31 Trial Lawyer • Summer 2022 sions end up in a final agreement in the hands of an employee.” These fixes are intended to put the employee back in the driver’s seat as to whether a confidentiality clause ends up in a settlement agreement. This also means an employee should be able to determine the breadth of the confidentiality provision. That is, an employee can offer to enter an NDA only as to the amount of the settlement, but not as to the underlying facts. Conditioning settlement on entering a broader NDA than the employee is requesting, one that covers other prohibited subjects, such as the allegations related to discrimination or harassment, could also violate Oregon law. Client needs, employer accountability It is important to understand that SB 1586 does not require employers to engage in settlement negations if an NDA is not requested by an employee. It simply prohibits employers from making an offer of settlement contingent on entering an NDA, including asking for an agreement to enter an NDA in order to proceed with settlement negotiations. Of course, there are some local requirements for ADR that may require an employer to engage in settlement discussions with an employee even if the employee does not request confidentiality. Absent these required ADR provisions, the stark reality is that some employers may decline to enter into settlement negotiations absent an employee’s offer to enter an NDA. According to employers, failure to request an NDA, particularly as to the amount of the settlement, will pose a barrier to settlement and many cases will simply proceed to litigation absent such an offer.8 Plaintiff-side employment lawyers will need to clearly advise clients on the risks and benefits related to offering to enter a confidentiality provision and how broad or limited that provision should be. We need to discuss our client’s goals, and whether accountability and publicity is an important goal of the client’s and whether that goal outweighs an early resolution. Just like any settlement decision, creating change on a larger scale often may include a decision to forgo early settlement and resolution. But this decision obviously must be the client’s. At the very least, employers can no longer ignore Oregon law by requesting that an employee “request an NDA” as part of settlement negotiations. Such action clearly violates the OregonWorkplace Fairness Act, makes any such clause void and unenforceable, is enforceable by private action under ORS 659A.885 and subjects the employer to civil penalties up to $5,000. Shenoa Payne’s practice focuses on civil rights and appellate law. She contributes to OTLA Guardians of Civil Justice at the Sustaining Member level. She is the owner and founder of Shenoa Payne Attorney at Law PC, 735 SW First Ave, Suite 300, Portland, OR 97204. She can be reached at spayne@paynelawpdx.com or 503-9142500. 1 ORS 659A.370 2 See audio recording, House Committee on Business and Labor, SB 1586, Feb 21, 2022, at 41:58 (Jessica Giannettino Villatoro, AFLCIO), https://olis.oregonlegislature.gov/liz/media player/?clientID=4879615486&event ID=2022021248 (last visited April 25, 2022). 3 See id. (noting that since SB 726 was enacted, employers or defense side counsel continue to ask for NDAs). 4 Shenoa Payne, “Shedding Light on Arbitration Clauses and Nondisclosure Agreements,” Trial Lawyer magazine 32-34 (Fall 2018). 5 SB 1586 (2022) made several clarifying amendments to SB 726. This article won’t discuss them all. 6 Audio recording, supra n 6, at 41:58 (comments of Giannettino Villatoro). 7 Id. at 48:48 (comments of Paloma Sparks, Oregon Business and Industry). 8 Id. (stating that from the employer perspective, when settlements are in the public sphere, employees without valid complaints tend to seek the same compensation as a public settlement that a different employee with a valid complaint was actually entitled to and that this causes strife in the workplace).
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