Chapter 792 Oregon Laws 2003

AN ACT

SB 916

Relating to unemployment insurance; creating new provisions; and amending ORS 657.044, 657.176 and 657.471.

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

SECTION 1. ORS 657.044 is amended to read:

657.044. (1) As used in this chapter, “employment” does not include service performed for:

(a) A corporation by corporate officers who are directors of the corporation, who have a substantial ownership interest in the corporation and who are members of the same family [as parents, daughters, sons, daughters-in-law, sons-in-law or grandchildren] if the corporation elects not to provide coverage for those individuals. The election shall be in writing and shall be effective on the first day of the calendar quarter in which the request was submitted.

(b) A limited liability company by a member, including members who are managers, as defined in ORS 63.001.

(2) The provisions of this section do not apply to service performed for a nonprofit employing unit, as defined in ORS 657.072, for this state, for a political subdivision of this state or for an Indian tribe.

(3) As used in this section, “members of the same family” means persons who are members of a family as parents, stepparents, grandparents, spouses, sons-in-law, daughters-in-law, brothers, sisters, children, stepchildren, adopted children or grandchildren.

SECTION 2. ORS 657.176 is amended to read:

657.176. (1) An authorized representative designated by the Director of the Employment Department shall promptly examine each claim to determine whether an individual is subject to disqualification as a result of a separation, termination, leaving, resignation, or disciplinary suspension from work or as a result of failure to apply for or accept work and shall promptly enter a director’s decision if required by ORS 657.267. The authorized representative may address issues raised by information before the authorized representative, including but not limited to the nature of the separation, notwithstanding the way the parties characterize those issues.

(2) An individual shall be disqualified from the receipt of benefits until the individual has performed service in employment subject to this chapter, or for an employing unit in this or any other state or Canada or as an employee of the federal government, for which remuneration is received that equals or exceeds four times the individual’s weekly benefit amount subsequent to the week in which the act causing the disqualification occurred, if the authorized representative designated by the director finds that the individual:

(a) Has been discharged for misconduct connected with work;

(b) Has been suspended from work for misconduct connected with work;

(d) Failed without good cause to apply for available suitable work when referred by the employment office or the director;

(e) Failed without good cause to accept suitable work when offered;

(f) Has been discharged or suspended for being absent or tardy in reporting to work and the absence or tardiness occurred as a result of the unlawful use of any [controlled substance] drug unless the person was participating in a recognized drug rehabilitation program at the time of the absence or tardiness, or is so participating within 10 days of the date of the discharge or suspension, and the person provides to the Employment Department documentation of program participation. As used in this paragraph, “unlawful use” does not include the use of a [controlled substance] drug taken under the supervision of a licensed health care professional and in accordance with the prescribed directions for consumption, or other uses authorized by the laws of this state; [or]

(g) Has been discharged or suspended for being absent or tardy in reporting to work and the absence or tardiness occurred as the result of the use of alcohol on a second or any subsequent occasion within a period of 12 months unless the person was participating in a recognized alcohol rehabilitation program at the time of the absence or tardiness, or is so participating within 10 days of the date of the discharge or suspension, and the person provides to the department documentation of program participation[.]; or

(h) Has committed a disqualifying act described in subsection (9) or (10) of this section.

(3) If the authorized representative designated by the director finds an individual was discharged for misconduct because of the individual’s commission of a felony or theft in connection with the individual’s work, all benefit rights based on wages earned prior to the date of the discharge shall be canceled if the individual’s employer notifies the director of the discharge within 10 days following issuance of the notice provided for in ORS 657.265 or 30 days following issuance of the notice provided for in ORS 657.266, and:

(a) The individual has admitted commission of the felony or theft to an authorized representative of the director;

(b) The individual has signed a written admission of such act and such written admission has been presented to an authorized representative of the director; or

(4) An individual disqualified under subsection (2) of this section shall have the individual’s maximum benefit amount reduced by eight times the individual’s weekly benefit amount. However, in no event shall the individual’s maximum benefit amount be reduced to less than the individual’s weekly benefit amount unless the individual has previously received benefits during the individual’s benefit year.

(5) An individual shall not be disqualified from receiving benefits under subsection (2)(c) or (e) of this section or under ORS 657.200 if the individual ceases work or fails to accept work when a collective bargaining agreement between the individual’s bargaining unit and the individual’s employer is in effect and the employer unilaterally modifies the amount of wages payable under the agreement, in breach of the agreement.

(6) For purposes of applying subsection (2) of this section, when an individual has notified an employer that the individual will leave work on a specific date and it is determined:

(a) That such separation would be for reasons that constitute good cause;

(b) The individual voluntarily left work without good cause prior to the date of the impending good cause voluntary leaving date; and

then such separation from work shall be adjudicated as if the actual voluntary leaving had not occurred and the planned voluntary leaving had occurred. However, the individual shall be ineligible for benefits for the period including the week in which the actual voluntary leaving occurred through the week prior to the week of the planned good cause voluntary leaving date.

(7) For purposes of applying subsection (2) of this section, when an employer has notified an individual that the individual will be discharged on a specific date and it is determined:

(a) That such discharge would not be for reasons that constitute misconduct connected with the work;

(b) The individual voluntarily left work without good cause prior to the date of the impending discharge; and

then such separation from work shall be adjudicated as if the voluntary leaving had not occurred and the discharge had occurred. However, the individual shall be ineligible for benefits for the period including the week in which the voluntary leaving occurred through the week prior to the week in which the individual would have been discharged.

(8) For purposes of applying subsection (2) of this section, when an individual has notified an employer that the individual will leave work on a specific date and it is determined:

(a) That such voluntary leaving would be for reasons that do not constitute good cause;

(b) The employer discharged the individual, but not for misconduct connected with work, prior to the date of the planned voluntary leaving; and

then such separation from work shall be adjudicated as if the discharge had not occurred and the planned voluntary leaving had occurred. However, the individual shall be eligible for benefits for the period including the week in which the actual discharge occurred through the week prior to the week of the planned voluntary leaving date.

(9)(a) For the purposes of subsection (2) of this section, an individual is considered to have committed a disqualifying act when the individual:

(A) Fails to comply with the terms and conditions of a reasonable written policy established by the employer or through collective bargaining, which may include blanket, random, periodic and probable cause testing, that governs the use, sale, possession or effects of [controlled substances] drugs or alcohol in the workplace;

(B) Fails or refuses to take a drug or alcohol test as required by the employer’s reasonable written policy;

(C) Refuses to cooperate with or subverts or attempts to subvert a drug or alcohol testing process in any employment-related test required by the employer’s reasonable written policy, including but not limited to:

(i) Refusal or failure to complete proper documentation that authorizes the test;

(ii) Refusal or failure to sign a chain of custody form;

(iii) Presentation of false identification;

(iv) Placement of an adulterant in the individual’s specimen for testing, when the adulterant is identified by a testing facility; or

(v) Interference with the accuracy of the test results by conduct that includes dilution or adulteration of a test specimen;

(D) Is under the influence of intoxicants while performing services for the employer;

(E) Possesses a drug unlawfully or in violation of the employer’s reasonable written policy during work;

(F) Tests positive for alcohol or an unlawful drug in connection with employment; or

(G) Refuses to enter into or violates the terms of a last chance agreement with the employer.

(b)(A) Except as provided in subparagraph (B) of this paragraph, an individual is not considered to have committed a disqualifying act under this subsection if the individual, on the date of separation or within 10 days after the date of separation, is participating in a recognized drug or alcohol rehabilitation program and provides documentation of participation in the program to the department.

(B) This paragraph does not apply to an individual who has refused to enter into or has violated the terms of a last chance agreement with the employer.

(c) It is no defense or excuse under this section that the individual’s separation resulted from alcohol use, marijuana use, unlawful drug use, alcoholism or drug addiction.

[(b)] (d) The department shall adopt rules to carry out the provisions of this subsection.

[(10) As used in subsections (2)(f) and (9) of this section, “controlled substance” has the meaning for that term provided in ORS 475.005.]

(10) For the purposes of subsection (2) of this section, an individual is considered to have committed a disqualifying act when the individual voluntarily leaves work, fails to apply for available suitable work when referred by the employment office or the director or fails to accept suitable work when offered:

(a) Because the employer has or introduces a reasonable written drug-free workplace policy that is consistent with subsection (9)(a)(A) of this section;

(b) Because the employer requires the employee to consent to present or future drug or alcohol tests under a reasonable written policy that is consistent with subsection (9)(a)(A) of this section;

(c) To avoid taking a drug or alcohol test under a reasonable written policy that is consistent with subsection (9)(a)(A) of this section; or

(d) To avoid meeting the requirements of a last chance agreement.

(11) An individual may not be disqualified from receiving benefits under subsection (2)(c) of this section and shall be deemed laid off if the individual:

(a) Works under a collective bargaining agreement;

(b) Elects to be laid off when the employer has decided to lay off employees; and

(12)(a) As used in this subsection, “domestic violence” means the physical injury, sexual abuse or forced imprisonment, or threat thereof, of a person by another who is related by blood or marriage or has a significant relationship with the other person at the present, or who has been related or has had a significant relationship at some time in the past, to the extent that the person’s health, safety or welfare is harmed or threatened thereby.

(b) An individual may not be disqualified from receiving benefits under subsection (2)(c), (d) or (e) of this section or be considered unavailable for purposes of ORS 657.155 if:

(A) The individual is a victim of domestic violence;

(B) The individual’s health, safety or welfare is endangered at a current workplace, or would be endangered at an available workplace, by a related person referred to in paragraph (a) of this subsection; and

(C) The individual acts as a reasonable and prudent person of ordinary sensitivities and has pursued all reasonable alternatives before voluntarily leaving work. Reasonable alternatives include, but are not limited to, actions such as seeking a restraining order, relocating to a secure area and seeking reasonable accommodations from the employer such as a transfer within the company.

(13) For purposes of this section:

(a) “Adulterant” means a substance that does not occur naturally in urine, or that occurs naturally in urine but not at the concentrations detected. “Adulterant” includes but is not limited to glutaraldehyde, nitrite concentrations above physiological levels, hypochlorite or soap.

(b) “Drug” means a controlled substance as defined in ORS 475.005.

(c) “Last chance agreement” means a reasonable agreement:

(A) Between an employer and an employee who has violated the employer’s reasonable written policy, has engaged in drug or alcohol use connected with work or has admitted to alcohol abuse, marijuana use or unlawful drug use; and

(B) That permits the employee to return to work under conditions that may require the employee to:

(i) Abstain from alcohol use, marijuana use and unlawful drug use; and

(ii) Attend and comply with the requirements of a rehabilitation or education program acceptable to the employer.

(d) An individual is “under the influence of intoxicants” when the level of alcohol, marijuana or unlawful drugs present in the individual’s body exceeds the amount prescribed in a collective bargaining agreement, or the amount prescribed in the employer’s reasonable written policy if there is no applicable collective bargaining agreement provision.

SECTION 3. ORS 657.471 is amended to read:

657.471. (1) Subject to the provisions of subsections (2) to (7) and (10) of this section, benefits paid to an eligible individual shall be charged to each of the individual’s employers during the base year in the same proportion that the wages paid by each employer to the individual during the base year bear to the wages paid by all employers to that individual during that year.

(2) With the exception of a political subdivision electing to pay taxes under ORS 657.509, an employer’s account shall not be charged with benefits paid an unemployed individual in excess of one-third of the base year wages paid that individual while in the employ of such employer.

(3) Benefits paid to an individual for unemployment immediately after the expiration of a period of disqualification for having left work of an employer voluntarily without good cause shall not be charged to that employer.

(4) Benefits paid to an individual for unemployment immediately after the expiration of a period of disqualification for having been discharged by an employer for misconduct shall not be charged to that employer.

(5) Benefits paid without any disqualification to an individual shall not be charged to an employer of the individual for the immediate period of unemployment when:

(a) The individual left work of the employer voluntarily for good cause not attributable to the employer; or

(b) The employer discharged the individual because the individual was unable to satisfy a job prerequisite required by law or administrative rule.

(6) If it is determined under the provisions of subsection (3), (4) or (5) of this section that benefits paid to an individual shall not be charged to an employer, such employer’s account shall not be charged for any benefits paid for any subsequent period or periods of unemployment during that individual’s affected benefit year or during any benefit year beginning within 52 weeks subsequent to the affected benefit year.

(7) If a base-year employer, not otherwise eligible for relief of charges for benefits under this section, receives notification of an initial valid determination of a claim filed by an individual who:

(a) Left work of such employer voluntarily and not attributable to the employer, such employer may request relief of charges within 30 days of the date the notice provided for in ORS 657.266 is mailed or delivered to the employer. The request must advise the Director of the Employment Department in writing the date of such leaving and that such leaving was voluntary and not attributable to the employer and the reason therefor. Upon receipt of such notice from the employer the director shall investigate the separation and if the resulting determination, which shall be made by the director, establishes that the leaving was voluntary and not attributable to the employer, that employer’s account shall not be charged with benefits during that individual’s benefit year. If the individual was reemployed by such employer prior to the filing of the initial valid claim, the employer shall not receive relief of the employer’s account under this subsection;

(b) Was disqualified for the individual’s most recent separation from such employer by the director’s decision that found the individual has been discharged for misconduct connected with the work, that employer may request relief of charges within 30 days of the date the notice provided for in ORS 657.266 is mailed or delivered to the employer. Upon receipt of such request from the employer, the director shall examine department records and if the requirements of this subsection have been met shall grant the relief of charges to that employer for benefits paid to the individual during the benefit year; or

(c) Was discharged for reasons that would be disqualifying under ORS 657.176 (2)(a), (b), (f), (g) or (h) [or (g) or (9)], the employer may request relief of charges within 30 days of the date the notice provided for in ORS 657.266 is mailed or delivered to the employer. The request must specify the date of the discharge and the reasons why the employer believes the discharge was for reasons that would be disqualifying under ORS 657.176 (2)(a), (b), (f), (g) or (h) [or (g) or (9)]. Upon receipt of the request from the employer, the director shall review the information provided by the employer and determine whether the employer is entitled to relief of charges for benefits paid to the individual during the benefit year. If the director determines that the employer is entitled to such relief of charges, the director shall grant the relief.

(8) The determination of the director under subsection (7)(a) and (c) of this section shall be final in all cases unless an application for hearing is filed within 20 days after delivery of such decision, or, if mailed, within 20 days after the same was mailed to the employer’s last-known address. When a request for hearing has been timely filed, a hearing officer shall be assigned to conduct a hearing. After the hearing officer has afforded all parties an opportunity for a fair hearing, the hearing officer shall affirm or reverse the decision and promptly notify all parties entitled to notice of the decision and the reasons therefor. Decisions of the hearing officer under this subsection become final and may be judicially reviewed as provided in ORS 657.684 to the extent applicable.

(9) If the director finds that an employer or any employee, officer or agent of an employer, in submitting facts under subsection (7) or (8) of this section willfully makes a false statement or representation or willfully fails to report a material fact concerning the termination of an individual’s employment, the director shall make a determination thereon charging the employer’s reserve account not less than two nor more than 10 times the weekly benefit amount of the claimant or claimants, as the case may be. The director shall give notice to the employer of the determination under this subsection and such decision of the director shall become final unless an application for hearing is filed in accordance with subsection (8) of this section.

(10) Benefits paid to an individual shall not be charged to a base-year employer if:

(a) The employer furnished part-time work to the individual during the base year;

(b) The individual has become eligible for benefits because of loss of employment with one or more other employers;

(c) The employer has continued to furnish part-time work to the individual in substantially the same amount as during the individual’s base year; and

(d) The employer requests relief of charges within 30 days of the date the notice provided for in ORS 657.266 is mailed or delivered to the employer.

SECTION 4. The amendments to ORS 657.176 and 657.471 by sections 2 and 3 of this 2003 Act apply only to claims for unemployment benefits filed on or after the effective date of this 2003 Act.

Approved by the Governor September 22, 2003

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

Effective date January 1, 2004

__________