As we wrote about in a recent update, Oregon's new Workplace Fairness Act (“the Act”) brings sweeping changes that limit nondisclosure and nondisparagement provisions in employment agreements, require employers to adopt anti-discrimination policies, and expand the statute of limitations for discrimination and harassment claims. The Act applies to both public and private employers. Additionally, public employers are also subject to another new law, Senate Bill 479, which focuses specifically on workplace harassment. While there is a great deal of overlap between the Oregon Workplace Fairness Act and Senate Bill 479, the latter imposes additional requirements mandating that public employers adopt more detailed anti-harassment policies and investigation procedures. Those additional requirements are summarized below.
Additional Requirements for Public Employer Anti-Harassment Policies
While all employers must adopt updated written anti-discrimination and harassment policies that contain the specific terms set forth in the Oregon Workplace Fairness Act, Senate Bill 479 requires public employers' updated policies to also include the following additional terms:
A specific statement prohibiting workplace harassment;
Information explaining that a victim of workplace harassment has a right to seek redress through the employer’s internal complaint resolution process, through the Bureau of Labor and Industries’ complaint resolution process, or under any other available law, whether civil or criminal, including:
The timeline under which relief may be sought;
Any available administrative or judicial remedies; and
That an employee must submit a tort claim notice within 180 days after alleged harassment as a precondition to pursuing a lawsuit;
A statement that a person who reports workplace harassment has the right to be protected from retaliation;
A statement of the scope of the policy, including that the policy applies to elected public officials, volunteers, and interns;
An explanation that a victim of workplace harassment may voluntarily disclose information regarding an incident of workplace harassment that involves the victim; and
Information to connect a victim of workplace harassment with legal resources and counseling and support services, including any available employee assistance services.
Additional Requirements for Public Employer Harassment Investigation Procedures
Senate Bill 479 also expands on the Oregon Workplace Fairness Act's requirement that employers develop written policies that provide a process for employees to report discrimination and harassment and that designate at least two individuals to receive such reports. Under Senate Bill 479, public employers must also develop written policies and procedures for the "prompt investigation" of reports of harassment and discrimination. At a minimum, the investigation policies and procedures must:
Provide instruction for maintaining records of workplace harassment;
Require the employer to follow up with the victim of the alleged harassment once every three months for the calendar year following the date on which the employer received a report of harassment, to determine whether the alleged harassment has stopped or if the victim has experienced retaliation; and
Inform the victim that the employer will follow up in the manner described above until and unless the victim objects to such action in writing.
Senate Bill 479's requirements for public employer anti-harassment policies and investigation procedures become effective January 1, 2020.
As a result, public employers should start updating their policies and procedures now so they can be in full compliance by the time the new law takes effect. Additionally, it is important for public employers to recognize that they are subject to both Senate Bill 479 and the Oregon Workplace Fairness Act. Therefore, both laws must be considered when taking steps to achieve compliance.