under the OWFA, employers and employees are not allowed to participate in harassment regarding race, color, sex, sexual orientation, national origin, religion, marital status, uniformed service disability, or age.
What is Sexual Harassment?
Sexual harassment includes unwelcomed sexual advances, requests for sexual favors, or conduct of a sexual nature (verbal, physical, or visual).
This can also include harassment that is not of a sexual nature, but rather regarding someone's gender, opposite or the same.
Oregon Protected Classes
Compared to the federal government, the state of Oregon has more protections for employees, granting workers protection from an employer not hiring an applicant based on race, gender, or other protected classes.
Employees that fall under protected classes are further granted protections from the following:
- Retaliation
- Prohibition on genetic screening and brain-wave testing
- Taking leave to serve in state-organized militia
- Physical or mental disabilities
- Inquiring about, discussing, or disclosing wage information
Statute of Limitations
In Oregon, employees have up to five years, typically, to file a charge for discrimination under OWFA. This is a result of statistical proof that most victims of such discrimination take more than a year on average to come forward.
Employer Requirements
In terms of OWFA, there are certain requirements an employer must meet aside from simple compliance with the law.
All employers are required to:
- Make their policy available to all employees within the workplace
- Upon hire, provide a copy of the policy to each employee
- Provide to each person with whom the employer seeks to enter into an agreement that releases a claim of conduct prohibited by ORS 659A.030, 659A.082 or 659A.112 with a copy of the policy in the language the employer typically uses to communicate with the person; and
- Require any individual who is designated by the employer to receive complaints to provide a copy of the policy at the time that the employee discloses information regarding prohibited discrimination or harassment
Oregon Non-Discrimination Policies
The primary responsibility of employers regarding the Oregon Workplace Fairness Act is to have a written non-discrimination policy. This policy must meet certain Oregon Bureau of Labor & Industries (BOLI) requirements. BOLI provides a policy template for employers to fill in and use.
Generally, policies should include the following:
- A process for an employee to report prohibited conduct
- An individual and an alternate individual designated to receive reports and clearly communicate their role
- The statute of limitations period, which details that an employee pursuing legal action must do so within 5 years of the occurrence of the violation
- A statement that an employer may not require or coerce an employee to enter into a non-disclosure or non-disparagement agreement
- An explanation that an employee claiming to be aggrieved by prohibited conduct may voluntarily request to enter a settlement, separation, or severance agreement that contains a nondisclosure, non-disparagement, or no-rehire provision (only if the employee has at least seven days to revoke the agreement after signing)
- A statement that advises employers and employees to document any incidents of prohibited conduct
Non-Disclosure or Non-Disparagement Provisions
Under the Workplace Fairness Act, employers may not ask for a non-disclosure or non-disparagement provision during employment agreements with employees who have made claims of some form of discrimination.
Exceptions include:
- For an employee claiming to be aggrieved by prohibited conduct, non-disclosure, and non-disparagement provisions are allowed only when the aggrieved employee requests such provisions and only after a seven-day revocation period in which the aggrieved employee can revoke the agreement.
- For an employee who has been alleged to have engaged in prohibited conduct, these provisions are allowed if the employer makes a good faith determination that the employee has engaged in protected class discrimination. When an employee is one accused of prohibited conduct, the employee does not have to request the provision and the employee does not have to be afforded the seven-day revocation period.
Another important thing for employers to note is that severance agreements may be voided for any managers who violate harassment or discrimination policies.
Get Help With Oregon Compliance Management
With legislation constantly changing, it helps if you are an Oregon business to have an HR and payroll company watching your back, making sure that your business is staying compliant and avoiding hefty fines.
Businesses that are struggling to manage compliance, or who are simply not able to take the time to manage compliance should consider reaching out to an Oregon HR and Payroll Company for help.
To learn more about how HCM can help manage compliance, contact us today. Or get connected with an Oregon HR provider now.
Guest Author: Scott Herson-Hord
Scott Herson-Hord is the CEO of Great Northern Staff Administrators (GNSA), an Oregon payroll and HR services company that specializes in serving small to mid-size businesses with administrative solutions to streamline back-office processes from benefits to human resources. Starting his career in finance and working more than 10 years as a controller for various companies, Scott leveraged this experience over the next 22 years with GNSA to become one of the pacific northwest’s foremost experts in human capital management (HCM).
