New Law Shifts More Power to Workers Who Suffer Discrimination, Harassment

 When the Oregon Workplace Fairness Act took effect in October 2020, its aim was to empower workers who had suffered discrimination, harassment or sexual assault on the job. A new bill passed earlier this month strengthens those protections – and, some labor law experts predict, will shift cases away from confidential, closed-door settlements and into much more public courtrooms.

“Most worker complaints don’t really see the light of day,”

Kate Suisman, an attorney with the Northwest Workers Justice Project, told The Skanner. “I think people would be shocked if they knew just how many employers they probably frequent or believe are good employers, just how many of them are taking advantage of workers, especially workers in low-wage jobs and immigrant workers.”

One of the key changes of the act was that any employee making a claim of discrimination, harassment or sexual assault against an employer could no longer be required to enter into nondisclosure or nondisparagement agreements. In such cases, the employee was the only party who could request confidentiality around settlements.

But legal observers noted that since the Workplace Fairness Act went into effect, many employers had still been found violating this policy by coercing employees into requesting nondisclosure agreements.

“Not just at my firm, but in speaking with many, many other attorneys, we’ve seen that employers say things like, ‘Well we’re talking settlement, here’s some terms, here’s some money we’re going to offer, and your client has to request confidentiality,’” Suisman told The Skanner. “They saw who requested it as a technical matter.”

To counter this, the new law includes a civil penalty of up to $5,000 for employers who pressure employees to request confidentiality around a settlement, and also protects former employees making claims against previous employers.

“Shame on us, there were a lot of things that happened (after the Workplace Fairness Act) we didn’t expect,” Jess Giannettino Villatoro, political director of Oregon AFL-CIO and a member of the coalition that authored both bills, said. “We make any nondisclosure agreement that does not follow these protections void and unenforceable.”

SB 1586 also stipulates employees must be provided with information about the new law in the language they primarily use to communicate with their employer.

‘No More Weaponizing NDAs’

Arthur Towers, political director for the Oregon Trial Lawyers Association, called the Workplace Fairness Act “landmark legislation to protect workers subjected to terrible treatment on the job who were then re-traumatized by the nature of settlement negotiations weaponized by the way (nondisclosure agreements) were used.”

In practice, employers often make NDAs a condition of hiring, and have long used them to silence aggrieved workers in return for settlement payment.

“We see that employers generally don’t want word getting out that they settled a case,” Suisman said. “And they seriously don’t want people to know how much they paid to settle the case." 

NDAs are effective at keeping workplace conflicts out of the press. But labor advocates argue such practices stymie progress.

“The point was to get away from these blanket agreements that are often handed to workers when they say they’ve experienced these things – workers feel they don’t have a lot of power in that case,” Villatoro said. “They sign a non-disclosure agreement and then they can’t talk about their experiences anymore. I think lots of us believe that sunlight is a disinfectant, and that when workers are able to share what’s happened to them, it’s less likely to continue to happen to them or to other people.”

As Suisman pointed out, NDAs don’t just shield settlement amounts.

“They’re actually often asking workers not to talk about ongoing treatment,” Suisman said. “That’s a huge problem because it makes it much harder for other workers to know what other folks have gone through, and employers get to bury whatever the problems were. Many of them go back to doing the same old thing.”

Suisman added,

"Whatever the underlying claim is, it’s usually not a one-off problem from what we see."

"If an employer is going to discriminate against you because of your race or gender, it’s probably the way they do business and not a fluke.” 

Changing the Legal Landscape?

Paloma Sparks, general counsel for Oregon Business Industry, cautioned that the changes might lead to employers foregoing settlements.

“If we don’t see employees making those requests (for NDAs), we may see a lot more cases going to litigation instead of going to settlement, because employers just aren’t going to settle those cases if they can’t reach an agreement about those provisions,” Sparks said. “Particularly about the amount of settlement, because when the amount of the settlement is sort of out there in the public sphere, you get people who don’t have valid complaints, or are in different situations, asking for the same amount of money that an aggrieved employee was entitled to…it may cause a lot more strife in the workplace.

"I think folks should just have an eye on how this law impacts settlement agreements in the future.”

Suisman saw a greater tendency toward litigation as a positive change.

“I think that would be great,” she said.“It’s very frustrating to me that 90-plus percent of our cases end with settlement. Sometimes that is what a worker wants; sometimes a worker comes in and they feel they lost wages when they got fired, or they suffered in other ways, but they don’t want to ‘make a big deal of it.’ But most workers I know don't come looking for money or a specific resolution, they come wanting a broader sense of justice. But they get worn down, and they see there’s an easier way to put it behind them (with a settlement).”

Suisman added, “We like to think of workplace changes that can come about as the result of a settlement or litigation. We’ve settled some cases where the agreement is also training for the managers, or putting in place a new way for workers to make a claim that does not go through the same (human relations) channel that has been burying this problem.”

The law would take effect Jan. 1 of next year if signed by Gov. Brown.