Chapter 603 Oregon Laws 2003

AN ACT

SB 610

Relating to victims' rights; creating new provisions; and amending ORS 659A.885.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Sections 2 to 6 of this 2003 Act are added to and made a part of ORS chapter 659A.

SECTION 2. As used in sections 2 to 6 of this 2003 Act:

(1) “Covered employer” means an employer who employs six or more persons in the State of Oregon for each working day during each of 20 or more calendar workweeks in the year in which an eligible employee takes leave to attend a criminal proceeding or in the year immediately preceding the year in which an eligible employee takes leave to attend a criminal proceeding.

(2) “Crime victim” means a person who has suffered financial, social, psychological or physical harm as a result of a person felony, as defined in the rules of the Oregon Criminal Justice Commission, and includes a member of the immediate family of the person.

(3) “Criminal proceeding” has the meaning given that term in ORS 131.005 and includes a juvenile proceeding under ORS chapter 419C or any other proceeding at which a crime victim has a right to be present.

(4) “Eligible employee” means an employee who:

(a) Worked an average of more than 25 hours per week for a covered employer for at least 180 days immediately before the date the employee takes leave to attend a criminal proceeding; and

(b) Is a crime victim.

(5) “Immediate family” means spouse, domestic partner, father, mother, sibling, child, stepchild and grandparent.

SECTION 3. (1) As used in this section, “undue hardship” means a significant difficulty and expense to a business and includes consideration of the size of the covered employer’s business and the covered employer’s critical need for the employee.

(2) Except as provided in subsection (3) of this section, a covered employer shall allow an eligible employee to take leave from employment to attend a criminal proceeding.

(3) A covered employer may limit the amount of leave an eligible employee takes to attend a criminal proceeding if the employee’s leave creates an undue hardship to the covered employer’s business.

(4) An eligible employee may notify the prosecuting attorney if taking leave to attend a criminal proceeding would cause undue hardship to the covered employer. The prosecuting attorney shall then notify the court or hearing body. The court or hearing body must take the schedule of the employee into consideration when scheduling a criminal proceeding.

SECTION 4. (1) A covered employer who denies leave to an eligible employee or who discharges, threatens to discharge, intimidates or coerces because the employee takes leave to attend a criminal proceeding commits an unlawful employment practice.

(2) Any person claiming to be aggrieved by an unlawful employment practice specified in subsection (1) of this section may file a civil action under ORS 659A.885. The provisions of ORS 659A.800 to 659A.865 do not apply to an unlawful employment practice specified in subsection (1) of this section.

SECTION 5. (1) An eligible employee shall give the covered employer:

(a) Reasonable notice of the employee’s intention to take leave to attend a criminal proceeding; and

(b) Copies of any notices of scheduled criminal proceedings that the employee receives from a law enforcement agency under ORS 147.417.

(2) All records kept by a covered employer regarding an eligible employee’s leave under section 3 of this 2003 Act or notices received under subsection (1) of this section are subject to the laws relating to confidentiality.

SECTION 6. (1) Except as provided in subsections (2) and (3) of this section, and unless otherwise provided by the terms of an agreement between the eligible employee and the covered employer, a collective bargaining agreement or an employer policy, a covered employer is not required to grant leave with pay under section 3 of this 2003 Act to an eligible employee to attend a criminal proceeding.

(2) An eligible employee who takes leave to attend a criminal proceeding may use any paid accrued vacation leave during the period of leave or may use any other paid leave that is offered by the covered employer in lieu of vacation leave during the period of leave.

(3) Subject to the terms of any agreement between the eligible employee and the covered employer or the terms of a collective bargaining agreement or an employer policy, the covered employer may determine the order in which accrued leave is to be used when more than one type of accrued leave is available to the employee.

SECTION 7. ORS 659A.885 is amended to read:

659A.885. (1) Any person claiming to be aggrieved by an unlawful practice specified in subsection (2) of this section may file a civil action in circuit court. In any action under this subsection, the court may order injunctive relief and such other equitable relief as may be appropriate, including but not limited to reinstatement or the hiring of employees with or without back pay. A court may order back pay in an action under this subsection only for the two-year period immediately preceding the filing of a complaint under ORS 659A.820 with the Commissioner of the Bureau of Labor and Industries, or if a complaint was not filed before the action was commenced, the two-year period immediately preceding the filing of the action. In any action under this subsection, the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal. Except as provided in subsection (3) of this section:

(a) The judge shall determine the facts in an action under this subsection; and

(b) Upon any appeal of a judgment in an action under this subsection, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (3).

(2) An action may be brought under subsection (1) of this section for the following unlawful practices: ORS 25.424, 399.235, 659A.030, 659A.040, 659A.043, 659A.046, 659A.063, 659A.069, 659A.100 to 659A.145, 659A.150 to 659A.186, 659A.203, 659A.218, 659A.230, 659A.233, 659A.236, 659A.250 to 659A.262, 659A.300, 659A.306, 659A.309, 659A.318 and 659A.421 (1) or (3) and section 4 of this 2003 Act.

(3) In any action under subsection (1) of this section alleging a violation of ORS 659A.040, 659A.069, 659A.100 to 659A.145, 659A.230, 659A.250 to 659A.262, 659A.318 or 659A.421 (1) or (3):

(a) The court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $200, whichever is greater, and punitive damages;

(b) At the request of any party, the action shall be tried to a jury;

(c) Upon appeal of any judgment finding a violation, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (1); and

(d) Any attorney fee agreement shall be subject to approval by the court.

(4) In any action under subsection (1) of this section alleging a violation of ORS 659A.203 or 659A.218, the court may award, in addition to the relief authorized under subsection (1) of this section, compensatory damages or $250, whichever is greater.

(5) All persons against whom any distinction, discrimination or restriction on account of race, religion, sex, marital status, color or national origin has been made by any place of public accommodation, as defined in ORS 659A.400, by any person acting on behalf of such place or by any person aiding or abetting such place or person in violation of ORS 659A.406 may bring an action against the operator or manager of such place, the employee or person acting on behalf of such place or the aider or abettor of such place or person. Notwithstanding subsection (1) of this section, in an action under this subsection:

(a) The court may award, in addition to the relief authorized under subsection (1) of this section, compensatory and punitive damages;

(b) The operator or manager of the place of public accommodation, the employee or person acting on behalf of the place, and any aider or abettor shall be jointly and severally liable for all damages awarded in the action;

(c) At the request of any party, the action shall be tried to a jury;

(d) The court shall award reasonable attorney fees to a prevailing plaintiff;

(e) The court may award reasonable attorney fees and expert witness fees incurred by a defendant who prevails only if the court determines that the plaintiff had no objectively reasonable basis for asserting a claim or no reasonable basis for appealing an adverse decision of a trial court; and

(f) Upon any appeal of a judgment under this subsection, the appellate court shall review the judgment pursuant to the standard established by ORS 19.415 (1).

Approved by the Governor July 22, 2003

Filed in the office of Secretary of State July 22, 2003

Effective date January 1, 2004

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