OAR Chapter 839 — Bureau of Labor and Industries

Division 1 WAGE COLLECTION MATTERS

Or. Admin. R. 839-001-0000 Notice of Proposed Rule

Prior to the permanent adoption, amendment, or repeal of any rule relating to wage claims enforcement matters, any rule relating to interpretive rules regarding maximum hours of work, and any rules pertaining to money collected from employees for group health insurance coverage and notification of various parties on termination of group health insurance coverage the Wage and Hour Division of the Bureau of Labor and Industries will give notice of the intended action as required in OAR 839-002-0002.

History

Statutory/Other Authority: ORS 183.335, 651.060(4) & 652
Statutes/Other Implemented: ORS 652
BLI 9-2004, f. 7-26-04, cert. ef. 7-27-04
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1996, f. & cert. ef. 10-8-96
BL 10-1992, f. & cert. ef. 7-1-92
BL 8-1990, f. & cert. ef. 5-11-90
BL 1-1982, f. & ef. 1-13-82
BL 190, f. & ef. 5-7-76
BL 184, f. & ef. 1-21-76

Or. Admin. R. 839-001-0100 Definitions for Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

As used in ORS 652.010 to 652.030 and in OAR 839-001-0100 to 839-001-0200, unless the context requires otherwise:

(1) “Administrative duties” means office or non-manual work directly related to the employer’s management policies or general business operations.

(2) "Agent of the Employer" includes any person acting as the employer's agent for purposes of assigning work, assigning hours of work, or authorizing overtime payments to employees.

(3) "Bureau" means the Bureau of Labor and Industries of the State of Oregon.

(4) "Commissioner" means the Commissioner of the Bureau of Labor and Industries.

(5) "Day" or "Day of 24 Hours" means any time period of 24 consecutive hours as determined by the employer.

(6) “Direct processing of goods” means the use of machinery in the production of manufactured goods.

(7) "Employ" includes to suffer or permit to work.

(8) "Employed in" refers to employment of employees in the actual place specified in ORS 652.010 to 652.030. Employees who are not performing duties in the named places are not "employed in" those places.

(9) "Employee" means any individual employed by an employer.

(10) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee.

(11) "Factory" means a building or set of buildings with facilities for manufacturing; the seat of some kind of production. "Factory" in the context used in these rules is a "manufacturing establishment".

(12) "Finished Forest Products" means a forest product ready for sale to a wholesaler or retailer of finished products.

(13) “Machinery” means material-handling equipment and power-driven machines powered by electricity, nuclear or fossil fuels, hydroelectric power, geothermal power or another power source other than by human hand, foot or breath.

(14) “Manufacturing” means the process of using machinery to transform materials, substances or components into new products.

(15) “Manufacturing establishment” means an establishment engaged in manufacturing.

(16) "Mill" means a building or collection of buildings with machines for manufacturing. "Mills" in the context used in these rules are "manufacturing establishments".

(17) “Perishable product” means any product that may spoil, deteriorate or undergo other material changes that render it unsuitable for the use for which it was produced. “Perishable product” includes agricultural crops, meat and fish.

(18) "Primary Duty" means duties the employee is engaged in over 50 percent of the time the employee is employed in any workweek.

(19) “Undue hardship period” means the period of time during which a perishable product must be processed after harvesting, slaughter or catch.

(20) “Workweek” means a fixed period of time established by an employer that reflects a regularly recurring period of 168 hours or seven consecutive 24-hour periods. A workweek may begin on any day of the week and any hour of the day and need not coincide with a calendar week. The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade overtime requirements.

History

Statutory/Other Authority: ORS 651.060(4), ORS 652 & OL Ch. 685 (2017 Laws)
Statutes/Other Implemented: ORS 652.010 - 652.030 & OL Ch. 685 (2017 Laws)
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
BL 8-1990, f. & cert. ef. 5-11-90

Or. Admin. R. 839-001-0125 Individual Exemptions from Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

(1) The following employees are exempt from the provisions of ORS 652.020:

(a) Any employee whose primary duty is that of a member of a logging train crew;

(b) Any employee whose primary duty is that of a guard (performing duties such as firewatch or security);

(d) Any employee whois engaged regularly in the transportation of other employees to and from work;

(e) Any employee whose primary duty is that of making necessary repairs. This includes employees conducting maintenance on buildings, equipment or machinery;

(f) Any employee engaged in emergency work pursuant to section (2) of this rule;

(g) Any employee whose primary duty is that of cleaning, guarding, repairing and otherwise caring for the living quarters and immediate surrounding areas of other employees;

(h) Any employee whose primary duty is that of feeding, grooming, guarding or otherwise caring for livestock by, among other things, cleaning and repairing the areas in which the livestock is kept;

(i) Any employee whose primary duty is to be employed in mess halls where meals are served to other employees. This would include any and all employment necessary to conduct the mess hall operations;

(j) Any employee whose primary duty is that of supervising and directing work. This includes supervisors, managers, and persons who are temporarily acting in these capacities in the absence of the named employees;

(k) Any employee whose primary duty is the loading and removal of finished forest products. This includes employees engaged in shipping or otherwise removing the final finished forest product from the establishment's premises. This applies to finished products only and not to products shipped for further processing at another location;

(l) Any employee whose principal duties are administrative in nature; or

(m) Any employee who is not engaged in the direct processing of goods in the usual course of the employee’s duties.

(2) Employees engaged in activities under emergency situations are only exempt when the emergency puts life or property in imminent danger. In order to be exempt, therefore, employees must be employed in an emergency situation which threatens to harm or destroy life or property. When the normal production process is interrupted by a breakdown of machinery or unexpected absences of employees, life and property are not normally threatened with harm or destruction. For this reason, the exemption is not applicable to normal routine operational occurrences.

(3) Employees who are party to a collective bargaining agreement are not subject to ORS 652.020, provided that:

(a) The agreement is in effect at the employee's work site;

(b) The agreement contains a provision which limits the employee's required hours of work; and

(4) Except as provided in section (5) of this rule, employees who are party to a collective bargaining agreement which, for any reasons, was not renewed, extended or not otherwise in force are not subject to ORS 652.020, provided that:

(a) The agreement was in effect at the employee's work site;

(b) The limits on the employee's required hours of work continue as if the agreement were still in effect; and

(5) Section (4) of this rule does not apply under the following circumstances:

(a) Employees who are party to the collective bargaining agreement are locked out;

(b) Employees who are party to the collective bargaining agreement are engaged in a strike; or

History

Statutory/Other Authority: ORS 651.060(4), 652 & OL Ch. 685 (2017)
Statutes/Other Implemented: ORS 652.020 & OL Ch. 685 (2017)
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
BL 8-1990, f. & cert. ef. 5-11-90

Or. Admin. R. 839-001-0127 Establishment Exemptions from Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

Until the states of Washington, Idaho, and California enact legislation similar to ORS 652.020, the provisions of that statute do not apply to employees employed in the following establishments:

(1) A sawmill. As used in this rule, a sawmill means a mill that is exclusively engaged in the manufacture and distribution of lumber made from logs by use of saws to cut the logs into various size boards.

(2) A shingle mill. As used in this rule, a shingle mill means a mill exclusively engaged in the manufacture and distribution of wooden shingles.

(3) A planing mill. As used in this rule, a planing mill means a mill exclusively engaged in the planing of lumber so as to finish the boards cut in the sawmill and in the distribution of the finished forest product.

(4) A logging camp. As used in this rule, a logging camp means an establishment which provides support for logging operations by means of housing, feeding and otherwise caring for employees engaged in logging operations by means of maintaining supplies and equipment necessary to continue logging operations.

History

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.030
BL 8-1990, f. & cert. ef. 5-11-90

Or. Admin. R. 839-001-0130 Exempt and Non-exempt Work for Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

(1) The exempt status of an employee is determined by the type of work the individual performs and the location of the work performed in any one day. As indicated in sections (2) and (3) of this rule, the exempt status of individual employees may vary from day to day.

(2) Employees performing exempt and nonexempt work are exempt from the provisions of ORS 652.020 only when they are engaged in exempt work more than 50 percent of their working time in any one day.

(3) Where a mill, factory or manufacturing establishment is a combination of an exempt and non-exempt establishment, employees who are exclusively engaged in the sawmill, shingle mill, planing mill, or logging camp areas of the establishment are exempt. However, when an employee is engaged in both exempt and non-exempt areas of the establishment, the employee is not exempt.

History

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020
BLI 13-1999, f. 9-28-99, cert. ef. 10-23-99
BL 8-1990, f. & cert. ef. 5-11-90

Or. Admin. R. 839-001-0140 Determination of the Day; Failure to Make Determination for Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

(1) The employer shall establish the beginning time and the ending time of the day to be used by the employer for purposes of complying with these rules.

(2) Once established, the beginning time of the day shall not be changed unless the change is intended to be permanent and is not designed to circumvent the provisions of ORS 652.020.

(3) If the employer fails to establish the beginning and ending times of day as provided for in section (1) of this rule, the Bureau shall consider the day to begin at the time the individual employee commences work and to end 24 consecutive hours after the work began.

History

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020
BL 8-1990, f. & cert. ef. 5-11-90

Or. Admin. R. 839-001-0143 Failure to Establish a Workweek

If an employer fails to establish the beginning day of the workweek as provided for in ORS 652.020(1)(b) and OAR 839-001-0100(19), the Bureau shall consider the workweek to begin on the day the individual commences work and to end seven consecutive days after the work began, for the period of time in which the employer failed to establish a workweek.

History

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
BL 8-1990, f. & cert. ef. 5-11-90

Or. Admin. R. 839-001-0145 Determination of Employees "Employed in" a Named Establishment for Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

As used in ORS 652.020, the term “employed in” refers to employees who are actually employed in the mill, factory or manufacturing establishment. Employees who are employed by the same employer but not employed to perform duties in a mill, factory, or manufacturing establishment are not covered by ORS 652.020 because they are not “employed in” the establishment.

History

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020 & OL Ch. 685 (2017)
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
Bl 8-1990, f. & cert. ef. 5-11-90

Or. Admin. R. 839-001-0147 Employee's Written Consent to Work up to 60 Hours in a Workweek

(1) Pursuant to ORS 652.020(2), an employer is prohibited from requiring or permitting an employee to work over 55 hours in one workweek except that the employer may permit an employee to work up to 60 hours in one workweek if the employee requests or consents in writing to work more than 55 hours in one workweek.

(2) Employers must obtain written consent or a written request from employees prior to permitting employees to work in excess of 55 hours in one workweek.

(3) The employer must retain and keep available to the commissioner a copy of each employee’s written consent or written request during the period for which the written consent or written request is in effect and for no less than one year thereafter.

(4) The commissioner shall create a template for the written consent that employers may, but are not required to, use to document the employee’s written consent and withdrawal of consent.

(5) The employee must inform the employer of the employee's withdrawal of consent in writing, seven (7) calendar days prior to the start of the workweek in which the employee no longer consents to work over 55 hours in the workweek.

History

Statutory/Other Authority: ORS 651.060(4), ORS chapter 652 & OL Ch. 685 (2017)
Statutes/Other Implemented: ORS chapter 652 & OL Ch. 685 (2017)
BLI 8-2017, adopt filed 12/27/2017, effective 01/01/2018

Or. Admin. R. 839-001-0148 Undue Hardship Notices and Employee's Written Consent

(1) Pursuant to the provisions of ORS 652.020, an employer that processes perishable products may be exempt from the restrictions on maximum workweek hours if an undue hardship exists. To claim such an exemption, an employer must provide notice of the undue hardship period to the Bureau within seven calendar days of the beginning of the hardship period permitting employees to work more than 55 hours in one workweek (or more than 60 hours if the employee has previously consented to work up to 60 hours in one workweek pursuant to ORS 652.020(2)(b) and OAR 839-001-0147). The notice submitted by the employer to the Bureau must include:

(a) The name and address of the employer;

(b) A description of the reasons for the undue hardship period;

(d) An estimate of the number of employees whose work hours will exceed the maximum workweek hours because of the undue hardship exemption;

(e) The start and end dates of any undue hardship periods previously claimed by the employer in the same calendar year;

(f) The printed name and signature of the person submitting the notice, with the date of signature.

(2) The employer’s notice of the undue hardship period may be submitted on Form WH-262, which is available to any interested person. An employer may copy this form or use a similar form provided that the form contains all of the elements of Form WH-262.

(3) When claiming an undue hardship exemption, an employer must obtain written consent from each employee whose work hours, pursuant to ORS 652.020(2)(c), will exceed the maximum workweek hours because of the undue hardship exemption. The written consent, which must be completed by the employee prior to performing work during the undue hardship period, must include:

(a) A description of the employer’s reasons for the undue hardship period;

(b) The start and expected end dates of the undue hardship period;

(c) A statement that the employer may require the employee to work up to 84 hours in a workweek for up to four workweeks during the undue hardship period;

(d) A statement that the employer may require the employee to work up to 80 hours in a workweek for the remainder of the undue hardship period;

(e) A statement that the employee consents to working up to 84 hours in a workweek for up to four weeks during the undue hardship period and up to 80 hours in a workweek for the remainder of the undue hardship period but that the employee may withdraw such consent at any time in writing, no less than seven calendar days prior to the start of the workweek in which the employee no longer consents to work over 55 hours in the workweek;

(f) A statement that the employee has the right to decline to work more than 55 hours per workweek.

(g) The printed name and signature of the employee completing the written consent, with the date of signature; and

(h) Contact information for the Bureau of Labor and Industries.

(4) To provide the written consent, an employee may use Form WH-263 or any similar form provided that the form contains all of the elements of Form WH-263. The employee’s written consent must be in the language used by the employer to communicate with the employee.

(5) The employer must retain and keep available to the Bureau a copy of each employee’s written consent during the period for which the written consent is in effect and for no less than one year thereafter.

History

Statutory/Other Authority: ORS 651.060 & ORS 652.020
Statutes/Other Implemented: ORS 652.020
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 8-2017, adopt filed 12/27/2017, effective 01/01/2018

Or. Admin. R. 839-001-0150 Civil Penalties for Violation of ORS 652.020, Maximum Working Hours in Mills, Factories and Manufacturing Establishments: Overtime Hours and Pay

As used in ORS 652.020, 652.900 and OAR 839-001-0150 to 839-001-0160:

(1) "Violation" means a transgression of any statute or rule, or any part thereof and includes both acts and omissions.

(2) "Knowingly" or "Willfully" means action undertaken with actual knowledge of a thing to be done or omitted. A person "should have known the thing to be done or omitted" if the person has knowledge of facts or circumstances which, with reasonably diligent inquiry, would place the person on notice of the thing to be done or omitted to be done.

History

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08
BL 8-1990, f. & cert. ef. 5-11-90

Or. Admin. R. 839-001-0153 Violations Separate and Distinct

Each violation of ORS 652.020 or any rule adopted pursuant thereto is a separate and distinct offense. In the case of continuing violations, each day's continuance is a separate and distinct violation.

History

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08
BL 8-1990, f. & cert. ef. 5-11-90

Or. Admin. R. 839-001-0155 Violations of ORS 652.020 for Which a Civil Penalty May Be Imposed

(1) Pursuant to ORS 652.900, the commissioner may assess a civil penalty for violations of ORS 652.020 or of these rules as follows:

(a) Failure to pay employees subject to ORS 652.020 time and one-half their regular rate of pay for all hours worked over ten in any day of 24 hours;

(b) Permitting any agent of the employer to require or permit employees to work over ten hours in any day of 24 hours when the employees are not paid time and one-half their regular rate of pay for such hours worked over ten in a day;

(d) Permitting any agent of the employer to require or permit employees to work more than 13 hours in any day of 24 hours;

(e) Requiring or permitting an employee subject to ORS 652.020 to work more hours than permitted under ORS 652.020(2)(a), (b), or (c);

(f) Requiring or permitting an employee subject to ORS 652.020 to work more than 55 hours in any one workweek without obtaining the employee’s request or consent in writing, in violation of ORS 652.020(2)(b) or (4)(b);

(g) Permitting an employee subject to ORS 652.020 to work up to the maximum hours permitted by ORS 652.020(2)(c) when the employer is not eligible for an undue hardship exemption;

(h) Failure to make available to the commissioner, upon request, a copy of an employee’s written request or consent as required by OAR 839-001-0147(3) and OAR 839-001-0148(5);

(i) Failure to provide notice of the undue hardship period to the commissioner within seven (7) calendar days of the date on which the undue hardship period began; or

(j) Requiring or permitting an employee subject to ORS 652.020 to begin a work shift less than 10 hours after the end of the employee’s previous work shift if the employee’s previous work shift totaled eight (8) or more hours, unless the employer requires the employee to work additional hours due to the disruptions in business operations caused by a power outage, major equipment breakdown, severe weather or similar emergency outside the employer's control.

(2) As provided in ORS 652.020(9)(a), notwithstanding ORS 652.900, the commissioner may assess a civil penalty against an employer that has coerced an employee into consenting to work more than 55 hours in one workweek. For the purpose of this rule, an employer will be considered to have coerced an employee into consenting to work more than 55 hours in one workweek under the following circumstances:

(a) The employer requires an employee to consent in writing to work more than 55 hours per workweek;

(b) The employer requires an employee to consent to work more than 55 hours per workweek as a condition of employment at the time of hire; or

(c) The employer requests or requires any person, including another employee, to require an employee to consent in writing to work more than 55 hours per workweek.

History

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.900 & OL Ch. 685 (2017)
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
Bl 8-1990, f. & cert. ef. 5-11-90

Or. Admin. R. 839-001-0160 Schedule of Civil Penalties for Violations of ORS 652.020

(1) Except as provided in section (4) of this rule, the civil penalty for any one violation of ORS 652.020 or any rule adopted pursuant thereto shall not exceed $1,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) When the commissioner determines to assess a civil penalty for requiring or permitting an employee to work over ten hours in a day when the employee is not paid time and one-half the regular rate of pay in violation of ORS 652.020, the minimum civil penalty to be assessed shall be $50 per day for each employee affected. For example, when the employer or an employer's agent requires or permits five employees to work over ten hours in a day for four days without paying the employees time and one-half their regular rate of pay for the hours worked over ten in a day, the minimum civil penalty to be assessed shall be $1,000 (5 employees x 4 days x $50 per day per employee = $1,000).

(3) When the commissioner determines to assess a civil penalty for requiring or permitting an employee to work more than 13 hours in any day of 24 hours, the minimum civil penalty shall be $500 per day for the first offense. For example, when an employer or an employer's agent requires or permits any number of employees to work over 13 hours in a day for four days, the minimum civil penalty shall be $2,000 (4 days x $500/day = $2,000). When the commissioner determines to assess a civil penalty for subsequent offenses, the commissioner may assess up to $1,000 for each such offense.

(4) When the commissioner determines that an employer has violated ORS 652.020 by coercing an employee into consenting to work more than 55 hours in one workweek, the civil penalty shall not exceed:

(a) $2,000 for any one violation if the employer coerced an employee to work more than 55 hours per workweek under ORS 652.0250(2)(b); or

(b) $3,000 for any one violation if the employer coerced an employee to work more than 55 hours per workweek during a period of undue hardship under ORS 652.020(4)(b).

(5) The civil penalties set out in sections (2), (3) and (4) of this rule shall be in addition to any other penalty imposed by law or rule.

(6) The civil penalty for all other violations shall be set in accordance with the determinations and considerations referred to in OAR 839-001-0496.

History

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.900 & OL Ch. 685 (2017)
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08
BL 8-1990, f. & cert. ef. 5-11-90

Or. Admin. R. 839-001-0200 Deductions for Garnishment Processing Fee

(1) If a garnishee that employs a debtor is required to make any payment under a writ of garnishment by reason of wages payable to the debtor, the garnishee may collect a processing fee as provided pursuant to ORS 18.736 for each week of wages, or fraction of a week of wages, for which a payment is made under the provisions of 18.735. The processing fee must be collected after the last payment is made under the writ. The fee shall be withheld from the wages of the debtor, and is in addition to the amounts withheld for payment to the garnishor under the writ or under any other writ delivered to the garnishee.

(2) The fee provided for in this section may not be collected if withholding of the fee would reduce the debtor's net disposable income below the minimum amount prescribed by ORS 18.385.

History

Statutory/Other Authority: ORS 651.060(4), 652, 653 & HB 3544 (2003 OL)
Statutes/Other Implemented: ORS 18.838, 652.150 & 653.261(1)
BLI 22-2010, f. 12-30-10, cert. ef. 1-1-11
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04

Or. Admin. R. 839-001-0250 Deductions for Costs of Benefits Paid by the Employer While the Employee Is on OFLA Leave

The Oregon Family Leave Act provides that notwithstanding 652.610(3), when an employer pays the employee’s portion of the cost of providing health, disability, life or other insurance coverage for an employee while the employee is on family leave, the employer may recover such cost under the following circumstances:

(1) Upon the employee’s return to work, the employer may deduct from the employee’s pay the amount of the costs it paid, provided, however, that the total amount deducted from any paycheck may not exceed 10% of the employee’s gross wages earned in the pay period covered by the paycheck.

(2) If an employee does not return to work, the employer may deduct all of the costs it paid from amounts due and owing to the employee, provided, however, that no deduction may be made if the employee fails to return to work for the following reasons:

(a) The employee’s absence from work is caused by a continuation, recurrence or onset of a serious health condition that would entitle the employee to family leave as provided for under OFLA or to benefits under ORS chapter 657B; or

(b) The employee’s absence from work is caused by circumstances beyond the control of the employee.

(3) If an employee does not return to work the employer may seek to recover amounts paid for insurance coverage on behalf of the employee by any other legal means provided however, that no legal action may be initiated if the employee failed to return to work for the reasons set out in subsections (2)(a) or (2)(b) of this rule.

(4) The deduction provided for in this rule may be made with or without the employee’s authorization. The employer shall notify the employee of the deduction before the deduction is made.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.171
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BL 9-1996, f. & cert. ef. 10-8-96

Or. Admin. R. 839-001-0300 Liability of Employer for Issuance of Dishonored Check in Payment of Wages

(1) As used in this rule:

(a) “Check” means a check, draft or order for the payment of money.

(b) “Drawee” means a person ordered in a draft to make payment pursuant to ORS 73.0103(1)(b).

(2) Pursuant to ORS 30.701, an employer that issues a dishonored check to an employee for payment of wages due is liable to the employee for damages in an amount equal to $100 or triple the amount for which the check is drawn, whichever is greater, in addition to the amount for which the check was drawn. The amount of damages may not exceed the amount for which the check was drawn by more than $500.

(3) Pursuant to the provisions of ORS 652.195, the Commissioner of the Bureau of Labor and Industries may assess a civil penalty payable to the employee in an amount equal to the statutory damages provided by ORS 30.701 against an employer that issues a dishonored check to an employee for payment of wages due.

(4) The commissioner may not assess a civil penalty as provided in this rule if:

(a) After the employee or the employee’s assignee has made written demand of the employer not less than 30 days before commencing the action, the employer pays the employee before the commencement of the action an amount of money not less than the amount for which the check was drawn and all interest that has accrued on the check under ORS 82.010 as of the date of demand; or

(b) The employee has commenced an action under ORS 30.701 against the employer for the same dishonored check.

(5) If the commissioner determines that the failure of the employer to satisfy the dishonored check at the time demand was made under subsection (4)(a) of this rule was due to economic hardship, the commissioner may waive all or part of the statutory damages provided for in section (2) of this rule.

(6) The provisions of this rule apply only to a check that has been dishonored because of a lack of funds or credit to pay the check, because the employer has no account with the drawee, or because the employer has stopped payment on the check without good cause. An employee is entitled to the remedies provided in this rule without regard to the reasons given by the employer for dishonoring the check.

(7) An employee may not bring an action under ORS 30.701 against an employer for the same dishonored check if the commissioner has assessed or proposed to assess a civil penalty under this rule.

History

Statutory/Other Authority: ORS 30.701, 651.060 & Ch. 652
Statutes/Other Implemented: ORS 652
BLI 6-2014, f. & cert. ef. 5-5-14
BLI 11-2011, f. 12-30-11, cert. ef. 1-1-12

Or. Admin. R. 839-001-0410 Definitions for Regulations Pertaining to the Payment of Wages at Termination of Employment

As used in ORS 652.140 to 652.165 and in OAR 839-001-0410 to 839-001-0480, unless the context requires otherwise;

(1) "Business day" includes Monday through Friday, exclusive of state holidays as provided in ORS 187.010, in which the business operations of the employer is conducted.

(2) "Seasonal farmworker" means any person who, for an agreed remuneration or rate of pay, performs temporary labor for another to work in the production of farm products or planting, cultivating or harvesting of seasonal agricultural crops or in the forestation or reforestation of lands, including but not limited to, the planting, transplanting, tubing, pre-commercial thinning and thinning of trees and seedlings, the clearing, piling and disposal of brush and slash and other related activities.

(3) "Seasonal reforestation worker" means "seasonal farmworker" as defined in subsection (2) of this rule.

(4) "Willfully," as used in ORS 652.150, means that which is done or omitted is done or omitted intentionally. When a person knows what the person is doing, intends to do what the person is doing and is a free agent, the person is acting willfully. An act or omission is willful even if the person did not know the act or omission was a violation of ORS 652.140 or 652.145.

(5) "Wages" means all compensation for performance of service by an employee for an employer whether paid by the employer or another person. Wages include the cash value of all compensation paid in any medium other than cash and all compensation owed an employee by an employer.

History

Statutory/Other Authority: ORS 652.165
Statutes/Other Implemented: ORS 652.140 - 652.160
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1996, f. & cert. ef. 10-8-96

Or. Admin. R. 839-001-0420 Payment of Wages at Termination of Employment

(1) Except as provided in OAR 839-001-0440 and 839-001-0490, when an employer unilaterally discharges an employee or when the employee and the employer mutually agree to the termination of employment, all of the wages that have been earned but not paid, become due and payable not later than the end of the first business day after the discharge or termination. Except as provided in subsections (3) and (5) of this rule, when the employment terminates because of discharge or mutual agreement on a Saturday, Sunday or holiday, all wages earned and unpaid must be paid by not later than the end of the first business day after the employment termination.

(2) When the employee gives the employer notice of 48 hours or more (not including Saturday, Sunday and holidays) that the employee intends to quit employment, all wages that have been earned but not paid become due and payable on the last day of the employee's employment.

(3)(a) Except as provided in subsections (b) and (c), when the employee fails to give the employer notice as provided in subsection (2) of this rule, all wages that have been earned but not paid, become due and payable within five days, excluding Saturdays, Sundays and holidays, of the date the employee quit or at the next regularly scheduled payday, whichever occurs first.

(b) If an employee has not given to the employer the notice described in subsection (2) of this rule, and if the employee is regularly required to submit time records to the employer to enable the employer to determine the wages due the employee, within five days after the employee has quit, the employer shall pay the employee the wages the employer estimates are due and payable.

(c) In the event an employee whose final payment of wages are subject to the provisions of subsection (b) submits required time records after the last day of the employee’s employment, then any additional wages due to the employee and not paid pursuant to subsection (b) must be paid within five days after the employee submits the required time records.

(4) When an employee employed pursuant to an unexpired contract which provides for a definite period of work, quits with or without notice, all wages earned but not paid become due and payable at the next regularly scheduled payday.

(5) When the employment terminates because of discharge, mutual agreement or the employee quits (with or without notice) and the employer is the Oregon State Fair and Exposition Center, a county fair or show, the County Fair Commission or other employer engaged in activities authorized by ORS 565.010 to 565.990, all wages earned and unpaid must be paid not later than the end of the second business day after the employment termination. This subsection does not apply to contractors, exhibitors or others which are not agencies, boards or commissions established in ORS 565.010 to 565.990.

(6) The provisions of this rule do not apply when the employee's employment with the employer is covered by a collective bargaining agreement, the terms of which provide for the payment of wages at termination of employment. However, if the collective bargaining agreement does not contain provisions for the payment of wages at termination of employment, the provisions of this rule are applicable.

History

Statutory/Other Authority: ORS 652.165
Statutes/Other Implemented: ORS 652.140
BLI 27-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04
BL 9-1996, f. & cert. ef. 10-8-96

Or. Admin. R. 839-001-0430 When Layoff is Considered Termination of Employment

(1) When an employee is laid off with no reasonable expectation that the employee will return to work, the layoff is considered to be a termination of employment for purposes of OAR 839-001-0420 and 839-001-0440 and the wages earned and unpaid shall become due and payable in accordance with 839-001-0420 and 839-001-0440.

(2) When an employee is laid off and the employee returns to work within 35 days, the layoff is not considered to be a termination of employment for purposes of OAR 839-001-0420 and 839-001-0440 and all wages earned and unpaid shall become due and payable at the next regularly scheduled payday following the layoff. If the layoff occurs on a regularly scheduled payday, the wages become due and payable on the same day.

(3) This rule applies to all layoffs regardless of whether an employee is subject to recall to work.

History

Statutory/Other Authority: ORS 652.165
Statutes/Other Implemented: ORS 652.140
BL 9-1996, f. & cert. ef. 10-8-96

Or. Admin. R. 839-001-0440 Special Provisions for Payment of Wages at Termination for Seasonal Farmworkers and Seasonal Reforestation Workers

(1) Unless the conditions described in ORS 652.145(1)(a) apply, when a seasonal farmworker or seasonal reforestation worker terminates employment because of discharge or mutual consent, all wages earned and unpaid become due and payable on the last day the employee works.

(2) When a seasonal farmworker or seasonal reforestation worker quits employment and gives the employer at least 48 hours notice of intent to quit, all wages earned and unpaid become due and payable on the last day the employee works.

(3) When a seasonal farmworker or seasonal reforestation worker quits employment and fails to give the employer at least 48 hours notice, all wages earned and unpaid become due and payable within 48 hours after the employee quits or on the next regularly scheduled payday, whichever comes first.

History

Statutory/Other Authority: ORS 651.060(4) & 652.165
Statutes/Other Implemented: 2013 SB 677 & ORS 652.145
BLI 6-2013, f. 12-18-13, cert. ef. 1-1-14
BL 9-1996, f. & cert. ef. 10-8-96

Or. Admin. R. 839-001-0450 Forwarding Wages and Direct Deposit of Wages at Termination of Employment

(1) All wages due and payable at termination of employment shall be forwarded by the employer to the employee to any address designated by the employee when the employee requests the employer to forward the wages.

(2) Unless an employee has made either a written or oral request that wages due be paid by check, all wages due and payable at termination of employment may be deposited, without discount, in the employee's account in a bank, national bank, mutual savings bank, credit union or savings and loan association located in Oregon.

History

Statutory/Other Authority: ORS 651.060(4) & 652.165
Statutes/Other Implemented: 2013 HB 2683 & ORS 652.110
BLI 6-2013, f. 12-18-13, cert. ef. 1-1-14
BL 9-1996, f. & cert. ef. 10-8-96

Or. Admin. R. 839-001-0460 Payment in Case of a Dispute over the Amount of Wages Due at Termination of Employment/Employee Rights and Remedies

(1) In case of a dispute over the amount of wages due and payable at termination of employment, the employer shall pay the amount of wages that the employer concedes to be due and payable to the employee. Such payment shall be made unconditionally and within the time set out in OAR 839-001-0420, 839-001-0430 and 839-001-0440.

(2) An employee may use all remedies available to the employee for the balance of wages that the employee claims are due and payable.

History

Statutory/Other Authority: ORS 652.165
Statutes/Other Implemented: ORS 652.160
BL 9-1996, f. & cert. ef. 10-8-96

Or. Admin. R. 839-001-0470 Penalty for Failure to Pay Wages on Termination of Employment

(1) When an employer willfully fails to pay all or part of the wages due and payable to the employee upon termination of employment within the time specified in OAR 839-001-0420, 839-001-0430 and 839-001-0440, the employer will be subject to the following penalty:

(a) The wages of the employee will continue to accrue from the date the wages were due and payable until the date the wages are paid or until a legal action is commenced, whichever occurs first;

(b) The employee's wages will continue to accrue at the employee's hourly rate of pay times eight (8) hours for each day the wages are unpaid;

(d) Except as provided in subsection (e), the wages of an employee that are computed at a rate other than an hourly rate (e.g. salaries) will be reduced to an hourly rate for penalty computation purposes by dividing the total wages earned during the wage claim period (the period for which wages are owed and upon which the wage claim is based) by the total number of hours worked during the wage claim period.

(e) Notwithstanding subsection (d), when wages are earned based on commission, bonus, piece rate, or other methods not based on hours worked, the wages will be reduced to an hourly rate for penalty computation purposes by dividing the total wages earned in the last 30 calendar days of employment by the total number of hours worked in the last 30 calendar days of employment. If the employee was employed for less than 30 days, the total wages earned during the entire period of employment will be divided by the number of hours worked during the entire period of employment.

(2) If the employer pays the full amount of unpaid wages within 12 calendar days after the written notice of such unpaid wages is sent by the employee or a person on behalf of the employee, the penalty may not exceed 100 percent of the employee's unpaid wages.

(a) If the employee or person on behalf of the employee fails to send the written notice of unpaid wages to the employer, the penalty may not exceed 100 percent of the employee's unpaid wages.

(b) Subsection (2) does not apply when the employer has violated ORS 652.140, 652.145 one or more times in the year before the employee's employment ceased or the employer terminated one or more other employees on the same date that the employee's employment ceased.

(c) For purposes of determining when an employer has paid wages or compensation under this subsection, payment occurs on the date the employer delivers the payment to the employee or sends the payment by first class mail, express mail or courier service to the employee's last-known address.

(3) Additional actual wages owed to an employee in any pay period for which the employer has timely paid the employee any estimated wages due and payable in compliance with OAR 839-001-0420(3)(b) are not considered unpaid wages subject to the penalty provisions of section (1) of this rule unless the employer fails to pay the employee the additional actual wages owed for such pay period within the time required under 839-001-0420(3)(c).

(4) In addition to any other penalty provided by law, the Commissioner of the Bureau of Labor and Industries may assess a civil penalty not to exceed $1000 against any person who violates ORS 652.140 and 652.145 or any rule adopted pursuant thereto.

(5) When an employer shows that it was financially unable to pay the wages at the time the wages accrued, the employer will not be subject to the penalty provided for in OAR 839-001-0470. If an employer continues to operate a business or chooses to pay certain debts and obligations in preference to an employee's wages, there is no financial inability.

History

Statutory/Other Authority: ORS 652.165
Statutes/Other Implemented: ORS 652.150
BLI 27-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1996, f. & cert. ef. 10-8-96

Or. Admin. R. 839-001-0490 Special Provisions for Payment of Wages at Termination for Employees of Businesses Primarily Engaged in the Sale of Motor Vehicles or Farm Implements Who Are Paid on a Commission Basis

(1) When an employee of a business primarily engaged in the sale of motor vehicles or farm implements who is paid on a commission basis is terminated, unpaid commissions are not owed to the employee until all the terms and conditions of any agreement between the employer and employee concerning the method of payment of commissions are fulfilled. If no such agreement exists, the commission is due with all other earned and unpaid wages or compensation as provided in ORS 652.140.

(2) Notwithstanding the provisions of OAR 839-001-0470, when an employee who is paid on a commission basis is terminated by a business that primarily sells motor vehicles or farm implements and there is a dispute between the employer and employee concerning the amount of commission due upon termination, if the amount of unpaid commission is found to be less than 20 percent of the amount of unpaid commission claimed by the employee, the penalty wage may not exceed the amount of the unpaid commission or $200, whichever is greater.

History

Statutory/Other Authority: ORS 651.060(4), 652 & 653: Other Auth HB 3544(2003 legislature)
Statutes/Other Implemented: ORS 18.838, 652.150 & 653.261(1)
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04

Or. Admin. R. 839-001-0495 Violations Separate and Distinct

Each violation of ORS 652.110, 652.140, 652.145, 652.260, 652.610(4), 652.750 or any rule adopted pursuant thereto is a separate and distinct offense. In the case of continuing violations, each day's continuance is a separate and distinct violation.

History

Statutory/Other Authority: ORS 651.060(4), 652.165 & 652.900
Statutes/Other Implemented: ORS 652.010–652.900
BLI 26-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-001-0496 Civil Penalties for Violation of Regulations Pertaining to the Payment of Wages

(1) When assessing a civil penalty for violations of ORS 652.110, 652.140, 652.145, 652.260, 652.610(4), 652.750 or any rule adopted pursuant thereto, the commissioner may consider the following mitigating and aggravating circumstances in determining the amount of the civil penalty to be assessed and cite those the commissioner finds to be appropriate:

(a) The history of the employer in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(d) Whether the employer knew or should have known of the violation.

(2) The commissioner may consider what amount of civil penalty is likely to deter an employer from committing violations in the future.

(3) Notwithstanding any other section of this rule, the commissioner shall consider all aggravating circumstances presented by any employee or any other person for the purpose of increasing the amount of the civil penalty to be assessed.

(4) It shall be the responsibility of the employer to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be assessed.

(5) Notwithstanding any other section of this rule, the commissioner shall consider all mitigating circumstances presented by the employer for the purpose of reducing the amount of the civil penalty to be assessed.

History

Statutory/Other Authority: ORS 651.060(4), 652.165 & 652.900
Statutes/Other Implemented: ORS 652.010–652.900
BLI 26-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-001-0500 Definitions for Wage Security Fund Regulations

As used in OAR 839-001-0500 to 839-001-0560 unless the context requires otherwise:

(1) “Assets” include real and personal property of whatsoever nature, excluding such property which the employer has a right to claim exempt.

(2) “Bureau” means Bureau of Labor and Industries.

(3) “Commissioner” means the Commissioner of the Bureau of Labor and Industries.

(4) “Division” means the Wage and Hour Division of the Bureau of Labor and Industries.

(5) “Employee” has the same meaning given it in ORS 652.310(2), except “employee” does not include a principal officer or director of a corporation who is also a stockholder.

(6) “Employer” has the same meaning given it in ORS 652.310(1).

(7) "Final Order" means final agency action expressed in writing as required by OAR 839-050-0420 or OAR 839-050-0430.

(8) “Fringe Benefits” means the amount of compensation which accompanies or is in addition to a person’s regular salary or wages and includes, but is not limited to, payment for profit sharing plans, retirement or pension plans, insurance, sick leave, holidays, severance, or vacation.

(9) “Fund” means the Wage Security Fund established by ORS 652.409(1); income earned on moneys in the Wage Security Fund, as provided for in 652.409(1); amounts recovered by the Commissioner on wage claims paid out of the “Fund”; and amounts of eligible wage claim payments which are disallowed because of the inability to locate the wage claimant.

(10) "Judgment" has the definition set forth in ORS 18.005.

(11) “Promptly,” as used in OAR 839-001-0500 to 839-001-0560, means the next regular payday established by the employer, or 35 days from the last payday, whichever is sooner.

(12) “Successor” means one who follows an employer in ownership or control of a business so far as such employer has not paid employees in full. A successor employer may be any successor to the business of any employer, or any lessee or purchaser of any employer’s business property for the continuation of the same business.

(13) “Wage Claim” has the same meaning given it in ORS 652.320(7). However, in the case of claims against the Fund, “wage claim” refers to actual wages earned only. It does not include any other item of compensation considered to be a fringe benefit, nor does it include any damages, civil penalties or interest otherwise provided by law.

History

Statutory/Other Authority: ORS 652.414(6) & ORS 652.414
Statutes/Other Implemented: House Bill 2818, 2021
BLI 1-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 13-2021, temporary amend filed 08/06/2021, effective 08/06/2021 through 02/01/2022
BL 9-1996, f. & cert. ef. 10-8-96
BL 8-1989, f. & cert. ef. 10-12-89
BL 5-1986, f. 6-20-86, ef. 7-1-86

Or. Admin. R. 839-001-0510 Eligibility for Wage Payment from the Wage Security Fund

(1) An employee is eligible for the payment of a wage claim from the Fund when the Commissioner makes the following determinations:

(a) The employer has ceased doing business in Oregon; and

(b) The employer is without sufficient assets to fully and promptly pay the wage claim at the cessation of doing business; and

(d) The wage claim is valid; and

(e) The amount claimed was earned within 60 days of the date of the cessation of business or if the claimant filed a wage claim before the cessation of business, the amount claimed was earned within 60 days before the last day the claimant was employed.

(2) When the Commissioner obtains a judgment or issues a final order, including an order of determination that has become final, an employee is eligible for the payment of the amount of unpaid wages due pursuant to the judgment or final order from the Fund, except as provided in OAR 839-001-0520(3) and (4).

History

Statutory/Other Authority: ORS 651.060(4) & Chapter 652
Statutes/Other Implemented: ORS 652.414 & House Bill 2818, 2021
BLI 1-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 13-2021, temporary amend filed 08/06/2021, effective 08/06/2021 through 02/01/2022
BLI 13-1999, f. 9-28-99, cert. ef. 10-23-99
BL 9-1996, f. & cert. ef. 10-8-96
BL 2-1994, f. & cert. ef. 5-27-94
Reverted to BL 8-1989, f. & cert. ef. 10-12-89
BL 9-1993(Temp), f. & cert. ef. 9-13-93
BL 8-1989, f. & cert. ef. 10-12-89
BL 5-1986, f. 6-20-86, ef. 7-1-86

Or. Admin. R. 839-001-0515 Factors to Be Considered in Making Determinations Related to Eligibility for Payment from the Wage Security Fund When Employer Has Closed

(1) In determining that an employer has ceased doing business the Commissioner may consider:

(a) Whether the business premises are no longer occupied by the employer;

(b) Whether business operations are being conducted;

(d) Whether the employer is employing employees;

(e) Any other information indicating whether the business has ceased its operations.

(2) In determining that an employer is without sufficient assets to fully and promptly pay the wage claim at the cessation of business, the Commissioner may consider:

(a) Whether the debts of the employer exceed the total amount of assets;

(b) Whether the liquid assets of the employer are not sufficient to pay the wages due;

(d) Whether the claims of a secured creditor on the assets of the employer would exceed the amount due in wages;

(e) Whether the employer has filed for protection under the Bankruptcy Code (The filing of bankruptcy in and of itself does not determine the insufficiency of assets.);

(f) Whether the assets of the employer are in the process of being involuntarily liquidated;

(g) Any other information indicating that the assets of the employer are insufficient to promptly pay the wage claim at the cessation of business.

(3) In determining that a wage claim cannot otherwise be fully and promptly paid the Commissioner may consider:

(a) Whether the employee has a right of claim against a bond or deposit held by the employer, which may be used for the purpose of paying wage claims;

(b) Whether the business is in receivership and the type of receivership;

(d) Any other information indicating that the wage claim cannot otherwise be fully and promptly paid.

(4) In determining that the wage claim is valid the Commissioner may consider:

(a) Whether there is judgment of the court;

(b) Whether there is a final administrative order issued pursuant to statute or rule;

(d) The results of the Division's investigation of the wage claim;

(e) Any other information indicating that the wage claim is valid.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 651.060(4), ORS 652.414, ORS 652.414(6) & ORS 652
Statutes/Other Implemented: House Bill 2818, 2021
BLI 1-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 13-2021, temporary amend filed 08/06/2021, effective 08/06/2021 through 02/01/2022
BLI 26-2009, f. 12-1-09, cert. ef. 1-1-10
BL 5-1986, f. 6-20-86, ef. 7-1-86

Or. Admin. R. 839-001-0520 Amount of Claim to Be Paid from the Wage Security Fund

(1) Except as provided in sections (3) and (4) of this rule, after a wage claim is determined to be eligible for payment from the Fund, the amount to be paid shall be:

(a) The unpaid amount of wages earned within 60 days before the date of the cessation of business; or

(b) If the claimant filed a wage claim before the cessation of business, the unpaid amount of wages earned within 60 days before the last day the claimant was employed.

(2) Except as provided in sections (3) and (4) of this rule, when the Commissioner obtains a judgment or issues a final order, including an order of determination that has become final, the amount to be paid from the Fund shall be the amount of unpaid wages due pursuant to the judgment or final order.

(3) The commissioner shall pay the amount of wages earned as provided in sections (1) and (2) only to the extent of $10,000.

(4) When the amount of a valid wage claim determined to be eligible for payment is greater than the amount available in the Fund for paying such claims, payments on wage claims shall be prorated in accordance with OAR 839-001-0530.

History

Statutory/Other Authority: ORS 651.060(4) & Chapter 652
Statutes/Other Implemented: ORS 652.414, OL CH. 444, 2019 & House Bill 2818, 2021
BLI 1-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 13-2021, temporary amend filed 08/06/2021, effective 08/06/2021 through 02/01/2022
BLI 12-2019, amend filed 10/31/2019, effective 01/01/2020
BLI 26-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 13-1999, f. 9-28-99, cert. ef. 10-23-99
BL 5-1986, f. 6-20-86, ef. 7-1-86

Or. Admin. R. 839-001-0525 Priority of Payments from the Wage Security Fund

The Bureau shall pay from or encumber the Fund, on a monthly basis, the administrative and operating expenses incurred while carrying out the provisions of ORS 652.414, and these rules before paying wage claims.

History

Statutory/Other Authority: ORS 652.414(6)
Statutes/Other Implemented: ORS 652.414
BL 9-1996, f. & cert. ef. 10-8-96
BL 5-1986, f. 6-20-86, ef. 7-1-86

Or. Admin. R. 839-001-0530 Wage Security Fund Amount Available for Claim Payment: Prorating Claims When Insufficient Funds are Available

(1) When the amount in the Fund is determined to be insufficient to pay in full all accumulated wage claims determined to be eligible for payment, such wage claims will be prorated.

(2) The computation of prorated amount shall be made according to the following formula:

(a) Amount Available for Payments divided by Total Amount of Eligible Wage Claims = Z

(b) Eligible Amount of Individual Wage Claim times Z = Prorated Amount to Be Paid to Wage Claimant

(3) Wage claims paid from the Fund on a prorated basis are limited to prorated amount paid, and no employee will be paid any additional amount on the same wage claim from the Fund.

History

Statutory/Other Authority: ORS 652.414(6)
Statutes/Other Implemented: ORS 652.414
BL 9-1996, f. & cert. ef. 10-8-96
BL 5-1986, f. 6-20-86, ef. 7-1-86

Or. Admin. R. 839-001-0550 Procedure for Timely and Cost Efficient Method for the Payment of Wages from the Wage Security Fund

(1) When it has been determined that an employer has ceased doing business in Oregon, the Division shall approve or deny payment from the Fund within 30 days of the date the completed wage claim has been filed or the employer has ceased doing business, whichever is later. At the Division’s discretion, the 30 day time period may be extended to 45 days.

(2) When the Commissioner obtains a judgment or issues a final order allowing the claimant to be paid from the Fund and the amount due is not paid upon demand by the Commissioner, the Division shall approve payment from the Fund within 30 days of the date after all appeals of the judgment or final order have been exhausted or the wage claimant has provided all necessary documents to proceed, whichever is later. At the Division's discretion, the 30 day time period may be extended to 45 days.

(3) Payments from the Fund for wage claims shall be made not less than once in any month.

(4) It is the responsibility of the employee to provide and keep the Division advised of the employee’s current mailing address and telephone number and the name, mailing address, and telephone number of another individual who will generally always be able to advise the Division of the employee’s whereabouts and current address and phone number.

(5) The Division will mail payments from the Fund to the last known address of the employee as reflected in the Division’s records. If the mail is returned, the Division will make one attempt to locate the employee by contacting the individual reflected in the Bureau’s records as the person who will generally always know the employee’s whereabouts.

(6) If the employee cannot be located within 45 days after the payment was first mailed to the employee’s last known current address as reflected in the Division’s records, the wage claim shall be disallowed as eligible for payment from the Fund and the amount of the payment shall revert and be irrevocably added back into the Fund.

(7) Notwithstanding the provisions of section (5) of this rule, an employee whose claim has been disallowed because the employee could not be located within the time provided for in section (5) of this rule may refile the wage claim with the Division; provided, however, that such refiled wage claim shall be deemed and treated for all purposes as a newly filed wage claim.

History

Statutory/Other Authority: ORS 652.414(6)
Statutes/Other Implemented: ORS 652.414 & House Bill 2818, 2021
BLI 6-2022, minor correction filed 04/13/2022, effective 04/13/2022
BLI 1-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 13-2021, temporary amend filed 08/06/2021, effective 08/06/2021 through 02/01/2022
BL 9-1996, f. & cert. ef. 10-8-96
BL 5-1986, f. 6-20-86, ef. 7-1-86

Or. Admin. R. 839-001-0560 Recovery from Employers When Sums Paid from the Wage Security Fund

(1) The Commissioner may perfect a security interest in the personal property of the employer in the amount of the sums paid from the Fund on a wage claim and in an additional amount of the penalty provided for in ORS 652.414(3).

(2) The penalty provided in ORS 652.414(3) of 25 percent of the amount of wages paid from the Wage Security Fund or $200, whichever amount is greater, shall be calculated based on the amount paid to each employee from the Wage Security Fund.

(3) Action to perfect a security interest shall be taken in accordance with ORS 652.414(3) and (4).

History

Statutory/Other Authority: ORS 652.414(6)
Statutes/Other Implemented: ORS 652.414
BLI 12-2011, f. 12-30-11, cert. ef. 1-1-12
BL 9-1996, f. & cert. ef. 10-8-96
BL 8-1989, f. & cert. ef. 10-12-89
BL 5-1986, f. 6-20-86, ef. 7-1-86

Or. Admin. R. 839-001-0700 Definitions for Regulations Pertaining to Moneys Collected from Employees for Group Health Insurance Coverage and Notification of Various Parties on Termination of Group Health Insurance Coverage

As used in ORS 652.710 and in OAR 839-001-0700 to 839-001-0800, unless the context requires otherwise:

(1) "Bureau" means the Bureau of Labor and Industries of the State of Oregon.

(2) "Commissioner" means the Commissioner of the Bureau of Labor and Industries.

(3) "Contract" includes a group health insurance policy.

(4) "Contractor" includes any person who enters into an agreement with an employer to provide health care services to employees. "Contractor" also includes any person who enters into an agreement with an employer to provide insurance coverage pursuant to the terms of a group health insurance policy.

(5) "Employ" includes to suffer or permit to work.

(6) "Employee" means any individual employed by an employer.

(7) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee.

(8) "Group health insurance policy" as used in ORS 652.710(3) has the same meaning as that defined in 743.522.

(9) "Health care services" includes services that provide medical and surgical attention, hospital care, x-rays, ambulance, nursing or other related service or care for sickness or injury. Health care services also include services that are provided under the terms of a group health insurance policy.

(10) "Home address" means the last known mailing address as recorded in the employer's records.

(11) "Insurer" as used in ORS 652.710(3) has the same meaning as that defined in ORS 731.106 and includes a contractor as defined in section (4) of this rule.

(12) "Promptly be paid" or "Promptly pay" means that trust funds are paid no later than the date agreed to by the employer and the contractor.

(13) "Termination" or "Terminated", as used in ORS 652.710(3), means the cessation of coverage on the last day of the period through which coverage is paid up; provided, however, that a group health insurance policy that provides for a grace period for paying premium on the policy terminates on the final day of the grace period. Termination of coverage under a group health insurance policy also includes the amendment or reissuance of a policy to delete one or more classes of certificate holders from coverage.

(14) "Trust funds" means all moneys collected by an employer from employees of the employer or moneys retained from the employee's wages for the purposes of providing or furnishing to the employee’s health care services pursuant to a contract.

(15) "Violation" means a transgression of any statute or rule or any part thereof and includes both acts and omissions.

(16) "Working day" means any day the business of the employer is open for business to its customers or day the employees of the employer are actually working on the employer's business.

History

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 652.710
BLI 26-2009, f. 12-1-09, cert. ef. 1-1-10
BL 10-1992, f. & cert. ef. 7-1-92

Or. Admin. R. 839-001-0710 Effective Dates for Civil Penalty Provisions

(1) The civil penalty provisions become effective on the following dates:

(a) The civil penalty provisions of ORS 652.710 for violations of 652.710(1) are effective September 29, 1991;

(b) The civil penalty provisions of ORS 652.710 for violations of 652.710(3) are effective July 1, 1992.

(2) The notification requirements of ORS 652.710(3) are effective July 1, 1992.

(3) The provisions of ORS 652.710(1) have been effective since June 14, 1941.

History

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 652.710
BL 10-1992, f. & cert. ef. 7-1-92

Or. Admin. R. 839-001-0720 Notification of Termination of Group Health Insurance Policy

(1) When an employer receives notice from a contractor or insurer who is providing or has provided the employer with a group health insurance policy that the policy is terminated by the insurer and when the employer does not replace the group health insurance coverage with another group health insurance policy, the employer shall notify all employees who were covered under the terminated policy.

(2) The employer shall notify the employees in writing no later than ten working days from the date the employer has received notice from the contractor or insurer that the group health insurance policy is terminated.

(3) The employer shall deliver the notice to each employee who was covered by the terminated group health insurance policy as follows:

(a) The employer shall deliver the notice to each employee affected in person; or

(b) The employer shall deliver the notice to each employee affected by mailing the notice to the employee’s home address as recorded in the employer’s records.

(4) If the employer mails the notice, the employer shall complete a certificate of mailing for each notice mailed.

(5) If the employer delivers the notice in person, the employer shall request the employee to acknowledge in writing that the employee received the notice.

(6) The notice to employees shall contain the following information:

(a) A statement to the effect that the group health insurance policy covering the employees has been terminated;

(b) A statement to the effect that the employer will no longer provide group health insurance coverage for its employees;

(d) An exact and clearly legible copy of the information supplied to the employer by the contractor or insurer pursuant to ORS 743.560.

History

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 652.710
BL 10-1992, f. & cert. ef. 7-1-92

Or. Admin. R. 839-001-0730 Records to Be Kept/Availability of Records

(1) The employer shall keep and make available for inspection by the Commissioner of the Bureau of Labor and Industries or representatives of the commissioner the following documents:

(a) A true copy of the notice delivered to employees pursuant to these rules;

(b) If the notice was mailed, the certificate of mailing for each employee to whom a notice was mailed;

(c) If the notice was distributed in person, a written acknowledgement, signed by the employee, that the employee received the notice.

(2) The documents required to be kept in section (1) of this rule shall be maintained for a period of two years from the date the notice was delivered.

History

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 652.710
BL 10-1992, f. & cert. ef. 7-1-92

Or. Admin. R. 839-001-0740 Employee Notification Form for Termination of Group Health Insurance Coverage

(1) For purposes of complying with ORS 652.710(3) and OAR 839-001-0720, there is no specific form required. The document used by the employer to notify its employees must contain all the information provided for in OAR 839-001-0720(6).

(2) When the form supplied to the employer by the contractor or insurer contains the required information and when an exact and clearly legible copy of the form is delivered to employees within the time required in ORS 652.710(3) and OAR 839-001-0720(3), the notification requirements are satisfied.

History

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 652.710
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08
BL 10-1992, f. & cert. ef. 7-1-92

Or. Admin. R. 839-001-0760 Violations Separate and Distinct

Each violation of ORS 652.710(1) and (3) is a separate and distinct offense. In the case of continuing violations, each day's continuance is a separate and distinct violation.

History

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 183.090 & 652.710
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08
BL 10-1992, f. & cert. ef. 7-1-92

Or. Admin. R. 839-001-0770 Violations of ORS 652.710(10) and (3) for Which a Civil Penalty May Be Assessed

Pursuant to ORS 652.710(4), the Commissioner may assess a civil penalty for violations of 652.710(1) and (3) as follows:

(1) Violations of ORS 652.710(1):

(a) Failure of the employer to keep trust funds in accounts separate of other accounts maintained by the employer;

(b) Failure of the employer to promptly pay the trust funds over to the contractor pursuant to a contract for health care services;

(2) Violations of ORS 652.710(3):

(a) Failure to deliver the notification required in ORS 652.710(3) to each employee covered by the terminated group health insurance policy in person or by delivering the notice by mail to the employee’s home address;

(b) Failure to deliver the notice no later than ten (10) working days to each employee after the employer has received notice from the contractor or insurer pursuant to ORS 743.560;

History

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 183.090 & 652.710
BL 10-1992, f. & cert. ef. 7-1-92

Or. Admin. R. 839-001-0780 Criteria for Determining a Civil Penalty

(1) The Commissioner may consider the following mitigating and aggravating circumstances when determining the amount of any civil penalty to be assessed and cite those the Commissioner finds to be appropriate:

(a) The history of the employer in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(d) Whether the employer knew or should have known of the violation;

(e) Whether the employer’s action or inaction has resulted in the loss of a substantive right of an employee.

(2) It will be the responsibility of the employer to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be assessed.

(3) Notwithstanding any other section of this rule, the commissioner will consider evidence of all mitigating circumstances presented by the employer for the purpose of reducing the amount of the civil penalty to be assessed.

History

Statutory/Other Authority: ORS 652.710(7), 652.710(11) & 673
Statutes/Other Implemented: ORS 183.090 & 652.710
BLI 1-2002, f. & cert. ef. 1-9-02
BL 10-1992, f. & cert. ef. 7-1-92

Or. Admin. R. 839-001-0790 Schedule of Civil Penalties for Violation of ORS 652.710(1)

(1) The civil penalty for any one violation shall not exceed $1,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) When the Commissioner determines to assess a civil penalty for violation(s) of ORS 652.710(1), the minimum civil penalty to be assessed shall be $50 for each employee affected; provided, however, that if the violation(s) of 652.710(1) result(s) in a lapse of health care insurance coverage or otherwise in the unavailability of health care services through the employer’s contract, the minimum civil penalty to be assessed shall be $500 for each employee affected.

(3) The civil penalty for all other violations shall be set in accordance with the determinations and considerations referred to in OAR 839-001-0780.

(4) When the Commissioner determines to assess a civil penalty for any violation of ORS 652.710(1) by an employer who has previously been assessed a civil penalty for violation of 652.710(1), the minimum civil penalty shall be as follows:

(a) For a second offense, double the amounts specified in sections (2) and (3) of this rule;

(b) For third and subsequent offenses, $1,000 for each violation.

(5) The civil penalties set out in this rule shall be in addition to any other penalty imposed by law or rule.

History

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 183.090 & 652.710
BL 10-1992, f. & cert. ef. 7-1-92

Or. Admin. R. 839-001-0800 Schedule of Civil Penalties for Violation of ORS 652.710(3)

(1) The civil penalties for any one violation shall not exceed $1,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) When the Commissioner determines to assess a civil penalty for violation(s) of ORS 652.710(3), if delivery of notice satisfying the requirements of 652.710(3) occurred no later than three working days prior to the date upon which employee rights to conversion coverage terminate, a minimum civil penalty of $50 per employee shall be assessed. However, if delivery of notice as required by 652.710(3) is not made at least three days prior to the expiration of conversion rights, a minimum civil penalty of $500 per employee shall be assessed.

(3) When the Commissioner determines to assess a civil penalty for the failure to provide all required information in the notice, a minimum civil penalty of $25 per employee for each notice not containing the required information.

(4) The civil penalty for all other violations shall be set in accordance with the determinations and considerations referred to in OAR 839-001-0780.

(5) When the Commissioner determines to assess a civil penalty for any violation of ORS 652.710(3) by an employer who has previously been assessed a civil penalty for violation of ORS 652.710(3), the minimum civil penalty shall be as follows:

(a) For a second offense, double the amounts specified in sections (2), (3), and (4) of this rule;

(b) For third and subsequent offenses, $1,000 for each violation.

(6) The civil penalties set out in this rule shall be in addition to any other penalty assessed or imposed by law or rule.

History

Statutory/Other Authority: ORS 652.710(11)
BL 10-1992, f. & cert. ef. 7-1-92

Division 2 PROCEDURAL RULES

Or. Admin. R. 839-002-0001 Rulemaking: Purpose of Rules

The Bureau of Labor and Industries is authorized to develop administrative rules necessary for enforcement of statutes for which it is responsible. The purpose of these rules is to guide the bureau in the rule-making process.

History

Statutory/Other Authority: ORS 183
Statutes/Other Implemented: ORS 183.335
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 1-2000, f. & cert. ef. 1-11-00

Or. Admin. R. 839-002-0002 Rulemaking: Proposed Rule Notice

Prior to the permanent adoption, amendment or repeal of any rule of the Bureau of Labor and Industries, the bureau will give notice of intended action:

(1) In the Secretary of State's Bulletin, referred to in ORS 183.360, at least 21 days prior to the rule's effective date.

(2) To persons on the bureau's mailing list and email list established pursuant to ORS 183.335(8).

(3) To the legislature, by mailing a copy of the notice to the legislators specified in ORS 183.335(15) at least 49 days before the effective date of the rule.

(4) To the general public, by posting the notice on the bureau's Website.

History

Statutory/Other Authority: ORS 183
Statutes/Other Implemented: ORS 183.335
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 7-2006, f. 3-16-06 cert. ef. 3-20-06
BLI 8-2004, f. 7-26-04, cert. ef. 7-27-04
BLI 1-2000, f. & cert. ef. 1-11-00

Or. Admin. R. 839-002-0005 Model Rules of Procedure

(1) The Attorney General's Model Rules of Procedure under the Administrative Procedures Act, are hereby adopted to govern the operations of the Bureau of Labor and Industries.

(2) The Model Rules of Procedure will govern operations of the Hearings Unit of the Bureau of Labor and Industries except to the extent they conflict with or are modified by rules in any division of chapter 839 of the Oregon Administrative Rules. The rules for contested case proceedings are set forth in OAR chapter 839, division 50.

[ED. NOTE: The full text of the Attorney General's Model Rules of Procedure is available from the office of the Attorney General or the Bureau of Labor and Industries.]

History

Statutory/Other Authority: ORS 183
Statutes/Other Implemented: ORS 183.341
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 7-2006, f. 3-16-06 cert. ef. 3-20-06
BLI 1-2000, f. & cert. ef. 1-11-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 3-1982, f. & ef. 2-9-82
BL 2-1981, f. & ef. 1-8-81
BL 5-1980, f. & ef. 8-4-80

Or. Admin. R. 839-002-0015 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Authority

(1) ORS 651.060(1) authorizes the commissioner to conduct investigations in all matters relating to the duties required under ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170, and Chapters 652, 653, 658, and 659A.

(2) ORS 651.060(1) gives the commissioner the authority to issue subpoenas ad testificandum and subpoenas duces tecum, administer oaths, obtain evidence and take testimony.

(3) These rules govern the commissioner’s gathering of information through subpoenas or testimony and establish procedures through which a subpoenaed party may object to answering questions or producing any document or other thing subpoenaed.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0020 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Definitions

(1) “Division” means the Civil Rights Division and Wage and Hour Division in the Bureau of Labor and Industries.

(2) “Document” means any existing written, printed, typed, or recorded matter of any kind or nature, however produced or reproduced, including but not limited to all mechanical, electronic, sound or video recordings or their transcripts, photographs, electronic files and computer stored data.

(3) “Other thing” means any existing tangible object that is not a “document.”

(4) “Party” means any person who has been served by a subpoena under these rules.

(5) “Person” means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character.

(6) “Subpoena ad testificandum” is a subpoena that requires an individual to appear and give testimony under oath.

(7) “Subpoena duces tecum” is a subpoena that requires the production of documents or other things.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0025 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Who and What May Be Subpoenaed

The commissioner may issue subpoenas to persons to compel testimony and the production of documents or other things that are relevant to the commissioner’s lawful investigative purpose and reasonable in scope under matters relating to the duties required under ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170, and chapters 652, 653, 658, and 659A.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0030 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Circumstances under Which a Subpoena May be Issued

(1) The commissioner may issue a subpoena at any time when the information sought is relevant to a lawful investigative purpose and is reasonable in scope. Investigative purposes include any preliminary inquiries in determining whether to pursue a formal investigation.

(2) The commissioner may issue a subpoena ad testificandum to compel a person to testify under oath when:

(a) A Division determines that the person is a material witness in an investigation being conducted by the Division under ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170, or chapters 652, 653, 658, and 659A; and

(b) The Division has been unable to interview the person after having made reasonable attempts to do so, or the person states that the person will only consent to an interview if first served with a subpoena.

(3) The commissioner may also issue a subpoena ad testificandum to compel a person to testify under oath about the contents of documents or other things produced in response to a subpoena duces tecum served on the same person.

(4) The commissioner may issue a subpoena duces tecum to compel a person to produce documents or other things when:

(a) A Division determines that the documents or other things are relevant to the Division’s inquiry being conducted under ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170, or chapters 652, 653, 658, and 659A; and

(b) The Division has made a written request for production of documents or things and the person to whom the request was made has failed to comply within the time specified by the Division, unless the commissioner finds a subpoena is necessary to protect the documents and things from destruction.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10
BLI 5-2010(Temp), f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0035 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Who May Issue Subpoenas

The commissioner or the commissioner’s designees may issue subpoenas.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0040 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Subpoena Duces Tecum

(1) A subpoena duces tecum may be issued to any person who has custody, possession, or control of documents or other things named in the subpoena duces tecum when the conditions set out in OAR 839-002-0030(4) have been met.

(2) A subpoena duces tecum issued to a corporation will be addressed to the records custodian of the corporation.

(3) A subpoena duces tecum will not require production of documents or other things less than 14 days from the date of service upon the person required to produce and permit inspection of the documents or things unless the commissioner finds a shorter period necessary to protect the documents and things from destruction or if the Division has an immediate need for the documents or things being subpoenaed.

(4) The commissioner may also command the person to whom a subpoena duces tecum is issued to produce documents and other things by mail or otherwise, at a time and place specified in the subpoena, without commanding inspection of the originals. The person to whom the subpoena is directed complies if the person produces copies of the specified items in the specified manner and certifies that the copies are true copies of all documents and other things responsive to the subpoena.

(5) The subpoenaed documents and other things must be produced at the location, time, and date required in the subpoena.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10
BLI 5-2010(Temp), f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0045 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Subpoena Ad Testificandum

(1) A subpoena ad testificandum may be issued to any person when the conditions set out in 839-002-0030(2) or 839-002-0030(3) have been met.

(2) The subpoena ad testificandum must give the person a reasonable time for preparation and travel to the place of attendance and the place of attendance must be in a suitable place in the vicinity to which testimony is applicable.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10
BLI 5-2010(Temp), f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0050 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Method of Service

(1) Except as noted in subsections (2) and (3) of this rule, subpoenas must be served in person by delivering a copy to the witness personally and, at the same time, giving or offering to the witness the fees to which the person is entitled for travel to and from the place where the witness is commanded to appear, along with one day’s attendance fee. A subpoena may be served by any person 18 years of age or older.

(2) Subpoenas ad testificandum may be served by mail under the following circumstances:

(a) The Division must have, by personal or telephone contact, confirmed the witness’s willingness to appear if subpoenaed and certify this on the return of service;

(b) The Division made arrangements for payment to the witness of fees and mileage satisfactory to the witness and pays those fees and mileage; and

(c) The subpoena is sent by certified mail to the witness more than 10 days before the date set for appearance or production of documents or other things and the Division receives a return receipt signed by the witness more than three days prior to that date.

(3) A subpoena duces tecum that commands production of documents or other things but is not accompanied by a subpoena ad testificandum may be served by mailing the subpoena to the person required to produce and permit inspection of the documents or things by first class mail and by certified or registered mail, return receipt requested.

(4) A subpoena duces tecum issued to a corporation will be served in accordance with requirements for service of summons on a corporation pursuant to ORCP 7 D(3)(b).

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658, 659A & ORCP 7
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10
BLI 5-2010(Temp), f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0055 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Fees

All persons subpoenaed by the commissioner must be paid the mileage and per diem set out in ORS 44.415(2).

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0060 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Time

(1) Any person served with an investigative subpoena may object to testifying or providing the documents or other things sought. Grounds for objections include:

(a) The information sought is irrelevant to a lawful investigative purpose;

(b) The information sought is unreasonable in scope;

(c) The witness is ordered to appear to give testimony in a place that is not suitable or not in the vicinity to which the testimony is applicable;

(d) The time and expense involved in copying the documents sought. In order to have this objection considered, a person making this objection must include a written estimate of the time involved and number of copies to be made in order to comply with the subpoena;

(e) Reasonable cause to refuse to comply; and

(f) Any other basis that may be asserted under Oregon law.

(2) Objections to subpoenas must be in writing and must be received by the Division at least seven calendar days before the time that the witness is subpoenaed to testify or provide documents or other things.

(3) If a subpoenaed witness refuses to answer specific questions while giving testimony, the witness must state the reason for the witness’s objection at the time that the witness refuses to answer the questions.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0065 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Response to Objections

(1) The Division serving a subpoena will respond in writing within fourteen calendar days of receiving objection from a person receiving the subpoena that:

(a) Alleges grounds stated in OAR 839-002-0060(1); and

(b) Is timely received under the requirements of OAR 839-002-0060(2).

(2) In its response the Division will address the specific objections raised.

(3) The Division may at its discretion prior to or upon the fourteenth calendar day to respond, engage in communication with the person objecting to the subpoena to determine whether the Division’s objective and the objecting person’s concerns can be addressed without enforcing the subpoena as provided in OAR 839-002-0080.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 4-2015, f. & cert. ef. 5-15-15
BLI 1-2015(Temp), f. 1-5-15, cert. ef. 1-6-15 thru 7-4-15
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0070 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Method of Taking Testimony

(1) When a witness appears to give testimony in response to a subpoena ad testificandum, an oath or affirmation will be administered to the witness prior to the witness’s testimony. The oath or affirmation will be administered by an officer authorized to administer oaths in Oregon, generally a notary public employed by the Bureau of Labor and Industries.

(2) The witness’s testimony will be preserved by an audio or video recording. Upon request, the Division will give the witness a copy of the recording at no cost.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0075 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Failure to Appear

If a person served with a subpoena fails to appear and has not filed any prior objections, the commissioner will conclude that the person has refused, without reasonable cause, to answer any question or to produce any document or other thing.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0080 Investigative Subpoenas for Civil Rights Division and Wage and Hour Division: Enforcement of Subpoena

If a person served with a subpoena refuses, without reasonable cause, to be examined, to answer any question, or to produce any document or other thing as required by the subpoena, the commissioner may petition the circuit court in the county in which the investigation is pending for an order directing the person to show cause why the person has not complied with the subpoena and should not be held in contempt. The commissioner shall serve the court’s order upon the person in the manner provided by ORCP 55 D.

History

Statutory/Other Authority: ORS 651.060, 658.220 & 659A.800
Statutes/Other Implemented: ORS 279C, 651, 652, 653, 658 & 659A
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 38-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-002-0405 Hospital Workforce Demographic Reports

(1) Every hospital required to submit a report to the United States Equal Employment Opportunity Commission in accordance with 42 USC 2000e-8(c) must file a copy of the report with the Bureau of Labor and Industries no later than 90 days after the date on which the hospital is required to submit the report to the Commission.

(2) Every hospital required to submit a report to the United States Department of Education in accordance with 20 USC 1094 must file a copy of the report with the Bureau no later than 90 days after the date on which the hospital is required to submit the report to the Department.

(3) Hospitals must file the required reports via email to CRD.Reporting@boli.oregon.gov.

(4)(a) A hospital may file a request for an extension of the deadline described in section (1) or (2) of this rule by submitting a request via email to CRD.Reporting@boli.oregon.gov. The request must be submitted more than 10 business days before the deadline. The request must clearly identify the name of the hospital, provide contact information for the individual submitting the request, specify whether the request applies to section (1) or (2) of this rule and identify the basis for the request.

(b) For good cause shown, the Bureau will grant a request for an extension and identify a new deadline by which the hospital must file the report.

(c) As used in this section, “good cause” includes the submission of an undue hardship application to the Commission, provided that the extension request complies with this rule and:

(A) The extension request filed with the Bureau includes a copy of the undue hardship application submitted to the Commission; and

(B) The hospital files a copy of any substantive response from the Commission granting or denying the request within 10 business days of receipt.

(5) As used in this rule, “report” has the meaning given that term in ORS 651.190, and includes Equal Employment Opportunity Data Collection Forms and survey data submitted to the National Center for Education Statistics.

History

Statutory/Other Authority: ORS 651.060 & ORS 651.190
Statutes/Other Implemented: ORS 651.190
BLI 11-2024, adopt filed 03/21/2024, effective 04/01/2024

Division 3 CIVIL RIGHTS COMPLAINT PROCEDURES

Or. Admin. R. 839-003-0000 Purpose and Scope

(1) The policy of the State of Oregon guarantees all citizens of the state the right to employment, housing, access to places of public accommodation and private vocational, professional or trade schools without unlawful discrimination.

(2) These rules govern the Civil Rights Division procedures for processing all complaints filed with the division.

(3) In any matter not governed by these rules, the Commissioner of the Bureau of Labor and Industries will exercise discretion under the law.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.003 & 659A.805
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0005 Definitions: Employment and Public Accommodation

For purposes of these rules:

(1) "Administrator" means the Administrator of the Civil Rights Division of the Bureau of Labor and Industries or a designee of the administrator.

(2) “Aggrieved person” means:

(a) A person who is, or was at any time, eligible to file a complaint under ORS 659A.820 or who is otherwise similarly situated;

(b) A person who files a complaint personally or through an attorney under ORS 659A.825; or

(3) "Bureau" means the Bureau of Labor and Industries.

(4) "Commissioner" means the commissioner of the Bureau of Labor and Industries or a designee of the commissioner.

(5) "Complaint" means for the purposes of ORS chapter 659A, (except complaints under the Oregon Safe Employment Act (OSEA) in ORS chapter 654, housing discrimination complaints under ORS 659A.145, 659A.421 or the federal Fair Housing Act, or a commissioner’s complaint under ORS 659A.825) a written, verified statement that:

(a) Gives the name and address of the aggrieved person and the respondent;

(b) Identifies the protected class basis of the complaint;

(d) Describes the actions complained of, including:

(A) The date(s) of occurrence;

(B) What the action was and how it harmed the aggrieved person; and

(6) "Days," unless otherwise stated in the text of a document, means calendar days.

(7) "Division" means the Civil Rights Division of the Bureau of Labor and Industries.

(8) "EEOC" means the federal Equal Employment Opportunity Commission.

(9) "Notice" means written information delivered personally or sent by mail to the person's last known personal or business address or business address of the person's designated representative.

(10) "OSEA" means the Oregon Safe Employment Act, ORS 654.001 to 654.295, 654.412 to 654.423, 654.750 to 654.780 and 654.991.

(11) "Protected class" means a group of people protected by law from discrimination on the basis of a shared characteristic, or a perception of that characteristic, such as race, sex, age, disability or other.

(12) "Person" has the meaning given in ORS 659A.001 (9).

(13) "Respondent" includes any person or other entity against whom a complaint or charge of unlawful practices is filed with the division or whose name has been added to such complaint or charge pursuant to ORS 659A.835(1).

(14) "Formal charges" are charges drafted and issued by the bureau's Administrative Prosecution Unit.

(15) "Substantial evidence" means:

(a) Proof that a reasonable person would accept as sufficient to support the allegations of the complaint, except complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601–3614a),

(b) Under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601–3614a), reasonable cause for the commissioner to believe the facts concerning the alleged discriminatory housing practice are sufficient to warrant the initiation of an administrative action or a civil action in circuit court.

(16) "Substantial evidence determination" means the division's written findings of substantial evidence.

(17) "Written verified complaint" means a complaint that is in writing or print; and under oath or affirmation by the aggrieved person or the parent or legal guardian of an aggrieved person who is an unemancipated minor.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 13-2013, f. & cert. ef. 12-30-13
BLI 11-2012, f. & cert. ef. 10-10-12
BLI 8-2012(Temp), f. & cert. ef. 8-8-12 thru 1-31-13
BLI 7-2012, f. & cert. ef. 8-8-12
BLI 5-2012(Temp), f. & cert. ef. 6-13-12 thru 12-10-12
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 6-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1982, f. & cert. ef. 4-22-82
BL 7-1981, f. & cert. ef. 6-25-81

Or. Admin. R. 839-003-0010 Who May File: Employment and Public Accommodation

(1) This section does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a). Complaints of housing discrimination must be filed in accordance with OAR 839-003-0200.

(2) Any person claiming to be aggrieved by an unlawful practice may file a complaint with the division personally or through an attorney.

(3) Any employee, or a representative authorized to do so by ORS 654.062(2), may file a complaint with the division alleging discrimination by an employer against the employee for raising issues of employee safety or health in the workplace.

(4) The commissioner of the Bureau of Labor and Industries or attorney general of the State of Oregon may file a complaint whenever there is reason to believe that a person has committed unlawful practices.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.820 & 659A.825
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 10-2002, f. & cert. ef. 5-17-02
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1982, f. & ef. 4-22-82
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0015 Equal Employment Opportunity Commission

If an aggrieved person wants to file a complaint alleging facts that would also violate federal discrimination statutes administered by the federal Equal Employment Opportunity Commission (EEOC) and the complaint meets federal filing requirements, the division may accept it on behalf of EEOC and co-file the complaint with EEOC. Under a work-sharing agreement between the division and EEOC the division, in most instances, will process the complaint for both agencies.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.820, 42 USC Sec. 706(c) & (d) (Title VII of the Civil Rights Act of 1964, as amended), 42 USC Sec. 101-108 (Title I of the Americans with Disabilities Act) & 29 USC Sec. 621-634 (The Age Discrimination in Employment Act of 1967)
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0020 Civil Action: Employment and Public Accommodation

(1) Civil actions in state or federal court alleging unlawful practices under 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a are covered under OAR 839-003-0235 and not under this rule.

(2) An aggrieved person alleging unlawful practices may file a civil action in state or federal court as provided in ORS 659A.870 to 659A.885.

(a) An aggrieved person is not required to file a complaint of unlawful practices with the division before filing a civil action alleging the unlawful practices.

(b) An aggrieved person filing a civil action alleging unlawful practices waives the right to file a complaint with the division with respect to those matters alleged in the civil action.

(3) After filing a complaint with the division, an aggrieved person may file a civil action in state or federal court alleging the same matters as those alleged in the complaint. The aggrieved person should notify the division of the civil action. When the division receives notice from the aggrieved person or aggrieved person’s attorney, or court documents indicating that such a civil action has been filed, the division will dismiss the complaint. The division will notify the aggrieved person and respondent that the division has dismissed the complaint.

(4)The commissioner will notify the aggrieved person in writing of the right to file a civil action as provided in ORS 659A.870 to 659A.885, when a complaint is dismissed by the division or on the one-year anniversary of the complaint filing, whichever occurs first. Except as provided in section (5) of this rule, the aggrieved person has 90 days from the notice mailing date to file a civil action.

(5) A civil action under ORS 659A.885 alleging an unlawful practice in violation of ORS 659A.403 or 659A.406 (public accommodation) must be commenced within one year of the occurrence of the unlawful practice, whether or not the aggrieved person first files a complaint with the division.

(6) An aggrieved person filing a complaint with the division alleging unlawful practices by a public body or any officer, employee or agent of a public body, as defined in ORS 30.260, need not file a tort claim notice with the public body. However, ORS 30.275 requires a tort claim notice be sent by the aggrieved person to the public body within 180 days of the alleged unlawful practice if: the aggrieved person files a civil action in court instead of filing a complaint with the division; or a complaint is dismissed by or withdrawn from the division, and the aggrieved person then files a civil action. The division encourages aggrieved persons filing complaints against public bodies to file a tort claim notice at the same time they file the complaint.

(7) A civil action or an action for a writ of mandamus alleging breach of a settlement agreement to which the division is a party may be filed as provided by ORS 659A.840 and 659A.860 in the manner provided by ORS 659A.885(3). An aggrieved person may instead file a complaint with the commissioner to seek enforcement of a settlement agreement to which the division is a party, within one year after the act or omission alleged to be a violation of the agreement. The commissioner will process the complaint in the same manner as provided for a complaint filed under ORS 659A.820.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.800- 659A.890
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 13-2013, f. & cert. ef. 12-30-13
BLI 11-2012, f. & cert. ef. 10-10-12
BLI 8-2012(Temp), f. & cert. ef. 8-8-12 thru 1-31-13
BLI 7-2012, f. & cert. ef. 8-8-12
BLI 5-2012(Temp), f. & cert. ef. 6-13-12 thru 12-10-12
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 6-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1982, f. & cert. ef. 4-22-82
BL 7-1981, f. & cert. ef. 6-25-81

Or. Admin. R. 839-003-0025 Filing a Complaint: Employment (other than OSEA) and Public Accommodation

(1) Complaints under the Oregon Safe Employment Act (OSEA), which includes ORS 654.001 to 654.295, 654.412 to 654.423, 654.750 to 654.780 and 654.991, must be filed in accordance with OAR 839-003-0031.

(2) Complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) must be filed in accordance with OAR 839-003-0200, or 839-003-0245 (Commissioner’s Housing Complaint).

(3) Commissioner’s complaints other than commissioner’s housing complaints must be filed in accordance with OAR 839-003-0100.

(4) An aggrieved person or the aggrieved person's attorney may file a complaint alleging unlawful practices, in person or by mail, with the division at any bureau office in the state of Oregon. The complaint must meet the standards provided in OAR 839-003-0005(4).

(5) The filing date is the date the division receives a complaint that meets the standards provided in OAR 839-003-0005(4).

(6) A complaint must be filed with the division no later than one year after the alleged unlawful practice occurred. If the alleged unlawful practice is of a continuing nature, the right to file a complaint exists so long as the person files the complaint within one year of the most recent date the unlawful practice occurred.

(7) An aggrieved person alleging constructive discharge from employment must file a discrimination complaint with the division within one year of the date the discharge occurred.

(8) The procedures for filing a complaint are as follows:

(a) An aggrieved person or the aggrieved person's attorney makes an inquiry to the division;

(b) The division may provide the aggrieved person or the aggrieved person's attorney with a letter of information and/or questionnaire to assist in determining whether there is a basis for filing a complaint;

(c) If the division determines the aggrieved person has a basis for filing a complaint, the division will draft a complaint based upon the information provided by the aggrieved person and send or give the complaint to the aggrieved person or the aggrieved person's attorney for review. The aggrieved person or the aggrieved person's attorney will request any necessary changes to the complaint.

(d) The aggrieved person will verify and sign the complaint. The complaint will then be submitted to the division.

(e) If the aggrieved person is an unemancipated minor the complaint must be signed by the minor and the parent or legal guardian of the minor.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 654.062 & 659A
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 7-2012, f. & cert. ef. 8-8-12
BLI 5-2012(Temp), f. & cert. ef. 6-13-12 thru 12-10-12
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 6-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 29-2007, f. 9-27-07 cert. ef. 10-1-07
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 29-2007, f. 9-27-07 cert. ef. 10-1-07
BLI 19-2007(Temp), f. & cert. ef. 7-18-07 thru 1-1-08
BLI 12-2004, f. 10-22-04 cert. ef. 10-25-04
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 2-1998, f. & cert. ef. 2-3-98
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0031 Filing a discrimination complaint under the Oregon Safe Employment Act (OSEA)

(1) An aggrieved person or the aggrieved person's attorney may file a complaint alleging a violation of ORS 654.062(5) online, by mail or in person at any Bureau office in the state of Oregon.

(2) “Complaint” means a written statement signed by the aggrieved person that:

(a) Gives the name and address of the aggrieved person and the respondent;

(b) Identifies the protected activity that forms the basis of the complaint;

(d) Describes the actions complained of, including:

(A) The date(s) of occurrence;

(B) What the action was and how it harmed the aggrieved person; and

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 654.062 & ORS 659A.800 - 659A.865
BLI 3-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 13-2013, f. & cert. ef. 12-30-13
BLI 7-2012, f. & cert. ef. 8-8-12
BLI 5-2012(Temp), f. & cert. ef. 6-13-12 thru 12-10-12

Or. Admin. R. 839-003-0040 Amendment of Complaints: Employment and Public Accommodation

(2) The division may amend a complaint to correct technical defects and to add additional persons as respondents. The division may amend a complaint on its own initiative or at the aggrieved person’s request (with the division's agreement) at any time prior to the issuance of formal charges, except that respondents may only be added during the course of investigation. Examples of technical defects include: clerical errors, additions or deletions, name and address corrections, and statute or rule citation errors.

(3) A complaint may be amended to add a protected class only if the addition is supported by facts already alleged. New facts may not be added. If new facts are alleged, the aggrieved person must file a new complaint meeting the standards provided in OAR 839-003-0005(5).

(4) Amended complaints need not be verified or signed by the aggrieved person.

(5) The division will send a copy of the amended complaint to the aggrieved person and all respondents.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.820
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 6-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 2-2005, f. 1-6-05, cert. ef. 1-7-05
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 2-2005, f. 1-6-05, cert. ef. 1-7-05
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0045 Withdrawal of Complaint: Employment and Public Accommodation

(1) This rule does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601–3614a). The withdrawal of a housing discrimination complaint is addressed in OAR 839-003-0210.

(2) An aggrieved person may voluntarily withdraw a complaint at any time by giving the division written notice of the aggrieved person’s decision to withdraw. If the aggrieved person wants a federal "right to sue letter," the aggrieved person must provide a written request to EEOC or to the division. If the aggrieved person makes the request to the division, the division will forward the request to EEOC.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 10-2002, f. & cert. ef. 5-17-02
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0050 Administrative Dismissal: Employment and Public Accommodation

(1) This section does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a). Administrative dismissal of a housing discrimination complaint is addressed in OAR 839-003-0215.

(2) The division will dismiss the complaint if it determines that the bureau has no jurisdiction over the allegations of the complaint.

(3) The division may dismiss the complaint if the aggrieved person files a proceeding, based on the same set of facts, with another state or federal agency having the authority to provide remedy to the aggrieved person for the alleged discrimination.

(4) If an aggrieved person or the aggrieved person’s attorney fails to cooperate with the division, the division may dismiss the complaint.

(5) The aggrieved person must notify the division in writing of address and telephone number changes. When an aggrieved person cannot be located by reasonable efforts, the division may dismiss the complaint.

(6) The division will dismiss a complaint unless substantial evidence of unlawful discrimination is found. Such dismissal notice will include a statement that the complaint has been dismissed and a notice of the aggrieved person’s right to file a civil action, if such right exists.

(7) The division will dismiss complaints alleging violation of federal discrimination statutes administered by EEOC (see OAR 839-003-0015) in accordance with federal requirements.

(8) The division may elect to administratively dismiss a complaint without investigation. In such instances, the division will notify the aggrieved person and respondent of the dismissal and issue notice of the aggrieved person’s right to file a civil action, if such right exists.

(9) The division will dismiss a complaint if it learns that the aggrieved person has filed a civil action alleging the same matters, as provided in OAR 839-003-0020.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 30.680, 659A.835, 659A.850 & 659A.870 - 659A.885
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 10-2002, f. & cert. ef. 5-17-02
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0055 Conciliation Agreements Prior to Completion of the Investigation

As used in enforcing ORS chapter 659A, including housing discrimination under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a):

(1) The division encourages aggrieved persons and respondents to resolve complaints by mutual agreement at any time. The division will facilitate settlement negotiations between the aggrieved person and respondent, as provided in this rule, at any time during the investigation.

(2) If the aggrieved person and respondent agree upon settlement, the division will draft a settlement agreement that states:

(a) That a "no fault" settlement has been reached;

(b) That the aggrieved person, the respondent and the Civil Rights Division accept the terms of the agreement as a resolution of the complaint;

(c) The specific action(s) the aggrieved person and respondent will take as a result of the complaint settlement and the time within which the action(s) will be taken; and

(d) That the division may investigate any alleged breach of the agreement.

(3) The settlement agreement will not include release language that applies to any forum other than the Civil Rights Division.

(4) The aggrieved person, the respondent and a representative of the division will sign the division's settlement agreement. Upon execution of this agreement, the division will notify the aggrieved person and respondent that the complaint is dismissed. The aggrieved person and respondent will receive copies of the signed agreement.

(5) The division may allow the aggrieved person and the respondent to enter into a private agreement with release language in addition to the division's agreement. The division will not be a party to nor enforce private agreements and they do not become part of the agency record.

(6) Nothing in these rules is intended to preclude private settlement between the aggrieved person and the respondent.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.835, 659A.840 & 659A.850
BLI 10-2016, f. & cert. ef. 11-8-16
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0060 Fact-Finding Conference

(1) This rule applies to complaints of unlawful practices, including housing discrimination under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a).

(2) At its discretion, the division may hold a fact-finding conference. This conference may encompass part or all of the division's investigation of the complaint. The aggrieved person and the respondent will attend the conference and a division representative will conduct the conference. The purposes of the conference will be to:

(a) Review evidence regarding the complaint;

(b) Identify the undisputed elements of the complaint;

(d) Attempt to settle the complaint.

(3) The division will schedule the conference, notifying the aggrieved person and the respondent of the time and place. The division may require the aggrieved person and the respondent to provide information and documents relevant to the complaint. The division may issue subpoenas ad testificandum to compel the respondent's representatives to attend the conference and issue subpoenas duces tecum to compel the production of documents at the conference.

(4) The conference may be rescheduled, subject to the division's approval, at the request of the aggrieved person or the respondent, or at the division’s discretion.

(5) The aggrieved person’s failure to attend the conference may cause the complaint to be administratively dismissed if the division determines that the aggrieved person has failed to cooperate pursuant to OAR 839-003-0050(3).

(6) If the aggrieved person attends the conference but the respondent's representatives fail to attend, the division representative may proceed based on the information in the division's possession.

(7) The respondent's representatives at a fact-finding conference should include persons with:

(a) Knowledge of the facts bearing on the complaint; and

(b) Authority to negotiate a settlement agreement.

(8) The aggrieved person and the respondent may be accompanied by legal counsel, but counsel's role is strictly limited to providing legal advice to the counsel's client.

(9) The division's representative conducting the conference may:

(a) Question the participants about facts alleged in the complaint, or the response;

(b) Ask for additional statements and documentation from the aggrieved person and the respondent;

(d) Exclude witnesses with the exception of the aggrieved person, the respondent and counsel;

(e) Order unruly participants to leave the conference;

(f) Audio-record the conference with the knowledge of the participants;

(g) Attempt to negotiate a settlement agreement between the parties; and

(h) Recess or terminate the conference at any time.

(10) If the conference does not result in settlement, the division will either continue the investigation or dismiss the complaint. This subsection does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a).

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.800, 659A.850 & 659A.860
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0065 Investigations: Employment and Public Accommodation

(1) This rule does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a). Investigation of housing discrimination complaints is addressed in OAR 839-003-0220.

(2) The division may investigate the allegations contained in a complaint to determine objectively whether there is substantial evidence of unlawful discrimination. The division will determine the method by which complaints will be investigated or otherwise processed. The division will not investigate allegations occurring more than one year prior to the date the complaint was filed unless the allegations constitute a continuing violation or the circumstances occurring more than one year prior to the date the complaint was filed pertain to timely allegations.

(3) The investigation may include interviews with the aggrieved person, the respondent’s representatives, and any other persons whom the division chooses to interview. The investigation may also involve the examination and analysis of written documents.

(4) The investigator may audio-record statements with the knowledge of the participants.

(5) The respondent has the right to have a representative present during interviews of current supervisory employees.

(6) The respondent's current, non-supervisory, or former employees, may request that a representative for the respondent be present during interviews by a division representative.

(7) An aggrieved person, respondent or witness interviewed by the division may request a copy of the summary report of the individual's own interview. The division may request that the aggrieved person, respondent or witness confirm by signature that the summary report is an accurate representation of the interview. The aggrieved person, respondent or witness may submit to the division additional comments regarding the interview.

(8) The division representative may make written request to the respondent for documents, records, files or other sources of evidence. The respondent will provide such information within 21 days of the date of the division's written request. The division may grant the respondent additional time in which to respond.

(9)The division may issue subpoenas compelling division access to premises, records and witnesses. Failure to respond to a subpoena may result in the division making a determination based on available information.

(10) Upon conclusion of the investigation, the division will either issue a substantial evidence determination or will dismiss the complaint. The division will mail a copy of the substantial evidence determination or dismissal notice to the aggrieved person and respondent.

(11) If the division does not find substantial evidence of unlawful discrimination, the division will dismiss the complaint, notify the aggrieved person and respondent of the dismissal and notify the aggrieved person of the right to file a civil action, if such right exists.

(12) If the division finds substantial evidence of unlawful discrimination, the complaint may be assigned to a division representative for settlement. However, the commissioner may proceed directly to a contested case hearing if the interests of justice so require.

(13) A substantial evidence determination or dismissal may not be appealed to the division.

(14) The division may reopen a case at its own discretion.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.800, 659A.805, 659A.835 & 659A.870 - 659A.885
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 10-2002, f. & cert. ef. 5-17-02
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 2-1998, f. & cert. ef. 2-3-98
BL 4-1996, f. & cert. ef. 3-12-96
BL 2-1993, f. 3-25-93, cert. ef. 4-1-93
BL 12-1992(Temp), f. & cert. ef. 11-3-92
BL 12-1982, f. & ef. 8-10-82
BL 13-1981, f. & ef. 11-18-81
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0070 Settlement Process After Substantial Evidence Determination: Employment and Public Accommodation

(1) This section does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a). The settlement process after a substantial evidence determination in housing discrimination complaints is addressed in OAR 839-003-0225.

(2) If the division finds substantial evidence of unlawful practices, the division may seek to eliminate the effects of the unlawful discriminatory act(s) by conference, settlement and persuasion. The division will facilitate settlement negotiations between the aggrieved person and respondent as provided in OAR 839-003-0055.

(3) If no settlement agreement is reached in the period of time set aside for settlement after a substantial evidence determination, the division retains the discretion to further negotiate settlement, administratively dismiss the complaint, or proceed to a contested case hearing.

(4) The aggrieved person may withdraw the aggrieved person’s own complaint at any time.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.835 & 659A.840
BLI 10-2016, f. & cert. ef. 11-8-16
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 10-2002, f. & cert. ef. 5-17-02
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0080 Access to Records in Investigative Files

(1) Investigatory information relating to any complaint filed under ORS 659A.820 or 659A.825, until such time as the complaint is resolved under ORS 659A.835, or a final order is issued under ORS 659A.850, is exempt from disclosure under Oregon Public Records Law (ORS 192.410 to 192.505) unless the public interest requires disclosure in the particular instance, as determined by the division.

(2) Section (1) of this rule applies to all records in the investigative file of a complaint other than the complaint document.

(3) Notwithstanding sections (1) and (2) of this rule, an aggrieved person, respondent or witness interviewed by the division may request a copy of the summary report of the individual's own interview, and may request to inspect or receive copies of records that the individual has given to the division.

(4) After a complaint is closed, any person may request to inspect or obtain a copy of the file as provided under Oregon Public Records Law by following the procedures set out by the division in the case closing letter, or by following the procedures for requesting public records as set out on the Bureau of Labor and Industries’s web site at http://www.oregon.gov/boli/Pages/Public-Records-Requests/Landing.aspx.

(5) The division will not disclose information prohibited from disclosure by ORS 659A.840(6) or by any other state or federal law or under any contractual agreement between the bureau and federal, state and local agencies.

(6) An aggrieved person’s or respondent's designation of information as confidential will not supersede the Oregon Public Records Law.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 192.440(3) & 192.501(8)
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0085 Subpoenas

As used in enforcing ORS chapter 659A, including housing discrimination under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a):

(1) The commissioner or the commissioner's designee may issue a subpoena to require:

(a) The presence and testimony of witnesses;

(b) The production of evidence, including but not limited to books, records, correspondence or documents in the possession or under the control of the person subpoenaed; and

(2) If any person fails to comply with a subpoena issued under this rule, the commissioner may initiate the legal procedures necessary to enforce compliance.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.800(4)
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 10-2002, f. & cert. ef. 5-17-02
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0090 Remedy: Employment and Public Accommodation

(1) This section does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a). Remedies in complaints of housing discrimination are addressed in OAR 839-003-0230.

(2) In cases of unlawful employment practices, remedy includes, but is not limited to:

(a) Employment or reemployment;

(b) Wages or other benefits lost due to the unlawful practice;

(d) Compensation for emotional distress and impaired personal dignity; and

(e) Interest.

(3) Consideration of all acts alleged to comprise a hostile work environment in a complaint, including alleged acts occurring outside the one year statute of limitations for filing a complaint, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile work environment takes place within the statutory period.

(4) In order to recover damages for lost wages, the aggrieved person will generally be required to mitigate damages by seeking employment.

(a) Earned income from employment may be deducted from lost wage damages.

(b) In most cases, unearned income such as unemployment or public assistance benefits will not be deducted from lost wage damages.

(5) Settlements of complaints and the awards in commissioner's Final Orders do not necessarily include all possible remedies named in sections (2) to (4) of this rule. Nothing in this rule will be construed to limit or alter the statutory powers of the commissioner to protect the rights of persons similarly situated to the aggrieved person or to order the performance of an act or a series of acts designed to eliminate the effect of any unlawful practice found.

(6) The commissioner may order the respondent to eliminate the effects of any unlawful practice found and may require respondent to:

(a) Perform a designated act or series of acts that are calculated to carry out the policy of these rules in order to eliminate the effects of an unlawful practice and to protect the rights of those affected;

(b) Take action and submit reports to the commissioner on the manner of compliance with the terms and conditions specified in the commissioner's order or agreement;

(c) Refrain from any action prohibited by the order or agreement that would jeopardize the rights of the individuals or groups named in the complaint or would frustrate the purpose and the policy of these rules and relevant statutes.

(7) When the respondent makes an offer of remedy, the division will inform the aggrieved person of the offer. If the aggrieved person does not accept an offer that the division has determined will eliminate the effects of the unlawful practice, the division may dismiss the complaint.

(8) Any settlement agreement signed by the division or order issued by the commissioner may be enforced by mandamus or injunction or by civil action to compel specific performance.

History

Statutory/Other Authority: ORS 659A.805 & ORS 651.060
Statutes/Other Implemented: ORS 659A.800 - 659A.865
BLI 12-2023, minor correction filed 08/03/2023, effective 08/03/2023
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 13-2013, f. & cert. ef. 12-30-13
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 8-2006, f. 3-16-06 cert. ef. 3-20-06
BLI 20-2005, f. 10-20-05, cert. ef. 10-21-05
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & cert. ef. 6-25-81

Or. Admin. R. 839-003-0095 Enforcement of Settlement Agreements and Orders: Employment and Public Accommodation

(1) This section does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a). Enforcement of settlement agreements and orders in housing cases is addressed in OAR 839-003-0240.

(2) The commissioner or any person aggrieved by the violation of the terms and conditions of any settlement agreement may file a civil action or an action for a writ of mandamus alleging breach of a settlement agreement to which the division is a party as provided under ORS 659A.840 and 659A.860 in the manner provided by ORS 659A.885(3) for unlawful practices.

(3) The commissioner and any person aggrieved by the violation of the terms and conditions of a cease and desist order issued by the commissioner whether by a respondent or by any agent or successor in interest of the respondent, may bring a civil action in the manner provided by ORS 659A.885 (3) and recover the same relief as provided by ORS 659A.885 (3) for unlawful practices.

(4) An aggrieved person may also file a complaint with the commissioner to seek enforcement of a settlement agreement to which the division is a party, within one year after the act or omission alleged to be a violation of the agreement. The commissioner will process the complaint in the same manner as provided for a complaint filed under ORS 659A.820.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.850, 659A.860 & 659A.865
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 10-2002, f. & cert. ef. 5-17-02
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 7-1981, f. & ef. 6-25-81

Or. Admin. R. 839-003-0100 Commissioner’s Complaint: Employment and Public Accommodation

(1) This section does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a). Commissioner’s complaints of housing discrimination are addressed in OAR 839-003-0245.

(2)The commissioner of the Bureau of Labor and Industries may make, sign and file a complaint whenever the commissioner has reason to believe that any person or group of persons has been denied rights due to an unlawful practice or employment practice. The complaint will be processed in the same manner as any other complaint filed under OAR 839-003-0025.

(3) The commissioner may identify an aggrieved person or persons in a commissioner’s complaint, by name, pseudonym or by general description as being aggrieved by an alleged unlawful practice or otherwise similarly situated to a person eligible to file a complaint under ORS 659A.820.

(4) Any cease and desist order issued in a proceeding in which the commissioner filed a complaint may, in addition to any other action authorized by law, include remedies for an aggrieved person or persons.

(5) In the matter of concurrent complaints, nothing in these rules will be construed to:

(a) Require or prohibit the filing of a commissioner's complaint involving the same or similar issues or allegations stated in any other complaint filed with the division or circuit court by an individual under ORS 659A.820, 659A.825, or 659A.885;

(b) Require or prohibit the continued processing or initiation of a commissioner's complaint in the event that a complaint filed with the division or circuit court by an individual under ORS 659A.820, 659A.825, or 659A.885, is resolved or dismissed, with or without remedy to the individual; or

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.800 - 659A.865
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 13-2013, f. & cert. ef. 12-30-13
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 10-2002, f. & cert. ef. 5-17-02
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2000, f. & cert. ef. 3-24-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 11-1986, f. & ef. 10-29-86
BL 7-1985(Temp), f. & ef. 10-17-85

Or. Admin. R. 839-003-0200 Filing a Housing Discrimination Complaint

(1) An aggrieved person alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) includes a person alleging they have been injured by an unlawful practice or discriminatory housing practice or will be injured by an unlawful practice or discriminatory housing practice that is about to occur.

(2) An aggrieved person alleging unlawful practices under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a), or the person's attorney, or the commissioner may file a complaint, in person or by mail, with the division at any bureau office in the state of Oregon. Complaint means a written statement signed by the aggrieved person that:

(a) Gives the name and address of the aggrieved person and the respondent;

(b) Describes the acts or omissions alleged to be an unlawful practice, including those acts or omissions the aggrieved person believes are about to occur and;

(3) The filing date is the date the division receives a complaint that meets the standards contained in OAR 839-003-0200(2).

(4) An aggrieved person must file a complaint with the division no later than one year after the alleged unlawful practice. If the alleged unlawful practice is of a continuing nature, the right to file a complaint exists so long as the aggrieved person files the complaint within one year of the most recent date the alleged unlawful practice occurred.

(5) The procedures for filing a complaint are as follows:

(a) An aggrieved person or the aggrieved person's attorney makes an inquiry to the division;

(b) The division may provide the aggrieved person or the aggrieved person's attorney with a letter of information and/or questionnaire;

(c) If the division determines the aggrieved person has a basis for filing a complaint, the division will draft a complaint based upon the information provided by the aggrieved person and send or give the complaint to the aggrieved person or the aggrieved person's attorney for verification. The aggrieved person or the aggrieved person's attorney will request any necessary changes to the complaint.

(d) The aggrieved person will verify and sign the complaint. The complaint will then be submitted to the division.

(e) If the aggrieved person is an unemancipated minor, the complaint must be signed on behalf of the minor by the parent or legal guardian of the minor.

(6) The division will serve notice upon the aggrieved person acknowledging the filing of the complaint and advising the aggrieved person of the time limits and choice of forums provided under ORS chapter 659A and the federal Fair Housing Act (42 U.S.C. 3601 – 3614a).

(7) Within 10 days after the filing of a complaint, the division will serve the respondent with a copy of the original complaint that identifies the alleged discriminatory housing practice and a notice that advises the respondent of the procedural rights and obligations of the respondent, including the respondent’s right to file an answer to the complaint.

(8) Each respondent may file, not later than 10 days after receipt of notice from the division, an answer to such complaint.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: 659A.145, 659A.421, 659A.820 & 42 U.S.C. 3601 et seq.
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 11-2012, f. & cert. ef. 10-10-12
BLI 8-2012(Temp), f. & cert. ef. 8-8-12 thru 1-31-13
BLI 7-2012, f. & cert. ef. 8-8-12
BLI 5-2012(Temp), f. & cert. ef. 6-13-12 thru 12-10-12
BLI 6-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-003-0205 Amending a Housing Discrimination Complaint

(1) The division may amend a complaint to correct technical defects, to add additional persons as respondents and to add additional information found during the investigation of a complaint, including new factual allegations. The division may amend a complaint on its own initiative or at the aggrieved person’s request (with the division's agreement) at any time prior to the issuance of formal charges, except that respondents may only be added during the course of investigation. Examples of technical defects include: clerical errors, additions or deletions, name and address corrections, and statute citation errors.

(2) Within 10 days after identifying an additional person who will named as a respondent, the division will serve the person with a copy of the complaint that identifies the alleged discriminatory housing practice and a notice that advises the person of the procedural rights and obligations of the person, including the person’s right to file an answer to the complaint.

(a) Such notice, in addition to meeting the requirements of subsection (1)(a), will explain the basis for the division’s belief that the person to whom the notice is addressed is properly joined as a respondent.

(b) Each respondent may file, not later than 10 days after receipt of notice from the division, an answer to such complaint.

(3) The division will send a copy of the amended complaint to the aggrieved person and all respondents.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.145, 659A.421 & 659A.820
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-003-0210 Withdrawal of a Housing Discrimination Complaint

An aggrieved person may voluntarily withdraw a complaint at any time by giving the division written notice of the aggrieved person’s decision to withdraw. The division will then close the case.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.145 & 659A.421
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-003-0215 Administrative Dismissal of a Housing Discrimination Complaint

(1) The division will dismiss the complaint if it determines that the bureau has no jurisdiction over the allegations of the complaint.

(2) If an aggrieved person or the aggrieved person’s attorney fails to cooperate with the division, the division may dismiss the complaint.

(3) The aggrieved person will notify the division in writing of address and telephone number changes. When an aggrieved person cannot be located by reasonable efforts, the division may dismiss the complaint.

(4) The division will dismiss a complaint unless substantial evidence of unlawful practices is found. The division will provide written notice of such dismissal to the aggrieved person and respondent.

(5) The division cannot issue a finding of substantial evidence of discrimination after an aggrieved person has filed a civil action alleging the same matters as provided in OAR 839-003-0235, and the trial for the civil action has commenced.

(6) The division will dismiss complaints alleging discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) administered by the U.S. Department of Housing and Urban Development in accordance with federal requirements.

(7) The division will notify the aggrieved person in writing of the right to file a civil action in state court, as provided in ORS 659A.870 to 659A.885, when a complaint is dismissed by the division. An aggrieved person filing a civil action against a public body must also file a tort claim notice as required by ORS 30.275.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 30.680, 659A.145, 659A.421, 659A.835, 659A.850 & 659A.870 - 659A.885
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-003-0220 Housing Discrimination Investigations

(1) The division will investigate the allegations contained in any complaint filed under ORS 659A.820 or 659A.825 alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) to determine whether there is substantial evidence of unlawful discrimination. The division will determine the method by which complaints will be investigated or otherwise processed. The division will not investigate allegations occurring more than one year prior to the date the complaint was filed unless the allegations constitute a continuing violation or the circumstances occurring more than one year prior to the date the complaint was filed pertain to timely allegations.

(2) The division will commence an investigation of any complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) within 30 days after the timely filing of the complaint.

(3)(a) At the end of each investigation of a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) the division will prepare a final investigative report containing:

(A) The names and dates of the contacts with witnesses;

(B) A summary and the dates of correspondence and other contacts with the aggrieved person and the respondent;

(D) A summary of witness statements; and

(E) Answers to interrogatories.

(b) A final investigative report under this section may be amended if additional evidence is later discovered.

(c) The division will make the final investigative report available, upon request, to both the aggrieved person and the respondent.

(4) The division will complete an investigation of any complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) within 100 days after the filing of the complaint, unless it is impracticable to do so. If the division is unable to complete the investigation of the complaint within 100 days after the filing of the complaint the division will notify the aggrieved person and respondent in writing of the reasons for not doing so.

(5) The division will make final disposition of any complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) within one year after the filing of the complaint, unless it is impracticable to do so. If the division is unable to make final disposition of the complaint within one year the division will notify the aggrieved person and respondent in writing of the reasons for not doing so.

(6) If the division determines that it is impracticable to complete an investigation and make final disposition of any complaint within one year the commissioner’s authority to conduct investigations or other proceedings to resolve a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) does not cease after the one year period, under ORS 659A.830 (3).

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.145, 659A.421, 659A.800, 659A.805, 659A.835 & 659A.870 - 659A.885
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-003-0225 Settlement Process After Substantial Evidence Determination in Housing Discrimination Complaints

(1) During the period beginning with the filing of a complaint and ending with the filing of a charge or a dismissal by the division, the division will, to the extent feasible, seek to eliminate the effects of the unlawful discriminatory act(s) by engaging in conciliation, settlement and persuasion. The division will facilitate any settlement negotiations between the aggrieved person and respondent as provided in OAR 839-003-0055.

(2) Nothing said or done in the course of settlement discussions concerning a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) may be disclosed under ORS 192.410 to 192.505 (the Oregon Public Records Act) or in any other manner, or used as evidence in a subsequent proceeding under this chapter or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) without the written consent of the persons concerned.

(3) If no settlement agreement is reached, the division retains the discretion to further negotiate settlement, administratively dismiss the complaint, or proceed to a contested case hearing.

(4) The aggrieved person may withdraw the aggrieved person’s complaint at any time.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.145, 659A.421, 659A.835 & 659A.840
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-003-0230 Remedies in Housing Discrimination Complaints

(1) In cases of unlawful practices in housing, remedy includes, but is not limited to:

(a) Rental, lease or sale of real property;

(b) Service lost;

(d) Compensation for emotional distress and for impaired personal dignity; and

(e) Interest.

(2) Settlements of complaints and the awards in commissioner's final orders do not necessarily include all possible remedies named in sections (1) of this rule. Nothing in this rule will be construed to limit or alter the statutory powers of the commissioner to protect the rights of persons similarly situated to the aggrieved person or to order the performance of an act or a series of acts designed to eliminate the effect of any unlawful practice found.

(3) The commissioner may order the respondent to eliminate the effects of any unlawful practice found and may require respondent to do one or more of the following:

(b) Take action and submit reports to the commissioner on the manner of compliance with the terms and conditions specified in the commissioner's order or agreement;

(4) Any person aggrieved by the violation of terms of a settlement agreement signed by a representative of the division, or the commissioner, may file an action for mandamus or injunction or civil action to compel specific performance.

(5) Any person aggrieved by a violation of an order issued by the commissioner, or the commissioner, may file an action for mandamus or injunction or civil action to compel compliance.

(6) Any person aggrieved by violation of a settlement agreement to which the division is a party, may file a complaint with the commissioner to seek enforcement of the settlement agreement within one year after the act or omission alleged to be a violation of the agreement. The commissioner will process the complaint in the same manner as provided for a complaint filed under ORS 659A.820.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.145, 659A.421, 659A.800, 659A.850, 659A.860, 659A.865 & 659A.885
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-003-0235 Civil Action under State and Federal Housing Law

(1) An aggrieved person alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a) may file a civil action as provided in ORS 659A.870 to 659A.885, or ORS 30.680. A person is not required to file a complaint of a violation of state law with the division before filing a civil action.

(2) A civil action alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. 3601 – 3614a), may be filed no later than two years after the occurrence or termination of an alleged discriminatory housing practice, or within two years after the breach of any settlement agreement entered into under ORS 659A.840, whichever occurs last. The two-year period may not include any time during which an administrative proceeding was pending with respect to the housing practice.

(3) After filing a complaint with the division, an aggrieved person may file a civil action in state or federal court alleging the same matters as those alleged in the complaint filed with the division. The aggrieved person should notify the division of the civil action. When the division receives notice from the aggrieved person or aggrieved person’s attorney, or court documents indicating that a civil action has been filed, the division will not dismiss the complaint until the civil trial commences. The division will notify the aggrieved person and respondent that the division has dismissed the complaint and will take no further action.

(4) If formal charges have been issued with respect to a housing discrimination complaint, and an administrative law judge has commenced a hearing on the record under ORS chapter 659A, the aggrieved person may not commence a civil action in court that alleges the same matters.

(5) When the commissioner of the Bureau of Labor and Industries or the attorney general of the State of Oregon has reasonable cause to believe that a person or group of persons is engaged in a pattern or practice of resistance to the rights protected by ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a), the commissioner or the attorney general may file a civil action on behalf of the aggrieved individuals in the same manner as an individual or group of individuals may file a civil action under ORS 659A.885.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.800 - 659A.890
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 13-2013, f. & cert. ef. 12-30-13
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-003-0240 Enforcement of Settlement Agreements and Orders in Housing Discrimination Complaints

(1) The commissioner or any person aggrieved by violation of the terms of a settlement agreement to which the division is a party, may file a civil action or an action for a writ of mandamus as provided under ORS 659A.840 and 659A.860 in the manner provided by ORS 659A.885(3).

(2) Any person aggrieved by the violation of terms of a settlement agreement to which the division is a party, may file a complaint with the commissioner to seek enforcement within one year after the act or omission alleged to be a violation of the agreement. The commissioner will process the complaint in the same manner as provided for a complaint filed under ORS 659A.820.

(3) The commissioner or any person aggrieved by violation of an order issued by the commissioner, may file a civil action or an action for a writ of mandamus as provided under ORS 659A.840 and 659A.860.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.145, 659A.421, 659A.850, 659A.860 & 659A.865
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-003-0245 Commissioner's Complaint in Housing Discrimination Cases

(1) The commissioner of the Bureau of Labor and Industries may make, sign and file a complaint whenever the commissioner has reason to believe that any person or group of persons has been denied rights or is about to be denied rights due to an unlawful practice under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. 3601 – 3614a). The complaint will be processed in the same manner as any other complaint filed under OAR 839-003-0200.

(2) The commissioner may identify an aggrieved person or persons in a commissioner’s complaint, by name, pseudonym or by general description as being affected by an alleged unlawful practice or otherwise similarly situated to a person eligible to file a complaint under ORS 659A.820.

(3) Any cease and desist order issued in a proceeding in which the commissioner filed a complaint may, in addition to any other action authorized by law, include remedies for an aggrieved person or persons.

(4) In the matter of concurrent complaints, nothing in these rules will be construed to:

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.800 - 659A.885
BLI 9-2015, f. & cert. ef. 6-29-15
BLI 13-2013, f. & cert. ef. 12-30-13
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Division 4 DISCRIMINATION FOR ACTIVITY PROTECTED BY THE OREGON SAFE EMPLOYMENT ACT

Or. Admin. R. 839-004-0003 Definitions: Discrimination for Opposition to Practices Prohibited by Oregon Safe Employment Act (OSEA)

As used in these rules and ORS 654.062:

(1) "Discriminate" or "discrimination" means to take an adverse action motivated by an employee or prospective employee’s conduct described in OAR 839-004-0016, including but not limited to:

(a) Barring, discharging or constructively discharging an employee or prospective employee from employment;

(b) Treating an employee or prospective employee worse than others in compensation, terms, conditions or privileges of employment;

(c) Demoting, disciplining, failing to promote, reducing pay, furloughing, reducing force, or otherwise taking action that adversely affects the terms, conditions or privileges of employment of an employee or prospective employee;

(d) Retaliating against or harassing an employee or prospective employee; or

(e) Actions described in (a)–(d) of this section taken against employees or prospective employees by any person, whether or not the person is the individual’s employer or prospective employer, including but not limited to, labor organizations and employment agencies.

(2) "Employee" has the meaning given that term in ORS 654.005

(3) "Employer" has the meaning given that term in ORS 654.005.

(4) The "Oregon Safe Employment Act" or "OSEA" has the meaning given that term in ORS 654.001.

(4) "Person" has the meaning given that term in ORS 654.005.

(5) "Place of employment" has the meaning given that term in ORS 654.005.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 654.062 & ORS 654.005
BLI 3-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 2-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 8-2021, temporary amend filed 07/19/2021, effective 07/19/2021 through 01/14/2022
BLI 10-2015, f. & cert. ef. 7-30-15
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 14-2000, f. & cert. ef. 8-11-00

Or. Admin. R. 839-004-0016 Scope of Protection under ORS 654.062

(1) ORS 654.062 prohibits discrimination against an employee or prospective employee because the employee or prospective employee:

(a) Made any complaint or instituted or caused to be instituted any proceeding under or related to OSEA;

(b) Testified or is about to testify in any such proceeding;

(d) Engaged in a practice provided for by OSEA;

(e) Opposed any practice prohibited by OSEA or which the employee or prospective employee in good faith believed was prohibited by OSEA; or

(f) Is perceived to take any actions described in subsections (a) through (e) of this rule.

(2) ORS 654.062 does not state to whom or in what manner an employee or prospective employee must oppose a practice in order to be protected from discrimination. Protected actions include the employee or prospective employee communicating opposition to practices prohibited by OSEA, or which the employee or prospective employee in good faith believes are prohibited by OSEA, to anyone, including but not limited to:

(a) Coworkers;

(b) Employers; and

History

Statutory/Other Authority: ORS 654.062 & ORS 659A.805
Statutes/Other Implemented: ORS 654.062
BLI 3-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 10-2015, f. & cert. ef. 7-30-15
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 14-2000, f. & cert. ef. 8-11-00

Or. Admin. R. 839-004-0021 Procedures for Complaints; Statutes of Limitation; Private Right of Action; Statutory Construction; Remedies

(1) Employees or prospective employees alleging violations of ORS 654.062(5) may file a complaint with the Bureau of Labor and Industries.

(2)(a) The complaint must be filed with the Bureau within one year after the date on which the employee or prospective employee has reasonable cause to believe they have been discriminated against. The employee or prospective employee may establish the date on which the employee or prospective employee had reasonable cause to believe they have been discriminated against based on the employee's or prospective employee’s own statement or other evidence offered by the employee or prospective employee.

(b) If the employer disagrees with the date the employee had reasonable cause to believe they have been discriminated against, the burden is on the employer to show that the employee had reasonable cause to believe they have been discriminated against at an earlier date.

(3) Upon receipt of a complaint the Bureau will process the complaint under the procedures, policies and remedies established by ORS chapter 659A and the policies established by OSEA in the same way and to the same extent that the complaint would be processed if the complaint involved allegations of unlawful employment practices under ORS 659A.030(1)(f).

(b) The employee or prospective employee may appeal the dismissal to the Oregon Occupational Safety and Health Division within 15 calendar days of issuance of the determination.

(4) Provisions of OSEA are to be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Occupational Safety and Health Act of 1970, 29 USC ch.15 §651-678 as amended (OSHA).

(5) The Bureau may order all appropriate relief including rehiring or reinstatement to the employee’s former position with back pay.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 654.062
BLI 3-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 2-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 10-2015, f. & cert. ef. 7-30-15
BLI 29-2007, f. 9-27-07 cert. ef. 10-1-07
BLI 19-2007(Temp), f. & cert. ef. 7-18-07 thru 1-1-08
BLI 5-2005, f. 1-13-05, cert. ef. 1-19-05
BLI 14-2000, f. & cert. ef. 8-11-00

Division 5 DISCRIMINATION

Or. Admin. R. 839-005-0000 Purpose and Scope of these Rules

(1) It is the policy of the State of Oregon that unlawful discrimination on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, age, disability and other classes protected under Oregon statutes is a matter of state concern and that such discrimination threatens individual rights and privileges and menaces the institutions and foundations of a free democratic state.

(2) Prohibited discrimination is a basis of unlawful practices described in ORS Chapter 659A and other chapters of the Oregon statutes.

(3) The Civil Rights Division of the Bureau of Labor and Industries (division) is responsible for protecting individual rights through the enforcement of civil rights statutes prohibiting unlawful practices.

(4) The purpose of these rules is to implement, interpret and describe the division's approach to civil rights enforcement under the bureau’s jurisdiction.

(5) These rules apply to all inquiries and complaints received by the division on or after the effective date of these rules.

(6) An individual claiming a violation of the civil rights statutes may file a complaint with the division as provided in OAR 839-003-0025, or 839-003-0200 for complaints alleging housing discrimination filed under ORS 659A.145, 659A.421 or the federal Fair Housing Act (42 U.S.C. §3601–3617).

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 19-2000, f. & cert. ef. 9-15-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 9-1982, f. & cert. ef. 6-11-82

Or. Admin. R. 839-005-0003 Definitions: Enforcement of Laws Prohibiting Unlawful Practices

As used in enforcing ORS Chapter 659A, including housing discrimination under 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. §3601–3617):

(1) “Aggrieved Person” means either:

(a) A person who is, or was at any time, eligible to file a complaint under ORS 659A.820 or who is otherwise similarly situated; or

(b) A person who files a complaint under ORS 659A.825.

(2) "Bureau" means the Bureau of Labor and Industries.

(3) "Division" means the Civil Rights Division of the Bureau of Labor and Industries.

(4) "Employee" does not include:

(a) Any individual employed by that individual's spouse or child; or

(b) Any individual employed by that individual’s parents, unless the individual is in the domestic service of their parent and is 26 years or older.

(5) "Employer" means any person in this state who, directly or through an agent, engages or utilizes the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed. Employer also includes any public body that, directly or through an agent, engages or utilizes the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed, including all officers, agencies, departments, divisions, bureaus, boards and commissions of the legislative, judicial and administrative branches of the state, all county and city governing bodies, school districts, special districts, municipal corporations and all other political subdivisions of the state. Employer also includes any person who is in an employment relationship with an intern as defined in subsection (10) of this rule.

(6) "Employment agency" includes any person undertaking to procure employees or opportunities to work.

(7) “Federal housing law” means the federal Fair Housing Act (42 U.S.C. §3601–3617).

(8) “Gender expression” means the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, or speech, whether or not that expression is different from that traditionally associated with the individual’s assigned sex at birth.

(9) “Gender identity” means an individual’s gender-related identity, whether or not that identity is different from that traditionally associated with the individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous.

(10) “Intern” means a person who performs work for an employer for the purpose of training if:

(a) The employer is not committed to hire the person performing the work at the conclusion of the training period;

(b) The employer and the person performing the work agree in writing that the person performing the work is not entitled to wages for the work performed; and

(A) Supplements training given in an education environment that may enhance employability of the intern;

(B) Provides experience for the benefit of the person performing the work;

(D) Is performed under the close supervision of existing staff; and

(E) Provides no immediate advantage to the employer providing the training and may occasionally impede the operations of the employer.

(d) An intern is considered to be in an employment relationship with an employer for the purposes of employee protections provided under ORS 659A.030, 659A.082, 659A.109, 659A.112, 659A.136, 659A.142, 659A.199, 659A.230, 659A.233, 659A.236, 659A.290, 659A.300, 659A.303, 659A.306, and 659A.315.

(e) “Intern” includes any person meeting the description set forth in this rule regardless of the title of the person’s position or whether they are currently enrolled in an education or training program.

(11) "Labor organization" includes any organization that is constituted for the purpose, in whole or in part, of collective bargaining or in dealing with employers concerning grievances, terms or conditions of employment or of other mutual aid or protection in connection with employees.

(12) “Person” includes one or more individuals, partnerships, associations, labor organizations, limited liability companies, joint-stock companies, corporations, legal representatives, trustees, and trustees in bankruptcy or receivers. “Person” also includes a public body as defined in ORS 30.260. For the purposes of 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. §3601–3617), “person” also includes fiduciaries, mutual companies, trusts and unincorporated organizations.

(13) "Protected class" means a group of people protected by law from discrimination on the basis of a shared characteristic, such as race, sex, sexual orientation, disability, or other, or a perception of that characteristic.

(14) "Respondent" includes any person against whom a complaint or charge of unlawful practices is filed with the division or whose name has been added to such complaint or charge pursuant to ORS 659A.835(1).

(15) “Sex” means the anatomical, physiological and genetic characteristics associated with being male or female.

(16) “Sexual orientation” means an individual’s actual or perceived heterosexuality, homosexuality, bisexuality, or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s assigned sex at birth.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.001 & 659A.350
BLI 19-2015, f. 12-22-15, cert. ef. 1-1-16
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 19-2000, f. & cert. ef. 9-15-00

Or. Admin. R. 839-005-0005 Unlawful Discrimination Defined

(1) To discriminate means to make a distinction between individuals or groups based on common characteristics, real or perceived. Certain kinds of discrimination are unlawful. Oregon civil rights laws generally prohibit making decisions in employment, housing, places of public accommodation and career schools because an individual is a member of a class protected by these statutes.

(2) When an individual files a complaint with the division alleging unlawful discrimination, the division must determine whether substantial evidence of such discrimination exists.

(3) That a private employer may give employment preference in the hiring or promotion of employees under OL Ch. 86, Sec. 2 2014 (persons in uniformed service and their widows and widowers) does not preclude the filing of a complaint under ORS chapter 659A.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A; OL Ch. 86 & Sec. 2 2014
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 19-2000, f. & cert. ef. 9-15-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 9-1982, f. & ef. 6-11-82

Or. Admin. R. 839-005-0010 Discrimination Theories: Employment

(1) Substantial evidence of intentional unlawful discrimination exists if the division's investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001 and OAR 839-005-0003;

(b) The aggrieved person is a member of a protected class;

(d) The aggrieved person’s protected class was the motivating factor for the respondent's action. In determining whether the aggrieved person’s protected class was the reason for the respondent's action, the division uses whichever of the following theories applies:

(A) Specific Intent Theory: The respondent knowingly and purposefully discriminates against an individual because of that individual's membership in a protected class, unless the respondent can show that a bona fide occupational qualification or a bona fide voluntary, court-ordered affirmative action plan (OAR 839-005-0013) allows the action.

(B) Different or Unequal Treatment Theory: The respondent treats members of a protected class differently than others who are not members of that protected class. When the respondent makes this differentiation because of the individual's protected class and not because of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing a case of different or unequal treatment:

(i) There must be substantial evidence that the aggrieved person was harmed by an action of the respondent under circumstances that make it appear that the respondent treated the aggrieved person differently than comparably situated individuals who were not members of the aggrieved person’s protected class. Substantial evidence of discrimination exists if the division's investigation reveals evidence that a reasonable person would accept as sufficient to support that protected class membership was a motivating factor for the respondent's alleged unlawful action. If the respondent fails to rebut this evidence with evidence of a legitimate non-discriminatory reason, the division will conclude that substantial evidence of unlawful discrimination exists.

(I) Pretext: If the respondent rebuts the evidence with evidence of a legitimate non-discriminatory reason, but there is substantial evidence that the respondent’s reason is a pretext for discrimination, the division will conclude there is substantial evidence of unlawful discrimination.

(II) Mixed Motive: If the respondent presents substantial evidence that a legitimate, non-discriminatory reason contributed to the respondent's action, but the division finds the individual's protected class membership was also a motivating factor in the respondent's action, the division will determine there is substantial evidence of discrimination.

(ii) The aggrieved person at all times has the burden of proving that the aggrieved person’s protected class was the reason for the respondent's unlawful action.

(2) Adverse Impact Discrimination: Substantial evidence of adverse impact discrimination does not require establishment of intentional discrimination as provided in (1) of this rule. Adverse impact discrimination exists if the division's investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001 and OAR 839-005-0003 of these rules;

(b) The respondent has a standard or policy that is applied equally.

(c) The standard or policy has the effect of screening out or otherwise affecting members of a protected class at a significantly higher rate than others who are not members of that protected class; and

(d) The aggrieved person is a member of the protected class adversely affected by the respondent's standard or policy and has been harmed by the respondent's application of the standard or policy.

(3) An employer must reasonably accommodate an employee or applicant's religious belief, observance or practice unless the employer can demonstrate that such accommodation would cause undue hardship on the employer's business (see OAR 839-005-0140).

(4) Harassment: Harassment based on an individual's protected class is a type of intentional unlawful discrimination. In cases of alleged unlawful sexual harassment in employment see OAR 839-005-0030.

(a) Conduct of a verbal or physical nature relating to protected classes other than sex is unlawful when substantial evidence of the elements of intentional discrimination, as described in section (1) of this rule, is shown and:

(A) Such conduct is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment;

(B) Submission to such conduct is made either explicitly or implicitly a term or condition of employment; or

(b) The standard for determining whether harassment is sufficiently severe or pervasive to create a hostile, intimidating or offensive working environment is whether a reasonable person in the circumstances of the complaining individual would so perceive it.

(c) Employer Proxy: An employer is liable for harassment when the harasser's rank is sufficiently high that the harasser is the employer's proxy, for example, the employer's president, owner, partner or corporate officer.

(d) Harassment by Supervisor plus Tangible Employment Action: An employer is liable for harassment by a supervisor with immediate or successively higher authority over an individual when the harassment results in a tangible employment action that the supervisor takes or causes to be taken against the individual. A tangible employment action includes, but is not limited to, any of the following:

(A) Terminating employment, including constructive discharge;

(B) Failing to hire;

(D) Changing a term or condition of employment, such as work assignment, work schedule, compensation or benefits or making a decision that causes a significant change in an employment benefit.

(e) Harassment by Supervisor, No Tangible Employment Action: When harassment by a supervisor with immediate or successively higher authority over the individual is found to have occurred, but no tangible employment action was taken, the employer is liable if:

(A) The employer knew of the harassment, unless the employer took immediate and appropriate corrective action.

(B) The employer should have known of the harassment. The division will find that the employer should have known of the harassment unless the employer can demonstrate:

(i) That the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and

(ii) That the complaining individual unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

(f) Harassment by Coworkers or Agents: An employer is liable for harassment by the employer's employees or agents who do not have immediate or successively higher authority over the complaining individual when the employer knew or should have known of the conduct, unless the employer took immediate and appropriate corrective action.

(g) Harassment by Non-Employees: An employer is liable for harassment by non-employees in the workplace when the employer or the employer's agents knew or should have known of the conduct unless the employer took immediate and appropriate corrective action. In reviewing such cases, the division will consider the extent of the employer's control and any legal responsibility the employer may have with respect to the conduct of such non-employees.

(h)(A) As used in this rule, “appropriate corrective action” and “promptly correcting any harassing behavior" means that an employer:

(i) Intervenes immediately with actions reasonably designed to effectively halt harassing behavior;

(ii) Conducts a prompt and adequate investigation and ascertains the extent of harassing behavior;

(iii) Takes appropriate remedial measures proportionate to the seriousness of the harassing behavior;

(iv) Places no burden, or makes every reasonable effort to minimize any burden placed, on the reporting employee or aggrieved party;

(v) Does not retaliate against the reporting employee, the aggrieved party or a participant in the investigation; and

(vi) Takes steps that are reasonably calculated to prevent retaliation and future harassment.

(B) The success or failure of corrective action in stopping future harassment is relevant, but not dispositive, as to employer liability.

(C) The reasonableness of an employer’s actions under this subsection depends on the particular facts and circumstances at the time the actions are taken.

(i) Withdrawn Consent: An employer may be liable for harassment by the employer's supervisory or non-supervisory employees, agents or non-employees even if the acts complained of were of a kind previously consented to by the complaining individual, if the employer knew or should have known that the complaining individual had withdrawn consent to the offensive conduct.

(j) When employment opportunities or benefits are granted because of an individual's submission to an employer's harassment, the employer is liable for unlawful discrimination against other individuals who were qualified for but denied that opportunity or benefit.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.030
BLI 1-2025, amend filed 01/09/2025, effective 02/01/2025
BLI 10-2023, minor correction filed 07/18/2023, effective 07/18/2023
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 3-2007, f. 1-29-07, cert. ef. 2-2-07
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 19-2000, f. & cert. ef. 9-15-00
BLI 6-1998, f. & cert. ef. 10-22-98
BL 4-1996, f. & cert. ef. 3-12-96
BL 9-1982, f. & ef. 6-11-82

Or. Admin. R. 839-005-0011 Constructive Discharge from Employment

Constructive discharge occurs when an individual leaves employment because of unlawful discrimination. The elements of a constructive discharge are:

(1) The employer intentionally created or intentionally maintained discriminatory working conditions related to the individual's protected class status;

(2) The working conditions were so intolerable that a reasonable person in the individual's circumstances would have resigned because of them;

(3) The employer desired to cause the individual to leave employment as a result of those working conditions, or knew or should have known that the individual was certain, or substantially certain, to leave employment as a result of the working conditions; and

(4) The individual left employment as a result of the working conditions.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
Renumbered from 839-005-0035, BLI 7-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 19-2000, f. & cert. ef. 9-15-00

Or. Admin. R. 839-005-0013 Bona Fide Occupational Qualification (BFOQ) and Affirmative Action Plan Exceptions in Employment

(1) Discrimination is not unlawful if it is based on a bona fide occupational qualification (BFOQ), as provided in ORS 659A.030(1)(a). To prove a BFOQ, the employer must show that the BFOQ is reasonably necessary to the normal operation of the business. If so, the employer must then show:

(a) A factual basis exists for believing that all or substantially all individuals in the protected class adversely affected by the BFOQ would be unable to perform safely and efficiently the tasks required in the job; or

(b) It is impossible or highly impractical to screen applicants on an individual basis.

(2) An employer may not claim a BFOQ for such reasons as:

(a) Customer, co-worker or employer preference;

(b) Stereotypes or assumed characteristics of a protected class.

(3) When discrimination is based on a bona fide voluntary affirmative action plan, it is not unlawful if the plan:

(a) Is a temporary measure;

(b) Has the purpose of eliminating the effects of past discrimination; and

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.030
BLI 11-2015, f. & cert. ef. 8-4-15
Renumbered from 839-005-0045, BLI 7-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 19-2000, f. & cert. ef. 9-15-00

Or. Admin. R. 839-005-0014 Successors in Interest for Employment Discrimination

An employer's liability for unlawful discrimination under ORS 659A.030 and OAR 839-005-0010 to 839-005-0045 extends to a successor employer. Determining whether a respondent is a successor employer involves a nine-part test. Not every element of the test need be present to find an employer to be a successor; the facts must be considered together to reach a determination:

(1) Whether respondent had notice of the charge at the time of acquiring or taking over the business;

(2) The ability of the predecessor to provide relief;

(3) Whether there has been a substantial continuity of business operations;

(4) Whether the respondent uses the same plant as the predecessor;

(5) Whether respondent uses the same or substantially the same work force as the predecessor;

(6) Whether respondent uses the same or substantially the same supervisory personnel as the predecessor;

(7) Whether under respondent the same jobs exist under substantially the same working conditions as under the predecessor;

(8) Whether respondent uses the same machinery, equipment and methods of production as the predecessor;

(9) Whether respondent produces the same product as the predecessor.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: 659A
BLI 11-2015, f. & cert. ef. 8-4-15
Renumbered from 839-005-0050, BLI 7-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02

Or. Admin. R. 839-005-0021 Employment Discrimination Based on Sex or Sexual Orientation

(1) Employers are not required to treat all employees exactly the same, but are prohibited from using sex as the basis for employment decisions with regard to hiring, promotion or discharge; or in terms, conditions or privileges of employment such as benefits and compensation.

(2) Discrimination because of sex includes sexual harassment, discrimination based on pregnancy, childbirth and medical conditions and occurrences related to pregnancy and childbirth.

(3) In very rare instances, sex may be a bona fide occupational qualification (BFOQ), as defined in OAR 839-005-0013.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.029 & 659A.030
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 35-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 19-2000, f. & cert. ef. 9-15-00

Or. Admin. R. 839-005-0026 Employment Protections and Rights Relating to Pregnancy

(1) Pregnant people are protected from sex discrimination in employment.

(2) ORS 659A prohibits discrimination regarding employee and dependent spouse or domestic partner benefits for pregnancy when employee and dependent spouse or domestic partner benefits exist for other medical conditions.

(3) An employee needing to be absent from work because of pregnancy or childbirth may have rights under the Oregon Family Leave Act, Sick Leave under ORS 653.601 to 653.661, Paid Leave under ORS chapter 657B, ORS 659A.146 and 659A.147 or the federal Pregnant Workers Fairness Act.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.029, ORS 659A.030, ORS 659A.147 & ORS 659A.148
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 16-2019, amend filed 10/31/2019, effective 01/01/2020
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 35-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 35-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 19-2000, f. & cert. ef. 9-15-00

Or. Admin. R. 839-005-0030 Sexual Harassment in Employment

(1) Sexual harassment is unlawful discrimination on the basis of sex and includes the following types of conduct:

(a) Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature when such conduct is directed toward an individual because of that individual's sex and:

(A) Submission to such conduct is made either explicitly or implicitly a term or condition of employment; or

(B) Submission to or rejection of such conduct is used as the basis for employment decisions affecting that individual.

(b) Any unwelcome verbal or physical conduct that is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with work performance or creating a hostile, intimidating or offensive working environment.

(2) The standard for determining whether harassment based on an individual's sex is sufficiently severe or pervasive to create a hostile, intimidating or offensive working environment is whether a reasonable person in the circumstances of the complaining individual would so perceive it.

(3) Employer proxy: An employer is liable for harassment when the harasser's rank is sufficiently high that the harasser is the employer's proxy, for example, the respondent's president, owner, partner or corporate officer.

(4) Harassment by Supervisor plus Tangible Employment Action: An employer is liable for sexual harassment by a supervisor with immediate or successively higher authority over an individual when the harassment results in a tangible employment action that the supervisor takes or causes to be taken against that individual. A tangible employment action includes but is not limited to the following:

(a) Terminating employment, including constructive discharge;

(b) Failing to hire;

(d) Changing a term or condition of employment, such as work assignment, work schedule, compensation or benefits or making a decision that causes a significant change in an employment benefit.

(5) Harassment by Supervisor, No Tangible Employment Action: When sexual harassment by a supervisor with immediate or successively higher authority over an individual is found to have occurred, but no tangible employment action was taken, the employer is liable if:

(a) The employer knew of the harassment, unless the employer took immediate and appropriate corrective action.

(b) The employer should have known of the harassment. The division will find that the employer should have known of the harassment unless the employer can demonstrate:

(A) That the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and

(B) That the aggrieved person unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

(6) Harassment by Co-Workers or Agents: An employer is liable for sexual harassment by the employer's employees or agents who do not have immediate or successively higher authority over the aggrieved person when the employer knew or should have known of the conduct, unless the employer took immediate and appropriate corrective action.

(7) Harassment by Non-Employees: An employer is liable for sexual harassment by non-employees in the workplace when the employer or the employer's agents knew or should have known of the conduct unless the employer took immediate and appropriate corrective action. In reviewing such cases the division will consider the extent of the employer's control and any legal responsibility the employer may have with respect to the conduct of such non-employees.

(8)(a) As used in this rule, “appropriate corrective action” and “promptly correcting any harassing behavior" means that an employer:

(A) Intervenes immediately with actions reasonably designed to effectively halt harassing behavior;

(B) Conducts a prompt and adequate investigation and ascertains the extent of harassing behavior;

(D) Places no burden, or makes every reasonable effort to minimize any burden placed, on the reporting employee or aggrieved party;

(E) Does not retaliate against the reporting employee, the aggrieved party or a participant in the investigation; and

(F) Takes steps that are reasonably calculated to prevent retaliation and future harassment.

(b) The success or failure of corrective action in stopping future harassment is relevant, but not dispositive, as to employer liability.

(c) The reasonableness of an employer’s actions under this subsection depends on the particular facts and circumstances at the time the actions are taken.

(9) Withdrawn Consent: An employer is liable for sexual harassment of an individual by the employer's supervisory or non-supervisory employees, agents or non-employees, even if the acts complained of were of a kind previously consented to by the aggrieved person, if the employer knew or should have known that the aggrieved person had withdrawn consent to the offensive conduct.

(10) When employment opportunities or benefits are granted because of an individual's submission to an employer's sexual advances, requests for sexual favors, or other sexual harassment, the employer is liable for unlawful sex discrimination against other individuals who were qualified for but denied that opportunity or benefit.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.030
BLI 1-2025, amend filed 01/09/2025, effective 02/01/2025
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 35-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 46-2006, f. 12-29-06, cert. ef. 1-3-07
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 19-2000, f. & cert. ef. 9-15-00

Or. Admin. R. 839-005-0031 Exceptions to Discrimination in Employment and Housing Based on Sexual Orientation or Religion

(1) The following actions are not unlawful practices under ORS chapter 659A, including housing discrimination under ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. §3601–3617):

(a) Housing and the use of facilities. It is not an unlawful practice for a bona fide church or other religious institution to take any action with respect to housing or the use of facilities when:

(A) The action taken is based on a bona fide religious belief about sexual orientation; and

(B) The housing or the use of facilities involved is closely connected with or related to the primary purpose of the church or institution; and

(C) The housing or the use of facilities involved is not connected with a commercial or business activity that has no necessary relationship to the church or institution.

(b) Employment Preference. It is not an unlawful employment practice for a bona fide church or other religious institution, including but not limited to a school, hospital or church camp, to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if:

(A) The employee or applicant belongs to the same religious sect or persuasion as the church or institution; and

(B) In the opinion of the church or institution, the preference will best serve the purposes of the church or institution; and

(C) The employment involved is closely connected with or related to the primary purposes of the church or institution; and

(D) The employment involved is not connected with a commercial or business activity that has no necessary relationship to the church or institution.

(c) Employment Actions. It is not an unlawful employment practice for a bona fide church or other religious institution to take any employment action based on a bona fide religious belief about sexual orientation when:

(A) The employment position involved is directly related to the operation of the church or other place of worship, such as clergy, religious instructors and support staff;

(B) The employment position involved is in a nonprofit religious school, nonprofit religious camp, nonprofit religious day care center, nonprofit religious thrift store, nonprofit religious bookstore, nonprofit religious radio station or nonprofit religious shelter; or

(i) Is closely connected with or related to the primary purpose of the church or institution; and

(ii) Is not connected with a commercial or business activity that has no necessary relationship to the church or institution.

(d) Dress Code. An employer is not prohibited from enforcing an otherwise valid dress code or policy, as long as the employer provides, on a case-by-case basis, for reasonable accommodation of an individual based on the health and safety needs of the individual.

(2) The above exceptions do not excuse a failure to provide reasonable and appropriate accommodations permitting all persons access to restrooms consistent with their expressed gender.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS Ch 659A
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
Renumbered from 839-005-0016, BLI 7-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 35-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 35-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-005-0036 Commissioner’s Complaint for Discrimination Based on Employment Status

(1) Pursuant to ORS 659A.550 and except as permitted under ORS Chapter 240 or any other provision of law, it is an unlawful practice for an employer or employment agency to knowingly or purposefully publish in print or on the Internet an advertisement for a job vacancy in Oregon that provides that:

(a) The qualifications for a job include current employment;

(b) The employer or employment agency will not consider or review an application for employment submitted by a job applicant who is currently unemployed; or

(c) The employer or employment agency will only consider or review applications for employment submitted by job applicants who are currently employed.

(2) For purposes of the statute and this rule “employer” includes an employer’s agent, representative or designee.

(3) ORS 659A.550 does not prohibit an employer or employment agency from publishing in print or on the Internet an advertisement for a job vacancy in Oregon:

(a) Setting forth qualifications for a job vacancy, including but not limited to:

(i) Holding a current and valid professional or occupational license, certificate, registration, permit or other credential; or

(ii) A minimum level of education or training, or professional, occupational or field experience; or

(b) Stating that only applicants who are current employees of the employer will be considered for the position.

(4) A complaint of a violation of ORS 659A.550 may be filed only by the Commissioner of the Bureau of Labor and Industries (commissioner), under ORS 659A.885.

(5) The Civil Rights Division of the Bureau of Labor and Industries has jurisdiction to accept and investigate commissioners’ complaints of alleged violations of ORS 659A.550 and to pursue enforcement against violations. Commissioner’s complaint procedures are found at OAR 839-003-0100.

(6) An employer or employment agency found by the commissioner to have violated ORS 659A.550 shall be assessed a civil penalty as provided under ORS 659A.855.

(7) The commissioner may issue a cease and desist order under the provisions of ORS 659.885(3).

(8) ORS 659A.550 does not create or authorize a private cause of action by an aggrieved person against an employer or employment agency that is alleged to violate or has violated ORS 659A.550.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.550
BLI 11-2015, f. & cert. ef. 8-4-15

Or. Admin. R. 839-005-0060 Employer Obtainment or Use of Credit History Information: Purpose and Scope of these Rules

(1) It is the policy of the State of Oregon to guarantee individuals the fullest possible participation in the social and economic life of the state, including employment. Pursuant to ORS 659A.320, obtainment or use by an employer of information in an applicant’s credit history impacts the individual’s privacy, and must relate only to the position for which the individual is being considered or holds. The people of Oregon have the right to employment without unlawful discrimination on the basis of credit history.

(2) Prohibited discrimination is a basis of unlawful practices described in ORS Chapter 659A and other chapters of the Oregon statutes.

(3) The Civil Rights Division (division) of the Bureau of Labor and Industries enforces ORS 659A.320. These rules implement and interpret that statute.

(4) Any individual claiming to be aggrieved by an unlawful practice including a violation of ORS 659A.320 may file a complaint with the division under ORS 659A.820 or may bring a civil action under ORS 659A.885.

(5) These rules apply to all inquiries and complaints received by the division on or after the effective date of these rules.

History

Statutory/Other Authority: 659A.805
Statutes/Other Implemented: ORS 659A.320
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 16-2010, f. 6-1-10, cert. ef. 7-1-10

Or. Admin. R. 839-005-0065 Employer Obtainment or Use of Credit History Information: Definitions

(1) “Applicant” means an individual who has submitted information for the purpose of gaining employment.

(2) “Credit history” means any written or other communication of any information by a consumer reporting agency that bears on a consumer’s creditworthiness, credit standing or credit capacity.

(3) "Division" means the Civil Rights Division of the Bureau of Labor and Industries.

(4) “Employer” means any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed.

(5) "Respondent" includes any person against whom a complaint or charge of unlawful practices is filed with the division or whose name has been added to such complaint or charge pursuant to ORS 659A.835(1).

(6) “Substantially job-related” is defined in OAR 839-005-0080.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.320
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 16-2010, f. 6-1-10, cert. ef. 7-1-10

Or. Admin. R. 839-005-0070 Employer Obtainment or Use of Credit History Information: Unlawful Discrimination

(1) It is an unlawful employment practice for an employer to obtain or use for employment purposes information contained in the credit history of an applicant for employment or an employee, or to refuse to hire, discharge, demote, suspend, retaliate or otherwise discriminate against an applicant or an employee with regard to promotion, compensation or the terms, conditions or privileges of employment based on information in the credit history of the applicant or employee.

(2) Obtainment or use of credit history information may not be conducted in a manner that results in adverse impact discrimination as prohibited by 42 U.S.C. §2000e-2, ORS 659A.030 and OAR 839-005-0010. A finding of adverse impact discrimination does not require establishment of intentional discrimination.

(3) ORS 659A.320 permits an employer to obtain or use for employment purposes information contained in the credit history of an applicant or employee under circumstances described at 659A.320(2). ORS 659A.320(2)(d) permits an employer to obtain or use information contained in the credit history of an applicant or employee if the credit history information is substantially job-related, and the employer’s reasons for the use of such information are disclosed to the employee or prospective employee in writing.

(4) The burden of proving the employer’s disclosure to the employee of its reasons for the use of such information rests with the employer.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.320
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 16-2010, f. 6-1-10, cert. ef. 7-1-10

Or. Admin. R. 839-005-0075 Employer Obtainment or Use of Credit History Information: Exceptions

ORS 659A.320 does not apply to:

(1) Employers that are federally insured banks or credit unions;

(2) Employers that are required by state or federal law to use individual credit history for employment purposes;

(3) Employees in or applicants for positions responsible for enforcing the criminal laws of this state, including:

(a) A public safety officer who is a member of a law enforcement unit;

(b) A peace officer commissioned by a city, port, school district, mass transit district, county, Indian reservation, or the Criminal Justice Division of the Department of Justice, the Oregon State Lottery Commission, the Governor; or

(c) Employees in positions responsible for enforcing the criminal laws of this state or laws or ordinances related to airport security; or

(4)(a) The obtainment or use by an employer of information in the credit history of an applicant or employee because the information is substantially job-related, and the employer’s reasons for the use of such information are disclosed to the employee or prospective employee in writing.

(b) The burden of proving the employer’s disclosure to the employee rests with the employer.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.320
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

Or. Admin. R. 839-005-0080 Employer Obtainment or Use of Credit History Information: Determining whether Credit History Is Substantially Job-Related

(1) The determination of whether credit history information is substantially job-related must be evaluated with respect to the position for which the individual is being considered or holds.

(2) Credit history information of an applicant or employee is substantially job-related if:

(a) An essential function of the position at issue requires access to financial information not customarily provided in a retail transaction that is not a loan or extension of credit. Financial information customarily provided in a retail transaction includes information related to the exchange of cash, checks and credit or debit card numbers; or

(b) The position at issue is one for which an employer is required to obtain credit history as a condition of obtaining insurance or a surety or fidelity bond.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.320
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 16-2010, f. 6-1-10, cert. ef. 7-1-10

Or. Admin. R. 839-005-0085 Employer Obtainment or Use of Credit History Information: Enforcement and Retaliation

(1) An employer's duties and obligations under ORS 659A.320 extend to an employer that is a successor in interest as defined in OAR 839-005-0014.

(2) An applicant or employee claiming a violation of ORS 659A.320 or these rules may file a complaint with the Civil Rights Division of the Bureau of Labor and Industries in the manner provided by 659A.820.

(3) An applicant or employee claiming a violation of ORS 659A.320 may bring a civil action under 659A.885.

(4) Pursuant to ORS 659A.030(1)(f), it is an unlawful employment practice for an employer to discharge, expel or otherwise discriminate against any person because the person has filed a complaint, testified or assisted in any proceeding in connection with 659A.320.

(5) Pursuant to ORS 659A.030(1)(g), it is an unlawful employment practice for any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts in violation of 659A.320 or to attempt to do so.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.320
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 16-2010, f. 6-1-10, cert. ef. 7-1-10

Or. Admin. R. 839-005-0125 Discrimination Based on Protected Activity: Retaliation for Opposing Unlawful Practices

(1) This rule interprets ORS 659A.030(1)(f).

(2) A person will be found to have unlawfully retaliated against any other person if:

(a) That other person has engaged in protected activity by:

(A) Explicitly or implicitly opposing an unlawful practice or what that other person reasonably believed to be an unlawful practice, or

(B) Filing a charge, testifying, or assisting in an investigation, proceeding, or lawsuit under ORS Chapter 659A, or attempting to do so;

(b) The person has subjected that other person to any adverse treatment, in or out of the workplace, that is reasonably likely to deter protected activity, regardless of whether it materially affects the terms, conditions, or privileges of employment; and

(3) “Person” for purposes ORS Chapter 659A and these rules is defined at 659A.001(9) and OAR 839-005-0003(12).

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.001(9) & 659A.030(1)(f)
BLI 14-2015, f. & cert. ef. 11-6-15
BLI 3-2012, f. & cert. ef. 2-8-12
Renumbered from 839-005-0033, BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 27-2008, f. 8-5-08, cert. ef. 8-6-08

Or. Admin. R. 839-005-0130 Discrimination Based on Protected Activity: Employees Serving or Scheduled to Serve as Jurors

(1) An employer commits an unlawful employment practice under ORS chapter 659A if the employer discharges, threatens to discharge, intimidates or coerces any employee by reason of the employee’s service or scheduled service as a juror on a grand jury, trial jury or jury of inquest.

(2) An employee who alleges a violation of subsection (1) of this rule may bring a civil action under ORS 659A.885 or may file a complaint with the Commissioner of the Bureau of Labor and Industries in the manner provided by ORS 659A.820.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 10.090
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

Or. Admin. R. 839-005-0135 Discrimination Based on Protected Activity: Insurance Coverage for Employees Serving as Jurors

(1) An employer who employs 10 or more persons commits an unlawful employment practice under ORS chapter 659A if:

(a) The employer ceases to provide health, disability, life or other insurance coverage for an employee during times when the employee serves or is scheduled to serve as a juror; and

(b) The employee elected to have coverage continued while the employee served or was scheduled to serve as a juror, and the employee provided notice of that election to the employer in compliance with the employer’s policy for notification.

(2) Notwithstanding ORS 652.610(3), if, following an election described in subsection (1) of this section, an employer is required or elects to pay any part of the costs of providing health, disability, life or other insurance coverage for the employee that should have been paid by the employee, the employer may deduct from the employee’s pay such amounts upon the employee’s return to work until the amount the employer advanced toward the payments is paid. The total amount deducted for insurance under this subsection may not exceed 10 percent of the employee’s gross pay each pay period.

(3) Notwithstanding ORS 652.610(3), if the employer pays any part of the costs of providing health, disability, life or other insurance coverage for an employee under subsection (2) of this section, and the employee ceases to work for the employer before the total amount the employer advanced toward the payments is paid, the employer may deduct the remaining amounts from any amounts owed by the employer to the employee or may seek to recover those amounts by any other legal means.

(4) An employee who alleges a violation of this section may bring a civil action under ORS 659A.885 or may file a complaint with the Commissioner of the Bureau of Labor and Industries in the manner provided by ORS 659A.820.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 10.090
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

Or. Admin. R. 839-005-0138 Discrimination Based on Protected Activity: Child Support Obligations

(1) For purposes of this rule:

(a) “Child” has the meaning given that term in ORS 110.303.

(b) “Child support” means an obligation imposed or imposable by law to provide support, including but not limited to medical support and an unsatisfied obligation to provide support to a child under ORS chapter 25.

(A) Who owes or is alleged to owe a duty of support;

(B) Who is alleged but has not been adjudicated to be a parent of a child; or

(d) “Order to withhold” means an order or other legal process that requires a withholder to withhold support from the income of an obligor.

(e) “Withholder” means any person who disburses income and includes but is not limited to an employer, conservator, trustee or insurer of the obligor.

(2) It is an unlawful employment practice for an employer to discharge, refuse to hire or in any other manner discriminate, retaliate, or take disciplinary action against an employee because of the entry or service of an order to withhold under ORS 25.378 and 25.402 or because of the obligations or additional obligations that the order imposes upon the employer.

(3) An obligor may bring an action under ORS 659A.885 or may file a complaint with the Bureau of Labor and Industries in the manner provided by ORS 659A.820.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 25.424 & 659A.885
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 9-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-005-0140 Accommodation of Employee Religious Practices

(1) An employer violates ORS 659A.030 if the employer does not allow an employee to use vacation leave, or other leave available to the employee, for the purpose of allowing an employee to engage in the religious observance or practices of the employee.

(a) This requirement applies only to leave that is not restricted as to the manner in which the leave may be used and that the employer allows the employee to take by adjusting or altering the work schedule or assignment of the employee.

(2) An employer is required to accommodate such leave only when reasonably accommodating use of the leave by the employee will not impose an undue hardship on the operation of the business of the employer.

(a) A reasonable accommodation imposes an undue hardship on the operation of the business of the employer for the purposes of this section if the accommodation requires significant difficulty or expense. For the purpose of determining whether an accommodation requires significant difficulty or expense, the following factors shall be considered:

(A) The nature and the cost of the accommodation needed.

(B) The overall financial resources of the facility or facilities involved in the provision of the accommodation, the number of persons employed at the facility and the effect on expenses and resources or other impacts on the operation of the facility caused by the accommodation.

(C) The overall financial resources of the employer, the overall size of the business of the employer with respect to the number of persons employed by the employer and the number, type and location of the employer’s facilities.

(D) The type of business operations conducted by the employer, including the composition, structure and functions of the workforce of the employer and the geographic separateness and administrative or fiscal relationship of the facility or facilities of the employer.

(E) The safety and health requirements in a facility, including requirements for the safety of other employees and any other person whose safety may be adversely impacted by the requested accommodation.

(3) An employer violates ORS 659A.030 if the employer imposes an occupational requirement that restricts the ability of an employee to wear religious clothing, to take time off for a holy day or to take time off to participate in a religious observance or practice when:

(a) Reasonably accommodating those activities does not impose an undue hardship on the operation of the business of the employer as described in this rule; and

(b) The activities have only a temporary or tangential impact on the employee’s ability to perform the essential functions of the job.

(4) “Undue hardship” for purposes of ORS 659A.033 and this rule is described in ORS 659A.033.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.033
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 9-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-005-0160 Protections for Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Unlawful Employment Practices

(1) ORS 659A.290 provides that it is an unlawful practice for an employer, because an individual is a victim of domestic violence, harassment, sexual assault or stalking to:

(a) Refuse to hire an otherwise qualified individual;

(b) Discharge, threaten to discharge, demote, suspend or in any way discriminate or retaliate against an individual with respect to promotion, compensation or any other terms, conditions or privileges of employment; or to

(c) Refuse to make a reasonable safety accommodation requested by an individual who is a victim of domestic violence, harassment, sexual assault or stalking, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer as determined by ORS 659A.121.

(2) The Civil Rights Division of the Bureau of Labor and Industries enforces ORS 659A.290 and OAR 839-005-0160 to 839-005-0170, which implement ORS 659A.290.

(3) "Victim of domestic violence" means an individual who has been threatened with abuse or who is a victim of abuse as defined in ORS 107.705.

(4) “Victim of harassment” means an individual against whom harassment has been committed as described in Oregon’s criminal code at ORS 166.065.

(5) "Victim of sexual assault" means an individual against whom a sexual offense has been threatened or committed as described in ORS 163.305 to 163.467 or 163.525.

(6) "Victim of stalking" means:

(a) An individual against whom stalking has been threatened or committed as described in ORS 163.732; or

(b) An individual who has obtained a temporary or permanent court’s stalking protective order under ORS 30.866.

(7) In no event will an alleged perpetrator of domestic violence, harassment, sexual assault or stalking be considered a victim for the purposes of ORS 659A.290 or rules implementing ORS 659A.290.

History

Statutory/Other Authority: ORS 659A.805 & 659A.270
Statutes/Other Implemented: ORS 659A.290
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 9-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-005-0170 Protections for Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Reasonable Safety Accommodation; Certification; Records Confidential

(1) A “reasonable safety accommodation” for a victim of domestic violence, harassment, sexual assault or stalking as provided in ORS 659A.290 may include, but is not limited to, a transfer, reassignment, modified schedule, use of available paid leave from employment, unpaid leave from employment, changed work telephone number, changed work station, installed lock, implemented safety procedure or any other adjustment to a job structure, workplace facility or work requirement in response to actual or threatened domestic violence, harassment, sexual assault or stalking.

(2) Use of available paid and unpaid leave from employment is provided for in ORS 659A.270-.285 and OAR 839-009-0325 through 839-009-0365.

(3) “Undue hardship” for purposes of ORS 659A.290 is defined at ORS 659A.121: An accommodation imposes an undue hardship on the operation of the business of the employer if the accommodation requires significant difficulty or expense, considering the following:

(a) The nature and the cost of the accommodation needed.

(b) The overall financial resources of the facility or facilities involved in the provision of the accommodation, the number of persons employed at the facility and the effect on expenses and resources or other impacts on the operation of the facility caused by the accommodation.

(c) The overall financial resources of the employer, the overall size of the business of the employer with respect to the number of its employees and the number, type and location of the employer’s facilities.

(d) The type of operations conducted by the employer, including the composition, structure and functions of the workforce of the employer and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the employer.

(4) Prior to making a reasonable safety accommodation, an employer may require an individual to provide certification that the individual is a victim of domestic violence, harassment, sexual assault, or stalking within a reasonable time after receiving the employer’s request. Any of the following constitutes sufficient certification:

(a) A copy of a police report indicating that the individual was or is a victim of domestic violence, harassment, sexual assault or stalking as defined in OAR 839-005-0160 and ORS 659A.290; or

(b) A copy of a protective order authorized by ORS 30.866, 107.095(1)(c), 107.700 to 107.735, 124.005 to 124.040 or 163.730 to 163.750; or any other order that restrains an individual from contact with an individual; an order authorized by ORS 30.866, 107.095(1)(c), 107.700 to 107.735, 124.005 to 124.040 or 163.730 to 163.750) or other evidence from a court or attorney that the employee appeared in or is preparing for a civil, criminal or administrative proceeding related to domestic violence, harassment, sexual assault or stalking; or

(c) Documentation from an attorney; law enforcement officer (defined as all police, corrections, and parole and probation officers who are included in the Public Safety Standards and Training Act as described in ORS 181.610 and 181.651); health care professional (defined as a physician or other health care practitioner who is licensed, certified or otherwise authorized by law to provide health care services); licensed mental health professional or counselor; member of the clergy; or victim services provider (defined at ORS 659A.270(8) as a prosecutor-based victim assistance program or a nonprofit program offering safety planning, counseling, support or advocacy) that the individual was or is undergoing treatment or counseling, obtaining services or relocating as a result of domestic violence, harassment, sexual assault or stalking.

(5) All records and information kept by an employer regarding a reasonable safety accommodation made for an individual are confidential and may not be released without the express permission of the individual, unless otherwise required by law.

(6) Consistent with ORS 659A.306, the employer must pay the cost of any medical verification related to ORS 659A.290 or these rules that is not covered by insurance or other benefit plan.

(7) If the State of Oregon has knowledge, or reasonably should have knowledge, that its employee is a victim of domestic violence, harassment, sexual assault or stalking and that any direct or indirect communication to the employee related to the victimization of the employee is made or attempted to be made in the workplace, the State of Oregon shall immediately inform the employee and offer to report the communication to law enforcement.

(8) The State of Oregon shall annually inform all of its employees of the provisions of ORS 659A.290.

(9) Pursuant to ORS 659A.030(1)(g), it is an unlawful employment practice for any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts in violation of ORS 659A.290 or to attempt to do so.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.290
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 9-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-005-0195 Housing Discrimination: Purpose and Scope

(1) The public policy of the State of Oregon guarantees all individuals the fullest possible participation in the social and economic life of the state, including the right to purchase, lease, rent or occupy property without discrimination on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, disability, familial status, source of income and other classes protected under Oregon statutes. The Bureau of Labor and Industries, through the Civil Rights Division, protects these rights by enforcement of ORS 659A.145, 659A.421 and the federal Fair Housing Act (42 U.S.C. §3601–3617) over which the U.S. Department of Housing and Urban Development has jurisdiction.

(2) An individual claiming to be aggrieved by an alleged unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. §3601–3617) may file a complaint with the Civil Rights Division as described in OAR 839-003-0200.

(a) An individual claiming to be aggrieved by an alleged unlawful practice under ORS 659A.145 or 659A.421 or discrimination under the federal Fair Housing Act (42 U.S.C. §3601–3617) includes an individual who believes that the individual has been injured by an unlawful practice or discriminatory housing practice or will be injured by an unlawful practice or discriminatory housing practice that is about to occur.

(3) These rules apply to all complaints and inquiries relating to these sections received on or after the effective date of these rules.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103, 659A.142 & 659A.145, 659A.421 & 42 U.S.C. §3601–3617
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-005-0200 Housing Discrimination: Definitions

(1) “Aggrieved person” includes a person who believes that the person:

(a) Has been injured by an unlawful practice or discriminatory housing practice; or

(b) Will be injured by an unlawful practice or discriminatory housing practice that is about to occur.

(2) “Disability” means:

(a) A physical or mental impairment that substantially limits one or more major life activities of the individual.

(b) A record of having a physical or mental impairment that substantially limits one or more major life activities of the individual. An individual has a record of having a physical or mental impairment if the individual has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities of the individual.

(A) An individual is regarded as having a physical or mental impairment if the individual has been subjected to an action prohibited under ORS 659A.112 to 659A.139 because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity of the individual.

(B) An individual is not regarded as having a physical or mental impairment if the individual has an impairment that is minor and that has an actual or expected duration of six months or less.

(3) "Dwelling" means any building, structure, or portion of a building or structure that is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land that is offered for sale or lease for the construction or location of any such building, structure, or portion of such a building or structure.

(4) "Family" includes but is not limited to a single individual.

(5) "Familial status" means the relationship between one or more individuals who have not attained 18 years of age and the individual with whom they are domiciled who is:

(a) A parent or another person having legal custody of the individual; or

(b) The designee of the parent or other person having such custody, with the written permission of the parent or other person.

(c) "Familial status" includes any individual, regardless of age or domicile, who is pregnant or is in the process of securing legal custody of an individual who has not attained 18 years of age.

(d) “Domiciled” includes but is not limited to part-time residence in a dwelling where an individual has a reasonable expectation of a continuing right to return.

(6) "Major life activity" includes, but is not limited to:

(a) Caring for oneself;

(b) Performing manual tasks;

(d) Hearing;

(e) Eating;

(f) Drinking;

(g) Sleeping;

(h) Walking;

(i) Standing;

(j) Lifting;

(k) Bending;

(l) Twisting;

(m) Speaking;

(n) Breathing;

(o) Cognitive functioning;

(p) Learning;

(q) Education;

(r) Reading;

(s) Concentrating;

(t) Remembering;

(u) Thinking;

(v) Communicating;

(w) Working: To be substantially limited in the major life activity of working, an individual must be significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes as compared to the ability of an average person with comparable skill, experience, education or other job-related requirements needed to perform those same positions;

(x) Socialization;

(y) Sitting;

(z) Reaching;

(aa) Interacting with others;

(bb) Sexual relations;

(cc) Employment;

(dd) Ambulation;

(ee) Transportation;

(ff) Operation of a major bodily function, including but not limited to:

(A) Functions of the immune system;

(B) Normal cell growth; and

(gg) Ability to acquire, rent or maintain property.

(8) "Misclassified," as used in ORS 659A.100(2)(b), means an erroneous or unsupported medical diagnosis, report, certificate or evaluation.

(9 ) "Person" includes one or more individuals, partnerships, associations, labor organizations, limited liability companies, joint stock companies, corporations, legal representatives, trustees, trustees in bankruptcy or receivers, fiduciaries, mutual companies, trusts and unincorporated organizations and public bodies as defined in ORS 30.260 that have the primary purpose of serving, representing or otherwise benefiting the protected class.

(10) "Physical or mental impairment" means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, traumatic brain injury, emotional or mental illness, and specific learning disabilities.

(11) "Property" and "real property" means property used or intended for commercial, business or residential purposes including, but not limited to a dwelling.

(12) "Purchaser" includes an occupant, prospective occupant, renter, prospective renter, lessee, prospective lessee, buyer or prospective buyer.

(13) "Receipt or alleged receipt of treatment for a mental disorder," as used in ORS 659A.142(5), means actual treatment of an individual for a mental condition or an assertion that the person received such treatment.

(14) "Regarded as having an impairment," as used in ORS 659A.100(2)(c), means:

(a) An individual having a physical or mental impairment that does not substantially limit a major life activity but who has been treated as having an impairment by a seller, lessor, advertiser, real estate broker or salesperson, or the agent of any seller, lessor, advertiser, real estate broker or salesperson;

(b) An individual having a physical or mental impairment that substantially limits a major life activity only as a result of the attitude of others toward such impairment; or

(c) An individual having no physical or mental impairment but who is treated as having an impairment by a seller, lessor, advertiser, real estate broker or salesperson, or the agent of any seller, lessor, advertiser, real estate broker or salesperson.

(15) "Residential real estate related transaction" means any of the following:

(a) The making or purchasing of loans or providing other financial assistance:

(A) For purchasing, constructing, improving, repairing or maintaining a dwelling; or

(B) Secured by residential real estate; or

(b) The selling, brokering or appraising of residential real property.

(16) "Substantially limits" means that an individual has an impairment, had an impairment or is perceived as having an impairment that restricts one or more major life activities of the individual as compared to most people in the general population.

(a) An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.

(b) An impairment that substantially limits one major life activity of the individual need not limit other major life activities of the individual.

(c) To have a disability (or to have a record of a disability) an individual must be substantially limited in performing a major life activity as compared to most people in the general population.

(d) An impairment that is episodic or in remission is considered to substantially limit a major life activity of the individual if the impairment would substantially limit a major life activity of the individual when the impairment is active Nonetheless, not every impairment will constitute a disability within the meaning of this section.

(e) The term “substantially limits” shall be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of ORS 659A.100 to 659A.145 and 659A.400 to 659A.425, and should not require extensive analysis.

(17) "To rent" includes to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant.

(18) "Treatment" includes examination, evaluation, diagnosis and therapy by a health professional within the scope of the professional's applicable license.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103-.142; 659A.145 & 659A.421
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-005-0205 Housing Discrimination: Prohibited Discrimination in Real Property Transactions

(1) A person may not, because of race, color, religion, sex, sexual orientation, national origin, marital status, disability, familial status, source of income or other protected class of any individual:

(a) Refuse to sell, lease or rent any real property to a purchaser except that a person may refuse to lease or rent real property to a prospective renter or prospective lessee:

(A) Based upon the past conduct of a prospective renter or prospective lessee provided the refusal to lease or rent based on past conduct is consistent with local, state and federal law, including but not limited to fair housing laws; or

(B) Based upon the prospective renter's or prospective lessee's inability to pay rent, taking into account the value of the prospective renter's or prospective lessee's local, state and federal housing assistance, provided the refusal to lease or rent based on inability to pay rent is consistent with local, state and federal law, including but not limited to fair housing laws.

(b) Expel a purchaser from any real property;

(c) Make any distinction, discrimination or restriction against a purchaser in price, terms, conditions or privileges relating to the sale, rental, lease or occupancy of real property or in the furnishing of any facilities or services in connection with real property;

(d) Attempt to discourage the sale, rental, lease or occupancy of any real property to a purchaser;

(e) Publish, circulate, issue or display or cause to be published, circulated, issued or displayed, any communication, notice, advertisement, or sign of any kind whether oral, written or electronic, relating to the sale, rental or leasing of real property that indicates any preference, limitation, specification or unlawful discrimination based on race, color, religion, sex, sexual orientation, national origin, marital status, disability, familial status, source of income and other classes protected under Oregon statutes;

(f) Assist, induce, incite or coerce another person to commit an act or engage in a practice that violates ORS 659A.145, 659A.421, the federal Fair Housing Act (42 U.S.C. §3601–3617) or these rules;

(g) Coerce, intimidate, threaten or interfere with any individual in the exercise or enjoyment of, or on account of having exercised or enjoyed, or on account of having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by ORS 659A.145, 659A.421, the federal Fair Housing Act (42 U.S.C. §3601–3617) or these rules;

(h) Deny access to, or membership or participation in, any multiple listing service, real estate broker’s organization or other service, organization or facility relating to the business of selling or renting dwellings, or discriminate against any individual in the terms or conditions of the access, membership or participation;

(i) Represent to an individual that a dwelling is not available for inspection, sale, rental or lease when the dwelling in fact is available for inspection, sale, rental or lease;

(j) Otherwise make unavailable or deny a dwelling to an individual.

(2) A person whose business includes engaging in residential real estate related transactions may not discriminate against any individual in making a transaction available, or in the terms or conditions of the transaction, because of race, color, religion, sex, sexual orientation, national origin, marital status, disability, familial status, source of income and other classes protected under Oregon statutes.

(3) A real estate licensee may not accept or retain a listing of real property for sale, lease or rental with an understanding that a purchaser may be discriminated against with respect to the sale, rental or lease thereof because of race, color, religion, sex, sexual orientation, national origin, marital status, disability, familial status, source of income and other classes protected under Oregon statutes.

(4) A person may not, for profit, induce or attempt to induce any other person to sell or rent any dwelling by representations regarding the entry or prospective entry into the neighborhood of an individual or individuals of a particular race, color, religion, sex, sexual orientation, national origin, marital status, disability, familial status, source of income and other classes protected under Oregon statutes.

(5) For purposes of OAR 839-005-0205(1) to (4), “source of income” includes federal rent subsidy payments under 42 U.S.C. §1437f, and any other local, state, or federal housing assistance. “Source of income” does not include income from specific occupations or income derived in an illegal manner.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103, 659A.142 & 659A.145, 659A.421 & 42 U.S.C. §3601–3617
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 9-2014, f. & cert. ef. 7-3-14
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-005-0206 Discrimination Theories: Housing

(1) For the purposes of housing discrimination complaints under ORS 659A.145 or 659A.421 or discrimination complaints under the federal Fair Housing Act (42 U.S.C. §3601–3617) an aggrieved person need not be a member of a protected class in order to file a complaint of housing discrimination.

(2) Substantial evidence of intentional unlawful discrimination exists if the division's investigation reveals reasonable cause for the commissioner to believe the facts concerning the alleged discriminatory housing practice are sufficient to warrant the initiation of a civil action in circuit court under one of the following theories:

(a) Specific Intent Theory: The respondent knowingly and purposefully discriminates against an individual because of that individual’s membership in a protected class.

(b) Different or Unequal Treatment Theory: The respondent treats members of a protected class differently than others who are not members of that protected class. When the respondent makes this differentiation because of the individual’s protected class and not because of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing a case of different or unequal treatment:

(A) There must be substantial evidence that the individual was harmed or was about to be harmed by the action of the respondent under circumstances that make it appear that the respondent treated the individual differently than comparably situated individuals who were not members of the individual’s protected class. Substantial evidence of discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support that protected class membership was a motivating factor for the respondent’s alleged unlawful action. If the respondent fails to rebut this evidence with evidence of a legitimate non-discriminatory reason, the division will conclude that substantial evidence of discrimination exists.

(i) Pretext: If the respondent rebuts the evidence with evidence of a legitimate non-discriminatory reason, but there is substantial evidence that the respondent’s reason is a pretext for discrimination, the division will conclude there is substantial evidence of unlawful discrimination.

(ii) Mixed Motive: If the respondent presents substantial evidence that a legitimate, non-discriminatory reason contributed to the respondent’s action, but the division finds the individual’s protected class membership was also a substantial factor in the respondent’s action, the division will determine there is substantial evidence of unlawful discrimination.

(B) The aggrieved person at all times has the burden of proving that the individual’s protected class was the motivating factor for the respondent’s unlawful action.

(3) Adverse Impact Discrimination in Housing:

(a) For the purposes of interpreting ORS 90.390, a court or the commissioner may find that a person has violated or is going to violate 659A.145 or 659A.421 if:

(A) The person applies a facially neutral housing policy to a member of a protected class;

(B) Application of the policy adversely impacts members of the protected class to a greater extent than the policy impacts persons generally.

(b) In determining under subsection (a) of this section whether a violation has occurred or will occur and, if it is determined that a violation has occurred or will occur, what relief should be granted, a court or the commissioner will consider:

(A) The significance of the adverse impact on the protected class;

(B) The importance and necessity of any business purpose for the facially neutral housing policy; and

(C) The availability of less discriminatory alternatives for achieving the business purpose for the facially neutral housing policy.

(4) As used in enforcing ORS 659A.145 or 659A.421 or the federal Fair Housing Act (42 U.S.C. §3601–3617), harassment on the basis of a protected class is an unlawful practice in housing when:

(a) Conduct of a verbal or physical nature relating to protected classes is unlawful when substantial evidence of the elements of intentional discrimination, as described in section (2) of this rule is shown; and

(A) Such conduct is sufficiently severe or pervasive to have the purpose or effect of creating an intimidating, hostile, or offensive environment; or

(B) Submission to such conduct is made either explicitly or implicitly a term or condition of housing; or

(b) The standard for determining whether harassment is sufficiently severe or pervasive to create a hostile, intimidating or offensive environment is whether a reasonable person in the circumstances of the individual against whom the harassment is directed would so perceive it.

(5) Tenant-on-tenant harassment: A housing provider is liable for a resident’s harassment of another resident when the housing provider knew or should have known of the conduct, unless the housing provider took immediate and appropriate corrective action.

(6) Harassment by Employees or Agents: A housing provider is liable for harassment of a resident by the housing provider’s employees or agents when the housing provider knew or should have known of the conduct, unless the housing provider took immediate and appropriate corrective action.

(7) Discrimination based on disability may involve intentional discrimination, including harassment, or discrimination that need not be intentional, including adverse impact, or the failure to permit reasonable modifications, the refusal to make reasonable accommodations or the failure to design and construct covered buildings under applicable rules. To be protected from discrimination based on disability, an individual must have a disability, as described in ORS 659A.104 and the relevant rules. Reasonable accommodation in real property transactions is covered by 659A.145 and OAR 839-005-0220. Reasonable modifications in housing and the design and construction of covered buildings are covered by ORS 659A.145. Claims of disability discrimination brought under federal housing law are defined under that law.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 - 659A.142; 659A.145 & 659A.421
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 8-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-005-0210 Housing Discrimination: Exceptions

(1) OAR 839-005-0205 does not apply with respect to sex distinction, discrimination or restriction if the real property involved is such that the application of OAR 839-005-0205 would necessarily result in common use of bath or bedroom facilities by unrelated persons of opposite sex.

(2) The provisions of OAR 839-005-0205(1)(a) to (d) and (f) that prohibit actions based upon sex, sexual orientation or familial status do not apply to the renting of space within a single-family residence if the owner actually maintains and occupies the residence as the owner’s primary residence and all occupants share some common space within the residence.

(3)(a) OAR 839-005-0205 does not apply to familial status distinction, discrimination or restriction with respect to housing for older persons.

(b) As used in this subsection, “housing for older persons” means housing:

(A) Provided under any state or federal program that is specifically designed and operated to assist elderly persons, as defined by the state or federal program;

(B) Intended for, and solely occupied by, persons 62 years of age or older; or

(C) Intended and operated for occupancy by at least one person 55 years of age or older per unit. Housing qualifies as housing for older persons under this subparagraph if:

(i) At least 80 percent of the dwellings are occupied by at least one person 55 years of age or older per unit; and

(ii) Policies and procedures that demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older are published and adhered to.

(A) Persons residing in the housing as of September 13, 1988, do not meet the requirements of paragraph (b)(B) or (C) of this subsection. However, new occupants of such housing will meet the age requirements of paragraph (b)(B) or (C) of this subsection; or

(B) The housing includes unoccupied units that are reserved for occupancy by persons who meet the age requirements of paragraph (b)(B) or (C) of this subsection.

(d) Nothing in this section limits the applicability of any reasonable local, state or federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103, 659A.142 & 659A.145, 659A.421 & 42 U.S.C. §3601–3617
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-005-0215 Housing Discrimination: Religious Exemption

It is not an unlawful practice for a bona fide church or other religious institution to take any action with respect to housing based on a bona fide religious belief about sexual orientation as long as the housing is closely connected with or related to the primary purpose of the church or institution and is not connected with a commercial or business activity that has no necessary relationship to the church or institution (see OAR 839-005-0031).

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103, 659A.142 & 659A.145, 659A.421 & 42 U.S.C. §3601–3617
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-005-0220 Housing Discrimination: Discrimination in Real Property Transactions Against Individuals Based on Disabilities

(1) Individuals protected from discrimination on the basis of disability in real property transactions include any individual with a disability associated with a purchaser.

(2) In addition to the prohibitions in OAR 839-005-0205, discrimination in real property transactions based on an individual’s disability includes, but is not limited to:

(a) Failure to design and construct a covered multifamily dwelling as required by the Fair Housing Act (42 U.S.C. 3601 et seq.);

(b) Refusing to permit, at the expense of an individual with a disability, reasonable modifications of existing premises occupied or to be occupied by that individual if such modifications may be necessary to afford that individual full enjoyment of the premises, except that, in the case of rental, the landlord may, where it is reasonable to do so, condition permission for modification on the renter agreeing to restore the interior of the premises to the condition that existed before the modification, reasonable wear and tear excepted;

(A) In the case of a rental, a disabled renter is only required to restore the interior premises to the condition that existed before the modification when the landlord required restoration as a condition to granting the disabled renter’s reasonable modification request.

(c) Refusing to make reasonable accommodations in rules, policies, practices or services when such accommodations may be necessary to afford an individual with a disability equal opportunity to use and enjoy a dwelling;

(A) A housing provider may not require verification of the disability-related need for a requested accommodation if that need is readily apparent or otherwise known;

(B) If a disability or a disability-related need for a requested accommodation is not readily apparent or otherwise known, the provider may request only information that is necessary to evaluate the disability-related need for the accommodation;

(C) It is a violation of this section for a housing provider to refuse to permit a disabled person to live in a covered dwelling with an animal that mitigates one or more of the person’s disability-related needs, except when a specific animal poses a direct threat to the health or safety of other individuals and the threat cannot be eliminated or significantly reduced; and

(D) A housing provider may not charge a resident or applicant deposits or other fees for keeping an animal covered under this section.

(3) Direct Threat. A lessor or agent may engage in conduct otherwise prohibited by ORS 659A.145 when:

(a) Leasing or rental of the subject property by an individual with a disability would constitute a direct threat to the health or safety of other individuals or would result in substantial physical damage to the property of others; and

(b) No reasonable accommodation is possible that would eliminate or acceptably minimize the risk to health and safety.

(4) A determination that a direct threat exists must rely on an individualized assessment that is based on reliable objective evidence (e.g., current conduct, or a recent history of overt acts posing a risk to health and safety). The assessment must consider:

(a) The nature, duration and severity of the risk of injury;

(b) The probability that injury will actually occur; and

(5) A lessor or agent must allow alterations of existing premises if the premises are occupied by or to be occupied by an individual with a disability, and the individual with a disability pays for the alterations, as provided in section 2 of this rule.

(6) Receipt or alleged receipt of treatment for a mental disorder does not constitute evidence of an individual’s inability to acquire, rent or maintain property.

(7) In the sale, lease or rental of real estate, a person may not disclose to any person that an occupant or owner of real property has or died from human immunodeficiency virus or acquired immune deficiency syndrome.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 – 659A.142; 659A.145 & 659A.421
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08
BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09
Reverted to BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08
BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08
BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08

Or. Admin. R. 839-005-0300 Discrimination by Career Schools: Purpose and Scope

(1) ORS 345.240 prohibits unlawful discrimination by career schools licensed under ORS 345.010 to 345.450.

(2) A violation of ORS 345.240 is an unlawful practice under ORS chapter 659A. The provisions of ORS Chapter 659A that apply to unlawful practices, apply to alleged violations of ORS 345.240, including but not limited to ORS 659A.030(1)(f) and 659A.800 through 659A.865.

(3) Any individual claiming to be aggrieved by an unlawful practice including a violation of ORS 345.240 may file a complaint with the Commissioner of the Bureau of Labor and Industries under ORS 659A.820.

(4) The Civil Rights Division of the Bureau of Labor and Industries enforces ORS 345.240. These rules implement and interpret ORS 345.240.

History

Statutory/Other Authority: ORS 651.060
Statutes/Other Implemented: ORS 345.240
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13

Or. Admin. R. 839-005-0305 Discrimination by Career Schools: Definitions

For purposes of ORS 345.240 and these rules:

(1) “Agent” means an individual who:

(a) Is employed by or for a career school, or is working on behalf of the school under a contract, for the purpose of procuring students, enrollees or subscribers of the school by solicitation in any form that is made at a place or places other than the school office or place of business of the school; or

(b) At the request of a career school or under a contract with a career school, provides information technology services for the school and has control over information technology systems that are used for the purpose of procuring students, enrollees or subscribers of the school by solicitation in any form that is made by technology that is accessed at a place or places other than the school office or place of business of the school.

(2) “Career school” includes any private proprietary professional, technical, home study, correspondence, business or other school instruction, organization or person that offers any instruction or training for the purpose or purported purpose of instructing, training or preparing persons for any profession. “Career school” includes those required to be licensed under ORS 345.010 to 345.450, and excludes entities described in ORS 345.015. Entities excluded by ORS 345.015 but receiving state funds, may be subject to ORS 659.850, which is under the jurisdiction of the State Board of Higher Education.

(3) "Discrimination" means any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on age, disability, national origin, race, color, marital status, religion, sex or sexual orientation.

(4) “Sexual orientation” means an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.

History

Statutory/Other Authority: ORS 651.060
Statutes/Other Implemented: ORS 345.240, 345.010 & 659.850
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13

Or. Admin. R. 839-005-0310 Discrimination by Career Schools: Unlawful Discrimination

(1) No career school or its agent may, based on the protected classes of age, disability, national origin, race, color, marital status, religion, sex or sexual orientation of an individual or any other individual with whom that individual associates:

(a) Refuse admission to any individual;

(b) Discriminate in any aspect of admission or enrollment against any individual;

(d) Discriminate in requirements for or the provision of aid, benefits, or services;

(e) Discriminate in application of rules of behavior, sanctions, or any other treatment; or

(f) Otherwise limit any individual in the enjoyment of any right, privilege, advantage, or opportunity.

(2) No career school may aid or perpetuate discrimination by joining or remaining a member of any organization that discriminates, based on the protected classes in subsection (1) of this rule, in providing any aid, benefit, or service to students or employees.

History

Statutory/Other Authority: ORS 651.060
Statutes/Other Implemented: ORS 345.240 & 659.850
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13

Or. Admin. R. 839-005-0315 Discrimination Theories: Career Schools

(1) Intentional Unlawful Discrimination: Substantial evidence of intentional unlawful discrimination exists if the division's investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001 and OAR 839-005-0003;

(b) The aggrieved person is a member of a protected class;

(A) Specific Intent Theory: The respondent knowingly and purposefully discriminates against an individual because of that individual's membership in a protected class, unless the respondent can show that a bona fide voluntary, court-ordered affirmative action plan (OAR 839-005-0013(3)) allows the action.

(II) Mixed Motive: If the respondent presents substantial evidence that a legitimate, non-discriminatory reason contributed to the respondent's action, but the division finds the individual's protected class membership was also a substantial factor in the respondent's action, the division will determine there is substantial evidence of discrimination.

(ii) The aggrieved person at all times has the burden of proving that the aggrieved person’s protected class was the reason for the respondent's unlawful action.

(2) Harassment based on an individual's protected class is a type of intentional unlawful discrimination.

(A) Such conduct is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with an individual's performance or creating an intimidating, hostile or offensive environment;

(B) Submission to such conduct is made either explicitly or implicitly a term or condition of enrollment; or

(3) Adverse Impact Discrimination: Substantial evidence of adverse impact discrimination does not require establishment of intentional discrimination as provided in (1) of this rule. Adverse impact discrimination exists if the division's investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001 and OAR 839-005-0003;

(b) The respondent has a standard or policy that is applied equally.

(d) The aggrieved person is a member of the protected class adversely affected by the respondent's standard or policy and has been harmed by the respondent's application of the standard or policy.

(4) Reasonable Accommodation of Religion: A career school must reasonably accommodate a student’s or applicant's religious belief, observance or practice unless the career school can demonstrate that such accommodation would cause it undue hardship.

History

Statutory/Other Authority: ORS 651.060
Statutes/Other Implemented: ORS 345.240, 345.120 & 345.060
BLI 11-2023, minor correction filed 07/18/2023, effective 07/18/2023
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13

Or. Admin. R. 839-005-0320 Discrimination by Career Schools: Authority of Superintendent of Public Instruction Related to Complaints under ORS 345.240

(1) Pursuant to ORS 345.120, the Superintendent of Public Instruction of the State of Oregon has authority to suspend or revoke licenses of career schools violating ORS 345.010 to 345.450 or any applicable rule. A certified copy of a finding by the Commissioner of the Bureau of Labor and Industries in a contested case proceeding under ORS 659A.850 that the school has violated ORS 345.240 is adequate proof of the violation.

(2) Pursuant to ORS 345.060, the Superintendent of Public Instruction may accept service of all actions or proceedings brought against a career school not domiciled in Oregon.

History

Statutory/Other Authority: ORS 651.060
Statutes/Other Implemented: ORS 345.240, 345.120 & 345.060
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13

Or. Admin. R. 839-005-0325 Discrimination by Career Schools: Retaliation or Discrimination

Pursuant to, ORS 659.852(1)(b), it is an unlawful practice for a career school or its agent to retaliate or discriminate against any individual because the individual has in good faith reported information that the student believes is evidence of a violation of a state or federal law, rule or regulation.

History

Statutory/Other Authority: ORS 651.060
Statutes/Other Implemented: ORS 345.240 & 659.850
BLI 9-2016, f. & cert. ef. 11-8-16
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13

Or. Admin. R. 839-005-0400 Employer Access to Employee or Applicant Social Media Accounts: Unlawful Employment Practice

(1) It is an unlawful employment practice for an employer to:

(a) Require or request an employee or an applicant for employment to establish or maintain a personal social media account, or to disclose or to provide access through the employee's or applicant's user name and password, password or other means of authentication that provides access to a personal social media account;

(b) Require an employee or an applicant for employment to authorize the employer to advertise on the personal social media account of the employee or applicant;

(c) Compel an employee or applicant for employment to add the employer or an employment agency to the employee's or applicant's list of contacts associated with a social media website;

(d) Except as provided in subsection (4)(b) of this section, compel an employee or applicant for employment to access a personal social media account in the presence of the employer and in a manner that enables the employer to view the contents of the personal social media account that are visible only when the personal social media account is accessed by the account holder's user name and password, password or other means of authentication;

(e) Take, or threaten to take, any action to discharge, discipline or otherwise penalize an employee for the employee's refusal to disclose, or to provide access through, the employee's user name and password, password or other means of authentication that is associated with a personal social media account, to add the employer to the employee's list of contacts associated with a social media website or to access a personal social media account as described in subsection (7); or

(f) Fail or refuse to hire an applicant for employment because the applicant refused to disclose, or to provide access through, the applicant's user name and password, password or other means of authentication that is associated with a personal social media account, to add the employer to the applicant's list of contacts associated with a social media website or to access a personal social media account as described in subsection (7).

(2) An employer may require an employee to disclose any username and password, password or other means for accessing an account provided by, or on behalf of, the employer or to be used on behalf of the employer.

(3) An employer may not be held liable for the failure to request or require an employee or applicant to disclose the information specified in subsection (1)(a) of this section.

(4) Nothing in this section prevents an employer from:

(a) Conducting an investigation, without requiring an employee to provide a user name and password, password or other means of authentication that provides access to a personal social media account of the employee, for the purpose of ensuring compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct based on receipt by the employer of specific information about activity of the employee on a personal online account or service.

(b) Conducting an investigation permitted under this subsection that requires an employee, without providing a user name and password, password or other means of authentication that provides access to a personal social media account of the employee, to share content that has been reported to the employer that is necessary for the employer to make a factual determination about the matter.

(5) Nothing in this section prohibits an employer from accessing information available to the public about the employee or applicant that is accessible through an online account.

(6) If an employer inadvertently receives the user name and password, password or other means of authentication that provides access to a personal social media account of an employee through the use of an electronic device or program that monitors usage of the employer's network or employer-provided devices, the employer is not liable for having the information but may not use the information to access the personal social media account of the employee.

(7) As used in this section, “social media” means an electronic medium that allows users to create, share and view user-generated content, including, but not limited to, uploading or downloading videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail or Internet website profiles or locations.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.330
BLI 18-2015, f. 12-22-15, cert. ef. 1-1-16
BLI 11-2015, f. & cert. ef. 8-4-15
BLI 14-2013, f. & cert. ef. 12-30-13

Division 6 INJURED WORKERS; DISABILITY; VETERANS AND PERSONS IN UNIFORMED SERVICES

Or. Admin. R. 839-006-0100 Injured Workers: Purpose and Scope

(1) The Civil Rights Division of the Bureau of Labor and Industries enforces the provisions of ORS 659A.040 to 659A.052, prohibiting discrimination against employees who use the Workers’ Compensation statutes and providing specific reinstatement and reemployment requirements.

(2) It is an unlawful employment practice for an employer to discriminate against a worker injured on the job who applies for benefits under or in other ways invokes or uses the Oregon Workers’ Compensation system. An employer may not discriminate against workers who have testified, are about to give testimony, or who are perceived as having testified in connection with Oregon Workers’ Compensation procedures or civil procedures pursuant to ORS 659A.040, 659A.043, 659A.046.

(3) A worker or injured worker claiming a violation under Oregon’s injured worker statutes may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.040 - 659A.052
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 1-1983, f. & ef. 1-26-83

Or. Admin. R. 839-006-0105 Injured Workers: Definitions

(1) "Attending physician" means a physician or physician’s assistant primarily responsible for the treatment of a worker's on-the-job injury as described in ORS 656.005(12).

(2) “Authorized nurse practitioner” means a nurse practitioner authorized to provide compensable medical services under ORS 656.245.

(3) "Bureau" means the Bureau of Labor and Industries.

(4) "Demand" means the injured worker informing the employer that the worker seeks reinstatement or reemployment.

(5) "Division" means the Civil Rights Division of the Bureau of Labor and Industries.

(6) "Injured worker" means a worker who has a compensable injury as defined in ORS 656.005(7)(a). Injured worker, for purposes of 659A.040, includes a worker who has invoked the protection of the Oregon Workers' Compensation statutes. Injured worker, for the purposes of reinstatement rights under 659A.043, does not include:

(a) a worker hired on a temporary basis as a replacement for an injured worker;

(b) a seasonal worker hired for and actually employed for less than six months in a calendar year; or

(c) a worker whose employment at the time of the injury resulted from working short terms of employment as the result of referral by a hiring hall operating pursuant to a collective bargaining agreement.

(7) "Invoke," as used in ORS 659A.040, includes, but is not limited to, a worker's reporting of an on-the-job injury or a perception by the employer that the worker has been injured on the job or will report an injury.

(8) "Release to the former position" means a release to the position a worker held prior to an on-the-job injury as provided in ORS 659A.043.

(9) "Release to an available, suitable position" means a release to work that meets an injured worker's medical restrictions and for which the worker possesses the necessary skills and abilities as provided in ORS 659A.046. An available, suitable position may vary in duties or hours from the worker's former position and may be a different position or a modified version of the injured worker's former position. An available, suitable position is paid at the rate normally paid by the employer for that position.

(10) "Supervisor" means a person exercising direct supervisory authority over a worker's position.

(11) "Worker" means any person, including a minor, whether lawfully or unlawfully employed, engaged to furnish services for remuneration, subject to the direction and control of an employer. A worker also includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations, whether or not the worker is supervised by the employer. For the purposes of ORS 659A.040, worker also includes an applicant for a job. A worker does not include any person whose services are performed as an inmate or ward of a state institution or any person whose services are performed as part of the eligibility requirements for a public assistance grant, as provided in 656.005(30).

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.040 - 659A.052
BLI 43-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 3-1991, f. 2-12-91, cert. ef. 2-15-91
BL 13-1990(Temp), f. & cert. ef. 9-4-90
BL 1-1983, f. & ef. 1-26-83

Or. Admin. R. 839-006-0115 Injured Workers: Covered Employees and Employers

(1) As provided in ORS 659A.040, an employer may not discriminate against employees or applicants with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS Chapter 656 or 659A.040 to 659A.052 or has given testimony, is about to give testimony or is perceived as having testified under the provisions of such sections. As provided in 659A.046, an employer must reemploy an injured worker who is unable to perform the duties of the worker’s former position to an available, suitable position. “Employer” for the purposes of 659A.040 and 659A.046 includes persons employing six or more employees on a full-time, part-time or seasonal basis at one of the following times:

(a) At the time of the worker’s on-the-job injury;

(b) At the time of the injured worker’s demand for reemployment under ORS 659A.046; or

(2) As provided in ORS 659A.043, an employer must reinstate an injured worker to the worker’s former position. If the former position no longer exists the employer must offer the worker a vacant, suitable position. “Employer” for the purposes of 659A.043 are those employing 21 or more workers at one of the following times:

(a) At the time of the worker’s on-the-job injury; or

(b) At the time of the worker’s demand for reinstatement to the worker’s former position under ORS 659A.043.

(3) The “six or more persons” referred to in section (1) and the “21 or more employees” referred to in section (2) need not be employed within Oregon.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.100, 659A.040, 659A.043 - 659A.046 & 659A.049
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 10-1996, f. & cert. ef. 12-4-96
BL 4-1996, f. & cert. ef. 3-12-96
BL 3-1991, f. 2-12-91, cert. ef. 2-15-91
BL 13-1990(Temp), f. & cert. ef. 9-4-90
BL 1-1983, f. & ef. 1-26-83

Or. Admin. R. 839-006-0117 Injured Workers: Prohibited Discrimination

(1) Pursuant to ORS 659A.040, unlawful employment practices include:

(a) Refusal to hire or promote, to bar or discharge from employment or to discriminate in compensation, terms, conditions or privileges of employment because a person applies for benefits under or in other ways invokes or uses Oregon Worker’s Compensation system as provided for in ORS Chapter 656.

(b) Discriminating against a person who has testified, is about to give testimony, or who is perceived as having testified in connection with Oregon Worker’s Compensation procedures or civil procedures pursuant to ORS 659A.040, 659A.043 and 659A.046.

(2) Pursuant to ORS 659A.030(1)(g), it is an unlawful employment practice for a person, whether an employer or employee, to aid, abet, incite, compel or coerce an individual to do any of the acts forbidden by ORS 659A.040 to 659A.052, or attempt to do so.

(3) When disciplining workers for excessive absenteeism, an employer cannot count the time an injured worker is off the job because of a compensable injury when calculating the injured worker’s absenteeism rate, as long as the time off the job is covered by time loss compensation or are absences medically certifiable by the attending physician in connection with the compensable injury.

(4) A person claiming a violation under Oregon’s injured worker statutes may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.030(1)(g), 659A.040 & 659A.820
BLI 10-2002, f. & cert. ef. 5-17-02

Or. Admin. R. 839-006-0130 Injured Workers: Reinstatement Under ORS 659A.043

(1) An employer with 21 or more employees at the time of a worker's on-the-job injury or at the time an injured worker demands reinstatement to the former position must reinstate the worker to the worker's former position if:

(a) The injured worker's former position still exists (has not been eliminated for bona fide reasons). The former position "exists" even though the position may have been renamed or reclassified;

(b) The injured worker's former position is available. A worker's former position is "available" even if that position has been filled by a replacement worker while the injured worker was absent and regardless of the employer's possible preference for the replacement worker;

(d) Timely demand is made as provided in OAR 839-006-0130(5)(d).

(2) If the former position exists but is not available (due to seniority or other employment restrictions contained in a valid collective bargaining agreement that the injured worker does not meet; see subsection (8) of this rule), the employer must offer the injured worker a vacant, suitable position.

(a) For the purposes of ORS 659A.043, a suitable position is one that is most similar to the former position in compensation, duties, responsibilities, skills, location, duration (full or part-time, temporary or permanent), and shift.

(b) If a suitable position is not available at the worker's normal work location the employer must consider vacant, suitable positions in all the employer's facilities within reasonable commuting distance, not just the facility where the injured worker was previously employed.

(c) Prior to beginning a vacant, suitable position, the injured worker has the right to discuss position duties with the employer and to receive written clarification of the specific duties.

(3) At the time of the injured worker's demand for reinstatement, if the worker's former position no longer exists and no other position exists that is vacant and suitable, the injured worker must follow the employer's reporting policy until the employer offers the worker the former position or a vacant, suitable position. The employer's reporting policy must be written, non-discriminatory and effectively made known to the employer's work force. If the employer has no such reporting policy, the employer may require the injured worker to inform the employer of any change in address and telephone number within ten days of the change, provided the employer gives prior written notice of this requirement to the injured worker.

(4) A certificate by the attending physician or authorized nurse practitioner that the attending physician or authorized nurse practitioner approves the worker’s return to the worker’s regular employment or other suitable employment shall be prima facie evidence that the worker is able to perform such duties.

(a) In addition to an attending physician or authorized nurse practitioner certificate, the employer may require, within a reasonable period of time and at the employer's expense, further evidence of the injured worker's physical ability to perform the duties of the former position. The employer may, in a manner consistent with worker's compensation regulations, consult the worker's attending physician or authorized nurse practitioner regarding the worker's condition as it relates to the worker's ability to perform the duties of the former position.

(b) The employer may not question the attending physician’s or authorized nurse practitioner’s release as a subterfuge to avoid employer responsibilities under ORS 659A.043.

(5) The injured worker must make demand for reinstatement to the former position according to the employer's written policy effectively made known to the employer's workforce. If the employer has no such policy, the injured worker's demand:

(a) May be oral or written;

(b) Must be made to a supervisor, personnel officer or person in management;

(d) May be made at any time after the attending physician or authorized nurse practitioner has released the injured worker for reinstatement to the former position, but must be made no later than seven calendar days after receiving certified mail notice from the insurer or self-insured employer that the worker's attending physician or authorized nurse practitioner has released the worker for return to the worker's former position. For purposes of this section, receipt of notice is deemed to have occurred on the day the worker signs a receipt for the mailing or three days following the deposit of the certified mail with the U.S. Postal Service, whichever occurs first, provided such mail is sent to the worker's last known address and that address is within the state. If the worker's last known address is outside of the state, the date of notice is the date the worker signs a receipt for the mailing or seven days after the mailing, whichever occurs first.

(6) Extenuating circumstances may, in very rare instances, extend the time allowed for timely demand for reinstatement.

(7) When the injured worker has not made demand for reinstatement to the former position because the employer has made it known to the worker that reinstatement will not be considered, even if a suitable position is vacant, and that an actual demand would therefore be futile, the division will deem the worker to have made timely demand.

(8) The right of reinstatement is guaranteed by ORS 659A.043. Conditions of reinstatement are subject to seniority and other employment restrictions contained in a valid collective bargaining agreement.

(9) If the injured worker's former position no longer exists, and there is no vacant, suitable position, the employer has no obligation to create a position for a returning injured worker. If the employer creates such a position, the position may be discontinued at any time.

(10) Except as provided in these rules, an injured worker has no greater right to a position or other employment benefit than if the worker had not been injured.

(11) The duty under ORS 659A.043 to reinstate an injured worker to the worker's former position extends to a successor employer to the worker's employer at the time of injury. Determining whether a respondent is a successor employer involves a nine-part test. Not every element of the test need be present to find an employer to be a successor; the facts must be considered together to reach a determination:

(a) Whether respondent had notice of the injured worker at the time of acquiring or taking over the business;

(b) The ability of the predecessor to reinstate the injured worker;

(d) Whether the respondent uses the same plant as the predecessor;

(e) Whether respondent uses the same or substantially the same work force as the predecessor;

(f) Whether respondent uses the same or substantially the same supervisory personnel as the predecessor;

(g) Whether under respondent the same jobs exist under substantially the same working conditions as under the predecessor;

(h) Whether respondent uses the same machinery, equipment and methods of production as the predecessor;

(i) Whether respondent produces the same product as the predecessor.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.043
BLI 43-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 2-1998, f. & cert. ef. 2-3-98
BL 10-1996, f. & cert. ef. 12-4-96
BL 4-1996, f. & cert. ef. 3-12-96
BL 3-1991, f. 2-12-91, cert. ef. 2-15-91
BL 13-1990(Temp), f. & cert. ef. 9-4-90
BL 3-1986, f. & ef. 4-7-86
BL 1-1983, f. & ef. 1-26-83

Or. Admin. R. 839-006-0131 Injured Workers: Loss of Reinstatement Rights Under ORS 659A.043

(1) An injured worker meeting the requirements for reinstatement under ORS 659A.043 loses the right to reinstatement to the worker's former position when any of the following occurs:

(a) A medical determination by the attending physician or, after an appeal of such determination, by a medical arbiter or panel of medical arbiters pursuant to ORS chapter 656, that the worker cannot return to the former position of employment;

(b) The worker is eligible for and participates in vocational assistance under ORS 656.340;

(d) The worker refuses a bona fide offer from the employer of light duty of modified employment which is suitable prior to becoming medically stationary, except as provided under section (2) of this rule;

(e) Seven days elapse from the date that the worker is notified by the insurer or self-insured employer by certified mail that the worker’s attending physician or an authorized nurse practitioner has released the worker for employment unless the worker requests reinstatement within that time period;

(f) Three years elapse from the date of injury;

(g) The worker is discharged for bonafide reasons not connected with the injury and for which others are or would be discharged; or

(h) The worker clearly and unequivocally abandons employment with the employer.

(2) A worker who refuses an offer of employment under subsection (1)(d) of this rule and who otherwise is entitled to Oregon Family Leave Act (OFLA) leave under ORS 659A.150 to 659A.186:

(a) Automatically commences a period of OFLA leave upon refusing the offer of employment; and

(b) Need not give notice to the employer that would otherwise be required under OAR 839-009-0250 that the employee is commencing a period of OFLA leave. See ORS 659A.162 and 659A.043.

(3) The right to reinstatement does not apply to:

(a) A worker hired on a temporary basis as a replacement for an injured worker;

(b) A seasonal worker hired for and actually employed for less than six months in a calendar year; or

(c) A worker whose employment at the time of injury resulted from referral to short-term employment from a hiring hall operating pursuant to a collective bargaining agreement.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.150 – ORS 659A.186
BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 34-2006, f. 10-3-06, cert. ef. 10-4-06
Reverted to BLI 10-2002, f. & cert. ef. 5-17-02
BLI 11-2006(Temp), f. 3-16-06, cert. ef. 3-17-06 thru 9-8-06
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 4-1996, f. & cert. ef. 3-12-96

Or. Admin. R. 839-006-0135 Injured Workers: Reemployment Under ORS 659A.046

(1) An employer with six or more employees at the time of the worker's on-the-job injury or at the time of the injured worker's demand for reemployment must reemploy an injured worker disabled from performing the duties of the worker’s former regular employment to an available, suitable position if:

(a) The injured worker is medically released to perform the duties of the available, suitable position; and

(b) Timely demand is made as provided in OAR 839-006-0135(8)(d).

(2) For the purposes of ORS 659A.046, an available position is one that is vacant and for which the worker meets seniority or other employment restrictions contained in any applicable valid collective bargaining agreement (see subsection (11) of this rule).

(3) For the purposes of ORS 659A.046, a suitable position is one that meets the injured worker's medical restrictions and for which the worker possesses the necessary skills and abilities. A suitable position is as similar as practicable to the worker's former position in compensation, duties, responsibilities, skills, location, duration (full or part-time, temporary or permanent) and shift. A suitable position under ORS 659A.046 is paid at the rate normally paid by the employer for that position.

(4) Prior to beginning an available, suitable position, the injured worker has the right to discuss the duties of the available, suitable position with the employer and to receive written clarification of the specific duties.

(5) Notwithstanding OAR 839-006-0136(6), an injured worker who meets the requirements of ORS 659A.046 and who has been placed in an available, suitable position is entitled to remain in the position, provided the worker's restrictions continue to allow the worker to perform the duties of the position and the position is not eliminated for bona fide reasons. If an injured worker recovers to the point that the worker can perform the duties of the worker's former position, the worker must make timely demand for reinstatement to the former position, subject to OAR 839-006-0130.

(6) At the time of the injured worker's demand for reemployment, a suitable position may not be available. When this occurs, the injured worker must follow the employer's reporting policy until the employer offers the injured worker an available, suitable position. The employer's reporting policy must be written, non-discriminatory, and effectively made known to the employer's work force. If the employer has no such reporting policy, the employer may require the injured worker to inform the employer of any change in address and telephone number within ten days of the change, provided the employer gives prior written notice of this requirement to the injured worker.

(a) If an employer has no suitable position available, the employer has no obligation to create a position for a returning injured worker. If the employer creates such a position, the position may be discontinued at any time. A modified version of the worker's former position is not a created position.

(b) If a suitable position is not available at the time an injured worker's attending physician or authorized nurse practitioner finds the worker to be medically stationary but unable to perform the duties of the former position, the injured worker continues to retain the right to be reemployed in an available, suitable position for three years from the date of the injury, provided no other conditions of OAR 839-006-0136 have occurred.

(7) A certificate of the worker’s attending physician or authorized nurse practitioner that the worker is able to perform described types of work shall be prima facie evidence of such ability.

(a) The employer may require, within a reasonable period of time and at the employer's expense, further evidence of the worker's physical ability to perform the available, suitable position. The employer may, consistent with worker's compensation regulations, consult the worker's attending physician or authorized nurse practitioner regarding the worker's condition as it relates to the worker's ability to perform the available, suitable position.

(b) The employer may not question the attending physician’s or authorized nurse practitioner’s release as a subterfuge to avoid employer responsibilities under ORS 659A.046.

(8) The injured worker must make demand for reemployment to an available, suitable position according to the employer's written policy effectively made known to the employer's workforce. If the employer has no such policy, the injured worker's demand:

(a) May be oral or written;

(b) Must be made to a supervisor, personnel officer or person in management;

(d) May be made any time after the attending physician or authorized nurse practitioner has released the injured worker to an available, suitable position, but must be made no later than seven calendar days after receiving certified mail notice from the insurer or self-insured employer that the worker's attending physician or authorized nurse practitioner has released the worker for reemployment to an available, suitable position. For purposes of this section, receipt of notice is deemed to have occurred on the day the worker signs a receipt for the mailing or three days following the deposit of the certified mail with the U.S. Postal Service, whichever occurs first, if such mail is sent to the worker's last known address and that address is within the state. If the worker's last known address is outside the state, the date of notice is the date the worker signs a receipt for the mailing or seven days after the mailing, whichever occurs first;

(9) Extenuating circumstances may, in very rare instances, extend the time allowed for timely demand for reemployment.

(10) When the injured worker has not made demand for reemployment to an available, suitable position because the employer has made it known to the worker that reemployment will not be considered even if a suitable position is available and that an actual demand would therefore be futile, the division will deem the worker to have made timely demand.

(11) The right of reemployment is guaranteed by ORS 659A.046. Conditions of reemployment are subject to seniority and other employment restrictions contained in a valid collective bargaining agreement.

(12) Except as provided in these rules, an injured work has no greater right to a position or other employment benefit than if the worker had not been injured.

(13) The duty under ORS 659A.046 to reemploy an injured worker to an available, suitable position extends to a successor employer to the worker's employer at the time of injury. Determining whether a respondent is a successor employer involves a nine-part test. Not every element of the test need be present to find an employer to be a successor; the facts must be considered together to reach a determination:

(a) Whether respondent had notice of the injured worker at the time of acquiring or taking over the business;

(b) The ability of the predecessor to reemploy the injured worker;

(d) Whether the respondent uses the same plant as the predecessor;

(e) Whether respondent uses the same or substantially the same work force as the predecessor;

(f) Whether respondent uses the same or substantially the same supervisory personnel as the predecessor;

(g) Whether under respondent the same jobs exist under substantially the same working conditions as under the predecessor;

(h) Whether respondent uses the same machinery, equipment and methods of production as the predecessor;

(i) Whether respondent produces the same product as the predecessor.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.046
BLI 43-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 2-1998, f. & cert. ef. 2-3-98
BL 4-1996, f. & cert. ef. 3-12-96
BL 3-1991, f. 2-12-91, cert. ef. 2-15-91
BL 13-1990(Temp), f. & cert. ef. 9-4-90
BL 3-1986, f. & ef. 4-7-86
BL 1-1983, f. & ef. 1-26-83

Or. Admin. R. 839-006-0136 Injured Workers: Loss of Reemployment Rights Under ORS 659A.046

An injured worker meeting the requirements for reemployment under ORS 659A.046 loses the right to reemployment to an available, suitable position when any of the following occurs:

(1) A medical determination by the attending physician or authorized nurse practitioner or, after an appeal of such determination, by a medical arbiter or panel of medical arbiters pursuant to ORS chapter 656, that the worker cannot return to any position of reemployment with the employer.

(2) The worker is eligible for and participates in vocational assistance under ORS 656.340;

(3) The worker accepts suitable employment with another employer after becoming medically stationary;

(4) The worker refuses a bona fide offer from the employer of light duty or modified employment that is suitable prior to becoming medically stationary. Except that a worker who refuses an offer of employment under this section, and who otherwise is entitled to Oregon Family Leave Act (OFLA) leave under ORS 659A.150 to 659A.186:

(a) Automatically commences a period of OFLA leave upon refusing the offer of employment; and

(b) Need not give notice to the employer that would otherwise be required under OAR 839-009-0250 that the employee is commencing a period of OFLA leave. See ORS 659A.162 and 659A.046;

(5) Seven days elapse from the date that the worker is notified by the insurer or self-insured employer by certified mail that the worker’s attending physician or authorized nurse practitioner has released the worker for reemployment unless the worker requests reemployment within that time period;

(6) Three years elapse from the date of injury;

(7) The worker is discharged for bona fide reasons not connected with the injury and for which others are or would be discharged; or

(8) The worker clearly and unequivocally abandons employment with the employer.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.046 & 659A.150–659A.186
BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 10-2006, f. 3-16-06, cert. ef. 3-20-06
BLI 22-2005(Temp), f. 10-26-05, cert. ef. 10-27-05 thru 4-24-06
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 4-1996, f. & cert. ef. 3-12-96

Or. Admin. R. 839-006-0145 Injured Workers: Suitable Employment

(1) An employer required to return an injured worker to a vacant, suitable position under ORS 659A.043 or an available, suitable position under 659A.046, is not required to offer the worker a selection of suitable positions.

(2) In determining whether a particular position is suitable, the division will consider the employer's size, diversity, nature and pattern of position openings and whether the injured worker is qualified to perform the position.

(3) "Qualified" means:

(a) The injured worker meets minimum standards used by the employer to fill the position;

(b) The injured worker has performed the position in an acceptable manner; or

(c) The injured worker would be qualified for the position with the same training given to another worker newly placed in the position.

(4) For the purposes of ORS 659A.043, a "suitable position" is one that is most similar to the former position in compensation, duties, responsibilities, skills, location, duration (full or part-time, temporary or permanent), and shift. For the purposes of ORS 659A.046, a "suitable position" also meets the injured worker's medical restrictions.

(a) "Similar compensation" is the normal compensation the employer pays to others of the same education, skill and seniority employed in that position. This compensation may be greater than, the same as, or less than the rate the injured worker was earning at the time of injury, provided that it is not a subterfuge for the employer to avoid responsibilities;

(b) "Similar location" means that the position is within reasonable commuting distance, except where the former work site is no longer in operation or the nature of the employer's business routinely involves the transfer of employees. A position outside of Oregon is suitable if the worker and employer mutually agree.

(5) An employer is neither required to offer nor prohibited from offering a position that would promote the returning injured worker. A managerial or supervisory position is suitable for a returning injured worker whose former position was managerial or supervisory. Should a returning injured worker compete or bid for a managerial or supervisory position, nothing in this rule allows the employer to use the injury as a reason to discriminate against the worker.

(6) The employer may assign the injured worker to different duties at the worker's regular compensation provided that:

(a) The assignment is temporary and is part of a return-to-work program;

(b) The worker is returned to available and suitable work when the worker is physically capable; and

(7) If an employer offers a position that the injured worker believes the worker is physically unable to perform, the worker is not required to accept the position, but must provide verbal or written notice to the employer that the worker believes the worker is physically unable to perform the duties of the position. The employer may offer a suitable position or may require the worker to provide medical evidence of the worker's inability to perform the duties of the position. If an employer requires medical verification, the employer must give the worker written notice that the worker has 20 calendar days from the receipt of the notice to provide medical evidence of the worker's physical inability to perform the duties of the position.

(8) If an injured worker accepts an offer of suitable work and, after beginning the position, the worker is physically unable to perform the duties of the position, the worker must provide verbal or written notice to the employer that the worker believes the worker is physically unable to perform the duties of the position. The employer may offer a suitable position or may require the worker to provide medical evidence of the worker's inability to perform the duties of the position. If an employer requires medical verification, the employer must give the worker written notice that the worker has 20 calendar days from the receipt of the notice to provide medical evidence of the worker's physical inability to perform the duties of the position.

(9) If an employer offers an injured worker a position that the worker considers not suitable for reasons other than physical ability, the worker must accept the offered position. The worker must then provide verbal or written notice to the employer that the worker considers the position not suitable. The employer may offer a suitable position or may require the worker to provide the reasons, under the criteria of section (4) of this rule, that the worker considers the position not suitable. If the employer requires such information, the employer must give the worker written notice that the worker has 20 calendar days from the receipt of the notice to provide the reasons in writing.

(10) When an injured worker timely provides the evidence required in sections (7), (8) and (9) of this rule, the position will be considered not suitable and the employer must make a suitable position offer as required under ORS 659A.043 or 659A.046. If the worker fails to timely provide the information requested under sections (7), (8) and (9) of this rule, or the information is not sufficient, the position will be considered suitable.

(11) If the employer and the injured worker disagree about the suitability of an offered position, and the worker files a complaint as provided by statute and these rules, the division will determine the position's suitability.

(12) The Civil Rights Division may accept a complaint where a worker did not object to the position offered by the employer as required in sections (7), (8) and (9) of this rule when the worker had a verifiable, legitimate fear that an objection to the offered position would result in an adverse employment action.

(13) If an injured worker makes a timely demand for reemployment to an available, suitable position under ORS 659A.046, an employer is required to review all position vacancies for three years from the date of injury and to offer the injured worker the first available, suitable position provided no other conditions of OAR 839-006-0136 have occurred.

(14) If the injured worker's former position has been eliminated for bona fide reasons, and the worker makes a timely demand for reinstatement to the worker's former position under ORS 659A.043, an employer is required to review all position vacancies for three years from the date of injury and to offer the injured worker the first vacant, suitable position provided no other conditions of OAR 839-006-0131 have occurred.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.043 & 659A.046
BLI 9-2006, f. 3-16-06, cert. ef. 3-20-06
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BLI 14-1999, f. & cert. ef. 10-6-99
BL 2-1998, f. & cert. ef. 2-3-98
BL 4-1996, f. & cert. ef. 3-12-96
BL 3-1991, f. 2-12-91, cert. ef. 2-15-91
BL 13-1990(Temp), f. & cert. ef. 9-4-90
BL 1-1983, f. & cert. ef. 1-26-83

Or. Admin. R. 839-006-0146 Injured Workers: Injured Temporary Workers and Employer Responsibilities

Subject to these rules regarding position availability and suitability, and except as otherwise provided in a valid collective bargaining agreement:

(1) A worker serving on probationary or trial service status (whether due to initial hire, promotion or disciplinary measures) when a compensable injury occurs, has the same rights under ORS 659A.043 and 659A.046 as other injured workers. Upon return to work, however, the injured worker resumes the worker’s probationary or trial service status unless the employer waives such status.

(2) A seasonal worker must be employed by an employer for at least six months in a calendar year to be eligible for reinstatement to the former position under ORS 659A.043. This requirement does not apply to seasonal workers seeking reemployment to an available, suitable position under 659A.046. If the employment season ends prior to a seasonal worker’s release to the former position under 659A.043, or to an available, suitable position under 659A.046, reinstatement or reemployment is deferred until the next season.

(3) A worker hired on a temporary basis as a replacement for an injured worker, and who is injured while in the temporary replacement position, does not have reinstatement rights under ORS 659A.043.

(4) A worker employed in a limited-duration or temporary position has reinstatement and reemployment rights under ORS 659A.043 and 659A.046 as follows:

(a) Under ORS 659A.043, a worker injured on the job while employed for a limited duration and released to the worker’s former position must be reinstated to the former position, from the date of timely demand until the date the limited duration was originally set to expire;

(b) Under ORS 659A.043, a worker injured on the job while employed in a temporary position ending at the completion of a defined task, and released to the former position, must be reinstated to the former position from the date of timely demand until the task is completed;

(c) Under ORS 659A.046, a worker injured on the job while employed for a limited duration and released to an available, suitable position must be reemployed in the next available, suitable position from the date of timely demand until the date the limited duration was originally set to expire;

(d) Under ORS 659A.046, a worker injured on the job while employed in a temporary position ending at the completion of a defined task and released to an available, suitable position must be reemployed in the next available, suitable position from the date of timely demand until the task is completed.

(5) Nothing in this rule prevents an employer from extending the original period of employment in the worker’s favor.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.043 & 659A.046
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 2-1998, f. & cert. ef. 2-3-98
BL 4-1996, f. & cert. ef. 3-12-96
BL 3-1991, f. 2-12-91, cert. ef. 2-15-91
BL 13-1990(Temp), f. & cert. ef. 9-4-90
BL 1-1983, f. & ef. 1-26-83

Or. Admin. R. 839-006-0150 Injured Workers: Retention and Loss of Reinstatement and Reemployment Rights

(1) An injured worker does not lose the right to reinstatement or reemployment under ORS 659A.043 or 659A.046 if:

(a) An employer discharges all employees who are off the job for a certain amount of time and discharges the injured worker under this policy for time off covered by time-loss compensation or for absences medically certifiable by the attending physician or authorized nurse practitioner in connection with the compensable injury.

(b) An employer discharges the injured worker for reasons other than for cause;

(d) An injured worker making a timely demand for reinstatement or reemployment takes a position that is not suitable with another employer while waiting for a suitable position to become available; or

(e) An injured worker, disabled from performing the duties of the worker’s former regular employment, accepts an available, suitable position with the same employer under ORS 659A.046 and these rules.

(2) If an injured worker recovers to the point that the worker can perform the duties of the worker's former position, the worker must make timely demand for reinstatement to the former position, subject to the requirements of OAR 839-006-0130.

(3) If an injured worker is unable to perform the duties of the former position but is released by the attending physician or authorized nurse practitioner to perform duties that meet the workers medical restrictions, the worker must make timely demand for reemployment to an available, suitable position, subject to the requirements of OAR 839-006-0135.

(4) Compliance with the duty to mitigate damages by seeking employment with another employer will not extinguish an injured worker's reinstatement rights, except when the injured worker acquires and commences suitable employment with another employer after becoming medically stationary.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.040, 659A.043 & 659A.046
BLI 43-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 3-1991, f. 2-12-91, cert. ef. 2-15-91
BL 13-1990(Temp), f. & cert. ef. 9-4-90
BL 1-1983, f. & ef. 1-26-83

Or. Admin. R. 839-006-0200 Disability and Employment Rights: Purpose and Scope

(1) It is the policy of the State of Oregon to guarantee individuals with disabilities the fullest possible participation in the social and economic life of the state, including employment. The people of Oregon have the right to employment without discrimination on the basis of disability.

(2) It is an unlawful employment practice for any employer to refuse to hire or promote, to bar or discharge from employment or to discriminate in compensation, terms, conditions or privileges of employment because a qualified individual has a disability.

(3) Prohibited discrimination includes, but is not limited to:

(a) Limiting, segregating or classifying applicants or employees with disabilities in a way that adversely affects opportunities or status;

(b) Participating in a contractual or other arrangement with the effect of discriminating against applicants or employees with disabilities, including but not limited to, relationships with employment or referral agencies, labor unions, organizations providing fringe benefits, or training and apprenticeship programs;

(c) Using standards, criteria or methods of administration that have the effect of discrimination against applicants or employees with disabilities;

(d) Excluding or denying equal employment or benefits to a qualified individual because the individual is known to have an association with an individual with a disability;

(e) Failing to make reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the business of the employer;

(f) Using qualification standards, tests or other criteria, including those based on an individual’s uncorrected vision or unaided hearing, that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criterion, as used by the employer, is job related for the position in question and is consistent with business necessity;

(g) Failing to select and administer tests in a way that accurately reflects the skills and aptitude of applicants or employees with disabilities that impair sensory, manual or speaking skills. An employer may, however, administer tests measuring sensory, manual and speaking skills of applicants and employees.

(4) It is an unlawful employment practice for an employment agency to:

(a) Fail or refuse to refer for employment, or otherwise discriminate against an individual because that individual has a disability; or

(b) Classify or refer an individual for employment because that individual has a disability.

(5) It is an unlawful employment practice for a labor organization to exclude or to expel from its membership, or to discriminate in any way against an individual because that individual has a disability.

(6) It is an unlawful employment practice for any employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any individual because the individual has opposed any practices forbidden by ORS 659A.103 to 659A.142.

(7) It is an unlawful employment practice for any person, whether an employer or an employee, to aid, abet, incite, compel or coerce an individual to do any of the acts forbidden by ORS 659A.103 to 659A.142 or to attempt to do so.

(8) The Civil Rights Division of the Bureau of Labor and Industries has the authority to protect the rights of employees and applicants with disabilities through the enforcement of ORS 659A.103 to 659A.142. OAR 839-006-0200 to 839-006-0265 interpret these statutes and apply to all complaints and inquiries relating to these statutes received on or after the effective date of these rules.

(9) An individual claiming a violation of ORS 659A.103 to 659A.142 may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 - 659A.142
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 2-1998, f. & cert. ef. 2-3-98
BL 4-1996, f. & cert. ef. 3-12-96
BL 2-1984, f. & ef. 1-31-84

Or. Admin. R. 839-006-0202 Disability and Employment Rights: Determining Disability under ORS 659A.103 to 659A.142

The determination of whether an individual has a disability shall be construed in favor of broad coverage of individuals under ORS 659A.103 to 659A.142, to the maximum extent permitted by the terms of ORS 659A.103 to 659A.142.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 - 659A.142
BLI 8-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-006-0205 Disability and Employment Rights: Definitions

(1) "Disability" means:

(a) A physical or mental impairment that substantially limits one or more major life activities of the individual.

(B) An individual is not regarded as having a physical or mental impairment if the individual has an impairment that is minor and that has an actual or expected duration of six months or less.

(2) "Employer" means any person that employs six or more persons and includes the state, counties, cities, districts, authorities, public corporations and entities and their instrumentalities, except the Oregon National Guard, as provided in ORS 659A.106. The "six or more persons" need not be employed within Oregon.

(3) "Employment agency" includes any person undertaking to procure employees or opportunities to work.

(4) "Essential functions" are the fundamental duties of a position an individual with a disability holds or desires.

(a) A job function may be essential for any of several reasons, including but not limited to, the following:

(A) The position exists to perform that function;

(B) A limited number of employees is available to carry out the essential function; or

(C) The function is highly specialized so that the position incumbent was hired for the expertise or ability required to perform the function.

(b) Evidence of whether a particular function is essential includes but is not limited to:

(A) The amount of time spent performing the function;

(B) The consequences of not performing the function;

(D) The work experience of past incumbents in the job; and

(E) The current work experience of incumbents in similar jobs.

(5) "Labor organization" includes any organization constituted for the purpose, in whole or in part, of collective bargaining or dealing with employers concerning grievances, terms or conditions of employment or of other mutual aid or protection in connection with employees.

(6) "Major life activity" includes, but is not limited to:

(a) Caring for oneself;

(b) Performing manual tasks;

(d) Hearing;

(e) Eating;

(f) Drinking;

(g) Sleeping;

(h) Walking;

(i) Standing;

(j) Lifting;

(k) Bending;

(l) Twisting;

(m) Speaking;

(n) Breathing;

(o) Cognitive functioning;

(p) Learning;

(q) Education;

(r) Reading;

(s) Concentrating;

(t) Remembering;

(u) Thinking;

(v) Communicating;

(x) Socialization;

(y) Sitting;

(z) Reaching;

(aa) Interacting with others;

(bb) Sexual relations;

(cc) Employment;

(dd) Ambulation;

(ee) Transportation;

(ff) Operation of a major bodily function, including but not limited to:

(A) Functions of the immune system;

(B) Normal cell growth; and

(gg) Ability to acquire, rent or maintain property.

(7) "Medical," as used in ORS 659A.133 and 659A.136 and these rules, means any information, whether oral, written or electronic that:

(a) Is created or received by an employer; and

(b) Relates to the past, present, or future physical or mental health status or condition of an individual.

(8) "Misclassified," as used in ORS 659A.104(b), means an erroneous or unsupported medical diagnosis, report, certificate or evaluation.

(9) "Physical or mental impairment" means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, traumatic brain injury, emotional or mental illness, and specific learning disabilities.

(10) A “qualified individual with a disability" is an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of a position that the individual holds or desires, and who can, with or without reasonable accommodation, perform the position's essential functions.

(11) "Reasonable accommodation" is defined in OAR 839-006-0206.

(12) "Substantially limits" means that an individual has an impairment, had an impairment or is perceived as having an impairment that restricts one or more major life activities of the individual as compared to most people in the general population.

(a) An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.

(b) An impairment that substantially limits one major life activity of the individual need not limit other major life activities of the individual.

(c) In determining whether an impairment substantially limits a major life activity, the ability of the individual with the impairment to perform that major life activity is compared to that of individuals in the general population.

(d) Factors that could affect whether an impairment “substantially limits a major life activity” include, but are not limited to, the presence of other impairments that combine to make the impairment disabling.

(e) An impairment that is episodic or in remission is considered to substantially limit a major life activity of the individual if the impairment would substantially limit a major life activity of the individual when the impairment is active. Nonetheless, not every impairment will constitute a disability within the meaning of this section.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 - 659A.142, H.B. 2111, 77th Leg. & Reg. Session (Or. 2013)
BLI 15-2013, f. & cert. ef 12-30-13
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 4-2007, f. 1-29-07, cert. ef. 2-1-07
BLI 9-2006, f. 3-16-06, cert. ef. 3-20-06
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 2-1998, f. & cert. ef. 2-3-98
BL 4-1996, f. & cert. ef. 3-12-96
BL 15-1990, f. 10-29-90, cert. ef. 11-1-90
BL 2-1984, f. & ef. 1-31-84

Or. Admin. R. 839-006-0206 Disability and Employment Rights: Reasonable Accommodation

(1) "Reasonable Accommodation" means modifications or adjustments:

(a) To a job application process that enable a qualified applicant with a disability to be considered for the position;

(b) To the work environment, or to the manner or circumstances under which a position is customarily performed, that enable a qualified employee or applicant with a disability to perform the position's essential functions; or

(c) That enable a qualified employee or applicant with a disability to enjoy equal benefits and privileges of employment as are enjoyed by similarly situated employees without a disability.

(2) Reasonable accommodation of a qualified employee or applicant with a disability may include, but is not limited to:

(a) Making existing facilities used by employees readily accessible to and usable by an employee with a disability;

(b) Providing job restructuring, such as part-time or modified work schedules or reassignment to vacant positions;

(d) Appropriately adjusting or modifying examinations, training materials or policies;

(e) Providing qualified readers or interpreters; or

(f) Providing a leave of absence.

(3) Failure of an employer to make reasonable accommodation to the known physical or mental limitations of a qualified employee or applicant with a disability who requests reasonable accommodation or otherwise discloses to the employer a disability that may require reasonable accommodation, will be found to be prohibited discrimination unless the employer can demonstrate that reasonable accommodation would impose an undue hardship on the business of the employer. Undue hardship is defined at ORS 659A.121.

(4) Once a qualified employee or applicant with a disability has requested reasonable accommodation or otherwise disclosed to the employer a disability that may require reasonable accommodation, the employer has a duty to initiate a meaningful interactive process with the employee or applicant to determine whether reasonable accommodation would allow the employee or applicant to perform the essential functions of a position held or sought.

(5) A meaningful interactive process is an informal process between a qualified employee or applicant with a disability and an employer in an effort to identify potential reasonable accommodation.

(a) An interactive process between an employee or applicant with a disability and an employer, that readily identifies mutually agreeable reasonable accommodation, is a meaningful interactive process.

(b) When reasonable accommodation is not readily identifiable, a meaningful interactive process identifies the nature of the limitations resulting from the disability, relevant to potential reasonable accommodation that could allow the employee or applicant to perform the essential functions of the job.

(6) A meaningful interactive process is a mandatory step in the reasonable accommodation of a qualified employee or applicant with a disability. Failure of an employer to engage in a meaningful interactive process with a qualified employee or applicant with a disability who has requested reasonable accommodation or has otherwise disclosed to the employer a disability that may require reasonable accommodation is a failure to reasonably accommodate in violation of ORS 659A.112(2)(e) and:

(a) The employer may be found liable for remedies described in OAR 839-003-0090(6) regardless of whether reasonable accommodation would have been possible; and

(b) The employer may also be found liable for any other remedies described in OAR 839-003-0090 if reasonable accommodation would have been possible.

(7) An employer is not required to provide a reasonable accommodation to an individual who meets only the criterion of being regarded as having a physical or mental impairment that substantially limits one or more major life activities.

History

Statutory/Other Authority: ORS 659A.805 & ORS 651.060
Statutes/Other Implemented: ORS 659A.103 - 659A.145
BLI 13-2023, minor correction filed 08/03/2023, effective 08/03/2023
BLI 14-2019, amend filed 10/31/2019, effective 01/01/2020
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 4-2007, f. 1-29-07, cert. ef. 2-1-07
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00

Or. Admin. R. 839-006-0212 Disability and Employment Rights: Determining Whether an Impairment Substantially Limits a Major Life Activity

(1) When determining whether an impairment substantially limits a major life activity of an individual, the determination shall be made without regard to the ameliorative effects of mitigating measures, including:

(a) Medication;

(b) Medical supplies, equipment or appliances;

(c) Low vision devices or other devices that magnify, enhance or otherwise augment a visual image, except that ordinary eyeglasses or contact lenses or other similar lenses that are intended to fully correct visual acuity or eliminate refractive error may be considered when determining whether an impairment substantially limits a major life activity of an individual;

(d) Prosthetics, including limbs and devices;

(e) Hearing aids, cochlear implants or other implantable hearing devices;

(f) Mobility devices;

(g) Oxygen therapy equipment or supplies;

(h) Assistive technology;

(i) Reasonable accommodations or auxiliary aids or services; or

(j) Learned behavioral or adaptive neurological modifications.

(2) The non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual’s impairment substantially limits a major life activity.

(3) The determination of whether a person is substantially limited in a major life activity shall be made on a case-by-case basis.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 - 659A.142
BLI 15-2013, f. & cert. ef 12-30-13
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 2-1998, f. & cert. ef. 2-3-98

Or. Admin. R. 839-006-0240 Disability and Employment Rights: Temporary or Progressive Impairments

(1) The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of ORS 659A.104 and these rules.

(2) Conditions that are progressive (including, but not limited to, cancer, Hodgkin's disease, multiple sclerosis and HIV infection, whether or not such condition substantially limits the individual in any major life activity at the time of the alleged discrimination) may not form the basis for an employer to refuse to employ or promote; bar or discharge from employment; or discriminate in compensation, terms, conditions or privileges of employment.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 - 659A.142
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 2-1998, f. & cert. ef. 2-3-98
BL 4-1996, f. & cert. ef. 3-12-96
BL 15-1990, f. 10-29-90, cert. ef. 11-1-90
BL 2-1984, f. & ef. 1-31-84

Or. Admin. R. 839-006-0242 Disability and Employment Rights: Medical Evaluation

(1) An employer may not require any applicant to obtain a medical examination or evaluation prior to an offer of employment.

(2) An employer may require a medical examination or evaluation after making an employment offer but before the individual commences work, only if all individuals receiving offers of employment in that same job category are required to obtain a medical examination or evaluation.

(3) A drug test is not considered a medical examination or evaluation, for purposes of ORS 659A.133, 659A.136 and sections (1) and (2) of this rule, limiting employer actions in regard to medical examinations and inquiries.

(4) As provided in ORS 659A.306, the employer must pay the cost of any medical examination or evaluation or test, including a drug test, or the production of any health certificate required by the employer.

(5) An employer may not use qualification standards based on vision tests of an individual’s uncorrected vision unless the qualification standards are shown to be job-related for the position in question and are consistent with business necessity.

(6) An employer obtaining medical information about an employee or applicant must collect and maintain the information on separate medical forms and in separate medical files to be treated as confidential medical records, except as follows:

(a) Supervisors and managers may be informed regarding necessary restrictions on the work duties of an employee or necessary accommodations;

(b) First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

(c) Officers and employees of the Division investigating compliance with disability discrimination laws must be provided relevant information on request.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 - 659A.142
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 2-1998, f. & cert. ef. 2-3-98, Renumbered from 839-006-0235
BL 4-1996, f. & cert. ef. 3-12-96
BL 2-1984, f. & ef. 1-31-84

Or. Admin. R. 839-006-0244 Disability and Employment Rights: Direct Threat to Health or Safety, Employment

(1) Notwithstanding other provisions of these rules, an employer may refuse to employ an individual with a disability posing a direct threat to the health or safety of others. Direct threat means significant risk of substantial harm that cannot be eliminated or reduced below the level of significant risk of substantial harm by reasonable accommodation.

(2) The determination that an individual with a disability poses a "direct threat" is based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the position. The assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge or on the best available objective evidence. In making the determination, factors to be considered include:

(a) The duration of risk;

(b) The nature and severity of potential harm;

(d) The imminence of potential harm.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 - 659A.142
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 2-1998, f. & cert. ef. 2-3-98, Renumbered from 839-006-0230
BL 4-1996, f. & cert. ef. 3-12-96
BL 2-1984, f. & ef. 1-31-84

Or. Admin. R. 839-006-0250 Disability and Employment Rights: Customer or Co-Worker Preference

An employer may not consider the attitude or preference of employers, managers, supervisors, co-workers, customers, clients or the general public toward an individual’s perceived or actual impairment in determining whether an individual is qualified for a position.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 - 659A.142
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 2-1998, f. & cert. ef. 2-3-98
BL 4-1996, f. & cert. ef. 3-12-96
BL 2-1984, f. & ef. 1-31-84

Or. Admin. R. 839-006-0255 Disability and Employment Rights: Effect of Law

Where a state or federal law or regulation prevents employment in a particular position of an individual with a specified, medically verifiable impairment or specified severity of impairment, an employer is not required to employ an individual with a disability with such an impairment in that position. Nothing in this rule will be construed to permit denial of employment to such individual in a position that is not subject to such law or regulations.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 - 659A.142
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 2-1984, f. & ef. 1-31-84

Or. Admin. R. 839-006-0265 Disability and Employment Rights: Subterfuge

An employer may not use the provisions of these rules as a subterfuge to avoid the employer's duty not to discriminate under ORS 659A.103 to 659A.142.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 - 659A.142
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 2-1998, f. & cert. ef. 2-3-98

Or. Admin. R. 839-006-0270 Discrimination against Persons with Disabilities by State Government: Purpose and Scope

(1) ORS 659A.103 provides that it is the policy of the State of Oregon to guarantee individuals the fullest possible participation in the social and economic life of the state, including participating in and receiving the benefits of the services, programs and activities of state government, without discrimination on the basis of disability.

(2) ORS 659A.142(5) provides that:

(a) It is an unlawful practice for state government to exclude an individual from participation in or deny an individual the benefits of the services, programs or activities of state government or to make any distinction, discrimination or restriction because the individual has a disability.

(b) State government shall make reasonable modifications in services, programs or activities, including but not limited to policies and procedures, when the modifications are necessary for state government to comply with ORS 659A.142(5).

(c) State government shall provide auxiliary aids and services when necessary to ensure equal access to state government programs, services, and activities.

(3) Theories applied in cases of alleged discrimination under ORS 659A.142(5) are found in OAR 839-006-0340.

(4) An individual claiming a violation of ORS 659A.142(5) may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.142(5)
BLI 15-2013, f. & cert. ef 12-30-13
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08
BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05

Or. Admin. R. 839-006-0275 Defining Disability for Purposes of Discrimination by State Government

(1) “Disability” has the meaning given in OAR 839-006-0205(1) and (8).

(2) "Major life activity” has the meaning given in OAR 839-006-0205(6).

(3) "Physical or mental impairment" has the meaning given in OAR 839-006-0205(9).

(4) "Substantially limits" has the meaning given in OAR 839-006-0205(12).

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103, 659A.104, 659A.106, 659A.109, 659A.139 & 659A.142
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08
BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05

Or. Admin. R. 839-006-0280 Discrimination against Persons with Disabilities by State Government: Definitions

(1) For purposes of ORS 659A.142(5) and these rules, "state government" has the meaning given to that term in ORS 174.111 and includes the executive, judicial and legislative departments of state government. Consistent with ORS 174.108(3), it does not include the Oregon Health and Science University, the Oregon State Bar, any intergovernmental entity formed by a public body with another state or with a political subdivision of another state, or any intergovernmental entity formed by a public body with an agency of the federal government.

(2) Pursuant to ORS 174.112, "executive department" means all statewide elected officers other than judges, and all boards, commissions, departments, divisions and other entities, without regard to the designation given to those entities, that are within the executive department of government as described in Article III, Section 1 of the Oregon Constitution, and that are not in the judicial department, legislative department, local governments or special government bodies. "Executive department" includes:

(a) An entity created by statute for the purpose of giving advice only to the executive department and that does not have members who are officers or employees of the judicial department or legislative department;

(b) An entity created by the executive department for the purpose of giving advice to the executive department, if the document creating the entity indicates that the entity is a public body; and

(c) Any entity created by the executive department other than an entity described in paragraph (b) of this subsection, unless the document creating the entity indicates that the entity is not a governmental entity or the entity is not subject to any substantial control by the executive department.

(3) Pursuant to ORS 174.113, "judicial department" means the Oregon Supreme Court, the Oregon Court of Appeals, the Oregon Tax Court, the Oregon circuit courts and all administrative divisions of those courts, whether denominated as boards, commissions, committees or departments or by any other designation. "Judicial department" includes:

(a) An entity created by statute for the purpose of giving advice only to the judicial department and that does not have members who are officers or employees of the executive department or legislative department;

(b) An entity created by the judicial department for the purpose of giving advice to the judicial department, if the document creating the entity indicates that the entity is a public body; and

(c) Any entity created by the judicial department other than an entity described in paragraph (b) of this subsection, unless the document creating the entity indicates that the entity is not a governmental entity or the entity is not subject to any substantial control by the judicial department.

(4) Pursuant to ORS 174.114, "legislative department" means the Legislative Assembly, the committees of the Legislative Assembly and all administrative divisions of the Legislative Assembly and its committees, whether denominated as boards, commissions or departments or by any other designation. "Legislation department" includes:

(a) An entity created by statute for the purpose of giving advice only to the legislative department and that does not have members who are officers or employees of the executive department or judicial department;

(b) An entity created by the legislative department for the purpose of giving advice to the legislative department, but that is not created by statute, if the document creating the entity indicates that the entity is a public body; and

(c) Any entity created by the legislative department by a document other than a statute and that is not an entity described in paragraph (b) of this subsection, unless the document creating the entity indicates that the entity is not a governmental entity or the entity is not subject to any substantial control by the legislative department.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103, 659A.104, 659A.106, 659A.109, 659A.139 & 659A.142
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05

Or. Admin. R. 839-006-0290 Other Statutes, Regulations and Agencies Governing Access by or Discrimination against Persons with Disabilities

(1) Public transportation services, programs, and activities of public entities are subject to Title II of the federal Americans with Disabilities Act and regulated by the U.S. Department of Transportation. See 42 USC 12141§ 221 and 49 CFR §37. Public transportation is covered by ORS 659A.142(4).

(2) Accessibility of government facilities is subject to Title II of the Americans with Disabilities Act, 42 USC §12131. The U.S. Department of Justice regulates existing government facilities (28 CFR §35.150) and new construction and alterations to government facilities (28 CFR §35.151). The Oregon Department of Consumer and Business Services has jurisdiction over disability access to state and local government facilities in Oregon. See ORS 447.210 to 447.310 and administrative rules and standards adopted pursuant thereto.

(3) The federal Rehabilitation Act provides that no otherwise qualified individual with a disability in the United States shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any federal executive agency or by the United States Postal Service. 29 USC §794.

(4) Discrimination against individuals with disabilities in employment is subject to ORS 659A.103 to 659A.139 and OAR 839-006-0200 to 0265.

(5) Discrimination against individuals with disabilities by places of public accommodation, which include public bodies with some exceptions, is subject to ORS 659A.142(4), 659A.400 and OAR 839-006-0300 to 0335.

(6) Assistance animals in places of public accommodation or access to state government are subject to ORS 659A.143 and OAR 839-006-0345.

(7) Discrimination against individuals with disabilities in real property transactions is subject to ORS 659A.142, 659A.145 and OAR 839-005-0195 to 839-005-0220.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103–143 & 659A.400
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 15-2013, f. & cert. ef 12-30-13
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08
BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05

Or. Admin. R. 839-006-0291 Discrimination against Persons with Disabilities by State Government: Reasonable Modifications

(1) State government shall make reasonable modifications in services, programs or activities, including but not limited to policies and procedures, when the modifications are necessary for state government to comply with ORS 659A.142(5) unless state government can demonstrate that making the modifications would result in a fundamental alteration in the nature of the service, program, or activity or would result in undue financial or administrative burdens on state government. This will be determined on a case by case basis.

(2) ORS 659A.142(5) and these rules are not intended to:

(a) Create an independent entitlement to any service, program or activity of state government; or

(b) Require state government to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program or activity or would result in undue financial or administrative burdens, as determined on a case-by-case basis.

(3) In determining whether financial and administrative burdens are undue for purposes of ORS 659A.142(5) and these rules, all resources available for use in the funding and operation of the service, program, or activity will be considered.

(4) Nothing in ORS 659A.142(5) or these rules prohibits state government from providing benefits, services, or advantages to individuals with disabilities beyond those required by 659A.142(5) or these rules.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.142(5)
BLI 15-2013, f. & cert. ef 12-30-13

Or. Admin. R. 839-006-0292 Discrimination against Persons with Disabilities by State Government: Definitions for Auxiliary Aids and Services

(1) "Qualified interpreter" means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.

(2) "Qualified reader" means a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary.

(3) "Video remote interpreting (VRI) service" means an interpreting service that uses video conferencing technology over dedicated lines or wireless technology offering high-speed, wide- bandwidth video connection that delivers high-quality video images.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.142
BLI 15-2013, f. & cert. ef 12-30-13

Or. Admin. R. 839-006-0295 Discrimination against Persons with Disabilities by State Government: Provision of Auxiliary Aids and Services

(1) Except as provided for in subsection (3) of this section, state government must provide auxiliary aids and services when necessary to ensure equal access for individuals with disabilities to state government programs, services, and activities.

(2) Auxiliary aids and services may include, but are not limited to:

(a) Qualified interpreters, note takers, real-time computer-aided transcription services, transcription services, written materials, exchange of written notes, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning including real-time captioning, voice, text and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, telecommunications devices for deaf persons (TDDs), videotext displays, computer aided real time captioning (CART), accessible electronic and information technology, or other effective methods of making aurally delivered materials available to individuals with hearing impairments;

(b) Qualified readers, taped texts, audio recordings, brailed materials and displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), large print materials, accessible electronic and information technology including e-mail, or other effective methods of making visually delivered materials available to individuals with visual impairments;

(d) Other similar services and actions.

(3) State government is not required to provide auxiliary aids or services that state government can demonstrate would result in a fundamental alteration in the nature of a service, program or activity of state government or would result in undue financial or administrative burdens on state government. This will be determined on a case by case basis.

(4) State government may not place a surcharge to cover the costs of measures such as the provision of auxiliary aids or program accessibility, that are required to provide an individual with a disability with the nondiscriminatory treatment required by ORS 659A.142(5).

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.142
BLI 15-2013, f. & cert. ef 12-30-13
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05

Or. Admin. R. 839-006-0300 Rights of Persons with Disabilities With Respect to Places of Public Accommodation: Purpose and Scope

(1) It is the policy of the State of Oregon to guarantee individuals equal access to and enjoyment of places of public accommodation as defined in ORS 659A.142 and 659A.400. No place of public accommodation may discriminate against an individual by any distinction or restriction on the basis of disability.

(2) Discrimination on the basis of disability by places of public accommodation is an unlawful practice and the Civil Rights Division of the Bureau of Labor and Industries has the authority to protect the rights of individuals with disabilities through the enforcement of ORS 659A.142(4). OAR 839-006-0300 to 839-006-0335 interpret this statute and apply to all complaints and inquiries relating to these statutes received on or after the effective date of these rules.

(3) An individual claiming a violation of ORS 659A.142(4), pertaining to discrimination against individuals on the basis of disability by a place of public accommodation, may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.142
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 10-1996, f. & cert. ef. 12-4-96

Or. Admin. R. 839-006-0305 Rights of Persons with Disabilities With Respect to Places of Public Accommodation: Definitions

(1) "Disability" has the meaning given in OAR 839-006-0205.

(2) "Major life activity" has the meaning given in OAR 839-006-0205(6).

(3) "Physical or mental impairment" has the meaning given in OAR 839-006-0205(9).

(4) "Place of public accommodation" means:

(a) Any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise;

(b) Any place that is open to the public and owned or maintained by a public body, as defined in ORS 174.109, regardless of whether the place is commercial in nature; or

(c) Any service to the public that is provided by a public body, as defined in ORS 174.109, regardless of whether the service is commercial in nature.

(5) A place of public accommodation does not include:

(a) A Department of Corrections institution as defined in ORS 421.005;

(b) A state hospital as defined in ORS 162.135;

(d) A local correction facility or lockup as defined in ORS 169.005; or

(e) An institution, bona fide club or place of accommodation that is in its nature distinctly private.

(6) "Substantially limits" has the meaning given in OAR 839-006-0205(12).

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.142 & 659A.400
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 15-2013, f. & cert. ef 12-30-13
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 9-2006, f. 3-16-06, cert. ef. 3-20-06
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00

Or. Admin. R. 839-006-0310 Rights of Persons with Disabilities With Respect to Places of Public Accommodation: Removal of Physical Barriers to Facilities

(1) Places of public accommodation must remove physical barriers to entering and using existing facilities when such removal is readily achievable.

(2) “Readily achievable” means the barrier removal is easily accomplishable and can be carried out without much difficulty or expense. In determining whether a barrier removal is readily achievable, the factors to be considered include:

(a) The nature and cost of the action needed;

(b) The overall financial resources of the site or sites involved in the action;

(d) The effect on expenses and resources;

(e) Legitimate safety requirements that are necessary for safe operation, including crime prevention measures;

(f) The impact otherwise of the barrier removal upon the operation of the site;

(g) The administrative or fiscal relationship of the site or sites in question to any parent corporation or entity; and

(h) The overall financial resources of any parent corporation or entity.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 & 659A.142
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 10-1996, f. & cert. ef. 12-4-96

Or. Admin. R. 839-006-0320 Rights of Persons with Disabilities With Respect to Places of Public Accommodation: Provision of Auxiliary Aids

(1) Places of public accommodation must provide auxiliary aids and services when necessary to ensure equal access to offered goods, privileges, services or facilities.

(2) Places of public accommodation are not required to provide auxiliary aids that would result in significant difficulty or expense, or in a fundamental alteration in the nature of the offered goods, privileges or services. This is to be determined on a case-by-case basis.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 & 659A.142
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 10-1996, f. & cert. ef. 12-4-96

Or. Admin. R. 839-006-0330 Rights of Persons with Disabilities With Respect to Places of Public Accommodation: Removal of Barriers to Goods and Services

(1) Places of public accommodation must remove physical and administrative barriers, if readily achievable (as defined in OAR 839-006-0310) in order to make offered goods and services accessible.

(2) If barrier removal is not readily achievable, places of public accommodation must take alternative steps to make offered goods and services accessible, such as providing goods and services at the door, sidewalk or curb; providing home delivery; retrieving merchandise from inaccessible shelves or racks; relocating activities to accessible locations; or relaxing administrative policies.

(3) Places of public accommodation may not impose charges on individuals with disabilities to recover costs of barrier removal.

(4) Removal of physical or administrative barriers that would result in significant difficulty or expense or in a fundamental alteration in the nature of the offered goods or services is not required and is to be determined on a case-by-case basis.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 & 659A.142
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00
BL 10-1996, f. & cert. ef. 12-4-96

Or. Admin. R. 839-006-0335 Rights of Persons with Disabilities With Respect to Places of Public Accommodation: Direct Threat to Health or Safety

(1) Notwithstanding other provisions of these rules, places of public accommodation may refuse to permit an individual with a disability to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of the public accommodation if the individual with a disability poses a direct threat to the health or safety of others. Direct threat means significant risk of substantial harm that cannot be eliminated or reduced below the level of significant risk of substantial harm by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services.

(2) In determining whether an individual with a disability poses a direct threat to the health or safety of others, places of public accommodation must make an individualized assessment, based on reasonable judgment that relies on the most current medical knowledge, or on the best available objective evidence, to ascertain:

(a) The duration of risk;

(b) The nature and severity of potential harm;

(d) The imminence of potential harm; and

(e) Whether reasonable modifications of policies, practices or procedures will mitigate the risk.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 & 659A.142
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 15-2000, f. & cert. ef. 8-11-00

Or. Admin. R. 839-006-0340 Discrimination Theories: Discrimination against Individuals with Disabilities by State Government or Places of Public Accommodation

(1) A violation of discrimination laws against individuals with disabilities may involve either intentional or unintentional discrimination. Discrimination against individuals with disabilities need not be intentional to be unlawful. Unintentional discrimination may occur, for example, in situations involving adverse impact. To be protected from discrimination based on disability, an individual must have a disability, as defined in ORS 659A.104 and the relevant rules.

(2) Substantial evidence of intentional unlawful discrimination against an individual exists if the investigation of the Civil Rights Division (“division”) reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001(10) and OAR 839-005-0003(14) of these rules;

(b) The individual has a disability;

(d) The individual’s disability was the motivating factor for the respondent’s action. In determining whether the individual’s disability was the motivating factor for the respondent’s action, the division uses whichever of the following theories applies:

(A) Specific Intent Theory: The respondent knowingly and purposefully discriminates against an individual because that individual has a disability.

(B) Different or Unequal Treatment Theory: The respondent treats individuals with disabilities differently than others who do not have disabilities. When the respondent makes this differentiation because of the individual’s disability and not because of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing a case of different or unequal treatment:

(i) There must be substantial evidence that the individual was harmed by an action of the respondent under circumstances that make it appear that the respondent treated the individual differently than comparably situated individuals who do not have disabilities. Substantial evidence of discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support that an individual’s disability was a motivating factor for the respondent’s alleged unlawful action. If the respondent fails to rebut this evidence with evidence of a legitimate non-discriminatory reason, the division will conclude that substantial evidence of unlawful discrimination exists.

(II) Mixed Motive: If the respondent presents substantial evidence that a legitimate, non-discriminatory reason contributed to the respondent’s action, but the division finds the individual’s disability was also a substantial factor in the respondent’s action, the division will determine there is substantial evidence of discrimination.

(ii) The individual with a disability at all times has the burden of proving that the individual’s disability was the motivating factor for the respondent’s unlawful action.

(3) Adverse impact by a place of public accommodation or by state government on the basis of disability: Substantial evidence of adverse impact discrimination does not require establishment of intentional discrimination as provided in (2) of this rule. Adverse impact discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001(10) and OAR 839-005-0003(12) of these rules;

(b) The respondent has a standard or policy that is applied equally.

(d) The complainant is a member of the protected class adversely affected by the respondent’s standard or policy and has been harmed by the respondent’s application of the standard or policy.

(4) Harassment by a place of public accommodation or by state government on the basis of disability:

(a) Conduct of a verbal or physical nature on the basis of disability is unlawful when substantial evidence of the elements of intentional discrimination, as described in section (2) of this rule, is shown and:

(A) Such conduct is sufficiently severe or pervasive to have the purpose or effect of creating an intimidating, hostile or offensive environment; or

(B) Submission to such conduct is made either explicitly or implicitly a term or condition of receiving services, accommodations, advantages, facilities or privileges from a place of public accommodation or services, programs or activities of state government; or

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.103 & 659A.142
BLI 12-2015, f. & cert. ef. 8-28-15
Renumbered from 839-006-0307 by BLI 15-2013, f. & cert. ef 12-30-13
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 8-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-006-0345 Assistance Animals in Places of Public Accommodation or of Access to State Government

(1) “Assistance animal” means a dog or other animal designated by administrative rule that has been individually trained to do work or perform tasks for the benefit of an individual.

(2) “Assistance animal trainee” means an animal that is undergoing a course of development and training to do work or perform tasks for the benefit of an individual that directly relate to the disability of the individual.

(3) “Assistance animal trainer” means an individual exercising care, custody and control over an assistance animal trainee during a course of training designed to develop the trainee into an assistance animal.

(4) A place of public accommodation or of access to state government services, programs or activities may not:

(a) Ask an individual about the nature or extent of a disability that the individual has or may have;

(b) Require an individual to provide documentation proving that an animal is an assistance animal or an assistance animal trainee; or

(c) Notwithstanding any fee or admission charge imposed for pets, require that a person with a disability or an assistance animal trainer pay a fee or admission charge for an assistance animal or assistance animal trainee.

(5) A place of public accommodation or of access to state government services, programs or activities may:

(a) Ask whether an animal is required due to a disability; and

(b) Ask about the nature of the work or task that an animal is trained to do or perform or is being trained to do or perform, unless it is readily apparent that the animal performs or is being trained to perform work or a task for the benefit of a person with a disability.

(6) If a place of public accommodation or of access to state government services, programs or activities customarily charges a person for damages that the person causes to the place, the place may charge a person with a disability or an assistance animal trainer for damages that an assistance animal or assistance animal trainee causes to the place.

(7) A person with a disability or an assistance animal trainer must maintain control of an assistance animal or assistance animal trainee.

(a) Except as provided in this subsection, control shall be exerted by means of a harness, leash or other tether.

(b) If the use of a harness, leash or other tether would interfere with the ability of the animal to do the work or perform the tasks for which the animal is trained or is being trained, control may be exerted by the effective use of voice commands, signals or other means.

(c) If an animal is not under control as required in this subsection, a place of public accommodation or of access to state government services, programs or activities may consider the animal to be out of control for purposes of subsection (8) of this section.

(8)(a) Except as provided in this subsection, a place of public accommodation or of access to state government services, programs or activities may not deny a person with a disability or an assistance animal trainer the right to be accompanied by an assistance animal or assistance animal trainee in any area of the place that is open to the public or to business invitees.

(b) A place of public accommodation or of access to state government services, programs or activities may require a person with a disability or an assistance animal trainer to remove an assistance animal or assistance animal trainee if:

(A) The animal is not housebroken; or

(B) The animal is out of control and effective action is not taken to control the animal.

(c) A place of public accommodation or of access to state government services, programs or activities may impose legitimate requirements necessary for the safe operations of the place of public accommodation or the services, programs or activities. The place of public accommodation or of access to state government services, programs or activities shall ensure that the safety requirements are based on actual risks, not on speculation, stereotypes or generalizations about persons with disabilities.

(9) A place of public accommodation or of access to state government services, programs or activities shall make reasonable modifications as necessary to allow an opportunity for a person with a disability who is benefited by the use of an assistance animal to obtain goods, services and the use of the advantages, facilities and privileges of the place or the advantages, facilities and privileges of the state government services, programs or activities. For purposes of this subsection, except as provided in subsections (5) and (7) of this section, in addition to any other applicable accommodation requirement, allowing the presence of the assistance animal is a reasonable modification.

(10) If a place of public accommodation or of access to state government services, programs or activities requires a person with a disability to remove an assistance animal under subsection (8) of this section, the place or state government shall give the person with a disability a reasonable opportunity to obtain goods, services and the use of the advantages, facilities and privileges of the place or the advantages, facilities and privileges of the state government services, programs or activities without the assistance animal's presence.

(11) A place of public accommodation or of access to state government services, programs or activities is not required to provide care or supervision for an assistance animal or assistance animal trainee.

(12) The protection granted under this section to a person with a disability or an assistance animal trainer does not invalidate or limit the remedies, rights and procedures of any other federal, state or local laws that provide equal or greater protection of the rights of a person with a disability, an assistance animal trainer or individuals associated with a person with a disability.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.143 & 659A.400
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 15-2013, f. & cert. ef 12-30-13

Or. Admin. R. 839-006-0350 Requirements for Transient Lodging: Lift Systems for Transient Lodging

(1) A transient lodging provider shall ensure that in transient lodging facilities of 175 or more rooms or suite of rooms that at least one room or suite of rooms has a lift system or multiple lift systems that enable an individual with a disability to access a bed, a toilet, and a shower or bathtub in the room or suite of rooms occupied by the individual with a disability.

(a) “Lift system” means a system that:

(A) Is used to transfer a person to a bed, toilet, shower or bathtub, but does not provide the individual with independent mobility;

(B) May be a manual lift, an electronic lift or a lift that uses a track system; and

(b) “Transient lodging” means a unit consisting of a room or suite of rooms that: (A) Is not occupied as a principal residence;

(B) Is typically occupied for a period of fewer than 30 consecutive days; and

(2) Additional information regarding the requirement described in section (3) of this rule is available at ORS 659A.144.

(3) Any violation of section (1) of this rule or of the authorizing statutes is an unlawful practice.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.144
Renumbered from 839-006-0332 by BLI 15-2013, f. & cert. ef 12-30-13
BLI 9-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-006-0435 Veterans’ Preference in Public Employment

(1) It is the policy of the State of Oregon that a public employer grant a preference in hiring and promotion to state servicemembers, former state servicemembers, veterans, and disabled veterans, under the provisions of ORS 408.225 to 408.237.

(2) The requirement to grant a preference in hiring and promotion to state servicemembers, former state servicemembers, veterans, and disabled veterans, under the provisions of ORS 408.225 to 408.237, applies only to a public employer’s civil service positions.

(3) That a private employer may give employment preference in the hiring or promotion of employees under ORS 408.497 does not preclude the filing of a complaint under ORS chapter 659A.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 408.225 - 408.237 & ORS 408.497
BLI 15-2025, amend filed 12/30/2025, effective 01/01/2026
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08

Or. Admin. R. 839-006-0440 Veterans’ Preference in Public Employment: Definitions

(1) “Armed Forces” means the United States Army, Navy, Marine Corps, Air Force, Space Force, and Coast Guard, including the reserve components thereof. (Title 38 USC Part I Chapter 1 Section 101). Reserve components mean:

(a) The Army Reserve;

(b) The Navy Reserve;

(d) The Air Force Reserve;

(e) The Coast Guard Reserve;

(f) The Army National Guard of the United States; and

(g) The Air National Guard of the United States.

(2) “Disabled veteran” “former state servicemember,” “state servicemember” and “veteran” have the meaning given those terms in ORS 408.225.

(3) “Eligibility list” means a list of ranked eligible candidates for a civil service position who have become eligible for the position through a test or series of tests and who will be considered for the civil service position in ranked order. Rankings of eligible candidates identified as tiers, bands or other names function as eligibility lists for purposes of these rules.

(4) “Military leave” means any period of time for which a person is absent from a permanent civil service position for the performance of active duty in the Armed Forces of the United States.

(5) “Promotion” means any position with a higher maximum salary rate.

(6) “Public employer” includes a public body as defined in ORS 174.109, and any person authorized to act on behalf of the public body, with respect to control, management or supervision of any employee. “Public employer” includes but is not limited to:

(a) Employers in local governments;

(b) Employers in a public corporation created under a statute of this state and specifically designated as a public corporation; and

(c) Employers in any public body that is created by statute, ordinance or resolution that is not part of state government or local government.

(7) “Special qualifications” means qualifications added to minimum qualifications necessary at the time of appointment based on specific duties of the position to be filled. Special qualifications may include, but are not limited to bilingual skills, or licenses, permits and certifications required by law and screenings otherwise permitted by law, such as reference, criminal background and credit checks and physical fitness and drug tests.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 408.225 - 408.237
BLI 15-2025, amend filed 12/30/2025, effective 01/01/2026
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 2-2012, f. & cert. ef. 2-8-12
BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08

Or. Admin. R. 839-006-0445 Eligibility for Employment Preference

There are no limitations on the number of times a person can claim the preference described in ORS 408.225 to 408.237.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 408.225 - 408.237
BLI 15-2025, amend filed 12/30/2025, effective 01/01/2026
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08

Or. Admin. R. 839-006-0450 Veterans’ Preference in Public Employment: Applying the Employment Preference

(1) At each stage of the application process a public employer must grant a preference, in accordance with ORS 408.225 to 408.237, to a state servicemember, former state servicemember, veteran, or disabled veteran, who successfully completes an initial application screening or an application examination or a civil service test the public employer administers to establish eligibility for a vacant civil service position.

(2) A public employer may consult with the Oregon Military Department and the Department of Veterans’ Affairs to determine whether certain military education or experience produces a transferable skill. To evaluate a veteran’s transferable skills from a transcript of military training, a public employer may consult the American Council on Education’s website, “A Guide to the Evaluation of Educational Experiences in the Armed Services,” at http://www.acenet.edu/news-room/Pages/Military-Guide-Online.aspx

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 408.225 - 408.237
BLI 15-2025, amend filed 12/30/2025, effective 01/01/2026
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 7-2014, f. & cert. ef. 5-30-14
BLI 2-2014(Temp), f. 2-18-14, cert. ef. 2-19-14 thru 6-1-14
BLI 4-2013(Temp), f. 12-15-13, cert. ef. 12-16-13 thru 6-1-14
BLI 2-2012, f. & cert. ef. 2-8-12
BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08

Or. Admin. R. 839-006-0455 Veterans’ Preference in Public Employment: Employment Preference for Promotions

A public employer must grant a preference to a person seeking promotion in the manner described in ORS 408.225 to 408.237.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 408.225 - 408.237
BLI 15-2025, amend filed 12/30/2025, effective 01/01/2026
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 2-2012, f. & cert. ef. 2-8-12
BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08

Or. Admin. R. 839-006-0465 Veterans’ Preference in Public Employment: Certification

(1) A public employer may require an applicant to provide certification that the person is a state servicemember, former state servicemember, eligible veteran, or disabled veteran.

(2) An applicant for a position with a public employer claiming veteran's or disabled veteran’s percentage points may submit as certification of eligibility a copy of the Certificate of Release or Discharge from Active Duty (a federal DD Form 214 or 215) with the application for employment.

(3) Disabled veterans may also submit a copy of their veteran's disability preference letter from the U.S. Department of Veterans Affairs, but need not do so if the information is included in the federal DD Form 214/215.

(4) An applicant for a position with a public employer claiming state servicemember percentage points may submit as certification of eligibility a copy of the Retirement Accounting Statement (federal DA Form 5016) with the application for employment.

(5) An applicant for a position with a public employer claiming former state servicemember percentage points may submit as certification of eligibility, with the application for employment, a copy of:

(a) The Certificate of Release or Discharge from Active Duty (a federal DD Form 214); or

(b) The National Guard Report of Separation and Record of Service (a federal NGB Form 22 or DD Form 214-1).

(6) An applicant for a position with a public employer claiming state servicemember, former state servicemember, veteran or disabled veteran percentage points may submit a summary of benefits letter from the United States Department of Veterans Affairs or any other official document, provided that the letter or other official document demonstrates that the applicant is a state servicemember, former state servicemember, veteran or disabled veteran, with the application for employment.

(7) If a person’s record appears to show service qualifying for the preference the public employer may provisionally designate an applicant as an eligible veteran, disabled veteran, state servicemember or former state servicemember. However, before the person can be appointed, the person must submit proof of the entitlement to the preference.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 408.225 - 408.237
BLI 15-2025, amend filed 12/30/2025, effective 01/01/2026
BLI 8-2010, f. & cert. ef. 2-24-10
BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08

Or. Admin. R. 839-006-0480 Discrimination Based on Uniformed Service

(1) For purposes of this rule:

(a) “Service” means the performance of duty on a voluntary or involuntary basis in a uniformed service that may involve active duty, active duty for training, initial active duty for training, inactive duty for training, full time duty in the National Guard, funeral honors duty or an examination to determine fitness for service in a uniformed service; and

(b) “Uniformed service” means the Armed Forces of the United States, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training or full-time National Guard duty, the commissioned corps of the United States Public Health Service and any other category of persons designated by the President of the United States in a time of war or national emergency.

(2) It is an unlawful employment practice for an employer to discriminate against a person because of the person’s service in a uniformed service by:

(a) Denying a public officer or public employee the status or rights provided by ORS 408.240 to 408.240 and 408.290, if the employer is a public body.

(b) Discharging, expelling, disciplining, threatening or otherwise retaliating against the person for exercising or attempting to exercise the status or rights provided by this section.

(c) Denying any of the following because a person is a member of, applies to be a member of, performs, has performed, applies to perform or has an obligation to perform service in a uniformed service:

(A) Initial employment;

(B) Reemployment following a leave from employment taken by reason of service in a uniformed service;

(D) Promotion; or

(E) Any other term, condition or privilege of employment, including but not limited to compensation.

(3) An employer does not commit an unlawful employment practice under this rule if the employer acted based on a bona fide occupational requirement reasonably necessary to the normal operation of the employer’s business and the employer’s actions could not be avoided by making a reasonable accommodation of the person’s service in a uniformed service.

(4) The federal Uniformed Services Employment and Reemployment Act, 38 USC 43 (USERRA) provides that an employee reemployed following a period of uniformed service is entitled to the seniority and seniority-based rights and benefits that the employee had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if the employee had remained continuously employed. Federal Department of Labor regulation 20 CFR 1002.210 provides that in determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. The rights and benefits protected by USERRA upon reemployment include those provided by the employer and those required by statute.

(5) To the extent possible, this rule shall be construed in a manner that is consistent with similar provisions of the federal Uniformed Services Employment and Reemployment Rights Act of 1994, 38 USC 43.

(6) Protections for spouses and domestic partners of uniformed service members may be found under the Oregon Military Family Leave Act, ORS 659A.090 to 659A.099 and OAR 839-009-0370 - 839-009-0460.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.082
BLI 12-2015, f. & cert. ef. 8-28-15
BLI 2-2012, f. & cert. ef. 2-8-12
BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 8-2010, f. & cert. ef. 2-24-10

Division 7 OREGON SICK TIME

Or. Admin. R. 839-007-0000 Definitions

As used in ORS 653.601 to 653.661 and these rules:

(1) “Affinity” has the meaning given that term in OAR 839-009-0210.

(2) “City with a population exceeding 500,000” means a city with a population exceeding 500,000 located within the state of Oregon.

(3) “Family member” means an individual who is related by affinity to the employee or an individual who is the employee’s:

(a) Spouse or domestic partner;

(b) Child or the child’s spouse or domestic partner;

(d) Sibling or stepsibling or the sibling’s or stepsibling’s spouse or domestic partner;

(e) Grandparent or the grandparent’s spouse or domestic partner; or

(f) Grandchild or the grandchild’s spouse or domestic partner.

(4) “Health care provider” has the meaning given that term in ORS 659A.150.

(5) “Hours worked” means all hours for which an employee is employed by and required to give to the employer and includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place and all time the employee is suffered or permitted to work. “Hours worked” includes “work time” as defined in ORS 653.010 as well as overtime hours worked.

(6) “Parent” means:

(a) An employee’s biological parent, adoptive parent, stepparent or current or former foster parent or a person who was or is the employee’s legal guardian or with whom the employee was or is in a relationship of in loco parentis; or

(b) The parent of the employee’s spouse or domestic partner who meets a description in subsection (a) of this section.

(7) “Regular rate of pay” means the regular hourly rate that an employee earns for the workweek in which the employee uses paid sick time and which is no less than the applicable statutory minimum wage rate. An employer must apply a consistent methodology when calculating the regular rates of pay to similarly situated employees. An employee’s regular rate of pay shall be determined as follows:

(a) For employees paid on the basis of a single hourly rate, the regular rate of pay means the same hourly rate the employee would have earned for the period of time in which sick time is used.

(b) For employees who are paid multiple hourly rates of pay, the regular rate of pay means either:

(A) The wages the employee would have been paid, if known, for the period of time in which sick time is used; or

(B) The weighted average of all regular rates of pay during the previous pay period.

(c) For employees paid a salary, the regular rate of pay means the employee’s total wages earned during the pay period covered by the salary divided by the number of hours agreed to be worked in the pay period which the salary is intended to compensate. For example, if an employee is paid a weekly salary of $525 and it is understood that the salary is compensation for a regular work week of 35 hours, the employee’s regular rate of pay is $15 per hour ($525 divided by 35 hours). For an employee paid a salary whose hours of work vary from work week to work week, for the purpose of calculating the regular rate of pay to be used for the payment of sick time, the employee is presumed to work 40 hours in each workweek.

(d) For employees paid on a commission or piece-rate basis only, the regular rate of pay means a rate of no less than the applicable statutory minimum wage.

(e) For employees paid an hourly, weekly or monthly wage and also paid on a piece-rate or commission basis, the regular rate of pay means the rate of pay equivalent to the employee's hourly, weekly or monthly wage or the applicable statutory minimum wage, whichever is greater.

(f) The regular rate of pay does not include:

(A) Overtime, holiday pay, or other premium rates. However, where an employee’s regular rate of pay includes a differential meant to compensate the employee for work performed under differing conditions (for example, a shift differential for working at night), such a differential rate is not considered to be a premium;

(B) Bonuses or other types of incentive pay; and

(8) “Spouse” includes:

(a) Individuals in a marriage recognized under state law in the state in which the marriage was entered into;

(b) Individuals in a marriage validly performed in a foreign jurisdiction;

(d) Individuals who have lawfully established a civil union, domestic partnership or similar relationship under the laws of any state. Individuals described in this subsection are not required to obtain a marriage license, establish a record of marriage or solemnize their relationship.

(9) “Undue hardship” means significant difficulty for an employer's business and includes consideration of the impracticability of permitting sick time to be taken in hourly increments. Factors to consider in determining whether the use of sick time in hourly increments imposes an undue hardship on the employer include, but are not limited to:

(a) The number of persons employed or working at the particular worksite and their qualifications or ability to timely relieve the employee using sick time, given the employer’s operations; the total number of persons employed by the employer; the number, type and geographic separateness of the employer’s worksites; and

(b) The effect of providing sick time in hourly increments on worksite operations involving: the startup or shutdown of machinery in continuous-operation industrial processes; intermittent and unpredictable workflow not in the control of the employer or employee; the perishable nature of materials used on the job; the perishable or live nature of products being harvested or processed; the time-sensitive or high-volume nature of the employer’s operations, if such operations have a direct impact on the public; and the safety and health of other employees, patients, clients or the public.

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651.060
Statutes/Other Implemented: ORS 653.601-653.661
BLI 9-2024, amend filed 03/01/2024, effective 03/02/2024
BLI 14-2023, temporary amend filed 08/23/2023, effective 09/03/2023 through 02/29/2024
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0005 Jointly Employed Employees

(1) All joint employers are responsible, both individually and jointly, for ensuring compliance with the provisions of ORS 653.601 to 653.661 and these rules. The bureau will be guided by joint employment standards found in Title 29, Code of Federal Regulations, Part 791, Section 2 and Part 825, Section 106.

(2) A determination of whether or not a joint employment relationship exists is not determined by the application of any single criterion, but rather the entire relationship is to be viewed in its totality.

(3) A type of company that is often called a Professional Employer Organization (PEO) contracts with client employers to perform administrative functions such as payroll, benefits, regulatory paperwork, and updating employment policies. The determination of whether a PEO is a joint employer also turns on the economic realities of the situation and must be based upon all the facts and circumstances. A PEO does not enter into a joint employment relationship with the employees of its client companies when it merely performs such administrative functions. On the other hand, if in a particular fact situation, a PEO has the right to hire, fire, assign, or direct and control the client’s employees, or benefits from the work that the employees perform, such rights may lead to a determination that the PEO would be a joint employer with the client employer, depending upon the facts and circumstances.

(4) In joint employment relationships, the primary employer is responsible for giving required notices to its employees, providing sick time leave and other leave and maintenance of health benefits. Factors to be considered in determining which employer is the primary employer include but are not limited to: authority/responsibility to hire and fire, assign/place the employee, make payroll, and provide employment benefits. For employees of temporary placement agencies, for example, the placement agency most commonly would be the primary employer. Where a PEO is a joint employer, the client employer most commonly would be the primary employer.

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651
Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017)
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0007 Front-loading Sick Time

(1) In lieu of awarding at least one hour of sick time for every 30 hours an employee works, an employer may satisfy its obligations under ORS 653.606(1) and these rules by front-loading at least 40 hours of sick time or time off at the beginning of each year used to calculate the accrual and usage of sick time or time off; or, if the employer invokes the “undue hardship” exception of ORS 653.621(1)(b) and requires its employees to use sick time in minimum increments of more than 1 hour, by front-loading 56 hours of sick time or time off at the beginning of each year used to calculate the accrual and usage of sick time or time off.

(a) “Front-load,” except as provided in paragraph (b) of this subsection, means to assign and make available a certain number of hours of sick time to an employee as soon as the employee becomes eligible to use sick time and on the first day of the immediate subsequent year, without regard to an accrual rate.

(b) For employees employed by an employer for less than a full year, “front-load” means to assign and make available to an employee as soon as the employee becomes eligible to use sick time a number of hours of sick time that is the pro rata percentage of the hours to which the employee would be entitled for an entire year based on the number of hours the employee was actually employed by the employer for the year. For example, if an employer uses the calendar year to calculate usage of sick time or time off, and, on January 1 of each year, regularly front-loads 40 hours of sick time or time off for employees regularly scheduled to work 40 hours per week or more, then the employer, as soon as the employee becomes eligible to use sick time, would front-load 20 hours of sick time or time off to an employee whose first day of employment is July 1 and who is regularly scheduled to work 40 hours per week.

(2) An employer may award sick time on an accrual basis for certain classes of employees while front-loading sick time hours for other classes of employees, as long as any distinctions the employer makes in how it awards sick time to different classes of employees are based on customary employment classifications established by the employer for reasons unrelated to its obligation to provide sick time. For example, an employer may award sick time on an accrual basis for employees paid on an hourly wage basis, while front-loading sick time for employees paid on a salary basis, if it customarily maintains different employment classifications for hourly and salaried employees. Similarly, an employer may award sick time on an accrual basis for part-time or temporary employees, while front-loading sick time for full-time employees, if it customarily maintains different employment classifications for part-time, temporary, and full-time employees.

(3)(a) An employer may adopt a system whereby it awards sick time or time off on an accrual basis for employees until they have worked for the employer for a designated length of time, while front-loading sick time or time off for all employees in similar job classifications once they have achieved that designated length of service. For example, an employer may adopt a system whereby hourly employees are awarded sick time or time off on an accrual basis from their start date until the beginning of the year that the employer uses to calculate the accrual and usage of sick time, or the first such year that follows the first anniversary of the employee’s initial employment.

(b) When an employer converts an employee from an accrual-based system to a system in which it front-loads the employee’s sick time or time off, and the employee has accrued less than 40 hours of sick time or time off on the date of the change (or less than 56 hours, if the employer requires sick time to be taken in minimum increments of more than one hour but no more than four hours under the undue hardship exception set forth in ORS 653.621(1)(b)), the employer satisfies the requirements of ORS 653.606(1) by front-loading the sum of: (a) the amount of hours the employee has accrued under the employee’s accrual system; and (b) the difference between 40 hours (or 56 hours, if the employer requires sick time to be taken in minimum increments of four hours under the undue hardship exception set forth in ORS 653.621(1)(b)) and that amount of accrued hours.

(c) If an employee has accrued more than 40 hours of sick time or time off on the date that an employer converts from an accrual system to a front-loading system for awarding the employee sick time or time off (or more than 56 hours, if the employer requires sick time to be taken in minimum increments of more than one hour but no more than four hours under the undue hardship exception set forth in ORS 653.621(1)(b)), the employer may not front-load an amount of hours that is less than the amount of hours the employee has already accrued.

(4) An employer may front-load by paying employees for at least 40 hours of sick time at the beginning of the year and allowing the employee to take at least 40 hours of sick time during the year. Sick time taken after the initial front-load payment does not have to be paid at the time sick time is taken.

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651
Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017)
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0010 Determining the Number of Sick Time Hours Accrued for Employees for Whom Recording Hours Worked is not Required

(1) For purposes of determining the number of sick time hours accrued by an employee for whom recording the number of hours worked is not otherwise required by state and federal law, an employer may establish a reasonable method of calculating the number of hours worked by the employee.

(2) Except as provided in section (3) of this rule, a reasonable method for determining the number of hours worked by an employee for whom recording the number of hours worked is not otherwise required by state and federal law includes:

(a) The number of hours in a work schedule agreed upon by the employer and the employee;

(b) Billing hours; or

(c) Any other established practice which provides a reasonable approximation of the hours actually worked by the employee.

(3) An employee engaged in administrative, executive, professional, or outside sales work who is exempt from the minimum wage and overtime requirements is presumed to work 40 hours in each workweek unless the actual number of work hours is regularly less than 40, in which case the number of sick time hours will accrue on the basis of actual hours worked.

History

Statutory/Other Authority: OL Ch. 537 & 2015
Statutes/Other Implemented: OL Ch. 537 & 2015
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0012 Employees with Both Unpaid and Paid Sick Time

When the number of employees employed by an employer fluctuates from year to year, so that the employer’s obligation to provide sick time alternates between paid sick time and unpaid sick time, an employee is entitled to use sick time in the manner that it was earned. For example, if an employer was required to provide paid sick time during the period of time in which an employee accrued such leave, the employee, when using sick time, is entitled to be paid for sick time accrued during this period even if the employer is no longer required to provide paid sick time. Conversely, sick time does not need to be paid when used if, at the time the employee accrued the sick time, the employer was only required to provide unpaid sick time. When an employee has available for use both paid sick time and unpaid sick time, the employee has the option of using either or both to cover the use of sick time.

History

Statutory/Other Authority: OL Ch. 537 & 2015
Statutes/Other Implemented: OL Ch. 537 & 2015
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0015 Calculating the Number of Employees Employed

(1) As used in ORS 653.606(2) and this rule, “employee” does not include an individual or the parent, spouse or child of an individual who is:

(a) A director of a corporation who has a substantial ownership interest in the corporation;

(b) A member of a limited liability company who has:

(A) A right to vote on or consent to any matter submitted to a vote or requiring the consent of the members of the limited liability company; and

(B) A substantial ownership interest in the limited liability company;

(c) A partner of a limited liability partnership who has a substantial ownership interest in the limited liability partnership; or

(d) A sole proprietor of a business.

(2) As used in ORS 653.606(2) and section (1) of this rule, “substantial ownership interest” means a percentage of ownership equal to or greater than the average percentage of ownership of all owners, but not less than 15 percent.

(3) An employer shall count all employees who perform work for the employer in the state of Oregon for the purpose of determining the number of employees the employer employs, including full-time employees, part-time employees, and temporary employees.

(4) Employees jointly employed by two employers pursuant to OAR 839-007-0005 must be counted by both employers when determining the number of employees that each employer employs.

(5) The number of employees employed by an employer shall be calculated based on the average number of employees employed by the employer per day during each of at least 20 workweeks in the calendar or fiscal year in which an employee’s sick time is to be taken, or in the year immediately preceding the year in which an employee’s sick time is to be taken.

(6) The requirement to provide paid sick time shall apply to any employer employing an average of 10 or more employees per day in Oregon or an average of at least six employees per day in Oregon if the employer maintains a location in a city in Oregon with a population exceeding 500,000 during each of at least 20 workweeks in the calendar or fiscal year immediately preceding the year in which an employee’s sick time is to be taken. For example, if during 20 or more workweeks in a calendar or fiscal year, an employer employed an average of 10 employees per day or an average of at least six employees per day if the employer maintains a location in a city in Oregon with a population exceeding 500,000 the employer will be required to provide paid sick time in the following year.

(7) An employer that has been in business for less than 20 weeks shall comply with the provisions of OAR 839-007-0032.

(8) Employees jointly employed by two employers must be counted by both employers, whether or not they are maintained on one of the employers’ payroll, when determining employer coverage and employee eligibility.

(a) An employee on leave who is working for a secondary employer is considered employed by the secondary employer and must be counted for coverage and eligibility purposes, as long as the employer has a reasonable expectation that the employee will return to employment with that employer.

(b) In those cases in which a Professional Employer Organization (PEO) is determined to be a joint employer of a client employer’s employees, the client employer is only required to count employees of the PEO (or employees of other clients of the PEO) if the client employer jointly employs those employees.

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651
Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017)
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0020 Permissible Use of Sick Time

Pursuant to ORS 653.616 and these rules an employee may use sick time for any of the following:

(1) For an employee’s mental or physical illness, injury or health condition; need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition; or need for preventive medical care.

(2) For care of a family member with a mental or physical illness, injury or health condition; care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; or care of a family member who needs preventive medical care.

(3) For the following purposes under ORS 659A.159 to 659A.186:

(a) For bereavement leave or pregnancy disability leave, as those terms are described in OAR 839-009-0230.

(b) To care for a child of the employee who is suffering from an illness, injury or condition that requires home care or who requires home care due to the closure of the child’s school or child care provider as a result of a public health emergency.

(4) For the following purposes specified in ORS 659A.272:

(a) To seek legal or law enforcement assistance or remedies to ensure the health and safety of the employee or the employee’s minor child or dependent, including preparing for and participating in protective order proceedings or other civil or criminal legal proceedings related to domestic violence, harassment, sexual assault or stalking.

(b) To seek medical treatment for or to recover from injuries caused by domestic violence or sexual assault to or harassment or stalking of the eligible employee or the employee’s minor child or dependent.

(c) To obtain, or to assist a minor child or dependent in obtaining, counseling from a licensed mental health professional related to an experience of domestic violence, harassment, sexual assault or stalking.

(d) To obtain services from a victim services provider for the eligible employee or the employee’s minor child or dependent.

(e) To relocate, pursuant to OAR 839-009-0345, or take steps to secure an existing home to ensure the health and safety of the eligible employee or the employee’s minor child or dependent.

(5) For a purpose specified in ORS 657B.020.

(6) To donate accrued sick time to another employee if the other employee uses the donated sick time for a purpose specified in this rule and the employer has a policy that allows an employee to donate sick time to a coworker for a purpose specified in this rule.

(7) In the event of a public health emergency, including, but not limited to:

(a) Closure of the employee’s place of business, or the school or place of care of the employee’s child, by order of a public official due to a public health emergency;

(b) A determination by a lawful public health authority or by a health care provider that the presence of the employee or the family member of the employee in the community would jeopardize the health of others, such that the employee must provide self-care or care for the family member;

(c) The exclusion of the employee from the workplace under any law or rule that requires the employer to exclude the employee from the workplace for health reasons;

(d) The following public health emergencies are permissible uses of sick leave unless the employee is employed as a first responder:

(A) An emergency evacuation order of level 2 (SET) or level 3 (GO) issued by a public official with the authority to do so, if the affected area subject to the order includes either the location of the employer’s place of business or the employee’s home address; or

(B) A determination by a public official with the authority to do so that the air quality index or heat index are at a level where continued exposure to such levels would jeopardize the health of the employee.

(8) For blood donation that is made in connection with a voluntary program for the donation of blood that is approved or accredited by the American Association of Blood Banks or the American Red Cross.

History

Statutory/Other Authority: ORS 651.060 & ORS 653.601-653.661
Statutes/Other Implemented: ORS 653.601-653.661
BLI 13-2025, amend filed 12/19/2025, effective 01/01/2026
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 9-2024, amend filed 03/01/2024, effective 03/02/2024
BLI 14-2023, temporary amend filed 08/23/2023, effective 09/03/2023 through 02/29/2024
BLI 3-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 14-2021, temporary amend filed 08/06/2021, effective 08/06/2021 through 01/17/2022
BLI 9-2021, temporary amend filed 07/22/2021, effective 07/22/2021 through 01/17/2022
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0025 Increments of Sick Time to Be Taken by Employee

(1) An employee shall use accrued sick time in hourly increments, unless the employer permits the employee to use sick time in increments of less than one hour.

(2) If an employer can demonstrate that to provide sick leave in hourly increments would pose an undue hardship on the employer as defined in OAR 839-007-0000(7), the employer may require an employee to use accrued sick time in increments of more than one hour but no more than four hours, provided the employer allows the employee to use at least 56 hours of paid sick leave per year.

(3) When an employer does not provide sick time to employees in hourly increments, and is able to make the required showing of undue hardship under section (2) of this rule, the employer shall first provide to each employee a notice provided by the Commissioner of the Bureau of Labor and Industries in the language used by the employer to communicate with the employee regarding what increments of sick leave will be used. The employer shall retain and keep available to the commissioner a copy of the notice for the duration of the employee’s employment and for no less than six months after the termination date of the employee. Notices that comply with this subsection are available upon request from the bureau.

(4) If an employer fails to provide the undue hardship notice required in section (3) to an employee, the employer may not require the employee to take sick time in increments of more than one hour.

(5) An employer shall apply a consistent policy to all similarly situated employees related to increments of time in which sick time is required to be used.

(6) If an employer requires employees to take leave in increments of more than one hour and an employee lacks sufficient accrued sick time to cover the additional time away from work that the employer is requiring, the employer may not discipline the employee for taking the additional time or include the additional hours as violations of an absence control policy.

(7) An employer required by ORS 342.610 to pay a substitute teacher a salary based on one-half of the daily minimum salary or, if working for more than one-half day, a full day’s salary, may require the substitute teacher to use accrued sick time in increments of no more than four hours

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651
Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017)
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0030 Payment of Sick Time

(1) Sick time must be paid no later than the payday for the next regular pay period after the sick time was used by the employee.

(2) An employer may not reduce an employee’s benefits, including but not limited to health care benefits, because the employee uses accrued sick time to which the employee is entitled pursuant to ORS 653.601 to 653.661 and these rules.

(3) If an employer has requested written documentation or verification of use of sick time pursuant to ORS 653.626 and OAR 839-007-0045, the employer is not required to pay sick time until the employee has provided such documentation or verification.

(4) If an employer chooses to require written documentation or verification of use of sick time pursuant to ORS 653.626 and OAR 839-007-0045, such a requirement, as well as the employer’s policy regarding any consequences resulting from an employee’s failure or delay in providing such documentation or verification, must be included in the employer’s written sick time policies.

(5) An employer who has not provided to an employee a copy of its written policy for providing notice of the need to use sick time may not deny sick time to the employee based on non-compliance with such a policy.

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651
Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017)
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0032 Application of Sick Time Provisions to New Businesses

(1) An employer that has been in business for less than 20 workweeks shall allow employees to accrue sick leave pursuant to the provisions of ORS 653.606(3).

(2) An employer that has been in business for less than 20 weeks shall calculate the number of employees employed pursuant to OAR 839-007-0015(1) after the employer has employed one or more employees for 90 calendar days.

(3) If, after employing one or more employees for 90 calendar days, the employer employs 10 or more employees in Oregon, or if the employer is located in a city with a population exceeding 500,000 and employs at least six employees in Oregon, the employer shall pay for sick time accrued and used by an employee, unless the employer has a good-faith belief that the employer will not employ an average of 10 or more employees in Oregon for each workday for at least 20 workweeks, or an average of at least six employees per day in Oregon if the employer maintains a location in a city in Oregon with a population exceeding 500,000, in which case the employer is not required to pay for sick time accrued and used.

(4) After 20 workweeks of operation, the employer shall calculate the number of employees employed pursuant to ORS 653.606(2) and OAR 839-007-0015.

(5) If the employer has employed an average of 10 or more employees in Oregon for each workday during the 20 workweeks of operation, or if the employer has employed an average of at least six employees per day in Oregon if the employer maintains a location in a city in Oregon with a population exceeding 500,000, for each workday during the 20 workweeks of operation, employees are required to be paid for sick leave accrued and taken thereafter unless the employer ceases to employ an average of 10 or more employees in Oregon, or if the employer maintains a location in a city in Oregon with a population exceeding 500,000 ceases to employ an average of at least six employees per day in Oregon for each workday for 20 workweeks in any year preceding the use of accrued sick leave by any employee.

(6) If, after 20 workweeks of operation, the employer has employed an average of 10 or more employees in Oregon for each workday during the 20 workweeks of operation, or if the employer employed an average of at least six employees per day in Oregon if the employer maintains a location in a city in Oregon with a population exceeding 500,000, for each workday during the 20 workweeks of operation, the employer shall pay any employee not paid for sick time accrued and taken during those 20 workweeks pursuant to ORS 653.606.

(7) An employer may not deduct or otherwise recover any sick time paid to an employee if the employer subsequently is not required to pay for accrued sick time.

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651
Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017)
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0033 Sick Time on Public Works Projects

In addition to OAR 839-007-0000 through OAR 839-007-0120, the following applies to employees performing work on public works projects subject to ORS 279C.800-ORS 279C.870:

(1) An employer may not reduce an employee’s benefits, including but not limited to health care benefits and/or fringe benefits as defined in OAR 839-025-004(9), because the employee uses accrued sick time to which the employee is entitled pursuant to ORS 653.601 to 653.661 and these rules.

(2) “Regular rate of pay” means the prevailing wage rate as defined in ORS 279C.800(4) that an employee earns for the workweek in which the employee uses paid sick time and which is no less than the applicable prevailing wage rate on a public works project. An employer must apply a consistent methodology when calculating the regular rates of pay to similarly situated employees. An employee’s regular rate of pay shall be determined as follows:

(a) For employees paid on the basis of a single hourly rate, the regular rate of pay means the same hourly rate the employee would have earned for the period of time in which sick time is used.

(b) Where a worker performs work in one or more classifications which provide for one or more hourly rates of pay, the regular rate of pay means the wages the employee would have been paid for the period of time in which sick time is used.

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651
Statutes/Other Implemented: ORS 653.601-653.661 & ORS 651
BLI 4-2023, adopt filed 06/14/2023, effective 07/01/2023

Or. Admin. R. 839-007-0035 Sick Time for Shifts of Indeterminate Length or On-Call Shifts

(1) If an employee uses sick time for a shift of indeterminate length (for example, a shift that is defined by business needs rather than a specified number of hours), the employer may determine the amount of sick time used by the employee based on the number of hours worked by a replacement employee in the same shift or a similarly situated employee who works the same shift or who has worked a similar shift in the past.

(2) On-call employees are entitled to use sick time for hours they have been scheduled to work. Being “scheduled to work” does not include shifts for which an employee has been asked to be available or on-call, unless the employee is working while on-call as defined in OAR 839-020-0041(3). If, by agreement with the employer, an on-call employee is to be paid for a scheduled shift regardless of whether the employee actually works the shift, the employer must provide sick time.

History

Statutory/Other Authority: OL Ch. 537 & 2015
Statutes/Other Implemented: OL Ch. 537 & 2015
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0040 Employee Notice Policy and Procedures

(1) An employer may require an employee to comply with the employer’s usual and customary written notice and procedure requirements for foreseeable absences for requesting time off if those requirements do not interfere with the ability of the employee to use sick time. Such requirements may include notice by a reasonable time and by reasonable means including but not limited to calling a designated telephone number, applying a uniform call-in procedure or by using another means of communication accessible to the employee.

(2) If the reason for sick time is a foreseeable absence, such as a pre-scheduled medical appointment, the employer may require employees to provide advance notice of their intention to use sick time, not to exceed 10 calendar days prior to the date the sick time is to begin or as soon as practicable, but in no case may an employee be required to provide such notice more than 10 calendar days prior to the date sick time is to begin.

(3) When an employee uses sick time for a foreseeable absence, the employee shall make a reasonable effort to schedule the sick time in a manner that does not unduly disrupt the operations of the employer. For example, the employee should make a reasonable attempt not to schedule medical appointments during peak business hours, when work is time-sensitive or when mandatory meetings are scheduled.

(4) The employee shall inform the employer of any change in the expected duration of the sick time as soon as is practicable.

(5) If the reason for sick time is unforeseeable, such as an emergency, accident, or sudden illness, the employee shall provide notice before the start of the employee’s shift or, when circumstances prevent the employee from providing notice before the start of the employee’s shift, as soon as is practicable. In all cases, whether and when an employee can practicably provide notice depends upon the individual facts and circumstances of the situation.

(6) An employer may discipline an employee for violating workplace policies and procedures if the employee fails to provide notice as required by these rules or if the employee fails to make a reasonable effort to schedule leave in a manner that does not unduly disrupt the operations of the employer as provided in section (3) of this rule. The employer may not discipline the employee for use of sick time.

History

Statutory/Other Authority: OL Ch. 537 & 2015
Statutes/Other Implemented: OL Ch. 537 & 2015
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0045 Verification and Certification for Sick Time Use

(1) If an employee uses sick time for more than three consecutive scheduled workdays:

(a) For a purpose provided in ORS 653.616(1) or (2) or ORS 659A.159(1)(a) or 659A.162 the employer may require the employee to provide verification within 15 calendar days from a health care provider of the need for the sick time.

(b) For purposes of ORS 653.616(4) for use of sick time for a purpose specified in ORS 659A.272 relating to domestic violence, harassment, sexual assault, bias or stalking, the employer may require the employee to provide certification of the need for leave as provided in ORS 659A.280.

(2) “Three consecutive scheduled workdays” means three consecutive scheduled workdays, not including scheduled days off. For example, if an employee is scheduled to work Monday, Wednesday, and Friday only, and the employee uses sick time for all three days, the employee has used sick time for three consecutive scheduled workdays.

(3) If an employee commences sick time without providing prior notice required by the employer under OAR 839-007-0040:

(a) Medical verification shall be provided to the employer within 15 calendar days after the employer requests the verification; or

(b) Certification as specified in ORS 659A.280 for the purposes of ORS 659A.272 relating to domestic violence, harassment, sexual assault, bias or stalking shall be provided to the employer within a reasonable time after the employee receives the request for certification.

(4) If the need for sick time is foreseeable and projected to last more than three scheduled workdays and an employee is required to provide notice under ORS 653.621 and OAR 839-007-0040, the employer may require that verification or certification be provided before the sick time commences or as soon as otherwise practicable.

(5) An employer must pay any reasonable costs for providing any medical verification or certification required, including lost wages, that are not paid under a health benefit plan in which the employee is enrolled.

(6) An employer may not require that any verification or certification required explain the nature of the illness or details related to the domestic violence, sexual assault, harassment, or stalking that necessitates the use of sick time.

(7) If an employer obtains health information about an employee or an employee’s family member, such information shall be treated as confidential to the extent provided by law.

(8) If an employee fails to provide verification or certification as required by ORS 653.626 and these rules, the employer is not required to pay for the use of sick time for the absence taken until the employee provides verification or certification verifying that the absence was for a qualifying reason as defined by ORS 653.616 and these rules. The employer may discipline the employee for violating policies and procedures but not for using sick time.

(9) If an employer reasonably suspects that an employee is abusing sick time, including engaging in a pattern of abuse, the employer may require verification from a health care provider of the need of the employee to use sick time, regardless of whether the employee has used sick time for more than three consecutive days. As used in this section, “pattern of abuse” includes, but is not limited to, repeated use of unscheduled sick time on or adjacent to weekends, holidays, vacation days or paydays.

(10) When an employee uses sick time to care for, or to deal with the death of, an individual related by blood or affinity whose close association with the eligible employee is the equivalent of a family relationship, the employer may require the employee to attest in writing that the employee and the person cared for have a significant personal bond that, when examined under the totality of the circumstances, is like a family relationship. An employer that requires a written attestation must provide an attestation form to the employee. The form need not be notarized, must be in the language typically used by the employer to communicate with the employee and may include the following provisions:

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651.060
Statutes/Other Implemented: ORS 653.601-653.661
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 9-2024, amend filed 03/01/2024, effective 03/02/2024
BLI 14-2023, temporary amend filed 08/23/2023, effective 09/03/2023 through 02/29/2024
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0050 Required Employer Notices

(1) Employers are required to provide to each employee:

(a) Written notification at least quarterly of the amount of accrued and unused sick time available for use by the employee. Inclusion of this information on the statement required under ORS 652.610 meets the requirements of this subsection. If an employee has not worked during the previous quarter, the employer is not required to provide a quarterly notice.

(b) Written notice of the requirements of ORS 653.601 to 653.661 and these rules.

(2) Employers may use notices provided by the Bureau of Labor and Industries to comply with the requirements of section (1) or may create their own written notice, as long as the notice includes all of the substantive information provided in the bureau’s notice.

(3) The notices provided in this rule must be in the language the employer typically uses to communicate with the employee.

(4) Employers shall provide the written notice required in subsection (1)(b) no later than the end of the employer’s first pay period after the effective date of ORS 653.601 to 653.661 or, for employees hired after the effective date, the end of the first pay period for those employees.

(5) An employer may comply with the requirement to provide the written notice required in subsection (1)(b) by:

(a) Distributing the written notice to each employee personally, by regular mail or email, or by including it with a paycheck;

(b) Incorporating the written notice into a handbook or manual made available to employees, whether in a print or electronic format; or

History

Statutory/Other Authority: ORS 653.601-653-661 & ORS 651
Statutes/Other Implemented: ORS 653.601-653-661 & OL Ch. 520
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0055 Substantial Equivalency

An employer’s own sick leave, paid vacation, paid personal time off, or other paid time off policy is substantially equivalent to sick time required under ORS 653.601 to 653.661 when such a policy provides for at least the same number of sick time hours an employee would earn under ORS 653.606 and complies with all other minimum requirements as listed in ORS 653.601 to 653.661. These requirements include but are not limited to provisions related to when employees can use sick time; the rate of accrual; the regular rate of pay; qualifying absences; conditions of notice and documentation; and employment protections.

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651
Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017)
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0065 Unlawful Employment Practice

(1) It is an unlawful employment practice for an employer or any other person to deny, interfere with, restrain or fail to pay for sick time to which an employee is entitled.

(2) It is an unlawful employment practice for an employer or any other person to retaliate or in any way discriminate against an employee because the employee has:

(a) Inquired about the provisions of ORS 653.601 to 653.661;

(b) Submitted a request for sick time;

(d) Participated in any manner in an investigation, proceeding or hearing related to ORS 653.601 to 653.661; or

(e) Invoked any provision of ORS 653.601 to 653.661.

(3) It is an unlawful employment practice for an employer or any other person to apply an absence control policy that includes sick time absences covered under ORS 653.601 to 653.661 as an absence that may lead to or result in an adverse employment action against the employee.

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651
Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017)
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0100 Civil Penalties

(1) The Commissioner of the Bureau of Labor and Industries may assess a civil penalty for any of the following willful violations of ORS 653.601 to 653.661 and these rules:

(a) Failure to permit any employee to make use of accrued sick time;

(b) Failure to pay any employee the full amount of paid sick time when the employee uses accrued sick time;

(d) Failure to provide written notification at least quarterly to each employee of the amount of accrued and unused sick time available for use by the employee; or,

(e) Reducing benefits for which an employee is eligible because the employee has used accrued sick time.

(2) The civil penalty for any one violation may not exceed $1000. The actual amount of the civil penalty will depend on all the facts and circumstances referred to in OAR 839-007-0120.

(3) The civil penalties set out in this rule will be in addition to any other penalty assessed or imposed by law or rule.

History

Statutory/Other Authority: ORS 653.601-653.661 & ORS 651
Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017)
BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Or. Admin. R. 839-007-0120 Criteria for Determining a Civil Penalty

(1) The Commissioner of the Bureau of Labor and Industries may consider the following mitigating and aggravating circumstances when determining the amount of any civil penalty to be assessed and cite those the commissioner finds to be appropriate:

(a) The history of the employer in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(d) Whether the employer knew or should have known of the violation;

(e) The opportunity and degree of difficulty to comply;

(f) Whether the employer’s action or inaction has resulted in the loss of a substantive right of an employee.

(2) It shall be the responsibility of the employer to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be assessed.

(3) Notwithstanding any other section of this rule, the commissioner shall consider all mitigating circumstances presented by the employer for the purpose of reducing the amount of the civil penalty to be assessed.

History

Statutory/Other Authority: OL Ch. 537 & 2015
Statutes/Other Implemented: OL Ch. 537 & 2015
BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16

Division 8 PAY EQUITY

Or. Admin. R. 839-008-0000 Definitions

As used in ORS 652.210 to 652.235 and these rules:

(1) “Benefits” means:

(a) The rate of contribution, beyond what is required by federal, state or local law, that an employer makes irrevocably to a trustee or to a third person under a plan, fund or program including, but not limited to, those described under subsection (b) of this section; or

(b) The rate of costs to the employer in providing benefits to an employee, beyond what is required by federal, state or local law, pursuant to an enforceable commitment to carry out a financially responsible plan or program which is committed to the employee affected, including, but not limited to, the following:

(A) Medical or hospital care;

(B) Pensions on retirement or death;

(D) Insurance to provide any of the benefits provided in paragraphs (A) through (C) of this subsection;

(E) Unemployment benefits;

(F) Life insurance;

(G) Disability insurance;

(H) Sick leave pay;

(I) Accident insurance;

(J) Vacation or holiday pay; or

(K) Defraying costs of other bona fide fringe benefits. Other bona fide fringe benefits do not include reimbursement to workers for meals, lodging or other travel expenses.

(2) “Bonus” means an amount that is paid or something of monetary or quantifiable value that is given to an employee by an employer in addition to the employee’s regular rate of pay, typically as a means of encouragement or in recognition of superior performance. Bonuses include, but are not limited to, the following:

(a) Signing or job acceptance bonuses;

(b) Attendance bonuses;

(d) Performance bonuses; and

(e) Productivity bonuses.

(3)(a) “Compensation” includes wages, salary, bonuses, benefits, fringe benefits and equity-based compensation.

(b) Compensation does not include tips or reimbursement for any actual costs incurred including, but not limited to, relocation reimbursements, mileage, and out-of-pocket expenses.

(4) “Employee” means any individual who, otherwise than as a copartner of the employer, as an independent contractor or as a participant in a work training program administered under the state or federal assistance laws, renders personal services wholly or partly in this state to an employer who pays or agrees to pay such individual at a fixed rate. However, when services are rendered only partly in this state, an individual is not an employee unless the contract of employment of the employee has been entered into, or payments thereunder are ordinarily made or to be made, within this state.

(5)(a) “Employer” means any person employing one or more employees, including the State of Oregon or any political subdivision thereof or any county, city, district, authority, public corporation or entity and any of their instrumentalities organized and existing under law or charter.

(b) “Employer” does not include the federal government.

(6) “Equal-pay analysis” means an evaluation process to assess and correct wage disparities among employees who perform work of comparable character.

(7)(a) “Equity-based compensation” means non-cash payments that represent ownership, membership interests or opportunity for investment in the employer’s business and may include, but is not limited to, restricted stock awards, stock options, employee stock purchase plans, stock appreciation rights and other similar compensation schemes.

(b) “Equity-based compensation” does not include a one-time buyout.

(8) “Fringe benefits” means benefits as described in section (1) of this rule.

(9) “Protected class” means a group of persons distinguished by race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability or age.

(10) “Rate” with reference to wages means:

(a) The basis of compensation for services by an employee for an employer; and

(b) Compensation based on the time spent in the performance of the services, on the number of operations accomplished or on the quantity produced or handled.

(11) “Salary” has the meaning provided in OAR 839-020-0004(29) and means a predetermined amount constituting all or part of the employee’s compensation paid for each pay period of one week or longer (but not to exceed one month). The predetermined amount may not be any amount less than the equivalent of a monthly salary calculated by multiplying the wage set pursuant to ORS 653.025 by 2,080 hours per year, then dividing by 12 months.

(12) “Sexual orientation” has the meaning given that term in ORS 174.100 and means an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.

(13) “Unpaid wages” means the difference between the wages actually paid to an employee and the wages required under ORS 652.220 to be paid to the employee.

(14) “Veteran status” means an individual is a veteran as defined in ORS 408.225.

(15) “Wages” means all compensation for performance of service by an employee for an employer, whether paid by the employer or another person or paid in cash or any medium other than cash.

(16) “Working conditions” includes work environment, hours, time of day, physical surroundings and potential hazards encountered by an employee, as those terms are defined in OAR 839-008-0010.

(17) “Work of comparable character” means work that requires substantially similar knowledge, skill, effort, responsibility and working conditions in the performance of work, regardless of job description or job title, as defined in OAR 839-008-0010.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 652.210-652.235
BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019

Or. Admin. R. 839-008-0005 Seeking and Screening Job Applicants Based on Compensation

(1) Pursuant to ORS 659A.357, it is an unlawful practice under ORS chapter 659A for an employer or prospective employer to seek the salary history of an applicant or employee from the applicant or employee or a current or former employer of the applicant or employee.

(2) Pursuant to ORS 652.220(1)(c), it is an unlawful employment practice under ORS chapter 659A for an employer to screen job applicants based on current or past compensation. As used in ORS 652.220(1)(c) and these rules, “to screen job applicants based on current or past compensation” includes using information, however obtained, about a job applicant’s current or past compensation to determine a job applicant’s suitability or eligibility for employment.

(3) The unsolicited disclosure of a job applicant’s current or past compensation by a job applicant, employee or a current or former employer of the applicant or employee that is not considered by an employer does not constitute a violation of ORS 659A.357 or ORS 652.220(1)(c).

(4) Pursuant to ORS 652.220(1)(d), it is an unlawful employment practice under ORS chapter 659A for an employer to determine compensation for a position based on the current or past compensation of a prospective employee.

(5) Sections (1) and (2) of this rule are not intended to prevent an employer from requesting from a prospective employee written authorization to confirm prior compensation after the employer makes an offer of employment to the prospective employee that includes an amount of compensation.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 652.220 & ORS 659A.357
BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019

Or. Admin. R. 839-008-0010 Work of Comparable Character

(1) As used in ORS 652.210 to ORS 652.235 and these rules, “work of comparable character” includes substantially similar knowledge, skill, effort, responsibility and working conditions as defined or described as follows, with no single factor being determinative :

(a) Knowledge considerations may include, but are not limited to, the following:

(A) Certifications, licenses and certificates;

(B) Education;

(D) Training.

(b) Skill considerations may include, but are not limited to, the following:

(A) Ability;

(B) Agility;

(D) Creativity;

(E) Efficiency;

(F) Experience; or

(G) Precision.

(A) Amount of physical or mental exertion needed;

(B) Amount of sustained activity; or

(d) Responsibility considerations may include, but are not limited to, the following:

(A) Accountability, decision-making discretion or impact of an employee's exercise of their job functions on the employer's business;

(B) Amount, level or degree of significance of job tasks;

(D) Extent to which the employee exercises supervisory functions; or

(E) Extent to which an employee’s work or actions expose an employer to risk or liability.

(e) Working condition considerations include the following:

(A) Work environment;

(B) Hours, which may include, but are not limited to, the following considerations:

(i) Alternative scheduling such as split shifts;

(ii) Level of busyness during hours of work;

(iii) Limited duration assignments;

(iv) Number of hours;

(v) Overtime hours; or

(vi) Part-time or full-time work.

(C) Time of day, which may include, but is not limited to, the consideration of shift differentials related to the day of the week or time of day work shifts are scheduled;

(D) Physical surroundings, which may include, but are not limited to, the following considerations:

(i) Air quality;

(ii) Distractions;

(iii) Dust;

(iv) Exposure to weather;

(v) Isolation;

(vi) Lighting;

(vii) Noise;

(viii) Physical design or layout of workspace;

(ix) Temperature;

(x) Ventilation; or

(xi) Wetness.

(E) Potential hazards, which may include, but are not limited to, the following considerations:

(i) Degree or severity of potential injury;

(ii) Frequency of exposure;

(iii) Intensity;

(iv) Physical hazards;

(v) Risk of injury; or

(vi) Toxicity.

(2) Evaluations of work of comparable character need only consider comparisons of Oregon employees as defined in OAR 839-008-0000.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 652.210-.235
BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019

Or. Admin. R. 839-008-0015 Bona Fide Factors that May Be Considered in Paying Employees Performing Work of Comparable Character at Different Compensation Levels

Pursuant to ORS 652.220(2), employees may receive different levels of compensation for work of comparable character if the entire compensation differential is based on one or more bona fide factors related to the position in question. The bona fide factors that may be considered in determining the compensation differential between individuals are as follows:

(1) A seniority system that recognizes and compensates employees based on length of service with the employer. A seniority system utilized by an employer may be considered as a bona fide factor by the employer’s successor in interest, as defined by OAR 839-005-0014;

(2) A merit system that provides for variations in pay based upon employee performance as measured through job-related criteria, for example, a written performance evaluation plan or policy that measures employee performance using a set numerical or other established rating scale, such as from “unsatisfactory” to “exceeds expectations,” and takes employees’ ratings into account in determining employee pay rates;

(3) A system that measures earnings by quantity or quality of production, including piece rate work;

(4) Notwithstanding any other applicable federal, state or local laws, workplace location considerations may include, but are not limited to, the following:

(a) Cost of living;

(b) Desirability of worksite location;

(d) Minimum wage zones; or

(e) Wage and hour zones.

(5) Necessary and regular travel;

(6) Education considerations may include, but are not limited to, substantive knowledge acquired through relevant coursework, as well as any completed certificate or degree program;

(7) Training considerations may include, but are not limited to, on-the-job training acquired in current or past positions as well as training acquired through a formal training program;

(8) Experience considerations include, but are not limited to, any relevant experience that may be applied to the particular job; or

(9) Any combination of the factors described in subsections (a)–(h) of this section, if the combination of those factors accounts for the entire compensation differential.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: OL. CH. 617 (2019) & ORS 652.220
BLI 15-2019, amend filed 10/31/2019, effective 01/01/2020
BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019

Or. Admin. R. 839-008-0020 Determining Benefits as Part of Compensation

For purposes of ORS 652.210 to 652.235 and these rules, an employer may provide different benefits as part of compensation to employees performing work of comparable character if:

(1) The same benefit options are offered to all employees performing work of comparable character. For example, an employer may provide and pay for a more expensive health care policy that covers an employee and the employee’s spouse and dependent children, as compared to another employee performing work of comparable character that does not have a spouse or dependent children, so long as both employees are provided the same health care options. For another example, an employer may offer an array of benefit options to employees performing work of comparable character to select from, with or without cost caps, so long as each employee performing work of comparable character is offered the same options.

(2) The cost of a bona fide benefit offered by an employer, but declined by an employee, may be considered as part of the total amount of compensation paid to the employee. For example, if an employee chooses not to take advantage of a health insurance policy offered by an employer because the employee is covered under their spouse’s plan, the cost of providing the benefit that would have been incurred by the employer to provide the employee with the benefit offered may be included as part of the employee’s total compensation rate for purposes of calculating the employee’s total compensation under this law.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 652.210-.235
BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019

Or. Admin. R. 839-008-0025 Reductions in Employee Compensation

(1) Pursuant to ORS 652.220(4), an employer may not reduce the compensation level of an employee to comply with the provisions of ORS 652.210 to 652.235 and these rules.

(2) Red circling, freezing or otherwise holding an employee’s compensation constant as other employees come into alignment are not considered reductions in the compensation level for the employee whose compensation is being held constant.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 652.210-.235
BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019

Or. Admin. R. 839-008-0030 Required Posting and Notice Requirements

(1) The Bureau of Labor and Industries shall make available to employers a template that meets the required notice provisions of ORS 652.220(7).

(2) Employers shall display the poster in every establishment where employees work. If displaying the poster is not feasible, an employer may comply with the requirement to provide written notice as required in ORS 652.220 by any of the following:

(a) Distributing the written notice to each employee personally by regular mail or email, or by including it with a paycheck;

(b) Incorporating the written notice into a handbook or manual made available to employees, whether in a print or electronic format; or

(c) Posting the written notice in a conspicuous and accessible location in each workplace of the employer or via electronic format that is reasonably conspicuous and accessible.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 652.220
BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019

Or. Admin. R. 839-008-0035 Individual Acts of Remuneration as Distinct Violations

An employer commits an unlawful compensation practice each time an employee is remunerated in violation of ORS 652.220.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 652.220 & ORS 659A.875
BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019

Division 9 EMPLOYEE LEAVE LAWS

Or. Admin. R. 839-009-0150 Paid Leave Oregon: Job Protections

(1) The protections provided under ORS 657B.060 and this rule apply only to an eligible employee who was employed by the employer for at least 90 consecutive calendar days prior to taking Paid Leave Oregon leave. 90 consecutive calendar days include the days the employee is not scheduled to work but is still employed with the employer.

(2) An employer must restore an employee returning from Paid Leave Oregon leave to the employee's former position, if the position still exists, even if the former position has been filled by a replacement worker during the employee's Paid Leave Oregon leave. The employee’s former position is the position held by the employee at the time Paid Leave Oregon leave commenced, regardless of whether the job has been renamed or reclassified. (For example, a delivery driver must be returned to the same route, at the same rate of pay and benefits, driving the same type of truck, delivering the same type of goods, on the same shift, and working from the same location as when the driver started Paid Leave Oregon leave.)

(3) For the purposes of this rule, any worker hired or reassigned during an eligible employee's leave to perform the same work in the same position that the eligible employee held before the leave was taken is a replacement worker. If the eligible employee on Paid Leave Oregon leave notifies the employer that they are ready to return to work earlier than anticipated, the employer must give the eligible employee the opportunity to work any hours that the replacement worker would otherwise have been scheduled to work beginning on the second business day following the date the eligible employee notified the employer they were ready to end their leave and return to work.

(4) Notwithstanding section (2) of this rule, an employee is not entitled to return to the former position if the employee would have been terminated or reassigned from their current position to another position if Paid Leave Oregon leave had not been taken.

(5) Subject to section (6)(d) of this rule, if the position held by the employee at the time Paid Leave Oregon leave began has been eliminated, and not merely renamed or reclassified, then:

(a) If the employer is a large employer as defined in OAR 471-070-3150, the employer must restore the employee to any available, equivalent position for which the employee is qualified, within a 50 mile radius of the employee’s former job site.

(A) An available position is a position that is vacant or not permanently filled.

(B) An equivalent position is a position that is virtually identical to the employee's former position in as many aspects as possible in terms of employment benefits and pay, and similar working conditions, including privileges, perks, and status. It must involve substantially the same or similar duties and responsibilities, which must entail equivalent skill, effort, responsibility, and authority.

(C) If an equivalent position is available at multiple job sites, and the employee is not able to return to the employee’s former position because it no longer exists, the employer shall first offer the employee an equivalent position at the job site closest to the employee’s former job site.

(b) If the employer is a small employer as defined in OAR 471-070-3150, the employer may, at the employer’s discretion and based on business necessity, restore the employee to a different position. The different position must offer the same employment benefits and pay, and similar working conditions, including privileges, perks, and status as the employee’s former position and must have similar job duties and responsibilities as the employee’s former position.

(6)(a) Unless the terms of a collective bargaining agreement, other employment agreement, or the employer’s policy provides otherwise, an employee on Paid Leave Oregon leave is not entitled to accrue employment benefits during a period of leave. Employment benefits include but are not limited to: accrual of seniority, production bonuses, or other non-health-care-related benefits that would have accrued if the employee was working;

(b) Benefits an employee was entitled to and that accrued prior to starting Paid Leave Oregon leave, including, but not limited to seniority or pension rights, must be restored in full upon the employee’s return to work. The benefits do not have to be restored if such benefits have been eliminated or changed for all similarly situated employees;

(c) An employee is not entitled to a right, benefit, or position of employment other than a right, benefit, or position to which the employee would have been entitled, if the employee had not taken Paid Leave Oregon leave; and

(d) An employee is subject to layoff on the same terms or under the same conditions as similarly situated employees who have not taken Paid Leave Oregon leave.

(7) During any Paid Leave Oregon leave, an employer must maintain any health care benefits the employee had prior to taking such leave, for the duration of the leave, as if the employee had maintained their employment continuously during the period of leave.

(a) An employer continuing health care insurance coverage for an employee on Paid Leave Oregon leave may require that the employee pay only the same share of premium costs during the leave that the employee would have been required to pay if not on leave.

(b) If an employee cannot or will not pay their share of the premium costs, the employer may elect to discontinue health care benefit coverage, unless doing so would render the employer unable to restore the employee to full benefit coverage once the employee returns to work. If coverage lapses because an employee has not made required premium payments, upon the employee's return from Paid Leave Oregon leave the employer must restore the employee to coverage/benefits equivalent to those the employee would have had if leave had not been taken and the premium payment(s) had not been missed, including family or dependent coverage. In such case, an employee may not be required to meet any qualification requirements imposed by the plan, including being subject to any new preexisting condition waiting period, to wait for an open enrollment period, or to pass a medical examination to obtain reinstatement of coverage.

(c) If the employer pays (directly or indirectly, voluntarily or as required by state or federal statute) any part of the employee's share of health or other insurance premium while an employee is on Paid Leave Oregon leave, the employer may deduct from their pay the employee’s share of health or other insurance premiums paid by the employer until the amount is repaid. The employer may deduct up to 10 percent of the employee's gross pay each pay period after the employee returns to work until the health or other insurance premium amounts paid by the employer are repaid.

(d) If an employee fails to return to work — unless the failure to return to work is because of a serious health condition or safe leave for which the employee would be entitled to Paid Leave Oregon leave or another circumstance beyond the employee's control — the employer may recover the employee's share of the health insurance premiums paid by the employer. The employer may use any legal means to collect the amount owed for the employee's share of health insurance premiums paid by the employer, including deducting the amount from the employee's final paycheck.

(8) An employer may require an employee to follow the employer's established leave policy regarding reporting to the employer any changes to the employee's leave status.

(9) If an employee gives clear notice of intent to not to return to work from Paid Leave Oregon leave, except as required by other state or federal law, the employer’s obligations under ORS chapter 657B to restore the employee’s position and maintain any health care benefits cease on the date the notice is given to the employer.

(10) It is an unlawful employment practice to discriminate against an eligible employee who has invoked any provision of ORS chapter 657B or this rule. An employee who alleges a violation of any provision of ORS 657B.060 or this rule may bring a civil action under ORS 659A.885 or may file a complaint with the Commissioner of the Bureau of Labor and Industries in the manner provided by ORS 659A.820 unless a remedy is provided under ORS 657B.410 or applicable administrative rules.

History

Statutory/Other Authority: Section 2, chapter 85, Oregon Laws 2025 & ORS 651.060
Statutes/Other Implemented: ORS 657B.060 & ORS 657B.070
BLI 16-2025, adopt filed 12/30/2025, effective 01/01/2026

Or. Admin. R. 839-009-0210 OFLA: Definitions

As used in this Division 9:

(1) “Alternate duty" means work assigned to an employee that may consist of:

(a) The employee's same duties worked on a different schedule; or

(b) Different duties worked on the same or different schedule.

(2)(a) “Affinity” means a relationship for which there is a significant personal bond that, when examined under the totality of the circumstances, is like a family relationship.

(b) The bond described in subsection (a) of this section may be demonstrated by, but is not limited to the following factors, with no single factor being determinative:

(A) Shared personal financial responsibility, including shared leases, common ownership of real or personal property, joint liability for bills or beneficiary designations;

(B) Emergency contact designation of the employee by the other individual in the relationship or the emergency contact designation of the other individual in the relationship by the employee;

(D) Cohabitation and its duration and purpose;

(E) Geographic proximity; and

(F) Any other factor that demonstrates the existence of a family-like relationship.

(3) "Child," means the eligible employee’s biological, adopted, foster or stepchild, the child of the employee's spouse or domestic partner or a child with whom the employee is or was in a relationship of in loco parentis. For purposes of child placement leave and sick child leave only, the child must be:

(a) Under the age of 18; or

(b) An adult dependent child substantially limited by a physical or mental impairment as defined by ORS 659A.104 (1)(a), (3), and (4).

(4) “Child care provider” for the purpose of sick child leave during a statewide public health emergency declared by a public health official means a place of care or person who cares for a child.

(a) A person who cares for a child includes but is not limited to individuals paid to provide child care, for example nannies, au pairs, and babysitters or individuals who provide child care at no cost and without a license on a regular basis, for example, grandparents, aunts, uncles, or neighbors.

(b) Place of care is a physical location in which care is provided for a child including but not limited to day care facilities, preschools, before and after school care programs, schools, homes, summer camps, summer enrichment programs, and respite care programs. The physical location does not have to be solely dedicated to such care.

(5) "Closure" for the purpose of sick child leave during a statewide public health emergency declared by a public health official means a closure that is ongoing, intermittent, or recurring and restricts physical access to the child’s school or child care provider.

(6) "Covered employer" means any employer employing 25 or more persons in the state of Oregon for each working day during each of 20 or more calendar work weeks in the year in which the leave is to be taken or in the year immediately preceding the year in which the leave is to be taken.

(7)(a) "Eligible employee" means an employee described in ORS 659A.156 who is employed in the State of Oregon on the date OFLA leave begins.

(b) To determine the number of days an employee has worked, the employer must count the number of days an employee is maintained on the payroll, including all time paid or unpaid. If an employee continues to be employed by a successor in interest to the original employer, the number of days worked are counted as continuous employment by a single employer.

(c) To determine an employee’s average hours of work per week, the employer must count actual hours worked using guidelines set out pursuant to the federal Fair Labor Standards Act.

(d) For eligibility of employees reemployed following a period of uniformed service:

(A) The federal Uniformed Services Employment and Reemployment Act, 38 USC §43 (USERRA) provides that an employee reemployed following a period of uniformed service is entitled to the seniority and seniority-based rights and benefits that the employee had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if the employee had remained continuously employed. U.S. Department of Labor regulation 20 CFR §1002.210 provides that in determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. The rights and benefits protected by USERRA upon reemployment include those provided by the employer and those required by statute. Under USERRA, a reemployed service member would be eligible for leave under OFLA if the number of days and the number of hours of work for which the service member was employed by the civilian employer, together with the number of days and number of hours of work for which the service member would have been employed by the civilian employer during the period of uniformed service, meet OFLA's eligibility requirements. In the event that a service member is denied OFLA leave for failing to satisfy the OFLA days and hours of work requirement due to absence from employment necessitated by uniformed service, the service member may have a cause of action under USERRA but not under OFLA.

NOTE: USERRA also applies to leave under the federal Family and Medical Leave Act of 1993, 29 USC §2601-2654 (FMLA).

(B) ORS 659A.082–659A.088 provides that an employee reemployed following a period of uniformed service is entitled to the seniority and seniority-based rights and benefits that the employee had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if the employee had remained continuously employed. In determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. If a reemployed service member was eligible for leave under OFLA prior to the date uniformed service began, OFLA's eligibility requirements are considered met.

(e) For the purpose of qualifying as an eligible employee, the employee need not work solely in the state of Oregon.

(8) “Family member” means an individual related to an eligible employee by affinity or an individual who is an eligible employee’s:

(a) Spouse or domestic partner;

(b) Child or the child’s spouse or domestic partner;

(d) Sibling or stepsibling or the sibling’s or stepsibling’s spouse or domestic partner;

(e) Grandparent or the grandparent’s spouse or domestic partner; or

(f) Grandchild or the grandchild’s spouse or domestic partner.

(9) "FMLA" is the federal Family and Medical Leave Act, 29 USC §2601.

(10) “Foreseeable leave” means OFLA leave that is not “unforeseeable leave.”

(11) "Foster child" means a child, not adopted, but being reared as a result of legal process, by a person other than the child's biological parent.

(12) "Gender" means an individual's assigned sex at birth, gender identity, or gender expression.

(13) "Gender expression" means the manner in which an individual's gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle, whether or not that expression is different from that traditionally associated with the individual's assigned sex at birth.

(14) "Gender identity" has the meaning given that term in ORS 174.100

(15) “Health care provider” has the meaning given that term in ORS 659A.150.

(16) "In loco parentis" means in the place of a parent, having financial or day-to-day responsibility for the care of a child. A legal or biological relationship is not required.

(17) "Intermittent leave" means leave taken in multiple blocks of time and/or requiring an altered or reduced work schedule including but not limited to sick child leave taken requiring an altered or reduced work schedule because the intermittent or recurring closure of a child’s school or child care provider due to a statewide public health emergency declared by a public health official.

(18) "OFLA" is the Oregon Family Leave Act, ORS 659A.150 to 659A.186.

(19)(a) "OFLA leave" means a leave of absence for purposes described in ORS 659A.150 to 659A.186 or OAR 839-009-0230.

(b) "OFLA leave" does not include leave taken by an eligible employee who is unable to work because of a disabling compensable injury, as defined in ORS 656.005, unless the leave qualifies as OFLA leave to which the employee is otherwise entitled and the employee refuses a bona fide offer from the employer of light duty or modified employment that is suitable prior to becoming medically stationary under ORS 659A.043 or 659A.046.

(20) “Parent” means:

(a) An eligible employee’s biological parent, adoptive parent, stepparent or current or former foster parent or a person who was or is the eligible employee’s legal guardian or with whom the eligible employee was or is in a relationship of in loco parentis; or

(b) The parent of the eligible employee’s spouse or domestic partner who meets a description in subsection (a) of this section.

(21) “Public health emergency” has the meaning given that term in ORS 659A.150.

(22) “Spouse” includes:

(a) Individuals in a marriage recognized under state law in the state in which the marriage was entered into;

(b) Individuals in a marriage validly performed in a foreign jurisdiction;

(23) “Unforeseeable leave” means OFLA bereavement leave, child placement leave, pregnancy disability leave or leave taken as a result of an unexpected illness, injury or condition of a child of the employee that requires home care.

History

Statutory/Other Authority: ORS 659A.805 & ORS 651.060
Statutes/Other Implemented: ORS 659A.150 - 659A.186, ORS 659A.043 & ORS 659A.046
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 9-2024, amend filed 03/01/2024, effective 03/02/2024
BLI 14-2023, temporary amend filed 08/23/2023, effective 09/03/2023 through 02/29/2024
BLI 13-2022, minor correction filed 09/20/2022, effective 09/20/2022
BLI 4-2021, amend filed 03/15/2021, effective 03/18/2021
BLI 8-2020, temporary amend filed 09/11/2020, effective 09/14/2020 through 03/12/2021
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
Reverted to BLI 16-2013, f. & cert. ef. 12-31-13
BLI 14-2014(Temp), f. & cert. ef. 11-20-14 thru 5-15-15
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 35-2006, f. 10-3-06, cert. ef. 10-4-06
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 5-2000, f. & cert. ef. 2-1-00
BL 2-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-009-0215 OFLA: Leave Previously Protected by OFLA

(1) As used in this rule, “leave previously protected by OFLA” means leave:

(a) To which an eligible employee would be entitled under ORS 659A.150 to 659A.186 on June 30, 2024; and

(b) To which an eligible employee would not be entitled under ORS 659A.150 to 659A.186, on July 1, 2024.

(2) A covered employer may rescind a designation or approval of leave previously protected by OFLA that is scheduled to occur on or after July 1, 2024.

(3) A covered employer who has designated or approved leave previously protected by OFLA that is scheduled to occur on or after July 1, 2024:

(a) Must, as soon as practicable, notify the employee in writing, in the language the employer typically uses to communicate with the employee, that the leave is not protected by OFLA on and after July 1, 2024; and

(b) May not retaliate or in any way discriminate against the employee with respect to hire or tenure or any other term or condition of employment because the employee has inquired about the provisions of OFLA, submitted a request for OFLA leave, or invoked any provision of OFLA.

(4) A covered employer must provide written information to an employee that informs the employee of the ability to apply for benefits under ORS chapter 657B, including contact information for Paid Leave Oregon or the administrator of the employer’s equivalent plan:

(a) Concurrently if the employer rescinds the employee’s previous OFLA designation or approval, as described in section (2) of this rule; and

(b) As soon as practicable but within 14 calendar days of the employee providing the employer with information that, before July 1, 2024, would have been sufficient for the employer to provisionally designate the leave as leave previously protected by OFLA.

(5) A covered employer may comply with section (4) of this rule by providing the employee with the notice made available by the Director of the Employment Department described in ORS 657B.440, in the language the employer typically uses to communicate with the employee.

(6) This rule does not relieve an employer from the obligation to comply with other laws, including the Family and Medical Leave Act, the Americans with Disabilities Act, ORS 659A.103 to 659A.146 and 659A.147 and ORS 653.601 to 653.661, when the employer is notified of the employee’s need for leave that was previously protected by OFLA.

History

Statutory/Other Authority: ORS 651.060, ORS 659A.805 & Section 22, chapter 20, Oregon Laws 2024
Statutes/Other Implemented: ORS 659A.150 to 659A.186 & Section 22, chapter 20, Oregon Laws 2024
BLI 15-2024, adopt filed 06/28/2024, effective 07/01/2024

Or. Admin. R. 839-009-0220 OFLA: Relationship to Other Laws

(1) Leave taken under FMLA counts as OFLA leave provided the employee is also eligible for OFLA leave.

(2) Provisions of OFLA will be construed to the extent possible in a manner that is consistent with any similar provisions of FMLA; however, employers subject to both OFLA and FMLA must apply in a given leave situation the provision that is more beneficial to the employee’s circumstances.

(3) An employer may not impair, by agreement or otherwise, the right of an employee on OFLA leave to utilize sick leave under the provisions of ORS 653.601 to 653.661.

(4) The provisions of ORS 657B.060 and 657B.070 apply during periods of time that include but are not limited to the application period described in OAR 471-070-1100.

(5) A decision by the Director of the Employment Department, or a decision under an equivalent plan described in ORS 657B.210 to 657B.260, to deny family or medical leave under ORS chapter 657B is not a defense to the unlawful practice described in ORS 659A.183. A covered employer has an independent obligation to determine whether to deny or grant OFLA leave in accordance with ORS 659A.150 to 659A.186 and these rules.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.805 & ORS 659A.150 - 659A.186
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 9-2024, amend filed 03/01/2024, effective 03/02/2024
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 5-2000, f. & cert. ef. 2-1-00
BL 2-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-009-0230 OFLA: Purposes for Taking Leave

Eligible employees may take OFLA leave for the purposes referred to as child placement leave, pregnancy disability leave, sick child leave, and bereavement leave.

(1) Child placement leave is leave taken under OFLA before January 1, 2025, to effectuate the legal process required for placement of a foster child or the adoption of a child.

(2) Pregnancy disability leave is leave taken by an employee for their own disability related to pregnancy, including pregnancy termination or childbirth, whether the disability occurs before, during or after the birth of the child, or for prenatal care, including fertility or infertility treatment.

(3) Sick child leave is leave taken to care for an employee's child suffering from an illness, injury, or condition that requires home care.

(a) Sick child leave includes leave to care for an employee's child whose school or child care provider has been closed in conjunction with a statewide public health emergency declared by a public health official.

(b) An employer is not required to grant OFLA leave for routine medical or dental appointments.

(4) Bereavement leave is leave taken to deal with the death of a family member and includes leave taken to attend the funeral or alternative to a funeral of the family member, to make arrangements necessitated by the death of the family member, or to grieve the death of the family member.

History

Statutory/Other Authority: ORS 659A.805 & ORS 651.060
Statutes/Other Implemented: ORS 659A.150 - 659A.186
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 9-2024, amend filed 03/01/2024, effective 03/02/2024
BLI 14-2022, minor correction filed 09/20/2022, effective 09/20/2022
BLI 7-2020, amend filed 09/11/2020, effective 09/14/2020
BLI 4-2020, temporary amend filed 03/18/2020, effective 03/18/2020 through 09/13/2020
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 5-2000, f. & cert. ef. 2-1-00
BL 2-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-009-0235 OFLA: Leave Year

(1) For purposes of this Division 9, “OFLA leave year” has the meaning given the phrase “one-year period” in ORS 659A.164.

(2) If a covered employer transitions from any other leave year applicable to OFLA to an OFLA leave year, all eligible employees of the covered employer must be provided with the full benefit of leave entitlement described in ORS 659A.150 to 659A.186 at the beginning of the new OFLA leave year.

History

Statutory/Other Authority: ORS 651.060, ORS 659A.164 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.164
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 9-2024, adopt filed 03/01/2024, effective 03/02/2024

Or. Admin. R. 839-009-0240 OFLA: Length of Leave and Other Conditions of OFLA Leave

(1)(a) An eligible employee is entitled to up to a total of 12 weeks of OFLA leave, for sick child leave and bereavement leave, within an OFLA leave year.

(b) Notwithstanding subsection (a) of this section, an eligible employee is entitled to a total of two weeks of bereavement leave upon the death of each family member of the employee within an OFLA leave year, except that the eligible employee may not take more than four weeks of bereavement leave within an OFLA leave year.

(2) In addition to the 12 weeks of leave described in section (1) of this rule, an eligible employee may take a total of 12 weeks of OFLA pregnancy disability leave within the same OFLA leave year. The employee may use all or part of the 12 weeks of leave described in section (1) of this rule and all or part of the 12 weeks of OFLA pregnancy disability leave in any order. The employee need not exhaust either type of leave in order to use the other.

(3) In addition to the 24 weeks of leave authorized by sections (1) and (2) of this rule, an eligible employee is entitled to a total of two weeks of child placement leave within an OFLA leave year. This section (3) of this rule does not apply on or after January 1, 2025.

(4) The adoption or foster placement of multiple children at one time entitles the employee to take only one two-week period of child placement leave. This section (4) of this rule does not apply on or after January 1, 2025.

(5) A covered employer need not grant sick child leave to an eligible employee if another family member of the child is willing and able to care for the child.

(6) A covered employer may not reduce the amount of OFLA leave available to an eligible employee under this section by any period the employee is unable to work because of a disabling compensable injury as defined in ORS 656.005.

(a) If an employee uses OFLA pregnancy disability leave for a workplace injury pending acceptance of a workers’ compensation claim, upon acceptance of the claim any OFLA pregnancy disability leave used for the workplace injury must be restored to the employee. If the claim is denied, OFLA pregnancy disability leave will be deducted from the employee’s entitlement.

(b) If a worker's compensation claim is first denied and then accepted, the employer must restore any OFLA pregnancy disability leave taken for the condition covered by worker’s compensation in the leave year in which the worker's compensation claim is accepted.

(c) Notwithstanding this rule, the employer may reduce the amount of OFLA leave available to an eligible employee under this section by any period the employee is unable to work because of a disabling compensable injury as defined in ORS 656.005 after the employee has refused a suitable offer of light duty or modified employment under ORS 659A.043 (3)(a)(D) or 659A.046(3)(d).

(d) An employee unable to work for an employer because of a disabling compensable injury arising out of and in the course of employment for that employer, but who is also employed by and able to work for another employer, may be eligible and qualify to use OFLA leave under the other employer.

(7) For the purpose of intermittent leave, OFLA leave entitlement is calculated for an employee by multiplying the number of hours in the employee’s normal work week by the number of weeks for which the employee is eligible for each category of OFLA.

(a) If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 months worked prior to the beginning of the leave period must be used for calculating the employee's normal work week.

(b) If an employee takes intermittent or reduced work schedule OFLA leave, only the actual number of hours of leave taken may be counted toward the OFLA leave to which the employee is entitled.

(8) When an employee requests OFLA leave, or when a covered employer acquires knowledge that an employee’s leave may be for a purpose that constitutes OFLA leave, the employer must notify the employee of the employee's eligibility to take OFLA leave within five business days, absent extenuating circumstances. Whether an employee is an “eligible employee” as defined in OAR 839-009-0210 is determined, and notice must be provided, at the commencement of the first instance of each purpose for leave listed in OAR 839-009-0240 during the OFLA leave year. If an employee is an “eligible employee” as defined in OAR 839-009-0210 for a purpose listed in OAR 839-009-0240, the employee’s eligibility for that purpose does not change during the applicable 12-month period. In addition:

(a) An eligible employee taking, in any order, some or all of 12 weeks of OFLA pregnancy disability leave and some or all of 12 weeks of OFLA leave for any other purpose, need not requalify under OAR 839-009-0210 each time the employee takes OFLA leave within the same leave year.

(b) An employee who has taken two weeks of OFLA child placement leave, need not requalify under OAR 839-009-0210 for up to an additional 12 weeks of leave within the same leave year when used for the purposes of OFLA sick child leave.

(c) An employee unable to work because of a disabling compensable injury as defined in ORS 656.005 need not requalify under OAR 839-009-0210 in order to use OFLA leave following a period the employee is off work due to the compensable injury.

(9) When an employer is authorized by law to request additional information, other than information that constitutes medical verification, to verify whether leave is OFLA qualifying, the employer may provide the employee with a written request for information. The written request must be provided within five business days after the date on which the employee requests OFLA leave, or on which the employer acquires knowledge that an employee's leave may be for an OFLA-qualifying reason. Absent extenuating circumstances, the employer must notify the employee whether or not the employee is eligible and qualifies to take OFLA leave within five business days of receiving the requested information. If an employer determines that an employee does not qualify for OFLA leave for the reason requested, the employer must notify the employee in writing that the employee does not qualify.

(10) When the written notice described in section (8) or (9) of this rule indicates that the employee does not qualify for OFLA leave, the notice must state that the employee is ineligible or that the reason for requested leave does not qualify for OFLA leave and at least one reason why the employee is not eligible or the reason does not qualify for leave.

(11) An exempt employee is a salaried executive, administrative or professional employee under the federal Fair Labor Standards Act or the state minimum wage and overtime laws.

(a) When OFLA leave is also covered by FMLA and the employee takes intermittent leave in blocks of less than one day, if done in accordance with 29 CFR § 825.206, the employer may reduce the employee's salary for the part-day absence without the loss of the employee's exempt status in accordance with OAR 839-020-0004(32).

(b) When OFLA leave is not covered by FMLA, and the employee takes intermittent leave in blocks of less than one day, an employer will jeopardize the employee's exempt status if the employer reduces the employee's salary for the part-day absence.

(12) ORS 659A.150 to 659A.186 and these rules do not limit any right of an employee to similar leave to which the employee may be entitled under any agreement between the employer and the employee, collective bargaining agreement or employer policy.

(13) When an eligible employee takes bereavement leave under ORS 659A.150 to 659A.186 to deal with the death of an individual related by blood or affinity whose close association with the eligible employee is the equivalent of a family relationship, the employer may require the employee to attest in writing that the employee and the other person have a significant personal bond that, when examined under the totality of the circumstances, is like a family relationship. An employer that requires a written attestation must provide an attestation form to the employee. The form need not be notarized, must be in the language typically used by the employer to communicate with the employee and may include the following provisions:

History

Statutory/Other Authority: ORS 659A.805 & ORS 651.060
Statutes/Other Implemented: ORS 659A.150 - 659A.186, ORS 659A.043 & ORS 659A.046
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 9-2024, amend filed 03/01/2024, effective 03/02/2024
BLI 15-2023, temporary amend filed 09/06/2023, effective 09/06/2023 through 02/29/2024
BLI 14-2023, temporary amend filed 08/23/2023, effective 09/03/2023 through 02/29/2024
BLI 15-2022, minor correction filed 09/20/2022, effective 09/20/2022
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 3-2005, f. 1-6-05, cert. ef. 1-7-05
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 5-2000, f. & cert. ef. 2-1-00
BL 2-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-009-0245 OFLA: Intermittent Leave and Alternate Duty

(1) An employer may transfer an employee on intermittent OFLA leave or a reduced work schedule into an alternate position with the same or different duties to accommodate the leave, provided the following exist:

(a) The employee accepts the transfer position voluntarily and without coercion;

(b) The transfer is temporary, lasts no longer than necessary to accommodate the leave and has equivalent pay and benefits;

(c) The transfer is compliant with applicable collective bargaining agreements, as well as with state and federal law, including ORS 659A.146 and 659A.147 and all the employee protections found in FMLA regulations 29 CFR Part 825;

(d) Transfer to an alternate position is used only when there is no other reasonable option available that would allow the employee to use intermittent leave or reduced work schedule; and

(e) The transfer is not used to discourage the employee from taking intermittent or reduced work schedule leave, or to create a hardship for the employee.

(2) An employee transferred, as provided in section (1) of this rule, to an alternate position for the purpose of a reduced work schedule must be returned to the employee's former position when the employee notifies the employer that the employee is ready to return to the former position at the end of the alternate duty leave.

(3) OFLA leave time for an employee on intermittent leave or a reduced work schedule is the difference between the number of hours the employee normally works and the number of hours the employee actually works during the intermittent leave or reduced work schedule. When it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work during a shift, the entire period of work from which the employee is forced to be absent is designated as OFLA leave and counts against the employee's OFLA entitlement.

(4) Days in which the employer's business is not in operation are not counted toward intermittent or reduced work schedule OFLA leave.

(5) An employer may transfer an employee to an alternate position that accommodates OFLA pregnancy disability leave provided:

(a) The employee accepts the position voluntarily and without coercion;

(b) The transfer is temporary, lasts no longer than necessary and has equivalent pay and benefits;

(d) The transfer is not used to discourage the employee from taking OFLA leave or to create a hardship for the employee.

(6) An employee is not on OFLA leave if the employee has been transferred — as provided in section (5) of this rule — to an alternate position for the purpose of alternate work duties that the employee is able to perform within the limitations of the employee's pregnancy disability, but not requiring a reduced work week. An employee working in an alternate position retains the right to return to the employee's original position at any time during the employee’s OFLA leave. This section (6) does not impair the right of an employee to a reasonable accommodation or the application of any other state or federal law.

(7) An alternate position may result in the employee working fewer hours than the employee worked in the original position. The employee's OFLA leave is the difference between the number of hours the employee worked in the original position and the number of hours the employee actually works in the alternate position.

History

Statutory/Other Authority: ORS 651.060, ORS 659A.162 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.150 to 659A.186
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 5-2000, f. & cert. ef. 2-1-00

Or. Admin. R. 839-009-0250 OFLA: Notice by Employee; Designation by Employer; Notice by Employer Regarding Eligibility or Qualification

(1) Except as otherwise described in this rule, a covered employer may require an eligible employee to give 30 days’ written notice of the need for foreseeable leave, including an explanation of the need for leave, before starting sick child leave. The employee is not required to specify that the request is for OFLA leave.

(2) When an employee is unable to give the employer 30 days’ notice of the need for sick child leave but has some advance notice of the need for the leave, the employee must give the employer as much advance notice as is practicable.

(3) An employee able to give advance notice of the need to take sick child leave must follow the employer's known, reasonable and customary procedures for requesting any kind of leave, absent unusual circumstances.

(4) When taking OFLA leave in an unforeseeable situation, an employee must give oral or written notice within 24 hours before or after commencement of the leave. This notice may be given by any other person on behalf of an employee taking unforeseeable OFLA leave. The employer may require written notice by the employee within three days of the employee's return to work.

(5)(a) Except as otherwise provided in OAR 839-009-0260 and subsection (e) of this section, an employer may request additional information to determine that a requested leave qualifies for designation as OFLA leave.

(b) The employer may provisionally designate an absence as OFLA leave until sufficient information is received to make a determination. An employee who calls in “sick” without providing further information will not be considered to have provided sufficient notice to trigger an employer’s obligations under OFLA, unless the employer has reason to know the employee is attempting to invoke protected leave or the employer acquires knowledge that an employee’s leave may be for an OFLA-qualifying reason.

(c) An employee on OFLA leave who needs to take more leave than originally authorized must give the employer reasonable notice prior to the end of the authorized leave, following the employer's known, reasonable and customary procedures for requesting any kind of leave. However, when an authorized period of OFLA leave has ended and an employee does not return to work, an employer having reason to believe the continuing absence may qualify as OFLA leave must request additional information, and may not treat a continuing absence as unauthorized unless requested information is not provided or does not support OFLA qualification.

(d) An eligible employee may receive notice of the death of a family member by any means and from any source.

(e) An employer may not request additional information to verify bereavement leave, except the employer may require the use of an attestation form described in OAR 839-011-0240 when the family member is related by affinity.

(6) When an employee fails to give notice of foreseeable leave as required by sections (1) and (2), and (3):

(a) If the leave qualifies under OFLA only and not under FMLA, the employer may reduce the total period of unused OFLA leave by an amount no greater than the number of days of leave the employee has taken without providing timely notice of leave. This reduction of leave may not exceed three weeks in a one-year leave period; and the employer may subject the employee to disciplinary action under a uniformly applied policy or practice of the employer.

(b) If the leave qualifies under FMLA only, FMLA regulations apply.

(A) Delay FMLA coverage until up to 30 days after notice was received as permitted by the FMLA regulations at 29 CFR §825.304 (this applies only to leave to which the employee is entitled under FMLA);

(B) Reduce the total period of unused OFLA leave by an amount no greater than the number of days of leave the employee has taken without providing timely notice of leave. This reduction of leave may not exceed three weeks in a one-year leave period. This applies only to leave to which the employee is entitled under OFLA; and

(C) In addition to actions permitted under (A) and (B), the employer may also take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking OFLA or FMLA leave.

(d) A reduction of OFLA leave under (6)(a) or (6)(c) of this rule may not limit OFLA bereavement leave.

(7) An employer may not reduce an employee’s available OFLA leave or take disciplinary action under (6)(a) or (c) of this rule unless the employer has posted the required Bureau of Labor and Industries Family Leave Act notice or the employer can otherwise establish that the employee had actual knowledge of the notice requirement.

(8) An employee who has refused a suitable offer of light duty or modified employment under ORS 659A.043 or 659A.046 and who otherwise is entitled to OFLA leave:

(a) Automatically commences a period of OFLA leave upon refusing the offer of employment; and

(b) Need not give notice to the employer that would otherwise be required that the employee is commencing a period of leave.

(9) A covered employer may provide an OFLA leave request form.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.150–659A.186, ORS 659A.043 & ORS 659A.046
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 9-2024, amend filed 03/01/2024, effective 03/02/2024
BLI 4-2021, amend filed 03/15/2021, effective 03/18/2021
BLI 8-2020, temporary amend filed 09/11/2020, effective 09/14/2020 through 03/12/2021
BLI 6-2019, minor correction filed 04/05/2019, effective 04/05/2019
BLI 4-2019, minor correction filed 04/05/2019, effective 04/05/2019
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 1-2007, f. 1-16-07, cert. ef. 1-17-07
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 5-2000, f. & cert. ef. 2-1-00
BL 2-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-009-0260 OFLA: Medical Verification and Scheduling of Treatment

(1) An employer may require an employee to provide medical verification of the need for OFLA leave, except that:

(a) An employer may not require medical verification for child placement leave, for bereavement leave or for the need for sick child leave due to the closure of a child’s school or child care provider as a result of a public health emergency.

(b) Unless the employee is taking sick leave under ORS 653.601 to 653.661 concurrently with OFLA leave, an employer may request medical verification for sick child leave only after the employee has taken sick child leave on all or any part of three separate days during a leave year for a purpose other than to care for a child who requires home care due to the closure of the child’s school or child care provider as the result of a public health emergency The opinion of the health care provider is binding, and the employer may not require the employee to obtain a second opinion.

(2) All requests for medical verification must be in writing and must state the consequences for failure to provide the requested medical verification.

(3)(a) The employer must pay the cost of any requested medical verification.

(b) Notwithstanding subsection (a) of this section, the costs of medical verification for pregnancy disability leave may be paid:

(A) From health and welfare fringe benefit moneys contributed entirely by the employer; or

(B) By the employee if the medical verification is a component of a medical examination or health certificate required pursuant to a collective bargaining agreement, state or federal statute or city or county ordinance.

(4) When an employee is required to give advance written notice of foreseeable leave, the employer may also require the employee to provide medical verification of the need for OFLA leave before the leave starts.

(5) When an employee commences unforeseeable OFLA leave without prior notice, the employee must provide medical verification within 15 days of the employer’s request for verification.

(6) If an employer determines that a medical verification provided by an employee is incomplete or insufficient, the employer must provide written notice that states the verification is incomplete or insufficient and the additional information needed to make it complete or sufficient and must afford the employee a reasonable period of time to correct the deficiency.

(7) When an employee fails to respond to reasonable employer requests for medical verification of the employee’s eligibility for foreseeable leave to determine whether the leave is OFLA qualifying, the employer may deny use of OFLA leave until complete or sufficient medical verification is received.

(8) An employer may not delay the use of OFLA leave when medical verification is not received before the commencement of unforeseeable leave. The employer may designate the leave as provisionally approved, subject to medical verification.

(9) If an employee submits medical verification signed by a health care provider, the employer may not directly request additional information from the employee or family member’s health care provider. However, with permission from the employee or family member, a health care provider representing the employer may contact the employee or family member’s health care provider to clarify or authenticate the medical verification.

(10) Except as provided in ORS 659A.171(4), an employer may not request medical verification for leave after the employee has qualified for that leave. An employer may not require an employee to obtain a second or third opinion.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.150 - 659A.186
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 9-2024, amend filed 03/01/2024, effective 03/02/2024
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 12-2006, f. 3-22-06, cert. ef. 3-24-06
BLI 24-2005, f. 11-15-05, cert. ef. 11-16-05
BLI 3-2005, f. 1-6-05, cert. ef. 1-7-05
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 5-2000, f. & cert. ef. 2-1-00
BL 2-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-009-0265 OFLA: Medical Verification in Languages Other than English

(1) In circumstances in which an employee or family member needs to obtain medical verification in a foreign country, the employer shall accept a medical verification from a health care provider who practices in that country.

(2) When a medical verification by a health care provider is in a language other than English, the employer may request that the employee provide a written translation of the verification.

(a) The employee’s request for OFLA leave may not be denied on the basis of failure of a good faith effort to obtain translation of a medical verification.

(b) The employer may not deny the employee access to translation resources available to the employer (for instance, bilingual personnel or computer programs).

(c) The employer must request the translation as soon as is practicable upon learning that an employee’s circumstances may result in a medical verification being issued in a language other than English.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.150 - 659A.186
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 10-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-009-0270 OFLA: Job Protection

(1) An employer must restore an employee returning from OFLA leave, including intermittent and alternate duty leave, to the employee's former position if the job still exists, even if it has been filled during the employee's OFLA leave. The former position is the position held by the employee at the time OFLA leave began, regardless of whether the job has been renamed or reclassified. (For example, a delivery driver must be returned to the same route, at the same rate of pay and benefits, driving the same truck, delivering the same goods, on the same shift and working from the same location as when the driver started OFLA leave.)

(2) Any worker hired during an eligible employee's leave to perform the same work that the eligible employee performed before the leave was taken is a replacement worker. When the eligible employee notifies the employer that the employee is ready to return to work, the employer must give that employee the opportunity to work any hours that the replacement worker would otherwise have been scheduled to work.

(3) The employee is not entitled to return to the former position if the employee would have been bumped if OFLA leave had not been taken.

(4) If the position held by the employee at the time OFLA leave began has in fact been eliminated and not merely renamed or reclassified, the employer must restore the employee to any available, equivalent position.

(a) An available position is a position that is vacant or not permanently filled.

(b) An equivalent position is a position that is the same as the former position in as many aspects as possible. If an equivalent position is not available at the employee's former job site, the employee may be restored to an equivalent position within 50 miles of the former job site.

(5) Unless the terms of a collective bargaining agreement, other agreement or the employer's policy provide otherwise:

(a) An employee on OFLA leave does not accrue seniority, production bonuses or other non-health-related benefits that would accrue while the employee is working;

(b) Benefits an employee was entitled to prior to starting OFLA leave must be restored in full upon the employee’s return to work. The benefits do not have to be restored, however, if such benefits have been eliminated or changed for similarly situated employees;

(c) An employee has no greater right to a job or other employment benefits than if the employee had not taken OFLA leave; and

(d) An employee is subject to layoff the same as similarly situated employees not taking OFLA leave.

(6) During any OFLA leave, an employer must maintain the employee's coverage under any group health plan on the same conditions as coverage would have been provided if the employee had been continuously employed during the entire leave period.

(a) An employer continuing health or other insurance coverage for an employee on OFLA leave may require that the employee pay only the same share of health or other insurance premium during the leave that the employee paid prior to the leave.

(b) If an employee cannot or will not pay such costs, the employer may elect to discontinue benefit coverage, unless to do so would render the employer unable to restore the employee to full benefit coverage. If coverage lapses because an employee has not made required premium payments, upon the employee's return from OFLA leave the employer must still restore the employee to coverage/benefits equivalent to those the employee would have had if leave had not been taken and the premium payment(s) had not been missed, including family or dependent coverage. In such case, an employee may not be required to meet any qualification requirements imposed by the plan, including any new preexisting condition waiting period, to wait for an open season, or to pass a medical examination to obtain reinstatement of coverage. If an employer terminates an employee's insurance in accordance with this section and fails to restore the employee's health insurance as required by this section upon the employee's return, the employer may be liable for benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable relief tailored to the harm suffered.

(c) If the employer pays (directly or indirectly, voluntarily or as required by state or federal statute) any part of the employee's share of health or other insurance premium while an employee is on OFLA leave, the employer may deduct up to 10 percent of the employee's gross pay each pay period after the employee returns to work until the amount is repaid.

(d) If an employee fails to return to work — unless the failure to return to work is because of a serious health condition under ORS Chapter 657B or another circumstance beyond the employee's control — the employer may recover the employee's share of benefits paid by the employer. The employer may use any legal means to collect the amount owed for the employee's share of benefits paid by the employer, including deducting the amount from the employee's final paycheck.

(7) An employer may require an employee to follow the employer's established leave policy regarding periodic reporting to the employer of the employee's current status.

(8) Where required by ORS 659A.112 to 659A.139 and ORS 659A.146 to 659A.148 or other law, employers must consider reasonable accommodations in determining whether an employee is able to resume work.

(9)(a) If an employee gives unequivocal notice of intent not to return to work from OFLA leave:

(b) The employee is entitled to complete the approved OFLA leave, providing that the original need for OFLA leave still exists. The employee remains entitled to all the rights and protections under OFLA, including but not limited to, the use of vacation, sick leave and health benefits pursuant to OAR 839-009-0270 and 839-009-0280, except that:

(A) The employer's obligations under OFLA to restore the employee's position and to restore benefits upon the completion of leave cease, except as required by federal COBRA law, 29 USC 1161 et seq.; and

(B) The employer is not required to hold a position vacant or available for the employee who gives unequivocal notice of intent not to return.

(10) An employer may not use the provisions of this section as a subterfuge to avoid the employer's responsibilities under OFLA.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.150 - 659A.186
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 9-2024, amend filed 03/01/2024, effective 03/02/2024
BLI 14-2023, temporary amend filed 08/23/2023, effective 09/03/2023 through 02/29/2024
BLI 20-2015, f. 12-22-15, cert. ef. 1-1-16
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 5-2000, f. & cert. ef. 2-1-00
BL 2-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-009-0280 OFLA: Use of Accrued Leave

(1) Except as provided in this rule or the terms of a collective bargaining agreement, an agreement between the eligible employee and the covered employer, or an employer policy, OFLA leave is not required to be granted with pay.

(2) An employee eligible to take OFLA leave is entitled to use accrued paid sick leave, personal leave, vacation leave or any other paid leave that is offered in lieu of sick or vacation leave, during the period of OFLA leave. As used in this rule, accrued paid sick leave does not include disability insurance, disability benefits or benefits provided under ORS chapter 657B.

(3) An employer may require an employee to use accrued paid leave during OFLA leave that would otherwise be unpaid, and may determine the order in which paid leave is to be used if to do so is consistent with a collective bargaining agreement or other written agreement between the eligible employee and the covered employer or an employer policy. The employer may exercise these prerogatives only if:

(a) Prior to the commencement of OFLA leave, the employer provides written notice to the employee that accrued paid leave is to be used during OFLA leave; or

(b) Within five business days of the employee's notice of unforeseeable leave, the employer provides written notice to the employee.

(4) An eligible employee or covered employer may choose to have the employee's OFLA leave run concurrently with a type of paid or unpaid leave provided by the employer and is not referenced in these rules, as provided or allowed under an employer policy, except that a covered employer may not reduce the amount of OFLA leave available to an eligible employee by any period the employee is unable to work because of a disabling compensable injury which entitles the employee to compensation from the covered employer.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.150 – 659A.186
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 47-2006, f. 12-29-06, cert. ef. 1-3-07
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 5-2000, f. & cert. ef. 2-1-00
BL 2-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-009-0300 OFLA: Postings

(1) Each covered employer must display the Bureau of Labor and Industries Family Leave Act notice. The notice must be displayed in each building or worksite in an area that is accessible to and regularly frequented by employees. Failure to post the Family Leave Act notice is an unlawful practice as provided in ORS 659A.001.

(2) Electronic posting of the Family Leave Act notice is not sufficient to satisfy posting requirements, but may supplement worksite posting.

History

Statutory/Other Authority: ORS 651.060 & ORS 659A.805
Statutes/Other Implemented: ORS 659A.150 - 659A.186
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 5-2000, f. & cert. ef. 2-1-00
BL 2-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-009-0320 OFLA: Enforcement and Retaliation

(1) An employer's duties and obligations under OFLA extend to a successor employer as defined in FMLA, 29 CFR 825.107.

(2) In accordance with the provisions of OFLA an eligible employee claiming a violation of the OFLA may file a complaint with the Civil Rights Division of the Bureau of Labor and Industries in the manner provided by ORS 659A.820.

(3) Pursuant to ORS 659A.183, it is an unlawful employment practice for an employer to deny family leave to an eligible employee or retaliate or in any way discriminate against any person with respect to hiring, tenure or any other term or condition of employment because the person has inquired about OFLA leave, submitted a request for OFLA leave or invoked any provision of the Oregon Family Leave Act.

(4) It is an unlawful employment practice for an employer to count OFLA leave against an employee in determining the employee's compliance with attendance policies or to count OFLA leave against an employee when determining eligibility for bonuses based on attendance. An employee is entitled to continue eligibility for a bonus based on attendance upon return from OFLA leave and may not be disqualified from the bonus as a result of taking OFLA leave.

(5) Pursuant to ORS 659A.030(1)(f), it is an unlawful employment practice for an employer to discharge, expel or otherwise discriminate against any person because the person has filed a complaint, testified or assisted in any proceeding in connection with the Oregon Family Leave Act.

(6) Pursuant to ORS 659A.030(1)(g), it is an unlawful employment practice for any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts in violation of the Oregon Family Leave Act or to attempt to do so.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.150 - 659A.186
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08
BLI 12-2006, f. 3-22-06, cert. ef. 3-24-06
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 5-2000, f. & cert. ef. 2-1-00
BL 2-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-009-0325 Leave for Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Purpose and Scope

(1) The Civil Rights Division of the Bureau of Labor and Industries (“division”) enforces ORS 659A.270 to 659A.285 which require certain employers to grant leave for victims of domestic violence, harassment, sexual assault or stalking. These rules implement and interpret 659A.270 to 659A285.

(2) The division also enforces ORS 659A.290, requiring all employers to provide reasonable safety accommodation (including use of available paid leave from employment) for, and prohibiting discrimination or retaliation against, victims of domestic violence, harassment, sexual assault or stalking. Additional rules implementing and interpreting ORS 659A.290 are found at OAR 839-005-0160 and 839-005-0170.

(3) ORS 659A.190 to 659A.198 provide for leave for crime victims to attend criminal proceedings. The division does not have authority to enforce ORS 659A.190 to 659A.198.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.270 - 659A.285
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08

Or. Admin. R. 839-009-0330 Unlawful Practice under ORS 659A.270 to 659A.290; Prohibited Discrimination; Notice Obligations of All Employers; Obligations of State of Oregon as Employer

(1) It is an unlawful employment practice for an employer covered under ORS 659A.270 to 659A.285 to deny leave for victims of domestic violence, harassment, sexual assault or stalking to an eligible employee or to discharge, threaten to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment because the employee inquires about, applies for, or takes leave as provided under 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking.

(2) It is an unlawful employment practice under ORS 659A.290 for any employer to discriminate against an individual because an individual is a victim of domestic violence, harassment, sexual assault or stalking. See OAR 839-005-0160 and 839-005-0170.

(3) Every employer covered under ORS 659A.270 to 659A.285 shall keep summaries of 659A.270 to 695A.285 and summaries of all rules promulgated for the enforcement of these statutes posted in a conspicuous and accessible place in or about the premises where the employees of the covered employer are employed. Employers may download any number of summaries from the website of the Bureau of Labor and Industries at no charge, or upon request of a printed copy from the bureau, the first copy shall be furnished without charge.

(4) Upon request, the bureau shall furnish the complete text of all rules promulgated pursuant to ORS 659A.270 to 659A.285 to any employer without charge.

(5) The State of Oregon shall annually inform all its employees of the provisions of 659A.290, regarding reasonable safety accommodations.

(6) If the State of Oregon has knowledge, or reasonably should have knowledge, that its employee is a victim of domestic violence, harassment, sexual assault or stalking and that any direct or indirect communication from a suspected or convicted perpetrator is made or attempted to be made in the workplace to the eligible employee, the State of Oregon shall immediately inform the employee and offer to report the communication to law enforcement.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.270 - 659A.285
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08

Or. Admin. R. 839-009-0340 Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Definitions under ORS 659A.270 to 659A.290

(1) "Covered employer" means an employer who employs 6 or more individuals in the state of Oregon for each working day during each of 20 or more calendar workweeks in the year in which an eligible employee takes leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking or in the year immediately preceding the year in which an eligible employee takes the leave.

(2) "Eligible employee" means an employee who is employed in the state of Oregon on the date leave begins under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking and is a victim of domestic violence, harassment, sexual assault or stalking or is the parent or guardian of a minor child or dependent who is the victim of domestic violence, harassment, sexual assault or stalking.

(3) "Dependent" includes an adult dependent child substantially limited by a physical or mental impairment as defined by ORS 659A.104(1)(a), (3), and (4) or any adult over whom the employee has guardianship.

(4) "Immediate family" of a “victim” as defined in this section includes the victim’s spouse as defined in OAR 839-009-0210(23); domestic partner; custodial parent; non-custodial parent; adoptive parent; foster parent; biological parent; step parent; parent-in-law; parent of domestic partner; sibling; child; stepchild; grandparent; grandchild; a person with whom the victim of domestic violence, harassment, sexual assault or stalking is or was in a relationship of in loco parentis; or any person who had the same primary residence as the victim at the time of the domestic violence, harassment, sexual assault or stalking.

(5) "In loco parentis" means in the place of a parent, having financial or day-to-day responsibility for the care of a child. A legal or biological relationship is not required.

(6) "Minor child" for purposes of OAR 839-009-0325-.0365 and ORS 659A.270-.285 has the same meaning as “child” as defined in OAR 839-009-0210(2) for purposes of parental and sick child leave.

(7) "Parent or guardian" for purposes of an employee taking leave for a minor child or dependent who is a victim of domestic violence, harassment, sexual assault or stalking means a custodial parent, non-custodial parent, step parent, adoptive parent, foster parent, biological parent, same-gender domestic partner of a parent or an employee who is or was in relationship of in loco parentis with a minor child or a dependent.

(8) "Victim of domestic violence" means an individual who has been threatened with abuse or who is a victim of abuse as defined in ORS 107.705.

(9) “Victim of harassment” means an individual against whom harassment has been committed as described in Oregon’s criminal code at ORS 166.065.

(10) "Victim services provider" means a prosecutor-based victim assistance program or a nonprofit program offering safety planning, counseling, support or advocacy related to domestic violence, harassment, sexual assault or stalking.

(11) "Victim of sexual assault" means an individual against whom a sexual offense has been threatened or committed as described in ORS 163.305 to 163.467 or 163.525

(12) "Victim of stalking" means:

(a) An individual against whom stalking has been threatened or committed as described in ORS 163.732; or

(b)An individual who has obtained a temporary or permanent court’s stalking protective under ORS 30.866.

(13) “Victim” includes any other person who has suffered financial, social, psychological or physical harm as a result of domestic violence, harassment, sexual assault or stalking committed against a victim as defined in subsections (8), (9), (11), and (12), including a member of the victim's immediate family as defined in this rule.

(14) In no event will an alleged perpetrator of domestic violence, harassment, sexual assault, or stalking be considered a victim for the purposes of these rules.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.270 - 659A.285
BLI 12-2022, minor correction filed 09/20/2022, effective 09/20/2022
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
Reverted to BLI 16-2013, f. & cert. ef. 12-31-13
BLI 14-2014(Temp), f. & cert. ef. 11-20-14 thru 5-15-15
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08

Or. Admin. R. 839-009-0345 Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Purposes for Taking Leave under ORS 659A.270 to 659A.285

A covered employer shall allow an eligible employee to take reasonable leave from employment for any of the following purposes:

(1) To seek legal or law enforcement assistance or remedies to ensure the health and safety of the eligible employee or the eligible employee's minor child or dependent, including preparing for and participating in protective order proceedings or other civil or criminal legal proceedings related to domestic violence, harassment, sexual assault or stalking.

(2) To seek medical treatment for or to recover from injuries caused by domestic violence or harassment or sexual assault or stalking of the eligible employee or the eligible employee's minor child or dependent.

(3) To obtain, or to assist the eligible employee's minor child or dependent in obtaining counseling from a licensed mental health professional related to an experience of domestic violence, harassment, sexual assault or stalking.

(4) To obtain services from a victim services provider for the eligible employee or the eligible employee's minor child or dependent.

(5) To relocate or take steps to secure an existing home to ensure the health and safety of the eligible employee or the eligible employee's minor child or dependent. Relocate includes:

(a) Transition periods spent moving the eligible employee or the eligible employee's minor child or dependent from one home or facility to another, including but not limited to time to pack and make security or other arrangements for such transitions related to domestic violence, harassment, sexual assault or stalking;

(b) Transportation or other assistance required for an eligible employee or the eligible employee's minor child or dependent related to the domestic violence, harassment, sexual assault or stalking.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.270 - 659A.285
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08

Or. Admin. R. 839-009-0350 Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Length of Leave and Other Conditions

(1) A covered employer must allow an eligible employee to take reasonable leave for the purposes provided in ORS 659A.272.

(2) Reasonable leave means any amount of leave that does not cause an undue hardship on a covered employer’s business.

(3) An eligible employee must follow the covered employer's known, reasonable, and customary procedures regarding periodic reporting to the covered employer of the eligible employee's current status.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.270 - 659A.285
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08

Or. Admin. R. 839-009-0355 Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Undue Hardship under ORS 659A.270 to 659A.285

Undue Hardship means a significant difficulty and expense to a covered employer's business and includes consideration of the size of the covered employer's business and the covered employer's critical need for the eligible employee. Other factors to consider in determining whether granting leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking will cause an undue hardship on a covered employer's business include, but are not limited to:

(1) The length of leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking requested and the relative cost to a covered employer's business;

(2) The overall financial resources of the covered employer's facility or facilities, the number of persons employed at the facility and the effect on expenses and resources or other impacts on the operation of the facility if the leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking were granted;

(3) The overall financial resources of the covered employer, the overall size of the business of the covered employer with respect to the number of its employees and the number, type and location of the covered employer's facilities;

(4) The type of operations conducted by the covered employer, including the composition, structure and functions of the covered employer's workforce.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.270 - 659A.285
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08

Or. Admin. R. 839-009-0360 Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Intermittent Leave and Alternate Duty

(1) An eligible employee may take leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking in multiple blocks of time and/or requiring an altered or reduced work schedule.

(2) A covered employer may transfer an employee on intermittent leave or a reduced work schedule into an alternate position under the same requirements for OFLA intermittent leave found in OAR 839-009-0245 (1) and (2).

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.270 - 659A.285 & OL 2011 c. 687
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08

Or. Admin. R. 839-009-0362 Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Notice by Employee under ORS 659A.270 to 659A.285

(1) An eligible employee seeking leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking will give the covered employer reasonable advance notice of the employee's intention to take leave unless giving the advance notice is not feasible.

(2) When taking leave in an unanticipated or emergency situation, an eligible employee must give oral or written notice as soon as is practicable. This notice may be given by any other person on behalf of an eligible employee taking unanticipated leave.

(3) An eligible employee able to give advance notice of the need to take leave must follow the covered employer's known, reasonable and customary procedures for requesting any kind of leave;

(4) The covered employer may require the eligible employee to provide certification that:

(a) The eligible employee or the eligible employee's minor child or dependent is a victim of domestic violence, harassment, sexual assault or stalking as defined in OAR 839-009-0340(14), (15), (16) and (17); and

(b) The leave taken is for one of the purposes identified in OAR 839-009-0345.

(5) Any of the following constitutes sufficient certification:

(a) A copy of a police report indicating that the eligible employee or the eligible employee's minor child or dependent was a victim or alleged victim of domestic violence, harassment, sexual assault or stalking as defined in OAR 839-009-0340 (8), (9), (11) and (12); or

(b) A copy of a protective order (defined as an order authorized by ORS 30.866, 107.095(1)(c), 107.700 to 107.735, 124.005 to 124.040 or 163.730 to 163.750 or any other order that restrains an individual from contact with an eligible employee or the employee's minor child or dependent, an order authorized by ORS 30.866, 107.095(1)(c), 107.700 to 107.735, 124.005 to 124.040 or 163.730 to 163.750) or other evidence from a court or attorney that the eligible employee appeared in or is preparing for a civil or criminal proceeding related to domestic violence, harassment, sexual assault or stalking as defined in OAR 839-009-0340 (8), (9), (11) and (12); or

(c) Documentation from an attorney; law enforcement officer (defined as all police, corrections, and parole and probation officers who are included in the Public Safety Standards and Training Act as described in ORS 181.610 and 181.651); health care professional (defined as a physician or other health care practitioner who is licensed, certified or otherwise authorized by law to provide health care services); licensed mental health professional or counselor; member of the clergy or victim services provider with or from whom the eligible employee or the eligible employee's minor child or dependent is receiving services including but not limited to treatment or counseling; assistance with relocating as a result of domestic violence, harassment, sexual assault or stalking as defined in OAR 839-009-0340 (8), (9), (11) and (12).

(6) Consistent with ORS 659A.306, the covered employer must pay the cost of any medical verification related to OAR 839-009-0345(1)(b) and (c) not covered by insurance or other benefit plan.

(7) The eligible employee will provide the certification within a reasonable time after receiving the covered employer's written request for the certification.

(8) The covered employer may provisionally designate an absence as leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking until sufficient certification is received, if requested, to make a determination.

(9) An eligible employee on leave who needs to take more leave than originally authorized should give the covered employer notice as soon as is practicable prior to the end of the authorized leave, following the covered employer's known, reasonable and customary procedures for requesting any kind of leave. However, when an authorized period of leave has ended and an eligible employee does not return to work, a covered employer having reason to believe the continuing absence may qualify as leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking may request additional information. If the covered employer requests additional information the eligible employee will provide the requested information as soon as is practicable. The covered employer may not treat a continuing absence as unauthorized unless requested information is not provided or does not support leave qualification.

(10) All records and information kept by a covered employer regarding an eligible employee's leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking, including the fact that the eligible employee has requested or obtained such leave, are confidential and may not be released without the express permission of the eligible employee, unless otherwise required by law.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.270 - 659A.285
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08

Or. Admin. R. 839-009-0363 Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Use of Paid Leave under ORS 659A.270 to 659A.285

(1) Leave is unpaid leave unless otherwise provided by:

(a) A collective bargaining agreement;

(b) The terms of an agreement between the eligible employee and the covered employer; or

(2) An eligible employee taking leave pursuant to an agreement between the eligible employee and the covered employer, a collective bargaining agreement or a covered employer policy may use any paid accrued vacation leave or may use any other paid leave that is offered by the covered employer in lieu of vacation leave during the period of leave.

(3) Subject to the terms of any agreement between the eligible employee and the covered employer or the terms of a collective bargaining agreement or a covered employer policy, the covered employer may determine the order in which paid accrued leave is to be used when more than one type of paid accrued leave is available to the employee.

(4) An eligible employee of the State of Oregon shall be granted leave with pay for the purposes in ORS 659A.272 and OAR 839-009-0345.

(a) Leave with pay taken under this subsection is in addition to any vacation, sick, personal business, or other forms of paid or unpaid leave available to the eligible employee.

(b) The eligible employee must exhaust all other forms of paid leave before the employee may use the paid leave under this section.

(d) The State of Oregon shall allow its eligible employee who has exhausted the 160 hours of leave with pay authorized by ORS 659A.283 to take reasonable additional unpaid leave for the purposes in ORS 659A.272 and OAR 839-009-0345.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.270 - 659A.285
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08

Or. Admin. R. 839-009-0365 Victims of Domestic Violence, Harassment, Sexual Assault or Stalking: Enforcement and Denial of leave under ORS 659A.270 to 659A.285

(1) A covered employer's duties and obligations under ORS 659A.270 to 659A.285 extend to a successor employer as defined in federal Family and Medical Leave Act rules at 29 CFR §825.107.

(2) It is an unlawful employment practice for a covered employer to count leave under ORS 659A.270 to 659A.285 against an employee in determining the employee's compliance with attendance policies or to count such leave against an employee when determining eligibility for bonuses based on attendance. An employee is entitled to continue eligibility for a bonus based on attendance upon return from leave under ORS 659A.270 to 659A.285 and may not be disqualified from the bonus as a result of taking leave.

(3) Pursuant to ORS 659A.030(1)(g), it is an unlawful employment practice for any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts in violation of ORS 659A.270 to 659A.285 or to attempt to do so.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.270 - 659A.285
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 3-2012, f. & cert. ef. 2-8-12
BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 10-2010, f. & cert. ef. 2-24-10
BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08

Or. Admin. R. 839-009-0370 Oregon Military Family Leave Act (OMFLA): Purpose and Scope

(1) The Civil Rights Division of the Bureau of Labor and Industries enforces the Oregon Military Family Leave Act, ORS 659A.090 – 659A.099 (OMFLA). Oregon Military Family Leave is leave taken by the spouse or domestic partner of a member of the Armed Forces of the United States, the National Guard, or the military reserve forces of the United States who has been called to active duty or notified of an impending call or order to active duty, or who is on leave from active duty during a period of military conflict. These rules implement and interpret OMFLA.

(2) These rules apply to complaints and inquiries received under the Oregon Military Family Leave Act, ORS 659A.090 – 659A.099, and under these rules.

History

Statutory/Other Authority: ORS 659A.093(6)
Statutes/Other Implemented: ORS 659A.090 – 659A.099
BLI 10-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-009-0380 OMFLA: Definitions

(1) “Active duty or call to active duty status” means duty under a call or order to active duty, or notification of an impending call or order to active duty, during a contingency operation, pursuant to Title 10 of the United States Code. “Contingency operation” means a military operation that:

(a) Is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or

(b) Results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of Title 10 of the United States Code, chapter 15 of Title 10 of the United States Code, or any other provision of law during a war or during a national emergency declared by the President or Congress. (See 10 U.S.C. §101(a)(13))

(2) “Covered employer” means:

(a) The State of Oregon and a department, agency, board or commission of the State of Oregon;

(b) A local government, including but not limited to a county, city, town, municipal corporation, independent public corporation or political subdivision of the State of Oregon; and

(c) A person, firm, corporation, partnership, legal representative, or other business entity that engages in any business, industry, profession, or activity in the state of Oregon and that employs 25 or more individuals in the state of Oregon for each working day during each of 20 or more calendar workweeks in the year in which an eligible employee takes OMFLA leave or in the year immediately preceding the year in which an eligible employee takes OMFLA leave.

(3) "Domestic partner" means an individual joined in a domestic partnership.

(4) "Domestic partnership" for the purposes of ORS chapter 659A means two individuals of the same sex who have received a Certificate of Registered Domestic Partnership from the State of Oregon in compliance with ORS 432.405(1) and rules adopted by the State Registrar of the Center for Health Statistics.

(5) “Eligible employee” means an individual who performs services for compensation for an employer for an average of at least 20 hours per week and includes all individuals employed at any site owned or operated in Oregon by an employer, but does not include independent contractors.

(a) In determining an average of at least 20 hours per week, the employer must count actual hours worked using guidelines set out pursuant to the federal Fair Labor Standards Act. (See 29 CFR § 785)

(b) For the purpose of qualifying as an eligible employee, the employee need not perform services solely in the state of Oregon.

(c) Eligibility of employees reemployed following a period of uniformed service: The federal Uniformed Services Employment and Reemployment Act, 38 USC 43 (USERRA) provides that an employee reemployed following a period of uniformed service is entitled to the seniority and seniority-based rights and benefits that the employee had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if the employee had remained continuously employed. U.S. Department of Labor regulation 20 CFR §1002.210 provides that in determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. The rights and benefits protected by USERRA upon reemployment include those provided by the employer and those required by statute. Under USERRA, a reemployed service member would be eligible for OMFLA leave if the number of days and the number of hours of work for which the service member was employed by the civilian employer, together with the number of days and number of hours of work for which the service member would have been employed by the civilian employer during the period of uniformed service, meet the eligibility requirements of these rules. In the event that a service member is denied OMFLA leave for failing to satisfy the days and hours of work requirement due to absence from employment necessitated by uniformed service, the service member may have a cause of action under USERRA but not under OMFLA.

(d) ORS 659A.082–659A.088 provides that an employee reemployed following a period of uniformed service is entitled to the seniority and seniority-based rights and benefits that the employee had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if the employee had remained continuously employed. In determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. If a reemployed service member was eligible for leave under OMFLA prior to the date uniformed service began, OMFLA's eligibility requirements are considered met.

(6) "Intermittent leave" means leave taken in multiple blocks of time and/or requiring an altered or reduced work schedule.

(7) “Period of Military Conflict” means a period of war:

(a) Declared by the United States Congress;

(b) Declared by executive order of the President of the United States; or

(c) In which a reserve component of the Armed Forces of the United States is ordered to active duty pursuant to Title 32 of the United States Code or section 12301 or 12302 of Title 10 of the United States Code.

(8) “Spouse” has the meaning given in OAR 839-009-0210(23).

History

Statutory/Other Authority: ORS 659A.093(6)
Statutes/Other Implemented: ORS 659A.090 - 659A.099
BLI 11-2022, minor correction filed 09/20/2022, effective 09/20/2022
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 10-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-009-0390 OMFLA: Length of Leave

(1) During a period of military conflict, an employee who is a spouse or domestic partner of a member of the Armed Forces of the United States, the National Guard or the military reserve forces of the United States who has been notified of an impending call or order to active duty or who has been deployed, is entitled to a total of 14 days of unpaid leave per deployment that may be taken:

(a) After the military spouse or domestic partner has been notified of an impending call or order to active duty and before deployment; and/or

(b) When the military spouse or domestic partner is on leave from deployment.

(2) The 14 day entitlement is per deployment. If multiple deployments occur in an employee’s leave year, the employee is entitled to use 14 days of Oregon Military Family Leave Act (“OMFLA”) leave for each deployment.

(3) The 14 days of unpaid leave to which the employee is entitled are individual days on which the employee, if working their normal schedule, would otherwise perform services for compensation for the employer. (Example: Employee normally works Monday through Friday. Employee is entitled to 14 days of leave, which if taken consecutively would be Monday through Friday on two consecutive weeks plus Monday through Thursday of the third week.)

(4) OMFLA leave need not be taken in one, uninterrupted period, but may be taken intermittently.

(a) For the purpose of intermittent leave, OMFLA leave is calculated for an employee by multiplying the number of hours the employee normally works per day by 14. (For example, an employee normally employed to work eight hours per day is entitled to 14 times eight hours, or a total of 112 hours of OMFLA leave.)

(b) If an employee’s schedule varies from day to day, a daily average of the employee’s hours must be used for calculating the employee’s normal work day. For example, an employee working an average of six hours per day is entitled to 14 times six hours, or a total of 84 hours of OMFLA leave. An employee working an average of 10 hours per day is entitled to 14 times 10 hours, or 140 hours.

(c) If an employee takes intermittent OMFLA leave, only the actual number of hours of leave taken may be counted toward the hours of OMFLA leave to which the employee is entitled.

History

Statutory/Other Authority: ORS 659A.093(6)
Statutes/Other Implemented: ORS 659A.090 - 659A.099
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 12-2012, f. & cert. ef. 11-21-12
BLI 10-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-009-0400 OMFLA: Prohibited Discrimination

It is an unlawful employment practice for a covered employer to deny OMFLA leave to an eligible employee or to discharge, threaten to discharge, demote, suspend, or in any manner retaliate or in any way discriminate against any person with respect to hiring, promotion, compensation, tenure or any other terms, privileges or conditions of employment because the person inquires about OMFLA, submits a request for Oregon Military Family Leave, or invokes any provision of the Oregon Military Family Leave Act.

History

Statutory/Other Authority: ORS 659A.093(6)
Statutes/Other Implemented: ORS 659A.090 – 659A.099
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 10-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-009-0410 OMFLA: Relationship to OFLA

(1) An eligible employee need not be eligible for protected leave under the Oregon Family Leave Act (“OFLA”) in order to take protected leave under the Oregon Military Family Leave Act (“OMFLA”).

(2) Protected leave taken by an eligible employee under OMFLA may be included in the total amount of leave authorized under ORS 659A.162(1) of OFLA if the employee is also eligible for OFLA leave and has any leave entitlement remaining.

History

Statutory/Other Authority: ORS 659A.093(6)
Statutes/Other Implemented: ORS 659A.090 - 659A.099
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 12-2012, f. & cert. ef. 11-21-12
BLI 10-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-009-0420 OMFLA: Relationship to FMLA

To the extent the employee’s need for OMFLA leave is also covered by the Qualifying Exigency entitlements of the federal Family and Medical Leave Act (FMLA) under 29 CFR §825.126, the employer may run OMFLA leave and FMLA leave concurrently.

History

Statutory/Other Authority: ORS 659A.093(6)
Statutes/Other Implemented: ORS 659A.090 – 659A.099
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 10-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-009-0430 OMFLA: Notice by Employee

(1) An eligible employee seeking Oregon Military Family Leave must provide the employer with notice of the intention to take leave within five business days of receiving official notice of an impending call or order to active duty or of a leave from deployment, or as soon as is practicable when official notice is provided fewer than five days before commencement of the leave.

(2) The active duty orders of a covered military member will generally specify if the service member is serving in support of a period of military conflict by citation to the relevant section of Title 10 of the United States Code and/or by reference to the specific name of the military conflict (see OAR 839-009-0380(7)).

(3) An eligible employee’s notice of intention to take OMFLA leave must follow the covered employer’s known, customary, and uniformly applied procedures for requesting any kind of leave. A covered employer may provide an OMFLA leave request form. An example is found at Appendix A of this rule.

(a) The covered employer may require in writing that the eligible employee provide a photocopy of the service member’s orders to verify that the leave is for the purpose defined in OAR 839-009-0380(7).

(b) The eligible employee will provide any required photocopy of the service member’s orders within a reasonable time after receiving the covered employer's written request.

(c) The covered employer may provisionally designate an absence as OMFLA leave until any requested photocopy of the service member’s orders is received.

Appendix A Attached.

[ED. NOTE: To view attachments referenced in rule text, click here to view rule.]

History

Statutory/Other Authority: ORS 659A.093(6)
Statutes/Other Implemented: ORS 659A.090 – 659A.099
BLI 5-2019, minor correction filed 04/05/2019, effective 04/05/2019
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 16-2013, f. & cert. ef. 12-31-13
BLI 10-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-009-0440 OMFLA: Use of Paid Leave

(1) Leave is unpaid unless otherwise provided by:

(a) A collective bargaining agreement;

(b) The terms of an agreement between the eligible employee and the covered employer; or

(2) An employee eligible to take Oregon Military Family Leave is entitled to use accrued paid sick leave, personal leave, vacation leave or any other paid leave that is offered in lieu of vacation leave during the period of Oregon Military Family Leave. As used in this rule, accrued paid sick leave does not include disability insurance or disability benefits.

(3) Subject to the terms of any agreement between the eligible employee and the covered employer or the terms of a collective bargaining agreement or a covered employer policy, the employee may determine the order in which paid accrued leave is to be used when more than one type of paid accrued leave is available to the employee.

History

Statutory/Other Authority: ORS 659A.093(6)
Statutes/Other Implemented: ORS 659A.090 – 659A.099
BLI 10-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-009-0450 OMFLA: Job Protection

(1) An employer must restore an employee returning from OMFLA leave, including intermittent and alternative duty leave, to the employee's former position if the job still exists, even if it has been filled during the employee's OMFLA leave. The former position is the position held by the employee at the time OMFLA leave began, regardless of whether the job has been renamed or reclassified. (For example, a delivery driver must be returned to the same route, at the same rate of pay and benefits, driving the same truck, delivering the same goods, on the same shift and working from the same location as when the driver started OMFLA leave.)

(3) The employee is not entitled to return to the former position if the employee would have been displaced if OMFLA leave had not been taken.

(4) If the position held by the employee at the time OMFLA leave began has in fact been eliminated and not merely renamed or reclassified, the employer must restore the employee to any available, equivalent position.

(a) An available position is a position that is vacant or not permanently filled.

(5) Unless the terms of a collective bargaining agreement, other agreement or the employer's policy provide otherwise:

(a) An employee on OMFLA leave does not accrue seniority, production bonuses or other benefits that would accrue while the employee is working;

(b) An employee has no greater right to a job or other employment benefits than if the employee had not taken OMFLA leave; and

(6) Except for benefits used while on OMFLA leave, benefits an employee was entitled to prior to starting OFMLA leave must be restored in full upon the employee's return to work. The benefits do not have to be restored, however, if such benefits have been eliminated or changed for similarly situated employees. This applies to all benefit provisions.

(a) An employer electing to continue health or other insurance coverage for an employee on OMFLA leave may require that the employee pay only the same share of health or other insurance premium during the leave that the employee paid prior to the leave.

(c) If an employer pays any portion of any employee's benefit coverage for employees on non-OMFLA leave, the employer must pay that portion during OMFLA leave.

(d) If the employer pays (directly or indirectly, voluntarily or as required by state or federal statute) any part of the employee's share of health or other insurance premium while an employee is on OMFLA leave, the employer may deduct up to 10 percent of the employee's gross pay each pay period after the employee returns to work until the amount is repaid.

(e) Unless the cause is a serious health condition for which the employee would be entitled to OFLA leave or another circumstance beyond the employee's control, if an employee fails to return to work, the employer may recover the employee's share of benefits paid by the employer. The employer may use any legal means to collect the amount owed for the employee's share of benefits paid by the employer, including deducting the amount from the employee's final paycheck.

(8) If an employee gives unequivocal notice of intent not to return to work from OMFLA leave:

(a) The employee is entitled to complete the approved OMFLA leave, providing that the original need for OMFLA leave still exists. The employee remains entitled to all the rights and protections under OMFLA, including but not limited to, the use of vacation, sick leave and health benefits; except

(A) The employer's obligations under OMFLA to restore the employee's position and to restore benefits upon the completion of leave cease, except as required by federal COBRA laws, 29 USC 1161 et seq.; and

(B) The employer is not required to hold a position vacant or available for the employee giving unequivocal notice of intent not to return.

(9) An employer may not use the provisions of these rules as a subterfuge to avoid the employer's responsibilities under OMFLA.

History

Statutory/Other Authority: ORS 659A.093(6)
Statutes/Other Implemented: ORS 659A.090 – 659A.099
BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11
BLI 10-2010, f. & cert. ef. 2-24-10

Or. Admin. R. 839-009-0460 OMFLA: Enforcement and Retaliation

(1) A covered employer's duties and obligations under OMFLA extend to a successor employer as defined in the federal Family and Medical Leave Act (FMLA) regulations at 29 CFR§ 825.107.

(2) In accordance with the provisions of OMFLA an eligible employee claiming a violation of the OMFLA may file a complaint with the Civil Rights Division of the Bureau of Labor and Industries in the manner provided by ORS 659A.820.

(3) It is an unlawful employment practice for a covered employer to retaliate or in any way discriminate against any person with respect to hiring, tenure or any other term or condition of employment because the person has inquired about OMFLA leave, submitted a request for OMFLA leave or invoked any provision of OMFLA.

(4) Pursuant to ORS 659A.030(1)(f), it is an unlawful employment practice for a covered employer to discharge, expel or otherwise discriminate against any person because the person has filed a complaint, testified or assisted in any proceeding in connection with OMFLA.

(5) It is an unlawful employment practice for a covered employer to count OMFLA leave against an employee in determining the employee's compliance with attendance policies, or to count OMFLA leave against an employee when determining eligibility for bonuses based on attendance.

History

Statutory/Other Authority: ORS 659A.093(6)
Statutes/Other Implemented: ORS 659A.090 – 659A.099
BLI 8-2015, f. & cert. ef. 6-24-15
BLI 5-2015, f. & cert. ef. 5-18-15
BLI 10-2010, f. & cert. ef. 2-24-10

Division 10 WHISTLEBLOWING DISCLOSURES BY EMPLOYEES

Or. Admin. R. 839-010-0000 Purpose and Scope

(1) The Civil Rights Division of the Oregon Bureau of Labor and Industries enforces the provisions of ORS 441.174, 652.355, 653.060, 659A.199, 659A.200 to 659A.233 and OL Ch 519, Sec.7 2013, prohibiting discrimination based on whistleblowing disclosures or activities that are described in the statutes. These rules apply to all such complaints and inquiries received on or after the effective date of these rules.

(2) The purpose of these rules is to clarify the provisions of the statutes.

(3) In accordance with ORS 659A.820, an individual claiming a violation of 441.174, 652.355, 653.060, 659A.199, 659A.200 to 659A.233, OL Ch 519, Sec. 7 2013 or these rules may file a complaint with the Civil Rights Division, as provided in OAR 839-003-0025.

(4) The Oregon Safe Employment Act (OSEA) protects employees complaining regarding ORS 654.001 to .295, providing for safety and health conditions in places of employment, workplace safety committees; hazard communication and hazardous substances, and health and sanitation inspections. 654.412 to .423, providing for safety of health care employees; 654.750 to .780, providing for hazardous chemicals in agriculture. Rules for OSEA are found in chapter 839 division 4.

History

Statutory/Other Authority: ORS 652.355, 653.060, 659A.221 & 659A.805
Statutes/Other Implemented: ORS 441.174, 652.355, 653.060, 659A.199, 659A.200 - 659A.233 & OL Ch 519 & Sec. 7 2013
BLI 2-2015, f. & cert. ef. 1-28-15
BLI 12-2013, f. & cert. ef. 12-30-13
BLI 39-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 17-2000, f. & cert. ef. 8-11-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 9-1991, f. & cert. ef. 8-29-91

Or. Admin. R. 839-010-0010 Disclosures by Public Employees: Definitions

As used in ORS 659A.200 to 659A.224 and these rules:

(1) "Abuse of authority" means to deliberately exceed or make improper use of delegated or inherent authority or to employ it in an illegal manner.

(2) "Agency" for the purposes of OAR 839-010-0010 to 839-010-0060 refers to the state or any agency of or political subdivision in the state.

(3) "Disciplinary action" means any adverse action including dismissal, demotion, transfer, reassignment, supervisory reprimand, warning of possible dismissal, or withholding of work, whether or not the action affects or will affect employee compensation.

(4) "Disclosure" means a formal or informal internal or extra-agency communication, not including a communication concerning policy decisions that lawfully exercise discretionary authority unless the employee providing the disclosure reasonably believes that the disclosure evidences:

(a) A violation of any federal or state law, rule, or regulation by the agency;

(b) Mismanagement;

(d) Abuse of authority in connection with the administration of a public program or the execution of a public contract; or

(e) A substantial and specific danger to public health or safety resulting from agency action.

(5) "Employee" means a person:

(a) Employed by or under contract with the state or any agency of or political subdivision in the state;

(b) Employed by or under contract with any person authorized to act on behalf of the state, or agency of the state or subdivision in the state, with respect to control, management or supervision of any employee;

(d) Employed by the public corporation established under ORS 741.001;

(e) Employed by a contractor who performs services for the state, agency or subdivision, other than employees of a contractor under contract to construct a public improvement; and

(f) Employed by or under contract with any person authorized by contract to act on behalf of the state, agency or subdivision.

(6) "Gross waste of funds" means an expenditure that is significantly out of proportion to the benefit expected to accrue to the agency and is more than a debatable expenditure.

(7) "Mismanagement" means serious agency misconduct having the effect of actually or potentially undermining the agency's ability to fulfill its public mission.

(8) "Public employer" means:

(a) The state or any agency of or political subdivision in the state; and

(b) Any person authorized to act on behalf of the state, or any agency of or political subdivision in the state, with respect to control, management or supervision of any employee.

(9) "Reckless disregard for its truth or falsity" means a conscious disregard of a substantial and justifiable risk that the information disclosed is false.

(10) "Substantial and specific danger" means a specified risk of serious injury, illness, peril or loss, to which the exposure of the public is a gross deviation from the standard of care or competence that a reasonable person would observe in the same situation.

History

Statutory/Other Authority: ORS 659A.805 & 659A.221
Statutes/Other Implemented: ORS 659A.233, 659A.200 - 659A.224 & 2014 OL Ch. 78 & Sec. 2
BLI 2-2015, f. & cert. ef. 1-28-15
BLI 39-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 17-2000, f. & cert. ef. 8-11-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 9-1991, f. & cert. ef. 8-29-91

Or. Admin. R. 839-010-0020 Disclosures by Public Employees: Prohibited Discrimination by Public Employers

(1) Oregon public employee whistleblower statutes prohibit public employers from taking action against or prohibiting employees from:

(a) Responding to legislative requests;

(b) Disclosing information the employee believes is evidence of violation of laws or disclosing evidence of mismanagement, gross waste or abuse of authority; or

(2) No public employer may require an employee to give notice prior to making any disclosure described in sections (1)(a), (b) and (c) of this rule.

(3) No public employer may identify the employee who discloses the following information during any investigation of the information provided by the employee without the written consent of the employee:

(a) Matters described in ORS 659A.203(1)(b); and

(b) Reports required by ORS 659A.206(2).

(4) No public employer may prohibit or take action against employees for disclosing that a person receiving public assistance is also subject to arrest.

History

Statutory/Other Authority: ORS 659A.805 & 659A.221
Statutes/Other Implemented: ORS 659A.233 & 659A.200 - 659A.224
BLI 2-2015, f. & cert. ef. 1-28-15
BLI 39-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 17-2000, f. & cert. ef. 8-11-00
BL 9-1991, f. & cert. ef. 8-29-91

Or. Admin. R. 839-010-0040 Disclosures by Public Employees: Discussions with Legislative Assembly Members

(1) ORS 659A.203(1)(a) and (d) prohibit a public employer from prohibiting, discouraging, restraining, dissuading, coercing or otherwise interfering with any employee responding to an official legislative request to discuss the activities of the state or any branch, agency or political subdivision thereof, or from discussing the activities of any person authorized to act on behalf of those entities.

(2) In order to be protected by ORS 659A.203(1)(a), a public employee must be responding to an official legislative request, whether orally or in writing. The request must be made by or at the direction of a Legislative Assembly member and must invite discussion with a Legislative Assembly member or legislative committee staff acting under the direction of a Legislative Assembly member;

(a) No employee may be required to inform the employer prior to engaging in the requested legislative discussion except when the legislative request for information is directed to the agency and the employee will speak or testify on behalf of the agency;

(b) Regarding legislative testimony or discussion with representatives of Legislative Assembly members, the whistleblower law is not intended to:

(A) Authorize an employee to represent the employee's personal opinions as the opinions of the agency or subdivision;

(B) Authorize an employee to disclose information required to be kept confidential under state or federal law, rule or regulation, or allow disclosure of records exempt from disclosure except as provided in ORS 192.501 to 192.505 or 659A.212;

(C) Prevent public employers from prohibiting employee disclosure of information of an advisory nature to the extent that it covers other than purely factual materials and is preliminary to any final agency determination of policy or action.

(3) An employee is not entitled to leave work without following the employer's applicable rules and policies pertaining to leave, unless the employee is requested by a Legislative Assembly member or a legislative committee to appear before a legislative committee. If the employee's testimony is so requested, the employee may elect to take personal time off in accordance with the employer's normal procedure.

(a) The employer may confirm the date and time for testimony but may not inquire into the substance of the testimony.

(b) The employer must excuse the employee's absence from work during the time required for testimony and travel to and from the location of the committee.

(c) If an employee appears to testify and testimony is not taken at the designated date and time, the absence must be treated in the same manner as if the testimony had been taken.

(d) If an employee is subsequently recalled to testify, the subsequent request must be treated by the employer and employee in the same manner an initial request is treated.

(e) An employee may take time off to testify following the employer's regular time off policy without notifying the employer of the purpose of the absence.

(4) No public employer may take any disciplinary action against an employee for employee activity described by ORS 659A.203(1)(a). An employer, however, is not precluded from taking disciplinary action if:

(a) The information disclosed by the employee is known to be false;

(b) The employee discloses the information with reckless disregard for its truth or falsity;

(c) The information disclosed relates to the employee's own violations, mismanagement, gross waste of funds, abuse of authority, or endangerment of the public health and safety.

History

Statutory/Other Authority: ORS 659A.805 & ORS 659A.221
Statutes/Other Implemented: ORS 659A.200 - ORS 659A.224
BLI 39-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 17-2000, f. & cert. ef. 8-11-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 9-1991, f. & cert. ef. 8-29-91

Or. Admin. R. 839-010-0050 Disclosures by Public Employees: Disclosure of Malfeasance

(1) ORS 659A.203(1)(b) and (d) require that a public employer not prohibit, discourage, restrain, dissuade, coerce, or otherwise interfere with any employee disclosing to any person, or take or threaten to take disciplinary action against an employee for disclosing any information that the employee reasonably believes is evidence of:

(a) A violation of any federal or state law, rule or regulation by action of the state agency or political subdivision;

(b) Mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety resulting from action of the state, agency or political subdivision.

(2) No employee may be required to give notice to a public employer prior to making any disclosure described in ORS 659A.203. If the employee elects to give notice to an employer the employer must protect the employee against retaliatory or disciplinary action by its supervisory personnel for such disclosure.

(3) In making disclosures described in this rule, the whistleblower law is not intended to:

(a) Authorize an employee to represent the employee’s personal opinions as the opinions of the agency or subdivision;

(b) Authorize an employee to disclose information required to be kept confidential under state or federal law, rule or regulation, or allow disclosure of records exempt from disclosure except as provided in ORS 192.501 to 192.505, or as required by ORS 659A.212; or

(c) Prevent public employers from prohibiting employee disclosure of information of an advisory nature to the extent that it covers other than purely factual materials and is preliminary to any final agency determination of policy or action.

(4) An employee is not entitled to leave the employee’s assigned work areas during normal work hours without following applicable rules and policies pertaining to leaves, unless the employee is requested by a member of the Legislative Assembly or a legislative committee to appear before a legislative committee as described in OAR 839-010-0040(3).

(5)(a) No public employer may identify the employee who discloses matters described in this rule during any investigation of the information provided by the employee without the written consent of the employee.

(b) No supervisory or management employee of a public employer may reveal to an employee accused of malfeasance the identity of the employee who discloses matters described in ORS 659A.203 or reports described in 659A.212.

(6) No public employer may take any disciplinary action against an employee for employee activity described by this section. An employer, however, is not precluded from taking disciplinary action if:

(a) The information disclosed is known by the employee to be false;

(b) The employee discloses the information with reckless disregard for its truth or falsity; or

(c) The information disclosed relates to the employee’s own violations, mismanagement, gross waste of funds, abuse of authority, or endangerment of the public health or safety.

History

Statutory/Other Authority: ORS 659A.805 & 659A.221
Statutes/Other Implemented: ORS 659A.200 - 659A.224
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 17-2000, f. & cert. ef. 8-11-00
BL 4-1996, f. & cert. ef. 3-12-96
BL 9-1991, f. & cert. ef. 8-29-91

Or. Admin. R. 839-010-0060 Disclosures by Public Employees: Reports Concerning Arrest Warrants for State Beneficiaries

(1) Under ORS 659A.212, if a public employee reasonably believes that a person receiving services, benefits or assistance from the state or any agency or political subdivision thereof is subject to an arrest warrant, the public employee must promptly report this, or cause to be reported, to the employee’s immediate supervisor or a person designated by the agency to receive such report. That recipient must promptly notify the Oregon State Police of the information supplied by the employee.

(2) Such report is authorized, notwithstanding confidentiality provisions of state or federal law, rule or regulation.

(3) No public employer may identify the employee who makes such a report or causes such a report to be made during any investigation of information provided by the employee without the written consent of the employee.

(4) No public employer may invoke or impose any disciplinary action against an employee for making a report required by ORS 659A.212. An employer, however, is not precluded from taking disciplinary action if the information disclosed by the employee is known to be false, or if the employee discloses the information with reckless disregard for its truth or falsity.

History

Statutory/Other Authority: ORS 659A.221
Statutes/Other Implemented: ORS 659A.200 - 659A.224
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 17-2000, f. & cert. ef. 8-11-00
BL 9-1991, f. & cert. ef. 8-29-91

Or. Admin. R. 839-010-0100 Reporting Violations of Law or Aiding Criminal, Civil or Administrative Proceeding: Prohibited Discrimination by Employers

(1) ORS 659A.199 prohibits any employer with one or more employees in Oregon from discharging, demoting, suspending, or in any manner discriminating or retaliating against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported information to anyone that the employee believes is evidence of a violation of any state or federal law, rule or regulation.

(2) ORS 659A.230 prohibits any employer with one or more employees in Oregon from discriminating or retaliating against an employee because the employee has in good faith, or the employer believes the employee has:

(a) Reported to any person, orally or in writing, criminal activity by any person;

(b) Reported to any person, orally or in writing, any activity the employee believed to be criminal;

(c) Caused criminal charges to be brought against any person, whether by the complainant's information or by a complaint, as defined in ORS 131.005(3) and (4);

(d) Cooperated with a law enforcement agency criminal investigation, whether or not under subpoena;

(e) Brought a civil proceeding against an employer; or

(f) Testified at a civil proceeding or criminal trial, whether or not under subpoena. (With regard to civil proceedings, see also OAR 839-010-0140.)

(3) ORS 659A.233 prohibits any employer with one or more employees in Oregon from discriminating or retaliating against a current, former, or any other employer's employee because the employee has in good faith:

(a) Reported possible violations of ORS chapter 441, ORS 443.400 to 443.455;

(b) Testified at an unemployment compensation hearing; or

(4) ORS 652.355 prohibits any employer with one or more employees in Oregon from discriminating or retaliating against a current, former, or any other employer's employee because:

(a) The employee has made a wage claim or has discussed with anyone, inquired of anyone, or consulted an attorney or agency about a wage claim; or

(b) The employee has caused to be instituted, has testified in or is about to testify in any proceedings under or related to ORS 652.310 to 652.414.

(5) ORS 653.060 prohibits any employer with one or more employees in Oregon from discharging or in any other manner discriminating against a current, former, or any other employer's employee because:

(a) The employee has made an oral or written complaint to anyone that the employee has not been paid wages in accordance with ORS 653.010 to 653.261;

(b) The employee has caused to be instituted or is about to cause to be instituted or has testified or is about to testify in any proceeding under or related to ORS 653.010 to 653.261.

History

Statutory/Other Authority: ORS 659A.805, 652.355(2) & 653.060(2)
Statutes/Other Implemented: ORS 659A.230, 652.355, 653.060 & 659A.199
BLI 2-2015, f. & cert. ef. 1-28-15
BLI 11-2010, f. & cert. ef. 2-24-10
BLI 39-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 17-2000, f. & cert. ef. 8-11-00
BLI 6-1998, f. & cert. ef. 10-22-98
BL 4-1996, f. & cert. ef. 3-12-96

Or. Admin. R. 839-010-0140 Protection in Activities Related to Civil Proceedings

Under ORS 659A.230 and these rules, an employee is protected in activities related to civil proceedings. A civil proceeding, as used in ORS 659A.230 and these rules, includes a proceeding before an administrative agency or a court. The employee is protected under the statute if:

(1) The employee has brought, in good faith, a civil proceeding against an employer.

(a) Bringing a civil proceeding, as used in ORS 659A.230 and the rules, includes filing complaints to or cooperation with administrative agencies as well as courts.

(b) An employee is considered to have initiated a civil proceeding when the employee has contacted an administrative agency the employee believes in good faith to have jurisdiction and the ability to sanction the employer.

(2) The employee has testified in good faith, whether or not under subpoena, in any civil proceeding.

(3) The employer believes that the employee has engaged in the civil proceedings acts described above.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 659A.230
BLI 11-2010, f. & cert. ef. 2-24-10
BLI 10-2002, f. & cert. ef. 5-17-02
BLI 17-2000, f. & cert. ef. 8-11-00
BLI 6-1998, f. & cert. ef. 10-22-98
BL 2-1998, f. & cert. ef. 2-3-98
BL 10-1996, f. & cert. ef. 12-4-96
BL 4-1996, f. & cert. ef. 3-12-96

Or. Admin. R. 839-010-0200 Disclosures by Nursing Staff: Statement of Purpose

(1) ORS 441.174 prohibits a hospital from retaliating against a nursing staff because the nursing staff has taken "whistleblower" actions detailed in the statute.

(2) The purpose of these rules is to clarify the provisions of the statutes.

(3) In accordance with ORS 441.178, an individual claiming a violation of ORS 441.174, or these rules, may file a complaint with the Civil Rights Division, as provided in OAR 839-003-0025.

History

Statutory/Other Authority: ORS 659A.805 & 441.178
Statutes/Other Implemented: ORS 441.174 & 441.178
BLI 2-2015, f. & cert. ef. 1-28-15
BLI 4-2005, f. 1-6-05, cert. ef. 1-7-05

Or. Admin. R. 839-010-0205 Disclosures by Nursing Staff: Definitions

For purposes of ORS 441.174 and these rules:

(1) "Affiliated hospital" means a hospital that has a business relationship with another hospital.

(2) "Hospital" means an acute inpatient care facility as defined in ORS 442.470 or a hospital as described in ORS 442.015:

(a) "Acute inpatient care facility" means a licensed hospital with an organized medical staff, with permanent facilities that include inpatient beds, and with comprehensive medical services, including physician services and continuous nursing services under the supervision of registered nurses, to provide diagnosis and medical or surgical treatment primarily for but not limited to acutely ill patients and accident victims. ORS 442.470.

(b) "Hospital" means a facility with an organized medical staff, with permanent facilities that include inpatient beds and with medical services, including physician services and continuous nursing services under the supervision of registered nurses, to provide diagnosis and medical or surgical treatment primarily for but not limited to acutely ill patients and accident victims, to provide treatment for the mentally ill or to provide treatment in special inpatient care facilities. ORS 442.015.

(3) "Manager" means a person who:

(a) Has authority to direct and control the work performance of nursing staff;

(b) Has authority to take corrective action regarding a violation of law or a rule or a violation of professional standards of practice, about which a nursing staff has complained; or

(4) "Nursing staff" means a registered nurse, a licensed practical nurse, a nursing assistant or any other assistive nursing personnel.

(5) "Public body" has the meaning given that term in ORS 30.260.

(6) "Retaliatory action" means the discharge, suspension, demotion, harassment, denial of employment or promotion, or layoff of a nursing staff, or other adverse action taken against a nursing staff in the terms or conditions of employment of the nursing staff by a hospital, because the nursing staff:

(a) Discloses or intends to disclose to a manager, a private accreditation organization or a public body an activity, policy or practice of the hospital or of a hospital that the nursing staff reasonably believes is in violation of law or a rule or is a violation of professional standards of practice that the nursing staff reasonably believes poses a risk to the health, safety or welfare of a patient or the public;

(b) Provides information to or testifies before a private accreditation organization or a public body conducting an investigation, hearing or inquiry into an alleged violation of law or rule or into an activity, policy or practice that may be in violation of professional standards of practice by a hospital that the nursing staff reasonably believes poses a risk to the health, safety or welfare of a patient or the public;

(c) Objects to or refuses to participate in any activity, policy or practice of a hospital that the nursing staff reasonably believes is in violation of law or rule or is a violation of professional standards of practice that the nursing staff reasonably believes poses a risk to the health, safety or welfare of a patient or the public; or

(d) Participates in a committee or peer review process or files a report or a complaint that discusses allegations of unsafe, dangerous or potentially dangerous care.

(7) For purposes of subsection (6) of this rule, "other adverse action" includes, but is not limited to:

(a) Constructive discharge as defined in OAR 839-005-0035;

(b) A significant or material change in a term or condition of employment, such as transferring a nursing staff to another location, shift or work schedule, or reducing work hours or remuneration for services;

(d) Removal of significant or material duties or responsibilities;

(e) Restriction or prohibition of access to the hospital or other facility, whether or not the action affects or will affect pay or other compensation;

(f) Withholding career-advancing opportunities such as training or participation in seminars or committees; or

(g) Supervisory reprimands, warnings of possible dismissal or withholding of work.

(8) For purposes of ORS 441.174 and these rules, a nursing staff "reasonably believes" if:

(a) A reasonable nursing staff in the circumstances would believe that an activity, policy or practice of a hospital:

(A) Is in violation of law or a rule or is in violation of professional standards of practice; or

(B) Poses a risk to the health, safety or welfare of a patient or the public; or

(b) An activity, policy or practice is in violation of law or rule or is in violation of professional standards of practice.

History

Statutory/Other Authority: ORS 659A.805 & 441.178
Statutes/Other Implemented: ORS 441.172 & 441.178
BLI 2-2015, f. & cert. ef. 1-28-15
BLI 4-2005, f. 1-6-05, cert. ef. 1-7-05

Or. Admin. R. 839-010-0210 Disclosures by Nursing Staff: Exceptions to Retaliatory Action

(1) Except as provided in section 2 of this rule, the protection against retaliatory action provided for in ORS 441.174(1) and OAR 839-010-0205(6) and (7) does not apply to a nursing staff unless the nursing staff, before making a disclosure to a private accreditation organization or a public body as described in ORS 441.174(1)(a) and OAR 839-010-0205(6)(a):

(a) Gives written notice to a manager of the hospital of the activity, policy, practice or violation of professional standards of practice that the nursing staff reasonably believes poses a risk to public health; and

(b) Provides the manager a reasonable opportunity to correct the activity, policy, practice or violation.

(2) A nursing staff is not required to comply with the provisions ORS 441.174(2) and OAR 839-010-0205(1) if the nursing staff:

(a) Is reasonably certain that the activity, policy, practice or violation is known to one or more managers of the hospital or an affiliated hospital and an emergency situation exists;

(b) Reasonably fears physical harm as a result of the disclosure; or

(c) Makes the disclosure to a private accreditation organization or a public body for the purpose of providing evidence of an activity, policy, practice or violation of a hospital or an affiliated hospital that the nursing staff reasonably believes is a crime.

(3) For the purposes of subsection (2) of this rule, a nursing staff "reasonably believes is a crime" means:

(a) The activity, policy, practice or violation of law or rule is a crime; or

(b) Whether or not the activity, policy, practice or violation of law or rule is a crime, a reasonable nursing staff in the circumstances would believe that it is a crime.

History

Statutory/Other Authority: ORS 659A.805 & 441.178
Statutes/Other Implemented: ORS 441.174
BLI 2-2015, f. & cert. ef. 1-28-15
BLI 4-2005, f. 1-6-05, cert. ef. 1-7-05

Or. Admin. R. 839-010-0300 Disclosures Regarding Violations of Election Laws: Application

These rules apply to a person who pays money or offers other valuable consideration for obtaining signatures of electors on a state initiative, referendum, or recall petition or on a prospective petition of a state measure to be initiated.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: 2013 OL Ch. 519 & Sec. 7
BLI 2-2015, f. & cert. ef. 1-28-15
BLI 12-2013, f. & cert. ef. 12-30-13

Or. Admin. R. 839-010-0305 Disclosures Regarding Violations of Election Laws: Unlawful Employment Practice

In addition to the conduct prohibited in ORS 659A.199, it is an unlawful employment practice for a person described in OAR 839-010-0300 to discriminate or retaliate against another person with respect to hire or tenure, compensation or other terms, conditions or privileges of employment for the reason that the person has in good faith reported information that the person believes is evidence of a violation of a state or federal election law, rule or regulation.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: 2013 OL Ch. 519 & Sec. 7
BLI 2-2015, f. & cert. ef. 1-28-15
BLI 12-2013, f. & cert. ef. 12-30-13

Or. Admin. R. 839-010-0310 Disclosures Regarding Violations of Election Laws: Inspection

(1) The Commissioner of the Bureau of Labor and Industries may inspect the accounts of a chief petitioner of an initiative or referendum petition relating to a state measure who pays any person money or other valuable consideration to obtain signatures on the petition or prospective petition, under reasonable circumstances at any time before the deadline for filing signatures on the petition or during the period specified for retention of the accounts, as provided in ORS 260.262(4).

(2) The right of inspection may be enforced by a writ of mandamus issued by any court of competent jurisdiction.

History

Statutory/Other Authority: ORS 659A.805
Statutes/Other Implemented: ORS 260.262(4)
BLI 2-2015, f. & cert. ef. 1-28-15
BLI 12-2013, f. & cert. ef. 12-30-13

Division 11 APPRENTICESHIP AND TRAINING COUNCIL

Or. Admin. R. 839-011-0000 Apprenticeship and Training Council — Notice of Proposed Rule

Before the permanent adoption, amendment, or repeal of any rule, the Oregon State Apprenticeship and Training Council (hereinafter, Council) will give notice of the proposed adoption, amendment or repeal:

(1) In the Secretary of State's Bulletin, referred to in ORS chapter 183.360 at least 21 calendar days before the rule’s effective date.

(2) To persons on the Bureau of Labor and Industries (hereinafter, Bureau) mailing and e-mail lists established pursuant to ORS chapter 183.335(8) at least 28 calendar days before the rule’s effective date.

(3) To the Legislature, by mailing a copy of the notice to the legislators specified in ORS chapter 183.335(15) at least 49 days before the effective date of the rule

(4) To the general public, by posting the notice on the Bureau’s website.

History

Statutory/Other Authority: ORS 660.120(1)
Statutes/Other Implemented: ORS 183.335(7) & 183.360
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 6-1994, f. & cert. ef. 10-10-94
BL 3-1994, f. & cert. ef. 6-3-94
BL 1-1991, f. & cert. ef. 1-23-91
BL 4-1985, f. & ef. 8-8-85, Renumbered from 839-011-0117
BL 187, f. & ef. 2-19-76

Or. Admin. R. 839-011-0010 Apprenticeship and Training Council — Model Rules of Practice and Procedure

The Attorney General’s Model Rules of Procedure under the Administrative Procedures Act, are hereby adopted to govern the operations of the Bureau of Labor and Industries except to the extent they conflict with or are modified by rules in any division of chapter 839 of the Oregon Administrative Rules.

[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the office of the Attorney General or Bureau of Labor and Industries.]

History

Statutory/Other Authority: ORS 183
Statutes/Other Implemented: ORS 183.341
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 7-1993, f. & cert. ef. 7-12-93
BL 1-1991, f. & cert. ef. 1-23-91
BL 13-1988, f. & cert. ef. 7-1-88
BL 4-1985, f. & ef. 8-8-85, Renumbered from 839-011-0118
BL 11-1982, f. & ef. 7-20-82
BL 1-1979, f. & ef. 1-23-79
BL 188, f. & ef. 4-7-76
BL 167, f. 9-20-74, ef. 10-11-74
BL 163(Temp), f. 6-19-74, ef. 6-19-74
BL 130, f. 10-5-72, ef. 10-15-72
BL 127, f. 7-27-72, ef. 8-15-72
BL 121(Temp), f. & ef. 3-24-72

Or. Admin. R. 839-011-0015 Apprenticeship and Training Council — Rules of Order

The Council adopts Roberts Rules of Order for the conduct of meetings; provided, however, that specific Administrative Rules of the Council will take precedence over Roberts Rules of Order.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BL 1-1991, f. & cert. ef. 1-23-91
BL 4-1985, f. & ef. 8-8-85

Or. Admin. R. 839-011-0020 Apprenticeship and Training Council — Date and Location of Meetings

The Council shall hold at least four regular public meetings each year as required by ORS chapter 660.120(5). The date of the next regular Council meeting will be designated by the Chair and announced at each Council meeting. Meetings may be scheduled at any location within the state of Oregon selected by the Chair.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(2)(g)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BL 1-1991, f. & cert. ef. 1-23-91
BL 4-1985, f. & ef. 8-8-85

Or. Admin. R. 839-011-0030 Apprenticeship and Training Council — Preparation of Agenda

(1) All matters to be included on the agenda must be submitted in writing to the office of the Director by 5:00 p.m. at least 45 calendar days before the date of the next Council meeting. If the 45th calendar day before the next Council meeting falls on either a weekend or holiday, the items for the agenda must be submitted to the Director on the last business day before the 45th calendar day.

(2) Late submissions for inclusion on the agenda that do not request the Council to approve, modify or revoke standards, committees or programs may be considered by the Council if a majority of the members agree.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 8-2024, temporary amend filed 01/26/2024, effective 01/29/2024 through 07/01/2024
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 6-1994, f. & cert. ef. 10-10-94
BL 1-1991, f. & cert. ef. 1-23-91
BL 4-1985, f. & ef. 8-8-85

Or. Admin. R. 839-011-0040 Apprenticeship and Training Council — Public Participation at Meetings

(1) The Council encourages public participation at all meetings. Individuals who wish to address the Council are required to sign up to speak at meetings. Individuals who fail to sign up may address the Council at the discretion of the Chair, pursuant to Roberts Rules of Order.

(2) Meetings are held in facilities accessible to individuals with disabilities. Accommodations are available to allow individuals with disabilities to access and participate in all Council meetings. Accommodations may be requested by contacting the Division at (971) 673-0760 or Oregon Relay for hearing impaired assistance at 711 at least 10 business days prior to the meeting.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 1-1991, f. & cert. ef. 1-23-91
BL 4-1985, f. & ef. 8-8-85

Or. Admin. R. 839-011-0050 Apprenticeship and Training Council — Certificate of Meritorious Service

Upon the recommendation of a local committee or the motion of a Council member, the Council may award a certificate of meritorious service to any individual who has devoted a minimum of three years of service to a registered apprenticeship program.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 1-1991, f. & cert. ef. 1-23-91
BL 4-1985, f. & ef. 8-8-85

Or. Admin. R. 839-011-0051 Apprenticeship and Training Council — Delegation of Authority

(1) The Chair and Director, with the approval of the Chair, may act on behalf of the Council for federal purposes and in all cases where immediate action is deemed necessary by the Chair and Director. All such actions shall be placed on the agenda for the next regular Council meeting for Council approval or ratification.

(2) All matters pertaining to the approval or deregistration of apprenticeship committees, standards, program sponsors, employers, training agents or apprentices must be ratified by the Council at its next meeting.

(3) Any standards referred back to local committees by the Council for revision may be approved by the Director when revised according to Council action.

History

Statutory/Other Authority: ORS 660.120(3)
Statutes/Other Implemented: ORS 660.120, 660.210 & 660.170
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0070 Apprenticeship and Training Committees — Definitions

(1) “Division” means the Apprenticeship and Training Division of the Bureau.

(2) “Employee” means any person employed or active in an applicable trade.

(3) “Local Committee” means any registered joint or trades apprenticeship or training committee approved by the Council.

(4) “State minimum guideline standards" means industry/trade benchmarks developed by a Council approved state committee and approved by the Council that represent the fundamental requirements necessary for entry into and completion of specific Council approved apprenticeship or training programs.

(5) “Registered apprenticeship program” means a local committee approved by the Council to operate an apprenticeship or training program in a specific occupation.

(6) "Registration of an Apprenticeship Agreement" means the acceptance and recording of an apprentice or trainee agreement by the Division on behalf of the Council. Registration is evidence of the participation of the apprentice or trainee in a registered program.

(7) “Registration of an apprenticeship program” means the acceptance and recording of such program by the Office of Apprenticeship, or registration and/or approval by a recognized State Apprenticeship Agency, as meeting the basic standards and requirements of the Department for approval of such program for Federal purposes. Approval is evidenced by a Certificate of Registration or other written indicia.

(8) "Standards" means a written agreement submitted by a local committee and approved by the Council, which sets forth a plan containing all terms and conditions for the qualification, employment and training of apprentices or trainees as set forth in ORS chapter 660.126 and 660.137.

(9) “Trainee” means any individual registered to a registered training program. For the purposes of these rules, all apprentice requirements apply to trainees unless otherwise noted.

(10) “Training agent” means an employer or organization approved by a local committee to employ and train apprentices and registered with the Division.

(11) “Training program” means any registered program of 2,000 on-the-job training hours or less. For the purposes of these rules, all apprenticeship requirements apply to training programs unless otherwise noted.

(12) “Journey worker” is a fully skilled practitioner who can work independently in a given trade or occupation in accordance with ORS chapter 660.010(4). Generally, a skilled crafts person has a minimum of four years of verifiable trade-specific experience or has completed a state certified apprenticeship program in the applicable trade and holds a license where required. Use of the term may also refer to a mentor, technician, specialist or other skilled worker who has documented sufficient skills and knowledge of an occupation, either through formal apprenticeship or through practical on-the-job experience and formal training.

(13) “Completion rate” means the percentage of an apprenticeship cohort who receives a certificate of apprenticeship completion within 1 year of the projected completion date. An apprenticeship cohort is the group of individual apprentices registered to a specific program during a 1 year time frame, except that a cohort does not include the apprentices whose apprenticeship agreement has been cancelled during the probationary period. The projected completion date is the number of years determined by the greater of the following measures:

(a) The number of required on-the-job training hours needed for completion of the program divided by 2000 and rounded up to the nearest whole number; or

(b) The number of years of required related training prescribed in the applicable standard.

(14) “Job Site” means:

(a) For standards in construction trades, the area covered by an approved building permit, plan of development or contract number, or contractual agreement for new construction or renovation;

(b) For standards in non-construction trades, the physical area within the wall that services are offered or the location that is identified on the license by the licensing board and/or other local government or a single job or group of jobs on the same circuit or within the same general area.

(15) “Federal purposes” means any federal contract, grant, agreement or arrangement dealing with apprenticeship; and any federal financial or other assistance, benefit, privilege, contribution, allowance, exemption, preference or right pertaining to apprenticeship pursuant to 29 C.F.R. Part 29.2.

(16) “Competency” means the attainment of manual, mechanical or technical skills and knowledge, as specified by an occupational standard and demonstrated by appropriate written and hands-on proficiency measurements.

(17) “Electronic media” means media that utilize electronics or electromechanical energy for the end user (audience) to access the content; and includes, but is not limited to, electronic storage media, transmission media, the Internet, extranet, lease lines, dial-up lines, private networks, and the physical movement of removable/transportable electronic media and/or interactive distance learning.

(18) “Related instruction” means an organized and systematic form of instruction designed to provide the apprentice with the knowledge of the theoretical and technical subjects related to the apprentice’s occupation. Such instruction may be given in a classroom, through occupational or industrial courses, or by correspondence.

(19) “Sponsor” means any person, association, committee, or organization operating an apprenticeship program and in whose name the program is (or is to be) registered or approved.

(20) “Suspension of an apprenticeship agreement” means a temporary committee action to hold the apprenticeship agreement in abeyance during an investigation of a program or policy violation by the apprentice. The committee or its designee may temporarily suspend an apprentice upon the recommendation of the sponsor, an employer, or the committee’s designee. The committee shall notify the apprentice and the Division of the suspension action in writing and such notice shall state the reasons for the suspension action, the duration of the suspension action and shall state that the apprentice has a right to appear before the committee to contest the suspension by written request to the committee within 10 days after the date the notice is issued. If review is requested, the apprentice has a right to appear before the committee to contest the suspension at its next scheduled committee meeting. An apprenticeship agreement may also be suspended at the apprentice’s request in accordance with committee policies and procedures.

(21) “Priority Populations” as defined by Oregon Law Chapter 28, 2022.

History

Statutory/Other Authority: ORS 660.120(3)
Statutes/Other Implemented: ORS 660.120(1) & OL Chapter 28, 2022
BLI 17-2022, amend filed 10/04/2022, effective 11/28/2022
BLI 7-2022, temporary amend filed 05/31/2022, effective 06/01/2022 through 11/27/2022
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 6-1994, f. & cert. ef. 10-10-94
BL 7-1991, f. & cert. ef. 8-15-91 (and corrected 2-3-92)
BL 6-1985, f. & ef. 10-15-85

Or. Admin. R. 839-011-0072 Apprenticeship and Training Committees — Formation

(1) Any person or group interested in forming a local joint committee may give written notice to the Division. Local committees in building and construction trades occupations may only be approved as group programs serving multiple employers.

(2) The interested party or group shall establish a date for an organizational meeting and provide the Division with written notice of the date, time and location of the meeting at least 5 (five) working days in advance of the meeting. Division staff may attend organizational meetings in an informational role.

(3) At the organizational meeting participants, excluding Division staff, will:

(a) Adopt Roberts Rules of Order;

(b) Specify the committee name, its geographical jurisdiction, and the occupation(s) for which it will train;

(d) Elect a chair and a secretary as committee officers, pursuant to OAR 839-011-0074(8).

(4) Local committees and training agents shall be responsible for the administrative cost and expenses associated with the operation of their programs. No committee or training agent shall charge or cause charges to be levied against an apprentice for purposes of financially supporting the administrative, clerical or organizational cost of operating a registered program. Apprentices may be required to pay the normal cost of tuition and related training materials.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(2)(c), 660.135(1), (2), (3), (4) & (5)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 1-1991, f. & cert. ef. 1-23-91
BL 6-1985, f. & ef. 10-15-85

Or. Admin. R. 839-011-0073 Apprenticeship and Training Committees — Policies and Procedures

(1) All local committees shall develop and administer operating policies and procedures to govern program operations as directed by the Council and administer such policies and procedures in a consistent manner. Policies and procedures will be approved by the committee and recorded in the meeting minutes.

(2) When adopted or revised, these policies and procedures will be submitted to the local committee’s assigned Apprenticeship Representative who will review and approve the policies and procedures if they are in conformity with apprenticeship laws, rules and Council guidelines.

History

Statutory/Other Authority: ORS 660.120(1)
Statutes/Other Implemented: ORS 660.137(2)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 1-1995, f. & cert. ef. 8-14-95
BL 8-1992, f. & cert. ef. 6-15-92

Or. Admin. R. 839-011-0074 Apprenticeship and Training Committees — Member Selection

(1) Committees shall consist of an equal number of principal employer and employee representatives.

(a) Representatives of employers, or an employer organization representing the industry, shall submit nominations for employer committee members.

(b) Individuals representing the journey level workforce for the occupation, or an employee organization that represents the concerned employees and is involved with the occupation, shall submit nominations for employee committee members. For the purposes of these rules, an individual is eligible to serve as an employee representative for the occupation only if that individual:

(A) Is or has been a skilled practitioner in the occupation and does not serve in a supervisory capacity as defined in the National Labor Relations Act, as amended; or

(B) Is a bargaining unit representative for the employees of a participating training agent.

(2) Joint apprenticeship or training committees (JATC/JAC/JTC) shall consist of not less than two or more than four principal employer representatives and not less than two or more than four principal employee representatives.

(3) Trade apprenticeship or training committees (TATC/TAC/TTC) shall consist of one principal employer representative and one principal employee representative for each approved standard of the committee.

(4) State minimum guideline committees shall consist of one principal employer and one principal employee voting member from each local committee training in the occupation pursuant to the appointment procedures in OAR 839-011-0141.

(5) Committees may nominate one alternate member for each principal committee member and the alternate shall be selected according to the nominations procedures for principal committee members set forth in this rule. Alternates shall serve in the absence of principal members consistent with ORS chapter 660.135(2).

(6) The Director shall list the names of the nominees on the next Council agenda. After consideration of whether the appointments provide a balanced representation of the viewpoints of employer and employee groups, the Council will approve the nominations.

(a) The Council may request the names of additional nominees if it does not approve any of the nominees.

(b) If either employers or employees cannot or will not recommend nominees for the committee, the Apprenticeship Representative for the area may recommend individuals involved with the occupation, and forward the name of the individual(s) to the Director. The Director will evaluate the individual(s), and if appropriate, provide interim approval pending submittal of then names of the individual(s) to the Council for approval according to the procedures of section (1) of this rule.

(7) When a vacancy occurs on a committee, it shall be filled according to the member nomination procedures set forth in this rule.

(8) Each committee shall elect a chairperson and a secretary from committee members. One of the offices must be held by an employer member and one office must be held by an employee member.

(a) The officers shall serve for no less than one year and no more than two years without an election unless the committee has adopted policies and procedures establishing the duration of officers' terms.

(b) In the event of a vacancy in an office, the respective employer or employee members shall elect from their representation a replacement to serve the unfilled term of office consistent with ORS chapter 660.

(9) No Division staff may be elected or appointed to any position within a committee.

(10) Associate members may be elected or appointed by the committee but such members do not have voting rights on local committee matters.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.135, 660.145 & 660.155
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 1-1991, f. & cert. ef. 1-23-91
BL 6-1985, f. & ef. 10-15-85

Or. Admin. R. 839-011-0078 Apprenticeship and Training Committees — Removal of Members

(1) The Council will remove committee members only for inactivity, inadequate activity, or failure to abide by ORS Chapter 660, or the rules and policies of the Council, pursuant to ORS Chapter 660.120(2)(d).

(2) The Council may also remove committee members upon the recommendation of the committee as set forth in section (3) of this rule. Each committee will establish its own written policy regarding the removal of committee members.

(3) Committee(s) may recommend removal of a member and note such action in the committee meeting minutes, subject to the following conditions:

(a) Only employer committee members may recommend and vote for removal of an employer member;

(b) Only employee committee members may recommend and vote for removal of an employee committee member;

(c) If the committee is a trade committee, only employer committee members may recommend and vote for removal of an employer member from another occupation within the committee, while only employee committee members may recommend and vote for removal of an employee member from another occupation within the committee.

(4) The Director shall include such recommendations as recorded in committee meeting minutes on the Council Agenda.

(5) Notwithstanding OAR 839-011-0074, the Council may appoint a replacement committee member at the same meeting at which it removes a member.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(2)(d)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BL 1-1991, f. & cert. ef. 1-23-91
BL 6-1985, f. & ef. 10-15-85

Or. Admin. R. 839-011-0082 Apprenticeship and Training Committees — Deregistration

(1) The Council will deregister committees for inactivity, inadequate activity, or failure to abide by ORS Chapter 660 or the rules and policies of the Council pursuant to ORS Chapter 660.120(4)(d), or if the committee has informed the Director or the Council that it will no longer perform its duties.

(2) On behalf of the Council, the Director shall, to the extent practical, secure the formation of a new committee where a previously approved committee failed to carry out an effective program.

(3) A committee shall be subject to deregistration if it has had no apprentices registered for two years or more, has not had at least two quorum meetings in a twelve month period, has failed to administer to the needs of the apprentices or the industry concerned or if so otherwise deemed appropriate by the Council.

(4) Deregistration of a program may commence upon the voluntary action of the sponsor by submitting a request for cancellation of the registration in accordance with section (5) of this section, or upon reasonable cause, by the Division, in collaboration with the Council instituting formal deregistration proceedings in accordance with section (6) of this section.

(5) Deregistration at the request of the sponsor. The Division may cancel the registration of an apprenticeship program, subject to ratification by the Council, by written acknowledgment of such request stating the following:

(a) The registration is cancelled at the sponsor’s request, and the effective date thereof;

(b) That, within 15 days of the date of the acknowledgment, the sponsor will notify all apprentices of such cancellation and the effective date; that such cancellation automatically deprives the apprentice of individual registration; that the deregistration of the program removes the apprentice from coverage for Federal purposes which require the Secretary of Labor’s approval of an apprenticeship program and for all State purposes, and that all apprentices are referred to the Division for information about potential transfer to other registered apprenticeship programs.

(6) Deregistration by the Division upon reasonable cause.

(a) Deregistration proceedings may be undertaken when the apprenticeship program is not conducted, operated, or administered in accordance with the program’s registered provisions or with the requirements of this part, including not but limited to: failure to provide on the-job learning; failure to provide related instruction; failure to pay the apprentice a progressively increasing schedule of wages consistent with the apprentice’s skills acquired; or persistent and significant failure to perform successfully. Deregistration proceedings for violation of equal opportunity requirements must be processed in accordance with the provisions under 29 CFR Part 30.

(b) For purposes of this section, persistent and significant failure to perform successfully occurs when a program sponsor consistently fails to register at least one apprentice, shows a pattern of poor quality assessment results over a period of several years, demonstrates an ongoing pattern of very low completion rates over a period of several years, or shows no indication of improvement in the areas identified by the Division during a review process as requiring corrective action.

(c) Where it appears the program is not being operated in accordance with the registered standards or with requirements of this part, the Division must notify the program sponsor in writing.

(d) The notice sent to the program sponsor’s contact person must:

(A) Be sent by registered or certified mail, with return receipt requested;

(B) State the shortcoming(s) and the remedy required; and

(C) State that a determination of reasonable cause for deregistration will be made unless corrective action is effected within 30 days.

(7) Upon request by the sponsor for good cause, the 30-day term may be extended for another 30 days. During the period for corrective action, the Division must provide a reasonable amount of technical assistance in an effort to help the program achieve conformity.

(8) If the required correction is not effected within the allotted time, the Division shall send a notice to the sponsor, by registered or certified mail, return receipt requested, stating the following:

(a) The notice is sent under this paragraph;

(b) Certain deficiencies were called to the sponsor’s attention (enumerating them and the remedial measures requested, with the dates of such occasions and letters), and that the sponsor has failed or refused to effect correction;

(c) Based upon the stated deficiencies and failure to remedy them, a determination has been made that there is reasonable cause to deregister the program and the program may be deregistered unless, within 15 days of the receipt of this notice, the sponsor requests a hearing with the Division; and

(d) If the sponsor does not request a hearing, the Division and the Council will make a final decision on the record with respect to deregistration.

(9) If the sponsor does not request a hearing, the Division, in consultation with the Council, will make a final decision on decertification based upon the record before the Division. The Division will then transmit to the Administrator of the Office of Apprenticeship a report containing all pertinent facts and circumstances concerning the nonconformity, including the findings and recommendation for deregistration, decisions and copies of all relevant documents and records. Statements concerning interviews, meetings and conferences will include the time, date, place, and persons present.

(10) If the sponsor requests a hearing, the Division will notify the sponsor, in writing, The Division shall convene a hearing in accordance with paragraph (12) of this section.

(11) The Division, in consultation with the Council, shall make a final decision on the basis of the record before it, that shall consist of the compliance review file and other evidence presented and, if a hearing was conducted pursuant to paragraph (12), the proposed findings and recommended decision of the hearings officer. In its discretion, the Division, in consultation with the Council, may allow the sponsor a reasonable time to achieve voluntary corrective action. If the Division's decision is that the apprenticeship program is not operating in accordance with this plan, the apprenticeship program shall be deregistered. In each case where deregistration is ordered, the Division shall make public notice of the order and shall notify the sponsor and the complainant, if any, and the Department. The Council shall inform any sponsor whose program has been deregistered that it may appeal such deregistration to the Department in accordance with the procedures of 29 CFR, Section 30.15.

(12) Hearings shall be conducted in accordance with the following procedures:

(a) Within 10 days of receipt of a request for a hearing, the Director shall designate a hearing officer. The hearing officer shall give reasonable notice of such hearing by registered mail, return receipt requested to the sponsor. Such notice shall include a reasonable time and place of hearing; a statement of the provisions of this plan pursuant to which the hearing is to be held; and a concise statement of the matters pursuant to which the action forming the basis of the hearing is proposed to be taken.

(b) The hearing officer shall regulate the course of the hearing. Hearings shall be informally conducted. Every party shall have the right to counsel, and a fair opportunity to present his or her case including such cross - examination as may be appropriate in the circumstances. Hearing officers shall make their proposed findings and recommended decisions to the Director within 60 days upon the basis of the record before them. The Director will then make a final order for all State purposes.

(13) When a program sponsor requests a hearing to dispute proposed deregistration, for federal purposes, the Division must transmit to the Administrator of the Office of Apprenticeship a report containing all the data listed in paragraphs (6)–(12) of this section, and the Administrator will refer the matter to the Office of Administrative Law Judges to convene a hearing in accordance with 29 CFR 29.10.

(14) If a committee is decertified, the Division will notify all apprentices of such cancellation and the effective date; that such cancellation automatically deprives the apprentice of individual registration; that the deregistration of the program removes the apprentice from coverage for Federal purposes which require the Secretary of Labor’s approval of an apprenticeship program and for all State purposes, and that all apprentices are referred to the Division for information about potential transfer to other registered apprenticeship programs.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(d)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BL 1-1991, f. & cert. ef. 1-23-91
BL 6-1985, f. & ef. 10-15-85

Or. Admin. R. 839-011-0084 Apprenticeship and Training Committees — Approval of New Programs and Standards

(1) Additional committees or standards in an area already served by an existing committee in the same trade, craft or occupation shall be established in the same manner as any other local committee.

(2) All employers and their qualified employees shall be afforded the opportunity to participate, on a non-discriminatory basis, in existing programs.

(3) The Council and the Apprenticeship and Training Division of the Bureau of Labor and Industries will approve the creation of a new local committee or new standards for an existing committee only if the applicant for the new program or new standards can first demonstrate to the Council and the Division, by a preponderance of evidence, that the application is in conformity with the following requirements:

(a) The applicant shall submit documentation showing committee composition pursuant to ORS chapter 660.135, .145.

(b) The applicant shall submit standards in a format approved by the Council that meet or exceed any existing statewide minimum guideline standards for the occupation. Where no state guideline standards exist, proposed standards shall meet or exceed national guideline standards approved by the federal Office of Apprenticeship. Where no state or national guideline standards exist, standards will be approved at the discretion of the Council and the Division when the proposed occupation is clearly identified and commonly recognized throughout an industry.

(A) The term of apprenticeship for an individual apprentice may be measured through the completion of the industry standard for on-the-job learning (at least two thousand hours) (time-based approach), the attainment of competency (competency-based approach), or a blend of the time-based and competency-based approaches (hybrid approach).

(B) A statement of the number of hours to be spent by the apprentice in work and the number of hours to be spent in related/supplemental instruction. For competency based and hybrid models, the program standards must specifically address how on-the-job learning will be integrated into the program, describe competencies and how such competencies will be measured, and identify an appropriate means of testing and evaluation for such competencies.

(C) The time-based approach measures skill acquisition through the individual apprentice's completion of at least two thousand hours of on-the-job learning as described in a work process schedule.

(D) The competency-based approach measures skill acquisition through the individual apprentice's successful demonstration of acquired skills and knowledge, as verified by the program. Programs utilizing this approach must still require apprentices to complete an on-the-job learning component of registered apprenticeship. The program standards must address how on-the-job learning will be integrated into the program, describe competencies, and identify an appropriate means of testing and evaluation for such competencies.

(E) The hybrid approach measures the individual apprentice's skill acquisition through a combination of specified minimum number of hours of on-the-job learning and the successful demonstration of competency as described in a work process schedule.

(A) Written designation of the program administrator;

(B) Documented assurances that the committee will be adequately funded to support its administration and the presentation of related instruction;

(D) Assurances that training agents and prospective training agents will be provided with a written statement of costs for program participation.

(d) The applicant must demonstrate the ability to track required on-the-job training, related and supplemental training and affirmative action information (i.e., work progress reports, apprentice/trainee rotation system, employer's apprentice/trainee evaluation forms, grading sheets, applicant logs) and provide the Council with copies of the forms and documents that will be used to track such information.

(e) The applicant shall submit a plan detailing how the committee will ensure that participating employers will provide work in all areas covered by the program standards (ORS chapter 660.137(5)), including:

(A) Training in all counties listed in proposed geographical area;

(B) Training in all work processes set forth in the standards;

(C) Committee expectations of supervising journey workers and a plan for the supervision of apprentices/trainees in the ratio set forth in the standards (ORS chapter 660.126(1)(c), (f));

(D) Training agent qualifications and duties (ORS Chapter 660.137(5)); and

(E) A plan for training participating employers on their duties and responsibilities.

(f) The applicant shall submit a complete related training curriculum, including instructor qualifications, class outlines and expected competencies, grading procedures and completion criteria. This submission shall include:

(A) An explanation of the curriculum delivery method and a description of the related training facilities;

(B) Certification of the curriculum and instructional delivery plan by either a state education certifying authority or nationally recognized industry association (ORS Chapter 660.137(2)(c), .126(1)(j), .157); and

(C) Assurances that classroom and related instruction can be delivered throughout the geographic area. The applicant must submit a contract or other documentation demonstrating that actual instructional resources are in place. The committee's geographic area must be one that can be reasonably served by the committee with respect to employers and the location of the related training services (ORS Chapter 660.126(1)(a)).

(D) Assurances that instructors meet the Oregon Department of Education or Office of Community Colleges and Workforce Development requirements for vocational-technical instructors or are subject matter experts, defined as an individual, such as a journey worker, who is recognized within an industry as having expertise in a specific occupation. If the instructor is a subject matter expert, the submission must include assurances that the instructor has or will have had training in teaching techniques and adult learning styles, which may occur before or within nine (9) months after the apprenticeship instructor has started to provide the related technical instruction.

(g) The applicant must submit operating policies and procedures and assurances that the program will be operated in accordance with the same; and

(h) The applicant shall submit a plan to recruit, evaluate and select apprentice/trainee applicants throughout the proposed geographic area, including an application form that meets Council requirements.

(4) All objections to the approval of a new committee or new standards shall be submitted to the Council in writing at the meeting where the application is being considered for approval, specifically detailing any objections to the application. Council may rule on the application and objections thereto at that time or grant the applicant 30 days after the Council meeting to submit a written rebuttal to the objections to the Director. Council shall direct the Director to investigate and evaluate the objections and rebuttal and to provide a report to Council within 45 days of receipt of the rebuttal statement. At the next Council meeting after the initial submission, Council shall either approve or deny the application and provide a specific written explanation for its actions.

(5) All new programs shall serve a probationary period of three (3) years after Council approval. Failure to clearly demonstrate the ability to operate a satisfactory program during the probationary period, based upon periodic program reviews conducted by the Division, shall result in deregistration of the program by the Division in consultation with the Council.

(6) Compliance reviews will be conducted during the probationary period pursuant to OAR 839-011-0145 unless the Council directs the Division to conduct reviews more frequently. Should the Council find operating deficiencies in the course of any such review, the program shall immediately take action to correct the deficiencies and submit a report to the Council explaining corrective measures taken within 90 days of the Council initial finding of deficiencies. If the committee has not corrected the deficiencies within the 90 day period, the Division in consultation with the Council shall deregister the program at the next scheduled Council meeting.

History

Statutory/Other Authority: ORS 660.120(3)
Statutes/Other Implemented: ORS 660.135(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 16-2006, f. 4-17-06, cert. ef. 4-18-06
Reverted to BLI 2-1999, f. & cert. ef. 4-2-99
BLI 16-2005(Temp), f. & cert. ef. 8-23-05 thru 2-19-06
BLI 2-1999, f. & cert. ef. 4-2-99
BL 1-1991, f. & cert. ef. 1-23-91
BL 6-1985, f. & ef. 10-15-85

Or. Admin. R. 839-011-0088 Apprenticeship and Training Committees — Registration of Apprenticeship Agreements

(1) The Council delegates registration of apprenticeship agreements to the Division and recognizes an agreement as registered when:

(a) It is on a form that has been approved pursuant to ORS Chapter 660.020 and issued by the Division;

(b) Information requested on the form as authorized by ORS Chapter 660.020 has been supplied by the apprentice. The requested information includes, but is not limited to the apprentice’s Social Security Number for identification purposes; the number of hours to be spent in related instruction in technical subjects related to the occupation, that is recommended to be not less than 144 hours per year; and a statement indicating whether and under what circumstances an apprentice is entitled to be financially compensated for attending related instruction;

(c) It has been signed by the apprentice and the local joint committee. Approval must be recorded as soon as possible at a committee meeting; and

(d) The agreement has been submitted to and received by a representative of the Division.

(2) The effective starting date of an apprenticeship agreement in non-licensed trades shall be not more than forty five (45) days prior to the date that a fully executed original agreement and committee minutes approving the registration are received by a representative of the Division. In the licensed trades, the effective starting date of an apprenticeship shall not commence before a fully executed apprenticeship agreement is received by a representative of the Division, unless the committee has written authorization from the Division to issue an initial license and operates in accordance with the conditions of authorization.

(3) Local committees shall develop and implement a policy and procedures detailing the process for evaluating previous experience and demonstrated competency in a uniform manner and awarding advanced standing to new apprentices for on-the-job or related training.

(a) The committee may grant credit for prior experience based upon demonstrated competency for any time previously spent by the apprentice in the trade or occupation that the committee considers applicable to the work processes in the program standards.

(b) In licensed trades, only lawfully obtained and documented experience that specifically applies to an Oregon license may be considered in granting credit for prior experience.

(4) All apprenticeship agreements will be maintained in the Division’s main office.

History

Statutory/Other Authority: ORS 660.120(3)
Statutes/Other Implemented: ORS 657.732 & 660.060(8)
BLI 1-2019, temporary amend filed 02/20/2019, effective 02/21/2019 through 08/13/2019
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 7-1996, f. & cert. ef. 7-22-96
BL 1-1991, f. & cert. ef. 1-23-91
BL 6-1985, f. & ef. 10-15-85

Or. Admin. R. 839-011-0090 Apprenticeship and Training Committees — Causes for Disciplinary Action

The Division in consultation with the Council has the authority to take disciplinary action against a committee for conduct or action, including but not limited to:

(1) Inappropriate use of an apprentice's registration status or an apprentice’s time, skills or training;

(2) Inadequate training of apprentices;

(3) Inappropriate assignment or abuse of discretion in work assignments;

(4) Discriminatory action(s) against an apprentice(s);

(5) Violation of any state or federal law;

(6) Failure to submit required documentation to the Division in a timely manner;

(7) Failure to communicate with the Division or the Council in a timely manner; or

(8) Any other action deemed inappropriate by the Council.

History

Statutory/Other Authority: ORS 660.120(1)
Statutes/Other Implemented: ORS 660.120(1) & ORS 660.120(2)(d)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 2-1999, f. & cert. ef. 4-2-99
BL 6-1994, f. & cert. ef. 10-10-94

Or. Admin. R. 839-011-0093 Apprenticeship and Training Committees — Disciplinary Procedure

(1) The Council shall establish a disciplinary procedure, to be applied before any disciplinary action toward a committee, apprentice or training agent is taken, consisting of but not limited to:

(a) A request to appear before Council to present information and answer questions from the Council; and

(b) A written notice of Council's decision in the matter.

(2) Based on a complaint, compliance review, or other reason, the Division may investigate, or cause a local committee to investigate, whether a training agent or committee is in compliance with the program standards relating to the ratio, supervision, or approved work processes requirements, wages or Council policies.

(3) The Division shall notify the training agent and the program sponsor that an investigation has commenced. If the Division requests that a local committee initiate an investigation as to whether a training agent is in compliance with the program standards relating to the ratio, supervision, or approved work processes requirements, wages or Council policies, the local committee shall forward the results of the investigation to the Division within 60 days of the request.

(4) The Division shall prepare a report identifying the results of the investigation. If the results indicate that the training agent is not operating as required by the program standards, the Division shall notify the training agent and local committee in writing of the results, with a copy of the report to the Council. Additionally:

(a) The Division will make a reasonable effort to secure compliance on the part of the training agent or committee by requiring the training agent or committee to submit to the Division a proposed plan identifying voluntary corrective action. The Division shall review the proposed corrective action plan and approve it, or work with the training agent or committee to modify it, before its implementation. If the Division does not receive notice, within thirty (30) calendar days, that action has been taken to correct violations, the Division shall refer the matter to the Council for action. The local committee shall assist the training agent in developing a proposed corrective action plan and shall assist the Division in monitoring the training agent's compliance with the terms of the approved corrective action plan.

(b) If the Division is unable to obtain compliance from the training agent or committee under (a) of this subsection, or if a second investigation within one year of the initial inspection reveals the training agent or committee is not operating as required by the program standards, the Division shall refer the matter to the Council for action.

(5) The Council will take action upon the Division’s referral under subsection (4)(b) of this section. After a notice and the opportunity for the training agent to show cause, the Council will decide by a majority vote of the members present whether to issue a determination that the training agent or committee is out of compliance with program standards relating to the ratio, supervision, or approved work processes requirements, wages or Council policies. Where training agent violations are found by the Council after a review of all relevant facts, including the opportunity for the training agent to make a presentation before the Council, the Council may vote to:

(a) Censure the training agent or committee and find it not to be in good standing;

(b) Place the training agent or committee on probation for a specific period of time;

(c) Prohibit the training agent from employing apprentices or prohibit the committee for registering new apprentices for up to two years;

(d) Impose sanctions pursuant to existing Council policies and interpretations; or

(e) Deregister the training agent or committee.

(6) A determination by the Council that a training agent is out of compliance with program standards relating to the ratio, supervision, or approved work processes requirements, wages or Council policies shall be stated in writing, along with the reasons supporting it, and shall be mailed to the training agent and program sponsor.

(7) The Division shall place Council determinations under this section on file for public review. The Division shall maintain a list of all training agents who, as a result of a determination they are out of compliance are unable to employ registered apprentices. The Division shall make the list available to the public upon request.

History

Statutory/Other Authority: ORS 660.120(1)
Statutes/Other Implemented: ORS 660.120(1) & 660.120(2)(d)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 6-1994, f. & cert. ef. 10-10-94

Or. Admin. R. 839-011-0140 Apprenticeship and Training Committees — Approval and Dissolution

(1) A local committee must submit new standards or revisions to previously approved standards, together with executed signature sheets and committee minutes to the Director at least 45 calendar days before the date of the next Council meeting pursuant to OAR 839-011-0030.

(2) Proposed standards and revisions must be in a form and format approved by Council that includes all elements specified in ORS chapter 660.126. The Council may require additional information of committees pursuant to OAR 839-011-0084, including program administration and training plans.

(3) Standards in a form or format other than that approved by the Council and the Division may be accepted when they are part of the federal Office of Apprenticeship approved national pattern standards and are consistent with federal Office of Apprenticeship regulations and guidelines, these rules and Council policies.

(4) With Council approval, local committees may charge applicants a reasonable non-refundable application fee. Such fees shall be stated in the standards as a minimum qualification for entry into the program. Committees shall be required to:

(a) Incorporate the payment of a non-refundable application fee into the minimum qualifications of the committee’s standards. The standards shall also reflect that applicants with an income below 150% of the federal poverty guidelines may apply for a non-refundable application fee waiver. Federal poverty guidelines are established by the Federal Department of Health and Human Services and are recognized by the Oregon Adult and Family Services Division;

(b) Show that the non-refundable application fee results in no disparate impact and report annually to the Council whether disparate impact has been determined to result from the fees charged; and

(c) Show that the local committee experiences an extraordinary burden with respect to the administration of applications, i.e., beyond the ordinary course of conducting such procedures. Examples of an extraordinary burden include, but not limited to, development of specific entrance examinations, validation studies and extensive testing or interview procedures.

(5) Revised standards will supersede the committee’s previous standards covering the same occupation.

(6) Every registered apprenticeship program must have at least one registered apprentice, except for the following specified periods of time that may not exceed 1 year:

(a) Between the date when a program is registered and the date of registration for its first apprentice(s); or

(b) Between the date that a program graduates an apprentice and the date of registration for the next apprentice(s) in the program.

(7) The Division shall report any standards that have had no registered apprentices for one (1) year to the Council for dissolution due to inactivity. Committees will be notified at that time that the standards will be dissolved if no apprentices registered within one (1) additional year.

(a) Committees may request administrative reactivation of standards that are dissolved due to inactivity if a new apprentice is identified within two (2) years of dissolution.

(A) Current documentation of OAR 839-011-0084(3) requirements shall be submitted to the Division with reactivation request.

(B) Apprentice registration can occur upon the Division’s administrative approval of the reactivated standards. The standards will then be placed on the next Council agenda for ratification in accordance with OAR 839-011-0051.

(b) After two (2) years, standards dissolved due to inactivity shall be resubmitted as new standards and Council approval of the standards will be required prior to registration of new apprentices.

History

Statutory/Other Authority: ORS 660.120(3)
Statutes/Other Implemented: ORS 660.120(2)(b), 660.126 & 660.137
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 6-2015(Temp), f. & cert. ef. 6-1-15 thru 11-27-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 6-1994, f. & cert. ef. 10-10-94
BL 1-1991, f. & cert. ef. 1-23-91
BL 13-1988, f. & cert. ef. 7-1-88
BL 3-1978, f. & ef. 4-3-78
BL 130, f. 10-5-72, ef. 10-15-72
BL 95, f. 8-16-65

Or. Admin. R. 839-011-0141 Apprenticeship and Training Committees — Minimum Guideline Standards

The Council may approve minimum guideline standards for occupations it deems necessary.

(1) At its discretion, or upon petition by two or more local committees directly affected by minimum guideline standards, the Council will direct the Division to convene a state committee composed of voting members of local committees training in the occupation. Division staff will organize the meeting time and location, and contact all appropriate local committees.

(a) Each local joint committee training in the occupation may appoint no more than one employer and one employee committee member (with alternates if desired) to the state committee pursuant to OAR 839-011-0074. Notification of this action must be submitted to the Division in writing. Appointments will be valid only after written notice of the names of the appointees is received by the Division at least one (1) day before a scheduled state guideline committee meeting.

(b) The employer and employee members of local trades committees (and alternates) shall represent their respective occupations on the state committee pursuant to ORS Chapter 660.155(2).

(c) Only properly appointed representatives to the state guideline committee will be permitted to vote on issues before the State Guideline Committee.

(d) A quorum shall consist of 50% plus one of the total appointed local joint committee representatives; local trade committee representatives will be counted only if they are present at the state committee meeting. A quorum of the total appointed local committee representatives constituted pursuant to this rule may revise the quorum requirement for future state committee meetings, pending review and approval by the Council.

(e) Each state committee may adopt policies and procedures consistent with ORS Chapter 660 as it deems necessary for the orderly conduct of its meetings.

(2) The state committee will develop or revise minimum guideline standards in accordance with the needs of the industry and occupation. This committee shall establish minimum guidelines in the following standards areas:

(a) Minimum qualifications;

(b) Hours of employment;

(d) Maximum ratio of apprentices to journey workers and required supervision;

(e) Minimum work processes and approximate hours, and expected competencies (if desired); and

(f) Minimum related/supplemental instruction.

(3) If consensus is not reached by the state committee, a majority and minority report will be submitted with the proposed standards to the Council for consideration.

(4) New or revised minimum guideline standards shall be distributed to all local committees training in the occupation for review and comment prior to submission to the Council.

(a) Each local committee shall have not more than 30 days to present any written objections. This information shall be referred to the state committee for review.

(b) The state committee shall determine whether additional meetings are required then prepare its final recommendations to the Council.

(c) When majority and minority reports are submitted, the Council and the Division will take into consideration the geographic area covered by each participating committee as well as the number of apprentices served and the number of training agents affected in determining whether to accept the minimum guideline standard as submitted or approved amendments thereto.

(5) On-the-job training hours for a local committee may not fluctuate below the requirements dictated by minimum guideline standards. The variations must be within statutory limits governing the licensed occupations.

History

Statutory/Other Authority: ORS 660.120(3)
Statutes/Other Implemented: ORS 660.120(2)(a)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0142 Apprenticeship and Training Committees — Apprentice/Trainee Qualifications

(1) The Council and the Division shall evaluate proposed qualification standards or selection methods pursuant to the criteria set forth in Title 29 CFR Part 30, the Equal Employment Opportunity in Apprenticeship Plan noted in OAR 839-011-0200, the objectives expressed by the committee and/or sponsor, and such other factors as the Council and the Division may deem appropriate. Evaluation of proposed qualification standards or selection methods shall include an analysis of whether they would result in an adverse impact upon any protected class of applicants.

(2) The Council and the Division shall not consider proposed standards that contain any of the following requirements within their minimum qualifications:

(a) Physical ability to do the job, unless it specifically references a validated occupational requirement, such as lifting a sack of cement to a specified height;

(b) Any tests (including color tests) that do not meet the validity requirements under 41 CFR 60.3;

(d) A medical exam.

(3) Standards submitted containing any of these requirements will not be placed on the Council agenda.

(4) The minimum qualifications section of the standards may include a note advising applicants that employers may require apprentices to meet additional lawful conditions of employment. These must be identified by employers and specified in the standards.

History

Statutory/Other Authority: ORS 660.120(3)
Statutes/Other Implemented: ORS 660.120(3)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0143 Apprenticeship and Training Committees — Ratio and Supervision

(1) Registered apprentices shall only work for training agents registered to the same committee as the apprentice, unless the subject committees and employer have reached agreement on a plan that will enhance the training opportunities for all apprentices and have jointly submitted a written request to the Council outlining their plan and requesting the exemption from this rule.

(2) Except as provided in sections (6) and (7) below, registered apprentices shall be supervised by journey workers employed in the same trade or occupation by the same training agent employing the apprentice.

(3) The apprentice to journey worker ratio for any registered program approved by the Council and the Division shall be clearly set forth in the standards for the given occupation and must be specific as to application in terms of jobsite, workforce, shift, department or plant.

(4) The maximum ratio of apprentices to journey workers for an occupation covered by a state committee will be developed as part of the minimum guideline standards for the occupation. Requests for a less restrictive ratio from local committees will be referred to the state committee for evaluation of minimum guideline ratio.

(5) For occupations where a minimum guideline standard is not in place, local committees are expected to meet the following apprentice to journey level ratios:

(a) Construction trades: Not more than one apprentice for the first journey worker on the job site. Additional apprentices are authorized at the ratio of one apprentice for each three additional journey workers on the job site. (Expressed hereafter as 1:1,1:3)

(b) Industrial trades and fixed-site facilities: 1:1,1:2

(d) Committees wishing a less restrictive ratio must submit a request to the Council for consideration, along with information including but not limited to:

(A) Specific workforce demographics justifying a different ratio;

(B) Plan to monitor effects of ratio on the safety and continuity of employment for apprentices; and

(6) In licensed trades, an apprentice must be supervised by a journey worker in the same or a higher license classification than the apprentice, unless the local committee that the apprentice is registered to has approved supervision by a journey worker holding a license covering the specific work being performed by the apprentice on the job site.

(7) Electrical power line installers and repairers and linemen apprentices may work for training agents registered to other local joint committees in order to ensure that all work processes are fulfilled, pursuant to a written agreement between the apprentice, the local committees and both training agents.

(8) In limited situations, the Council may grant a training agent a short-term waiver of the established ratio for a given program, upon demonstration of extreme need. In no event shall an apprentice work without qualified journey worker supervision. Ratio waivers of less than 90 days must be requested by the committee on behalf of a training agent. Local committees are not authorized to grant temporary waivers to training agents. A temporary waiver of ratio may be granted under the following circumstances:

(a) Serious injury or illness of the journey worker, where the journey worker is expected to return to work in 90 days or less; or

(b) The sudden departure of a journey worker from employment with the training agent for causes not attributable to the training agent. The employer is expected to replace the departing journey worker within a reasonable amount of time and in no event shall this amount of time exceed ninety (90) days. The training agent must document its efforts to replace journey workers which may include, but shall not be limited to:

(A) Copies of job orders;

(B) Classified advertising, including a posting of the journey wage rate offered; and

(9 The lack of available qualified or licensed journey workers shall not be a valid reason for granting a temporary ratio waiver.

(10) The Council may authorize the Director to grant or deny waivers as set forth above on an interim basis. Such action taken by the Director must be submitted to the Council for ratification at its next meeting after interim approval or denial has been made.

History

Statutory/Other Authority: ORS 660.120(3)
Statutes/Other Implemented: ORS 660.120(2) & 660.126(1)(f)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 6-2015(Temp), f. & cert. ef. 6-1-15 thru 11-27-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0145 Apprenticeship and Training Committees — Compliance Reviews

(1) All committees are subject to periodic reviews of program operation and affirmative action activities.

(2) The Division shall develop and maintain a review schedule that identifies programs scheduled for review, the type of review to be conducted and the time period to be evaluated.

(3) The Program Operation Compliance Review will evaluate program operation and administration.

(a) New committees will receive a Program Operation Compliance Review annually for the first three years of operation, unless otherwise directed by the Council.

(b) After the first three (3) years, committees found in compliance will receive a Program Operation Compliance Review every three (3) years.

(4) The Affirmative Action Compliance Review will evaluate outreach, recruitment, and selection activities.

(a) Committees with five or more apprentices registered to a single standard during the previous three years will receive an annual Affirmative Action Compliance Review.

(b) Training agents who select their own apprentices in accordance with the committee’s approved selection procedure will receive a separate annual Affirmative Action Compliance Review.

(5) Additional reviews may be scheduled if:

(a) The Director has a reasonable belief that such reviews are prudent and in the best interest of apprenticeship;

(b) Complaints have been received that the program is not operating in compliance; or

(6) Committees found out of compliance will be required to appear at the next meeting of the appropriate Council subcommittee, unless:

(a) The committee has not been previously found out-of-compliance;

(b) The welfare, safety and training of apprentices or trainees was not undermined;

(d) The Division has recommended approval of the compliance review and committee response.

(7) All reviews shall be reported on a form and in a format approved by the Council. Upon review of compliance reports, the Council shall take action including but not limited to any of the following:

(a) Approve the report;

(b) Refer the report back for further clarification;

(d) Order a probationary period including more frequent and detailed program reviews;

(e) Direct compliance and/or corrective action accordingly;

(f) Impose sanctions;

(g) Deregister the committee and/or standards for non-compliance; and

(h) Any other action as directed by the Council and the Division.

History

Statutory/Other Authority: ORS 660.120(3)
Statutes/Other Implemented: ORS 660.120(2)(a) & 660.120(2)(f)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 6-2015(Temp), f. & cert. ef. 6-1-15 thru 11-27-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 6-1994, f. & cert. ef. 10-10-94
BL 16-1979, f. & ef. 11-8-79

Or. Admin. R. 839-011-0162 Apprenticeship and Training Committees — Employer Training Agents

(1) The Division will register training agents upon receipt of committee minutes showing approval of specific employers as training agents and a fully executed training agent registration agreement for each employer.

(2) The effective starting date for a new training agent shall be no more than forty five (45) days prior to the date that a fully executed original training agent agreement and committee minutes approving the registration of the employer are received by a representative of the Division.

(3) No employer shall be required to join an industry or trade association as a condition of approval as a training agent.

(4) Where two or more programs of the same occupation exist in the same geographical area an employer may not serve as an approved training agent for more than one such program at a time.

(a) In the event an employer has been approved as a training agent by two or more such programs, the Division shall notify the employer and the appropriate committees of this rule and require that the employer respond within twenty (20) working days of receipt of the notice, designating the program in which the employer chooses to continue and resigning from all others. Such notice shall be sent by certified mail, return receipt requested.

(b) An employer who does not respond pursuant to section (3)(a) of this rule, shall be deemed conclusively to have elected to resign as a training agent from all such programs. The Division shall notify the committees serving programs in which the employer had participated that the employer's training agent status has been revoked by operation of this rule.

(5) In limited cases where special conditions exist, the Council may consider an employer’s request to participate in multiple programs in the same occupation within the same geographical area:

(a) When an individual construction project has special conditions warranting consideration for multiple training agent status, the employer must work with all committees involved to establish a plan that provides for the health, safety, and continuity of employment for all apprentices.

(b) When the committees and employer have reached agreement on a plan that will enhance the training opportunities for all apprentices, they shall jointly submit a written request to the Council outlining their plan and requesting the exemption from section (2) of this rule.

(6) An employer with a principal place of business outside the geographic jurisdiction of a local committee may seek approval to register with that local committee as a training agent. Each such employer must agree to comply with Oregon state, county and municipal laws, rules and ordinances and the rules, policies, procedures and standards of the local committee.

(a) The employer and the local committee must agree on the manner in which local apprentices will be utilized.

(b) Registration as a training agent in Oregon is not required if the employer is approved as a training agent in a state that participates in the multi-state apprenticeship reciprocity agreement, provided:

(A) The standards are equivalent to Oregon apprenticeship standards for the occupation; and

(B) The employer and sponsor maintain good standing in their home state.

(b) Reciprocal approval for federal purposes is accorded to contractors, apprentices, apprenticeship programs and standards that are registered with the USDOL Office of Apprenticeship (“OA”) or registered to other State Apprenticeship Registration Agencies duly recognized by OA for federal public works projects in Oregon that are subject to the Davis-Bacon Act, in accordance with 29 CFR 29.5(b)(13).

(c) Reciprocal approval for non-federal purposes will be accorded to contractors, apprentices, apprenticeship programs and standards that are registered with the USDOL Office of Apprenticeship or a duly authorized State Registration Agency:

(A) The apprenticeship standards must be equivalent to Oregon standards for the occupation.

(B) The employer and its sponsor must have passed any probationary period mandated by their registration agency.

(C) Recognition of reciprocity is valid for one (1) year. A new letter of recognition shall be issued upon request accompanied by required documentation.

(D) For occupations requiring an Oregon plumbing or electrical license, employers and apprentices must be registered with an Oregon committee in order to obtain the required apprentice license.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1) & 660.137(5)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 1-1991, f. & cert. ef. 1-23-91
BL 17-1979, f. & ef. 11-8-79

Or. Admin. R. 839-011-0170 Apprenticeship and Training Committees — Meetings, Minutes Submission and Processing

(1) Meeting requirements:

(a) Local committees shall hold at least two (2) physical meetings each year with a quorum of committee members in attendance to evaluate apprentices and conduct other committee business.

(A) All disciplinary actions require a physical meeting. Electronic polling is prohibited for issues requiring the personal appearance of applicants, apprentices, trainees, training agents or employers.

(B) Committees may vote to take all other actions by facsimile, e-mail or other electronic media if by-laws permitting such voting have been adopted.

(b) State committees should hold at least one (1) physical meeting every three (3) years to review guideline standards. Additional meetings may be called by the state committee chair, at the request of a majority of state committee members or at Council direction. A quorum of members must be physically present at meetings to vote on proposed revisions to guideline standards.

(2) As required in ORS Chapter 660.135(3), each committee secretary shall be responsible for the preparation, maintenance and submission to the Division of committee meeting minutes, including actions pertaining to apprentices and all supporting documentation.

(a) All committee meeting minutes shall be submitted in a format approved by the Division within ten (10) working days of the meeting.

(b) All committee actions noted in meeting minutes shall be recorded and processed by the Division within fourteen (14) working days of receipt of the minutes.

History

Statutory/Other Authority: ORS 660.120(1)
Statutes/Other Implemented: ORS 660.120(1) & 660.135(4)
BLI 3-2020, temporary amend filed 03/17/2020, effective 03/17/2020 through 09/12/2020
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 6-2015(Temp), f. & cert. ef. 6-1-15 thru 11-27-15
Reverted to BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 9-2012(Temp), f. & cert. ef. 8-15-12 thru 1-29-13
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 6-1994, f. & cert. ef. 10-10-94

Or. Admin. R. 839-011-0175 Apprenticeship and Training Committees — Cancellation Notices

All notices to appear for cancellation of apprenticeship agreements must be sent certified mail, return receipt, addressed to the apprentice and postmarked at least twenty-two (22) calendar days in advance of the appearance date for the consideration of the cancellation.

History

Statutory/Other Authority: ORS 660.137(4)
Statutes/Other Implemented: ORS 660
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BL 11-1996, f. & cert. ef. 12-10-96
BL 6-1994, f. & cert. ef. 10-10-94

Or. Admin. R. 839-011-0200 Apprenticeship and Training Committees — Equal Employment Opportunity in Apprenticeship

The Oregon Plan Equal Employment Opportunity in Registered Apprenticeship Programs (the Plan), pursuant to 29 CFR Part 30, is adopted and incorporated by reference as if fully set forth in these rules. The Plan is effective November 1, 2021. [Attachment: Oregon Plan for Equal Employment Opportunity in Registered Apprenticeship Programs]

[ED. NOTE: To view attachments referenced in rule text, click here to view rule.]

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120
BLI 25-2021, minor correction filed 12/20/2021, effective 12/20/2021
BLI 11-2021, amend filed 07/23/2021, effective 11/01/2021
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
Reverted to BL 1-1991, f. & cert. ef. 1-23-91
BL 8-1991(Temp), f. 8-15-91, cert. ef. 9-1-91
BL 1-1991, f. & cert. ef. 1-23-91
BL 2-1988, f. & cert. ef. 2-19-88
BL 13-1978, f. & ef. 12-8-78
BL 9-1978(Temp), f. & ef. 9-15-78
BL 168, f. 10-11-74, ef. 11-11-74
BL 159, f. 3-8-74, ef. 4-11-74
BL 151(Temp), f. & ef. 12-19-73
BL 120, f. 2-16-72, ef. 3-1-72

Or. Admin. R. 839-011-0250 Apprenticeship and Training Committees — Agreements During Labor Disputes

(1) Pursuant to the National Labor Relations Act and Title 29 CFR Parts 29.3(h) and 29.12(10), when a labor dispute exists with an employer or prospective employer in a single employer program, until such dispute has been resolved or the representative union has tendered a written waiver of its objections to the employer or prospective employer’s participation, the Council will not:

(a) Approve changes in existing standards;

(b) Approve new standards;

(d) Review the employer’s application for a new committee.

(2) Pursuant to the National Labor Relations Act and Title 29 CFR Parts 29.3(h) and 29.12(10), when a labor dispute exists with an employer or prospective employer in a multi-employer program, until such dispute has been resolved or the representative union has tended a written waiver of its objections to the employer or prospective employer’s participation, the local committee will not:

(a) Provide additional apprentices to the employer or prospective employer engaged in the labor dispute; or

(b) Grant training agent status.

(3) For purposes of this rule, a labor dispute exists for an employer where:

(a) There is a collective bargaining agreement in effect, or where employees have voted for a bargaining agreement; and

(b) There is a strike, lock out or work stoppage.

(4) Apprentices or trainees subject to apprenticeship or training agreements and employed in an establishment involved in a labor dispute where the employees have voted for a bargaining unit and a strike is in progress are not in violation of their agreements if they leave their employment until settlement of the labor dispute.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 7-1986, f. & ef. 7-14-86

Or. Admin. R. 839-011-0260 Apprenticeship and Training Committees — Movement and Training of Apprentices within the Same Occupation

(1) Registered apprentices who are transported to an area outside of the committee’s geographic jurisdiction may receive related training with the consultation and agreement of the appropriate local committee in the new area.

(2) Each local committee shall develop and uniformly implement a policy defining its processes and procedures for the immigration of employers and apprentices into its geographical area and jurisdiction including, but not limited to:

(a) The authorization of approved training agents domiciled in other jurisdictions;

(b) The portability of apprentices; and

(3) The policies of each committee shall be reviewed and approved by Division staff on behalf of the Council.

(4) In the event that a policy is not approved by the Division, it shall be referred to the Council's Rules and Policy Subcommittee for review and action.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 1-1991, f. & cert. ef. 1-23-91
BL 7-1986, f. & ef. 7-14-86

Or. Admin. R. 839-011-0265 Apprenticeship and Training Committees — Training in Work Processes

(1) All apprentices must obtain work experience for at least 50% of the hours listed for each work process in the committee's approved standards. A committee unable to provide an apprentice with work experience equaling at least 50% of the hours listed in any of the work processes must provide and document additional related training to compensate for the lack of on-the-job training. A written statement, held in the apprentice’s files, shall document such compensatory training and shall include, date, time, place, hours and instructor. In no event may distance learning classes be used to compensate for deficiencies in total work process hours.

(2) For licensed occupations, all variations in work processes must be within the statutory limits governing the trade.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99

Or. Admin. R. 839-011-0270 Apprenticeship and Training Committees — Administrative Cancellation or Completion of Apprenticeship Agreements

(1) Whenever a local committee has insufficient members to conduct business, has not met at least once within a six-month period or has been dissolved by Council, the Director may:

(a) Cancel an apprenticeship agreement:

(A) At the apprentice's request; or

(B) For good cause as defined by ORS Chapter 660.060(7) or;

(b) Complete an apprenticeship agreement when documentation has been submitted to the Director demonstrating that the apprentice has fulfilled the required related instruction and on the job training as set forth in the standards established by the committee.

(2) Absent exceptional circumstances demonstrated by a local committee, apprentices referred for a license exam will be administratively completed by the Director within one (1) year of referral, with or without benefit of license. Examples of exceptional circumstances are military service; illness; injury or incapacitation of the apprentice.

(a) Local committees may complete apprentices without benefit of license earlier than one (1) year of referral in accordance with approved committee policies and procedures.

(3) Such action by the Director or the committee shall be taken pursuant to the following procedure:

(a) Notice and an opportunity to show cause to the Council, through the Division, shall be provided by certified mail to the apprentice, employer, committee, Council and any interested parties before any action to administratively complete or cancel an agreement; and

(b) Written notice to the apprentice, committee, Council and any interested parties of the final action taken by the Director.

(4) An apprentice may appeal an administrative cancellation as an order other than a contested case order under ORS Chapter 183.484.

History

Statutory/Other Authority: ORS 660.120
Statutes/Other Implemented: ORS 660.120(2)(f)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 6-2015(Temp), f. & cert. ef. 6-1-15 thru 11-27-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 1-1991, f. & cert. ef. 1-23-91
BL 7-1986, f. & ef. 7-14-86

Or. Admin. R. 839-011-0280 Apprenticeship and Training Committees — Electrical Apprentices

(1) The Division shall issue electrical apprentice licenses to active apprentices or trainees registered to standards jointly approved by the Council and the Oregon Electrical and Elevator Board. Apprentice license formats shall be jointly agreed to by the Division and the Oregon Building Codes Division.

(2) All electrical apprentices must be directly supervised in accordance with OAR 839-011-0143, unless approved for indirect supervision.

(3) Pursuant to OAR 918-282-0270(3), a local committee may take action to permit electrical apprentices to work under indirect supervision during their final period of apprenticeship provided they have met the provisions of ORS Chapter 660.126(3) and ORS Chapter 479.510 to 479.860 and have:

(a) Completed at least 6,500 hours of on-the-job training for licenses requiring 8,000 hours of apprenticeship training, or 5,000 hours of on-the-job training for licenses requiring 6,000 hours of apprenticeship training; and

(b) Successfully completed related training appropriate to the required 6,500 hours of on-the-job training in an 8,000 hour program or related training appropriate to the required 5,000 hours in a 6,000 hour program.

(4) Indirect supervision licenses will be issued by the Division upon notification of committee approval and reissued for the duration of the program unless the committee takes action to rescind approval.

(5) All apprentices count towards the ratio specified in the standards, regardless of supervision status.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.126(3), 479.510 - 479.860 & OAR 918-282-027
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 17-1990, f. & cert. ef. 11-23-90
BL 11-1989(Temp), f. & cert. ef. 12-26-89

Or. Admin. R. 839-011-0290 Apprenticeship and Training Committees — Plumber Apprentices

(1) The Division shall issue plumbing apprentice licenses to active apprentices or trainees registered to standards approved by the Council. Apprentice license formats shall be jointly agreed to by the Division and the Oregon Building Codes Division.

(2) All apprentices and trainees must be directly supervised in accordance with OAR 839-011-0143, unless approved for phased supervision.

(3) Pursuant to OAR 918-695-0140, a local committee may take action to permit plumbing apprentices to work under phased supervision under the following circumstances:

(a) The plumber apprentice must work in the physical presence of an appropriate journey level plumber; and

(b) An appropriate journey level plumber present at the immediate work site at all times, except for not more than a cumulative thirty (30) minutes during any work shift during which time the journey worker is immediately available by voice communication.

(4) The plumber apprentice may work under phased supervision when the following specific conditions are met:

(a) The appropriate journey worker is immediately available to the apprentice by voice communication (immediately available means that the apprentice can reach the appropriate journey worker within a 15-minute period);

(b) The appropriate journey worker meets with the apprentice at least once each day to go over the work done by the apprentice;

(d) There is only one apprentice on the job site; and

(e) The apprentice has been specifically approved for one (1) or more of the following phases:

(A) Phase 1: The apprentice only engages in water heater replacement or conversion after completing at least six (6) months of work experience, eight (8) hours of related instruction and is evaluated and authorized to do this type of work by the committee;

(B) Phase 2: The apprentice engages in work covered in Phase 1 and minor repairs in a one (1) or two (2) family dwelling after completion of three (3) periods of work experience, the appropriate related instruction for three (3) periods and is evaluated and authorized to do this type of work by the committee;

(C) Phase 3: The apprentice engages in work covered in Phase 1 and 2, and general repairs and replacement of existing installations after completion of four (4) periods of work experience, the appropriate related instruction for four (4) periods and is evaluated and authorized to do this type of work by the committee; or

(D) Phase 4: The apprentice engages in work covered in Phase 1, 2 and 3, and new or remodel installations after completing five (5) periods of work experience, the appropriate related instruction for five (5) periods and is evaluated and authorized to do this type of work by the committee.

(5) Phased supervision licenses will be issued by the Division upon notification of committee approval and reissued for the duration of the program unless the committee takes action to rescind approval.

History

Statutory/Other Authority: ORS 660.120(3)
Statutes/Other Implemented: ORS 693.040
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99

Or. Admin. R. 839-011-0300 Apprenticeship and Training Committees — Effective Date of Actions

All Council actions, other than rulemaking, unless otherwise specified by the Council, shall be effective on the first day of the month following the Council meeting at which such action is taken.

History

Statutory/Other Authority: ORS 660.120(1)
Statutes/Other Implemented: ORS 660.120
BLI 15-2015, f. & cert. ef. 11-12-15
BL 7-1991, f. & cert. ef. 8-15-91 (and corrected 2-3-92)

Or. Admin. R. 839-011-0310 Apprenticeship and Training Committees — Apprentice Rights

(1) Upon registration the local committee shall provide each apprentice with the following information:

(a) Apprenticeship Standards for the program in which the apprentice is registered;

(b) Division approved committee policies and procedures; and

(2) Within the constraints of industry and market conditions, the apprentice has the right to be employed and diligently and faithfully trained by the committee’s approved training agents in accordance with the terms and conditions of the Apprenticeship Agreement and Apprenticeship Standards.

(3) The apprentice has the right to minimum compensation at the apprentice rate of pay as determined by the local apprenticeship committee pursuant to the standards or appropriate prevailing wage classification for all activities performed subsequent to the normal start time of the regular work day and prior to the completion of assigned duties during the work day.

(4) The apprentice has the right to classroom and workplace conditions that are free of harassment or intimidation.

(a) “Harassment or intimidation” includes any act that takes place on or immediately adjacent to apprenticeship classrooms or training agent work sites that:

(A) Substantially interferes with the apprentice’s educational benefits, opportunities or performance; and

(B) Has the effect of:

(i) Physically harming an apprentice or damaging an apprentice’s property; or

(ii) Knowingly placing an apprentice in reasonable fear of physical harm to the apprentice or damage to the apprentice’s property; or

(iii) Creating a hostile educational environment, including interfering with the psychological well-being of an apprentice; and

(5) If a probationary apprentice’s registration agreement is suspended, the time spent on suspension will not apply to the calculation of one year.

History

Statutory/Other Authority: ORS 660.120(1)
Statutes/Other Implemented: ORS 660.120(2)(a)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 6-2015(Temp), f. & cert. ef. 6-1-15 thru 11-27-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 7-1991, f. & cert. ef. 8-15-91 (and corrected 2-3-92)

Or. Admin. R. 839-011-0320 Apprenticeship and Training Committees — Required Appearance at Council Meetings

(1) The Council shall require a committee member or designee other than Division or federal Office of Apprenticeship staff to be present at the appropriate subcommittee meeting when seeking approval for:

(a) New committee;

(b) New standards or;

(2) When a committee member or designee is not required to be present at a subcommittee meeting and questions or deficiencies are noted, the committee will be given ten (10) working days to correct the deficiencies and obtain a Division recommendation for approval.

(a) If deficiencies are corrected, the submittal will be moved to the Council agenda.

(b) Any submittal with deficiencies not corrected within the ten (10) day time limit will be referred to the next meeting of the appropriate subcommittee.

(3) The Director may make exceptions to this rule upon receipt of a written request from the committee setting forth circumstances, such as an emergency or undue hardship, that might justify a failure to attend subcommittee meeting.

History

Statutory/Other Authority: ORS 660.120(1)
Statutes/Other Implemented: ORS 660.120(2)(a)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 7-1991, f. & cert. ef. 8-15-91 (and corrected 2-3-92)

Or. Admin. R. 839-011-0334 Apprenticeship and Training Committees — Eligibility of Family and Current Employees

(1) To the extent that the State Apprenticeship and Training Council determines that it would not result in an adverse impact on apprenticeship opportunities based on an individual's protected class status, an applicant who is otherwise eligible for selection as an apprentice under the selection method approved by the Council for use by the local committee may be directly registered to a family business or the applicant's current employer, subject to the consent of the applicant, regardless of whether another employer would otherwise be entitled to register the applicant under the selection method used by the local committee.

(2) As used in this section, "otherwise eligible for selection as an apprentice under the selection method approved by the Council for use by the local committee" shall mean that the applicant:

(a) Has met the minimum qualifications for entry into the program; and

(b) Has been evaluated or ranked by the local committee pursuant to the procedure set forth in its approved selection method; and

(c) Based on that evaluation or ranking, is the next applicant or in the immediate group of applicants eligible to be assigned or dispatched to a registered training agent pursuant to the local committee's approved selection method.

(3) When submitting a new or revised selection method to the Council for approval, local committees must indicate whether they will be using an exception to the selection methods established in Title 29 CFR Part 30 and must note in their committee minutes when an individual is registered pursuant to subsections (1) and (2) above.

(4) Nothing in this rule is intended or should be interpreted as discouraging the use of a qualification standard or selection method on the basis of relative qualifications, if the qualification standard or selection criteria have been validated in accord with the guidelines established in Title 41 CFR Part 60-3.6.

History

Statutory/Other Authority: ORS 660.120(1)
Statutes/Other Implemented: ORS 660.139
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 1-2012, f. & cert. ef. 1-3-12
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 17-1999, f. & cert. ef. 12-20-99

Or. Admin. R. 839-011-0335 Apprenticeship and Training Committees — Pre-Apprenticeship Programs

(1) Pre-apprenticeship is a program designed to prepare under-represented, disadvantaged, low-skilled, or individuals from Priority Populations to enter and complete a registered apprenticeship program and has a documented partnership with at least one registered apprenticeship committee(s). In order to be used by a registered apprenticeship committee as a direct entry or preferred applicant source, a pre-apprenticeship program must be approved by the Council.

(2) Written request for Council approval of a registered pre-apprenticeship program shall include the following information:

(a) Identification of the need for the pre-apprenticeship program and the target population served;

(b) A statement clearly describing the program and the organization sponsoring and operating the pre-apprenticeship training;

(d) A statement outlining specific outreach and recruitment activities designed to encourage participation from Priority Populations;

(e) A course outline providing an overview of the academic and manipulative portions of the program. Individual course descriptions, class hours and measurement tool(s) used to determine successful completion of classes should be provided in this section;

(f) A description and images of the training facilities used for pre-apprenticeship training;

(g) A list of the knowledge, skills and abilities required to be an instructor in this program; and

(h) A formalized agreement, such as a memorandum of understanding, which documents facilitated entry or articulation with at least one registered apprenticeship program and where possible, enables individuals who have successfully completed the pre-apprenticeship program to enter directly into a registered apprenticeship or earn advanced credit or placement for skills and competencies acquired during pre-apprenticeship training.

(3) In order for a pre-apprenticeship program to be approved by the Council, pre-apprenticeship programs must incorporate the following elements:

(a) Council-approved training and curriculum based on industry standards;

(b) Detailed recruitment strategies focused on outreach to that demonstrate effective strategies for engaging Priority Populations;

(c) Provide exposure to diverse apprenticeship opportunities including but not limited to site visits to training programs and opportunities to engage with active apprentices, training administrators, or employers from specific occupations; and

(d) Provides hands-on training to individuals in a simulated lab experience or through volunteer opportunities, when possible, neither of which supplants a paid employee but accurately simulates the industry and occupational conditions of the partnering registered apprenticeship sponsor(s) while observing proper supervision and safety protocols.

(4) Pre-apprenticeship program sponsors agree to provide the Council with a list of pre-apprenticeship program participants no later than 14 days after participants begin their training program. Program sponsors will provide participants name, address and other identifying information as determined by the Council, on a form designated by the Division.

(5) Pre-apprenticeship program sponsors agree to provide the Council with a list of pre-apprenticeship program graduates no later than 30 days from the date of completion on a form designated by the Division.

(6) Upon due notice and a reasonable opportunity to show cause, the Council may revoke pre-apprenticeship program for inactivity, inadequate activity, or failure to abide by the rules and policies of the Council.

(7) A provider may voluntarily request the cancellation of pre-apprenticeship program by submitting a request to the Director or the Council. A programs' registration will be cancelled by the Council effective on the date that written notice is received by the Director or the Council. A provider may request administrative reactivation of program that was voluntarily cancelled. Request for reactivation must be made within two (2) years of the date that written notice requesting voluntarily cancellation was received by the Director or the Council.

(8) All programs are subject to periodic quality assurance reviews of program operations. The Division shall develop a review schedule that identifies when a program will be subject to a review, and the time period being evaluated.

(9) Quality assurance reviews will be conducted at intervals not to exceed once every five (5) years.

(10) Quality assurance reviews will evaluate program operations, outreach, recruitment, and completion data.

(11) All quality assurance reviews will be reported on the Division approved form and will be distributed to the registered pre-apprenticeship program, the Director, and the Council.

(12) The Council will review and take action on the quality assurance reports. Action may include, but is not limited to, any of the following:

(a) Approve the report.

(b) Order a probationary period including more frequent and detailed reviews.

(d) Impose sanctions including censure, suspension of registration status, and may include revocation of program approval to operate as a registered pre-apprenticeship program.

(e) Any other action as directed by the Council and the Division.

(13) The Division will provide technical assistance and performance improvement plans to assist pre-apprenticeship programs.

History

Statutory/Other Authority: ORS 660.120
Statutes/Other Implemented: ORS 660.126, ORS 660.137 & OL Chapter 28, 2022
BLI 17-2022, amend filed 10/04/2022, effective 11/28/2022
BLI 7-2022, temporary amend filed 05/31/2022, effective 06/01/2022 through 11/27/2022
BLI 15-2015, f. & cert. ef. 11-12-15

Or. Admin. R. 839-011-0401 Youth Apprenticeship — Program Approval

(1) Council approval of the youth program is required prior to implementation.

(2) Youth apprenticeship committees and standards must meet the requirements outlined in these rules for adult apprenticeship programs.

(3) Youth standards must directly relate to an apprenticeable occupation recognized by federal Office of Apprenticeship.

History

Statutory/Other Authority: ORS 344.745 & 344.750 & 660.120
Statutes/Other Implemented: ORS 344.745 & 344.750 & 660.120
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0402 Youth Apprenticeship — Eligibility

(1) Committees may register youth apprentices who otherwise would not meet the minimum entry level qualifications for age, high school completion or GED in adult standards for the occupation.

(2) The provisions and requirements of ORS Chapter 344.745 shall prevail over the committee's standards should any conflict exist.

History

Statutory/Other Authority: ORS 344.745 & 660.120
Statutes/Other Implemented: ORS 344.745
BLI 15-2015, f. & cert. ef. 11-12-15
Renumbered from 839-011-0420, BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BL 3-1994, f. & cert. ef. 6-3-94
BL 2-1992, f. & cert. ef. 1-14-92

Or. Admin. R. 839-011-0403 Youth Apprenticeship — Selection

The procedure to be utilized in selecting youth apprentices shall be outlined in the youth standards.

(1) Youth apprentices will be selected from a list of eligible established by the school pursuant to ORS 344.745.

(2) In order to participate as a youth apprentice, a student must demonstrate career exploration competencies contained in a curriculum approved by the Oregon State Board of Education.

(3) In no case shall a youth apprentice displace a regular apprentice.

History

Statutory/Other Authority: ORS 344.745 & 660.120
Statutes/Other Implemented: ORS 344.745
BLI 15-2015, f. & cert. ef. 11-12-15
Renumbered from 839-011-0400, BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 2-1992, f. & cert. ef. 1-14-92

Or. Admin. R. 839-011-0404 Youth Apprenticeship — Employer Training Agents

(1) Youth apprenticeship committees shall develop a process for the purpose of approving training agents to participate in the program.

(2) Employers must apply in writing to the appropriate committee requesting authorization to participate. The committee will review the request and respond in writing with a copy to the Director.

(3) Approved youth apprenticeship training agents in the building and construction trades shall be permitted only one (1) youth apprentice without concurrently training/hiring adult apprentices.

History

Statutory/Other Authority: ORS 344.745 & 344.750 & 660.120
Statutes/Other Implemented: ORS 344.745, 660.120 & 660.137
BLI 15-2015, f. & cert. ef. 11-12-15
Renumbered from 839-011-0440, BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 3-1994, f. & cert. ef. 6-3-94
BL 2-1992, f. & cert. ef. 1-14-92

Or. Admin. R. 839-011-0405 Youth Apprenticeship — Supervision

All youth apprentices shall be under direct line of sight supervision of a journey person while engaged in on-the-job training within hazardous occupations as defined by OAR 839-021-0104. Youth apprentices shall be under direct supervision at all other times to ensure optimal safety while on the job.

History

Statutory/Other Authority: ORS 344.750 & 660.120
Statutes/Other Implemented: ORS 660.120
BLI 15-2015, f. & cert. ef. 11-12-15
Renumbered from 839-011-0430, BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BL 3-1994, f. & cert. ef. 6-3-94
BL 7-1993, f. & cert. ef. 7-12-93
BL 2-1992, f. & cert. ef. 1-14-92

Or. Admin. R. 839-011-0406 Youth Apprenticeship — Ratio and Supervision

(1) Committees shall adopt the same ratio of youth apprentices to journey persons as exists for adult apprenticeship programs, except that:

(a) Youth apprentices shall not be included in the count as part of the adult apprentices, but shall be counted separately and concurrently;

(b) A training agent is permitted to participate in the youth apprenticeship program without concurrently training/hiring adult apprentices; and

(c) At no time shall the total number of youth apprentices and adult apprentices exceed the number of journey persons for any job or training agent.

(2) The ratio shall be job and/or training agent specific in application.

History

Statutory/Other Authority: ORS 344.745 & 344.750 & 660.120
Statutes/Other Implemented: ORS 344.745 & 660.120
BLI 15-2015, f. & cert. ef. 11-12-15
Renumbered from 839-011-0480, BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BLI 2-1999, f. & cert. ef. 4-2-99
BL 4-1994, f. & cert. ef. 6-13-94

Or. Admin. R. 839-011-0407 Youth Apprenticeship — Evaluation

The committee must establish a policy and procedure addressing periodic evaluation of youth apprentices and recommending the granting of credit by the committee. The policy shall include the review of apprentice progress including participation in classroom instruction, related instruction, and on-the-job training.

History

Statutory/Other Authority: ORS 344.745 & 344.750 & 660.120
Statutes/Other Implemented: ORS 344.745 & 344.750
BLI 15-2015, f. & cert. ef. 11-12-15
Renumbered from 839-011-0410, BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BL 3-1994, f. & cert. ef. 6-3-94
BL 7-1993, f. & cert. ef. 7-12-93
BL 2-1992, f. & cert. ef. 1-14-92

Or. Admin. R. 839-011-0408 Youth Apprenticeship — Transfer of Youth Apprentices

The committee, in consultation with the participating school, is responsible for the transfer of youth apprentices to other training agent(s) in the event a training agent is unable to fully comply with the apprenticeship standards and these rules.

History

Statutory/Other Authority: ORS 660.120
Statutes/Other Implemented: ORS 660.120
BLI 15-2015, f. & cert. ef. 11-12-15
Renumbered from 839-011-0450, BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10
BL 2-1992, f. & cert. ef. 1-14-92

Or. Admin. R. 839-011-0501 Apprenticeship and Training Council Subpoenas — Purpose and Scope

(1) ORS Chapter 660.120 authorizes the State Apprenticeship and Training Council to conduct investigations in all matters relating to the Council’s duties and functions as set forth in ORS Chapter 660.002 to 660.210.

(2) While conducting investigations, ORS Chapter 660.120 gives the Council the authority to issue subpoenas ad testificandum and subpoenas duces tecum, administer oaths, obtain evidence and take testimony.

(3) These rules govern the Council’s gathering of information through subpoenas or testimony and establish procedures through which a subpoenaed party may object to answering questions or producing any document or other thing subpoenaed.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0505 Apprenticeship and Training Council Subpoenas — Definitions

(1) “Council” means the State Apprenticeship and Training Council.

(3) “Other thing” means any existing tangible object that is not a “document.”

(4) “Party” means any person who has been served by a subpoena under these rules.

(5) “Person” means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character.

(6) “Subpoena ad testificandum” is a subpoena that requires an individual to appear and give testimony under oath.

(7) “Subpoena duces tecum” is a subpoena that requires the production of documents or other things.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0510 Apprenticeship and Training Council Subpoenas — Who and What May Be Subpoenaed

The Council may issue subpoenas to persons to compel testimony and the production of documents or other things that are relevant to the Council’s lawful investigative purpose and reasonable in scope under matters relating to the duties required under ORS Chapter 660.002 to 660.210.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0515 Apprenticeship and Training Council Subpoenas — Circumstances under Which a Subpoena May be Issued

(1) The Council may issue a subpoena ad testificandum to compel a person to testify under oath when:

(a) The Council determines that the person is a material witness in an investigation being conducted by the Council under ORS Chapter 660.002 to 660.210;

(b) The information sought from the person is relevant to a lawful investigative purpose and is reasonable in scope; and

(c) The Council has been unable to interview the person after having made reasonable attempts to do so, or the person states that he or she will only consent to an interview if first served with a subpoena.

(2) The Council may also issue a subpoena ad testificandum to compel a person to testify under oath about the contents of documents or other things produced in response to subpoena duces tecum served on the same person.

(3) The Council may issue a subpoena duces tecum to compel a person to produce documents or other things when:

(a) The Council determines that the documents or other things are relevant to the Council’s investigation being conducted under ORS Chapter 660.002 to 660.210;

(b) The documents or other things sought are relevant to a lawful investigative purpose and are reasonable in scope; and

(c) The Council has made a written request for production of documents or things and the person to whom the request was made has failed to comply within the time specified by the Council, unless the Council finds a subpoena is necessary to protect the documents and things from destruction.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0520 Apprenticeship and Training Council Subpoenas — Who May Issue Subpoenas

The Council or the Council’s designees may issue subpoenas.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0525 Apprenticeship and Training Council Subpoenas — Subpoena Duces Tecum

(2) A subpoena duces tecum issued to a corporation will be addressed to the records custodian of the corporation.

(3) A subpoena duces tecum will not require production of documents or other things less than fourteen (14) days from the date of service upon the person required to produce and permit inspection of the documents or other things unless the Council finds a shorter period necessary to protect the documents and other things from destruction or if the Council has an immediate need for the documents or other things being subpoenaed.

(4) The Council may also command the person to whom a subpoena duces tecum is issued to produce documents and other things by mail or otherwise, at a time and place specified in the subpoena, without commanding inspection of the originals. The person to whom the subpoena is directed complies if the person produces copies of the specified items in the specified manner and certifies that the copies are true copies of all documents and other things responsive to the subpoena.

(5) The subpoenaed documents and other things must be produced at the location, time, and date required in the subpoena.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0530 Apprenticeship and Training Council Subpoenas — Subpoena Ad Testificandum

(1) A subpoena ad testificandum may be issued to any person when the conditions set out in 839-011-0105(1) or 839-011-0515(2) have been met.

(2) The subpoena ad testificandum must give the person a reasonable time for preparation and travel to the place of attendance and the place of attendance must be suitable place in the vicinity to which testimony is applicable.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0535 Apprenticeship and Training Council Subpoenas — Method of Service

(1) Except as noted in sections (2) and (3) of this rule, subpoenas must be served in person by delivering a copy to the witness personally and, at the same time, giving or offering to the witness the fees to which the person is entitled for travel to and from the place where the witness is commanded to appear, along with one (1) day’s attendance fee. A subpoena may be served by any person 18 years of age or older.

(2) Subpoenas ad testificandum may be served by mail under the following circumstances:

(a) The Council must have, by personal or telephone contact, confirmed the witness’s willingness to appear if subpoenaed and certify this on the return of service;

(b) The Council made arrangements for payment to the witness of fees and mileage satisfactory to the witness and pays those fees and mileage; and

(c) The subpoena is sent by certified mail to the witness more than ten (10) days before the date set for appearance or production of documents or other things and the Council receives a return receipt signed by the witness more than three (3) days prior to that date.

(3) A subpoena duces tecum that commands production of documents or other things but is not accompanied by a subpoena ad testificandum may be served by mail by mailing the subpoena to the person required to produce and permit inspection of the documents or things by first class mail and by certified or registered mail, return receipt requested.

(4) A subpoena duces tecum issued to a corporation will be served in accordance with requirements for service of summons on a corporation pursuant to ORCP 7 D(3)(b).

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0540 Apprenticeship and Training Council Subpoenas — Fees

All persons subpoenaed by the Council must be paid the mileage and per diem set out in ORS 44.415(2).

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0545 Apprenticeship and Training Council Subpoenas — Time and Manner of Objecting to Subpoenas

(1) Any person served with an investigative subpoena may object to testifying or providing the documents or other things sought. Grounds for objections include:

(a) The information sought is irrelevant to a lawful investigative purpose;

(b) The information sought is unreasonable in scope;

(c) The witness is ordered to appear to give testimony in a place that is not suitable or not in the vicinity to which the testimony is applicable;

(e) Reasonable cause to refuse to comply; or

(f) Any other basis that may be asserted under Oregon law.

(2) Objections to subpoenas must be in writing and must be received by the Council at least seven (7) calendar days before the time that the witness is subpoenaed to testify or provide documents or other things.

(3) If a subpoenaed witness refuses to answer specific questions while giving testimony, the witness must state the reason for the objection at the time that the witness refuses to answer the questions.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0550 Apprenticeship and Training Council Subpoenas — Response to Objections

(1) The Council will respond in writing to any objections timely received under OAR 839-011-0545(2).

(2) If the objection made is the time and expense involved in copying the documents sought, the Council will provide a check to the person subpoenaed to pay for the estimated time and expense, calculated at the rates set out in OAR 839-011-0060. The Council may provide this check before or at the time the witness is subpoenaed to provide documents or other things.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0555 Apprenticeship and Training Council Subpoenas — Method of Taking Testimony

(1) When a witness appears to give testimony in response to a subpoena ad testificandum, an oath or affirmation will be administered to the witness prior to his or her testimony. The oath or affirmation will be administered by an officer authorized to administer oaths in Oregon, generally a notary public.

(2) The witness’s testimony will be preserved by an audio or video recording. Upon request, the Council will give the witness a copy of the recording at no cost.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0560 Apprenticeship and Training Council Subpoenas — Failure to Appear

If a person served with a subpoena fails to appear and has not filed any prior objections, the Council will conclude that the person has refused, without reasonable cause, to answer any question or to produce any document or other thing.

History

Statutory/Other Authority: ORS 660
Statutes/Other Implemented: ORS 660.120(1)
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Or. Admin. R. 839-011-0565 Apprenticeship and Training Council Subpoenas — Enforcement of Subpoena

If a person served with a subpoena refuses, without reasonable cause, to be examined, to answer any question or to produce any document or other thing as required by the subpoena, the Council may petition the circuit court in the county in which the investigation is pending for an order directing the person to show cause why the person has not complied with the subpoena and should not be held in contempt. The Council shall serve the court’s order upon the person in the manner provided by Oregon Rules of Civil Procedure 55 D.

History

Statutory/Other Authority: ORS chapter 660
Statutes/Other Implemented: ORS 660.120(1) & ORCP 7
BLI 15-2015, f. & cert. ef. 11-12-15
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10

Division 12 APPRENTICESHIP AND TRAINING DIVISION-CONTRACTS AND GRANTS

Or. Admin. R. 839-012-0600 Apprenticeship Grants

(1) To be eligible for a grant described in section 1, chapter 496, Oregon Laws 2023, an applicant:

(a) Must be registered on the Secretary of State’s business registry, unless the applicant is exempt from the obligation to do so;

(b) Must include their employer identification number with the application;

(c) Must be compliant, as determined by the Bureau of Labor and Industries based on the information available, with the provisions of ORS chapter 652, 653, 654 and 659A and rules adopted thereunder;

(d) Must be compliant, as determined by the Bureau of Labor and Industries based on the information available, with all performance and regulatory requirements applicable to all programs and projects of the applicant that are funded in whole or part by public funds;

(e) Must identify the training agents who will be involved in the administration of the grant and must demonstrate that the training agents possess all applicable licenses and registrations;

(f) Must demonstrate the ability to:

(A) Provide on-the-job workforce training and education necessary to pursue a career in the fire service;

(B) Educate apprentices on how to mitigate fire and fire emergencies; and

(C) Collaborate with associations that represent firefighters and fire service professionals and with employers that provide fire protection services, to identify career opportunities in the fire service;

(g) May not be an organization described in Section 501(c)(4) of the Internal Revenue Code of 1986, that engages in lobbying;

(h) May not have any active State of Federal liens or unpaid judgments, as determined by the Bureau of Labor and Industries based on the information available; and

(i) Must comply with all requirements prescribed in the Request for Applications.

(2) When funds are appropriated for purposes of the Trade Outreach to Veterans Grant program, the Apprenticeship and Training Division, with advice and counsel from the Oregon State Apprenticeship and Training Council, may awards grants pursuant to OAR 839-012-0600 to 839-012-0675.

History

Statutory/Other Authority: ORS 651.060 & ORS 660.220
Statutes/Other Implemented: ORS 660.220
BLI 14-2025, amend filed 12/19/2025, effective 12/22/2025
BLI 18-2019, adopt filed 11/27/2019, effective 01/01/2020

Or. Admin. R. 839-012-0605 Definitions

(1) “Apprenticeship Opportunities” means the availability to apply and opportunity to be selected as a Registered Apprentice.

(2) “Community Based Organization” means an organization that has the capacity to help certain worker populations, such as women, veterans, minorities, individuals with disabilities, and others, prepare for apprenticeships and provide supportive services to apprentices.

(3) “Job Fairs or Similar Recruitment Methods” means any external process that effectively informs diverse veterans about opportunities to apply for registered apprenticeship (on a timely basis, in sufficient numbers, and with appropriate qualifications) and that connects applicant veterans by supporting them to persevere through selection, orientation and onboarding as an apprentice.

(4) “Oregon State Apprenticeship and Training Council” means the Council established by ORS 660.110.

(5) “Registered Apprentice” means an Apprentice as defined in ORS 660.010.

(6) “Trade Associations” means any group of employers or community based organizations that participates in providing Apprenticeship Opportunities or preparing individuals to qualify for and succeed as a Registered Apprentice.

(7) “Trade Unions” means any labor union or union-affiliated community service agency that participates in providing Apprenticeship Opportunities or preparing individuals to qualify for and succeed as a Registered Apprentice.

(8) “Veteran” has the meaning given in ORS 408.225.

History

Statutory/Other Authority: OL CH. 528 (2019)
Statutes/Other Implemented: OL CH. 528 (2019)
BLI 18-2019, adopt filed 11/27/2019, effective 01/01/2020

Or. Admin. R. 839-012-0610 Purpose of Trade Outreach to Veterans Grant Program

(1) The purpose of the Trade Outreach to Veterans Grant program is to inform veterans about registered apprenticeship programs that will prepare them for trade careers, to connect veterans with opportunities to pursue such careers by becoming registered apprentices, to prepare veterans to meet minimum qualifications and effectively participate in apprenticeship selection procedures, and to provide support to veterans who are registered as apprentices. “Trade Outreach Veterans Grant Program” means the program created by ORS(whatever statute is created by HB 2202).

(2) Trade Outreach Veterans Grants are awarded on a competitive basis pursuant to a process that is initiated when the Bureau of Labor and Industries issues a solicitation. The solicitation will request grant submissions that provide an approach to accomplishing one or more of the following objectives:

(a) Inform Veterans: Making information about registered apprenticeship programs broadly available to Oregonians who have served as veterans;

(b) Connect Veterans: Investing in Oregon’s veterans by connecting them to apprenticeship opportunities to pursue meaningful careers through training as registered apprentices;

(c) Prepare Veterans: The preparation of veterans to meet minimum qualifications and effectively participate in apprentice selection procedures;

(d) Support Veterans: The strengthening of veterans as registered apprentices by providing support through such means as coaching, mentoring, information and referral services, and small financial supports designed to improve retention to journey worker status.

History

Statutory/Other Authority: OL CH. 528 (2019)
Statutes/Other Implemented: OL CH. 528 (2019)
BLI 18-2019, adopt filed 11/27/2019, effective 01/01/2020

Or. Admin. R. 839-012-0615 Applications and Eligibility

(1) Applications must be submitted in the form required, and by a deadline set, in the solicitation.

(2) Applicants for Trade Outreach Veterans Grants must be an Oregon Trade Union or Trade Association.

(3) Applicants shall be permitted to partner with Community Based Organizations.

History

Statutory/Other Authority: OL CH. 528 (2019)
Statutes/Other Implemented: OL CH. 528 (2019)
BLI 18-2019, adopt filed 11/27/2019, effective 01/01/2020

Or. Admin. R. 839-012-0635 Evaluation Criteria

Trade Outreach Veterans Grant applications are evaluated according to how they address the themes described in OAR 839-011-0610(1). Additional evaluation criteria include:

(1) Significance of the activity or the project, including the quality of the organization(s), structures, apprenticeship and training programs, or services that will be involved;

(2) The potential to broaden or deepen veteran knowledge, understanding, appreciation of, and access to Apprenticeship Opportunities;

(3) The appropriateness of the budget, the quality and clarity of the project goals and design, the resources involved, and the qualifications of the project's personnel;

(4) Evidence of sound fiscal management;

(5) Evidence of public or private matching funds or in-kind services;

(6) The process by which the project will be evaluated and plans in place to sustain or maintain the activity or project, if appropriate, following the period of the grant.

History

Statutory/Other Authority: OL CH. 528 (2019)
Statutes/Other Implemented: OL CH. 528 (2019)
BLI 18-2019, adopt filed 11/27/2019, effective 01/01/2020

Or. Admin. R. 839-012-0645 Use of Grant Funds

(1) Trades Outreach Veterans Grant funds must be used to provide one or more of the following services:

(a) Inform veterans in Oregon about apprenticeship opportunities available to them;

(b) Connect veterans in Oregon with registered apprenticeship programs that will provide them with training to qualify for meaningful careers with living wages;

(c) Prepare veterans to apply for registered apprenticeship programs of their choice and effectively participate in the selection procedure, including any exceptions for which they may qualify; or

(d) Support veterans in Oregon who become registered apprentices to improve the likelihood that they will complete the requirements of a registered apprenticeship and advance to journey worker status.

(2) Trades Outreach Veterans Grant funds may not be used for:

(a) Indirect costs;

(b) Tuition assistance or scholarships apprenticeship costs;

(d) Grants to offset previous project deficits; and

(e) Events whose primary focus is to raise funds for a purpose outside the scope of OAR 839-011-0610.

History

Statutory/Other Authority: OL CH. 528 (2019)
Statutes/Other Implemented: OL CH. 528 (2019)
BLI 18-2019, adopt filed 11/27/2019, effective 01/01/2020

Or. Admin. R. 839-012-0655 Grant Awards Process; Administration of Grants

(1) Applications submitted to the Bureau of Labor and Industries pursuant to its solicitation will be reviewed by staff to determine whether the applicant is eligible to receive a Trades Outreach Veterans Grant. Ineligible applications will be returned to applicants with an explanation.

(2) Applications from applicants eligible to receive a Trades Outreach Veterans Grant will be reviewed by a panel of workforce professionals designated by the Apprenticeship and Training Division who will make funding recommendations to the Apprenticeship and Training Division.

(3) The Apprenticeship and Training Division evaluates qualified proposals and determines final grant awards. Announcement of grants are made as provided in the solicitation.

(4) Grants are administered by the Apprenticeship and Training Division of the Bureau of Labor and Industries.

History

Statutory/Other Authority: OL CH. 528 (2019)
Statutes/Other Implemented: OL CH. 528 (2019)
BLI 18-2019, adopt filed 11/27/2019, effective 01/01/2020

Or. Admin. R. 839-012-0675 Grant Contract; Final Reports

Grant recipients are required to enter into a contract with the Apprenticeship and Training Division of the Bureau of Labor and Industries. Pursuant to that contract, each grant recipient must complete a final expense and narrative report. Final financial reports must reflect the application budget as originally submitted unless the budget is revised with the approval of the Apprenticeship and Training Division or its designee. Grant reports must be submitted within thirty (30) days of the end date of the grant period.

History

Statutory/Other Authority: OL CH. 528 (2019)
Statutes/Other Implemented: OL CH. 528 (2019)
BLI 18-2019, adopt filed 11/27/2019, effective 01/01/2020

Division 14 REGULATION OF FARMWORKER CAMP OPERATORS

Or. Admin. R. 839-014-0020 Notice of Proposed Rules

Prior to the permanent adoption, amendment or repeal of any rule relating to farm-worker camp operations and registration of farm worker camps, the Bureau of Labor and Industries shall give notice of the intended action as required in OAR 839-002-0002.

History

Statutory/Other Authority: ORS 183.335, 651.060(4) & 658.705 - 658.850
Statutes/Other Implemented: ORS 658.705 - 658.850
BLI 9-2004, f. 7-26-04, cert. ef. 7-27-04
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0035 Definitions for Regulations Pertaining to Farmworker Camp Operations

As used in ORS 658.705 to 658.850, and in these rules unless the context requires otherwise:

(1) “Applicant” means an individual who proposes to operate a farmworker camp and who is applying for a camp operator indorsement.

(2) “Bureau” means the Bureau of Labor and Industries.

(3) “Commissioner” means the Commissioner of the Bureau of Labor and Industries or designee.

(4) “Director” means the Director of the Department of Consumer and Business Services.

(5) “Division” means the Oregon Occupational Safety and Health Division.

(6) “Farm labor contractor” has the same meaning as that provided in ORS 658.405 and the rules adopted thereunder.

(7) “Farm-worker camp” means any place or area of land where sleeping places, mobile home sites or other housing is provided by a farmer, farm labor contractor, employer or any other person in connection with the recruitment or employment of workers to work in the production and harvesting of farm crops or in the reforestation of lands, as described in ORS 658.405. “Farm-worker camp” does not include:

(a) A single, isolated dwelling occupied solely by members of the same family, or by five or fewer unrelated individuals; or

(b) A hotel or motel which provides housing with the same characteristics on a commercial basis to the general public on the same terms and conditions as housing is provided to such workers.

(8) “Farm-worker camp operator,” except as otherwise provided in these rules, means any person who operates a farmworker camp and who is required to obtain a farm labor contractor license with an indorsement as provided in ORS 658.730. In determining who is a farmworker camp operator, the Bureau will consider the farm worker camp operator to be the person who, as a practical matter, exercises the ultimate right to determine terms and conditions of occupancy of the camp and who controls its maintenance and operation.

(9) “Forestation or reforestation of lands” includes, but is not limited to:

(a) The planting, transplanting, tubing, precommercial thinning, and thinning of trees and seedlings;

(b) The clearing, piling and disposal of brush and slash; and

(c) Other activities related to the forestation or reforestation of lands, including, but not limited to, tree shading, pinning, tagging, or staking; fire trail construction and maintenance; slash burning and mop up; mulching of tree seedlings; and any activity related to the growth of trees and tree seedlings and the disposal of debris from the land.

(10) “Indorsee” means a farm labor contractor licensed under ORS 658.410 who has obtained a camp indorsement.

(11) “Production and harvesting of farm products” includes, but is not limited to, the cultivation and tillage of the soil, the production, cultivation, growing and harvesting or any agricultural commodity and the preparation for and delivery to market of any such commodity.

(12) “Substantial ownership interest in real property” means at least a thirty percent share of the interest in the property.

(13) “Violation” means a transgression of any statute or rule, or any part thereof and includes both acts and omissions.

(14) “Worker” has the same meaning as that which appears in OAR 839-015-0004(13).

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0040 Character, Competence and Reliability

The character, competence and reliability contemplated by ORS 658.705 to 658.850 and these rules includes, but is not limited to, consideration of:

(1) A person’s record of conduct in relations with workers, farmers and others with whom the person conducts business.

(2) A person’s reliability in adhering to the terms and conditions of any contract or agreement between the person and those with whom the person conducts business.

(3) A person’s timeliness in paying all debts owed including advances and wages.

(4) Whether a person has unsatisfied judgments or felony convictions.

(5) Whether a person has been refused a bond.

(6) Whether a person has paid worker’s compensation insurance premium payments when due.

(7) Whether a person has violated any provision of ORS 658.405 to 658.850 or the rules adopted thereunder.

(8) Whether a person has employed an agent who has had a farm or forest labor contractor license denied, suspended, revoked or not renewed or who has otherwise violated any provisions of ORS 658.405 to 658.485.

(9) Whether a person has failed to notify the Bureau of any change in the circumstances under which a license was issued.

(10) Whether a person has repeatedly denied access to a farm worker camp to representatives of the Wage and Hour Division who are seeking access in connection with the enforcement of ORS Chapter 658.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0050 Camp Operators Must Obtain Indorsement

Farm-worker camp operators must obtain a farm labor contractor’s license pursuant to ORS 658.405 to 658.475 and the rules adopted thereunder, unless otherwise exempt pursuant to OAR 839-014-0060. Additionally, farmworker camp operators must obtain a special indorsement from the Bureau authorizing the operator to act as such.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0060 Exemptions from Farmworker Camp Licensing Requirements

(1) A building or other structure is not considered to be a farm-worker camp if it is:

(a) A single dwelling place, isolated and independent of other dwelling places, which is occupied solely by members of the same family;

(b) A single dwelling place, isolated and independent of other dwelling places, which is occupied by five or fewer persons who are unrelated to one another; or

(c) A hotel or motel provided that the housing provided to workers is provided under the same terms and conditions that is offered on a commercial basis to the general public.

(2) An operator of a farm-worker camp is not required to obtain the farm-worker camp operator's indorsement when the operator has a substantial ownership interest in the real property on which the camp is located or has any form of ownership interest in the business organization that operates the camp or is related by blood or marriage to a person with such interests provided:

(a) The property on which the camp is located is subject to a special farm use assessment under ORS 308A.050 to 308A.128; and, provided further,

(b) The business organization which operates the camp filed an income tax return reporting farm activity in the preceding tax year.

(3) Permanent employees of the farm-worker camp operator are not required to obtain a farm-worker camp operator indorsement, provided they have no financial interest in the camp or the business other than the wages paid to the employee.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.730(1) & 962
Statutes/Other Implemented: ORS 658.705(7) & 658.715(1)(b) - 658.715(2)
BLI 30-2005, f. 12-29-05, cert. ef. 1-1-06
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0075 Issuance of Indorsement

(1) An indorsement may be issued only as follows:

(a) To an individual licensed as a farm/forest labor contractor proposing to operate as a sole proprietor under the individual’s own name or under the individual’s own name and an assumed business name registered with the Corporation Division;

(b) To an individual licensed as a farm/forest labor contractor proposing to operate as a partner in a partnership under the individuals’ own names or under the individuals’ own names and the assumed partnership business name registered with the Corporation Division;

(c) To a majority shareholder or majority shareholders of a corporation or cooperative corporation authorized to do business in Oregon by the Corporation Division and licensed as a farm/forest labor contractor.

(2) No indorsement may be issued to an individual proposing to do business as a partner in a partnership unless all the partners who will operate a farmworker camp are also issued indorsements.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0085 Use of Certain Agents Prohibited/Evidence of Sham or Subterfuge

(1) The bureau may refuse to issue indorsements to any person who proposes to use any individual, partnership, association, corporation or other entity as such persons’ agent for the performance of any activity specified in ORS 658.405(1), when the proposed agent has, within the preceding three years, violated any section of ORS 658.405 to 658.485.

(2) The bureau will regard as prima facie evidence of sham or subterfuge mere changes in business form subsequent to denial, suspension, revocation or refusal to renew a license, where a relative by blood or marriage, or a person presently employed in an occupation, other than an occupation with a licensed farm or forest labor contractor, makes application, including a renewal application, for a license and indorsement if one or more of the following factors are present:

(a) A lack of adequate consideration or value given for the former business or its property;

(b) The use of the same real property, fixtures or equipment or use of a similar business name of the former business;

(c) The time period elapsed between the bureau’s denial, suspension, revocation or refusal to renew a license and application by the new business for a license is less than one year;

(d) A person financially interested in any capacity in the former business has a financial interest in any capacity in the new business;

(e) The amount of capitalization is inadequate to meet current obligations of the new business; or

(f) The formalities of a partnership or a corporation are disregarded by the new business when such business is a partnership or corporation.

(3) When the factors outlined in section (2) of this rule are present, it shall be the burden of the applicant to provide evidence to the bureau clearly indicating that such business form is not sham or subterfuge.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0090 Procedure for Obtaining an Indorsement

An indorsement may be applied for as follows:

(1) File a completed application on forms supplied by the Bureau. In the case of a partnership or corporation, each partner, majority shareholder or major shareholders must complete and file a separate application form.

(2) Pay the appropriate fees at the time the application is filed. In the case of a partnership, each partner must pay the appropriate fee.

(3) File with the application proof of financial ability as provided for in ORS 658.415 or 658.735, whichever is greater, or a greater amount if required by the Commissioner, on forms supplied by the Bureau. In the case of a partnership, each partner must file such proof. Such proof may be a corporate surety bond, or a deposit in cash or negotiable securities acceptable to the Commissioner.

(4) File any assumed business name and corporate name with the Corporation Division and submit proof of such filing with the application.

(5) If a corporation, show proof of being authorized to do business in Oregon.

History

Statutory/Other Authority: ORS 658.407, ORS 658.415, ORS 658.730, ORS 658.735 & ORS 658.820
Statutes/Other Implemented: ORS 658.407, ORS 658.415, ORS 658.730, ORS 658.735 & ORS 658.820
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BL 1-1994, f. & cert. ef. 5-3-94
BL 10-1993(Temp), f. 10-29-93, cert. ef. 11-3-93
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0100 Procedure for Obtaining a Duplicate Indorsement

In the event a license with the indorsement is lost or stolen, the licensee shall submit a written request for a duplicate license and indorsement. The licensee shall state the reasons for the request and the circumstances of the loss or theft. The replacement license will indicate the word "duplicate" on the license. The written request shall be made to the Bureau of Labor and Industries, Wage and Hour Division, Farm Labor Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BLI 30-2005, f. 12-29-05, cert. ef. 1-1-06
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0105 Procedure for Renewing Indorsement

(1) Indorsement shall expire with the farm/forest contractor's license each year unless sooner revoked.

(2) Applications for renewal shall be made 30 days before the expiration date of the license by filing a renewal application, paying the appropriate fees, and filing proof of financial ability to pay wages and certain advances.

(3) Applications, fees and other forms and documents must be filed with the Bureau of Labor and Industries, Wage and Hour Division, Farm Labor Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BLI 30-2005, f. 12-29-05, cert. ef. 1-1-06
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0170 Scope of Examinations

(1) The License Unit shall provide written examinations as the commissioner deems necessary.

(2) The License Unit shall provide all materials required for the examinations except hand-held calculators or slide rules that may be used by the applicant.

(3) All examinations shall be “closed book.”

(4) A written examination shall not exceed three hours.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0175 Examination Requirements

(1) Applicants may schedule an appointment with staff or designated proctors throughout the state to take an examination after receipt of a letter of authorization from the License Unit.

(2) Once an applicant is authorized for examination, the applicant has 30 days in which to schedule an appointment to take the examination. Applicants shall take the examination within 45 days from the date of authorization.

(3) To reschedule an examination after the 45 day examination period or to change the site of the examination shall require submission of a new request.

(4) Except for hand-held calculators, and interpreters, no applicant may use any other aids or notes, or receive help from another person during an examination. Violation of this rule shall result in the examination being invalidated and treated as failed.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0178 Grading of Examinations/Notice of Score

(1) The passing score for each examination shall be 75 percent.

(2) The License Unit shall notify the applicant by mail of the examination scores.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0180 Review of Examinations

(1) Applicants failing to pass an examination may schedule an appointment with the License Unit to review the examination at a site designated by the License Unit.

(2) Requests to review failed examinations shall be scheduled within 30 days from notification of scores.

(3) Applicants shall show picture identification before examination review.

(4) Applicants reviewing failed examinations shall not be accompanied by another person during the review or retain notes taken during the review.

(5) Examinations may be reviewed only by the applicant and/or any person who is authorized by the applicant, in writing, to do so.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0185 Re-Examination

(1) Applicants who fail an examination shall wait the following time periods before retaking the examination:

(a) First failure: seven days;

(b) Second failure: 14 days;

(d) Any subsequent failures: 60 days.

(2) Re-examinations shall not be scheduled sooner than seven days after review of a failed examination.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.730(1) & 962
Statutes/Other Implemented: ORS 658.730(1)(b)
BL 9-1990, f. 5-25-90, cert. ef. 6-1-90
BL 6-1990(Temp), f. 4-18-90, cert. ef. 4-17-90
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0190 Substitution of Oregon Examination

(1) The commissioner may recognize national or state examinations for licensing if taken and passed within the last 12 months.

(2) A specific examination that may be recognized in lieu of the Oregon examinations is the Farm Labor Contractor examination for the State of California.

(3) Independent verification of test results from the testing authority is required.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0195 Alternative Methods of Examination

(1) An applicant for whom English is a second language may bring an interpreter to the examination to translate the examination questions. An interpreter may not assist an applicant in answering any question, but may translate the answers.

(2) Alternative methods of examination will be provided upon written request.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.730(1) & 962
Statutes/Other Implemented: ORS 658.730(1)(b)
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0200 Proof Required/Forms to Be Used for Bonds and Deposits

(1) Every applicant for a farm-worker camp operator's indorsement shall, in lieu of the bond or deposit required by ORS 658.415 and unless otherwise exempt, submit a bond or deposit with the application and continually maintain a bond or deposit approved by the commissioner. The applicant may make a deposit in cash or negotiable securities acceptable to the commissioner in lieu of the bond. The bond or deposit shall be conditioned upon:

(a) All sums legally owing to any person when the indorsee or the indorsee's agents have received such sums;

(b) All damages occasioned to any person by reason of any material misrepresentation, fraud, deceit or other unlawful act or omission by the indorsee, or the indorsee's agents or employees acting within the scope of their employment; and

(2) The bond referred to in section (1) of this rule shall be a properly executed corporate surety bond as evidenced by the completion of Form WH-157.

(3) The forms are available upon request from: Bureau of Labor and Industries, Wage and Hour Division, Farm Labor Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BLI 30-2005, f. 12-29-05, cert. ef. 1-1-06
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0210 Amount of Bond or Deposit to Be Filed

(1) The amount of the bond or deposit referred to in OAR 839-014-0200 is $15,000, unless a greater amount is required by ORS 658.415 or by the Commissioner. The amount of the bond or deposit must be continually maintained as long as the contractor is required to be licensed under ORS 658.405 to 658.475, and is indorsed to operate a farmworker camp.

(2) When an applicant for a license has been required to satisfy a court-ordered Judgment or a Final Order issued by a governmental agency, the Commissioner or the Commissioner’s designee may require the applicant to provide a bond or deposit of up to three times the amount required by ORS 658.415 or 658.735, whichever is greater, as a condition of licensure. In such case, the Commissioner or Commissioner’s designee will determine the actual amount of the bond or deposit by considering the following factors:

(a) The amount of the Judgment or Order that was satisfied;

(b) The magnitude and seriousness of the violation or violations which lead to the Judgment or Order;

(c) The past history of the applicant in taking all necessary measures to prevent or correct violations of statutes or rules;

(d) Prior violations, if any, of statutes or rules;

(e) Other matters which indicate to the Commissioner or Commissioner’s designee that the applicant is not likely to violate ORS 658.415(3) in the future.

History

Statutory/Other Authority: ORS 658.407(3), 658.415(14) & 658.820(1)
Statutes/Other Implemented: ORS 658.415(3) & 658.735(1)
BL 1-1994, f. & cert. ef. 5-3-94
BL 10-1993(Temp), f. 10-29-93, cert. ef. 11-3-93
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0220 Deposit in Cash or Negotiable Securities

As used in ORS 658.735 and in these rules “a deposit in cash or negotiable securities” means a single financial instrument which yields no less than the amount required pursuant to OAR 839-014-0210 in cash immediately upon demand. If the deposit is one which is subject to a penalty for early withdrawal, then the deposit must be in an amount sufficient to satisfy the penalty and yield no less than the amount required under 839-014-0210 in cash.

History

Statutory/Other Authority: ORS 658.407(3), 658.415(14) & 658.820(1)
Statutes/Other Implemented: ORS 658.735(1)
BL 1-1994, f. & cert. ef. 5-3-94
BL 10-1993(Temp), f. 10-29-93, cert. ef. 11-3-93
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0250 Protesting the Issuance of an Indorsement

Any individual may protest the issuance of an indorsement to any applicant for such an indorsement. The protest may be made at any time after the indorsement is actually issued as well as at any time prior to the issuance of the indorsement.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.730(1) & 962
Statutes/Other Implemented: ORS 658.730(1)
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0260 Procedure for Filing Protest

(1) Any individual desiring to protest the issuance of an indorsement must file the protest in writing with the Bureau of Labor and Industries.

(2) The written protest must contain the following information:

(a) Name, address and phone number of the individual filing the protest;

(b) Date of the protest;

(d) A complete statement of the facts, circumstances and other reasons for the protest. The statement may include alleged violations, approximate dates of alleged violations, names of witnesses, if any, and any documents which support the allegations; and

(e) The signature of the individual making the protest.

History

Statutory/Other Authority: ORS 658.420
Statutes/Other Implemented: ORS 658.420 & ORS 658.705 - 658.850
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0310 Records Required to Be Made and Maintained by Farmworker Camp Operator

(1) All farmworker camp operators shall make and maintain for a period of three years records necessary to determine their compliance with ORS 658.705 to 658.850 and these rules.

(2) Records necessary to determine compliance with ORS 658.705 to 658.850 and these rules include, but are not limited to records of:

(a) The names and permanent home mailing addresses of each resident of the farmworker camp;

(b) The dates each resident resided in the camp;

(d) Records of any inspection or citations of the camp issued by any agency of government responsible for health, safety or sanitation inspections, and correspondence with any such agency;

(e) Notices posted at the camp to comply with these rules;

(f) Any notices and rules for access to an operating telephone, pursuant to OAR 839-014-0620;

(g) Other required records as determined by the commissioner.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0320 Records Availability

A farmworker camp operator shall make available to representatives of the Wage and Hour Division records necessary to determine compliance with ORS 658.405 to 658.475, 658.705 to 658.850 and these rules. Records shall be made available upon the request of such representatives.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0350 Camp Operator to Post Notice of Compliance with Bond Requirements

(1) Every farmworker camp operator who is required to furnish a surety bond, or make a deposit in lieu thereof, shall keep conspicuously posted in an exterior area of the camp which is open to all residents and in a manner easily visible to occupants of and visitors to the camp, a notice of compliance with bond requirements in both English and any other language used by the camp operator to communicate with workers.

(2) The notice shall state that the contractor has complied with ORS 658.735, by obtaining a corporate surety bond or by making a deposit with the commissioner. The notice shall indicate the amount of the bond or deposit is conditioned on the payment of:

(a) All sums legally owing to any person when the indorsee or the indorsee’s agents have received such sums;

(b) All damages occasioned to any person by reason of any material misrepresentation, fraud, deceit or other unlawful act or omission by the indorsee, or the indorsee’s agents or employees acting within the scope of their employment; and

(3) The notice shall contain the name and Oregon address of the surety on the bond, if applicable, or the address of the bureau when a deposit is made with the commissioner.

(4) The notice shall also indicate the expiration date of the bond or deposit.

(5) The commissioner has prepared a notice (Form LU-121) in English and Spanish which complies with this rule. Contractors may use any form or notice so long as it contains all the elements of Form LU-121.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0360 Camp Operator to Post Indorsement

(1) Every farmworker camp operator shall keep conspicuously posted a copy of the license, with the appropriate indorsement affixed thereto, in an exterior area of the camp easily accessible to camp occupants. The license must be posted in a manner that is easily visible to the occupants of and visitors to the camp.

(2) The license form to be posted shall be provided to the farmworker camp operator by the Bureau at the time the licensee receives the indorsement.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.730(1) & 962
Statutes/Other Implemented: ORS 658.730(2)
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0380 Action Against the Bond or Deposit

(1) Any person entitled to recover sums received by the indorsee or the indorsee's agents or damages occasioned to the person by reason of any material misrepresentation, fraud, deceit or other unlawful act or omission by the indorsee or the indorsee's agents or employees acting within the scope of their employment, or any employee of the indorsee who is legally owed any sum has a right of action against the surety on the bond or deposit with the commissioner. The individual may exercise this right or may assign this right to another.

(2) The action on the bond or on the deposit held by the commissioner may not be joined in a suit or action on the bond or against the commissioner brought for any other claim.

(3) Any person seeking to recover on the bond or from the deposit with the commissioner must first establish the farm-worker camp operator liability. The liability may be established in any of the following ways:

(a) A judgment of the court; or

(b) A final administrative order issued pursuant to statute or rule; or

(d) Other satisfactory evidence of liability as may be shown which establishes the liability.

(4) Claims against the bond or deposit will not be paid unless, within six months of the end of the license year to which the bond or deposit applies, the claimant or claimant's assignee gives notice of the claim by certified mail to the surety or the commissioner.

(5) Any claim or notice of claim filed pursuant to a claimant's right of action must be filed as follows:

(a) If the filing is against a surety bond, the claim or notice must be filed with the surety. The name and address of the surety may be obtained from the Bureau of Labor and Industries, Wage and Hour Division, Farm Labor Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305;

(b) If the filing is against a deposit held by the commissioner, the claim or notice must be filed with the Bureau of Labor and Industries, Wage and Hour Division, Farm Labor Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305;

(6) The commissioner and the surety shall make payments on the bond or deposit in the following priority:

(a) Wage claims;

(b) Payments on all sums legally owing to any employee of the indorsee;

(d) Payments on all damages occasioned to any person by reason of any material misrepresentation, fraud, deceit or other unlawful act or omission by the indorsee or the indorsee's agents or employees acting within the scope of their employment;

(e) If there are insufficient funds to pay all sums, in accordance with the priority of payment, in full, such sums will be paid in part.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BLI 30-2005, f. 12-29-05, cert. ef. 1-1-06
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0400 Definitions for Civil Penalties

As used in OAR 839-014-0400 to 839-014-0450 “knowingly” or “willfully” means action undertaken with actual knowledge of a thing to be done or omitted or action undertaken by a person who should have known the thing to be done or omitted. A person “should have known the thing to be done or omitted” if the person has knowledge of facts or circumstances which, with reasonably diligent inquiry, would place the person on notice of the thing to be done or omitted to be done. A person acts knowingly or willfully if the person has the means to inform himself or herself but elects not to do so. For purposes of this rule, the farmworker camp operator or any person acting as such is presumed to know the affairs of their business operations relating to farmworker camp operations.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.820(1) & 962
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0410 Violations Separate and Distinct

Each violation is a separate and distinct offense. In the case of continuing violations, each day’s continuance is a separate and distinct violation.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.820(1) & 962
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0420 Violations for Which a Civil Penalty May Be Imposed

Pursuant to ORS 658.850, the commissioner may impose a civil penalty for any of the following violations:

(1) Operating a farmworker camp without first having obtained a farm labor contractor’s license in violation of ORS 658.715;

(2) Operating a farmworker camp without first having obtained an indorsement to do so in violation of ORS 658.715;

(3) Operating a farmworker camp which is not registered with the Department of Consumer and Business Services in violation of ORS 658.755(2)(a);

(4) Failing to post the indorsement in violation of ORS 658.730(2);

(5) Failing to continually maintain a bond and security behind the bond in violation of ORS 658.735;

(6) Failing to post a notice of compliance with ORS 658.735, in violation of ORS 658.735(8);

(7) Failing to comply with the following provisions of ORS 658.755(1), as follows:

(a) ORS 658.405 to 658.485; or

(b) ORS Chapter 654 and the rules adopted thereunder, provided the division has determined that there has been a failure to comply with said statute and rules; or

(d) ORS 659A.250 to 659A.262 (access to farmworker camps); or

(e) Pay or distribute promptly, when due, to individuals entitled thereto, money or other things of value as required by ORS 658.755(1)(e); or

(f) The terms and provisions of all legal and valid contracts or agreements as required by ORS 658.755(1)(f); or

(8) Willfully making or causing to be made to any person any false, fraudulent or misleading representation concerning the terms and conditions of occupancy in the farmworker camp in violation of ORS 658.755(2)(c);

(9) Making any material misrepresentation, false statement or willful concealment in the application for an indorsement in violation of ORS 658.755(2)(b);

(10) Knowingly publishing or circulating any false or misleading information concerning the terms, conditions or existence of housing at any place in violation of ORS 658.755(2)(d);

(11) Knowingly publishing or circulating any false or misleading information concerning the terms conditions or existence of employment at any place in violation of ORS 658.755(2)(d);

(12) Assisting a person who is not entitled to operate a farmworker camp without a farm labor contractor’s license with an indorsement as required by ORS 658.715 to act in violation of any of the following statutes, in violation of ORS 658.755(2)(e):

(a) ORS 658.705 to 658.850; or

(b) ORS 658.405 to 658.485; or

(13) By force, intimidation or threat in any manner whatsoever, inducing any occupant of the farmworker camp to give up any part of the compensation the occupant is entitled to by contract or by any state or federal wage payment law in violation of ORS 658.755(2)(f);

(14) By force, intimidation or threat in any manner whatsoever, restraining any person who wishes to leave the camp from doing so in violation of ORS 658.755(2)(g);

(15) Discharging, evicting or in any other manner discriminating against any person in violation of ORS 658.760; and

(16) Failing to provide housing, without charge, when required by ORS 658.790, pursuant to the provisions of said law.

History

Statutory/Other Authority: ORS 658.407(3), 658.415(14) & 658.820
Statutes/Other Implemented: ORS 658.705 - 658.850
BLI 10-2018, minor correction filed 04/02/2018, effective 04/02/2018
BL 1-1996, f. & cert. ef. 1-9-96
BL 1-1994, f. & cert. ef. 5-3-94
BL 10-1993(Temp), f. 10-29-93, cert. ef. 11-3-93
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0430 Criteria for Determining a Civil Penalty

(1) The commissioner may consider the following mitigating and aggravating circumstances when determining the amount of any civil penalty to be imposed, and shall cite those the Commissioner finds to be appropriate:

(a) The history of the farmworker camp operator or other person in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(d) Whether the farmworker camp operator or other person knew or should have known of the violation.

(2) It shall be the responsibility of the farmworker camp operator or other person to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be imposed.

(3) In arriving at the actual amount of the civil penalty, the commissioner shall consider the amount of money or valuables, if any, taken from camp occupants by the farmworker camp operator or other person in violation of any statute or rule.

(4) Notwithstanding any other section of this rule, the commissioner shall consider all mitigating circumstances presented by the farmworker camp operator or other person for the purpose of reducing the amount of the civil penalty to be imposed.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0440 Schedule of Civil Penalties

(1) The civil penalty for any one violation shall not exceed $2,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) For purposes of this rule, “repeated violations” means violations of a provision of law or rule which have been violated on more than one contract within two years of the date of the most recent violation.

(3) When the commissioner determines to impose a civil penalty for acting as a farmworker camp operator without a valid license indorsement, the minimum civil penalty shall be as follows:

(a) $500 for the first violation;

(b) $1,000 for the first repeated violation;

(4) The civil penalty for all other violations shall be set in accordance with the determinations and considerations referred to in OAR 839-014-0430.

(5) The civil penalties set out in this rule shall be in addition to any other penalty imposed by law or rule.

History

Statutory/Other Authority: ORS 658.820
Statutes/Other Implemented: ORS 658.850
BL 5-1996, f. 6-14-96, cert. ef. 7-1-96
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0450 Suspension of Civil Penalty

(1) The commissioner may suspend any civil penalty issued pursuant to ORS 658.850(3), if the matter for which the penalty was issued was corrected within 15 days of the time the operator received notice of the violation for which the civil penalty was issued. Persons desiring to have the civil penalty suspended may petition the commissioner. The petition shall contain each and every reason for the request and shall be submitted in an answer filed with the person’s request for a hearing on the civil penalty action.

(2) The commissioner shall grant or deny the petition and in so doing shall consider the following factors:

(a) The magnitude and seriousness or the violation or violations which led to the civil penalty;

(b) The petitioner’s past history in taking all necessary measures to prevent or correct violations of statutes or rules;

(d) Other matters which indicate to the commissioner that the petitioner is not likely to violate ORS 658.705 to 658.850 and these rules in the future.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0470 Denying, Suspending, Revoking or Refusing to Renew or Issue a License Indorsement

(1) The commissioner may deny, refuse to issue or renew, suspend or revoke a license indorsement if:

(a) The conditions under which the indorsement was issued have changed or no longer exist;

(b) The indorsee’s character, competence or reliability makes the indorsee unfit to act as a farmworker camp operator; or

(c) The applicant or operator makes any material misrepresentation, false statement or willful concealment on the application for a license.

(d) The indorsee discharges, evicts or in any other manner discriminates against any person in violation of ORS 658.760.

(2) The following actions of an indorsee demonstrate that the indorsee’s character, competence or reliability make the licensee unfit to act as a farmworker camp operator:

(a) Operation of a farmworker camp without a valid indorsement;

(b) Operation of a farmworker camp without a valid registration certificate when the contractor is required to obtain and maintain a valid registration certificate;

(d) Failing to comply with ORS 658.405 to 658.485;

(e) Failing to comply with building codes or health and safety laws to the extent that an authority responsible for the enforcement of such codes and laws has determined the farmworker camp to be unfit for inhabitation;

(f) Violating any provision of ORS 658.755(2); or

(g) Failing to provide lodging as provided for in ORS 658.790.

(3) When an application is denied or an indorsement is revoked or when the commissioner refuses to issue or renew an indorsement the commissioner will not issue the applicant or indorsee an indorsement for a period of three years from the date of the denial, refusal to issue or renew or revocation of the indorsement.

(4) Notwithstanding section (3) of this rule, the commissioner, for good cause shown, may issue an indorsement to a farmworker camp operator whose application has been previously denied or whose indorsement was not issued, renewed or was revoked before the expiration of three years, provided:

(a) The applicant or indorsee submits a petition explaining each and every reason why the applicant or indorsee should receive an indorsement; and

(b) The applicant or indorsee files a completed application with the petition and pays the appropriate fees.

(5) As used in section (4) of this rule, “good cause” means an excusable mistake or a circumstance beyond a person’s control.

(6) The commissioner shall grant or deny the petition referred to in section (5) of this rule, and in so doing shall consider the following factors:

(a) The magnitude and seriousness of the violation or violations which led to the denial, refusal to issue or renew or revocation of the indorsement;

(b) The petitioner’s past history in taking all necessary measures to prevent or correct violations of statutes or rules;

(d) Other matters which indicate to the commissioner that the petitioner is not likely to violate ORS 658.705 to 658.850 and these rules in the future.

(7) Nothing in this rule shall preclude the commissioner from imposing a civil penalty in lieu of denying or refusing to issue or renew an application or in lieu of suspension or revocation of an indorsement.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0500 Immediate Suspension or Refusal to Renew a License Indorsement; Notice of Opportunity for Hearing; Service

(1) If the bureau finds there is a serious danger to the public health or safety, it may immediately suspend or it may refuse to renew a license indorsement. For purposes of this rule, such a decision is referred to as an emergency suspension order. An emergency suspension order is a written order which is not a final order under ORS Chapter 183. An emergency suspension order is not an order in a contested case and may be issued without notice or an opportunity for a hearing as required for contested cases under ORS Chapter 183.

(2)(a) Except where the danger to the public health or safety is so imminent that opportunity for the licensee to object under section (3) of this rule is not practicable as determined by the bureau, the bureau shall provide the licensee with notice and opportunity to object prior to issuing the emergency suspension order. For purposes of this rule, this notice is referred to as a pre-suspension notice;

(b) The pre-suspension notice shall:

(A) Specify the acts of the licensee and the evidence available to the bureau which would be grounds for revocation, suspension or refusal to renew the license under the bureau’s usual procedures;

(B) Specify the reasons why the acts of the licensee seriously endanger the public’s health or safety;

(C) Identify a person in the bureau authorized to issue the emergency suspension order or to make recommendations regarding the issuance of the emergency suspension order.

(c) The bureau may provide the pre-suspension notice to the licensee in writing, orally by telephone or in person, or by any other means available to the bureau;

(d) Where the pre-suspension notice is given orally, the bureau subsequently shall provide the licensee with a written copy of the notice.

(3) Following the pre-suspension notice, the bureau shall provide the licensee an immediate opportunity to object to the bureau’s specifications provided in the pre-suspension notice before a person authorized to issue the emergency suspension order or to make recommendations regarding the issuance of the emergency suspension order.

(4)(a) When the bureau issues the emergency suspension order, the bureau shall serve the order on the licensee either personally or by registered or certified mail;

(b) The order shall include the following statements:

(A) Those required under ORS 183.415(2) and (3);

(B) That the licensee has the right to demand a hearing to be held as soon as practicable to contest the emergency suspension order;

(C) That if the demand is not received by the bureau within 90 days of the date of notice of the emergency suspension order the licensee shall have waived its right to a hearing under ORS Chapter 183;

(D) The effective date of the emergency suspension order;

(E) The specifications noted in subsection (2)(b) of this rule;

(F) That with the agreement of the licensee and the bureau the hearing opportunity on the emergency suspension order may be combined with any other bureau proceeding affecting the license. The procedures for a combined proceeding shall be those applicable to the other proceeding affecting the license.

(5)(a) If timely requested by the licensee pursuant to subsection (4)(b) of this rule, the bureau shall hold a hearing on the emergency suspension order as soon as practicable;

(b) At the hearing, the bureau shall consider the facts and circumstances including, but not limited to:

(A) Whether at the time of issuance of the order there was probable cause to believe from the evidence available to the bureau that there were grounds for revocation, suspension or refusal to renew the license under the bureau’s usual procedure;

(B) Whether the acts or omissions of the licensee pose a serious danger to the public’s health or safety;

(D) Whether the bureau followed the appropriate procedures in issuing the emergency suspension order.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.705 - 658.850
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0600 Definitions for Regulations Pertaining to Employee Access to a Telephone in a Farmworker Camp

As used in ORS 659A.253(3) and in OAR 839-014-0600 to 839-014-0630, unless the context requires otherwise:

(1) “Emergency” means circumstances in which the life, health, safety or property of a person, or of a member of a person’s immediate family, is threatened with imminent harm, and shall include any instance in which a reasonable person would seek the immediate assistance of medical, law enforcement or emergency personnel.

(2) “Farm-worker camp operator” means any person who operates a farmworker camp, notwithstanding the provisions of OAR 839-014-0035(8).

(3) “Operating telephone” means a telephone for the purpose of communicating with persons outside the farmworker camp and over which information may be given and received at the time it is intended to be given or received.

(4) “Owned or controlled” includes sufficient ownership or control to affect the terms and conditions of occupancy of the housing.

(5) “Pay telephone” means a telephone which is operated by use of coins or credit card. “Pay telephone” does not include a telephone normally used by the employer for the employer’s private use.

(6) “Reasonable access” means access to a telephone at any time the employee indicates that an emergency exists and that a telephone is needed to communicate with any person for the purpose of dealing with the emergency. A reasonably accessible telephone must be located at the housing or within one tenth of one mile from the housing.

(7) “Reasonable opportunity for private use” means that workers are provided access to a telephone which can be used by them under circumstances in which their conversation cannot be overheard or monitored by the employer or by any other person, and at times of the day and week when they are not working, and during which they can conduct personal business. If the telephone is not located at the site of the housing, reasonable opportunity for private use includes posting at the housing in view of the workers, in the language used to communicate with the employees, a notice containing directions to the telephone and any conditions on use or availability of the telephone.

History

Statutory/Other Authority: ORS 164, 165, 651 & 658
Statutes/Other Implemented: ORS 659A.250 - 659A.262
BLI 11-2018, minor correction filed 04/02/2018, effective 04/02/2018
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0610 Emergency Access to Telephone

(1) When employees occupy farmworker housing that is owned or controlled by the employer, the employer shall ensure that employees occupying the housing have reasonable access to an operating telephone at any time for emergency use. The telephone may be a pay telephone, at the discretion of the employer.

(2) Employers shall allow employees access to a telephone pursuant to the provisions of this rule, upon request of the employee.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 659A.262(9)
Statutes/Other Implemented: ORS 659A.253(3)
BLI 12-2018, minor correction filed 04/02/2018, effective 04/02/2018
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0620 Other Access to Telephone

(1) When employees occupy housing that is owned or controlled by the employer, the employer shall ensure that employees occupying the housing have reasonable access to an operating telephone for the private use of the employees. The telephone must be located within a two mile radius of the farm worker housing as measured by the most direct route by road or foot path from the housing to the place where the telephone is located.

(2) When the telephone designated by the employer for personal use of the employees is located in the employer’s residence or place of business, the employer may establish reasonable rules for the private use of the telephone by the employees. If the employer establishes such rules, the employer shall post a copy of the rules in a conspicuous place where all occupants can easily view them. The rules established by the employer shall be in English and in the language used by the employer to communicate with the employees.

(3) If a dispute arises regarding the terms of access established by the employer, the or the court if a private action has been filed, shall determine whether the terms of access to the telephone are reasonable.

(4) In making a determination, the commissioner will consider:

(a) Any circumstances presented by the employer in support of the employer’s position;

(b) Any circumstances presented by the employee in support of the employee’s position;

(d) The location of the housing;

(e) Any other relevant information.

History

Statutory/Other Authority: ORS 164, 165, 651 & 658
Statutes/Other Implemented: ORS 659A.250 - 659A.262
BLI 13-2018, minor correction filed 04/02/2018, effective 04/02/2018
BL 1-1996, f. & cert. ef. 1-9-96
BL 2-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-014-0630 Waiver from Telephone Requirement

(1) An employer may request a waiver from the requirements of ORS 659A.253(3) and these rules. Prior to the granting of any request for waiver the employer must demonstrate to the Commissioner that:

(a) Compliance with the statute and rules would constitute an unreasonable hardship for the employer; and

(b) The employer meets any and all requirements of the Division for an emergency medical plan.

(2) Persons desiring a waiver, may apply to the Commissioner on a form prepared by the Bureau. The completed waiver application form shall be submitted to the Wage and Hour Division, Farm Labor Unit, 3865 Wolverine Street, N.E., Bldg. E-1, Salem, OR 97305.

(3) Persons desiring to obtain a waiver must submit, with the application, a copy of the emergency medical plan, which meets the requirements of the rules of the Division.

(4) In determining what circumstances constitute an unreasonable hardship the Commissioner shall consider the following:

(a) Any circumstances presented by the employer in support of the application;

(b) The number of employees occupying the housing;

(d) The length of time the housing is intended to be occupied;

(e) Any other relevant information.

(5) In considering the request for the waiver the Commissioner shall consider:

(a) The history of the employer in complying with the emergency medical plan;

(b) Any other relevant information.

(6) The Commissioner may grant the waiver request when the Commissioner determines that the provisions of section (1) of this rule are met. The Commissioner may specify any conditions on approval of the request. If the request is denied, the Commissioner shall state each reason for the denial.

History

Statutory/Other Authority: ORS 651.060, ORS 659A.262 & ORS 659A.253
Statutes/Other Implemented: ORS 659A.253
BLI 15-2024, amend filed 06/28/2024, effective 07/01/2024
BLI 14-2018, minor correction filed 04/02/2018, effective 04/02/2018
BLI 30-2005, f. 12-29-05, cert. ef. 1-1-06
BL 2-1990, f. & cert. ef. 3-1-90

Division 15 RULES REGULATING LABOR CONTRACTORS

Or. Admin. R. 839-015-0000 Notice of Proposed Rule

Prior to the permanent adoption, amendment or repeal of any rule relating to labor contractors, the Bureau of Labor and Industries shall give notice of the intended action as required in OAR 839-002-0002.

History

Statutory/Other Authority: ORS 183.335, 651.060(4), 658.407(3) & 658.405 - 658.503
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 9-2004, f. 7-26-04, cert. ef. 7-27-04
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84, Renumbered from 839-015-0103
BL 10-1980, f. & ef. 9-19-80

Or. Admin. R. 839-015-0004 Definitions for Regulations Pertaining to Labor Contractors

As used in these rules, unless the context requires otherwise:

(1) "Aggregate bond or deposit" means a bond or deposit posted pursuant to ORS 658.415 by a licensed business entity on behalf of itself and any of its owners or employees who engage in labor contracting activities to secure payment of wages and advances due from the entity or any of its owners or employees arising from their activities as labor contractors, whether incurred on behalf of the entity or any of its owners or employees.

(2) "Agreed remuneration" means compensation of any kind that is agreed upon by a labor contractor and another for the services of such contractor.

(3) "Agricultural association" means a nonprofit or cooperative association of farmers, growers or ranchers that is incorporated under applicable state law and that acts as a farm labor contractor solely on behalf of members of the association.

(4) "Application of big game repellent by contract crew" means work performed by workers who are recruited, solicited, supplied or employed by a person who has contracted to supply a crew of workers to apply big game repellent.

(5) "Bureau" means the Bureau of Labor and Industries.

(6) "Commissioner" means the Commissioner of the Bureau of Labor and Industries, or designee.

(7) “Construction labor contractor” means any person that:

(a) For an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers to perform labor for another in construction;

(b) For an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers on behalf of an employer engaged in construction; or

(c) Enters into a subcontract with another for any of the activities described in subparagraph (a) or (b) of this paragraph.

(8) "Crew leader" means the member of a group of workers who acts as a spokesperson for the group, travels with the group from another state into Oregon, performs the same work along with other members of the group and receives no extra compensation from any person by virtue of acting as a crew leader, aside from any money received from other members of the group for sharing payment of the actual expenses of the group, and provided that the employer pays the members of the group directly and individually for their labor. An immediate family acting as a single unit is not a group, within the meaning of this rule. The spokesperson for such unit is not, therefore, a crew leader. An immediate family includes the father, mother, son, daughter, brother, sister, husband, or wife of the spokesperson for the family. A crew leader may perform the following activities without a license:

(a) Transporting workers from their local place of residence to their place of employment when the crew leader does not perform this service for a profit; and

(b) Making arrangements for jobs, housing, credit, or any other needs of the members of the group, provided the crew leader receives no compensation for this service; and

(c) Adding members to the group in Oregon, provided the crew leader receives no compensation therefore from the added members or from any other person.

(9) "Farm labor contractor" means:

(a) Any person who, for an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers to perform labor for another in the production or harvesting of farm products;

(b) Any person who recruits, solicits, supplies or employs workers for an employer who is engaged in the production or harvesting of farm products;

(c) Any person who recruits, solicits, supplies or employs workers to gather wild forest products, as that term is defined in paragraph (23) of this section;

(d) Any person who furnishes board or lodging for workers in connection with the recruiting, soliciting, supplying or employing of workers to be engaged in the production or harvesting of farm products or in the gathering of wild forest products;

(e) Any person who bids or submits contract offers for the production or harvesting of farm products or the gathering of wild forest products; or

(f) Any person who subcontracts with another for the production or harvesting of farm products or the gathering of wild forest products.

(10) "Farmer" means the owner or lessee of land used in the production and harvesting of farm products.

(11) "Farm-worker camp" has the same meaning as that defined in ORS 658.705(7).

(12) "Farm-worker camp operator" has the same meaning as that defined in OAR 839-014-0035(8).

(13) "Forest fire suppression by contract crew" includes work performed by forest fire fighters who are recruited, solicited, supplied or employed by a person who has contracted to supply a crew of forest fire fighters prior to the existence of the fire. (An incidental duty to assist in emergency fire suppression arising from a permit, timber sale contract, or similar agreement whose primary purpose does not relate to fire suppression does not constitute such a prior contract to supply forest fire fighters.)

(14) "Forest labor contractor" means:

(a) Any person who, for an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers to perform labor for another in the forestation or reforestation of lands; or

(b) Any person who recruits, solicits, supplies or employs workers for an employer who is engaged in the forestation or reforestation of lands; or

(c) Any person who furnishes board and lodging for workers in connection with the recruiting, soliciting, supplying or employing of workers to be engaged in the forestation or reforestation of lands;

(d) Any person who bids or submits contract offers for the forestation or reforestation of lands; or

(e) Any person who subcontracts with another for the forestation or reforestation of lands.

(15) "Forestation or reforestation of lands" includes, but is not limited to:

(a) The planting, transplanting, tubing, pre-commercial thinning, and thinning of trees and seedlings; and

(b) The clearing, piling and disposal of brush and slash; and

(c) Other activities related to the forestation or reforestation of lands including, but not limited to, tree shading, pinning, tagging or staking; fire trail construction and maintenance; slash burning and mop up; mulching of tree seedlings; forest fire suppression by contract crew; application of big game repellent by contract crew; herbicide or pesticide application in the forest by contract crew; gopher baiting; gopher trapping and any activity related to the growth of trees and tree seedlings and the disposal of debris from the land.

(16) "Herbicide or pesticide application in the forest by contract crew" means work performed by workers who are recruited, solicited, supplied or employed by a person who has contracted to supply a crew of workers to apply herbicides or pesticides in the forest.

(17) "Individuals engaged in the solicitation or recruitment of persons for day-haul work" means individuals who solicit or recruit only persons:

(a) Who reside permanently in the local area; and

(b) Who do not, temporarily or otherwise, reside on the farm on which they are working; and

(d) Who are transported to the farm each day.

(18) “Janitorial Services” means work defined as “Janitorial Services” by the North American Industry Classification System (NAICS) but does not include residential housecleaning services.

(19) “Labor Contractor” or contractor means a construction, property services, farm or forest labor contractor.

(20) "License" means a labor contractor's license issued by the Bureau.

(21) "Perform labor" means the performance of work which is manual or physical in nature (including the use of tools), as distinguished from mental, technical, professional or managerial. Work of a mental, technical, professional or managerial nature includes, but is not limited to:

(a) The operation of aircraft, trucks or heavy equipment that require special permits to operate or labor performed by support crews in connection with such operation;

(b) Stocking surveys;

(d) Plantation and timber stand examination;

(e) Surveying;

(f) Secretarial work;

(g) Supervising employees;

(h) Technical or professional work which requires an occupational license (other than the license required by ORS 658.405 to 658.475);

(i) Work requiring an advanced type of knowledge in a field of science, technology or learning customarily acquired over a prolonged course of specialized instruction and study;

(j) Forest research and genetic improvement work (including single-tree or sample lot cone collections and the planting of parent or study trees) that services technical forestry advancement rather than direct forestation or reforestation efforts.

(22) "Permanent employee" means an employee of a farmer, nursery owner, processor of farm products, or owner or lessee of land intended to be used for the production of timber whose employment is intended to continue indefinitely. Employees employed on a seasonal, temporary or transient basis are not permanent employees under the section.

(23) "Person" means any individual, sole proprietorship, partnership, corporation, cooperative corporation, association, public or private corporation, government or governmental instrumentality or other business or legal entity.

(24) "Platoon leader" means a temporary supervisor employed by the farmer to supervise employees hired independently by the farmer and placed under the direction of the platoon leader, provided there is no other connection between the platoon leader and the employees.

(25) "Production and harvesting of farm products" includes, but is not limited to, the cultivation and tillage of the soil, the production, cultivation, growing and harvesting of any agricultural commodity, including, but not limited to, cottonwood trees for fiber production and Christmas trees, and the preparation for and delivery to market of any such commodity.

(26) “Property services contractor” means any person that:

(a) For an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers to perform labor for another person to provide services that include janitorial services; or

(b) Enters into a subcontract with another for any of the activities described in subparagraph (a) of this paragraph.

(27) “Staffing agency” means any person:

(a) Who operates an established firm, the primary business purpose of which is to provide labor for other employers under written client agreements;

(b) Who conducts business from a fixed business location that is separate from the business or work location of the service recipient; and,

(c) Who simultaneously provides contracted services to two or more client employers, typically to employers representing a range of industries.

(28) “Supplies building materials or machinery, other than manual tools or hand-operated power tools” means to make a substantial investment in a construction project. This investment may be provided by supplying heavy equipment needed to complete the project, such as bull dozers, cranes, land movers, etc. Supplying tools that may be used by hand, such as hammers, skill saws, table saws, reciprocating saws, nail guns, saw horses, compressors, bazookas (for drywall installation) and similar tools would not constitute a substantial investment in the project sufficient to create an exemption. Supplying a significant quantity of structural building materials such as drywall, lumber, concrete, etc. is a substantial investment in a construction project. Supplying incidental materials such as nails, screws, drywall mud, tape, safety goggles, gloves, etc. is not a substantial investment.

(29) "To gather wild forest products" or "the gathering of wild forest products" means the gathering of evergreen boughs, yew bark, bear grass, salal or ferns, and nothing else, from public lands for sale or market prior to processing or manufacture. This term does not include the gathering of these products from private lands in any circumstance or from public lands when the person gathering the products, or the person's employer, does not sell the products in an unmanufactured or unprocessed state.

(a) Example: A nursery uses its own employees to gather evergreen boughs which it uses in the manufacture of Christmas wreaths. The nursery is not engaged in farm labor contracting activity and therefore would not be required to obtain a license.

(b) Example: A person contracts with the owner of private land to remove salal from the land for resale to florists. Because the salal is growing on private land, the person is not engaged in "gathering of wild forest products" as that term is used in these rules (although in some circumstances, the person may be harvesting a farm product).

(30) "To induce to travel" means to cause or entice a worker to travel to a specific geographical location or area, by any promise or inducement.

(31) "Worker" means an individual performing labor in construction, janitorial services, the forestation or reforestation of lands, in the gathering of wild forest products, or in the production and harvesting of farm products, or any person who is recruited, solicited, supplied or employed to perform such labor, notwithstanding whether or not a contract of employment is formed or the labor is actually performed. A "worker" includes, but is not limited to, employees and members of a cooperative corporation.

(31) As used in subsections (4), (13), and (16) of this rule, the term "work performed" has the same meaning as the term "perform labor" in subsection (20) of this rule.

History

Statutory/Other Authority: ORS 658.407
Statutes/Other Implemented: ORS 658.405 - 658.503 & OL Ch. 008 (2018)
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 7-2000, f. & cert. ef. 2-23-00
BL 5-1996, f. 6-14-96, cert. ef. 7-1-96
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 16-1988, f. & cert. ef. 12-13-88
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0125 Contractors Must Obtain a License; Indorsement

No person may perform the activities of a labor contractor without first obtaining a temporary permit or license issued by the bureau. No person may perform the activities of a forest labor contractor or operate a farmworker camp without first obtaining a special indorsement from the bureau authorizing such performance. Unless otherwise specifically exempt, and except for cooperative corporations, no person may perform the duties of a labor contractor or operate a farmworker camp under a license issued to a corporation unless the person is also licensed to perform such duties.

History

Statutory/Other Authority: ORS 651 & ORS 658
Statutes/Other Implemented: ORS 658.405 - 658.503 & OL Ch. 676 (2017)
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0130 Exemptions from Licensing

Unless indicated otherwise within this rule, the following persons are not required to obtain a labor contractor's license:

(1) A farmer or owner or lessee of land intended to be used for the production of timber dealing with workers or worker groups only concerning employment in their own operation.

(2) A nursery owner or operator dealing with workers or worker groups only concerning employment in their own operations.

(3) A processor of farm products dealing with workers or worker groups only concerning employment in their own farm operations.

(4) A permanent employee of a farmer, nursery owner, or processor of farm products, or a permanent employee of an owner or lessee of land intended to be used for the production of timber so long as the employee is engaged solely in activities which would not require the employer to be licensed if the employer were performing the activity.

(5) A person engaged only in the solicitation or recruitment of workers for agricultural day-haul work and not engaged in arranging for board or lodging for migrant workers and not performing as an employer of the workers.

(6) A platoon leader.

(7) A leader, or a leader's agent, of an organization operating as a labor union, provided that the only payment received from the workers is in the form of membership dues for which the workers are accorded membership status in the conduct of the affairs of the organization.

(8) An employee of a labor contractor except for any employee who:

(a) Recruits, solicits, supplies or employs workers on behalf of the labor contractor; or

(b) For an agreed remuneration or rate of pay recruits, solicits, supplies or employs workers to perform labor for any other person in construction, forestation or reforestation of lands or the production or harvesting of farm products; or

(d) Furnishes board or lodging for such workers (but cooks employed by the contractor are not required to be licensed by reason of this sole activity); or

(e) On his or her own behalf bids or submits prices on contracts offers for those activities or enters into a subcontract with another for any of those activities.

(9) A crew leader provided that if the crew leader engages in any activity or receives any compensation with respect to any worker which exceed the permitted activities or compensation allowed by the definition in OAR 839-015-0004(8)(a), the crew leader is not exempt with respect to any activities or workers.

(10) A person who is primarily a supplier of on-farm equipment (sheep shearer, potato digger, or other farm machinery) or cottonwood tree harvesting machines unless the person also supplies temporary workers other than workers engaged in driving or maintaining the equipment.

(11) The advertising media.

(12) Employees of the Employment Department who are acting within the scope of their employment.

(13) A person performing work of a mental, technical, professional or managerial nature as defined in OAR 839-015-0004(20).

(14) An individual who performs work, other than recruiting, soliciting, supplying or employing workers to perform labor for another, or recruiting, soliciting, supplying or employing workers to gather wild forest products, alone or with only the assistance of the individuals named in section (15) of this rule.

(15) The spouse, son, daughter, brother, sister, mother or father of the individuals named in sections (14) and (16) of this rule.

(16) Individuals who perform labor in connection with an agreement for the exchange of labor or services with each other, provided that the work is performed on land owned or leased by the individuals, and provided further that the labor or services involved are performed solely by said individuals, their immediate families as specified in section (15) of this rule, or their permanent employees.

(17) An educational institution which is recognized as such by the Oregon Department of Education.

(18) An individual who collects tree seed cones or an individual who buys tree seed cones from other individuals. This section applies to individuals only and not to persons who are otherwise defined as labor contractors.

(19) Persons who recruit, solicit, supply or employ workers to perform labor under a contract or agreement solely for the following activities, provided that the person performs no other activities which would require licensing:

(a) Stream or creek debris removal;

(b) Provision of security services;

(c) Any activity which does not have the primary purpose of construction, performance of janitorial services, forestation or reforestation of lands, the gathering of wild forest products or of production or harvesting of farm products.

(20) Persons engaged in logging operations who would only otherwise be farm or forest labor contractors because they engage in reforestation activities that are incidental to contracts the primary purpose of which is the sale of timber, provided that they perform such incidental reforestation work using their own employees. If the incidental reforestation activities are carried out using a subcontractor, the subcontractor is required to be licensed.

(21) A person who performs labor contracting activity upon real property solely in the execution of a contract for construction between the person and an owner of the real property upon which the construction work is to be performed;

(22) A person who performs labor contracting activity solely to perform construction work related to a building permit obtained by the person;

(23) A person who performs labor contracting activity solely with respect to a construction project for which the person has supplied building materials or machinery, other than manual tools or hand-operated power tools;

(24) An owner of the real property upon which work is to be performed who engages in the solicitation or recruitment of persons to perform construction work on the owner’s property;

(25) A labor union;

(26) A local joint apprenticeship committee formed under ORS 660.135;

(27) For purposes of an exemption to the construction labor contractor requirements only, a staffing agency, if the staffing agency:

(a) Currently provides workers’ compensation coverage for all employees as required by ORS 656;

(b) Currently pays employment and income taxes in accordance with applicable law; and

(c) Has not failed in the previous 36 months to provide workers’ compensation for all employees as required by ORS 656 or to pay employment or income taxes in accordance with applicable law.

(A) A staffing agency that fails to keep required records or file required reports or files false reports under wage, tax or workers’ compensation law is not regarded as being in compliance with workers’ compensation and employment or income taxes.

(B) A violation of workers’ compensation or employment or income tax law that has been or is being committed by a staffing agency will count to disqualify the agency from the exemption regardless of whether an employee has complained of the violation or the staffing agency has been previously cited or fined for the violation.

(C) Failure to pay employment taxes on wages that are owed to employees of the staffing agency is a violation of employment tax law regardless of whether the wages have been paid to the employees.

(28) Any employee of a property services contractor who is licensed under ORS 658.405 to 658.503.

History

Statutory/Other Authority: ORS 658.407
Statutes/Other Implemented: ORS 658.405 - 658.503 & OL Ch. 008 (2018)
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 3-2006, f. 2-16-06, cert. ef. 3-1-06
BLI 7-2000, f. & cert. ef. 2-23-00
BL 5-1996, f. 6-14-96, cert. ef. 7-1-96
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 16-1988, f. & cert. ef. 12-13-88
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0135 Issuance of License

(1) A license may be issued only as follows:

(a) To an individual proposing to operate as a sole proprietor under the individual's own name or under the individual's own name and an assumed business name registered with the Corporation Division;

(b) To an individual proposing to operate as a partner in a partnership or a limited liability partnership under the individual's own name or under the individuals' own names and the assumed partnership business name registered with the Office of the Secretary of State;

(c) To the majority shareholder or majority shareholders of a corporation or member(s) owning a majority of a limited liability company that is authorized to do business in Oregon by the Office of the Secretary of State and to the corporation or limited liability company. Under this form of licensing, except as provided in subsection (3), the licensed majority shareholder or majority shareholders and the licensed corporation or the majority member(s) of a limited liability company and the licensed limited liability company are jointly and severally liable for all violations of the corporation or limited liability company and its agents when acting as a labor contractor;

(d) To a cooperative corporation authorized to do business in Oregon by the Office of the Secretary of State;

(e) Except as provided in OAR 839-015-0135(4), to a private nonprofit corporation authorized to do business in Oregon by the Office of the Secretary of State and designated by the Internal Revenue Service as exempt under section 501 (c)(3) of the Internal Revenue Code, provided:

(A)(i) The purpose of the corporation is to provide education or training; and

(ii) Workers recruited, solicited, supplied or employed by the corporation are recruited, solicited, supplied or employed only for the purpose of educating or training the workers in the forestation or reforestation of lands, in construction, or in the production or harvesting of farm products; or

(B) For at least five years before the corporation files an application for a labor contractor license, the corporation has been:

(i) Authorized to do business in Oregon by the Office of Secretary of State;

(ii) Primarily engaged in recruiting, soliciting, supplying or employing workers; and

(iii) Designated by the Internal Revenue Service as exempt under section 501 (c)(3) of the Internal Revenue Code;

(f) For a farm labor contractor license only, to an agricultural association that is authorized to do business in Oregon by the Office of the Secretary of State;

(g) To an employee of a labor contractor other than a property services contractor who is proposing to or is carrying out activities which would require the employee to obtain a license as a labor contractor.

(2) Except as provided in OAR 839-015-0135(4), no license may be issued to an individual proposing to do business as a partner in a partnership unless all of the proposed partners are licensed.

(3) The majority shareholder or majority shareholders of a corporation or member(s) owning a majority of a limited liability company are not required to be licensed under this section if the corporation or limited liability company:

(a)(A) Publicly trades its shares of stock on a stock exchange regulated by the United States Securities and Exchange Commission; or

(B) Has 10 or more shareholders or members and demonstrates to the satisfaction of the commissioner that the corporation or limited liability company is adequately capitalized; and

(C) No individual shareholder or member owns, or no two shareholders or members collectively own a majority of the corporation or limited liability company; and

(b) Is authorized to do business in Oregon by the Office of the Secretary of State.

(4) For a property services contractor license only:

(a) To any of the business entities described in paragraphs (b) to (e) of OAR 839-015-0135(1), provided that each entity includes with the application for a license under ORS 658.415 the names and addresses of one or more individuals who are responsible, financially and otherwise, for fulfilling the entity’s obligations consistent with the provisions of ORS 658.405 to 658.503.

(b) To a private nonprofit corporation authorized to do business in Oregon by the Office of Secretary of State and designated by the Internal Revenue Service as exempt under section 501(c)(3) of the Internal Revenue Code provided that the corporation is primarily engaged in recruiting, soliciting, supplying or employing workers.

History

Statutory/Other Authority: 651, 658 & OL Ch. 008 (2018)
Statutes/Other Implemented: ORS 658.405 - 658.503 & OL Ch. 008 (2018)
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BLI 7-2000, f. & cert. ef. 2-23-00
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0140 Licensing Requirements

To be eligible for a license, an applicant therefore must:

(1) Be of good character, competence and reliability.

(2) Be a person who has not, within the preceding three years, had an Oregon labor contractor's license application denied.

(3) Be a person who has not, within the preceding three years, in Oregon or in any other jurisdiction, had a labor contractor's license or indorsement denied, revoked or suspended.

(4) Not have persons financially interested in any capacity in the applicant's business as a labor contractor:

(a) Who were denied an Oregon labor contractor's license within the preceding three years or who had such license denied, revoked, or suspended within the preceding three years in Oregon or any other jurisdiction; or

(b) Who were financially interested in any capacity in an entity which was denied an Oregon labor contractor's license within the preceding three years or which had such license denied, revoked, or suspended within the preceding three years in Oregon or any other jurisdiction.

(c) A refusal to renew a license or grant a temporary permit because the applicant or any person financially interested in the applicant's business as a labor contractor has been denied a license or had a license revoked in Oregon or any other jurisdiction within the preceding three years is considered the same as the revocation of the license or permit on the date of its expiration.

(5) Not have any unsatisfied final judgments of the court or final orders issued by any government agency which require the payment of unpaid wages to employees or the payment of any advances made to the contractor by construction property owners, owners or property managers of property where janitorial services are or were to be performed, farmers or owners or lessees of land intended to be used for the production of timber.

(6) Declare any and all judgments or administrative orders of record relating to the conduct of the labor contractor's business in the last five years, including the jurisdiction or agency and current status.

(7) Pay the appropriate license fee.

(8) Except as provided in OAR 839-015-0141(2) or when otherwise exempt, show proof of financial ability to promptly pay the wages of employees and advances made by construction property owners, owners or property managers of property where janitorial services are or were to be performed, growers or producers of agricultural goods or owners or lessees of land intended for the production of timber in the form of a corporate surety bond or deposit with the commissioner.

(9) File a completed application form.

(10) Except as provided in OAR 839-015-0141(2), certify on the application that there is insurance on vehicles used to transport workers in an amount sufficient to comply with the Oregon Financial Responsibility Law (ORS 486.011 to 486.680).

(11) Except as provided in OAR 839-015-0141(2), show proof that worker's compensation insurance will be provided on each individual as required in ORS 658.415(2)(b) and 658.440(1)(j). If the applicant is relying on workers' compensation insurance coverage from a jurisdiction other than Oregon, the workers' compensation insurance coverage must satisfy Oregon's coverage requirements under ORS 656.

(12) In the case of a corporation, be authorized to do business in Oregon.

History

Statutory/Other Authority: ORS 651 & ORS 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 40-2007, f. 12-28-07, cert. ef. 1-1-08
BL 2-1996, f. & cert. ef. 1-9-96
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0141 Licensing Requirements for Employees of Contractor/ Indorsements

(1) The employee of a labor contractor who is licensed under ORS 658.405 to 658.503 may be licensed as a labor contractor subject to an employee indorsement if the employee continuously meets all of the following conditions:

(a) The employee's employer has filed with the Commissioner of the Bureau of Labor and Industries a signed statement, in a form required by the commissioner, agreeing to sponsor the application and to notify the commissioner promptly upon termination of the employment of the employee;

(b) The employee engages in activities that would require licensing as a labor contractor solely on behalf of the employer;

(d) The employer maintains proof of financial responsibility pursuant to ORS 658.415(3);

(e) The employer's license remains in good standing;

(f) The employee meets all of the conditions for licensing as a labor contractor provided for in OAR 839-015-0140; and

(g) The employee is not otherwise licensed in any manner as a labor contractor under these rules.

(2) A labor contractor subject to an employee indorsement acting in compliance with section (1) of this rule need not comply with OAR 839-015-0140(8), (10) and (11) insofar as the employer has complied with these provisions.

(3) The license of a labor contractor subject to the employee indorsement shall state on its face the conditions contained in this rule and shall state further that the bearer of the license is licensed to act only as conditioned by this rule.

(4) The license of a labor contractor subject to an employee indorsement shall terminate immediately upon the termination of the employment relationship with the employer who sponsored the employee's application. The employee shall submit the license to the bureau forthwith.

(5) A license subject to an employee indorsement may be terminated either by the employee or by the sponsoring employer by notifying the bureau in writing that either wishes to terminate the license or that the conditions specified in section (1) of this rule are no longer met.

(6) The license subject to an employee indorsement terminates upon receipt by the bureau of notice referred to in section (5). The employer's joint and several liability for actions taken by the employee under color of the employee's license pursuant to ORS 658.411(4) extends to any actions taken by the employee before the original license is surrendered to the bureau.

History

Statutory/Other Authority: ORS 651 & 658.411
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 18-2008, f. & cert. ef. 6-23-08
BLI 13-2008(Temp), f. 5-2-08, cert. ef. 5-5-08 thru 11-1-08
BL 2-1996, f. & cert. ef. 1-9-96

Or. Admin. R. 839-015-0142 Use of Certain Agents Prohibited/Evidence of Sham or Subterfuge

(1) The Bureau may refuse to license or renew the license of any person who proposes to use any individual, partnership, association, corporation or other entity as such person's agent for the performance of any activity specified in ORS 658.405(4), when the proposed agent has, within the preceding three years, violated any section of 658.405 to 658.485.

(2) The Bureau may refuse to license or renew the license of any applicant where there is evidence of sham or subterfuge in the identity of the applying entity. The Bureau will regard as prima facie evidence of sham or subterfuge mere changes in business form in anticipation of or subsequent to denial, suspension, revocation or refusal to renew a license, where a relative by blood or marriage, or a person presently employed in an occupation, other than an occupation with a licensed labor contractor, makes application, including a renewal application, for a license and one or more of the following factors are present:

(a) A lack of adequate consideration or value given for the former business or its property;

(b) The use of the same real property, fixtures or equipment or use of a business name similar to that of the former business;

(c) A time period of less than one year elapsed between the former entity's receipt of notice of the Bureau's intent to deny, suspend, revoke or refuse to renew its license or application and the license application by the new business;

(d) A person financially interested in any capacity in the former business has a financial interest in any capacity in the new business;

(e) Assets or capital of the former business are commingled with assets or capital of the new business;

(f) The amount of capitalization is inadequate to meet current obligations of the new business; or

(g) The formalities of a partnership or a corporation are disregarded by the new business when such business is a partnership or corporation.

(3) When the factors outlined in section (2) of this rule are present, it shall be the burden of the applicant to provide evidence to the Bureau clearly indicating that such business form is not sham or subterfuge.

History

Statutory/Other Authority: ORS 651 & 658.415(14)
Statutes/Other Implemented: ORS 658.425(3) & 658.440(3)(a)
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 7-2000, f. & cert. ef. 2-23-00
BL 16-1988, f. & cert. ef. 12-13-88

Or. Admin. R. 839-015-0145 Character, Competence and Reliability

The character, competence and reliability contemplated by ORS 658.405 to 658.475 and these rules includes, but is not limited to, consideration of an applicant's conduct, the conduct of any person financially interested in the applicant's proposed operation as a labor contractor, or the conduct of any business in which any person financially interested in the applicant's proposed operation as a labor contractor has had a financial interest, whether as a partner, shareholder, or profitsharer, with respect to the following:

(1) Relations with workers, farmers and others with whom the person conducts business.

(2) Reliability in adhering to the terms and conditions of any contract or agreement between the person and those with whom the person conducts business.

(3) Timeliness in paying all debts owed, including advances and wages.

(4) Any unsatisfied judgments or felony convictions.

(5) The cancellation of or inability to obtain a bond, if applicable.

(6) Provision of workers' compensation coverage for each worker or payment of worker's compensation insurance premium payments when due.

(7) Violation of any provision of ORS 658.405 to 658.503 or these rules.

(8) Employment of an agent who has had a labor contractor license denied, suspended, revoked or not renewed or who has otherwise violated any provisions of ORS 658.405 to 658.503 or these rules.

(9) Providing notification to the bureau of any change in the circumstances under which a license was issued.

(10) Failure to comply with federal, state or local laws or ordinances relating to income taxes, social security taxes, unemployment compensation tax, or any tax, fee or assessment of any sort.

(11) Failure to comply with federal, state or local laws or ordinances named in OAR 839-015-0310.

(12) When required by law, failure or refusal to seek food, water, shelter, or medical attention, or to provide any other necessary goods or services required for the safety and health of workers.

(13) Repeated failures to file or furnish all forms and other information required by ORS 658.405 to 658.503 and these rules.

(14) Any willful misrepresentation, false statement or concealment in the application for a license.

(15) Any false, fraudulent or misleading representation willfully made or caused to be made to any person, or publication or circulation of any false, fraudulent or misleading information concerning the terms, conditions, or existence of employment at any place or by any person.

(16) Failure to maintain the bond or cash deposit as required by ORS 658.405 to 658.503.

(17) Failure to inspect a contractor's license or temporary permit as required by ORS 658.437 and OAR 839-015-0509 when entering into a subcontract with another labor contractor.

History

Statutory/Other Authority: ORS 658 & ORS 651
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 10-2021, amend filed 07/22/2021, effective 10/01/2021
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 3-2006, f. 2-16-06, cert. ef. 3-1-06
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BL 2-1996, f. & cert. ef. 1-9-96
BL 16-1988, f. & cert. ef. 12-13-88
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0150 Procedure for Obtaining a Temporary Permit

(1) A labor contractor may obtain a temporary permit by filing an application with any office of the Bureau. Forms for this purpose may be obtained from the office in which the application is filed.

(2) Temporary permits may be issued only under the following conditions:

(a) The application is complete on its face;

(b) Satisfactory evidence of insurance is certified to on the application;

(c) The applicant or any person financially interested in any manner in the applicant's operations as a labor contractor has not had an application denied or license revoked or suspended within the preceding three years. A refusal to renew a license or grant a temporary permit because the applicant therefore or any person financially interested in the applicant's business as a labor contractor has been denied a license or had a license revoked in Oregon or any other jurisdiction within the preceding three years, is considered the same as the revocation of the license or permit on the date of its expiration;

(d) Proof of financial ability to pay employees wages and advances unless otherwise exempt, from construction property owners, owners or property managers of property where janitorial services are or were to be performed, growers or producers of agricultural products or owners or lessees of land intended to be used for the production of timber is submitted with the application and is complete on its face;

(e) The appropriate fee is paid at the time the application is submitted.

(3) A temporary permit is valid for not more than 60 days. The permit immediately expires if the license application is rejected or a license issued.

(4) The labor contractor examination must be scheduled and taken within 45 days of the date a letter of authorization is issued by the License Unit. Failure to take and pass the examination prior to the expiration date of the temporary permit will result in denial of the license application.

(5) Only one temporary permit shall be issued in a 12-month consecutive period.

History

Statutory/Other Authority: ORS 164, ORS 165, ORS 651 & ORS 658.407(3)
Statutes/Other Implemented: ORS 658.425(1) - (3)
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BLI 7-2000, f. & cert. ef. 2-23-00
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0155 Procedure for Obtaining a License

Application for a license may be made as follows:

(1) File a completed application on forms supplied by the Bureau. Except in the case of a property services contractor license, each partner in any partnership business must complete and file a separate application form.

(2) A labor contractor may apply for a license on behalf of an employee, providing that all of the requirements of OAR 839-015-0141 are met.

(3) At the time the application is filed, pay the maximum amount of the fees set out by ORS 658.413 for the type of work to be performed.

(a) For a construction labor license, pay a fee equal to that set out in 658.413(1)(b) for a farm labor contractor.

(b) For a property services contractor license, pay a fee of $350 for each year of the license term.

(c) Except in the case of a property services contractor license, each partner in any partnership business must pay the appropriate fee.

(4) Except as provided by OAR 839-015-0210, file with the application proof of financial ability to pay wages and advances in the amount required by OAR 839-015-0210 on forms supplied by the bureau. Except as provided in OAR 839-015-0157 or in the case of a property services contractor business, each partner in any partnership business must file such proof. Such proof may be a corporate surety bond, a cash deposit or a deposit the equivalent of cash.

(5) File any assumed business name and corporate name with the Office of the Secretary of State and submit proof of such filing with the application.

(6) If a corporation, show proof of being authorized to do business in Oregon.

(7) All forms, documents and other required information shall be filed with Bureau of Labor and Industries, Wage and Hour Division, License Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

History

Statutory/Other Authority: ORS 651.060(4), ORS 658.407 & ORS 658.413
Statutes/Other Implemented: ORS 658.413 & OL CH. 633, 2019
BLI 13-2019, amend filed 10/31/2019, effective 01/01/2020
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 4-2014, f. & cert. ef. 4-10-14
BLI 1-2014(Temp), f. & cert. ef. 1-21-14 thru 6-30-14
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 12-1999, f. 9-28-99, cert. ef. 10-23-99
BL 2-1996, f. & cert. ef. 1-9-96
BL 1-1994, f. & cert. ef. 5-3-94
BL 11-1993(Temp), f. 10-29-93, cert. ef. 11-3-93
BL 3-1990, f. & cert. ef. 3-1-90
BL 16-1988, f. & cert. ef. 12-13-88
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0157 Procedure for Obtaining Reduction in the Amount of Required Aggregate Bonding When More than One Individual Is Required to Be Licensed in One Entity

(1) Labor contractors desiring to apply for a reduction in the required bond or deposit may do so by submitting an application to the Bureau of Labor and Industries.

(2) Applications shall be in writing and on forms provided by the bureau. All completed applications must be mailed or delivered to the Bureau of Labor and Industries, Wage and Hour Division, License Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

(3) No such application shall be considered unless the commissioner determines that:

(a) The application pertains to a single business entity; and

(b) More than one natural person is an owner or employee of the business entity; and

(d) Such persons engage in such activities solely for the business entity.

(4) In the case of a corporate surety bond, applications must be accompanied by a statement from the licensee's bonding agent or agents certifying the length of time the licensee has been bonded by the agent and that there have been no valid claims against the licensee's bond during that time. If the license utilized more than one bonding agent, a statement is required from each agent.

(5) No application may be granted unless the business entity has operated for at least one year without a valid claim in this or any other state against the bond or deposit.

(6) When the commissioner is satisfied that the business entity has presented adequate proof that it has operated for at least one year without a valid claim against its bond or deposit, and when the commissioner determines that the conditions set out in sections (3) and (5) of this rule are met, the commissioner may grant an application for a reduction in the aggregate amount of the required bond or deposit.

(7) In determining whether to grant the application, the commissioner shall consider the following circumstances:

(a) All matters contained in the application;

(b) The number of licensees;

(d) The history of each licensee in complying with any law;

(e) Whether the licensees are dealing directly or indirectly with employees;

(f) The number of employees employed by the business entity;

(g) The character, competence or reliability of the licensees, as those terms are used in these rules;

(h) Other information bearing on the circumstances of the application.

(8) When the commissioner determines to grant an application for lower aggregate bonding requirements for a business entity and its owners pursuant to sections (5) and (6) of this rule, the application will be granted to permit a total aggregate bond or deposit in the amount required by OAR 839-015-0210 for one licensee with a corresponding number of employees:

(9) When the commissioner grants an application for lower aggregate bonding requirements for a business entity and its owners, the required amount of aggregate bond or deposit may be divided among the licensees as they may agree, so long as each is obligated; in the absence of an agreement, the required amount shall be divided equally among them.

(10) Notwithstanding section (8) of this rule, when the commissioner determines to grant an application for lower aggregate bonding requirements for a business entity and its owners pursuant to section (6) of this rule, the entity must post an aggregate bond or deposit in the minimum amount specified in ORS 658.415 or 658.735, whichever is greater.

(11) The commissioner may specify conditions, if any, on the approval of the application.

(12) If the commissioner rejects the application, the reasons for the rejection will be specified.

(13) The commissioner may, for good cause shown, revoke the licensee's authorization to post a reduced bond or deposit. "Good cause" includes but is not limited to the following situations:

(a) A valid claim is filed against the bond or deposit of the business entity or licensee who is an owner or employee;

(b) The business entity ceases operating the business for which the bond or deposit was accepted;

(d) Failure to pay advances made to or on behalf of the licensee by construction property owners, owners or property managers of property where janitorial services are or were to be performed, growers or producers of agricultural products or by owners or lessees of land intended to be used for the production of timber;

(e) The business entity, its licensees, its agents or employees during the course of their employment, cause damage to any person by reason of willful misrepresentation, fraud, deceit or other unlawful act or omission;

(f) The business entity, including any licensee, agent or employee, acting in the course of employment, has engaged in labor contracting activities on behalf of anyone other than the business entity.

History

Statutory/Other Authority: ORS 658.407(3), 658.415(14) & 658.820
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BL 2-1996, f. & cert. ef. 1-9-96
BL 1-1994, f. & cert. ef. 5-3-94
BL 11-1993(Temp), f. 10-29-93, cert. ef. 11-3-93
BL 3-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-015-0160 Procedure for Obtaining a Duplicate License

In the event a license is lost or stolen, the licensee shall submit a written request for a duplicate license. The licensee shall state the reasons for the request and the circumstances of the loss or theft. The new license will indicate the word "DUPLICATE" on the license above the number. The written request shall be made to the Bureau of Labor and Industries, Wage and Hour Division, License Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 16-1988, f. & cert. ef. 12-13-88
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0165 Procedure for Issuing or Renewing License

(1) Each license shall be issued on the date all application requirements are met.

(2)(a) The expiration date of a new license will be one year from the date of issuance of a permit, on the last day of the month in which the permit was issued.

(b) Except as provided in section (2)(c) of this rule, the expiration date for renewal licenses will be one year from the date of issuance of the license, on the last day of the month in which the license was issued.

(c) Pursuant to ORS 658.435(3), labor contractors who have been licensed for at least two consecutive years may apply for a renewal license valid for a term of two or four years, which will expire on the last day of the month in which the license was issued.

(3) Applications for renewal shall be made 30 days prior to the expiration date by filing a renewal application, paying the appropriate fees, and, except where exempt, filing proof of financial ability to pay wages and certain advances.

(4) For a property services contractor license, each renewal application must be accompanied by a completed training certification statement described at OAR 839-015-0380 and the work locations, employee counts and demographic information described at OAR 839-015-0355.

(5) Each renewal application shall be accompanied by the work agreement between the contractor and the workers which is required by OAR 839-015-0360. The completed renewal application, renewal fee, and other information required in section (2) of this rule must be post-marked or received by the License Unit at least 30 days prior to the expiration date of the license.

(6) Applications, fees and other forms and documents must be filed with the Bureau of Labor and Industries, Wage and Hour Division, License Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

History

Statutory/Other Authority: ORS 651 & 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 16-1988, f. & cert. ef. 12-13-88
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0170 Scope of Examinations

(1) The Commissioner of the Bureau of Labor and Industries may not issue an applicant a license to operate as a labor contractor until the applicant has successfully passed a qualifying examination designed to test the applicant’s ability, knowledge and proficiency to conduct and manage the business of a labor contractor. The examination must also test the applicant’s knowledge of an employer’s responsibility to prevent sexual assault and sexual harassment. The commissioner shall prescribe by rule the requirements for and the manner of testing the competency of license applicants. The License Unit shall provide written examinations as the Commissioner deems necessary.

(2) An applicant for a property services contractor license may satisfy this requirement provided that one or more of the individuals listed on the application as responsible, financially and otherwise, for fulfilling the entity’s obligations consistent with the provisions of ORS 658.405 to 658.503 successfully passes a qualifying examination.

(3) The License Unit shall provide all materials required for the examinations.

(4) All examinations shall be “closed book.”

(5) A written examination shall not exceed three hours.

History

Statutory/Other Authority: ORS 651 & 658
Statutes/Other Implemented: ORS 658.405 - 658.503 & OL Ch. 008 (2018)
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-015-0175 Examination Requirements

(1) Applicants may make arrangements with Bureau staff to take a qualifying examination after receipt of a letter of authorization from the License Unit.

(2) Requests to schedule an examination must be made by the applicant within 30 days after issuance of a temporary permit. The qualifying examination must take place within 45 days after issuance of a temporary permit.

(3) Applicants must submit a written request to reschedule or change the site of an examination after the 45-day period referred to in section (2) of this rule.

(4) Except for interpreters, no applicant may use any other aids or notes or receive help from another person during an examination, except to the extent required to reasonably accommodate a disability under state or federal law. Violation of this rule shall result in the examination being invalidated and treated as failed.

(5) Requests for a certified court interpreter shall be made to the License Unit in writing by the applicant no fewer than 15 calendar days in advance of the date of the scheduled examination.

(6) The Bureau shall arrange for an Oregon certified court interpreter to interpret the examination and the applicant’s examination responses upon receiving a written request for an interpreter by the applicant.

History

Statutory/Other Authority: 658 & ORS 651
Statutes/Other Implemented: ORS 658.405 - 658.503 & OL Ch. 008 (2018)
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 7-2000, f. & cert. ef. 2-23-00
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-015-0178 Grading of Examinations/Notice of Score

(1) The passing score for each examination shall be 75 percent.

(2) The License Unit shall notify applicants in writing of their examination scores.

History

Statutory/Other Authority: ORS 651 & 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-015-0180 Review of Examinations

(1) Applicants failing to pass an examination may schedule an appointment with the License Unit to review the examination at a site designated by the License Unit.

(2) Requests to review failed examinations shall be scheduled within 30 days from notification of score.

(3) Applicants shall show picture identification before examination review.

(4) Applicants reviewing failed examinations shall not retain notes taken during the review.

(5) Examinations may be reviewed only by the applicant and/or any person the applicant has authorized, in writing, to review such examinations.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.405 - 658.503
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-015-0185 Re-Examination

(1) Applicants who fail an examination shall wait the following time periods before retaking the examination:

(a) First failure: seven days;

(b) Second failure: 14 days;

(d) Any subsequent failures: 60 days.

(2) Re-examination shall not be scheduled sooner than seven days after review of a failed examination.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.412 & 962
Statutes/Other Implemented: ORS 658.412
BL 9-1990, f. 5-25-90, cert. ef. 6-1-90
BL 6-1990(Temp), f. 4-18-90, cert. ef. 4-17-90
BL 3-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-015-0190 Substitution of Oregon Examination

(1) The Commissioner may recognize national or state examinations for licensing if taken and passed within the last 12 months.

(2) Specific examinations that may be recognized in lieu of the Oregon examinations are: Farm Labor Contractor examination for the State of California.

(3) Independent verification of the test results from the testing authority is required.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.412 & 962
Statutes/Other Implemented: ORS 658.412
BL 3-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-015-0195 Alternative Methods of Examination

(2) Alternative methods of examination will be provided upon written request.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.412 & 962
Statutes/Other Implemented: ORS 658.412
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BL 3-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-015-0200 Proof Required/Forms to Be Used for Bonds and Deposits

(1) Every applicant for a labor contractor's license must, unless otherwise exempt, show proof of financial ability to promptly pay the wages of employees and any advances made to or on behalf of the contractor by construction property owners, owners or property managers of property where janitorial services are or were to be performed, growers or producers of agricultural products or owners or lessees of land intended to be used for the production of timber. Such proof must accompany the applicant's application and be on forms supplied by the bureau.

(2) The proof of financial ability to promptly pay the wages and advances referred to in section (1) of this rule shall be a properly executed corporate surety bond as evidenced by the completion of Form WH-157 or a deposit in cash or negotiable securities acceptable to the commissioner.

(3) The forms are available upon request from: Bureau of Labor and Industries, Wage and Hour Division, License Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

History

Statutory/Other Authority: ORS 658.407(3), 658.415(14) & 658.820
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BL 2-1996, f. & cert. ef. 1-9-96
BL 1-1994, f. & cert. ef. 5-3-94
BL 11-1993(Temp), f. 10-29-93, cert. ef. 11-3-93
BL 3-1990, f. & cert. ef. 3-1-90
BL 16-1988, f. & cert. ef. 12-13-88
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0210 Amount of Bond or Deposit to Be Filed

(1) Except as provided in section (3) or (4) of this rule, the amount of the bond or deposit referred to in OAR 839-015-0157 and 839-015-0200 shall be based on the maximum number of employees employed at any one time during the license term. The bond or deposit shall be:

(a) $10,000 if the contractor employs no more than 20 employees; or

(b) $30,000, or such lesser sum as may be authorized by the commissioner pursuant to ORS 658.416 and OAR 839-015-0230. The bond and any financial instrument shall be in the principal sum of the amount required by this rule. The amount of the bond or deposit must be continually maintained as long as the contractor is required to be licensed under ORS 658.405 to 658.475.

(2) When a licensee or holder of a temporary permit employs more than the maximum number of employees covered by the bond or deposit in section (1)(a) of this rule, the licensee or permit holder shall immediately increase the amount of the bond or deposit to the amount required by section (1)(b) of this rule. The licensee or permit holder shall also immediately notify the License Unit of the Wage and Hour Division.

(3) Notwithstanding the provisions of ORS 658.415(3), (4), (8), (9), and (16), an agricultural association or private nonprofit corporation described in ORS 658.410(2)(f)(B) shall submit and continually maintain, until excused, a corporate surety bond of a company licensed to do such business in Oregon, a cash deposit or a deposit the equivalent of cash. This bond or deposit shall be in the amount of $30,000 and in a form approved by and payable to the Commissioner of the Bureau of Labor and Industries.

(4) A property services contractor is not required to file proof of financial ability under this section if:

(a) The property services contractor provides with any application for a labor contractor license and continually maintains thereafter proof of general liability insurance coverage in the amount of $1,000,000; and

(b) The commissioner finds that the property services contractor, within the preceding two years, has not violated ORS chapter 652 or 653 or committed an unlawful employment practice under ORS chapter 659A or the rules thereunder.

(5) When an applicant for a license has been required to satisfy a court-ordered judgment or a final order issued by a governmental agency, the commissioner or the commissioner's designee may require the applicant to provide a bond or deposit of up to three times the amount required by section (1) of this rule as a condition of licensure. In such case, the commissioner or commissioner's designee will determine the actual amount of the bond or deposit by considering the following factors:

(a) The amount of the judgment or order that was satisfied;

(b) The magnitude and seriousness of the violation or violations which lead to the judgment or order;

(c) The past history of the applicant in taking all necessary measures to prevent or correct violations of statutes or rules;

(d) Prior violations, if any, of statutes or rules;

(e) Other matters which indicate to the commissioner or commissioner's designee whether or not the applicant is likely to violate ORS 658.415(3) in the future.

History

Statutory/Other Authority: ORS 658.407(3), 658.415(14) & 658.820
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BLI 7-2000, f. & cert. ef. 2-23-00
BL 2-1996, f. & cert. ef. 1-9-96
BL 1-1994, f. & cert. ef. 5-3-94
BL 11-1993(Temp), f. 10-29-93, cert. ef. 11-3-93
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0220 Deposit in Cash or Negotiable Securities

As used in ORS 658.415(3) and in these rules “a deposit in cash or negotiable securities” means a single financial instrument which yields no less than the amount required pursuant to OAR 839-015-0210 in cash immediately upon demand. If the deposit is one which is subject to a penalty for early withdrawal, then the deposit must be in an amount sufficient to satisfy the penalty and still yield no less than the amount required under OAR 839-015-0210 in cash.

History

Statutory/Other Authority: ORS 658.407(3), 658.415(4) & 658.820
Statutes/Other Implemented: ORS 658.415(3)
BL 1-1994, f. & cert. ef. 5-3-94
BL 11-1993(Temp), f. 10-29-93, cert. ef. 11-3-93
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0230 Procedure for Obtaining Reduction in the Amount of Bond or Deposit Required

(1) In addition to the application for aggregate bond reduction provided in OAR 839-015-0157, labor contractors who have been licensed for at least two consecutive years may apply for a reduction in the bond or deposit required by ORS 658.415(3). Applications shall be in writing and on forms provided by the bureau. All completed applications should be mailed or delivered to the Bureau of Labor and Industries, Wage and Hour Division, License Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

(2) Labor contractors may apply for a reduction in the bond or deposit required any time after the contractor has been licensed for no less than two consecutive years at the time a labor contractor license renewal application is made, pursuant to ORS 658.435(2).

(3) The contractor must have prior approval from the Bureau of Labor and Industries before submitting a reduced bond or deposit.

(4) No application for a reduction in the bond or deposit will be considered by the commissioner in the case of a con labor contractor license renewal application unless such completed application is received with a completed license renewal application at least 30 days prior to the expiration of the license.

(5) Applicants for a reduction in the bond or deposit will be notified in writing of the commissioner's disposition of the application by the License Unit of the bureau within 15 days of receipt of a completed application for a reduction.

(6) If application for a reduction in the bond or deposit is made less than 30 days prior to the expiration date of the labor contractor's license, the contractor must submit the bond or deposit required pursuant to ORS 658.415(3) without reduction along with the contractor's completed application for a bond or deposit reduction.

(7) If an application for a reduction in the bond or deposit is approved by the commissioner after the contractor has submitted an unreduced bond, an amended bond for the reduced amount approved will be accepted by the commissioner after approval of the reduced bond.

(8) If an application for a reduction in the bond or deposit is approved by the commissioner after the contractor has submitted an unreduced cash deposit, the commissioner will initiate a refund of the appropriate amount to the contractor within five working days after approval of the reduced deposit.

(9) If an application for a reduction in the bond or deposit is approved by the commissioner after the contractor has submitted an instrument the equivalent of cash, the contractor will be allowed to replace such instrument with an instrument in the approved lesser amount.

(10) No application for reduction in the required bond or deposit shall be approved unless the commissioner determines that:

(a) The applicant has operated as an Oregon licensed labor contractor without an employee indorsement for at least two years in compliance with ORS 658.405 to 658.503 and with any other laws pertaining to the conduct of labor contractors; and

(b) The applicant employs 21 or more employees; and

(c) No valid claims for unpaid wages have been made against the applicant during the qualifying period of time for a bond or deposit reduction.

(11) If the commissioner rejects the application, every reason for the rejection will be specified.

(12) The commissioner may, for good cause shown, revoke the licensee's authorization to post a reduced bond or deposit. "Good cause" includes, but is not limited to, the following situations:

(a) A valid claim is filed against the bond or deposit of the licensee;

(b) Failure to pay wages to employees when due;

(c) Failure to pay advances made to or on behalf of the licensee by construction property owners, owners or property managers of property where janitorial services are or were to be performed, growers or producers of agricultural products, or owners of lessees of land intended to be used for the production of timber;

(d) The licensee or its agents cause damage to any person by reason of willful misrepresentation, fraud, deceit or other unlawful act or omission;

(e) The licensee or its agents engage in labor contracting activities on behalf of anyone other than the business entity.

(f) Actions of the licensee demonstrate the licensee's character, reliability or competence make the licensee unfit to act as a contractor pursuant to OAR 839-015-0520(3).

(13) If the commissioner determines that the criteria in section (2) have been met by the applicant, the commissioner may reduce the amount of the bond or deposit that would otherwise be required pursuant to ORS 658.415(3) to an amount determined by the commissioner, but not less than the following:

(a) If the commissioner finds that the contractor has so operated for a period of at least five years, $20,000; or

(b) If the commissioner finds that the contractor has so operated for a period of at least four years, $22,500; or

(d) If the commissioner finds that the contractor has so operated for at least two years, $27,500.

(14) If the applicant provided one or more corporate surety bonds as proof of financial responsibility during any of the qualifying period of time for which application for reduction is being made, the applicant must submit with the application a statement from the licensee's bonding agent or agents certifying the length of time the licensee has been bonded by the agent and that there have been no valid claims filed against the licensee's bond(s) during the qualifying period of time covered by the application. If the licensee utilized more than one bonding agent, a statement is required from each agent for the period of time covered by the application.

History

Statutory/Other Authority: ORS 651 & 658.415
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BL 2-1996, f. & cert. ef. 1-9-96

Or. Admin. R. 839-015-0250 Protesting the Issuance of a License

Any individual may protest the issuance of a labor contractor’s license to any applicant for such license. The protest may be made at any time after the license is actually issued as well as at any time prior to the issuance of the license.

History

Statutory/Other Authority: ORS 651 & 658.415(14)
Statutes/Other Implemented: ORS 658.420(3)
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0260 Procedure for Filing Protest

(1) Any individual desiring to protest the issuance of a farm and forest labor contractor license must file the protest in writing with the Bureau of Labor and Industries, Wage and Hour Division, Farm Labor Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

(2) The written protest must contain the following information:

(a) Name, address and phone number of the individual filing the protest;

(b) Date of the protest;

(d) A complete statement of the facts, circumstances and other reasons for the protest. The statement should include alleged violations, approximate dates of alleged violations, names of witnesses, if any, and any documents which support the allegations;

(e) The signature of the individual making the protest.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0300 Contractor to Submit "Wage Certification" Form

(1) Every labor contractor must, unless otherwise exempt, submit a certified true copy of all payroll records to the Wage and Hour Division when the contractor or the contractor's agent pays workers directly as follows:

(a) The first report is due no later than 35 days from the time the contractor begins work on each contract and must include whatever payrolls the contractor has paid out at the time of the report;

(b) The second report is due no later than 35 days following the end of the first 35 day period on each contract and must include whatever payrolls have been issued as of the time of the report;

(c) If the contract lasts more than 70 days, succeeding wage certification reports must include whatever payrolls the contractor has paid out at the time of the report, with the reports due at successive 35 day intervals, e.g. 105 days, 140 days from the time the contractor begins work on the contract.

(2) The certified true copy of payroll records may be submitted on Form WH-141. This form is available to any interested person. Any person may copy this form or use a similar form provided such form contains all the elements of Form WH-141.

(3) The wages paid to the officers of the corporation may be omitted from the Form WH-141 or the other records submitted under this rule.

(4) The certified true copy of payroll records shall be submitted to: Bureau of Labor and Industries, Wage and Hour Division, License Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

(5) Contractors who have recruited, solicited or supplied workers from the state of Oregon who are employed on construction, property services contracts that include janitorial services, farm or forestation/reforestation contracts located outside the State of Oregon must comply with the provisions of this rule.

(6) For purposes of forest fire suppression by contract crew, the term "contract" as used in this rule means the acceptance of each dispatch order to a fire incident by a contractor supplying a contract crew to perform such work.

(7) The acceptance of a dispatch order for each separate crew will be deemed to constitute a separate and distinct contract such that the failure of a contractor to submit certified payrolls for each crew as required by this rule is a separate violation.

History

Statutory/Other Authority: ORS 658.407(3)
Statutes/Other Implemented: ORS 658.440(1)(i)
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 3-2006, f. 2-16-06, cert. ef. 3-1-06
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BL 5-1996, f. 6-14-96, cert. ef. 7-1-96
BL 2-1996, f. & cert. ef. 1-9-96
BL 16-1988, f. & cert. ef. 12-13-88
BL 6-1984, f. & ef. 4-27-84
BL 7-1983(Temp), f. & ef. 8-5-83

Or. Admin. R. 839-015-0310 Contractor to Furnish Statement of Worker’s Rights and Remedies

(1) Every labor contractor must furnish each worker with a written statement of the worker's rights and remedies under the Worker's Compensation Law, the Labor Contractor Law, the Federal Service Contracts Act, the Federal Davis Bacon Act, the Federal and Oregon Minimum Wage Laws, Oregon Wage Collection Laws, Oregon Prevailing Wage Laws, Unemployment Compensation Laws, Federal and Oregon Occupational Safety and Health Laws, Federal and Oregon Family/Medical Leave Acts, National Labor Relations Act and Civil Rights Laws. The form must be written in English and in the language used by the contractor to communicate with the workers.

(2) The form must be given to the workers at the time they are hired, recruited or solicited by the contractor or at the time they are supplied to another by the contractor, whichever occurs first.

(3) The Commissioner has prepared Form WH-151 for use by contractors in complying with this rule. The form is in English and Spanish and is available at any office of the Bureau of Labor and Industries.

History

Statutory/Other Authority: ORS 651 & 658.407(3)
Statutes/Other Implemented: ORS 658.440(1)(f)(I)
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0320 Form of License

In addition to the information required by ORS 658.430, the license form will contain such other information as the commissioner deems appropriate, including, but not limited to:

(1) The indorsement required by ORS 658.411, ORS 658.417 and 658.715, where appropriate.

(2) A statement indicating whether the licensee is authorized to act as a construction labor contractor, property services contractor, or a farm labor contractor or whether the licensee is authorized to act as both a farm labor contractor and a forest labor contractor or whether the licensee is authorized to act as a farmworker camp operator.

History

Statutory/Other Authority: ORS 164, 165, 651 & 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0350 Contractor to File Work Agreements between Labor Contractor and Farmers and Others

(1) Labor contractors are required to file information relating to their agreements with construction property owners or farmers with the Bureau.

(2) The Commissioner has developed Form WH-152 that may be used to comply with this rule. Labor contractors may use any form for filing the information so long as it contains all the elements of Form WH-152.

(3) Labor contractors must file this information with the Bureau by April 30 of each year. Amended or updated information may be filed at any time. All information must be filed with the Bureau of Labor and Industries, Wage and Hour Division, License Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.407(3) & 962
Statutes/Other Implemented: ORS 658.440(1)(e)
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 7-2000, f. & cert. ef. 2-23-00
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0355 Property Services Contractor Work Locations, Employee Counts and Demographic Information

(1) Property services contractors are required to file the following information with the Bureau together with any application for a license or renewal of a property services contractor license:

(a) The total number of workers the property services contractor employs, as defined by ORS 653.010(2), to perform janitorial services.

(b) The physical address of the work location or locations where the property services contractor employs, as defined by ORS 653.010(2), workers to perform janitorial services.

(c) A summary of any demographic data that is voluntarily provided by workers whom the property services contractor employs in janitorial services relating to race, sex, sexual orientation, national origin, marital status and age.

(2) All information must be filed with the Bureau of Labor and Industries, Wage and Hour Division, License Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.

History

Statutory/Other Authority: ORS 658 & ORS 651
Statutes/Other Implemented: ORS 658.427
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, adopt filed 11/30/2017, effective 01/01/2018

Or. Admin. R. 839-015-0360 Contractor to File Work Agreements between Labor Contractor and Workers

(1) Labor contractors are required to file information relating to work agreements between the labor contractors and their workers with the bureau.

(2) The commissioner has developed Form WH-153 that, in conjunction with Form WH-151, Statement of Workers Rights and Remedies, may be used to comply with this rule. Labor contractors may use any form for filing the information so long as it contains all the elements of Form WH-153 and Form WH-151.

(3) Labor contractors must file the form or forms used to comply with this rule with the bureau at the same time that the contractors apply for a license renewal.

(4) Labor contractors are required to furnish their workers with a written statement disclosing the terms and conditions of employment, including all the elements contained in Form WH-151 and if they employ workers, to execute a written agreement with their workers prior to the starting of work. The written agreement must provide for all the elements contained in Form WH-153. A copy of the agreement and the disclosure statement must be furnished to the workers in English and in any other language used to communicate with the workers. The disclosing statement must be provided to the workers at the time they are hired, recruited or solicited or at the time they are supplied to another by that contractor, whichever occurs first. A copy of the agreement must be furnished to workers prior to the workers starting work.

(5) Written notification of any changes in the terms and conditions of employment must be provided any time any of the elements listed in the original statement change.

(6) Except as provided in sections (7) and (8) of this rule, if it is not feasible to provide written notice at the time changes to the terms and conditions of employment are made, written notice of such changes may be made as soon as practicable.

(7) Written notice of pay decreases must be provided either prior to or at the time such decrease is implemented.

(8) In the case of the notice required by ORS 658.440(1)(f) (G) of the name(s) and address(es) of the owner(s) of operations where workers are employed, so long as notice is provided no later than the next regularly scheduled payday following a change in the location of work, in addition to the notice provided in (10)(a) or (b), notice may be provided:

(a) To the Bureau of Labor and Industries in writing; or

(b) On any documents issued to workers such as picking tickets or itemized deduction statements provided to workers.

(9) Nothing in the written agreement relieves the contractor or any person for whom the contractor is acting of compliance with any representation made by the contractor in recruiting the workers.

(10) For purposes of these rules, "written" notice of changes in the terms and conditions of employment includes, but is not limited to the following:

(a) Issuance of an amended disclosure statement/agreement (with the information required in Form WH-153) including the specific change(s) in terms and conditions of employment; or

(b) Issuance of a written notice of any specific change(s) in the terms and conditions of employment.

History

Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 7-2000, f. & cert. ef. 2-23-00
BL 6-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0370 Contractor to Furnish Statement of Earnings and Statement of Prevailing Wage

(1) Labor contractors are required to furnish each worker, each time the worker receives a compensation payment from the contractor, a written itemized statement of earnings. The written itemized statement must include:

(a) The total gross payment being made;

(b) The amount and purpose of each deduction from the gross payment;

(d) The rate of pay;

(e) If the worker is paid on a piece rate, the number of pieces done and the rate of pay per piece done;

(f) The net amount paid after any deductions;

(g) The employer's name, address and telephone number;

(h) The pay period for which the payment is made.

(2) If the worker is being paid for work done under any law which requires the payment of a prevailing rate of wage (such as the Federal Service Contract Act, Davis-Bacon Act or state prevailing wage law), labor contractors must furnish the worker with a written statement specifying the amount of the prevailing wage rate required to be paid.

(3) The commissioner has prepared Form WH-154 which contains all the elements required by, and can be used to comply with, this rule. Labor contractors may use any form for furnishing this information to workers so long as it contains all the elements of Form WH-154.

History

Statutory/Other Authority: ORS 651 & 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BL 2-1996, f. & cert. ef. 1-9-96
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0380 Professional Training for Managers, Supervisors and Employees of Property Services Contractors

(1) Property services contractors must provide professional training pertaining to the topics specified in section (4) of this rule to all of the contractor’s managers, supervisors and workers engaged in janitorial services as follows:

(a) At least once during the year in which a property services contractor license is first issued to a property services contractor;

(b) For new employees, within 90 days of the employee’s initial hiring date;

(c) For existing employees employed in a job classification which does not perform janitorial services who transfer or are assigned to a new job classification which is engaged in janitorial services, within 90 days of the employee's transfer or reassignment; and

(d) At least once every two years after the renewal of a license.

(2) The training provided must be:

(a) Delivered by a qualified trainer either in a live presentation which includes an end-of-training discussion to solidify the concepts and principles covered in the training; or in an interactive webinar, the content of which must be provided both in writing and verbally and which includes an assessment of the trainee’s understanding of the topics covered in the training;

(b) Draw upon various training methodologies and be of an appropriate length to cover the required content at a reasonable pace; and

(c) Be provided in a language understood by the trainee, either by providing the training directly in such language or by having a certified interpreter interpret the training in a language the trainee understands.

(d) In the case of a community rehabilitation program which is qualified by the State of Oregon as a qualified rehabilitation facility and which employs workers with various mental, physical, social, emotional, and linguistic abilities, the content and delivery methods of the training required by this rule may be modified to accommodate such workers, provided that the modified training addresses the topics specified in section (4) in a manner that is reasonably expected to promote understanding of those topics.

(3) Trainees may not be required or permitted to perform their regular work duties during the time they are taking the training, and must be paid for the time they are in training.

(4) A training curriculum that includes all of the following elements will be considered to be approved by the Bureau of Labor and Industries:

(a) Definitions of sexual assault, sexual harassment and discrimination in the workplace;

(b) Strategies for prevention of sexual assault, sexual harassment and discrimination in the workplace;

(d) Legal protections for employees who report violations of state or federal laws, administrative rules or regulations;

(e) A summary of protected classes under state and federal civil rights laws;

(f) A discussion of the concepts of “severe or pervasive” conduct and subjective and objective standards of unwelcome conduct;

(g) The employer’s duty to protect employees from assault and harassment by managers, coworkers and non-employees in the workplace;

(h) Strategies for preventing assault and harassment, including effective policies and enforcement, reporting and monitoring, and preventing retaliation; and,

(i) The employer’s specific policies regarding prohibited conduct, reporting misconduct, conducting investigations, measures to effectively correct and eliminate misconduct, the reinforcement of inclusive cultures and values relative to the environment, and the dynamics and demographics that may be unique to the organization or industry.

(5) Property service contractors must provide the following information with each license renewal application:

(a) A statement that the contractor has provided the professional training to all of the contractor’s managers, supervisors and workers as required by ORS 658.428 and this rule; and

(b) Copies of the curriculum and related materials used to provide the training required by this rule.

History

Statutory/Other Authority: ORS 651 & ORS 658
Statutes/Other Implemented: ORS 658.428 & OL Ch. 008 (2018)
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, adopt filed 11/30/2017, effective 01/01/2018

Or. Admin. R. 839-015-0400 Records Required to Be Made and Maintained by Contractor

(1) All labor contractors shall make and maintain for a period of three years records necessary to determine their compliance with ORS 658.405 to 658.475 and these rules.

(2) Records necessary to determine compliance with ORS 658.405 to 658.475 and these rules include, but are not limited to records of:

(a) The name and address of each worker (address includes both the permanent and local addresses of the worker);

(b) The name and address of each subcontractor;

(d) The rate of monetary wages and fringe benefits, if any, paid to each employee;

(e) The total compensation paid to each employee during each pay period and the date it was paid;

(f) The dates of each employee's employment;

(g) The daily and weekly hours worked by each employee;

(h) Any deductions taken from the employee's total compensation and an explanation thereof;

(i) The actual net wages paid to each employee during each pay period;

(j) The agreements required to be furnished to each worker pursuant to OAR 839-015-0360;

(k) The agreements between the labor contractor and any subcontractors;

(l) The statement of worker's rights and remedies as required by OAR 839-015-0310;

(m) The statement of earnings and the statement of prevailing wage given to each employee as required by OAR 839-015-0370;

(n) The agreements between the labor contractor and farmers or construction property owners;

(o) The physical address of work locations where a property services contractor employs workers in janitorial services and the number of workers it employs;

(p) Demographic data that is voluntarily provided by workers the property service contractor employs in janitorial services relating to race, sex, sexual orientation, national origin, marital status and age.

(q) The contracts between the contractor and the owner or lessee of land intended to be used for the production of timber;

(r) Any advances and payments thereon made to the contractor by a construction property owner, owner or property manager of property where janitorial services are or were to be provided, grower or producer of agricultural goods or owner or lessee of land intended to be used for the production of timber;

(s) Any payroll or other records pertaining to the contractor's business as a labor contractor and the manner in which the contractor conducts such business;

(t) The type and number of any identification the worker produced as evidence of his/her legal presence and legal employability in the United States.

(u) Curricula and documentation of each employee’s attendance at trainings required by ORS 658.428 and OAR 839-015-0380, including but not limited to the full names of the trainer, contact information of trainer and date of training.

History

Statutory/Other Authority: ORS 651 & 658.407(3)
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0410 Records Availability

Labor Contractors will make available to representatives of the Wage and Hour Division records necessary to determine compliance with ORS 658.405 to 658.475 and these rules. Records will be made available upon request of such representatives.

History

Statutory/Other Authority: ORS 651 & 658.407(3)
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0450 Notice of Compliance with Bond Requirements

(1) Every labor contractor is required to post a notice of compliance with bond requirements in English and in any language used by the contractor to communicate with the contractor's workers. The notice must be posted in a conspicuous place on the job site where the contractor's employees are working and must be easily accessible to them.

(2) The notice shall state that the contractor is either exempt from bond requirements or has complied with ORS 658.415 by obtaining a corporate surety bond or by making a deposit with the commissioner. The notice shall also indicate the amount of the surety bond or deposit and the expiration date of the bond or deposit, and that the surety bond or deposits are conditioned on the payment of wages and advances made by construction property owners, farmers or owners or lessees of land intended to be used for the production of timber.

(3) The notice shall contain the name and Oregon address of the surety on the bond, if applicable, or the address of the bureau when a deposit is made with the commissioner.

(4) The commissioner has prepared a notice (WH-155) in English and Spanish which complies with this rule. Contractors may use any form or notice so long as it contains all the elements of Form WH-155.

History

Statutory/Other Authority: ORS 164, 165, 651 & 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0500 Action Against the Bond or Deposit

(1) Any person not paid wages owed to him/her by a labor contractor or any construction property owner, owner or property manager of property where janitorial services are or were to be performed, grower or producer of agricultural goods or owner or lessee of land intended to be used for the production of timber not paid advances due them by the farm or forest labor contractor has a right of action against the surety on the bond or deposit with the commissioner. The individual may exercise this right or may assign this right to another.

(2) The action on the bond or on the deposit held by the commissioner may not be joined in a suit or action on the bond or against the commissioner brought for any other claim.

(3) Any person seeking to recover on the bond or from the deposit with the commissioner must first establish the licensee's liability. The liability may be established in any of the following ways:

(a) A judgment of the court;

(b) A final administrative order issued pursuant to statute or rule;

(d) Other satisfactory evidence of liability as may be shown which establishes the liability.

(4) Claims against the bond or deposit will not be paid unless, within six months of the end of the period during which the bond or deposit applies, the claimant or claimant's assignee gives notice of the claim by certified mail to the surety or the commissioner. Notice of claim shall be sufficient if it states that a wage claim is being made by the worker against the contractor, and it is not a defense to payment on the bond or deposit that the amount of the wage claim is not specified in the notice, or that the ultimate amount of wages found to be due is greater than the amount specified in the notice.

(5) Any claim or notice of claim filed pursuant to a claimant's right of action must be filed as follows:

(a) If the filing is against a surety bond, the claim or notice must be filed with the surety. The name and address of the surety may be obtained from the Bureau of Labor and Industries, Wage and Hour Division, License Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR 97305;

(6) Except as provided in section (8) of this rule, the commissioner and the surety shall make payments on the bond or deposit in the following priority:

(a) Payments on wage claims;

(b) Payments on advances made to or on behalf of the contractor by a construction property owner, owner or property manager of property where janitorial services are or were to be performed, grower or producer of agricultural goods or an owner or lessee of land intended to be used for the production of timber;

(d) If there are insufficient funds to pay advances in full after all wage claims are paid, such advances will be paid in part.

(7) Except as provided in section (8) of this rule, in order to insure that all wage claims will be accorded priority treatment as required by ORS 658.415(9)(a), the commissioner may delay any payments for advances claimed, until the expiration of the time within which wage claims may be submitted. The commissioner may make conditional payment based upon adequate security that subsequent wage claims will be paid.

(8) Any person who suffers any loss of wages from the employer of the person or any other loss due to activities of an agricultural association or private nonprofit corporation as a farm labor contractor shall have a right of action against the surety upon the bond or against the deposit with the commissioner. The right of action is assignable and may not be included in any action against the agricultural association or private nonprofit corporation but shall be exercised independently after first procuring adequate proof of liability as provided in section (3) of this rule.

(9) A member of any agricultural association that is required to be licensed under ORS 658.410 shall be jointly and severally liable for any damages, attorney fees, or costs awarded to any person for actions taken by the association in its capacity as a farm labor contractor if such actions were required, authorized, approved or ratified by the member.

(10) The surety company or the commissioner shall make prompt and periodic payments on the agricultural association's or private nonprofit corporation's liability up to the extent of the total sum of the bond or deposit. Payments shall be made in the following manner:

(a) Payment based upon priority of wage claims over other liabilities;

(b) Payment in full of all sums due to each person who presents adequate proof of the claim; and

(c) If there are insufficient funds to pay in full the person next entitled to payment in full, payment in part to the person.

History

Statutory/Other Authority: ORS 164, 165, 651 & 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BLI 7-2000, f. & cert. ef. 2-23-00
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0502 Contractor to Pay Food and Lodging Expenses of Workers Who Travel Prior to the Availability of Employment

(1) When a worker is recruited or solicited for work and the worker is required to travel from one place to another before there is work available, the labor contractor shall furnish to the worker, at no cost to the worker, food and lodging until the work begins. The contractor shall provide, without cost to the worker, the following:

(a) Lodging facilities which comply with the provisions ORS Chapter 654 and the rules adopted thereunder; and

(b) An adequate supply of food to feed the worker at least twice in a 24 hour period.

(2) The lodging facilities and adequate supply of food referred to in section (1) of this rule shall be provided by the contractor to the worker at no cost to the worker for as long as the worker must wait for work to become available.

(3) The worker may not be charged the cost of food and lodging provided pursuant to section (1) of this rule before or after the worker starts work.

(4) As used in this rule an "adequate supply of food" means an amount and variety of food sufficient to meet commonly accepted daily nutritional requirements for adults, minors, males or females, as the case may be.

History

Statutory/Other Authority: ORS 164, 165, 651 & 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-015-0503 Contractor to Pay Certain Transportation Costs

When a worker arrives at a place of employment pursuant to OAR 839-015-0502(1), and work is not available to that worker within 30 days of the date the work was represented to begin, the contractor shall:

(1) Refund to the worker, all sums paid to the contractor by the worker.

(2) Provide to the worker cash or a negotiable instrument in an amount sufficient to pay for one of the following circumstances:

(a) The cost of transportation, including the cost of meals and lodging while in transit, to return the worker to the place where the worker left as a result of the recruitment or solicitation; or

(b) At the option of the worker, the cost of transportation, including meals and lodging while in transit to any other worksite selected by the worker, but no greater amount need be paid than the amount specified in subsection (a) of this section.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.440(2)(c) & 962
Statutes/Other Implemented: ORS 658.440(2)(c)
BL 3-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-015-0504 Application of OAR 839-015-0502 and 839-015-0503 Limited

(1) OAR 839-015-0502 and 839-015-0503 do not apply to workers who, pursuant to 839-015-0502(1), arrive at a place of employment before the date instructed by the contractor or agreed to by the worker and the contractor. The provisions of such rules are applicable only on and after the date agreed upon, when no work is available on that date.

(2) OAR 839-015-0502 and 839-015-0503 do not apply to workers who have been provided housing or employment and who have not otherwise been recruited or solicited by the contractor or the contractor’s agent prior to the arrival of the worker at the place of housing or employment.

History

Statutory/Other Authority: ORS 164, 165, 651, 658.440(2)(c) & 962
Statutes/Other Implemented: ORS 658.440(2)(c)
BL 3-1990, f. & cert. ef. 3-1-90

Or. Admin. R. 839-015-0505 Definitions for Civil Penalties

As used in OAR 839-015-0505 to 839-015-0530:

(1) "Knowingly" or "willfully" means action undertaken with actual knowledge of a thing to be done or omitted or action undertaken by a person who should have known the thing to be done or omitted. A person "should have known the thing to be done or omitted" if the person has knowledge of facts or circumstances which, with reasonably diligent inquiry, would place the person on notice of the thing to be done or omitted to be done. A person acts knowingly or willfully if the person has the means to inform himself or herself but elects not to do so. For purposes of this rule, the farm labor contractor, forest labor contractor or any person acting as a farm or forest labor contractor is presumed to know the affairs of their business operations relating to farm or forest labor contracting.

(2) "Violation" means a transgression of any statute or rule, or any part thereof and includes both acts and omissions.

History

Statutory/Other Authority: ORS 651 & 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BL 2-1996, f. & cert. ef. 1-9-96
BL 16-1988, f. & cert. ef. 12-13-88
BL 11-1988(Temp), f. & cert. ef. 6-17-88

Or. Admin. R. 839-015-0507 Violations Separate and Distinct

Each violation is a separate and distinct offense. In the case of continuing violations, each day’s continuance is a separate and distinct violation.

History

Statutory/Other Authority: ORS 651 & 658.407(3)
Statutes/Other Implemented: ORS 658.405 - 658.503
BL 16-1988, f. & cert. ef. 12-13-88
BL 11-1988(Temp), f. & cert. ef. 6-17-88

Or. Admin. R. 839-015-0508 Violations for Which a Civil Penalty May Be Imposed

(1) Pursuant to ORS 658.453, the commissioner may impose a civil penalty for each of the following violations:

(a) Recruiting, soliciting, supplying or employing workers without a license to act as a labor contractor in violation of ORS 658.410;

(b) Failing to carry a labor contractor's license at all times while acting as a labor contractor and exhibit it upon request to any person with whom the contractor intends to deal in the capacity of a labor contractor, in violation of ORS 658.440(1)(a);

(c) Failing to post a notice in English and in any other language used to communicate with workers that the contractor has a bond or deposit and where claims can be made against the bond or deposit in violation of ORS 658.415(15);

(d) Failing to file a change of address notice with the U.S. Post Office and the bureau in violation of ORS 658.440(1)(b);

(e) Failing to pay or distribute when due any money or other valuables entrusted to the contractor in violation of ORS 658.440(1)(c);

(f) Failing to comply with contracts or agreements entered into as a contractor in violation of ORS 658.440(1)(d);

(g) Failing to furnish each worker, at the time of hiring, recruiting, soliciting or supplying, whichever occurs first, a written statement that contains the terms and conditions described in ORS 658.440(1)(f);

(h) Failing to execute a written agreement between the worker and the labor contractor containing the terms and conditions described in ORS 658.440(1)(f), at the time of hiring and prior to the worker performing any work for the labor contractor;

(i) Failing to furnish each worker with an itemized deduction statement and statement as to the rate of wage to be paid and other information in violation of ORS 658.440(1)(h);

(j) Making misrepresentations, false statements or willful concealments on the license applications in violation of ORS 658.440(3)(a);

(k) Willfully making or causing to be made any false, fraudulent or misleading information concerning the terms, conditions or existence of employment in violation of ORS 658.440(3)(b);

(l) Soliciting or inducing or causing to be solicited or induced a violation of an existing employment contract in violation of ORS 658.440(3)(c);

(m) Knowingly employing a noncitizen not legally employable or present in the United States in violation of ORS 658.440(3)(d);

(n) Assisting an unlicensed person to act as a contractor in violation of ORS 658.440(3)(e);

(o) Inducing in any manner whatsoever an employee or subcontractor to give up any part of the employee's or subcontractor's compensation to which they are entitled under an employment contract or under federal or state wage laws in violation ORS 658.440(3)(f);

(p) Soliciting, inducing, or causing to be solicited or induced, the travel of a worker from one place to another by representing to a worker that employment for the worker is available at the destination when employment for the worker is not available within 30 days after the date work was represented as being available, is in violation of ORS 658.440(3)(g);

(q) Discharging or in any other manner discriminating against employees in violation of ORS 658.452;

(r) Failing to provide lodging and food when required by ORS 658.440(2)(c) and these rules;

(s) Failing to carry the license in violation of ORS 658.440(1)(a);

(t) Failing to exhibit the license in violation of ORS 658.440(1)(a);

(u) Failing to provide certified true copies of payroll records in violation of ORS 658.440(1)(i);

(v) Failing to provide workers' compensation insurance in violation of ORS 658.440(1)(j).

(2) In the case of forest labor contractors, in addition to any other penalties, a civil penalty may be imposed for failing to obtain a special indorsement from the bureau to act as a forest labor contractor in violation of ORS 658.417(1).

(3) The commissioner may impose a civil penalty on a person to whom workers are to be provided, when the person or the person's agent allows work to be performed on any contract or agreement with an unlicensed labor contractor without first complying with the provisions of ORS 658.437(2).

(4) In the case of property services contractors a civil penalty may be imposed for:

(a) Failing to provide professional training to managers, supervisors and workers the property services contractor employs in janitorial services required by ORS 658.428 and OAR 839-015-0380;

(b) Failing to provide information on the total number of workers the property services contractor employs in janitorial services, the work locations at which janitorial services are provided, or any demographic data that is voluntarily provided by workers as required under ORS 658.427, OAR 839-015-0355, and OAR 839-015-0400.

History

Statutory/Other Authority: ORS 651 & 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 7-2023, minor correction filed 07/18/2023, effective 07/18/2023
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 40-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BL 2-1996, f. & cert. ef. 1-9-96
BL 3-1990, f. & cert. ef. 3-1-90
BL 16-1988, f. & cert. ef. 12-13-88
BL 11-1988(Temp), f. & cert. ef. 6-17-88

Or. Admin. R. 839-015-0509 Inspection of Contractor’s License or Temporary Permit

A person to whom an unlicensed labor contractor provides workers violates ORS 658.437(2) when the person or person's agent did not, prior to allowing work to be performed on any contract or agreement with the contractor:

(1) Inspect the contractor's apparently valid labor contractor's license or temporary permit that has not expired and identify the contractor providing the workers as the same individual whose photo appears on the license or temporary permit; and

(2) Retain a copy of the license or temporary permit provided to the person or the person's agent by the contractor.

History

Statutory/Other Authority: ORS 658.407
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 40-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-015-0510 Criteria for Determining a Civil Penalty

(a) The history of the contractor or other person in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(d) Whether the contractor or other person knew or should have known of the violation.

(2) It shall be the responsibility of the contractor or other person to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be imposed.

(3) In arriving at the actual amount of the civil penalty, the commissioner shall consider the amount of money or valuables, if any, taken from employees or subcontractors by the contractor or other person in violation of any statute or rule.

(4) Notwithstanding any other section of this rule, the commissioner shall consider all mitigating and aggravating circumstances presented by the contractor or other person for the purpose of determining the amount of the civil penalty to be imposed.

History

Statutory/Other Authority: ORS 651 & 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BL 2-1996, f. & cert. ef. 1-9-96
BL 16-1988, f. & cert. ef. 12-13-88
BL 11-1988(Temp), f. & cert. ef. 6-17-88
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0512 Schedule of Civil Penalties

(1) The civil penalty for any one violation shall not exceed $2,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) For purposes of this rule, "repeated violations" means violations of a provision of law or rule which have been violated on more than one contract within two years of the date of the most recent violation.

(3) When the Commissioner determines to impose a civil penalty for acting as a labor contractor without a valid license the minimum civil penalty shall be as follows:

(a) $500 for the first violation;

(b) $1,000 for the first repeated violation;

(4) The civil penalty for all other violations shall be set in accordance with the determinations and considerations referred to in OAR 839-015-0510.

(5) The civil penalties set out in this rule are in addition to any other penalty assessed by law or rule.

History

Statutory/Other Authority: ORS 658.407 & ORS 651
Statutes/Other Implemented: ORS 658.453
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 12-2001, f. 8-31-01, cert. ef.9-1-01
BL 5-1996, f. 6-14-96, cert. ef. 7-1-96
BL 16-1988, f. & cert. ef. 12-13-88
BL 11-1988(Temp), f. & cert. ef. 6-17-88

Or. Admin. R. 839-015-0520 Denying, Suspending, Revoking or Refusing to Renew License

(1) The following violations are considered to be of such magnitude and seriousness that the Commissioner may propose to deny or refuse to renew a license application or to suspend or revoke a license:

(a) Making a misrepresentation, false statement or certification or willfully concealing information on the license application;

(b) Causing an existing contract of employment to be violated;

(d) Assisting an unlicensed person to act as a labor contractor;

(e) In any way inducing an employee or subcontractor of the contractor to give up any part of the compensation to which the employee or subcontractor is entitled under a contract or under federal or state wage laws;

(f) Discharging or discriminating in any way against an employee in violation of ORS 658.452;

(g) Intentionally altering a license or permit, or using the license or permit of another;

(h) Knowingly permitting another to use the licensee's license or permit;

(i) Acting as a labor contractor without a license;

(2) In addition to the reasons listed in (1) of this rule, in the case of property services contractors the following violations are also considered to be of such magnitude and seriousness that the commissioner may propose to deny or refuse to renew a license application or to suspend or revoke a license:

(a) Failing to provide information on the total number of workers the property services contractor employs in janitorial services, the work locations at which janitorial services are provided by the property services contractor, or any demographic data that is voluntarily provided by workers; or

(b) Failing to provide professional training to managers, supervisors and workers the property services contractor employs in janitorial services as required by ORS 658.428 and OAR 839-015-0380.

(3) When the applicant for a license or a licensee demonstrates that the applicant's or licensee's character, reliability or competence makes the applicant or licensee unfit to act as a labor contractor, the Wage and Hour Division shall propose that the license application be denied or license of the licensee be suspended, revoked or not renewed.

(4) The following actions of a labor contractor license applicant or licensee or an agent of the license applicant or licensee demonstrate that the applicant's or the licensee's character, reliability or competence make the applicant or licensee unfit to act as a labor contractor:

(a) Violations of any section of ORS 658.405 to 658.485;

(b) Conviction of a felony in connection with the applicant's or licensee's business operations as a labor contractor;

(d) Failure to comply with federal, state or local laws or ordinances relating to the payment of wages, income taxes, social security taxes, unemployment compensation tax or any tax, fee or assessment of any sort;

(e) Knowing failure or refusal to seek food, water, shelter, or medical attention, or to provide any other necessary goods or services required by law for the safety and health of workers;

(f) Repeated failure to file or furnish all forms and other information required by ORS 658.405 to 658.503 or these rules;

(g) Failure to report any change in the circumstances under which the license was issued, including the failure to notify the Bureau of any change in the permanent or temporary address of the applicant or licensee;

(h) Willful misrepresentation, false statement or concealment in the application for a license;

(i) Willfully making or causing to be made to any person any false, fraudulent or misleading representation, or publishing or circulating any false, fraudulent or misleading information concerning the terms, conditions or existence of employment at any place or by any person;

(j) Failure to provide workers compensation coverage for each worker or to make worker's compensation insurance premium payments when due;

(k) Employing or using an agent who has had a labor contractor license denied, suspended, revoked or not renewed or who has otherwise violated ORS 658.405 to 658.503;

(l) Failure to maintain the bond or cash deposit as required by ORS 658.405 to 658.503 or these rules;

(m) A course of misconduct in relations with workers, farmers and others with whom the person conducts business;

(n) Failure to pay all debts owed, including advances and wages, in a timely manner;

(o) Failure to promptly satisfy any or all judgments levied against the applicant/licensee;

(p) Conduct of the applicant/licensee resulting in the inability to obtain a bond.

(5) When a labor contractor's license application is denied or a license is revoked or when the commissioner refuses to renew a license, the commissioner will not issue the applicant or licensee a license for a period of three (3) years from the date of the denial, refusal to renew or revocation of the license.

(6) Notwithstanding section (5) of this rule, the commissioner, for good cause shown, may issue a license to a contractor whose application has been previously denied or whose license was not renewed or was revoked before the expiration of three years, provided:

(a) The contractor submits a petition explaining each and every reason why the contractor should be licensed;

(b) The contractor files a completed application with the petition and pays the appropriate fees.

(7) As used in section (5) of this rule, "good cause" means an excusable mistake or a circumstance beyond a person's control.

(8) The commissioner shall grant or deny the petition referred to in section (5) of this rule and in so doing shall consider the following factors:

(a) The magnitude and seriousness of the violation or violations which led to the denial, refusal to renew or revocation of the license;

(b) The petitioner's past history in taking all necessary measures to prevent or correct violations of statutes or rules;

(d) Other matters which indicate to the commissioner whether or not the petitioner is likely to violate ORS 658.405 to 658.475 and these rules in the future.

(9) Nothing in this rule shall preclude the commissioner from imposing a civil penalty in lieu of denying or refusing to renew a license application or in lieu of suspension or revocation of a license.

History

Statutory/Other Authority: ORS 651 & ORS 658
Statutes/Other Implemented: ORS 658.405 - 658.503
BLI 8-2023, minor correction filed 07/18/2023, effective 07/18/2023
BLI 19-2018, amend filed 09/12/2018, effective 09/14/2018
BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BL 2-1996, f. & cert. ef. 1-9-96
BL 16-1988, f. & cert. ef. 12-13-88
BL 11-1988(Temp), f. & cert. ef. 6-17-88
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0525 Immediate Suspension or Refusal to Renew a License; Notice of Opportunity for Hearing; Service

(1) If the Bureau finds there is a serious danger to the public health or safety, it may immediately suspend or it may refuse to renew a license. For purposes of this rule, such a decision is referred to as an emergency suspension order. An emergency suspension order is a written order which is not a final order under ORS Chapter 183. An emergency suspension order is not an order in a contested case and may be issued without notice or an opportunity for a hearing as required for contested cases under ORS Chapter 183.

(2)(a) Except where the danger to the public health or safety is so imminent that opportunity for the licensee to object under section (3) of this rule is not practicable as determined by the Bureau, the Bureau shall provide the licensee with notice and opportunity to object prior to issuing the emergency suspension order. For purposes of this rule, this notice is referred to as a presuspension notice;

(b) The presuspension notice shall:

(A) Specify the acts of the licensee and the evidence available to the Bureau which would be grounds for revocation, suspension or refusal to renew the license under the Bureau's usual procedures;

(B) Specify the reasons why the acts of the licensee seriously endanger the public health or safety;

(C) Identify a person in the Bureau authorized to issue the emergency suspension order or to make recommendations regarding the issuance of the emergency suspension order.

(c) The Bureau may provide the presuspension notice to the licensee in writing, orally by telephone or in person, or by any other means available to the Bureau;

(d) Where the presuspension notice is given orally, the Bureau subsequently shall provide the licensee with a written copy of the notice.

(3) Following the presuspension notice, the Bureau shall provide the licensee an immediate opportunity to object to the Bureau's specifications provided in the presuspension notice before a person authorized to issue the emergency suspension order or to make recommendations regarding the issuance of the emergency suspension order.

(4)(a) When the Bureau issues the emergency suspension order, the Bureau shall serve the order on the licensee either personally or by registered or certified mail; and

(b) The order shall include the following statements:

(A) Those required under ORS 183.415(2) and (3);

(B) That the licensee has the right to demand a hearing to be held as soon as practicable to contest the emergency suspension order;

(C) That if the demand is not received by the agency within 90 days of the date of notice of the emergency suspension order the licensee shall have waived its right to a hearing under ORS Chapter 183;

(D) The effective date of the emergency suspension order;

(E) The specifications noted in subsection (2)(b) of this rule;

(F) That with the agreement of the licensee and the Bureau the hearing opportunity on the emergency suspension order may be combined with any other Bureau proceeding affecting the license. The procedures for a combined proceeding shall be those applicable to the other proceeding affecting the license.

(5)(a) If timely requested by the licensee pursuant to subsection (4)(b) of this rule, the Bureau shall hold a hearing on the emergency suspension order as soon as practicable; and

(b) At the hearing, the Bureau shall consider the facts and circumstances including, but not limited to:

(A) Whether at the time of issuance of the order there was probable cause to believe from the evidence available to the Bureau that there were grounds for revocations, suspension or refusal to renew the license under the Bureau's usual procedures;

(B) Whether the acts or omissions of the licensee pose a serious danger to the public's health or safety;

(D) Whether the Bureau followed the appropriate procedures in issuing the emergency suspension order.

History

Statutory/Other Authority: ORS 164, ORS 165, ORS 651 & ORS 658
BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018
BL 3-1990, f. & cert. ef. 3-1-90
BL 16-1988, f. & cert. ef. 12-13-88

Or. Admin. R. 839-015-0530 Knowing Employment of a Noncitizen Not Legally Present or Legally Employable in the United States

(1) A contractor knowingly employs a noncitizen who is not legally present or legally employable in the United States, in violation of ORS 658.440(3)(d), if the contractor:

(a) Actually knows that the noncitizen is not legally present and/or not legally employable in the United States; or

(b) Would know that fact if the contractor made efforts to ascertain the noncitizen's status in the United States which were reasonably diligent under the circumstances as the contractor knows them.

(2) Efforts to ascertain a noncitizen's status in the United States which are reasonably diligent under the circumstances as a contractor knows them include but are not limited to the following actions by the contractor:

(a) Making clear to all applicants, hirees and workers that they cannot work for the contractor unless they are legally present and legally employable in the United States;

(b) Taking one of the following actions:

(A) Requiring that every hiree produce documentary proof that he/she is legally present and legally employable in the United States before he/she begins work; or

(B) Asking all applicants for employment if they are U.S. citizens and requiring that any applicant who has indicated that she/he is not a U.S. citizen, and whom the contractor intends to hire, produce such proof.

(c) Familiarizing itself with pertinent U.S. Immigration and Naturalization Service (INS) regulations and procedures, the types of documentary proof listed in section (4) of this rule, and the other types of documentary identification of noncitizens issued by INS; and

(d) Making additional efforts to better discourage and detect the presence of noncitizens not legally present and/or not legally employable in the United States in the contractor's workforce, if the contractor knows or should know that the contractor's past efforts to accomplish that objective have been unsuccessful.

(3) A contractor should be suspicious that an applicant, hiree or worker is not legally present and/or not legally employable in the United States if, for example:

(a) The documentation of that individual's status in the United States:

(A) Does not evidence the individual's legal presence and legal employability in the United States;

(B) Appears on its face to be counterfeit;

(D) In the case of documentation of noncitizen status, does not match the INS specimens of the documentary identification which INS issues for noncitizens;

(b) The applicant, hiree or worker has given the contractor contradictory information relating to his/her status in the United States or information on that subject which conflicts with pertinent INS regulations and procedures;

(c) The contractor knows or should know that the applicant, hiree or worker has been apprehended by INS as a noncitizen not legally present or legally employable in the United States and/or, because of that status, returned to the noncitizen's country of citizenship; or

(d) The contractor is aware of information indicating that the applicant, hiree or worker is a noncitizen not legally present or legally employable in the United States.

(4) Documentary proof that an individual is legally present and legally employable in the United States includes:

(a) Acceptable evidence of United States' citizenship:

(A) Birth certificate showing place of birth within the United States, its territories or possessions;

(B) Certificate of citizenship;

(D) U.S. identification card (INS Form I-179 or I-197);

(E) Passport issued by the United States identifying the individual as a citizen of the United States;

(F) Consular report of birth (State Department Form FS-40);

(G) Baptismal certificate under seal of a church or other religious body which practices infant baptism showing the individual's date and place of birth within the United States, its territories or possessions;

(H) A document under seal of a religious body which does not practice infant baptism showing the individual's date and place of birth within the United States, its territories or possessions;

(I) Tribal enrollment card in an American Indian tribe recognized by the Bureau of Indian Affairs;

(J) Other written advice from INS attesting that the individual is a citizen of the United States;

(K) A copy of a declaration, signed by the person under penalty of prosecution for violation of Title 18 U.S.C. 1001, and witnessed by the signature of the appropriate official of the U.S. Employment Service, affixed in the presence of the applicant, filed with the U.S. Employment Service or any of its affiliated offices, attesting that such individual is a citizen of the United States, was born at the place stated and on the date set forth thereon, and reciting the following additional information:

(i) Social security number of such individual (voluntary); and

(ii) Names and addresses of three adult citizens of the United States who can be contacted to verify the individual's citizenship.

(L) A certificate issued by the U.S. Department of Labor, Bureau of Employment Security, or the Commonwealth of Puerto Rico which attests that, based upon examination of any of the documents prescribed by paragraphs (a)(A) through (L) of this section, the individual named and identified by the picture on that certificate was born within the United States (including its territories and possessions) at the place and on the date specified thereon and which sets forth such individual's home address (street and number, city, state, and zip code) and social security number.

(b) INS Form I-151 or I-551, Alien Registration Receipt Card;

(c) INS Form I-94 (with or without a passport) bearing an employment authorization consisting of the words "Employment Authorized";

(d) INS Form I-94 (with or without a passport) bearing the designation of H-2, as endorsed on the front or back of the form, authorizing an individual to engage only in agricultural employment during the period of such individual's authorized stay in the United States;

(e) INS forms I-688 and I-688A;

(f) Any other written document from INS indicating that the individual is a noncitizen authorized by INS to accept such employment in the United States; or

(g) U.S. Armed Forces Discharge Papers.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 164, 165, 651, 658.407(3) & 962
Statutes/Other Implemented: ORS 658.440(3)(d)
BLI 9-2023, minor correction filed 07/18/2023, effective 07/18/2023
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BL 3-1990, f. & cert. ef. 3-1-90
BL 6-1984, f. & ef. 4-27-84

Or. Admin. R. 839-015-0600 Procedure for Filing Civil Action under ORS 658.453

(1) Any worker who wishes to file a civil action pursuant to ORS 658.453 must file a complaint with the Bureau.

(2) The complaint must be in writing and contain the names of the persons or entities against whom the complaint is filed. A copy of the proposed complaint to be filed with the court may, if available, be attached to the complaint filed with the Bureau. The worker filing the complaint with the Bureau may also state whether the worker intends to pursue a private civil court action.

(3) The complaint is considered filed with the Bureau on the date that it is mailed to the Bureau or the date it is emailed to the Administrator of the Wage and Hour Division.

(4) The complaint that is filed with the Bureau should be filed prior to the filing in court of a civil complaint pursuant to ORS 658.453. However, if the complaint filed with the Bureau is not filed prior to the filing of a complaint in court but is done so before the entry of a final judgment, it shall be considered to be filed timely for purposes of ORS 658.453.

History

Statutory/Other Authority: ORS 651.060 & ORS 658.450
Statutes/Other Implemented: ORS 658.405 - 658.511
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BL 2-1996, f. & cert. ef. 1-9-96
BL 16-1988, f. & cert. ef. 12-13-88

Or. Admin. R. 839-015-0605 Knowingly Using the Services of an Unlicensed Contractor

(1) Pursuant to ORS 658.465(1), any person who knowingly uses the services of an unlicensed labor contractor is personally, jointly and severally liable with the person acting as a to the same extent and same manner as provided in 658.453(4).

(2) A person knowingly uses the services of an unlicensed labor contractor in violation of ORS 658.465(1), if the person:

(a) Uses the services of a person acting as a labor contractor and the person actually knows that the contractor does not have a valid license to act as a labor contractor; or

(b) Allows work to be performed on any contract or agreement with an unlicensed labor contractor without first complying with the provisions of ORS 658.437(2) and OAR 839-015-0509.

History

Statutory/Other Authority: ORS 651 & ORS 658.407(3)
Statutes/Other Implemented: ORS 658.465(1)
BLI 5-2017, amend filed 11/30/2017, effective 01/01/2018
BLI 13-2014, f. 11-14-14, cert. ef. 7-1-15
BLI 4-2008, f. & cert. ef. 3-10-08
BLI 12-2001, f. 8-31-01, cert. ef. 9-1-01
BL 16-1988, f. & cert. ef. 12-13-88

Or. Admin. R. 839-015-0610 Actions Under ORS 658.475 for Injunctive or Declaratory Relief and Damages

(1) Any person, including any worker, who wishes to file a civil action pursuant to ORS 658.475 may do so. The person is not required to file a complaint with the Bureau. However, if a person filing the action desires to notify the Bureau, the person may do so by sending a copy of the complaint that the person filed with the court to the Bureau.

(2) The damages provided for in ORS 658.475 are in addition to damages provided for in any other statute including, but not limited to, ORS 658.453.

History

Statutory/Other Authority: ORS 651.060
Statutes/Other Implemented: ORS 658.405 - 658.511
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 28-2005, f. 12-29-05, cert. ef. 1-1-06
BL 2-1996, f. & cert. ef. 1-9-96
BL 16-1988, f. & cert. ef. 12-13-88

Division 17 PRIVATE EMPLOYMENT AGENCY MATTERS

Or. Admin. R. 839-017-0004 Definitions Generally

As used in ORS 658.005 to 658.245 and in these rules unless the context requires otherwise:

(1) "Advertising" means any material or means used by the employment agency for solicitation or promotion of business. This includes, but is not limited to, business cards, notices or announcements in newspapers, radio, television, brochures, pamphlets, gift items, and signs. It may also mean referral cards, invoices, letterheads, or other forms if such forms are used in combination with solicitation and promotion of business.

(2) "Applicant for Employment" means an individual who is seeking or who has obtained employment through the services of an employment agency.

(3) "Bureau" means the Bureau of Labor and Industries of the State of Oregon.

(4) "Charge for Services" means any money or other consideration paid or promised to be paid by an applicant for employment for services rendered by an employment agency.

(5) "Commissioner" means the Commissioner of the Bureau of Labor and Industries or the Commissioner's authorized deputies and officers.

(6) "Employment listing service" means a business operated by a person that:

(a) Provides lists of specified positions of employment available with an employer listing service or that holds itself out to individuals as able to provide information about specific positions of employment with an employer other than the employment listing service;

(b) Charges an individual a fee for its services; and

(c) Does not arrange or set up interviews between an individual and a prospective employer or otherwise intercede between an individual and a prospective employer but may offer limited counseling and employment-related services to an individual that includes, but is not limited to, personal grooming and appearance and interview preparation.

(7) "Engaged in Procuring for a Fee, Employment for Others and Employees for Employers" as used in ORS 658.005(3) means all actions of an employment agency leading up to and including the placing of job applicants in employment with others, provided a charge for services is paid to the employment agency by an applicant. Such actions include but are not limited to:

(a) Assisting an individual in completing the agency's application form or other documents detailing the individual's work experience and general qualifications for employment;

(b) Interviewing an individual in connection with specific job openings or in connection with the agency's general practice and procedure for determining the experience and qualifications of an applicant for employment;

(d) Soliciting and obtaining job orders from employers;

(e) Recruiting individuals to fill job orders obtained from employers;

(f) Advertising for individuals to fill job orders obtained from employers;

(g) Other activities that cause, acquire, gain, get or bring about the placement of individuals in employment.

(8) "Fee Paid Position" means a position in which under no circumstances is the applicant for employment who is identified, appraised, referred, or recommended charged a deposit, retainer, fee or any other charge for services directly or indirectly at any time in connection with such position.

(9) "Violation" means a transgression of any statute, rule or order, or any part thereof and includes both acts and omissions.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BLI 6-2003, f. 12-31-03, cert. ef. 1-1-04
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988 f. & cert. ef. 5-16-88, Renumbered from 839-017-0176
BL 10-1987(Temp), f. 9-30-87, cert. ef. 10-1-87
BL 12-1978, f. & cert. ef. 8-16-78
BL 200-1977, f. 11-1-77, f. & cert. ef. 11-15-77
BL 157-1974, f. 2-20-74, f. & cert. ef. 3-15-74
BL 156-1974(Temp), f. 2-20-74, cert. ef. 3-1-74
BL 149-1973(Temp), f. 10-30-73, cert. ef. 11-1-73

Or. Admin. R. 839-017-0011 Contents of Contracts between Employment Agencies and Applicants for Employment

(1) All employment agencies making a charge for service to the applicant for employment, either directly or indirectly, must have a written contract with the applicant for employment which contains the requirements set out in ORS 658.005 to 658.245.

(2) The contract shall contain a schedule of maximum service charges. When the agency places applicants for employment in permanent employment (as defined in ORS 658.185(1)(a)), temporary employment (as defined in 658.185(1)(b)) or in employment compensated on a commission basis, the schedule shall contain separate sections pertaining to the types of employment in which applicants for employment are placed. However, separate sections are required only when the agency makes placements in more than one type of employment.

(3) See Appendix 1 for an example of a contract which complies with this rule.

[ED. NOTE: Appendices referenced are available from the agency.]

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0012 Additional Requirements for Contracts between Employment Agencies and Applicants for Employment

In addition to the requirements of the statutes included in OAR 839-017-0011, the following contract clauses must be in all contracts between the employment agency and an applicant for employment who may be responsible for the agency’s charge for services either directly or indirectly:

(1) “A refund, when due, shall be made within ten (10) days after notice of termination of the applicant’s employment has been received by the agency.”

(2) “If my employment lasts less than ninety (90) calendar days, _____ (agency) _____ shall reduce the service charge so that it will not exceed one-ninetieth of the charge for permanent employment for each consecutive calendar day during the period I am employed or compensated as though employed.”

(3) “I understand I shall be responsible for only one full fee for any single placement whether or not employment is secured through the assistance of more than one employment agency.”

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.165 & 658.185
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0013 Contract Requirements When Employment Compensation Is Based on Commission

In addition to the requirements of OAR 839-017-0011 and 839-017-0012, the following clauses are required to be in all contracts between agencies and applicants for employment when placements are made or to be made on commission positions:

(1) “Should proof be presented after six months and/or twelve months of employment that the estimates of total gross earnings were inaccurate, _____ (agency) _____ shall refund to the applicant any excess charges paid by him, or the applicant shall pay to _____ (agency) _____ any deficiency in charges.”

(2) “If the applicant’s compensation is based on commission and his employment is terminated prior to the conclusion of the first twelve months of employment, the actual total gross earnings of the applicant for the period of employment shall be projected to twelve months on a pro-rata basis as though the applicant had been employed for the entire period of twelve months, and a computation shall be made thereon. The adjusted charge for services by the applicant shall be predicated upon such computation.”

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.185
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0025 Contract Clauses or Statements That Are Not Required but May Be Included

The following clauses or statements are not required to be in any contract between the employment agency and the applicant for employment who may be responsible for the agency’s charge for service directly or indirectly, but so long as consistent with other required or permissible clauses, may be included in the contract between the employment agency and the applicant for employment:

(1) “In no instance in which the employment secured is subsequently terminated shall the charge for services be greater than the total gross earnings of the applicant.”

(2) “One month equals 1/12th of a year or 4-1/3 weeks.”

(3) “These service charges often may be deducted for income tax purposes.”

(4) “Payment of any refund which shall be due shall be made to the applicant’s lender, if any, to the extent of the then unpaid balance of such loan to minimize the liability of _____ (agency) _____ for the interest, fees, or other charges incurred by the applicant.”

(5) “I will keep the agency informed about the results of all arranged interviews, and will advise the agency at once upon acceptance of employment, or if employment which has been accepted is terminated for any reason.”

(6) “I hereby give permission for references to be checked for purposes of employment, and understand that upon request _____ (agency) _____ will divulge the content of same to me.”

(7) “If the applicant fails to perform this contract, or to pay the agency’s service charge provided herein, then the applicant agrees to pay _____ (agency) _____ reasonable attorney’s fees and other costs of collection as determined by a court.”

(8) “There shall be no oral agreements or oral additions to this contract. Any further terms, conditions, or understandings shall be in writing.”

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.168(4)
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156, f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0030 Refunds to Applicants

(1) Whenever an agency receives notice from any source that an applicant for employment has terminated employment within the time which requires a refund of a portion or all of the agency’s charge for services, the agency shall refund within ten days of such notice, by cash or its equivalent, and not by goods or services, all sums due as a refund to the applicant.

(2) Those applicants for employment whose compensation is based upon commission employment and who have presented proof of earnings at the end of six and/or twelve months which may require a refund of a portion of the agency’s charges, shall receive such refund from the agency within ten days of such request.

(3) Contracts or agreements shall not contain statements or understandings concerning job replacement or other goods and services contrary to this rule.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.185
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149, f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0031 Oral Agreements or Additions to Contracts Prohibited

There shall be no oral agreements or oral additions to any contract between the employment agency and the applicant for employment. Any terms, conditions, or understandings between the employment agency and the applicant for employment shall be in writing.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.168
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0032 Record of Contracts

All contracts shall be in numerical order and registered in a log. The log will contain the contract number, the date, and the name of the applicant as it appears in some uniform place in the contract. A separate set of numbers may be used for “fee” and “fee paid” contracts.

History

Statutory/Other Authority: ORS 658.210 & 658.078
Statutes/Other Implemented: ORS 658.078
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0040 Fee Paid Positions

(1) When an employment agency deals in both fee paid positions and in positions for which the applicant for employment pays the charge for service, and when the agency intends to assist individuals exclusively with referrals and placements in fee paid positions, the agency must enter into a written agreement with each individual applicant for employment. This agreement may be similar to that as provided in Appendix 2. If the applicant subsequently desires referrals to applicant fee paid positions, the agency must enter into a new contract in conformity with OAR 839-017-0011 to 839-017-0045 before any such referral is made.

(2) Written disclosure to the applicant for employment that is provided for in section (1) of this rule shall not be required when the position for which the applicant for employment is applying or being recruited will pay the applicant for employment no less than $30,000 per year on a salary basis.

[ED. NOTE: Appendices referenced are available from the agency.]

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988, f. & cert. ef. 5-16-88
BL 200-1977, f. 11-1-77, cert. ef. 11-15-77
BL 157, f. 2-20-74, cert. ef. 3-15-74
BL 156-1974(Temp), f. 2-20-74, cert. ef. 3-1-74
BL 149-1973(Temp), f. 10-30-73, cert. ef. 11-1-73

Or. Admin. R. 839-017-0045 Addendum to Contract to Provide Specific Terms for Payment

After an applicant for employment has accepted employment with an employer, but before actually starting work, the applicant and the employment agency may change the terms agreed to in their original contract or enter into an addendum to the original contract between themselves which provides for specific terms of payment after the applicant actually starts work. See Appendix 3 for a sample form which complies with this rule.

[ED. NOTE: Appendices referenced are available from the agency.]

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.168(4)
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0051 Definitions for Job Order and Job Referral Document Rules

(1) “Open” or “Standing” job orders are for categories of jobs for which an employer usually has two or more open positions at any one given time although on occasion the employer is merely interested in receiving applications and does not hire immediately all qualified applicants. In addition, these are types of positions for which an employer has a steady and continuous need of qualified employes.

EXAMPLE: A job order from the central hiring office of a large bank to refer any qualified applicants the agency may have for teller openings that come up regularly and habitually.

(2) An “Exploratory Interview” or “Exploratory Job Order” means a bona fide order for employment valid for one specific applicant only.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.165
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156, f. 2-20-74, ef. 3-1-74
BL 149(Temp), f 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0052 Bona Fide Job Order Requirements

(1) A bona fide job order is valid for referral of any qualified applicant for employment until it is filled or canceled by the employer and may serve as the basis for agency advertising.

(2) A bona fide job order may be considered to have been given by an employer to an employment agency when the following conditions are met:

(a) The employer or the employer’s agent, in person, by telephone, telegram, facsimile or other electronic media, or in writing, registers a request that the agency recruit or gives permission to the agency to refer applicants for employment who meet stated job specifications;

(b) The agency contacts the employer after every thirty days to insure that the position is still vacant prior to any additional advertising or referrals.

(3) “Open” or “Standing” job orders are to be renewed prior to each interview with an applicant for employment and at the end of every thirty days in order for them to be current and valid. Open or Standing job orders may not be advertised in any way. Open or Standing job orders must be for specific job categories as distinguished from a specific job. Open or Standing job orders must fulfill all informational content requirements of “Regular” job orders. Open/Standing job orders will contain the title “Open” or “Standing” job order.

(4) An “Exploratory Interview” or “Exploratory Job Order” is not valid for advertising. Prior to any interview, an “exploratory” job order must be written up by the agency containing as much available job order information as can be supplied by the employer. A job referral document shall be supplied to the applicant, containing all available job order information, and the following underlined statement: “This is an exploratory interview. There is no definite position open with this employer at this time. However, this interview has been agreed to by the employer.” Employment agencies shall not obtain exploratory job orders/interviews in situations where they either have a “regular” job order, or access to one.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988, f. & cert. ef. 5-16-88
BL 200-1977, f. 11-1-77, cert. ef. 11-15-77
BL 157, f. 2-20-74, cert. ef. 3-15-74
BL 156-1974(Temp), f. 2-20-74, cert. ef. 3-1-74
BL 149-1973(Temp), f. 10-30-73, cert. ef. 11-1-73

Or. Admin. R. 839-017-0053 When an Exploratory Job Order/Interview Is Considered to Be Given

An Exploratory Job Order/Interview shall be considered to have been given if, as the result of the agency’s bringing the qualifications of an applicant for employment to the attention of an employer, the employer’s interest in exploring the possibility of employing the applicant is evidenced by the employer’s agreement to interview the applicant.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.165
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0054 Identification by Agency to Employer and Accepting Fee Paid Orders

(1) In the process of obtaining a job order, the employment agency shall identify itself as an employment agency to employers in an introductory statement in all cases unless identification of the specific agency representative to the specific employer representative has been previously established. Where the employer is to pay the fee, the agency must obtain the employer’s agreement from the personnel manager or other authorized agent.

(2) When accepting a job order for a fee paid position, the agency shall make a reasonable effort to inform the employer that the employer cannot collect the employment agency fee from the applicant for employment.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988, f. & cert. ef. 5-16-88
BL 200-1977, f. 11-1-77, cert. ef. 11-15-77
BL 157, f. 2-20-74, cert. ef. 3-15-74
BL 156-1974(Temp), f. 2-20-74, cert. ef. 3-1-74
BL 149-1973(Temp), f. 10-30-73, cert. ef. 11-1-73

Or. Admin. R. 839-017-0060 Information Required to Be Contained in a Job Order

(1) Except as provided in rule 839-017-0052(3), information that is required to be contained in all job orders includes:

(a) Normal hours of work per day. (State exceptions);

(b) Weekend or night work if indicated (total number and which days);

(d) The job title(s)/kind of work. A list of special skills required to perform adequately on the job together with the minimum performance level required. “Required” means only those skills which will be regularly and habitually required to gain the job, perform at a minimum level on the job and to retain the job. This section shall not apply to any job with a starting salary of $30,000 per year or more;

(e) A list of established fringe benefits (considerations of privilege) such as holidays, sick leave, car allowances, expense allowances, room and board, medical and hospital insurance, vacations together with whether or not paid by the employer as indicated by the employer;

(f) The number of the job order;

(g) The date received;

(h) The salary, hourly pay rate, or salary or hourly pay range for the position. At least a minimum salary or wage must be specified in terms of dollars and cents. If earnings are to be on commission, a statement as to whether or not any guaranteed salary or draws are involved;

(i) The name and address of the company placing the job order, and the location of work;

(j) The name of the individual who placed the job order for the employer and the name of the individual who accepted the order for the agency;

(k) Whether union membership is required and indications of any labor trouble existing.

(2) When a job order is filled, the true name of the individual who obtained the job as appears in the agency’s records, the date the job was filled, and the fee charged to the applicant for employment will be appended to the job order.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.165
BL 8-1988, f. & cert. ef. 5-16-88
BL 9-1980, f. & ef. 9-5-80
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0070 Job Referral Documents

(1) The job referral document shall be assigned the same number as that assigned to the job order and shall include:

(a) The name, address, and telephone number of the employment agency;

(b) The date of issuing the job referral document;

(c) The name of the applicant for employment, the name and address of the person to whom the applicant is sent for interview, the date and time of the interview, and the address where the applicant is to report for employment;

(d) The approximate amount of fee to be charged and to be collected from the applicant for employment, if the applicant accepts employment, and starts work and any fee conditions as stated by the employer on the Job Order, and a statement that the employer is not responsible for paying the fee unless specifically provided for on the Job Referral Document;

(e) The kind of work or employment as shown by the job classification stated in the Job Order;

(f) The daily hours of work and the approximate wages or salary, including any consideration of privilege;

(g) If any labor trouble exists at the place of employment, a statement of that fact;

(h) Union membership, if required.

(2) The job referral document shall be signed by a representative of the employment agency, and shall be delivered to the applicant for employment or sent to the applicant for employment by United States mail.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988, f. & cert. ef. 5-16-88
BL 200-1977, f. 11-1-77, cert. ef. 11-15-77
BL 157, f. 2-20-74, cert. ef. 3-15-74
BL 156-1974(Temp), f. 2-20-74, cert. ef. 3-1-74
BL 149-1973(Temp), f. 10-30-73, cert. ef. 11-1-73

Or. Admin. R. 839-017-0071 Job Referral Documents to Include Expiration of Referral Information

The date and the fact that 90 days from the date of referral the referral will expire and the applicant for employment may be liable for a fee thereafter only if the applicant accepts a job in the position to which the applicant was specifically referred must be included in the Job Referral Document.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.172
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0072 Applicants Required to Receive Job Referral Documents

The completed Job Referral Document shall be given to the applicant for employment prior to any job interview, with the following exceptions:

(1) No job referral document is required when the referral is made to a fee paid position.

(2) If the referral is made by telephone contact or other means of remote communication, the full content of the job referral document will be revealed to the applicant for employment at the time of referral and the job referral document will be mailed to the applicant.

(3) Job referral documents which are mailed, must be mailed within 24 hours or one working day of the referral contact with the applicant for employment.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.172
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0101 Fee Earned by Agency Responsible for Placement

In disputes between employment agencies concerning the earning of a fee for placement of an applicant for employment, the fee shall be earned by the agency responsible for the applicant being placed. A reasonable effort shall be made by an agency which bills an applicant for employment to determine that it is entitled to the fee before billing. The applicant for employment shall be responsible for only one full fee for any single placement, and this fact shall be stated in the contract. (See Appendix 1 and OAR 839-017-0012)

[ED. NOTE: Appendices referenced are available from the agency.]

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.165
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 150(Temp), f. 12-13-73, ef. 12-15-73

Or. Admin. R. 839-017-0102 Determination of Agency Entitled to Fee

In order to make a reasonable effort to determine the agency entitled to the fee, the following rules shall be followed:

(1) When two agencies have referred the applicant for employment to the same position, the agency entitled to the fee shall be the agency that:

(a) First established a scheduled appointment between the applicant for employment and employer for the specific position which the applicant subsequently accepted and started work;

EXAMPLE: On Monday, agency “A” arranges an appointment for an applicant with an employer for Wednesday morning. Agency “B” arranges an appointment for the same applicant for the same job opening on Tuesday morning for Tuesday afternoon. If the applicant accepts the position and starts work, Agency “A” is entitled to the fee.

(b) Records accurately the time and date of the making, by agency personnel, of the appointment for interview;

EXAMPLE: Agency personnel record that they called employer at 9:06 a.m., October 18th and scheduled interview for applicant.

(c) And, as soon as possible after the appointment is established, advises the applicant for employment by complying with the job referral document requirements.

(2) Resume’ Mailing. The resume’ must indicate clearly the name and address of the referring agency. When a resume’ is mailed by the agency to the employer, the agency is entitled to the fee when:

(a) The agency contacts the applicant for employment immediately and advises the applicant of the name of the employer to whom the resume’ was mailed, and, the employer gives or has given the agency a bona fide job order and the agency first establishes a scheduled appointment with the applicant and complies with job referral document requirements;

(b) Or the employer, as the result of the mailing, contacts the applicant for employment directly, arranges the first scheduled appointment and gives the agency a bona fide job order and the agency complies with job referral document requirements;

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.165
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 150(Temp), f. 12-13-73, ef. 12-15-73

Or. Admin. R. 839-017-0103 Definitions for the Purpose of Solving Interagency Disputes

(1) “Employer” means any person or agent of a company that has the authority and responsibility to interview or initiate the action that would result in a position with said company. It is recognized that some companies can have several employers within the company (the same legal entity) due to departments or locations. If an interview is scheduled for an applicant for employment to a different department or location by the original interviewer within the company, it will be considered to be the same employer. If an interview is scheduled for the same applicant for employment by another employment agency to a different department, for the purpose of this definition, it would be considered a different employer even though it may be within the same company.

(2) “Scheduled Appointment” means a definite date and time of interview with a specific company representative. If the time of making the first interview is not determined satisfactorily between the agencies involved, the employer’s statement shall be accepted as to the time of the making of the first appointment.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.165
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 150(Temp), f. 12-13-73, ef. 12-15-73

Or. Admin. R. 839-017-0151 Interest, Fees, or Other Charges Allowed as Credits for Permanent Employment Lasting Less Than 90 Days

In all cases where employment lasts less than 90 full calendar days, all interest, fees, or other charges paid or required to be paid to any person or organization in order to procure the funds to pay an employment agency’s charge for service shall be allowed as a credit against the charge. This includes all carrying and service charges and all related charges in obtaining funds for payment of the agency’s charge.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.165
BL 12-1978, f. & ef. 8-16-78
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0152 Interest, Fees, and Other Charges May Be Prorated

(1) If interest, fees, or other charges are incurred by the applicant for employment for more than the agency’s charge for service and in such a way that the interest, fees, or other charges for the employment agency’s services are not stated separately, then the interest, fees, and other charges may be prorated to cover only those interest, fees, and service charges directly attributable to the payment of the employment agency’s charge for services.

(2) In cases where employment involves commission earnings and service charges are based upon annual estimated earnings, and employment is terminated for any cause prior to 12 months but after 90 days, a pro-rata computation shall be made on all charges paid or required to be paid (by an applicant) to any person or organization in order to procure the funds to pay an employment agency’s charges for the period from 91 days until date of termination within a 12 month period. The pro-rata computation shall be allowed as a credit against the agency fee.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.165
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0153 Agencies Required to Make Effort to Procure Necessary Information for Making Rebates

A reasonable effort shall be made by the agency, within the ten day specified time for making the rebate, to procure all information necessary regarding the interest, fees, and other charges required to be paid by the applicant for employment in procuring the funds to pay the agency’s charge for service.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.165
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0177 Publication of False, Misleading, or Fraudulent Information Prohibited

No employment agency shall knowingly publish or cause to be published any false, fraudulent, or misleading information, representation, notice, or advertisement. The following are types of advertising which are considered false or misleading:

(1) Exclusive listing in advertisements of jobs designated as “fee paid” by agencies which do not operate exclusively on the basis of no fee to the applicant for employment, in such manner as to give the false impression that all jobs handled by the agency are “fee paid” jobs.

(2) Where both “fee” and “fee paid” jobs are listed, use of the phrases such as “100 percent free” or “all free” as column headings, so as to give the impression that the entire agency operation is on a “fee paid” basis.

(3) Designating jobs as “fee paid” where this is true only if certain conditions are met. For example, jobs where the employer will pay the fee only if the applicant for employment stays on the job for a stipulated period of time, or jobs where the employer deducts the amount of the fee from the applicant’s salary, or where the employer will pay only a portion of the fee, or if the fee payment on the part of the employer is a negotiable item.

(4) Use of the phrase “lowest fee” or similar words, where the agency’s fee is not in fact the lowest fee rate in effect in the area in which the agency does business.

(5) Headlines or titles relating to fees, such as “Applicant Pays Fee” or “Fee Paid,” must be set in the same type of equal size and boldness, when an agency advertises both categories of jobs.

(6) In group advertisements which contain both “Employer Pays Fee” and “Applicant Pays Fee” listings, all listings of each type shall be grouped together in a block under the respective title, or each listing must include a designation as to the source of the fee.

(7) If an advertisement is of a job or jobs for which the employer pays the fee, and if the agency so advertised, the ad must state in type of equal size and boldness, that the agency also handles jobs for which the applicant for employment pays the fee if such is the case.

(8) Ads worded so as to mislead the applicant for employment regarding the nature of the position advertised.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.195
BL 8-1988, f. & cert. ef. 5-16-88
BL 12-1978, f. & ef. 8-16-78
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0178 Advertising Must Be Factual

All advertising must be factual as to the requirements of the job. Sufficient information must be contained in each ad to indicate the nature, terms and conditions of the position. Omission of unusual or special job requirements and characteristics or of the amount of wages to be paid is considered misleading or fraudulent.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.195
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 149(Temp), f. 10-30-73, ef. 11-1-73

Or. Admin. R. 839-017-0180 Advertising Deemed False or Misleading

Advertising which shall be deemed false and misleading includes, but is not limited to, advertising which fails to conform to the following specifications:

(1) If specific requirements not normally associated with the position advertised are required, the requirements must be indicated in the ad.

(2) No salary shall appear in an ad except one which appears in the actual job order as a starting salary. Where the top of the salary range is quoted, it must be preceded by the bottom of the salary range and the word “to” or “ _____.”

(3) If the position advertised is located fifty miles or more from the location of the office of the agency, the fact that it is non-local or that relocation is necessary, or the location of the place of employment shall be indicated in the listing.

(4) The entire assumed business name or corporate name of the agency, without abbreviation, must appear on any sign, advertising, or promotional material used by the agency. Except in an advertisement in a section of a publication that otherwise clearly designates the advertisement as that of an employment agency, every employment agency charging or collecting a fee for services from individuals seeking or obtaining employment shall use the word “agency” or “agencies” as part of its licensed name, or after its licensed name, in type no smaller than the type employed in the body of the advertisement.

(5) The word “open” or the symbol “$$$” or words and symbols of similar import may not be used as a substitute for the salary of any position or positions in an ad.

(6) The symbol “+” or the word “plus” may be used in connection with a salary appearing in an ad only when it refers to an extra such as a car, bonus, commission, or lodging which is provided in addition to the given salary. Such extras must be contained in the agency’s job order for the position. The salary figure in the advertisement can only represent the amount of salary or draw indicated on the job order.

(7) The word “up” may be listed with a salary appearing in an ad only when the employer has made a definite commitment to the agency to pay a higher salary for a highly qualified employee. The commitment by the employer to pay a higher salary must be contained in the agency’s job order for the position.

(8) In accepting a job order from an employer, the agency should determine whether salary quoted by the employer is a “guaranteed” salary or is based on anticipated commissions and/or bonuses. If a salary advertised is based entirely or partially on a bonus and/or commission, an indication to this effect must be contained in the ad.

(9) If an employment agency indicates in its letters or general advertising that members of the agency are “certified,” “registered,” or “licensed,” or uses other terms conveying special qualifications or abilities, the members of the agency must in fact be certified, registered or licensed and possess special qualifications or abilities as conveyed by the terms so used. Acronyms, initials or other such terms used to advertise special qualifications or abilities must be recognized as those which are used by the organization or government agency “certifying,” “registering,” “licensing,” or attesting to an agency member’s special qualifications or abilities.

(10) If the employment agency advertises a job where the employment agency itself is the employer, the ad shall so indicate.

(11) If an employment agency which handles both “fee” and “fee paid” positions, advertises a “fee paid” position, the advertisement must include the job order number of the “fee paid” position or positions.

(12) Employment positions will not be advertised on the same day under two or more different job descriptions.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988, f. & cert. ef. 5-16-88
BL 10-1987(Temp), f. 9-30-87, cert. ef. 10-1-87
BL 8-1980, f. & cert. ef. 9-5-80
BL 12-1978, f. & cert. ef. 8-16-78
BL 200-1977, f. 11-1-77, cert. ef. 11-15-77
BL 157, f. 2-20-74, cert. ef. 3-15-74
BL 156-1974(Temp), f. 2-20-74, cert. ef. 3-1-74
BL 149-1973(Temp), f. 10-30-73, cert. ef. 11-1-73

Or. Admin. R. 839-017-0271 Enforcement Actions against Bonds or Deposits Generally

(1) The action on the bond or letters of credit maintained by the employment agency may not be joined in a suit or action on the bond brought for any other claim.

(2) Any person seeking to recover on the bond must first establish the employment agency’s liability. The liability may be established in any of the following ways:

(a) A judgment of the court;

(b) A final administrative order issued pursuant to statute or rule;

(d) Other satisfactory evidence of liability as may be shown which establishes the liability.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658. 245
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988, f. & cert. ef. 5-16-88
BL 10-1987(Temp), f. 9-3-87, cert. ef. 10-1-87

Or. Admin. R. 839-017-0272 Filing Claims Against Bonds or Letters of Credit Maintained by the Employment Agency; Time for Filing Claims

(1) Claims against the bond will not be paid unless the claimant or claimant’s assignee gives notice of the claim by certified mail to the surety.

(2) Any claim or Notice of Claim filed pursuant to a claimant’s right of action must be filed as follows: If the filing is against a surety bond, the claim or notice must be filed with the surety. The name and address of the surety may be obtained from the employment agency.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988, f. & cert. ef. 5-16-88

Or. Admin. R. 839-017-0274 Violations for Which a Civil Penalty May Be Imposed

The Commissioner may impose a civil penalty not to exceed $2,000 against any person, firm, organization, limited liability company or corporation for violations of any of the following statutes, rules or orders:

(1) Violation of any provision of ORS 658.005 to 658.245.

(2) Violation of any provision of OAR 839-017-0000 to 839-017-0477.

(3) Violation of any term or condition of an Order of the Commissioner issued pursuant to any violation of ORS 658.005 to 658.245 and OAR 839-017-0000 to 839-017-0477.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988, f. & cert. ef. 5-16-88

Or. Admin. R. 839-017-0275 Violations Separate and Distinct

Each violation is a separate and distinct offense. In the case of continuing violations, each day’s continuance is a separate and distinct violation.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.115
BL 8-1988, f. & cert. ef. 5-16-88

Or. Admin. R. 839-017-0276 Definition of “Acting Knowingly”

As used in OAR 839-017-0274 to 839-017-0280, a person acts knowingly when the person has actual knowledge of a thing to be done or omitted or should have known the thing to be done or omitted. A person should have known the thing to be done or omitted if the person has knowledge of facts or circumstances that would place the person on reasonably diligent inquiry. A person acts knowingly if the person has the means to inform himself or herself but elects not to do so. For purposes of this rule, a person, firm, organization, limited liability company or corporation is presumed to know the affairs of the employment agency.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156-1974(Temp), f. 2-20-74, ef. 3-1-74
BL 150-1973(Temp), f. 12-13-73, ef. 12-15-73

Or. Admin. R. 839-017-0277 Criteria to Determine Civil Penalty to Be Imposed

(1) The Commissioner shall consider the following mitigating and aggravating circumstance when determining the amount of any civil penalty to be imposed against an employment agency and shall cite those the Commissioner finds to be applicable:

(a) The actions of the employment agency in responding to previous violations of statutes and rules.

(b) Prior violations, if any, of statutes or rules.

(d) Magnitude and seriousness of violation.

(e) Whether the employment agency knew or should have known of the violation.

(2) It shall be the responsibility of the employment agency to provide the Commissioner with evidence of any mitigating and aggravating circumstances set out in section (1) of this rule.

(3) In arriving at the actual amount of the civil penalty, the Commissioner shall consider the amount of money, if any, taken from an applicant for employment by the employment agency in violation of any statute or rule.

(4) Notwithstanding any other section of this rule, the Commissioner shall consider all mitigating and aggravating circumstances presented by the employment agency for the purpose of reducing the amount of the civil penalty to be imposed.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156-1974(Temp), f. 2-20-74, ef. 3-1-74
BL 150-1973(Temp), f. 12-13-73, ef. 12-15-73

Or. Admin. R. 839-017-0280 Schedule of Civil Penalties to Be Imposed

(1) The civil penalty for any one violation shall not exceed $2,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) Repeated violations of the provisions of ORS 658.005 to 658.245 or OAR 839-017-0000 to 839-017-0477 are considered to be of such magnitude and seriousness that no less than $500 for each violation will be imposed when the Commissioner determines to impose a civil penalty.

(3) In addition to any other provision of these rules, the following violations are so serious and of sufficient magnitude that the minimum civil penalty indicated will be imposed, when the Commissioner determines to impose a penalty: Violation — Minimum Penalty

(a) Knowingly giving, publishing or causing to be published false fraudulent or misleading information in violation of ORS 658.195, OAR 839-017-0177 and 839-017-0178 — $1,000;

(b) Knowingly charging a fee in excess of the fee schedule published by the employment agency in violation of ORS 658.155 — $700;

(d) Knowingly referring an applicant for employment without a bona fide job order in violation of ORS 658.165 — $700;

(e) Knowingly failing to provide an applicant for employment with a job referral document in violation of ORS 658.172 and OAR 839-017-0072 — $500;

(f) Knowingly issuing a contract which terms would violate any law or knowingly attempting to fill a job order in violation of any law in violation of ORS 658.176 — $500;

(g) Knowingly requiring or accepting a fee from an applicant for employment prior to the applicant actually starting work in violation of ORS 658.176 — $500;

(h) Knowingly failing to comply with any provision pertaining to refunds to applicants for employment in violation of ORS 658.185 — $300;

(i) Placing or assisting in the placement of any minor if the employment is in violation of laws regulating the employment of minors in violation of ORS 658.205(4) — $500;

(j) Knowingly permitting a person of bad character to frequent or be employed by the agency in violation of ORS 658.205(2). As used in this subsection a “person of bad character” includes but is not limited to a person convicted of a felony; a person who has had a license revoked, suspended, denied or refused to be issued; a person who has repeatedly violated or caused to be repeatedly violated any statute or rule pertaining to private employment agency matters, tax matters and other statutes and rules pertaining to the employment of employees or to the protection of consumers in their dealings with employment agencies. — $500;

(k) Knowingly referring the applicant for employment to a place where a labor dispute exists in violation of ORS 658.205(5) — $500;

(l) Splitting a fee in violation of ORS 658.205(7) — $500;

(m) Charging a fee in violation of ORS 658.205(8) and 658.205(9) — $500;

(n) Requesting or accepting an assignment of wages in violation of ORS 658.205(10) — $500.

(4) Notwithstanding section (3) of this rule, when the Commissioner determines to impose a civil penalty, the minimum civil penalty to be imposed for knowing violations of OAR 839-017-0180, Advertising Deemed False or Misleading, shall be $100. In the case of two or more violations of the same advertising provision in 839-017-0180 that appears in the same publication on the same date, all such violations will be considered as one for purposes of computing the penalty.

(5) The civil penalty for all other violations shall be set in accordance with the determinations and considerations referred to in OAR 839-017-0277.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 6-1997, f. & cert. ef. 11-13-97
BL 8-1988, f. & cert. ef. 5-16-88

Or. Admin. R. 839-017-0376 Disputes Between Agencies and Their Employees

In order to properly settle any complaints that may arise and in order to establish all sums legally owed to any employee of the employment agency, the employment agency:

(1) Will maintain employment records of all employees for three years. These records will include the original application for employment with the agency and will indicate starting date of employment, rate of pay and/or rate of commission and method of compensation, and date of termination of employment if applicable.

(2) Shall retain for three years copies of all contracts signed with employees of the agency relative to conditions of employment.

(3) Will indicate on all receipts of moneys received from applicants in payments of fees, the name of employee or agent of the employment agency responsible for placement of applicant.

(4) Will give to each employee on payroll checks, or by separate document, a record of commissions or other sums earned and paid in full or in part during each payroll period established by the employer or at least every 35 days if no more frequent payroll period has been established.

(5) Canceled payroll checks, and state and federal tax reports shall be retained as required by State and Federal law.

(6) Records required by Fair Labor Standards Act (FLSA) and Oregon’s minimum wage law must be kept for a period of three years on all employees regardless of the type of specific agreement for compensation between the agency and its employees.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.005 - 658.245
BL 6-1997, f. & cert. ef. 11-13-97
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 150(Temp), f. 12-13-73, ef. 12-15-73

Or. Admin. R. 839-017-0476 Time for Maintenance of Records

(1) Except as provided in section (2) of this rule, all records of the employment agency will be maintained for a period of three years.

(2) Copies of all job advertisements with the information required by OAR 839-017-0477(6) thereon shall be maintained for a period of one year.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.078
BL 8-1988, f. & cert. ef. 5-16-88
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 150(Temp), f. 12-13-73, ef. 12-15-73

Or. Admin. R. 839-017-0477 Method of Maintaining Records

(1) All records of the agency pertaining to a job referral, and placement of an applicant for employment shall be maintained together or adequately cross-indexed for easy retrieval by the Bureau of Labor and Industries. This includes, but is not limited to, the applications, contract, addendums to contracts, reference information (employment, personal, or credit), and a copy of all job orders and job referral documents.

(2) A separate file shall be maintained for applicants for employment placed by the agency, either alphabetically, or by adequate cross-index for easy retrieval for the Bureau of Labor and Industries.

(3) If the applicant for employment has been placed by the agency, the name of the employer, the starting date of employment, the amount of starting salary, the amount of the fee charged, and whether the fee is paid by the employer or the applicant shall be written on the application or appended to the application.

(4) An adequate file or log of job orders shall be maintained in chronological order. If an agency wishes, it may have a separate file for “fee paid” orders. When a job order position is filled by the agency, the true name as it appears on the contract of the individual who obtained the job, the date the job was filled, and the fee charged for the service will be appended to the job order.

(5) Each agency shall keep a record of all receipts of money received from an applicant for employment in payment of a charge for service. The receipts shall be filed together or adequately cross-indexed for easy retrieval for the Bureau of Labor and Industries. All receipts or evidence of refunds shall be filed with the receipts showing payment of a charge for service or adequately cross-indexed for easy retrieval for the Bureau of Labor and Industries.

(6) Each agency shall keep copies of all job advertisements correlated to show the date and the publication in which the advertisement appeared together with the job order number of each job advertised.

(7) When the charge for services of the employment agency is not made to or collected from individuals seeking or obtaining employment, for purposes of ORS 658.005 to 658.245 the agency is not required to keep records of contracts or receipts of moneys in connection with the placement of such individuals.

History

Statutory/Other Authority: ORS 658.210
Statutes/Other Implemented: ORS 658.078
BL 8-1988, f. & cert. ef. 5-16-88
Reverted to BL 12-1978, f. & ef. 8-16-78
BL 10-1987(Temp), f. 9-3-87, ef. 10-1-87
BL 12-1978, f. & ef. 8-16-78
BL 200, f. 11-1-77, ef. 11-15-77
BL 157, f. 2-20-74, ef. 3-15-74
BL 156(Temp), f. 2-20-74, ef. 3-1-74
BL 150(Temp), f. 12-13-73, ef. 12-15-73

Or. Admin. R. 839-017-0500 Contracts Between Employment Listing Services and Individuals

(1) Before collecting a fee from an individual, Employment Listing Services must comply with the following provisions:

(a) The Employment Listing Service must execute a written contract with the individual; and

(b) The Employment Listing Service must provide a copy of the contract to the individual.

(2) Written contracts between an Employment Listing Service and individuals must include the following information:

(a) The name, physical address, mailing address if any, and telephone number of the Employment Listing Service;

(b) The name, address, and telephone number of the individual;

(c) A statement that the Employment Listing Service is registered with the Corporation Division pursuant to OAR 839-017-0515;

(d) The effective dates of the contract;

(e) The signature of an authorized Employment Listing Service representative and date of signature;

(f) The signature of the individual contracting with the Employment Listing Service and date of signature;

(g) The fee schedule of the Employment Listing Service as provided in OAR 839-017-0505;

(h) A description of the information that will be provided by the Employment Listing Service to the individual, including but not limited to:

(A) The format of the information to be provided (e.g., written publication, internet information, by telephone);

(B) How and when the information may be accessed by the individual; and

(i) A statement specifying the frequency of verification of the availability of positions by the Employment Listing Service;

(j) Any contract terms which may be changed by the Employment Listing Service and notification provisions relating to such changes;

(k) Provisions for and terms of any contract extensions;

(L) Any contract cancellation provisions;

(m) Any guarantees of the Employment Listing Service;

(n) Refund terms and conditions if any; and

(o) The following statements:

(A) "In addition to the penalties provided under ORS 658.115 and 658.991, an employment listing service shall forfeit any fees received from an individual if the employment listing service fails to provide to the individual a copy of:

(i) The fee schedule that the employment listing service charges;

(ii) All contracts entered into between the employment listing service and the individual; and any changes in the fees that the employment listing service charges an individual who uses its service." and

(B) "READ BEFORE SIGNING — This is a contract. You understand that (Name of Employment Listing Service) provides information on bona fide job listings but does not guarantee you will be offered a job. You also understand you are liable for the payment of the fee when you receive the list or job listing information. Do not sign this contract before you read it or if any spaces intended for the agreed terms are left blank. You must be given a copy of this contract at the time you sign it."

(3) There may be no oral agreements or additions to any contract between an Employment Listing Service and individual. Any terms, conditions, or understandings between an Employment Listing Service and individual must be in writing.

(4) Employment Listing Services must retain copies of all contracts for no fewer than three years from the execution date of the contract.

History

Statutory/Other Authority: ORS 658.210 & SB 341 (2003 Legislature)
Statutes/Other Implemented: ORS 658.005 - 658.991
BLI 6-2003, f. 12-31-03, cert. ef. 1-1-04

Or. Admin. R. 839-017-0505 Fees Charged by Employment Listing Services

(1) Before collecting a fee from an individual, Employment Listing Services must comply with the following provisions:

(a) The Employment Listing Service must publish a schedule of its fees; and

(b) The Employment Listing Service must provide a copy of its schedule of fees to the individual.

(2) The schedule of fees required in this section may be incorporated in the contract between an Employment Listing Service and individual or may be a separate document incorporated by reference in the contract required by OAR 839-017-0500.

(3) Employment Listing Service fee schedules must include the following information:

(a) The effective dates of the fee schedule;

(b) The specific services provided by the Employment Listing Service and fee for each service;

(d) The circumstances under which any additional fees may be charged by an Employment Listing Service to an individual;

(e) Any payment terms, including any interest charges which may be assessed; and

(f) The following statement: "In addition to the penalties provided under ORS 658.115 and 658.991, an employment listing service shall forfeit any fees received from an individual if the employment listing service fails to provide to the individual a copy of:

(A) The fee schedule that the employment listing service charges;

(B) All contracts entered into between the employment listing service and the individual; and

(4) Notwithstanding the provisions of OAR 839-017-0505(3)(f), if the schedule of fees is included in the contract as provided in OAR 839-017-0505(2), the statement required by OAR 839-017-0505(3)(f) is only required once in the contract.

History

Statutory/Other Authority: ORS 658.210 & SB 341 (2003 Legislature)
Statutes/Other Implemented: ORS 658.005 - 658.991
BLI 6-2003, f. 12-31-03, cert. ef. 1-1-04

Or. Admin. R. 839-017-0510 Confirmation of Position Availability by Employment Listing Services

(1) Employment Listing Services must confirm and document in writing the availability of positions included in the information provided to individuals at least once every ten business days.

(2) Employment Listing Services must document in writing the following information for each position listing published and confirmed thereafter:

(a) The name and address of the company where the position is located;

(b) The date the information regarding the position is received by the Employment Listing Service;

(c) The name, title, and telephone number of the person providing the position information to the Employment Listing Service;

(d) The name of the Employment Listing Service representative receiving the information about the position;

(e) The job title of the position;

(f) The requirements of the position;

(g) Whether the position is "full time" (32 or more hours/week) or "part time" (fewer than 32 hours/week);

(h) The location of the position;

(i) The salary, hourly pay rate, or salary or hourly pay range for the position; and

(j) How individuals may apply for the position.

(3) Employment Listing Services must remove a listing from any and all of its publications by the end of the first business day after receiving notice that the position is no longer available.

(4) Employment Listing Services must retain copies of the information obtained about positions for no less than one year from the date the information is obtained.

History

Statutory/Other Authority: ORS 658.210 & SB 341 (2003 Legislature)
Statutes/Other Implemented: ORS 658.005 - 658.991
BLI 6-2003, f. 12-31-03, cert. ef. 1-1-04

Or. Admin. R. 839-017-0515 Employment Listing Services Required to be Registered

Employment Listing Services must be actively registered with the Corporation Division of the Oregon Secretary of State’s Office.

History

Statutory/Other Authority: ORS 658.210 & SB 341 (2003 Legislature)
Statutes/Other Implemented: ORS 658.005 - 658.991
BLI 6-2003, f. 12-31-03, cert. ef. 1-1-04

Or. Admin. R. 839-017-0520 Employment Listing Service Fee Forfeiture Provisions

In addition to the penalties provided under ORS 658.115 and 658.991, an Employment Listing Service shall forfeit any fees received as a result of any violation of the following provisions:

(1) Failure to provide a copy of the fee schedule that the Employment Listing Service charges an individual for its services to the individual;

(2) Failure to provide a copy of the contract entered into between an Employment Listing Service and an individual to the individual; or

(3) Failure to provide a copy of any changes in the fees that the Employment Listing Service charges an individual who uses its services to the individual.

History

Statutory/Other Authority: ORS 658.210 & SB 341 (2003 Legislature)
Statutes/Other Implemented: ORS 658.005 - 658.991
BLI 6-2003, f. 12-31-03, cert. ef. 1-1-04

Division 19 CHILD LABOR CIVIL PENALTY PROCEDURAL RULES

Or. Admin. R. 839-019-0000 Notice of Proposed Rules

Prior to the permanent adoption, amendment or repeal of any rule relating to civil penalties for child labor violation matters, the Wage and Hour Division of the Bureau of Labor and Industries shall give notice of intended action as required in OAR 839-002-0002.

History

Statutory/Other Authority: ORS 651.060(4) & 653.305 - 653.545
Statutes/Other Implemented: ORS 183.335
BLI 9-2004, f. 7-26-04, cert. ef. 7-27-04
BL 5-1988, f. & cert. ef. 4-12-88

Or. Admin. R. 839-019-0004 Definitions

As used in ORS 653.365 to 653.370 and in these rules, unless the context requires otherwise:

(1) "Bureau" means the Bureau of Labor and Industries of the State of Oregon.

(2) "Commissioner" means the Commissioner of the Bureau of Labor and Industries or designee.

(3) "Employ" has the meaning given that term in ORS 653.010.

(4) "Employer" has the meaning given that term in ORS 653.010.

(5) "Employment Certificate" means the employment certificate issued to employers for the employment of minors pursuant to ORS 653.307 and the employment permits referred to in ORS chapter 653 and rules adopted thereunder.

(6) "Minor" means any person under 18 years of age.

(7) "Person" includes the term "employer" as defined in section (4) of this rule and school districts required to comply with ORS 653.307.

(8) "Violation" means a transgression of any statute, rule or order, or any part thereof, and includes both acts and omissions.

(9) “Willful” means intentional and includes failure to act. A person commits a willful act when the person knows what the person is doing, intends to do what the person is doing and is a free agent. Willfulness does not require malice.

History

Statutory/Other Authority: ORS 651.060, ORS 653.370 & ORS 653.400
Statutes/Other Implemented: ORS 653.370
BLI 18-2024, amend filed 08/02/2024, effective 08/03/2024
BLI 7-2013, f. 12-18-13, cert. ef. 1-1-14
BL 5-1988, f. & cert. ef. 4-12-88

Or. Admin. R. 839-019-0010 Violations for Which a Civil Penalty May Be Imposed

The Commissioner may impose a civil penalty for violations of any of the following statutes, administrative rules and orders:

(1) Violation of any provision of ORS 653.305 to 653.370.

(2) Violation of any provision of OAR 839-021-0001 to 839-021-0500.

(3) Violation of any term or condition of an Order issued pursuant to any violation of ORS 653.305 to 653.370 and OAR 839-021-0001 to 839-021-0500.

History

Statutory/Other Authority: ORS 651.060(4) & 653.525
Statutes/Other Implemented: 2013 SB 135 & ORS 653.370
BLI 7-2013, f. 12-18-13, cert. ef. 1-1-14
BL 5-1988, f. & cert. ef. 4-12-88

Or. Admin. R. 839-019-0015 Violations Separate and Distinct

Each violation is a separate and distinct offense. In the case of continuing violations, each day’s continuance is a separate and distinct violation.

History

Statutory/Other Authority: ORS 651 & 653
Statutes/Other Implemented: ORS 653.370
BL 5-1988, f. & cert. ef. 4-12-88

Or. Admin. R. 839-019-0025 Schedule of Civil Penalties to Be Imposed

(1) In addition to any other penalty provided by law, the Commissioner of the Bureau of Labor and Industries may assess a civil penalty not to exceed $10,000 for each violation described in OAR 839-019-0010.

(2)(a) The Commissioner may enter into a settlement agreement with an employer, pursuant to which a civil penalty will be suspended pending successful fulfillment of the agreement.

(b) The Commissioner may enter into a compliance agreement with an employer, pursuant to which an employer agrees to perform or not to perform specified acts, in exchange for a reduction in the amount or number of civil penalties assessed.

(c) This section (2) does not limit the authority of the Commissioner to enter into a consent order or any other form of agreement with an employer.

(3)(a) The civil penalty for violation of ORS 653.307, or otherwise employing a minor without a valid employment certificate, shall be in the amount of $250 if:

(A) The only violation alleged in the notice of intent to assess civil penalties is the failure to obtain an employment certificate;

(B) The employer was not subject to an agreement described in section (2) of this rule at the time the violation was committed;

(D) The Bureau has not issued the employer a final order for a violation described in OAR 839-019-0010 within the past five years.

(b) Unless the provisions of subsection (a) of this section apply, the civil penalty for violating ORS 653.307, or otherwise employing a minor without a valid employment certificate, shall be in the amount of $1,000.

(4) The civil penalty for violating any of the following statutes or rules shall be in an amount not less than $5,000 and not exceeding $10,000:

(a) Employment of a minor in violation of ORS 653.330, 653.335, 653.340 or 653.360.

(b) Employment of a minor in violation of OAR 839-021-0097.

(d) Employment of a minor in violation of OAR 839-021-0067, 839-021-0070, or 839-021-0087 for the third or subsequent time.

(5) The civil penalty for violation of any of the following statutes or rules shall be in an amount not less than $1,000 and not exceeding $2,500:

(a) Employment of a minor in violation of the provisions of ORS 653.305 to 653.370 or OAR 839-021-001 to 839-021-0500 that is not specifically identified in section (4) of this rule.

(b) Employment of a minor in violation of OAR 839-021-0067, 839-021-0070, or 839-021-0087 for the first and second time.

(6) When this rule provides a range of civil penalties, the Commissioner may consider the value of deterrence and any aggravating or mitigating circumstances, including:

(a) Measures taken by the employer to promptly prevent or correct violations of the law;

(b) Any prior violations of the law committed by the employer;

(d) Each of the factors described in 29 CFR 579.5.

(7) Notwithstanding any other provision of this rule:

(a) No less than the maximum civil penalty amount identified in sections (4) and (5) of this rule shall be assessed if the violation:

(A) Is willful and repeated; or

(B) Resulted in an imminent danger to minor employees, or a substantial probability that death or a serious injury, illness or condition could have occurred, while performing duties on behalf of the employer.

(b) The civil penalty when a minor incurs a serious injury, illness or condition, or dies, while performing duties on behalf of the employer in violation of the provisions of ORS 653.305 to 653.370 or OAR 839-021-0001 to 839-021-0500, may be in an amount that does not exceed $10,000.

(8) As used in this rule, “serious injury, illness or condition” includes “serious injury” as that phrase is defined in 29 CFR 579.2.

History

Statutory/Other Authority: ORS 651.060 & ORS 653.400
Statutes/Other Implemented: ORS 653.370
BLI 18-2024, amend filed 08/02/2024, effective 08/03/2024
BL 5-1988, f. & cert. ef. 4-12-88

Or. Admin. R. 839-019-0100 Exemptions

The provisions of OAR 839-019-0000 to 839-019-0025 do not apply when minors are employed under the following circumstances:

(1) The minor is employed by the parent of the minor;

(2) The minor is employed by a person standing in the place of the parent of the minor and who has custody of the minor. For minors employed in agriculture, “a person standing in the place of the parent of the minor” is defined by OAR 839-021-0297(2).

History

Statutory/Other Authority: ORS 651.060(4) & 653.525
Statutes/Other Implemented: 2013 SB 135 & ORS 653
BLI 7-2013, f. 12-18-13, cert. ef. 1-1-14
BL 7-1997, f. & cert. ef. 11-13-97
BL 5-1988, f. & cert. ef. 4-12-88

Division 20 RULES REGULATING MINIMUM WAGE, OVERTIME AND WORKING CONDITIONS

Or. Admin. R. 839-020-0000 Notice of Proposed Rule

Prior to the adoption, amendment, or repeal of any rule relating to minimum wages, overtime and working conditions matters, the Bureau of Labor and Industries will give notice of the proposed adoption, amendment, or repeal as required in OAR 839-002-0002.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 183
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1996, f. & cert. ef. 10-8-96
BL 1-1987, f. & ef. 1-12-87

Or. Admin. R. 839-020-0004 Definitions Generally

As used in ORS 653.010 to 653.261 and these rules, unless the context requires otherwise:

(1) “Acute care in hospital settings” means care provided in an acute inpatient care facility.

(2) “Acute inpatient care facility” has the meaning given that phrase in ORS 442.470.

(3) "Administrator" means the Administrator of the Wage and Hour Division.

(4) "Adult" means an individual of 18 years of age or more.

(5) "Adult foster home" has the meaning given that phrase in ORS 443.705.

(6) "Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, fur-bearing animals, or poultry and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. "Agricultural employment" is employment in "Agriculture" as herein defined.

(7) "Bureau" means Bureau of Labor and Industries.

(8) "Casual basis" as used in ORS 653.020 and these rules means employment which is irregular and intermittent and which is not performed by an individual whose vocation is providing domestic services.

(9) "Child care service person" means an individual who performs child care services in the home of the individual or the child and who during any part of a 24 hour period provides custodial care and protection to infants or children.

(10) "Commissioner" means the Commissioner of the Bureau of Labor and Industries.

(11) "Commissions" or "pay on a commission basis" means payment based on a percentage of total sales, or of sales in excess of a specified amount, or on a fixed allowance per unit agreed upon as a measure of accomplishment or on some other formula and may be the sole source of compensation or may be payment in addition to other compensation.

(12) "Companionship services", as used in ORS 653.020 and in these rules, means those services that provide fellowship, care and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the elderly or infirm person such as meal preparation, bed making, washing of clothes and other similar services. They may also include the performance of general household work: provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked. Individuals employed in domestic service employment in or about a family home to provide companionship services are not required to be employed by the individual for whom they provide such services. The term "companionship services" does not include services relating to the care and protection of the elderly or infirm which require and are performed by trained personnel, such as a registered or practical nurse. While such trained personnel do not qualify as companions, this fact does not remove them from the category of covered domestic service employees when employed in or about a family home.

(13) "Division" means the Wage and Hour Division of the Bureau of Labor and Industries.

(14) "Domestic service" means services of a household nature performed by an employee in or about a family home (permanent or temporary) of the person by whom the employee is employed. The term includes, but is not limited to, employees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, gardeners, and providers of companionship services to the elderly and infirm.

(15) "Domicile" means the permanent residence of a person or the place to which that person intends to return even though that person may actually reside elsewhere.

(16) "Employed on a seasonal basis at", as used in ORS 653.020 and in these rules, means employment that occurs during the time the organized camp provides services to campers at the camp site where campers are located. The term includes employment at the camp site in duties preparatory to the opening or closing of the camp site. The term includes employment during the camping season only and does not include full time, year around employment.

(17) "Employer" has the meaning given that term in ORS 653.010.

(18) "Fair market value" means an amount not to exceed the retail price customarily paid by the general public for the same or similar meals, lodging or other facilities or services provided to the employee by the employer. In determining the fair market value of meals, lodging and other facilities and services, the bureau will be guided by these rules and by Title 29, CFR Part 531 — Wage Payments under the Fair Labor Standards Act of 1938, where applicable.

(19) "Family home", as used in ORS 653.020 and this section, means a residence, the purpose of which is to provide an abode for the owner or renter of the residence and any family members of the owner or renter. For example, a boarding house or an adult foster care home are not family homes for purposes of ORS 653.020 and these rules. However, when casual domestic service work is performed in structures where the owner or renter resides and operates a business, such work may qualify as exempt under ORS 653.020 depending upon all the facts of the particular arrangement.

(20) "Homeworker" means any employee suffered or permitted to produce goods or services for an employer in or about a home, apartment or room in a residence in which that employee or other employees of an employer resides, regardless of the source of the materials used by the homeworker in such production.

(21) "Hours worked" means all hours for which an employee is employed by and required to give to the employer and includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place and all time the employee is suffered or permitted to work. "Hours worked" includes "work time" as defined in ORS 653.010.

(22) "Immediate family" means grandfather, grandmother, father, mother, son, daughter, sister, brother, uncle or aunt.

(23) "Minimum wage" means the rate of pay prescribed in ORS 653.025 and 653.030.

(24) "Minor" means an individual of 17 years of age or less.

(25) "Organized camp" has the meaning given that phrase in ORS 653.010.

(26) "Primary duty" means, as a general rule, the major part, or over 50 percent, of an employee's time. However, a determination of whether an employee has management as the employee's primary duty must be based on all the facts of a particular case. Time alone is not the sole test and in situations where the employee does not spend over 50 percent of the employee's time in managerial duties, the employee might have management as a primary duty if other pertinent factors support such a conclusion. Factors to be considered include, but are not limited to, the relative importance of the managerial duties as compared with other duties, the frequency with which the employee exercises discretionary powers, the relative freedom from supervision and the relationship between the salary paid the employee and wages paid other employees for the kind of non-exempt work performed by the supervisor.

(27) "Primary school" means a learning institution containing any combination of grades Kindergarten - 8 or age level equivalent.

(28) “Region” means a geographic area for which ORS 653.025 establishes a minimum rate of wage.

(29) "Reside" means a personal presence at some place of abode with no present intention of definite and early removal and with the intent to remain for an undetermined period, but not necessarily combined with the intent to stay permanently.

(30) "Resident manager" means an employee of an adult foster home who is domiciled at the home and who is directly responsible for the care of residents in the home on a day to day basis.

(31) "Salary" means a predetermined amount constituting all or part of the employee's compensation paid for each pay period of one week or longer (but not to exceed one month). The predetermined amount may not be any amount less than the equivalent of a monthly salary calculated by multiplying the wage set pursuant to ORS 653.025 by 2,080 hours per year, then dividing by 12 months.

(32) "Salary basis" means a salary as defined in this rule, which is not subject to deduction because of lack of work for part of a work week, however, deductions for absences of one day or more may be made if the employee is absent for other reasons. Deductions may not be made for absences of less than one day, except as permitted for employers covered by the federal Family and Medical Leave Act of 1993, Public Law 103-3, for part-day absences due to leave pursuant to that law. Employees who are not paid for workweeks in which they performed no work are considered to be on a salary basis provided they are paid on a salary basis in workweeks when work is performed.

(a) Payment of additional compensation is not inconsistent with the salary basis of payment.

(b) Compensation paid in the form of fees is not inconsistent with the salary basis of payment, provided the fees paid in each pay period are not less than the amount required to be paid pursuant to ORS 653.025 and meet the requirements for fee payments under Title 29, Code of Federal Regulations, Part 541.605.

(33) "Secondary school" means a learning institution containing any combination of grades 9–12 or age level equivalent and includes those institutions that provide junior high schools which include 9th grade.

(34) "Violation" means a transgression of any statute or rule, or any part thereof and includes both acts and omissions.

(35) "Willfully" means knowingly. An action is done knowingly when it is undertaken with actual knowledge of a thing to be done or omitted or action undertaken by a person who should have known the thing to be done or omitted. A person "should have known the thing to be done or omitted" if the person has knowledge of facts or circumstances which, with reasonably diligent inquiry, would place the person on notice of the thing to be done or omitted to be done. A person acts willfully if the person has the means to inform the person’s self but elects not to do so. For purposes of these rules, the employer is presumed to know the requirements of ORS 653.010 to 653.261 and these rules.

History

Statutory/Other Authority: ORS 651.060 & ORS 653.040
Statutes/Other Implemented: ORS 653.025
BLI 6-2024, amend filed 01/09/2024, effective 01/15/2024
BLI 4-2016, f. 6-15-16, cert. ef. 7-1-16
BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 15-2010, f. 5-25-10, cert. ef. 6-1-10
BLI 11-2007, f. 5-10-07, cert. ef. 5-15-07
BLI 41-2006(Temp), f. & cert. ef. 11-27-06 thru 5-23-07
TIC 3-2006, f. & cert. ef. 11-24-06
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1997, f. & cert. ef. 11-13-97
BL 9-1996, f. & cert. ef. 10-8-96
BL 12-1993, f. 10-29-93, cert. ef. 11-1-93
BL 5-1993(Temp), f. 5-7-93, cert. ef. 5-14-93
BL 3-1992, f. & cert. ef. 3-2-92
BL 10-1990, f. & cert. ef. 7-26-90
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90
BL 1-1987, f. & ef. 1-12-87

Or. Admin. R. 839-020-0005 Employees Engaged in Administrative, Executive, Professional, or Outside Sales Work, Defining the Terms

As used in ORS 653.010 to 653.261 and in these rules, unless the context requires otherwise:

(1) "Executive Employee" means any employee:

(a) Whose primary duty consists of the management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof. The foregoing language of this paragraph prescribing the primary duty does not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment or who owns at least 20 percent interest in the enterprise in which the employee is employed; and

(b) Who customarily and regularly directs the work of two or more other employees therein; and

(c) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion of any other change of status of other employees will be given particular weight; and

(d) Who customarily and regularly exercises discretionary powers; and

(e) Who earns a salary and is paid on a salary basis pursuant to ORS 653.025 exclusive of board, lodging, or other facilities.

(2) "Administrative Employee" means any employee:

(a) Whose primary duty consists of either:

(A) The performance of office or non-manual work directly related to management policies or general business operations of the employee’s employer or the employer's customers; or

(B) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and

(b) Who customarily and regularly exercises discretion and independent judgment; and

(c) Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity; or

(A) Who performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge, or;

(B) Who executes under only general supervision special assignments and tasks; and

(d) Who earns a salary and is paid on a salary basis pursuant to ORS 653.025 exclusive of board, lodging, or other facilities.

(3) "Professional Employee" means any employee:

(a) Whose primary duty consists of the performance of:

(A) Work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes; or

(B) Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee; or

(C) Teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in the school system or educational establishment or institution by which the employee is employed; and

(b) Whose work requires the consistent exercise of discretion and judgment in its performance; and

(c) Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and

(d) Who earns a salary and is paid on a salary basis pursuant to ORS 653.025 exclusive of board, lodging, or other facilities.

(4) "Outside Sales Person" means any employee:

(a) Who is employed for the purpose of and who is customarily and regularly engaged away from the employer's place or places of business in:

(A) Making sales; or

(B) Obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and

(b) Whose hours of work spent engaged in activities other than those activities described in paragraph (a)(A) or (B) of this section, do not exceed 30 percent of the hours worked in the workweek by non-exempt employees of the employer: Provided, that work performed incidental to and in conjunction with the employee's own outside sales or solicitations, including incidental deliveries and collections, will not be regarded as non-exempt work.

(5) "Independent Judgment and Discretion" means the selection of a course of action from a number of possible alternatives after consideration of each, made freely without direction or supervision with respect to matters of significance. It does not include skill exercised in the application of prescribed procedures.

History

Statutory/Other Authority: ORS 183 & 653
Statutes/Other Implemented: ORS 653.010 - 653.261
BLI 1-2002, f. & cert. ef. 1-9-02
BL 10-1990, f. & cert. ef. 7-26-90
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0010 Payment of Minimum Wages — Generally

(1) Unless exempt under ORS 653.020, an employer is required to pay each employee it employs in the state no less than the minimum rate(s) of wage for the applicable region(s) as specified in ORS 653.025 and OAR 839-020-0011 for each hour worked by the employee.

(2) Employees shall be paid no less than the applicable minimum wage for all hours worked, which includes "work time" as defined in ORS 653.010(11). If in any pay period the combined wages of the employee are less than the applicable minimum wage, the employer shall pay, in addition to sums already earned, no less than the difference between the amounts earned and the minimum wage as prescribed by the appropriate statute or administrative rule.

(3) Employers may include commission and bonus payments to employees when computing the minimum wage. Such commission or bonus payment may only be credited toward employees' minimum wages in the pay periods in which they are received.

History

Statutory/Other Authority: ORS 651.060(4) & 653.040, OL Ch. 012 & 2016
Statutes/Other Implemented: OL Ch. 012, 2016 & ORS 653.025
BLI 4-2016, f. 6-15-16, cert. ef. 7-1-16
BL 9-1996, f. & cert. ef. 10-8-96
BL 10-1990, f. & cert. ef. 7-26-90
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90
BL 1-1987, f. & ef. 1-12-87

Or. Admin. R. 839-020-0011 Determination of Applicable Region and Minimum Wage Rate to be Paid for Work Performed by Employees

The applicable region and minimum wage rate to be paid to employees pursuant ORS 653.025 and OAR 839-020-0010 shall be determined as follows:

(1) Work performed at a permanent fixed business location of the employer in Oregon.

(a) If an employee performs more than 50% of the employee’s work in a pay period at the employer’s permanent fixed business location in Oregon, the applicable minimum wage rate to be paid to the employee by the employer shall be determined based on the region in which such business is located.

(b) If an employee makes deliveries as a part of the employee’s job and starts and ends the employee’s work at the employer’s permanent fixed business location, the minimum rate of wage required to be paid to the employee by the employer is the applicable rate for the region in which such business is located.

(2) Work performed other than at the employer’s permanent fixed business location.

(a) If an employee does not perform more than 50% of the employee’s work in a pay period at the employer’s permanent fixed business location in Oregon pursuant to section (1) of this rule, the region in which the employee performs work is considered to be the employer’s location for purposes of determining the applicable minimum wage rate to be paid. The employer is required to pay no less than this rate for each hour worked during the pay period.

(b) In the event an employee performs work in more than one region in a pay period, the employer must pay either:

(A) The applicable minimum rates of wage for each hour worked in each region in which the employee worked; or

(B) The highest minimum rate of wage required for any region in which the employee worked for all hours worked by the employee during the pay period.

(c) If an employee performs work in more than one region in a pay period, the employer must maintain records of the locations in which the employee worked unless pursuant to paragraph (b)(B) of this section, the employer pays the highest rate of wage required for any region in which the employee worked for all hours worked by the employee during the work period.

History

Statutory/Other Authority: ORS 651.060(4) & 653.040, OL Ch. 012 & 2016
Statutes/Other Implemented: OL Ch. 012, 2016 & ORS 653.025
BLI 4-2016, f. 6-15-16, cert. ef. 7-1-16

Or. Admin. R. 839-020-0012 Wage Statements to Be Provided to Employees

(1) Except for employees who are otherwise specifically exempt under ORS 653.020, employers must furnish each employee, each time the employee receives a compensation payment from the employer, a written itemized statement of earnings. The written itemized statement must include:

(a) The date of the payment;

(b) The dates of work covered by the payment;

(d) The name of the employer and the employer’s business registry number or business identification number;

(e) The address and telephone number of the employer;

(f) The rate or rates of pay;

(g) Whether the employee is paid by the hour, shift, day or week or on a salary, piece or commission basis;

(h) Gross wages;

(i) Net wages;

(j) The amount and purpose of each deduction made during the respective period of service that the payment covers;

(k) Allowances, if any, claimed as part of minimum wage;

(l) The regular hourly rate or rates of pay, the overtime rate or rates of pay, the number of regular hours worked and pay for those hours, and the number of overtime hours worked and pay for those hours;

(m) If the employee is paid a piece rate, the applicable piece rate or rates of pay, the number of pieces completed at each piece rate and the total pay for each rate.

(2) When a compensation payment is a draw or advance against future earnings, and no deductions are being made from the payment, the written itemized statement must include the information required in section (1) (a), (b), (c), (d), (e) and (h) of this rule. The employee must be provided with a statement containing all of the information required by section (1) of this rule at the employee's next regular payday, even if the employee is not entitled to payment of any further wages at that time.

(3) Pursuant to the Uniform Electronic Transactions Act (Chapter 535, Oregon Laws 2001) ORS 84.001 to 84.061, the itemized statement may be provided in an electronic format if:

(a) The employee expressly agrees; and

(b) The employee has the ability to print or store the electronic itemized statement at the time of receipt.

(4) In addition to this rule, ORS 652.610 establishes requirements for itemized statements to be provided to employees on regular paydays and at other times payment of wages, salary or commission is made.

History

Statutory/Other Authority: ORS 651.060
Statutes/Other Implemented: ORS 652.610 & 652.640
BLI 6-2016, f. 8-29-16, cert. ef. 1-1-17
BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 1-2002, f. & cert. ef. 1-9-02
BLI 9-1996, f. & cert. ef. 10-8-96

Or. Admin. R. 839-020-0013 Bonuses Provided to Workers in Agriculture

(1) Every producer, or agent of the producer, who employs a labor contractor to provide a working crew for harvesting perishable agricultural products or who offers a bonus to those persons who harvest perishable agricultural products shall cause to be conspicuously posted and maintained on the premises where the agricultural products are to be harvested, a notice that states:

(a) A description of the terms and conditions of any bonus offered, including the manner of determining when the bonus is earned; and

(b) That portion of the labor contractor’s compensation that is based on the amount of work done by each employee of the labor contractor.

(2) Such notice must be written in the language customarily used by the employer or its agents to communicate with a worker.

(3) The notice must be distributed in writing to workers, if required by ORS 658.440(1)(f) or any other law.

(4) Any condition that has not been properly disclosed in the manners described above cannot be enforced against any worker to deny or diminish the amounts to which the worker would otherwise be entitled.

History

Statutory/Other Authority: ORS 651.060
Statutes/Other Implemented: ORS 652.635
BL 9-1996, f. & cert. ef. 10-8-96

Or. Admin. R. 839-020-0015 Fixed Minimum Hourly Wage Rates Lower than the Minimum Wage Rate

(1) Pursuant to ORS 653.025 and 653.030 the commissioner will consider the employment of specific types of persons or of individual persons themselves at a fixed minimum hourly wage rate lower than the rate required by 653.025, when the commissioner has determined that the application of these requirements would substantially curtail employment opportunities for the specific types of persons or individuals involved. The types of persons for whom a lower rate may be set upon a showing of good cause as set out below are limited to student learners as defined in 653.070.

(2) Rules for the employment at less than the minimum wage:

(a) An employer must submit an application for the payment of a fixed minimum hourly wage rate lower than the rate required by ORS 653.025 on a form provided by the commissioner. The application must specifically identify each student learner for whom the employer seeks to establish the lower rate and must state each and every reason why the employer believes a lower rate should be established. Forms may be obtained from the Bureau of Labor and Industries;

(b) The application form must be signed by the employer, the prospective employee and, if the student learner has a legal guardian or other person legally empowered to act for the student learner, the legal guardian or other person;

(c) The commissioner may require additional information from the employer or prospective employee to verify the conditions or reasons specified in the application;

(d) The commissioner will grant the application only when the commissioner has determined that the application of ORS 653.025 would substantially curtail opportunities for employment of the prospective employee named in the application. The application may be granted under such terms and conditions as the commissioner deems appropriate; and

(e) The commissioner will consider each application on an individual basis and will not grant blanket authorization in advance for a specific type or group of persons.

[NOTE: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 651.060 & ORS 653.030
Statutes/Other Implemented: ORS 653.030 & ORS 653.033
BLI 17-2023, amend filed 10/05/2023, effective 10/06/2023
BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 1-2002, f. & cert. ef. 1-9-02
BL 10-1990, f. & cert. ef. 7-26-90
BL 1-1987, f. & ef. 1-12-87

Or. Admin. R. 839-020-0020 Deductions from the Minimum Wage — Generally

Employers may not deduct the cost of any of the following items from the minimum wage:

(1) Tools.

(2) Equipment.

(3) Uniforms, including but not limited to, garments such as suits, dresses, aprons, and all other garments whatsoever as worn by the employees as a condition of employment. Such apparel of a similar design, color, or material or forming part of the decorative pattern of the establishment or distinguishing the employee as an employee of the concern is presumed to be worn as a condition of employment.

(4) Laundry or cleaning of uniforms.

(5) Maintenance of tools, equipment or uniforms.

(6) Breakage or loss of tools, equipment or uniforms.

(7) Any other item required by the employer to be worn or used by the employee as a condition of employment.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.025
BLI 1-2002, f. & cert. ef. 1-9-02
BL 1-1987, f. & ef. 1-12-87

Or. Admin. R. 839-020-0025 Deductions for Meals, Lodging, Facilities or Other Services

(1) The fair market value of meals, lodging and other facilities or services furnished by the employer to the employee for the private benefit of the employee may be deducted from the minimum wage. The employer has the burden of establishing the fair market value (See also OAR 839-020-0004(16)).

(2) "Fair market value" may be established in either of the following ways:

(a) The amount actually and customarily charged for comparable meals, lodging, facilities or services to consumers who are not employees of the employer; or

(b) The actual cost to the employer in purchasing, preparing or providing the meals, lodging or other facilities or services.

(3) The provisions of section (1) of this rule do not prohibit the payment of wages as meals, lodging and other facilities or services furnished to employees either as additions to wages or as items for which deductions from wages will be made. These provisions apply to all facilities or services furnished by the employer as compensation to the employee regardless of whether the employer calculates charges for such facilities or services as additions to or deductions from wages. In order for the employer to be able to claim credit toward the minimum wage for providing meals, lodging or other facilities or services furnished to an employee, the deduction of these costs from the employee's wages must have been authorized by the employee in writing, the deduction must have been for the private benefit of the employee, and the deduction must be recorded in the employer's books, or the deduction of these costs must be authorized by a collective bargaining agreement, in accordance with the provisions of ORS 652.610.

(4) Full settlement of sums owed to the employer by the employee because of meals, lodging and other facilities or services furnished by the employer shall be made on each regular payday.

(5) The provisions of section (1) of this rule apply only when the following conditions are continuously met:

(a) The employer has met the conditions of ORS 652.610(3); and

(b) The employee actually receives the meals, lodging or other facilities or services; and

(c) The meals, lodging or other facilities or services are furnished by the employer for the private benefit of the employee; and

(d) The meals, lodging or other facilities and services are provided in a lawful manner. No deduction from the minimum wage may be made for alcohol provided without applicable permits, for illegal substances or services, such as drugs or prostitution, or for any other substance, facility or service which is provided in a manner determined by a court or appropriate administrative agency to have been unlawful.

(6) As used in this rule, meals actually received by the employee and furnished by the employer are regarded as being for the private benefit of the employee except when meal expenses are incurred by an employee while traveling away from the employee's home on the employer's business.

(7) Lodging or other facilities or services are furnished for the private benefit of the employee when such lodging or other facilities or services are not required by the employer. For purposes of this rule, lodging or other facilities or services are required by the employer when:

(a) Acceptance of the lodging or other facilities or services is a condition of the employee's employment; or

(b) The expense is incurred by an employee who must travel away from the employee's home on the employer's business; or

(d) The provision of lodging or other facilities or services is necessary in order for the employer to maintain an adequate work force at the times and locations the employer needs them.

History

Statutory/Other Authority: ORS 651.060(4) & 653.040
Statutes/Other Implemented: 2013 SB 135 & ORS 653
BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 15-1999, f. & cert. ef. 10-6-99
BL 9-1996, f. & cert. ef. 10-8-96
BL 3-1992, f. & cert. ef. 3-2-92
Reverted to BL 1-1987, f. & ef. 1-12-87
BL 5-1991(Temp), f. 5-15-91, cert. ef. 5-17-91
BL 1-1987, f. & ef. 1-12-87

Or. Admin. R. 839-020-0027 Deductions for Garnishment Processing Fee

(1) If a garnishee that employs a debtor is required to make any payment under a writ of garnishment by reason of wages payable to the debtor, the garnishee may collect a processing fee as provided pursuant to ORS 18.736 for each week of wages, or fraction of a week of wages, for which a payment is made under the provisions of ORS 18.735. The processing fee must be collected after the last payment is made under the writ. The fee shall be withheld from the wages of the debtor, and is in addition to the amounts withheld for payment to the garnishor under the writ or under any other writ delivered to the garnishee.

(2) The fee provided for in this section may not be collected if withholding of the fee would reduce the debtor's net disposable income below the minimum amount prescribed by ORS 18.385.

History

Statutory/Other Authority: ORS 651.060(4), 652, 653 & HB 3544(2003 legislature)
Statutes/Other Implemented: ORS 18.838, 652.150 & 653.261(1)
BLI 22-2010, f. 12-30-10, cert. ef. 1-1-11
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04

Or. Admin. R. 839-020-0030 Payment of Overtime Wages — Generally

(1) Except as provided in OAR 839-020-0125 to 839-020-0130, all work performed in excess of forty (40) hours per week must be paid for at the rate of not less than one and one-half times the regular rate of pay when computed without benefits of commissions, overrides, spiffs, bonuses, tips or similar benefits pursuant to ORS 653.261(1). Similar benefits include, but are not limited to, discretionary bonuses, gifts, profit sharing, thrift and savings program, trusts, reimbursements for expenses, holiday, or vacation pay.

(2) Definitions:

(a) "Work week" means any seven (7) consecutive twenty four (24) hour period as determined by the employer. The beginning of the work week may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of this rule. For purposes of overtime computation, each work week stands alone;

(b) "Regular rate", for purposes of overtime computation, means a regular hourly rate, but in no case will the regular hourly rate be less than the applicable statutory minimum wage rate. In the absence of an express agreement between the employer and the employee which specifies the regular hourly rate, the regular hourly rate is determined by dividing the total remuneration for employment in any work week (excluding commissions, spiffs, bonuses, tips or similar benefits, or any compensation an employer is required to pay an employee under ORS 653.442 or 653.455), by the total number of hours actually worked in that work week for which such remuneration was paid. The division will be guided in the application and calculation of regular rate by Title 29, Code of Federal Regulations, Part 778, Subpart C, D and E except when expressly prohibited by ORS Chapter 653 or these rules.

(c) “Base rate,” for purposes of computing overtime for domestic workers, means a regular hourly rate, but in no case will the base rate be less than the greater of any applicable statutory minimum wage rate. In the absence of an express agreement between the employer and the employee which specifies the regular hourly rate, the regular hourly rate is determined by dividing the total remuneration for employment in any work week (excluding commissions, spiffs, bonuses, tips or similar benefits), by the total number of hours actually worked in that work week for which such remuneration was paid. The division will be guided in the application and calculation of base rate by Title 29, Code of Federal Regulations, Part 778, Subpart C, D and E pertaining to regular rate except when expressly prohibited by ORS Chapter 653 or these rules.

(3) Methods for determining amount of overtime payment under different compensation agreements:

(a) Compensation based exclusively on hourly rate of pay:

(A) Where the employee is employed solely on the basis of a single hourly rate, the hourly rate is the "regular rate." For hours worked in excess of forty (40) hours in a work week the employee must be paid, in addition to the straight time hourly earnings, a sum determined by multiplying one-half the hourly rate by the number of hours worked in excess of forty (40);

(B) For example, a $10 per hour rate will bring, for an employee who works 46 hours, a total weekly wage of $490 (46 hours at $10 plus six hours at $5.00). In other words the employee must be paid an amount equal to $10 per hour for 40 hours and $15.00 per hour for the six hours of overtime, or a total of $490.

(b) Compensation based upon piece-rate agreement:

(A) Where an employee is employed on a piece-rate basis, the regular hourly rate of pay is determined by adding together the total earnings, (excluding commissions, spiffs, bonuses, tips or similar benefits) for the work week and dividing this sum by the number of hours worked in the week for which such compensation is to be paid;

(B) For example, an employee who has earned $500 during a 50 hour work week must be paid an additional sum of $50 for the ten overtime hours, or a total of $550 (50 hours at $10 per hour and the ten overtime hours at $5.00 per hour).

(A) Where the employee is employed on a weekly salary for a regular work week of fewer than 40 hours, the regular hourly rate of pay is determined by dividing the salary by the number of hours agreed to be worked in the work week which such salary is intended to compensate;

(B) For example, if an employee is hired at a salary of $525 and it is understood that this salary is compensation for a regular work week of 35 hours, the employee's regular rate of pay is $15 per hour ($525 divided by 35 hours). Thus, where the employee works in excess of 35 hours in a given work week such employee must be paid $15 per hour for each of the first 40 hours and $22.50 per hour (one and one-half times $15) for each hour worked in excess of 40 hours in such work week.

(d) Compensation based upon a weekly salary agreement for a regular work week of 40 hours:

(A) Where the employee is employed on a weekly salary for a regular work week of 40 hours, the regular hourly rate of pay is computed by dividing the salary by 40 hours;

(B) For example, where an employee is hired at a salary of $600 and it is understood that this weekly salary is compensation for a regular work week of 40 hours, the employee's regular rate of pay is $15 per hour and such employee must be compensated at the rate of $22.50 per hour for each hour worked in excess of 40 hours in such work week.

(e) Compensation based upon weekly salary agreement for regular workweeks of more than 40 hours:

(A) If the employee is employed on a weekly salary which is the agreed compensation for a set number of hours in excess of 40, the regular hourly rate of pay is determined by dividing the weekly salary by the set number of hours which such salary is intended to compensate;

(B) For example, where an employee is hired at a weekly salary of $675 and it is understood that this weekly salary is compensation for a regular work week set at 45 hours, the employee's regular rate of pay is $15 per hour and such employee must be paid an additional sum of $37.50 for such work week or a total of $712.50 (45 hours at $15 per hour and the five overtime hours at $7.50 per hour). The employee must be paid an additional $22.50 per hour for each hour worked in excess of 45 hours in such work week.

(f) Compensation based upon an agreed fixed salary for fluctuating hours (fluctuating workweek method for payment of overtime):

(A) An employee employed on a fixed salary may have hours of work which vary from work week to work week and the salary may be paid to the employee pursuant to an understanding with the employer that such employee will receive such fixed amount of compensation for whatever hours the employee is called upon to work in a work week, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation for the hours worked each work week, whatever their number, such a salary arrangement is permitted if the amount of the salary is sufficient to provide compensation to the employee at a rate not less than the applicable statutory minimum wage rate for every hour worked in those work weeks in which the number of hours worked is greatest, and if the employee receives overtime compensation, in addition to such salary, for all hours worked in excess of 40, at a rate not less than one-half the regular rate of pay. Since, under such an arrangement, the number of hours actually worked will fluctuate from work week to work week, the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the work week into the amount of the salary to obtain the applicable regular hourly rate for any given work week. Payment for overtime hours worked in excess of 40 hours in such work week at one-half such hourly rate in addition to the salary satisfies the requirements of this rule because such hours have already been compensated at the regular rate, under the salary arrangement. The following examples, based upon a weekly salary of $400, are offered by way of illustration:

(i) Work week #1 — 50 hours worked; the employee's regular rate of pay is $8 per hour and the employee must be paid an additional sum equal to one-half the regular rate times the ten overtime hours worked or $40, making the total compensation for that work week $440;

(ii) Work week #2 — 60 hours worked; the employee's regular rate of pay is $6.67 per hour, which is less than the required state minimum wage rate. The employee must be paid an additional sum equal to the difference between the employee's weekly salary of $400 and the total of the amount the employee earned at the minimum wage for 40 hours plus one and one-half times the minimum wage rate for the hours worked over 40 during the work week (40 hours X minimum wage rate + 20 hours X 1.5 X minimum wage rate).

(B) The fluctuating work week method for the payment of overtime does not apply to employers covered by the federal Family Medical Leave Act of 1993, 29 USC 2601, et. seq., who comply with the Code of Federal Regulations regarding the nonpayment of leave time authorized by the Act and the special exception pertaining to the payment of overtime under the fluctuating workweek method ([S]see 29 CFR, Part 825.206 (b) and (c)). Employers who select this method for paying overtime and who are covered by this Act but choose not to comply with 29 CFR 825.206, must comply with this rule.

(g) Fixed salary for periods other than work week: Where a salary covers a period longer than a work week, such as a month, it must be reduced to its work week equivalent. A monthly salary is subject to translation to its equivalent weekly wage by multiplying by 12 (the number of months) and dividing by 52 (the number of weeks). A semi-monthly salary is translated into its equivalent weekly wages by multiplying by 24 and dividing by 52. Once the weekly wage is arrived at, the regular rate of pay and the amount of any overtime pay is determined as provided by this rule.

(4) Notwithstanding ORS 653.020, the computation of overtime in any given work week for any domestic worker will include all “hours worked” as that term is defined in OAR 839-020-0040 through -0046.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 183 & 653
Statutes/Other Implemented: ORS 653.261
BLI 10-2022, minor correction filed 09/13/2022, effective 09/13/2022
BLI 15-2018, amend filed 06/08/2018, effective 07/01/2018
BLI 19-2015, f. 12-22-15, cert. ef. 1-1-16
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1996, f. & cert. ef. 10-8-96
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90
BL 1-1987, f. & ef. 1-12-87

Or. Admin. R. 839-020-0040 Hours Worked — Generally

(1) OAR 839-020-0040 to 839-020-0047 deals with hours worked as defined by OAR 839-020-0004(19) and discusses principles involved in determining what constitutes working time for purposes of ORS 653.010 to 653.261 and these rules.

(2) Work requested or required is considered work time. Work not requested, but suffered or permitted is considered work time.

(3) Work performed for the employer but away from the employer's premises or job site is considered work time. If the employer knows or has reason to believe that work is being performed, the time spent must be counted as hours worked.

(4) It is the duty of the employer to exercise control and see that the work is not performed if it does not want the work to be performed. The mere promulgation of a policy against such work is not enough.

History

Statutory/Other Authority: ORS 651.060(4) & 653.040
Statutes/Other Implemented: 2013 SB 135 & ORS 653.010 - 653.261
BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 1-2002, f. & cert. ef. 1-9-02
BL 10-1990, f. & cert. ef. 7-26-90
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0041 Waiting Time

(1) On duty (engaged to wait): Where waiting is an integral part of the job, i.e., when the time spent waiting belongs to and is controlled by the employer and the employee is unable to use the time effectively for the employee’s own purposes, that employee will be considered as engaged to wait. All time spent in activity where an employee is engaged to wait will be considered as part of hours worked.

(2) Off duty (waiting to be engaged): Periods during which an employee is completely relieved from duty and which are long enough to enable the employee to use the time effectively for the employee’s own purposes are not hours worked. The employee is not completely relieved from duty and cannot use the time effectively for the employee’s own purposes unless the employee is told in advance that the employee may leave the job and that the employee will not have to commence work until a specified hour has arrived. Whether the time is long enough to enable the employee to use the time effectively for the employee’s own purposes depends upon all of the facts and circumstances of the case.

(3) On-call time: An employee who is required to remain on-call on the employer's premises or so close thereto that the employee cannot use the time effectively for the employee’s own purposes is working while "on-call.” An employee who is not required to remain on the employer's premises but is merely required to leave word at the employee’s home or with company officials where the employee may be reached is not working while on-call.

History

Statutory/Other Authority: ORS 183 & 653
Statutes/Other Implemented: ORS 653.010 - 653.261
BLI 1-2002, f. & cert. ef. 1-9-02
BL 10-1990, f. & cert. ef. 7-26-90
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0042 Sleeping Time and Certain Other Activities

Under certain conditions an employee is considered to be working even though some of the employee's time is spent sleeping or in certain other activities:

(1) Less than 24 hours duty: An employee who is required to be on duty for less than 24 hours is working even though the employee is permitted to sleep or engage in other activities when not busy.

(2) Duty of 24 hours or more: Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than eight hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted sleep period. If sleeping period is of more than eight hours, only eight hours will be credited. Where no expressed or implied agreement to the contrary is present, the eight hours of sleeping time and lunch periods constitute hours worked:

(a) Interruptions of sleep. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable sleep period, the entire period must be counted;

(b) For purposes of this rule a reasonable night's sleep is considered sleep time of not less than five continuous hours.

(3) Employees residing on employers' premises or working at home: An employee who resides on the employer's premises on a permanent basis or for extended periods of time is not considered as working all the time the employee is on the premises. Ordinarily, the employee may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when the employee may leave the premises for the employee's own purposes. To determine the exact hours worked, any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted.

(4) Notwithstanding ORS 653.020 and sections (2) and (3) of this rule, an employer must provide a domestic worker who resides in the home of the employer with both at least eight consecutive hours of rest within each 24-hour period and a space with adequate conditions for uninterrupted sleep. For purposes of this section, if the period of rest is interrupted by a call to duty, any time worked during the rest period must be paid at one and one-half times the employee’s base rate regardless of the total number of hours worked in that work week.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.010 - 653.261
BLI 19-2015, f. 12-22-15, cert. ef. 1-1-16
BLI 1-2002, f. & cert. ef. 1-9-02
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0043 Preparatory and Concluding Activities

(1) Preparatory and concluding activities are considered hours worked if the activities performed by the employee are an integral and indispensable part of a principal activity for which the employee is employed:

(a) Example: A bank teller counts the till and arranges the work space in preparation for receiving customers. This activity is an integral and indispensable part of the principal activity for which the employee is employed and is included as hours worked;

(b) Example: In connection with the operation of a lathe, the lathe operator oils, greases, or cleans the machine or installs a new cutting tool. Such activities are an integral and indispensable part of a principal activity and are included as hours worked;

(c) Example: Agricultural workers must dress in protective clothing and thoroughly clean up after their work with or around pesticides. The time spent in these activities is work time.

(2) These rules are applicable even where there exists a custom, contract or agreement not to pay for the time spent in such activity.

(3) Where a contract, custom or practice dictates certain activities to be considered as work time, even though not considered to be an integral and indispensable part of a principal activity, the time devoted to such activities will be considered as work time.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.010 - 653.261
BLI 1-2002, f. & cert. ef. 1-9-02
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0044 Lectures, Meetings and Training Programs

(1) Attendance at lectures, meetings, training programs and similar activities need not be counted as work time if the following four criteria are met:

(a) Attendance is outside of the employee's regular working hours;

(b) Attendance is voluntary;

(d) The employee does not perform any productive work during such attendance.

(2) Involuntary attendance: Attendance is not voluntary if it is required by the employer. It is not voluntary in fact, if the employee is given to understand or led to believe that the employee’s present working conditions or the continuance of the employee’s employment would be adversely affected by non-attendance.

(3) Training is directly related to an employee's job if it is designed to make the employee handle the employee’s job more effectively as distinguished from training the employee for another job or teaching the employee a new additional skill in the same job.

(4) Independent training is time spent by the employee on the employee’s own initiative attending an independent school, college, or independent trade school after hours. Time spent in this activity is not considered hours worked for an employer even if the courses are related to the employee's job.

(5) Special situations: There are special situations where the time spent in attending lectures, training sessions and courses of instruction is not regarded as hours worked. For example, an employer may establish for the benefit of its employees a program of instruction, which corresponds to courses offered by independent bona fide institutions of learning. Voluntary attendance by an employee at such courses outside of working hours would not be hours worked even if they are directly related to his job, or paid for by the employer.

(6) Time spent in an organized program of related, supplemental instruction by employees working under bona fide apprenticeship programs may be excluded from working time if the following criteria are met:

(a) The apprentice is employed under a written apprenticeship agreement or program which meets the standards of and is registered with the Bureau of Labor and Industries, Apprenticeship and Training Division; and

(b) Such time does not involve productive work or performance of the apprentice's regular duties. If the above criteria are met, the time spent in such related supplemental training will not be counted as hours worked unless the written agreement specifically provides that it is hours worked. The mere payment or agreement to pay for time spent in related instruction does not constitute an agreement that such time is hours worked.

(7) Time spent in required training outside regular working hours at specialized or follow up training which is required for certification of employees by any law or ordinance does not constitute compensable hours of work. The time spent in training as provided in this subsection is not compensable, even if all or part of the cost of training is borne by the employer.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1996, f. & cert. ef. 10-8-96
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0045 Travel Time

(1) Home to work in an ordinary situation: An employee who travels from home before the employee’s regular workday and returns home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment, whether the employee works at a fixed location or at different job sites. Normal travel from home to work is not work time.

(2) Home to work in an emergency situation: If an employee has left the employer's premises or job site after completing the day's work and is subsequently called out to travel a substantial distance to perform an emergency job, any time spent in excess of time spent in normal home-to-work travel will be considered working time. Call-backs which require only normal home-to-work travel to the employer's place of business or job site will not be considered working time. For purposes of this section, "substantial distance" means a distance beyond a 30-mile radius of the employer's place of business.

(3) Travel that is all in a day's work: Time spent by an employee in travel as part of the employee’s principal activity must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there or to pick up and carry tools, the travel from the designated place to the work place is part of the day's work and must be counted as hours worked regardless of any contract, custom or practice:

(a) Example: A construction worker who travels from job site to job site during the work day must be compensated for time spent in traveling;

(b) Example: If an employee who normally finishes work on the employer's premises at 5 p.m. is sent to another job at a different site, finishes that job at 8 p.m. and is then required to return to the employer's premises arriving at 9 p.m., the employee will be compensated for all time up to 9 p.m. However, if the employee goes home instead of returning to the employer's premises, the travel time after 8 p.m. is considered normal work to home travel and is not compensable.

(4) Home to work on special one-day assignment to another city: An employee who regularly works at a fixed official work station, if given an assignment to work in another city outside of a 30 mile radius of the official work station where normally employed, and not required to stay over night, must be paid travel time pursuant to section (3) of this rule. This time is considered an integral part of a principal activity.

(5) Travel away from the home community: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is work time when it cuts across the employee's workday. The employee is substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on non-working days. Time that is spent in travel away from home outside of regular work hours as a passenger on an airplane, train, boat, bus, or automobile is not considered work time.

(6) When a private automobile is used in travel away from the home community: If an employee is offered public transportation but requests permission to drive the employee’s own car instead, the employer may count as hours worked either the time spent driving the car or the time the employee would have had to count as hours worked during working hours if the employee had used the public conveyance.

(7) Work performed while traveling includes any work which an employee is required to perform while traveling and must be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when the employee is permitted to sleep in adequate facilities furnished by the employer.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.010 - 653.261
BLI 1-2002, f. & cert. ef. 1-9-02
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0046 Adjusting Grievances, Medical Attention, Civic and Charitable Work and Suggestion Systems

(1) Time spent in adjusting grievances between an employee and employer during the time employees are required to be on the premises is hours worked, but in the event a bona fide union is involved the counting of such time will be left to the process of collective bargaining or to the custom or practice under the collective bargaining agreement.

(2) Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee's normal working hours on days when the employee is working constitutes hours worked.

(3) Time spent in work for public or charitable purposes at the employer's request, or under its direction or control, or while the employee is required to be on the premises, is working time. Time spent voluntarily in such activities outside of the employee's normal working hours is not hours worked.

(4) Time spent by employees outside of their regular working hours in developing suggestions under a general suggestion system is not working time, but if employees are permitted to work on suggestions during regular working hours the time spent must be counted as hours worked. When an employee is assigned to work on the development of a suggestion, the time is considered hours worked.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.010 - 653.261
BLI 1-2002, f. & cert. ef. 1-9-02
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0047 Application of OAR 839-020-0040 to 839-020-0047 to Agricultural Employees

The provisions of OAR 839-020-0040 to 839-020-0047 apply to all persons employed in Agriculture who are required to be paid minimum wages pursuant to ORS 653.025.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.025
BL 10-1990, f. & cert. ef. 7-26-90

Or. Admin. R. 839-020-0050 Meal and Rest Periods

(1) The purpose of this rule is to prescribe minimum meal periods and rest periods for the preservation of the health of employees.

(2)(a) Except as otherwise provided in this rule, every employer shall provide to each employee, for each work period of not less than six or more than eight hours, a meal period of not less than 30 continuous minutes during which the employee is relieved of all duties.

(b) Except as otherwise provided in this rule, if an employee is not relieved of all duties for 30 continuous minutes during the meal period, the employer must pay the employee for the entire 30-minute meal period.

(c) An employer is not required to provide a meal period to an employee for a work period of less than six hours. When an employee’s work period is more than eight hours, the employer shall provide the employee the number of meal periods listed in Appendix A of this rule.

(d) The timing of the meal period shall be as follows:

(A) If the work period is seven hours or less, the meal period must be taken after the conclusion of the second hour worked and completed prior to the commencement of the fifth hour worked.

(B) If the work period is more than seven hours, the meal period must be taken after the conclusion of the third hour worked and completed prior to the commencement of the sixth hour worked.

(C) Notwithstanding paragraphs (A) and (B) of this subsection, for employees of an acute inpatient care facility the meal period must be provided in accordance with this paragraph, when applicable. If the work period is more than seven hours, but less than ten hours, the meal period must be taken after the conclusion of the third hour worked and completed prior to the commencement of the sixth hour worked. If the work period is ten hours or more, the meal period must be taken after the conclusion of the third hour worked and completed prior to the conclusion of the ninth hour worked.

(3) If an employer does not provide a meal period to an employee under section (2) of this rule, the employer has the burden to show that:

(a) To do so would impose an undue hardship on the operation of the employer’s business as provided in section (4), and that the employer has complied with section (5) of this rule;

(b) Industry practice or custom has established a paid meal period of less than 30 minutes (but no less than 20 minutes) during which employees are relieved of all duty; or

(c) The failure to provide a meal period was caused by unforeseeable equipment failures, acts of nature or other exceptional and unanticipated circumstances that only rarely and temporarily preclude the provision of a meal period required under section (2) of this rule. If an employee is not relieved of all duties for 30 continuous minutes during the meal period, the employer must pay the employee for the entire 30-minute meal period.

(4) As used in section (3)(a) of this rule, “undue hardship” means significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business. For the purpose of determining whether providing a meal period requires significant difficulty or expense, the following factors may be considered:

(a) The employer’s cost of complying with the requirement to provide a meal period under section (2) of this rule.

(b) The overall financial resources of the employer.

(c) The number of persons employed at the particular worksite and their qualifications to relieve the employee; the total number of persons employed by the employer; and the number, type and geographic separateness of the employer’s worksites.

(d) The effect of providing the meal period required under section (2) of this rule on worksite operations involving: the startup or shutdown of machinery in continuous-operation industrial processes; intermittent and unpredictable workflow not in the control of the employer or employee; the perishable nature of materials used on the job; and the safety and health of other employees, patients, clients or the public.

(5) When an employer does not provide a meal period to an employee under section (2) of this rule, and is able to make the required showing under section (3)(a) of this rule:

(a) The employer shall instead provide the employee adequate paid periods in which to rest, consume a meal, and use the restroom; and

(b) The employer shall first provide to each employee a notice provided by the commissioner of the Bureau of Labor and Industries regarding rest and meal periods in the language used by the employer to communicate with the employee. The employer shall retain and keep available to the commissioner a copy of the notice for the duration of the employee's employment and for no less than six months after the termination date of the employee. Notices that comply with this subsection are available upon request from the bureau.

(6)(a) Except as provided in subsection (b) of this section, every employer shall provide to each employee, for each segment of four hours or major part thereof worked in a work period, a rest period of not less than ten continuous minutes during which the employee is relieved of all duties, without deduction from the employee's pay.

(A) As the nature of the work allows, the employer shall provide the rest period approximately in the middle of each segment of four hours or major part thereof worked in a work period. When the employee’s work period is more than eight hours, the employer shall provide the employee the number of rest periods listed in Appendix A of this rule.

(B) The employer shall provide rest periods in addition to and taken separately from the time provided for a meal period. An employer may not require or allow an employee to add the rest period to a meal period or deduct the rest period from the beginning or end of the employee’s work period to reduce the overall length of the work period.

(b) An employer is not required to provide a rest period to an employee when all of the following conditions are met:

(A) The employee is 18 years of age or older;

(B) The employee works less than five hours in any period of 16 continuous hours;

(D) The employee is employed in a retail or service establishment, i.e., a place where goods and services are sold to the general public, not for resale; and

(E) The employee is allowed to leave the employee's assigned station when the employee must use the restroom facilities.

(7) The provisions of this rule regarding meal periods and rest periods may be modified by the terms of a collective bargaining agreement if the provisions of the collective bargaining agreement entered into by the employees specifically prescribe rules concerning meal periods and rest periods.

(8)(a) Pursuant to the provisions of ORS 653.261, if an employer agrees, an employee may waive a meal period if all of the following conditions are met:

(A) The employee is employed to serve food or beverages, receives tips, and reports the tips to the employee's employer;

(B) The employee is at least 18 years of age;

(C) The employee voluntarily requests to waive the employee's meal periods no less than seven calendar days after beginning employment;

(D) The employee's request to waive the employee's meal periods is in writing in the language used by the employer to communicate with the employee, on a form provided by the commissioner, and is signed and dated by both the employee and employer;

(E) The employer retains and keeps available to the commissioner a copy of the employee's request to waive the employee's meal period during the duration of the employee's employment and for no less than six months after the termination date of the employee;

(F) The employee is provided with a reasonable opportunity to consume food during any work period of six hours or more while continuing to work;

(G) The employee is paid for any and all meal periods during which the employee is not completely relieved of all duties;

(H) The employee is not required to work longer than eight hours without receiving a 30-minute meal period during which the employee is relieved of all duties;

(I) The employer makes and keeps available to the commissioner accurate records of hours worked by each employee that clearly indicate whether or not the employee has received meal periods; and

(J) The employer posts a notice provided by the commissioner regarding rest and meal periods in a conspicuous and accessible place where all employees can view it.

(b) Either the employer or employee may revoke the agreement for the employee to waive the employee's meal periods by providing at least seven (7) calendar days written notice to the other.

(c) Notwithstanding subsection (b) of this section, an employee who has requested to waive meal periods under this section may request to take a meal period without revoking the agreement to waive such periods. The request to take a meal period must be submitted in writing to the employer no less than 24 hours prior to the meal period requested.

(d) An employer may not coerce an employee into waiving a meal period.

(e) An employer will be considered to have coerced an employee into waiving the employee's meal period under the following circumstances:

(A) The employer requests or requires an employee to sign a request to waive meal periods;

(B) An employee is required to waive meal periods as a condition of employment at the time of hire or at any time while employed;

(C) The employer requests or requires any person, including another employee, to request or require an employee to waive meal periods; or

(D) The employee signs a form requesting to waive meal periods prior to being employed for seven calendar days.

(f) Employee waiver forms and notices regarding rest and meal periods that comply with this section are available upon request from the bureau.

(9) Notwithstanding sections (2) and (6) of this rule, a public school district, education service district, or public charter school may provide any person substituting for a regular teacher with the same rest and meal periods to which the regular teacher is entitled under any applicable law, employment contract, policy, or collective bargaining agreement.

(10) Rest and meal period requirements specific to minors under 18 years of age are provided in OAR 839-021-0072.

(11) As used in this rule:

(a) “Work period” means the period between the time the employee begins work and the time the employee ends work.

(b) “Work period” includes a rest period as provided in section (6) of this rule, and any period of one hour or less (not designated as a meal period) during which the employee is relieved of all duties.

(c) “Work period” does not include a meal period unless the meal period is paid work time as provided in section (2) or (5) of this rule.

[ED. NOTE: To view attachments referenced in rule text, click here to view rule.]

History

Statutory/Other Authority: ORS 651.060, ORS 653.040 & ORS 653.261
Statutes/Other Implemented: ORS 653.261
BLI 8-2025, temporary amend filed 05/30/2025, effective 06/01/2025 through 11/23/2025
BLI 7-2024, amend filed 01/19/2024, effective 01/19/2024
BLI 6-2024, amend filed 01/09/2024, effective 01/15/2024
BLI 24-2018, amend filed 11/30/2018, effective 11/30/2018
BLI 23-2018, amend filed 11/29/2018, effective 11/29/2018
BLI 18-2018, amend filed 07/19/2018, effective 07/19/2018
BLI 3-2018, temporary amend filed 02/22/2018, effective 02/22/2018 through 08/20/2018
BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 15-2010, f. 5-25-10, cert. ef. 6-1-10
BLI 3-2009, f. & cert. ef. 1-12-09
BLI 29-2008(Temp), f. 9-22-08, cert. ef. 9-23-08 thru 3-22-09
BLI 21-2008, f. & cert. ef. 7-8-08
BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1996, f. & cert. ef. 10-8-96
BL 10-1990, f. & cert. ef. 7-26-90
BL 1-1987, f. & ef. 1-12-87

Or. Admin. R. 839-020-0051 Rest Periods for Expression of Milk

(1) ORS 653.077 requires employers to provide reasonable rest periods to accommodate an employee who needs to express milk for the employee's child 18 months of age or younger.

(a) If feasible, the employee will take the rest periods to express milk at the same time as the rest periods or meal periods that are otherwise provided to the employee. If not feasible, the employee is entitled to take an unpaid rest period each time the employee has a need to express milk.

(b) If the employer is required by law or contract to provide the employee with paid rest periods, the employer will treat the rest periods used by the employee for expressing milk as paid rest periods, up to the amount of time the employer is required to provide as paid rest periods.

(c) If an employee takes unpaid rest periods, the employer may, but is not required to, allow the employee to work before or after the employee's normal shift to make up the amount of time used during the unpaid rest periods. If the employee does not work to make up the amount of time used during the unpaid rest periods, the employer is not required to compensate the employee for that time.

(d) An employer may not require an employee, including an employee who is FLSA exempt, to substitute paid leave time for unpaid rest periods provided in compliance with these rules.

(e) As used in ORS 653.077 and this rule, “expression of milk” means the initiation of lactation by manual or mechanical means and does not include breastfeeding. However, any employer may accommodate breastfeeding pursuant to its own policies or by agreement or contract with employees.

(2) An employer will make a reasonable effort to provide the employee with a private location within close proximity to the employee’s work area to express milk.

(a) As used in ORS 653.077 and this rule, a “private location” is a place, other than a toilet stall or public restroom, in close proximity to the employee’s work area for the employee to express milk concealed from view and without intrusion by other employees or the public and includes, but is not limited to:

(A) The employee’s work area if the work area permits the employee to express milk concealed from view and without intrusion by other employees or the public.

(B) A room connected to a public restroom, such as a lounge, if the room allows the employee to express milk concealed from view and without intrusion by other employees or the public.

(C) A child care facility where the employee can express milk concealed from view and without intrusion by other employees or the public.

(D) An empty or unused office, conference room, or a storage space, so long as there is a door that closes and any windows can be covered, and there is a sign that can be placed on the door or handle of the door indicating that the room is in use.

(b) As used in ORS 653.077 and this rule, a “public restroom” is a restroom freely available for use by employees or the general public that does not include an attached lounge or room that allows an employee to express milk concealed from view and without intrusion by other employees or the public. A “toilet stall” includes a restroom that contains one toilet, whether or not in plain view, and whether or not the restroom locks from the inside.

(c) As used in ORS 653.077 and this rule, “close proximity” means within walking distance from the employee’s work area that does not appreciably shorten the rest or meal period.

(d) If a private location is not within close proximity to the employee’s work area, the employer may not include the time taken to travel to and from the location as part of the break period.

(3) An employer with ten (10) or fewer employees is not required to provide rest periods under this section if to do so would impose an undue hardship on the operation of the employer’s business. As defined in ORS 653.077, “undue hardship” means significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business. For the purpose of determining whether providing rest periods for expression of milk requires significant difficulty or expense, the following factors will be considered:

(a) The nature and the cost of complying with the requirement to provide a reasonable rest period for the expression of milk.

(b) The overall financial resources of the employer’s facility or facilities involved in complying with the requirement to provide a reasonable rest period for the expression of milk, the number of persons employed at the facility and the effect on expenses and resources or other effects on the operation of the facility caused by the necessity for compliance with the requirement to provide a reasonable rest period in a private location.

(c) The overall financial resources of the employer, the overall size of the employer’s business with respect to the number of its employees and the number, type and location of the employer’s facilities.

(4) An employer is required provide a reasonable accommodation to an employee’s or applicant’s limitations related to the expression of milk in accordance with ORS 659A.146 to ORS 659A.148.

(5) When possible, an employee who intends to express milk during work hours must give the employer reasonable oral or written notice of the employee's intention to allow the employer time to make the preparations necessary for compliance with ORS 653.077 and these rules. Failure to give notice is not grounds for discipline.

(6) An employer must notify all employees, through its policies or other means, of the person or entity to whom an employee should give notice of intent to express milk. If the employer does not provide such notification, the employee’s oral or written notice to a supervisor, manager, or human resource or personnel department or their staff will be presumed sufficient.

(7) After receiving notice from the employee, the employer may take a reasonable time to make necessary preparations for compliance with ORS 653.077 and this rule. A “reasonable time” must not interfere with the rights provided by 653.077 and this rule, taking into consideration the immediacy of the employee’s need to express milk, and that the rights under 653.077 and this rule apply only until the employee’s child is 18 months of age. For example, an employer in the process of creating a private location for expressing milk must provide the most adequate space already available for an employee who gives notice of an immediate need.

(8) An employee invoking the provisions of ORS 653.077 and this rule is responsible for storing the employee's expressed milk. The employer must allow the employee to bring a cooler or other insulated food container to work for storing the expressed milk and ensure there is adequate space in the workplace to accommodate the employee’s cooler or insulated food container. If the employer allows employees access to refrigeration for personal use, the employer may allow, but cannot require, an employee who expresses milk during work hours to use the available refrigeration to store the expressed milk.

(9) The provisions of this rule may be modified by the terms of a collective bargaining agreement if the collective bargaining agreement entered into by the employee includes provisions that prescribe rules pertaining to reasonable rest periods for the expression of milk.

(10) In addition to any other penalty provided by law, the commissioner may assess a civil penalty not to exceed $1,000 against any person who intentionally violates ORS 653.077 or any rule adopted thereunder.

History

Statutory/Other Authority: ORS 653.077
Statutes/Other Implemented: ORS 653.077 & ORS 659A.146 - 659A.148
BLI 12-2025, amend filed 11/05/2025, effective 11/06/2025
BLI 17-2019, amend filed 10/31/2019, effective 01/01/2020
BLI 33-2007, f. 12-27-07, cert. ef. 1-1-08

Or. Admin. R. 839-020-0052 Leave for Domestic Workers

(1)(a) An employer who employs a domestic worker shall provide the domestic worker with a rest period of at least 24 consecutive hours in each work week.

(b) A domestic worker may agree to work on the designated day of rest, if all of the following conditions are met:

(A) The domestic worker’s agreement is given voluntarily; and,

(B) The agreement is in writing, in a language easily understood by the domestic worker; is made prior to the performance of services on the designated day of rest and specifies the particular day of rest on which the domestic worker agrees to work; and is signed or acknowledged by the domestic worker and the employer.

(c) When a domestic worker works on a designated day of rest, the employer shall pay all hours worked at one and one-half times the employee’s base rate regardless of the total number of hours worked in that work week.

(2)(a) An employer who employs a domestic worker shall provide the domestic worker not less than three paid personal days off each year if the domestic worker worked an average of at least 30 hours per work week during the previous year. For purposes of this subsection, a year includes any consecutive 12-month period, such as a calendar year, a tax year, a fiscal year, a contract year or the 12-month period beginning on the anniversary of the date of employment of the domestic worker.

(b) Paid personal days off shall be compensated at the domestic worker’s base rate and for the average number of hours that the domestic worker works during a typical workday. For example, if a domestic worker typically works 30 hours per week during a five-day work week, the domestic worker must be paid for six hours at the base rate of pay for each personal day off.

(c) Any accrued but unused personal days off shall be paid upon termination in accordance with the requirements for final wages in ORS 652.140.

(3) An employer who employs a domestic worker shall allow the employee to accrue up to 40 hours of sick time as authorized by OL Ch. 537, 2015 and OAR chapter 839, division 7.

History

Statutory/Other Authority: OL Ch. 457 & 2015
Statutes/Other Implemented: OL Ch. 457 & 2015
BLI 19-2015, f. 12-22-15, cert. ef. 1-1-16

Or. Admin. R. 839-020-0060 Weight Lifting

No employee shall be required to lift excessive weights.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.261(1)
BL 1-1987, f. & ef. 1-12-87

Or. Admin. R. 839-020-0065 Other Working Conditions

(1) No employer shall employ or shall suffer or permit any employee to work in the State of Oregon, except under the following conditions:

(a) Where a sanitary and safe work area is provided;

(b) Where adequate lighting is provided;

(d) Where adequate washrooms are provided;

(e) Where adequate toilet facilities are provided;

(f) Where the employer is in full compliance with the provisions of ORS Chapter 654 (the Oregon Safe Employment Act) and the rules and regulations promulgated thereunder. For the purposes of this rule, the compliance status of an employer is determined by the Occupational Safety and Health Division of the Department of Insurance and Finance;

(g) Where, if provided, the cot or stretcher to be used in illnesses, accidents, or other emergencies is adequate.

(2) Every employer shall provide to each employee when required by the nature of the work, suitable seats, suitable tables, and suitable work benches:

(a) Suitable seats means convenient, comfortable and safe seats where the work is such that employees may sit while working. “Suitable seats” in cannery occupations means one for every three employees who work in or on inspection tables and inspection belts;

(b) Suitable tables and suitable work benches means tables and work benches so constructed as to give the greatest possible comfort and convenience to employees where the nature of the work and the safety and convenience of the employee requires a bench or table.

History

Statutory/Other Authority: ORS 183 & 653
Statutes/Other Implemented: ORS 653.261(1)
BL 10-1990, f. & cert. ef. 7-26-90
BL 1-1987, f. & ef. 1-12-87

Or. Admin. R. 839-020-0070 Homework — Generally

(1) Homeworkers as defined by OAR 839-020-0004(18) will be paid not less than the applicable minimum wage pursuant to ORS 653.025 for all hours suffered or permitted to work.

(2) Homeworkers will be paid no less than time and one-half their regular rate of pay for all hours worked in excess of 40 hours in a work week pursuant to OAR 839-020-0030.

(3) General record keeping requirements, as provided in these rules, OAR 839-020-0080(1) through (3), are applicable to homeworkers.

(4) Employer employing homeworkers are subject to the provisions of OAR 839-020-0083 and 839-020-0085 concerning record availability and posting requirements.

History

Statutory/Other Authority: ORS 651.060(4) & 653.040
Statutes/Other Implemented: 2013 SB 135 & ORS 653
BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 1-2002, f. & cert. ef. 1-9-02
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0080 General Recordkeeping Requirements

(1) Every employer regulated under ORS 653.010 to 653.261 must maintain and preserve payroll or other records containing the following information and data with respect to each employee to whom the law applies:

(a) Name in full, as used for Social Security recordkeeping purposes, and on the same record, the employee's identifying symbol or number if such is used in place of name on any time, work, or payroll records;

(b) Home address, including zip code;

(d) Occupation in which employed;

(e) Time of day and day of week on which the employee's workweek begins. If the employee is part of a work force or employed in or by an establishment all of whose workers have a workweek beginning at the same time on the same day, a single notation of the time of the day and beginning day of the workweek for the whole work force or establishment will suffice;

(f) Regular hourly rate of pay for any workweek in which overtime compensation is due, and an explanation of the basis of pay by indicating the monetary amount paid on a per hour, per day, per week, per piece, commission on sales, or other basis, and the amount and nature of each payment which, pursuant to ORS 653.261(1) is excluded from the "regular rate of pay". (These records may be in the form of vouchers or other payment data.);

(g) Hours worked each workday and total hours worked each workweek (for purposes of this section, a "workday" is any fixed period of 24 consecutive hours and a "workweek" is any fixed and regularly recurring period of seven consecutive workdays);

(h) Total daily or weekly straight-time earnings or wages due for hours worked during the workday or workweek, exclusive of premium overtime compensation;

(i) Total premium pay for overtime hours. This amount excludes the straight-time earnings for overtime hours recorded under subsection (h) of this section;

(j) Total additions to or deductions from wages paid each pay period including employee purchase orders or wage assignments. Also, in individual employee records, the dates, amounts, and nature of the items which make up the total additions and deductions;

(k) Total wages paid each pay period;

(l) Date of payment and the pay period covered by payment.

(2) Every employer who makes retroactive payment of wages or compensation under the supervision of the U.S. Department of Labor or the Oregon Bureau of Labor and Industries must record and preserve, as an entry on the pay records, the amount of such payment to each employee, the period covered by such payment, and the date of payment.

(3) With respect to employees working on fixed schedules, an employer may maintain records showing instead of the hours worked each day and each workweek as required by this rule, the schedule of daily and weekly hours the employee normally works, provided:

(a) In weeks in which an employee adheres to this schedule, indicates by check mark, statement or other method that such hours were in fact actually worked by the employee; and

(b) In week in which more or less than the scheduled hours are worked, shows that exact number of hours worked each day and each week.

(4) With respect to each employee in a bona fide executive, administrative, or professional capacity (including employees employed in the capacity of academic administrative personnel or teachers in elementary or secondary schools), or in outside sales, as defined in ORS 653.010(8), employers must maintain and preserve records containing all the information and data required by subsections (1)(a) through (e) of this rule and, in addition, the basis on which wages are paid in sufficient detail to permit calculation for each pay period of the employee's total remuneration for employment including fringe benefits and perquisites.

(5) With respect to each employee of hospitals and institutions primarily engaged in the care of persons who are sick or aged or have mental illness or mental retardation and who reside on the premises compensated for overtime work on the basis of a work period of 14 consecutive days pursuant to an agreement or understanding under OAR 839-020-0125(2)(e), employers must maintain and preserve:

(a) The records required by section (1) of this rule except subsections (1)(e) and (g) through (i) of this rule, and in addition:

(A) Time of day and day of week on which the employee's 14-day work period begins;

(B) Hours worked each workday and total hours worked each 14-day work period;

(D) Total overtime excess compensation paid for hours worked in excess of eight in a workday and 80 in the work period.

(b) A copy of the agreement or understanding with respect to using the 14-day period for overtime pay computations or, if such agreement or understanding is not in writing, a memorandum summarizing its terms and showing the date it was entered into and how long it remains in effect.

(6) With respect to each tipped employee, the employer must maintain and preserve payroll or other records containing all the information and data required in section (1) of this rule and, in addition, a symbol, letter or other notation placed on the pay records identifying each employee.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.045
BLI 6-2016, f. 8-29-16, cert. ef. 1-1-17
BLI 41-2007, f.12-28-07, cert. ef. 1-1-08
BLI 1-2002, f. & cert. ef. 1-9-02
BLI 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0082 Special Recordkeeping Circumstances

(1) In addition to keeping other records required by these rules, an employer who makes deductions from the wages of employees for lodging, meals or other facilities or services (as these terms are used in ORS 653.035) furnished to them by the employer or by an affiliated person, or who furnishes such lodging, meals, other facilities or services to employees as an addition to wages, must maintain and preserve records substantiating the fair market value of furnishing each class of facility. Separate records of the fair market value of each item furnished to an employee need not be kept. The requirements may be met by keeping combined records of the fair market value in each class of facility, such as housing, fuel, or merchandise furnished through a company store or commissary. Such records must include itemized accounts showing the nature and amount of any expenditures entering into the computation of the fair market value, as defined in these rules.

(2) If additions to or deductions from wages paid so affect the total cash wages due in any workweek (even though the employee actually is paid on other than a workweek basis) as to result in the employee receiving less in cash than the applicable minimum hourly wage, or if the employee works in excess of the applicable maximum hours standard and any addition to the wages paid are a part of wages, or any deductions made are claimed as allowable deductions, the employer must maintain records showing on a workweek basis those additions to or deductions from wages.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.045
BLI 1-2002, f. & cert. ef. 1-9-02
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0083 Records Availability

(1) All records required to be preserved and maintained by these rules shall be preserved and maintained for a period of at least two years.

(2) All employers shall keep such records in a safe and accessible place.

(3) All records required to be preserved and maintained by these rules shall be made available for inspections and transcription by the Commissioner or duly authorized representative of the Commissioner.

(4) Pursuant to ORS 652.750, an employer must keep an employee’s time records for not less than two years from the last date of entry and an employee’s payroll records for not less than three years from the last date of entry.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.045
BLI 6-2016, f. 8-29-16, cert. ef. 1-1-17
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0085 Posting Requirements

Every employer employing any employees subject to the minimum wage provisions shall post and keep posted a notice explaining ORS 653.010 to 653.261, as prescribed by the Commissioner, in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy. Any employer of employees to whom OAR 839-020-0030 does not apply because of a total establishment exemption may alter or modify the poster with a legible notation to show that the overtime provisions do not apply.

EXAMPLE: “Overtime Provisions not Applicable to Taxicab Drivers (ORS 653.020(6)).”

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.050
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0087 Earned Income Tax Credit Notice to Employees

(1) As required by ORS 652.755, every employer must provide notice to each employee about the availability of the state and federal earned income tax credits.

(2) The notice must:

(a) Be in English and in the language the employer typically uses to communicate with the employee;

(b) Be provided contemporaneously with the employee’s federal form W-2 by regular or electronic mail, by hand-delivery, or in the same electronic manner that the employer provides the employee’s federal form W-2; and

(c) Provide website addresses for the Internal Revenue Service and the Department of Revenue where the employee can find information about the state and federal earned income tax credits.

(3) The bureau shall include notice to employees about the state and federal earned income tax credits on the minimum wage poster.

History

Statutory/Other Authority: OL Ch. 333 (2017) & ORS 651
Statutes/Other Implemented: OL Ch. 333 (2017) & ORS 652.755
BLI 2-2018, adopt filed 02/13/2018, effective 02/13/2018

Or. Admin. R. 839-020-0115 Relationship of State and Federal Law

(1) The Bureau of Labor and Industries has been informed and has reason to believe that there exists confusion and uncertainty on the part of employers concerning the inter-relationship of the Federal Fair Labor Standards Act and the regulations adopted pursuant thereto and the State Minimum Wage Law and the administrative rules adopted thereunder.

(2) The purpose of this rule, therefore, is to inform employers of the proper application of the law and to direct them to authoritative sources in cases of doubt.

(3) Employers who are required to comply with the state and federal laws, regulations and rules referred to in section (1) of this rule are required to comply with all standards set by those laws, regulations and rules. When one set of standards differs from the other, the standards most advantageous to employees must be met. For example, when the state minimum wage requires a higher hourly rate to be paid than the federal minimum wage rate, the state rate must be paid. By paying the higher rate, the employer complies with both standards. Another example is when the employer may qualify for an exemption under the state law but not the federal law. In this case, the employer is required to comply with the federal law.

(4) Employers may contact the Employer Assistance Unit of the Bureau of Labor and Industries, for more information on specific fact situations.

(5) The purpose of this rule is stated in section (2) of this rule. The rule should not be interpreted to mean anything other than this stated purpose.

History

Statutory/Other Authority: ORS 651.060 & ORS 653.261
Statutes/Other Implemented: ORS 653.261
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90

Or. Admin. R. 839-020-0125 Overtime Exemptions Pertaining to Employers Regulated Under the Federal Fair Labor Standards Act

(1) This rule applies to employers and employees subject to OAR 839-020-0030, Overtime Generally, by virtue of the repeal of ORS 653.020(7) by Section 2, Chapter 446, 1989 Oregon Laws.

(2) No employer shall be deemed to have violated OAR 839-020-0030 under the following circumstances:

(a) By employing any employee for a workweek in excess of that specified in OAR 839-020-0030 without paying the compensation for overtime employment prescribed therein; provided that, such employee received compensation for employment in excess of 12 hours in any workday, or for employment in excess of 56 hours in any workweek, as the case may be, at a rate not less than one and one-half times the regular rate at which the employee is employed; and, provided further that such employee is so employed as follows:

(A) In pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board, which provides that no employee shall be employed more than 1,040 hours during any period of 26 consecutive weeks; or

(B) In pursuance of an agreement, made as a result of collective bargaining by representatives of employees certified as bona fide by the National Labor Relations Board which provides that during a specified period of 52 consecutive weeks the employees shall be employed not more than 2,240 hours and shall be guaranteed not less than 1,840 hours (or not less than 46 weeks at the normal number of hours worked per week, but not less than 30 hours per week) and not more than 2,080 hours of employment for which the employee shall receive compensation for all hours guaranteed or worked at rates not less than those applicable under the agreement to the work performed and for all hours in excess of the guaranty which are also in excess of the maximum workweek applicable to such employee under OAR 839-020-0030 or 2,080 hours in such period at rates not less than one and one-half times the regular rate at which the employee is employed. (Reference: Sec. 7(b)(1) and Sec. 7(b)(2), FLSA)

(b) By an independently owned and controlled local enterprise (including an enterprise with more than one bulk storage establishment) engaged in the wholesale or bulk distribution of petroleum products, if:

(A) The annual gross volume of sales of such enterprise is less than $1,000,000 exclusive of excise taxes; and

(B) More than 75 per centum of such enterprise's annual dollar volume of sales is made within the state in which such enterprise is located; and

(C) Not more than 25 per centum of the annual dollar volume of sales of such enterprise is to customers who are engaged in the bulk distribution of such products for resale; and

(D) Such employee receives compensation for employment in excess of forty hours in any workweek at a rate not less than one and one-half times the minimum wage rate applicable to the employee under ORS 653.025. (Reference: Sec. 7(b)(3), FLSA)

(c) By employing any employee for a workweek in excess of the maximum workweek applicable to such employee under OAR 839-020-0030 if such employee is employed pursuant to a bona fide individual contract, or pursuant to an agreement made as a result of collective bargaining by representatives of employees, if the duties of such employee necessitate irregular hours of work, and the contract or agreement specifies a regular rate of pay of not less than the minimum hourly rate provided in ORS 653.025 and compensation at not less than 1-1/2 times such rate for all hours worked in excess of such maximum workweek, and a weekly guarantee of pay for not more than 60 hours based on the rates so specified. (Reference: Sec. 7(f), FLSA);

(d) By employing any employee of a retail or service establishment for a workweek in excess of the applicable workweek specified in OAR 839-020-0030, if the regular rate of pay of such employee is in excess of one and one-half times the minimum hourly rate applicable under ORS 653.025 and if more than half of the employee's compensation for a representative period (not less than one month) represents commissions on goods or services. In determining the proportion of compensation representing commission, all earnings resulting from the application of a bona fide commission rate shall be deemed commissions on goods or services without regard to whether the computed commissions exceed the draw of guarantee. (Reference: Sec. 7(i), FLSA);

(e) When an employer engaged in the operation of a hospital or an establishment which is an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises enters into an agreement or understanding arrived at between the employer and employee before performance of the work, that provides for a work period of 14 consecutive days in lieu of the workweek of seven consecutive days for purposes of overtime computation and provides further that for the employee's employment in excess of eight hours in any workday and in excess of 80 hours in such 14-day period, the employee receives compensation at a rate not less than one and one-half times the regular rate at which the employee is employed. (Reference: Sec. 7(j), FLSA);

(f) By employing an employee of a not for profit amusement or recreational establishment in excess of the applicable work week specified in OAR 839-020-0030 if the establishment does not operate for more than seven months in any calendar year, or if, the establishment's average receipts for any six months of such year were not more than 33-1/3 per centum of its average receipts for the other six months of such year. (Reference: Section 13(a)(3), FLSA);

(g) By employing an employee in excess of the applicable workweek specified in OAR 839-020-0030 when the employee is employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacean, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee. (Reference: Sec. 13(a)(5), FLSA)

(h) By employing an employee who is compensated at a rate of not less than the equivalent of $27.63 per hour for each hour worked and who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty consists of the following:

(A) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;

(B) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

(C) The design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or

(D) A combination of duties described in paragraphs (A), (B), and (C) of this paragraph the performance of which requires the same level of skills. (Reference: Sec. 13 (a) (17), FLSA)

(3) The provisions of OAR 839-020-0030 do not apply when the provisions of Section 13(b), of the Fair Labor Standards Act apply to employees as follows:

(a) Any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of Section 204 of the Motor Carrier Act, 1935; or

(b) Any employee of an employer engaged in the operation of a common carrier by rail and subject to the provisions of Part I of the Interstate Commerce Act; or

(d) Any individual employed as an outside buyer of poultry, eggs, cream, or milk, in their raw or natural state; or

(e) Any employee employed as a seaman; or

(f) Any employee employed as an announcer, news editor, or chief engineer by a radio or television station the major studio of which is located in a city or town of 100,000 population or less, according to the latest available decennial census figures as compiled by the Bureau of the Census, except where such city or town is part of a standard metropolitan statistical area, as defined and designated by the Bureau of the Budget, which has a total population in excess of 100,000, or is located in a city of 25,000 population or less, which is part of such an area but is at least 40 airline miles from the principal city in such area; or

(g) Any sales person, parts person or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if the employee is employed by a non-manufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers; or

(h) Any sales person primarily engaged in selling trailers, boats, or aircraft if the salesperson is employed by a non-manufacturing establishment primarily engaged in the business of selling trailers, boats or aircraft to ultimate purchasers; or

(i) Any employee employed as a driver or driver's helper making local deliveries, who is compensated for such employment on the basis of trip rates, or other delivery payment plan, if the Commissioner shall find that such plan has the general purpose and effect of reducing hours worked by such employees to, or below, the maximum workweek applicable to them under OAR 839-020-0030; or

(j) Any employee employed in connection with the operation or maintenance of ditches, canals, reservoirs, or waterways, not owned or operated for profit, or operated on a sharecrop basis, and which are used exclusively for supply and storing of water for agricultural purposes; or

(k) Any employee with respect to the employee's employment in agriculture by a farmer, notwithstanding other employment of such employee in connection with livestock auction operations in which such farmer is engaged as an adjunct to the raising of livestock, either on the farmer's own account or in conjunction with other farmers, if such employee is primarily employed during the employee's workweek in agriculture by such farmer, and if such employee is paid for the operations at a wage rate not less than that prescribed by ORS 653.025 and in complaince with OL Chapter 115, 2022; or

(l) Any employee employed within the area of production (as defined by the Commissioner) by an establishment commonly recognized as a country elevator, including such an establishment which sells products and services used in the operation of a farm, if no more than five employees are employed in the establishment in such operation; or

(m) Any employee engaged in the transportation and preparation for transportation of fruits and vegetables, whether or not performed by the farmer, from the farm to a place of first processing or first marketing within the State of Oregon, or any employee engaged in transportation, whether or not performed by the farmer, between the farm and any point within the State of Oregon of persons employed or to be employed in the harvesting of fruits or vegetables; or

(n) Any employee employed by an establishment which is a motion picture theater; or

(o) Any employee employed in planting or tending trees, cruising, surveying, or felling timber, or in preparing or transporting logs or other forestry products to the mill, processing plant, railroad, or other transportation terminal, if the number of employees employed by the employee's employer in such forestry or lumbering operations does not exceed eight; or

(p) Any employee of an amusement or recreational establishment located in a national park or national forest or on land in the National Wildlife Refuge System if such employee is an employee of a private entity engaged in providing services or facilities in a national park or national forest, or on land in the National Wildlife Refuge System, under a contract with the Secretary of the Interior or the Secretary of Agriculture, and receives compensation for employment in excess of 56 hours in any workweek at a rate not less than one and one-half times the regular rate at which the employee is employed. (Reference: Sec. 13(b), (1), (2), (3), (5), (6), (9), (10), (11), (12), (13), (14), (16), (21), (27), (28), and (29), FLSA)

(4) The provisions of OAR 839-020-0030 shall not apply with respect to any employee engaged in the delivery of newspapers to the consumer or to any homeworker engaged in the making of wreaths composed principally of natural holly, pine, cedar or other evergreens (including the harvesting of the evergreens or other forest products used in making such wreaths). (Reference: Sec. 13(d), FLSA)

History

Statutory/Other Authority: ORS 653.040, ORS 653.261 & OL Chapter 115, 2022
Statutes/Other Implemented: OL Chapter 115, 2022
BLI 9-2022, amend filed 08/31/2022, effective 09/01/2022
BLI 19-2015, f. 12-22-15, cert. ef. 1-1-16
BLI 15-2010, f. 5-25-10, cert. ef. 6-1-10
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04
BL 9-1996, f. & cert. ef. 10-8-96
BL 14-1992, f. & cert. ef. 12-14-92
BL 6-1992(Temp), f. & cert. ef. 6-5-92
BL 5-1992, f. 4-24-92, cert. ef. 4-29-92
BL 10-1990, f. & cert. ef. 7-26-90
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90
BL 10-1989(Temp), f. 12-4-89, cert. ef. 9-1-89
BL 5-1989(Temp), f. 8-18-89, cert. ef. 9-1-89

Or. Admin. R. 839-020-0130 Overtime Exemption for Public Employees

(1) Pursuant to the provisions of ORS 653.261(3), OAR 839-020-0030 does not apply to individuals employed by the State of Oregon or any political subdivision or quasi-municipal corporation thereof under the following circumstances:

(a) When the provisions of any law prescribe rules pertaining to overtime pay; or

(b) When the provisions of a collective bargaining agreement prescribes rules pertaining to overtime pay.

(2) Individuals employed by a public employer are subject to the overtime pay provisions of ORS 653.268 unless otherwise exempt under ORS 653.269. The State of Oregon or any political subdivision or quasi-municipal corporation thereof is a public employer and the overtime provisions of OAR 839-020-0030 do not apply to its employees.

(3) As used in this rule, “public employer” means the State of Oregon, including the following political subdivisions: cities, counties, community colleges, school districts, special districts and public and quasi-public corporations.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.261
BL 9-1996, f. & cert. ef. 10-8-96
BL 1-1990, f. 2-27-90, cert. ef. 2-28-90
BL 10-1989(Temp), f. 12-4-89, cert. ef. 9-1-89
BL 5-1989(Temp), f. 8-18-89, cert. ef. 9-1-89

Or. Admin. R. 839-020-0150 Exemptions from Minimum Wage and Overtime

(1) An individual employed as a resident manager of an adult foster home is not subject to the minimum wage and overtime provisions of ORS 653.010 to 653.261 so long as the resident manager is domiciled at the adult foster home and is directly responsible for the daily care of the residents residing in the home; and

(a) The resident manager is employed to work in a licensed adult foster home as defined in ORS 443.705(4) pursuant to the Adult Foster Homes Licensing Law (ORS 443.705 to 443.825); or

(b) The resident manager is employed to work in an adult foster home which is exempt from the license, inspection and fee provisions of the Adult Foster Homes Licensing Law (ORS 443.705 to 443.825) pursuant to ORS 443.780.

(2) The provisions of ORS 653.010 to 653.261 and these rules pertaining to the payment of minimum wage and overtime pay do not apply to inmates of the Oregon Department of Corrections assigned to a work release program or otherwise working in gainful private employment pursuant to ORS 144.480, relating to prison inmate labor.

(3) The provisions of ORS 653.010 to 653.261 and these rules do not apply to persons serving as a referee or assistant referee in a youth or adult recreational soccer match. Pursuant to ORS 670.610, these referees and assistant referees are independent contractors.

(4) The provisions of OAR 839-020-0050 to 839-020-0065 relating to working conditions do not apply to employees employed by public employers provided that the conditions of ORS 653.261(3) are met.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.020
BLI 8-2003, f. 12-31-03, cert. ef. 2-1-04
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1996, f. & cert. ef. 10-8-96

Or. Admin. R. 839-020-0200 Authority of Labor Commissioner to Define Terms Relating to Persons Employed by a Public Agency in Fire Protection and Law Enforcement Activities

ORS 653.269(3) requires the Labor Commissioner to define certain terms relating to persons employed by a public employer in fire protection and law enforcement activities (including security personnel in corrections institutions), who are exempt from the overtime provisions of ORS 653.268.

History

Statutory/Other Authority: ORS 279.342(3)
Statutes/Other Implemented: ORS 279.342
BLI 1-2002, f. & cert. ef. 1-9-02
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0210 Exemptions from Overtime Relating to Persons Employed by a Public Agency in Fire Protection and Law Enforcement Activities — Generally

(1) OAR 839-020-0200 to 839-020-0270 are adopted pursuant to ORS 653.269(3). The rules define certain public employees and activities exempt from the overtime provisions of 653.268.

(2) Employees of a public employer, as defined in ORS 243.650, are exempt from the overtime pay requirements of ORS 653.268 when they are employed in:

(a) Fire protection activities; or

(b) Law enforcement activities, including security personnel in correctional institutions.

(3) The application of OAR 839-020-0200 to 839-020-0270 is limited to public agencies, and does not apply to any private organization engaged in furnishing fire protection or law enforcement services, even if the services are provided under contract with a public agency.

History

Statutory/Other Authority: ORS 279.342(3)
Statutes/Other Implemented: ORS 279.342
BLI 1-2002, f. & cert. ef. 1-9-02
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0220 Definitions for Regulations Pertaining to Persons Employed by a Public Agency in Fire Protection and Law Enforcement Activities

As used in ORS 653.269 and OAR 839-020-0200 to 839-020-0270, unless the context requires otherwise:

(1) “Employees employed in fire protection activities” include:

(a) A “firefighter” as that term is defined in ORS 652.050; and

(b) Any employee:

(A) Who is employed by an organized fire department or fire protection district;

(B) Who has been trained to the extent required by state statute or local ordinance;

(C) Who has the legal authority and responsibility to engage in the prevention, control or extinguishment of a fire of any type; and

(D) Who performs activities which are required for, and directly concerned with, the prevention, control or extinguishment of fires, including such incidental non-firefighting functions as housekeeping, equipment maintenance, lecturing, attending community fire drills, and inspecting homes and schools for fire hazards.

(c) Employees as defined in paragraphs (a) and (b) of this subsection, regardless of their status as “trainee,” “probationary,” or “permanent,” or of their particular specialty or job title (e.g., firefighter, engineer, hose or ladder operator, fire specialist, fire inspector, lieutenant, captain, inspector, fire marshal, battalion chief, deputy chief, or chief), and regardless of their assignment to support activities of the type described in section (2) of this rule, whether or not such assignment is for training or familiarization purposes, or for reasons of illness, injury or infirmity;

(d) Rescue and ambulance service personnel if such personnel form an integral part of the public agency’s fire protection activities (see OAR 839-020-0260);

(e) Employees who work for forest conservation agencies or other public agencies charged with forest fire fighting responsibilities and who direct or engage in:

(A) Fire spotting or lookout activities; or

(B) Fighting fires on the fire line or from aircraft; or

(f) Employees as defined in paragraph (e) of this subsection, regardless of their status as full time or part time agency employees or as temporary or casual workers employed for a particular fire or for periods of high fire danger, including those who have had no prior training;

(g) Any employee who actually engages in fire protection activities as defined in this section and in the simultaneous performance of such related functions as housekeeping, equipment maintenance, tower repairs and/or the construction of fire roads.

(2) “Employees employed in fire protection activities” does not include:

(a) “Civilian” employees of a fire department, fire district, or forestry service who engage in such support activities as those performed by dispatchers, alarm operators, apparatus and equipment repair and maintenance workers, camp cooks, clerks and stenographers;

(b) Maintenance and office personnel who do not fight fires on a regular basis, although such employees may be included during emergency situations when they are called upon to spend substantially all (i.e., 80 percent or more) of their time during the applicable work period in one or more of the activities described in paragraph (e) of this section.

(3) “Employees employed in law enforcement activities” include:

(a) Any employee who is a uniformed or plainclothed member of a body of officers and subordinates who are empowered by state statute or local ordinance to enforce laws designed to maintain public peace and order and to protect both life and property from accidental or willful injury, and to prevent and detect crimes and:

(A) Who has the power to arrest; and

(B) Who is presently undergoing or has undergone or will undergo on-the-job training and/or a course of instruction and study which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigation and law enforcement techniques, community relations, medical aid and ethics.

(b) Employees as defined in paragraph (a) of this subsection, regardless of their rank, or of their status as “trainee,” “probationary,” or “permanent,” and regardless of their assignment to duties incidental to the performance of their law enforcement activities such as equipment maintenance or lecturing, or to support activities of the type described in section (8) of this rule, whether or not such assignment is for training or familiarization purposes, or for reasons of illness, injury or infirmity;

(c) Rescue and ambulance service personnel if such personnel form an integral part of the public agency’s law enforcement activities (see OAR 839-020-0260).

(4) “Employees employed in law enforcement activities” typically include city police; district or local police, sheriffs, under sheriffs or deputy sheriffs who are regularly employed and paid as such; court marshals or deputy marshals; constables and deputy constables who are regularly employed and paid as such; border control agents; state troopers and highway patrol officers. Other agency employees not specifically mentioned may, depending upon the particular facts and pertinent statutory provisions in that jurisdiction meet the tests described in section (3) of this rule. If so, for purposes of ORS 653.269(3), they will also qualify as law enforcement officers. Such employees might include, for example, fish and game wardens or criminal investigative agents assigned to the office of a district attorney, an attorney general, a solicitor general or any other law enforcement agency concerned with keeping public peace and order and protecting life and property.

(5) Employees who do not meet each of the three tests described in section (3) of this rule are not engaged in “law enforcement activities” as that term is used in ORS 653.269(3). Employees who normally would not meet each of these tests include:

(a) Building inspectors (other than those defined in OAR 839-020-0240);

(b) Health inspectors;

(d) Sanitarians;

(e) Civilian traffic employees who direct vehicular and pedestrian traffic at specified intersections or other control points;

(f) Civilian parking checkers who patrol assigned areas for the purpose of discovering parking violations and issuing appropriate warnings or appearance notices;

(g) Wage and hour compliance officers;

(h) Equal employment opportunity compliance officers;

(i) Tax compliance officers;

(j) Coal mining inspectors; and

(k) Building guards whose primary duty is to protect the lives and property of persons within the limited area of the building.

(6) “Correctional institution” means any government facility maintained as part of a penal system for the incarceration or detention of persons suspected or convicted of having breached the peace or committed some other crime. Typically, such facilities include penitentiaries, prisons, prison farms, county, city and village jails, precinct house lockups and reformatories.

(7) “Security personnel in correctional institutions” include those who have responsibility for controlling and maintaining custody of inmates and of safeguarding them from other inmates or for supervising such functions, regardless of whether their duties are performed inside the correctional institution or outside the institution (as in the case of road gangs). These employees are considered to be engaged in law enforcement activities regardless of their rank (e.g., warden, assistant warden or guard) or of their status as “trainee,” “probationary,” or “permanent,” and regardless of their assignment to duties incidental to the performance of their law enforcement activities, or to support activities of the type described in section (5) of this rule, whether or not such assignment is for training or familiarization purposes or for reasons of illness, injury or infirmity.

(8) “Employees employed in law enforcement activities” does not include:

(a) “Civilian” employees of law enforcement agencies or correctional institutions who engage in such support activities as those performed by dispatcher, radio operators, apparatus and equipment maintenance and repair workers, janitors, clerks and stenographers;

(b) Employees in correctional institutions who engage in building repair and maintenance, culinary services, teaching, or in psychological, medical and paramedical services, even though such employees may, when assigned to correctional institutions, come into regular contact with the inmates in the performance of their duties.

History

Statutory/Other Authority: ORS 279.342(3)
Statutes/Other Implemented: ORS 279.342
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0230 Limitation on Nonexempt Work

(1) Employees engaged in fire protection or law enforcement activities as defined in OAR 839-020-0220 may also engage in some nonexempt work which is not performed as an incident to or in conjunction with their fire protection or law enforcement activities. For example, firefighters who work for forest conservation agencies may, during slack times, plant trees and perform other conservation activities unrelated to their firefighting duties. The performance of such nonexempt work will not defeat the exemption in ORS 653.269(3) unless it exceeds 20 percent of the total hours worked by that employee during the workweek or applicable work period. A person who spends more than 20 percent of the person’s working time in nonexempt activities is not considered to be an employee engaged in fire protection or law enforcement activities for purposes of OAR 839-020-0200 to 839-020-0270.

(2) Public agency fire protection and law enforcement personnel may, at their own option, undertake employment for the same employer on an occasional or sporadic and part-time basis in a different capacity from their regular employment. The performance of such work does not affect the application of the exemption in ORS 653.269(3) with respect to the regular employment. In addition, the hours of work in the different capacity need not be counted as hours worked for overtime purposes on the regular job, nor are such hours counted in determining the 20 percent limitation for nonexempt work discussed in subsection (1) of this section.

History

Statutory/Other Authority: ORS 279.342(3)
Statutes/Other Implemented: ORS 279.342
BLI 1-2002, f. & cert. ef. 1-9-02
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0240 Public Agency Employees Engaged in Both Fire Protection and Law Enforcement Activities

Some public agencies have employees (often called “public safety officers") who engage in both fire protection and law enforcement activities, depending on the agency needs at the time. This dual assignment would not defeat the exemption in ORS 653.269(3), provided that each of the activities performed meets the appropriate tests set forth in OAR 839-020-0220. This is so regardless of how the employee’s time is divided between the two activities. However, all time spent in connection with fire protection or law enforcement functions, or with neither, must be combined for purposes of the 20 percent limitation on nonexempt work as provided in OAR 839-020-0230.

History

Statutory/Other Authority: ORS 279.342(3)
Statutes/Other Implemented: ORS 279.342
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0250 Effect of Training Time

The attendance at a bona fide fire or police academy or other training facility, when required by the employing agency, constitutes engagement in activities under ORS 653.269(3) only when the employee meets all the applicable tests described in OAR 839-020-0220 (except for the power of arrest for law enforcement personnel), as the case may be. If the applicable tests are met, then basic training or advanced training is considered incidental to, and part of, the employee’s fire protection or law enforcement activities.

History

Statutory/Other Authority: ORS 279.342(3)
Statutes/Other Implemented: ORS 279.342
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0260 Application of ORS 653.269(3) to Ambulance and Rescue Service Employees

(1) Ambulance and rescue service employees of a public agency other than a fire protection or law enforcement agency may be treated as employees engaged in fire protection or law enforcement activities of the type contemplated by ORS 653.269(3) if their services are substantially related to firefighting or law enforcement activities in that:

(a) The ambulance and rescue service employees have received training in the rescue of fire, crime, and accident victims or firefighters or law enforcement personnel injured in the performance of their respective duties; and

(b) The ambulance and rescue service employees are regularly dispatched to fires, crime scenes, riots, natural disasters and accidents.

(2) Where employees perform both fire protection and law enforcement activities, the applicable standard is the one which applies to the activity in which the employee spends the majority of work time during the work period.

(3) Ambulance and rescue service employees are not exempt under ORS 653.269(3) when they are employees of public agencies engaged in the operation of a hospital or an institution primarily engaged in the care of persons who are sick or aged or have mental illness or mental retardation and who reside on the premises of such institutions.

(4) Ambulance and rescue service employees of private organizations are not exempt from the provisions of ORS 653.269(3) even if their activities are substantially related to the fire protection and law enforcement activities performed by a public agency or their employer is under contract with a public agency to provide such services.

History

Statutory/Other Authority: ORS 279.342(3)
Statutes/Other Implemented: ORS 279.342
BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 1-2002, f. & cert. ef. 1-9-02
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0270 Other Overtime Exemptions May Apply to Public Employees Engaged in Fire Protection and Law Enforcement Activities

Although ORS 653.269(3) provides special exemptions for employees of public agencies engaged in fire protection and law enforcement activities, such workers may also be subject to other exemptions in 653.269, and public agencies may apply such other exemptions if applicable. For example, a high-ranking police official engaged in law enforcement activities who is exempt from the provisions of 653.268 as an employee employed in fire protection activities pursuant to the provisions of 653.269(3) and OAR 839-020-0320, may also be exempt from ORS 653.268 as an “executive” employee by virtue of the exemption for any employee employed as an executive, administrative, supervisory, or professional employee, (as those terms are defined in OAR 839-020-0320) pursuant to the provisions of ORS 653.269(5)(a).

History

Statutory/Other Authority: ORS 279.342(3)
Statutes/Other Implemented: ORS 279.342
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0300 Authority of Labor Commissioner to Define Terms Relating to Executive, Administrative, Supervisory and Professional Employees of a Public Agency

ORS 653.269(5)(a) requires the Labor Commissioner to define certain terms relating to executive, administrative, supervisory or professional employees of a public agency who are exempt from the overtime provisions of ORS 653.268 because of the nature of their employment.

History

Statutory/Other Authority: ORS 279.342(5)(a)
Statutes/Other Implemented: ORS 279.342
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0310 Application of OAR 839-020-0300 to 839-020-0350

(1) OAR 839-020-0300 to 839-020-0350 are adopted pursuant to ORS 653.269(5)(a). The rules define the nature of executive, administrative, supervisory and professional employment for purposes of the overtime pay exemption under ORS 653.268.

(2) The application of OAR 839-020-0300 to 839-020-0350 is limited to public agencies, and does not apply to the employees of any private organization.

History

Statutory/Other Authority: ORS 279.342(5)(a)
Statutes/Other Implemented: ORS 279.342
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0320 Definitions for Exemptions Relating to Executive, Administrative, Supervisory and Professional Employees of a Public Agency

As used in ORS 653.268 to 653.269, unless the context requires otherwise:

(1) Employees exempted from overtime because of the executive nature of their employment means employees:

(a) Whose primary duty consists of the management of the public agency in which they are employed or of a customarily recognized department or subdivision thereof; and

(b) Who customarily and regularly direct the work of two or more other employees therein; and

(c) Who have the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and

(d) Who customarily and regularly exercise discretionary powers; and

(e) Who do not devote more than 20 percent, or, in the case of an employee of a retail or service establishment, who does not devote as much as 40 percent of the employee’s hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in subsections (a) through (d) of this section: Provided, that this subsection will not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment; and

(f) Who are compensated for their services on a salary basis at a rate of not less than $155 per week, exclusive of board, lodging, or other facilities: Provided, that an employee who is compensated on a salary basis at a rate of not less than $250 per week, exclusive of board, lodging, or other facilities, and whose primary duty consists of the management of the agency in which the employee is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction of the work of two or more other employees therein, will be deemed to meet all the requirements of this section.

(2) Employees exempted from overtime because of the administrative nature of their employment means employees:

(a) Whose primary duty consists of either:

(A) The performance of office or non-manual work directly related to management policies or general business operations of their employer or their employer's customers; or

(b) Who customarily and regularly exercise discretion and independent judgment; and

(c) Who regularly and directly assist an employee employed in an executive or administrative capacity (as such terms are defined in this rule); or

(A) Who perform under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or

(B) Who execute under only general supervision special assignments and tasks; and

(d) Who do not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent of the employee’s hours worked in the workweek to activities which are not directly and closely related to the performance of the work described in subsections (a) through (c) of this section; and

(e)(A) Who are compensated for their services on a salary or fee basis at a rate of not less than $155 per week, exclusive of board, lodging, or other facilities; or

(B) Who, in the case of academic administrative personnel, are compensated for services as required by paragraph (e)(A) of this subsection, or on a salary basis which is at least equal to the entrance salary for teachers in the school system, educational establishment, or institution by which employed: Provided, that an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week, exclusive of board, lodging, or other facilities, and whose primary duty consists of the performance of work described in section (a) of this subsection, which includes work requiring the exercise of discretion and independent judgment, will be deemed to meet all the requirements of this section.

(3) Employees exempted from overtime because of the supervisory nature of their employment means employees:

(a) Whose primary duty consists of the management of the enterprise in which they are employed or of a customarily recognized department or subdivision thereof; and

(b) Who customarily and regularly direct the work of two or more other employees therein; and

(d) Who customarily and regularly exercise discretionary powers; and

(e) Who do not devote more than 20 percent, or, in the case of an employee of a retail or service establishment who does not devote as much as 40 percent of the employee’s hours of work in the workweek to activities which are not directly and closely related to the performance of the work described in sections (a) through (d) of this section: Provided, that this subsection will not apply in the case of an employee who is in sole charge of an independent establishment or a physically separated branch establishment;

(4) Employees exempted from overtime because of the professional nature of their employment means employees:

(a) Whose primary duty consists of the performance of:

(C) Teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who are employed and engaged in this activity as teachers in the school system or educational establishment or institution by which they are employed; or

(D) Work that requires theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering, and who are employed and engaged in these activities as computer systems analysts, computer programmers, software engineers, or other similarly skilled workers in the computer software field, as provided in OAR 839-020-0350; and

(b) Whose work requires the consistent exercise of discretion and judgment in its performance; and

(d) Who do not devote more than 20 percent of their hours worked in the workweek to activities which are not an essential part of and necessarily incident to the work described in subsections (a) through (c) of this section; and

(e) Who are compensated for services on a salary or fee basis at a rate of not less than $170 per week, exclusive of board, lodging, or other facilities: Provided, that this subsection will not apply in the case of an employee who is the holder of a valid license or certificate permitting the practice of law or medicine or any of their branches and who is actually engaged in the practice thereof, nor in the case of an employee who is the holder of the requisite academic degree for the general practice of medicine and is engaged in an internship or resident program pursuant to the practice of medicine or any of its branches, nor in the case of an employee employed and engaged as a teacher as provided in subsection (a)(C) of this section: Provided further, that an employee who is compensated on a salary or fee basis at a rate of not less than $250 per week, exclusive of board, lodging, or other facilities, and whose primary duty consists of the performance either of work described in subsection (a), (A), or (C) or (D) of this section, which includes work requiring the consistent exercise of discretion and judgment, or of work requiring invention, imagination, or talent in a recognized field of artistic endeavor, shall be deemed to meet all of the requirements of this section: Provided further, that the salary or fee requirements of this paragraph will not apply to an employee engaged in computer-related work within the scope of paragraph (a)(D) of this section and who is compensated on an hourly basis at a rate in excess of $27.63 per hour.

History

Statutory/Other Authority: ORS 279.342(5)(a)
Statutes/Other Implemented: ORS 279.342
BLI 1-2002, f. & cert. ef. 1-9-02
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0330 Exception to Salary or Fee Basis

(1) An employee who otherwise meets the requirements of OAR 839-020-0310 must not be disqualified from exemption under ORS 653.269(5)(a) on the basis that such employee is paid according to a pay system established by statute, ordinance, or regulation, or by a policy or practice established pursuant to principles of public accountability, under which the employee accrues personal leave and sick leave and which requires the public agency employee's pay to be reduced or such employee to be placed on leave without pay for absences for personal reasons or because of illness or injury of less than one work-day when accrued leave is not used by an employee because:

(a) Permission for its use has not been sought or has been sought and denied;

(b) Accrued leave has been exhausted; or

(2) Deductions from the pay of an employee of a public agency for absences due to a budget-required furlough must not disqualify the employee from being paid "on a salary basis" except in the workweek in which the furlough occurs and for which the employee's pay is accordingly reduced.

History

Statutory/Other Authority: ORS 279.342(5)(a)
Statutes/Other Implemented: ORS 279.342
BLI 1-2002, f. & cert. ef. 1-9-02
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0350 Computer Professionals

Employees exempt from overtime because of the professional nature of their employment includes employees who are computer systems analysts, computer programmers, software engineers, or other similarly skilled workers, whose primary duties consist of the following:

(1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system specifications;

(2) The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

(3) The design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or

(4) A combination of duties described in subsections (1), (2) and (3) of this section, the performance of which requires the same level of skills.

History

Statutory/Other Authority: ORS 279.342(5)(a)
Statutes/Other Implemented: ORS 279.342
BLI 1-2002, f. & cert. ef. 1-9-02
BL 8-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-0400 Definitions for Maximum Hours of Work in Canneries, Driers and Packing Plants

As used in OL Ch. 685 (2017), ORS 653.265 and OAR 839-020-0400 to 839-020-0420, unless the context requires otherwise:

(1) “Administrative duties” means office or non-manual work directly related to the employer’s management policies or general business operations.

(2) “Cannery” means an establishment for the canning or preservation of food products to prevent spoilage.

(3) “Day” means any time period of 24 consecutive hours as determined by the employer.

(4) “Drier” means an establishment in which food products are preserved through the removal of moisture.

(5) "Employed in" refers to employment of employees in the actual place specified in ORS 653.265. Employees who are not performing duties in the named places are not "employed in" those places.

(6) "Employee" means any individual employed by an employer.

(7) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee.

(8) “Engaged in the direct processing of goods” means to perform duties directly related to the canning, drying, packing, or preservation of food products.

(9) “Packing plant” means an establishment for the processing and packing of food products, including the packing of meat.

(10) “Perishable product” means any product that may spoil, deteriorate or undergo other material changes that render it unsuitable for the use for which it was produced. “Perishable product” includes agricultural crops, meat and fish.

(11) “Undue hardship period” means the period of time during which a perishable product must be processed after harvesting, slaughter or catch.

(12) “Workweek” means a fixed period of time established by an employer that reflects a regularly recurring period of 168 hours or seven consecutive 24-hour periods. A workweek may begin on any day of the week and any hour of the day and need not coincide with a calendar week. The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade overtime requirements.

History

Statutory/Other Authority: OL 685 (2017), ORS 653 & ORS 651
Statutes/Other Implemented: OL 685 (2017) & ORS 653
BLI 8-2017, adopt filed 12/27/2017, effective 01/01/2018

Or. Admin. R. 839-020-0410 Determination of the Day; Failure to Make Determination

(1) The employer shall establish the beginning time and the ending time of the day to be used by the employer for purposes of complying with ORS 653.265 and these rules.

(2) Once established, the beginning time of the day shall not be changed unless the change is intended to be permanent and is not designed to circumvent the provisions of ORS 653.265.

History

Statutory/Other Authority: OL Ch. 685 (2017) & ORS 651
Statutes/Other Implemented: OL Ch. 685 (2017) & ORS 653
BLI 8-2017, adopt filed 12/27/2017, effective 01/01/2018

Or. Admin. R. 839-020-0415 Failure to Establish a Workweek

If an employer fails to establish the beginning day of the workweek as provided for in ORS 653.265(1)(c), the Bureau shall consider the workweek to begin on the day the individual employee commences work and to end seven (7) consecutive days after the work began, for the period of time in which the employer failed to establish a workweek.

History

Statutory/Other Authority: OL Ch. 685 (2017) & ORS 651
Statutes/Other Implemented: OL Ch. 685 (2017) & ORS 653
BLI 8-2017, adopt filed 12/27/2017, effective 01/01/2018

Or. Admin. R. 839-020-0417 Employee's Written Consent to Work up to 60 Hours in a Workweek

(1) Pursuant to ORS 653.265(2), an employer is prohibited from requiring or permitting an employee to work over 55 hours in one workweek except that the employer may permit an employee to work up to 60 hours in one workweek if the employee requests or consents in writing to work more than 55 hours in one workweek.

(2) Employers must obtain written consent from employees prior to permitting employees to work in excess of 55 hours in one workweek.

(3) The employer must retain and keep available to the commissioner a copy of each employee’s written consent or written request during the period for which the written request or consent is in effect and for no less than one year thereafter.

(4) The commissioner shall create a template for the written consent that employers may, but are not required to, use to document the employee’s written consent and withdrawal of consent.

History

Statutory/Other Authority: OL Ch. 685 (2017) & ORS 651
Statutes/Other Implemented: OL Ch. 685 (2017) & ORS 653
BLI 8-2017, adopt filed 12/27/2017, effective 01/01/2018

Or. Admin. R. 839-020-0420 Undue Hardship Notices and Employee's Written Consent

(1) Pursuant to the provisions of ORS 653.265(5), an employer that processes perishable products may be exempt from the restrictions on maximum workweek hours if an undue hardship exists. To claim such an exemption, an employer must provide notice of the undue hardship period to the Bureau within seven calendar days of the date on which the undue hardship period begins. The notice submitted by the employer to the Bureau must include:

(a) The name and address of the employer;

(b) A description of the reasons for the undue hardship period;

(d) An estimate of the number of employees whose work hours will exceed the maximum workweek hours because of the undue hardship exemption;

(e) The start and end dates of any undue hardship periods previously claimed by the employer in the same calendar year; and

(f) The printed name and signature of the person submitting the notice, with the date of signature.

(2) The employer’s notice of the undue hardship period may be submitted on Form WH-262, which is available to any interested person. An employer may copy this form or use a similar form provided that such form contains all of the elements of Form WH-262.

(3) When claiming an undue hardship exemption, an employer must obtain written consent from each employee whose work hours, pursuant to ORS 653.265(2)(c), will exceed the maximum workweek hours because of the undue hardship exemption. The written consent, which must be completed by the employee prior to performing work during the undue hardship period, must include:

(a) A description of the employer’s reasons for the undue hardship period;

(b) The start and expected end dates of the undue hardship period;

(c) A statement that the employer may require the employee to work up to 84 hours in a workweek for up to four workweeks during the undue hardship period;

(d) A statement that the employer may require the employee to work up to 80 hours in a workweek for the remainder of the undue hardship period;

(f) A statement that the employee has the right to decline to work more than 55 hours per workweek;

(g) The printed name and signature of the employee completing the written consent, with the date of signature; and

(h) Contact information for the Bureau of Labor and Industries.

(4) To provide written consent, an employee may use Form WH-263 or any similar form provided that such form contains all of the elements of Form WH-263. The employee’s written consent must be in the language used by the employer to communicate with the employee.

History

Statutory/Other Authority: ORS 651.060 & ORS 653.265
Statutes/Other Implemented: ORS 653.265
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 8-2017, adopt filed 12/27/2017, effective 01/01/2018

Or. Admin. R. 839-020-1000 Violations Separate and Distinct

Each violation is a separate and distinct offense. In the case of continuing violations, each day’s continuance is a separate and distinct violation.

History

Statutory/Other Authority: ORS 653.040
Statutes/Other Implemented: Ch. 314 & 1997 OL
BL 9-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-1010 Violations for Which a Civil Penalty May Be Assessed

(1) The commissioner may assess a civil penalty for any of the following willful violations:

(a) Failure to pay the applicable minimum wage for all hours worked in violation of ORS 653.025 and OAR 839-020-0010.

(b) Failure to pay overtime for all hours worked over forty (40) in a week in violation of OAR 839-020-0030 or, for domestic workers, failure to pay overtime in violation of ORS 653.547 and OAR 839-020-0030.

(c) Payment to student-learners less than a fixed minimum hourly wage rate which has been approved by the commissioner in violation of ORS 653.030 and 839-020-0015;

(d) Failure to make required payroll and other records in violation of ORS 653.045, OAR 839-020-0050, 839-020-0080, and 839-020-0082;

(e) Failure to keep available required payroll and other records in violation of ORS 653.045, OAR 839-020-0050, 839-020-0080, 839-020-0082, and 839-020-0083;

(f) Failure to supply each of the employer's employees with itemized statements of amounts and purposes of deductions in the manner provided in ORS 652.610 in violation of 653.045, OAR 839-020-0012 and 839-020-0080;

(g) Failure to keep summaries of ORS 653.010 to 653.261 and rules promulgated thereto by the commissioner posted in a conspicuous and accessible place in or about the premises where such employees are employed in violation of ORS 653.050;

(h) Discharging or discriminating in any other manner against any employee in violation of ORS 653.060:

(A) Because the employee has made complaint that the employee has not been paid wages in accordance with ORS 653.010 to 653.261;

(B) Because the employee has caused to be instituted or is about to cause to be instituted any proceedings under or relating to ORS 653.010 to 653.261; or

(i) Failure to provide to each employee appropriate meal periods in violation of OAR 839-020-0050;

(j) Coercing an employee into waiving a meal period in violation of ORS 653.261(5)(b);

(k) Failure to provide to each employee appropriate rest periods in violation of OAR 839-020-0050;

(L) Intentional failure to provide a reasonable rest period to accommodate an employee who needs to express breast milk in violation of ORS 653.077 and OAR 839-020-0051;

(m) Requiring any employee to lift excessive weights in violation of OAR 839-020-0060;

(n) Employing any employee to work under any conditions in violation of OAR 839-020-0065;

(o) Failure to provide a domestic worker who resides in the home of the employer with an uninterrupted rest period of at least eight consecutive hours within each 24-hour period in violation of ORS 653.547 and OAR 839-020-0042(4);

(p) Failure to provide a domestic worker with a rest period of at least 24 consecutive hours in each work week in violation of ORS 653.547 and OAR 839-020-0052(1);

(q) Failure to provide a domestic worker not less than three paid personal days off in violation of ORS 653.547 and OAR 839-020-0052(2);

(r) Failure to pay a domestic worker for personal days off in violation of ORS 653.547 and OAR 839-020-0052(2);

(s) Requiring or permitting an employee subject to ORS 653.265 to work more hours than permitted under ORS 653.265(2)(a), (b) or (c);

(t) Requiring or permitting an employee subject to ORS 653.265 to work more than 55 hours in any one workweek without obtaining the employee’s request or consent in writing, in violation of ORS 653.265 (2)(b) or (5)(b);

(u) Permitting an employee subject to ORS 653.265 to work up to the maximum hours permitted by ORS 653.265(2)(c) when the employer is not eligible for an undue hardship exemption;

(v) Failure to make available to the commissioner, upon request, a copy of an employee’s written request or consent as required by OAR 839-020-0417(3) and OAR 839-020-0420(5); or

(w) Failure to provide notice of the undue hardship period to the commissioner within seven (7) calendar days of the date on which the undue hardship period began.

(2) Except as provided in ORS 653.261(5)(c), ORS 653.265(9)(a), and section (3) of this rule, the civil penalty for any one violation will not exceed $1,000. The actual amount of the civil penalty will depend on all the facts and circumstances referred to in OAR 839-020-1020.

(3) When the commissioner determines that an employer has violated ORS 653.265 by coercing an employee into consenting to work more than 55 hours in one workweek, the civil penalty shall not exceed:

(a) $2,000 for any one violation if the employer coerced an employee to work more than 55 hours per workweek under ORS 653.265(2)(b); or

(b) $3,000 for any one violation if the employer coerced an employee to work more than 55 hours per workweek during a period of undue hardship under ORS 653.265(5)(b).

(4) For the purpose of section (3) this rule, an employer will be considered to have coerced an employee into consenting to work more than 55 hours in one workweek under the following circumstances:

(a) The employer requires an employee to consent in writing to work more than 55 hours per workweek;

(b) The employer requires an employee to consent to work more than 55 hours per workweek as a condition of employment at the time of hire; or

(c) The employer requests or requires any person, including another employee, to require an employee to consent in writing to work more than 55 hours per workweek.

(5) The civil penalties set out in this rule will be in addition to any other penalty assessed or imposed by law or rule.

History

Statutory/Other Authority: ORS 651.060 & ORS 653.040
Statutes/Other Implemented: ORS Chapter 653, ORS 653.547 & ORS 653.265
BLI 17-2023, amend filed 10/05/2023, effective 10/06/2023
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
BLI 19-2015, f. 12-22-15, cert. ef. 1-1-16
BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 15-2002, f. 10-17-02, cert. ef. 10-18-02
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1997, f. & cert. ef. 11-13-97

Or. Admin. R. 839-020-1020 Criteria for Determining a Civil Penalty

(1) The commissioner may consider the following mitigating and aggravating circumstances when determining the amount of any civil penalty to be assessed and cite those the commissioner finds to be appropriate:

(a) The history of the employer in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(d) Whether the employer knew or should have known of the violation;

(e) The opportunity and degree of difficulty to comply;

(f) Whether the employers’ action or inaction has resulted in the loss of a substantive right of an employee.

(2) It shall be the responsibility of the employer to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be assessed.

History

Statutory/Other Authority: ORS 653.040
Statutes/Other Implemented: Ch. 314 & 1997 OL
BL 9-1997, f. & cert. ef. 11-13-97

Division 21 RULES REGULATING THE EMPLOYMENT OF MINORS IN OREGON

Or. Admin. R. 839-021-0006 Definitions for ORS 653.305 to 653.370 and OAR 839-021-0001 to 839-021-0500

As used in ORS 653.305 to 653.370 and in OAR 839-021-0001 to 839-021-0500, unless the context requires otherwise:

(1) "Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, fur-bearing animals, or poultry and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market, or to carriers for transportation to market. "Agricultural employment" is employment in "Agriculture" as herein defined.

(2) "Bureau" means Bureau of Labor and Industries of the State of Oregon.

(3) "Commissioner" means the Commissioner of the Bureau of Labor and Industries or designee.

(4) "Employ" has the meaning given that term in ORS 653.010.

(5) "Employer" has the meaning given that term in ORS 653.010.

(6) "Employment Certificate" means the employment certificate issued to employers for the employment of minors pursuant to ORS 653.307, and the employment permit referred to in ORS chapter 653 and the rules adopted thereunder.

(7) "Harvest Season" means a period of time during which the crop or crops of the agricultural employer for whom a minor is employed are harvested. Work performed during the harvest season includes work in connection with the gathering of the crop but does not include cultivation and tillage of the soil or cultivation and growing of agricultural commodities.

(8) "Minor" means any person under 18 years of age.

(9) "Workday" means any fixed period of 24 consecutive hours.

(10) "Workweek" means any fixed and regularly recurring period of seven consecutive workdays.

History

Statutory/Other Authority: ORS 651.060 & ORS 653.261
Statutes/Other Implemented: ORS 653.370
BLI 18-2024, amend filed 08/02/2024, effective 08/03/2024
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 3-1995, f. 9-8-95, cert. ef. 9-9-95
BL 11-1991, f. & cert. ef. 10-31-91
BL 6-1988, f. & cert. ef. 4-12-88

Or. Admin. R. 839-021-0067 Hours of Employment for Minors 16 and 17 Years of Age

(1) An employer may not employ a 16- or 17-year-old to work more than 44 hours per week except those employed in organized youth camps or those employed in agricultural employment.

(2) An employer who wishes to employ a 16- or 17-year-old to work more than 44 hours per week must first obtain a Special Emergency Overtime Permit from the Bureau. This permit will not be issued unless:

(a) The number of hours does not exceed those provided by statute; and

(b) When the minor is not otherwise exempt from the overtime pay provisions of any law, the minor receives one- and one-half times the regular rate of pay for all hours worked over 40 in a workweek and other overtime where it applies.

(3) The maximum number of hours for a 16- or 17-year-old employed in a cannery is ten hours per day.

(4) An employer who wishes to employ a 16- or 17-year-old in a cannery for time in excess of ten hours per day, but no more than 55 hours in a week, may apply in writing to the Bureau .

(a) The employer must set out the full and complete circumstances of the proposed employment in the written application.

(b) The Bureau will investigate the terms and conditions of the proposed employment.

(c) If the Bureau determines that the character of the employment is suitable, that the employment will not adversely affect the well-being of the minor, and that the hour limitation creates an adverse effect on the opportunities of the minor, the Bureau will issue a Special Emergency Overtime Permit to the employer.

(d) If, the Bureau determines that the character of the employment is unsuitable, that the employment will adversely affect the well-being of the minor or that there is no adverse effect on the employment opportunities of the minor, the Bureau will refuse to issue a Special Emergency Overtime Permit.

History

Statutory/Other Authority: ORS 651.060, ORS 653.040, ORS 653.261, ORS 653.305, ORS 653.307 & ORS 653.400
Statutes/Other Implemented: ORS 653.261 & ORS 653.305
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 3-1995, f. 9-8-95, cert. ef. 9-9-95
BL 11-1991, f. & cert. ef. 10-31-91
BL 11-1990, f. 8-16-90, cert. ef. 9-1-90
BL 6-1988, f. & cert. ef. 4-12-88
BL 4-1982, f. & ef. 3-5-82
BL 11-1981(Temp), f. & ef. 10-30-81
BL 12-1979, f. & ef. 9-6-79
BL 5-1979(Temp), f. & ef. 5-16-79
BL 3-1979(Temp), f. & ef. 3-21-79
BL 142, f. 6-28-73, ef. 7-15-73

Or. Admin. R. 839-021-0070 Hours of Employment for Minors Under 16 Years of Age

(1) Except as otherwise provided in this rule, employment of minors under 16 years of age must be confined to the following periods:

(a) Outside school hours;

(b) Not more than 40 hours in any one week when school is not in session;

(d) Not more than eight hours in any one day when school is not in session;

(e) Not more than three hours in any one day when school is in session;

(f) Between 7 a.m. and 7 p.m., except that during the summer (June 1 through Labor Day) the minor may work until 9:00 p.m.

(2) In the case of enrollees in work training programs conducted under Part B of Title I of the Economic Opportunity Act of 1964, there is an exception to the requirement of subsection (1)(a) of this rule if the employer has on file with the records kept pursuant to OAR 839-021-0170 an unrevoked written statement of the Regional Manpower Administrator of the U.S. Department of Labor or representative setting out the periods which the minor will work and certifying that the minor's employment confined to such periods will not interfere with the minor's health and well-being, countersigned by the principal of the school which the minor is attending with the principal's certificate that such employment will not interfere with the minor's schooling.

(3) In the case of students enrolled in a career exploration or other work experience program, there is an exception to subsection (1)(a) of this rule when:

(a) The minor is employed as a student learner pursuant to ORS 653.070; or

(b) The minor is enrolled in a school-supervised and school-administered work experience and career exploration program meeting the educational standards established and approved by the Oregon Department of Education.

(4) This rule does not apply when Title 29, CFR, Part 570, Subpart C, Section 570.35a would otherwise apply.

(5) Employment of minors enrolled in a program pursuant to sections (2), (3), and (4) of this rule must be confined to not more than 23 hours in any one week when school is in session and not more than three hours in any day when school is in session, any portion of which may be during school hours. Insofar as these provisions are inconsistent with the provisions of section (1) of this rule, this section will be controlling.

(6) The employment of a minor enrolled in a program pursuant to sections (2), (3), and (4) of this rule must not have the effect of displacing a worker employed in the establishment of the employer.

(7) The Bureau may waive the provisions of section (1)(f) of this rule and OAR 839-021-0246(4)(d) and authorize minors under 16 years of age employed by their parent(s) or person(s) standing in the place of their parent(s) to work as late as 9:00 p.m. when the Bureau determines that such hours of work will not be detrimental to the health, safety or education of the children so employed and the minor is supervised by the minor's parent(s) or person(s) standing in the place of their parent(s) during the extended hours employed. No minor may be employed to work in violation of the provisions of (1)(a), (b), (c), (d), and (e) of this rule or, in the case of minors under 14 years of age, in violation of 839-021-0246(4)(a), (b), and (c).

(8) Pursuant to section (7) of this rule, a parent/employer desiring to employ a minor under 16 years of age later than the times permitted in section (1)(f) of this rule, or a minor under 14 years of age later than the times permitted in OAR 839-021-0246(4)(d), may apply in writing to the Bureau. The Bureau will investigate the employment and the facts and circumstances set out in the application. If the Bureau determines that the employment is suitable and will not adversely affect the well-being of the minor, the Bureau will issue a special permit to the parent/employer, setting out the terms and conditions of the permit.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 651.060, ORS 653.040, ORS 653.261, ORS 653.305, ORS 653.307 & ORS 653.400
Statutes/Other Implemented: ORS 653.261 & ORS 653.305
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 27-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 13-2000, f. 5-31-00, cert. ef. 6-1-00
BL 3-1995, f. 9-8-95, cert. ef. 9-9-95
BL 15-1992, f. 12-14-92, cert. ef. 12-15-92
BL 11-1990, f. 8-16-90, cert. ef. 9-1-90

Or. Admin. R. 839-021-0072 Rest Periods and Meal Periods

(1) Every employer must provide to each minor employee a meal period of not less than 30 continuous minutes in the manner prescribed by OAR 839-020-0050. However, the exemption provided for by OAR 839-020-0050(3) does not apply to minor employees under the age of 16.

(2) Every employer must provide each minor employee a rest period of not less than 15 minutes in the manner prescribed by OAR 839-020-0050.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 4-1998, f. & cert. ef. 3-5-98
BL 6-1988, f. & cert. ef. 4-12-88
BL 13-1979, f. & ef. 9-6-79
BL 142, f. 6-28-73, ef. 7-15-73

Or. Admin. R. 839-021-0087 Working Conditions

(1) An employer may not employ any minor to work in the State of Oregon, except under the following conditions:

(a) Where a sanitary and safe work area is provided;

(b) Where adequate lighting is provided;

(d) Where adequate washrooms are provided;

(e) Where adequate toilet facilities are provided;

(f) Where the employer is in full compliance with provisions of ORS Chapter 654 (The Oregon Safe Employment Act) and the rules and regulations promulgated thereunder. For the purposes of this rule, the compliance status of the employer is determined by the Occupational Safety and Health Division of the Department of Consumer and Business Services;

(g) Where the employer is in full compliance with the provisions of the following statutes relating to the payment of wages:

(A) ORS 652.110 to 652.190;

(B) ORS 652.610;

(D) ORS 279.348 to 279.365;

(E) Title 29, U.S.C., 201, et seq. (Federal Fair Labor Standards Act);

(F) Title 40, U.S.C., 276a. (Davis-Bacon Act);

(G) Title 41, U.S.C., 351, et seq. (Service Contract Act).

(2) When the following facilities are provided, an employer may not employ any minor to work in the State of Oregon unless:

(a) The rest rooms provided are adequate;

(b) The dressing rooms provided are adequate;

(d) The cot or stretcher provided for use in illnesses, accidents, or other emergencies is adequate.

(3) Upon expiration of ten days after receipt of notice and recommendations of the appropriate governmental agency with respect to temperature and humidity conditions or within such further time after receipt of the notice as may be prescribed by the Bureau, an employer may not employ any minor without complying with the recommendations.

(4) Every employer must provide to each minor when required by the nature of the work, "suitable seats," "suitable tables," and "suitable work benches":

(a) "Suitable seats" means convenient, comfortable and safe seats where the work is such that minors may sit while working. "Suitable seats" in cannery occupations means one for every three minors who work in or on inspection tables and inspection belts;

(b) "Suitable tables" and "suitable work benches" mean tables and work benches so constructed as to give the greatest possible comfort and convenience to minors where the nature of the work and the safety and convenience of the minor requires a bench or table.

(5) An employer may not require a minor to report for work without providing adequate work to earn a reasonable compensation, or paying to such minor a reasonable compensation in lieu thereof. As used in this paragraph:

(a) "Adequate work" means sufficient work to earn at least one-half the amount the minor would have earned at the minor's regular rate had the minor worked the hours that the minor and the employer previously agreed to;

(b) "Reasonable compensation" means the greater of:

(A) The amount the minor receives for one hour of work at the minor's regular rate of pay; or

(B) The amount determined by multiplying the minor's regular rate of pay by one-half the hours the minor and the employer agreed the minor would work.

(c) An employer is not required to compensate a minor pursuant to this rule if the employer is also required to compensate the minor under ORS 653.455(2)(b)(A) or (C).

(6) The provisions of section (5) of this rule do not apply when all the following conditions are met pertaining to the employer providing the minor notice not to report to work:

(a) The employer has a policy describing how notice not to report to work will be given minors; and

(b) The employer posts its notice policy in a conspicuous place frequented by employees at the worksite where the minor is employed; and

(d) The employer makes a good faith attempt to follow its policy so as to give the minor notice before the minor must leave home to travel to work; or

(7) When circumstances beyond the employer's control prevent the performance of the work the minor was to perform during the hours the minor had agreed to or was scheduled to work. Such circumstances include, but are not limited to, acts of nature (e.g., snowstorms, flooding), emergencies (e.g., fires, power outages), and unforeseeable equipment failures.

(8) The employer has the burden to maintain records sufficient to resolve any dispute arising under section (5) of this rule concerning the hours the minor agreed to or was scheduled to work.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: ORS 653
BLI 15-2018, amend filed 06/08/2018, effective 07/01/2018
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 2-1991, f. 1-23-91, cert. ef. 2-14-91
BL 12-1990(Temp), f. 8-16-90, cert. ef. 8-17-90
BL 6-1988, f. & cert. ef. 4-12-88
BL 6-1987, f. & ef. 3-19-87
BL 2-1987, f. & ef. 1-16-87
BL 142, f. 6-28-73, ef. 7-15-73

Or. Admin. R. 839-021-0092 Weight Lifting

No minor shall be required to lift excessive weights.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.305
BL 6-1987, f. & ef. 3-19-87
BL 2-1987, f. & ef. 1-16-87
BL 142, f. 6-28-73, ef. 7-15-73

Or. Admin. R. 839-021-0097 Prohibited Employment for Minors under 16 Years of Age

(1) No minor under 16 years of age:

(a) May be employed in an occupation or type of work declared hazardous by the Bureau (see OAR 839-021-0102);

(b) May be assigned any duties in connection with an organized youth camp prior to 6 a.m. or after 10 p.m., or more than eight hours per day;

(c) May be employed to act as a canvasser, peddler or "outside salesperson" as defined in ORS 653.010(7), from house to house.

(2) Except as provided in subsection (3) of this section, no minor may be employed at any work on or around any unenclosed commercial wharves or docks or in any unenclosed buildings extending over water, unless:

(a) There is located at the site of the work and conspicuously displayed at such site adequate safety equipment including, but not limited to:

(A) For every 30 linear feet of unenclosed area no less than one Type IV personal flotation device containing 16.5 pounds of buoyancy and one polypropylene line no less than 30 feet in length attached thereto;

(B) No less than one pole of not less than ten feet in length with a blunt hook attached thereto; and

(b) The minors so employed have been adequately instructed in the use of such equipment;

(c) There is provision made that no minor employee ever be required to work out of sight and hearing of another employee; and

(d) There is located at the site of the work and conspicuously displayed an alarm device adequate to alert all employees on the job site to the existence of a perilous situation.

(3) Minors may not be employed on or around fishing vessels except under the following conditions:

(a) Minors of 16 and 17 years of age may be employed as assistants on chartered fishing or pleasure boats;

(b) Minors of 14 and 15 years of age may be employed at dock areas used by chartered fishing or pleasure boats; and

(c) Minors may be employed on commercial fishing vessels without an employment certificate when employed and supervised by the minors' grandfather, grandmother, father, mother, brother, sister, uncle, or aunt.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 3-1995, f. 9-8-95, cert. ef. 9-9-95
BL 6-1988, f. & cert. ef. 4-12-88
BL 1-1985, f. 2-21-85, ef. 3-1-85
BL 2-1979, f. & ef. 2-13-79
BL 14-1978, f. 12-13-78, ef. 1-17-79
BL 11-1978(Temp), f. 9-18-78, ef. 9-19-78
BL 185, f. 1-30-76, ef. 2-1-76
BL 142, f. 6-28-73, ef. 7-15-73

Or. Admin. R. 839-021-0102 Occupations and Types of Work Declared Hazardous for Minors Under 16 Years of Age

(1) Pursuant to OAR 839-021-0097(1)(a), the Bureau hereby declares the following occupations and types of work to be hazardous and any employment by minors under 16 years of age is hereby prohibited:

(a) Baking;

(b) Blast furnaces;

(d) Bridge operations;

(e) Briquet plants;

(f) Building cleaning (exterior);

(g) Cattle handling;

(h) Coal plants or bunkers;

(i) Cold storage plants;

(j) Commercial docks;

(k) Construction (alteration, repair, painting, or demolition of buildings, bridges, and structures);

(l) Cooking (except: cooking with a gas or electric grill that does not have an open flame; using a microwave to warm food; or using a deep fryer that is equipped with a device that automatically raises and lowers the basket);

(m) Creosoting works;

(n) Distilleries;

(o) Electric power plants, lines;

(p) Electric light plants, lines;

(q) Engineering works (construction, improvement, alteration, or repair of steam plants, water power plants, telephone, telegraph, or electric plants or lines or railroads, streets, highways, sewers, harbors, docks, or canals);

(r) Firefighting;

(s) Foundries;

(t) Garbage works;

(u) Gas works;

(v) Grain elevators;

(w) Gravel or sand plant or bunker;

(x) Ice plants;

(y) Kitchen cleaning of equipment when the surface is hotter than 100 degrees Fahrenheit, or filtering or disposing of cooking oil or grease that is hotter than 100 degrees Fahrenheit;

(z) Railroads;

(aa) Land clearing (with blasting or presence of heavy equipment);

(bb) Logging operations;

(cc) Longshoring;

(dd) Lumber loading;

(ee) Mechanical amusements;

(ff) Milk condenseries;

(gg) Mines;

(hh) Moving buildings, bridges, and structures;

(ii) Peace officer work;

(jj) Powder works;

(kk) Quarries;

(ll) Reduction works;

(mm) Rock crusher;

(nn) Smelters;

(oo) Stockyards;

(pp) Surveying;

(qq) Tanneries;

(rr) Tree surgery;

(ss) Well digging and drilling;

(tt) Window cleaning (outside above ground);

(uu) Wineries;

(vv) Wood cutting, sawing.

(2) The following occupations and types of work are declared to be hazardous for any minor under 16 years of age when the work is performed in rooms or areas having power-driven machinery:

(a) Boat repair shops;

(b) Canneries;

(d) Creameries;

(e) Cycle repair shops;

(f) Electrotyping plants;

(g) Engraving plants;

(h) Factories (manufacturing, repair, alteration);

(i) Feed mills;

(j) Flour mills;

(k) Garages;

(l) Grain warehouses;

(m) Irrigation works;

(n) Laundries;

(o) Lithographing plants;

(p) Mills;

(q) Motor repair shops;

(r) Photoengraving plants;

(s) Printing plants;

(t) Shipbuilding operations;

(u) Stereotyping plants;

(v) All kinds of work in workshops or any premise, room, or place where power-driven machinery is used in or incidental to adapting articles or goods for sale.

(3) The following occupations or types of work are declared to be hazardous for any minor under 16 years of age and these minors are permitted to perform office work only in the following operations:

(a) Auto wrecking yards;

(b) Junk dealers;

(d) Lumbering;

(e) Water works.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 17-2006, f. 5-12-06, cert. ef. 5-15-06
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 6-1988, f. & cert. ef. 4-12-88
BL 116, f. 10-20-71, ef. 11-1-71, Renumbered from 839-021-0045

Or. Admin. R. 839-021-0104 Occupations Particularly Hazardous or Detrimental to the Health or Well-Being of Minors Under the Age of 18

(1) Except as provided in OAR 839-021-0285, an employer may not employ a minor under 18 years of age in any occupation declared particularly hazardous or detrimental to their health or well-being, except under terms and conditions specifically set forth by rules of the Bureau.

(2) Those occupations set out in Title 29 CFR, Part 570.51 to and including Part 570.68 as amended July 19, 2010 are hereby adopted as occupations particularly hazardous or detrimental to the health and well-being of minors 16 and 17 years of age and the regulations pertaining to these occupations set out in Title 29 CFR, Part 570.51 to and including Part 570.68 as amended July 19, 2010 are hereby adopted and incorporated by reference herein and are attached as Appendix 1.

[ED. NOTE: Appendices referenced are available from the agency.]

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 19-2010, f. 9-28-10, cert. ef. 10-1-10
BLI 17-2006, f. 5-12-06, cert. ef. 5-15-06
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 3-1999, f. & cert. ef. 6-16-99
BL 6-1988, f. & cert. ef. 4-12-88
BL 182, f. & ef. 11-14-75

Or. Admin. R. 839-021-0106 Occupations Involving Use of Explosives

(1) In addition to the provisions of Title 29 CFR, Part 570.51 (Hazardous Occupations Order 1) pertaining to occupations in or about plants or establishments manufacturing or storing explosives or articles containing explosive components, no minor under the age of 18 may be employed in any occupation where explosive materials are manufactured, stored, or used, except in those occupations specified in subparagraphs (2) and (3) of this rule.

(2) This rule does not apply to the employment of minors in the following occupations:

(a) Occupations in retail establishments including the storage of ammunition in gunshops, sporting goods stores, building supplies and hardware stores, retail fireworks stands, and other retail establishments;

(b) Occupations in gun clubs, trap and skeet ranges, turkey shoots, certain armories, police stations, and other such areas where only small arms ammunition is being stored; and

(3) An area meeting the following criteria shall be deemed a nonexplosives area:

(a) None of the work performed in the area involves the handling or use of explosives;

(b) The area is separated from the explosives area by a distance not less than that prescribed in the American Table of Distances for the protection of inhabited buildings;

(c) The area is separated from the explosives area by a fence or is otherwise located so that it constitutes a definite designated area; and

(d) Satisfactory controls have been established to prevent employees under 18 years of age within the area from entering any area which does not meet criteria (a) through (c).

History

Statutory/Other Authority: ORS 653.305 & 653.525
Statutes/Other Implemented: ORS 653.305 & 653.525
BLI 1-2005, f. & cert. ef. 1-3-05

Or. Admin. R. 839-021-0170 General Recordkeeping Requirements

(1) Every employer employing minors must maintain and preserve records containing the following information and data with respect to each minor employed:

(a) Name in full, as used for social security recordkeeping purposes and on the same record, the minor's identifying symbol or number if such is used in place of name on any time, work or payroll records;

(b) Home address, including zip code;

(d) Sex and occupation in which the minor is employed (sex may be indicated by use of the prefixes Mr., Mrs., Miss or Ms.);

(e) Time of day and day of week on which the minor's workweek begins;

(f) Hours worked each workday and total hours worked each workweek;

(g) Date the minor became employed by the employer and date employment was terminated.

(2) In addition to the records referred to in section (1) of this rule, every employer employing minors under 16 years of age must maintain and preserve records containing the following information and data with respect to each minor under 16 years of age employed:

(a) The time of day that each minor began working and the time of day that each minor stopped working;

(b) A schedule of the maximum number of hours to be worked each day and each week by each minor.

(3) The records required to be maintained and preserved in sections (1) and (2) of this rule are required in addition to and not in lieu of any other recordkeeping requirement contained in OAR 839-021-0001 to 839-021-0500. However, when one record will satisfy the requirements of more than one rule, only one record will be required.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.307
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 6-1988, f. & cert. ef. 4-12-88

Or. Admin. R. 839-021-0175 Records Availability

(1) All records required to be preserved and maintained by OAR 839-021-0001 to 839-021-0500 shall be preserved and maintained for a period of at least two years.

(2) All employers shall keep the records required by OAR 839-021-0001 to 839-021-0500 in a safe and accessible place.

(3) All records required to be preserved and maintained by OAR 839-021-0001 to 839-021-0500 shall be made available for inspections and transcription by the Bureau.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BL 6-1988, f. & cert. ef. 4-12-88

Or. Admin. R. 839-021-0180 Posting Requirements

(1) Every employer required to maintain a schedule of the maximum hours of work by minors under 16 years of age (see OAR 839-021-0170(2)(b)), must post the schedule in a conspicuous place where all such minors have easy access to it.

(2) Every notice required by any law or rule to be posted at the employer's place of business and that has applicability to the employment of minor employees must be displayed in a conspicuous place where all minors have easy access to them.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.315(4)
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 6-1988, f. & cert. ef. 4-12-88

Or. Admin. R. 839-021-0185 Verification of Age Requirements

(1) The employer must verify the age of all minors by requiring the minor to produce an acceptable proof of age document.

(2) As used in these rules, an acceptable proof of age document includes, but is not limited to:

(a) A birth certificate issued by any state, county, or municipal authority;

(b) A hospital record of birth;

(c) A state-issued driver's license or a state-issued I.D. card with a photograph, or information, including date of birth;

(d) A U.S. Military Card;

(e) A U.S. Passport;

(f) A Certificate of U.S. Citizenship;

(g) A Certificate of Naturalization;

(h) An unexpired foreign passport with attached Employment Authorization;

(i) An Alien Registration Card with photograph;

(j) A Social Security Administration record indicating date of birth;

(k) A Certificate of Age issued by the U.S. Department of Labor;

(l) A baptismal record;

(m) Other acceptable proof approved by the bureau.

(3) The employer must retain a record of the document used to verify the minor's age pursuant to the provisions of OAR 839-021-0170 and 839-021-0175. A notation in the minor's personnel file of which document was used to verify the minor's age or retaining a copy of the document will satisfy this requirement.

History

Statutory/Other Authority: ORS 653.305 & 653.525
Statutes/Other Implemented: ORS 653.307
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 3-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-021-0220 Employment Certificates for the Employment of Minors 14 through 17 Years of Age

(1) Unless otherwise provided by rule, no minor 14 through 17 years of age may be employed or permitted to work unless the employer:

(a) Verifies the minor's age by requiring the minor to produce acceptable proof of age as prescribed by these rules; and

(b) Complies with the provisions of this rule.

(2) An employer may not employ a minor without having first obtained a validated employment certificate from the Bureau. Application forms for an employment certificate may be obtained from any office of the Bureau or by contacting the Child Labor Unit, Wage and Hour Division.

(a) The Bureau will issue a validated employment certificate upon review and approval of the application. The validated employment certificate will be effective for one year from the date it was issued, unless it is suspended or revoked.

(b) If, after the issuance of a validated employment certificate, the duties of the minors are changed from those originally authorized under the employment certificate or the employer wishes to employ minors at an additional establishment, the employer must submit a "Notice of Change (to Annual Employment Certificate)" form to the Child Labor Unit, Wage and Hour Division of the Bureau of Labor and Industries. The "Notice of Change (to Annual Employment Certificate)" form must be submitted within 15 days of the change on a form provided by the Bureau. The Bureau will approve or deny any change(s) in duties and notify the employer. If the Bureau denies the changes, the employer must immediately reassign any affected minor to approved duties or terminate the minor's employment.

(3) The employer must post the validated employment certificate in a conspicuous place where all employees can readily see it. When the employer employs minors in more than one establishment, a copy of the validated employment certificate must be posted at each establishment. As used in this rule, "establishment" means a distinct physical place of business. If a minor is employed by one employer to perform work in more than one location, the minor will be considered employed in the establishment where the minor receives management direction and control.

(4) If the employer employs minors at more than one establishment, a copy of the Summary of Child Labor Laws provided to the employer by the Bureau pursuant to OAR 839-021-0221(4) must be provided by the employer to the manager of each establishment where minors will be employed.

(5) The employer must apply for a validated employment certificate once each year by filing a renewal application on a form provided by the Bureau. The renewal application must be received by any office of the Bureau no later than the expiration date of the validated employment certificate.

(6) If the Bureau’s review of any application indicates a failure to comply with any law or rule pertaining to the employment of minors or any order of the commission, the Bureau may deny the application and inform the employer of the reason(s) for the denial.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 17-2021, minor correction filed 10/14/2021, effective 10/14/2021
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 17-2006, f. 5-12-06, cert. ef. 5-15-06
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 4-1998, f. & cert. ef. 3-5-98
BL 3-1995, f. 9-8-95, cert. ef. 9-9-95
BL 6-1988, f. & cert. ef. 4-12-88
BL 117, f. 10-20-71, ef. 11-1-71, Renumbered from 839-021-0115

Or. Admin. R. 839-021-0221 Required Information for Employment Certificate Applications; Provision of Summaries of Child Labor Laws and Rules by Bureau; Notice of Change (to Annual Employment Certificate) Forms

(1) The application form for an employment certificate must include:

(a) The name and address of the employer;

(b) The name and address of the company representative completing the application form;

(d) A description of the duties to be performed by the minor(s);

(e) A description of the machinery or other equipment to be used by the minor(s);

(f) Whether 14 and 15 year-old minors are to be employed.

(2) The "Notice of Change (to Annual Employment Certificate)" must include:

(a) The name and address of the employer;

(b) The name and address of the company representative completing the notice;

(d) A description of any machinery or equipment to be used by any minor;

(e) Any address change(s) or additional establishments where minors are proposed to be employed. As used in this rule, "establishment" has the same meaning as defined in OAR 839-021-0220(3).

(3) The Renewal Application for an employment certificate must include:

(a) The name and address of the employer;

(b) The name and address of the company representative completing the application;

(d) An estimate of the number of minors to be employed during the 12-month period covered by the application;

(e) A description of the duties to be performed and the machinery and equipment to be used if different from the previous year or if there are no changes in duties, a statement to that effect;

(f) Any address change(s) or additional establishments where minors are proposed to be employed.

(4) The Bureau will send a summary of the child labor laws and rules to all employers applying for an employment certificate.

(5) The Bureau will provide upon request a "Notice of Change (to Annual Employment Certificate)” form with an explanation of its use.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 4-1998, f. & cert. ef. 3-5-98
BL 3-1995, f. 9-8-95, cert. ef. 9-9-95

Or. Admin. R. 839-021-0246 Employment Permits for Minors Under 14 Years of Age

(1) No child under 14 years of age may be employed or permitted to work unless the employer has been issued a validated Employment Permit by the Bureau authorizing the child to work for that particular employer.

(2) A minor under 14 years of age and an employer who wishes to employ the minor under the provisions of ORS 653.320 must make a joint application for an Employment Permit using a form available online or at any office of the Bureau. Each application must include:

(a) Minor's name and residence address, and the name and address of parents or legal guardian;

(b) Minor's date of birth and proof of age, consisting of either a certified copy of a birth certificate, hospital certificate, baptismal certificate, or other acceptable proof of age;

(d) Name and address of prospective employer and nature of such employer's business;

(e) Amount of compensation to be paid;

(f) The maximum number of hours proposed to be worked on any given day, the maximum number of hours to be worked in any work week, and the maximum number of days proposed to be worked in any work week;

(g) A complete description of the work proposed to be performed;

(h) A separate certification by the employer that the minor will be continuously supervised by a responsible adult.

(3) The Bureau will investigate the circumstances of the proposed employment and the information contained in the application. If the Bureau determines that the character of the employment is suitable and that the employment will not adversely affect the well-being of the minor, the Bureau will issue an Employment Permit, setting out limitations concerning the employment deemed appropriate by the Bureau, which limitations should be consistent with the provisions of section (4) of this rule.

(4) Except as provided in OAR 839-021-0070, employment permits for the employment of minors under 14 years of age may be issued only under the following circumstances:

(a) Hours of employment for minors under 14 years of age during the term when schools are in session will be limited to not more than two hours after school hours; not more than six hours on Saturdays and Sundays; and not more than 18 hours per week, not to exceed five work days in one week;

(b) During any vacation period extending over a period of two weeks or longer, minors under 14 years of age may not be employed more than eight hours in any one day and not more than 40 hours in one week and not more than five work days in one week;

(c) Minors under 14 years of age may not be employed in any enterprise subject to the Federal Fair Labor Standards Act, (29 U.S.C. 201, et seq.), in any establishment where alcoholic beverages are dispensed or served, in any theater or amusement park, in any work that involves the minor in canvassing door to door, or in any establishment catering to adults only;

(d) Minors under 14 years of age may not be employed before the hour of 8 a.m. or after the hour of 6 p.m.

[Publications: Publications referenced are available from the agency.]

History

Statutory/Other Authority: ORS 651.060, ORS 653.040, ORS 653.307 & ORS 653.400
Statutes/Other Implemented: ORS 653.261 & ORS 653.305
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 13-2000, f. 5-31-00, cert. ef. 6-1-00
BL 6-1988, f. & cert. ef. 4-12-88
BL 6-1978, f. & ef. 8-7-78

Or. Admin. R. 839-021-0248 Reports from Employers Employing Minors

Employers employing minors shall file reports that may be required by the Bureau.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BL 6-1988, f. & cert. ef. 4-12-88

Or. Admin. R. 839-021-0255 Special Rules for Temporary Employment of Several Minors for a Short Duration

(1) As used in this rule, unless the context requires otherwise:

(a) "Temporary employment of a short duration" means employment which terminates on or by the tenth day from the date of hire.

(b) "Several minors" means 10 or more minors.

(2) In circumstances involving temporary employment of a short duration where the employment of several minors is proposed, the prospective employer may comply with the provisions of rules OAR 839-021-0220 to 839-021-0248 (Employment Certificates and Employment Permits) or may address a letter application to the Child Labor Unit of the Wage and Hour Division setting out the full and complete circumstances of the proposed employment. The Bureau will investigate the proposed employment and if the Bureau determines that the character of the employment is suitable and that such employment will not adversely affect the physical and moral well-being of the minors, the Bureau will issue a special permit to the employer.

(3) Notwithstanding the provisions of subsection (1)(a) of this rule, the Bureau, for good cause shown, may issue a special permit pursuant to section (2) of this rule for more than 10 days if the Bureau determines that the circumstances of the proposed employment otherwise satisfy section (2) of this rule.

(4) Notwithstanding the provisions of section (2) of this rule, the Bureau, for good cause shown, may issue a special permit in circumstances other than as prescribed in OAR 839-021-0246(4) when it appears to the Bureau that the employment opportunities of the minor would be impaired and the employment, as determined by the Bureau, will not adversely affect the physical and moral well-being of the minor.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 3-1995, f. 9-8-95, cert. ef. 9-9-95
BL 1-1989, f. & cert. ef. 2-6-89
BL 14-1988(Temp), f. 8-2-88, cert. ef. 8-12-88
BL 6-1988, f. & cert. ef. 4-12-88

Or. Admin. R. 839-021-0265 Employment of Minors to Act as Canvassers, Peddlers or Outside Salespersons from House to House

(1) Minors 16 and 17 years of age may not be employed to act as a canvasser, a peddler, or an "outside salesman" as defined in ORS 653.010(7), from house to house, unless the employer obtains and maintains a validated registration certificate issued by the Bureau.

(2) To register, an employer may obtain an application form from any office of the Bureau. Upon completion, the application must be filed with the Child Labor Unit of the Wage and Hour Division. The application form will be prescribed by the Bureau and must include, but not be limited to, space for:

(a) The employer's name, permanent address, and telephone number;

(b) The Oregon address and telephone number if different from permanent address and telephone number;

(d) A brief history of company;

(e) A complete description of the work to be performed by minors who are 16 and 17 years of age;

(f) An estimate of the ages and of the number of minors 16 and 17 years of age that may be employed during the period of certification;

(g) A statement that the employer agrees to comply with the provisions of ORS 653.010 to 653.545, OAR 839-021-0001 to 839-021-0265 and any terms and conditions specified by the Bureau;

(h) The name and address of the employer's workers' compensation insurer and policy or binder number;

(i) Other information which will assure the Bureau that employment of minors by the employer will be in compliance with any law or rule concerning the employment of minors; and

(j) The signature of the applicant.

(3) In the case of a renewal application, the employer must submit with the application, a report of minors employed during the previous year. The report must include, but not be limited to, the following information:

(a) The number of minors employed;

(b) Whether any workers' compensation insurance claims were filed by or for any minors while employed by the employer and the number of such claims; and

(4) The Bureau will conduct an investigation of the facts and circumstances set out in the application for the registration certificate and may issue a certificate to the employer provided the provisions of OAR 839-021-0001 to 839-021-0265 have been met.

(a) The Bureau may set such terms and conditions upon the issuance of the certificate as the Bureau deems necessary or appropriate.

(b) The Bureau may refuse to issue or renew a certificate when it appears to the Bureau that the provisions of OAR 839-021-0001 to 839-021-0265 are not met or when the employer has violated any law or rule pertaining to the employment of minors.

(c) If the facts and circumstances or conditions under which the certificate is issued change, the employer must notify the Bureau of the change. The Bureau may modify the terms and conditions of the certificate, if any.

(d) Employers may apply for a registration certificate at any time and must apply to renew their registration by July 1 of each year. The registration will be effective through the following June 30.

(5) The Bureau may require the removal of minors from the employment of a registered employer when it appears to the Bureau that the employer has failed to comply with any law or rule pertaining to the employment of minors. Prior to the removal of minors from employment, the Bureau will consider the following factors:

(a) The past history of the employer in taking all necessary measures to prevent or correct violations of statutes and rules;

(b) Past violations, if any, of statutes and rules;

(d) Any other mitigating circumstances.

(6) When a registered employer is required by the Bureau to remove the minor employees from employment, the employer may request a hearing in accordance with OAR 839-022-0000 to 839-022-0060.

(7) The Bureau may revoke the registration certificate when it determines that the employer failed to comply with any rule or law covering the employment of minors. The employer must be accorded the opportunity of a hearing in accordance with OAR 839-022-0000 to 839-022-0060.

(8) In addition to all other rules, employers employing persons 16 and 17 years of age to act as a canvasser, peddler or "outside salesman" as defined in ORS 653.010(8) from house to house must provide each minor, before the minor begins work, with an identification card. The identification card must be shown to each customer or potential customer of the minor employed to act as a canvasser, peddler or "outside salesman" by the minor so employed. The identification card will be on a form prescribed by the Bureau. The identification card must include:

(a) A picture of the employee;

(b) The name of the employee;

(d) A statement to the effect that the employee is authorized to represent the employer as a canvasser, peddler or "outside salesman";

(e) A statement to the effect that the employer is registered with the Bureau of Labor and Industries;

(f) A statement that the card is not valid for any other employer; and

(g) Other information as the Bureau may require to carry out the purpose of this subsection.

(9) Notwithstanding OAR 839-021-0067, minors 16 and 17 years of age employed to act as a canvasser, a peddler or an "outside salesman," as defined in ORS 653.010(8), from house to house may not be employed past the hour of 9:00 p.m.

(10) The transportation of a minor employed to act as a canvasser, peddler, or "outside salesman" to and from the job site must be provided by the employer and must occur no later than 9:00 p.m. In the case of a minor who wants to provide the minor's own transportation, the employer must obtain the written consent of the minor's parents or legal guardian and maintain such written consent in the employer's files.

(11) No minor employed to act as a canvasser, peddler, or "outside salesman" may be transported to another state without the express written consent of a parent or legal guardian of the minor.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 21-2021, minor correction filed 10/14/2021, effective 10/14/2021
BLI 18-2021, minor correction filed 10/14/2021, effective 10/14/2021
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 6-1988, f. & cert. ef. 4-12-88
BL 1-1985, f. 2-21-85, ef. 3-1-85

Or. Admin. R. 839-021-0276 Employment Certificates for Minors Employed in Agriculture

(1) The provisions addressing Employment Certificates, OAR 839-021-0220 to 839-021-0221, do not apply to the employment of minors in agriculture except as follows:

(a) Minors employed to operate or assist in the operation of power-driven farm machinery;

(b) Minors employed to ride in or on power-driven farm machinery; and

(c) Minors employed to ride in or on equipment, trailers, or similar conveyances connected to power-driven farm machinery for the purpose of transporting, sorting, delivering, or otherwise processing farm products.

(d) Employment Certificates are not required under (a), (b) or (c) if a minor is employed by their parent or person standing in the place of their parent as provided by OAR 839-021-0297.

(2) Employers employing minors to operate power-driven farm machinery, to ride in or on power-driven farm machinery or to ride in or on equipment, trailers, or similar conveyances which are connected to power-driven farm machinery must not permit the minor to operate power-driven farm machinery, assist in the operation of the machinery, to ride in or on the machinery or to ride in or on equipment, trailers or similar conveyances which are connected to power-driven farm machinery, until the employer has complied with OAR 839-021-0280 or 839-021-0282.

History

Statutory/Other Authority: ORS 651.060, ORS 653.040, ORS 653.261, ORS 653.307 & ORS 653.400
Statutes/Other Implemented: ORS 653.305 & ORS 653.307
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 4-1998, f. & cert. ef. 3-5-98
BL 4- 1995, f. & cert. ef. 11-3-95
BL 11-1991, f. & cert. ef. 10-31-91
BL 6-1988, f. & cert. ef. 4-12-88
BL 5-1987, f. & cert. ef. 2-20-87

Or. Admin. R. 839-021-0280 Operation or Assisting in the Operation of Power-Driven Farm Machinery by Minors

(1) As used in this rule, "assist(ing) in the operation of power-driven farm machinery," includes starting, stopping, adjusting, feeding or any other activity involving physical contact associated with the operation of the machinery.

(2) Minors may not be employed to operate or assist in the operation of power-driven farm machinery unless:

(a) An Employment Certificate has been issued pursuant to OAR 839-021-0220; and

(b) The minor(s) has obtained a "Certificate of Training" on tractor operation or tractor and machinery operation issued by a 4-H Extension Service Program, or an approved secondary vocational agriculture program.

(A) The employer must obtain proof that the minor has a "Certificate of Training" on the operation of tractors or tractors and machinery operation; and

(B) The employer must retain a copy of such proof for two years from the date the minor was employed.

(3) In the event that neither a 4-H Extension Service nor vocational agricultural safety training program for the "Certificate of Training," as required in section (2)(b) of this rule, is available within 35 miles of a minor's residence, a 16 or 17 year-old minor may be employed to operate or assist in the operation of power-driven farm machinery otherwise prohibited if all of the following conditions are met:

(a) The minor is 16 or 17 years of age and the employer has verified the minor's age;

(b) The employer has obtained an Employment Certificate application pursuant to OAR 839-021-0220; and

(c) The minor, the minor's parent or guardian, and the employer of the minor sign a statement on a form prescribed by the commission certifying to all of the following:

(A) The training is not available within 35 miles of the minor's residence;

(B) The employer has provided to the minor not less than eight hours of instruction, four hours of which must be "hands-on" training under the supervision of an adult experienced in the safe and proper operation of the specific equipment the minor is to use before the minor begins work including, but not limited to, training related to the normal working hazards in agriculture, the equipment's instrument panel, equipment controls, daily maintenance and safety checks, starting and stopping the equipment, control of the equipment on different terrain, and the safe operation of hitches, power take-off and hydraulic controls, where applicable; and

(C) The employer agrees to supervise the minor continuously and closely while the minor operates the power-driven farm machinery, or, where such supervision is not feasible, agrees to check on the safety of the minor at intervals of no more than two hours during the operation of the equipment by the minor.

(4) The requirements for obtaining an Employment Certificate and a Certificate of Training do not apply to a minor employed by their parent(s) or person standing in the place of their parent as provided by OAR 839-021-0297.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 27-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 4-1995, f. & cert. ef. 11-3-95
BL 11-1991, f. & cert. ef. 10-31-91
BL 4-1990, f. & cert. ef. 3-12-90
BL 6-1988, f. 4-12-88, cert. ef. 1-1-89
BL 5-1987, f. & ef. 2-20-87

Or. Admin. R. 839-021-0282 Riding In or On Conveyances Connected to Power-Driven Farm Machinery by Minors

(1) A minor may not be employed to ride in or on equipment, trailers or similar conveyances which are connected to power-driven farm machinery for the purpose of transporting, sorting, delivering or otherwise processing farm products unless:

(a) An Employment Certificate has been issued pursuant to OAR 839-021-0220; or

(b) The minor(s) has obtained a "Certificate of Training" issued by a 4-H Extension Service Program, or an approved secondary vocational agriculture program as referred to in OAR 839-021-0280(2)(b).

(2) A minor 14 years of age or older who has not obtained a "Certificate of Training" as required by OAR 839-021-0280(2)(b) may be employed to ride in or on equipment, trailers or similar conveyances which are connected to power-driven farm machinery for the purpose of transporting, sorting, delivering, or otherwise processing farm products, if all of the following conditions are met:

(a) The employer has verified the minor's age;

(b) The employer has completed an Employment Certificate application, pursuant to OAR 839-021-0220; and

(c) The employer has provided to the minor not less than two hours of safety training as required by OR-OSHA rules and these rules relating to the specific machinery which the minor will be employed to ride in or on before the minor begins work including, but not limited to, training related to the normal working hazards in agriculture, safe equipment mounting and dismounting, unsafe practices, and safety features of the machinery; and

(d) The employer must closely supervise the minor while the minor rides in or on conveyances pulled by power-driven machinery. The employer must check on the safety of the minors at intervals of not less than two hours.

(3) The requirements for obtaining an Employment Certificate and a Certificate of Training do not apply to a minor employed by their parent(s) or person standing in the place of their parent as provided by OAR 839-021-0297.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.307 & 653.365
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 4-1995, f. & cert. ef. 11-3-95
BL 4-1990, f. & cert. ef. 3-12-90
BL 6-1988, f. 4-12-88, cert. ef. 1-1-89
BL 5-1987, f. & ef. 2-20-87

Or. Admin. R. 839-021-0285 Applicability of and Compliance with Other Rules to Minors Employed in Agriculture

Employers employing minors in agriculture shall comply, unless specifically excluded by ORS 653.305 to 653.370 or these rules, with all rules pertaining to the employment of minors, including, but not limited to:

(1) Rules pertaining to rest periods (OAR 839-021-0072);

(2) Rules pertaining to meal periods (OAR 839-021-0072);

(3) Rules pertaining to working conditions and weight lifting (OAR 839-021-0087 and 839-021-0092);

(4) Rules pertaining to hazardous occupations for minors under 16 years of age (OAR 839-021-0102);

(5) Rules pertaining to hazardous occupations for minors between 16 and 18 years of age (OAR 839-021-0104);

(6) Notwithstanding the provisions of subsection (5) of this rule and the provisions of Title 29 CFR, Part 570.52, minors 16 and 17 years of age employed in agriculture as defined in OAR 839-021-0006(1) may be employed as motor-vehicle drivers and outside helpers.

History

Statutory/Other Authority: ORS 653.252
Statutes/Other Implemented: ORS 653.305
BLI 3-1999, f. & cert. ef. 6-16-99
BL 11-1991, f. & cert. ef. 10-31-91
BL 6-1991(Temp), f. & cert. ef. 6-21-91
BL 1-1989, f. & cert. ef. 2-6-89
BL 5-1987, f. & ef. 2-20-87

Or. Admin. R. 839-021-0287 Employment of Minors in Agricultural Warehouses

(1) Minors under 16 years of age may not be employed in any room or place in an agricultural warehouse where power-driven machinery is used to process agricultural commodities.

(2) Minors 16 and 17 years of age may be employed to operate or assist in the operation of power-driven machinery in an agricultural warehouse provided:

(a) The employment is in connection with the processing of the agricultural commodity produced by the farmer for whom the minor is employed; and

(b) The employment is performed on the farm and for the farmer for whom the minor is employed; and

(3) As used in section (2) of this rule:

(a) "Operate(ing)" power-driven machinery includes driving a motorized vehicle;

(b) "Assisting in the operation of power-driven machinery" includes starting, stopping, adjusting, feeding or any other activity involving physical contact associated with the operation of the machinery.

(4) Prior to the employment of minors 16 and 17 years of age to operate or assist in the operation of power-driven machinery in an agricultural warehouse, the employer must obtain proof that the minor has been trained in safe handling and operation of the machinery as required by OR-OSHA and these rules. The proof of training may be a document issued by a public or private entity other than the farmer attesting to the training. Employers must retain a copy of such proof for two years from the date the minor was employed.

(5) In the event that the safety training required by this rule is not available within 35 miles of the minor's residence, a 16 or 17 year old minor may be employed to operate or assist in the operation of power-driven machinery in an agricultural warehouse provided that the following conditions are continuously met:

(a) The employment is in connection with the processing of the agricultural commodity produced by the farmer for whom the minor is employed;

(b) The employment is performed on the farm and for the farmer for whom the minor is employed; and

(c) The employer provides to the minor before the minor begins work not less than six hours of instruction, two hours of which must be "hands on" training under the supervision of an adult experienced in the safe operation of the specific machinery the minor is to use. The training should include, but not be limited to, training related to the normal working hazards in the warehouse, the machinery's instrument panel, the machinery's controls, daily maintenance and safety checks, starting and stopping the machinery, control of the machinery, and the safe operation of hitches, power take-off and hydraulic controls, where applicable.

(6) The employer must provide close supervision of minors operating or assisting in the operation of the power-driven machinery.

(7) As used in this rule, an "agricultural warehouse" includes a building in which the processing of agricultural commodities is performed. Processing of agricultural commodities includes cleaning, packaging, storing and shipping of the commodities. For purposes of this paragraph, covered areas attached to the warehouse are considered to be part of the warehouse.

(8) As used in this rule, "employment in an agricultural warehouse" means employment confined to the inside of the building where the work is performed. A loading dock attached to the building is considered to be part of the building and employment on the dock is employment in the warehouse. However, employment close to or about the building or in or on structures not attached to the warehouse is not considered to be employment in the warehouse.

History

Statutory/Other Authority: ORS 653.305 & 653.525
Statutes/Other Implemented: ORS 653.305 & 653.360
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 4-1995, f. & cert. ef. 11-3-95

Or. Admin. R. 839-021-0290 Permitted Hours of Work of Minors under 16 Years of Age in Agriculture

(1) Minors under 16 years of age may not be employed to work in agriculture while the school they attend is in session. As used in this rule, school is in session during the hours set by the school district in which the minor resides while employed in agriculture in accordance with the official school calendar of the district. A school week is any week in which school is in session for at least three days.

(2) The hours of work by minors in agriculture under 16 years of age may not exceed:

(a) Three hours a day on school days;

(b) Ten hours a day on non-school days;

(d) From the last day of the most recently completed school year of the school district in which the minor resides while employed in agriculture to the first day of the school year immediately following the most recently completed school year of the district in which the minor resides while employed in agriculture:

(A) Ten hours per day; and

(B) 60 hours per week.

(e) Six days in any week at any time.

(3) Notwithstanding section (2) of this rule, when a minor under 16 years of age is employed in agriculture to operate or assist in the operation of power-driven farm machinery or when such minor is employed to ride in or on power-driven farm machinery as provided in OAR 839-021-0276 to 839-021-0285, the maximum number of hours the minor may work may not exceed:

(a) Three hours a day on school days;

(b) Eight hours a day on non-school days;

(A) Ten hours per day, 60 hours a week during the harvest season;

(B) Ten hours per day, 44 hours per week outside the harvest season;

(C) A greater number of weekly hours may be permitted when worked outside the harvest season pursuant to a Special Emergency Overtime Permit issued by the Bureau. However, even though a permit may be issued, the maximum number of hours worked in a week may not exceed 60.

(e) Six days in any week at any time.

(4) Notwithstanding sections (2) and (3) of this rule, the Bureau may issue special permits to employers for the employment of minors under 16 years of age in agriculture for more than the maximum number of hours provided in this rule when the Bureau determines that such hours of work will not be detrimental to the health and safety of the minors so employed.

(a) An employer desiring to employ a minor in agriculture for more than the maximum number of hours provided in this rule may apply in writing to the Bureau.

(b) The Bureau will investigate the employment and the facts and circumstances set out in the application. If the Bureau determines that the character of the employment is suitable and that the employment will not adversely affect the physical and moral well-being of the minor(s), the Bureau will issue a Special Emergency Overtime Permit to the employer, setting out the terms and conditions of the permit and the period of time for which it will be effective.

(5) This rule does not regulate the daily starting and quitting times of minors under 16 years of age who are employed in agriculture.

History

Statutory/Other Authority: ORS 651.060, ORS 653.040, ORS 653.261, ORS 653.305, ORS 653.307 & ORS 653.400
Statutes/Other Implemented: ORS 653.261 & ORS 653.305
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 27-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 10-1997, f. & cert. ef. 11-26-97
BL 2-1997(Temp), f. & cert. ef. 7-21-97
BL 11-1991, f. & cert. ef. 10-31-91

Or. Admin. R. 839-021-0292 Permitted Hours of Work of Minors 16 and 17 Years of Age in Agriculture

(1) When a minor who is 16 or 17 years of age is employed to operate or assist in the operation of power-driven farm machinery or when such minor is employed to ride in or on power-driven farm machinery as provided in OAR 839-021-0276 to 839-021-0285, notwithstanding OAR 839-021-0067, the maximum number of hours the minor may work may not exceed:

(a) 25 hours a week during school weeks;

(b) From the last day of the most recently completed school year of the district in which the minor resides while employed in agriculture to the first day of the school year immediately following the most recently completed school year of the district in which the minor resides while employed in agriculture, 60 hours per week;

(2) As used in this rule, the terms "school week" and "school is in session" have the meaning given those phrases in OAR 839-021-0290(1).

(3) Notwithstanding section (1) of this rule, the Bureau may issue special permits to employers for the employment of minors 16 and 17 years of age in agriculture for more than the maximum number of hours provided in this rule when the Bureau determines that such hours of work will not be detrimental to the health and safety of the children so employed.

(a) An employer who wishes to employ a minor 16 and 17 years of age in agriculture for more than the maximum number of hours provided in this rule may apply in writing to the Bureau.

(b) The Bureau will investigate the employment and the facts and circumstances set out in the application. If the Bureau determines that the character of the employment is suitable and that the employment will not adversely affect the well-being of the minor, the Bureau will issue a Special Emergency Overtime Permit to the employer, setting out the terms and conditions of the permit and the period of time for which it will be effective.

(4) This rule does not regulate the daily starting and quitting times of minors who are 16 or 17 years of age who are employed in agriculture.

History

Statutory/Other Authority: ORS 651.060, ORS 653.040, ORS 653.261, ORS 653.305, ORS 653.307 & ORS 653.400
Statutes/Other Implemented: ORS 653.261 & ORS 653.305
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 10-1997, f. & cert. ef. 11-26-97
BL 2-1997(Temp), f. & cert. ef. 7-21-97
BL 11-1991, f. & cert. ef. 10-31-91

Or. Admin. R. 839-021-0293 Permitted Hours of Work When School Is in Session on a Year Around Basis of Minors Employed in Agriculture

When the schools in the school district in which the minor resides while employed in agriculture during the harvest season are in session on a year around basis and the minor is authorized by the district not to attend classes, for purposes of these rules, school is not in session for the minor.

History

Statutory/Other Authority: ORS 653.305 & 653.525
Statutes/Other Implemented: ORS 653.305
BL 11-1991, f. & cert. ef. 10-31-91

Or. Admin. R. 839-021-0294 Vocational Education and Cooperative Education Programs

When a student under 16 years of age is enrolled in a course of study and training in a cooperative vocational agricultural training program recognized by the State Board of Education, the Bureau may, upon consideration of the circumstances, issue a special permit authorizing the minor to work during the hours that school is in session. The permit will contain such conditions as the Bureau deems appropriate.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 11-1991, f. & cert. ef. 10-31-91

Or. Admin. R. 839-021-0297 Parental Exemption for Minors Employed in Agriculture

(1) Notwithstanding any other rule, minors of any age may be employed by their parent or person standing in the place of their parent at any time in any occupation on a farm owned or operated by their parent or person standing in the place of their parent.

(2) A person standing in the place of a parent includes the following persons:

(a) Grandfather, grandmother, uncle, aunt, brother or sister;

(b) A person who, having custody or control of the minor, is responsible for the minor’s care and financial support;

(c) An agricultural employer who employs a minor in agriculture while the minor lives and works on a farm during any school vacation period of three weeks or more.

(A) The employment arrangement must be agreed to by the agricultural employer and the parents, or other persons having custody or control of the minor; and

(B) A copy of the agreement must be filed with the Bureau.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 11-1991, f. & cert. ef. 10-31-91

Or. Admin. R. 839-021-0300 Definitions for Rules Regulating the Employment of Minors in the Entertainment Industry

As used in OAR 839-021-0300 to 839-021-0380 unless the context requires otherwise:

(1) “Employment of Minors in the Entertainment Industry” shall include engagements as an entertainer or performer in motion pictures, television, radio, still photography, recording, modeling, theatrical appearances, rodeos, musical performances and any other activity wherein minors perform to entertain the public. Such employment shall not include appearances in school activities, church pageants or other appearances where minors are not employed as an entertainer or performer. (Performances arising as a result of lessons or classes, for example, are not normally considered to be employment.)

(2) “Long Term Employment” means employment lasting or contemplated to last more than five working days.

(3) “Short Term Employment” means employment lasting or contemplated to last five working days or less.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.305
BL 6-1988, f. & cert. ef. 4-12-88
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0305 Application of Rules to Minors Employed in the Entertainment Industry

OAR 839-021-0001 to 839-021-0285 shall apply to the employment of minors in the entertainment industry. However, when there is a conflict between OAR 839-021-0001 to 839-021-0285 and 839-021-0300 to 839-021-0380, the latter shall apply.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.305
BL 6-1988, f. & cert. ef. 4-12-88
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0310 Employment Certificates for Minors Employed in the Entertainment Industry

(1) When minors are employed in the entertainment industry in long term employment, employers must obtain employment certificates in accordance with OAR 839-021-0220 to 839-021-0248.

(2) When minors are employed in the entertainment industry in short term employment, employers may obtain a special permit pursuant to OAR 839-021-0255 or an Employment Certificate in accordance with 839-021-0220 to 839-021-0248.

(3) A registered employer (see OAR 839-021-0320) is not required to obtain a special permit for minors employed in short term employment when all of the following conditions are met:

(a) The employment is in connection with the production of commercial advertising in any media including, but not limited to, radio, television, newspaper or magazines; or

(b) The employment is in connection with films or other entertainment productions which are produced for education, training, or institutional purposes or documentaries; and

(d) The duties to be performed are not prohibited by any law or rule; and

(e) The permission of a parent has been obtained.

History

Statutory/Other Authority: ORS 653.305 & 653.525
Statutes/Other Implemented: ORS 653.307
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 3-1995, f. 9-8-95, cert. ef. 9-9-95
BL 6-1988, f. & cert. ef. 4-12-88
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0315 Special Hours Variances for Entertainment Industry Employers

Employers, including employers registered under OAR 839-021-0320, must apply for a special hours variance when the contemplated employment will exceed the maximum hours prescribed in OAR 839-021-0335. Employers must address a letter application to the Bureau of Labor and Industries setting out the full and complete circumstances of the proposed employment and the reasons why a special hours variance is being requested.

History

Statutory/Other Authority: ORS 651.060, ORS 653.040, ORS 653.261 & ORS 653.305
Statutes/Other Implemented: ORS 653.261, ORS 653.305, ORS 653.307 & ORS 653.400
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 3-1995, f. 9-8-95, cert. ef. 9-9-95
BL 6-1988, f. & cert. ef. 4-12-88
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0320 Registration of Employers of Minors in the Entertainment Industry

(1) In circumstances involving the employment of minors in short term employment, employers may satisfy the requirements of OAR 839-021-0310 by obtaining a registration certificate.

(2) Employers may apply for a registration certificate at any time and may apply to renew their registration by July 1 of each year. The registration will be effective through the following June 30.

(3) To register, an employer may obtain an application form from any office of the Bureau. Upon completion, the application must be filed with the Child Labor Unit of the Wage and Hour Division. The application form will be prescribed by the Bureau and will include, but not be limited to, space for:

(a) The employer's name, permanent address, and telephone number; and

(b) The Oregon address and telephone number if different from permanent address and telephone number; and

(d) A brief history of company; and

(e) A description of the kinds of events, activities, or productions contemplated which may involve the employment of minors in short term employment; and

(f) An estimate of the ages and number of minors that may be employed in short term employment; and

(g) A brief description of the types of work expected of such minors; and

(h) A statement that the employer agrees to comply with the provisions of ORS 653.010 to 653.545, OAR 839-021-0001 to 839-021-0500 and any terms and conditions specified by the Bureau;

(i) Name and address of workers' compensation insurer and policy or binder number;

(j) Other information as will assure the Bureau that employment of minors by the employer will be in compliance with any law or rule concerning the employment of minors; and

(k) The signature of the applicant.

(4) No less than 24 hours prior to the employment of minors for a short duration, the registered employer must notify the Child Labor Unit of the Wage and Hour Division. The notification may be accomplished by letter, in person or by telephone and must include:

(a) Approximate number of minors to be employed;

(b) Approximate ages of minors to be employed;

(d) Approximate hours the minors will work;

(e) Dates the minors are to be employed;

(f) The physical location where the work is to be performed.

(5) In the case of a renewal application, the employer must submit with the application, a report of minors employed during the previous year. The report must include, but not be limited to, the following information:

(a) The number of minors employed in short term employment pursuant to OAR 839-021-0310(3);

(b) Whether any worker's compensation insurance claims were filed by or for any minors while employed by the employer and the number of such claims;

(6) The Bureau will conduct an investigation of the facts and circumstances set out in the application for the registration certificate and may issue a certificate to the employer provided the provisions of OAR 839-021-0001 to 839-021-0500 have been met.

(a) The Bureau may set such terms and conditions upon the issuance of the certificate as the Bureau deems necessary or appropriate.

(b) The Bureau may refuse to issue or renew a certificate when it appears to the Bureau that the provisions of OAR 839-021-0001 to 839-021-0500 are not met or when the employer has violated any law or rule pertaining to the employment of minors.

(7) If the facts and circumstances or conditions under which the certificate is issued change, the employer must notify the Bureau of the change. The Bureau may modify the terms and conditions of the certificate, if any.

(8) The Bureau may require the removal of minors from the employment of a registered employer when it appears to the Bureau that the employer has failed to comply with any law or rule pertaining to the employment of minors.

(9) Prior to the removal of minors as indicated in section (8) of this rule, the Bureau will consider the following factors:

(a) The past history of the employer in taking all necessary measures to prevent or correct violations of statutes and rules; and

(b) Past violations, if any, of statutes and rules; and

(d) Any other mitigating circumstances.

(10) When a registered employer is required by the Bureau to remove the minor employees from employment, the employer may request a hearing in accordance with OAR 839-022-0000 to 839-022-0060.

(11) The Bureau may revoke the registration certificate when it determines that the employer failed to comply with any rule of the commission or law covering the employment of minors. The employer must be accorded the opportunity of a hearing in accordance with OAR 839-022-0000 to 839-022-0060.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 19-2021, minor correction filed 10/14/2021, effective 10/14/2021
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 4-1998, f. & cert. ef. 3-5-98
BL 6-1988, f. & cert. ef. 4-12-88
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0325 School Releases, Instruction Requirements and Waivers for Minors Employed in the Entertainment Industry

(1) The employer must obtain a release from the Superintendent, or designee, of the school district in which the minor's school is located, when the employment requires the minor's absence from school for more than five days.

(2) The employer must provide minors under 16 years of age with no less than three hours of instruction per day, excluding Saturday and Sunday. The instruction must be provided by a teacher certified to teach in Oregon or, when the minors travel to Oregon from another state, certified to teach such minors in the state where the minors normally attend school. The instruction must be provided under the following circumstances:

(a) When the school the minor is attending is in session; and

(b) When the employment requires the minor's absence from school for more than five days.

(3) The employer is responsible for ensuring that adequate instruction is provided to minors under 16 years of age. If adequate instruction is not available at the job site, the employer must provide the minors with relief from their duties for the purpose of attending a school. As used in this section, "adequate instruction" means educational instruction of no less than three hours per day which is provided by a teacher certified to teach as indicated in section (2) of this rule.

(4) The employer may apply to the Bureau for a special waiver from the provisions of sections (1) and (2) of this rule by submitting a letter application to the Bureau setting out the reasons for the waiver request. In the case of an emergency, the employer may make an application by telephone by calling the Child Labor Unit of the Wage and Hour Division and setting out the reasons for the waiver request. The Bureau may temporarily grant or deny the application.

(5) As the Bureau does not have the authority to certify persons to teach minors, interested persons should contact the Oregon Teacher Standards and Practices Commission for information regarding the teaching certification requirements in Oregon.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 20-2021, minor correction filed 10/14/2021, effective 10/14/2021
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 4-1998, f. & cert. ef. 3-5-98
BL 6-1988, f. & cert. ef. 4-12-88
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0330 Supervision of Minors Employed in the Entertainment Industry

(1) The employer must provide appropriate care and supervision of each minor at all times during the minor's employment.

(2) The employer must provide a sufficient number of supervisors to ensure the safety of the minors employed. The following number of supervisors is considered to be sufficient to ensure the safety of the minors:

(a) At least one supervisor for nine or fewer minors employed;

(b) At least one supervisor for each multiple of ten, or part thereof, minors employed;

(3) Example of the minimum number of supervisors required by section (2) of this rule:

(a) At least one, not more than nine minors employed — Numbers of supervisors required: One;

(b) At least ten, not more than 19 minors employed — Number of supervisors required: Two;

(d) At least 30, not more than 39 minors employed — Number of supervisors required: Four.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 6-1988, f. & cert. ef. 4-12-88
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0335 Working Hours of Minors Employed in the Entertainment Industry

(1) No minor may be employed to work more than six consecutive days.

(2) For purposes of determining the number of consecutive days of work, the following days will be considered as work days:

(a) Days when the transportation of the minor is more than four hours duration;

(b) Days the minor attends school and does not work.

(3) Example of determining the number of days:

(a) Travel Days: Three hours on one day — School Days: Three — Work Days: Two — Total: Five;

(b) Travel Days: Five hours on one day — School Days: Two — Work Days: Three — Total: Six.

(4) The allowed time at the place of employment as used in this section includes transportation between the employer's studio (or location headquarters) and any location. This time also includes any makeup, hairdress, wardrobe and rehearsal time as required by the employer.

(5) When a school which the minor regularly attends is in session, the minor will be permitted at the place of employment according to the following schedule:

(a) Ages 14–17: 11 hours a day including rest and meal breaks and, when required, an average of three hours of instruction;

(b) Ages 10–13: Ten hours a day including rest and meal breaks and, when required, an average of three hours of instruction;

(c) Ages 6–9: Nine hours a day including rest and meal breaks and, when required, an average of three hours of instruction;

(d) Ages 4–5: Seven hours a day, or eight hours a day if the minor is transported, including meal breaks and an average of three hours of rest, recreation, and instruction when required. Where the minor is enrolled in the first grade or above, an average of three hours of instruction must be provided when required.

(6) When the school in which the minor is enrolled is not in session, the minor will be permitted at the place of employment according to the following schedule:

(a) Ages 14–17: 11 hours a day including rest and meal breaks;

(b) Ages 10–13: Ten hours a day including three hours of rest, recreation, and meal breaks;

(d) Ages 4–5: Seven hours a day including three hours of rest, recreation, and meal breaks, or up to eight hours a day if the minor is transported;

(e) Ages 2–3: Six hours a day including three hours of rest, recreation, and meal breaks;

(f) Ages 1–2: Five hours a day including 2-1/2 hours of rest and recreation and meal breaks;

(g) Ages over six months– one: Four hours a day including two hours of rest and recreation and meal breaks;

(h) Ages 15 days–six months: Two hours a day, no more than 20 minutes of which will be spent as work time.

(7) The minor's working day must end according to the following schedule:

(a) Ages over six months–5: 6:30 p.m.;

(b) Ages 6–8: 7:30 p.m.;

(d) Ages 11–14: 9:30 p.m.;

(e) Ages 15–17: 10:00 p.m. on evenings preceding a day in which the minor will attend the school in which he or she is enrolled; 12:30 a.m. in all other circumstances.

(8) Infants over the age of 15 days and up to and including six months may only work between the hours of 9:00 a.m. and 4:30 p.m.

(9) Minors over the age of six months and under 14 years may not commence their working days prior to 7:00 a.m. Minors between the ages of 14 and 18 years may not commence their working day prior to 5:30 a.m.

(10) A minor must receive a 12 hour rest break at the end of the minor's working day and prior to the commencement of the minor's next day of work or attendance at regular school.

(11) The employer may apply to the Bureau for a special waiver from the provisions of sections (1) through (9) of this rule by submitting a letter application to the Bureau setting out the reasons for the waiver request. In the case of an emergency, the employer may make an application by telephone by calling the Child Labor Unit of the Wage and Hour Division and setting out the reasons for the waiver request. The Bureau may temporarily grant or deny the application.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 22-2021, minor correction filed 10/14/2021, effective 10/14/2021
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 4-1998, f. & cert. ef. 3-5-98
BL 13-1993, f. 10-29-93, cert. ef. 11-1-93
Reverted to BL 6-1988, f & cert. ef. 4-12-88
BL 3-1993(Temp), f. & cert. ef. 4-2-93
BL 6-1988, f & cert. ef. 4-12-88
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0340 Rest Periods for Minors Employed in the Entertainment Industry

Employers shall provide minors with rest periods as prescribed by OAR 839-021-0072(2).

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0345 Meal Periods for Minors Employed in the Entertainment Industry

Employers shall provide minors with meal periods as prescribed by OAR 839-021-0072(1).

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0350 Other Working Conditions for Minors Employed in the Entertainment Industry

(1) Employers shall, at any time, allow parents or legal guardians access to their minor children employed in the entertainment industry.

(2) Employers must provide the following:

(a) A safe and secure place for minors to rest and play; and

(b) Suitable nursery and rest facilities.

(3) Minors under six months of age may not be exposed to lights of greater than 100 foot candle-light intensity for more than thirty seconds at a time.

(4) Employers shall provide worker's compensation insurance coverage for all minors in accordance with the laws of the State of Oregon.

(5) Transportation to the closest medical facility providing emergency services must be available at all times while minors are present.

(6) On location, the employer shall provide return transportation for the minor promptly upon dismissal.

(7) Employers shall comply with all statutes and rules concerning the employment of minors.

(8) No employer shall expose a minor to undue emotional stress while employing a minor in the entertainment industry.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0355 Prohibited Performances of Minors Employed in the Entertainment Industry

(1) No employer may employ a minor in the entertainment industry in any occupation declared particularly hazardous pursuant to OAR 839-021-0102 and 839-021-0104 or in employment prohibited by 839-021-0097 and 839-021-0276 to 839-021-0285. However, a safe simulation of such employment may be allowed.

(2) Minors under fifteen days of age may not be employed in the entertainment industry.

(3) Minors under one year of age may not be employed in the entertainment industry unless the employer can demonstrate a need for such minor. A separate letter of application must be submitted to the Bureau setting forth the details of the needed employment. The letter must include:

(a) A complete description of the action in which the minor is expected to participate; and

(b) Certification that the minor will not be engaged for longer than the hours allowed by OAR 839-021-0335; and

(d) A signed statement from a physician licensed by the Oregon State Board of Health attesting that the minor is physically able to perform the expected duties. The physician's statement must be accompanied by the physician's complete address and the physician's agreement to furnish the Bureau of Labor and Industries with any or all of the information necessary to confirm the particulars of such statement.

(4) No employer may employ a minor under one year of age in the entertainment industry unless a registered nurse is present and available to the minor at all times while the minor is present.

(5) No employer may employ a minor in the entertainment industry when the employment would place the minor in a clear and present danger to life and limb. If the minor believes there exists such danger, the employer must, at the same time, discuss the matter with the minor and the minor's parent or guardian together. If the minor persists in the belief that a clear and present danger to life and limb exists, regardless of its validity, the employer must not require the minor to perform the activity the minor believes will present such danger.

(6) No employer may employ a minor to participate in a performance in the entertainment industry unless the minor has been trained to portray it safely.

(7) No employer may employ a minor to participate in, or be present during, a performance or the depiction of a performance in violation of ORS 163.665 to 163.695 or 167.060 to 167.095.

(8) No employer may employ a minor in a place of public amusement or entertainment in violation of ORS 167.830 to 167.840.

(9) No employer may employ a minor to be exhibited in a trance.

(10) Notwithstanding the provisions of OAR 839-021-0102 and this rule, upon written request, the Bureau may, for good cause shown, exempt the employment of a minor under 16 years of age in the entertainment industry from the provisions of OAR 839-021-0102 after determining that the exemption will not be detrimental to the health or safety of the minor affected. The exemption will be granted only under circumstances including but not limited to the following:

(a) The employment is not in violation of federal child labor regulations;

(b) The minor employee is adequately trained to perform the duties requested;

(d) The parent or person standing in the place of the minor's parent has given written consent for the employment of the minor to perform duties otherwise prohibited; and

(e) The employer complies with all other applicable provisions of laws and rules.

History

Statutory/Other Authority: ORS 651.060, ORS 653.040, ORS 653.261, ORS 653.305, ORS 653.307 & ORS 653.400
Statutes/Other Implemented: ORS 653.261 & ORS 653.305
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 19-2010, f. 9-28-10, cert. ef. 10-1-10
BLI 1-2005, f. & cert. ef. 1-3-05
BLI 10-2004(Temp), f. & cert. ef. 7-29-04 thru 1-24-05
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 6-1988, f. & cert. ef. 4-12-88
BL 9-1984, f. & cert. ef. 8-7-84

Or. Admin. R. 839-021-0360 Refusal of Special Permits, Hours Variances or Employment Certificates in the Entertainment Industry

When it appears to the Bureau that the proposed employment would be prohibited by OAR 839-021-0355, the Bureau may refuse to issue any special permit, hours variance or employment certificate.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BL 3-1995, f. 9-8-95, cert. ef. 9-9-95
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0365 Records Required to Be Maintained by Employers of Minors in the Entertainment Industry

(1) Employers, including registered employers, employing minors in long-term employment and unregistered employers employing minors in short-term employment must maintain the following records for a period of two years from the date of initial employment:

(a) Name, address and telephone number of all minors employed;

(b) Total hours worked each day and each week;

(d) Age of each minor;

(e) Date authorized to employ such minors by the Bureau;

(f) Rate of wage and total wages paid each week;

(g) Any deductions, rebates or refunds taken from an employee's total wages and the net amount of wages paid;

(h) Any payroll or other such records pertaining to the employment of minors.

(2) Registered employers employing minors in a single engagement in short term employment must comply with section (1) of this rule. When, in a single engagement, the number of minors employed is more than five, the registered employer must maintain the following records for a period of two years from the date employment began on the particular engagement:

(a) Total number of minors employed on the engagement;

(b) Dates the minors were employed;

(d) Date notification made to the Child Labor Unit pursuant to OAR 839-021-0320(4).

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 4-1998, f. & cert. ef. 3-5-98
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0370 Records Required to Be Made Available by Employers of Minors in the Entertainment Industry

All employers must make available to representatives of the Wage and Hour Division of the Bureau, records necessary to determine whether the employer is complying with OAR 839-021-0300 to 839-021-0375. Such records include, but are not limited to, the records described in 839-021-0365. Such records must be made available to such representatives for inspection and transcription during normal business hours.

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 6-1988, f. & cert. ef. 4-12-88
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0375 Posting Requirements for Employers of Minors in the Entertainment Industry

In addition to other postings required by law, registered employers must post the Registration Certificate in a conspicuous place at their place of business.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.315(4) & 653.320(4)
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0490 Penalties That May Be Imposed for Violations of ORS 653.305 to 653.340 or OAR 839-021-0210 to 839-021-0248

(1) In addition to any civil penalties which may be assessed by the Commissioner pursuant to ORS 653.370, the Bureau may, at its discretion, revoke the right of an employer to hire minors in the future if it is determined by the Bureau that the employer has failed to comply with the provisions of 653.305 to 653.340 or with OAR 839-021-0210 to 839-021-0248.

(2) Prior to the revocation of the right to employ minors in the future an employer may request a contested case hearing pursuant to the Administrative Procedures Act (ORS Chapter 183).

History

Statutory/Other Authority: ORS 651.060(4) & 653.261
Statutes/Other Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013) & ORS 653
BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14
BL 6-1988, f. & cert. ef. 4-12-88, Renumbered from 839-021-0380
BL 9-1984, f. & ef. 8-7-84

Or. Admin. R. 839-021-0500 Exemptions

The provisions of ORS 653.305 to 653.370 and OAR 839-021-0001 to 839-021-0500 do not apply to employers employing minors in the following work or occupations:

(1) Domestic work or chores in or about a private residence.

(2) Newspaper carrier.

(3) Newspaper vendor.

(4) Persons under 18 years of age serving as a referee or assistant referee in a youth or adult recreational soccer match.

History

Statutory/Other Authority: ORS 653
Statutes/Other Implemented: ORS 653.315 & 653.355
BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02
BLI 3-2002, f. 1-23-02, cert. ef. 1-24-02
BL 6-1988, f. & cert. ef. 4-12-88

Division 25 PREVAILING WAGE RATES ON PUBLIC WORKS

Or. Admin. R. 839-025-0000 Notice of Proposed Rules

(1) Prior to the permanent adoption, amendment, or repeal of any rule relating to Prevailing Wage Rates on Public Works, the Bureau of Labor and Industries must give notice of intended action as required in OAR 839-002-0002.

(2) The notice provisions in OAR 839-002-0002 do not apply to the determination of prevailing wage rates pursuant to ORS 279C.815(2) or to the adoption of such rates as rule amendments to OAR 839-025-0700 and 839-025-0750.

History

Statutory/Other Authority: ORS 279 & 651.060(4)
Statutes/Other Implemented: ORS 279.348 - 279.380
Renumbered from 839-016-0000, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 9-2004, f. 7-26-04, cert. ef. 7-27-04
BLI 15-2001, f. & cert. ef. 11-14-01
Reverted to BL 3-1996, f. & cert. ef. 1-26-96
BLI 26-2000(Temp), f. 12-19-00, cert. ef. 12-20-00 thru 6-18-01
BL 3-1996, f. & cert. ef. 1-26-96
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0003 Forms; Availability; Submittal

All forms referenced in these rules may be obtained on the Bureau's website: www.oregon.gov/boli.

History

Statutory/Other Authority: ORS 279C.808, ORS 651.060 & ORS 653.040
Statutes/Other Implemented: ORS 279C.808, ORS 651.060 & ORS 653.040
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06
Renumbered from 839-016-0003, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02

Or. Admin. R. 839-025-0004 Definitions Generally

As used in OAR chapter 839, division 25, unless the context requires otherwise:

(1) "Apprentice" means:

(a) A person who is individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Office of Apprenticeship (OA), or with any state apprenticeship agency recognized by OA, and who is employed by a training agent and is working pursuant to the standards of the apprentice’s apprenticeship program; or

(b) A person in probationary employment as an apprentice in such an apprenticeship program, but who is not individually registered in the program, but who has been certified by the OA or a state apprenticeship agency to be eligible for probationary employment as an apprentice, and who is employed by a training agent and is working pursuant to the standards of the apprentice’s apprenticeship program.

(2) “Assembly” means the fitting together of various parts so as to make into an operative whole.

(3) "The Basic Hourly Rate of Pay" or "Hourly Rate" means the rate of hourly wage, excluding fringe benefits, paid to the worker.

(4)(a) “Bespoke” means work that is performed according to individualized specifications that are contained in a public works contract or related documents, including contract plans.

(b) “Bespoke” does not include work that:

(A) Is performed before the issuance of the public works solicitation;

(B) Creates a manufactured dwelling as defined in ORS 446.003;

(C) Creates volumetric modular housing that is based exclusively on standard designs or standard dimensions, without modification. As used in this paragraph, “volumetric modular housing” means dwellings built from prefabricated, three-dimensional modules constructed in a factory;

(D) Creates mass timber products that are based exclusively on standard designs or standard dimensions, without modification;

(E) Creates or applies concrete, asphalt, or aggregate material and the products derived from that material;

(F) Creates or applies paint color; or

(G) Creates applied art as described in OAR 839-025-0150(2).

(5) "Bureau" means the Bureau of Labor and Industries.

(6) “Collective bargaining agreement in effect” means a collective bargaining agreement that is recognized as being binding on all parties by the National Labor Relations Board, that is enforceable within the geographic area in which the public improvement is located, and the terms of which extend to workers who are working on the public improvement project.

(7) "Commissioner" means the Commissioner of the Bureau of Labor and Industries, or designee.

(8) "Construction" means the initial construction of buildings and other structures, or additions thereto, and of highways and roads. "Construction" does not include the transportation of material or supplies to or from the public works project by employees of a construction contractor or construction subcontractor.

(9) “Contractor” or “subcontractor” includes any person who employs workers to perform work on a public works pursuant to a public works contract.

(10) “Demolition” includes the dismantling, razing, destroying, wrecking or removal of buildings or other structures or any part thereof, and of highways and roads.

(11) "Division" means the Wage and Hour Division of the Bureau of Labor and Industries.

(12) "Employ" includes to suffer or permit to work.

(13) “Fabrication” means to create or construct an item from diverse parts.

(14) "Fringe benefits" means the amount of:

(a) The rate of contribution irrevocably made on a “regular basis” and “not less often than quarterly,” as those terms are defined in OAR 839-025-0043, by a contractor or subcontractor to a trustee or to a third person pursuant to a plan, fund or program; and

(b) The rate of costs to the contractor or subcontractor which may be reasonably anticipated in providing benefits to workers pursuant to an enforceable commitment to carry out a financially responsible plan or program which is committed in writing to the workers affected, for medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, for unemployment benefits, life insurance, disability and sickness insurance or accident insurance, for vacation and holiday pay, for defraying costs of apprenticeship or other similar programs or for other bona fide fringe benefits, but only where the contractor or subcontractor is not required by other federal, state or local law to provide any of such benefits. Other bona fide fringe benefits do not include reimbursement to workers for meals, lodging or other travel expenses, nor contributions to industry advancement funds (CIAF for example), drug testing or union dues.

(15)(a) "Funds of a public agency" includes any funds of a public agency that are directly or indirectly used, as described below.

(A) "Directly used funds of a public agency" means revenue, money, or that which can be valued in money collected for a public agency or derived from a public agency's immediate custody and control, and, except as provided in ORS 279C.810(1)(a)(H) and (J) and subsection (b) of this section, includes but is not limited to any money loaned by a public agency, including the loan of proceeds from the sale of conduit or pass-through revenue bonds for the specific purpose of financing a project, and public property or other assets used as payment for all or part of a project.

(B) "Indirectly used funds of a public agency" means, except as provided in subsection (b) of this section, that a public agency ultimately bears the cost of all or part of the project, even if a public agency is not paying for the project directly or completing payment at the time it occurs or shortly thereafter. A public agency does not indirectly use funds of a public agency when it elects not to collect land rent that is due. Examples of when an agency "ultimately bears the cost" of all or part of a project include but are not limited to:

(i) Amortizing the costs of construction over the life of a lease and paying these costs with funds of a public agency during the course of the lease;

(ii) A public agency subsidizing the costs of construction that would normally be borne by the contractor;

(iii) Using insurance proceeds that belong to a public agency to pay for construction. Insurance proceeds represent "money collected for the custody and control of a public agency" and therefore are funds of a public agency, whether the contractor obtains payment directly from the insurance company or the public agency; or

(iv) Using or creating a private entity as a conduit for funding a project when the private entity is in fact an alter ego of the public agency.

(b) "Funds of a public agency" does not include:

(A) Funds provided in the form of a government grant to a nonprofit organization, unless the government grant is issued for the purpose of construction, reconstruction, major renovation or painting;

(B) Building and development permit fees paid or waived by the public agency;

(D) Land that a public agency sells to a private entity at fair market value;

(E) The difference between:

(i) The value of land that a public agency sells to a private entity as determined at the time of the sale after taking into account any plan, requirement, covenant, condition, restriction or other limitation, exclusive of zoning or land use regulations, that the public agency imposes on the development or use of the land; and

(ii) The fair market value of the land if the land is not subject to the limitations described in subparagraph (i) of this paragraph;

(F) Staff resources of the public agency used to manage a project or to provide a principal source of supervision, coordination or oversight of a project;

(G) Staff resources of the public agency used to design or inspect one or more components of a project;

(H) Moneys derived from the sale of bonds that are loaned by a state agency to a private entity, unless the moneys will be used for a public improvement;

(I) Value added to land as a consequence of a public agency's site preparation, demolition of real property or remediation or removal of environmental contamination, except for value added in excess of the expenses the public agency incurred in the site preparation, demolition or remediation or removal when the land is sold for use in a project otherwise subject to ORS 279C.800 to 279C.870; or

(J) Bonds, or loans from the proceeds of bonds, issued in accordance with ORS Chapter 289 or 441.525 to 441.595, unless the bonds or loans will be used for a public improvement.

(16) “Hazardous waste” has the meaning given in OAR 340-100-0010.

(17) “Highest rate of wage among collective bargaining agreements” is the highest rate of wage when combining the hourly rate plus the fringe benefits.

(18) "Housing" has the meaning given that term in ORS 456.055.

(19) "Labor organization" means any organization certified as such by the National Labor Relations Board.

(20)(a) “Locality” has the meaning given that term in ORS 279C.800.

(b) For an “electrical worker” as defined in ORS 279C.815, geographic areas are determined in accordance with ORS 279C.815(2)(b).

(21) "Major renovation" means the remodeling or alteration of buildings and other structures within the framework of an existing building or structure and the alteration of existing highways and roads, the contract price of which exceeds $50,000.

(22) "Nonprofit organization," as used in section (15)(b)(A) of this rule, means an organization or group of organizations described in section 501(c)(3) of the Internal Revenue Code that is exempt from income tax under section 501(a) of the Internal Revenue Code.

(23) "Normal business hours" means the hours during which the office of the contractor or subcontractor is normally open for business. In the absence of evidence to the contrary, the Division will consider the hours between 8:00 a.m. and 5:00 p.m., excluding the hours between 12:00 noon and 1:00 p.m., on weekdays as normal business hours.

(24) "Overtime" means all hours worked:

(a) On Saturdays;

(b) On the following legal holidays:

(A) Each Sunday;

(B) New Year's Day on January 1;

(D) Independence Day on July 4;

(E) Labor Day on the first Monday in September;

(F) Thanksgiving Day on the fourth Thursday in November;

(G) Christmas Day on December 25.

(d) Over eight (8) hours in a day; or

(e) Over 10 hours in a day provided:

(A) The employer has established a work schedule of four consecutive days (Monday through Thursday or Tuesday through Friday) pursuant to OAR 839-025-0034; and

(B) The employer operates in accordance with this established work schedule.

(25) "Overtime rate" means the basic hourly rate of pay multiplied by one and one-half.

(26) "Overtime wages" means the overtime hours worked multiplied by the overtime rate.

(27) "Person" includes a public or private corporation, a partnership, a sole proprietorship, a limited liability company, a government or governmental instrumentality.

(28) "Prevailing wage rate claim" means a claim for wages filed by a worker with the Division.

(29) "Public agency" means the State of Oregon or any political subdivision thereof or any county, city, district, authority, public corporation or entity and any instrumentality thereof organized and existing under law or charter.

(30)(a) "Public work," "public works," or "public works project" includes but is not limited to:

(A) Roads, highways, buildings, structures and improvements of all types for which a public agency contracts or carries on construction, reconstruction, major renovation, demolition, removal of hazardous waste or painting to serve the public interest;

(B) A project for constructing, reconstructing, painting, demolishing, removing hazardous waste from, or performing a major renovation on a road, highway, building, structure or improvement of any type that uses $750,000 or more of funds of a public agency;

(C) A project for the construction of a privately owned road, highway, building, structure or improvement of any type that uses funds of a private entity and in which 25 percent or more of the square footage of the completed project will be occupied or used by a public agency;

(D) A device, structure, or mechanism, or a combination of devices, structures, or mechanisms that:

(i) Uses solar radiation as a source for generating heat, cooling, or electrical energy; and

(ii) Is constructed or installed, with or without using funds of a public agency, on land, premises, structures, or buildings that a public agency owns, regardless of the total project cost;

(E) A project for the construction, reconstruction, painting, demolition, removal of hazardous waste from, or major renovation of, a road, highway, building, structure, or improvement of any type that occurs, with or without using funds of a public agency, on real property that a public university listed in ORS 352.002 owns;

(F) Demolition of, or removal of hazardous waste from, a road, highway, building, structure or improvement of any type that uses $750,000 or more in funds of a public agency, or that occurs on real property that a state agency owns, but that does not involve constructing, reconstructing, renovating or painting a road, highway, building, structure, or improvement;

(G) Fabrication, assembly, preconstruction or construction that is:

(i) Bespoke;

(ii) Performed offsite;

(iii) Performed specifically for, and in accordance with the specifications of, a particular project of a type listed in subparagraphs (A) to (F) of this paragraph; and

(iv) Performed on any of the following systems or components:

(I) Mechanical systems such as heating, ventilation, air conditioning, refrigeration and other ducting or piping systems or components;

(II) Plumbing systems or components;

(III) Electrical systems or components of electrical systems that conform with the requirements of ORS 479.510 to 479.945 and the rules of the Electrical and Elevator Board;

(IV) Boiler systems or components of boiler systems;

(V) Ornamental and structural iron work;

(VI) Masonry and plaster systems or components;

(VII) Roofing, flashing and architectural panel systems or components other than glazing systems and components; or

(VIII) Mechanical insulation; or

(H) Pursuant to ORS 352.138(4)(b), a project resulting from an agreement under the terms of which a private entity constructs, reconstructs, renovates or paints an improvement of any type that occurs, with or without using funds of a public agency, on real property owned by a public university listed in ORS 352.002 or by a nonprofit organization or other entity that a public university listed in ORS 352.002 owns or controls exclusively.

(b) "Public work,” “public works,” or “public works project” does not include reconstructing or renovating privately owned property that a public agency leases.

(31) "Public works contract" or "contract" means any contract, agreement or understanding, written or oral, to perform work on a public work.

(32) "Reconstruction" means highway and road resurfacing and rebuilding, the restoration of existing highways and roads, and the restoration of buildings and other structures.

(33) "Reconstruction or renovation of privately owned property which is leased by a public agency" includes improvements of all types within the framework or footprint of an existing building or structure.

(34)(a) "Residential construction project" means a public works project for the construction, reconstruction, major renovation or painting of a single family house or apartment building of not more than four (4) stories in height and all incidental items such as site work, parking areas, utilities, streets and sidewalks pursuant to the U.S. Department of Labor's "All Agency Memorandum No. 130" -- "Application Of The Standard of Comparison 'Projects Of a Character Similar' Under the Davis-Bacon and Related Acts" dated March 17, 1978, and “All Agency Memorandum No. 131” “Clarification of All Agency Memorandum No. 130” dated July 14, 1978. (See Appendix 6.)

(b) Notwithstanding the provisions of subsection (a) of this section, where it is determined that a different definition of "residential construction" has been adopted by local ordinance or code, or that the prevailing practice of a particular trade or occupation regarding what is considered "residential construction" differs from the U.S. Department of Labor definition of residential construction, the commissioner may consider such information in determining a project to be a "residential construction project."

(35) “Satellite location” means a site where work subject to section (30)(a)(G) of this rule is performed.

(36) "Site of work" is defined as follows:

(a) The site of work is limited to the physical place or places where the construction, reconstruction, major renovation or painting called for in the contract will remain when work on it has been completed, or the physical place or places where the demolition or hazardous waste removal called for in the contract will be performed, and other adjacent or nearby property used by the contractor or subcontractor for such work which can reasonably be said to be included in the site.

(b) Except as provided in subsection (c) of this section, fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards and similar facilities, are part of the site of work provided they are dedicated exclusively, or nearly so, to the performance of the contract or project, and are so located in proximity to the actual construction location that it would be reasonable to include them. Such facilities which are established by a supplier of materials for the project after the opening of bids are deemed to be dedicated exclusively to the performance of the contract or project.

(c) Not included in the site of work are satellite locations, permanent home offices, branch plant establishments, fabrication plants, and tool yards of a contractor or subcontractor whose locations and continuance in operation are determined wholly without regard to a particular contract or project. In addition, fabrication plants, batch plants, borrow pits, job headquarters, tool yards, and similar facilities of a commercial supplier or materialman which are established by a supplier of materials for the project before opening of bids and not on the project site, are not included in the site of work. Such permanent, previously established facilities are not part of the site of the work, even where the operations for a period of time may be dedicated exclusively, or nearly so, to the performance of a contract or project.

(37) "Special wage determination" means a wage determination made at the request of a public agency and which is applicable only to specific job classes. A special wage determination is issued in those cases where there is no current wage determination applicable to specific job classes and the use of such job classes is contemplated on a public works project.

(38) "Staff resources of a public agency" means employees of the public agency who may manage, supervise or oversee a project or employees of the public agency used to design or inspect one or more components of a project, but not persons with whom a public agency contracts to perform such services.

(39) "Trade" or "occupation" is defined in accordance with the prevailing practices of the construction industry in Oregon.

(40) "Trainee" means a person registered and receiving on-the-job training in a construction occupation under a program which has been approved in advance by the U.S. Department of Labor, Office of Apprenticeship (OA), as meeting its standards for on-the-job training programs, and which has been so certified by that office, and who is employed by a training agent and is working pursuant to the standards of the trainee’s program.

(41) “Training agent” means an employer that is registered with a local joint committee and the Apprenticeship and Training Division of the Bureau of Labor and Industries.

(42) "Wage determination" includes the original decision and any subsequent amendments made by the commissioner in accordance with ORS 279C.815.

(43) "Wages" or "Prevailing Wages" means the basic hourly rate of pay and fringe benefits as defined in this rule.

(44) "Worker" means a person employed on a public works project and whose duties are manual or physical in nature (including those workers who use tools or who are performing the work of a trade), as distinguished from mental, professional or managerial. The term "worker" includes apprentices, trainees and any person employed or working on a public works project in a trade or occupation for which the commissioner has determined a prevailing rate of wage.

History

Statutory/Other Authority: ORS 651.060 & ORS 279C.808
Statutes/Other Implemented: ORS 279C.800 - 279C.870
BLI 5-2026, amend filed 06/12/2026, effective 07/01/2026
BLI 2-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 4-2022, amend filed 03/24/2022, effective 04/10/2022
BLI 16-2021, temporary amend filed 10/11/2021, effective 10/12/2021 through 04/09/2022
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 2-2016, f. & cert. ef. 3-31-16
BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11
BLI 42-2007, f.12-28-07, cert. ef. 1-1-08
BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru 1-27-08
BLI 39-2006, f. 11-8-06, cert. ef. 11-10-06
BLI 19-2006(Temp), f. 5-12-06, cert. ef. 5-15-06 thru 11-10-06
BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06
Renumbered from 839-016-0004, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BLI 15-2001, f. & cert. ef. 11-14-01
BL 1-1998, f. & cert. ef. 1-5-98
BL 3-1997(Temp), f. 7-31-97, cert. ef. 8-1-97
BL 8-1996, f. 8-26-96, cert. ef. 9-1-96
BL 3-1996, f. & cert. ef. 1-26-96
BL 5-1990, f. 3-30-90, cert. ef. 4-1-90
BL 7-1989(Temp), f. 10-2-89, cert. ef. 10-3-89
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0005 Purpose and Procedure for Determination Requests

(1) A request for a determination as to whether a project or proposed project is a public works under ORS 279C.817, must meet the following requirements before it will be considered by the Bureau:

(a) The request must be in writing and describe all relevant details of the project or proposed project.

(b) A copy of the request must be sent to any public agency known to be associated with the project at the time it is submitted to the Bureau. The request must identify the public agencies receiving a copy of the request.

(c) In addition to the written request, the requester must provide all documents, records, and other information necessary to enable the Bureau to make the determination. This information includes, but is not limited to, copies of advertisements, project plans and specifications, development and disposition agreements, contracts, project financing information, loan agreements, and any other relevant information related to the project or proposed project. When the requester is not a public agency and information necessary for a determination is in the custody or control of a public agency, it is the requester’s responsibility to obtain the information from the public agency and provide it with the request.

(2) The requester has a continuing duty to provide the Bureau with all relevant documents, records and other information until a determination is made. If any information submitted in connection with a request is modified or superseded in any material respect after the request is made, the requester must promptly submit the updated information to the Bureau.

(3) The Bureau will inform the requester if additional documents, records, or other information is necessary to enable the Bureau to make the determination.

(4) If the Bureau informs a requester that the Bureau has not received all the documents, records, or other information necessary to make a determination, the request will remain pending for 90 calendar days. If the Bureau does not receive the information the Bureau deems necessary to make a determination while the request is pending, the requester may be required to submit a new request in order to obtain a determination.

(5) If a requester fails or refuses to provide documents, records, or other information necessary to enable the Bureau to make the determination and the Bureau has reasonable grounds to believe such documents, records, or other information exist, the Bureau may inform the requester that the Bureau is unable to issue a determination.

(6) The Bureau’s determination will be issued to the requester, with copies mailed to any public agencies identified on the request.

(7) The determination will include notice of the right of the requester, and of any person adversely affected or aggrieved by the determination, to a hearing in accordance with ORS 183.413 to 183.470 and OAR Ch. 839, div. 50.

History

Statutory/Other Authority: ORS 279C.808, ORS 279C.817 & ORS 651.060
Statutes/Other Implemented: ORS 279C.817
BLI 6-2025, amend filed 03/07/2025, effective 03/10/2025
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru 1-27-08

Or. Admin. R. 839-025-0006 Purpose and Procedure for Addition of Trade

(1) As a result of technological advancements and/or policy changes, new trades periodically emerge in the construction industry. When this happens, it may be appropriate for the commissioner to add such trades into the prevailing wage rate determinations. The following procedure is designed to insure that new trades are included in prevailing wage rate determinations when appropriate.

(2) Any person may request the addition of a trade by submitting a written request to the Prevailing Wage Rate Unit. This request must, at a minimum, specify:

(a) Name of proposed trade;

(b) Minimum education required; and

(3) The PWR Coordinator will recommend to the commissioner whether or not to conduct a complete study of the proposed trade. The requesting party will be notified in writing by the PWR Coordinator of the commissioner's decision.

(4) If the PWR Coordinator conducts the requested study, the following areas, at a minimum, will be included in the review:

(a) Relevant practices of the U.S. Department of Labor under the Davis-Bacon Act;

(b) Whether the proposed trade is substantially different from trades included in the current wage determination;

(5) The PWR Coordinator will submit a report and a recommendation to the commissioner.

(6) The commissioner will decide whether or not to include the proposed trade. The requesting party will be notified in writing of the commissioner's decision.

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348 - 279.380
Renumbered from 839-016-0006, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 3-1996, f. & cert. ef. 1-26-96
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0007 Purpose and Procedure for Special Wage Determination

(1) In planning a public works project, public agencies periodically require the use of a trade not normally included in wage determinations. Special wage determinations allow the commissioner to recognize a trade and establish a rate for it. This procedure also allows the commissioner to respond in a timely fashion to the needs of the public agency. Special wage determinations are not available when the wage determination is applicable.

(2) Any public agency may submit a written request for a special wage determination to the Prevailing Wage Rate Unit. The request must contain:

(a) A written description of the work to be performed; and

(b) An identification of the requested trade(s).

(3) Within two weeks the PWR Coordinator will recommend to the commissioner whether or not a special wage determination should be established.

(4) If a special wage determination is to be allowed, the PWR Coordinator will provide the requesting agency with the instruments, procedures, and minimum requirements for conducting a wage survey. The requesting agency will conduct the wage survey in accordance with bureau procedures and submit the results to the PWR Coordinator.

(5) The PWR Coordinator will review the data for methodological compliance and accuracy and submit it to the commissioner with a recommendation.

(6) The commissioner will approve or disapprove the special wage determination request after considering the PWR Coordinator's recommendation. The public agency will be notified, in writing, of the commissioner's final decision.

(7) If the special wage determination is approved, it is valid only for the locality specified in the special wage determination and only until the first day of July following the date of approval unless amended prior to that date.

(8) A copy of the approved special wage determination will be kept on file by the PWR Coordinator and the Wage and Hour Division.

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348 - 279.380
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0007, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 3-1996, f. & cert. ef. 1-26-96
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0008 List of Planned Public Improvements and Cost Analysis

(1) For purposes of this rule, "public improvement" has the meaning given that phrase in ORS 279A.010.

(2)(a) Each public agency must prepare and file with the Bureau a list of every public improvement known to the agency that the agency plans to fund during the subsequent budget period. The list must be submitted to the Bureau not less than 30 days prior to the adoption of the agency's budget or before construction of a public improvement begins. If the agency revises its list after the adoption of its budget, the agency must file the revised list with the Bureau at that time.

(b) If a public agency intends to use its own equipment or personnel to perform construction work on a public improvement and the estimated value of the agency's construction work exceeds $200,000 (or $125,000 if the public improvement involves the resurfacing of highways, roads or streets at a depth of two or more inches), the agency must prepare and file with the Bureau no later than 180 days before construction begins on the public improvement a cost analysis that shows that the agency's decision to use its own equipment or personnel conforms to the state policy that public improvements will be constructed at the least cost to public agencies.

(3) To assist public contracting agencies in complying with the provisions of ORS 279C.305 and these rules, the Bureau has prepared two forms, WH-118 and WH-119. The use of these forms by the public contracting agency is optional. However, the statutory requirements of 279C.305(2) are satisfied when these forms are completed and mailed to the Prevailing Wage Rate Unit. The forms should be completed as follows:

(a) The Planned Public Improvement Summary form, WH-118, should be used to summarize all planned projects in the subsequent budget period, noting the project information requested on the form;

(b) The Public Improvement Project Cost Analysis form, WH-119, should be completed for the purpose of demonstrating that a public agency's use of its own equipment or personnel results in the least cost to the agency. In developing cost comparisons, unit costs which can be substantiated by the agency's cost accounting system should be used. Contractor unit prices that reflect bidding data should also be used.

(4) A complaint alleging that a public agency has violated ORS 279C.305 must meet the following requirements in order to be considered by the Bureau:

(a) The complaint must be in writing, identify specific acts or omissions allegedly committed by a public agency in violation of ORS 279C.305.

(b) The complaint must be filed by a contractor, or a trade association of contractors acting on behalf of a member of the trade association, who was eligible to perform the construction work for which the public agency used its own equipment or personnel.

(c) The complaint must be filed within one year after the contractor or trade association discovered or should have known that the violation occurred.

(d) The complainant has paid a filing fee of $250, which is refundable if investigation of the complaint finds substantial evidence of a violation.

(e) In addition to the written complaint, the complainant must provide documents, records, and other information in support of the allegation that a violation has occurred. Such information may include, but is not limited to, copies of documents verifying the costs of labor, equipment, administration and overhead, tools and materials, or control testing, or any other contracts related to the public improvement; copies of plans, specifications, or estimates related to the public improvement; copies of correspondence with the public agency concerning the public improvement; copies of cost estimating procedures used in preparing a cost analysis for the public improvement; and copies of any other relevant information which demonstrates that a violation of ORS 279C.305 or these rules has occurred.

[ED. NOTE: Forms referenced are available from the Bureau of Labor and Industries.]

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060
Statutes/Other Implemented: ORS 279C.306
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 5-2008, f. & cert. ef. 3-10-08
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0008, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 3-1996, f. & cert. ef. 1-26-96
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0009 Procedure for Establishing Prevailing Wage Rates

(1)The Labor Commissioner shall establish prevailing wage rates by:

(a) Adopting the basic hourly rate of pay and fringe benefits established by a Labor organization through a collective bargaining agreement in effect for that locality and occupation.

(b) When there are two or more collective bargaining agreements in effect for that locality and occupation, the Labor Commissioner shall use the highest rate of wage among collective bargaining agreements.

(c) In instances when the procedure established in (a) or (b) of this subsection is not feasible, employing other methods deemed appropriate by the agency may be used, including but not limited to:

(A) An independent wage survey conducted by the agency;

(B) The use of wage and hour data from other state agencies, including the Oregon Employment Department and/or Department of Revenue;

(C)The use of data from surveys performed by the United States Department of Labor, Wage and Hour Division; or

(D) The use of an existing validated survey that includes wage and hour data reported to the agency.

(d) For purposes of establishing the prevailing wage rates, the basic hourly rate of pay, fringe benefits and any hourly premium pay established by a Labor organization through a collective bargaining agreement in effect for a trade or occupation in a locality may cover all or a portion of that locality.

(2) Collective bargaining agreements and union wage information must be received no less than 45 days prior to the next scheduled rate publication. The rates must be in effect on or before the next rate publication. If this information is not received by the agency within this time frame, the Labor Commissioner will use the rates included in the most recent complete submission.

(3) Appeals must be submitted in writing to the agency and describe all relevant details for consideration.

History

Statutory/Other Authority: ORS 279C.815 & ORS 651.060(4)
Statutes/Other Implemented: ORS379C.800-870 & OL CH. 104, 2021.
BLI 4-2022, adopt filed 03/24/2022, effective 04/10/2022
BLI 23-2021, temporary adopt filed 11/04/2021, effective 11/04/2021 through 04/09/2022
BLI 16-2021, temporary adopt filed 10/11/2021, effective 10/12/2021 through 04/09/2022

Or. Admin. R. 839-025-0010 Payroll and Certified Statement Requirements

(1) As used in this rule:

(a) “Public improvement project subject to enhanced reporting” means a public improvement contract with a contract price exceeding $3 million, that is entered into by a qualifying agency.

(b) “Public improvement contract” has the meaning given that phrase in ORS 279A.010.

(d) “Subcontractor” means a subcontractor required to report payroll certified statements under the provisions of ORS 279C.800 to 279C.870 or ORS 279C.533.

(2)(a) Except as provided in subsection (b) of this section, the form required by ORS 279C.845 is the Payroll and Certified Statement form, WH-38. The WH-38 form must be submitted in accordance with ORS 279C.845 and include the information required by ORS 279C.845.

(b) For public improvement projects subject to enhanced reporting, the form required by ORS 279C.533 and 279C.845 is the Enhanced Payroll and Certified Statement form, Enhanced WH-38. The Enhanced WH-38 form must be submitted in accordance with ORS 279C.845 and include the information required by ORS 279C.533 and 279C.845.

(3)(a) The contractor or subcontractor must submit the weekly payroll to the public agency or qualifying agency on the WH-38 or Enhanced WH-38 form, or a similar form provided the form contains all the elements of the WH-38 or Enhanced WH-38 form. When submitting the weekly payroll to the public agency or qualifying agency on a form other than WH-38 or Enhanced WH-38 form, the contractor or subcontractor must include the certification statement contained on the WH-38 or Enhanced WH-38 form on the payroll forms submitted.

(b) Not later than 30 days after making a final payment to a contractor on a public improvement project requiring enhanced reporting, a qualifying agency must make the required report to the Bureau of Labor and Industries in a format and via an electronic method specific by the Bureau in writing.

(4) If the contractor on a public works project or a public improvement project subject to enhanced reporting fails to timely submit its payroll and certified statement forms to the public agency in accordance with ORS 279C.845, the public agency or qualifying agency must retain 25 percent of any amount earned by the contractor until the contractor has submitted the required payroll and certified statements to the public agency.

(a) The amount to be retained shall be calculated at 25 percent of the unpaid amount earned by the contractor at the time each payroll and certified statement are due. For example, if the contractor fails to submit its payroll and certified statement by the fifth of the month and the contractor earned $100,000 in the period since its last payroll and certified statement were submitted to the public agency, the public agency must retain 25 percent of $100,000 ($25,000), until such time as the required payroll and certified statement are submitted.

(b) When calculating the amount to be retained, amounts previously retained shall not be included as amounts earned by the contractor.

(c) Once the required payroll and certified statement have been submitted to the public agency, the public agency must pay the amount retained to the contractor within 14 days.

(5) If a first-tier subcontractor on a public works project or a public improvement project subject to enhanced reporting fails to timely submit a payroll and certified statement form to the public agency in accordance with ORS 279C.845, the contractor must retain 25 percent of any amount earned by the first-tier subcontractor until the first-tier subcontractor has submitted the required payroll and certified statements to the public agency.

(a) The amount to be retained shall be calculated at 25 percent of the unpaid amount earned by the first-tier subcontractor at the time each payroll and certified statement are due. For example, if the first-tier subcontractor fails to submit the payroll and certified statement by the fifth of the month and the first-tier subcontractor earned $100,000 in the period since the last payroll and certified statement were submitted to the public agency, the contractor must retain 25 percent of $100,000 ($25,000), until such time as the required payroll and certified statement are submitted.

(b) When calculating the amount to be retained, amounts previously retained shall not be included as amounts earned by the first-tier subcontractor.

(c) The contractor must verify that the first-tier subcontractor has filed the required payroll and certified statement(s) with the public agency before the contractor may pay the first-tier subcontractor any amount retained under this section.

(d) Once the first-tier subcontractor has filed the required payroll and certified statement with the public agency, the contractor must pay the amount retained to the first-tier subcontractor within 14 days.

(6) Notwithstanding ORS 279C.555 or 279C.570, amounts retained pursuant to the provisions of this rule shall be in addition to any other amounts retained.

(7)(a) If a project is a public works of the type described in ORS 279C.800(6)(a)(B) and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public agency or agencies providing funds for the project.

(b) When more than one public agency provides funds for a project, the public agencies may designate one agency to receive the contractor's and any subcontractors' payrolls.

(8)(a) If a project is a public works of the type described in ORS 279C.800(6)(a)(C) and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public agency or agencies that will occupy or use the completed project.

(b) When more than one public agency will occupy or use the completed project, the public agencies may designate one agency to receive the contractor's and any subcontractors' payrolls.

(9) If a project is a public works of the type described in ORS 279C.800(6)(a)(D) and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public agency that owns the land, premise(s), structure(s) or building(s) on which the solar radiation device(s) will be constructed or installed.

(10) If a project is a public works of the type described in ORS 279C.800(6)(a)(E) and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public university listed in ORS 352.002 that owns the real property.

(11) If a project is a public works of the type described in ORS 279C.800(6)(a)(F) and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public agency or agencies providing funds for the project or to the public agency that owns the real property on which the demolition or removal of hazardous waste takes place.

[ED. NOTE: Forms and Publications referenced are available from the Bureau of Labor and Industries.]

History

Statutory/Other Authority: ORS 651.060 & ORS 279C.808
Statutes/Other Implemented: ORS 279C.800 - 279C.870
BLI 5-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 2-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05, Renumbered from 839-016-0010
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 3-1996, f. & cert. ef. -1-26-96
BL 13-1992, f. & cert. ef. 12-14-92
BL 4-1984, f. & cert. ef. 3-13-84
BL 14-1982, f. 10-19-82, cert. ef. 10-20-82

Or. Admin. R. 839-025-0013 Notice of Public Works Form

(1) The notification form required by ORS 279C.835 is the Notice of Public Works form, WH-81.

(2)(a) Except as otherwise provided in this rule, a public agency must file the Notice of Public Works form, WH-81, with the Bureau within 30 days of the date a public works contract is awarded.

(b) When a project is a public works project pursuant to ORS 279C.800(6)(a) and no public agency awards a contract to a contractor for the project, the public agency may require an awardee or other third party to provide the notice to the Bureau in accordance with this rule. The public agency remains liable for the failure to provide the notice within the timelines specified in sections (4) to (8) of this rule.

(3) The Notice of Public Works form, WH-81, must be accompanied by:

(a) Payment of the fee required pursuant to ORS 279C.825; and

(b) A copy of the disclosure of first-tier subcontractors submitted to the public agency by the contractor if required pursuant to ORS 279C.370 and if a public agency awards a contract to a contractor for a public works project.

(4) When a project is a public works project pursuant to ORS 279C.800(6)(a)(B) and no public agency awards a contract to a contractor for the project, the Notice of Public Works form shall be filed by the public agency providing public funds for the project within 30 days of the date the public agency commits to the provision of funds for the project.

(5) When a project is a public works project pursuant to ORS 279C.800(6)(a)(C) and no public agency awards a contract to a contractor for the project, the Notice of Public Works form shall be filed by the public agency within 30 days of the date the agency enters into an agreement to occupy or use the completed project.

(6) When a project is a public works project pursuant to ORS 279C.800(6)(a)(D) and no public agency awards a contract to a contractor for the project, the Notice of Public Works form shall be filed by the public agency that owns the land, premise(s), structure(s) or building(s) on which the solar radiation device will be constructed or installed within 30 days of the date the public agency enters into an agreement authorizing the construction or installation of the solar radiation device.

(7) When a project is a public works project pursuant to ORS 279C.800(6)(a)(E) and no public agency awards a contract to a contractor for the project, the Notice of Public Works form shall be filed by the public university listed in ORS 352.002 that owns the real property on which the work takes place, within 30 days of the date the public agency enters into an agreement authorizing the project.

(8) If a project is a public works of the type described in ORS 279C.800(6)(a)(F) and no public agency awards a contract to a contractor for the project, the Notice of Public Works form shall be filed by the public agency or agencies providing public funds for the project or by the public agency that owns the real property on which the demolition or removal of hazardous waste takes place. The form shall be filed within 30 days of the date the public agency commits to the provision of funds for the project or authorizes demolition or hazardous waste removal work to be performed.

(9) Public agencies are not required to file a Notice of Public Works form when the contract awarded is not regulated under the provisions of ORS 279C.800 to 279C.870.

[ED. NOTE: Forms and Publications referenced in these rules are available from the Bureau.]

History

Statutory/Other Authority: ORS 651.060 & ORS 279C.808
Statutes/Other Implemented: ORS 279C.800 - 279C.870
BLI 5-2026, amend filed 06/12/2026, effective 07/01/2026
BLI 2-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11
BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0013, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 3-1996, f. & cert. ef. 1-26-96
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0015 Public Works Bonds Requirements

(1)(a) Except as otherwise provided in ORS 279C.836, before starting work on a contract or subcontract for a public works of $100,000 or more, a contractor or subcontractor must file with the Construction Contractors Board a public works bond with a corporate surety authorized to do business in this state in the amount of $30,000.

(b) For purposes of this section, the threshold of “$100,000 or more” includes, but is not limited to, the combined value of work performed by every person paid by a contractor or subcontractor in any manner for the person’s work on the project, including work on the public works project that is performed by workers at a satellite location, but does not include the value of donated materials or work performed on the project by individuals volunteering to the public agency without pay.

(2) The Commissioner of the Bureau of Labor and Industries adopts the language in the Statutory Public Works Bond set forth in Attachment A to this rule.

(3) The name of the entity as it appears on the public works bond must be the same as the entity name filed at the Oregon Corporation Division (if applicable).

(a) If the entity is a sole proprietorship, the bond must include the name of the sole proprietor;

(b) If the entity is a partnership, or joint venture, the bond must include the names of all partners or venturers (except limited partners);

(c) If the entity is a limited liability partnership, the bond must be issued in the name of all partners and in the name of the limited liability partnership;

(d) If the entity is a limited partnership, the bond must be issued in the name of all general partners and in the name of the limited partnership and any other business name(s) used. Limited partners do not need to be listed on the bond;

(e) If the entity is a corporation or trust, the bond must be issued showing the corporate or trust name; or

(f) If the entity is a limited liability company, the bond must be issued in the name of the limited liability company.

(4) If at any time an entity changes or amends its entity name, the Construction Contractors Board must be notified within 30 days of the date of the change.

(5) If an entity is a sole proprietorship, partnership, limited liability partnership, limited partnership, joint venture, corporation, limited liability company, business trust or any other entity, and changes the entity to one of the other entity types, the new entity must supply a new bond.

(6) If a disadvantaged business enterprise, minority-owned business, woman-owned business, veteran-owned business or emerging small business, certified under ORS 200.055, is found to have violated a provision of ORS 279C.800 to 279C.870 or an administrative rule adopted under ORS 279C.800 to 279C.870, the enterprise or business must file a public works bond in accordance with section (1) of this rule.

(7) Riders to existing bonds changing the type of entity bonded will be construed as a cancellation of the bond and will not be otherwise accepted.

(8) The inclusion or exclusion of business name(s) on a bond shall not limit the liability of an entity. Claims against a bonded entity will be processed regardless of business names used by such entity.

[ED. NOTE: To view attachments referenced in rule text, click here to view rule.]

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060
Statutes/Other Implemented: ORS 279C.800 - 279C.870
BLI 5-2026, amend filed 06/12/2026, effective 07/01/2026
BLI 13-2024, amend filed 04/12/2024, effective 04/12/2024
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 5-2008, f. & cert. ef. 3-10-08
BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06

Or. Admin. R. 839-025-0020 Public Works Contracts and Contract Specifications; Required Conditions

(1) For purposes of this rule:

(a) "Construction Manager/General Contractor contract" (or "CM/GC contract") means a contract that typically results in a general contractor/construction manager initially undertaking various pre-construction tasks that may include, but are not limited to: design phase development, constructability reviews, value engineering, scheduling, and cost estimating, and in which a guaranteed maximum price for completion of construction-type work is typically established by amendment of the initial contract, after the pre-construction tasks are complete or substantially complete. "CM/GC" refers to the general contractor/construction manager under this form of contract. Following the design phase, the CM/GC may then act as a General Contractor and begin the subcontracting process. The CM/GC typically coordinates and manages the construction process, provides contractor expertise, and acts as a member of the project team.

(b) "Construction specifications" include the detailed description of physical characteristics of the improvement, design details, technical descriptions of the method and manner of doing the work, quantities or qualities of any materials required to be furnished, descriptions of dimensions, required units of measurement, composition or manufacturer, and descriptions of any quality, performance, or acceptance requirements.

(2) Every public works contract must contain the following:

(a) A condition or clause that, if the contractor fails, neglects, or refuses to make prompt payment of any claim for labor or services furnished to the contractor or a subcontractor by any person, or the assignee of the person, in connection with the public works contract as such claim becomes due, the proper officer or officers of the public agency may pay such claim and charge the amount of the payment against funds due or to become due the contractor by reason of the contract (Reference: ORS 279C.515);

(b) A condition that no person will be employed for more than 10 hours in any one day, or 40 hours in any one week except in cases of necessity, emergency, or where the public policy absolutely requires it, and in such cases the person so employed must be paid at least time and one-half the regular rate of pay for all time worked:

(A) For all overtime in excess of eight hours a day or 40 hours in any one week when the work week is five consecutive days, Monday through Friday; or

(B) For all overtime in excess of 10 hours a day or 40 hours in any one week when the work week if four consecutive days, Monday through Friday; and

(c) A condition that an employer must give notice to employees who work on a public works contract in writing, either at the time of hire or before commencement of work on the contract, or by posting a notice in a location frequented by employees, of the number of hours per day and days per week that the employees may be required to work (Reference: ORS 279C.520(2)); and

(d) A condition that the contractor must promptly, as due, make payment to any person, co-partnership, association or corporation, furnishing medical, surgical and hospital care or other needed care and attention, incident to sickness or injury, to employees of such contractor, of all sums which the contractor agrees to pay for such services and all moneys and sums which the contractor collected or deducted from the wages of the contractor's employees pursuant to any law, contract or agreement for the purpose of providing or paying for such service (Reference: ORS 279C.530).

(3) Every public works contract that a public agency awards must contain a condition or clause that requires the contractor to:

(a) Have a public works bond filed with the Construction Contractors Board before starting work on the project, unless the contractor is exempt under ORS 279C.836(4), (7), (8) or (9).

(b) Require, in every subcontract, that the subcontractor have a public works bond filed with the Construction Contractors Board before starting work on the project, unless the subcontractor is exempt under ORS 279C.836(4), (7), (8) or (9).

(4) Every subcontract that a contractor or subcontractor awards in connection with a public works contract between a contractor and a public agency must require any subcontractor to have a public works bond filed with the Construction Contractors Board before starting work on the public works projects, unless the subcontractor is exempt under ORS 279C.836 (4), (7), (8), or (9).

(5)(a) Every public works contract and subcontract must provide that each worker the contractor, subcontractor or other person who is a party to the contract uses in performing all or part of the contract, must be paid not less than the applicable prevailing rate of wage for each trade or occupation as defined by the Commissioner of the Bureau of Labor and Industries in the applicable publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon.

(b) If a public works project is subject to both ORS 279C.800 to ORS 279C.870 and to the Davis-Bacon Act (40 U.S.C. 3141 et seq.), every public works contract and subcontract must provide that the worker whom the contractor, subcontractor or other person who is a party to the contract uses in performing all or part of the contract, must be paid not less than the higher of the applicable state prevailing rate of wage for each trade or occupation as defined by the Commissioner of the Bureau of Labor and Industries in the applicable publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon or federal prevailing rate of wage.

(6)(a) The specifications for every public works contract must contain a provision that states the existing state prevailing rate of wage and, if applicable, the federal prevailing rate of wage required under the Davis-Bacon Act (40 U.S.C. 3141 et seq.).

(b) Except as provided in subsection (d) of this section and sections (8) and (9) of this rule, the existing state prevailing rate of wage and the applicable publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon are those in effect at the time the initial specifications were first advertised for bid solicitations.

(c) If a public agency is required under subsection (a) of this section or section (8) of this rule to include the state and federal prevailing rates of wage in the specifications for a contract for public works, the public agency shall also include in the specifications the requirement that the contractor pay the higher of the applicable state or federal prevailing rate of wage to all workers on the public works project.

(d) Pursuant to ORS 279C.838(4) and notwithstanding ORS 279C.830(1), if the contract is subject to both ORS 279C.800 to 279C.870 and the Davis Bacon Act (40 U.S.C. 3141 et seq.), the public agency may provide in the specifications for the contract a single date to be used to establish the “existing state prevailing rate of wage,” the applicable publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon, and the “applicable federal prevailing rate of wage” that is consistent with the federal requirements under 29 CFR 1.6.

(e) The specifications for a contract for public works must provide that the contractor and every subcontractor must have a public works bond filed with the Construction Contractors Board before starting work on the project, unless the contractor or subcontractor is exempt under ORS 279C.836(4), (7), (8) or (9).

(7)(a) The provisions described in sections (5) and (6), and sections (8) and (9) if applicable, must be included in all specifications for each contract awarded on the project, regardless of the price of any individual contract, so long as the combined price of all contracts awarded on the project is $50,000 or more (Reference: ORS 279C.830).

(b) A statement incorporating the applicable state prevailing wage rate publication and any amendments thereto into the specifications by reference will satisfy these requirements. Except as provided in subsection (c), such reference must include the title of the applicable wage rates publication or determination and the date of the publication or determination as well as the date of any applicable amendments.

(c) When the prevailing wage rates are available electronically or are accessible on the Internet, the rates may be incorporated into the specifications by referring to the electronically accessible or Internet-accessible rates and by providing adequate information about how to access the rates. Such reference must include the title of the applicable wage rates publication or determination and the date of the publication or determination as well as the date of any applicable amendments. The reference requirements of this subsection will be satisfied if such reference includes Uniform Resource Locator (URL) information for a webpage or webpages showing the title of each applicable wage rates publication or determination and the date of each publication or determination as well as the date of any applicable amendments.

(8)(a) When a public agency is a party to a CM/GC contract, the CM/GC contract becomes a public works contract either when the contract first constitutes a binding and enforceable obligation on the part of the CM/GC to perform or arrange for the performance of construction, reconstruction, major renovation, demolition, removal of hazardous waste or painting of an improvement that is a public works or when the CM/GC contract enters the construction phase, whichever occurs first.

(b) For example, the CM/GC will have a binding and enforceable obligation to perform or arrange for the performance of construction, reconstruction, major renovation, demolition, removal of hazardous waste or painting of an improvement after the public agency and CM/GC commit to the guaranteed maximum price.

(c) For purposes of this rule, the CM/GC contract enters the construction phase when the agency first authorizes the performance of early construction, reconstruction, major renovation, demolition, removal of hazardous waste or painting work directly related to the improvement project.

(d) The publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon and the prevailing wage rate in effect at the time the CM/GC contract becomes a public works contract shall apply and the applicable prevailing wage rates must be included with the construction specifications for the CM/GC contract.

(9) A public works project described in ORS 279C.800(6)(a)(B), (C), (D), (E) or (F) that is not a CM/GC contract subject to section (8) of this rule, and for which no public agency awards a contract to a contractor for the project, is subject to the publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon and the existing state prevailing rate of wage or, if applicable, the federal prevailing rate of wage required under the Davis-Bacon Act that are in effect at the time a public agency enters into an agreement with a private entity for the project. (Note: The effective date of the applicable federal prevailing rate of wage may be different under federal law.) After that time, the specifications for any contract for the public works shall include the applicable prevailing rate of wage.

(10) If a project is a public works of the type described in ORS 279C.800(6)(a)(B), (C), (D), (E) or (F) and no public agency awards a contract to a contractor for the project, a public agency will be deemed to have complied with the provisions of ORS 279C.830 if the public agency requires compliance with the provisions of section (7) of this rule in any agreement entered into by the public agency committing to provide funds for the project, to occupy or use the completed project, authorizing the construction or installation of a solar radiation device, or authorizing demolition or hazardous waste removal.

(11) Public agencies may obtain, without cost, a copy of the existing state prevailing rate of wages for use in preparing the contract specifications by contacting the Bureau.

(12) A public agency must include in a public works contract:

(a) A list of work required by the contract that reasonably could be considered to be performed on a system or component described in ORS 279C.800(6)(a)(G)(iv).

(b) A requirement that any contractor or subcontractor provide the public agency with notice of any work that could reasonably be performed at a location other than the site of work.

History

Statutory/Other Authority: ORS 651.060 & ORS 279C.808
Statutes/Other Implemented: ORS 279C.800 - 279C.870
BLI 5-2026, amend filed 06/12/2026, effective 07/01/2026
BLI 20-2024, amend filed 10/18/2024, effective 10/21/2024
BLI 2-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 2-2016, f. & cert. ef. 3-31-16
BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 6-2011(Temp), f. & cert. ef. 7-22-11 thru 12-4-11
BLI 3-2011(Temp), f. & cert. ef. 6-8-11 thru 12-4-11
BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11
BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru 1-27-08
BLI 2-2007, f. & cert. ef. 1-23-07
BLI 39-2006, f. 11-8-06, cert. ef. 11-10-06
BLI 19-2006(Temp), f. 5-12-06, cert. ef. 5-15-06 thru 11-10-06
BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06
Renumbered from 839-016-0020, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 1-1998, f. & cert. ef. 1-5-98
BL 3-1997(Temp), f. 7-31-97, cert. ef. 8-1-97
BL 3-1996, f. & cert. ef. 1-26-96
BL 5-1990, f. 3-30-90, cert. ef. 4-1-90
BL 7-1989(Temp), f. 10-2-89, cert. ef. 10-3-89
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0025 Required Records

(1) All contractors and subcontractors performing work on public works contracts subject to ORS 279C.800 to 279C.870 shall make and maintain for a period of three years from the completion of work upon such public works records necessary to determine whether the prevailing rate of wage and overtime has been or is being paid to workers upon public works.

(2) In addition to the Payroll and Certified Statement, Form WH-38, records necessary to determine whether the prevailing wage rate and overtime wages have been or are being paid include but are not limited to records of:

(a) The name and address of each employee;

(b) The work classification or classifications of each employee, and, if applicable, the name of all journey workers engaged in the supervision of apprentices;

(d) The rate or rates of fringe benefit payments made in lieu of those required to be provided to each employee;

(e) Total daily and weekly compensation paid to each employee;

(f) The daily and weekly hours worked by each employee;

(g) The written notice to employees who work on a public contract of the days per week and number of hours per day they may be required to work.

(h) Apprenticeship and Training Agreements;

(i) Any deductions, rebates or refunds taken from each employee's total compensation and actual wages paid;

(j) Any payroll and other such records pertaining to the employment of employees upon a public work.

(3) When apprentices or trainees are employed on a public works project, the records must clearly distinguish them, and their supervising journey workers, from other employees.

(4) When a contractor or subcontractor employs a worker on public works projects and non public works projects during the same work week and the worker is paid a rate of pay which is less than the prevailing wage rate when working on a non public works project, the contractor or subcontractor must separately record the hours worked on the public works projects and those hours worked elsewhere.

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060
Statutes/Other Implemented: ORS 279C.800-279C.870
BLI 5-2026, amend filed 06/12/2026, effective 07/01/2026
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0025, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0030 Records Availability

(1) Every contractor and subcontractor performing work on a public works contract shall make available to representatives of the Wage and Hour Division records necessary to determine if the prevailing wage rate has been or is being paid to workers upon such public work. Such records shall be made available to representatives of the Wage and Hour Division for inspection and transcription during normal business hours.

(2) The contractor or subcontractor shall make the records referred to in section (1) of this rule available within 24 hours of a request from a representative of the Wage and Hour Division or at such later date as may be specified by the division.

(3) When a prevailing wage rate claim or complaint has been filed with the Wage and Hour Division or when the division has otherwise received evidence indicating that a violation has occurred and upon a written request by a representative of the Division a public works contractor or subcontractor shall send a certified copy of such contractor's or subcontractor's payroll records to the Division within ten days of receiving such request. The Division's written request for such certified copies will indicate that a prevailing wage rate claim has been filed or that the division has received evidence indicating that a violation has occurred.

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348 - 279.380
BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10
Renumbered from 839-016-0030, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0033 Posting Requirements

(1) Every contractor or subcontractor must post the prevailing wage rates applicable to the project in a conspicuous place at the site of work and at any satellite locations. The posting must be easily accessible to employees working on the project. Contractors may obtain a copy of the applicable wage rates by visiting www.oregon.gov/boli or by contacting the Bureau.

(2) When a contractor or subcontractor provides for or contributes to a health and welfare plan or pension plan for employees who are working on a public works project, the contractor or subcontractor must post a notice containing the following information:

(a) A description of the plan or plans;

(b) Information on how and where claims can be made; and

(3) The notice required to be posted in section (2) of this rule must be posted in a conspicuous place at the site of work and at any satellite locations and must be easily accessible to employees working on the project. The notice must be posted in the same location as the prevailing wage rate pursuant to section (1) of this rule.

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060
Statutes/Other Implemented: ORS 279C.840
BLI 5-2026, amend filed 06/12/2026, effective 07/01/2026
Renumbered from 839-016-0033, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 3-1996, f. & cert. ef. 1-26-96
BL 4-1984, f. & ef. 3-13-84

Or. Admin. R. 839-025-0034 Establishing a Work Schedule

(1) Employers must give written notice to employees who work on a public contract of the days per week and number of hours per day they may be required to work.

(2) The notice required by section (1) of this rule may be given:

(a) At the time the employee is hired;

(b) Prior to commencing work on the contract; or

(3) If an employer fails to give the notice required by section (1) of this rule, the work schedule will be presumed to be a five-day work schedule.

(4) The work schedule may be changed by the employer if the change is intended to be permanent and is not designed to evade the overtime requirements of ORS 279C.540 and OAR 839-025-0050. Notice of any work schedule changes intended to be made by an employer must be provided in writing to affected employees in advance of the change.

History

Statutory/Other Authority: ORS 279 & 651.060
Statutes/Other Implemented: ORS 279.334
Renumbered from 839-016-0034, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 1-1998, f. & cert. ef. 1-5-98
BL 3-1997(Temp), f. 7-31-97, cert. ef. 8-1-97

Or. Admin. R. 839-025-0035 Payment of Prevailing Rate of Wage

(1) Every contractor or subcontractor employing workers on a public works project must pay to such workers no less than the applicable prevailing rate of wage for each trade or occupation, as determined by the commissioner, in which the workers are employed. Additionally, all wages due and owing to the workers shall be paid on the regular payday established and maintained under ORS 652.120.

(2) When a public works project is subject to the Davis-Bacon Act (40 U.S.C. 3141 et seq.), if the state prevailing rate of wage is higher than the federal prevailing rate of wage, the contractor and every subcontractor on the project shall pay no less than the state prevailing rate of wage as determined under ORS 279C.815.

(3) Every person paid by a contractor or subcontractor in any manner who is performing work subject to the prevailing wage on a public works project must receive no less than the applicable prevailing rate of wage, regardless of any contractual relationship alleged to exist. Thus, for example, if partners are themselves performing the duties of a worker, the partners must receive no less than the prevailing rate of wage for the hours they are so engaged.

(4) A person employed on a public works project and who is spending more than 20% of their time during any workweek in performing duties which are manual or physical in nature as opposed to mental or managerial in nature is a worker and must be paid no less than the applicable prevailing rate of wage. Mental or managerial duties include, but are not limited to, administrative, executive, professional, supervisory or clerical duties.

(5) A person employed on a public works project for the manufacture or furnishing of materials, articles, supplies or equipment (whether or not a public agency acquires title to such materials, articles, supplies or equipment during the course of the manufacture or furnishing, or owns the materials from which they are manufactured or furnished) is not a worker required to be paid the applicable prevailing rate of wage unless the employment of the person is performed in connection with and at the site of the public works project.

(6)(a) As used in this section, “construction contractor or construction subcontractor” includes a person who enters into a public works contract to produce work at a satellite location.

(b) A person who is employed by a commercial supplier of materials or supplies that is not a construction contractor or construction subcontractor on the project, or a person who contracts with a commercial supplier of materials or supplies that is not a construction contractor or subcontractor on the project, to transport materials or supplies on a public works project is not required to be paid a prevailing rate of wage, provided the person’s activities at the site of work or a satellite location are limited to driving, delivering the materials or supplies, or waiting for materials or supplies to be loaded or unloaded.

(c) A person who is employed by a commercial supplier of materials or supplies, or who contracts with a commercial supplier of materials or supplies, and performs non-delivery-related work on the site of work or a satellite location, is a worker and must be paid no less than the applicable prevailing rate of wage.

(d) A person employed by a construction contractor or construction subcontractor to transport materials or supplies on a public works project is a worker and must be paid no less than the applicable prevailing rate of wage for work performed in connection with the transportation of materials or supplies, unless the person’s activities on the public works project are limited to driving, delivering the materials or supplies, or waiting for materials or supplies to be loaded or unloaded and the aggregate amount of time spent performing such duties does not exceed two hours in a "work day," as that term is defined in OAR 839-025-0050. When this subsection requires the payment of the prevailing wage for delivery-related work, the wage must be paid for all work that is performed entirely within a satellite site or entirely within the site of work, including delivery-related work performed between the site described in OAR 839-025-0004(35)(a) and the facilities described in OAR 839-025-0004(35)(b).

(e) Notwithstanding subsections (a) to (d) of this section, when a public works project is subject to the Davis-Bacon Act, a person transporting materials and supplies to or from the site of the project is entitled to be paid the prevailing wage in accordance with federal law, including any regulations adopted or guidelines issued in accordance with the Davis-Bacon Act.

(8) A person employed on a public works project for personal services, as that term is defined in ORS 279C.100, as opposed to construction work, is not a worker required to be paid the prevailing rate of wage.

(9) Every apprentice, as defined in OAR 839-025-0004, must be paid not less than the appropriate percentage of the applicable journey worker’s wage rate and fringe benefits as determined pursuant to ORS 279C.800 to 279C.870. Any worker on a public works project who is not an apprentice as defined in OAR 839-025-0004, or who is not employed by a training agent, or who is not working pursuant to the standards of the apprentice’s apprenticeship program, must be paid not less than the applicable prevailing rate of wage for the classification of work actually performed. In addition, if the total number of apprentices employed exceeds the ratio permitted in the applicable standards, all apprentices so employed must be paid not less than the applicable journey worker’s prevailing wage rate for work actually performed.

(10) Every trainee must be paid not less than the appropriate percentage of the applicable journey worker’s wage rate and fringe benefits determined pursuant to ORS 279C.800 to 279C.870. Any worker on a public works project who is not a trainee, or who is not employed by a training agent, or who is not working pursuant to the standards of the trainee’s program, must be paid not less than the applicable prevailing rate of wage for the classification of work actually performed. In addition, if the total number of trainees employed exceeds the ratio permitted in the applicable standards, all trainees so employed must be paid not less than the applicable journey worker’s prevailing wage rate for work actually performed.

History

Statutory/Other Authority: ORS 651.060 & ORS 279C.808
Statutes/Other Implemented: ORS 279C.800-279C.870
BLI 5-2026, amend filed 06/12/2026, effective 07/01/2026
BLI 11-2025, amend filed 10/31/2025, effective 11/01/2025
BLI 3-2025, temporary amend filed 01/24/2025, effective 02/01/2025 through 07/27/2025
BLI 20-2024, amend filed 10/18/2024, effective 10/21/2024
BLI 28-2021, minor correction filed 12/22/2021, effective 12/22/2021
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11
BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06
Renumbered from 839-016-0035, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 4-1997, f. & cert. ef. 8-29-97
BL 1-1997(Temp), f. & cert. ef. 4-29-97
BL 8-1996, f. 8-26-96, cert. ef. 9-1-96
BL 5-1990, f. 3-30-90, cert. ef. 4-1-90
BL 7-1989(Temp), f. 10-2-89, cert. ef. 10-3-89
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0037 Residential Construction Projects; Wage Rates; Rate Determinations

(1)(a) For residential construction projects as defined in OAR 839-025-0004 and subject to ORS 279C.800 to 279C.870, public agencies shall use federal Davis-Bacon wage rates for residential construction projects unless there is no applicable federal rate for a particular trade or classification on the residential project.

(b) If the applicable federal Davis-Bacon wage rate determination does not include a rate for a particular trade or classification needed on a specific residential construction project, and the project is subject to ORS 279C.800 to 279C.870 but not the federal Davis-Bacon Act, the public agency is required to request a special wage rate, identifying the specific trade or classification, pursuant to OAR 839-025-0007.

(c) The commissioner may consider and approve a residential wage determination for a trade or classification issued by any federal agency within twelve months of the date of any request for a special wage rate pursuant to subsection (b) of this section.

(d) Requests for special wage rate determinations for projects subject to both ORS 279C.800 to 279C.870 and the federal Davis-Bacon Act shall be submitted pursuant to Title 29 CFR, Part 5.5(a)(1)(ii) as amended January 9, 2017.

(e) Copies of any special federal wage rate determinations requested and subsequent determination(s) issued pursuant to subsection (d) of this section must be provided to the commissioner by the public agency.

(2) Notwithstanding section (1) of this rule, the commissioner, consistent with statutory authority, may survey and issue residential rates.

(3) Requests for special wage rates for residential construction projects pursuant to section (1)(b) of this rule must be submitted to the Bureau of Labor and Industries by the public agency no fewer than fifteen (15) business days prior to the date the specifications for the project are first advertised.

(4) If a public agency fails to request special wage rates for a residential construction project pursuant to section (1)(b) of this rule at least fifteen (15) business days before the date the specifications for the project are first advertised for the project, the Prevailing Wage Rates for Public Contracts published by the Commissioner of the Bureau of Labor and Industries in effect when the specifications are first advertised shall apply to those trades or classifications for which there is no applicable federal residential rate.

(5) The federal Davis-Bacon wage rates apply to residential construction projects subject to ORS 279C.800 to 279C.870 regardless of whether federal law requires Davis-Bacon rates on the project.

(6) Notwithstanding any other provision of this rule, unless otherwise exempt, under no circumstances may a rate less than the minimum wage rate required by ORS 653.025 be paid to any worker on a residential construction project subject to ORS 279C.800 to 279C.870.

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060
Statutes/Other Implemented: ORS 279C.800 – 279C.870
BLI 20-2024, amend filed 10/18/2024, effective 10/21/2024
BLI 27-2021, minor correction filed 12/22/2021, effective 12/22/2021
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 2-2016, f. & cert. ef. 3-31-16
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 39-2006, f. 11-8-06, cert. ef. 11-10-06
BLI 19-2006(Temp), f. 5-12-06, cert. ef. 5-15-06 thru 11-10-06

Or. Admin. R. 839-025-0038 Use of Multiple Wage Rate Determinations on Projects

(1) The Bureau may authorize the use of multiple wage rate determinations on projects comprised of more than one construction type. For example, on a project consisting of the construction of both residential units and commercial space, the Bureau may authorize residential wage rates to be paid for work performed in connection with the construction of the residential units pursuant to OAR 839-025-0037 and non-residential prevailing wage rates to be paid for work performed in connection with the construction of the commercial space.

(2) A public agency, developer or prime contractor may request authorization to use multiple wage determinations on a project. Requests for authorization to use multiple wage determinations on a project must be in writing and describe all relevant details of the project or proposed project.

(3) The requester will be advised if the Bureau determines that multiple wage rate determinations are appropriate and may be used on a project.

(4) If the Bureau determines that multiple wage rate determinations may be used on a project, continued authorization to use the multiple wage rate determinations shall be contingent upon compliance with the following requirements:

(a) The project/contract specifications must clearly delineate the portions of the project subject to each applicable wage rate determination;

(b) All applicable wage rate determinations must be posted at the site of work and at any satellite locations, pursuant to the provisions of OAR 839-025-0033, with an explanation of the portions of the project to which each wage rate determination applies;

(c) The developer or prime contractor must establish adequate controls to ensure that all workers on the project are paid in accordance with the applicable wage rates; and

(d) Each and every contractor employing workers on the project must prepare, submit and maintain accurate time and payroll records to demonstrate compliance with all wage rate determinations applicable to the project.

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060
Statutes/Other Implemented: ORS 279C.817
BLI 5-2026, amend filed 06/12/2026, effective 07/01/2026
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 9-2018, renumbered from 839-025-0315, filed 03/23/2018, effective 03/23/2018
BLI 6-2017, minor correction filed 12/01/2017, effective 12/01/2017
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08

Or. Admin. R. 839-025-0040 Payment of Fringe Benefits

(1) Each contractor and subcontractor required to pay workers the prevailing rate of wage must pay no less than the hourly rate of pay and fringe benefits as determined by the Commissioner and described in ORS 279C.800(4).

(2) The rate of pay for fringe benefits paid to apprentices and trainees shall be not less than such rate paid to the majority of such apprentices and trainees in the same trade or occupation as determined by the commissioner. If there is no majority in the same trade or occupation, as determined by the commissioner, apprentices and trainees shall be paid the full amount of the fringe benefits.

(3) The fringe benefit requirement of section (1) of this rule is met when the amount of the fringe benefit or benefits is paid to the worker, in cash, in lieu of a third party administering a fringe benefit or benefits program.

(4)(a) Except as provided in this section, a contractor who wishes to take a credit towards the prevailing rate of wage described in section 1 of this rule must “annualize” the employer contributions made to a benefit plan, fund or program described in ORS 279C.800(1) and must "annualize" the costs of unfunded benefits such as vacation and holiday pay to determine the proper hourly equivalent that may be taken as credit against the fringe benefit obligation.

(b) To “annualize” the cost of providing a benefit, a contractor must divide the total employer contribution amount paid to a benefit plan, fund or program, or the cost of the unfunded benefit, by the total number of hours worked on both non-prevailing wage work and work covered by applicable Prevailing Wage Rate Laws during the time period to which the cost is attributable, provided that the period is not less than monthly, to determine the rate of contribution per hour. The credit must be determined separately for each worker.

(c) Contributions to a bona fide fringe benefit plan may be excepted from the annualization requirement and the contractor may take full credit for those contributions if the contributions are made to a defined contribution pension plan that provides for immediate participation and immediate vesting.

(5) When a contractor or subcontractor pays an hourly rate of pay which exceeds that which is determined by the commissioner, the amount by which the rate is exceeded may be credited toward payment of the amount of fringe benefits determined by the commissioner for the trade or occupation.

(6) When a contractor or subcontractor pays a rate for any one fringe benefit which exceeds that which is determined for the fringe benefit, the amount by which the rate is exceeded may be credited toward payment of the amount to be paid for all fringe benefits as determined by the commissioner for the trade or occupation.

(7) When a contractor or subcontractor pays an amount for fringe benefits which exceeds that which is determined by the commissioner, the amount by which it exceeds the determination may be credited toward payment of the hourly rate of pay as determined by the commissioner.

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060
Statutes/Other Implemented: ORS 279.350
BLI 5-2025, amend filed 03/07/2025, effective 03/10/2025
Renumbered from 839-016-0040, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 4-1997, f. & cert. ef. 8-29-97
BL 1-1997(Temp), f. & cert. ef. 4-29-97
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0043 Frequency of Payment of Fringe Benefits

(1) Contributions made by a contractor or subcontractor to a bona fide fringe benefit plan, fund, or program must be made on a regular basis and not less often than quarterly.

(a) “Regular basis” means either the schedule of contribution as provided in writing in the plan, fund or program, or if none, the regular contribution schedule established by the contractor or subcontractor pursuant to subsection (b) of this section. For example, if the plan specifies that contributions to a bona fide fringe benefit fund be made by the fifteenth calendar day of each month following the month the wages were earned, then contributions to the fund must be made by that date.

(b) If the plan, fund or program does not specify a contribution date, or if the specified contribution date as written in the plan, fund or program does not meet the meaning of “not less often than quarterly,” as defined below, the contractor or subcontractor must establish and maintain a contribution date by which payment to the plan, fund or program will be made on a regular basis and not less often than quarterly.

(c) “Not less often than quarterly” means that the fringe benefit portion of wages must be contributed to a bona fide fund, plan or program at least once every three months within an established consecutive twelve month period. The contribution must represent payment to the fund, plan or program for amounts earned in the three month period immediately prior to the contribution date.

(A) An established twelve month period may be a calendar year, fiscal year, plan year, or other consecutive twelve month period as determined by the employer. The beginning of the twelve month period may be changed only if the change is intended to be permanent, and is not designed to evade the timely payment of contributions into a bona fide fund, plan or program. If an employer does not determine a consecutive twelve month period, the default period shall be a calendar year; that is, from 12:00 midnight on January 1 to 11:59 p.m. December 31, each year.

(B) As an example, using the calendar year as the established consecutive twelve month period, a contractor or subcontractor establishes a contribution date of April 15 for the payment of fringe benefits earned between January 1 and March 31 into the plan, fund or program; consequently, amounts earned between April 1 and June 30 must be contributed into the plan, fund or program on or before July 15; amounts earned between July 1 and September 30 must be contributed into the plan, fund or program on or before October 15; and amounts earned between October 1 and December 31 must be contributed into the plan, fund or program on or before January 15.

(2) Payments of fringe benefits made directly to the worker in lieu of payment of fringe benefits to a plan, fund, or program must be paid to the worker as wages on the regularly scheduled pay date.

History

Statutory/Other Authority: ORS 651.060(4) & 279C.808
Statutes/Other Implemented: ORS 279C
BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14
Renumbered from 839-016-0043, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 1-1998, f. & cert. ef. 1-5-98

Or. Admin. R. 839-025-0045 Youth Apprentices

Youth apprentices, as defined in ORS 344.745, shall not be employed on public works projects (Reference: 344.750(5)).

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060
Statutes/Other Implemented: ORS 279C.800 - 279C.870
BLI 20-2024, amend filed 10/18/2024, effective 10/21/2024
Renumbered from 839-016-0045, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0050 Overtime Wages Computations

(1) As used in this rule "work day" or "day" means any time period of 24 consecutive hours as determined by the employer. The beginning of the work day may be changed only if the change is intended to be permanent, if the change is made in writing and if the change is not designed to evade the overtime requirements of ORS 279C.540. If an employer does not determine a 24 consecutive hour period, the default 24 consecutive hour period shall be from 12:00 midnight to 11:59 p.m. For purposes of overtime wages computation, each work day stands alone.

(2) Contractors and subcontractors required by ORS 279C.540 to pay overtime wages shall pay such wages as follows:

(a) Workers must be paid at least time and one-half the hourly rate of pay, excluding fringe benefits, for all hours worked:

(A) On Saturdays;

(B) On the following legal holidays:

(i) Each Sunday;

(ii) New Year's Day on January 1;

(iii) Memorial Day on the last Monday in May;

(iv) Independence Day on July 4;

(v) Labor Day on the first Monday in September;

(vi) Thanksgiving Day on the fourth Thursday in November;

(vii) Christmas Day on December 25;

(D) Over eight (8) hours in a day; or

(E) Over 10 hours in a day provided:

(i) The employer has established a work schedule of four consecutive days (Monday through Thursday or Tuesday through Friday) pursuant to OAR 839-025-0034; and

(ii) The employer operates in accordance with this established work schedule.

(b) Where a worker performs work in one or more classifications which provide for one or more hourly rates of pay the worker must be paid, in addition to the straight time hourly earnings for all hours worked, a sum determined by multiplying one half the weighted average of the hourly rates by the number of overtime hours worked pursuant to subsection (a) of this rule.

(c) When determining the hourly wage rate for overtime purposes, the amount paid for fringe benefits shall be excluded from the computations. Though the amount paid for fringe benefits must be paid for all hours worked, such amount is not included when determining the overtime rate. For example, a worker who works a five-day work schedule and earns $15 per hour plus $3 per hour in fringe benefits and works ten hours in a day is entitled to $195 (($15/hr x 8 hours) + ($22.50/hr x 2 hours) + ($3/hr x 10 hours) = $195) for that day.

(3) Examples of computing overtime wages: See Appendix 3.

[ED. NOTE: Appendices referenced are available from the agency.]

[ED. NOTE: To view attachments referenced in rule text, click here to view rule.]

History

Statutory/Other Authority: ORS 279 & 651.060
Statutes/Other Implemented: ORS 279.334
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
Renumbered from 839-016-0050, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 1-1998, f. & cert. ef. 1-5-98
BL 3-1997(Temp), f. 7-31-97, cert. ef. 8-1-97
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0054 Exemption from Overtime Pay Requirements on Public Improvement Projects

(1) As used in ORS 279C.540(4) and in this rule, unless the context requires otherwise:

(a) "A collective bargaining agreement in effect" means a collective bargaining agreement which is recognized as being binding on all parties by the National Labor Relations Board; which is enforceable within the geographic area in which the public improvement is located; and, the terms of which extend to workers who are working on the public improvement project;

(b) "Labor organization" means any organization certified as such by the National Labor Relations Board.

(2) ORS 279C.540(4) provides an exemption from the overtime pay requirements of ORS 279C.540(1), (2) and (3) under the following circumstances:

(a) The contract on which work is performed is a public improvement contract; and

(b) The contractor is a party to a collective bargaining agreement in effect with any labor organization.

(3) The exemption would not apply, for example, under the following circumstances:

(a) To workers employed on a public improvement who are not covered by the terms of a collective bargaining agreement;

(b) When the labor organization has no jurisdiction in the geographical area where work is being performed;

(c) Any other circumstance when the terms of the collective bargaining agreement is not enforceable for workers on public improvement projects.

History

Statutory/Other Authority: ORS 651.060
Statutes/Other Implemented: ORS 279.342
Renumbered from 839-016-0054, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 7-1992, f. & cert. ef. 6-11-92

Or. Admin. R. 839-025-0060 Apprentices Working upon Public Works Projects

(1) Apprentices will be permitted to work upon a public works project at less than the prevailing rate of wage for the work performed when they are employed by a registered training agent pursuant to ORS 660.010(10), and are working pursuant to the standards of the apprentice’s apprenticeship program, and are individually registered in a bona fide apprenticeship program registered with:

(a) The U.S. Department of Labor, Office of Apprenticeship (OA); or

(b) A state apprenticeship agency recognized by the OA; or

(c) If a person is employed in probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the OA or a state apprenticeship agency to be eligible for probationary employment as an apprentice.

(2) The allowable ratio of apprentices to journeymen in any craft classification must conform to the apprenticeship standards filed with the Oregon Apprenticeship and Training Council for the particular craft or program in which the contractor's or subcontractor's apprentices are registered.

(3) The contractor or subcontractor will be required to furnish to the contracting officer or a representative of the Wage and Hour Division written evidence of the registration of the program and apprentices as well as the appropriate ratios and wage rates (expressed in percentages of the journeymen hourly rates) prescribed in that program. The commissioner has prepared a form, WH-120, which can be used by contractors or subcontractors in complying with this rule. Use of this form is optional.

(4) Notwithstanding section (1) of this rule, apprentices must be paid the full prevailing rate of wage when the program in which they are registered is located in a state contiguous to Oregon which does not recognize apprentices registered in a program approved by the Oregon State Apprenticeship and Training Council.

[ED. NOTE: Forms referenced are available from the agency.]

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 279.348
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11
Renumbered from 839-016-0060, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 7-1994, f. & cert. ef. 11-16-94
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0065 Trainees Working upon Public Works Projects

(1) Trainees will not be permitted to work upon a public works project at less than the prevailing rate of wage for the work performed unless they are employed by a registered training agent pursuant to ORS 660.010(10) and are individually registered in a program which has received prior approval of the U.S. Department of Labor, Bureau of Apprenticeship and Training.

(2) The ratio of trainees to journeymen must not be greater than permitted under the plan approved by the Bureau of Apprenticeship and Training.

(3) The contractor or subcontractor will be required to furnish the contracting officer or a representative of the Wage and Hour Division written evidence of the certification of the program, the registration of the trainees, and the ratios and wage rates prescribed in that program. The contractor or subcontractor may use form WH-120 for this purpose. Use of this form is optional.

(4) In the event the Apprenticeship and Training Division withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable prevailing rate of wage for the work performed until an acceptable program is approved.

[ED. NOTE: Forms referenced are available from the agency.]

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
Renumbered from 839-016-0065, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0080 Liability to Workers

(1) Any contractor or subcontractor or any surety thereof who fails or refuses to pay at least the prevailing wages and fringe benefits as determined by the commissioner or any overtime wages as required by ORS 279C.540 is liable to the workers affected for all the unpaid prevailing wages, including fringe benefits, and unpaid overtime wages.

(2) The contractor or subcontractor or surety thereof, referred to in section (1) of this rule, is also liable to all unpaid workers for an amount equal to the unpaid prevailing wages, including fringe benefits, as liquidated damages.

(3) The contractor or subcontractor or surety thereof, referred to in section (1) of this rule, is also liable to all unpaid workers for an amount equal to the unpaid overtime wages as liquidated damages, except that if the unpaid overtime results from willful falsification of payroll records, these liquidated damages shall be twice the amount of unpaid overtime.

(4) Any public agency that fails to include a provision in the advertisement for bids, the request for bids, the contract specifications, the accepted bid or elsewhere in the contract documents that the contractor and any subcontractor shall comply with ORS 279C.840 shall be jointly and severally liable, with any contractor or subcontractor that had notice of the requirement to comply with ORS 279C.840, to the workers affected for any unpaid minimum wages.

(5) As used in section (4) of this rule, "minimum wages" means the prevailing wage, including fringe benefits, as determined by the commissioner. "Minimum wages" does not mean overtime wages required by ORS 279C.540 nor liquidated damages referred to in sections (2) and (3) of this rule.

(6) When a public works project is subject to the Davis-Bacon Act (40 U.S.C. 3141 et seq.) and a public agency fails to include the state and federal prevailing rates of wage in the specifications for the contract for public works as required under ORS 279C.830(1)(a), or fails to provide in the contract that workers on the public works project must be paid not less than the higher of the applicable state or federal prevailing rate of wage as required under ORS 279C.830(1)(d), the public agency is liable to each affected worker for:

(a) The worker's unpaid minimum wages, including fringe benefits, in an amount that equals, for each hour worked, the difference between the applicable higher rate of wage and the lower rate of wage; and

(b) An additional amount, equal to the amount of unpaid minimum wages due under subsection (a) of this section, as liquidated damages.

History

Statutory/Other Authority: ORS 279 & 651.060
Statutes/Other Implemented: ORS 279.334 & 279.356
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 3-2011(Temp), f. & cert. ef. 6-8-11 thru 12-4-11
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0080, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 1-1998, f. & cert. ef. 1-5-98
BL 3-1997(Temp), f. 7-31-97, cert. ef. 8-1-97
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0085 Contract Ineligibility

(1) Under the following circumstances, the commissioner, in accordance with the Administrative Procedures Act, may determine that a contractor or a subcontractor or a firm, limited liability company, corporation, partnership or association in which the contractor or subcontractor has a financial interest may not receive a contract or subcontract for a public works for a period of three years:

(a) The contractor or subcontractor intentionally failed or refused to pay the prevailing rate of wage to workers employed on a public works project as required under ORS 279C.840;

(b) The contractor failed to pay to the contractor's employees amounts required under ORS 279C.840 and a surety or another person paid the amounts on the contractor's behalf;

(c) The subcontractor failed to pay the prevailing rate of wage to workers employed on a public works project as required under ORS 279C.840 and the contractor, a surety or another person paid the amounts owed on the subcontractor's behalf;

(d) The contractor or subcontractor intentionally failed or refused to post the prevailing wage rates as required under ORS 279C.840(4) and these rules; or

(e) The contractor or subcontractor intentionally falsified information in the certified statements the contractor or subcontractor submitted under ORS 279C.845.

(2) If a contractor or subcontractor is a corporation or a limited liability company, the provisions of this rule will apply to any corporate officer or agent of the corporation or any member or manager of the limited liability company who is responsible for failing or refusing to pay or post the prevailing wage rates, failing to pay to the contractor's employees amounts required under ORS 279C.840 that a surety or other person pays on the contractor's behalf, failing to pay to a subcontractor’s employees amounts required under ORS 279C.840 that the contractor, a surety or other person pays on the subcontractor’s behalf or intentionally falsifying information in the certified statements the contractor or subcontractor submits under ORS 279C.845.

(3) As used in section (2) of this rule, any corporate officer or agent of the corporation or any member or manager of the limited liability company responsible for failing or refusing to pay or post the prevailing wage rates, failing to pay to the contractor's employees amounts required under ORS 279C.840 that a surety or other person pays on the contractor's behalf, failing to pay to a subcontractor's employees amounts required under ORS 279C.840 that the contractor, surety or other person pays on the subcontractor's behalf or intentionally falsifying information in the certified statements the contractor or subcontractor submits under ORS 279C.845, includes, but is not limited to, the following individuals when the individuals knew or should have known the amount of the applicable prevailing wages or that such wages must be posted:

(a) The corporate president;

(b) The corporate vice president;

(d) The corporate treasurer;

(e) Any member or manager of the limited liability company;

(f) Any other person acting as an agent of a corporate officer, the corporation, limited liability member or manager, or limited liability company.

(4) The Wage and Hour Division will maintain a written list of the names of contractors, subcontractors and other persons who are ineligible to receive public works contracts and subcontracts. The list will contain the name of contractors, subcontractors and other persons and the name of any firms, corporations, limited liability companies, partnerships or associations in which the contractor, subcontractor or other persons have a financial interest. Except as provided in OAR 839-025-0095, such names will remain on the list for the duration of the period, as determined by the commissioner, in which no contract or subcontract for public works may be received.

(5) Before placing a name on the ineligible list referred to in section (4) of this rule, the commissioner will serve a notice of intended action upon the contractor or subcontractor in the same manner as service of summons or by certified mail, return receipt requested. The notice will include:

(a) A reference to ORS 279C.840;

(b) A short and concise statement of the matters which constitute intentional failure or refusal to pay or post the prevailing rate of wage or intentional falsification of information in the certified statements;

(c) A statement of the party's right to request a contested case hearing and to be represented by counsel at such hearing, provided that any such request must be received by the commissioner in writing within 20 days of service of the notice;

(d) A statement that the party's name will be published on a list of persons ineligible to receive public works contracts or subcontracts, unless the party requests a contested case hearing as provided in section (5)(c) of this rule;

(e) A statement that failure to make written request to the commissioner for a contested case hearing within the time specified will constitute a waiver of the right thereto; and

(f) A statement that if a hearing is requested, the contractor or subcontractor will be given information on procedures and rights as required by ORS 183.413(2).

(6) Upon the failure of the contractor or subcontractor to request a contested case hearing within the time specified, the commissioner or the commissioner's designee will enter an order supporting the bureau's action.

(7) If a contractor or subcontractor makes a timely request for a contested case hearing, a hearing will be held in accordance with OAR 839-050-0000 to -0045 and presided over by an administrative law judge designated by the commissioner.

History

Statutory/Other Authority: ORS 651.060(4) & ORS 279C.808
Statutes/Other Implemented: OL Ch. 334 (2017) & ORS 279C.860
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0085, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 3-1996, f. & cert. ef. 1-26-96
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0090 List of Ineligibles

(1) A contractor, subcontractor or other persons and any firm, corporation, limited liability company, partnership or association in which the contractor or subcontractor has a financial interest may not receive a contract or subcontract for public works for a period of three years after the date on which the Commissioner of the Bureau of Labor and Industries publishes the contractor's or subcontractor's name on a list of persons ineligible to receive such contracts or subcontracts.

(2) The list of persons ineligible to receive contracts or subcontracts on public works shall be known as the List of Ineligibles. In addition to names referred to in section (1) of this rule, the list shall contain the date the name was placed on the list and the period of time for which the person is ineligible.

(3) The List of Ineligibles shall be published and amended as needed at any time. Such list shall be made available to the public as published or amended.

History

Statutory/Other Authority: ORS 651.060(4) & ORS 279C.808
Statutes/Other Implemented: ORS 279C.860
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05, Renumbered from 839-016-0010
BL 4-1984, f. & cert. ef. 3-13-84
BL 14-1982, f. 10-19-82, cert. ef. 10-20-82

Or. Admin. R. 839-025-0095 Removal of Names from List of Ineligibles

(1) The names of the contractor, subcontractor or other persons and the names of any firm, corporation, limited liability company, partnership or association in which the contractor, subcontractor or other persons have a financial interest shall remain on the list for the period of time for which the contractor, subcontractor or other person is ineligible.

(2) The names referred to in section (1) of this rule shall be removed from the list after the period of time for which the contractor, subcontractor or other person is ineligible has expired.

(3) The commissioner may, for good cause shown, remove a name from the list before the expiration of the period of ineligibility. If the commissioner determines good cause has been shown, the commissioner shall issue an order directing the removal of such name or names.

(4) Contractors, subcontractors or other persons, or any firm, corporation, limited liability company, partnership or association in which the contractor, subcontractor or other persons have a financial interest who desire to be removed from the list before the expiration of the period of ineligibility must show good cause for such removal. Such persons may petition the commissioner at any time during the period of ineligibility.

(5) In reviewing such petitions, the commissioner shall consider the following matters:

(a) The past history of the petitioner in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(d) Other matters which indicate to the commissioner that the petitioner is not likely to violate ORS 279C.800 to 279C.870 and these rules in the future.

(6) The commissioner shall grant or deny the petition.

History

Statutory/Other Authority: ORS 651.060(4) & 279C.808
Statutes/Other Implemented: H.B. 2646, 77th Leg., Reg. Ses. (Or2013) & ORS 279C
BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0095, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 4-1984, f. & ef. 3-13-84
BL 14-1982, f. 10-19-82, ef. 10-20-82

Or. Admin. R. 839-025-0100 Exemptions from ORS 279C.800 to 279C.870

(1) All public works are regulated under ORS 279C.800 to 279C.870 except as follows:

(a) Projects for which the total price does not exceed $50,000. As used in this section, the price of a project includes, but is not limited to, the value of work performed by every person paid by a contractor or subcontractor in any manner for the person's work on the project, but does not include the value of donated materials or work performed on the project by individuals volunteering to the public agency without pay. If the price of a project exceeds $50,000 at any time during the project, the project is not exempt from ORS 279C.800 to 279C.870.

(b) Contracts of a People's Utility District, which are regulated under ORS 261.345.

(d) Projects:

(A) That are privately owned;

(B) That use funds of a private entity;

(C) In which less than 25 percent of the square footage of a completed project will be occupied or used by a public agency; and

(D) For which less than $750,000 of funds of a public agency are used.

(E) For purposes of this rule, if none of the square footage of a completed project will be occupied or used by a public agency and no funds of a public agency are used, the provisions of paragraphs (C) and (D) of this subsection will be deemed to have been met.

(e) Projects for residential construction that are privately owned and that predominantly provide affordable housing. As used in this paragraph:

(A) "Affordable housing" means housing that serves occupants whose incomes are no greater than 60 percent of the area median income or, if the occupants are owners, whose incomes are no greater than 80 percent of the area median income.

(B) "Predominantly" means 60 percent or more.

(i) Affordable housing provided on real property owned by a public agency if the real property and related structures are leased to a private entity for 50 or more years; and

(ii) Affordable housing owned by a partnership, nonprofit corporation or limited liability company in which a housing authority, as defined in ORS 456.005, is a general partner, director or managing member and the housing authority is not a majority owner in the partnership, nonprofit corporation or limited liability company.

(2) The provisions of ORS 279C.840 and these rules that regulate payment of the prevailing rate of wage do not apply to:

(a) Inmates of the Oregon Department of Corrections assigned to:

(A) A work release program or otherwise working in gainful private employment pursuant to ORS 144.480, relating to prison inmate labor; or

(B) State Parks and Recreation Department projects to improve, maintain and repair buildings and property at state parks and recreation areas pursuant to ORS 390.195(1).

(b) Oregon Youth Conservation Corps members.

(3) Pursuant to ORS 352.138, universities with governing boards are exempt from the following Prevailing Wage Rate statutes: ORS 279C.805; ORS 279C.807; ORS 279C.808; ORS 279C.815; ORS 279C.817; ORS 279C.820; and ORS 279C.829. This exemption, however, does not apply to an agreement under the terms of which a private entity constructs, reconstructs, renovates or paints an improvement on real property owned by a university with a governing board or by a nonprofit organization or other entity that a university with a governing board owns or controls exclusively.

(4) A public agency is not subject to ORS 279C.800 to 279C.870 if the public agency only provides funds for a public works project that are not "funds of a public agency" as that phrase is defined in OAR 839-025-0004, or, if the public agency will use or occupy less than 25% of the square footage of the completed public works project and less than 25% of combined square footage of the completed project will be used or occupied by public agencies.

(5) Notwithstanding the provisions of sections (1), (2), (3), and (4) of this rule, public works as defined in ORS 279C.800(6)(a)(D) are not exempt from ORS 279C.800 to 279C.870.

History

Statutory/Other Authority: ORS 651.060 & ORS 279C.808
Statutes/Other Implemented: ORS 390.195
BLI 20-2024, amend filed 10/18/2024, effective 10/21/2024
BLI 26-2021, minor correction filed 12/22/2021, effective 12/22/2021
BLI 2-2016, f. & cert. ef. 3-31-16
BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru 1-27-08
BLI 18-2006, f. 5-12-06, cert. ef. 5-15-06
BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06
Renumbered from 839-016-0100, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 15-2001, f. & cert. ef. 11-14-01
BL 1-1998, f. & cert. ef. 1-5-98
BL 3-1996, f. & cert. ef. 1-26-96
BL 4-1984, f. & ef. 3-13-84

Or. Admin. R. 839-025-0150 Definitions Related to Installation of Art on Public Works

(1) For purposes of this rule and OAR 839-025-0155, notwithstanding the definitions in 839-025-0004:

(a) “Construction,” “reconstruction,” and “major renovation” do not include the installation of applied art.

(b) “Worker” does not include an individual whose primary duty consists of the performance of work that is original and creative in character in a recognized field of artistic endeavor (as contrasted to work which can be produced by an individual endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination or talent of the individual.

(2) The installation of applied art includes, but is not limited to, the installation of pictures (including paintings, etchings, drawings and photographs), all hangings, pieces of sculpture, statues and other artistic pieces which are independent unto themselves and are not necessary to the structural integrity of the public work.

(3) Installation work necessary to the structural integrity of a public work includes, but is not limited to, the installation of windows, ceiling tiles, brick and concrete masonry, sheet metal or other fascia materials, siding of any kind, lights, support beams and any item necessary to the construction of the actual public work itself, or to the health and safety of persons who use or will use the public work. The painting of a public work, or any of its parts is considered necessary to the structural integrity of the public work.

(4) Work considered to be "de minimus" means work not regulated under ORS 279C.800 to 279C.870 or these rules.

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348 - 279.363
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0150, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 8-1984, f. & ef. 6-21-84

Or. Admin. R. 839-025-0155 Payment of Prevailing Rate of Wage for the Installation of Art on Public Works Projects

(1) Workers engaged in the installation of art necessary to the structural integrity of the public work, as defined in these rules, must be paid no less than the applicable prevailing rate of wage as determined by the Commissioner.

(2) Workers engaged in the installation of applied art, as defined in these rules, are not required to be paid the prevailing rate of wage when such work is the only work in which the worker is engaged while employed on the public work project. Such work is considered de minimus as defined in these rules.

(3) Any artist whose primary duties consist of those described in OAR 839-025-0150(1)(b) is not required to be paid the prevailing rate of wage, even when the artist is engaged in the installation of art necessary to the structural integrity of the public work when the art is of the artist’s own creation.

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.342
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
Renumbered from 839-016-0155, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 8-1984, f. & ef. 6-21-84

Or. Admin. R. 839-025-0200 Public Works Fee

(1)(a) A public agency must pay a fee to the Bureau for every contract awarded to a contractor for a public work that is regulated under ORS 279C.800 to 279C.870.

(b) When a project is a public works project described in ORS 279C.800(6)(a) and no public agency awards a contract to a contractor for the project, the public agency may require an awardee or other third party to pay the fee to the Bureau in accordance with this rule. The public agency remains liable for the failure to pay the fee in accordance with this rule.

(2) The amount of the fee is one tenth of one percent (.001) of the contract price. However, the fee must be no less than $250 nor more than $12,500 regardless of the contract price.

(3) The public agency must pay the fee at the time the notice described in OAR 839-025-0013 is provided to the Bureau.

(4) In order to assist public agencies in the proper calculation of the fee, the bureau has prepared a form for this purpose. The form, WH-39, is available, on request, from the Bureau.

(5) As used in this rule, "contract price" means the dollar amount of the contract on the date it was awarded to the contractor and the dollar amount of any subsequent change orders or other adjustments.

[ED. NOTE: Forms referenced are available from the Bureau.]

History

Statutory/Other Authority: ORS 279C.808, ORS 279C.825 & ORS 651.060
Statutes/Other Implemented: ORS 279C.825
BLI 8-2026, amend filed 08/11/2026, effective 08/12/2026
BLI 7-2026, temporary amend filed 07/01/2026, effective 07/01/2026 through 10/31/2026
BLI 5-2026, amend filed 06/12/2026, effective 07/01/2026
BLI 4-2026, temporary amend filed 06/02/2026, effective 06/05/2026 through 10/31/2026
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0200, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0210 Adjustment of Fees Paid by Public Agency

(1) Within 30 days of the final progress payment to the contractor by the public agency after completion of the contract, the public agency must determine the final contract price. The public agency must consider all change orders or other adjustments to the contract price in making the determination.

(2) The public agency must calculate the fee in accordance with OAR 839-025-0200(2) and must credit the amount paid pursuant to 839-025-0200(3). The difference, if any, must be determined as follows:

(a) In the case of a reduction of more than $100 in the amount of the fee, the public agency may submit a request to the bureau for a refund of the difference and the bureau will pay a refund to the public agency;

(b) In the case of an increase of more than $100 in the amount of the fee, the public agency must pay the difference to the bureau.

(3) Requests for refunds and additional payments must be submitted with sufficient documentation to show how the amount to be refunded or to be paid was calculated. All such requests or payments must be made to the Prevailing Wage Rate Unit within 30 days after the date the final progress payment was made to the contractor by the public agency after completion of the contract.

(4) In order to assist public agencies in the proper calculation of the fee, the bureau has prepared a form for this purpose. The form, WH-40, is available, on request, from the Prevailing Wage Rate Unit.

[ED. NOTE: Forms referenced are available from the agency.]

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348 - 279.380
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0210, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0220 Fees for Contract Without Specific Award Amounts

(1) When a project is a public work subject to ORS 279C.800 to 279C.870, but the contract is awarded without stating any specific amount, the contract price for purposes of calculating the fee shall be based on the amount the public agency anticipates to be the guaranteed maximum amount of the project.

(2) When the contract is completed, adjustments in the fees shall be calculated and paid or a refund may be requested as provided in OAR 839-025-0210.

(3) When the public agency has not determined the guaranteed maximum amount, the agency shall make a good faith estimate of the contract price. The fee shall be calculated on this estimated amount.

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348 - 279.380
BLI 42-2007, 12-28-07, cert. ef. 1-1-08
BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06
Renumbered from 839-016-0220, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0230 Fees for Contracts with Other Special Circumstances

(1) When a public agency enters into an agreement for construction management services or chooses to act as its own general contractor or construction manager in connection with a public works project subject to ORS 279C.800 to 279C.870, the contract price for purposes of determining whether the project is regulated under the law shall be the sum of all contracts associated with the project or, if the actual sums are not known at the time work begins, the contract price shall be the guaranteed maximum amount for the project or the agency's good faith estimate of the contract price of the project if there is no guaranteed maximum amount.

(2) When a public agency contracts with a contractor to act as the general manager of a public works project, the contract for general manager services is a public works contract for purposes of these rules and a fee is required just as it is for any other public works contract, since the contract would not have been entered into but for the public works project.

(3) When a public agency acts as its own general contractor and enters into one or several contracts in connection with a public works project subject to ORS 279C.800 to 279C.870, the public agency is required to pay the fee in connection with each contract awarded to each contractor. The fee is required on all contracts, regardless of the contract price of any individual contract, so long as the combined price of all contracts awarded on the project is $50,000 or more.

(4) When a project is a public works project pursuant to ORS 279C.800(6)(a)(B) and no public agency awards a contract to a contractor for the project, the public agency or agencies providing public funds for the project shall pay the required fee at the time the public agency or agencies commit(s) to the provision of funds for the project. The amount of the fee shall be based on the total project amount. When the amount of the project is not known by the public agency or agencies providing public funds for the project, the public agency or agencies shall pay the required fee pursuant to the provisions of OAR 839-025-0220.

(5) When a project is a public works project pursuant to ORS 279C.800(6)(a)(C) and no public agency awards a contract to a contractor for the project, the public agency or agencies that will occupy or use the completed project shall pay the required fee when the agency or agencies enter(s) into an agreement to occupy or use the completed project. The amount of the fee shall be based on the total project amount. When the amount of the project is not known by the public agency or agencies that will occupy or use the completed project, the public agency or agencies shall pay the required fee pursuant to the provisions of OAR 839-025-0220.

(6) When a project is a public works project pursuant to ORS 279C.800(6)(a)(D) and no public agency awards a contract to a contractor for the project, the public agency that owns the land, premise(s), structure(s), or building(s) on which the solar radiation device will be constructed or installed shall pay the required fee at the time the public agency enters into an agreement authorizing the construction or installation of the solar radiation device. The amount of the fee shall be based on the total project amount. When the amount of the project is not known by the public agency, the public agency shall pay the required fee pursuant to the provisions of OAR 839-025-0220.

(7) When a project is a public works project pursuant to ORS 279C.800(6)(a)(E) and no public agency awards a contract to a contractor for the project, the public university listed in ORS 352.002 that owns the land, premise(s), structure(s), or building(s) on which the construction, reconstruction, major renovation, demolition, removal of hazardous waste or painting takes place shall pay the required fee at the time the public university enters into an agreement authorizing the construction, reconstruction, major renovation, demolition, removal of hazardous waste or painting. The amount of the fee shall be based on the total project amount. When the amount of the project is not known the public university shall pay the required fee pursuant to the provisions of OAR 839-025-0220.

(8) If a project is a public works of the type described in ORS 279C.800(6)(a)(F) and no public agency awards a contract to a contractor for the project, the public agency or agencies providing public funds for the project or the public agency that owns the real property on which the demolition or removal of hazardous waste take place shall pay the required fee. The fee shall be paid at the time the public agency or agencies commit(s) to the provision of funds for the project, or at the time the public agency authorizes demolition or hazardous waste removal work to be performed. The amount of the fee shall be based on the total project amount. When the amount of the project is not known, the public agency or agencies shall pay the required fee pursuant to the provisions of OAR 839-025-0220.

(9) When more than one public agency is required to pay a fee pursuant to this rule, the amount of the fee owed by each public agency shall, if not otherwise previously agreed upon by the agencies, be pro-rated proportionately based on the amount of public funds provided or space occupied or used by each agency.

History

Statutory/Other Authority: ORS 651.060 & ORS 279C.808
Statutes/Other Implemented: ORS 279C.800 - 279C.870
BLI 20-2024, amend filed 10/18/2024, effective 10/21/2024
BLI 2-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06
Renumbered from 839-016-0230, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0300 Actions that Circumvent Payment of Prevailing Wages Prohibited

No person shall take any action which circumvents the payment of the prevailing wage rate to workers on public works projects.

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348 - 279.380
Renumbered from 839-016-0300, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0310 Division of Projects

(1)(a) A person or public agency may not divide a public works project into more than one project for the purpose of avoiding compliance with ORS 279C.800 to 279C.870.

(b) When making a determination of whether a person or public agency divided a public works project to avoid compliance with ORS 279C.800 to 279C.870, the commissioner will consider the facts and circumstances in any given situation including, but not limited to, the following matters:

(A) The physical separation of project structures;

(B) Whether a single public works project includes several types of improvements or structures;

(D) Whether the structures or improvements are similar to one another and combine to form a single, logical entity having an overall purpose or function;

(E) Whether the work on the project is performed in one time period or in several phases as components of a larger entity;

(F) Whether a contractor or subcontractor and their employees are the same or substantially the same throughout the particular project;

(G) The manner in which the public agency and the contractors administer and implement the project;

(H) Other relevant matters as may arise in any particular case.

(c) If the commissioner determines that a person or public agency has divided a public works project for the purpose of avoiding compliance with ORS 279C.800 to 279C.870, the commissioner will issue a written order compelling compliance with 279C.800 to 279C.870. The order will offer the person or public agency the opportunity to contest the order pursuant to OAR 839-050-0000 through 839-050-0420.

(2) Regardless of whether the commissioner believes that a person or public agency divided a public works project for the purpose of avoiding compliance with ORS 279C.800 to 279C.870, the commissioner may apply the considerations set forth in subsection (1)(b) of this rule to determine whether to divide a public works project into more than one contract.

(3) If a project is a public works of the type described in ORS 279C.800(6)(a)(B) or (C), the commissioner shall divide the project, if appropriate, after applying the considerations set forth in section (1)(b) of this rule to separate the parts of the project that include funds of a public agency or that will be occupied or used by a public agency from the parts of the project that do not include funds of a public agency and that will not be occupied or used by a public agency. If the commissioner divides the project, any part of the project that does not include funds of a public agency and that will not be occupied or used by a public agency is not subject to 279C.800 to 279C.870.

(4) If a project includes parts that are owned by a public agency and parts that are owned by a private entity, the commissioner shall divide the project, if appropriate, after applying the considerations set forth in sections (1)(b) and (2) of this rule to separate the parts of the project that are public works from the parts of the project that are not public works. If the commissioner divides the project, parts of the project that are not public works are not subject to ORS 279C.800 to 279C.870.

(5) When a private project for the construction, reconstruction, major renovation, demolition, hazardous waste removal or painting of a privately owned road, highway, building, structure or improvement of any type that is already underway becomes a public works project by virtue of the provisions of ORS 279C.800(6)(a)(B) or (C), the provisions of 279C.800 to 279C.870 apply prospectively to the project once any public agency commits to the provision of funds for the project or any public agency enters into an agreement to occupy or use any portion of the completed project. If a public agency delays a commitment to the provision of funds or delays entry into an agreement for occupancy or use for the purpose of avoiding compliance with 279C.800 to 279C.870, the commissioner may determine that the provisions of 279C.800 to 279C.870 shall apply to the entire public works project under section (1) of this rule.

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060
Statutes/Other Implemented: ORS 279C.800-279C.870
BLI 20-2024, amend filed 10/18/2024, effective 10/21/2024
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru 1-27-08
Renumbered from 839-016-0310, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0320 Payment of Prevailing Wage by Persons Other than Contractors or Subcontractors Prohibited

(1) Except as provided herein, no person, other than the contractor or subcontractor, shall pay or contribute any portion of the prevailing rate of wage specified in the contract to workers employed on the public works contract.

(2) A contractor or subcontractor violates ORS 279C.840(6)(a) and section (1) of this rule if another contractor, subcontractor, public agency, surety, or person pays the prevailing rate of wage or contributes any portion of the prevailing rate of wage that the contractor or subcontractor owes or pays to its workers for labor performed on a public works project.

(3) Section (1) of this rule does not apply to payments to workers who are enrolled in government-subsidized training or retraining programs.

(4) For purposes of this rule, a person pays or contributes to the payment of the prevailing rate of wage when a contractor or subcontractor receives monies pursuant to a program, plan or other agreement that includes a provision that members of a labor organization contribute part of their wages to the labor organization for the purpose of paying contractors or subcontractors the difference in the wage rate negotiated under the collective bargaining agreement and the wage rate used by the contractor or subcontractor in obtaining a contract. However, a person does not pay or contribute to the payment of the prevailing rate of wage when the contractor or subcontractor receives monies pursuant to such program, plan or agreement if the collectively bargained wage rate exceeded the prevailing rate of wage in effect at the time the contractor or subcontractor made a bid on a contract.

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.840(6)(a) & OL Ch. 334 (2017)
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 2-2016, f. & cert. ef. 3-31-16
Renumbered from 839-016-0320, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0330 Wage Averaging Prohibited

(1) No contractor or subcontractor shall reduce a worker's regular rate of pay for work on projects not subject to the Prevailing Wage Rate Law (ORS 279C.800 to 279C.870) when the reduction in pay has the effect of the worker not receiving the prevailing rate of wage for work performed on the public works project.

(2) As used in this rule, "regular rate" has the same meaning as that defined in OAR 839-020-0030(2)(b).

(3) When making a determination of whether a contractor or subcontractor has reduced a worker's regular rate in violation of section (1) of this rule, the bureau shall consider:

(a) The timing of the wage rate reduction;

(b) Whether the wage rate reduction was made pursuant to an established plan;

(d) Whether the wage rate reductions are applied to workers employed on public works projects but not to workers employed only on projects not subject to the Prevailing Wage Rate Law (ORS 279C.800 to 279C.870);

(e) Other considerations as the facts and circumstances of a particular matter may reveal.

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348 - 279.380
Renumbered from 839-016-0330, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0340 Circumventions of the Prevailing Wage Rate Law

(1) A public agency circumvents the payment of the prevailing rate of wage when it knowingly or intentionally:

(a) Fails or refuses to include a provision stating the existing prevailing rate of wage in the contract specifications in violation of ORS 279C.830;

(b) Fails or refuses to include a provision in the contract that workers on the contract shall be paid no less than the specified minimum hourly rate of wage in violation of ORS 279C.830;

(d) Awards a contract to a contractor whose name appears on the list of ineligibles maintained pursuant to ORS 279C.860.

(2) The "specified minimum hourly rate of wage" as used in section (1)(b) of this rule means the applicable prevailing rate of wage.

(3) A contractor circumvents the payment of the prevailing rate of wage when it knowingly or intentionally awards a contract to a contractor whose name appears on the list of ineligibles maintained pursuant to ORS 279C.860.

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348 - 279.380
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru 1-27-08
Renumbered from 839-016-0340, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0500 Definitions Related to Civil Penalties for Violations of Prevailing Wage Rates on Public Works Matters

As used in OAR 839-025-0500 to 839-025-0540, a person acts knowingly when the person has actual knowledge of a thing to be done or omitted or should have known the thing to be done or omitted. A person should have known the thing to be done or omitted if the person has knowledge of facts or circumstances that would place the person on reasonably diligent inquiry. A person acts knowingly if the person has the means to be informed but elects not to do so. For purposes of the rule, the contractor, subcontractor and public agency are presumed to know the circumstances of the public works project.

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060
Statutes/Other Implemented: ORS 279C.800-279C.870
BLI 20-2024, amend filed 10/18/2024, effective 10/21/2024
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0500, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0510 Violations Separate and Distinct

Each violation is separate and distinct. In the case of continuing violations, each day's continuance is a separate and distinct violation.

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348 - 279.380
Renumbered from 839-016-0510, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0520 Criteria to Determine Civil Penalty

(1) The commissioner shall consider the following mitigating and aggravating circumstances when determining the amount of any civil penalty to be assessed against a contractor, subcontractor or public agency and shall cite those the commissioner finds to be applicable:

(a) The actions of the contractor, subcontractor or public agency in responding to previous violations of statutes and rules;

(b) Prior violations, if any, of statutes and rules;

(d) The magnitude and seriousness of the violation;

(e) Whether the contractor, subcontractor or public agency knew or should have known of the violation.

(2) It shall be the responsibility of the contractor, subcontractor or public agency to provide the commissioner with evidence of any mitigating circumstances set out in section (1) of this rule.

(3) In arriving at the actual amount of the civil penalty, the commissioner shall consider the amount of the underpayment of wages, if any, in violation of any statute or rule.

(4) Notwithstanding any other section of this rule, the commissioner shall consider all mitigating circumstances presented by the contractor, subcontractor or public agency for the purpose of reducing the amount of the civil penalty to be assessed.

History

Statutory/Other Authority: ORS 279 & 651
Statutes/Other Implemented: ORS 279.348 - 279.380
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0520, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0530 Violations for Which a Civil Penalty May Be Assessed

(1) The Commissioner may assess a civil penalty for each violation of any provision of the Prevailing Wage Rate Law (ORS 279C.800 to 279C.870) and for each violation of any provision of the administrative rules adopted under the Prevailing Wage Rate Law.

(2) For purposes of this section, a failure to pay the required prevailing rate of wage and a failure to pay required fringe benefits are separate violations.

(3) Civil penalties may be assessed against any contractor, subcontractor or public agency regulated under the Prevailing Wage Rate Law and are in addition to, not in lieu of, any other penalty prescribed by law.

(4) The commissioner may assess a civil penalty against a contractor or subcontractor for any violation described in section 1 of this rule, including but not limited to the following violations:

(a) Failure to pay the applicable prevailing rate of wage in violation of ORS 279C.840;

(b) Failure to pay the applicable hourly fringe benefit rate of wage in violation of ORS 279C.840;

(c) Failure to pay all wages due and owing to the contractor’s or subcontractor’s workers on the regular payday established and maintained under ORS 652.120 in violation of ORS 279C.840(1);

(d) Failure to post the applicable prevailing wage rates in violation of ORS 279C.840(4);

(e) Failure to post the notice describing the health and welfare or pension plans in violation of ORS 279C.840(5);

(f) Failure to include a provision in a subcontract that workers shall be paid not less than the specified minimum hourly rate of wage in violation of ORS 279C.830(1)(c);

(g) If a public works project is subject to both ORS 279C.800 to 279C.870 and to the Davis-Bacon Act (40 U.S.C. 3141 et seq.), failure to include a provision in a subcontract that workers must be paid not less than the higher of the applicable state or federal prevailing rate of wage in violation of ORS 279C.830(1)(d);

(h) Failure to include in a subcontract, either between a contractor and a subcontractor, or between a subcontractor and another subcontractor, a provision requiring the subcontractor to have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt, in violation of ORS 279C.830(2);

(i) Failure to file with the Construction Contractors Board a public works bond, as required under ORS 279C.836, before starting work on a contract or subcontract for a public works project subject to the provisions of ORS 279C.800 to 279C.870;

(j) Failure to verify that a subcontractor has filed a public works bond as required or has elected not to file a public works bond under ORS 279C.836 prior to permitting a subcontractor to start work on a public works project;

(k) Failure to file certified statements in violation of ORS 279C.845;

(l) Filing inaccurate or incomplete certified statements in violation of ORS 279C.845;

(m) Failure to retain 25 percent of the amount the first-tier subcontractor earned when the first-tier subcontractor fails to submit payroll and certified statement forms to the public agency in violation of ORS 279C.845;

(n) Reducing an employee's pay in violation of ORS 279C.840(7);

(o) Taking action to circumvent the payment of the prevailing wage, other than subsections (k) and (m) of this section, in violation of ORS 279C.840(7);

(p) Failure to submit reports and returns in violation of ORS 279C.815(3);

(q) Failure to certify the accuracy of reports and returns in violation of ORS 279C.815(3);

(r) Receiving a public works contract or subcontract while on the list of ineligibles in violation of ORS 279C.860;

(s) Awarding a contract to a contractor or subcontractor whose name appears on the list of ineligibles maintained pursuant to ORS 279C.860;

(t) Failure to contribute fringe benefit wages timely to a trustee or to a third person pursuant to a plan, fund or program on a “regular basis” and “not less often than quarterly,” as those terms are defined in OAR 839-025-0043.

(5) The commissioner may assess a civil penalty against a public agency for any violation described in section 1 of this rule, including but not limited to the following violations:

(a) Failure to include in the specifications for a public works contract a provision stating the applicable existing prevailing wage rate in violation of ORS 279C.830(1)(a);

(b) If a public works project is subject to both ORS 279C.800 to 279C.870 and to the Davis-Bacon Act (40 U.S.C. 3141 et seq.), failure to require the contractor to pay the higher of the applicable state prevailing rate of wage or federal prevailing rate of wage to all workers in violation of ORS 279C.830(1)(b);

(c) Failure to include a contract provision stating that workers must be paid the applicable prevailing rate of wage in violation of ORS 279C.830(1)(c);

(d) If a public works project is subject to both ORS 279C.800 to 279C.870 and to the Davis-Bacon Act (40 U.S.C. 3141 et seq.), failure to include a contract provision stating that workers on public works must be paid not less than the higher of the applicable state prevailing rate of wage or federal prevailing rate of wage in violation of ORS 279C.830(1)(d);

(e) Failure to include in the specifications for a contract for a public works a provision stating that the contractor and every subcontractor must have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt, in violation of ORS 279C.830(2);

(f) Failure to include in a contract for a public works a provision requiring the contractor to have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt, in violation of ORS 279C.830(2)(a);

(g) Failure to include in a contract for a public works a provision requiring the contractor to include in every subcontract a provision requiring the contractor to have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt, in violation of ORS 279C.830(2)(b);

(h) Failure to notify the commissioner when a contract subject to the provisions of ORS 279C.800 to 279C.870 has been awarded in violation of ORS 279C.835, or failure to notify the commissioner in violation of OAR 839-025-0013 when a project is a public works project pursuant to ORS 279C.800(6)(a)(B), ORS 279C.800(6)(a)(C), ORS 279C.800(6)(a)(D), ORS 279C.800(6)(a)(E) or ORS 279C.800(6)(a)(F);

(i) Dividing a public works project in violation of ORS 279C.827;

(j) Failure to include a copy of the disclosure of first-tier subcontractors with the Notice of Public Works in violation of ORS 279C.835;

(k) Failure to retain 25 percent of the amount the contractor earned when the contractor fails to submit payroll and certified statement forms to the public agency in violation of ORS 279C.845;

(l) Failure to timely pay the fee required in violation of ORS 279C.825;

(m) Awarding a contract to a contractor whose name appears on the list of ineligibles maintained pursuant to ORS 279C.860;

(n) Entering into an agreement with another state or a political subdivision or agency of another state agreeing that a contractor or subcontractor may pay less than the prevailing rate of wage determined in accordance with ORS 279C.815 under the terms of a contract for public works to which the contracting agency is a party or of which the contracting agency is a beneficiary in violation of ORS 279C.829.

(o) Failure to comply with the state's least cost policy in violation of ORS 279C.305 or material breach of an agreement negotiated by the public agency and a contractor or trade association to remedy a violation of ORS 279C.305 and prevent future violations.

History

Statutory/Other Authority: ORS 651.060 & ORS 279C.808
Statutes/Other Implemented: ORS 279C.800 - 279C.870
BLI 4-2025, amend filed 03/07/2025, effective 03/10/2025
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 2-2016, f. & cert. ef. 3-31-16
BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14
BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11
BLI 3-2011(Temp), f. & cert. ef. 6-8-11 thru 12-4-11
BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru 1-27-08
BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06
Renumbered from 839-016-0530, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 1-1998, f. & cert. ef. 1-5-98
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0540 Schedule of Civil Penalties

(1) The civil penalty for any one violation may not exceed $5,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) For purposes of this rule, "repeated violations" means violations of a provision of law or rule which has been violated on more than one project within two years of the date of the most recent violation.

(3) Notwithstanding any other section of this rule, when the commissioner determines to assess a civil penalty for a violation of ORS 279C.840 regarding the payment of the prevailing rate of wage, the minimum civil penalty will be calculated as follows:

(a) An equal amount of the unpaid wages or $1,000, whichever is less, for the first violation;

(b) Two times the amount of the unpaid wages or $3,000, whichever is less, for the first repeated violation;

(c) Three times the amount of the unpaid wages or $5,000, whichever is less, for second and subsequent repeated violations.

(4) Notwithstanding any other section of this rule, when the commissioner determines to assess a civil penalty for a violation of ORS 279C.825, or OAR 839-025-0200, or 839-025-0220 regarding fees to be paid by a public agency, the minimum civil penalty to be assessed will be calculated as follows:

(a) An equal amount of the unpaid fee or $1,000, whichever is greater, for the first violation;

(b) Two times the amount of the unpaid fee or $3,000, whichever is greater, for the second violation;

(5) Notwithstanding any other section of this rule, when the commissioner determines that a public agency willfully engaged in a violation of the least cost policy set forth in ORS 279C.305, the commissioner may assess a civil penalty of not more than $20,000.

(6) The civil penalty for all other violations will be set in accordance with the determinations and considerations referred to in OAR 839-025-0520.

(7) The civil penalties set out in this rule are in addition to any other penalty assessed or imposed by law or rule.

History

Statutory/Other Authority: ORS 279C.808 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.305, .825, .840 & OL Ch. 715 (2017)
BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018
BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08
Renumbered from 839-016-0540, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05
BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02
BL 3-1996, f. & cert. ef. 1-26-96

Or. Admin. R. 839-025-0700 Prevailing Wage Rate Determination/Amendments to Determination

(1) Pursuant to ORS 279C.815, the Commissioner of the Bureau of Labor and Industries has determined that for the period beginning September 3, 2026, the prevailing rates of wage for workers upon public works in each trade or occupation in the locality where work is performed are the wage rates stated in the publication of the Oregon Bureau of Labor and Industries entitled Prevailing Wage Rates for Public Works Contracts dated September 3, 2026.

(2) Copies of the Prevailing Wage Rates for Public Works Contracts dated September 3, 2026, are available on the Bureau’s webpage at www.oregon.gov/boli.

History

Statutory/Other Authority: ORS 651.060 & ORS 279C.808
Statutes/Other Implemented: ORS 279C.815
BLI 9-2026, amend filed 09/02/2026, effective 09/03/2026
BLI 6-2026, amend filed 07/01/2026, effective 07/05/2026
BLI 3-2026, amend filed 04/02/2026, effective 04/05/2026
BLI 2-2026, amend filed 02/17/2026, effective 02/18/2026
BLI 1-2026, amend filed 01/05/2026, effective 01/05/2026
BLI 10-2025, amend filed 10/02/2025, effective 10/05/2025
BLI 9-2025, amend filed 06/27/2025, effective 07/05/2025
BLI 7-2025, amend filed 04/04/2025, effective 04/05/2025
BLI 21-2024, amend filed 12/31/2024, effective 01/05/2025
BLI 19-2024, amend filed 10/04/2024, effective 10/05/2024
BLI 16-2024, amend filed 07/01/2024, effective 07/05/2024
BLI 12-2024, amend filed 04/05/2024, effective 04/05/2024
BLI 4-2024, amend filed 01/04/2024, effective 01/05/2024
BLI 16-2023, amend filed 10/04/2023, effective 10/05/2023
BLI 6-2023, amend filed 07/06/2023, effective 07/06/2023
BLI 5-2023, minor correction filed 07/05/2023, effective 07/05/2023
BLI 3-2023, amend filed 04/05/2023, effective 04/05/2023
BLI 2-2023, amend filed 01/17/2023, effective 01/17/2023
BLI 1-2023, amend filed 01/10/2023, effective 01/11/2023
BLI 16-2022, amend filed 09/29/2022, effective 10/01/2022
BLI 8-2022, amend filed 06/30/2022, effective 07/01/2022
BLI 5-2022, amend filed 03/31/2022, effective 04/01/2022
BLI 30-2021, amend filed 12/29/2021, effective 01/01/2022
BLI 29-2021, minor correction filed 12/27/2021, effective 12/27/2021
BLI 24-2021, amend filed 11/12/2021, effective 11/12/2021
BLI 15-2021, amend filed 09/28/2021, effective 10/01/2021
BLI 12-2021, amend filed 07/29/2021, effective 08/01/2021
BLI 6-2021, amend filed 06/11/2021, effective 07/01/2021
BLI 5-2021, amend filed 03/26/2021, effective 04/01/2021
BLI 10-2020, amend filed 12/16/2020, effective 01/01/2021
BLI 9-2020, amend filed 09/23/2020, effective 10/01/2020
BLI 6-2020, amend filed 06/19/2020, effective 07/01/2020
BLI 2-2020, amend filed 01/29/2020, effective 02/01/2020
BLI 1-2020, amend filed 01/24/2020, effective 02/01/2020
BLI 19-2019, amend filed 12/12/2019, effective 01/01/2020
BLI 11-2019, amend filed 09/24/2019, effective 10/01/2019
BLI 7-2019, amend filed 06/12/2019, effective 07/01/2019
BLI 3-2019, amend filed 03/22/2019, effective 04/01/2019
BLI 2-2019, amend filed 03/13/2019, effective 04/01/2019
BLI 26-2018, amend filed 12/17/2018, effective 01/01/2019
BLI 25-2018, amend filed 12/12/2018, effective 01/01/2019
BLI 21-2018, amend filed 09/27/2018, effective 10/01/2018
BLI 20-2018, amend filed 09/25/2018, effective 10/02/2018
BLI 17-2018, amend filed 06/08/2018, effective 07/01/2018
BLI 8-2018, amend filed 03/20/2018, effective 04/01/2018
BLI 7-2017, amend filed 12/14/2017, effective 01/01/2018
BLI 3-2017, amend filed 11/28/2017, effective 11/28/2017
BLI 2-2017, f. 6-12-17, cert. ef. 7-1-17
BLI 7-1998(Temp), f. & cert. ef. 10-29-98 thru 4-27-99; BLI 1-1999, f. 1-8-99, cert. ef. 1-15-99; BLI 4-1999, f. 6-16-99, cert. ef. 7-1-99; BLI 6-1999, f. & cert. ef. 7-23-99; BLI 9-1999, f. 9-14-99, cert. ef. 10-1-99: BLI 16-1999, f. 12-8-99, cert. ef. 1-1-00; BLI 4-2000, f. & cert. ef. 2-1-00; BLI 9-2000, f. & cert. ef. 3-1-00; BLI 10-2000, f. 3-17-00, cert. ef. 4-1-00; BLI 22-2000, f. 9-25-00, cert. ef. 10-1-00; BLI 26-2000, f. 12-14-00 cert. ef. 1-1-01; BLI 1-2001, f. & cert. ef. 1-5-01; BLI 3-2001, f. & cert. ef. 3-15-01; BLI 4-2001, f. 3-27-01, cert. ef. 4-1-01; BLI 5-2001, f. 6-21-01, cert. ef. 7-1-01; BLI 8-2001, f. & cert. ef. 7-20-01; BLI 14-2001, f. 9-26-01, cert. ef. 10-1-01; BLI 16-2001, f. 12-28-01, cert. ef. 1-1-02; BLI 2-2002, f. 1-16-02, cert. ef. 1-18-02; BLI 8-2002, f. 3-25-02, cert. ef. 4-1-02; BLI 12-2002 f. 6-19-02 cert. ef. 7-1-02; BLI 16-2002, f. 12-24-02 cert. ef. 1-1-03; BLI 1-2003, f. 1-29-03, cert. ef. 2-14-03; BLI 3-2003, f. & cert. ef. 4-1-03; BLI 4-2003, f. 6-26-03, cert. ef. 7-1-03; BLI 5-2003, f. 9-17-03, cert. ef. 10-1-03; BLI 9-2003, f. 12-31-03, cert. ef. 1-5-04; BLI 1-2004, f. 4-9-04, cert. ef. 4-15-04; BLI 6-2004, f. 6-25-04, cert. ef. 7-1-04; BLI 11-2004, f. & cert. ef. 10-1-04; BLI 17-2004, f. 12-10-04 cert. ef. 12-13-04; BLI 18-2004, f. 12-20-04, cert. ef. 1-1-05; BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05, Renumbered from 839-016-0700; BLI 8-2005, f. 3-29-05, cert. ef. 4-1-05; BLI 18-2005, f. 9-19-05, cert. ef. 9-20-05; BLI 19-2005, f. 9-23-05, cert. ef. 10-1-05; BLI 26-2005, f. 12-23-05, cert. ef. 1-1-06; BLI 1-2006, f. 1-24-06, cert. ef. 1-25-06; BLI 2-2006, f. & cert. ef. 2-9-06; BLI 4-2006, f. 2-23-06, cert. ef. 2-24-06; BLI 14-2006, f. 3-30-06, cert. ef. 4-1-06; BLI 20-2006, f. & cert. ef. 6-16-06; BLI 21-2006, f. 6-16-06 cert. ef. 7-1-06; BLI 23-2006, f. 6-27-06 cert. ef. 6-29-06; BLI 25-2006, f. & cert. ef. 7-11-06; BLI 26-2006, f. & cert. ef. 7-13-06; BLI 28-2006, f. 7-21-06, cert. ef. 7-24-06; BLI 29-2006, f. 8-8-06, cert. ef. 8-9-06; BLI 32-2006, f. & cert. ef. 9-13-06; BLI 33-2006, f. 9-28-06, cert. ef. 10-1-06; BLI 36-2006, f. & cert. ef. 10-4-06; BLI 37-2006, f. & cert. ef. 10-19-06; BLI 40-2006, f. 11-17-06, cert. ef. 11-20-06; BLI 43-2006, f. 12-7-06, cert. ef. 12-8-06; BLI 45-2006, f. 12-26-06, cert. ef. 1-1-07; BLI 5-2007, f. 1-30-07, cert. ef. 1-31-07; BLI 6-2007, f. & cert. ef. 3-5-07; BLI 7-2007, f. 3-28-07, cert. ef. 3-30-07; BLI 8-2007, f. 3-29-07, cert. ef. 4-1-07; BLI 9-2007, f. & cert. ef. 4-2-07; BLI 10-2007, f. & cert. ef. 4-30-07; BLI 12-2007, f. & cert. ef. 5-31-07; BLI 13-2007, f. 6-8-07, cert. ef. 6-11-07; BLI 14-2007, f. 6-27-07, cert. ef. 6-28-07; BLI 15-2007, f. & cert. ef. 6-28-07; BLI 16-2007, f. 6-29-07, cert. ef. 7-1-07; BLI 18-2007, f. 7-10-07, cert. ef. 7-12-07; BLI 21-2007, f. 8-3-07, cert. ef. 8-8-07; BLI 22-2007, cert. & ef. 8-30-07; BLI 23-2007, f. 8-31-07, cert. ef. 9-4-07; BLI 24-2007, f. 9-11-07, cert. ef. 9-12-07; BLI 25-2007, f. 9-19-07, cert. ef. 9-20-07; BLI 26-2007, f. 9-25-07 cert. ef. 9-26-07; BLI 27-2007, f. 9-25-07 cert. ef. 10-1-07; BLI 28-2007, f. 9-26-07 cert. ef. 10-1-07; BLI 31-2007, f. 11-20-07, cert. ef. 11-23-07; BLI 34-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 1-2008, f. & cert. ef. 1-4-08; BLI 2-2008, f. & cert. ef. 1-11-08; BLI 3-2008, f. & cert. ef. 2-21-08; BLI 6-2008, f. & cert. ef. 3-13-08; BLI 8-2008, f. 3-31-08, cert. ef. 4-1-08; BLI 9-2008, f. & cert. ef. 4-14-08; BLI 11-2008, f. & cert. ef. 4-24-08; BLI 12-2008, f. & cert. ef. 4-30-08; BLI 16-2008, f. & cert. ef. 6-11-08; BLI 17-2008, f. & cert. ef. 6-18-08; BLI 19-2008, f. & cert. ef. 6-26-08; BLI 20-2008, f. & cert. ef. 7-1-08; BLI 23-2008, f. & cert. ef. 7-10-08; BLI 26-2008, f. & cert. ef. 7-30-08; BLI 28-2008, f. & cert. ef. 9-3-08; BLI 30-2008, f. & cert. ef. 9-25-08; BLI 31-2008, f. 9-29-08, cert. ef. 10-1-08; BLI 32-2008, f. & cert. ef. 10-8-08; BLI 36-2008, f. & cert. ef. 10-29-08; BLI 41-2008, f. & cert. ef. 11-12-08; BLI 42-2008, f. & cert. ef. 12-1-08; BLI 44-2008, f. & cert. ef. 12-29-08; BLI 45-2008, f. 12-31-08, cert. ef. 1-1-09; BLI 1-2009, f. & cert. ef. 1-6-09, BLI 2-2009, f. & cert. ef. 1-12-09; BLI 4-2009, f. & cert. ef. 2-11-09; BLI 6-2009, f. & cert. ef. 3-17-09; BLI 7-2009, f. & cert. ef. 3-24-09; BLI 8-2009, f. 3-31-09, cert. ef. 4-1-09; BLI 10-2009, f. 6-9-09, cert. ef. 6-10-09; BLI 11-2009, f. 6-29-09, cert. ef. 6-30-09; BLI 12-2009, f. 6-29-09, cert. ef. 7-1-09; BLI 13-2009, f. & cert. ef. 7-1-09; BLI 14-2009, f. & cert. ef. 7-10-09; BLI 15-2009, f. & cert. ef. 7-16-09; BLI 16-2009, f. & cert. ef. 7-22-09; BLI 17-2009, f. & cert. ef. 7-29-09; BLI 19-2009, f. & cert. ef. 8-18-09; BLI 20-2009, f. & cert. ef. 9-14-09; BLI 21-2009, f. & cert. ef. 9-21-09; BLI 22-2009, f. 9-30-09, cert. ef. 10-1-09; BLI 23-2009, f. & cert. ef. 10-8-09; BLI 24-2009, f. & cert. ef. 11-12-09; BLI 25-2009, f. & cert. ef. 11-23-09; BLI 29-2009, f. 12-31-09, cert. ef. 1-1-10; BLI 1-2010, f. 1-8-10, cert. ef. 1-12-10; BLI 2-2010, f. 1-11-10, cert. ef. 1-13-10; BLI 3-2010, f. & cert. ef 1-19-10; BLI 4-2010, f. & cert. ef 1-27-10; BLI 13-2010, f. & cert. ef. 4-1-10; BLI 17-2010, f. 6-29-10, cert. ef. 7-1-10; BLI 20-2010, f. & cert. ef. 10-1-10; BLI 24-2010, f. 12-30-10, cert. ef. 1-1-11; BLI 2-2011, f. 3-25-11, cert. ef. 4-1-11; BLI 4-2011, f. 6-30-11, cert. ef. 7-1-11; BLI 7-2011, f. & cert. ef. 10-12-11; BLI 10-2011, f. 12-30-11, cert. ef. 1-1-12; BLI 4-2012, f. & cert. ef. 3-29-12; BLI 6-2012, f. & cert. ef. 7-2-12; BLI 10-2012, f. 9-26-12, cert. ef. 10-1-12; BLI 13-2012, f. 12-28-12, cert. ef. 1-1-13; BLI 1-2013, f. & cert. ef. 3-25-13; BLI 2-2013, f. & cert. ef. 9-20-13; BLI 3-2013, f. 9-30-13, cert. ef. 10-1-13; BLI 5-2013, f. 12-16-13, cert. ef. 1-1-14; BLI 3-2014, f. & cert. ef. 4-2-14; BLI 8-2014, f. 6-13-14, cert. ef. 7-1-14; BLI 11-2014, f. 9-24-14, cert. ef. 10-1-14; BLI 15-2014, f. 12-9-14, cert. ef. 1-1-15; BLI 3-2015, f. 3-13-15, cert. ef. 4-1-15; BLI 7-2015, f. 6-15-15, cert. ef. 7-1-15; BLI 13-2015, f. 9-3-15, cert. ef. 10-1-15; BLI 17-2015, f. 12-10-15, cert. ef. 1-1-16; BLI 1-2016, f. 3-25-16, cert. ef. 4-1-16; BLI 3-2016, f. 6-10-16, cert. ef. 7-1-16; BLI 5-2016, f. & cert. ef. 8-16-16; BLI 7-2016, f. 9-13-16, cert. ef. 10-1-16; BLI 8-2016, f. & cert. ef. 10-7-16; BLI 11-2016, f. 12-16-16, cert. ef. 1-1-17; BLI 1-2017, f. 3-15-17, cert. ef. 4-1-17

Or. Admin. R. 839-025-0800 Satellite Locations

(1) Work that meets the requirements of OAR 839-025-0004(30)(a)(G) is not a public works if a contractor, subcontractor or a public agency demonstrates by a preponderance of the evidence that the work produces:

(a) Inventory that, at the time it is produced, can with reasonable certainty, be sold on the general market or utilized on a project other than the public works project;

(b) A product that is identical to a product that was previously produced for a reason other than the public works project; or

(c) A product that was based exclusively on standard designs or standard dimensions, without modification, including but not limited to products that, before the public works solicitation was issued, were available for purchase in a catalogue or product list.

(2) The affirmative defense described in section (1) of this rule may be demonstrated at any time up to and including in a contested case proceeding.

(3) If, at the time a public works contract is required to incorporate the existing state prevailing rate of wage under OAR 839-025-0020, the applicable version of the Prevailing Wage Rates for Public Works Contracts described in OAR 839-025-0700 does not contain a rate that is expressly made applicable to work performed at a satellite location, the work is not a public works.

(4)(a) Subject to sections (1) to (3) of this rule, the prevailing rate of wage for work performed at a satellite location is the rate of wage that is applicable to the locality of the public works project listed in ORS 279C.800(6)(a)(A) to (F).

(b) The performance of work at a satellite location does not require submission of an additional notice under ORS 279C.835 or payment of an additional fee under ORS 279C.825.

(5)(a) A public agency who complies with ORS 279C.830(1) and (2) is not subject to the civil penalties described in OAR 839-025-0530(5)(a) to (g).

(b) A contractor or subcontractor who complies with ORS 279C.830(1) and (2) is not subject to the civil penalties described in OAR 839-025-0530(4)(f), (g) or (h).

(6) Nothing in this rule:

(a) Requires a contractor to serve as a training agent or otherwise participate in a Registered Apprenticeship Program; or

(b) Modifies the obligations of a journey worker to supervise an apprentice, in accordance with Division 11 and any applicable standard, at the same physical location as the apprentice.

History

Statutory/Other Authority: ORS 651.060, ORS 279C.808 & Section 3, chapter 612, Oregon Laws 2025
Statutes/Other Implemented: 279C.800-279C.870
BLI 5-2026, adopt filed 06/12/2026, effective 07/01/2026

Division 26 EMPLOYEE WORK SCHEDULES

Or. Admin. R. 839-026-0000 Definitions

As used in ORS 653.412 to ORS 653.485 and these rules:

(1) "All of the employees listed on the voluntary standby list," as used in ORS 653.455(3)(k)(C), means those employees on the voluntary standby list who are qualified and trained to perform the work for which additional hours are being offered.

(2) “Business that provides services to or on behalf of an employer,” as used in ORS 653.412(2)(b)(C), means a business that is wholly distinct from and ancillary to the covered employer’s primary business function of providing retail, hospitality or food services.

(3) “Commissioner” means the Commissioner of the Bureau of Labor and Industries.

(4) "Eligible employees," as used in ORS 653.455(1)(a), means employees who are qualified and trained to perform the work for which additional hours are being offered.

(5) “Fixed point of sale location” means the location where the employee works, or reports to work, and refers to the entirety of such location, including areas open and closed to the public.

(6) “Natural disaster or a similar cause,” as used in ORS 653.455(3)(h), means an act of nature of such magnitude that it is capable of causing severe damage to property or significantly disrupting the day-to-day patterns of life, including but not limited to floods, earthquakes, volcanic eruptions, tsunamis, wildfires, snowstorms, or extreme temperatures, or other types of hazards caused by human actions, including but not limited to fires, explosions, war or civil unrest, that are capable of causing severe damage to property or significantly disrupting the day-to-day patterns of life.

(7) “Recommendation of a public official,” as used in ORS 653.455(3)(f), means a recommendation or order from an individual serving a public entity in an official capacity as a law enforcement officer or firefighter or from a public official expressly authorized to represent a federal, state, or local governmental body or agency for purposes of emergency management.

(8) “Regular rate of pay,” for purposes of computing compensation owed to an employee who has worked during a rest period required by ORS 653.442 or whose work schedule has been changed without advance notice as described in ORS 653.455, means the regular hourly rate that the employee was to be paid for the pay period during which the compensation required by ORS 653.442 or ORS 653.455 was earned, but in no case will the regular hourly rate be less than the applicable statutory minimum wage rate. An employee’s regular rate of pay shall be determined as follows:

(a) For employees paid on the basis of a single hourly rate, the regular rate of pay means the same hourly rate the employee earned for work performed during the pay period.

(b) For employees who are paid multiple hourly rates of pay, the regular rate of pay means the hourly rate of pay the employee was to be paid for:

(A) The work period or shift that commences prior to the required 10-hour rest period having been satisfied when the employee is required to be compensated for work performed during a rest period required by ORS 653.442; or

(B) Work performed during the work period or shift affected by the employer-requested change in schedule when the employee is required to be compensated for a work schedule change pursuant to ORS 653.455; or

(C) When the employee earns multiple hourly rates of pay during the work period or shift, the weighted average of the hourly rates of pay for the work period or shift.

(c) For employees paid a salary, the regular rate of pay means the employee’s total wages earned during the pay period covered by the salary divided by the number of hours agreed to be worked in the pay period which the salary is intended to compensate. For example, if an employee is paid a weekly salary of $525 and it is understood that the salary is compensation for a regular work week of 35 hours, the employee’s regular rate of pay is $15 per hour ($525 divided by 35 hours). For an employee paid a salary whose hours of work vary from work week to work week, the regular rate of pay is determined by dividing the amount of the salary by the number of hours worked in the pay period.

(d) For employees paid on a commission or piece-rate basis only, the regular hourly rate of pay is determined by adding together the total earnings for the pay period and dividing this sum by the number of hours worked during the pay period.

(e) For employees paid an hourly, weekly or monthly wage and also paid on a commission or piece-rate basis, the regular rate of pay means the rate of pay equivalent to the employee’s hourly, weekly or monthly wage.

(f) For employees who are scheduled to work on an on-call basis, the regular rate of pay means the rate of pay the employee will earn when called in to perform work.

(g) The regular rate of pay does not include:

(B) Bonuses or other types of incentive pay;

(D) Any additional compensation an employer is required to pay an employee under ORS 653.442 or 653.455.

(9) “Unanticipated customer needs,” as used in ORS 653.432(1) and ORS 653.455(3)(k)(A), means an increase in customer demand which by its nature could not have been predicted on or before the date on which the employer issued the work schedule.

(10) “Unexpected employee absences,” as used in ORS 653.432(1) and ORS 653.455(3)(k)(A), means absences for which the employer did not have notice on or before the date on which the employer issued the work schedule.

(11) “Worker leasing company,” as used in ORS 653.412(2)(b)(B), means a worker leasing company, as defined in ORS 656.850(1), that is licensed as required by ORS 656.855.

(12) “Writing” or “written” means a printed or printable communication in physical or electronic format including a communication that is transmitted through electronic mail, text message or a computer system or is otherwise sent and stored electronically.

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

Or. Admin. R. 839-026-0010 Covered Employees and Integrated Enterprises

(1) ORS 653.412 to ORS 653.485 applies to employees who are employed in a retail, hospitality, or food services establishment and whose primary duties consist of performing activities relating to the retail, lodging or food service operations of those establishments. For example, an employer that operates a chain of restaurants employs servers, cooks, bartenders, and dishwashers to prepare and serve food and beverages. The employer also employs a bookkeeper, payroll clerk, and human resources specialist to carry out other functions for the business. While the provisions of ORS 653.412 to ORS 653.485 apply to those employees performing duties associated with food service, they do not apply to employees whose primary duties are not related to the food service operations. For the purposes of this rule, “primary duty” means, as a general rule, the major part of an employee’s time.

(2) Whether an employer is a retail, hospitality, or food services establishment for the purposes of ORS 653.412 to ORS 653.485 depends on whether the employer’s operations are classified as a retail, hospitality, or food services establishment under the 2012 North American Industry Classification System (NAICS). Where, as part of its operations, an employer provides retail, hospitality, or food services but is not classified by NAICS as a retail, hospitality, or food services establishment, the employer’s employees are not employed in a retail, hospitality, or food services establishment. For example, a hospital that, as part of its own operations, also employs employees to provide food services or operate a retail gift store is not a food services establishment or retail establishment. However, if the hospital contracts with another business to provide food services or operate a retail gift store within the hospital, and the NAICS classifies such a business as a food services or retail establishment, the business’s employees are employed in a food services or retail establishment.

(3) For purposes of ORS 653.422, separate entities are deemed to be parts of a single employer when they constitute an “integrated enterprise.” The employees of all entities making up the integrated enterprise must be counted in determining employer coverage. Whether or not separate entities form an integrated enterprise is determined by applying the factors identified in ORS 653.422(3) and section (4) of this rule. While all of the factors should be considered in assessing whether separate entities constitute an integrated enterprise, it is not necessary that all factors be present, nor is the presence of any single factor dispositive.

(4) An integrated enterprise is one in which the operations of two or more employers are intertwined to such a degree that they can be considered a single employer. The factors to be considered in determining whether separate entities should be treated as an integrated enterprise include, but are not limited to:

(a) The degree of interrelation between the operations of multiple entities, which includes but is not limited to the sharing of such management services as check writing, the preparation of mutual policy manuals, contract negotiations, and the completion of business licenses; the sharing of payroll and insurance programs; the sharing of services of managers and personnel; the shared use of office space, equipment, and storage; and the operation of the entities as a single unit;

(b) The degree to which the entities share common management, including but not limited to the utilization of the same individuals to manage or supervise the different entities and the appointment of the same individuals to be officers and directors of the entities;

(c) The degree to which the entities have centralized control of labor relations, including but not limited to the existence of a centralized source of authority for development of personnel policy; maintenance of personnel records by one entity for the other, including the screening and testing of applicants for employment; the sharing of a personnel or human resources department; the frequency of transfers and promotions of personnel between the entities; and the utilization of the same individuals to make employment decisions for both entities; and,

(d) The degree of common ownership or financial control over the entities, including but not limited to the exercise of ownership of the different entities by the same individuals and the ownership of the majority or all of the shares of one of the entities by the other; and the exercise of financial control of the different entities by the same individuals through required reporting of financial metrics, the determination of eligibility for expansion to new business locations, and requirements to meet sales or revenue targets.

(5) Pursuant to ORS 653.412(3), the definition of an employer includes any business or enterprise that is a successor to the employer, as defined in ORS 653.412(10). Whether or not a business or enterprise is substantially the same entity as the employer which preceded it is determined by applying the factors identified in section (6) of this rule, with no single factor being determinative.

(6) The factors to be considered in determining whether a business or enterprise is a successor to the employer include, but are not limited to:

(a) Substantial continuity of the same business operations, including use of the same or similar business name;

(b) Use of the same business location, including use of the same telephone number, website, or other electronic media;

(c) Period of time that elapsed between the employer’s cessation of operations and the successor employer’s initiation of operations;

(d) Substantial continuity of the work force, including supervisory personnel;

(e) Similarity of products or services; and,

(f) Use of the same machinery, equipment, or production methods.

History

Statutory/Other Authority: ORS 651.060(4) & ORS 653.422(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

Or. Admin. R. 839-026-0020 Good Faith Estimate of Work Schedule

(1) For new employees, the employer shall provide the employee, at the time of hire, with a written good faith estimate of the employee's work schedule. The good faith estimate, which must be provided in the language the employer typically uses to communicate with the employee, shall include the median number of hours as defined in section (3) of this rule the employee can expect to work in an average one-month period, an explanation of any voluntary standby list maintained by the employer pursuant to ORS 653.432, and a statement indicating whether an employee who is not on the voluntary standby list may expect to work on-call shifts and an objective standard for those periods of time in which the employer will expect the employee to be available to work on an on-call basis.

(2) A good faith estimate is a reasonable prediction which may be based on forecasts, prior hours worked by an employee or a similarly-situated employee, or other information. In the case of seasonal or episodic work, a good faith estimate may be based on an employee’s work schedule during a previous year.

(3) The median number of hours is the middle number in an odd-numbered sequence or the average of the two middle numbers in an even-numbered sequence (e.g., 4 is the median of 1, 3, 4, 10, 20; 6 is the median of 1, 3, 4, 8, 9, 10). The median number of hours must be a single number, not a range of numbers.

(4) An objective standard is a standard based on factors or criteria that can be measured or demonstrated, such as a reasonable expectation that the volume of work will increase during a particular period of time based on previous experience.

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

Or. Admin. R. 839-026-0030 Advance Notice of Work Schedule

(1) The employer shall post the written work schedule, including all work shifts and on-call shifts with specific start and end times for the work period covered by the schedule, in a conspicuous and accessible location in the employee’s workplace, both in English and in any language the employer typically uses to communicate with the employees. The employer must notify each employee at the time of hire of the location of the work schedule. For the purposes of this rule, “a conspicuous and accessible location in the employee’s workplace” may include an electronic system for providing work schedules as long as all employees are provided access to the electronic schedule at the workplace and are able to view the work schedules of all employees employed in the same location.

(2) For existing employees who are not returning from a leave of absence, the employer shall provide each employee with a written work schedule at least seven (7) calendar days before the first day of the work schedule. Beginning on July 1, 2020, the employer shall provide each employee with a written work schedule at least 14 calendar days before the first day of the work schedule.

(3) For new employees at time of hire and for existing employees returning to work after a leave of absence, the employer, on or before the employee’s first day of work, may provide the employee with a written work schedule that runs through the last date of the currently posted schedule. For all subsequent work schedules, the employer shall provide the employee with a written work schedule as required by ORS 653.436(1) and section (2) of this rule. The employer may consider the following employees “new employees or existing employees returning from a leave of absence”:

(a) New employees at time of hire;

(b) Existing employees at time of transfer, promotion, or assignment to a new job classification; and

(4) A leave of absence may be defined by law, the employer’s usual and customary policy or collective bargaining agreement. A leave of absence includes an absence from work that is mutually agreed upon by the employee and the employer or a collective bargaining agreement; leave to which the employee is entitled under local, state or federal law where the employer and employee relationship is continued; and leave imposed by the employer for a bona fide disciplinary reason.

(5) If, after the employer has provided advance notice of the work schedule to an employee, the employer requests to make changes to the schedule, the employer must provide the employee with timely notice of any change by in-person conversation, telephone, electronic mail, text message, or some other accessible electronic or written format. The employer’s notice is timely when it represents a good faith effort to contact the employee promptly and without undue delay after learning of the need for changing the employee’s work schedule. The employee may decline to work any shifts not included in the employee's written work schedule.

(6) The advance notice requirements of ORS 653.436 and this rule do not apply when an employer makes changes to an employee’s schedule as a result of a written request initiated by the employee.

(7) When an employer provides an employee with a written work schedule more than seven (7) calendar days before the first day of the work schedule (or more than 14 calendar days before the first day of the work schedule beginning July 1, 2020), and then subsequently makes changes to that schedule while there are still more than seven (7) calendar days until the first day of the schedule (or more than 14 calendar days before the first day of the schedule beginning July 1, 2020), the issuance of a written, modified work schedule is not considered to be a change to the employee’s work schedule as described in ORS 653.436(5) or ORS 653.455(2). In the case of a work schedule covering multiple workweeks, so long as any changes made to an employee’s written work schedule are provided to affected employees more than seven (7) calendar days before the first day of the workweek in which a schedule change is made (or more than 14 calendar days before the first day of the workweek in which a work schedule change is made beginning July 1, 2020), the issuance of a written, modified work schedule is not considered to be a change to the employee’s work schedule as described in ORS 653.436(5) or ORS 653.455(2). The following examples, which describe work shifts taking place before July 1, 2020, are offered by way of illustration:

(a) An employer, after providing a written work schedule on April 1 to an employee covering the period April 15 through April 21, provides the employee with a modified schedule on April 4 that adds an additional shift to the employee’s work schedule for the week of April 15. Because the modified schedule has been provided at least seven (7) calendar days before the first day of the schedule, it is not considered to be a change to the employee’s work schedule as described in ORS 653.436(5) or ORS 653.455(2).

(b) An employer provides its employees with their work schedules for the month of May on April 23, after which an employee requests not to work on May 25. Allowing the employee not to work as scheduled on this date necessitates that the employer also modify the work schedule of another employee on that day. The employer provides the affected employee with a written, modified schedule on May 1. Because the modified schedule has been provided to the affected employee more than seven (7) calendar days prior to the workweek which includes May 25, it is not considered to be a change to the employee’s work schedule as described in ORS 653.436(5) or ORS 653.455(2).

(8) When an employer is required by ORS 653.455(2) to compensate an employee for changes requested by the employer to the employee’s written work schedule that have occurred, payment of the compensation must be made no later than the regular payday for the pay period during which the change to the schedule was worked.

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

Or. Admin. R. 839-026-0040 Right to Rest between Work Shifts

(1) Unless the employee requests or consents to work such hours, an employer may not schedule or require an employee to work:

(a) Less than ten hours after the end of the previous calendar day's work shift or on-call shift; or

(b) Less than ten hours following the end of a work shift or on-call shift that spanned two calendar days.

(2) An employee may request or consent to work shifts separated by less than 10 hours on a situational or on-going basis and may revoke such consent at any time during employment, provided that the employee follows the employer’s usual and customary procedures for making work schedule changes.

(3) When an employee works during a rest period established by ORS 653.442(1), the employer shall pay the compensation required by ORS 653.442(2) regardless of whether the employee requested or consented to work shifts separated by less than ten hours. The compensation must be paid to the employee no later than the regular payday for the pay period during which the work was performed.

(4) When an employee works during a rest period established by ORS 653.442(1) but is engaged in “roadside assistance” as defined in ORS 653.442(3), the employer is not required to compensate an employee as described in ORS 653.442(2) for any time the employee spent performing roadside assistance services.

(5) The requirements of ORS 653.442 and this rule do not apply to “split shifts” that take place entirely within one calendar day. For example, if an employee works in the morning, takes an extended break during mid-day, and works again in the evening of the same day, the 10-hour right to rest between shifts does not apply.

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

Or. Admin. R. 839-026-0050 Record Retention Requirements

(1) An employer is required to retain records that document the employer’s compliance with ORS 653.412 to 653.485 and these rules for a period of not less than three years. Records may be printed or stored electronically.

(2) Records to be retained by the employer include, but are not limited to:

(a) The written work schedules provided by the employer to employees as required by ORS 653.436(1) and the written work schedules posted as required by ORS 653.436(2);

(b) An employee’s written request to change the employee’s work schedule after the employer has provided the employee with a written work schedule as required by ORS 653.436;

(c) A copy of the good faith estimate of the employee’s work schedule provided to a new employee as required by ORS 653.428;

(d) If, pursuant to ORS 653.432, the employer maintains a voluntary standby list, the employer’s notification to the employee about the list and the employee’s request or agreement to be included on the list;

(e) If, pursuant to ORS 653.460(2), an employer provides a poster giving notice of the rights described in ORS 653.412 to 653.485 to an employee on an individual basis, a copy of the communication or materials provided to the employee to satisfy the notice requirement or other documentation verifying receipt of the poster by the employee; and,

(f) Documents demonstrating that the employer had just cause to subtract hours from an employee’s work schedule for disciplinary reasons as required by ORS 653.455(3)(e). For purposes of this subsection, “just cause” means conduct that is of such a serious nature or extent that reducing the employee’s work hours may be considered an appropriate step to correct the behavior.

(3) All records required to be preserved and maintained by these rules shall be made available to the Commissioner or a duly authorized representative of the Commissioner upon request.

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

Or. Admin. R. 839-026-0060 Employees Covered by Collective Bargaining Agreements or Other Contracts Providing Remedy Equal to or Better than Remedy in ORS 653.442 or 653.455

An employer is not required to pay an employee the compensation described in ORS 653.442 or 653.455 when the employee is covered by a collective bargaining agreement or other collectively-bargained contract that is in force at the employee’s work site and that provides the employee a remedy equal to or better than the remedy provided by ORS 653.442 or 653.455.

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

Or. Admin. R. 839-026-0065 Unlawful Employment Practices

(1) It is an unlawful employment practice for an employer to interfere with, restrain, deny, or attempt to deny the exercise of any right protected under ORS 653.412 to 653.485.

(2) It is an unlawful employment practice for an employer to retaliate or in any way discriminate against an individual with respect to hire or tenure or any other term or condition of employment because the individual:

(a) Has inquired about the provisions of ORS 653.412 to 653.485;

(b) Has not requested or agreed to be added to the voluntary standby list, has requested to be removed from the standby list, or has declined an employer’s request that the employee work additional hours as a result of the employee being on the standby list;

(d) Has requested not to be scheduled for work shifts during certain times or at certain locations; or

(e) Has declined to work with less than 10 hours between shifts.

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018

Or. Admin. R. 839-026-0120 Civil Penalties

(1) The commissioner may assess a civil penalty for any of the following violations of ORS 653.412 to 653.485 and these rules:

(a) Failure to provide an employee with a work schedule in writing or to post a written work schedule in a conspicuous and accessible location at least seven (7) calendar days before the first day of the work schedule (beginning on July 1, 2020, at least 14 calendar days before the first day of the work schedule);

(b) Failure to compensate an employee for an employer-requested change to the employee’s written work schedule without advance notice;

(d) Scheduling or requiring an employee to work during a rest period established by ORS 653.442 without the employee’s consent;

(e) Failure to compensate an employee for working during a rest period established by ORS 653.442;

(f) Denying or attempting to deny the exercise of any right protected under ORS 653.412 to 653.485 or retaliating against any individual because the individual has inquired about the provisions of ORS 653.412 to 653.485;

(g) Failure to retain records that document the employer’s compliance with ORS 653.412 to 653.485;

(h) Failure to display in the workplace a poster giving notice of the rights described in ORS 653.412 to 653.485; and,

(i) Using the voluntary standby list for purposes other than to address unanticipated customer needs or unexpected employee absences.

(2) As provided in ORS 653.432(7), the commissioner may assess a civil penalty against an employer who has coerced an employee into requesting or agreeing to be added to the voluntary standby list. For the purpose of this rule, an employer will be considered to have coerced an employee into requesting or agreeing to be added to the voluntary standby list under the following circumstances:

(a) The employer requires an employee to request or agree to be added to the voluntary standby list;

(b) The employer requires an employee to request or agree to be added to the voluntary standby list as a condition of employment; or

(c) The employer requests or requires any person, including another employee, to require an employee to request or agree to be added to the voluntary standby list.

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
BLI 16-2018, adopt filed 06/08/2018, effective 01/01/2019

Or. Admin. R. 839-026-0130 Schedule of Civil Penalties for Violations of ORS 653.412 to 653.485

(1) Except as provided in sections (2) and (3) of this rule, the civil penalty for any one violation of ORS 653.412 to 653.485 or any rule adopted pursuant thereto shall not exceed $1,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) The civil penalty for failing to display in the workplace a poster giving notice of the rights described in ORS 653.412 to 653.485 shall not exceed $500.

(3) When the commissioner determines that an employer has violated ORS 653.432(7) by coercing an employee into requesting or agreeing to be added to the voluntary standby list, the civil penalty shall not exceed $2,000.

(4) The civil penalties set out in this rule shall be in addition to any other penalty assessed or imposed by law or rule.

(5) The actual amount of the civil penalty will be set in accordance with the determinations and considerations referred to in OAR 839-026-0140.

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
BLI 16-2018, adopt filed 06/08/2018, effective 01/01/2019

Or. Admin. R. 839-026-0140 Criteria for Determining a Civil Penalty

(a) The history of the employer in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(d) Whether the employer knew or should have known of the violation;

(e) The opportunity and degree of difficulty to comply; and

(f) Whether the employer’s action or inaction has resulted in the loss of a substantive right of an employee.

(2) It shall be the responsibility of the employer to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be assessed.

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 653.412 - 653.485
BLI 16-2018, adopt filed 06/08/2018, effective 01/01/2019

Division 30 PROCEDURAL RULES FOR PERSONAL SERVICE CONTRACTS

Or. Admin. R. 839-030-0300 Administering Personal Service Contracts

(1) The Bureau of Labor and Industries may contract with consultants to provide required services. It is the intent of the bureau to publicly announce requirements for consultant services, and to select consultants on the basis of demonstrated competence and qualifications for the type of professional services required. All such contracts will be executed at a fair and reasonable price.

(2) The personal services contract rules (OAR chapter 125, division 20) of the Oregon Department of Administrative Services are hereby adopted by reference as permanent rules for the Bureau of Labor and Industries, except to the extent modified in this or any other division of OAR chapter 839.

History

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 279
BLI 25-2000, f.11-17-00, cert. ef. 12-1-00
BL 11-1992, f. & cert. ef. 7-29-92

Division 50 CONTESTED CASE HEARING RULES

Or. Admin. R. 839-050-0000 Statement of Purpose

(1) The purpose of OAR 839-050-0000 to 839-050-0440 is to ensure that the contested case procedures of the Bureau of Labor and Industries comply with ORS 183.413 to 183.470, to provide clear guidelines and an understanding of what is expected of participants, and to provide for thorough and timely hearings.

(2) In an effort to provide timely hearings, OAR 839-050-0000 to 839-050-0440 establish time limits that will be strictly followed. Waiver or extension of set time limits will be granted only under the limited circumstances set forth in these rules.

History

Statutory/Other Authority: ORS chapter 183; ORS 279C.815, 279C.817; 651.060(4), 658.407(3), 658.820 & 659A.805
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0020
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0010 Model Rules of Procedure

The Attorney General's Model Rules of Procedure for contested cases adopted pursuant to OAR 839-002-0005 govern contested case proceedings of the Bureau of Labor and Industries except to the extent they conflict with or are modified by rules in this division or any other division of chapter 839 of the Oregon Administrative Rules. The rules for contested case proceedings are set forth in OAR chapter 839, division 50. The Attorney General’s Model Rules for Agency Declaratory Rulings govern Declaratory Rulings.

NOTE: The full text of the Attorney General’s Model Rules of Procedure is found online at https://secure.sos.state.or.us/oard/displayDivisionRules.action?selectedDivision=283

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 7-2006, f. 3-16-06 cert. ef. 3-20-06
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0022
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0020 Definitions

Unless the context requires otherwise, the following definitions apply to OAR 839-050-0000 through 839-050-0445:

(1) "Administrative Law Judge" means the Commissioner or an individual or a special tribunal designated by the Commissioner to preside over any or all aspects of a contested case proceeding including motions, oral or written hearings, preparation of the Proposed Order and assistance in preparation of the Final Order. The Administrative Law Judge may or may not be an employee of the Agency, except that when a case involves a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law, the Administrative Law Judge or anyone appointed as a hearings officer or member of a special tribunal to hear the matter must be an employee of the Agency.

(2) “Administrative Prosecution Unit" means the section of the Bureau of Labor and Industries handling the administrative prosecution of contested case proceedings.

(3) "Administrative Prosecutor" means the Agency staff person assigned to prosecute contested case proceedings for the Agency and to handle all related matters, but does not include counsel for the Agency.

(4) "Agency" means the Bureau of Labor and Industries and any employee thereof, and includes the bureau when acting as the agent of another governmental entity, but for the purposes of these rules does not refer to the Administrative Law Judge, Contested Case Coordinator, or the Commissioner.

(5) “Aggrieved person”

(a) For the purpose of proceedings involving a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law, includes, but is not limited to, a person who believes that the person either:

(A) Has been injured by an unlawful practice or discriminatory housing practice; or

(B) Will be injured by an unlawful practice or discriminatory housing practice that is about to occur.

(b) For the purpose of a complaint filed by the Commissioner or the Attorney General, is a person on whose behalf the complaint is filed.

(c) A person who is, or was at any time, eligible to file a complaint under ORS 659A.820 or who is otherwise similarly situated.

(d) A person who files a complaint personally or through an attorney under ORS 659A.825.

(e) For the purpose of prevailing wage rate determinations, is an “aggrieved person” as defined at OAR 839-050-0445.

(6) "Authorized Representative" means a member of a partnership, an authorized officer or regular employee of a corporation, association or organized group, including fiduciaries, mutual companies, trusts and unincorporated organizations, or an authorized officer or employee of a governmental agency who has been authorized by the partnership, corporation, association, organized group, or governmental agency to represent that entity during the contested case proceeding.

(7) "Charging document" means any document issued by the Bureau of Labor and Industries stating that any person, entity, or government agency has violated the laws within this Agency's jurisdiction and includes, but is not limited to:

(a) Formal Charges;

(b) Order of Determination;

(d) Notice of Intent to Deny License;

(e) Notice of Intent to Refuse to Renew a License;

(f) Notice of Intent to Place Name on List of Ineligibles;

(g) Notice of Intent to Assess Civil Penalties;

(h) Notice of Intent to Suspend or Revoke License or to Assess Civil Penalty in Lieu Thereof.

(8) “Chief Prosecutor” is the Administrative Prosecutor responsible for managing the Administrative Prosecution Unit. The Chief Prosecutor may also administratively prosecute cases on behalf of the Agency.

(9) "Claimant" means any individual who has filed a wage claim pursuant to ORS chapter 652 or 653 and who has assigned that claim to the Commissioner.

(10) "Commissioner" means the Commissioner of the Bureau of Labor and Industries.

(11) "Complainant" means an individual who has, or whose attorney has, filed a complaint pursuant to ORS chapter 279C, 652, 653, 658 or 659A, or any other laws, regulations or ordinances enforced by the bureau, including laws, regulations or ordinances enforced by the bureau as the agent of another governmental entity.

(12) “Contested Case Coordinator” means the Bureau of Labor and Industries staff person who receives and maintains all records filed with the Forum in contested cases, issues official contested case documents, and provides administrative support to the Forum and the Administrative Prosecution Unit.

(13) “Counsel” means an attorney who is in good standing with the Oregon State Bar or the Bar of another state who is granted permission by the Administrative Law Judge to appear in the matter pursuant to ORS 9.241 and Oregon Uniform Trial Court Rule 3.170. Oregon counsel who request permission for the appearance of an out-of-state attorney must participate meaningfully in the case in which the out-of-state attorney appears.

(14) "Counsel for the Agency" means the Oregon Attorney General, the Oregon Attorney General's designee, or separate counsel as authorized by the Oregon Attorney General pursuant to ORS 180.235.

(15) “Forum” means the Administrative Law Judge assigned to preside over the contested case proceeding and the Commissioner or Deputy Commissioner who signs the final order.

(16) "Good cause" means, unless otherwise specifically stated, that a participant failed to perform a required act due to an excusable mistake or a circumstance over which the participant had no control. "Good cause" does not include a lack of knowledge of the law, including these rules.

(17) "Issuance" means the act of sending out a document from the Forum. For purposes of these rules, the date of issuance is the date, as noted on the document, that the document was sent out from the Forum.

(18) "Mail" means the act of sending, or an item sent, by a method or manner that results in a postmark on the item or proof of service of registered or certified mail.

(19) "Participant" means any party, including any person, aggrieved person intervening in a proceeding involving a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law, or entity granted party status under OAR 137-003-0005, or the Agency.

(20) "Party" means:

(a) Any person, government agency, or entity upon whom a charging document has been served;

(b) Any person, government agency, or entity that has been granted party or limited party status under OAR 137-003-0005;

(c) Any aggrieved person intervening in a proceeding involving a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law.

(21) "Postmark" means, for purposes of these rules:

(a) An imprint in black ink on the address side of the mail piece that shows the location of the United States Postal Service office that accepted custody of the mail, along with the state, zip code, and date of mailing, or

(b) A stamp indicating when postage was paid, when accompanied by a fully executed certificate of service indicating the document was mailed on the date postage was paid.

(22) "Service" means, for purposes of these rules, the method of sending documents and includes personal service, hand delivery, email, or registered, certified mail, or regular mail sent through the United States Postal Service.

History

Statutory/Other Authority: ORS chapter 183, ORS 651.060, ORS 653.065, ORS 658.407, ORS 658.820 & ORS 659A.805
Statutes/Other Implemented: ORS 279C.860, ORS 279C.865, ORS 652.332, ORS 653.065, ORS 658.115, ORS 658.407, ORS 658.820 & ORS chapter 659A
BLI 2-2025, amend filed 01/09/2025, effective 01/13/2025
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 38-2008, f. & cert. ef. 11-7-08
BLI 24-2008, f. 7-10-08, cert. ef. 7-11-08
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0025
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0030 Service of Documents

(1) Except as otherwise provided in ORS 652.332(1), the charging document will be served on the party or the party's representative by personal service or by United States Postal Service registered or certified mail. Service of a charging document is complete upon the earlier of:

(a) Receipt by the party or the party's representative; or

(b) Mailing when sent by United States Postal Service registered or certified mail to the correct address of the party or the party's representative.

(2) All other documents may be served on the party or the party's representative by:

(a) Personal service;

(b) United States Postal Service mail to the last known address in the Agency's file for the subject case; or

(3) Service of a document other than the charging document is complete upon personal service, official United States Postal Service postmark date, or email service when a person has consented to email service, whichever occurs earlier.

(4) Any participant to a contested case proceeding filing a document with the Forum will serve a copy of such document upon all other participants or their representatives.

(5) A participant whose mailing or email address changes must notify the Contested Case Coordinator in writing within 10 days of such change with a copy to all other participants; otherwise, the Contested Case Coordinator, the Forum, and the Agency will presume the address on file to be correct.

(6) For the purpose of this rule, the term "participant" or “party” does not include an aggrieved person intervening in a proceeding involving a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law, or an aggrieved person named in a commissioner’s complaint.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060
Statutes/Other Implemented: ORS 279C.860, ORS 279C.865, ORS 652.332, ORS 653.065, ORS 658.115, ORS 658.407, ORS 658.820, ORS 659A.845, ORS 659A.850 & ORS 659A.885
BLI 2-2025, amend filed 01/09/2025, effective 01/13/2025
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 38-2008, f. & cert. ef. 11-7-08
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0030
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0040 Filing of Documents with the Contested Case Coordinator; Calculation of Time and Filing Dates

(1) Documents must be filed with the Contested Case Coordinator to be considered filed with the Forum.

(2) Except as modified by statute or enlarged by these rules, by order of the commissioner, or by decision of the Administrative Law Judge, a document is filed with the Contested Case Coordinator on the date the Contested Case Coordinator receives the document, or on the date postmarked on the properly addressed document, whichever is earlier.

(3) Documents are not to be filed with the Contested Case Coordinator by email or by facsimile transmission except with the prior approval of the Administrative Law Judge. The Administrative Law Judge may require the participant filing a document by email or by facsimile transmission to also send the Contested Case Coordinator a copy of the document by United States Postal Service mail or personal delivery, and may require the participant to serve the other participants with the document by email or by facsimile transmission in addition to a paper copy by United States Postal Service mail or personal delivery.

(4) The computation of any period of time will not include the day from which the designated period begins to run. The computation will include the last day of this period unless it is a Saturday, Sunday, or holiday officially recognized by the State of Oregon or the federal government. If the last day of the time period is a Saturday, Sunday, or holiday, the period will run until 5 p.m. of the next day that is not a Saturday, Sunday, or holiday.

(5) All time periods described in these rules are measured in calendar days.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 16-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0035
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0050 Timeliness

(1) The Administrative Law Judge may disregard any document that is filed with the Contested Case Coordinator beyond the established number of days for filing.

(2) When a participant requires additional time to submit any document, a written request for such extension must be filed with and received by the Contested Case Coordinator no later than the date set for filing of the document in question, except that the Administrative Law Judge has discretion to permit a participant to make an oral motion for an extension of time. When the Administrative Law Judge allows a participant to make an oral motion for extension of time, the Administrative Law Judge will promptly notify the other participants of the motion and give them an opportunity to respond, either orally or in writing. When a participant files a written motion for extension of time, the other participants will have seven days after service of the motion in which to file a written response, unless that time is altered by order of the Administrative Law Judge.

(3) The administrative law judge may grant such an extension of time only in situations when the requesting participant shows good cause for the need for more time or when no other participant opposes the request. The administrative law judge will promptly notify the participant requesting the extension whether it will be allowed.

(4) When an extension of time is allowed to a participant, the administrative law judge will advise all participants of the new due date, and will state whether the same extension of time applies to the other participants.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 6-2005, f. 2-8-05, cert. ef. 2-11-05
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0040
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0060 Charging Documents

(1) A charging document will contain:

(a) A reference to the particular statutes or administrative rules involved in the alleged violation;

(b) A short and concise statement of the matters that constitute the alleged violation; and

(2) A charging document may contain statements that:

(a) When a party fails to timely request a hearing, or having made a timely request subsequently withdraws it, the Agency file will be the evidentiary record of the proceeding;

(b) When a party files an answer and a request for hearing (when required), and subsequently notifies the Agency that it will not appear at the hearing, or, without such notice, the party fails to appear at the hearing, the Agency's file may become part of the contested case record; and

(c) A statement that when a party fails to answer a charging document, the Agency file will automatically become the contested case record, or part thereof, upon default for the purpose of proving a prima facie case.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0050
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0070 Request for a Contested Case Hearing

Except when Formal Charges are issued, any party upon whom a charging document is served and who wishes to contest the charging document must request a contested case hearing. This request must be in writing and filed with the Agency to the address and within the time limit established in the charging document. A party that fails to file a request for a hearing within the time limit established in the charging document, or that requests a hearing and subsequently withdraws the request, will be in default as to the charges alleged in the charging document.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0051
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 12-1986, f. 10-29-86, ef. 10-30-86
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0080 Notice of Hearing

(1) When a party makes a timely written request for a contested case hearing, that hearing will be scheduled in accordance with OAR 839-050-0070 and the Contested Case Coordinator will issue a Notice of Hearing from the Forum to the participants.

(2) When Formal Charges are issued, the notice of hearing will accompany the Formal Charges.

(3) In civil rights housing cases only, unless an aggrieved person or respondent named in a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law elects to have the matter heard in circuit court under 659A.885 (see 659A.870(4)(b)), a contested case hearing must commence no later than 120 days after Formal Charges are issued. If it is not practicable to commence the hearing within 120 days after Formal Charges are issued, the Administrative Law Judge will include on the Notice of Hearing or in a separately issued document the general reasons for the delay and will schedule the hearing as soon as practicable.

(4) A Notice of Hearing will include:

(a) A statement of the time and place of the hearing, including the statement that the hearing will reconvene on successive business days thereafter until concluded;

(b) A statement of the authority and jurisdiction under which the hearing is to be held;

(d) A short and plain statement of the matters asserted or charged;

(e) The name of the Administrative Law Judge designated by the commissioner to preside over the contested case and whether the Administrative Law Judge is an employee of the Agency; and

(f) A statement indicating whether the case for the Agency will be presented by the Oregon Department of Justice or by an Agency Administrative Prosecutor.

(5) Sections (3)(c) and (d) above are satisfied if the Notice of Hearing attaches and incorporates a charging document that includes the matters referred to in those paragraphs.

(6) The Notice of Hearing may contain a statement that:

(a) When a party fails to timely request a hearing, or having made a timely request subsequently withdraws it, the Agency file will be the evidentiary record of the proceeding;

(b) When, following an answer and request for hearing (when required), the party subsequently notifies the Agency that the party will not appear at the hearing, or, without such notice, the party fails to appear at the hearing, the Agency file will become the contested case record, or a part thereof; and

(c) When a party fails to answer a charging document, the Agency file will become the contested case record, or part thereof, upon default for the purpose of proving a prima facie case.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845, 659A.850 & 659A.870
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 10-2014, f. & cert. ef. 9-4-14
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 12-2010, f. 3-1-10, cert. ef. 3-3-10
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0055
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 12-1986, f. 10-29-86, ef. 10-30-86
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0090 Location of Contested Case Hearings

Contested case hearings will generally be held in a State of Oregon office building when available, or another appropriate facility, near the location where the action arose. The location of a hearing will be included in the Notice of Hearing.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0045
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0100 Information for Contested Case Hearings

The Forum will provide with a Notice of Hearing, a statement of information for all parties involved in a contested case hearing that includes:

(1) Instructions on how to submit correspondence, documents and other filings to the Contested Case Coordinator;

(2) The information required under ORS 183.413 concerning the rights of the parties to the hearing;

(3) A statement that an order may be issued upon default if a party requesting a hearing fails to appear at the hearing and there is a prima facie case of unlawful practices or other violations; and

(4) A statement that the party's address as it appears in the Contested Case Coordinator's and the Agency's files, and to which the Notice of Hearing has been sent, will be the address used throughout the proceeding. A party whose address changes must immediately notify the Contested Case Coordinator, with copies to all other participants; otherwise, the Contested Case Coordinator, the Forum, and the Agency will presume the address on file to be correct.

History

Statutory/Other Authority: ORS chapter 183, ORS 651.060, ORS 279C.808, ORS 652.332, ORS 653.065, ORS 658.407, ORS 658.820 & ORS 659A.805
Statutes/Other Implemented: ORS 279C.865, ORS 652.332 & ORS 659A.850
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0056
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0110 Representation of a Party in a Contested Case Proceeding

(1) Any party may be represented by counsel, as that term is defined in OAR 839-050-0020(13). At all stages of the contested case proceeding, all government agencies, partnerships, corporations and unincorporated associations must be represented either by counsel, who may perform all functions consistent with representation of a client, or by an authorized representative, subject to the limitations of sections (2) through (6) of this rule.

(2) For purposes of OAR chapter 839, division 50, "authorized representative" means a member of a partnership, an authorized officer or regular employee of a corporation, association or organized group, or an authorized officer or employee of a governmental agency.

(3) Before appearing in the case, an authorized representative must provide written authorization for the named representative to appear on behalf of the party or limited party. This written authorization must be provided no later than the time that an answer and request for hearing is filed.

(4) An authorized representative may not present legal argument during the contested case proceeding except to the extent authorized by section 5 of this rule. "Legal argument" includes arguments on:

(a) The jurisdiction of the agency to hear the contested case;

(b) The constitutionality of a statute or rule or the application of a constitutional requirement to an agency;

(5) The Administrative Law Judge may allow the authorized representative to present evidence, examine and cross-examine witnesses, and make arguments relating to the:

(a) Application of statutes and rules to the facts in the contested case;

(b) Actions taken by the Agency in the past in similar situations;

(d) Admissibility of evidence; and

(e) Proper procedures to be used in the contested case hearing.

(6) When a party is represented by an authorized representative in a hearing, the Administrative Law Judge will advise such representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection. When such objections may involve legal argument as defined in section 4 of this rule, the Administrative Law Judge will provide reasonable opportunity for the authorized representative to consult legal counsel and permit such legal counsel to file written legal argument within a reasonable time after the conclusion of the hearing.

(7) A party that intends to be represented by counsel during the contested case proceeding, and that is not a government agency, partnership, corporation or unincorporated association, will notify the Forum of its intent to be represented by counsel as soon as practicable. Once the contested case hearing has begun, no party will be allowed a recess to obtain the services of counsel.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2018, minor correction filed 03/06/2018, effective 03/06/2018
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 4-2002, f. 2-14-02, cert. ef. 2-15-02
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0057
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88

Or. Admin. R. 839-050-0120 Representation of a Claimant, Complainant, or Aggrieved Person in a Contested Case Proceeding

The claimant, complainant or aggrieved person may have counsel present at the contested case hearing; however, counsel's participation is limited to rendering advice to counsel's client. Such counsel may not file motions, make objections, examine or cross-examine witnesses or make legal argument, except that such counsel may assert privilege for counsel's client at any point in a contested case proceeding and may participate fully in any deposition of counsel's client.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 4-2002, f. 2-14-02, cert. ef. 2-15-02
BLI 2-2000, f. & cert. ef. 1-27-00
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0058
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0130 Responsive Pleadings

(1) A party filing a written request for a hearing must file a written response, referred to as an "answer," to the allegations in the charging document. The answer must be sent to the address indicated on the charging document. A party served with a Notice of Hearing and Formal Charges must file with the Contested Case Coordinator, at the address indicated on the Notice of Hearing, an answer to the allegations in the Formal Charges.

(2) The answer must include an admission or denial of each factual matter alleged in the charging document and a statement of each relevant defense to the allegations. A general denial is not sufficient to constitute an answer. An answer not including the information required by this rule may be disregarded and a notice of default may be issued in accordance with OAR 839-050-0330, as if no answer had been filed.

(3) Except for good cause shown to the Administrative Law Judge, factual matters alleged in the charging document and not denied in the answer will be deemed admitted by the party. The failure of the party to raise an affirmative defense in the answer is a waiver of such defense, except as provided in OAR 839-050-0140(3). Any new facts or defenses alleged in the answer will be deemed denied by the Agency. Evidence will not be taken at the contested case hearing on any factual or legal issue not raised in the charging document or the answer as originally filed or as amended pursuant to OAR 839-050-0140.

(4) Except as may be otherwise provided in subsections (5), (6) and (7) of this rule, a party must file an answer within 20 days after service of the charging document.

(5) ORS 652.332 provides administrative procedures for wage claim collection.

(6) A party must file an answer within 60 days after service of the charging document if that document proposes to deny a license.

(7) A respondent or aggrieved person named in a complaint filed under ORS 659A.145 or 659A.421 or discrimination under federal housing law must file any election to have the matter heard in circuit court under ORS 659A.885, within 20 days after service of Formal Charges.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845, 659A.850 & 659A.870
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 12-2010, f. 3-1-10, cert. ef. 3-3-10
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0060
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 4-1987, f. 2-11-87, ef. 2-13-87
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0140 Amendments

(1) The Agency may amend its charging document:

(a) At any time before the hearing commences; or

(b) During the hearing, but before the evidentiary record closes, as allowed in (4) and (5) of this rule.

(2) If the Agency files an amended charging document with the Contested Case Coordinator before the hearing commences, any party may file an answer to it as it would in responding to an original charging document under OAR 839-050-0130(2)–(3), except:

(a) The answer to an amended charging document must be filed with the Contested Case Coordinator no later than seven days after the amended charging document is served on the party, subject to the Administrative Law Judge’s discretion to alter the deadline; and

(b) The answer to an amended charging document may differ from the answer to the previous charging document only as needed to respond to new or amended information, unless good cause is shown. If a party does not file an answer to an amended charging document with the Contested Case Coordinator, the party’s answer to the previous charging document will be deemed its answer to the amended charging document.

(3) For good cause shown to the Administrative Law Judge, a party may amend its answer at any time before the hearing commences. Any new facts or defenses alleged in the amended answer will be deemed denied by the Agency.

(4) Once the hearing commences, issues not raised in the charging document or answer may be raised and evidence presented on such issues, provided there is express or implied consent of the participants, except that affirmative defenses not raised in the answer may only be raised in response to an agency motion to amend that is made and allowed under this section or section (5) of this rule. Consent will be implied when there is no objection to the introduction of such issues and evidence or when the participants address the issues. Any participant raising new issues must move the Administrative Law Judge, before the close of the evidentiary portion of the hearing, to amend its charging document or answer to conform to the evidence and to reflect issues presented. The Administrative Law Judge may address and rule upon such issues in the Proposed Order.

(5) If evidence offered at hearing is objected to on the grounds that it is not within the issues raised by the charging document or answer, the administrative law judge may allow the pleadings to be amended to conform to the evidence presented. The administrative law judge will allow the amendment when the participant seeking the amendment shows good cause for not having included the new matter in its charging document or answer prior to hearing and the objecting participant fails to satisfy the administrative law judge that it would be substantially prejudiced by the admission of such evidence. The administrative law judge may grant a continuance to enable the objecting participant to meet such evidence. A party may amend its answer to raise an affirmative defense and introduce evidence in support of that defense only when the amendment responds to new matter raised in a charging document amended under this section or section (4) of this rule.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279.361, 279.370, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 12-2010, f. 3-1-10, cert. ef. 3-3-10
BLI 42-2006, f. & cert. ef. 12-6-06
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0075
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0150 Motions

Except as otherwise stated in OAR 839-050-0050, all pre-hearing and post-hearing motions will be submitted in writing to the Administrative Law Judge through the Contested Case Coordinator. If the nonmoving participant chooses to respond, the nonmoving participant must file a written response to a written motion with the Contested Case Coordinator within seven days after service of the motion, unless the Administrative Law Judge orders otherwise. Motions include but are not limited to the following:

(1) Motion to dismiss: This motion must be based upon:

(a) Lack of jurisdiction over the subject matter or person;

(b) Insufficiency of process or service of process; or

(d) The commissioner's discretion to dismiss a complaint pursuant to ORS 659A.830(2)(a); or

(e) The requirement pursuant to ORS 659A.830(2)(a) that the commissioner dismiss a complaint filed under ORS 659A.820 upon the written request of the person who filed the complaint.

(f) Subsection (e) of this section does not apply to a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law.

(2) Motion to change the place of hearing.

(3) Motion to exclude witnesses:

(a) The motion may be made by any participant at any time prior to or during the hearing.

(b) The Administrative Law Judge may, without a motion being made by a participant, exclude witnesses from the hearing except for a party, counsel, the Administrative Prosecutor, one agency officer or employee, an authorized representative, claimant, complainant and any person authorized by statute to attend. Notwithstanding this rule, an Administrative Law Judge may expel any person from the hearing if that person engages in conduct that disrupts the hearing.

(4) Motion for summary judgment:

(a) A motion for summary judgment may be made by a participant or by decision of the Administrative Law Judge for an accelerated decision in favor of any participant as to all or part of the issues raised in the pleadings. The motion may be based on any of the following conditions:

(A) Issue or claim preclusion;

(B) No genuine issue as to any material fact exists and the participant is entitled to a judgment as a matter of law, as to all or any part of the proceedings; or

(b) When the Administrative Law Judge grants the motion, the decision will be set forth in the Proposed Order.

(c) A motion for summary judgment shall be denied if, at the time of its filing, the contested case hearing is scheduled to commence in fewer than 21 days.

(5) Motion for a postponement:

(a) Any participant making a request for a postponement of any part of the contested case proceeding must state in detail the reason for the request. The Administrative Law Judge may grant the request for good cause shown. In making this determination, the Administrative Law Judge will consider:

(A) Whether previous postponements have been granted;

(B) The timeliness of the request;

(D) Whether there is a reasonable alternative to postponement; for example, submitting a sworn statement of a witness; and

(E) The date the hearing was originally scheduled to commence.

(b) The Administrative Law Judge will issue a written ruling either granting or denying the motion and will set forth the reasons therefore;

(c) If all participants agree to a postponement, in order for the postponement to be effective, the Administrative Law Judge will approve of this agreement. Whether the Administrative Law Judge grants or denies such a motion for postponement, the Administrative Law Judge will issue a written ruling setting forth the reasons therefore.

(6) Motion for consolidation of hearings: This motion must allege facts sufficient to meet the criteria of OAR 839-050-0190.

(7) Motion for hearing by telephone: Any participant may file a motion to conduct the hearing by telephone. The motion must contain:

(a) A statement setting forth the reason(s) for the request;

(b) A statement explaining why no participant will be substantially prejudiced by having a hearing in this manner;

(d) A statement estimating the number and/or volume of documents to be introduced into the record;

(e) A statement indicating whether the participant intends to call any expert witness; and

(f) A statement indicating whether an interpreter or an assistive communication device under OAR 839-050-0300 will be required for any witness.

(8) Motion for a protective order.

(9) Motion for default when a respondent has failed to timely file an answer within the time specified in the charging document.

(10) Motion to amend.

(11) Motion to make more definite and certain.

(12) Motion for prevailing party costs and reasonable attorney fees for an aggrieved person who intervenes in a proceeding alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 12-2010, f. 3-1-10, cert. ef. 3-3-10
BLI 13-2006, f. 3-23-06, cert. ef. 3-24-06
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 4-2002, f. 2-14-02, cert. ef. 2-15-02
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0070
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 12-1986, f. 10-29-86, ef. 10-30-86
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0160 Disqualification of Administrative Law Judge

(1) An Administrative Law Judge may withdraw from a proceeding whenever the Administrative Law Judge determines disqualification to be necessary. Any party to any contested case may claim that the person designated as Administrative Law Judge is prejudiced against any party or counsel or the interest of any party or counsel appearing in such case. Such prejudice must be established by a motion supported by an affidavit establishing that the designated Administrative Law Judge is prejudiced against the party or counsel, or against the interest of the party or counsel, such that the party or counsel cannot, or believes that the party or counsel cannot, have a fair and impartial hearing before the Administrative Law Judge, and that it is made in good faith and not for the purpose of delay. Grounds upon which a motion may be made, or upon which the Administrative Law Judge may determine that disqualification is necessary, include but are not limited to a family relationship with the complainant or claimant or with any party or counsel, or a financial interest in the property or business of any of those individuals. The fact that the Administrative Law Judge is an employee of the Oregon Bureau of Labor and Industries is not a ground for disqualification of the Administrative Law Judge.

(2) The motion and affidavit must be filed together with the Contested Case Coordinator within 14 days after service of the notice of hearing with a copy to all other participants. No motion to disqualify an Administrative Law Judge may be made after the Administrative Law Judge has ruled upon any motion, other than a motion to extend time in the case, or after the hearing has commenced, whichever is earlier.

(3) The Administrative Law Judge will issue a written ruling on the motion for withdrawal or disqualification, setting forth the grounds therefore, within ten days of the receipt of the motion. The ruling will be sent to the commissioner, the Agency, and all parties.

(4) When an Administrative Law Judge has been disqualified, the commissioner will designate another Administrative Law Judge to preside over the contested case proceeding. The Forum will notify the participants of this designation.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0065
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0170 Joinder of Parties, Claimants, Complainants, or Aggrieved Persons

(1) Aggrieved persons, complainants, or claimants: Any number of persons may be joined in one proceeding as aggrieved persons, complainants, or claimants if they assert a right to relief arising out of the same or similar transaction(s) or occurrence(s) and if questions of law or fact common to all these persons will arise in the proceeding.

(2) Parties: Any number of persons may be joined in one proceeding as parties if there is asserted against them any right to relief arising out of the same transaction(s) or occurrence(s) or if questions of law or fact common to all these persons will arise in the proceeding.

(3) Intervention by aggrieved persons: An aggrieved person may intervene and be joined as a party in a proceeding in which the Agency has issued Formal Charges alleging violations of ORS 659A.145, 659A.421, or federal housing law. The procedures set out in OAR 137-003-0005 of the Attorney General’s Model Rules apply.

(4) The Final Order may find for or against the Agency according to the respective rights of one or more of the aggrieved persons, complainants, or claimants, and for or against one or more of the parties according to their respective liabilities.

(5) Misjoinder of aggrieved persons, complainants, claimants, or parties is not a ground for dismissal of a proceeding. Parties may be added or deleted by order of the Administrative Law Judge upon the motion of any participant, upon the Administrative Law Judge's own motion, or upon the application of any person or entity seeking party or limited party status, at any stage of the contested case proceeding. When necessary to complete disposition of the case, the Administrative Law Judge may postpone the hearing to allow a newly added aggrieved person, complainant, claimant, or party to prepare for the hearing.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845, 659A.850 & 659A.885
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 38-2008, f. & cert. ef. 11-7-08
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0085
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0190 Consolidation of Contested Case Proceedings

The Administrative Law Judge, on their own motion, or upon motion of a party, may order a joint contested case proceeding for two or more contested cases over which they are presiding when the Administrative Law Judge determines that the cases involve common questions of law or fact. The Administrative Law Judge, in conducting the proceeding, may establish procedures necessary to avoid additional costs or delay.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0095
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0200 Discovery

(1) The Administrative Law Judge has the sole discretion to order discovery by a participant in appropriate cases. This rule does not require the Administrative Law Judge to authorize any discovery. If the Administrative Law Judge does authorize discovery, the Administrative Law Judge will control the methods, timing, and extent of discovery, but nothing in this rule prevents informal exchanges of information. When the Administrative Law Judge orders discovery, the Administrative Law Judge will notify the participants of the possible sanction, pursuant to section (11) of this rule, for failure to provide the discovery ordered.

(2) Discovery may include but is not limited to one or more of the following:

(a) Disclosure of names and addresses of witnesses expected to testify at the hearing;

(b) Production of documents;

(d) Written interrogatories to be served on a participant; and

(e) Requests for admission.

(3) Depositions are strongly disfavored. A factor that the Administrative Law Judge may consider in determining whether to grant a request for a deposition is whether the requesting participant demonstrates that other methods of discovery are so inadequate that the participant will be substantially prejudiced by the denial of a motion to depose a particular witness.

(4) Except as provided in sections (6) and (9) of this rule, before requesting a discovery order, a participant must seek the discovery through an informal exchange of information.

(5) Except as provided in sections (6) and (9) of this rule, a request for a discovery order must be filed with the Contested Case Coordinator, be in writing, and must include a description of the attempts to obtain the requested discovery informally. The Administrative Law Judge will consider any objections by the participant from whom discovery is sought.

(6) A participant seeking information from another participant by means of written interrogatories may serve that participant with up to 25 interrogatories to be answered by the participant served, or, in the case of a corporation, unincorporated association, or government agency, by its officer or agent. Each discrete subpart of an interrogatory will be counted as a separate interrogatory. If a clause, phrase, or adjective is logically and factually related to the overall interrogatory then it is not "discrete" and does not count as a separate interrogatory. A participant wishing to serve another participant with more than 25 interrogatories must file a motion identifying the participant to be served, setting forth a general description of the nature of the information to be sought and its relevance, and explaining why the additional interrogatories are necessary. Each interrogatory must be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party must state the reasons for objection and must answer to the extent the interrogatory is not objectionable. The answers are to be signed by the person making them. The participant served with interrogatories must serve its answers and objections, if any, within 14 days after service of the interrogatories. The Administrative Law Judge may alter the deadline for answers to interrogatories upon motion by either participant.

(7) Any discovery request must be reasonably likely to produce information that is generally relevant to the case. If the relevance of the requested discovery is not apparent, the Administrative Law Judge may require the participant requesting discovery to explain how the request is likely to produce relevant information. If the request appears unduly burdensome, the Administrative Law Judge may require an explanation of why the requested information is necessary or is likely to facilitate resolution of the case.

(8) The Administrative Law Judge will issue an order granting or denying a discovery request in whole or in part. Participants must comply with such orders and have a continuing obligation, through the close of the hearing, to provide the other participants with any newly discovered material that is within the scope of the discovery order.

(9) Unless limited by the Administrative Law Judge, the participants may issue subpoenas in support of discovery. Counsel representing a party may issue subpoenas in the same manner as subpoenas are issued in civil actions, as set forth in the Oregon Rules of Civil Procedure. The Administrative Law Judge may issue subpoenas in support of discovery for any party not represented by counsel. The Bureau of Labor and Industries may apply to the Oregon Circuit Court to compel obedience to a subpoena.

(10) A party requesting that the Administrative Law Judge issue a subpoena on its behalf must file a motion with the Contested Case Coordinator as soon as practicable after the party is served with the Notice of Hearing, but in no event less than seven days prior to the date of the hearing. The motion must include a showing of general relevance and reasonable scope of the evidence sought. If the motion is granted, the Forum will deliver the subpoena to the party that requested it. The party will then be responsible for serving the subpoena and for paying any applicable witness fees.

(11) The Administrative Law Judge may refuse to admit evidence that has not been disclosed in response to a discovery order or subpoena, unless the participant that failed to provide discovery shows good cause for having failed to do so or unless excluding the evidence would violate the duty to conduct a full and fair inquiry under ORS 183.417(8). If the Administrative Law Judge admits evidence that was not disclosed as ordered or subpoenaed, the Administrative Law Judge may grant a continuance to allow an opportunity for the other participant(s) to respond.

(12) The authority to order and control discovery rests solely with the Administrative Law Judge.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 6-2018, minor correction filed 03/06/2018, effective 03/06/2018
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0115
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & cert. ef. 9-2-86

Or. Admin. R. 839-050-0210 Case Summary

(1) Prior to any contested case hearing, the Administrative Law Judge may issue a discovery order directing the participants to prepare a case summary due no later than 14 calendar days before the hearing date, containing any or all of the following:

(a) A list of all persons to be called as witnesses, including expert witnesses, at the hearing, except that impeachment or rebuttal witnesses need not be included on the witness list;

(b) The qualifications of any expert witnesses and the substance of the facts and opinions to which the experts are expected to testify;

(c) Identification and description of any document or other physical evidence to be offered into evidence at the hearing, together with two copies of any such document, except that evidence offered solely for impeachment or rebuttal need not be identified or furnished;

(d) Statement of any defenses to the claim;

(e) Statement of any agreed or stipulated facts;

(f) Statement, when appropriate, of any applicable agency policies together with, in the discretion of the Agency, any supporting documents or information on which such policies are based.

(2) When a party is unrepresented by counsel, the Administrative Law Judge may order the party to produce a summary of the case containing only the information and documents described in subsections (1)(a), (b), and (c) of this rule.

(3) Each participant must serve a copy of its case summary, including all documents or other physical evidence to be offered into evidence at the hearing as described in (1)(c) of this rule, on the other participants. Following production of the case summary and before the start of the hearing, a participant must, as soon as practicable, file and serve the other participants with an addendum to its case summary if the participant intends to offer as evidence at the hearing any additional documents, physical exhibits, or testimony that was not identified in the original case summary. The addendum must meet the requirements of paragraphs (1)(a), (1)(b), and (1)(c) of this rule, as applicable. As with the original case summary, evidence to be offered solely for impeachment or rebuttal need not be identified or furnished.

(4) When the Administrative Law Judge orders a case summary, the Administrative Law Judge will notify the participants of the possible sanction, pursuant to OAR 839-050-0210(5), for failure to provide the case summary.

(5) The Administrative Law Judge may refuse to admit evidence that has not been disclosed in response to a case summary order, unless the participant that failed to provide the evidence offers a satisfactory reason for having failed to do so or unless excluding the evidence would violate the duty to conduct a full and fair inquiry under ORS 183.417(8). If the Administrative Law Judge admits evidence not provided in response to a case summary order, the Administrative Law Judge may grant a continuance to allow an opportunity for the other participants to respond.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 4-2002, f. 2-14-02, cert. ef. 2-15-02
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0071
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 6-1989, f. & cert. ef. 9-5-89
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0220 Informal Disposition of Contested Case

(1) After the Agency issues a charging document, a case may be resolved informally by stipulation, agreed settlement, consent order, settlement agreement, or default.

(2) When a charging document involves a license revocation proceeding, informal settlement may be made by written agreement of the parties and the Agency consenting to a suspension, civil penalty, or other intermediate sanction.

(3) Any informal disposition of a contested case, other than by default, must be in writing and signed by the party or parties to the case and the Agency.

(4) A party interested in resolving a case before the contested case hearing should contact the assigned Administrative Prosecutor. Settlement negotiations are not a basis for postponing the hearing and participants should continue to prepare for hearing until they reach an agreement to settle. An agreement to settle is reached when the participants have agreed to resolve all issues of the contested case and have agreed, orally or in writing, to all terms and conditions of the agreement.

(5) When an agreement to settle is reached before the hearing date, the participants will submit a joint written notice to the Forum that includes a detailed synopsis of the substantive terms and conditions of the agreement. The Administrative Law Judge will waive the case summary requirement and cancel the hearing only upon receipt of the written notice of agreement to settle and detailed synopsis of the substantive terms and conditions of the agreement signed by the Administrative Prosecutor and respondent or respondent’s authorized representative or counsel, if represented. The participants will file fully executed settlement documents with the Contested Case Coordinator, with a copy to the Administrative Law Judge, within 10 days after submitting written notice of the agreement to settle. If fully executed settlement documents are not filed within that period and no extension of time to submit those documents has been granted, the Administrative Law Judge will set a new hearing date that is at least 14 days after the original hearing date unless the Administrative Law Judge and participants agree to an earlier date. No further cancellations or postponements will be allowed based on a purported settlement and the case summary requirement will not be waived for the rescheduled hearing.

(6) Fully executed settlement documents submitted to the Forum will not contain terms the Agency lacks the authority to enforce or to which the Agency is not a party, such as an agreement by an aggrieved person, claimant, or complainant not to pursue legal action against a respondent other than the claim or complaint being settled.

(7) Fully executed settlement documents submitted to the Forum will not contain provisions requiring the settlement terms to be confidential or requiring an aggrieved person, claimant, complainant, or the Agency to keep the settlement terms confidential.

(8) Participants waive their right to a contested case hearing by their signatures on fully executed settlement documents.

(9) When a contested case is resolved by informal disposition other than default (see OAR 839-050-0330), the Administrative Law Judge will incorporate the settlement terms into a Final Order Incorporating Informal Disposition (“FOID”). When an Order of Determination or Notice of Intent has been issued, but a Notice of Hearing has not been issued, the fully executed settlement document may be incorporated into a FOID by an Administrative Law Judge.

(a) The Forum will deliver or mail a copy of a FOID issued by an Administrative Law Judge to each participant and participant's attorney of record.

(b) A FOID is not subject to ORS 183.470.

(d) Within 60 days after a FOID is issued, a participant may petition the Bureau of Labor and Industries to set aside the order on the ground that the informal disposition was obtained by fraud or duress.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 183.417(3), 279.361, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 35-2008, f. 10-22-08, cert. ef. 10-25-08
BLI 6-2005, f. 2-8-05, cert. ef. 2-11-05
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BLI 3-1998, f. & cert. ef. 2-11-98
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0200
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 6-1989, f. & cert. ef. 9-5-89
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0230 Authority of the Administrative Prosecutor

(1) The Administrative Prosecutor is authorized by ORS chapter 183 to appear on behalf of and represent the Agency. The Administrative Prosecutor may perform any function not prohibited by this rule.

(2) The Administrative Prosecutor may not present legal argument during the contested case proceeding except to the extent authorized by section 3 of this rule. "Legal argument" includes arguments on:

(a) The jurisdiction of the agency to hear the contested case;

(b) The constitutionality of a statute or rule or the application of a constitutional requirement to an agency;

(3) The Administrative Law Judge may allow the Administrative Prosecutor to present evidence; examine and cross-examine witnesses; and make arguments relating to the:

(a) Application of statutes and rules to the facts in the contested case;

(b) Actions taken by the Agency in the past in similar situations;

(d) Admissibility of evidence; and

(e) Proper procedures to be used in the contested case hearing.

(4) When an Administrative Prosecutor is representing the Agency in a hearing, the Administrative Law Judge will advise such representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection. When such objections may involve legal argument as defined in section 2 of this rule, the Administrative Law Judge will provide reasonable opportunity for the Administrative Prosecutor to consult legal counsel and permit such legal counsel to file written legal argument within a reasonable time after the conclusion of the hearing.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 10-2014, f. & cert. ef. 9-4-14
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0059
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88

Or. Admin. R. 839-050-0240 Responsibilities of the Administrative Law Judge

(1) The commissioner delegates Proposed Order Authority to Administrative Law Judges employed by the Agency as hearings officers and those persons who are appointed to preside at particular hearings. The commissioner delegates to such designee the authority to:

(a) Rule on all motions filed prior to the hearing.

(b) Issue subpoenas and otherwise oversee the discovery process in a manner consistent with rules relating to these powers.

(c) Hold appropriate conferences, if necessary, before or during the course of the hearing to discuss the conduct of the proceedings or the issues to be presented.

(d) Regulate the course of the hearing, including scheduling, reconvening, and adjourning.

(e) Maintain order during the course of the hearing, including the authority to expel persons whose conduct is disruptive.

(f) Make rulings on motions or evidence, with or without objection, during the hearing.

(g) Question witnesses at the hearing and set time limitations for argument or presentation.

(h) Limit or extend filing periods.

(i) Decide procedural matters, but not grant motions for summary judgment or other motions by a party that involve final determination of the proceeding, but to issue a Proposed Order as provided for in these rules. Nothing in this section may be construed to prohibit the Administrative Law Judge from making a routine disposition of a hearing proceeding based on a settlement, on the Agency's withdrawal of the charging document, or on other reasons not requiring a Final Order by the commissioner.

(j) Prepare a Proposed Order at the conclusion of the contested case hearing and cause it to be served by the Contested Case Coordinator on the Agency, the commissioner, and all parties to the case; and at the request of the commissioner, assist in responding to any exceptions and the preparation of the Final Order.

(k) Take any other action consistent with the duties of an Administrative Law Judge.

(2) In a contested case proceeding alleging an unlawful practice under ORS 659A.145 or 659A.421, or discrimination under federal housing law, only an employee of the bureau may be a member of a special tribunal or an Administrative Law Judge appointed to hear the matter.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 12-2010, f. 3-1-10, cert. ef. 3-3-10
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0100
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 12-1986, f. 10-29-86, ef. 10-30-86
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0250 Conduct of Hearings

The hearing will be conducted by and under the control of the Administrative Law Judge.

(1) The Administrative Law Judge will open the hearing with a brief introduction of the Agency, the parties and issues, including all information required by ORS 183.413(2) and 183.415(7).

(2) Each participant may be given an opportunity to make an opening statement describing the evidence and issues to be presented at the hearing.

(3) The Administrative Prosecutor will present evidence in support of the charging document.

(4) Any person, government agency, or entity granted party status may present additional evidence in support of the charging document.

(5) Each party opposing the charging document must present evidence in support of the party's position.

(6) Participants will have the right to conduct cross-examination of adverse witnesses.

(7) Participants may present rebuttal evidence.

(8) Participants may be given the opportunity to make a closing statement at the conclusion of the testimony.

(9) The Administrative Law Judge has the right to question any witness. The Administrative Law Judge may request any participant to provide additional evidence, and may recess the hearing when necessary to allow the participant the opportunity to gather and present the requested evidence.

(10) In any proceeding the Administrative Law Judge may call the participants together for a pre-hearing conference in order to ascertain what is disputed, hear argument on motions, order discovery, or resolve procedural matters. At any time during the hearing, the Administrative Law Judge may recess the hearing in order to conduct such a conference. The results of any conference will be summarized on the record, except that argument on motions will be recorded verbatim.

(11) When the testimony of a witness not present at the hearing is necessary to the complete and fair adjudication of the case, the Administrative Law Judge may admit testimony of the witness by telephone or other two-way communication device. In such cases:

(a) The testimony of the witness will be broadcast simultaneously to all participants and to the Administrative Law Judge;

(b) All rules governing the questioning of witnesses present at the hearing apply to witnesses whose testimony is taken by telephone; and

(c) The participant presenting the witness by telephone will provide the witness's telephone number and the approximate time that the witness will be available.

(12) The Agency has the right to submit a statement of policy concerning any issue that may arise in the course of the hearing.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0105
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0255 Telephone Hearings

(1) A "telephone hearing" is one in which at least one participant is not physically present at the hearing but participates by telephone or other two-way communication device.

(2) The Administrative Law Judge has the discretion to hold a hearing or portion of a hearing by telephone. Nothing in this rule precludes the Administrative Law Judge from allowing some parties or witnesses to attend by telephone while others attend in person.

(3) The Administrative Law Judge may direct that a hearing be held by telephone upon request or on the Administrative Law Judge's own motion.

(4) Fourteen days before the telephone hearing is scheduled to occur each participant must file with the Contested Case Coordinator and serve each other participant copies of documentary evidence that it will seek to introduce into the record and a list of all persons to be called as witnesses.

(5) The Administrative Law Judge may refuse to admit evidence not filed and served as required by section (4) of this rule, unless the participant that failed to provide the documentary evidence and the list of witnesses offers a satisfactory reason for having failed to do so or unless excluding the evidence would violate the duty to conduct a full and fair inquiry under ORS 183.417(8). If the Administrative Law Judge admits evidence that was not filed and served as required, the Administrative Law Judge may grant a continuance to allow an opportunity for the other participant(s) to respond.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 4-2002, f. 2-14-02, cert. ef. 2-15-02
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96

Or. Admin. R. 839-050-0260 Evidence

(1) All evidence of the type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs, including hearsay if reliable, will be admissible.

(2) Irrelevant, immaterial, or unduly repetitious evidence may be excluded.

(3) The burden of presenting evidence to support a fact or proposition rests on the proponent of that fact or proposition.

(4) The burden of presenting evidence to establish a prima facie case rests with the Agency.

(5) When appropriate, the burden of proving failure to mitigate damages rests with the party opposing damages.

(6) Any witness, including Agency staff, may submit evidence to the Administrative Law Judge.

(7) All offered evidence to which there is no objection may be received by the Administrative Law Judge subject to the Administrative Law Judge's power to exclude irrelevant, immaterial, or unduly repetitious evidence.

(8) Evidence on which an objection is made may be taken by the Administrative Law Judge. Rulings on the admissibility or exclusion of this evidence will be made at the hearing or at the time the Proposed Order in the case is issued.

(9) Any declaration, affidavit, certificate, or document included with a case summary or that a participant serves on the other participants at least ten days before hearing may be offered and received into evidence unless cross-examination is requested of the declarant, affiant, certificate preparer, or other document preparer or custodian no later than five days prior to hearing or, for good cause shown, by such other date as the Administrative Law Judge may set. A declaration, affidavit, or certificate may be offered and received with the same effect as oral testimony.

(10) If cross-examination is requested of the declarant, affiant, certificate preparer, or other document preparer or custodian as provided in section (9) of this rule and the preparer is not made available for cross-examination, but the declaration, affidavit, certificate or other document is offered in evidence, the same may be received in evidence, provided the Administrative Law Judge determines that:

(a) The contents of the document are otherwise admissible; and

(b) The participant requesting cross-examination would not be substantially prejudiced by the lack of cross-examination.

(11) The Administrative Law Judge will accept an offer of proof made for excluded evidence. The Administrative Law Judge has the discretion to decide when and in what form the offer of proof will be made and may place reasonable time or page limits on the offer of proof.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0120
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0270 Exhibits

(1) Hearing participants must premark their exhibits. Agency exhibits will be marked with "A" (for example, A-1, A-2, etc.), and Respondent exhibits will be marked with "R" (for example, R-1, R-2, etc.). The Administrative Law Judge will preserve the exhibits received as part of the record of the proceedings.

(2) All paper exhibits must be no larger than 8-1/2 by 11 inches in size and the participant presenting this exhibit must bring two copies of the exhibit to the hearing in addition to the copies already provided with the case summary. Participants must bring four copies of rebuttal or impeachment exhibits to the hearing unless those exhibits were previously submitted with the case summary, in which case only two additional copies are required at the hearing.

(3) Larger exhibits are allowed; however, in order to be included in the record, the information contained in the exhibit must be reduced to paper 8 1/2 by 11 inches in size.

(4) Variation from the exhibit size requirements will be allowed only when there is no reasonable alternative.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 4-2002, f. 2-14-02, cert. ef. 2-15-02
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0125
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0280 Stipulation

(1) Prior to the hearing, participants to a contested case may agree to all or some of the facts involved in the controversy. This may be done through a written and signed stipulation or an oral stipulation made on the record during a prehearing conference. Such a stipulation of facts is binding upon those who agree to it and will be regarded and used as evidence at the hearing. During the hearing, participants may stipulate to facts involved in the controversy. The Administrative Law Judge is bound by the facts set forth in a stipulation, but not by any conclusion drawn from those facts.

(2) Any party interested in stipulating to all or any part of the facts involved in the case should contact the Administrative Prosecutor identified in the Notice of Hearing. The Agency may also contact any party requesting that a stipulation be entered on all or any part of the facts.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0135
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0290 Witnesses

All testimony to be taken at the hearing, except matters officially noticed or entered by stipulation, will be sworn or affirmed. This may include testimony given on deposition, by declaration, or in answers to interrogatories.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0140
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0300 Interpreters and Assistive Communication Devices

(1) When a person unable to speak or understand the English language, or having a physical hearing or speaking impairment, is involved in a contested case hearing, such person is entitled to a qualified interpreter or appropriate assistive communication device. All interpreters will be appointed by the Administrative Law Judge. A participant wishing to obtain the services of an interpreter or to obtain an assistive communication device must notify the Administrative Law Judge no later than 20 days before the hearing. Such notification must include:

(a) The name of the person needing a qualified interpreter or assistive communication device;

(b) The person's status as a party or a witness in the proceeding; and

(A) A person with a physical hearing or speaking impairment, the nature and extent of the person's impairment, and the type of aural interpreter, or assistive communication device needed or preferred; or

(B) A person unable to speak or understand the English language, the language spoken by the person unable to speak or understand the English language.

(2) If a person with a physical hearing or speaking impairment is a party or a witness in a hearing:

(a) The Administrative Law Judge will appoint a qualified interpreter and make available appropriate assistive communication devices whenever it is necessary to interpret the proceedings to, or to interpret the testimony of, the person with a physical hearing or speaking impairment.

(b) No fee will be charged to the person with a physical hearing or speaking impairment for the appointment of an interpreter or use of an assistive communication device. No fee will be charged to any person for the appointment of an interpreter or the use of an assistive communication device if appointment or use is made to determine whether the person has a physical hearing or speaking impairment.

(3) If a person unable to speak or understand the English language is a party or a witness in a hearing:

(a) The Administrative Law Judge will appoint a qualified interpreter whenever it is necessary to interpret the proceedings to a party unable to speak or understand the English language, to interpret the testimony of a party or a witness unable to speak or understand the English language, or to assist the Administrative Law Judge in performing the duties of the Administrative Law Judge.

(b) No fee will be charged to any person for the appointment of an interpreter to interpret the testimony of a non-English speaking party or witness or to interpret the proceedings to a non-English speaking party.

(4) When a participant requests the services of an interpreter, the Administrative Law Judge will appoint a qualified interpreter who has been certified under ORS 45.291. If no certified interpreter is available, able, or willing to serve, the Administrative Law Judge will appoint a qualified interpreter. For the purposes of these rules, a "qualified interpreter" means:

(a) For a person with a physical hearing or speaking impairment, a person readily able to communicate with the person with the impairment, interpret the proceedings, and accurately repeat and interpret the statements of the person with the impairment to the Administrative Law Judge.

(b) For a person unable to speak or understand the English language, a person readily able to communicate with the person unable to speak or understand the English language and who can orally transfer the meaning of statements to and from English and the language spoken by the person unable to speak or understand the English language. A qualified interpreter must be able to interpret in a manner that conserves the meaning, tone, level, style, and register of the original statement, without additions or omissions. "Qualified interpreter" does not include a person who is unable to interpret the dialect, slang, or specialized vocabulary used by the party or witness.

(5) When the hearing begins, the Administrative Law Judge will require the person serving as an interpreter to state the person's name on the record and whether the person is certified under ORS 45.291. If the interpreter is certified, the interpreter will not be required to make the oath or affirmation required by ORS 40.325 or to submit the interpreter's qualifications on the record. If an interpreter is not certified under ORS 45.291, the Administrative Law Judge will require the interpreter to state or submit the interpreter's qualifications on the record and make an oath or affirmation to make a true and impartial interpretation of the proceedings in an understandable manner using the interpreter's best skills and judgment in accordance with the standards and ethics of the interpreter profession.

(6) The Administrative Law Judge will not appoint any person under these rules if:

(a) The person has a conflict of interest with any of the participants or witnesses;

(b) The person is unable to understand the Administrative Law Judge, participants or witnesses or cannot be understood by the Administrative Law Judge, participants or witnesses; or

(c) The person is unable to cooperate with Administrative Law Judge, the person in need of an interpreter, or the counsel for that person.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 13-2006, f. 3-23-06, cert. ef. 3-24-06
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 4-2002, f. 2-14-02, cert. ef. 2-15-02
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0145
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0310 Ex Parte Communications

(1) An ex parte communication is an oral or written communication to an agency decision maker or the presiding officer not made in the presence of all parties to the contested case proceeding, concerning a fact in issue in the proceeding, but does not include communication from agency staff or counsel about facts already in the record.

(2) The Administrative Law Judge will place on the record a statement of the substance of any ex parte communication on a fact in issue made to the Administrative Law Judge while the proceeding is pending. Participants will be given notice of such ex parte communication and of their right to rebut the substance of the ex parte communication on the record.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 16-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0101
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0320 Official Notice

The Administrative Law Judge, commissioner, or decision maker delegated by the commissioner may take notice of judicially cognizable facts and of general, technical, or scientific facts within the specialized knowledge of the Administrative Law Judge, commissioner, or decision maker delegated by the commissioner. Participants will be notified at any time during the proceeding of material officially noticed, and they will be afforded the opportunity to contest the fact so noticed. The notice required by this section may be given to the participants during the hearing, prior to the issuance of the Proposed Order, or in the Proposed Order in the matter.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 4-2002, f. 2-14-02, cert. ef. 2-15-02
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0130
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0330 Default

(1) Default may occur when:

(a) A party fails to file a required response, including a request for hearing or an answer, within the time specified in the charging document;

(b) A party withdraws a request for hearing;

(c) The Forum has scheduled a hearing and a party notifies the Agency or the Administrative Law Judge that the party will not appear at the specified time and place; or

(d) Notice regarding the time and place of the hearing was sent to the party and the party fails to appear at the scheduled hearing.

(2) When the Agency has designated the Agency file, including all the materials submitted by a party, as the record in its charging document:

(a) If a circumstance described in (1)(b) or (c) of this rule occurs, the Administrative Law Judge will issue an order dismissing the party's request for hearing.

(b) If the circumstance described in (1)(d) of this rule occurs, the Administrative Law Judge will wait no longer than 30 minutes from the time set for the contested case proceeding before orally dismissing the party's request for hearing. The Administrative Law Judge will subsequently issue a written order dismissing the party's request for hearing.

(c) When section (2)(a) or (b) of this rule applies, the Administrative Law Judge will refer the case to the Administrator of the Wage and Hour Division for issuance of a Final Order by Default. The Administrative Law Judge will prepare the Record of Proceeding of the contested case, including all materials filed with the Forum by the Agency or the party up to the time set for hearing and submit it to the Contested Case Coordinator for delivery to the Wage and Hour Administrator.

(d) If the circumstances described in (1)(d) of this rule occur, and before issuing a final order dismissing the party's request for hearing, the Administrative Law Judge finds that the party had good cause for not appearing, the Administrative Law Judge may not dismiss the party's request for hearing and will schedule a new hearing date. If the reasons for the party's failure to appear are in dispute, the Administrative Law Judge will schedule a hearing on the reasons for the party's failure to appear.

(3) When the Agency has not designated the Agency file as the record in its charging document, and a circumstance described in (1)(b)-(d) of this rule occurs and the Administrative Law Judge has not granted relief from default, the Administrative Law Judge will take evidence of a prima facie case from the Agency at hearing. The Administrative Law Judge will not permit the defaulted party to participate in any manner in the hearing, including, but not limited to, presentation of witnesses or evidence on the party's own behalf, examination of Agency witnesses, objection to evidence presented by the Agency, making of motions or argument, or filing exceptions to the Proposed Order.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 10-2014, f. & cert. ef. 9-4-14
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0185
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 4-1987, f. 2-11-87, ef. 2-13-87
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0340 Relief from Default

(1) A party seeking relief from default must file a written request for relief from default within 10 days after any of the following:

(a) A Final Order by default has been issued by the Administrator of the Wage and Hour Division;

(b) A notice of default has been issued; or

(c) A party has failed to appear at a hearing and the Administrator of the Wage and Hour Division has issued a Final Order by default.

(2) Relief from default may be granted when the party’s written request for relief from default shows good cause for the party’s action or inaction that caused the default. The party’s request should state any facts supporting the party’s claim of good cause and include any documents that support the party’s claim.

(3) The computation of the 10-day deadline for filing begins on the day after one of the events listed in (1)(a), (b), or (c) of this rule occurs. If the 10th day is a Saturday, Sunday, or holiday officially recognized by the State of Oregon or the federal government, the 10-day deadline will expire at 5 p.m. of the next day that is not a Saturday, Sunday, or holiday. A request for relief from default is considered filed on the date that it is postmarked by the United States Postal Service, or on the date reported on a certificate of service signed by counsel, or on the date it is received, whichever is earlier.

(4) A request for relief from default made after a Final Order by default has been issued by the Administrator of the Wage and Hour Division must be addressed to the Administrator of the Wage and Hour Division. The Administrator of the Wage and Hour Division may serve a response on the requesting party. The Administrator of the Wage and Hour Division will then file the request for relief from default, any response the Wage and Hour Division served on the requesting party, a copy of the Final Order on Default, and the division's case file with the Contested Case Coordinator for assignment to an Administrative Law Judge to rule on and issue an order denying or granting the request for relief from default.

(5) A request for relief from default made after a notice of default has been issued or after the party has failed to appear at a hearing and the Administrator of the Wage and Hour Division has issued a Final Order on default must be filed with the Contested Case Coordinator for assignment to an Administrative Law Judge to rule on and issue an order denying or granting the request for relief from default. If the Administrative Law Judge grants the party’s request for relief from default, the Administrative Law Judge will schedule a new hearing.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 10-2014, f. & cert. ef. 9-4-14
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 16-2011, f. 12-30-11, cert. ef. 1-1-12
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0190
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 4-1987, f. 2-11-87, ef. 2-13-87
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0350 Record of Proceeding

(1) A verbatim, written and/or mechanical record of the proceeding will be made that includes:

(a) All pleadings, motions, legal memoranda, correspondence, and rulings made by the Administrative Law Judge;

(b) The case summary submitted by any participant;

(d) Stipulations approved by the Administrative Law Judge;

(e) A statement of matters officially noticed;

(f) Questions asked, offers of proof and objections and rulings made during the hearing;

(g) A statement of any ex parte communications on a fact at issue made to the Administrative Law Judge;

(h) The Proposed Order by the Administrative Law Judge;

(i) Exceptions filed by any participant;

(j) Nonconfidential advice from counsel to the Agency;

(k) Policy statements submitted by the Agency; and

(l) The commissioner's Final Order.

(2) The record in the case does not close until the Forum has received all documents, statements, and advice requested. The Administrative Law Judge will determine the date upon which the record closed.

(3) The written or mechanical record ordinarily will not be transcribed unless requested for purposes of court review.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0150
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0360 Post-Hearing Briefs

(1) The Administrative Law Judge may request a post-hearing brief from a participant. The Administrative Law Judge will state the specific issues to be briefed and the deadline for filing the brief.

(2) If a party's brief contains legal argument as defined in OAR 839-050-0110(4), the party must file its brief through counsel, except if the party is an individual who is not required under 839-050-0110(1) to be represented by counsel and personally files the brief. The Agency may respond to the Administrative Law Judge's request by filing a legal brief from the Attorney General or an Agency statement of policy.

(3) Nothing in this rule limits the Administrative Law Judge's authority to request a statement of policy from the Agency.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 6-2005, f. 2-8-05, cert. ef. 2-11-05
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0155
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0370 Proposed Orders

(1) The Administrative Law Judge will prepare and serve upon the commissioner and all participants a Proposed Order including the following:

(a) Rulings, motions, or objections, including those rulings previously reserved;

(b) Findings of fact, including those matters at issue that are either agreed to as fact at the hearing or by stipulation, or that, when disputed, are determined by the Administrative Law Judge to be a fact over contentions to the contrary, and will include:

(A) A concise statement of facts supporting the findings as to each contested issue of fact;

(B) Ultimate facts required to support the Agency's order; and

(C) Credibility findings when credibility is of importance in the decision of the case, including the evidence relied on to reach this finding and the relevance of that evidence.

(d) An opinion explaining the rationale for the findings of fact and conclusions of law; and

(e) An order setting forth the Administrative Law Judge's suggested determination, when the proposed decision is adverse to the party, of the amount owed by the party and any other relief within the authority of the commissioner.

(2) Proposed Orders will include a statement that written exceptions, if any, must be filed by participants within ten days of the date of issuance of the Proposed Order.

(3) Unless it is not practicable to do so, a proposed order in a case involving alleged violations of ORS 659A.145 or 659A.421, or federal housing law, will be issued within 60 days of the date of the closure of the hearing record. If the issuance of the proposed order will be delayed, written notice will be given to the participants by the Administrative Law Judge as to the general reasons for the delay.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 12-2010, f. 3-1-10, cert. ef. 3-3-10
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0160
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 12-1986, f. 10-29-86, ef. 10-30-86
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0380 Exceptions to Proposed Order

(1) Any participant may file exceptions to the Proposed Order. Exceptions must be specific and must be in writing. No oral argument is allowed on exceptions unless requested by the Administrative Law Judge. Any new facts presented or issues raised in exceptions will not be considered by the commissioner in the Final Order.

(2) Exceptions filed by the Agency may include factual summaries, statements of policy, corrections, and prior Agency decisions, but may not include legal argument as defined in OAR 839-050-0110(4) unless the Agency is represented by counsel.

(3) Exceptions filed by a party's authorized representative may include factual summaries, statements of policy, corrections, and prior Agency decisions, but may not include legal argument as defined in OAR 839-050-0110(4). A party that is a government agency, corporation, or unincorporated association, including a limited liability company, may include legal argument in its exceptions only if those exceptions are filed by counsel.

(4) Participants must file any exceptions within ten days of the date of issuance of the Proposed Order. Exceptions must be filed with the Contested Case Coordinator at the address indicated in the Proposed Order. Participants may request an extension of time to file exceptions as provided in OAR 839-050-0050.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845, 659A.850, ORS 279C.860 & 279C.865
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0165
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0400 Agency Policy

The Administrative Law Judge may, at any time during a contested case proceeding and before the issuance of a Final Order, request that the Agency submit a written statement indicating the Agency's policy with regard to any statute or administrative rule at issue in the case. The Administrative Law Judge will provide a copy of such request and Agency statement to the commissioner and all parties in the case and will include the statement in the record of the proceeding.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0175
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0410 Reopening the Contested Case Record

On the Administrative Law Judge's own motion or on the motion of a participant, the Administrative Law Judge will reopen the record when the Administrative Law Judge determines additional evidence is necessary to fully and fairly adjudicate the case. A participant requesting that the record be reopened to offer additional evidence must show good cause for not having provided the evidence before the record closed.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0195
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0420 Final Order

(1) Except as provided in OAR 839-050-0220, 839-050-0430, or 839-050-0440, on the basis of the record considered as a whole, the commissioner will issue a Final Order in writing that includes findings of fact, conclusions of law, and an opinion and order. The Final Order will also contain a notice that the Final Order may be appealed to the Oregon Court of Appeals.

(2) The Final Order may include different findings, conclusions, or interpretations of law than the Proposed Order.

(3) The Final Order may provide for a different determination of liability, alternative means of enforcement, damages, or penalties, than the Proposed Order.

(4) A copy of the Final Order will be served on participants to a contested case in accordance with OAR 839-050-0030.

(5) Unless otherwise provided by law, a final order remains in effect during appeal, reconsideration or rehearing until stayed or changed.

(6) The commissioner may authorize and delegate the commissioner's authority to exercise and fulfill the duties of the commissioner, including issuance of Final Orders, to an officer or employee of the Agency, pursuant to ORS 651.060. A delegation of authority under this section must be made in writing before the issuance of any order pursuant to the delegation and must be retained in the Agency's records.

History

Statutory/Other Authority: ORS chapter 183 & 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845, 659A.850 & 651.060(3)
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 4-2002, f. 2-14-02, cert. ef. 2-15-02
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96
BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0180
BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93
BL 10-1988, f. & cert. ef. 6-16-88
BL 8-1986, f. & ef. 9-2-86

Or. Admin. R. 839-050-0430 Final Order by Default

(1) The Administrator of the Wage and Hour Division may issue a Final Order by default when:

(a) A party is given an opportunity to request a hearing and file an answer within the time specified in the charging document and fails to do so; or

(b) A party withdraws the party's request for hearing.

(2) A Final Order by default may be issued only after a prima facie case in support of the charging document is made on the record. A prima facie case may be made from the Agency's file, if designated as the record in the charging document, provided that the charging document contained a statement advising the party that a failure to request a hearing would result in a Final Order.

(3) The participants will be served with a copy of the Final Order by default in accordance with OAR 839-050-0030.

(4) When a party has requested a hearing but either fails to attend the hearing or notifies the Agency that it will not attend, the Administrative Law Judge will proceed according to OAR 839-050-0330.

History

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)
Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04
BLI 2-2000, f. & cert. ef. 1-27-00
BL 12-1996, f. & cert. ef. 12-10-96

Or. Admin. R. 839-050-0445 Proceedings on Prevailing Wage Rate Determinations

(1) This rule sets forth the procedures used in contested case proceedings requested pursuant to ORS 279C.817(4) and OAR 839-025-0005(7).

(2) Proceedings on prevailing wage rate determinations are governed by the procedures set forth in OAR 839-050-0000 to 839-050-0430, except to the extent those procedures are modified by this rule.

(3) The following definitions apply to this rule:

(a) “Aggrieved person” means a person adversely affected or aggrieved by a commissioner’s determination under ORS 279C.817.

(b) “Determination” means a determination issued by the commissioner under the provisions of ORS 279C.817 and OAR 839-025-0005.

(c) “Party” means a requester or aggrieved person who has requested a hearing after the commissioner issues a determination.

(d) “Requester” means a public agency or other interested person who requests a determination under ORS 279C.817 about whether a project or proposed project is or would be a public works on which payment of the prevailing rate of wage is or would be required under ORS 279C.840.

(4) When the commissioner has issued a determination and the requester or aggrieved person requests a hearing, an Administrative Law Judge will be assigned to hear the case and the Contested Case Coordinator will issue a Notice of Hearing on behalf of the Forum to the party that meets the requirements of OAR 839-050-0080(1). Information on contested case proceedings will be provided as required by OAR 839-050-0100.

(5) Within ten days after the Notice of Hearing is issued, the Administrative Law Judge will issue an order requiring:

(a) The party to file a written statement identifying all of the party’s reasons for contesting the determination; and

(b) The Agency to file copies of all materials provided by the requester under OAR 839-025-0005(1)–(4), a copy of the Agency’s determination, and a copy of any other materials the Agency relied on to reach its determination. The Agency will mark these materials and the Agency’s determination for identification in the manner set forth in 839-050-0270.

(6) The statement, materials, and Agency determination filed pursuant to section (5) of this rule will be received into the record as exhibits.

(7) No later than 14 calendar days before the hearing date, the party and the Agency each will file written statements containing the names of all persons they propose to call as witnesses at the hearing, along with a statement of how each person’s testimony will help the Administrative Law Judge understand the materials provided by the requester under OAR 839-025-0005(1)–(4) or the reasons for the Agency’s determination.

(8) After reviewing the materials and statements filed pursuant to sections (5) and (7) of this rule, the Administrative Law Judge may issue an interim order finding that the testimony of any proposed witness is irrelevant to the issues at hearing and disallowing the proposed testimony. The Administrative Law Judge may also request that the party or Agency bring additional witnesses to the hearing.

(9) Evidence presented at hearing is limited to the materials provided to and considered by the Agency in making its determination and witness testimony explaining the materials and their significance.

(10) At hearing, the Agency, as proponent of its determination, will first present evidence in support of its determination. The party will then have an opportunity to explain the reasons that the party contests the determination and to rebut the Agency's evidence. The Agency may then present evidence to rebut evidence presented by the party.

(11) If the party withdraws its request for hearing or does not appear at the scheduled hearing, the Administrative Law Judge will issue an order canceling the hearing. When a hearing is canceled based on a party’s failure to appear at the scheduled hearing, the hearing may be rescheduled if the party establishes good cause for its failure to appear within 10 days after the party fails to appear at hearing. The party’s request to reschedule the hearing must be in writing and be accompanied by a written statement, together with appropriate documentation, setting forth facts supporting the claim of good cause and must be filed with the Contested Case Coordinator.

History

Statutory/Other Authority: ORS chapter 183, ORS 651.060(4) & 279C.817
Statutes/Other Implemented: ORS 279C.817
BLI 8-2019, amend filed 07/01/2019, effective 07/01/2019
BLI 5-2014, f. & cert. ef. 4-15-14
BLI 1-2011, f. 1-31-11, cert. ef. 2-1-11
BLI 39-2008, f. & cert. ef. 11-7-08
BLI 25-2008(Temp), f. & cert. ef. 7-29-08 thru 1-23-09

Or. Admin. R. 839-050-0450 Proceedings on Apprenticeship and Training Division Hearings

(1) This rule sets forth the procedures used in a proceeding to show cause requested pursuant to OAR 839-011-0093(5).

(2) Proceedings on apprenticeship and training committee disciplinary procedures are governed by the procedures set forth in OAR 839-050-0000 to 839-050-0430, except to the extent those procedures are modified by this rule. References to the commissioner in OAR 839-050-0000 to 839-050-0430 will be deemed to refer to the Council, unless the context requires otherwise. References to Agency will be deemed to refer to the Division, unless the context requires otherwise.

(3) The following definitions apply to this rule:

(a) “Council” means the Oregon State Apprenticeship and Training Council.

(b) “Determination” means a determination issued by the Council under the provisions of OAR 839-011-0093(5).

(c) “Director” means the individual who serves as council secretary and is responsible for the administration of ORS 660.002 to 660.210, including supervision of all office and field staff.

(d) “Division” means the Apprenticeship and Training Division of the Bureau of Labor and Industries.

(e) “Local Committee” means any registered joint or trades apprenticeship or training committee approved by the Council.

(f) “Registered Apprenticeship Program” means a local committee approved by the Council to operate an apprenticeship or training program in a specific occupation.

(g) “Registered Pre-Apprenticeship Program” means a training program approved by the Council that prepares individuals for acceptance into a registered apprenticeship program.

(h) “Standards” means a written agreement submitted by a local committee and approved by the Council, which sets forth a plan containing all terms and conditions for the qualification, employment and training of apprentices or trainees as set forth in ORS chapter 660.126 and 660.137.

(i) “Training Agent” means an employer or organization approved by a local committee to employ and train apprentices and registered with the Division.

(4) When the Director of the Division has issued a referral for a determination and the training agent or local committee requests a hearing, an Administrative Law Judge will be assigned to hear the case and the Contested Case Coordinator will issue a Notice of Hearing on behalf of the Forum to the party that meets the requirements of OAR 839-050-0080(4). Information on contested case proceedings will be provided as required by OAR 839-050-0100.

(5) In lieu of OAR 839-050-0210 and in addition to OAR 839-050-0260, no later than 14 calendar days before the hearing date:

(a) The training agent or local committee will file a written statement identifying all of the party’s reasons for contesting the determination, along with all supporting exhibits the party intends to offer at hearing; and

(b) The Agency will file copies of all materials considered during the course of its investigation conducted under OAR 839-011-0093(1)–(4), including any complaint or compliance review that prompted the investigation, a copy of the Agency’s determination, and copies of any post-determination compliance efforts or proposed corrective action plans. The Agency will mark these materials and the Agency’s determination for identification in the manner set forth in 839-050-0270.

(c) Each party to the proceeding will file written statements containing the names of all persons they propose to call as witnesses at the hearing, along with a statement of how each person’s testimony will help the Administrative Law Judge understand the materials provided by the requester under OAR 839-011-0093(1)–(4) or the reasons for the Agency’s referral for a determination or is otherwise relevant or material to the proceeding.

(6) The statement, materials, and Agency determination filed pursuant to section (5) of this rule may be received into the record as exhibits.

(7) After reviewing the materials and statements filed pursuant to sections (5) and (6) of this rule, the Administrative Law Judge may issue an interim order finding that the testimony of any proposed witness is irrelevant, immaterial, or unduly repetitious and disallowing the proposed testimony. The Administrative Law Judge may also request that the party or Agency bring additional witnesses to the hearing.

(8) OAR 839-050-0260 shall generally apply to the conduct of the hearing. At hearing, the Agency, as proponent of its determination, will first present evidence in support of its determination. The party will then have an opportunity to explain the reasons that the party contests the determination and to rebut the Agency's evidence. The Agency may then present evidence to rebut evidence presented by the party.

(9) Motions authorized under OAR 839-050-0150(1), (4), (6), (9), (11), and (12) may not be filed in proceedings conducted under this rule.

(10) After the conclusion of the hearing, the Administrative Law Judge will issue a proposed order, if a proposed order is required under OAR 137-003-0060, and the Council will issue a final order on the determination consistent with the requirements of OAR 839-050-0420 and OAR 839-011-0093(5).

History

Statutory/Other Authority: ORS Chapter 183 & ORS Chapter 651.060(4)
Statutes/Other Implemented: ORS 660.120(4)
BLI 7-2021, adopt filed 07/06/2021, effective 08/01/2021
BLI 3-2021, temporary adopt filed 01/26/2021, effective 01/26/2021 through 07/17/2021
BLI 2-2021, temporary adopt filed 01/19/2021, effective 01/20/2021 through 07/17/2021
BLI 1-2021, temporary adopt filed 01/19/2021, effective 01/20/2021 through 07/17/2021

Division 51 CONFIDENTIALITY AND INADMISSIBILITY OF MEDIATION COMMUNICATIONS

Or. Admin. R. 839-051-0010 Confidentiality and Inadmissibility of Mediation Communications

(1) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(2) Nothing in this rule affects any confidentiality created by other law. Nothing in this rule relieves a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690. Whether or not they are confidential under this or other rules of the agency, mediation communications are exempt from disclosure under the Public Records Law to the extent provided in 192.410 to 192.505.

(3) This rule applies only to mediations in which the agency is a party or is mediating a dispute as to which the agency has regulatory authority. This rule does not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in ORS 36.234.

(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.

(5) Mediations Excluded. Sections (6)–(10) of this rule do not apply to:

(a) Mediation of workplace interpersonal disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials, unless a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed; or

(b) Mediation in which the person acting as the mediator will also act as the hearings officer in a contested case involving some or all of the same matters;

(d) Mediation involving two or more public bodies and a private party if the laws, rule or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential;

(e) Mediation involving 15 or more parties if the agency has designated that another mediation confidentiality rule adopted by the agency may apply to that mediation.

(6) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c)–(d), (j)–(l) or (o)–(p) of section (9) of this rule.

(7) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in sections (8)–(9) of this rule, mediation communications are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced as evidence by the parties or the mediator in any subsequent proceeding.

(8) Written Agreement. Section (7) of this rule does not apply to a mediation unless the parties to the mediation agree in writing, as provided in this section, that the mediation communications in the mediation will be confidential and/or nondiscoverable and inadmissible. If the mediator is the employee of and acting on behalf of a state agency, the mediator or an authorized agency representative must also sign the agreement. The parties' agreement to participate in a confidential mediation must be in substantially the format of the “Agreement to Mediate” form linked to the Oregon Department of Justice Alternative Dispute Resolution web page at http://www.doj.state.or.us/adr/bul_indx.shtml. This form may be used separately or incorporated into an "agreement to mediate."

(9) Exceptions to confidentiality and inadmissibility.

(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.

(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.

(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.

(d) Any mediation communication related to the conduct of a licensed professional that is made to or in the presence of a person who, as a condition of his or her professional license, is obligated to report such communication by law or court rule is not confidential and may be disclosed to the extent necessary to make such a report.

(e) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.

(f) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS Chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.

(g) An employee of the agency may disclose confidential mediation communications to another agency employee so long as the disclosure is necessary to conduct authorized activities of the agency. An employee receiving a confidential mediation communication under this subsection is bound by the same confidentiality requirements as apply to the parties to the mediation.

(h) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.

(i) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.

(j) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.

(k) When a mediation is conducted as part of the negotiation of a collective bargaining agreement, the following mediation communications are not confidential and such communications may be introduced into evidence in a subsequent administrative, judicial or arbitration proceeding:

(A) A request for mediation; or

(B) A communication from the Employment Relations Board Conciliation Service establishing the time and place of mediation; or

(D) A strike notice submitted to the Employment Relations Board.

(l) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.

(m) Written mediation communications prepared by or for the agency or its attorney are not confidential and may be disclosed and may be introduced as evidence in any subsequent administrative, judicial or arbitration proceeding to the extent the communication does not contain confidential information from the mediator or another party, except for those written mediation communications that are:

(A) Attorney-client privileged communications so long as they have been disclosed to no one other than the mediator in the course of the mediation or to persons as to whom disclosure of the communication would not waive the privilege; or

(B) Attorney work product prepared in anticipation of litigation or for trial; or

(C) Prepared exclusively for the mediator or in a caucus session and not given to another party in the mediation other than a state agency; or

(D) Prepared in response to the written request of the mediator for specific documents or information and given to another party in the mediation; or

(E) Settlement concepts or proposals, shared with the mediator or other parties.

(n) A mediation communication made to the agency may be disclosed and may be admitted into evidence to the extent the Commissioner of the Bureau of Labor and Industries determines that disclosure of the communication is necessary to prevent or mitigate a serious danger to the public's health or safety, and the communication is not otherwise confidential or privileged under state or federal law.

(o) The terms of any mediation agreement are not confidential and may be introduced as evidence in a subsequent proceeding, except to the extent the terms of the agreement are exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms to be confidential under 17.095 or state or federal law requires the terms to be confidential.

(p) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).

(10) When a mediation is subject to section (7) of this rule, the agency will provide to all parties to the mediation and the mediator a copy of this rule or a citation to the rule and an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.

(11) Nothing said or done in the course of settlement discussions concerning a complaint alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law may be disclosed in any manner, including but not limited to disclosure under 192.410 to 192.505, or be used as evidence in a subsequent proceeding under ORS Chapter 659A or under federal housing law, without the written consent of the persons concerned.

[ED. NOTE: Tables referenced are available from the agency.]

History

Statutory/Other Authority: ORS 36.224
Statutes/Other Implemented: ORS 36.224, 36.228, 36.230, 36.232 & 659A.840
BLI 12-2010, f. 3-1-10, cert. ef. 3-3-10
BLI 10-1998, f. & cert. ef. 12-17-98
BLI 5-1998(Temp), f. & cert. ef. 10-6-98 thru 3-27-99

Or. Admin. R. 839-051-0020 Confidentiality and Inadmissibility of Workplace Interpersonal Dispute Mediation Communications

(1) This rule applies to workplace interpersonal disputes, which are disputes involving the interpersonal relationships between this agency’s employees, officials or employees and officials. This rule does not apply to disputes involving the negotiation of labor contracts or matters about which a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed.

(2) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.

(3) Nothing in this rule affects any confidentiality created by other law.

(5) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in a mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:

(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c) or (h)–(j) of section (7) of this rule.

(6) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in section (7) of this rule, mediation communications in mediations involving workplace interpersonal disputes are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced into evidence by the parties or the mediator in any subsequent proceeding so long as:

(a) The parties to the mediation and the agency have agreed in writing to the confidentiality of the mediation; and

(b) The person agreeing to the confidentiality of the mediation on behalf of the agency:

(A) Is neither a party to the dispute nor the mediator; and

(B) Is designated by the agency to authorize confidentiality for the mediation; and

(C) Is at the same or higher level in the agency than any of the parties to the mediation or who is a person with responsibility for human resources or personnel matters in the agency, unless the agency head or member of the governing board is one of the persons involved in the interpersonal dispute, in which case the Governor or the Governor’s designee.

(7) Exceptions to confidentiality and inadmissibility.

(d) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.

(e) A party to the mediation may disclose confidential mediation communications to a person if the party’s communication with that person is privileged under ORS Chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.

(f) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.

(g) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.

(h) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.

(i) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.

(j) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).

(8) The terms of any agreement arising out of the mediation of a workplace interpersonal dispute are confidential so long as the parties and the agency so agree in writing. Any term of an agreement that requires an expenditure of public funds, other than expenditures of $1,000 or less for employee training, employee counseling or purchases of equipment that remain the property of the agency, may not be made confidential.

(9) When a mediation is subject to section (6) of this rule, the agency will provide to all parties to the mediation and to the mediator a copy of this rule or an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.

History

Statutory/Other Authority: ORS 36.224
Statutes/Other Implemented: ORS 36.230(4)
BLI 10-1998, f. & cert. ef. 12-17-98