2017 ORS 659A.210¹
Affirmative defense

(1) An employee’s good faith and objectively reasonable belief of a violation of federal, state or local law, rule or regulation by the employer shall be an affirmative defense to a civil or criminal charge related to the disclosure by the employee of lawfully accessed information related to the violation, including information that is exempt from disclosure as provided in ORS 192.338 (Exempt and nonexempt public record to be separated), 192.345 (Public records conditionally exempt from disclosure) and 192.355 (Public records exempt from disclosure) or by employer policy, if the information is provided to:

(a) A state or federal regulatory agency;

(b) A law enforcement agency;

(c) A manager employed by the public or nonprofit employer of the employee; or

(d) An attorney licensed to practice law in this state if a confidential communication is made in connection with the alleged violation described in this section and in furtherance of the rendition of professional legal services to the employee that are subject to ORS 40.225 (Rule 503. Lawyer-client privilege).

(2) An employee may not assert the affirmative defense described under subsection (1) of this section if the information described in subsection (1) of this section:

(a) Is disclosed or redisclosed by the employee or at the employee’s direction to a party other than the parties listed in subsection (1) of this section;

(b) Is stated in a commercial exclusive negotiating agreement with a public or nonprofit employer, provided that the agreement is not related to the employee’s employment with the employer; or

(c) Is stated in a commercial nondisclosure agreement with a public or nonprofit employer, provided that the agreement is not related to the employee’s employment with the employer.

(3) The affirmative defense described in subsection (1) of this section is available to an employee who discloses information related to an alleged violation by a coworker or supervisor described in subsection (1) of this section if the disclosure relates to the course and scope of employment of the coworker or supervisor.

(4) The affirmative defense described in subsection (1) of this section may not be asserted by an employee who is an attorney or by an employee who is not an attorney but who is employed, retained, supervised or directed by an attorney if the information disclosed pursuant to subsection (1) of this section is related to the representation of a client.

(5) This section and ORS 659A.203 (Prohibited conduct by public or nonprofit employer), including disclosures under subsection (1) of this section, are subject to the rules of professional conduct established pursuant to ORS 9.490 (Formulation of rules of professional conduct).

(6) Public and nonprofit employers shall establish and implement a policy regarding employees who invoke their rights under this section or ORS 659A.203 (Prohibited conduct by public or nonprofit employer). The policy shall delineate all rights and remedies provided to employees under this section and ORS 659A.203 (Prohibited conduct by public or nonprofit employer). The employer shall deliver a written or electronic copy of the policy to each employee.

(7) Subject to the rules of professional conduct established pursuant to ORS 9.490 (Formulation of rules of professional conduct), a public employee who is an attorney may report to the Attorney General the employee’s knowledge of a violation of federal, state or local law, rule or regulation by the public employer.

(8) Disclosure of information pursuant to subsection (1) of this section does not waive attorney-client privilege or affect the applicability of any exemption from disclosure of a public record under ORS 192.338 (Exempt and nonexempt public record to be separated), 192.345 (Public records conditionally exempt from disclosure) and 192.355 (Public records exempt from disclosure).

(9) Notwithstanding subsection (1) of this section, information protected from disclosure under federal law, including but not limited to the federal Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191), may be disclosed only in accordance with federal law. [2016 c.73 §2]

(formerly 659.280 to 659.290)

Law Review Cita­tions

26 WLR 394-395 (1990)

Notes of Decisions

Termina­tion of employ­ment in retalia­tion for invoking Oregon Family Leave Act rights constitutes wrongful discharge in viola­tion of public policy. Yeager v. Providence Health System Oregon, 195 Or App 134, 96 P3d 862 (2004), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 659A—Unlawful Discrimination in Employment, Public Accommodations and Real Property Transactions; Administrative and Civil Enforcement, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors659A.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 659A, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano659A.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.