71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 371
A-Engrossed
House Bill 2352
Ordered by the House February 20
Including House Amendments dated February 20
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee for Oregon Law Commission)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Revises laws relating to unlawful employment practices and
other unlawful practices.
A BILL FOR AN ACT
Relating to unlawful practices; creating new provisions; amending
ORS 25.424, 30.178, 30.275, 30.670, 30.685, 90.765, 171.120,
171.125, 183.090, 192.501, 241.440, 241.450, 241.460, 242.620,
242.630, 345.240, 396.330, 399.235, 461.120, 476.576, 651.120,
654.062, 656.262, 659.022, 659.030, 659.033, 659.035, 659.036,
659.037, 659.100, 659.103, 659.105, 659.110, 659.115, 659.227,
659.270, 659.285, 659.295, 659.297, 659.324, 659.330, 659.340,
659.358, 659.380, 659.400, 659.405, 659.410, 659.420, 659.430,
659.439, 659.450, 659.455, 659.460, 659.492, 659.505, 659.510,
659.515, 659.520, 659.530, 659.535, 659.540, 659.545, 659.550
and 659.990; and repealing ORS 30.680, 659.010, 659.038,
659.040, 659.045, 659.050, 659.055, 659.060, 659.070, 659.085,
659.095, 659.121 and 659.435.
Be It Enacted by the People of the State of Oregon:
{ +
ADMINISTRATIVE AND JUDICIAL ENFORCEMENT + }
SECTION 1. { + Definitions. As used in sections 1 to 15 of
this 2001 Act:
(1) 'Bureau' means the Bureau of Labor and Industries.
(2) 'Commissioner' means the Commissioner of the Bureau of
Labor and Industries.
(3) 'Employee' does not include any individual employed by the
individual's parents, spouse or child or in the domestic service
of any person.
(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) 'Employment agency' includes any person undertaking to
procure employees or opportunities to work.
(6)(a) 'Familial status' means the relationship between one or
more individuals who have not attained 18 years of age and who
are domiciled with:
(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.
(b) '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.
(7) 'Labor organization' includes any organization which 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.
(8) 'National origin' includes ancestry.
(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. ' Person' also
includes a public body as defined in ORS 30.260.
(10) 'Respondent' means any person against whom a complaint or
charge of an unlawful practice is filed with the commissioner or
whose name has been added to such complaint or charge pursuant to
section 5 of this 2001 Act.
(11) 'Unlawful employment practice' means a practice
specifically denominated as an unlawful employment practice in
sections 1 to 15 of this 2001 Act. 'Unlawful employment practice'
includes a practice that is specifically denominated in another
statute of this state as an unlawful employment practice and that
is specifically made subject to enforcement under sections 1 to
15 of this 2001 Act.
(12) 'Unlawful practice' means any unlawful employment practice
or any other practice specifically denominated as an unlawful
practice in sections 1 to 15 of this 2001 Act. 'Unlawful
practice' includes a practice that is specifically denominated in
another statute of this state as an unlawful practice and that is
specifically made subject to enforcement under sections 1 to 15
of this 2001 Act, or a practice that violates a rule adopted by
the commissioner for the enforcement of the provisions of
sections 1 to 15 of this 2001 Act. + }
SECTION 2. { + Complaints. (1) Any person claiming to be
aggrieved by an alleged unlawful practice may file with the
Commissioner of the Bureau of Labor and Industries a verified
written complaint that states the name and address of the person
alleged to have committed the unlawful practice. The complaint
may be signed by the complainant or the attorney for the
complainant. The complaint must set forth the acts or omissions
alleged to be an unlawful practice. The complainant may be
required to set forth in the complaint such other information as
the commissioner may require. Except as provided in ORS 654.062,
a complaint under this section must be filed no later than one
year after the alleged unlawful practice.
(2) A complaint may not be filed under this section if a civil
action has been commenced in state or federal court alleging the
same matters.
(3) Any employer whose employees, or any of them, refuse or
threaten to refuse to abide by the provisions of sections 1 to 15
of this 2001 Act or to cooperate in carrying out the purposes of
sections 1 to 15 of this 2001 Act may file with the commissioner
a verified complaint requesting assistance by conciliation or
other remedial action.
(4) The commissioner shall notify the person against whom a
complaint is made within 30 days of the filing of the complaint.
The notice shall include the date, place and circumstances of the
alleged unlawful practice. + }
SECTION 3. { + Complaints filed by Attorney General or
commissioner; temporary cease and desist orders in certain cases.
(1) If the Attorney General or the Commissioner of the Bureau of
Labor and Industries has reason to believe that any person has
committed an unlawful practice, the Attorney General or the
commissioner may file a complaint in the same manner as provided
for a complaint filed by a person under section 2 of this 2001
Act. If the Attorney General or the commissioner has reason to
believe that a violation of ORS 30.670, 30.685 or 659.037 has
occurred, the Attorney General or the commissioner may file a
complaint under this section against any person acting on behalf
of a place of public accommodation and against any person who has
aided or abetted in that violation.
(2) If the commissioner files a complaint under this section
alleging an unlawful practice other than an unlawful employment
practice, the commissioner may also issue a temporary cease and
desist order requiring any respondent named in the complaint to
refrain from the unlawful practice alleged. A temporary cease and
desist order under this section may contain any provision that
could be included in a cease and desist order issued after a
hearing under section 8 of this 2001 Act. + }
SECTION 4. { + Authority of commissioner. (1) Except as
provided in subsection (5) of this section, all authority of the
Commissioner of the Bureau of Labor and Industries to conduct
investigations or other proceedings to resolve a complaint filed
under section 2 of this 2001 Act ceases upon the filing of a
civil action by the complainant alleging the same matters that
are the basis of the complaint under section 2 of this 2001 Act.
(2) The commissioner may dismiss a complaint at any time after
the complaint is filed. Upon the written request of the person
who filed the complaint under section 2 of this 2001 Act, the
commissioner shall dismiss the complaint. Upon dismissal of the
complaint, the commissioner shall issue a 90-day notice if notice
is required under section 14 of this 2001 Act.
(3) Except as provided in subsection (4) of this section, all
authority of the commissioner to conduct investigations or other
proceedings to resolve a complaint filed under section 2 of this
2001 Act ceases one year after the complaint is filed unless the
commissioner has issued a finding of substantial evidence under
section 5 of this 2001 Act during the one-year period.
(4) The authority of the commissioner to conduct investigations
or other proceedings to resolve a complaint filed under section 2
of this 2001 Act alleging a violation of ORS 30.670 or 30.685
continues until the filing of a civil action by the complainant
or until the commissioner dismisses the proceedings, enters into
a settlement agreement or enters a final order in the matter
after a hearing under section 8 of this 2001 Act.
(5) The authority of the commissioner to conduct investigations
or other proceedings to resolve a complaint filed under section 2
of this 2001 Act alleging a violation of ORS 659.033 or 659.430
or of an equivalent federal law does not cease upon the filing of
a civil action by the complainant, but ceases upon the
commencement of a trial in the civil action.
(6) Nothing in this section affects the ability of the
commissioner to enforce any order entered by the commissioner or
to enforce any settlement agreement signed by a representative of
the commissioner. + }
SECTION 5. { + Investigation; finding of substantial
evidence. (1) After the filing of any complaint under section 2
or 3 of this 2001 Act, the Commissioner of the Bureau of Labor
and Industries may investigate the complaint. If by reason of the
investigation the commissioner determines that additional persons
should be named as respondents in the complaint, the commissioner
may add the names of those persons to the complaint as
respondents. The commissioner may name additional persons as
respondents under this subsection only during the course of the
investigation.
(2) If an investigation under this section discloses any
substantial evidence supporting the allegations of a complaint,
the commissioner shall issue a finding of substantial evidence.
The finding must be sent to the respondent and the complainant
and must be signed by the commissioner or the commissioner's
designee. The finding must include at least the following
information:
(a) The names of the complainant and the respondent;
(b) The allegations contained in the complaint;
(c) Facts found by the commissioner that are related to the
allegations of the complaint; and
(d) A statement that the investigation of the complaint has
disclosed substantial evidence supporting the allegations of the
complaint. + }
SECTION 6. { + Settlement. (1) The Commissioner of the Bureau
of Labor and Industries and any respondent named in a complaint
may enter into a settlement at any time after the filing of a
complaint. Upon issuing a finding of substantial evidence under
section 5 of this 2001 Act, the commissioner may take immediate
steps to settle the matter through conference, conciliation and
persuasion, to eliminate the effects of the unlawful practice and
to otherwise carry out the purposes of sections 1 to 15 of this
2001 Act.
(2) The terms of any settlement agreement entered into under
sections 1 to 15 of this 2001 Act must be contained in a written
settlement agreement signed by the complainant, the respondent
and a representative of the commissioner. Such agreement may
include any or all terms and conditions that may be included in a
cease and desist order issued by the commissioner after a hearing
under section 8 of this 2001 Act.
(3) A complainant may file a complaint with the commissioner at
any time after a settlement agreement has been entered into under
sections 1 to 15 of this 2001 Act to seek enforcement of the
terms of the agreement. A complaint under this subsection must be
filed within one year after the act or omission alleged to be a
violation of the terms of the agreement. The commissioner shall
investigate and resolve the complaint in the same manner as
provided in sections 1 to 15 of this 2001 Act for a complaint
filed under section 2 of this 2001 Act.
(4) In addition to the remedy provided under subsection (3) of
this section, a complainant may seek to enforce a settlement
agreement entered into under sections 1 to 15 of this 2001 Act by
writ of mandamus or a civil action seeking injunctive relief or
specific performance of the agreement.
(5) The commissioner shall enter an order based on the terms of
a settlement agreement that is signed by a representative of the
commissioner and that is entered into after the issuance of
formal charges under section 7 of this 2001 Act. In addition to
enforcement in the manner provided by subsection (3) or (4) of
this section, the order may be recorded in the County Clerk Lien
Record in the manner provided by ORS 205.125 and enforced in the
manner provided by ORS 205.126. + }
SECTION 7. { + Formal charges. If the Commissioner of the
Bureau of Labor and Industries issues a finding of substantial
evidence under section 5 of this 2001 Act and the matter cannot
be settled through conference, conciliation and persuasion, or if
the commissioner determines that the interest of justice requires
that a hearing be held without first seeking settlement, the
commissioner shall prepare formal charges. Formal charges must
contain all information required for a notice under ORS 183.415
and must specify the allegations of the complaint to which the
respondent will be required to make response. Formal charges
shall also set the time and place for hearing the formal charges.
The commissioner shall serve the formal charges on all
respondents found to have engaged in the unlawful practice. + }
SECTION 8. { + Hearing. (1) All proceedings before the
Commissioner of the Bureau of Labor and Industries under this
section shall be conducted as contested case proceedings under
the provisions of ORS 183.310 to 183.550. The commissioner may
appoint a special tribunal or hearing officer to hear the matter.
The commissioner may affirm, reverse, modify or supplement the
determinations, conclusions or order of any special tribunal or
hearing officer appointed under this subsection. The scheduling
of a hearing under this section does not affect the ability of
the commissioner and any respondent to thereafter settle the
matters alleged in the complaint through conference, conciliation
and persuasion.
(2) After considering all the evidence, the commissioner shall
cause to be issued findings of facts and conclusions of law.
(3) The commissioner shall issue an order dismissing the formal
charges against any respondent not found to have engaged in any
unlawful practice alleged in the complaint.
(4) After a hearing under this section, the commissioner shall
issue an appropriate cease and desist order against any
respondent found to have engaged in any unlawful practice alleged
in the complaint. The order must be signed by the commissioner
and must take into account the need to supervise compliance with
the terms of order. The order may require that the respondent:
(a) Perform an act or series of acts designated in the order
that are reasonably calculated to carry out the purposes of
sections 1 to 15 of this 2001 Act, to eliminate the effects of
the unlawful practice that the respondent is found to have
engaged in, and to protect the rights of the complainant and
other persons similarly situated;
(b) Submit reports to the commissioner on the manner of
compliance with other terms and conditions specified in the
commissioner's order, and take other action as may be required to
ensure compliance with the commissioner's order; and
(c) Refrain from any action specified in the order that would
jeopardize the rights of the complainant or other persons
similarly situated, or that would otherwise frustrate the
purposes of sections 1 to 15 of this 2001 Act.
(5) A cease and desist order issued under subsection (4) of
this section may be recorded in the County Clerk Lien Record in
the manner provided by ORS 205.125 and enforced in the manner
provided by ORS 205.126. In addition to enforcement under ORS
205.126, the order may be enforced by writ of mandamus or a civil
action to compel specific performance of the order. + }
SECTION 9. { + Civil penalty for certain complaints filed by
commissioner. (1) If the Commissioner of the Bureau of Labor and
Industries files a complaint under section 3 of this 2001 Act
alleging an unlawful practice other than an unlawful employment
practice, and the commissioner finds that the respondent engaged
in the unlawful practice, the commissioner may, in addition to
other steps taken to eliminate the unlawful practice, impose a
civil penalty upon each respondent found to have committed the
unlawful practice.
(2) Civil penalties under this section may not exceed $1,000
for each violation. Civil penalties under this section shall be
imposed in the manner provided by ORS 183.090.
(3) All sums collected as civil penalties under this section
must first be applied toward reimbursement of the costs incurred
in determining the violations, conducting hearings and assessing
and collecting the penalty. The remainder, if any, shall be paid
over by the commissioner to the Division of State Lands for the
benefit of the Common School Fund. The division shall issue a
receipt for the money to the commissioner. + }
SECTION 10. { + Settlement agreements and orders. (1) The
terms and conditions of any order issued by the Commissioner of
the Bureau of Labor and Industries under sections 1 to 15 of this
2001 Act, and of any settlement agreement entered into by a
respondent under sections 1 to 15 of this 2001 Act and signed by
a representative of the commissioner, are binding on the agents
and successors in interest of the respondent.
(2) The commissioner may relax any terms or conditions of a
settlement agreement or of a cease and desist order issued by the
commissioner under sections 1 to 15 of this 2001 Act, if the
performance of those terms and conditions would cause undue
hardship on the respondent or another person and those terms and
conditions are not essential to protecting the complainant's
rights.
(3) Any person aggrieved by the violation of the terms and
conditions of a cease and desist order, or of any settlement
agreement signed by a representative of 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
section 15 (3) of this 2001 Act and recover the same relief as
provided by section 15 (3) of this 2001 Act for unlawful
practices. + }
SECTION 11. { + Retaliatory action prohibited. A respondent
named in a complaint filed under section 2 of this 2001 Act may
not, with the intention of defeating a purpose of sections 1 to
15 of this 2001 Act, take any action that deprives the person
filing the complaint of any services, real property, employment
or employment opportunities sought in the complaint during the
period of time commencing with the date on which the respondent
receives notice from the Commissioner of the Bureau of Labor and
Industries that the complaint has been filed and ending on the
date on which an administrative determination is made on the
merits of the complaint or the matter is resolved by
settlement. + }
{ +
CIVIL ACTIONS FOR UNLAWFUL DISCRIMINATION + }
SECTION 12. { + Election of remedies. (1) Except as provided
in this section, the filing of a civil action by a person in
circuit court pursuant to section 15 of this 2001 Act, or in
federal district court under applicable federal law, waives the
right of the person to file a complaint with the Commissioner of
the Bureau of Labor and Industries under section 2 of this 2001
Act with respect to the matters alleged in the civil action.
(2) The filing of a complaint under section 2 of this 2001 Act
is not a condition precedent to the filing of any civil action.
(3) If a person files a civil action claiming a violation of
ORS 659.033 or 659.430 or of an equivalent federal law, the
filing does not constitute an election of remedies or a waiver of
the right of the person to file a complaint with the commissioner
under section 2 of this 2001 Act, but the commissioner shall
dismiss the complaint upon the commencement of a trial in the
civil action.
(4) The filing of a complaint under section 2 of this 2001 Act
by a person claiming a violation of ORS 659.033 or 659.430 or of
an equivalent federal law does not constitute an election of
remedies or a waiver of the right of the person to file a civil
action with respect to the same matters, but a civil action may
not be filed after a hearing officer has commenced a hearing on
the record under sections 1 to 15 of this 2001 Act with respect
to the allegations of the complaint.
(5) A person who has filed a complaint under section 2 of this
2001 Act need not receive a 90-day notice under section 14 of
this 2001 Act before commencing a civil action that is based on
the same matters alleged in the complaint filed with the
commissioner.
(6) This section shall not be construed to limit or alter in
any way the authority or power of the commissioner, or to limit
or alter in any way any of the rights of an individual
complainant, until and unless the complainant commences a civil
action. + }
SECTION 13. { + Time limitations. (1) Except as provided in
subsection (2) of this section, a civil action under section 15
of this 2001 Act alleging an unlawful employment practice must be
commenced within one year after the occurrence of the unlawful
employment practice unless a complaint has been timely filed
under section 2 of this 2001 Act.
(2) A person who has filed a complaint under section 2 of this
2001 Act must commence a civil action under section 15 of this
2001 Act within 90 days after a 90-day notice is mailed to the
complainant under section 14 of this 2001 Act.
(3) A civil action alleging a violation of ORS 659.033 or
659.430 must be commenced not later than two years after the
occurrence or the termination of the unlawful practice, or within
two years after the breach of any settlement agreement entered
into under section 6 of this 2001 Act, whichever occurs last. The
two-year period shall not include any time during which an
administrative proceeding was pending with respect to the
unlawful practice.
(4) The notice of claim required under ORS 30.275 must be given
in any civil action under section 15 of this 2001 Act against a
public body, as defined in ORS 30.260, or any officer, employee
or agent of a public body as defined in ORS 30.260.
(5) Notwithstanding ORS 30.275 (8), a civil action under
section 15 of this 2001 Act against a public body, as defined in
ORS 30.260, or any officer, employee or agent of a public body as
defined in ORS 30.260, based on an unlawful employment practice
must be commenced within one year after the occurrence of the
unlawful employment practice unless a complaint has been timely
filed under section 2 of this 2001 Act. + }
SECTION 14. { + 90-day notice. (1) If a complaint filed under
section 2 of this 2001 Act alleges unlawful practices other than
those unlawful practices described in ORS 30.670 and 30.685, the
Commissioner of the Bureau of Labor and Industries shall issue a
90-day notice to the complainant if the commissioner dismisses
the complaint within one year after the filing of the complaint,
and the dismissal is for any reason other than the fact that a
civil action has been filed by the complainant.
(2) If the complaint filed under section 2 of this 2001 Act
alleges unlawful practices other than those unlawful practices
described in ORS 30.670, 30.685, 659.033 and 659.430, the
commissioner shall issue a 90-day notice to the complainant on or
before the one-year anniversary of the filing of the complaint
unless a 90-day notice has previously been issued under
subsection (1) of this section or the matter has been resolved by
the execution of a settlement agreement.
(3) A 90-day notice under this section must be in writing and
must notify the complainant that a civil action against the
respondent under section 15 of this 2001 Act may be filed within
90 days after the date of mailing of the 90-day notice, and that
any right to bring a civil action against the respondent under
section 15 of this 2001 Act will be lost if the action is not
commenced within 90 days after the date of the mailing of the
90-day notice. + }
SECTION 15. { + Civil action. (1) Any person claiming to be
aggrieved by an unlawful practice specified in subsection (2) of
this section may file a civil action in circuit court. In any
action under this subsection, the court may order injunctive
relief and such other equitable relief as may be appropriate,
including but not limited to reinstatement or the hiring of
employees with or without back pay. A court may order back pay in
an action under this subsection only for the two-year period
immediately preceding the filing of a complaint under section 2
of this 2001 Act with the Commissioner of the Bureau of Labor and
Industries, or if a complaint was not filed before the action was
commenced, the two-year period immediately preceding the filing
of the action. In any action under this subsection, the court may
allow the prevailing party costs and reasonable attorney fees at
trial and on appeal. Except as provided in subsection (3) of this
section:
(a) The judge shall determine the facts in an action under this
subsection; and
(b) Upon any appeal of a judgment in an action under this
subsection, the appellate court shall review the judgment
pursuant to the standard established by ORS 19.415 (3).
(2) An action may be brought under subsection (1) of this
section for the following unlawful practices: ORS 25.424,
399.235, 659.030, 659.033 (1) or (3), 659.035, 659.227, 659.270,
659.280 to 659.295, 659.330, 659.340, 659.415, 659.420, 659.400
to 659.449, 659.455, 659.470 to 659.494, 659.510, 659.535 and
659.550 and sections 32 and 34 of this 2001 Act.
(3) In any action under subsection (1) of this section alleging
a violation of ORS 659.033 (1) or (3), 659.280 to 659.295,
659.400 to 659.449 or 659.550 or section 32 or 34 of this 2001
Act:
(a) The court may award, in addition to the relief authorized
under subsection (1) of this section, compensatory damages or
$200, whichever is greater, and punitive damages;
(b) At the request of any party, the action shall be tried to a
jury;
(c) Upon appeal of any judgment finding a violation, the
appellate court shall review the judgment pursuant to the
standard established by ORS 19.415 (1); and
(d) Any attorney fee agreement shall be subject to approval by
the court.
(4) In any action under subsection (1) of this section alleging
a violation of ORS 659.510 or 659.535, the court may award, in
addition to the relief authorized under subsection (1) of this
section, compensatory damages or $250, whichever is greater.
(5) All persons against whom any distinction, discrimination or
restriction on account of race, religion, sex, marital status,
color or national origin has been made by any place of public
accommodation, as defined in ORS 30.675, by any person acting on
behalf of such place or by any person aiding or abetting such
place or person in violation of ORS 30.685 may bring an action
against the operator or manager of such place, the employee or
person acting on behalf of such place or the aider or abettor of
such place or person. Notwithstanding subsection (1) of this
section, in an action under this subsection:
(a) The court may award, in addition to the relief authorized
under subsection (1) of this section, compensatory and punitive
damages;
(b) The operator or manager of the place of public
accommodation, the employee or person acting on behalf of the
place, and any aider or abettor shall be jointly and severally
liable for all damages awarded in the action;
(c) At the request of any party, the action shall be tried to a
jury;
(d) The court shall award reasonable attorney fees to a
prevailing plaintiff;
(e) The court may award reasonable attorney fees and expert
witness fees incurred by a defendant who prevails only if the
court determines that the plaintiff had no objectively reasonable
basis for asserting a claim or no reasonable basis for appealing
an adverse decision of a trial court; and
(f) Upon any appeal of a judgment under this subsection, the
appellate court shall review the judgment pursuant to the
standard established by ORS 19.415 (1). + }
{ +
AMENDMENTS TO CONFORM DEFINITIONS + }
SECTION 16. ORS 30.670 is amended to read:
30.670. { + (1) + } All persons within the jurisdiction of
this state shall be entitled to the full and equal
accommodations, advantages, facilities and privileges of any
place of public accommodation, without any distinction,
discrimination or restriction on account of race, religion, sex,
marital status, color or national origin.
{ + (2) It is an unlawful practice for any person to deny
full and equal accommodations, advantages, facilities and
privileges of any place of public accommodation in violation of
this section. + }
SECTION 17. ORS 30.685 is amended to read:
30.685. It is { + an + } unlawful { + practice + } for any
person to aid or abet any place of public accommodation, as
defined in ORS 30.675 { + , + } or any person acting on behalf of
such place to make any distinction, discrimination or restriction
on account of race, religion, color, sex, marital status or
national origin.
SECTION 18. ORS 659.033 is amended to read:
659.033. (1) No person shall, because of race, color, sex,
marital status, source of income, familial status, religion or
national origin of any person:
(a) Refuse to sell, lease or rent any real property to a
purchaser.
(b) Expel a purchaser from any real property.
(c) Make any distinction, discrimination or restriction against
a purchaser in the 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
therewith.
(d) Attempt to discourage the sale, rental or lease 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 relating to the sale,
rental or leasing of real property which indicates any
preference, limitation, specification or discrimination based on
race, color, sex, marital status, source of income, religion or
national origin.
(f) Assist, induce, incite or coerce another person to commit
an act or engage in a practice that violates this subsection and
subsection (3) of this section.
(g) Coerce, intimidate, threaten or interfere with any person
in the exercise or enjoyment of, or on account of having aided or
encouraged any other person in the exercise of, any right granted
or protected by this section.
(2)(a) No person { - or other entity - } whose business
includes engaging in residential real estate related transactions
shall discriminate against any person in making available such a
transaction, or in the terms or conditions of such a transaction,
because of race, color, sex, marital status, source of income,
familial status, religion or national origin.
(b) As used in this subsection, 'residential real estate
related transaction' means any of the following:
(A) The making or purchasing of loans or providing other
financial assistance:
(i) For purchasing, constructing, improving, repairing or
maintaining a dwelling; or
(ii) For securing residential real estate; or
(B) The selling, brokering or appraising of residential real
property.
(3) No real estate licensee shall 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, sex,
marital status, source of income, familial status, religion or
national origin.
(4) No person shall, 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
a person or persons of a particular race, color, sex, marital
status, source of income, familial status, religion or national
origin.
(5) For purposes of subsections (1) to (4) of this section, '
source of income' does not include federal rent subsidy payments
under 42 U.S.C. 1437f, income from specific occupations or income
derived in an illegal manner.
(6) Subsections (1) and (3) of this section do not apply with
respect to sex distinction, discrimination or restriction if the
real property involved is such that the application of
subsections (1) and (3) of this section would necessarily result
in common use of bath or bedroom facilities by unrelated persons
of opposite sex.
(7)(a) This section 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 which demonstrate an intent by the
owner or manager to provide housing for persons 55 years of age
or older are published and adhered to.
(c) Housing shall not fail to meet the requirements for housing
for older persons if:
(A) Persons residing in such 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 shall meet the
age requirements of paragraph (b)(B) or (C) of this subsection;
or
(B) The housing includes unoccupied units. However, such units
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.
(8) In the sale, lease or rental of real estate, no person
shall disclose to any person that an occupant or owner of real
property has or died from human immunodeficiency virus or
acquired immune deficiency syndrome.
{ + (9) The provisions of subsection (1)(a) to (d) and (f) of
this section that prohibit actions based upon familial status or
sex 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.
(10) Any violation of this section is an unlawful practice. + }
SECTION 19. ORS 659.324 is amended to read:
659.324. Where a parent is required by a court or
administrative order to provide health coverage that is available
through an employer doing business in this state, the employer
shall:
(1) Permit the parent to enroll under family coverage a child
who is otherwise eligible for coverage without regard to any
enrollment season restrictions.
(2) If the parent is enrolled but fails to make application to
obtain coverage of the child, enroll the child under family
coverage upon application by the child's other parent, by the
state agency administering the Medicaid program or the state
agency administering 42 U.S.C. 651 to 669, the child support
enforcement program.
(3) Not disenroll or eliminate coverage of a child unless the
employer is provided satisfactory written evidence that:
(a) The court order is no longer in effect;
(b) The child is or will be enrolled in comparable coverage
which will take effect no later than the effective date of
disenrollment; or
(c) The employer has eliminated family health coverage for all
of its employees.
(4) Withhold from the employee's compensation the employee's
share, if any, of premiums for health coverage and { - to - }
pay this amount to the { - entity providing the coverage - }
{ + insurance provider + }.
SECTION 20. ORS 659.358 is amended to read:
659.358. (1) It { - shall be - } { + is + } an unlawful
employment practice for an employer to deny to grant already
accrued paid leaves of absence to an employee who seeks to
undergo a medical procedure to donate bone marrow. The total
length of the leaves shall be determined by the employee, but
shall not exceed the amount of already accrued paid leave or 40
work hours, whichever is less, unless agreed to by the employer.
(2) The employer may require verification by a physician of the
purpose and length of each leave requested by the employee to
donate bone marrow. If there is a medical determination that the
employee does not qualify as a bone marrow donor, the paid leave
of absence used by the employee prior to that medical
determination is not affected.
(3) An employer shall not retaliate against an employee for
requesting or using accrued paid leave of absence as provided by
this section.
(4) This section does not:
(a) Prevent an employer from providing leave for bone marrow
donations in addition to leave required under this section.
(b) Affect an employee's rights with respect to any other
employment benefit.
{ - (5) As used in this section: - }
{ - (a) 'Employee' means a person who performs services for
hire for an employer, for an average of 20 or more hours per
week, and includes all individuals employed at any site owned or
operated by an employer. 'Employee' does not include an
independent contractor. - }
{ - (b) 'Employer' means a person or entity that employs any
employee in at least one site and includes an individual,
corporation, partnership, association, nonprofit organization,
group of persons, state, county, town, city, school district or
other governmental subdivision. - }
{ + (5) This section applies only to employees who work an
average of 20 or more hours per week. + }
SECTION 21. ORS 659.400 is amended to read:
659.400. As used in ORS 659.400 to { - 659.460 - } { +
659.449 + }, unless the context requires otherwise:
(1) 'Disabled person' means a person who has a physical or
mental impairment which substantially limits one or more major
life activities, has a record of such an impairment or is
regarded as having such an impairment.
(2) As used in subsection (1) of this section:
(a) 'Major life activity' includes, but is not limited to
self-care, ambulation, communication, transportation, education,
socialization, employment and ability to acquire, rent or
maintain property.
(b) 'Has a record of such an impairment' means has a history
of, or has been misclassified as having, a mental or physical
impairment that substantially limits one or more major life
activities.
(c) 'Is regarded as having such an impairment' means that the
individual:
(A) Has a physical or mental impairment that does not
substantially limit major life activities but is treated by an
employer or supervisor as having such a limitation;
(B) Has a physical or mental impairment that substantially
limits major life activities only as a result of the attitude of
others toward such impairment; or
(C) Has none of the impairments described in subparagraph (A)
or (B) of this paragraph, but is treated by an employer or
supervisor as having a mental or physical impairment that
substantially limits one or more major life activities.
(d) 'Substantially limits' means:
(A) The impairment renders the person unable to perform a major
life activity that the average person in the general population
can perform; or
(B) The impairment significantly restricts the condition,
manner or duration under which an individual can perform a
particular major life activity as compared to the condition,
manner or duration under which the average person in the general
population can perform the same major life activity.
(3) 'Drug' means a controlled substance, as classified in
schedules I through V of section 202 of the Controlled Substances
Act, 21 U.S.C.A. 812, as amended, and as modified under ORS
475.035.
{ - (4) '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. - }
{ - (5) - } { + (4) + } 'Illegal use of drugs' means any
use of drugs, the possession or distribution of which is unlawful
under state law or under the Controlled Substances Act, 21
U.S.C.A. 812, as amended, but does not include the use of a drug
taken under supervision of a licensed health care professional,
or other uses authorized under the Controlled Substances Act or
under other provisions of state or federal law.
SECTION 22. { + Section 23 of this 2001 Act is added to and
made a part of ORS 659.400 to 659.449. + }
SECTION 23. { + The requirements of ORS 659.400 to 659.449
apply only to employers who employ six or more persons. The
requirements of ORS 659.400 to 659.449 do not apply to the Oregon
National Guard. + }
SECTION 24. ORS 659.430 is amended to read:
659.430. (1) No person, because of a disability of a purchaser,
lessee or renter, a disability of a person residing in or
intending to reside in a dwelling after it is sold, rented or
made available or a disability of any person associated with a
purchaser, lessee or renter, shall discriminate by:
(a) Refusing to sell, lease, rent or otherwise make available
any real property to a purchaser, lessee or renter;
(b) Expelling a purchaser, lessee or renter;
(c) Making any distinction or restriction against a purchaser,
lessee or renter in the price, terms, conditions or privileges
relating to the sale, rental, lease or occupancy of real property
or the furnishing of any facilities or services in connection
therewith; or
(d) Attempting to discourage the sale, rental or lease of any
real property.
(2) For purposes of this subsection, discrimination includes:
(a) A refusal to permit, at the expense of the disabled person,
reasonable modifications of existing premises occupied or to be
occupied by such person if such modifications may be necessary to
afford such person full enjoyment of the premises, except that,
in the case of a rental, the landlord may, where it is reasonable
to do so, condition permission for a 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; or
(b) A refusal to make reasonable accommodations in rules,
policies, practices or services when such accommodations may be
necessary to afford such person equal opportunity to use and
enjoy a dwelling.
(3) No person shall publish, circulate, issue or display or
cause to be published, circulated, issued or displayed any
communication, notice, advertisement, or sign of any kind
relating to the sale, rental or leasing of real property which
indicates any preference, limitation, specification or
discrimination against a disabled person.
(4) No person { - or other entity - } whose business
includes engaging in residential real estate related
transactions, as defined in ORS 659.033 (2)(b), shall
discriminate against any person in making available such a
transaction, or in the terms or conditions of such a transaction,
because of a disability.
(5) No real estate broker or salesperson shall accept or retain
a listing of real property for sale, lease or rental with an
understanding that the purchaser, lessee or renter may be
discriminated against solely because a person is a disabled
person.
(6) No person shall assist, induce, incite or coerce another
person to permit an act or engage in a practice that violates
this section.
(7) No person shall coerce, intimidate, threaten or interfere
with any person in the exercise or enjoyment of, or on account of
having exercised or enjoyed, or on account of having aided or
encouraged any other person in the exercise or enjoyment of, any
right granted or protected by this section.
(8) No person shall, 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
a disabled person or persons.
(9) Any violation of this section is an unlawful practice.
{ +
SERIES ADJUSTMENTS + }
{ +
(Generally) + }
SECTION 25. { + ORS 30.670, 30.675, 30.685, 659.015, 659.020,
659.022, 659.025, 659.027, 659.028, 659.029, 659.030, 659.031,
659.033, 659.035, 659.036, 659.037, 659.100, 659.103, 659.105,
659.110, 659.115, 659.227, 659.270, 659.280, 659.285, 659.290,
659.295, 659.297, 659.330, 659.340, 659.358, 659.380, 659.400,
659.405, 659.410, 659.412, 659.415, 659.417, 659.420, 659.425,
659.430, 659.436, 659.437, 659.439, 659.440, 659.442, 659.444,
659.446, 659.447, 659.448, 659.449, 659.450, 659.455, 659.460,
659.470, 659.472, 659.474, 659.476, 659.478, 659.480, 659.482,
659.484, 659.486, 659.488, 659.490, 659.492, 659.494, 659.505,
659.510, 659.515, 659.520, 659.525, 659.530, 659.535, 659.540,
659.545 and 659.550 are added to and made a part of sections 1 to
15 of this 2001 Act. + }
{ +
(Employee housing) + }
SECTION 26. { + ORS 659.297 is added to and made a part of ORS
659.280 to 659.295. + }
SECTION 27. ORS 659.297 is amended to read:
659.297. (1) In the event that any person claiming to be an
authorized or invited person is denied access to housing, the
person may apply to any magistrate having jurisdiction to issue
warrants, for an order authorizing the person to gain access to
the housing.
(2) The application pursuant to this section shall be sworn and
shall include allegations of the facts and circumstances under
which the person alleges that the person is entitled to access
under ORS 659.280 to 659.295.
(3) If, on ex parte review of the application, it appears from
the sworn allegations of the application that the person is
entitled to access to the housing, the magistrate shall promptly
issue an order restraining the owner of the housing from
interfering with the access of the applicant to the housing.
(4) No fee, bond or undertaking shall be required in connection
with proceedings under this section.
(5) On sufficient cause, the magistrate may enter further
orders for the protection of residents of the housing, including
the temporary sealing of the application, or portions thereof.
(6) Any person subject to an order referred to in subsections
(1) to (5) of this section may request that the order be vacated
or modified by filing a written motion with the court which
issued the order.
(7) Upon receipt of a motion to modify or vacate the order, the
court shall schedule a hearing.
(8) If after { + the + } hearing, the court determines that
the applicant is not entitled to access, the court shall vacate
or modify the order.
(9) The Bureau of Labor and Industries may adopt rules to carry
out the provisions of { - this section, ORS 659.121 and 659.280
to 659.290 - } { + ORS 659.280 to 659.295 + }.
{ +
(Disability discrimination; reemployment rights of injured + }
{ +
workers; benefits payable to injured state workers) + }
SECTION 28. { + Notwithstanding any other provision of law,
ORS 659.412, 659.415, 659.417 and 659.420 shall not be considered
to have been added to or made a part of ORS 659.400 to 659.449 or
ORS 659.400 to 659.460 for the purpose of statutory compilation,
for the application of definitions, penalties or administrative
provisions, or for any other purpose. + }
SECTION 29. ORS 659.405 is amended to read:
659.405. (1) It is declared to be the public policy of Oregon
to guarantee disabled persons the fullest possible participation
in the social and economic life of the state, to engage in
remunerative employment, to use and enjoy places of public
accommodation, resort or amusement, and to secure housing
accommodations of their choice, without discrimination.
(2) The right to otherwise lawful employment without
discrimination because of disability where the reasonable demands
of the position do not require such a distinction, and the right
to use and enjoy places of public accommodation, resort or
amusement, and to purchase or rental of property without
discrimination because of disability, are hereby recognized and
declared to be the rights of all the people of this state. It is
hereby declared to be the policy of the State of Oregon to
protect these rights and ORS 659.400 to { - 659.460 - } { +
659.449 + } shall be construed to effectuate such policy.
SECTION 30. ORS 659.410 is amended to read:
659.410. It is an unlawful employment practice for an employer
to discriminate against a worker 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 of - } ORS 659.400 to
{ - 659.460 - } { + 659.449 + } or has given testimony under
the provisions of such sections.
SECTION 31. { + Section 32 of this 2001 Act is added to and
made a part of sections 1 to 15 of this 2001 Act. + }
SECTION 32. { + (1) It is an unlawful employment practice for
an employer to discriminate against a worker 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 has given testimony
under the provisions of those laws.
(2) This section applies only to employers who employ six or
more persons. + }
SECTION 33. { + Section 34 of this 2001 Act is added to and
made a part of ORS 659.450 to 659.460. + }
SECTION 34. { + It is an unlawful employment practice for the
State of Oregon to discriminate against a worker 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 659.450 to 659.460 or has given
testimony under the provisions of those laws. + }
SECTION 35. ORS 659.420 is amended to read:
659.420. (1) A worker who has sustained a compensable injury
and is disabled from performing the duties of the worker's former
regular employment shall, upon demand, be reemployed by the
worker's employer at employment which is available and suitable.
(2) A certificate of the worker's attending physician that the
worker is able to perform described types of work shall be prima
facie evidence of such ability.
(3) Notwithstanding subsection (1) of this section, the right
to reemployment under this section terminates when whichever of
the following events first occurs:
(a) The worker cannot return to reemployment at any position
with the employer either by determination of the attending
physician or upon appeal of that determination, by determination
of a medical arbiter or panel of medical arbiters pursuant to ORS
chapter 656.
(b) The worker is eligible and participates in vocational
assistance under ORS 656.340.
(c) The worker accepts suitable employment with another
employer after becoming medically stationary.
(d) The worker refuses a bona fide offer from the employer of
light duty or modified employment that is suitable prior to
becoming medically stationary.
(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 has released the worker for
reemployment unless the worker requests reemployment within that
time period.
(f) Three years elapse from the date of injury.
(4) Such right of reemployment shall be subject to the
provisions for seniority rights and other employment restrictions
contained in a valid collective bargaining agreement between the
employer and a representative of the employer's employees.
(5) Any violation of this section is an unlawful employment
practice.
{ + (6) This section applies only to employers who employ six
or more persons. + }
SECTION 36. ORS 659.439 is amended to read:
659.439. (1) For the purposes of ORS 659.436, reasonable
accommodation of an otherwise qualified disabled person may
include:
(a) Making existing facilities used by employees readily
accessible to and usable by disabled persons.
(b) Job restructuring, part-time or modified work schedules or
reassignment to a vacant position.
(c) Acquisition or modification of equipment or devices.
(d) Appropriate adjustment or modification of examinations,
training materials or policies.
(e) The provision of qualified readers or interpreters.
(2) Notwithstanding any other provision of ORS 659.400 to
{ - 659.460 - } { + 659.449 + }, an employer may not be found
to have engaged in an unlawful employment practice solely because
the employer fails to provide reasonable accommodation to a
person with a disability arising out of transsexualism.
SECTION 37. ORS 659.450 is amended to read:
659.450. As used in ORS 659.450 to 659.460, unless the context
requires otherwise:
(1) 'Group health benefits' means that form of health benefits
provided by the State of Oregon to cover groups of employees,
with or without one or more members of their families or one or
more dependents. The group health benefits which are continued
under ORS 659.450 to 659.460 shall be the same as the worker and
the worker's dependents had immediately prior to the injury or
illness, and includes, but is not limited to, medical care,
dental care, vision care or prescription drug coverage, or any
combination thereof, that the worker had elected prior to the
injury or illness. If the plan elected prior to the injury or
illness is no longer available, the worker shall have the same
plan selection rights as do active employees.
{ - (2) 'Employer' means the State of Oregon. - }
{ - (3) - } { + (2) + } 'Worker' means any state employee
who has filed a workers' compensation claim pursuant to ORS
chapter 656.
SECTION 38. ORS 659.455 is amended to read:
659.455. (1) The State of Oregon shall cause group health
benefits to continue in effect with respect to that worker and
any covered dependents or family members by timely payment of the
premium that includes the contribution due from the
{ - employer - } { + state + } under the applicable benefit
plan, subject to any premium contribution due from the worker
that the worker paid before the occurrence of the injury or
illness. If the premium increases or decreases, the
{ - employer - } { + State of Oregon + } and worker
contributions shall be adjusted to remain consistent with
similarly situated active employees. The { - employer - } { +
State of Oregon + } shall continue the worker's health benefits
in effect until whichever of the following events occurs first:
(a) The worker's attending physician has determined the worker
to be medically stationary and a notice of closure has been
entered;
(b) The worker returns to work for the { - employer - } { +
State of Oregon + }, after a period of continued coverage under
this section, and satisfies any probationary or minimum work
requirement to be eligible for group health benefits;
(c) The worker takes full or part-time employment with another
employer that is comparable in terms of the number of hours per
week the worker was employed with the { - employer who is
continuing coverage under ORS 659.450 to 659.460 - } { + State
of Oregon + } or the worker retires;
(d) Twelve months have elapsed since the date the
{ - employer - } { + State of Oregon + } received notice that
the worker filed a workers' compensation claim pursuant to ORS
chapter 656;
(e) The claim is denied and the claimant fails to appeal within
the time provided by ORS 656.319 or the Workers' Compensation
Board or a workers' compensation hearings referee or a court
issues an order finding the claim is not compensable;
(f) The worker does not pay the required premium or portion
thereof in a timely manner in accordance with the terms and
conditions under this section;
(g) The worker elects to discontinue coverage under this
section and notifies the { - employer - } { + State of
Oregon + } in writing of this election;
(h) The worker's attending physician has released the worker to
modified or regular work, the work has been offered to the worker
and the worker refuses to return to work; or
(i) The worker has been terminated from employment for reasons
unrelated to the workers' compensation claim.
(2) If the workers' compensation claim of a worker for whom
health benefits are provided pursuant to subsection (1) of this
section is denied and the worker does not appeal or the worker
appeals and does not prevail, the { - employer - } { + State
of Oregon + } may recover from the worker the amount of the
premiums plus interest at the rate authorized by ORS 82.010. The
{ - employer - } { + State of Oregon + } may recover the
payments through a payroll deduction not to exceed 10 percent of
gross pay for each pay period.
(3) The { - employer - } { + State of Oregon + } shall
notify the worker of the provisions of ORS { - 659.121, 659.410
and - } 659.450 to 659.460 { + , and of the remedies available
for breaches of ORS 659.450 to 659.460, + } within a reasonable
time after the { - employer - } { + State of Oregon + }
receives notice that the worker will be absent from work as a
result of an injury or illness for which a workers' compensation
claim has been filed pursuant to ORS chapter 656. The
{ - employer's - } notice { + from the State of Oregon + }
shall include the terms and conditions of the continuation of
health benefits and what events will terminate the coverage.
(4) If the worker fails to make timely payment of any premium
contribution owing, the { - employer - } { + State of
Oregon + } shall notify the worker of impending cancellation of
the health benefits and provide the worker with 30 days to pay
the required premium prior to canceling the policy.
(5) It is an unlawful employment practice for the State of
Oregon { - as an employer - } to discriminate against a
worker, as defined in ORS 659.450, by terminating the worker's
group health benefits while that worker is absent from the place
of employment as a result of an injury or illness for which a
workers' compensation claim has been filed { - against the same
public employer - } pursuant to ORS chapter 656, except as
provided for in this section.
SECTION 39. ORS 659.460 is amended to read:
659.460. If the { - employer's - } { + State of
Oregon's + } obligation to continue paying premiums for health
benefits under ORS 659.455 expires or terminates, the worker may
continue coverage by paying the entire premium pursuant to ORS
743.530.
{ +
(Public employee whistleblowers) + }
SECTION 40. ORS 659.035 is amended to read:
659.035. { - (1) - } It is an unlawful employment practice
for { - : - }
{ - (a) - } an employer 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 for the reason that the employee has in
good faith reported possible violations of ORS chapter 441 or of
ORS 443.400 to 443.455 or has testified in good faith at an
unemployment compensation hearing or other hearing conducted
pursuant to ORS chapter 657 { - ; or - }
{ - (b) A public employer to violate ORS 659.510 or
659.535 - } .
{ - (2) Complaints may be filed by employees, and this
section shall be enforced by the Commissioner of the Bureau of
Labor and Industries in the same manner as provided in ORS
659.040 to 659.110 and 659.121 for the enforcement of an unlawful
employment practice. Violation of subsection (1) of this section
subjects the violator to the same civil and criminal remedies and
penalties as provided in ORS 659.010 to 659.110, 659.121 and
659.470 to 659.545. - }
{ - (3) In addition to sanctions described in subsection (2)
of this section, any person aggrieved by an unlawful employment
practice prohibited by subsection (1)(b) of this section may seek
compensatory damages or $250, whichever is greater. - }
SECTION 41. ORS 659.505 is amended to read:
659.505. As used in ORS { - 240.316, 659.035 and - } 659.505
to 659.545:
(1) 'Disciplinary action' includes but is not limited to any
discrimination, 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.
(2) 'Employee' means a person employed by or under contract
with:
(a) The state or any agency of or political subdivision in the
state;
(b) 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;
(c) Employees of the public corporation created under ORS
656.751;
(d) Employees of 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
(e) Any person authorized by contract to act on behalf of the
state, agency or subdivision.
(3) '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.
SECTION 42. ORS 659.510 is amended to read:
659.510. (1) Subject to ORS 659.515, except as provided in ORS
{ - 240.316, 659.035 and - } 659.505 to 659.545, { - no
public employer shall - } { + it is an unlawful employment
practice for any public employer to + }:
(a) Prohibit any employee from discussing, in response to an
official request, either specifically or generally with any
member of the Legislative Assembly or legislative committee staff
acting under the direction of a member of the Legislative
Assembly the activities of:
(A) The state or any agency of or political subdivision in the
state; or
(B) Any person authorized to act on behalf of the state or any
agency of or political subdivision in the state.
(b) Prohibit any employee from disclosing, or take or threaten
to take disciplinary action against an employee for the
disclosure of any information that the employee reasonably
believes is evidence of:
(A) A violation of any federal or state law, rule or regulation
by the state, agency or political subdivision;
(B) Mismanagement, gross waste of funds or abuse of authority
or substantial and specific danger to public health and safety
resulting from action of the state, agency or political
subdivision; or
(C) Subject to ORS 659.525 (2), the fact that a person
receiving services, benefits or assistance from the state or
agency or subdivision, is subject to a felony or misdemeanor
warrant for arrest issued by this state, any other state, the
federal government, or any territory, commonwealth or
governmental instrumentality of the United States.
(c) Require any employee to give notice prior to making any
disclosure or engaging in discussion described in this section,
except as allowed in ORS 659.515 (1).
(d) Discourage, restrain, dissuade, coerce, prevent or
otherwise interfere with disclosure or discussions described in
this section.
(2) No public employer shall invoke or impose any disciplinary
action against an employee for employee activity described in
subsection (1) of this section or ORS 659.525.
SECTION 43. ORS 659.515 is amended to read:
659.515. ORS { - 240.316, 659.035 and - } 659.505 to 659.545
are not intended to:
(1) Prohibit a supervisor or appointing authority from
requiring that an employee inform the supervisor or appointing
authority as to official legislative requests for information to
the agency or the substance of testimony made, or to be made, by
the employee to legislators on behalf of the agency or
subdivision;
(2) Permit an employee 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;
(3) Authorize an employee to represent the employee's personal
opinions as the opinions of the agency or subdivision;
(4) Except as specified in ORS 659.525 (2), authorize an
employee to disclose information required to be kept confidential
under state or federal law, rule or regulation;
(5) Restrict or preclude disciplinary action against an
employee if the information disclosed by the employee is known by
the employee to be false, if the employee discloses the
information with reckless disregard for its truth or falsity, or
if 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; or
(6) Restrict or impair any judicial right of action an employee
or an employer has under existing law.
SECTION 44. ORS 659.520 is amended to read:
659.520. ORS { - 240.316, 659.035 and - } 659.505 to 659.545
are not intended to:
(1) Allow disclosure of records exempt from disclosure except
as provided in ORS 192.501 to 192.505.
(2) 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.
SECTION 45. ORS 659.530 is amended to read:
659.530. { - In addition to appeal proceedings of ORS 240.560
for a state employee and any comparable provisions for employees
of political subdivisions and remedies available under ORS
659.035, an employee alleging a violation of ORS 659.510 may
bring a civil action for appropriate injunctive relief or
damages, or both, within 90 days after the occurrence of the
alleged violation. The action may be filed in the circuit court
of the county in which the alleged violation occurred, or the
county in which the complainant resides. If damages are awarded,
the court shall award actual damages or $250, whichever is
greater. - } { + The remedies provided for violations of ORS
659.510 and 659.535 under sections 1 to 15 of this 2001 Act are
in addition to any appeal proceeding available under ORS 240.560
for a state employee or under any comparable provisions for
employees of political subdivisions. + }
SECTION 46. ORS 659.535 is amended to read:
659.535. { + (1) + } The identity of the employee who
discloses any of the following shall not be disclosed { + by a
public employer + } without the written consent of the employee
during any investigation of the information provided by the
employee, relating to:
{ - (1) - } { + (a) + } Matters described in ORS 659.510
(1)(b).
{ - (2) - } { + (b) + } Reports required by ORS 659.525
(2).
{ + (2) Violation of this section is an unlawful employment
practice. + }
SECTION 47. ORS 659.540 is amended to read:
659.540. (1) The Bureau of Labor and Industries by rule shall
{ - assure - } { + ensure + } that the requirements of ORS
{ - 240.316, 659.035 and - } 659.505 to 659.545 are applied
uniformly to all public employers. Each public employer may adopt
rules, consistent with
{ - the - } Bureau of Labor and Industries rules,
{ - which - } { + that + } apply to that public employer and
{ - which - } { + that + } also implement ORS { - 240.316,
659.035 and - } 659.505 to 659.545.
(2) A public employer may establish by rule an optional
procedure whereby an employee who wishes to disclose information
described in ORS 659.510 (1)(b) may disclose information first to
the supervisor, or if the supervisor is involved, to the
supervisor next higher, but the employer must protect the
employee against retaliatory or disciplinary action by any
supervisor for such disclosure.
SECTION 48. ORS 659.545 is amended to read:
659.545. ORS { - 240.316, 659.035 and - } 659.505 to 659.545
shall be known as the Whistleblower Law.
{ +
(Miscellaneous references) + }
SECTION 49. ORS 659.022 is amended to read:
659.022. The purpose of { - ORS 659.010 to 659.110 and
659.400 to 659.545 - } { + sections 1 to 15 of this 2001
Act + } is to encourage the fullest utilization of available
manpower by removing arbitrary standards of race, religion,
color, sex, marital status, national origin or age as a barrier
to employment of the inhabitants of this state { - ; to
insure - } { + , and to ensure the + } human dignity of all
people within this state { - , - } and protect their health,
safety and morals from the consequences of intergroup hostility,
tensions and practices of discrimination of any kind based on
race, religion, color, sex, marital status or national origin. To
accomplish this purpose { + , + } the Legislative Assembly
intends by { - ORS 659.010 to 659.110 and 659.400 to
659.545 - } { + sections 1 to 15 of this 2001 Act + } to
provide:
(1) A program of public education calculated to eliminate
attitudes upon which practices of discrimination because of race,
religion, color, sex, marital status or national origin are
based.
(2) An adequate remedy for persons aggrieved by certain acts of
discrimination because of race, religion, color, sex, marital
status or national origin or unreasonable acts of discrimination
in employment based upon age.
(3) An adequate administrative machinery for the orderly
resolution of complaints of discrimination through a procedure
involving investigation, conference, conciliation and persuasion;
to encourage the use in good faith of such machinery by all
parties to a complaint of discrimination; and to discourage
unilateral action which makes moot the outcome of final
administrative or judicial determination on the merits of such a
complaint.
SECTION 50. ORS 659.030 is amended to read:
659.030. (1) { - For the purposes of ORS 659.010 to 659.110,
659.227, 659.330, 659.340 and 659.400 to 659.545, - } It is an
unlawful employment practice:
(a) For an employer, because of an individual's race, religion,
color, sex, national origin, marital status or age if the
individual is 18 years of age or older or because of the race,
religion, color, sex, national origin, marital status or age of
any other person with whom the individual associates, or because
of a juvenile record, that has been expunged pursuant to ORS
419A.260 and 419A.262, of any individual, to refuse to hire or
employ or to bar or discharge from employment such individual.
However, discrimination is not an unlawful employment practice if
such discrimination results from a bona fide occupational
requirement reasonably necessary to the normal operation of the
employer's business.
(b) For an employer, because of an individual's race, religion,
color, sex, national origin, marital status or age if the
individual is 18 years of age or older, or because of the race,
religion, color, sex, national origin, marital status or age of
any other person with whom the individual associates, or because
of a juvenile record, that has been expunged pursuant to ORS
419A.260 and 419A.262, of any individual, to discriminate against
such individual in compensation or in terms, conditions or
privileges of employment.
(c) For a labor organization, because of an individual's race,
religion, color, sex, national origin, marital status or age if
the individual is 18 years of age or older or because of a
juvenile record, that has been expunged pursuant to ORS 419A.260
and 419A.262, of any individual to exclude or to expel from its
membership such individual or to discriminate in any way against
any such individual or any other person.
(d) For any employer or employment agency to print or circulate
or cause to be printed or circulated any statement, advertisement
or publication, or to use any form of application for employment
or to make any inquiry in connection with prospective employment
which expresses directly or indirectly any limitation,
specification or discrimination as to an individual's race,
religion, color, sex, national origin, marital status or age if
the individual is 18 years of age or older or on the basis of an
expunged juvenile record, or any intent to make any such
limitation, specification or discrimination, unless based upon a
bona fide occupational qualification. But identifying employees
according to race, religion, color, sex, national origin, marital
status, or age does not violate this section unless the
Commissioner of the Bureau of Labor and Industries, after
{ + a + } hearing conducted pursuant to ORS 659.103, determines
that such a designation expresses an intent to limit, specify or
discriminate on the basis of race, religion, color, sex, national
origin, marital status or age.
(e) For an employment agency to classify or refer for
employment, or to fail or refuse to refer for employment, or
otherwise to discriminate against any individual:
(A) On the basis of the individual's race, color, national
origin, sex, religion, marital status or age, if the individual
is 18 years of age or older;
(B) Because of the race, color, national origin, sex, religion,
marital status or age of any other person with whom the
individual associates; or
(C) Because of a juvenile record, that has been expunged
pursuant to ORS 419A.260 and 419A.262.
However, it { - shall not be - } { + is not + } an unlawful
{ + employment + } practice for an employment agency to classify
or refer for employment any individual where such classification
or referral results from a bona fide occupational requirement
reasonably necessary to the normal operation of the employer's
business.
(f) For any { - employer, labor organization or employment
agency - } { + person + } to discharge, expel or otherwise
discriminate against any { + other + } person because
{ - the - } { + that other + } person has opposed any
{ - practices forbidden by this section, ORS 30.670, 30.685,
659.033 and 659.400 to 659.460 - } { + unlawful practice + },
or because { - the - } { + that other + } person has filed a
complaint, testified or assisted in any proceeding under
{ - ORS 659.010 to 659.110 and 659.400 to 659.545 - } { +
sections 1 to 15 of this 2001 Act + } or has attempted to do so.
(g) For any person, whether an employer or an employee, to aid,
abet, incite, compel or coerce the doing of any of the acts
forbidden under { - ORS 659.010 to 659.110 and 659.400 to
659.545 - } { + sections 1 to 15 of this 2001 Act + } or to
attempt to do so.
(2) The provisions of this section apply to an apprentice under
ORS chapter 660, but the selection of an apprentice on the basis
of the ability to complete the required apprenticeship training
before attaining the age of 70 years is not an unlawful
employment practice. The commissioner shall administer this
section with respect to apprentices under ORS chapter 660 equally
with regard to all employees and labor organizations.
(3) The compulsory retirement of employees required by law at
any age is not an unlawful employment practice if lawful under
federal law.
(4)(a) It { - shall not be - } { + is not + } an unlawful
employment practice for an employer or labor organization to
provide or make financial provision for child care services of a
custodial or other nature to its employees or members who are
responsible for a minor child.
(b) As used in this subsection { + , + } 'responsible for a
minor child' means having custody or legal guardianship of a
minor child or acting in loco parentis to the child.
SECTION 51. ORS 659.036 is amended to read:
659.036. (1) It { - shall be - } { + is + } an unlawful
employment practice for an employer to seek to obtain, to obtain,
or to use genetic information, as defined in ORS 659.700, of an
employee or a prospective employee to distinguish between or
discriminate against or restrict any right or benefit otherwise
due or available to an employee or a prospective employee. This
{ - subsection - } { + section + } does not prohibit an
employer from seeking, obtaining or using genetic information
with specific authorization of the employee or prospective
employee solely to determine a bona fide occupational
qualification, as may be defined by rules adopted by the
Commissioner of the Bureau of Labor and Industries.
(2) { - If an employee or a prospective employee files a
complaint with the Bureau of Labor and Industries alleging
violation of subsection (1) of this section, the bureau shall
cause any necessary investigation to be made and shall enforce
subsection (1) of this section in the manner provided in ORS
659.010 to 659.110 and 659.121. - } { + A civil action may be
brought under section 15 of this 2001 Act for a violation of this
section. + }
SECTION 52. ORS 659.037 is amended to read:
659.037. Except as provided by laws governing the consumption
of alcoholic beverages by minors and the frequenting of minors in
places of public accommodation where alcoholic beverages are
served, and except for special rates or services offered to
persons 55 years of age and older, { - no - } { + it is an
unlawful practice for any + } person acting on behalf of any
place of public accommodation as defined in ORS 30.675
{ - shall - } { + to + } publish, circulate, issue or display,
or cause to be published, circulated, issued or displayed, any
communication, notice, advertisement or sign of any kind to the
effect that any of the accommodations, advantages, facilities,
services or privileges of such place of public accommodation will
be refused, withheld from or denied to, or that any
discrimination will be made against, any person on account of
race, religion, sex, marital status, color, national origin or
age if the individual is 18 years of age and older.
SECTION 53. ORS 659.100 is amended to read:
659.100. (1) The Bureau of Labor and Industries may { + take
all steps necessary to + } eliminate and prevent
{ - discrimination in employment because of race, religion,
color, sex, national origin, marital status, physical or mental
disability or age if the individual is 18 years of age and over
or by employers, employees, labor organizations, employment
agencies or other persons and take other actions against
discrimination because of race, religion, color, sex, national
origin, marital status, physical or mental disability or age if
the individual is 18 years of age and over as provided in ORS
659.010 to 659.110 and 659.400 to 659.545 - } { + unlawful
practices + }. To eliminate the effects of { + unlawful + }
discrimination { + , + } the bureau { - of Labor and
Industries - } may promote voluntarily affirmative action by
employers, labor organizations, governmental agencies, private
organizations and individuals and may accept financial assistance
and grants or funds for such purpose.
(2) { - The Bureau of Labor and Industries may eliminate and
prevent violations of ORS 659.033 and may eliminate and prevent
discrimination or restrictions because of race, religion, color,
sex, marital status, physical or mental disability, national
origin or age of any individual 18 years of age and older by
career schools licensed under any law of the State of Oregon, or
by any place of public accommodation as defined in ORS 30.675 or
by any person acting on behalf of such place or by any person
aiding or abetting such place or person in violation of ORS
30.685. - } The bureau { - of Labor and Industries hereby - }
is given general jurisdiction and power for { - such
purposes - } { + the purpose of eliminating and preventing
unlawful practices + }.
(3) The Commissioner of the Bureau of Labor and Industries
shall employ a deputy commissioner and such other personnel as
may be necessary to carry into effect the powers and duties
conferred upon the Bureau of Labor and Industries and the
commissioner under
{ - ORS 659.010 to 659.110 and 659.400 to 659.545 - } { +
sections 1 to 15 of this 2001 Act + } and may prescribe the
duties and responsibilities of such employees. The commissioner
{ - of the Bureau of Labor and Industries - } may delegate any
of the powers under { - ORS 659.010 to 659.110 and 659.400 to
659.545 - } { + sections 1 to 15 of this 2001 Act + } to the
deputy commissioner employed under this subsection.
(4) The commissioner or the designee of the commissioner may
issue subpoenas to require the production of evidence necessary
for the performance of any of the duties under { - ORS 659.010
to 659.115 and 659.400 to 659.545 - } { + sections 1 to 15 of
this 2001 Act + }.
(5) No person delegated any powers or duties under this section
and ORS 659.103 shall act as prosecutor and examiner in
processing any violation under { - ORS 659.010 to 659.110 and
659.400 to 659.545 - } { + sections 1 to 15 of this 2001
Act + }.
SECTION 54. ORS 659.103 is amended to read:
659.103. (1) In accordance with any applicable provision of ORS
183.310 to 183.550, the Commissioner of the Bureau of Labor and
Industries may adopt reasonable rules:
(a) Establishing what acts and communications constitute a
notice, sign or advertisement that public accommodation or real
property will be refused, withheld from, or denied to any person
or that discrimination will be made against the person because of
race, religion, sex, marital status, color or national origin.
(b) Establishing what inquiries in connection with employment
and prospective employment express a limitation, specification or
discrimination as to race, religion, color, sex, national origin
or age.
(c) Establishing what inquiries in connection with employment
and prospective employment soliciting information as to race,
religion, color, sex, national origin or age are based on bona
fide job qualifications.
(d) { - Establishing rules - } For internal operation and
{ - rules of - } practice and procedure before the commissioner
under { - ORS 659.010 to 659.110 and 659.470 to 659.545 - }
{ + sections 1 to 15 of this 2001 Act + }.
(e) { - Establishing rules - } Covering any other matter
required to carry out the { - purpose of ORS 659.010 to 659.110
and 659.400 to 659.545 - } { + purposes of sections 1 to 15 of
this 2001 Act + }.
(2) In adopting rules under this section the commissioner shall
consider the following factors, among others:
(a) The relevance of information requested to job performance
in connection with which it is requested.
(b) Available reasonable alternative ways of obtaining
requested information without soliciting responses as to race,
religion, color, sex, marital status, national origin or age.
(c) Whether a statement or inquiry soliciting information as to
race, religion, color, sex, marital status, national origin or
age communicates an idea independent of an intention to limit,
specify or discriminate as to race, religion, color, sex, marital
status, national origin or age.
(d) Whether the independent idea communicated is relevant to a
legitimate objective of the kind of transaction which it
contemplates.
(e) The ease with which the independent idea relating to a
legitimate objective of the kind of transaction contemplated
could be communicated without connoting an intention to
discriminate as to race, religion, color, sex, marital status,
national origin or age.
SECTION 55. ORS 659.105 is amended to read:
659.105. (1) Any person aggrieved by a violation of { - ORS
659.050 (7) or 659.055 shall have a cause of action against the
violator thereof for damages sustained thereby and also for such
additional sum as may be reasonable as exemplary damages - }
{ + section 11 of this 2001 Act may bring a civil action in the
manner provided by section 15 (3) of this 2001 Act and recover
the same relief as provided by section 15 (3) of this 2001 Act
for unlawful practices + }.
(2) As a defense to any cause of action arising under this
section { + , + } { - based on a violation of ORS 659.055 - }
the defendant may plead and prove that either:
(a) Subsequent to the defendant's conduct on which the
plaintiff bases the cause of action, the complaint under
{ - ORS 659.040 or 659.045 - } { + section 2 of this 2001
Act + } has been dismissed by the Commissioner of the Bureau of
Labor and Industries or deputy, or the court, either for want of
evidence to proceed to a hearing or for lack of merit after such
hearing; or
(b) In the case of the sale of real property { + , + }
defendant's conduct giving rise to plaintiff's cause of action
was neither committed within the first two years after notice by
the commissioner or deputy of the filing of the complaint
{ - of discrimination under ORS 659.010 to 659.110 and 659.400
to 659.545 - } { + under section 2 of this 2001 Act + }, nor
within any extended period of time obtained at the request of
respondent for disposition of the case. { - The two-year
provision in this paragraph shall apply to all defenses with
regard to which, on June 30, 1975, either 90 days has not expired
after the notice or the extended period of time has not
expired. - }
SECTION 56. ORS 659.110 is amended to read:
659.110. (1) No person shall willfully resist, prevent, impede
or interfere with the Commissioner of the Bureau of Labor and
Industries or any authorized agents of the commissioner in the
performance of duty under { - ORS 659.010 to 659.110 and
659.400 to 659.545 - } { + sections 1 to 15 of this 2001
Act + } or willfully violate an order of the commissioner.
(2) An appeal or other procedure for the review of any such
order is not deemed to be such willful conduct.
SECTION 57. ORS 659.115 is amended to read:
659.115. (1) The Commissioner of the Bureau of Labor and
Industries shall create such advisory agencies and
intergroup-relations councils, local, regional or statewide, as
in the judgment of the commissioner will aid in effectuating the
purposes of { - ORS 659.010 to 659.110 and 659.400 to
659.545 - } { + sections 1 to 15 of this 2001 Act + }. The
commissioner may empower them:
(a) To study the problems of discrimination in all or specific
fields of human relationships or in specific instances of
discrimination because of race, religion, color, sex or national
origin.
(b) To foster, through community effort or otherwise, good
will, cooperation and conciliation among the groups and elements
of the population of the state.
(c) To make recommendations to the commissioner for the
development of policies and procedures in general and in specific
instances, and for programs of formal and informal education.
(2) Such advisory agencies and councils shall be composed of
representative citizens, serving without pay, but with
reimbursement for actual and necessary expenses in accordance
with laws and regulations governing state officers.
(3) The commissioner may make provision for technical and
clerical assistance to such agencies and councils and for the
expenses of such assistance.
SECTION 58. ORS 659.227 is amended to read:
659.227. (1) Except as provided in { - subsection (5) of - }
this section, it is an unlawful employment practice for any
employer to subject, directly or indirectly, any employee or
prospective employee to any breathalyzer test, polygraph
examination, psychological stress test, genetic test or
brain-wave test.
{ - (2) Complaints may be filed by employees, and this
section shall be enforced by the Commissioner of the Bureau of
Labor and Industries in the same manner as provided in ORS
659.040 to 659.110 and 659.121 for the enforcement of an unlawful
employment practice. Violation of subsection (1) of this section
subjects the violator to the same civil and criminal remedies and
penalties as provided in ORS 659.010 to 659.110, 659.121 and
659.470 to 659.545. - }
{ - (3) - } { + (2) + } As used in this section:
(a) 'Breathalyzer test' means a test to detect the presence of
alcohol in the body through the use of instrumentation or
mechanical devices.
(b) 'Genetic test' has the meaning given in ORS 659.700.
(c) 'Polygraph examination or psychological stress test ' means
a test to detect deception or to verify the truth of statements
through the use of instrumentation or mechanical devices.
(d) An individual is 'under the influence of intoxicating
liquor' when the individual's blood alcohol content exceeds the
amount prescribed in a collective bargaining agreement or the
amount prescribed in the employer's work rules if there is no
applicable collective bargaining provision.
{ - (4) - } { + (3) + } Nothing in subsection (1) of this
section shall be construed to prohibit the administration of a
polygraph examination to an individual, if the individual
consents to the examination, during the course of criminal or
civil judicial proceedings in which the individual is a party or
witness or during the course of a criminal investigation
conducted by a law enforcement agency, as defined in ORS 181.010,
a district attorney or the Attorney General.
{ - (5) - } { + (4) + } Nothing in subsection (1) of this
section shall be construed to prohibit the administration of a
breathalyzer test to an individual if the individual consents to
the test. If the employer has reasonable grounds to believe that
the individual is under the influence of intoxicating liquor, the
employer may require, as a condition for employment or
continuation of employment, the administration of a blood alcohol
content test by a third party or a breathalyzer test. The
employer shall not require the employee to pay the cost of
administering any such test.
{ - (6) - } { + (5) + } Subsection (1) of this section does
not prohibit the administration of a genetic test to an
individual if the individual or the individual's representative
grants informed consent in the manner provided by ORS 659.710,
and the genetic test is administered solely to determine a bona
fide occupational qualification.
SECTION 59. ORS 659.270 is amended to read:
659.270. { - (1) - } It is an unlawful employment practice
for an employer to discharge, demote, suspend or in any manner
discriminate against an employee with regard to promotion,
compensation or other terms, conditions or privileges of
employment solely for the reason that the employee has testified
before the Legislative Assembly or any of its interim or
statutory committees, including advisory committees and
subcommittees thereof, or task forces.
{ - (2) Complaints may be filed by employees, and this
section shall be enforced by the Commissioner of the Bureau of
Labor and Industries in the same manner as provided in ORS
659.040 to 659.110 and 659.121 for the enforcement of an unlawful
employment practice. Violation of subsection (1) of this section
subjects the violator to the same civil and criminal remedies and
penalties as provided in ORS 659.010 to 659.110, 659.121 and
659.470 to 659.545. - }
SECTION 60. ORS 659.330 is amended to read:
659.330. (1) It is an unlawful employment practice for any
employer to require an employee, as a condition of continuation
of employment, to pay the cost of any medical examination or the
cost of furnishing any health certificate.
(2) Notwithstanding subsection (1) of this section, it is not
an unlawful employment practice for an employer to require the
payment of medical examination or health certificate costs:
(a) From health and welfare fringe benefit moneys contributed
entirely by the employer; or
(b) By the employee if the medical examination or health
certificate is required pursuant to a collective bargaining
agreement, state or federal statute or city or county ordinance.
{ - (3) Complaints may be filed by employees, and this
section shall be enforced by the Commissioner of the Bureau of
Labor and Industries in the same manner as provided in ORS
659.040 to 659.110 and 659.121 for the enforcement of an unlawful
employment practice. Violation of subsection (1) of this section
subjects the violator to the same civil and criminal remedies and
penalties as provided in ORS 659.010 to 659.110, 659.121 and
659.470 to 659.545. - }
SECTION 61. ORS 659.340 is amended to read:
659.340. (1) Except as provided in subsection (2) of this
section, it is an unlawful employment practice for an employer
solely because another member of an individual's family works or
has worked for that employer to:
(a) Refuse to hire or employ an individual;
(b) Bar or discharge from employment an individual; or
(c) Discriminate against an individual in compensation or in
terms, conditions or privileges of employment.
(2) An employer is not required to hire or employ and is not
prohibited from barring or discharging an individual if such
action:
(a) Would constitute a violation of any law of this state or of
the United States, or any rule promulgated pursuant thereto, with
which the employer is required to comply;
(b) Would constitute a violation of the conditions of
eligibility for receipt by the employer of financial assistance
from the government of this state or the United States;
(c) Would place the individual in a position of exercising
supervisory, appointment or grievance adjustment authority over a
member of the individual's family or in a position of being
subject to such authority which a member of the individual's
family exercises; or
(d) Would cause the employer to disregard a bona fide
occupational requirement reasonably necessary to the normal
operation of the employer's business.
(3) As used in this section { - : - } { + , + }
{ - (a) 'Employer' has the meaning for that term provided in
ORS 659.010. - }
{ - (b) - } 'member of an individual's family' means the
wife, husband, son, daughter, mother, father, brother,
brother-in-law, sister, sister-in-law, son-in-law,
daughter-in-law, mother-in-law, father-in-law, aunt, uncle,
niece, nephew, stepparent or stepchild of the individual.
{ - (4) Subsections (1) to (3) of this section shall be
enforced by the Commissioner of the Bureau of Labor and
Industries in the same manner as provided in ORS 659.040 to
659.110 for enforcement of an unlawful employment practice.
Violation of subsections (1) to (3) of this section subjects the
violator to the same civil and criminal penalties as provided for
violation of ORS 659.010 to 659.110 and 659.470 to 659.545. - }
SECTION 62. ORS 659.380 is amended to read:
659.380. (1) It is an unlawful employment practice for any
employer to require, as a condition of employment, that any
employee or prospective employee refrain from using lawful
tobacco products during nonworking hours, except when the
restriction relates to a bona fide occupational requirement.
(2) Subsection (1) of this section does not apply if an
applicable collective bargaining agreement prohibits off-duty use
of tobacco products.
(3) { - Complaints may be filed by employees, and this
section shall be enforced by the Commissioner of the Bureau of
Labor and Industries in the same manner as provided in ORS
659.040 to 659.110 and 659.121 for the enforcement of an unlawful
employment practice. Violation of subsection (1) of this section
subjects the violator to the same civil and criminal remedies and
penalties as provided in ORS 659.010 to 659.110, 659.121 and
659.470 to 659.545. - } { + A civil action may be brought under
section 15 of this 2001 Act for a violation of this section. + }
SECTION 63. ORS 659.550 is amended to read:
659.550. (1) It is an unlawful employment practice for an
employer 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 for the reason that the employee has in good faith
reported criminal activity by any person, has in good faith
caused a complainant's information or complaint to be filed
against any person, has in good faith cooperated with any law
enforcement agency conducting a criminal investigation, has in
good faith brought a civil proceeding against an employer or has
testified in good faith at a civil proceeding or criminal trial.
{ - (2) Complaints may be filed by employees, and this
section shall be enforced by the Commissioner of the Bureau of
Labor and Industries in the same manner as provided in ORS
659.040 to 659.110 and 659.121 for the enforcement of an unlawful
employment practice. Violation of subsection (1) of this section
subjects the violator to the same civil and criminal remedies and
penalties as provided in ORS 659.010 to 659.110, 659.121 and
659.470 to 659.545. - }
{ - (3) - } { + (2) + } For the purposes of this section,
'complainant's information' and 'complaint' have the meanings
given those terms in ORS 131.005.
{ - (4) - } { + (3) + } The remedies provided by { - this
section - } { + sections 1 to 15 of this 2001 Act + } are in
addition to any common law remedy or other remedy that may be
available to an employee for the conduct constituting a violation
of this section.
{ +
CRIMINAL PENALTIES + }
SECTION 64. ORS 659.990 is amended to read:
659.990. { - (1) Violation of ORS 659.110 is punishable, upon
conviction, by imprisonment in the county jail for not more than
one year or by a fine of not more than $500, or by both. - }
{ - (2) - } { + (1) + } Violation of ORS 659.210 is
punishable, upon conviction, by a fine of not more than $1,000 or
imprisonment in the county jail for not more than one year, or
both.
{ - (3) - } { + (2) + } Violation of ORS 659.230 by any
officer or agent of a corporation or any other person is
punishable, upon conviction, by a fine of not less than $50 nor
more than $250, or by imprisonment in the county jail not less
than 30 nor more than 90 days, or both.
{ - (4) - } { + (3) + } Violation of ORS 659.240 is
punishable, upon conviction, by a fine of not less than $10 nor
more than $200 or by imprisonment in the county jail for not less
than one month nor more than six months.
{ - (5) - } { + (4) + } Violation of ORS 659.250 or 659.260
is punishable, upon conviction, by a fine of not more than $100
or imprisonment in the county jail for not more than 60 days, or
both.
{ - (6) - } { + (5) + } Any person who violates ORS
659.320, upon conviction, shall be required to make immediate
restitution of delinquent payments to the fund or funds mentioned
in ORS 659.320 and shall be punished by a fine of not more than
$1,000 or imprisonment in the county jail for not more than one
year, or both.
{ - (7) - } { + (6) + } Violation of ORS 659.225 is
punishable, upon conviction, by a fine of not more than $500 or
by imprisonment in the county jail for not more than one year, or
by both.
SECTION 65. { + Section 66 of this 2001 Act is added to and
made a part of sections 1 to 15 of this 2001 Act. + }
SECTION 66. { + Violation of ORS 659.110 is punishable, upon
conviction, by imprisonment in the county jail for not more than
one year or by a fine of not more than $500, or by both. + }
{ +
EXTERNAL REFERENCES TO ORS CHAPTER 659 + }
{ +
AND TO SERIES IN ORS CHAPTER 659 + }
SECTION 67. ORS 25.424 is amended to read:
25.424. (1) No withholder is subject to civil liability to an
individual or agency for conduct or actions in compliance with an
order to withhold if the withholder:
(a) Is served with an order to withhold under ORS 25.402 that
is regular on its face; and
(b) Complies with the terms of the order if the order appears
to be in compliance with ORS 25.402.
(2) The withholder is liable for all amounts that the
withholder fails to withhold or pay as required by the order to
withhold or withholds or pays in excess of the amount required by
the order to withhold. The holder of support rights, the obligor,
the Division of Child Support or a district attorney may bring an
action against the withholder:
(a) To recover all amounts that the withholder failed to
withhold or pay or withheld or paid in excess of the amount
required;
(b) To recover an additional amount as damages not to exceed
the amount referred to in paragraph (a) of this subsection; and
(c) If the failure to withhold was willful or the result of
gross negligence by the withholder, to have an additional amount
imposed as a fine payable to the court not to exceed $250 for
each time the withholder failed to withhold or pay or withheld or
paid an amount exceeding the amount required and to pay
reasonable costs of the action including attorney fees.
(3)(a) An employer commits an unlawful employment practice if
the employer discharges an employee, refuses to hire an
individual or in any other manner discriminates, retaliates or
takes disciplinary action against an obligor 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. An obligor may bring an action
to recover compensatory damages and a civil penalty not to exceed
$1,000 or may file a complaint with the Commissioner of the
Bureau of Labor and Industries in the { - same manner as
provided in ORS 659.040 to 659.110 and 659.121 for the
enforcement of an unlawful employment practice - } { + manner
provided by section 2 of this 2001 Act + }. The commissioner
{ - of the Bureau of Labor and Industries - } may { + , + } in
addition to the remedies provided for under { - ORS chapter
659 - } { + sections 1 to 15 of this 2001 Act + }, impose a
civil penalty not to exceed $1,000. These remedies are in
addition to any other remedy available in law or equity.
(b) Paragraph (a) of this subsection does not apply to actions
taken by an employer pursuant to any condition of employment
required by law.
(4) Nothing in ORS 25.372 to 25.427 precludes an action for
contempt for disobedience of a judicial order to withhold.
SECTION 68. ORS 30.178 is amended to read:
30.178. (1) An employer who discloses information about a
former employee's job performance to a prospective employer of
the former employee upon request of the prospective employer or
of the former employee is presumed to be acting in good faith
and, unless lack of good faith is shown by a preponderance of the
evidence, is immune from civil liability for such disclosure or
its consequences. For purposes of this section, the presumption
of good faith is rebutted upon a showing that the information
disclosed by the employer was knowingly false or deliberately
misleading, was rendered with malicious purpose or violated any
civil right of the former employee protected under ORS chapter
659 { + or sections 1 to 15 of this 2001 Act + }.
(2) { - An - } { + A civil + } action for defamation may
not be maintained against an employer by an employee who is
terminated by the employer based on a claim that in seeking
subsequent employment the former employee will be forced to
reveal the reasons given by the employer for the termination.
SECTION 69. ORS 171.120 is amended to read:
171.120. (1) It is the purpose and intent of the Legislative
Assembly in enacting this section { - , - } { + and + } ORS
171.122 and 171.125 that, subject to the conditions set forth in
{ - such - } { + these + } sections, any member of the
Legislative Assembly whose employment is interrupted by reason of
attendance upon regular or special sessions of the Legislative
Assembly or the performance of official duties as a member of the
Legislative Assembly { - , - } shall be restored to such
employment in such a manner as to give the member the status in
such employment that the member would have enjoyed if the member
had continued in such employment continuously during any such
attendance or performance of duties.
(2) As a part of the public policy to encourage public service,
an employer shall not discharge or threaten to discharge,
intimidate or coerce any employee by reason of the employee's
service or scheduled service as a member or prospective member of
the Legislative Assembly.
(3) The member or prospective member shall not be subject to
discipline or harassment or placed at any employment disadvantage
as a consequence of the leave of absence. It is an unlawful
employment practice under { - ORS chapter 659 - } { +
sections 1 to 15 of this 2001 Act + } for a member or prospective
member to be subject to discipline or harassment or placed at any
employment disadvantage as a consequence of any leave of absence
by reason of regular or special session. { + A member or
prospective member may file a complaint with the Commissioner of
the Bureau of Labor and Industries under section 2 of this 2001
Act alleging violation of this subsection. + }
SECTION 70. ORS 171.125 is amended to read:
171.125. (1) If any employer fails to comply with the
provisions of ORS 171.120 and 171.122, the circuit court for any
county in which such employer maintains a place of business has
jurisdiction, upon the filing of a petition by the Attorney
General on behalf of the person entitled to such benefits by
reason of noncompliance of the employer, specifically to require
the employer to comply with the provisions of ORS 171.120 and
171.122.
(2) If any employer fails to comply with ORS 171.120 and
171.122, the member or prospective member may bring an action
under { - ORS chapter 659 - } { + sections 1 to 15 of this
2001 Act + } employing counsel of the member's or prospective
member's own choosing.
SECTION 71. ORS 183.090 is amended to read:
183.090. (1) Except as otherwise provided by law, an agency may
only impose a civil penalty as provided in this section.
(2) A civil penalty imposed under this section shall become due
and payable 10 days after the order imposing the civil penalty
becomes final by operation of law or on appeal. A person against
whom a civil penalty is to be imposed shall be served with a
notice in the form provided in ORS 183.415. Service of the notice
shall be accomplished in the manner provided by ORS 183.415.
(3) The person to whom the notice is addressed shall have 20
days from the date of service of the notice provided for in
subsection (2) of this section in which to make written
application for a hearing. The agency may by rule provide for a
longer period of time in which application for a hearing may be
made. If no application for a hearing is made within the time
allowed, the agency may make a final order imposing the penalty.
A final order entered under this subsection need not be delivered
or mailed to the person against whom the civil penalty is
imposed.
(4) Any person who makes application as provided for in
subsection (3) of this section shall be entitled to a hearing.
The hearing shall be conducted as a contested case hearing
pursuant to the applicable provisions of ORS 183.413 to 183.470.
(5) Judicial review of an order made after a hearing under
subsection (4) of this section shall be as provided in ORS
183.480 to 183.497 for judicial review of contested cases.
(6) When an order assessing a civil penalty under this section
becomes final by operation of law or on appeal, and the amount of
penalty is not paid within 10 days after the order becomes final,
the order may be recorded with the county clerk in any county of
this state. The clerk shall thereupon record the name of the
person incurring the penalty and the amount of the penalty in the
County Clerk Lien Record.
(7) This section does not apply to penalties:
(a) Imposed under the tax laws of this state;
(b) Imposed under the provisions of ORS 646.760 or 652.332;
(c) Imposed under the provisions of ORS chapter 654 { - , - }
{ + or + } 656 or { - 659 - } { + sections 1 to 15 of this
2001 Act + }; or
(d) Imposed by the Public Utility Commission.
(8) This section creates no new authority in any agency to
impose civil penalties.
(9) This section does not affect:
(a) Any right under any other law that an agency may have to
bring an action in a court of this state to recover a civil
penalty; or
(b) The ability of an agency to collect a properly imposed
civil penalty under the provisions of ORS 305.830.
(10) The notice provided for in subsection (2) of this section
may be made part of any other notice served by the agency under
ORS 183.415.
(11) Informal disposition of proceedings under this section,
whether by stipulation, agreed settlement, consent order or
default, may be made at any time.
(12) In addition to any other remedy provided by law, recording
an order in the County Clerk Lien Record pursuant to the
provisions of this section has the effect provided for in ORS
205.125 and 205.126, and the order may be enforced as provided in
ORS 205.125 and 205.126.
(13) As used in this section:
(a) 'Agency' has that meaning given in ORS 183.310.
(b) 'Civil penalty' includes only those monetary penalties that
are specifically denominated as civil penalties by statute.
SECTION 72. ORS 241.440 is amended to read:
241.440. A dismissed employee may, within 10 days from the time
of dismissal, file with the commission a written demand for an
investigation. If the demand alleges, or if it otherwise appears
to the commission, that the dismissal was made for political or
religious reasons, or because of reasons of age as described in
{ - ORS chapter 659 - } { + sections 1 to 15 of this 2001
Act + }, or was not made in good faith for cause, the commission
shall conduct an investigation. The investigation shall be
confined to the determination of the question of whether the
dismissal was or was not made for political or religious reasons
or because of reasons of age as described in { - ORS chapter
659 - } { + sections 1 to 15 of this 2001 Act + } and was or
was not made in good faith for cause. The burden of proof shall
be upon the dismissed person.
SECTION 73. ORS 241.450 is amended to read:
241.450. After an investigation, the commission may affirm the
dismissal or if it finds that the dismissal was made for
political or religious reasons, or because of reasons of age as
described in { - ORS chapter 659 - } { + sections 1 to 15 of
this 2001 Act + }, or was not made in good faith for cause, shall
order the immediate reinstatement and reemployment of the
employee in the position from which the employee was dismissed.
Reinstatement shall be retroactive and entitle the dismissed
employee to pay or compensation from the time of dismissal. The
commission, upon investigation, in lieu of affirming the
dismissal, may modify the order of dismissal, by directing a
suspension without pay for a given period, and a subsequent
restoration to duty, or a demotion in classification, grade or
pay. The findings of the commission shall be certified in writing
to the appointing power and forthwith enforced by the appointing
power.
SECTION 74. ORS 241.460 is amended to read:
241.460. (1) If the judgment or order made pursuant to ORS
241.450 is concurred in by only two members of the commission,
the accused may appeal to the circuit court of the county.
(2) The appeal shall be taken by serving upon the commission,
within 30 days after the date of the entry of such judgment or
order, a written notice of appeal, stating the grounds thereof,
and demanding that a certified transcript of the record and of
all papers on file in the office of the commission affecting or
relating to such judgment or order be filed by the commission
with the court. The commission shall, within 10 days after the
filing of such notice, make, certify and file such transcript
with the court.
(3) The circuit court shall thereupon proceed to hear and
determine such appeal in a summary manner, and its decision shall
be final. The hearing shall be confined to the determination of
whether the judgment or order of removal, discharge, demotion or
suspension, made by the commission, was or was not made for
political or religious reasons, or because of reasons of age as
described in { - ORS chapter 659 - } { + sections 1 to 15 of
this 2001 Act + }, and was or was not made in good faith for
cause. No appeal to such court shall be taken except upon such
grounds.
SECTION 75. ORS 242.620 is amended to read:
242.620. No employee in the classified civil service who has
been permanently appointed, shall be dismissed except for cause.
A written statement of the cause of dismissal, in general terms,
shall be served upon the dismissed employee and a duplicate filed
with the board. A dismissal may be made without any hearing but
any employee so removed may, within 10 days thereafter, file with
the board a written demand for investigation. If the demand
alleges, or it otherwise appears to the board, that the discharge
or removal was for political or religious reasons, or for reasons
of age as described in { - ORS chapter 659 - } { + sections 1
to 15 of this 2001 Act + }, or was because of personal favoritism
or was not in good faith nor for the purpose of improving the
public service, an investigation shall be held by the board or by
persons appointed by them and under their direction.
SECTION 76. ORS 242.630 is amended to read:
242.630. (1) The investigation pursuant to ORS 242.620 shall be
confined to determining whether the dismissal was or was not for
political or religious reasons, or because of reasons of age as
described in { - ORS chapter 659 - } { + sections 1 to 15 of
this 2001 Act + }, or was not made in good faith for the purpose
of improving public service.
(2) If the board finds that the employee is entitled to
reinstatement, it shall report its findings in writing to the
school board, whereupon the employee shall be reinstated.
(3) If the board finds that the employee was properly
discharged, the employee shall have a right of appeal from the
board's decision to the circuit court for the county in which the
district lies. Appeals shall be perfected by service of notice of
appeal upon the secretaries of the civil service board and school
board, together with a copy of the decision of the civil service
board certified to be a correct copy by the secretary thereof,
whereupon the same shall be filed with the clerk of the court.
SECTION 77. ORS 345.240 is amended to read:
345.240. (1) No career school licensed under ORS 345.010 to
345.450 shall refuse admission to or discriminate in admission
against or discriminate in giving instruction to any person
otherwise qualified.
{ + (2) Any violation of this section is an unlawful practice
under sections 1 to 15 of this 2001 Act. Any person unlawfully
discriminated against under this section may file a complaint
under section 2 of this 2001 Act with the Commissioner of the
Bureau of Labor and Industries. + }
{ - (2) - } { + (3) + } A certified copy of a finding by
the Commissioner of the Bureau of Labor and Industries under
{ - ORS 659.060 - } { + section 8 of this 2001 Act + } that
the school has violated { - subsection (1) of - } this section
shall be adequate proof of the violation.
{ - (3) - } { + (4) + } As used in this section,
'discriminate' has the meaning given 'discrimination' in ORS
659.150.
SECTION 78. ORS 396.330 is amended to read:
396.330. (1) State employees of the Oregon Military Department
who are not otherwise members of the Oregon National Guard may be
required as a condition of employment to obtain membership in the
Oregon State Defense Force when in the judgment of the Adjutant
General the membership maintains or enhances the readiness and
stability of the department to provide services if the need for
Oregon State Defense Force assistance should arise. The decision
of the Adjutant General shall be carried out by written
regulation and shall not be subject to collective bargaining.
(2) Members of the Oregon National Guard or Oregon State
Defense Force who are ordered to state active duty under the
provisions of ORS chapter 399 shall be considered as being in the
military service of the state and shall be considered temporary
employees of the military department.
(3) State employees of the military department may be ordered
to state active duty under ORS chapter 399 without jeopardizing
their status as regular employees. Employees so ordered must be
in an authorized leave status from their regular military
department employment during the period served on active duty.
(4) State employees of the military department shall be subject
to ORS chapter 240 or 243 when performing as regular employees.
(5) Members of the Oregon National Guard who are serving under
Title 10 or Title 32 of the United States Code are not eligible,
by reason of that service, for the rights or benefits of public
employees granted or authorized by ORS chapters 236, 237, 238,
240 or 243. Except as required by federal law or regulation, ORS
chapters 652, 653, 654, 656, 657, 659, 661 and 663 { + and
sections 1 to 15 of this 2001 Act + } do not apply to members of
the Oregon National Guard who are serving under Title 10 or Title
32 of the United States Code.
SECTION 79. ORS 399.235 is amended to read:
399.235. (1) Any violation of ORS 399.230 by an employer
{ - shall be - } { + is + } an unlawful employment practice.
(2) Complaints { + alleging a violation of ORS 399.230 + } may
be filed by employees with the Commissioner of the Bureau of
Labor and Industries { + in the manner provided by section 2 of
this 2001 Act + }. The commissioner { - of the Bureau of Labor
and Industries - } shall enforce ORS 399.230 in the manner
{ - as - } provided in { - ORS 659.010 to 659.110, 659.121
and 659.505 to 659.545 - } { + sections 1 to 15 of this 2001
Act + } for the enforcement of other unlawful employment
practices.
(3) Violation of ORS 399.230 subjects the violator to the same
civil remedies and penalties as provided in { - ORS 659.010 to
659.110, 659.121 and 659.505 to 659.545 - } { + sections 1 to
15 of this 2001 Act + }.
SECTION 80. ORS 461.120 is amended to read:
461.120. (1)(a) Except as otherwise provided by law, the
provisions of ORS chapters 279, 282 and 283 do not apply to the
Oregon State Lottery Commission unless otherwise provided by this
chapter.
(b) Officers and employees of the Oregon State Lottery
Commission are in the exempt service for purposes of ORS chapter
240 and other related statutes.
(c) ORS 276.004 (2), 276.021, 276.037, 276.093 to 276.097,
276.410 to 276.426, 276.428, 276.440, 291.038, 291.201 to
291.260, 291.355 and 292.210 to 292.250 do not apply to the
Oregon State Lottery Commission.
(d) ORS 293.075, 293.190, 293.205 to 293.225 and 293.275 do not
apply to the Oregon State Lottery Commission.
(e) ORS 279.053, { - 659.010 to 659.110 and 659.505 to
659.545 - } { + ORS chapter 659 and sections 1 to 15 of this
2001 Act + } apply to the Oregon State Lottery Commission.
(f) Notwithstanding paragraph (a) of this subsection, the
provisions of ORS 282.210 shall apply to the Oregon State Lottery
Commission.
(2) The commission shall, in accordance with ORS 183.310 to
183.550, adopt and enforce rules to carry out the provisions of
this chapter.
SECTION 81. ORS 476.576 is amended to read:
476.576. (1) Any violation of ORS 476.574 by an employer
{ - shall be - } { + is + } an unlawful employment practice.
(2) Complaints { + alleging a violation of ORS 476.574 + } may
be filed by employees with the Commissioner of the Bureau of
Labor and Industries. The commissioner { - of the Bureau of
Labor and Industries - } shall enforce ORS 476.574 in the manner
provided in
{ - ORS 659.010 to 659.110 - } { + sections 1 to 15 of this
2001 Act + } for the enforcement of other unlawful employment
practices.
(3) Any person claiming to be aggrieved by a violation of ORS
476.574 may bring a civil action in the manner provided in
{ - ORS 659.121 - } { + section 15 of this 2001 Act + }.
SECTION 82. ORS 654.062 is amended to read:
654.062. (1) Every employee should notify the employer of any
violation of law, regulation or standard pertaining to safety and
health in the place of employment when the violation comes to the
knowledge of the employee.
(2) However, any employee or representative of the employee may
complain to the Director of the Department of Consumer and
Business Services or any authorized representatives of the
director of any violation of law, regulation or standard
pertaining to safety and health in the place of employment,
whether or not the employee also notifies the employer.
(3) Upon receiving any employee complaint, the director shall
make such inquiries, inspections and investigations as the
director considers reasonable and appropriate. Where an employee
has complained in writing of an alleged violation and no
resulting citation is issued to the employer, the director shall
furnish to the employee or representative of the employee, upon
written request, a statement of reasons for the decision.
(4) The director shall establish procedures for keeping
confidential the identity of any employee who requests such
protection in writing. Where such a request has been made,
neither a written complaint from an employee, or representative
of the employee, nor a memorandum containing the identity of a
complainant shall be construed as a public record under ORS
192.210 to 192.505 and 192.610 to 192.990.
(5)(a) It is an unlawful employment practice for any person to
bar or discharge from employment or otherwise discriminate
against any employee or prospective employee because such
employee has opposed any practice forbidden by ORS 654.001 to
654.295 and 654.750 to 654.780, made any complaint or instituted
or caused to be instituted any proceeding under or related to ORS
654.001 to 654.295 and 654.750 to 654.780, or has testified or is
about to testify in any such proceeding, or because of the
exercise of such employee on behalf of the employee or others of
any right afforded by ORS 654.001 to 654.295 and 654.750 to
654.780.
(b) Any employee or prospective employee who believes that the
employee has been barred or discharged from employment or
otherwise discriminated against in compensation, or in terms,
conditions or privileges of employment, by any person in
violation of this subsection may, within 30 days after the
employee has reasonable cause to believe that such a violation
has occurred, file a complaint with the Commissioner of the
Bureau of Labor and Industries alleging such discrimination under
the provisions of
{ - ORS 659.040 - } { + section 2 of this 2001 Act + }. Upon
receipt of such complaint the commissioner shall process the
complaint and case under the procedures, policies and remedies
established by { - ORS 659.010 to 659.110 and 659.505 to
659.545 - } { + sections 1 to 15 of this 2001 Act + } and the
policies established by ORS 654.001 to 654.295 and 654.750 to
654.780 in the same way and to the same extent that the complaint
would be processed by the commissioner if the complaint involved
allegations of unlawful employment practices based upon race,
religion, color, national origin, sex or age under ORS 659.030
(1)(f). The affected employee shall also have the right to bring
a suit in any circuit court of the State of Oregon against any
person alleged to have violated this subsection. The commissioner
or the circuit court may order all appropriate relief including
rehiring or reinstatement of the employee to the employee's
former position with back pay.
(c) Within 90 days after the receipt of a complaint filed under
this subsection the commissioner shall notify the complainant of
the commissioner's determination under paragraph (b) of this
subsection.
SECTION 83. ORS 656.262 is amended to read:
656.262. (1) Processing of claims and providing compensation
for a worker shall be the responsibility of the insurer or
self-insured employer. All employers shall assist their insurers
in processing claims as required in this chapter.
(2) The compensation due under this chapter shall be paid
periodically, promptly and directly to the person entitled
thereto upon the employer's receiving notice or knowledge of a
claim, except where the right to compensation is denied by the
insurer or self-insured employer.
(3)(a) Employers shall, immediately and not later than five
days after notice or knowledge of any claims or accidents which
may result in a compensable injury claim, report the same to
their insurer. The report shall include:
(A) The date, time, cause and nature of the accident and
injuries.
(B) Whether the accident arose out of and in the course of
employment.
(C) Whether the employer recommends or opposes acceptance of
the claim, and the reasons therefor.
(D) The name and address of any health insurance provider for
the injured worker.
(E) Any other details the insurer may require.
(b) Failure to so report subjects the offending employer to a
charge for reimbursing the insurer for any penalty the insurer is
required to pay under subsection (11) of this section because of
such failure. As used in this subsection, 'health insurance' has
the meaning for that term provided in ORS 731.162.
(4)(a) The first installment of temporary disability
compensation shall be paid no later than the 14th day after the
subject employer has notice or knowledge of the claim, if the
attending physician authorizes the payment of temporary
disability compensation. Thereafter, temporary disability
compensation shall be paid at least once each two weeks, except
where the Director of the Department of Consumer and Business
Services determines that payment in installments should be made
at some other interval. The director may by rule convert monthly
benefit schedules to weekly or other periodic schedules.
(b) Notwithstanding any other provision of this chapter, if a
self-insured employer pays to an injured worker who becomes
disabled the same wage at the same pay interval that the worker
received at the time of injury, such payment shall be deemed
timely payment of temporary disability payments pursuant to ORS
656.210 and 656.212 during the time the wage payments are made.
(c) Notwithstanding any other provision of this chapter, when
the holder of a public office is injured in the course and scope
of that public office, full official salary paid to the holder of
that public office shall be deemed timely payment of temporary
disability payments pursuant to ORS 656.210 and 656.212 during
the time the wage payments are made. As used in this subsection,
' public office' has the meaning for that term provided in ORS
260.005.
(d) Temporary disability compensation is not due and payable
for any period of time for which the insurer or self-insured
employer has requested from the worker's attending physician
verification of the worker's inability to work resulting from the
claimed injury or disease and the physician cannot verify the
worker's inability to work, unless the worker has been unable to
receive treatment for reasons beyond the worker's control.
(e) If a worker fails to appear at an appointment with the
worker's attending physician, the insurer or self-insured
employer shall notify the worker by certified mail that temporary
disability benefits may be suspended after the worker fails to
appear at a rescheduled appointment. If the worker fails to
appear at a rescheduled appointment, the insurer or self-insured
employer may suspend payment of temporary disability benefits to
the worker until the worker appears at a subsequent rescheduled
appointment.
(f) If the insurer or self-insured employer has requested and
failed to receive from the worker's attending physician
verification of the worker's inability to work resulting from the
claimed injury or disease, medical services provided by the
attending physician are not compensable until the attending
physician submits such verification.
(g) Temporary disability compensation is not due and payable
pursuant to ORS 656.268 after the worker's attending physician
ceases to authorize temporary disability or for any period of
time not authorized by the attending physician. No authorization
of temporary disability compensation by the attending physician
under ORS 656.268 shall be effective to retroactively authorize
the payment of temporary disability more than 14 days prior to
its issuance.
(h) The worker's disability may be authorized only by a person
described in ORS 656.005 (12)(b)(B) or 656.245 (5) for the period
of time permitted by those sections. The insurer or self-insured
employer may unilaterally suspend payment of temporary disability
benefits to the worker at the expiration of the period until
temporary disability is reauthorized by an attending physician.
(i) The insurer or self-insured employer may unilaterally
suspend payment of all compensation to a worker enrolled in a
managed care organization if the worker continues to seek care
from an attending physician not authorized by the managed care
organization more than seven days after the mailing of notice by
the insurer or self-insured employer.
(5) Payment of compensation under subsection (4) of this
section or payment, in amounts not to exceed $500 per claim, for
medical services for nondisabling claims, may be made by the
subject employer if the employer so chooses. The making of such
payments does not constitute a waiver or transfer of the
insurer's duty to determine entitlement to benefits. If the
employer chooses to make such payment, the employer shall report
the injury to the insurer in the same manner that other injuries
are reported. However, an insurer shall not modify an employer's
experience rating or otherwise make charges against the employer
for any medical expenses paid by the employer pursuant to this
subsection.
(6)(a) Written notice of acceptance or denial of the claim
shall be furnished to the claimant by the insurer or self-insured
employer within 90 days after the employer has notice or
knowledge of the claim. Once the claim is accepted, the insurer
or self-insured employer shall not revoke acceptance except as
provided in this section. The insurer or self-insured employer
may revoke acceptance and issue a denial at any time when the
denial is for fraud, misrepresentation or other illegal activity
by the worker. If the worker requests a hearing on any revocation
of acceptance and denial alleging fraud, misrepresentation or
other illegal activity, the insurer or self-insured employer has
the burden of proving, by a preponderance of the evidence, such
fraud, misrepresentation or other illegal activity. Upon such
proof, the worker then has the burden of proving, by a
preponderance of the evidence, the compensability of the claim.
If the insurer or self-insured employer accepts a claim in good
faith, in a case not involving fraud, misrepresentation or other
illegal activity by the worker, and later obtains evidence that
the claim is not compensable or evidence that the insurer or
self-insured employer is not responsible for the claim, the
insurer or self-insured employer may revoke the claim acceptance
and issue a formal notice of claim denial, if such revocation of
acceptance and denial is issued no later than two years after the
date of the initial acceptance. If the worker requests a hearing
on such revocation of acceptance and denial, the insurer or
self-insured employer must prove, by a preponderance of the
evidence, that the claim is not compensable or that the insurer
or self-insured employer is not responsible for the claim.
Notwithstanding any other provision of this chapter, if a denial
of a previously accepted claim is set aside by an Administrative
Law Judge, the Workers' Compensation Board or the court,
temporary total disability benefits are payable from the date any
such benefits were terminated under the denial. Pending
acceptance or denial of a claim, compensation payable to a
claimant does not include the costs of medical benefits or burial
expenses. The insurer shall also furnish the employer a copy of
the notice of acceptance.
(b) The notice of acceptance shall:
(A) Specify what conditions are compensable.
(B) Advise the claimant whether the claim is considered
disabling or nondisabling.
(C) Inform the claimant of the Expedited Claim Service and of
the hearing and aggravation rights concerning nondisabling
injuries, including the right to object to a decision that the
injury of the claimant is nondisabling by requesting
reclassification pursuant to ORS 656.277.
(D) Inform the claimant of employment reinstatement rights and
responsibilities under { - ORS chapter 659 - } { + sections 1
to 15 of this 2001 Act + }.
(E) Inform the claimant of assistance available to employers
from the Reemployment Assistance Program under ORS 656.622.
(F) Be modified by the insurer or self-insured employer from
time to time as medical or other information changes a previously
issued notice of acceptance.
(c) An insurer's or self-insured employer's acceptance of a
combined or consequential condition under ORS 656.005 (7),
whether voluntary or as a result of a judgment or order, shall
not preclude the insurer or self-insured employer from later
denying the combined or consequential condition if the otherwise
compensable injury ceases to be the major contributing cause of
the combined or consequential condition.
(d) An injured worker who believes that a condition has been
incorrectly omitted from a notice of acceptance, or that the
notice is otherwise deficient, first must communicate in writing
to the insurer or self-insured employer the worker's objections
to the notice. The insurer or self-insured employer has 30 days
from receipt of the communication from the worker to revise the
notice or to make other written clarification in response. A
worker who fails to comply with the communication requirements of
this paragraph may not allege at any hearing or other proceeding
on the claim a de facto denial of a condition based on
information in the notice of acceptance from the insurer or
self-insured employer. Notwithstanding any other provision of
this chapter, the worker may initiate objection to the notice of
acceptance at any time.
(7)(a) After claim acceptance, written notice of acceptance or
denial of claims for aggravation or new medical conditions shall
be furnished to the claimant by the insurer or self-insured
employer within 90 days after the insurer or self-insured
employer receives written notice of such claims. New medical
condition claims must clearly request formal written acceptance
of the condition and are not made by the receipt of a medical
claim billing for the provision of, or requesting permission to
provide, medical treatment for the new condition. The worker must
clearly request formal written acceptance of any new medical
condition from the insurer or self-insured employer. The insurer
or self-insured employer is not required to accept each and every
diagnosis or medical condition with particularity, so long as the
acceptance tendered reasonably apprises the claimant and medical
providers of the nature of the compensable conditions.
Notwithstanding any other provision of this chapter, the worker
may initiate a new medical condition claim at any time.
(b) Once a worker's claim has been accepted, the insurer or
self-insured employer must issue a written denial to the worker
when the accepted injury is no longer the major contributing
cause of the worker's combined condition before the claim may be
closed.
(c) When an insurer or self-insured employer determines that
the claim qualifies for claim closure, the insurer or
self-insured employer shall issue at claim closure an updated
notice of acceptance that specifies which conditions are
compensable. The procedures specified in subsection (6)(d) of
this section apply to this notice. Any objection to the updated
notice or appeal of denied conditions shall not delay claim
closure pursuant to ORS 656.268. If a condition is found
compensable after claim closure, the insurer or self-insured
employer shall reopen the claim for processing regarding that
condition.
(8) The assigned claims agent in processing claims under ORS
656.054 shall send notice of acceptance or denial to the
noncomplying employer.
(9) If an insurer or any other duly authorized agent of the
employer for such purpose, on record with the Director of the
Department of Consumer and Business Services denies a claim for
compensation, written notice of such denial, stating the reason
for the denial, and informing the worker of the Expedited Claim
Service and of hearing rights under ORS 656.283, shall be given
to the claimant. A copy of the notice of denial shall be mailed
to the director and to the employer by the insurer. The worker
may request a hearing pursuant to ORS 656.319.
(10) Merely paying or providing compensation shall not be
considered acceptance of a claim or an admission of liability,
nor shall mere acceptance of such compensation be considered a
waiver of the right to question the amount thereof. Payment of
permanent disability benefits pursuant to a notice of closure,
reconsideration order or litigation order, or the failure to
appeal or seek review of such an order or notice of closure,
shall not preclude an insurer or self-insured employer from
subsequently contesting the compensability of the condition rated
therein, unless the condition has been formally accepted.
(11)(a) If the insurer or self-insured employer unreasonably
delays or unreasonably refuses to pay compensation, or
unreasonably delays acceptance or denial of a claim, the insurer
or self-insured employer shall be liable for an additional amount
up to 25 percent of the amounts then due. Notwithstanding any
other provision of this chapter, the director shall have
exclusive jurisdiction over proceedings regarding solely the
assessment and payment of the additional amount described in this
subsection. The entire additional amount shall be paid to the
worker if the worker is not represented by an attorney. If the
worker is represented by an attorney, the worker shall be paid
one-half the additional amount and the worker's attorney shall
receive one-half the additional amount, in lieu of an attorney
fee. The director's action and review thereof shall be subject to
ORS 183.310 to 183.550 and such other procedural rules as the
director may prescribe.
(b) When the director does not have exclusive jurisdiction over
proceedings regarding the assessment and payment of the
additional amount described in this subsection, the provision for
attorney fees provided in this subsection shall apply in the
other proceeding.
(12) The insurer may authorize an employer to pay compensation
to injured workers and shall reimburse employers for compensation
so paid.
(13) Insurers and self-insured employers shall report every
claim for disabling injury to the director within 21 days after
the date the employer has notice or knowledge of such injury.
(14) Injured workers have the duty to cooperate and assist the
insurer or self-insured employer in the investigation of claims
for compensation. Injured workers shall submit to and shall fully
cooperate with personal and telephonic interviews and other
formal or informal information gathering techniques. Injured
workers who are represented by an attorney shall have the right
to have the attorney present during any personal or telephonic
interview or deposition. However, if the attorney is not willing
or available to participate in an interview at a time reasonably
chosen by the insurer or self-insured employer within 14 days of
the request for interview and the insurer or self-insured
employer has cause to believe that the attorney's unwillingness
or unavailability is unreasonable and is preventing the worker
from complying within 14 days of the request for interview, the
insurer or self-insured employer shall notify the director. If
the director determines that the attorney's unwillingness or
unavailability is unreasonable, the director shall assess a civil
penalty against the attorney of not more than $1,000.
(15) If the director finds that a worker fails to reasonably
cooperate with an investigation involving an initial claim to
establish a compensable injury or an aggravation claim to reopen
the claim for a worsened condition, the director shall suspend
all or part of the payment of compensation after notice to the
worker. If the worker does not cooperate for an additional 30
days after the notice, the insurer or self-insured employer may
deny the claim because of the worker's failure to cooperate. The
obligation of the insurer or self-insured employer to accept or
deny the claim within 90 days is suspended during the time of the
worker's noncooperation. After such a denial, the worker shall
not be granted a hearing or other proceeding under this chapter
on the merits of the claim unless the worker first requests and
establishes at an expedited hearing under ORS 656.291 that the
worker fully and completely cooperated with the investigation,
that the worker failed to cooperate for reasons beyond the
worker's control or that the investigative demands were
unreasonable. If the Administrative Law Judge finds that the
worker has not fully cooperated, the Administrative Law Judge
shall affirm the denial, and the worker's claim for injury shall
remain denied. If the Administrative Law Judge finds that the
worker has cooperated, or that the investigative demands were
unreasonable, the Administrative Law Judge shall set aside the
denial, order the reinstatement of interim compensation if
appropriate and remand the claim to the insurer or self-insured
employer to accept or deny the claim.
{ +
MISCELLANEOUS AMENDMENTS + }
SECTION 84. ORS 90.765 is amended to read:
90.765. (1) In addition to the prohibitions of ORS 90.385, a
landlord who rents a space for a manufactured dwelling or
floating home may not retaliate by increasing rent or decreasing
services, by serving a notice to terminate the tenancy or by
bringing or threatening to bring an action for possession after:
(a) The tenant has expressed an intention to complain to
agencies listed in ORS 90.385;
(b) The tenant has made any complaint to the landlord which is
in good faith;
(c) The tenant has filed or expressed intent to file a
complaint under { - ORS 659.045 - } { + section 2 of this
2001 Act + }; or
(d) The tenant has performed or expressed intent to perform any
other act for the purpose of asserting, protecting or invoking
the protection of any right secured to tenants under any federal,
state or local law.
(2) If the landlord acts in violation of subsection (1) of this
section the tenant is entitled to the remedies provided in ORS
90.710 (1) and has a defense in any retaliatory action against
the tenant for possession.
SECTION 85. ORS 192.501 is amended to read:
192.501. The following public records are exempt from
disclosure under ORS 192.410 to 192.505 unless the public
interest requires disclosure in the particular instance:
(1) Records of a public body pertaining to litigation to which
the public body is a party if the complaint has been filed, or if
the complaint has not been filed, if the public body shows that
such litigation is reasonably likely to occur. This exemption
does not apply to litigation which has been concluded, and
nothing in this subsection shall limit any right or opportunity
granted by discovery or deposition statutes to a party to
litigation or potential litigation;
(2) Trade secrets. 'Trade secrets,' as used in this section,
may include, but are not limited to, any formula, plan, pattern,
process, tool, mechanism, compound, procedure, production data,
or compilation of information which is not patented, which is
known only to certain individuals within an organization and
which is used in a business it conducts, having actual or
potential commercial value, and which gives its user an
opportunity to obtain a business advantage over competitors who
do not know or use it;
(3) Investigatory information compiled for criminal law
purposes. The record of an arrest or the report of a crime shall
be disclosed unless and only for so long as there is a clear need
to delay disclosure in the course of a specific investigation,
including the need to protect the complaining party or the
victim. Nothing in this subsection shall limit any right
constitutionally guaranteed, or granted by statute, to disclosure
or discovery in criminal cases. For purposes of this subsection,
the record of an arrest or the report of a crime includes, but is
not limited to:
(a) The arrested person's name, age, residence, employment,
marital status and similar biographical information;
(b) The offense with which the arrested person is charged;
(c) The conditions of release pursuant to ORS 135.230 to
135.290;
(d) The identity of and biographical information concerning
both complaining party and victim;
(e) The identity of the investigating and arresting agency and
the length of the investigation;
(f) The circumstances of arrest, including time, place,
resistance, pursuit and weapons used; and
(g) Such information as may be necessary to enlist public
assistance in apprehending fugitives from justice;
(4) Test questions, scoring keys, and other data used to
administer a licensing examination, employment, academic or other
examination or testing procedure before the examination is given
and if the examination is to be used again. Records establishing
procedures for and instructing persons administering, grading or
evaluating an examination or testing procedure are included in
this exemption, to the extent that disclosure would create a risk
that the result might be affected;
(5) Information consisting of production records, sale or
purchase records or catch records, or similar business records of
a private concern or enterprise, required by law to be submitted
to or inspected by a governmental body to allow it to determine
fees or assessments payable or to establish production quotas,
and the amounts of such fees or assessments payable or paid, to
the extent that such information is in a form which would permit
identification of the individual concern or enterprise. This
exemption does not include records submitted by long term care
facilities as defined in ORS 442.015 to the state for purposes of
reimbursement of expenses or determining fees for patient care.
Nothing in this subsection shall limit the use which can be made
of such information for regulatory purposes or its admissibility
in any enforcement proceeding;
(6) Information relating to the appraisal of real estate prior
to its acquisition;
(7) The names and signatures of employees who sign
authorization cards or petitions for the purpose of requesting
representation or decertification elections;
(8) Investigatory information relating to any complaint filed
under { - ORS 659.040 or 659.045 - } { + section 2 or 3 of
this 2001 Act + }, until such time as the complaint is resolved
under { - ORS 659.050 - } { + section 5 of this 2001 Act + },
or a final { - administrative determination is made under ORS
659.060 - } { + order is issued under section 8 of this 2001
Act + };
(9) Investigatory information relating to any complaint or
charge filed under ORS 243.676 and 663.180;
(10) Records, reports and other information received or
compiled by the Director of the Department of Consumer and
Business Services under ORS 697.732;
(11) Information concerning the location of archaeological
sites or objects as those terms are defined in ORS 358.905,
except if the governing body of an Indian tribe requests the
information and the need for the information is related to that
Indian tribe's cultural or religious activities. This exemption
does not include information relating to a site that is all or
part of an existing, commonly known and publicized tourist
facility or attraction;
(12) A personnel discipline action, or materials or documents
supporting that action;
(13) Information developed pursuant to ORS 496.004, 496.172 and
498.026 or ORS 496.192 and 564.100, regarding the habitat,
location or population of any threatened species or endangered
species;
(14) Writings prepared by or under the direction of faculty of
public educational institutions, in connection with research,
until publicly released, copyrighted or patented;
(15) Computer programs developed or purchased by or for any
public body for its own use. As used in this subsection, '
computer program' means a series of instructions or statements
which permit the functioning of a computer system in a manner
designed to provide storage, retrieval and manipulation of data
from such computer system, and any associated documentation and
source material that explain how to operate the computer program.
' Computer program' does not include:
(a) The original data, including but not limited to numbers,
text, voice, graphics and images;
(b) Analyses, compilations and other manipulated forms of the
original data produced by use of the program; or
(c) The mathematical and statistical formulas which would be
used if the manipulated forms of the original data were to be
produced manually;
(16) Data and information provided by participants to mediation
under ORS 36.256;
(17) Investigatory information relating to any complaint or
charge filed under ORS chapter 654, until a final administrative
determination is made or, if a citation is issued, until an
employer receives notice of any citation;
(18) Specific operational plans in connection with an
anticipated threat to individual or public safety for deployment
and use of personnel and equipment, prepared and used by a law
enforcement agency, if public disclosure thereof would endanger
the life or physical safety of a citizen or law enforcement
officer or jeopardize the law enforcement activity involved;
(19)(a) Audits or audit reports required of a
telecommunications carrier. As used in this paragraph, 'audit or
audit report' means any external or internal audit or audit
report pertaining to a telecommunications carrier, as defined in
ORS 133.721, or pertaining to a corporation having an affiliated
interest, as defined in ORS 759.010, with a telecommunications
carrier that is intended to make the operations of the entity
more efficient, accurate or compliant with applicable rules,
procedures or standards, that may include self-criticism and that
has been filed by the telecommunications carrier or affiliate
under compulsion of state law. 'Audit or audit report' does not
mean an audit of a cost study that would be discoverable in a
contested case proceeding and that is not subject to a protective
order; and
(b) Financial statements. As used in this paragraph, '
financial statement' means a financial statement of a
nonregulated corporation having an affiliated interest, as
defined in ORS 759.010, with a telecommunications carrier, as
defined in ORS 133.721;
(20) The residence address of an elector if authorized under
ORS 247.965 and subject to ORS 247.967;
(21) The following records, communications and information
submitted to a housing authority as defined in ORS 456.005 by
applicants for and recipients of loans, grants and tax credits:
(a) Personal and corporate financial statements and
information, including tax returns;
(b) Credit reports;
(c) Project appraisals;
(d) Market studies and analyses;
(e) Articles of incorporation, partnership agreements and
operating agreements;
(f) Commitment letters;
(g) Project pro forma statements;
(h) Project cost certifications and cost data;
(i) Audits;
(j) Project tenant correspondence requested to be confidential;
(k) Tenant files relating to certification; and
(L) Housing assistance payment requests;
(22) Records or information that, if disclosed, would allow a
person to:
(a) Gain unauthorized access to buildings or other property
used or owned by a public body;
(b) Identify those areas of structural or operational
vulnerability that would permit unlawful disruption to, or
interference with, the services provided by a public body; or
(c) Disrupt, interfere with or gain unauthorized access to
information processing, communication or telecommunication
systems, including the information contained therein, that are
used or operated by a public body;
(23) Records or information that would reveal the security
measures taken or recommended to be taken to protect:
(a) An officer or employee of a public body;
(b) Buildings or other property used or owned by a public body;
(c) Information processing, communication or telecommunication
systems, including the information contained therein, that are
used or operated by a public body; or
(d) Those operations of the Oregon State Lottery the security
of which are subject to study and evaluation under ORS 461.180
(6);
(24) Writings prepared by or under the direction of officials
of Oregon Health Sciences University about a person and the
person's potential interest in donating money or property to the
university or the person's actual donation unless disclosure is
authorized by the person; and
(25) Records of the name and address of a person who files a
report with or pays an assessment to a council, board or
commission created or organized under ORS chapter 576, 577, 578
or 579. As used in this subsection, 'council, board or commission
' does not include the advisory board established under ORS
576.810.
SECTION 86. ORS 651.120 is amended to read:
651.120. (1) The Commissioner of the Bureau of Labor and
Industries may:
(a) Enter any factory, mill, office, workshop, or public or
private works, at any reasonable time, for the purpose of
gathering facts such as are contemplated by ORS 279.355, 652.330,
653.045, 653.540 and { - 659.050 - } { + section 5 of this
2001 Act + }.
(b) Examine into the methods of protection from danger to
employees, and the sanitary conditions in and around such
buildings and places, and make a record thereof.
(2) No owner or occupant, or the respective agent, of any
factory, mill, office, or workshop, or public or private works,
shall refuse to allow an inspector or employee of the Bureau of
Labor and Industries to enter.
SECTION 86a. ORS 659.285 is amended to read:
659.285. (1) Employers shall not restrict access by authorized
persons or invited persons to any housing owned, rented or in any
manner controlled by the employer where employees are residing.
Authorized persons or invited persons must announce their
presence on the premises upon request. Authorized persons shall,
upon request, provide credentials identifying the person as
representing a qualifying agency or organization.
(2)(a) A person need not disclose to the employer the name of
the employee who issued the invitation prior to gaining access to
the housing, but an invited person must do so in order to assert
a right to access as an invited person in any judicial proceeding
concerning the right to access provided in this section. If an
invited person does not disclose the name of the inviter to the
employer, the employer may deny access until the invited person
obtains an order pursuant to ORS 659.297.
(b) Invited persons shall not be allowed to enter work areas or
to interfere with any employee's work or performance of duties on
behalf of the employer.
(3)(a) The employer shall { - insure - } { + ensure + } to
the employees residing in housing owned or controlled by an
employer and occupied by employees the availability of:
(A) A reasonably accessible operating telephone, whether pay or
private, available 24 hours a day for emergency use; and
(B) An operating telephone, whether pay or private, located
within two miles of the housing, accessible and available so as
to provide reasonable opportunity for private use by employees.
(b) An employer may request a waiver from the requirements of
paragraph (a) of this subsection if the employer demonstrates to
the bureau that:
(A) Compliance would constitute an unreasonable hardship for
the employer; and
(B) The camp meets any requirements established by the
Department of Consumer and Business Services for an emergency
medical plan.
{ + (4) A complaint may not be filed under section 2 of this
2001 Act for violations of this section. + }
SECTION 87. ORS 659.295 is amended to read:
659.295. (1) It is an unlawful employment practice for an
employer to expel or evict from housing referred to in ORS
659.280 to 659.295 or to discharge, demote, suspend from
employment or in any other manner discriminate or retaliate
against an employee or any member of the employee's household for
the reason that the employee or any member of the employee's
household has:
(a) Reported or complained concerning possible violations of
ORS 659.280 to 659.295; or
(b) Conferred with or invited to residential areas, any
authorized person or invited person.
{ - (2) Complaints may be filed with the Commissioner of the
Bureau of Labor and Industries in the same manner as provided in
ORS 659.040 to 659.110 and 659.121 for the enforcement of an
unlawful employment practice. Violation of ORS 659.280 to 659.295
subjects the violator to the same civil and criminal remedies and
penalties as provided in ORS 659.110 and 659.121. A person denied
access under ORS 659.285 is a person aggrieved for purposes of
ORS 659.121. - }
{ + (2) An employee or any member of the employee's household
may file a complaint under section 2 of this 2001 Act for
violations of this section and may bring a civil action under
section 15 of this 2001 Act and recover the relief as provided by
section 15 (1) and (3) of this 2001 Act. + }
SECTION 88. ORS 659.492 is amended to read:
659.492. { - (1) - } A covered employer who denies family
leave to an eligible employee in the manner required by ORS
659.470 to 659.494 commits an unlawful employment practice.
{ - (2) Any employee claiming to be aggrieved by a violation
of ORS 659.470 to 659.494 may file a complaint with the
Commissioner of the Bureau of Labor and Industries in the manner
provided by ORS 659.040. The Commissioner of the Bureau of Labor
and Industries shall enforce the provisions of ORS 659.470 to
659.494 in the manner provided in ORS 659.010 to 659.110 for the
enforcement of other unlawful employment practices. - }
{ - (3) Any person claiming to be aggrieved by a violation of
ORS 659.470 to 659.494 may bring a civil action in the manner
provided by ORS 659.121 (1). - }
{ +
TORT CLAIMS ACT + }
SECTION 89. ORS 30.275 is amended to read:
30.275. (1) No action arising from any act or omission of a
public body or an officer, employee or agent of a public body
within the scope of ORS 30.260 to 30.300 shall be maintained
unless notice of claim is given as required by this section.
(2) Notice of claim shall be given within the following
applicable period of time, not including the period, not
exceeding 90 days, during which the person injured is unable to
give the notice because of the injury or because of minority,
incompetency or other incapacity:
(a) For wrongful death, within one year after the alleged loss
or injury.
(b) For all other claims, within 180 days after the alleged
loss or injury.
(3) Notice of claim required by this section is satisfied by:
(a) Formal notice of claim as provided in subsections (4) and
(5) of this section;
(b) Actual notice of claim as provided in subsection (6) of
this section;
(c) Commencement of an action on the claim by or on behalf of
the claimant within the applicable period of time provided in
subsection (2) of this section; or
(d) Payment of all or any part of the claim by or on behalf of
the public body at any time.
(4) Formal notice of claim is a written communication from a
claimant or representative of a claimant containing:
(a) A statement that a claim for damages is or will be asserted
against the public body or an officer, employee or agent of the
public body;
(b) A description of the time, place and circumstances giving
rise to the claim, so far as known to the claimant; and
(c) The name of the claimant and the mailing address to which
correspondence concerning the claim may be sent.
(5) Formal notice of claim shall be given by mail or personal
delivery:
(a) If the claim is against the state or an officer, employee
or agent thereof, to the office of the Director of the Oregon
Department of Administrative Services.
(b) If the claim is against a local public body or an officer,
employee or agent thereof, to the public body at its principal
administrative office, to any member of the governing body of the
public body, or to an attorney designated by the governing body
as its general counsel.
(6) Actual notice of claim is any communication by which any
individual to whom notice may be given as provided in subsection
(5) of this section or any person responsible for administering
tort claims on behalf of the public body acquires actual
knowledge of the time, place and circumstances giving rise to the
claim, where the communication is such that a reasonable person
would conclude that a particular person intends to assert a claim
against the public body or an officer, employee or agent of the
public body. A person responsible for administering tort claims
on behalf of a public body is a person who, acting within the
scope of the person's responsibility, as an officer, employee or
agent of a public body or as an employee or agent of an insurance
carrier insuring the public body for risks within the scope of
ORS 30.260 to 30.300, engages in investigation, negotiation,
adjustment or defense of claims within the scope of ORS 30.260 to
30.300, or in furnishing or accepting forms for claimants to
provide claim information, or in supervising any of those
activities.
(7) In an action arising from any act or omission of a public
body or an officer, employee or agent of a public body within the
scope of ORS 30.260 to 30.300, the plaintiff has the burden of
proving that notice of claim was given as required by this
section.
(8) Except as provided in ORS 12.120 and 12.135 { + and
section 13 of this 2001 Act + }, but notwithstanding any other
provision of ORS chapter 12 or other statute providing a
limitation on the commencement of an action, an action arising
from any act or omission of a public body or an officer, employee
or agent of a public body within the scope of ORS 30.260 to
30.300 shall be commenced within two years after the alleged loss
or injury.
{ +
REPEALED STATUTES + }
SECTION 90. { + ORS 30.680, 659.010, 659.038, 659.040,
659.045, 659.050, 659.055, 659.060, 659.070, 659.085, 659.095,
659.121 and 659.435 are repealed. + }
{ +
APPLICABILITY + }
SECTION 91. { + (1) Sections 1 to 15, 22, 23, 25, 26, 28, 31
to 34, 65 and 66 of this 2001 Act, the repeal of statutes by
section 90 of this 2001 Act and the amendments to statutes by
sections 16 to 21, 24, 27, 29, 30, 35 to 44, 46 to 64 and 67 to
89 of this 2001 Act apply only to complaints filed under section
2 or 3 of this 2001 Act on or after the effective date of this
2001 Act and to civil actions commenced under section 15 of this
2001 Act on or after the effective date of this 2001 Act.
(2) Notwithstanding the repeal of statutes by section 90 of
this 2001 Act and the amendments to statutes by sections 16 to
21, 24, 27, 29, 30, 35 to 44, 46 to 64 and 67 to 89 of this 2001
Act, all complaints filed under ORS 659.040 (1999 Edition) or
659.045 (1999 Edition), and civil actions commenced under ORS
659.121 (1999 Edition), shall continue to be governed by the
statutes in effect immediately before the effective date of this
2001 Act, unless otherwise specifically provided by law.
(3) The amendments to ORS 659.530 by section 45 of this 2001
Act apply only to unlawful practices that occur on or after the
effective date of this 2001 Act. Any unlawful practice under ORS
659.505 to 659.545 that occurs before the effective date of this
2001 Act shall continue to be governed by the statute of
limitations provided by ORS 659.530 (1999 Edition). + }
{ +
UNIT AND SECTION CAPTIONS + }
SECTION 92. { + The unit and section captions used in this
2001 Act are provided only for the convenience of the reader and
do not become part of the statutory law of this state or express
any legislative intent in the enactment of this 2001 Act. + }
----------