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About The skanner. (Portland, Or.) 1975-2014 | View Entire Issue (March 23, 2022)
Page 8 The Skanner Portland & Seattle March 23, 2022 News New Law Shifts More Power to Workers Who Suffer Discrimination, Harassment “ Senate Bill 1585 heads to Gov. Brown’s desk By Saundra Sorenson Of The Skanner News W hen the Ore- gon Workplace Fairness Act took effect in October 2020, its aim was to empower workers who had suffered discrimi- nation, 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 pub- lic courtrooms. “Most worker com- plaints don’t really see the light of day,” Kate Su- isman, an attorney with the Northwest Workers Justice Project, told The Skanner. “I think people would be shocked if they knew just how many em- ployers they probably frequent or believe are good employers, just how many of them are taking advantage of workers, es- pecially workers in low- wage jobs and immigrant workers.” One of the key chang- es of the act was that any employee making a claim of discrimination, harassment or sexual assault against an em- ployer could no longer be required to enter into nondisclosure or non- disparagement agree- ments. In such cases, the employee was the only party who could request confidentiality around settlements. But legal observers not- ed that since the Work- place Fairness Act went into effect, many employ- ers had still been found violating this policy by coercing employees into requesting nondisclo- sure agreements. “Not just at my firm, but in speaking with many, many other attorneys, we’ve seen that employ- ers 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 confiden- tiality,’” Suisman told The Skanner. “They saw who requested it as a techni- cal matter.” To counter this, the new law includes a civil pen- alty of up to $5,000 for employers who pressure employees to request confidentiality around a settlement, and also pro- tects 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 Ore- gon AFL-CIO and a mem- ber of the coalition that authored both bills, said. “We make any nondis- closure agreement that does not follow these protections void and un- enforceable.” SB 1586 also stipulates employees must be pro- vided with information about the new law in the language they primarily use to communicate with their employer. ‘No More Weaponizing NDAs’ Arthur Towers, po- litical director for the Oregon Trial Lawyers Association, called the Workplace Fairness Act “landmark legislation to protect workers subject- ed to terrible treatment on the job who were then re-traumatized by the na- ture of settlement nego- tiations weaponized by the way (nondisclosure agreements) were used.” In practice, employers often make NDAs a con- dition of hiring, and have long used them to silence aggrieved workers in re- turn for settlement pay- ment. “We see that employ- ers generally don’t want word getting out that they settled a case,” Suis- man said. “And they seri- ously don’t want people to know how much they paid to settle the case.” NDAs are effective at keeping workplace con- flicts out of the press. But labor advocates argue such practices stymie progress. “The point was to get away from these blanket agreements that are of- ten 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-disclo- sure agreement and then they can’t talk about their experiences anymore. I think lots of us believe that sunlight is a disin- fectant, 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 point- ed out, NDAs don’t just shield settlement amounts. “They’re actually often asking workers not to talk about ongoing treat- ment,” Suisman said. “That’s a huge problem because it makes it much Albina 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, “What- ever 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 Busi- ness Industry, cautioned that the changes might lead to employers forego- ing settlements. “If we don’t see em- ployees making those requests (for NDAs), we may see a lot more cases going to litigation in- stead of going to settle- ment, because employ- ers just aren’t going to settle those cases if they can’t reach an agreement about those provisions,” Sparks said. “Particu- larly 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 dif- It’s very frustrating to me that 90-plus percent of our cases end with settlement. ferent situations, asking for the same amount of money that an aggrieved employee was entitled to…it may cause a lot more strife in the work- place. “I think folks should just have an eye on how this law impacts settle- ment agreements in the future.” Suisman saw a greater tendency toward litiga- tion as a positive change. “I think that would be great,” she said.“It’s very frustrating to me that 90- plus percent of our cas- es end with settlement. Sometimes that is what a worker wants; some- times 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 work- ers 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 man- agers, or putting in place a new way for workers to make a claim that does not go through the same (human relations) chan- nel that has been burying this problem.” The law would take ef- fect Jan. 1 of next year if signed by Gov. Brown. cont’d from pg 3 woman, Portland native Lisa Saunders, executive director of FaithBridge LLC, and an ordained minister, offers Black women mental-health support, under contract with Multnomah County. Neither of the two cur- rent Black-led tenants is a federally recognized nonprofit and are, there- fore, not eligible to ben- efit from OCF’s donation of the former Albina “ This pro- cess has to be inclu- sive and equitable Arts Center. “This process has to be inclusive and equitable,” Warren noted. “There are so many Black com- munity-based organiza- tions doing good work. And all of us should have an opportunity to say how this building is best served. My hope is that the community would feel empowered and val- ued in a space where ev- eryone can have a voice. It is our collaborative work now that will lead the way for generations afterward.
