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 550
Senate Bill 396
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Commissioner Jack Roberts
for Bureau of Labor and Industries)
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 as
introduced.
Abolishes Bureau of Labor and Industries. Transfers duties and
functions to Director of Department of Consumer and Business
Services.
Becomes operative January 1, 2003.
A BILL FOR AN ACT
Relating to Bureau of Labor and Industries; creating new
provisions; amending ORS 25.424, 171.130, 171.133, 171.735,
173.130, 181.557, 181.560, 181.850, 182.040, 183.457, 240.321,
244.020, 244.050, 249.002, 249.056, 254.005, 260.005, 260.068,
260.174, 279.023, 279.342, 279.348, 279.350, 279.354, 279.355,
279.356, 279.357, 279.359, 279.361, 279.363, 279.365, 292.313,
292.430, 292.930, 293.490, 329.850, 329.965, 344.745, 344.753,
344.757, 345.240, 351.070, 399.235, 651.050, 651.110, 651.120,
651.185, 651.990, 652.125, 652.320, 652.330, 652.332, 652.400,
652.405, 652.420, 652.425, 652.430, 652.435, 652.440, 652.445,
652.710, 652.900, 653.010, 653.040, 653.055, 653.070, 653.307,
653.370, 653.515, 653.540, 654.062, 654.251, 657.665, 658.005,
658.015, 658.405, 658.407, 658.413, 658.415, 658.417, 658.425,
658.440, 658.445, 658.450, 658.453, 658.455, 658.475, 658.480,
658.485, 658.705, 658.730, 658.750, 658.805, 658.815, 659.010,
659.060, 659.100, 659.540, 659.550, 660.010, 660.060, 660.110,
660.137, 660.170, 660.205, 705.105, 705.115, 705.125, 705.135
and 743.560 and section 5, chapter 686, Oregon Laws 1989, and
section 9, chapter 849, Oregon Laws 1999; repealing ORS
651.010, 651.020, 651.030, 651.040, 651.060, 651.160, 651.170,
658.827 and 658.830; and appropriating money.
Be It Enacted by the People of the State of Oregon:
{ +
BUREAU OF LABOR AND INDUSTRIES ABOLISHED + }
SECTION 1. { + The Bureau of Labor and Industries is
abolished. On the operative date of this 2001 Act, the tenure of
office of the Commissioner of the Bureau of Labor and Industries
shall cease. + }
SECTION 2. { + ORS 651.010, 651.020, 651.030, 651.040,
651.060, 651.160, 651.170, 658.827 and 658.830 are repealed. + }
{ +
DEPARTMENT OF CONSUMER AND BUSINESS SERVICES + }
{ +
(Transfer Provisions) + }
SECTION 3. { + There are imposed upon, transferred to and
vested in the Director of the Department of Consumer and Business
Services all the duties, functions and powers of the Commissioner
of the Bureau of Labor and Industries or the Bureau of Labor and
Industries. + }
SECTION 4. { + The Commissioner of the Bureau of Labor and
Industries and the Bureau of Labor and Industries, whose duties,
functions and powers are transferred by this 2001 Act to the
Director of the Department of Consumer and Business Services,
shall deliver to the director all records and property within the
jurisdiction of the commissioner or bureau, and shall transfer
all employees of the bureau to the director. The director shall
take possession of such property, and shall take charge of such
employees and employ them in the exercise of their duties,
functions and powers assigned or transferred by this 2001 Act,
without reduction of compensation but subject to change or
termination of employment or compensation as provided by law. Any
dispute as to transfer of property and employees under this
section shall be resolved by the Governor, and the Governor's
decision is final. + }
SECTION 5. { + All unexpended moneys appropriated or otherwise
available to the Commissioner of the Bureau of Labor and
Industries or to the Bureau of Labor and Industries for the
purposes of any of the duties, functions or powers transferred by
this 2001 Act to the Director of the Department of Consumer and
Business Services are appropriated to the director. + }
SECTION 6. { + Any proceeding, action, prosecution or other
business or matter undertaken or commenced before the operative
date of this 2001 Act by the Commissioner of the Bureau of Labor
and Industries or the Bureau of Labor and Industries, with
respect to the duties, functions or powers transferred to the
Director of the Department of Consumer and Business Services by
this 2001 Act, and still pending on the operative date of this
2001 Act, may be conducted and completed by the director in the
same manner, under the same terms and conditions and with the
same effect as though undertaken, conducted or completed by the
commissioner or bureau before the transfer. + }
SECTION 7. { + Nothing in this 2001 Act relieves any person of
any obligation with respect to a tax, fee, fine or other charge,
interest, penalty, forfeiture or other liability, duty or
obligation. + }
SECTION 8. { + The Director of the Department of Consumer and
Business Services, to whom duties, functions and powers are
assigned or transferred by this 2001 Act, is considered to be a
continuation of the Commissioner of the Bureau of Labor and
Industries or the Bureau of Labor and Industries with respect to
such duties, functions or powers, and not a new authority, for
the purpose of succession to all rights and obligations of the
commissioner or bureau as constituted at the time of such
assignment or transfer, except as otherwise provided in this 2001
Act, with the same force and effect as if such duties, functions
and powers had not been assigned or transferred. + }
SECTION 9. { + (1) Whenever, in any law or resolution of the
Legislative Assembly or in any rule, document, record or
proceeding authorized thereby, reference is made to the
Commissioner of the Bureau of Labor and Industries or the Bureau
of Labor and Industries, or employee thereof, whose duties,
functions or powers are assigned or transferred by this 2001 Act,
except as otherwise provided in this 2001 Act, such reference is
considered to describe the Director of the Department of Consumer
and Business Services or employee thereof.
(2) The lawful rules of the Commissioner of the Bureau of Labor
and Industries or the Bureau of Labor and Industries with respect
to duties, functions or powers assigned or transferred by this
2001 Act continue in effect until superseded or rescinded by
rules lawfully adopted by the Director of the Department of
Consumer and Business Services. + }
SECTION 10. { + (1) Any reference in the statutes to the
duties, functions and powers of the Commissioner of the Bureau of
Labor and Industries or the Bureau of Labor and Industries shall
be considered a reference to the Director of the Department of
Consumer and Business Services or to the Department of Consumer
and Business Services.
(2) Any references in the statutes to the Bureau of Labor and
Industries Account shall be considered a reference to the
Consumer and Business Services Fund.
(3) For the purpose of harmonizing and clarifying statute
sections published in Oregon Revised Statutes, the Legislative
Counsel may substitute for words designating the Commissioner of
the Bureau of Labor and Industries or the Bureau of Labor and
Industries, wherever they occur in Oregon Revised Statutes, other
words designating the Director of the Department of Consumer and
Business Services or the Department of Consumer and Business
Services.
(4) For the purpose of harmonizing and clarifying statute
sections published in Oregon Revised Statutes, the Legislative
Counsel may substitute for words designating the Bureau of Labor
and Industries Account, wherever they occur in Oregon Revised
Statutes, other words designating the Consumer and Business
Services Fund. + }
SECTION 11. ORS 705.105 is amended to read:
705.105. (1) The Department of Consumer and Business Services
is created.
(2) The department shall be under the supervision and control
of a director who shall be responsible for the functions of the
department.
(3) Subject to confirmation by the Senate in the manner
provided in ORS 171.562 and 171.565, the Governor shall appoint
the director, who shall hold office at the pleasure of the
Governor. The person appointed as director shall be well
qualified by training and experience to perform the functions of
the office.
(4) The director shall receive such salary as is provided by
law or, if not so provided, as is fixed by the Governor.
(5) With respect to the duties, functions and powers imposed
upon the director under the insurance and workers' compensation
laws, the director may be designated by the title of Insurance
Commissioner.
{ + (6) With respect to the duties, functions and powers
imposed upon the Director of the Department of Consumer and
Business Services under ORS 25.424, 279.342, 279.348 to 279.380,
329.965, 344.745, 344.753, 344.757, 399.235, 654.062, 657.665,
659.297 and 659.340, ORS chapters 651, 652, 653, 658, 659 and 660
and section 5, chapter 686, Oregon Laws 1989, the director may be
designated by the title of Labor Commissioner. + }
{ - (6) - } { + (7) + } Before entering upon the functions
of office, the director shall give to the state a fidelity bond
with one or more corporate sureties authorized to do business in
this state, or an irrevocable letter of credit issued by an
insured institution, as defined in ORS 706.008, in either case in
the penal sum fixed by the Governor.
{ - (7) - } { + (8) + } The department shall have an
official seal. Any certificate or other document or paper
executed by the department pursuant to its authority and sealed
with its seal, and all copies of papers certified by it and
authenticated by the seal, shall in all cases be evidence equally
and in like manner as the original and shall have the same force
and effect as would the original in any suit or proceeding in any
court in this state.
SECTION 12. ORS 705.115 is amended to read:
705.115. (1) The Director of the Department of Consumer and
Business Services, with the approval of the Governor, shall
organize and reorganize the Department of Consumer and Business
Services in the manner the director considers necessary to
conduct the work of the department properly.
(2) The functions of the department may be divided into
administrative divisions or staff offices. Each division or
office shall be under the supervision of a person appointed by
the director, with the approval of the Governor. The appointee
shall serve at the pleasure of the director, not be subject to
the State Personnel Relations Law and be well qualified by
technical training and experience in the functions the appointee
is to perform.
{ + (3) The Bureau of Labor is established as a division of
the department. The bureau shall be supervised by the Labor
Commissioner. The director may organize or reorganize the bureau
in any manner the director considers necessary to conduct the
work of the department. + }
SECTION 13. ORS 705.125 is amended to read:
705.125. (1) With the approval of the Governor, the Director of
the Department of Consumer and Business Services may appoint a
deputy director who shall serve at the pleasure of the director,
not be subject to the State Personnel Relations Law and have full
authority to act for the director, subject to the control of the
director. The appointment of the deputy director shall be by
written order filed with the Secretary of State.
{ + (2) With the approval of the Governor, the director may
appoint the Labor Commissioner who shall serve at the pleasure of
the director, not be subject to the State Personnel Relations Law
and have full authority to supervise the Bureau of Labor. + }
{ - (2) - } { + (3) + } Except as provided in ORS 705.115
and { - subsection (1) - } { + subsections (1) and (2) + } of
this section, the director, subject to applicable provisions of
the State Personnel Relations Law, shall appoint all subordinate
officers and employees of the Department of Consumer and Business
Services, prescribe their functions and fix their compensation.
SECTION 14. ORS 705.135 is amended to read:
705.135. (1) The Director of the Department of Consumer and
Business Services may delegate any duties, powers and functions
within the Department of Consumer and Business Services, under
such conditions as the director deems appropriate.
{ + (2) The director may delegate the duties, powers and
functions of the chairperson of the State Apprenticeship and
Training Council and of the secretary and executive officer of
the Wage and Hour Commission to the Labor Commissioner. + }
{ - (2) - } { + (3) + } In accordance with ORS 183.310 to
183.550, and in addition to other rulemaking authority prescribed
by law, the director may adopt rules for the purpose of carrying
out the functions of the department.
{ - (3) - } { + (4) + } The director shall adopt rules
governing circumstances under which employees or any category of
employees of the department may or may not be or become indebted
to or hold any interest in any entity subject to regulation by
the department. The rules shall provide for reporting any such
indebtedness or interest and for preventing or resolving possible
conflicts of interest arising therefrom.
{ +
CONFORMING CHANGES + }
SECTION 15. 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 - } { + Director of the
Department of Consumer and Business Services + } in the same
manner as provided in ORS 659.040 to 659.110 and 659.121 for the
enforcement of an unlawful employment practice. The
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } may { + , + } in addition to the remedies provided
for under ORS chapter 659, 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 16. ORS 171.130 is amended to read:
171.130. (1) At any time in advance of any regular or special
session of the Legislative Assembly fixed by the Legislative
Counsel Committee, or at any time in advance of a special session
as may be fixed by joint rules of both houses of the Legislative
Assembly, the following may file a proposed legislative measure
with the Legislative Counsel:
(a) Members who will serve in the session and members-elect.
(b) Interim and statutory committees of the Legislative
Assembly.
(2) On or before December 15 of the year preceding a regular
legislative session, or at any time in advance of a special
session as may be fixed by joint rules of both houses of the
Legislative Assembly, the following may file a proposed
legislative measure with the Legislative Counsel:
(a) The Oregon Department of Administrative Services, to
implement the fiscal recommendations of the Governor contained in
the budget report of the Governor.
(b) The person who will serve as Governor during the session.
(c) The Secretary of State, the State Treasurer, the Attorney
General { - , the Commissioner of the Bureau of Labor and
Industries - } and the Superintendent of Public Instruction.
(3) Notwithstanding subsection (2) of this section, a statewide
elected official who initially assumes office in January of an
odd-numbered year may submit proposed measures for introduction
by members or committees of the Legislative Assembly until the
calendar day designated by rules of either house of the
Legislative Assembly. The exemption granted by this subsection to
a newly elected Governor does not apply to state agencies in the
executive branch.
(4) On or before December 15 of the year preceding a regular
legislative session, a state agency may file a proposed
legislative measure with the Legislative Counsel through a member
or committee of the Legislative Assembly.
(5) The Legislative Counsel shall order each measure filed
pursuant to subsections (1) to (4) of this section prepared for
printing and may order the measure printed. If the person filing
a measure specifically requests in writing that the measure be
made available for distribution, the Legislative Counsel shall
order the measure printed and shall make copies of the printed
measure available for distribution before the beginning of the
session to members and members-elect and to others upon request.
(6) Copies of all measures filed and prepared for printing or
printed pursuant to this section shall be forwarded by the
Legislative Counsel to the chief clerk of the house designated by
the person filing the measure for introduction.
(7) The costs of carrying out this section shall be paid out of
the money appropriated for the expenses of that session of the
Legislative Assembly for which the measure is to be printed.
(8) The Legislative Counsel Committee shall adopt rules
necessary to accomplish the purpose of this section.
(9) This section does not affect any law or any rule of the
Legislative Assembly or either house thereof relating to the
introduction of legislative measures.
SECTION 17. ORS 171.133 is amended to read:
171.133. (1) A state agency shall not cause a bill or measure
to be introduced before the Legislative Assembly if the bill or
measure has not been approved by the Governor.
(2) As used in ORS 171.130 and this section, 'state agency '
means every state agency whose costs are paid wholly or in part
from funds held in the State Treasury, except the Legislative
Assembly, the courts and their officers and committees, and
except the Secretary of State, the State Treasurer, the Attorney
General { - , the Commissioner of the Bureau of Labor and
Industries - } and the Superintendent of Public Instruction.
SECTION 18. ORS 171.735 is amended to read:
171.735. Provided such persons are not registered with the
Oregon Government Standards and Practices Commission, ORS 171.740
and 171.745 do not apply to the following persons:
(1) News media or their employees or agents, who in the
ordinary course of business publish or broadcast news items,
editorials or other comments or paid advertisements which
directly or indirectly urge legislative action if such persons
engage in no other activities in connection with such legislative
action.
(2) Any legislative official acting in an official capacity.
(3) Any individual who receives no additional consideration for
lobbying and who limits lobbying activities solely to formal
appearances to give testimony before public sessions of
committees of the Legislative Assembly, or public hearings of
state agencies, and who, if the individual testifies, registers
an appearance in the records of such committees or agencies.
(4) A person who spends not more than 24 hours during any
calendar quarter lobbying, excluding travel time, and who does
not spend an amount in excess of $100 lobbying during any
calendar quarter excluding the cost of personal travel, meals and
lodging. Once either the $100 or 24-hour amount is exceeded by
an individual or by a corporation, association, organization or
other group, the individual, corporation, association,
organization or other group must comply with the requirements of
ORS 171.740 to 171.756 and must register with the Oregon
Government Standards and Practices Commission under ORS 171.740
within three working days after exceeding either the expenditure
or the time limit, or both.
(5) The Governor, Executive Assistant to the Governor, Legal
Counsel to the Governor, Secretary of State, Deputy Secretary of
State appointed pursuant to ORS 177.040, State Treasurer, Chief
Deputy State Treasurer appointed pursuant to ORS 178.060,
Attorney General, Deputy Attorney General appointed pursuant to
ORS 180.130, Superintendent of Public Instruction { - ,
Commissioner of the Bureau of Labor and Industries - } and any
judge.
SECTION 19. ORS 173.130 is amended to read:
173.130. (1) The Legislative Counsel shall prepare or assist in
the preparation of legislative measures when requested to do so
by a member or committee of the Legislative Assembly.
(2) Upon the written request of a state agency, the Legislative
Counsel may prepare or assist in the preparation of legislative
measures that have been approved for preparation in writing by
the Governor or the Governor's designated representative. The
Legislative Counsel may also prepare or assist in the preparation
of legislative measures that are requested in writing by the
Secretary of State, the State Treasurer, the Attorney General
{ - , the Commissioner of the Bureau of Labor and Industries - }
or the Superintendent of Public Instruction. In accordance with
ORS 283.110, the Legislative Counsel may charge the agency or
officer for the services performed.
(3) The Legislative Counsel shall give such consideration to
and service concerning any measure or other legislative matter
before the Legislative Assembly that is requested by the House of
Representatives, the Senate or any committee of the Legislative
Assembly that has the measure or other matter under
consideration.
(4) The Legislative Counsel, pursuant to the policies and
directions of the Legislative Counsel Committee and in conformity
with any applicable rules of the House of Representatives or
Senate, shall perform or cause to be performed research service
requested by any member or committee of the Legislative Assembly
in connection with the performance of legislative functions.
Research assignments made by joint or concurrent resolution of
the Legislative Assembly shall be given priority over other
research requests received by the Legislative Counsel. The
research service to be performed includes the administrative
services incident to the accomplishment of the research requests
or assignments.
(5) The Legislative Counsel shall give an opinion in writing
upon any question of law in which the Legislative Assembly or any
member or committee of the Legislative Assembly may have an
interest when the Legislative Assembly or any member or committee
of the Legislative Assembly requests the opinion. The Legislative
Counsel shall not give opinions or other legal advice to persons
or agencies other than the Legislative Assembly and members and
committees of the Legislative Assembly.
(6) The Legislative Counsel may enter into contracts to carry
out the functions of the Legislative Counsel.
SECTION 20. ORS 181.557 is amended to read:
181.557. When a designated agency requests criminal offender
information about an individual from the Department of State
Police under ORS 181.555 (1) for agency employment, licensing or
other permissible purposes, the agency shall provide
documentation that the individual:
(1) Gave prior written consent for the agency to make a
criminal offender record check through the department; or
(2) Has received written notice from the agency that a criminal
offender record check may be made through the department. Notice
shall be provided prior to the time the request is made and shall
include:
(a) Notice of the manner in which the individual may be
informed of the procedures adopted under ORS 181.555 (3) for
challenging inaccurate criminal offender information; and
(b) Notice of the manner in which the individual may become
informed of rights, if any, under Title VII of the Civil Rights
Act of 1964, and notice that discrimination by an employer on the
basis of arrest records alone may violate federal civil rights
law and that the individual may obtain further information by
contacting the { - Bureau of Labor and Industries - } { +
Department of Consumer and Business Services + }.
SECTION 21. ORS 181.560 is amended to read:
181.560. (1) When a person or agency, other than a criminal
justice agency or a law enforcement agency, pursuant to ORS
181.555 (2), requests from the Department of State Police
criminal offender information regarding an individual, if the
department's compiled criminal offender information on the
individual contains records of any conviction, or of any arrest
less than one year old on which there has been no acquittal or
dismissal, the department shall respond to the request as
follows:
(a) The department shall send prompt written notice of the
request to the individual about whom the request has been made.
The department shall address the notice to the individual's last
address known to the department and to the individual's address,
if any, supplied by the person making the request. However, the
department has no obligation to insure that the addresses are
current. The notice shall state that the department has received
a request for information concerning the individual and shall
identify the person or agency making the request. Notice to the
individual about whom the request is made shall include:
(A) A copy of all information to be supplied to the person or
agency making the request;
(B) Notice to the individual of the manner in which the
individual may become informed of the procedures adopted under
ORS 181.555 (3) for challenging inaccurate criminal offender
information; and
(C) Notice to the individual of the manner in which the
individual may become informed of rights, if any, under Title VII
of the Civil Rights Act of 1964, and notice that discrimination
by an employer on the basis of arrest records alone may violate
federal civil rights law and that the individual may obtain
further information by contacting the { - Bureau of Labor and
Industries - } { + Department of Consumer and Business
Services + }.
(b) Fourteen days after sending notice to the individual about
whom the request is made, the Department { + of State Police + }
shall deliver to the person or agency making the request the
following information if held regarding any convictions and any
arrests less than one year old on which the records show no
acquittal or dismissal:
(A) Date of arrest.
(B) Offense for which arrest was made.
(C) Arresting agency.
(D) Court of origin.
(E) Disposition, including sentence imposed, date of parole if
any and parole revocations if any.
(c) The Department { + of State Police + } shall deliver only
the data authorized under paragraph (b) of this subsection.
(d) The Department { + of State Police + } shall inform the
person or agency requesting the criminal offender information
that the department's response is being furnished only on the
basis of similarity of names and description and that
identification is not confirmed by fingerprints.
(2) If the Department { + of State Police + } holds no
criminal offender information on an individual, or the
department's compiled criminal offender information on the
individual consists only of nonconviction data, the department
shall respond to a request under this section that the individual
has no criminal record and shall release no further information.
(3) The Department { + of State Police + } shall keep a record
of all persons and agencies making inquiries under ORS 181.555
(2) and shall keep a record of the names of the individuals about
whom such persons or agencies are inquiring, regardless of
whether the department has compiled any criminal offender
information on the individuals. These records shall be public
records and shall be available for inspection under ORS 192.410
to 192.505.
(4) Nothing in ORS 181.066, 181.540, 181.555 or this section is
intended to prevent the Department { + of State Police + } from
charging a reasonable fee, pursuant to ORS 192.440, for
responding to a criminal offender information inquiry or for
making information available under ORS 181.555 or this section.
SECTION 22. ORS 181.850 is amended to read:
181.850. (1) No law enforcement agency of the State of Oregon
or of any political subdivision of the state shall use agency
moneys, equipment or personnel for the purpose of detecting or
apprehending persons whose only violation of law is that they are
persons of foreign citizenship residing in the United States in
violation of federal immigration laws.
(2) Notwithstanding subsection (1) of this section, a law
enforcement agency may exchange information with the United
States Immigration and Naturalization Service in order to:
(a) Verify the immigration status of a person if the person is
arrested for any criminal offense; or
(b) Request criminal investigation information with reference
to persons named in service records.
(3) For purposes of subsection (1) of this section, the
{ - Bureau of Labor and Industries - } { + Department of
Consumer and Business Services + } is not a law enforcement
agency.
SECTION 23. ORS 182.040 is amended to read:
182.040. (1) All state boards and commissions that are
supported by fees, fines, licenses or taxes or other forms of
income not derived from a direct tax on tangible property shall
pay the various counties of the State of Oregon the same fees
required of others for services rendered.
(2) ORS 182.040 to 182.060 do not apply to:
(a) Except for those fees required in ORS 205.320, services
rendered for the { - Bureau of Labor and Industries - }
{ + Department of Consumer and Business Services + } on wage
claims assigned to it for collection.
(b) Any of the provisions or requirements of ORS 21.310, 52.410
to 52.440, 156.160, 205.360 and 205.370.
SECTION 24. ORS 183.457 is amended to read:
183.457. (1) Notwithstanding ORS 8.690, 9.160 and 9.320, and
unless otherwise authorized by another law, a person
participating in a contested case hearing conducted by an agency
described in this subsection may be represented by an attorney or
by an authorized representative subject to the provisions of
subsection (2) of this section. The Attorney General shall
prepare model rules for proceedings with lay representation that
do not have the effect of precluding lay representation. No rule
adopted by a state agency shall have the effect of precluding lay
representation. The agencies before which an authorized
representative may appear are:
(a) The State Landscape Contractors Board in the administration
of the Landscape Contractors Law.
(b) The Office of Energy and the Energy Facility Siting
Council.
(c) The Environmental Quality Commission and the Department of
Environmental Quality.
(d) The Department of Consumer and Business Services for
proceedings in which an insured appears pursuant to ORS 737.505.
(e) The Department of Consumer and Business Services and any
other agency for the purpose of proceedings to enforce the state
building code, as defined by ORS 455.010.
{ + (f) The Department of Consumer and Business Services for
proceedings under ORS 279.348 to 279.380 and ORS chapters 652,
653, 658, 659 and 660. + }
{ - (f) - } { + (g) + } The State Fire Marshal in the
Department of State Police.
{ - (g) - } { + (h) + } The Division of State Lands for
proceedings regarding the issuance or denial of fill or removal
permits under ORS 196.800 to 196.825.
{ - (h) - } { + (i) + } The Public Utility Commission.
{ - (i) - } { + (j) + } The Water Resources Commission and
the Water Resources Department.
{ - (j) - } { + (k) + } The Land Conservation and
Development Commission and the Department of Land Conservation
and Development.
{ - (k) - } { + (L) + } The State Department of
Agriculture, for purposes of hearings under ORS 215.705.
{ - (L) The Bureau of Labor and Industries. - }
(2) A person participating in a contested case hearing as
provided in subsection (1) of this section may appear by an
authorized representative if:
(a) The agency conducting the contested case hearing has
determined that appearance of such a person by an authorized
representative will not hinder the orderly and timely development
of the record in the type of contested case hearing being
conducted;
(b) The agency conducting the contested case hearing allows, by
rule, authorized representatives to appear on behalf of such
participants in the type of contested case hearing being
conducted; and
(c) The officer presiding at the contested case hearing may
exercise discretion to limit an authorized representative's
presentation of evidence, examination and cross-examination of
witnesses, or presentation of factual arguments to ensure the
orderly and timely development of the hearing record, and shall
not allow an authorized representative to present legal arguments
except to the extent authorized under subsection (3) of this
section.
(3) The officer presiding at a contested case hearing in which
an authorized representative appears under the provisions of this
section may allow the authorized representative to present
evidence, examine and cross-examine witnesses, and make arguments
relating to the:
(a) Application of statutes and rules to the facts in the
contested case;
(b) Actions taken by the agency in the past in similar
situations;
(c) Literal meaning of the statutes or rules at issue in the
contested case;
(d) Admissibility of evidence; and
(e) Proper procedures to be used in the contested case hearing.
(4) Upon judicial review, no limitation imposed by an agency
presiding officer on the participation of an authorized
representative shall be the basis for reversal or remand of
agency action unless the limitation resulted in substantial
prejudice to a person entitled to judicial review of the agency
action.
(5) For the purposes of this section, 'authorized
representative' means a member of a participating partnership, an
authorized officer or regular employee of a participating
corporation, association or organized group, or an authorized
officer or employee of a participating governmental authority
other than a state agency.
SECTION 25. Section 9, chapter 849, Oregon Laws 1999, is
amended to read:
{ + Sec. 9. + } (1) Except as provided in this section, all
agencies must use hearing officers assigned from the Hearing
Officer Panel established under section 3 { + , chapter 849,
Oregon Laws 1999, + } { - of this 1999 Act - } to conduct
contested case hearings, without regard to whether those hearings
are subject to the procedural requirements for contested case
hearings.
(2) The following agencies need not use hearing officers
assigned from the panel:
(a) The Department of Education, the State Board of Education
and the Superintendent of Public Instruction.
(b) Employment Appeals Board.
(c) Employment Relations Board.
(d) Public Utility Commission.
{ - (e) Bureau of Labor and Industries and the Commissioner
of the Bureau of Labor and Industries. - }
{ - (f) - } { + (e) + } Land Conservation and Development
Commission.
{ - (g) - } { + (f) + } Land Use Board of Appeals.
{ - (h) - } { + (g) + } Department of Revenue.
{ - (i) - } { + (h) + } Local government boundary
commissions created pursuant to ORS 199.425 or 199.430.
{ - (j) - } { + (i) + } State Accident Insurance Fund
Corporation.
{ - (k) - } { + (j) + } Psychiatric Security Review Board.
{ - (L) - } { + (k) + } State Board of Parole and
Post-Prison Supervision.
{ - (m) - } { + (L) + } Department of Corrections.
{ - (n) - } { + (m) + } Energy Facility Siting Council.
{ - (o) - } { + (n) + } Vocational Rehabilitation Division.
{ - (p) - } { + (o) + } Secretary of State.
{ - (q) - } { + (p) + } State Treasurer.
{ - (r) - } { + (q) + } Attorney General.
{ - (s) - } { + (r) + } Fair Dismissal Appeals Board.
{ - (t) - } { + (s) + } Department of State Police.
{ - (u) - } { + (t) + } Oregon Youth Authority.
{ - (v) - } { + (u) + } Boards of stewards appointed by the
Oregon Racing Commission.
{ - (w) - } { + (v) + } The Department of Higher Education
and the institutions of higher education listed in ORS 352.002.
{ - (x) - } { + (w) + } The Governor.
{ - (y) - } { + (x) + } State Land Board.
(3) The Workers' Compensation Board is exempt from using
hearing officers assigned from the panel for any hearing
conducted by the board under ORS chapters 147, 654 and 656. The
Director of the Department of Consumer and Business Services must
use hearing officers assigned from the panel for all contested
case hearings regarding matters other than those concerning a
claim under ORS chapter 656, as provided in ORS 656.704 (2).
Except as specifically provided in this subsection, the
Department of Consumer and Business Services must use hearing
officers assigned from the panel only for contested cases arising
out of the department's powers and duties under:
(a) ORS chapter 59;
(b) ORS 200.005 to 200.075;
{ + (c) ORS 279.348 to 279.380; + }
{ - (c) - } { + (d) + } ORS chapter 455;
{ + (e) ORS chapter 652;
(f) ORS chapter 653;
(g) ORS chapter 658;
(h) ORS chapter 659;
(i) ORS chapter 660; + }
{ - (d) - } { + (j) + } ORS chapter 674;
{ - (e) - } { + (k) + } ORS chapters 706 to 716;
{ - (f) - } { + (L) + } ORS chapter 717;
{ - (g) - } { + (m) + } ORS chapters 722, 723, 725 and 726;
and
{ - (h) - } { + (n) + } ORS chapters 731, 732, 733, 734,
735, 737, 742, 743, 744, 746, 748 and 750.
(4) Notwithstanding any other provision of law, in any
proceeding in which an agency is required to use a hearing
officer assigned from the panel, an officer or employee of the
agency may not conduct the hearing on behalf of the agency.
(5) Notwithstanding any other provision of sections 2 to
21 { + , chapter 849, Oregon Laws 1999 + } { - of this 1999
Act - } , no agency shall be required to use a hearing officer
assigned from the panel if:
(a) Federal law requires that a different hearing officer be
used; or
(b) Use of a hearing officer from the panel could result in a
loss of federal funds.
(6) Notwithstanding any other provision of this section, the
Department of Environmental Quality must use hearing officers
assigned from the panel only for contested case hearings
conducted under the provisions of ORS 183.413 to 183.470.
SECTION 26. ORS 240.321 is amended to read:
240.321. (1) All collective bargaining between the state and
its agencies and any certified or recognized exclusive employee
representative of classified employees shall be under the
direction and supervision of the Director of the Oregon
Department of Administrative Services.
(2) Notwithstanding any of the provisions of ORS 240.235,
240.306, 240.316, 240.430 and 240.551, employees of state
agencies who are in certified or recognized appropriate
bargaining units shall have all aspects of their wages, hours and
other terms and conditions of employment determined by collective
bargaining agreements between the state and its agencies and the
exclusive employee representatives of such employees pursuant to
the provisions of ORS 243.650 to 243.762, except with regard to
the recruitment and selection of applicants for initial
appointment to state service.
(3) The provisions of rules adopted by the Oregon Department of
Administrative Services, the subjects of which are incorporated
into collective bargaining agreements, shall not be applicable to
employees within appropriate bargaining units covered by such
agreements.
(4) The { + Oregon + } Department { + of Administrative
Services + } shall ensure the speedy resolution of employee
grievances by adopting a grievance procedure resulting in a final
employer determination within 60 days of the filing of a written
grievance, with appeal thereafter to the Employment Relations
Board, the { - Civil Rights Division of the Bureau of Labor and
Industries - } { + Department of Consumer and Business
Services + }, or other appropriate review agency. Employees in
collective bargaining units shall have their grievances resolved
as provided for by the collective bargaining agreement.
SECTION 27. ORS 244.020 is amended to read:
244.020. As used in this chapter, unless the context requires
otherwise:
(1) 'Actual conflict of interest' means any action or any
decision or recommendation by a person acting in a capacity as a
public official, the effect of which would be to the private
pecuniary benefit or detriment of the person or the person's
relative or any business with which the person or a relative of
the person is associated unless the pecuniary benefit or
detriment arises out of circumstances described in subsection (7)
of this section.
(2) 'Business' means any corporation, partnership,
proprietorship, firm, enterprise, franchise, association,
organization, self-employed individual and any other legal entity
operated for economic gain but excluding any income-producing
not-for-profit corporation that is tax exempt under section
501(c) of the Internal Revenue Code with which a public official
is associated in a nonremunerative capacity.
(3) 'Business with which the person is associated' means any
business of which the person or the person's relative is a
director, officer, owner or employee, or agent or any corporation
in which the person or the person's relative owns or has owned
stock worth $1,000 or more at any point in the preceding calendar
year.
(4) 'Commission' means the Oregon Government Standards and
Practices Commission.
(5) 'Development commission' means any entity which has the
authority to purchase, develop, improve or lease land or the
authority to operate or direct the use of land. This authority
must be more than ministerial.
(6) 'Expenditure' has the meaning given that term in ORS
260.005.
(7) 'Potential conflict of interest' means any action or any
decision or recommendation by a person acting in a capacity as a
public official, the effect of which could be to the private
pecuniary benefit or detriment of the person or the person's
relative, or a business with which the person or the person's
relative is associated, unless the pecuniary benefit or detriment
arises out of the following:
(a) An interest or membership in a particular business,
industry, occupation or other class required by law as a
prerequisite to the holding by the person of the office or
position.
(b) Any action in the person's official capacity which would
affect to the same degree a class consisting of all inhabitants
of the state, or a smaller class consisting of an industry,
occupation or other group including one of which or in which the
person, or the person's relative or business with which the
person or the person's relative is associated, is a member or is
engaged. The commission may by rule limit the minimum size of or
otherwise establish criteria for or identify the smaller classes
that qualify under this exception.
(c) Membership in or membership on the board of directors of a
nonprofit corporation that is tax-exempt under section 501(c) of
the Internal Revenue Code.
(8) 'Gift' means something of economic value given to a public
official or the public official's relative without valuable
consideration of equivalent value, including the full or partial
forgiveness of indebtedness, which is not extended to others who
are not public officials or the relatives of public officials on
the same terms and conditions; and something of economic value
given to a public official or the public official's relative for
valuable consideration less than that required from others who
are not public officials. However, 'gift' does not mean:
(a) Campaign contributions, as described in ORS chapter 260.
(b) Gifts from family members.
(c) The giving or receiving of food, lodging and travel when
participating in an event which bears a relationship to the
public official's office and when appearing in an official
capacity, subject to the reporting requirement of ORS 244.060
(6).
(d) The giving or receiving of food or beverage if the food or
beverage is consumed by the public official or the public
official's relatives in the presence of the purchaser or provider
thereof.
(e) The giving or receiving of entertainment if the
entertainment is experienced by the public official or the public
official's relatives in the presence of the purchaser or provider
thereof and the value of the entertainment does not exceed $100
per person on a single occasion and is not greater than $250 in
any one calendar year.
(9) 'Honoraria' means a payment or something of economic value
given to a public official in exchange for services upon which
custom or propriety prevents the setting of a price. Services
include, but are not limited to, speeches or other services
rendered in connection with an event at which the public official
appears in an official capacity.
(10) 'Income' means income of any nature derived from any
source, including, but not limited to, any salary, wage, advance,
payment, dividend, interest, rent, honoraria, return of capital,
forgiveness of indebtedness, or anything of economic value.
(11) 'Legislative or administrative interest' means an economic
interest, distinct from that of the general public, in one or
more bills, resolutions, regulations, proposals or other matters
subject to the action or vote of a person acting in the capacity
of a public official.
(12) 'Legislative official' means any member or member-elect of
the Legislative Assembly, any member of an agency, board or
committee that is part of the legislative branch and any staff
person, assistant or employee thereof.
(13) 'Member of household' means any relative who resides with
the public official.
(14) 'Planning commission' means a county planning commission
created under ORS chapter 215 or a city planning commission
created under ORS chapter 227.
(15) 'Public official' means any person who, when an alleged
violation of this chapter occurs, is serving the State of Oregon
or any of its political subdivisions or any other public body of
the state as an officer, employee, agent or otherwise, and
irrespective of whether the person is compensated for such
services.
(16) 'Relative' means the spouse of the public official, any
children of the public official or of the public official's
spouse, and brothers, sisters or parents of the public official
or of the public official's spouse.
(17) 'Statewide official' means the Secretary of State or
Secretary of State-elect, State Treasurer or State
Treasurer-elect, Superintendent of Public Instruction or
Superintendent-elect of Public Instruction { - , - }
{ + and + } Attorney General or Attorney General-elect { - and
the Commissioner of the Bureau of Labor and Industries or the
Commissioner-elect of the Bureau of Labor and Industries - } .
(18) 'Zoning commission' means an entity to which is delegated
at least some of the discretionary authority of a planning
commission or governing body relating to zoning and land use
matters.
SECTION 28. ORS 244.050 is amended to read:
244.050. (1) On or before April 15 of each year the following
persons shall file with the Oregon Government Standards and
Practices Commission a verified statement of economic interest as
required under this chapter:
(a) The Governor, Secretary of State, State Treasurer, Attorney
General, { - Commissioner of the Bureau of Labor and
Industries, - } Superintendent of Public Instruction, district
attorneys and members of the Legislative Assembly.
(b) Any judicial officer, including justices of the peace and
municipal judges, except municipal judges in those cities where a
majority of the votes cast in the subject city in the 1974
general election was in opposition to the ballot measure provided
for in section 10, chapter 68, Oregon Laws 1974 (special
session), and except any pro tem judicial officer who does not
otherwise serve as a judicial officer.
(c) Any candidate for an office designated in paragraph (a) or
(b) of this subsection.
(d) The Deputy Attorney General.
(e) The Legislative Administrator, the Legislative Counsel, the
Legislative Fiscal Officer, the Secretary of the Senate and the
Chief Clerk of the House of Representatives.
(f) The Chancellor and Vice Chancellors of the State System of
Higher Education and the President and Vice Presidents, or their
administrative equivalents, in each institution under the
jurisdiction of the State Board of Higher Education.
(g) The following state officers:
(A) Adjutant General.
(B) Director of Agriculture.
(C) Manager of State Accident Insurance Fund Corporation.
(D) Water Resources Director.
(E) Director of Department of Environmental Quality.
(F) Director of Oregon Department of Administrative Services.
(G) Director of the Oregon State Fair and Exposition Center.
(H) State Fish and Wildlife Director.
(I) State Forester.
(J) State Geologist.
(K) Director of Department of Human Services.
(L) Director of the Department of Consumer and Business
Services.
(M) Director of Division of State Lands.
(N) State Librarian.
(O) Administrator of Oregon Liquor Control Commission.
(P) Superintendent of State Police.
(Q) Director of the Public Employees Retirement System.
(R) Director of Department of Revenue.
(S) Director of Transportation.
(T) Public Utility Commissioner.
(U) Director of Veterans' Affairs.
(V) Executive Director of Oregon Government Standards and
Practices Commission.
(W) Administrator of the Office of Energy.
(X) Director and each assistant director of the Oregon State
Lottery.
(h) Any assistant in the Governor's office other than personal
secretaries and clerical personnel.
(i) Every elected city or county official except elected
officials in those cities or counties where a majority of votes
cast in the subject city or county in any election on the issue
of filing statements of economic interest under this chapter was
in opposition.
(j) Every member of a city or county planning, zoning or
development commission except such members in those cities or
counties where a majority of votes cast in the subject city or
county at any election on the issue of filing statements of
economic interest under this chapter was in opposition to the
ballot measure provided for in section 10, chapter 68, Oregon
Laws 1974 (special session).
(k) The chief executive officer of a city or county who
performs the duties of manager or principal administrator of the
city or county except such employees in those cities or counties
where a majority of votes cast in the subject city or county in
an election on the issue of filing statements of economic
interest under this chapter was in opposition.
(L) Members of local government boundary commissions formed
under ORS 199.410 to 199.519.
(m) Every member of a governing body of a metropolitan service
district and the executive officer thereof.
(n) Each member of the board of directors of the State Accident
Insurance Fund Corporation.
(o) The chief administrative officer and the financial officer
of each common and union high school district, education service
district and community college district.
(p) Every member of the following state boards and commissions:
(A) Capitol Planning Commission.
(B) Board of Geologic and Mineral Industries.
(C) Oregon Economic and Community Development Commission.
(D) State Board of Education.
(E) Environmental Quality Commission.
(F) Fish and Wildlife Commission of the State of Oregon.
(G) State Board of Forestry.
(H) Oregon Government Standards and Practices Commission.
(I) Oregon Health Council.
(J) State Board of Higher Education.
(K) Oregon Investment Council.
(L) Land Conservation and Development Commission.
(M) Oregon Liquor Control Commission.
(N) Oregon Short Term Fund Board.
(O) State Marine Board.
(P) Mass transit district boards.
(Q) Energy Facility Siting Council.
(R) Board of Commissioners of the Port of Portland.
(S) Employment Relations Board.
(T) Public Employees Retirement Board.
(U) Oregon Racing Commission.
(V) Oregon Transportation Commission.
(W) Wage and Hour Commission.
(X) Water Resources Commission.
(Y) Workers' Compensation Board.
(Z) Housing, Educational and Cultural Facilities Authority.
(AA) Oregon State Lottery Commission.
(BB) Pacific Northwest Electric Power and Conservation Planning
Council.
(CC) Columbia River Gorge Commission.
(DD) Oregon Health Sciences University Board of Directors.
(q) The following officers of the State Treasury:
(A) Chief Deputy State Treasurer.
(B) Executive Assistant to the State Treasurer.
(C) Director of the Investment Division.
(2) By April 15 next after the date an appointment takes
effect, every appointed public official on a board or commission
listed in subsection (1) of this section shall file with the
commission a statement of economic interest as required under ORS
244.060, 244.070 and 244.090.
(3) By April 15 next after the filing date for the biennial
primary election, each candidate for elective public office
described in subsection (1) of this section shall file with the
commission a statement of economic interest as required under ORS
244.060, 244.070 and 244.090.
(4) Within 30 days after the filing date for the general
election, each candidate for elective public office described in
subsection (1) of this section who was not a candidate in the
preceding biennial primary election shall file with the
commission a statement of economic interest as required under ORS
244.060, 244.070 and 244.090.
(5) The Legislative Assembly shall maintain a continuing review
of the operation of this chapter and from time to time may add to
or delete from the list of boards and commissions in subsections
(1) to (3) of this section as in the judgment of the Legislative
Assembly is consistent with the purposes of this chapter.
(6) Subsections (1) to (5) of this section apply only to
persons who are incumbent, elected or appointed officials as of
April 15 and to persons who are candidates for office on April
15. Those sections also apply to persons who do not become
candidates until 30 days after the filing date for the statewide
general election.
(7)(a) Failure to file the statement required by this section
subjects a person to a civil penalty that may be imposed as
specified in ORS 183.090, but the enforcement of this subsection
does not require the Oregon Government Standards and Practices
Commission to follow the procedures in ORS 244.260 before finding
that a violation of this section has occurred.
(b) Failure to file the required statement in timely fashion
shall be prima facie evidence of a violation of this section.
(c) If within five days after the date on which the statement
is to be filed under this section the statement has not been
received by the commission, the commission shall notify the
public official and give the public official not less than 15
days to comply with the requirements of this section. If the
public official fails to comply by the date set by the
commission, the commission may impose a civil penalty of $5 for
each day the statement is late beyond the date fixed by the
commission. The maximum penalty that may be accrued under this
section is $1,000.
(d) A civil penalty imposed under this subsection is in
addition to and not in lieu of sanctions that may be imposed
under ORS 244.380.
SECTION 29. ORS 249.002 is amended to read:
249.002. As used in this chapter:
(1) 'Candidate' means an individual whose name is or is
expected to be printed on the official ballot.
(2) 'County clerk' means the county clerk or the county
official in charge of elections.
(3) 'Elector' means an individual qualified to vote under
section 2, Article II, Oregon Constitution.
(4) 'Judge' means judge of the Supreme Court, Court of Appeals,
circuit court or the Oregon Tax Court.
(5) 'Member' means an individual who is registered as being
affiliated with the political party.
(6) 'Minor political party' means a political party that has
qualified as a minor political party under ORS 248.008.
(7) 'Nonpartisan office' means the office of judge,
Superintendent of Public Instruction, { - Commissioner of the
Bureau of Labor and Industries, - } any elected office of a
metropolitan service district under ORS chapter 268, justice of
the peace, county clerk, county assessor, county surveyor, county
treasurer, sheriff, district attorney or any office designated
nonpartisan by a home rule charter.
(8) 'Prospective petition' means the information, except
signatures and other identification of petition signers, required
to be contained in a completed petition.
(9) 'Public office' means any national, state, county, city or
district office or position, except a political party office,
filled by the electors.
(10) 'State office' means Governor, Secretary of State, State
Treasurer, Attorney General, { - Commissioner of the Bureau of
Labor and Industries, - } Superintendent of Public Instruction,
judge, state Senator, state Representative or district attorney.
SECTION 30. ORS 249.056 is amended to read:
249.056. (1) At the time of filing a declaration of candidacy a
candidate for the following offices shall pay to the officer with
whom the declaration is filed the following fee:
(a) United States Senator, $150.
(b) Governor, Secretary of State, State Treasurer, Attorney
General, { - Commissioner of the Bureau of Labor and
Industries, - } Superintendent of Public Instruction,
Representative in Congress, judge of the Supreme Court, Court of
Appeals or Oregon Tax Court, or executive officer or auditor of a
metropolitan service district, $100.
(c) County office, district attorney or circuit court judge,
$50.
(d) State Senator or Representative or councilor of a
metropolitan service district under ORS chapter 268, $25.
(2) No filing fee shall be required of persons filing a
declaration of candidacy for precinct committeeperson or justice
of the peace.
SECTION 31. ORS 254.005 is amended to read:
254.005. As used in this chapter:
(1) 'Ballot' means any material on which votes may be cast for
candidates or measures. In the case of a recall election, '
ballot' includes material posted in a voting compartment or
delivered to an elector by mail.
(2) 'Ballot label' means the material containing the names of
candidates or the measures to be voted on.
(3) 'Chief elections officer' means the:
(a) Secretary of State, regarding a candidate for a state
office or an office to be voted on in the state at large or in a
congressional district, or a measure to be voted on in the state
at large.
(b) County clerk, regarding a candidate for a county office, or
a measure to be voted on in a county only.
(c) City clerk, auditor or recorder, regarding a candidate for
a city office, or a measure to be voted on in a city only.
(4) 'County clerk' means the county clerk or the county
official in charge of elections.
(5) 'Elector' means an individual qualified to vote under
section 2, Article II, Oregon Constitution.
(6) 'Major political party' means a political party that has
qualified as a major political party under ORS 248.006.
(7) 'Measure' includes any of the following submitted to the
people for their approval or rejection at an election:
(a) A proposed law.
(b) An Act or part of an Act of the Legislative Assembly.
(c) A revision of or amendment to the Oregon Constitution.
(d) Local, special or municipal legislation.
(e) A proposition or question.
(8) 'Minor political party' means a political party that has
qualified as a minor political party under ORS 248.008.
(9) 'Nonpartisan office' means the office of judge of the
Supreme Court, Court of Appeals, circuit court or the Oregon Tax
Court, Superintendent of Public Instruction, { - Commissioner
of the Bureau of Labor and Industries, - } any elected office of
a metropolitan service district under ORS chapter 268, justice of
the peace, county clerk, county assessor, county surveyor, county
treasurer, sheriff, district attorney or any office designated
nonpartisan by a home rule charter.
(10) 'Prospective petition' means the information, except
signatures and other identification of petition signers, required
to be contained in a completed petition.
(11) 'Regular district election' means the election held each
year for the purpose of electing members of a district board as
defined in ORS 255.005 (2).
(12) 'Voting machine' means:
(a) Any device which will record every vote cast on candidates
and measures and which will either internally or externally total
all votes cast on that device.
(b) Any device into which a ballot may be inserted and which is
so designed and constructed that the vote for any candidate or
measure may be indicated by punching or marking the ballot.
(13) 'Vote tally system' means one or more pieces of equipment
necessary to examine and tally automatically the marked or
punched ballots.
SECTION 32. ORS 260.005 is amended to read:
260.005. As used in this chapter:
(1)(a) 'Candidate' means:
(A) An individual whose name is printed on a ballot, for whom a
declaration of candidacy, nominating petition or certificate of
nomination to public office has been filed or whose name is
expected to be or has been presented, with the individual's
consent, for nomination or election to public office;
(B) An individual who has solicited or received and accepted a
contribution, made an expenditure, or given consent to an
individual, organization, political party or political committee
to solicit or receive and accept a contribution or make an
expenditure on the individual's behalf to secure nomination or
election to any public office at any time, whether or not the
office for which the individual will seek nomination or election
is known when the solicitation is made, the contribution is
received and retained or the expenditure is made, and whether or
not the name of the individual is printed on a ballot; or
(C) A public office holder against whom a recall petition has
been completed and filed.
(b) For purposes of this section and ORS 260.035 to 260.156, '
candidate' does not include a candidate for the office of
precinct committeeperson.
(2) 'Committee director' means any person who directly and
substantially participates in decision-making on behalf of a
political committee concerning the solicitation or expenditure of
funds and the support of or opposition to candidates or measures.
The officers of a political party shall be considered the
directors of any political party committee of that party, unless
otherwise provided in the party's bylaws.
(3)(a) Except as provided in ORS 260.007, 'contribute' or '
contribution' includes:
(A) The payment, loan, gift, forgiving of indebtedness, or
furnishing without equivalent compensation or consideration, of
money, services other than personal services for which no
compensation is asked or given, supplies, equipment or any other
thing of value:
(i) For the purpose of influencing an election for public
office or an election on a measure, or of reducing the debt of a
candidate for nomination or election to public office or the debt
of a political committee; or
(ii) To or on behalf of a candidate, political committee or
measure; and
(B) Any unfulfilled pledge, subscription, agreement or promise,
whether or not legally enforceable, to make a contribution.
(b) Regarding a contribution made for compensation or
consideration of less than equivalent value, only the excess
value of it shall be considered a contribution.
(4) 'County clerk' means the county clerk or the county
official in charge of elections.
(5) 'Elector' means an individual qualified to vote under
section 2, Article II of the Oregon Constitution.
(6) Except as provided in ORS 260.007, 'expend' or '
expenditure' includes the payment or furnishing of money or
anything of value or the incurring or repayment of indebtedness
or obligation by or on behalf of a candidate, political committee
or person in consideration for any services, supplies, equipment
or other thing of value performed or furnished for any reason,
including support of or opposition to a candidate, political
committee or measure, or for reducing the debt of a candidate for
nomination or election to public office. 'Expenditure' also
includes contributions made by a candidate or political committee
to or on behalf of any other candidate or political committee.
(7) 'Filing officer' means:
(a) The Secretary of State, regarding a candidate for any state
office or any office to be voted for in the state at large or in
a congressional district or regarding a measure to be voted on in
the state at large.
(b) The county clerk, regarding a candidate for any county
office or any district or precinct office within the county, or
regarding a measure to be voted for in one county or in a
district situated wholly within one county.
(c) The chief city elections officer, regarding a candidate for
any city office, or a measure to be voted for in a city only.
(d) The county clerk of the county in which the office of the
chief administrative officer or administrative board is located
regarding a candidate for office for any district or regarding a
measure to be voted on in a district, when the district is
situated in more than one county.
(e) In the case of an irrigation district formed under ORS
chapter 545:
(A) The county clerk, regarding any candidate for office or any
measure at an irrigation district formation election where the
proposed district is situated wholly in one county;
(B) The county clerk of the county in which the office of the
secretary of the proposed irrigation district will be located,
regarding any candidate for office or any measure at an
irrigation district formation election where the proposed
district is situated in more than one county; or
(C) The secretary of the irrigation district for any election
other than an irrigation district formation election.
(8) 'Independent expenditure' means an expenditure by a person
for a communication expressly advocating the election or defeat
of a clearly identified candidate that is not made with the
cooperation or with the prior consent of, or in consultation
with, or at the request or suggestion of, a candidate or any
agent or authorized committee of the candidate. As used in this
subsection:
(a) 'Agent' means any person who has:
(A) Actual oral or written authority, either express or
implied, to make or to authorize the making of expenditures on
behalf of a candidate; or
(B) Been placed in a position within the campaign organization
where it would reasonably appear that in the ordinary course of
campaign-related activities the person may authorize
expenditures.
(b) 'Clearly identified' means:
(A) The name of the candidate involved appears;
(B) A photograph or drawing of the candidate appears; or
(C) The identity of the candidate is apparent by unambiguous
reference.
(c) 'Expressly advocating' means any communication containing a
message advocating election or defeat, including but not limited
to the name of the candidate, or expressions such as ' vote for,'
'elect,' 'support,' 'cast your ballot for, ' ' vote against,'
'defeat' or 'reject. '
(d) 'Made with the cooperation or with the prior consent of, or
in consultation with, or at the request or suggestion of, a
candidate or any agent or authorized committee of the candidate':
(A) Means any arrangement, coordination or direction by the
candidate or the candidate's agent prior to the publication,
distribution, display or broadcast of the communication. An
expenditure shall be presumed to be so made when it is:
(i) Based on information about the candidate's plans, projects
or needs provided to the expending person by the candidate or by
the candidate's agent, with a view toward having an expenditure
made; or
(ii) Made by or through any person who is or has been
authorized to raise or expend funds, who is or has been an
officer of a political committee authorized by the candidate or
who is or has been receiving any form of compensation or
reimbursement from the candidate, the candidate's principal
campaign committee or agent; and
(B) Does not include providing to the expending person upon
request a copy of this chapter or any rules adopted by the
Secretary of State relating to independent expenditures.
(9) 'Initiative petition' means a petition to initiate a
measure for which a prospective petition has been filed but that
is not yet a measure.
(10) 'Judge' means judge of the Supreme Court, Court of
Appeals, circuit court or the Oregon Tax Court.
(11) 'Mass mailing' means more than 200 substantially similar
pieces of mail, but does not include a form letter or other mail
that is sent in response to an unsolicited request, letter or
other inquiry.
(12) 'Measure' includes any of the following submitted to the
people for their approval or rejection at an election:
(a) A proposed law.
(b) An Act or part of an Act of the Legislative Assembly.
(c) A revision of or amendment to the Oregon Constitution.
(d) Local, special or municipal legislation.
(e) A proposition or question.
(13) 'Occupation' means the nature of an individual's principal
business or, if the individual is employed by another person, the
nature of the individual's principal business or the business
name and address of the employer.
(14) 'Person' means an individual, corporation, limited
liability company, labor organization, association, firm,
partnership, joint stock company, club, organization or other
combination of individuals having collective capacity.
(15)(a) 'Political committee' means a combination of two or
more individuals, or a person other than an individual, that has:
(A) Received a contribution for the purpose of supporting or
opposing a candidate, measure or political party; or
(B) Made an expenditure for the purpose of supporting or
opposing a candidate, measure or political party.
(b) For purposes of paragraph (a)(B) of this subsection, an
expenditure shall not include:
(A) A contribution to a candidate or political committee that
is required to report the contribution on a statement filed under
ORS 260.058, 260.063, 260.068, 260.073 or 260.102 or a
certificate filed under ORS 260.112; or
(B) An independent expenditure for which a statement is
required to be filed by a person under ORS 260.044 (1).
(16) 'Public office' means any national, state, county,
district, city office or position, except a political party
office, that is filled by the electors.
(17) 'Recall petition' means a petition to recall a public
officer for which a prospective petition has been filed but that
is not yet a measure.
(18) 'Referendum petition' means a petition to refer a measure
for which a prospective petition has been filed but that is not
yet a measure.
(19) 'Slate mailer' means a mass mailing that supports or
opposes a total of three or more candidates or measures.
(20)(a) 'Slate mailer organization' means, except as provided
in paragraph (b) of this subsection, any person who directly or
indirectly:
(A) Is involved in the production of one or more slate mailers
and exercises control over the selection of the candidates and
measures to be supported or opposed in the slate mailers; and
(B) Receives or is promised payment for producing one or more
slate mailers or for endorsing or opposing, or refraining from
endorsing or opposing, a candidate or measure in one or more
slate mailers.
(b) Notwithstanding paragraph (a) of this subsection, 'slate
mailer organization' does not include:
(A) A political committee organized by a political party; or
(B) A political committee organized by the caucus of either the
Senate or the House of Representatives of the Legislative
Assembly.
(21) 'State office' means the office of Governor, Secretary of
State, State Treasurer, Attorney General, { - Commissioner of
the Bureau of Labor and Industries, - } Superintendent of Public
Instruction, state Senator, state Representative, judge or
district attorney.
SECTION 33. ORS 260.068 is amended to read:
260.068. (1) Except as otherwise provided in ORS 260.112 and
subsection (4) of this section, each candidate seeking election
at the general election or a candidate's principal campaign
committee at the general election shall file the following with
each appropriate filing officer:
(a) A first preelection statement of contributions received and
expenditures made by or on behalf of the candidate or the
candidate's principal campaign committee, not sooner than the
39th day and not later than the 29th day before the date of the
election. For a candidate nominated at the biennial primary
election or for that candidate's principal campaign committee,
the accounting period for the statement required by this
paragraph begins on the 21st day after the biennial primary
election. For a candidate not nominated at the biennial primary
election or for that candidate's principal campaign committee,
the accounting period for the statement required by this
paragraph begins on the date that the name of a treasurer is
certified to the filing officer under ORS 260.035 or 260.037
unless a candidate or a candidate's principal campaign committee
has filed a post-election or supplemental statement of
contributions and expenditures showing an unexpended balance of
contributions or an expenditure deficit for a previous election
other than the preceding biennial primary election. If such a
post-election or supplemental statement is filed, the accounting
period begins on the day following the last day of the accounting
period for the statement filed for that previous election. If a
candidate or a candidate's principal campaign committee has filed
a post-election or supplemental statement of contributions and
expenditures for a previous election other than the preceding
biennial primary election showing no balance or no deficit, the
accounting period begins on the day that the candidate or the
candidate's principal campaign committee next receives a
contribution or makes an expenditure. If the statement for a
previous election shows an unexpended balance of contributions or
an expenditure deficit, the beginning balance on the statement
required by this paragraph shall be the amount of the unexpended
balance of contributions or expenditure deficit. The accounting
period for the statement required by this paragraph ends on the
40th day before the date of the election.
(b) A second preelection statement of contributions received
and expenditures made by or on behalf of the candidate or the
candidate's principal campaign committee, not sooner than the
eighth day and not later than the fifth day before the date of
the election. The accounting period for the statement required by
this paragraph begins on the 39th day before the date of the
election and ends on the ninth day before the date of the
election.
(c) A supplement to the second preelection statement, on the
day before the election, showing contributions, including loans,
whether repaid or not, received by or on behalf of the candidate
or committee after the ninth day and before the day preceding the
day of the election. A supplement shall be filed if contributions
received from a political committee or other person during the
period described in this paragraph exceed $500. The supplement
must be written but may be transmitted to the filing officer by
any expeditious means available. A candidate or treasurer of the
candidate's principal campaign committee who filed a certificate
under ORS 260.112 shall file a supplement under this paragraph if
the aggregate contributions exceed $2,000 because of
contributions received after the ninth day and before the day
preceding the day of the election.
(d) A post-election statement of contributions received and
expenditures made by or on behalf of the candidate or the
candidate's principal campaign committee, not sooner than the
21st day and not later than the 30th day after the date of the
election. The accounting period for the statement required by
this paragraph begins on the eighth day before the date of the
election and ends on the 20th day after the date of the election.
(2) A candidate for the office of Governor, Secretary of State,
State Treasurer, Attorney General, { - Commissioner of the
Bureau of Labor and Industries, - } State Senator or State
Representative, or a candidate's principal campaign committee
shall file a supplement to the post-election statement of
contributions received and expenditures made by or on behalf of
the candidate or the candidate's principal campaign committee not
sooner than the first business day in January and not later than
the Friday before the second Monday in January. The supplement
shall be filed if the aggregate contributions received from any
political committee or other person exceed $500 during the period
beginning after the 20th day after the date of the election and
ending on December 31 and shall disclose only those contributions
received from any political committee or other person that exceed
an aggregate of $500 during the period beginning after the 20th
day after the date of the election and ending on December 31. The
supplement shall be written but may be transmitted to the filing
officer by any means available. A candidate described in this
subsection or the treasurer of the candidate's principal campaign
committee who filed a certificate under ORS 260.112 shall file a
supplement under this subsection if the aggregate contributions
exceed $2,000 because of contributions received after the 20th
day following the election and prior to January 1 of the
following year.
(3) A candidate or a candidate's principal campaign committee
shall file a supplemental statement of contributions received and
expenditures made by or on behalf of the candidate or the
candidate's principal campaign committee, if the post-election
statement required by subsection (1)(d) of this section shows an
unexpended balance of contributions or an expenditure deficit. A
supplemental statement shall be filed annually not later than
September 10, until a statement containing no balance or no
deficit is filed. The accounting period for the statement
required by this subsection begins on the day following the last
day of the accounting period for the previous statement filed and
ends on September 1.
(4) A candidate for federal office shall file statements
required by the federal election laws in lieu of the statements
required by ORS 260.035 to 260.156. The statements required by
federal election laws shall be filed in the office of the
Secretary of State on or before the federal filing dates. At any
time the Secretary of State by rule may make a determination that
the standards and requirements of the federal election laws
relating to candidates for federal office are not substantially
similar to those contained in ORS 260.035 to 260.156. If the
Secretary of State makes this determination, candidates for
federal office are subject to the requirements of ORS 260.035 to
260.156.
(5) Each statement and the supplement required by this section
shall be signed and certified as true by the candidate or
treasurer required to file it.
SECTION 34. ORS 260.174 is amended to read:
260.174. (1) No legislative official, statewide official or
candidate therefor shall attempt to receive or to solicit or
receive or solicit a contribution to the official or candidate or
the official's or candidate's principal campaign committee or
attempt to solicit or solicit an expenditure in support of the
official or candidate from any person or political committee
during the period beginning January 1 immediately preceding a
regular biennial session of the Legislative Assembly and ending
upon adjournment of the regular biennial session of the
Legislative Assembly, or during any special session of the
Legislative Assembly.
(2) The Governor, Governor-elect or a candidate for Governor
shall not attempt to receive or to solicit or receive or solicit
a contribution to the Governor or candidate for Governor or the
Governor's or candidate's principal campaign committee or attempt
to solicit or solicit an expenditure in support of the Governor
or candidate for Governor from any person or political committee
during the period beginning January 1 immediately preceding a
regular biennial session of the Legislative Assembly and ending
30 business days following adjournment of the regular biennial
session of the Legislative Assembly, or during any special
session of the Legislative Assembly.
(3) No person or political committee during the period
beginning January 1 immediately preceding a regular biennial
session of the Legislative Assembly and ending upon adjournment
of the regular biennial session of the Legislative Assembly, or
during any special session of the Legislative Assembly, shall
attempt to make or promise to make or make or promise to make a
contribution to a legislative official, statewide official or
candidate therefor or to the official's or candidate's principal
campaign committee, or promise to make an expenditure in support
of the official or candidate.
(4) No person or political committee during the period
beginning January 1 immediately preceding a regular biennial
session of the Legislative Assembly and ending 30 business days
following adjournment of the regular biennial session of the
Legislative Assembly, or during any special session of the
Legislative Assembly, shall attempt to make or promise to make or
make or promise to make a contribution to the Governor,
Governor-elect or candidate for Governor, or to the Governor's or
candidate's principal campaign committee, or promise to make an
expenditure in support of the Governor or candidate for Governor.
(5) No person or political committee affiliated with a
political party, caucus of either house of the Legislative
Assembly, legislative official, statewide official or the
Governor, Governor-elect or candidate for Governor shall attempt
to receive or solicit or receive or solicit a contribution on
behalf of a legislative official, statewide official or candidate
therefor during the period beginning January 1 immediately
preceding a regular biennial session of the Legislative Assembly
and ending upon adjournment of the regular biennial session of
the Legislative Assembly, or during any special session of the
Legislative Assembly.
(6) No person or political committee affiliated with a
political party, caucus of either house of the Legislative
Assembly, legislative official, statewide official or the
Governor, Governor-elect or candidate for Governor shall attempt
to receive or solicit or receive or solicit a contribution on
behalf of the Governor, Governor-elect or candidate for Governor
during the period beginning January 1 immediately preceding a
regular biennial session of the Legislative Assembly and ending
30 business days following adjournment of the regular biennial
session of the Legislative Assembly, or during any special
session of the Legislative Assembly.
(7) Nothing in this section shall prohibit:
(a) A legislative official, statewide official or candidate
therefor from making a contribution as an individual from the
individual's personal funds to the same official, candidate or
the candidate's principal campaign committee; or
(b) The Governor, Governor-elect or a candidate for Governor
from making a contribution as an individual from the individual's
personal funds to the same individual as Governor,
Governor-elect, a candidate for Governor or the candidate's
principal campaign committee.
(8) As used in this section:
(a) 'Legislative official' means any member or member-elect of
the Legislative Assembly, any member of an agency, board or
committee that is part of the legislative branch and any staff
person, assistant or employee thereof.
(b) 'Statewide official' means the Secretary of State or
Secretary of State-elect, State Treasurer or State
Treasurer-elect, Superintendent of Public Instruction or
Superintendent-elect of Public Instruction { - , - }
{ + and + } Attorney General or Attorney General-elect { - and
the Commissioner of the Bureau of Labor and Industries or the
Commissioner-elect of the Bureau of Labor and Industries - } .
SECTION 35. ORS 279.023 is amended to read:
279.023. (1) It is the policy of the State of Oregon that
public agencies shall make every effort to construct public
improvements at the least cost to the public agency.
(2) Not less than 30 days prior to adoption of its budget for
the subsequent budget period, each public agency shall prepare
and file with the { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } a list of every public improvement known to
the agency that the agency plans to fund in the budget period,
identifying each improvement by name and estimating the total
on-site construction costs. The list shall also contain a
statement as to whether the agency intends to perform the
construction by a private contractor. If the agency intends to
perform construction work using the agency's own equipment and
personnel on a project estimated to cost more than $125,000, then
the agency shall also show that its decision conforms to the
policy stated in subsection (1) of this section. The list is a
public record and may be revised periodically by the agency.
(3) Before a public agency constructs a public improvement with
its own equipment or personnel:
(a) If the estimated cost exceeds $125,000, the public agency
shall prepare adequate plans and specifications and the estimated
unit cost of each classification of work. The estimated cost of
the work shall include a reasonable allowance for the cost,
including investment cost, of any equipment used. As used in this
paragraph, 'adequate' means sufficient to control the performance
of the work and to assure satisfactory quality of construction by
the public agency personnel.
(b) The public agency shall cause to be kept and preserved a
full, true and accurate account of the costs of performing the
work, including all engineering and administrative expenses and
the cost, including investment costs, of any equipment used. The
final account of the costs shall be a public record.
(4) Subsections (2) and (3) of this section do not apply to any
public agency when the public improvement is to be used for the
distribution or transmission of electric power.
(5) For purposes of this section, resurfacing of highways,
roads or streets at a depth of two or more inches and at an
estimated cost that exceeds $125,000 is a public improvement.
SECTION 36. ORS 279.342 is amended to read:
279.342. The provisions of ORS 279.340 relating to pay for
overtime shall not apply to:
(1) Labor employed in forest fire fighting.
(2) Employees of any irrigation system district actually
engaged in the distribution of water for irrigation or domestic
use.
(3) Employees of a public employer, as defined in ORS 243.650,
who are employed in fire protection or law enforcement
activities, including security personnel in corrections
institutions, as those employees and activities are defined by
rule of the { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + }.
(4) Employees of a people's utility district organized under
ORS chapter 261.
(5) Employees exempted from overtime:
(a) By a public employer as defined in ORS 243.650 because of
the executive, administrative, supervisory or professional nature
of their employment as the nature of such employment is defined
by rule of the { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + }; or
(b) By a collective bargaining agreement expressly waiving
application of ORS 279.340.
(6) Employees of a public employer as defined in ORS 243.650
engaged in the operation of a hospital or an establishment that
is an institution primarily engaged in the care of the sick, the
aged, or the mentally ill or defective who reside on the premises
if, before performance of the work and pursuant to an agreement
between the employer and employee or between the employer and the
bargaining representative of the employees when the employees are
represented under a collective bargaining agreement, a work
period of 14 consecutive days is accepted in lieu of the workweek
of seven consecutive days for purposes of overtime computation
and if, for the employee's employment in excess of eight hours in
any workday and in excess of 80 hours in such 14-day period, the
employee receives compensation at a rate not less than one and
one-half times the rate at which the employee is employed.
(7) Members of the organized militia while on state active duty
in accordance with ORS 399.075.
SECTION 37. ORS 279.348 is amended to read:
279.348. As used in ORS 279.348 to 279.380, unless the context
requires otherwise:
(1) 'Prevailing rate of wage' means the rate of hourly wage,
including all fringe benefits under subsection (4) of this
section, paid in the locality to the majority of workers employed
on projects of similar character in the same trade or occupation,
as determined by the { - Commissioner of the Bureau of Labor
and Industries - } { + Director of the Department of Consumer
and Business Services + }. In making such determinations, the
{ - commissioner - } { + director + } shall rely on an
independent wage survey to be conducted once each year. However,
if it appears to the { - commissioner - } { + director + }
that the data derived from the survey alone are insufficient to
establish the rate, the { - commissioner - } { + director + }
also shall consider additional information such as collective
bargaining agreements, other independent wage surveys and the
prevailing wage rates determined by appropriate federal agencies
or agencies of adjoining states. If there is not a majority in
the same trade or occupation paid at the same rate, the average
rate of hourly wage, including all fringe benefits under
subsection (4) of this section, paid in the locality to workers
in the same trade or occupation shall be the prevailing rate. If
the wage paid by any contractor or subcontractor to workers on
any public work is based on some period of time other than an
hour, the hourly wage shall be mathematically determined by the
number of hours worked in that period of time.
(2) 'Locality' means the following district in which the public
work, or the major portion thereof, is to be performed:
(a) District 1, composed of Clatsop, Columbia and Tillamook
Counties;
(b) District 2, composed of Clackamas, Multnomah and Washington
Counties;
(c) District 3, composed of Marion, Polk and Yamhill Counties;
(d) District 4, composed of Benton, Lincoln and Linn Counties;
(e) District 5, composed of Lane County;
(f) District 6, composed of Douglas County;
(g) District 7, composed of Coos and Curry Counties;
(h) District 8, composed of Jackson and Josephine Counties;
(i) District 9, composed of Hood River, Sherman and Wasco
Counties;
(j) District 10, composed of Crook, Deschutes and Jefferson
Counties;
(k) District 11, composed of Klamath and Lake Counties;
(L) District 12, composed of Gilliam, Grant, Morrow, Umatilla
and Wheeler Counties;
(m) District 13, composed of Baker, Union and Wallowa Counties;
and
(n) District 14, composed of Harney and Malheur Counties.
(3) 'Public works' includes, but is not limited to, roads,
highways, buildings, structures and improvements of all types,
the construction, reconstruction, major renovation or painting of
which is carried on or contracted for by any public agency to
serve the public interest but does not include the reconstruction
or renovation of privately owned property which is leased by a
public agency.
(4) 'Fringe benefits' means the amount of:
(a) The rate of contribution irrevocably made by a contractor
or subcontractor to a trustee or to a third person pursuant to a
plan, fund or program; and
(b) The rate of costs to the contractor or subcontractor which
may be reasonably anticipated in providing benefits to workers
pursuant to an enforceable commitment to carry out a financially
responsible plan or program which is committed in writing to the
workers affected, for medical or hospital care, pensions on
retirement or death, compensation for injuries or illness
resulting from occupational activity, or insurance to provide any
of the foregoing, for unemployment benefits, life insurance,
disability and sickness insurance or accident insurance, for
vacation and holiday pay, for defraying costs of apprenticeship
or other similar programs or for other bona fide fringe benefits,
but only where the contractor or subcontractor is not required by
other federal, state or local law to provide any of such
benefits.
(5) 'Public agency' means the State of Oregon or any political
subdivision thereof or any county, city, district, authority,
public corporation or entity and any of their instrumentalities
organized and existing under law or charter.
SECTION 38. ORS 279.350 is amended to read:
279.350. (1) The hourly rate of wage to be paid by any
contractor or subcontractor to workers upon all public works
shall be not less than the prevailing rate of wage for an hour's
work in the same trade or occupation in the locality where such
labor is performed. The obligation of a contractor or
subcontractor to pay the prevailing rate of wage may be
discharged by making the payments in cash, by the making of
contributions of a type referred to in ORS 279.348 (4)(a), or by
the assumption of an enforceable commitment to bear the costs of
a plan or program of a type referred to in ORS 279.348 (4)(b), or
any combination thereof, where the aggregate of any such
payments, contributions and costs is not less than the prevailing
rate of wage.
(2) After a contract for a public works is executed with any
contractor or work is commenced upon any public works, the amount
of the prevailing rate of wage shall not be subject to attack in
any legal proceeding by any contractor or subcontractor in
connection with that contract.
(3) It shall not be a defense in any legal proceeding that the
prevailing rate of wage is less than the amount required to be in
the specifications of a contract for public works, or that there
was an agreement between the employee and the employer to work at
less than the wage rates required to be paid under this section.
(4) Every contractor or subcontractor engaged on a project for
which there is a contract for a public work shall keep the
prevailing wage rates for that project posted in a conspicuous
and accessible place in or about the project. Contractors and
subcontractors shall be furnished copies of these wage rates by
the { - commissioner - } { + Director of the Department of
Consumer and Business Services + } without charge.
(5) Every contractor or subcontractor engaged on a project for
which there is a contract for a public work to which the
prevailing wage requirements apply that also provides for or
contributes to a health and welfare plan or a pension plan, or
both, for its employees on the project shall post notice
describing such plans in a conspicuous and accessible place in or
about the project. The notice preferably shall be posted in the
same place as the notice required under subsection (4) of this
section. In addition to the description of the plans, the notice
shall contain information on how and where to make claims and
where to obtain further information.
(6)(a) Except as provided in paragraph (c) of this subsection,
no person other than the contractor or subcontractor shall pay or
contribute any portion of the prevailing rate of wage paid by the
contractor or subcontractor to workers employed in the
performance of a public works contract.
(b) For the purpose of this subsection, the prevailing rate of
wage is the prevailing rate of wage specified in the contract.
(c) This subsection is not intended to prohibit payments to a
worker who is enrolled in any government-subsidized training or
retraining program.
(7) No person shall take any action that circumvents the
payment of the prevailing rate of wage to workers employed on a
public works contract, including, but not limited to, reducing an
employee's regular rate of pay on any project not subject to ORS
279.348 to 279.380 in a manner that has the effect of offsetting
the prevailing wage on a public works project.
SECTION 39. ORS 279.354 is amended to read:
279.354. (1) The contractor or the contractor's surety and
every subcontractor or the subcontractor's surety shall file
certified statements with the public contracting agency in
writing in { + a + } form prescribed by the { - Commissioner
of the Bureau of Labor and Industries - } { + Director of the
Department of Consumer and Business Services + }, certifying the
hourly rate of wage paid each worker which the contractor or the
subcontractor has employed upon such public work, and further
certifying that no worker employed upon such public work has been
paid less than the prevailing rate of wage or less than the
minimum hourly rate of wage specified in the contract, which
certificate and statement shall be verified by the oath of the
contractor or the contractor's surety or subcontractor or the
subcontractor's surety that the contractor or subcontractor has
read such statement and certificate and knows the contents
thereof and that the same is true to the contractor or
subcontractor's knowledge. The certified statements shall set out
accurately and completely the payroll records for the prior week
including the name and address of each worker, the worker's
correct classification, rate of pay, daily and weekly number of
hours worked, deductions made and actual wages paid.
(2) Each certified statement required by subsection (1) of this
section shall be delivered or mailed by the contractor or
subcontractor to the public contracting agency. Certified
statements shall be submitted as follows:
(a) For any project 90 days or less from the date of award of
the contract to the date of completion of work under the
contract, the statements shall be submitted once before the first
payment and once before final payment is made of any sum due on
account of a contract for a public work.
(b) For any project exceeding 90 days from the date of award of
the contract to the date of completion of work under the
contract, the statements shall be submitted once before the first
payment is made, at 90-day intervals thereafter, and once before
final payment is made of any sum due on account of a contract for
a public work.
(3) Each contractor or subcontractor shall preserve the
certified statements for a period of three years from the date of
completion of the contract.
(4) Certified statements received by a public contracting
agency are public records subject to the provisions of ORS
192.410 to 192.505.
SECTION 40. ORS 279.355 is amended to read:
279.355. (1) At any reasonable time the { - Commissioner of
the Bureau of Labor and Industries - } { + Director of the
Department of Consumer and Business Services + } may enter the
office or business establishment of any contractor or
subcontractor performing public works, and gather facts and
information necessary to determine if the prevailing rate of wage
is actually being paid by such contractor or subcontractor to
workers upon public works.
(2) Every contractor or subcontractor performing work on public
works shall make available to the { - commissioner - }
{ + director + } for inspection during normal business hours
and, upon request made a reasonable time in advance, any payroll
or other records in the possession or under the control of the
contractor or subcontractor that are deemed necessary by the
{ - commissioner - } { + director + } to determine if the
prevailing rate of wage is actually being paid by such contractor
or subcontractor to workers upon public works.
(3) Notwithstanding ORS 192.410 to 192.505, any record obtained
or made by the { - commissioner - } { + director + } under
this section shall not be open to inspection by the public.
(4) The { - Commissioner of the Bureau of Labor and
Industries - } { + director + } may, without necessity of an
assignment, initiate legal proceedings against employers to
enjoin future failures to pay required prevailing wages or
overtime pay and to require the payment of prevailing wages or
overtime pay due employees. The
{ - commissioner - } { + director + } is entitled to recover,
in addition to other costs, such sum as the court or judge may
adjudge reasonable as attorney fees. If the
{ - commissioner - } { + director + } does not prevail in such
action, the { - commissioner - } { + director + } shall pay
all costs and disbursements from the { - Bureau of Labor and
Industries Account - } { + Consumer and Business Services
Fund + }.
SECTION 41. ORS 279.356 is amended to read:
279.356. (1) Any contractor or subcontractor or contractor's or
subcontractor's surety who violates the provisions of ORS 279.350
shall be liable to the workers affected in the amount of their
unpaid minimum wages, including all fringe benefits under ORS
279.348 (4), and in an additional amount equal to said unpaid
wages as liquidated damages.
(2) Actions to enforce liability to workers under subsection
(1) of this section may be brought as actions on contractors'
bonds as provided for in ORS 279.536.
(3) If the public agency fails to include a provision that the
contractor and any subcontractor shall comply with ORS 279.350 in
the advertisement for bids, the request for bids, the contract
specifications, the accepted bid or elsewhere in the contract
documents, the liability of the public agency for unpaid minimum
wages, as described in subsection (1) of this section, shall be
joint and several with any contractor or subcontractor that had
notice of the requirement to comply with ORS 279.350. The
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } may enforce the provisions of this subsection by a
civil action under ORS 279.355 (4), by a civil action on an
assigned wage claim under ORS 652.330, or by an administrative
proceeding on an assigned wage claim under ORS 652.332.
SECTION 42. ORS 279.357 is amended to read:
279.357. (1) ORS 279.348 to 279.380 do not apply to:
(a) Projects for which the contract price does not exceed
$25,000.
(b) Projects regulated under the Davis-Bacon Act (40 U.S.C.
276a). Notwithstanding such regulation, contractors and
subcontractors shall pay individuals employed as flaggers on such
projects not less than the prevailing rate of wage as determined
by the { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } for that classification of work. As used in
this paragraph, a ' flagger' means a person who controls the
movement of vehicular traffic through construction projects using
sign, hand or flag signals.
(2)(a) No public contracting agency shall divide a public works
project into more than one contract for the purpose of avoiding
compliance with ORS 279.348 to 279.380.
(b) When the { - commissioner - } { + director + }
determines that a public contracting agency has divided a public
works project for the purpose of avoiding compliance with ORS
279.348 to 279.380, the
{ - commissioner - } { + director + } shall issue an order
compelling compliance.
(c) In making determinations under this subsection, the
{ - commissioner - } { + director + } shall consider:
(A) The physical separation of the project structures.
(B) The timing of the work on project phases or structures.
(C) The continuity of project contractors and subcontractors
working on project parts or phases.
(D) The manner in which the public contracting agency and the
contractors administer and implement the project.
SECTION 43. ORS 279.359 is amended to read:
279.359. (1) The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } shall determine the prevailing rate of wage
for workers in each trade or occupation in each locality under
ORS 279.348 at least once each year by means of an independent
wage survey and make this information available at least twice
each year. The
{ - commissioner - } { + director + } may amend the rate at
any time.
(2) A person shall make such reports and returns to the
{ - Bureau of Labor and Industries - } { + Department of
Consumer and Business Services + } as the { - commissioner - }
{ + director + } may require to determine the prevailing rates
of wage. The reports and returns shall be made upon forms
furnished by the { - bureau - } { + department + } and within
the time prescribed therefor by the { - commissioner - } { +
director + }. The person or an authorized representative of the
person shall certify to the accuracy of the reports and returns.
(3) Notwithstanding ORS 192.410 to 192.505, all information or
records provided to the { - commissioner - } { + director + }
under this section are confidential and not available for
inspection by the public.
(4) In order to assist the { - commissioner - }
{ + director + } in making determinations of the prevailing
wage, the { - commissioner - } { + director + } may enter
into contracts with public or private parties to obtain relevant
data and information. Any such contract may include provisions
for the manner and extent of the market review of affected trades
and occupations and such other requirements regarding timelines
of reports, accuracy of data and information and supervision and
review as the { - commissioner - } { + director + } may
prescribe.
(5) As used in this section, 'person' includes any employer,
labor organization or any official representative of an employee
or employer association.
SECTION 44. ORS 279.361 is amended to read:
279.361. (1) When the { - Commissioner of the Bureau of Labor
and Industries - } { + Director of the Department of Consumer
and Business Services + }, in accordance with the provisions of
ORS 183.310 to 183.550, determines that a contractor or
subcontractor has intentionally failed or refused to pay the
prevailing rate of wage to workers employed upon public works, a
subcontractor has failed to pay to its employees amounts required
by ORS 279.350 and the contractor has paid those amounts on the
subcontractor's behalf, or a contractor or subcontractor has
intentionally failed or refused to post the prevailing wage rates
as required by ORS 279.350 (4), the contractor, subcontractor or
any firm, corporation, partnership or association in which the
contractor or subcontractor has a financial interest shall be
ineligible for a period not to exceed three years from the date
of publication of the name of the contractor or subcontractor on
the ineligible list as provided in this section to receive any
contract or subcontract for public works. The
{ - commissioner - } { + director + } shall maintain a written
list of the names of those contractors and subcontractors
determined to be ineligible under this section and the period of
time for which they are ineligible. A copy of the list shall be
published, furnished upon request and made available to
contracting agencies.
(2) When the contractor or subcontractor is a corporation, the
provisions of subsection (1) of this section shall apply to any
corporate officer or corporate agent who is responsible for the
failure or refusal to pay or post the prevailing rate of wage or
the failure to pay to a subcontractor's employees amounts
required by ORS 279.350 that are paid by the contractor on the
subcontractor's behalf.
(3) For good cause shown, the { - Commissioner of the Bureau
of Labor and Industries - } { + director + } may direct the
removal of the name of that contractor or subcontractor from the
ineligible list.
(4) To assist the { - Commissioner of the Bureau of Labor and
Industries - } { + director + } in determining if the
contractor or subcontractor is paying the prevailing rate of
wage, when a prevailing wage rate claim is filed, or evidence
indicating a violation has occurred, a contractor or
subcontractor required to pay the prevailing rate of wage to
workers employed upon public works under this chapter shall send
a certified copy of the payroll for those workers when the
{ - commissioner - } { + director + } requests the certified
copy.
SECTION 45. ORS 279.363 is amended to read:
279.363. Public contracting agencies shall notify the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } in writing, on a form prescribed by the
{ - commissioner - } { + director + }, whenever a contract
subject to the provisions of ORS 279.348 to 279.380 has been
awarded. This notification shall be made within 30 days of the
date that such contract is awarded.
SECTION 46. ORS 279.365 is amended to read:
279.365. (1) The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } or any other person may bring a civil
action in any court of competent jurisdiction to require a public
agency under a public contract with a contractor to withhold
twice the wages in dispute if it is shown that the contractor or
subcontractor on the contract has intentionally failed or refused
to pay the prevailing rate of wage to workers employed on that
contract and to require the contractor to pay the prevailing rate
of wage and any deficiencies that can be shown to exist because
of improper wage payments already made. In addition to other
relief, the court may also enjoin any such contractor or
subcontractor from committing future violations. The contractor
or subcontractor involved shall be named as a party in all civil
actions brought under this section. In addition to other costs,
the court may award the prevailing party a reasonable attorney
fee at the trial and on appeal. However, no attorney fee may be
awarded against the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + director + } under this section.
(2) The court shall require any party, other than the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + director + }, that brings a civil action under this section
to post a bond sufficient to cover the estimated attorney fees
and costs to the public agency and to the contractor or
subcontractor of any temporary restraining order, preliminary
injunction or permanent injunction awarded in the action, in the
event that the party bringing the action does not ultimately
prevail.
(3) In addition to any other relief, the court in a civil
action brought under this section may enjoin the public agency
from contracting with the contractor or subcontractor if the
court finds that the { - Commissioner of the Bureau of Labor
and Industries - } { + director + } would be entitled to place
the contractor or subcontractor on the ineligible list
established under ORS 279.361 (1). If the court issues such an
injunction, the { - commissioner - } { + director + } shall
place the contractor or subcontractor on the list for a period of
three years, subject to the provision of ORS 279.361 (2).
(4) 'Public agency' has the meaning given the term in ORS
279.011.
SECTION 47. ORS 292.313 is amended to read:
292.313. The incumbents of each of the following offices shall
be paid an annual salary on a monthly basis, as follows:
(1) Governor, $88,300 for the year beginning July 1, 1997, and
each year thereafter. The Governor shall also be paid $1,000 per
month regularly for expenses necessarily incurred but not
otherwise provided for.
(2) Secretary of State, $67,900 for the year beginning July 1,
1997, and each year thereafter. The Secretary of State shall also
be paid $250 per month regularly for expenses necessarily
incurred but not otherwise provided for.
(3) State Treasurer, $67,900 for the year beginning July 1,
1997, and each year thereafter. The State Treasurer shall also be
paid $250 per month regularly for expenses necessarily incurred
but not otherwise provided for.
(4) Attorney General, $72,800 for the year beginning July 1,
1997, and each year thereafter. The Attorney General shall also
be paid $250 per month regularly for expenses necessarily
incurred but not otherwise provided for.
(5) Superintendent of Public Instruction, $67,900 beginning
July 1, 1997, and each year thereafter. The superintendent shall
also be paid $250 per month regularly for expenses necessarily
incurred but not otherwise provided for.
{ - (6) Commissioner of the Bureau of Labor and Industries,
$67,900 for the year beginning July 1, 1997, and each year
thereafter. The commissioner shall also be paid $250 per month
regularly for expenses necessarily incurred but not otherwise
provided for. - }
SECTION 48. ORS 292.430 is amended to read:
292.430. (1) In addition to the annual salaries set forth in
ORS 171.072 and 292.313, the Oregon Department of Administrative
Services may 'pick-up,' assume and pay to the Public Employees
Retirement Fund the employee contributions, otherwise required by
ORS 238.200, for the Governor, Secretary of State, State
Treasurer, Attorney General, Superintendent of Public Instruction
{ - , Commissioner of the Bureau of Labor and Industries - } and
members of the Legislative Assembly.
(2) The department may provide health, dental, life and
long-term disability insurance without cost to the officers
referred to in subsection (1) of this section and to judges of
the Supreme Court, Court of Appeals, Oregon Tax Court and circuit
courts in such amounts as are provided from time to time to
employees in the unclassified service of the state.
SECTION 49. ORS 292.930 is amended to read:
292.930. Each of the following elective officers shall be paid
an annual salary on a monthly basis as determined by the
Legislative Assembly each biennium beginning July 1, 1985:
(1) Governor.
(2) Secretary of State.
(3) State Treasurer.
(4) Attorney General.
(5) Superintendent of Public Instruction.
{ - (6) Commissioner of the Bureau of Labor and
Industries. - }
{ - (7) - } { + (6) + }Court of Appeals Judge.
{ - (8) - } { + (7) + } Supreme Court Justice.
{ - (9) - } { + (8) + } Circuit Court Judge.
{ - (10) - } { + (9) + } Tax Court Judge.
SECTION 50. ORS 293.490 is amended to read:
293.490. (1) Except for property described under ORS 98.304 to
98.436, and as otherwise directed by law, upon the death of any
person entitled to payment of money in the State Treasury or on
deposit with a state agency or officer, if the estate is not to
be administered in a court having probate jurisdiction, the State
Treasurer or the state agency or officer authorized to disburse
the funds may pay or cause to be paid the money due, as provided
in subsection (3) of this section. Except as to payment of salary
or wages due a deceased state officer or employee from the State
of Oregon, no payment under this section shall be made in excess
of $10,000.
(2) Notwithstanding the provisions of subsection (1) of this
section, moneys on deposit with a state agency or officer
representing unpaid wages collected on behalf of a person by the
{ - Bureau of Labor and Industries - } { + Department of
Consumer and Business Services + } shall be payable pursuant to
subsection (3) of this section.
(3) Payment authorized by subsection (1) of this section shall
be made to the following groups of survivors of the decedent,
their guardians or the conservators of their estates, in equal
shares to all survivors in a group, and in the order listed, with
no payment to survivors in any group if there is any survivor in
any group preceding it as listed:
(a) Surviving spouse.
(b) The trustee of a revocable inter vivos trust created by the
decedent, unless within six months after the decedent dies a will
executed by the decedent requiring distribution of the amount to
a different person is admitted to probate.
(c) In equal shares to the children of the decedent and to the
issue of any deceased child by right of representation.
(d) Parents.
(e) Brothers and sisters.
(f) Nephews and nieces.
SECTION 51. ORS 329.850 is amended to read:
329.850. (1) The Education and Workforce Policy Advisor, in
consultation with the Department of Education, the Department of
Community Colleges and Workforce Development, the { - Bureau of
Labor and Industries - } { + Department of Consumer and
Business Services + }, the Economic and Community Development
Department and the Department of Human Services, shall propose
policies and strategies consistent with this chapter.
(2) The Education and Workforce Policy Advisor's policies and
strategies must take into account that:
(a) The state must promote innovative thinking with respect to
the curriculum and educational delivery system of Oregon public
schools;
(b) The state must require of all youth a level of achievement
that prepares them to pursue college, professional technical
programs, apprenticeships, work-based training and school-to-work
programs;
(c) Greater employer investment is essential in the ongoing
training of all workers to meet workforce needs;
(d) The state must encourage Oregon businesses to improve
productivity by creating high performance work organizations that
provide high skills and high wage opportunities for youth and
adults; and
(e) All employment-related training, education and job
placement services and sources of funds must be coordinated among
state agencies and boards and must complement the state's overall
efforts on behalf of youth and adults.
SECTION 52. ORS 329.965 is amended to read:
329.965. (1) There is established the Interagency Shared
Information System. The purpose of the system is to collect and
share information for the development of statistical and
demographic data to facilitate the creation of strategies to
improve the education, training and quality of Oregon's
workforce. The system shall share aggregate information with a
state agency to allow the agency to develop policy, evaluate
policy and plan and measure performance.
(2) The Employment Department shall administer the Interagency
Shared Information System. The Education and Workforce Policy
Advisor shall oversee the development, implementation and
monitoring of the system.
(3) Every agency or program that receives funding under
sections 125 and 129, chapter 765, Oregon Laws 1993, and the
Department of Corrections and the Department of Consumer and
Business Services shall provide information to the Interagency
Shared Information System. Information shall be provided by the
agency or program in a format that encodes identifying data,
including the client's social security number, using a formula
unique to the agency or program that shall not be disclosed to
the system. The information in the system is a public record.
However, the system is not the custodian of the information for
purposes of ORS 192.410 to 192.505. If a state agency described
in this subsection prepares or acquires a record that is
confidential under federal or state law, including ORS 192.502
(2), the state agency does not violate confidentiality laws by
providing the information described in this section.
Notwithstanding the provisions of ORS 279.355 (3), 279.359 (3),
285A.446 and 657.665, the { - Bureau of Labor and
Industries - } { + Department of Consumer and Business
Services + }, the Job Training Partnership Act section of the
Department of Community Colleges and Workforce Development and
the Employment Department are authorized to provide information
to the Interagency Shared Information System.
(4) A state agency shall not allow public access to information
received from the system that identifies a particular individual
unless required by law. Any officer or employee of any of the
participating agencies who, without proper authority, shall
disclose confidential information under this section thereafter
may be disqualified from holding any appointment or employment
with the State of Oregon. The Employment Department shall adopt
by rule procedures to prevent disclosure of confidential
information submitted to the system.
SECTION 53. ORS 344.745 is amended to read:
344.745. (1) The State Apprenticeship and Training Council and
the Department of Education shall establish youth apprenticeship
and training and work based learning programs to provide
occupational skill training for up to 2,000 individual high
school students in each biennium. Notwithstanding the limitation
on the number of program participants, the Department { + of
Education + } and the { - Bureau of Labor and Industries - }
{ + Department of Consumer and Business Services + } may
increase the number of participants if federal funds become
available for such an increase. In the building and construction
trades industries, there shall be a maximum of 100 youth
apprentices or trainees per biennium. However, the council has
the authority to increase the number of youth apprentices in
building and construction trades on the basis of demonstrated
industry need.
(2) Participating students must be 16 years of age or older and
must be enrolled in a high school professional technical program
that is applicable to the specific youth apprenticeship and
training or work based learning program for which they are
applying. Students must demonstrate mastery of the essential
competencies contained in an approved career exploration
curriculum prior to being registered as a youth apprentice or
trainee. In licensed trades for building and construction and for
the operation of equipment and machinery defined as hazardous,
on-the-job training for students 16 or 17 years of age may be
simulated cooperatively at a training site.
(3) Participating schools shall develop and maintain a list of
students eligible for youth apprenticeship and training programs.
In a cooperative effort, school districts, education service
districts and local apprenticeship and training committee members
shall review and select students for participation from the list
of eligible students established under this subsection.
(4) Employers under ORS chapter 660 shall cooperate with the
State Director of Apprenticeship and Training through the
applicable apprenticeship committee to develop training
guidelines consistent with youth apprenticeship and training
standards for a specific trade. The guidelines shall provide
listing of work processes and related training to be done that
will permit the student to acquire necessary skills. The
employer, school and youth apprentice shall evaluate monthly the
student's progress in high school curriculum, related training
and on-the-job training.
(5) No registered youth apprentice or trainee shall displace a
regular employee of an approved employer.
SECTION 54. ORS 344.753 is amended to read:
344.753. (1) Employers who enter into written agreements with
educational institutions and who are providing training to
participants in youth apprenticeship and training or work based
learning programs are eligible for reimbursement of expenses
incurred in the training process. These expenses may include
wages paid to the student, training costs for mentors and
supervisors, equipment costs to set up youth training capacity,
curriculum development costs, costs of establishing interfirm
training centers or other costs necessitated by the training
agreement.
(2) The amount of reimbursement shall be 50 percent of the
actual cost of the investment, such reimbursement not to exceed
$2,500 per student who completes the agreed upon course of study.
In the event that a student drops out of the program through no
fault of the employer, the Department of Education may reimburse
the employer for costs incurred to that point.
(3) Eligible employers may elect to receive education service
credits in lieu of the reimbursement provided in this section.
The amount of the education service credit shall equal the value
of the potential reimbursement on a dollar-for-dollar basis.
Education service credits may be used to purchase educational
services provided to the employer by school districts, education
service districts, community colleges, the State System of Higher
Education or private providers approved by the Department of
Education.
(4) Employers who terminate students without the concurrence of
the school forfeit all claim to reimbursements or education
service credits earned under this section.
(5) The total amount of employer reimbursement allowable under
this section to all employers shall not exceed the amount
allocated therefor biennially from the Administrative Services
Economic Development Fund.
(6) Reimbursements allowed under this section must first be
certified with regard to eligibility and availability of funds
pursuant to a method established by the Department of Education
in consultation with the { - Bureau of Labor and Industries - }
{ + Department of Consumer and Business Services + }.
SECTION 55. ORS 344.757 is amended to read:
344.757. The Department of Education and the { - Bureau of
Labor and Industries - } { + Department of Consumer and
Business Services + } may apply for and obtain gifts and grants
of money from any public or private source for the use and
benefit of youth apprenticeship and training or work based
learning programs and shall expend funds received in accordance
with the terms of such gifts or grants.
SECTION 56. 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) A certified copy of a finding by the { - Commissioner of
the Bureau of Labor and Industries - } { + Director of the
Department of Consumer and Business Services + } under ORS
659.060 that the school has violated subsection (1) of this
section shall be adequate proof of the violation.
(3) As used in this section, 'discriminate' has the meaning
given 'discrimination' in ORS 659.150.
SECTION 57. ORS 351.070 is amended to read:
351.070. (1) The State System of Higher Education, in
accordance with rules adopted by the State Board of Higher
Education, shall implement a personnel system and may engage in
collective bargaining with its employees. All collective
bargaining with any certified or recognized exclusive employee
representative shall be under the direction and supervision of
the Chancellor of the State System of Higher Education. The State
System of Higher Education shall have payroll authority pursuant
to ORS 292.043 to 292.180.
(2)(a) The board shall establish competitive procedures for the
purchasing, procurement and contracting of goods and services for
the benefit of the State System of Higher Education and all the
institutions, departments and activities therein.
(b) The board shall ensure that the hourly rate of wage paid by
any contractor upon all public improvements contracts undertaken
for the board shall not be less than the same rate of wage as
determined by the { - Bureau of Labor and Industries - } { +
Director of the Department of Consumer and Business Services + }
for an hour's work in the same trade or occupation in the
locality where such labor is performed. Claims or disputes
arising under this subsection shall be decided by the
{ - Commissioner of the Bureau of Labor and Industries - } { +
Director of the Department of Consumer and Business Services + }.
(c) The board shall adopt policies and procedures that achieve
results equal to or better than the standards existing on July
17, 1995, regarding affirmative action, pay equity for comparable
work, recycling, the provision of workers' compensation insurance
to workers on contract and the participation of emerging small
businesses and businesses owned by minorities and women.
(3) The board may, for each institution under its control:
(a) Appoint and employ a president and the requisite number of
professors, teachers and employees, and prescribe their
compensation and tenure of office or employment.
(b) Demand and receive the interest mentioned in ORS 352.510
and all sums due and accruing to the institutions of higher
education for admission and tuition therein, and apply the same,
or so much thereof as is necessary, to the payment of the
compensation referred to in paragraph (a) of this subsection and
the other current expenses of the institutions.
(c) Prescribe fees for enrollment into the institutions. Such
enrollment fees shall include tuition for education and general
services and such other charges found by the board to be
necessary to carry out its educational programs. The board may
award student aid from any fund other than the General Fund.
(d) Prescribe incidental fees for programs under the
supervision or control of the board found by the board, upon its
own motion or upon recommendation of the recognized student
government of the institution concerned, to be advantageous to
the cultural or physical development of students. Fees realized
in excess of amounts allocated and exceeding required reserves
shall be considered surplus incidental fees and shall be
allocated for programs under the control of the board and found
to be advantageous to the cultural or physical development of
students by the institution president upon the recommendation of
the recognized student government at the institution concerned.
(e) Upon recommendation of the recognized student government,
collect optional fees authorized by the institution executive,
for student activities not included in paragraph (c) or (d) of
this subsection. The payment of such optional fees shall be at
the option and selection of the student and shall not be a
prerequisite of enrollment.
(f) Confer, on the recommendation of the faculty of any such
institution, such degrees as usually are conferred by such
institutions, or as they deem appropriate.
(g) Prescribe the qualifications for admission into such
institutions.
(4) Subject to such delegation as the board may decide to make
to the institutions, divisions and departments under its control,
the board, for each institution, division and department under
its control, shall:
(a) Supervise the general course of instruction therein, and
the research, extension, educational and other activities
thereof.
(b) Adopt rules and bylaws for the government thereof,
including the faculty, teachers, students and employees therein.
(c) Maintain cultural and physical development services and
facilities therefor and, in connection therewith, may cooperate
and enter into agreements with any person or governmental agency;
and may provide student health services and contract therefor.
(d) Prescribe and collect charges.
(e) Adopt rules relating to the creation, use, custody and
disclosure, including access, of student education records of the
institutions that are consistent with the requirements of
applicable state and federal law. Whenever a student has attained
18 years of age or is attending an institution of post-secondary
education, the permission or consent required of and the rights
accorded to a parent of the student regarding education records
shall thereafter be required of and accorded to only the student.
(5) For each institution under its jurisdiction, the board
shall provide opportunities for part-time students to obtain
complete undergraduate degrees at unconventional times, which
include but are not limited to early morning and noon hours,
evenings and weekends. In administering these degree programs,
the institution may use any educational facility available for
the use of the institution.
SECTION 58. ORS 399.235 is amended to read:
399.235. (1) Any violation of ORS 399.230 by an employer shall
be an unlawful employment practice.
(2) Complaints may be filed by employees with the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + }. The
{ - Commissioner of the Bureau of Labor and Industries - }
{ + director + } 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 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.
SECTION 59. { + ORS 651.050, 651.110, 651.120, 651.185 and
651.990 are added to and made a part of ORS chapter 705. + }
SECTION 60. ORS 651.050 is amended to read:
651.050. The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } shall cause to be enforced:
(1) All laws regulating the employment of adults and minors.
(2) All laws established for the protection of the health,
lives and limbs of persons employed in workshops, factories,
mills and other places.
(3) All laws enacted for the protection of employees.
(4) Laws which declare it to be a misdemeanor on the part of
employers to require as a condition of employment the surrender
of any rights of citizenship.
(5) Laws regulating and prescribing the qualifications of
persons in apprenticeable trades and crafts, and similar laws.
SECTION 61. ORS 651.110 is amended to read:
651.110. The { - Bureau of Labor and Industries - }
{ + Department of Consumer and Business Services + } may assist
and cooperate with the Wage and Hour and Public Contracts
Division of the United States Department of Labor and the
Children's Bureau of the Federal Security Agency in the
enforcement within this state of the Fair Labor Standards Act of
1938, approved June 25, 1938. Subject to the regulations of the
administrator of the Wage and Hour and Public Contracts Division
or the chief of the Children's Bureau and the laws of the state
applicable to the receipt and expenditure of moneys, the
{ - Bureau of Labor and Industries - } { + Department of
Consumer and Business Services + } may be reimbursed by said
division of the United States Department of Labor or said bureau
of the Federal Security Agency for the reasonable cost of such
assistance and cooperation. Records of the { - Bureau of Labor
and Industries - } { + Department of Consumer and Business
Services + } acquired under this section shall be kept in
confidence to the same extent the records of said federal
agencies are confidential, except that they shall at all times be
available to the proper agencies of the United States Government.
SECTION 62. ORS 651.120 is amended to read:
651.120. (1) The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services, or an inspector or employee of the Department
of Consumer and Business Services, + } 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.
(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 - } { + department + } to
enter.
SECTION 63. ORS 651.185 is amended to read:
651.185. The Prevailing Wage Education and Enforcement Account
is created in the General Fund of the State Treasury. All moneys
in the account are appropriated continuously to the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } to:
(1) Administer and provide investigations under and enforce the
provisions of ORS 279.348 to 279.380;
(2) Provide educational programs on public contracting and
purchasing law under ORS chapter 279; and
(3) Conduct surveys to determine prevailing wages.
SECTION 64. ORS 651.990 is amended to read:
651.990. { - (1) Willful neglect or refusal by any person
subpoenaed under ORS 651.060 to attend or testify at the time and
place named in the subpoena is punishable, upon conviction, by a
fine of not less than $25 nor more than $100, or by imprisonment
in the county jail not exceeding 30 days. - }
{ - (2) - } Violation of ORS 651.120 (2) is punishable, upon
conviction, by a fine of not less than $25 nor more than $100, or
by imprisonment in the county jail not exceeding 90 days.
SECTION 65. ORS 652.125 is amended to read:
652.125. (1) If, upon complaint by an employee, and after
investigation, it appears to the { - Commissioner of the Bureau
of Labor and Industries - } { + Director of the Department of
Consumer and Business Services + } that an employer is failing to
pay wages within five days of a payday scheduled by the employer,
the
{ - commissioner - } { + director + } may require the
employer to give a bond in such amount as the
{ - commissioner - } { + director + } determines necessary,
with sufficient surety, to { - assure - } { + ensure + }
timely payment of wages due employees for such future period as
the { - commissioner - } { + director + } considers
appropriate. In lieu of a bond, the
{ - commissioner - } { + director + } may accept a letter of
credit from an issuer approved by the { - commissioner - }
{ + director + }, upon such terms and conditions and for such
amount as the { - commissioner - } { + director + }
determines necessary to { - assure - } { + ensure + } timely
payment of wages for such future period as the
{ - commissioner - } { + director + } determines appropriate.
(2) If, within 10 days after demand for such bond, the employer
fails to provide the same, the { - commissioner - }
{ + director + } may commence court action against the employer
in the circuit court of appropriate jurisdiction to compel the
employer to furnish such bond or cease doing business until the
employer has done so. The employer shall have the burden of
proving the amount thereof to be excessive.
(3) If the court finds that there is just cause for requiring
such bond and that the same is reasonably necessary or
appropriate to secure the prompt payment of the wages of the
employees of such employer, the court shall enjoin such employer
from doing business in this state until the requirement is met,
or shall make other, and may make further, orders appropriate to
compel compliance with the requirement.
SECTION 66. ORS 652.320, as amended by section 39, chapter 351,
Oregon Laws 1999, is amended to read:
652.320. As used in ORS 652.310 to 652.414, unless the context
requires otherwise:
{ - (1) 'Commissioner' means the Commissioner of the Bureau
of Labor and Industries. - }
{ - (2) - } { + (1) + } 'Court' means a court of competent
jurisdiction and proper venue to entertain a proceeding referred
to in ORS 652.310 to 652.414.
{ - (3) - } { + (2) + } 'Demand' means a written demand for
payment made during business hours on an employer or any
appropriate representative of an employer by an employee or by
some person having and exhibiting due authority to act in said
employee's behalf.
{ + (3) 'Director' means the Director of the Department of
Consumer and Business Services. + }
(4) 'Pay' means to deliver or tender compensation at a
previously designated and reasonably convenient place in this
state, during working hours, in legal tender or by order or
negotiable instrument payable and paid in legal tender without
discount on demand in this state or by deposit without discount
in an employee's account in a financial institution, as defined
in ORS 706.008, in this state, provided the employee and the
employer have agreed to such deposit.
(5) 'Payment' means the delivery, tender or deposit of
compensation in the medium of payment described in subsection (4)
of this section. Such delivery, tender or deposit shall be made
to or for the account of the employee concerned or to or for the
account of any person having due authority to act in said
employee's behalf.
(6) 'Production' means a live presentation organized for the
economic gain of any person or organization utilizing the
personal services of one or more musicians and supporting
technical personnel.
(7) 'Producer-promoter' means a person, firm, association or
corporation which supervises, finances or attempts to organize a
production in this state other than:
(a) The proprietor of a commercial establishment with a full or
limited on-premises sales license issued under ORS chapter 471
who is staging a production on the proprietor's own premises;
(b) Any nonprofit organization staging a production for the
sole benefit of the organization, its members or the general
public; or
(c) A producer of motion pictures, television shows, or
commercials.
(8) 'Rate of payment' means the rate at which payment is made
or is to be made in the manner described in this section.
(9) 'Wage claim' means an employee's claim against an employer
for compensation for the employee's own personal services, and
includes any wages, compensation, damages or civil penalties
provided by law to employees in connection with a claim for
unpaid wages.
SECTION 67. ORS 652.330 is amended to read:
652.330. (1) The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } shall enforce ORS 652.310 to 652.414 and to
that end may:
(a) Investigate and attempt equitably to adjust controversies
between employers and employees in respect of wage claims or
alleged wage claims.
(b) Take assignments, in trust, of wage claims or judgments
thereon, liens and other instruments of security for payment of
wages from the assigning employees, spouses, parents or legal
guardians, having a right to the wages of such employees. All
such assignments shall run to the { - commissioner and any
successors in office - } { + director + }. The
{ - commissioner - } { + director + } may sue employers on
wage claims and other persons or property liable for any payment
thereof thus assigned with the benefits and subject to existing
laws applying to actions by employees for collection of wages.
The
{ - commissioner - } { + director + } is entitled to recover,
in addition to costs, such sum as the court or judge may adjudge
reasonable as attorney fees at trial and on appeal. The
{ - commissioner - } { + director + } may join in a single
proceeding and in one cause of action any number of wage claims
against the same employer. If the
{ - commissioner - } { + director + } does not prevail in
such action, the
{ - commissioner - } { + director + } shall pay all costs and
disbursements from the { - Bureau of Labor and Industries
Account - } { + Consumer and Business Services Fund + }.
(c) Make complaint in a criminal court for any violation of any
law providing for payment of wages and imposing a penalty for its
violation as for a crime.
(d) In any case where a civil action may be brought under this
chapter for the collection of a wage claim, provide for an
administrative proceeding to determine the validity and enforce
collection of the claim. The administrative proceeding shall be
conducted as provided in this chapter, and is subject to the
employer's right to elect a trial in a court of law.
(2) An assigning wage claimant shall not be regarded as a party
to any court action brought by the { - commissioner - }
{ + director + } under this section for any purpose.
SECTION 68. ORS 652.332 is amended to read:
652.332. (1) In any case when the { - Commissioner of the
Bureau of Labor and Industries - } { + Director of the
Department of Consumer and Business Services + } has received a
wage claim complaint { - which - } { + that + } the
{ - commissioner - } { + director + } could seek to collect
through court action, the { - commissioner - }
{ + director + } may instead elect to seek collection of such
claim through administrative proceedings in the manner provided
in this section, subject to the employer's right to request a
trial in a court of law. The { - commissioner - } { +
director + } may join in a single administrative proceeding any
number of wage claims against the same employer. Upon making such
election, the { - commissioner - } { + director + } shall
serve upon the employer and the wage claimant an order of
determination directing the employer to pay to the
{ - commissioner - } { + director + } the amount of the wage
claim and any penalty amounts under ORS 279.356 (1), 652.150 and
653.055 (1) determined to be owed the wage claimant. Service
shall be made in the same manner as service of summons or by
certified mail, return receipt requested. The order of
determination shall include:
(a) A reference to the particular sections of the statutes or
rules involved;
(b) A short and concise statement of the basis for the amounts
determined to be owed to each wage claimant;
(c) A statement of the party's right to request a contested
case hearing and to be represented by counsel at such a hearing,
and of the employer's right to a trial in a court of law,
provided that any request for a contested case hearing or trial
in a court of law must be received by the { - commissioner - }
{ + director + } in writing within 20 days after receipt by the
party of the order of determination;
(d) A statement that the employer must, within 20 days after
receipt of the order of determination, either pay in full the
wage claim and any penalties assessed, or present to the
{ - commissioner - } { + director + } a written request for a
contested case hearing or a trial in a court of law as provided
in this section;
(e) A statement that failure to make a written request to the
{ - commissioner - } { + director + } for a contested case
hearing or a trial of the claim in a court of law within the time
specified shall constitute a waiver of the right thereto and a
waiver of the right to a trial by jury; and
(f) A statement that unless the written requests provided for
in subsection (1)(c) of this section are received by the
{ - commissioner - } { + director + } within the time
specified for making such requests, the order of determination
shall become final.
(2) Upon failure of the employer to pay the amount specified in
the order of determination or to request a trial in a court of
law within the time specified, and upon failure of any party to
request a contested case hearing within the time specified, the
order of determination shall become final.
(3) If a party makes a timely request for a contested case
hearing, a hearing shall be held in accordance with the
applicable provisions of ORS 183.415 to 183.500 by { - the
commissioner or the commissioner's designee. The commissioner
shall adopt rules for such hearing. In any hearing before the
commissioner's designee, the designee is authorized to issue the
final order in the case. - } { + a hearing officer assigned
from the Hearing Officer Panel established under section 3,
chapter 849, Oregon Laws 1999. + } If the employer makes a timely
request for a trial in a court of law, the
{ - commissioner - } { + director + } may proceed against the
employer as provided in ORS 652.330 (1)(b).
(4) Final administrative orders issued in a wage claim
proceeding are subject to review by the Court of Appeals as
provided in ORS 183.480 and 183.482.
(5) When an order issued under this section becomes final, it
may be recorded in the County Clerk Lien Record in any county of
this state. 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.
(6) Where the wage claim arose out of work performed by the
claimant for the employer on any public works project to which
ORS 279.350 or 279.352 applies, and a state agency holds
sufficient funds as retainage on such project to pay such claim
or any portion thereof, the state agency may, at the request of
the
{ - commissioner - } { + director + }, pay to the
{ - commissioner - } { + director + } from the retainage all
or part of the amount due on the claim under the final order.
SECTION 69. ORS 652.332, as amended by section 68 of this 2001
Act, is amended to read:
652.332. (1) In any case when the Director of the Department of
Consumer and Business Services has received a wage claim
complaint that the director could seek to collect through court
action, the director may instead elect to seek collection of such
claim through administrative proceedings in the manner provided
in this section, subject to the employer's right to request a
trial in a court of law. The director may join in a single
administrative proceeding any number of wage claims against the
same employer. Upon making such election, the director shall
serve upon the employer and the wage claimant an order of
determination directing the employer to pay to the director the
amount of the wage claim and any penalty amounts under ORS
279.356 (1), 652.150 and 653.055 (1) determined to be owed the
wage claimant. Service shall be made in the same manner as
service of summons or by certified mail, return receipt
requested. The order of determination shall include:
(a) A reference to the particular sections of the statutes or
rules involved;
(b) A short and concise statement of the basis for the amounts
determined to be owed to each wage claimant;
(c) A statement of the party's right to request a contested
case hearing and to be represented by counsel at such a hearing,
and of the employer's right to a trial in a court of law,
provided that any request for a contested case hearing or trial
in a court of law must be received by the director in writing
within 20 days after receipt by the party of the order of
determination;
(d) A statement that the employer must, within 20 days after
receipt of the order of determination, either pay in full the
wage claim and any penalties assessed, or present to the director
a written request for a contested case hearing or a trial in a
court of law as provided in this section;
(e) A statement that failure to make a written request to the
director for a contested case hearing or a trial of the claim in
a court of law within the time specified shall constitute a
waiver of the right thereto and a waiver of the right to a trial
by jury; and
(f) A statement that unless the written requests provided for
in subsection (1)(c) of this section are received by the director
within the time specified for making such requests, the order of
determination shall become final.
(2) Upon failure of the employer to pay the amount specified in
the order of determination or to request a trial in a court of
law within the time specified, and upon failure of any party to
request a contested case hearing within the time specified, the
order of determination shall become final.
(3) If a party makes a timely request for a contested case
hearing, a hearing shall be held in accordance with the
applicable provisions of ORS 183.415 to 183.500 by { - a
hearing officer assigned from the Hearing Officer Panel
established under section 3, chapter 849, Oregon Laws 1999. - }
{ + the director or the director's designee. The director shall
adopt rules for such hearing. In any hearing before the
director's designee, the designee is authorized to issue the
final order in the case. + } If the employer makes a timely
request for a trial in a court of law, the director may proceed
against the employer as provided in ORS 652.330 (1)(b).
(4) Final administrative orders issued in a wage claim
proceeding are subject to review by the Court of Appeals as
provided in ORS 183.480 and 183.482.
(5) When an order issued under this section becomes final, it
may be recorded in the County Clerk Lien Record in any county of
this state. 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.
(6) Where the wage claim arose out of work performed by the
claimant for the employer on any public works project to which
ORS 279.350 or 279.352 applies, and a state agency holds
sufficient funds as retainage on such project to pay such claim
or any portion thereof, the state agency may, at the request of
the director, pay to the director from the retainage all or part
of the amount due on the claim under the final order.
SECTION 70. { + The amendments to ORS 652.332 by section 69 of
this 2001 Act become operative on January 1, 2004. + }
SECTION 71. ORS 652.400 is amended to read:
652.400. Subject to ORS 652.390, all moneys collected on
judgments pursuant to ORS 652.330, or as a result of
administrative proceedings pursuant to ORS 652.332, including
fines, shall be paid to the { - Commissioner of the Bureau of
Labor and Industries - } { + Director of the Department of
Consumer and Business Services + } and, together with all other
sums collected under ORS 652.310 to 652.414, be deposited in the
State Treasury to become part of a special trust account to be
known as the Wage Collection Account, which account is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned by the account shall be credited to
the account. All moneys in the Wage Collection Account are
appropriated continuously for the purpose of payment to the
persons entitled thereto.
SECTION 72. ORS 652.405 is amended to read:
652.405. (1) The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } shall attempt for a period of not less than
seven years to make payment of wages collected under ORS 652.310
to 652.414 to the person entitled thereto.
(2) Wages collected by the { - commissioner - }
{ + director + } under ORS 652.310 to 652.414 and remaining
unclaimed for a period of more than seven years from the date of
collection shall, within 30 days after June 30 of each year, be
forfeited to the state and shall be paid by the
{ - commissioner - } { + director + } to the Division of State
Lands for the benefit of the Common School Fund of this state.
The division shall issue a receipt for the money to the
{ - commissioner - } { + director + }. The person entitled to
the wages or the person's heirs or personal representatives may
reclaim the wages paid into the Common School Fund pursuant to
this section within the time and in the manner provided for
estates { - which - } { + that + } have escheated to the
state.
SECTION 73. ORS 652.420 is amended to read:
652.420. (1) As used in ORS 652.420 to 652.445 { + , + }
{ - : - }
{ - (a) - } 'labor bureau' includes any agency, bureau,
commission, board or officer in another state { - which - }
{ + that + } performs functions substantially corresponding to
those of the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services relating to enforcement of wage claims + }.
{ - (b) 'Commissioner' means the Commissioner of the Bureau
of Labor and Industries. - }
(2) The definitions of ORS 652.310 and 652.320 shall apply to
ORS 652.420 to 652.445, but nothing contained in those sections
shall be construed to preclude reciprocal enforcement of wage
claims under ORS 652.420 to 652.445, where the services of the
employee were rendered in another state.
SECTION 74. ORS 652.425 is amended to read:
652.425. The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } may enter into agreements with { - the
corresponding - } { + a + } labor bureau of another state for
the reciprocal enforcement and collection of wage claims, if the
other state has a reciprocal statute similar to ORS 652.420 to
652.445 or otherwise authorizes the reciprocal enforcement and
collection of wage claims in a manner substantially similar to
ORS 652.420 to 652.445.
SECTION 75. ORS 652.430 is amended to read:
652.430. Whenever a wage claim is assigned to the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } in trust pursuant to ORS 652.330 and the employer or
former employer upon whom demand for payment is made by an
employee in this state has removed to another state, the
{ - commissioner - } { + director + } may reassign the wage
claim, with the approval of the employee, to the labor bureau of
the other state, if there is in effect at the time a valid
reciprocal agreement under ORS 652.425 between the
{ - commissioner - } { + director + } and the other state.
SECTION 76. ORS 652.435 is amended to read:
652.435. Whenever a labor bureau in another state, which has
entered into a reciprocal agreement under ORS 652.425 with the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } and the agreement is in effect at the time, takes an
assignment of a wage claim from an employee residing in the other
state for services rendered in the other state to an employer or
former employer who has removed to Oregon, the { - Commissioner
of the Bureau of Labor and Industries - } { + director + } may
take an assignment of the wage claim from such labor bureau and
enforce the collection thereof as provided in the applicable
provisions of ORS 652.330 to 652.414.
SECTION 77. ORS 652.440 is amended to read:
652.440. Any agreement concluded by the { - Commissioner of
the Bureau of Labor and Industries - } { + Director of the
Department of Consumer and Business Services + } shall make
provision for the transfer of funds collected pursuant to ORS
652.420 to 652.445 and for retention by the
{ - commissioner - } { + director + } or the labor bureau in
the other state of percentile amounts from the sums collected to
defray the administrative costs of ORS 652.420 to 652.445.
Amounts authorized pursuant to this section to be used to defray
the administrative costs of ORS 652.420 to 652.445 shall be
credited to the { - Bureau of Labor and Industries Account - }
{ + Consumer and Business Services Fund + } and shall be used
only for the administration of ORS 652.420 to 652.445.
SECTION 78. ORS 652.445 is amended to read:
652.445. Except as provided in ORS 652.440, all moneys
collected pursuant to ORS 652.420 to 652.445, including fines and
costs, shall be paid to the { - Commissioner of the Bureau of
Labor and Industries - } { + Director of the Department of
Consumer and Business Services + } and be deposited in the State
Treasury in the Wage Collection Account established by ORS
652.400.
SECTION 79. ORS 652.710 is amended to read:
652.710. (1) All moneys collected by an employer from employees
or retained from their wages for the purpose of providing for or
furnishing to such employees medical and surgical attention,
hospital care, X-rays, ambulance, nursing or any related service
or care contingent upon sickness or injury pursuant to a contract
are trust funds and shall be placed and kept in separate accounts
by the employer and shall promptly be paid over to the
contractor. Such funds shall in no event become a part of the
assets of the employer.
(2) If the employer fails to place and keep such funds in
separate accounts and pay them over to the contractor or if the
funds become commingled with the funds of the employer and the
employer becomes bankrupt, insolvent or goes through voluntary or
involuntary liquidation, or if a receiver is appointed to operate
or liquidate the affairs of the employer, the funds not paid to
the contractor shall be entitled to the same preference as given
to claims of the State Accident Insurance Fund Corporation, as
provided in ORS 656.562.
(3) On and after July 1, 1992, when an employer that is a group
health insurance policyholder subject to the provisions of ORS
743.560 receives notice that the group health insurance policy is
terminated by the insurer and the employer does not replace
coverage with any other group health insurance policy, the
employer shall notify all employees who were covered under the
terminated group policy. The employer's notification to the
employees shall:
(a) Explain the employee's rights regarding continuation or
conversion of coverage under state and federal law; and
(b) Be delivered to each employee in person or to the
employee's home address as recorded in the employer's records not
later than 10 working days after the receipt of notice from the
insurer pursuant to ORS 743.560 (1) to (3).
(4) In addition to any other penalty provided by law, the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } may assess a civil penalty not to exceed $1,000 for
each violation of subsection (1) or (3) of this section.
(5) Civil penalties under this section shall be imposed as
provided in ORS 183.090.
(6) All sums collected as penalties pursuant to this section
shall be first applied toward reimbursement of the costs incurred
in determining the violations, conducting hearings under this
section and assessing and collecting such penalties. The
remainder, if any, of the sums collected as penalties pursuant to
this section shall be paid over by the { - commissioner - }
{ + director + } to the Division of State Lands for the benefit
of the Common School Fund of this state. The division shall issue
a receipt for the money to the { - commissioner - } { +
director + }.
(7) The { - Commissioner of the Bureau of Labor and
Industries - } { + director + } may adopt rules reasonably
necessary for the administration of this section.
SECTION 80. ORS 652.900 is amended to read:
652.900. (1) In addition to any other penalty provided by law,
the { - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } may assess a civil penalty not to exceed $1,000
against any person who violates ORS 652.020 or any rule adopted
pursuant thereto.
(2) Civil penalties under this section shall be imposed as
provided in ORS 183.090.
(3) All penalties recovered under this section shall be paid
into the State Treasury and credited to the General Fund and are
available for general governmental expenses.
SECTION 81. ORS 653.010 is amended to read:
653.010. As used in ORS 653.010 to 653.261, unless the context
requires otherwise:
(1) 'Average weekly wage' means the average weekly wage of
workers in covered employment in Oregon, as determined by the
Employment Department for the preceding fiscal year.
{ - (2) 'Commissioner' means the Commissioner of the Bureau
of Labor and Industries. - }
{ + (2) 'Director' means the Director of the Department of
Consumer and Business Services. + }
(3) 'Employ' includes to suffer or permit to work; however, '
employ' does not include voluntary or donated services performed
for no compensation or without expectation or contemplation of
compensation as the adequate consideration for the services
performed for a public employer referred to in subsection (4) of
this section, or a religious, charitable, educational, public
service or similar nonprofit corporation, organization or
institution for community service, religious or humanitarian
reasons or for services performed by general or public assistance
recipients as part of any work training program administered
under the state or federal assistance laws.
(4) 'Employer' means any person who employs another person
including the State of Oregon or a political subdivision thereof
or any county, city, district, authority, public corporation or
entity and any of their instrumentalities organized and existing
under law or charter.
(5) 'Minor' means any person under 18 years of age.
(6) 'Occupation' means any occupation, service, trade,
business, industry, or branch or group of industries or
employment or class of employment in which employees are
gainfully employed.
(7) 'Organized camp' means a day or resident camp, whether or
not operated for profit, established to give campers
recreational, creative, religious or educational experience in
cooperative group living wherein the activities are conducted on
a closely supervised basis, whether or not the camp is used
primarily by an organized group or by members of the public and
whether or not the activities or facilities are furnished free of
charge or for the payment of a fee.
(8) 'Outside salesperson' means any employee who is employed
for the purpose of and who is customarily and regularly engaged
away from the employer's place or places of business in making
sales, or obtaining orders, or obtaining contracts for services
and whose hours of work of any other nature for the employer do
not exceed 30 percent of the hours worked in the workweek by the
nonexempt employees of the employer.
(9) 'Piece-rate' means a rate of pay calculated on the basis of
the quantity of the crop harvested.
(10) 'Salary' means no less than the wage set pursuant to ORS
653.025, multiplied by 2,080 hours per year, then divided by 12
months.
(11) 'Wages' means compensation due to an employee by reason of
employment, payable in legal tender of the United States or check
on banks convertible into cash on demand at full face value,
subject to such deductions, charges or allowances as are
permitted in ORS 653.035.
(12) 'Work time' includes both time worked and time of
authorized attendance.
SECTION 82. ORS 653.040 is amended to read:
653.040. The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + }, in addition to the
{ - commissioner's - } { + director's + } other powers, may:
(1) Investigate and ascertain the wages of persons employed in
any occupation or place of employment in the state.
(2) Require from an employer statements, including sworn
statements, with respect to wages, hours, names and addresses and
such other information pertaining to the employer's employees or
their employment as the { - commissioner - } { + director + }
considers necessary to carry out ORS 653.010 to 653.261.
(3) Make such rules as the { - commissioner - }
{ + director + } considers appropriate to carry out the purposes
of ORS 653.010 to 653.261, or necessary to prevent the
circumvention or evasion of ORS 653.010 to 653.261 and to
safeguard the minimum wage rates set under ORS 653.010 to
653.261.
SECTION 83. ORS 653.055 is amended to read:
653.055. (1) Any employer who pays an employee less than the
wages to which the employee is entitled under ORS 653.010 to
653.261 is liable to the employee affected:
(a) For the full amount of the wages, less any amount actually
paid to the employee by the employer; and
(b) For civil penalties provided in ORS 652.150.
(2) Any agreement between an employee and an employer to work
at less than the wage rate required by ORS 653.010 to 653.261 is
no defense to an action under subsection (1) of this section.
(3) The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } has the same powers and duties in
connection with a wage claim based on ORS 653.010 to 653.261 as
the { - commissioner - } { + director + } has under ORS
652.310 to 652.445 and in addition the { - commissioner - }
{ + director + } may, without the necessity of assignments of
wage claims from employees, initiate suits against employers to
enjoin future failures to pay required minimum wages or overtime
pay and to require the payment of minimum wages and overtime pay
due employees but not paid as of the time of the filing of suit.
The
{ - commissioner - } { + director + } may join in a single
proceeding and in one cause of suit any number of wage claims
against the same employer. If the { - commissioner - }
{ + director + } does not prevail in such action, the
{ - commissioner - } { + director + } shall pay all costs and
disbursements from the { - Bureau of Labor and Industries
Account - } { + Consumer and Business Services Fund + }.
(4) The court may award reasonable attorney fees to the
prevailing party in any action brought by an employee under this
section.
SECTION 84. ORS 653.070 is amended to read:
653.070. (1) As used in this section:
(a) 'Bona fide professional training program' includes any
professional training program approved by the Superintendent of
Public Instruction pursuant to rules of the State Board of
Education which provides for part-time employment training which
may be scheduled for a part of the workday or workweek, for
alternating weeks or for other limited periods during the year,
supplemented by and integrated with a definitely organized plan
of instruction designed to teach technical knowledge and related
information given as a regular part of the student-learner's
course by an accredited school, college or university.
(b) 'Student-learner' means a student who is receiving
instruction in an accredited school, college or university and
who is employed on a part-time basis, pursuant to a bona fide
professional training program.
(2) Notwithstanding ORS 653.025, employers shall pay
student-learners at least 75 percent of the minimum wage
prescribed by ORS 653.025.
(3) The number of hours of employment training for a
student-learner at subminimum wages, when added to the hours of
school instruction, shall not exceed eight hours on any day or 40
hours in any week.
(4) The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } may adopt rules prescribing the procedures
and requirements for application and issuance of special
certificates authorizing the employment of student-learners at
subminimum wages. The rules shall require that the following
conditions be satisfied before the issuance of such special
certificates:
(a) The employment of the student-learner at subminimum wages
authorized by the special certificate must be necessary to
prevent curtailment of opportunities for employment.
(b) The occupation for which the student-learner is receiving
preparatory training must require a sufficient degree of skill to
necessitate a substantial learning period.
(c) The training must not be for the purpose of acquiring
manual dexterity and high production speed in repetitive
operations.
(d) The employment of a student-learner must not have the
effect of displacing a worker employed in the establishment.
(e) The employment of the student-learners at subminimum wages
must not tend to impair or depress the wage rates or working
standards established for experienced workers for work of a like
or comparable character.
(f) The occupational needs of the community or industry warrant
the training of student-learners.
(g) There are no serious outstanding violations of the
provisions of a student-learner certificate previously issued to
the employer, or serious violations of any other provisions of
law by the employer which provide reasonable grounds to conclude
that the terms of the certificate would not be complied with, if
issued.
(h) The issuance of such a certificate would not tend to
prevent the development of apprenticeship under ORS chapter 660
or would not impair established apprenticeship standards in the
occupation or industry involved.
(i) The number of student-learners to be employed in one
establishment must not be more than a small proportion of its
working force.
(5) Failure to comply with subsection (2) or (3) of this
section shall subject the employer to a penalty of 75 percent of
the minimum wage prescribed by ORS 653.025 for each hour of work
time that the student-learner is gainfully employed. The
{ - Commissioner of the Bureau of Labor and Industries - }
{ + director + } shall have a cause of action against the
employer for the recovery of the penalty.
SECTION 85. ORS 653.307 is amended to read:
653.307. (1) In accordance with the applicable provisions of
ORS 183.310 to 183.550, the Wage and Hour Commission shall adopt
rules governing annual employment certificates required under
this section. { - After September 9, 1995, - } The rules
governing the total hours a minor can work shall not be more
restrictive than the requirements of the Federal Fair Labor
Standards Act (29 U.S.C. 202, et seq.), unless otherwise
provided by Oregon law.
(2) An employer who hires minors shall apply to the Wage and
Hour Commission for an annual employment certificate to employ
minors. The application shall be on a form provided by the
commission and shall include, but not be limited to:
(a) The estimated or average number of minors to be employed
during the year.
(b) A description of the activities to be performed.
(c) A description of the machinery or other equipment to be
used by the minors.
(3) Once a year, the { - Bureau of Labor and Industries - }
{ + Department of Consumer and Business Services + } shall
provide to all employers applying for an annual employment
certificate an information sheet summarizing all rules and laws
governing the employment of minors.
(4) Failure by an employer to comply with ORS 653.305 to
653.340 or with the regulations adopted by the Wage and Hour
Commission pursuant to this section shall subject the employer to
revocation of the right to hire minors in the future at the
discretion of the Wage and Hour Commission, provided that an
employer shall be granted a hearing before { - the Wage and
Hour Commission - } { + a hearing officer assigned from the
Hearing Officer Panel established under section 3, chapter 849,
Oregon Laws 1999, + } prior to such action being taken.
(5) All school districts shall cooperate with the Wage and Hour
Commission and make available upon request of the commission,
information concerning the age and schooling of minors.
SECTION 86. ORS 653.307, as amended by section 85 of this 2001
Act, is amended to read:
653.307. (1) In accordance with the applicable provisions of
ORS 183.310 to 183.550, the Wage and Hour Commission shall adopt
rules governing annual employment certificates required under
this section. The rules governing the total hours a minor can
work shall not be more restrictive than the requirements of the
Federal Fair Labor Standards Act (29 U.S.C. 202, et seq.), unless
otherwise provided by Oregon law.
(2) An employer who hires minors shall apply to the Wage and
Hour Commission for an annual employment certificate to employ
minors. The application shall be on a form provided by the
commission and shall include, but not be limited to:
(a) The estimated or average number of minors to be employed
during the year.
(b) A description of the activities to be performed.
(c) A description of the machinery or other equipment to be
used by the minors.
(3) Once a year, the Department of Consumer and Business
Services shall provide to all employers applying for an annual
employment certificate an information sheet summarizing all rules
and laws governing the employment of minors.
(4) Failure by an employer to comply with ORS 653.305 to
653.340 or with the regulations adopted by the Wage and Hour
Commission pursuant to this section shall subject the employer to
revocation of the right to hire minors in the future at the
discretion of the Wage and Hour Commission, provided that an
employer shall be granted a hearing before { - a hearing
officer assigned from the Hearing Officer Panel established under
section 3, chapter 849, Oregon Laws 1999, - } { + the Wage and
Hour Commission + } prior to such action being taken.
(5) All school districts shall cooperate with the Wage and Hour
Commission and make available upon request of the commission,
information concerning the age and schooling of minors.
SECTION 87. { + The amendments to ORS 653.307 by section 86 of
this 2001 Act become operative on January 1, 2004. + }
SECTION 88. ORS 653.370 is amended to read:
653.370. (1) In addition to any other penalty provided by law,
the { - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } may impose upon any person who violates ORS 653.305
to 653.370 or any rule adopted by the Wage and Hour Commission
thereunder, a civil penalty not to exceed $1,000 for each
violation.
(2) Notwithstanding ORS 183.482, any petition for review of an
order imposing a civil penalty under this section must be filed
within 30 days following the date the order upon which the
petition is based is served.
(3) Except as otherwise provided in this section, civil
penalties under this section shall be imposed as provided in ORS
183.090.
(4) All sums collected as penalties pursuant to this section
shall be first applied toward reimbursement of the costs incurred
in determining the violations, conducting hearings under this
section and assessing and collecting such penalties. The
remainder, if any, of the sums collected as penalties pursuant to
this section shall be paid over by the { - commissioner - }
{ + director + } to the Division of State Lands for the benefit
of the Common School Fund of this state. The division shall issue
a receipt for the money to the { - commissioner - } { +
director + }.
(5)(a) Notwithstanding subsection (1) of this section, the
{ - commissioner - } { + director + } may not impose a civil
penalty pursuant to this section upon any person who provides
evidence satisfactory to the { - commissioner - }
{ + director + } that:
(A) The person has paid a civil penalty to the United States
Department of Labor for violation of the child labor provisions
of the Federal Fair Labor Standards Act (29 U.S.C. 201 et seq.);
and
(B) The civil penalty involved the same factual circumstances
at issue before the { - commissioner - } { + director + }.
(b) Notwithstanding subsection (1) of this section, the
{ - commissioner - } { + director + } shall refund any civil
penalty previously imposed on and collected from any person
pursuant to this section if the person provides evidence
satisfactory to the { - commissioner - } { + director + }
that:
(A) The person has paid a civil penalty to the United States
Department of Labor for violation of the child labor provisions
of the Federal Fair Labor Standards Act (29 U.S.C. 201 et seq.);
and
(B) The civil penalty involved the same factual circumstances
underlying the { - commissioner's - } { + director's
+ }imposition of a civil penalty.
SECTION 89. ORS 653.515 is amended to read:
653.515. (1) The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } shall be the secretary and executive
officer of the Wage and Hour Commission.
(2) The secretary of the commission may employ such clerical
assistance and incur such expenses as may be necessary in
performing the duties of the secretary.
SECTION 90. ORS 653.540 is amended to read:
653.540. The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } shall, at all times, give to the Wage and
Hour Commission any information or statistics in the office of
the { - commissioner - } { + director + } that would assist
the commission in carrying out ORS 653.305 { - , - }
{ + and + } 653.505 to 653.535 and render such assistance to the
commission as is consistent with the performance of the official
duties of the { - commissioner - } { + director + }.
SECTION 91. 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 - } { + director + } alleging
such discrimination under the provisions of ORS 659.040. Upon
receipt of such complaint the
{ - commissioner - } { + director + } 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 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 - } { + director + } 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 - } { + director + } 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 - } { + director + }
shall notify the complainant of the { - commissioner's - }
{ + director's + }determination under paragraph (b) of this
subsection.
SECTION 92. ORS 654.251 is amended to read:
654.251. (1) { - The Bureau of Labor and Industries and - }
Any
{ - other - } state agency { - which - } { + that + } is
vested under separate statute with the authority to make
inspections of places of employment, or to promulgate
regulations, rules or standards relating to particular areas of
occupational safety and health, shall render such advice and
assistance to the Director of the Department of Consumer and
Business Services as the director may reasonably request or
prescribe in order to carry out the purposes of ORS 654.001 to
654.295 and 654.750 to 654.780. When any state agency completes
an inspection of a place of employment, it shall promptly notify
the director and the affected employer of any condition that may
violate any occupational safety or health law, regulation, rule
or standard.
(2) In addition to the inspection authority granted to the
director and the representatives and designees of the director by
ORS 654.001 to 654.295 and 654.750 to 654.780, the { - Bureau
of Labor and Industries - } { + director + } may inspect farm
labor camps, fields and facilities prior to occupancy and as
reasonably necessary or appropriate thereafter { - , and shall
report any violation of occupational safety or health laws,
regulations, rules or standards to the director or the designees
of the director - } .
SECTION 93. ORS 657.665 is amended to read:
657.665. (1) Information secured from employing units,
employees or other individuals pursuant to this chapter:
(a) Shall be confidential and for the exclusive use and
information of the Director of the Employment Department in the
discharge of duties and shall not be open to the public (other
than to public employees in the performance of their public
duties under state or federal laws for the payment of
unemployment insurance benefits and to public employees in the
performance of their public duties under the recognized
compensation and retirement, relief or welfare laws of this
state), except to the extent necessary for the presentation of a
claim and except as required by the regulations of the United
States Secretary of Health and Human Services pursuant to section
3304(a) of the Federal Unemployment Tax Act, as amended, and
except as required by section 303 of the Social Security Act, as
amended.
(b) Shall not be used in any court in any action or proceeding
pending therein unless the director or the state is a party to
such action or proceedings or the proceedings concern the
establishment, enforcement or modification of a support
obligation and support services are being provided by the
Division of Child Support or the district attorney pursuant to
ORS 25.080.
(2) However, any claimant or legal representative, at a hearing
before a hearing officer, shall be supplied with information from
such records to the extent necessary for the proper presentation
of a claim.
(3) Notwithstanding subsection (1) of this section, information
secured from employing units pursuant to this chapter may be
released:
(a) To agencies of this state, and political subdivisions
acting alone or in concert in city, county, metropolitan,
regional or state planning to the extent necessary to properly
carry out governmental planning functions performed under
applicable law. Information provided such agencies shall be
confidential and shall not be released by such agencies in any
manner that would be identifiable as to individuals, claimants,
employees or employing units. Costs of furnishing information
pursuant to this subsection not prepared for the use of the
Employment Department shall be borne by the parties requesting
the information; and
(b) In accordance with ORS 657.673.
(4) Nothing in this section shall prevent the Employment
Department from providing names and addresses of employing units
to the { - Oregon Bureau of Labor and Industries - }
{ + Department of Consumer and Business Services + } for the
purpose of disseminating information to employing units. The
names and addresses provided shall be confidential and shall not
be used for any other purposes. Costs of furnishing information
pursuant to this subsection not prepared for the use of the
Employment Department shall be borne by the { - Bureau of Labor
and Industries - } { + Department of Consumer and Business
Services + }.
(5) Nothing in this section shall prevent the Employment
Department from providing to the { - Commissioner of the Bureau
of Labor and Industries - } { + Director of the Department of
Consumer and Business Services + }, for the purpose of performing
duties under ORS 279.348 to 279.380, the names, addresses and
industrial codes of employer units, the number of employees each
unit employs during a given time period and the firm number
assigned to employer units by the Employment Department.
Information so provided shall be confidential and shall not be
released by the { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } in any manner that would identify such
employing units except to the extent necessary to carry out the
purposes of this subsection and as provided in subsection (1)(b)
of this section. Costs of furnishing information pursuant to this
subsection not prepared for the use of the Employment Department
shall be borne by the { - Bureau of Labor and Industries - }
{ + Department of Consumer and Business Services + }.
(6) Nothing in this section shall prevent the Employment
Department from providing information required under ORS 657.660
(3) and (4) to the Public Employees Retirement System for the
purpose of determining the eligibility of members of the
retirement system for disability retirement allowances under ORS
chapter 238. The information provided shall be confidential and
shall not be used for any other purposes. Costs of furnishing
information pursuant to this subsection shall be borne by the
Public Employees Retirement System.
(7) Any officer or employee of the Director of the Employment
Department, who, except with authority of the director or
pursuant to regulations, or as otherwise required by law, shall
disclose confidential information under this section, thereafter
may be disqualified from holding any appointment or employment by
the director.
(8) Nothing in this section shall prevent the Employment
Department from providing information to the Department of
Revenue for the purpose of performing its duties under ORS
293.250, or the revenue and tax laws of this state. Information
provided may include names and addresses of employers and
employees and payroll data of employers and employees.
Information so provided shall be confidential and shall not be
released by the Director of the Department of Revenue in any
manner that would identify such employing unit or employee except
to the extent necessary to carry out its duties under ORS 293.250
or in auditing or reviewing any report or return required or
permitted to be filed under the revenue and tax laws administered
by the department. However, the Director of the Department of
Revenue shall not disclose any information received to any
private collection agency or for any other purpose. Costs of
furnishing information pursuant to this subsection not prepared
for the use of the Employment Department shall be borne by the
Department of Revenue.
(9) Nothing in this section shall prevent the Employment
Department from providing information to the Department of
Consumer and Business Services for the purpose of performing its
duties under ORS chapter 656. Information provided may include
names and addresses of employers and employees and payroll data
of employers and employees. Information so provided shall be
confidential and shall not be released by the Director of the
Department of Consumer and Business Services in any manner that
would identify such employing unit or employee except to the
extent necessary to carry out its duties under ORS chapter 656.
However, the Director of the Department of Consumer and Business
Services shall not disclose any information received to any
private collection agency or for any other purpose. Costs of
furnishing information pursuant to this subsection not prepared
for the use of the Employment Department shall be borne by the
Department of Consumer and Business Services.
(10) Nothing in this section shall prevent the Employment
Department from providing information to the Construction
Contractors Board for the purpose of performing its duties under
ORS chapter 701. Information provided to the board may include
names and addresses of employers and status of their compliance
with this chapter.
(11) Nothing in this section shall prevent the Employment
Department from providing information to the State Fire Marshal
to assist the State Fire Marshal in carrying out duties,
functions and powers under ORS 453.307 to 453.414. Information so
provided shall be the employer or agent name, address, telephone
number and standard industrial classification. Information so
provided shall be confidential and shall not be released by the
State Fire Marshal in any manner that would identify such
employing units except to the extent necessary to carry out
duties under ORS 453.307 to 453.414. Costs of furnishing
information pursuant to this subsection not prepared for the use
of the Employment Department shall be borne by the office of the
State Fire Marshal.
(12) Nothing in this section shall prevent the Employment
Department from providing information to the Oregon Student
Assistance Commission for the purposes of performing the
commission's duties under ORS chapter 348 and Title IV of the
Higher Education Act of 1965, as amended. Information provided
may include names and addresses of employers and employees and
payroll data of employers and employees. Information so provided
shall be confidential and shall not be released by the Oregon
Student Assistance Commission in any manner that would identify
such employing unit or employee except to the extent necessary to
carry out duties under ORS chapter 348 or Title IV of the Higher
Education Act of 1965, as amended. Costs of furnishing
information pursuant to this subsection not prepared for the use
of the Employment Department shall be borne by the Oregon Student
Assistance Commission.
(13) Any person or officer or employee of an entity to whom
information is disclosed or given by the Employment Department
pursuant to this section, who divulges or uses such information
for any purpose other than that specified in the provision of law
or agreement authorizing the use or disclosure, may be
disqualified from holding any appointment or employment, or
performing any service under contract, with the state agency
employing that person or officer.
SECTION 94. ORS 658.005 is amended to read:
658.005. As used in ORS 658.005 to 658.245, unless the context
requires otherwise:
(1) 'Applicant for employment' or 'applicant' means an
individual who is seeking or who has obtained employment through
the services of an employment agency.
(2) 'Charge for services' means any money or other
consideration paid or promised to be paid by an applicant for
employment for services rendered by an employment agency.
{ + (3) 'Director' means the Director of the Department of
Consumer and Business Services. + }
{ - (3) - } { + (4) + } 'Employment agency' or 'agency'
means a business, service, bureau or club operated by a person,
firm, organization, limited liability company or corporation
engaged in procuring for a fee, employment for others and
employees for employers.
{ - (4) - } { + (5) + } 'Employment agency' or 'agency'
does not include:
(a) A nursing school, business school or career school that
does not charge a fee for placement.
(b) Any business, person, service, bureau, organization or club
that by advertisement or otherwise offers as its main object or
purpose to counsel, teach or prepare individuals to obtain
employment, and which charges for its services, whether in the
form of dues, tuition, membership fees, registration fees or any
other valuable service.
(c) Any business, service, bureau or club operated by a person,
firm, organization, limited liability company or corporation
engaged in procuring employment for others when the charges for
services are paid, directly or indirectly, by anyone other than
the applicant for employment.
{ - (5) 'Commissioner' means the Commissioner of the Bureau
of Labor and Industries. - }
SECTION 95. ORS 658.015 is amended to read:
658.015. (1) ORS 658.005 to 658.245 do not apply to farm labor
contractors subject to ORS 658.405 to 658.503.
(2) ORS 658.005 to 658.245 do not apply to any nonprofit
organization or corporation organized for the purpose of economic
adjustment, civic betterment and the giving of professional
guidance and placement to its members, when all of the following
requirements are met:
(a) None of its directors, officers or employees are deriving
any profit beyond a nominal salary for services performed on its
behalf.
(b) Membership dues and fees are used solely for the
maintenance of the organization or corporation.
(c) No fee is charged for employment services.
(d) On request of the { - Commissioner of the Bureau of Labor
and Industries - } { + Director of the Department of Consumer
and Business Services + }, the organization or corporation files
with the
{ - commissioner - } { + director + }, on or before the first
day of April of each year, a copy of its constitution or articles
of incorporation and its bylaws, together with a sworn statement
setting forth its place of business; the names and addresses of
its officers, directors and employees, the salaries they receive
and the services they actually perform; and the various benefits
furnished to its members.
(3) As used in subsection (2) of this section:
(a) 'Civic betterment' means the promotion of the common good
and general welfare of the people of this state or any political
subdivision therein.
(b) 'Economic adjustment' means the promotion of a program by
which individuals are helped to acquire new professional skills,
add to their existing professional skills or change their type of
profession.
(4) ORS 658.005 to 658.245 do not apply to a bona fide labor
organization of workers or a nonprofit organization or
corporation that has been formed in good faith for the
regulation, promotion and advancement of the general professional
interests of its members and that incidentally maintains a
placement service principally engaged in securing employment for
such members.
SECTION 96. ORS 658.405 is amended to read:
658.405. As used in ORS 658.405 to 658.503 and 658.991 (2) and
(3), unless the context requires otherwise:
(1) 'Agricultural association' means a nonprofit or cooperative
association of farmers, growers or ranchers that is incorporated
under applicable state law and that acts as a farm labor
contractor solely on behalf of members of the association.
{ - (2) 'Commissioner' means the Commissioner of the Bureau
of Labor and Industries. - }
{ - (3) - } { + (2) + } 'Crew leader' means the member of a
group of workers who (a) acts as spokesman for the group, (b)
travels with the group from another state into Oregon and (c)
performs the same work along with other group members. A crew
leader may transport workers from their local place of residence
to their place of employment so long as the crew leader does not
perform this service for a profit.
{ + (3) 'Department' means the Department of Consumer and
Business Services.
(4) 'Director' means the Director of the Department of Consumer
and Business Services. + }
{ - (4) - } { + (5) + } 'Farm labor contractor' means any
person who, for an agreed remuneration or rate of pay, recruits,
solicits, supplies or employs workers to perform labor for
another to work in forestation or reforestation of lands,
including but not limited to the planting, transplanting, tubing,
precommercial thinning and thinning of trees and seedlings, the
clearing, piling and disposal of brush and slash and other
related activities or the production or harvesting of farm
products; or who recruits, solicits, supplies or employs workers
to gather evergreen boughs, yew bark, bear grass, salal or ferns
from public lands for sale or market prior to processing or
manufacture; or who recruits, solicits, supplies or employs
workers on behalf of an employer engaged in these activities; or
who, in connection with the recruitment or employment of workers
to work in these activities, furnishes board or lodging for such
workers; or who bids or submits prices on contract offers for
those activities; or who enters into a subcontract with another
for any of those activities. However, 'farm labor contractor'
does not include:
(a) Farmers, including owners or lessees of land intended to be
used for the production of timber, their permanent employees,
advertising media, platoon leaders or individuals engaged in the
solicitation or recruitment of persons for dayhaul work in
connection with the growing, production or harvesting of farm
products;
(b) The Employment Department;
(c) A crew leader;
(d) An individual who performs work, other than recruiting,
supplying, soliciting or employing workers to perform labor for
another, alone or only with the assistance of the individual's
spouse, son, daughter, brother, sister, mother or father;
(e) Individuals who perform labor pursuant to an agreement for
exchanging their own labor or services with each other, provided
the work is performed on land owned or leased by the individuals;
(f) An educational institution that is recognized as such by
the Department of Education; or
(g) A farmer who operates a farmworker camp, regulated under
ORS 658.750, who recruits, supplies, solicits or employs workers
only for the farmer's own operations, and has farmworkers living
in the camp who are employed by another on no more than an
incidental basis, and the farmer receives no remuneration by
virtue of such incidental employment.
SECTION 97. ORS 658.407 is amended to read:
658.407. The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } shall administer and enforce ORS 658.405 to
658.503, and in so doing shall:
(1) Investigate and attempt to adjust equitably controversies
between farm labor contractors and their workers with respect to
claims arising under ORS 658.415 (3) or 658.419.
(2) Take appropriate action to establish the liability or lack
thereof of the farm labor contractor for wages of the employees
of the farm labor contractor and if appropriate proof exists of
liability for wages the { - commissioner - } { + director + }
shall pay the same or such part thereof as the
{ - commissioner - } { + director + } has funds on deposit or
cause the surety company to forthwith pay the entire liability or
such part thereof as the sums due under the bond will permit.
(3) Adopt appropriate rules to administer ORS 658.405 to
658.503.
SECTION 98. ORS 658.413 is amended to read:
658.413. (1) The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } shall establish by rule a fee schedule for
issuing and renewing licenses and indorsements under ORS 658.405
to 658.503 and 658.705 to 658.850. The fees shall be in amounts
reasonably necessary to provide sufficient funds to administer
ORS 658.405 to 658.503 and 658.705 to 658.850. Fees may not
exceed the following amounts:
(a) $100 for a farm labor contractor license.
(b) $100 for a farm labor contractor license with employee
indorsement.
(c) $250 for a farm labor contractor license with forestation
or reforestation indorsement.
(d) $250 for a farm labor contractor license with forestation
or reforestation indorsement subject to ORS 658.418.
(e) $250 for a farm labor contractor license with employee and
forestation or reforestation indorsements.
(f) $50 for a farmworker camp indorsement, paid in addition to
one of the fees set out in paragraphs (a) to (e) of this
subsection.
(2) An applicant for a license or indorsement, or for the
renewal of a license or indorsement, shall pay the fee or fees
established by the { - commissioner - } { + director + }
under subsection (1) of this section.
(3) Fees may not be refunded or prorated.
(4) All fees received pursuant to this section shall be
credited to the { - Bureau of Labor and Industries Account - }
{ + Consumer and Business Services Fund + } and are continuously
appropriated to the { - Bureau of Labor and Industries - }
{ + Department of Consumer and Business Services + } to be used
only for the administration of ORS 658.405 to 658.503 and 658.705
to 658.850.
SECTION 99. ORS 658.415 is amended to read:
658.415. (1) No person shall act as a farm labor contractor
unless the person has first been licensed by the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } under ORS 658.405 to 658.503. Any person may file an
application for a license to act as a farm labor contractor at
any office of the { - Bureau of Labor and Industries - } { +
Department of Consumer and Business Services + }. The application
shall be sworn to by the applicant and shall be written on a form
prescribed by the { - commissioner - } { + director + }. The
form shall include, but not be limited to, questions asking:
(a) The applicant's name, Oregon address and all other
temporary and permanent addresses the applicant uses or knows
will be used in the future.
(b) Information on all motor vehicles to be used by the
applicant in operations as a farm labor contractor including
license number and state of licensure, vehicle number and the
name and address of vehicle owner for all vehicles used.
(c) Whether or not the applicant was ever denied a license
under ORS 658.405 to 658.503 within the preceding three years, or
in this or any other jurisdiction had such a license denied,
revoked or suspended within the preceding three years.
(d) The names and addresses of all persons financially
interested, whether as partners, shareholders, associates or
profit-sharers, in the applicant's proposed operations as a farm
labor contractor, together with the amount of their respective
interests, and whether or not, to the best of the applicant's
knowledge, any of these persons was ever denied a license under
ORS 658.405 to 658.503 within the preceding three years, or had
such a license denied, revoked or suspended within the preceding
three years in this or any other jurisdiction.
(2) Each applicant shall furnish satisfactory proof with the
application of the existence of a policy of insurance in an
amount adequate under rules issued by the { - commissioner - }
{ + director + } for vehicles to be used to transport workers.
For the purpose of this subsection the certificate of an
insurance agent licensed in Oregon is satisfactory evidence of
adequate insurance.
(3) Each applicant shall submit with the application and shall
continually maintain thereafter, until excused, proof of
financial ability to promptly pay the wages of employees and
other obligations specified in this section. The proof required
in this subsection shall be in the form of a corporate surety
bond of a company licensed to do such business in Oregon, a cash
deposit or a deposit the equivalent of cash. For the purposes of
this subsection it shall be deemed sufficient compliance if the
farm labor contractor procures a savings account at a bank or
savings and loan institution in the name of the
{ - commissioner - } { + director + } as trustee for the
employees of the farm labor contractor and others as their
interests may appear and delivers the evidence of the account and
the ability to withdraw the funds to the
{ - commissioner - } { + director + } under the terms of a
bond approved by the
{ - commissioner - } { + director + }. The amount of the bond
and the security behind the bond, or the cash deposit, shall be
based on the maximum number of employees the contractor employs
at any time during the year. The bond or cash deposit shall be:
(a) $10,000 if the contractor employs no more than 20
employees; or
(b) $30,000, or such lesser sum as may be authorized by the
{ - commissioner - } { + director + } under ORS 658.416, if
the contractor employs 21 or more employees.
(4) In the event that a single business entity licensed as a
farm labor contractor has more than one natural person who, as an
owner or employee of the business entity, engages in activities
that require the persons to be licensed individually as farm
labor contractors, and each such person engages in such
activities solely for that business entity, the
{ - commissioner - } { + director + } may provide by rule for
lower aggregate bonding requirements for the business entity and
its owners and employees. If there is an unsatisfied final
judgment of a court or decision of an administrative agency
against a license applicant, the subject of which is any matter
that would be covered by the bond or deposit referred to in
subsection (3) of this section, the { - commissioner - } { +
director + } shall not issue a license to the applicant until the
judgment or decision is satisfied. As a condition of licensing
any such applicant, the { - commissioner - } { + director + }
may require the applicant to submit proof of financial ability
required by subsection (3) of this section in an amount up to
three times that ordinarily required of a license applicant.
(5) All corporate surety bonds filed under this section or ORS
658.419 shall be executed to cover liability for the period for
which the license is issued. During the period for which it is
executed, no bond may be canceled or otherwise terminated.
(6) Each application must be accompanied by the fee established
under ORS 658.413.
(7) Any person who uses the services of a farm labor contractor
who has failed to comply with any of the provisions of this
section or ORS 658.419 shall:
(a) Be personally and jointly and severally liable to any
employee so far as such employee has not been paid wages in full
for the work done for that person.
(b) Be personally liable for all penalty wages that have
occurred under ORS 652.150 for the wages due under this section.
(8) Any person who suffers any loss of wages from the employer
of the person or any other loss specified in subsection (16) of
this section shall have a right of action in the name of the
person against the surety upon the bond or against the deposit
with the { - commissioner - } { + director + }. The right of
action:
(a) Is assignable and must be included with an assignment of a
wage claim, of any other appropriate claim, or of a judgment
thereon.
(b) Shall not be included in any suit or action against the
farm labor contractor but must be exercised independently after
first procuring a judgment, decree, or other form of adequate
proof of liability established by rule and procedure under
subsection (14) of this section establishing the farm labor
contractor's liability for the claim.
(9) The surety company or the { - commissioner - }
{ + director + } shall make prompt and periodic payments on the
farm labor contractor's liability up to the extent of the total
sum of the bond or deposit. Payments shall be made in the
following manner:
(a) Payment shall be made based upon priority of wage claims
over advances made by the grower or producer of agricultural
commodities or the owner or lessee of land intended to be used
for the production of timber, for advances made to or on behalf
of the farm labor contractor.
(b) Payment in full of all sums due to each person who presents
adequate proof of the claim.
(c) If there are insufficient funds to pay in full the person
next entitled to payment in full, such person shall be paid in
part.
(10) A person may not bring any suit or action against the
surety company or the { - commissioner - } { + director + }
on the bond or against the { - commissioner - }
{ + director + } as the trustee for the beneficiaries of the
farm labor contractor under any deposit made pursuant to this
section or ORS 658.419 unless the person has first exhausted the
procedures contained in subsections (8) and (12) of this section
or in ORS 658.419 and contends that the surety company or the
{ - commissioner - } { + director + } still has funds that are
applicable to the person's judgment or acknowledgment.
(11) The { - commissioner - } { + director + } may not be
prevented from accepting assignments of wage claims and enforcing
liability against the surety on the bond or from applying the
deposit to just wage claims filed with the { - commissioner - }
{ + director + }.
(12) All claims against the bond or deposit shall be
unenforceable unless request for payment of a judgment or other
form of adequate proof of liability or a notice of the claim has
been made by certified mail to the surety or the
{ - commissioner - } { + director + } within six months from
the end of the period for which the bond or deposit was executed
and made.
(13) If the { - commissioner - } { + director + } has
received no notice as provided in subsection (12) of this section
within six months after a farm labor contractor is no longer
required to provide and maintain a surety bond or deposit, the
{ - commissioner - } { + director + } shall terminate and
surrender any bond or any deposit under the control of the
{ - commissioner - } { + director + } to the person who is
entitled thereto upon receiving appropriate proof of such
entitlement.
(14) The { - commissioner - } { + director + } shall adopt
rules reasonably necessary for administration and enforcement of
the provisions of this section and ORS 658.419.
(15) Every farm labor contractor required by this section or
ORS 658.419 to furnish a surety bond or make a deposit in lieu
thereof shall keep conspicuously posted upon the premises where
employees working under the contractor are employed a notice, in
both English and any other language used by the farm labor
contractor to communicate with workers, specifying the
contractor's compliance with the requirements of this section and
ORS 658.419 and specifying the name and Oregon address of the
surety on the bond or a notice that a deposit in lieu of the bond
has been made with the { - commissioner - } { + director + }
together with the address of the { - commissioner - } { +
director + }.
(16) The bond or deposit referred to in subsection (3) of this
section shall be payable to the { - commissioner - }
{ + director + } and shall be conditioned upon:
(a) Payment in full of all sums due on wage claims of
employees.
(b) Payment by the farm labor contractor of all sums due to the
grower or producer of agricultural commodities or the owner or
lessee of land intended to be used for the production of timber
for advances made to or on behalf of the farm labor contractor.
(17) No license shall be issued until the applicant executes a
written statement that shall be subscribed and sworn to and that
shall contain the following declaration:
_________________________________________________________________
With regards to any action filed against me concerning my
activities as a farm labor contractor, I appoint the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } as my lawful agent to accept service of summons when
I am not present in the jurisdiction in which such action is
commenced or have in any other way become unavailable to accept
service.
_________________________________________________________________
(18) A person who cosigns with a farm labor contractor for a
bond required by subsection (3) of this section or by ORS 658.419
is not personally or jointly and severally liable for unpaid
wages above the amount of the bond solely because the person
cosigned for the bond.
(19) The court may award reasonable attorney fees to the
prevailing party in any action to enforce the provisions of this
section or ORS 658.419.
SECTION 100. ORS 658.417 is amended to read:
658.417. In addition to the regulation otherwise imposed upon
farm labor contractors pursuant to ORS 658.405 to 658.503, a
person who acts as a farm labor contractor with regard to the
forestation or reforestation of lands shall:
(1) Obtain a special indorsement from the { - Commissioner of
the Bureau of Labor and Industries - } { + Director of the
Department of Consumer and Business Services + } on the license
required by ORS 658.410 that authorizes the person to act as a
farm labor contractor with regard to the forestation or
reforestation of lands.
(2) Pay the fee established under ORS 658.413.
(3) Provide to the { - commissioner - } { + director + } a
certified true copy of all payroll records for work done as a
farm labor contractor when the contractor pays employees
directly. The records shall be submitted in such form and at such
times and shall contain such information as the
{ - commissioner - } { + director + }, by rule, may prescribe.
(4) Provide workers' compensation insurance for each individual
who performs manual labor in forestation or reforestation
activities regardless of the business form of the contractor and
regardless of any contractual relationship that may be alleged to
exist between the contractor and the workers notwithstanding any
provision of ORS chapter 656, unless workers' compensation
insurance is otherwise provided.
SECTION 101. ORS 658.425 is amended to read:
658.425. (1) The office of the { - Bureau of Labor and
Industries - } { + Department of Consumer and Business
Services + } in which an application is filed shall issue to the
applicant a temporary permit valid for not more than 60 days, if
the following conditions are satisfied:
(a) The application is complete on its face.
(b) The applicant has furnished satisfactory evidence of
adequate insurance under rules issued by the { - Commissioner
of the Bureau of Labor and Industries - } { + Director of the
Department of Consumer and Business Services + }.
(c) The applicant has paid in advance the fee established under
ORS 658.413.
(d) The applicant or any person financially interested in the
applicant's proposed operation as a farm labor contractor,
whether as a partner, shareholder, associate, profitsharer or
otherwise, has not been denied a license in a jurisdiction other
than Oregon or under ORS 658.405 to 658.503 within the preceding
three years, nor has had such a license revoked or suspended in
Oregon or any other jurisdiction within the preceding three
years, as appears of record with the { - commissioner - } { +
director + }.
(2) Any temporary permit expires immediately if the
{ - commissioner - } { + director + } rejects the application
of the person holding that permit.
(3) For the purposes of ORS 658.415 (1)(c) and (d) and
subsection (1)(d) of this section, the refusal by the
{ - commissioner - } { + director + } to renew a license
shall be considered as the revocation of that license on the date
of its expiration.
SECTION 102. ORS 658.440 is amended to read:
658.440. (1) Each person acting as a farm labor contractor
shall:
(a) Carry a labor contractor's license at all times and exhibit
it upon request to any person with whom the contractor intends to
deal in the capacity of a farm labor contractor.
(b) File immediately at the United States post office serving
the labor contractor's address, as noted on the face of the
license, a correct change of address if the contractor
permanently changes address, and notify the { - Commissioner of
the Bureau of Labor and Industries - } { + Director of the
Department of Consumer and Business Services + } each time an
address change is made.
(c) Pay or distribute promptly, when due, to the individuals
entitled thereto all money or other things of value entrusted to
the labor contractor by any person for that purpose.
(d) Comply with the terms and provisions of all legal and valid
agreements or contracts entered into in the contractor's capacity
as a farm labor contractor.
(e) File with the { - Bureau of Labor and Industries - }
{ + director + }, as required by rule, information relating to
work agreements between the farm labor contractor and farmers and
between the farm labor contractor and workers or information
concerning changes in the circumstances under which the license
was issued.
(f) Furnish to each worker, at the time of hiring, recruiting,
soliciting or supplying, whichever occurs first, a written
statement in the English language and any other language used by
the farm labor contractor to communicate with the workers that
contains a description of:
(A) The method of computing the rate of compensation.
(B) The terms and conditions of any bonus offered, including
the manner of determining when the bonus is earned.
(C) The terms and conditions of any loan made to the worker.
(D) The conditions of any housing, health and child care
services to be provided.
(E) The terms and conditions of employment, including the
approximate length of season or period of employment and the
approximate starting and ending dates thereof.
(F) The terms and conditions under which the worker is
furnished clothing or equipment.
(G) The name and address of the owner of all operations where
the worker will be working as a result of being recruited,
solicited, supplied or employed by the farm labor contractor.
(H) The existence of a labor dispute at the worksite.
(I) The worker's rights and remedies under ORS chapters 654 and
656 { - , - } { + and + } ORS 658.405 to 658.503, the Service
Contract Act (41 U.S.C. 351-401) and any other such law specified
by the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + director + }, in plain and simple language in a form
specified by the
{ - commissioner - } { + director + }.
(g) At the time of hiring and prior to the worker performing
any work for the farm labor contractor, execute a written
agreement between the worker and the farm labor contractor
containing the terms and conditions described in paragraph (f)(A)
to (I) of this subsection. The written agreement shall be in the
English language and any other language used by the farm labor
contractor to communicate with the workers.
(h) Furnish to the worker each time the worker receives a
compensation payment from the farm labor contractor, a written
statement itemizing the total payment and amount and purpose of
each deduction therefrom, hours worked and rate of pay or rate of
pay and pieces done if the work is done on a piece rate basis,
and if the work is done under the Service Contract Act (41
U.S.C. 351-401) or related federal or state law, a written
statement of any applicable prevailing wage.
(2) If the farm labor contractor:
(a) Employs workers, the contractor shall substantially comply
with the provisions of ORS 654.174 relating to field sanitation,
and its implementing regulations as adopted by the Department of
Consumer and Business Services.
(b) Owns or controls housing furnished to workers in connection
with the recruitment or employment of workers, the contractor
shall assure that the housing substantially complies with any
applicable law relating to the health, safety or habitability of
the housing.
(c) Recruits or solicits any worker to travel from one place to
another for the purpose of working at a time prior to the
availability of such employment, the contractor shall furnish to
any such worker, at no charge, lodging and an adequate supply of
food until employment begins, in compliance with rules adopted by
the { - Bureau of Labor and Industries - } { + director + }.
If employment does not begin within 30 days from the date the
farm labor contractor represented employment would become
available, the contractor shall refund to any such worker all
sums paid by the worker to the contractor and provide the worker,
in cash or other form of payment authorized by ORS 652.110, the
costs of transportation, including meals and lodging in transit,
to return the worker to the place from which the worker was
induced to travel or the costs of transportation, including meals
and lodging in transit, to another worksite selected by the
worker, whichever is less. For the purposes of this paragraph,
'recruits or solicits' does not include the mere provision of
housing or employment to persons who have not otherwise been
recruited or solicited by the farm labor contractor or an agent
of the farm labor contractor prior to their arrival at the place
of housing or employment. Workers who arrive at the place of
employment prior to the date they were instructed by the
contractor to arrive are not entitled to the benefits of this
subsection until the date they were instructed to arrive.
(3) No person acting as a farm labor contractor, or applying
for a license to act as a farm labor contractor, shall:
(a) Make any misrepresentation, false statement or willful
concealment in the application for a license.
(b) Willfully make or cause to be made to any person any false,
fraudulent or misleading representation, or publish or circulate
any false, fraudulent or misleading information concerning the
terms, condition or existence of employment at any place or by
any person.
(c) Solicit or induce, or cause to be solicited or induced, the
violation of an existing contract of employment.
(d) Knowingly employ an alien not legally present or legally
employable in the United States.
(e) Assist an unlicensed person to act in violation of ORS
658.405 to 658.503.
(f) By force, intimidation or threat of procuring dismissal or
deportation or by any other manner whatsoever, induce any worker
employed or in a subcontracting relationship to the farm labor
contractor to give up any part of the compensation to which the
worker is entitled under the contract of employment or under
federal or state wage laws.
(g) Solicit or induce, or cause to be solicited or induced, the
travel of a worker from one place to another by representing to a
worker that employment for the worker is available at the
destination when employment for the worker is not available
within 30 days after the date the work was represented as being
available.
SECTION 103. ORS 658.445 is amended to read:
658.445. The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } may revoke, suspend or refuse to renew a
license to act as a labor contractor upon the
{ - commissioner's - } { + director's + } own motion or upon
complaint by any individual, if:
(1) The licensee or agent has violated or failed to comply with
any provision of ORS 658.405 to 658.503 and 658.991 (2) and (3);
or
(2) The conditions under which the license was issued have
changed or no longer exist; or
(3) The licensee's character, reliability or competence makes
the licensee unfit to act as a farm labor contractor.
SECTION 104. ORS 658.450 is amended to read:
658.450. (1) All proceedings relating to the issuance,
revocation, suspension, renewal or refusal to renew a license to
act as a farm labor contractor shall be conducted under ORS
183.310 to 183.550.
(2) All rules of the { - Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } under ORS 658.405 to 658.503 shall be issued in
compliance with ORS 183.310 to 183.550.
SECTION 105. ORS 658.453 is amended to read:
658.453. (1) In addition to any other penalty provided by law,
the { - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } may assess a civil penalty not to exceed $2,000 for
each violation by:
(a) A farm labor contractor who, without the license required
by ORS 658.405 to 658.503, recruits, solicits, supplies or
employs a worker.
(b) A farm labor contractor who fails to comply with ORS
658.415 (15).
(c) A farm labor contractor who fails to comply with ORS
658.440 (1), (2)(c) or (3).
(d) Any person who violates ORS 658.452.
(e) A farm labor contractor who fails to comply with ORS
658.417 (1), (3) or (4).
(f) Any person who uses an unlicensed farm labor contractor
without complying with ORS 658.437.
(2) Civil penalties under this section shall be imposed as
provided in ORS 183.090.
(3) All penalties recovered under this section shall be paid
into the State Treasury and credited to the Housing Development
Account of the Housing and Community Services Department for the
purpose of providing technical assistance for development of
farmworker housing.
(4) After filing a complaint with the { - Commissioner of the
Bureau of Labor and Industries - } { + director + }, in
addition to any other penalty provided by law, a worker has a
right of action against a farm labor contractor who violates
subsection (1)(c), (d) or (e) of this section or ORS 658.440
(2)(a) or (b) without exhausting any alternative administrative
remedies. No such action may be commenced later than two years
after the date of the violation giving rise to the right of
action. The amount of damages recoverable for each violation
under this subsection is actual damages or $1,000, whichever
amount is greater. In any such action the court may award to the
prevailing party, in addition to costs and disbursements,
reasonable attorney fees at trial and appeal.
SECTION 106. ORS 658.455 is amended to read:
658.455. Except as provided in ORS 658.453 (3) and 658.815, and
except for money received under a bond or deposit as provided in
ORS 658.415 (3), 658.419 or 658.735 (1), all fees and other money
received by the { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } under ORS 658.405 to 658.503 and 658.715 to
658.850 shall be credited and used as provided in ORS 658.413.
SECTION 107. ORS 658.475 is amended to read:
658.475. The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + }, or any other person, may bring suit in any
court of competent jurisdiction to enjoin any person from using
the services of an unlicensed farm labor contractor or to enjoin
any person acting as a farm labor contractor in violation of ORS
658.405 to 658.503, or rules promulgated pursuant thereto, from
committing future violations. The court may award to the
prevailing party costs and disbursements and a reasonable
attorney fee. In addition, the amount of damages recoverable from
a person acting as a farm labor contractor with regard to the
forestation or reforestation of lands who violates ORS 658.410,
658.417 (3) or (4) or 658.440 (3)(e) is actual damages or $500,
whichever amount is greater.
SECTION 108. ORS 658.480 is amended to read:
658.480. The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } may enter into an agreement with an agency
of another state for the reciprocal enforcement of statutes
regulating farm labor contractors, if the other state has a
reciprocal statute similar to this section or otherwise
authorizes the reciprocal enforcement of statutes regulating farm
labor contractors in a manner substantially similar to ORS
658.405 to 658.503.
SECTION 109. ORS 658.485 is amended to read:
658.485. Any agreement concluded by the { - Commissioner of
the Bureau of Labor and Industries - } { + Director of the
Department of Consumer and Business Services + } under ORS
658.480 shall make a provision for the transfer of any funds
collected pursuant to ORS 658.480 and for retention by the
{ - commissioner - } { + director + } or the agency of the
other state of percentile amounts from sums collected to defray
the administrative costs of ORS 658.480. Amounts retained
pursuant to this section to be used to defray the administrative
costs of ORS 658.480 shall be credited to the
{ - Bureau of Labor and Industries Account - } { + Consumer
and Business Services Fund + } and shall be used only for the
administration of ORS 658.480.
SECTION 110. ORS 658.705 is amended to read:
658.705. As used in ORS 658.705 to 658.850:
(1) 'Applicant' means an individual who proposes to operate a
farmworker camp and who is applying for a camp operator
indorsement under ORS 658.730.
{ - (2) 'Bureau' means the Bureau of Labor and
Industries. - }
{ - (3) 'Commissioner' means the Commissioner of the Bureau
of Labor and Industries. - }
{ - (4) - } { + (2) + } 'Department' means the Department
of Consumer and Business Services.
{ - (5) - } { + (3) + } 'Director' means the Director of
the Department of Consumer and Business Services.
{ - (6) - } { + (4) + } 'Farm labor contractor' has the
same meaning as that provided in ORS 658.405.
{ - (7) - } { + (5) + } 'Farmworker camp' means any place
or area of land where sleeping places, manufactured structures or
other housing is provided by a farmer, farm labor contractor,
employer or any other person in connection with the recruitment
or employment of workers to work in the production and harvesting
of farm crops or in the reforestation of lands, as described in
ORS 658.405. 'Farmworker camp' does not include:
(a) A single, isolated dwelling occupied solely by members of
the same family, or by five or fewer unrelated individuals; or
(b) A hotel or motel which provides housing with the same
characteristics on a commercial basis to the general public on
the same terms and conditions as housing is provided to such
workers.
{ - (8) - } { + (6) + } 'Farmworker camp operator' means
any person who operates a farmworker camp.
{ - (9) - } { + (7) + } 'Indorsee' means a farm labor
contractor licensed under ORS 658.410 who has obtained a camp
indorsement under ORS 658.730.
SECTION 111. ORS 658.730 is amended to read:
658.730. (1) In accordance with the applicable provisions of
ORS 183.310 to 183.550, the { - Commissioner of the Bureau of
Labor and Industries - } { + Director of the Department of
Consumer and Business Services + }, by rule, shall establish an
indorsement system for any farm labor contractor who operates a
farmworker camp. Such system shall include, but not be limited
to, provisions prescribing:
(a) The form and content of and the times and procedures for
submitting an application for indorsement issuance or renewal.
(b) The requirements for and the manner of testing the
competency of indorsement applicants.
(2) The indorsement shall be posted conspicuously in an
exterior area of the camp that is open to all employees and in a
manner easily visible to the occupants of and visitors to the
camp.
SECTION 112. ORS 658.750 is amended to read:
658.750. (1) Every farmworker camp operator shall register with
the Department of Consumer and Business Services each farmworker
camp operated by the operator.
(2) The department shall establish, by rule, procedures for
annual registration of farmworker camps. The department may adopt
any other rule necessary to implement the provisions of ORS
658.705 to 658.850.
(3) Upon receipt of an initial application for registration,
the department shall conduct a preoccupancy consultation with the
operator of the farmworker camp if:
(a) The camp { - was not registered with the department prior
to January 1, 1989, and - } has not been registered
{ + previously + } with { - the Commissioner of the Bureau of
Labor and Industries or the Director of - } the department
{ - of Consumer and Business Services in a prior year - } ; or
(b) The camp operator requests a consultation.
(4) If the department has determined that the health and safety
conditions existing at the camp are not in conformance with the
rules of the department, the department shall not register the
camp until the department determines that the camp has been
brought into compliance.
{ - (5) Upon registration of a camp, the department shall
transmit a copy of the registration to the Bureau of Labor and
Industries. - }
{ - (6) - } { + (5) + } The department shall compile
periodically a list of all registered camps and make the list
available to { - the bureau and other - } interested persons.
SECTION 113. ORS 658.805 is amended to read:
658.805. (1) Except to appeal from an act or determination of
{ - the Commissioner of the Bureau of Labor and Industries
or - } the Department of Consumer and Business Services, no
person operating a farmworker camp, as defined in ORS 658.705, is
entitled to demand, receive or accept any fee directly or
indirectly or maintain any suit or action in the courts of this
state involving the farmworker camp, without alleging and proving
that the person was registered or indorsed to operate a
farmworker camp.
(2) The { - commissioner, - } Director of the Department of
Consumer and Business Services or any local governmental agency
may bring suit in any court of competent jurisdiction to enjoin
any person from violating any of the provisions of ORS 658.705 to
658.850, or rules adopted pursuant thereto, and from committing
future violations.
(3) Any aggrieved person may bring suit in any court of
competent jurisdiction to enjoin any person violating ORS 658.715
(1) or 658.755 (2)(a) from violating any of the provisions of ORS
658.705 to 658.850, or rules adopted pursuant thereto, and from
committing future violations.
(4) In actions brought pursuant to this section, the court may
award to the prevailing party costs and disbursements and a
reasonable attorney fee. In addition, if damages are found, the
amount of damages recoverable from a farmworker camp operator who
is subject to suit pursuant to subsection (3) of this section who
violates ORS 658.705 to 658.850 is actual damages or $500,
whichever is greater.
SECTION 114. ORS 658.815 is amended to read:
658.815. All moneys other than fees described in ORS 658.413
received by the { - commissioner - } { + Director of the
Department of Consumer and Business Services + } under ORS
658.715 to 658.850 shall be credited to the General Fund.
SECTION 115. ORS 659.010 is amended to read:
659.010. As used in ORS 659.010 to 659.110 and 659.400 to
659.545, unless the context requires otherwise:
{ - (1) 'Bureau' means the Bureau of Labor and
Industries. - }
{ - (2) - } { + (1) + } 'Cease and desist order' means an
order signed by the { - commissioner - } { + Director of the
Department of Consumer and Business Services or the director's
designee + }, taking into account the subject matter of the
complaint and the need to supervise compliance with the terms of
any specific order issued to eliminate the effects of any
unlawful practice found, addressed to a respondent requiring the
respondent to:
(a) Perform an act or series of acts designated therein and
reasonably calculated to carry out the purposes of ORS 30.670 to
30.685, 659.010 to 659.110 and 659.400 to 659.545, eliminate the
effects of an unlawful practice found, and protect the rights of
the complainant and other persons similarly situated;
(b) Take such action and submit such designated reports to the
{ - commissioner - } { + director + } on the manner of
compliance with other terms and conditions specified in the
{ - commissioner's - } { + director's + } order as may be
required to ensure compliance therewith; or
(c) Refrain from any action designated in the order which would
jeopardize the rights of the complainant or other person
similarly situated or frustrate the purpose of ORS 30.670 to
30.685, 659.010 to 659.110 and 659.400 to 659.545.
{ - (3) 'Commissioner' means the Commissioner of the Bureau
of Labor and Industries. - }
{ - (4) - } { + (2) + } 'Conciliation agreement' means a
written agreement settling and disposing of a complaint under ORS
659.010 to 659.110 and 659.400 to 659.545 signed by a respondent
and an authorized official of the { - Bureau of Labor and
Industries - } { + Department of Consumer and Business
Services + }.
{ + (3) 'Department' means the Department of Consumer and
Business Services.
(4) 'Director' means the Director of the Department of Consumer
and Business Services. + }
(5) 'Employee' does not include any individual employed by the
individual's parents, spouse or child or in the domestic service
of any person.
(6) 'Employer' means any person who in this state, directly or
through an agent, engages or utilizes the personal service of one
or more employees, reserving the right to control the means by
which such service is or will be performed. 'Employer' also
includes any public body that, directly or through an agent,
engages or utilizes the personal service of one or more
employees, reserving the right to control the means by which such
service is or will be performed, including all officers,
agencies, departments, divisions, bureaus, boards and commissions
of the legislative, judicial and administrative branches of the
state, all county and city governing bodies, school districts,
special districts, and municipal corporations, and all other
political subdivisions of the state.
(7) 'Employment agency' includes any person undertaking to
procure employees or opportunities to work.
(8) 'Entity' includes employers, labor organizations,
employment agencies, places of public accommodation as defined in
ORS 30.675 or career schools.
(9)(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.
(10) '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.
(11) 'National origin' includes ancestry.
(12) 'Person' includes one or more individuals, partnerships,
associations, corporations, legal representatives, trustees,
trustees in bankruptcy or receivers.
(13) 'Respondent' includes any person or entity against whom a
complaint or charge of unlawful practices is filed with the
{ - commissioner - } { + director + } or whose name has been
added to such complaint or charge pursuant to ORS 659.050 (1).
(14) 'Unlawful employment practice' includes only those
unlawful employment practices specified in ORS 25.424, 399.235,
654.062 (5), 659.030, 659.035, 659.036, 659.227, 659.270,
659.295, 659.330, 659.340, 659.358 (1) to (4) and 659.400 to
659.494.
(15) 'Unlawful practice' means any unlawful employment practice
or any distinction, discrimination or restriction on account of
race, religion, color, sex, marital status or national origin
made by any place of public accommodation as defined in ORS
30.675, by any person acting on behalf of any such place or by
any person aiding or abetting any such place or person in
violation of ORS 30.685, or any violation of ORS 345.240,
659.033, 659.037, 659.430 or rules adopted pursuant to ORS
659.103 (1), but does not include a refusal to furnish goods or
services when the refusal is based on just cause.
SECTION 116. Section 5, chapter 686, Oregon Laws 1989, is
amended to read:
{ + Sec. 5. + } Notwithstanding { - sections 1 to 4 of this
Act - } { + ORS 659.010, 659.033, 659.121 and 659.430 + }, the
{ - commissioner - } { + Director of the Department of
Consumer and Business Services + } need not accept or investigate
any complaints or otherwise expend any funds as a result of
{ - this Act - } { + ORS 659.010, 659.033, 659.121 and
659.430 + } until and unless the { - commissioner - }
{ + director + } obtains full certification from the Secretary
of Housing and Urban Development pursuant to 42 U.S.C. 3610,
Public Law 100-430, section 8, and obtains additional funding as
necessary to meet the fiscal impact of { - sections 1 to 4 of
this Act - } { + ORS 659.010, 659.033, 659.121 and 659.430 + }
upon the { - Bureau of Labor and Industries - } { +
Department of Consumer and Business Services + }.
SECTION 117. ORS 659.060 is amended to read:
659.060. (1) In case of failure to resolve a complaint after
reasonable effort under ORS 659.050, or if it appears to the
{ - Commissioner of the Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } that the interest of justice requires a hearing
without first proceeding by conference, conciliation and
persuasion, or if a written request is made by respondent in
accordance with ORS 659.050, the
{ - commissioner - } { + director + } shall cause to be
prepared and served upon each respondent required to appear at
such hearing such specific charges, in writing, as the respondent
will be required to answer, together with a written notice of the
time and place of such hearing.
(2) All proceedings { - before the commissioner - } under
this section shall be in conformity with the provisions of ORS
183.310 to 183.550. { + Hearings shall be conducted by a hearing
officer assigned from the Hearing Officer Panel established under
section 3, chapter 849, Oregon Laws 1999. + }
(3) After considering all the evidence, the
{ - commissioner - } { + hearing officer + } shall cause to be
issued findings of facts { - , - } and conclusions of law. The
{ - commissioner - } { + director + } shall { - also - }
issue an order dismissing the charge and complaint against any
respondent not found to have engaged in any unlawful practice
charged and an appropriate cease and desist order against any
respondent found to have engaged in any unlawful practice
charged.
(4) Nothing stated in ORS 659.010 to 659.110 and 659.400 to
659.545 shall be construed to prevent a settlement of any case
scheduled for hearing under the provisions of ORS 659.010 to
659.110 and 659.400 to 659.545 by conciliation, conference and
persuasion { - , nor to prevent the commissioner from appointing
a special tribunal or hearings examiner to hear and determine
matters of fact, make conclusions of law and formulate an order
appropriate to the facts as found under ORS 659.010 to 659.110
and 659.400 to 659.545, reserving to the commissioner or designee
the decision to affirm, reverse, modify or supplement the
determinations, conclusions or order of the special tribunal or
hearings examiner. The provisions of this subsection shall apply
to all pending files in the Bureau of Labor and Industries as
well as to files commenced on or after June 17, 1975 - } .
SECTION 118. ORS 659.060, as amended by section 117 of this
2001 Act, is amended to read:
659.060. (1) In case of failure to resolve a complaint after
reasonable effort under ORS 659.050, or if it appears to the
Director of the Department of Consumer and Business Services that
the interest of justice requires a hearing without first
proceeding by conference, conciliation and persuasion, or if a
written request is made by respondent in accordance with ORS
659.050, the director shall cause to be prepared and served upon
each respondent required to appear at such hearing such specific
charges, in writing, as the respondent will be required to
answer, together with a written notice of the time and place of
such hearing.
(2) All proceedings { + before the director + } under this
section shall be in conformity with the provisions of ORS 183.310
to 183.550. { - Hearings shall be conducted by a hearing
officer assigned from the Hearing Officer Panel established under
section 3, chapter 849, Oregon Laws 1999. - }
(3) After considering all the evidence, the { - hearing
officer - } { + director + } shall cause to be issued findings
of facts and conclusions of law. The director shall issue an
order dismissing the charge and complaint against any respondent
not found to have engaged in any unlawful practice charged and an
appropriate cease and desist order against any respondent found
to have engaged in any unlawful practice charged.
(4) Nothing stated in ORS 659.010 to 659.110 and 659.400 to
659.545 shall be construed to prevent a settlement of any case
scheduled for hearing under the provisions of ORS 659.010 to
659.110 and 659.400 to 659.545 by conciliation, conference and
persuasion { + , nor to prevent the director from appointing a
special tribunal or hearing officer to hear and determine matters
of fact, make conclusions of law and formulate an order
appropriate to the facts as found under ORS 659.010 to 659.110
and 659.400 to 659.545, reserving to the director the decision to
affirm, reverse, modify or supplement the determinations,
conclusions or order of the special tribunal or hearing
officer + }.
SECTION 119. { + The amendments to ORS 659.060 by section 118
of this 2001 Act become operative on January 1, 2004. + }
SECTION 120. ORS 659.100 is amended to read:
659.100. (1) The { - Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } may 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. To eliminate the effects of discrimination
the
{ - Bureau of Labor and Industries - } { + director + } 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 - }
{ + director + } 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 - } { + director + } hereby
is given general jurisdiction and power for such purposes.
(3) The { - Commissioner of the Bureau of Labor and
Industries - } { + director + } 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 - } { + director + } under ORS 659.010 to 659.110
and 659.400 to 659.545 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 to the deputy
commissioner employed under this subsection. - }
(4) The { - commissioner - } { + director + } or the
designee of the
{ - commissioner - } { + director + } 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.
(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.
SECTION 121. ORS 659.540 is amended to read:
659.540. (1) The { - Bureau of Labor and Industries - }
{ + Director of the Department of Consumer and Business
Services + } 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 { + of the director + }, { - 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 122. 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 - } { + Director of the Department of
Consumer and Business Services + } 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) For the purposes of this section, 'complainant's
information' and 'complaint' have the meanings given those terms
in ORS 131.005.
(4) The remedies provided by this section 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.
SECTION 123. ORS 660.010 is amended to read:
660.010. As used in this chapter, unless the context requires
otherwise:
(1) 'Apprentice' means a worker at least 16 years of age,
except where a higher minimum age is otherwise required by law,
who is employed to learn an apprenticeable occupation under
standards of apprenticeship approved by the State Apprenticeship
and Training Council.
(2) 'Apprenticeship agreement' means a written agreement
between an apprentice and either the employer or the local joint
committee which shall contain the minimum terms and conditions of
the employment and training of the apprentice.
(3) 'Apprenticeable occupation' means a skilled trade which:
(a) Is customarily learned in a practical way through a
structured, systematic program of on-the-job supervised training;
(b) Is clearly identified and commonly recognized throughout an
industry;
(c) Involves manual, mechanical or technical skills and
knowledge which require a minimum of 2,000 hours of on-the-job
supervised training; and
(d) Requires related instruction to supplement the on-the-job
training.
{ - (4) 'Commissioner' means the Commissioner of the Bureau
of Labor and Industries. - }
{ - (5) - } { + (4) + } 'Council' means the State
Apprenticeship and Training Council.
{ - (6) - } { + (5) + } 'Course of study' means a course of
study for the instruction of apprentices or trainees established
in accordance with ORS 660.157.
{ - (7) - } { + (6) + } 'Director' means the State Director
of Apprenticeship and Training.
{ - (8) - } { + (7) + } 'District school board' includes
the boards of community college service districts, education
service districts, common school districts and community college
districts.
{ - (9) - } { + (8) + } 'Employer' means any person
employing the services of an apprentice, regardless of whether
such person is a party to an apprenticeship agreement with that
apprentice.
{ - (10) - } { + (9) + } 'Local joint committee' includes
local joint apprenticeship committees, local joint training
committees and trade committees.
{ - (11) - } { + (10) + } 'Program' means the total system
of apprenticeship as operated by a particular local joint
committee, including the committee's registered standards and all
other terms and conditions for the qualification, recruitment,
selection, employment and training of apprentices in that
apprenticeable occupation.
{ - (12) - } { + (11) + } 'Trainee' means a worker at least
16 years of age, except where a higher minimum age is otherwise
required by law, who is to receive, in part consideration for
services, complete instruction in an occupation which meets all
the requirements of an apprenticeable occupation, except that
such occupation requires in the opinion of the council, less than
2,000 but not less than 1,000 hours of on-the-job supervised
training.
SECTION 124. ORS 660.060 is amended to read:
660.060. In order to be registered, every apprenticeship or
training agreement made after November 1, 1981, shall contain:
(1) The names and signatures of the parties and of a parent or
a guardian if the apprentice or trainee is a minor;
(2) The names and addresses of the appropriate local joint
committee and of the State Apprenticeship and Training Council;
(3) The date of birth of the apprentice or trainee;
(4) The beginning date and duration of the apprenticeship or
training and the apprenticeable or trainable occupation in which
the apprentice or trainee is to be trained;
(5) A statement that the parties thereto shall abide by the
applicable standards existing as of the date of the agreement,
and as amended during the duration of the agreement, and a
provision incorporating the standards, explicitly or by reference
as part of the agreement;
(6) A statement that there is a probationary period during
which the apprenticeship agreement may be terminated by either
party to the agreement upon written notice to the
{ - Apprenticeship Division of the Bureau of Labor and
Industries - } { + Department of Consumer and Business
Services + };
(7) A statement that after the probationary period the
apprenticeship agreement may be canceled at the request of the
apprentice or may be suspended, canceled or terminated by the
committee for good cause, which includes but is not limited to
failure to report to work, nonattendance at related training,
failure to submit work progress reports and lack of response to
committee citations, with due notice to the apprentice and a
reasonable opportunity for correction and with written notice to
the apprentice and to the { - Apprenticeship Division of the
Bureau of Labor and Industries - } { + Department of Consumer
and Business Services + } of the final action taken by the
committee;
(8) Such additional provisions as the council may deem
necessary or advisable to effectuate the policies and duties
prescribed and imposed by this chapter, provided such provisions
are customarily subject to agreement between employers and
apprentices or trainees; and
(9) A waiver by the apprentice granting permission for release
of related training school records to the appropriate joint
apprenticeship committee for the purpose of evaluation.
SECTION 125. ORS 660.110 is amended to read:
660.110. (1) The State Apprenticeship and Training Council
shall consist of 11 members, including the { - Commissioner of
the Bureau of Labor and Industries - } { + Director of the
Department of Consumer and Business Services + }, and 10 members
appointed by the Governor, as follows:
(a) Two members representing employees from the apprenticeable
crafts or trades for which programs are approved and registered
with the council;
(b) Two members representing employees from the industrial
occupations for which programs are approved and registered with
the council;
(c) Two members representing industrial employers whose
programs are approved and registered with the council;
(d) Two members representing employers from the apprenticeable
crafts or trades whose programs are approved and registered with
the council; and
(e) Two members representing the public.
(2) Each member shall be appointed for a term of four years and
shall hold office until a successor has been appointed and has
qualified. When the term of a member expires, the Governor shall
appoint a successor within 90 days of the term expiration date. A
member shall not automatically be removed from the council in
midterm should the member's industry withdraw from the program
for economic reasons.
(3) Any vacancy occurring among the appointed members shall be
filled by appointment, as provided in this section, for the
unexpired portion of the term.
(4) All appointments of members of the council by the Governor
are subject to confirmation by the Senate pursuant to section 4,
Article III, Oregon Constitution.
(5) The { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } shall serve as the chairperson of the
council with the power to cast the deciding vote in case of a
tie. The council shall choose from among its members a vice
chairperson to preside at meetings and perform other functions of
the chairperson when the { - commissioner - } { + Director of
the Department of Consumer and Business Services + } is absent.
(6) Each member of the council is entitled to compensation and
expenses as provided in ORS 292.495.
SECTION 126. ORS 660.137 is amended to read:
660.137. Every local apprenticeship or training program
administered by a local joint committee, or by a trade committee
functioning as a local joint committee, shall:
(1) Propose to the State Apprenticeship and Training Council
standards for the local program which are in substantial
conformity with ORS 660.126 and with the uniform standards, if
any, adopted by the state joint committee for that occupation,
and recommend to the council modifications of the standards.
(2) Administer its program in conformity with its approved
standards, with the provisions of this chapter, and with the
rules and policies of the council. Particularly, the local
committee shall:
(a) Maintain records of all apprentices in its program, with
respect to work experience, instruction on the job, attendance at
related instruction and progress, and such other records as may
be appropriate or required, and shall submit such reports as the
council or appropriate governmental agencies may require;
(b) Submit to the state joint committee appropriate requests
for changes in courses of study for the instruction of
apprentices; and
(c) Be responsible for apprentices receiving necessary
on-the-job and related instruction, and for all apprenticeship
agreements being promptly registered with the council.
(3) Be responsible for the recruitment, qualification,
selection, approval and registration of apprentices entering the
program, including the evaluation of previous creditable work
experience, education and training for which advanced credit must
be given; provided, however, that advanced credit may be given
for such creditable experience, education and training.
(4) Review and evaluate, at least semiannually, the progress of
each apprentice, as to job performance and related instruction,
and consistent with the skill acquired, accordingly advance the
apprentice to the next level of apprenticeship or hold the
apprentice at the same level for a reasonable period, and with
reasonable opportunity for corrective action, or terminate the
apprentice from the program for serious or continued inadequate
progress and notify the { - Apprenticeship Division of the
Bureau of Labor and Industries - } { + Department of Consumer
and Business Services + } of the action taken. The council and
the appropriate employer or employers shall also be notified of
each rerating and of the apprentice's new level on the wage
schedule. Recognition for successful completion of apprenticeship
shall be evidenced by an appropriate certificate issued by the
council.
(5) Determine the qualifications, minimum facilities and
training conditions required of an employer to serve as an
approved training agent, and approve training agents accordingly;
make periodic checks of approved training agents to
{ - assure - } { + ensure + } that there are qualified
training personnel and that there is adequate supervision on the
job, adequate and safe equipment and facilities for training and
supervision, and safety training for apprentices on the job and
in related instruction; and withdraw approval of training agents
when the qualifications are no longer met or when it appears to
the committee that the employer is in violation of the terms of
an apprenticeship agreement, standards, provisions of this
chapter or the rules and policies of the council.
(6) Determine and redetermine at least annually the average
journeyman hourly rate of wage for the purposes of ORS 660.142
and submit such rate to the State Director of Apprenticeship and
Training, along with a statement explaining how such
determination was made. Employers who fail or refuse to provide
their committee with information shall be terminated as approved
training agents. The council may withhold approval of a new
program or terminate an existing program for failure or refusal
by the committee or its employers to keep the established
journeyman hourly rate of wage current and correct. The committee
shall retain all records from which a wage determination was made
for inspection by the council, as required by law.
SECTION 127. ORS 660.170 is amended to read:
660.170. (1) Subject to confirmation by the State
Apprenticeship and Training Council, the { - Commissioner of
the Bureau of Labor and Industries - } { + Director of the
Department of Consumer and Business Services + } shall appoint a
State Director of Apprenticeship and Training. The { + State + }
Director { + of Apprenticeship and Training + } shall be well
qualified, shall serve as council secretary and shall be
responsible to the { - commissioner - } { + Director of the
Department of Consumer and Business Services + } for the
administration of this chapter, including supervision of all
office and field staff.
(2) The { - commissioner - } { + Director of the Department
of Consumer and Business Services + }, with the advice and
consent of the council, may appoint such other personnel and
incur such other expenses as may be necessary to aid the council
and the { + State + } Director { + of Apprenticeship and
Training + } in carrying out their duties and functions under
this chapter.
SECTION 128. ORS 660.205 is amended to read:
660.205. (1) There shall be a uniform system of certification
in those apprenticeable occupations for which the State
Apprenticeship and Training Council determines certification is
required. Such certification shall be awarded to apprentices
successfully completing such an apprenticeship program and shall
signify the apprentice's attainment of the status of journeyman.
The council shall prescribe by rule a singular form of
certification card for apprenticeable occupations and the
conditions for its issuance.
(2) Only the { - Commissioner of the Bureau of Labor and
Industries - } { + Director of the Department of Consumer and
Business Services + } may prepare or issue or cause to be
prepared or issued a card or other form of documentation
purporting to certify or otherwise representing the bearer to be
a journeyman in an apprenticeable occupation.
(3) The { - commissioner - } { + Director of the Department
of Consumer and Business Services + } may establish and charge a
fee for the issuance of certification in an amount not to exceed
$25.
(4) The provisions of this section first apply to apprentices
who successfully complete an apprenticeship program after January
1, 1990.
SECTION 129. ORS 743.560 is amended to read:
743.560. (1) An insurer of a group health insurance policy
providing coverage for hospital or medical expenses, other than
coverage limited to expenses from accidents or specific diseases,
shall notify the group policyholder { - , the Bureau of Labor
and Industries - } and the Department of Consumer and Business
Services when the policy is terminated and the coverage is not
replaced by the group policyholder. The notice required under
this subsection:
(a) Must be given on a form prescribed by the department;
(b) Must explain the rights of the certificate holders
regarding continuation of coverage provided by federal and state
law and portability coverage in accordance with ORS 743.760; and
(c) Must be given by mail and must be mailed not later than 10
working days after the date on which the group policy terminates
according to the terms of the policy.
(2) A group health insurance policy to which subsection (1) of
this section applies shall contain a provision requiring the
insurer to notify the group policyholder { - , the Bureau of
Labor and Industries - } and the Department of Consumer and
Business Services when the policy is terminated and the coverage
is not replaced by the group policyholder. Each certificate
issued under the policy shall also contain a statement of the
provision required under this subsection.
(3) If an insurer fails to give notice as required by this
section, the insurer shall continue the group health insurance
policy of the group policyholder in full force from the date
notice should have been provided until the date that the notice
is received by the policyholder { - , the Bureau of Labor and
Industries - } and the Department of Consumer and Business
Services, whichever date is the latest, and shall waive the
premiums owing for the period for which the coverage is continued
under this subsection. The time period within which the
certificate holder may exercise any right to continuation or
portability shall commence on the date that the policyholder
{ - , the Bureau of Labor and Industries - } and the Department
of Consumer and Business Services receive the notice, whichever
date is the latest.
(4) The insurer shall supply the employer holding the
terminated policy with the necessary information for the employer
to be able to notify properly the employee of the employee's
right to continuation of coverage under state and federal law and
portability coverage in accordance with ORS 743.760.
SECTION 130. { + The unit 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. + }
{ +
OPERATIVE DATE + }
SECTION 131. { + Sections 1, 3 to 10 and 59 of this 2001 Act,
the repeal of statutes by section 2 of this 2001 Act and the
amendments to statutes by sections 11 to 58, 60 to 68, 71 to 85,
88 to 117 and 120 to 129 of this 2001 Act become operative on
January 1, 2003. + }
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