72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session
Enrolled
Senate Bill 916
Sponsored by COMMITTEE ON RULES
CHAPTER ................
AN ACT
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.
(c) A limited liability partnership by a partner as described
in ORS chapter 67 or 68.
(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
Enrolled Senate Bill 916 (SB 916-A) Page 1
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;
(c) Voluntarily left work without good cause;
(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
(c) Such act has resulted in a conviction by a court of
competent jurisdiction.
(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
Enrolled Senate Bill 916 (SB 916-A) Page 2
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
(c) The actual voluntary leaving of work occurs no more than 15
days prior to the planned date of voluntary leaving,
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
(c) The voluntary leaving of work occurs no more than 15 days
prior to the date of the impending discharge,
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
(c) The actual discharge occurs no more than 15 days prior to
the planned voluntary leaving,
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.
Enrolled Senate Bill 916 (SB 916-A) Page 3
(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;
Enrolled Senate Bill 916 (SB 916-A) Page 4
(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
(c) Is placed on the referral list under the collective
bargaining agreement.
(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.
Enrolled Senate Bill 916 (SB 916-A) Page 5
(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
Enrolled Senate Bill 916 (SB 916-A) Page 6
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;
Enrolled Senate Bill 916 (SB 916-A) Page 7
(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. + }
----------
Passed by Senate July 24, 2003
Repassed by Senate August 26, 2003
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House August 25, 2003
...........................................................
Speaker of House
Enrolled Senate Bill 916 (SB 916-A) Page 8
Received by Governor:
......M.,............., 2003
Approved:
......M.,............., 2003
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2003
...........................................................
Secretary of State
Enrolled Senate Bill 916 (SB 916-A) Page 9