Business Lawyers Blog
Under the Oregon Workforce Fairness Act (OWFA), employers are generally prohibited from entering into agreements with employees that include either a confidentiality provision or a non-disparagement provision. The law aims to empower employees to speak out about discrimination and sexual assault, which the legislature has recognized as being in the public interest. Therefore, employers should avoid including these prohibited provisions in their agreements. Contact the Portland office of Structure Law Group, LLP, for help with understanding your obligations under the law. An Oregon employment law attorney can discuss any potential lawsuits, and our firm can provide confidential advice, and draft settlement or other agreements for use with employees.
Broad Prohibition on These Restrictions
The law does not ban all confidentiality or non-disparagement agreements. Instead, it limits these agreements when they relate to discrimination or sexual assault. A confidentiality agreement cannot stop an employee from discussing or revealing any conduct that counts as discrimination, including sexual assault, whether it happens between employees or between an employee and employer.
However, an Oregon employer may include both confidentiality and non-disparagement provisions for other reasons, such as protecting trade secrets or other proprietary information. Also, an employer may include NDA and non-disparagement provisions for violations of other laws, such as wage and hour violations. The OWFA applies to discrimination, including race and sex discrimination, as well as sexual assault.
The law covers a full range of agreements between employer and employee, including:
- Employment agreements
- Severance agreements
- Settlement agreements
The law even protects former employees and prospective employees.
Critical Exceptions
The statute (ORS § 659A.370) provides certain exceptions to the ban on confidentiality and non-disparagement agreements related to discrimination and sexual assault:
- The employee requests the inclusion of such terms. An employee might want an NDA on discussing sexual harassment to protect their privacy. They may request one under the law. However, the agreement must give the employee seven days to revoke the agreement, and it only becomes effective after the expiration of the revocation period. Furthermore, an employer cannot make an offer conditional on the employee requesting the inclusion of these terms.
- The employee engaged in discrimination or sexual assault. If the employer makes a good faith determination that the employee engaged in this conduct, then an agreement may include confidentiality and non-disparagement provisions. For example, a manager may have sexually assaulted a subordinate. The company may include these provisions in a separation agreement with the manager.
Violations Can Be Costly
An employer’s inclusion of a prohibited term will not protect an employer, since a court will find it unenforceable. An employee can talk about discrimination or sexual harassment, regardless of an NDA.
Additionally, employers can face other penalties. An employee is authorized to file a civil action and seek a $5,000 penalty as well as other relief, including damages.
Speak with an Established Law Firm
At Structure Law Group, LLP, we help Portland businesses navigate the full range of employment law obligations that arise as companies grow and evolve. Our attorneys provide practical, business-focused guidance designed to promote compliance, reduce risk, and support healthy workplace operations.
Call us at (503) 388-3000 or contact us online to schedule a consultation. We look forward to learning more about your business and assisting with both your immediate concerns and long-term workforce needs.