Chapter 340 Oregon Laws 2005

AN ACT

SB 135

Relating to farm labor contractors submitting certified payroll records to Commissioner of the Bureau of Labor and Industries; creating new provisions; and amending ORS 658.411, 658.417, 658.418, 658.440, 658.453 and 658.475.

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

SECTION 1. 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 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 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, by rule, may prescribe.]

[(4)] (3) 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 2. 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 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, 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.

(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, 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, in plain and simple language in a form specified by the commissioner.

(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.

(i) Provide to the commissioner 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, by rule, may prescribe.

(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] ensure 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. 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] A person acting as a farm labor contractor, or applying for a license to act as a farm labor contractor, [shall] may not:

(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.

(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 3. ORS 658.411 is amended to read:

658.411. (1) The employee of a farm labor contractor who is licensed under ORS 658.405 to 658.503 may be licensed as a farm labor contractor subject to an employee indorsement if the employee continuously meets all of the following conditions:

(a) The employee’s employer has filed with the Commissioner of the Bureau of Labor and Industries a signed statement, in a form required by the commissioner, agreeing to sponsor the application and to notify the commissioner promptly upon termination of the employment of the employee;

(b) The employee engages in activities that would require licensing as a farm labor contractor solely on behalf of the employer;

(d) The employer maintains proof of financial responsibility;

(e) The employer’s license remains in good standing; and

(f) The employee meets all of the conditions for licensing as a farm labor contractor, except as provided in this section.

(2) A farm labor contractor subject to an employee indorsement acting in compliance with subsection (1) of this section need not provide proof of financial responsibility under ORS 658.415 (3).

(3) A farm labor contractor subject to an employee indorsement acting in compliance with subsection (1) of this section need not comply with ORS 658.417 [(4)] (3).

(4) The license of a farm labor contractor subject to an employee indorsement shall state the conditions contained in subsection (1) of this section on its face, and shall state that a farm labor contractor subject to an employee indorsement who operates out of compliance with these restrictions is an unlicensed farm labor contractor.

(5) A farm labor contractor who employs another farm labor contractor is personally, jointly and severally liable for any damages, attorney fees or costs awarded against the employee for the actions of the farm labor contractor employee undertaken within the scope of employment, or for actions of the employee that the employee takes under color of an employee’s license subject to an employee indorsement that are known, or reasonably should have been known, by the employer. In the case of a farm labor contractor that is a corporation, both the corporation and the licensed majority shareholder or shareholders are so liable.

SECTION 4. ORS 658.418 is amended to read:

658.418. Upon written application from a farm labor contractor [engaged in forestation or reforestation of lands], the Commissioner of the Bureau of Labor and Industries may exempt the farm labor contractor from the provisions of ORS [658.415 (3) and 658.417 (3)] 658.440 (1)(i) and, for a farm labor contractor engaged in forestation or reforestation of lands, from the provisions of ORS 658.415 (3) for the license year if the commissioner finds that the farm labor contractor meets all of the following requirements:

(1) The farm labor contractor operates as a sole proprietor.

(2) The farm labor contractor engages in [forestation or reforestation] activities pursuant to contracts for less than $25,000.

(3) The farm labor contractor employs two or [less] fewer individuals in the performance of work on all contracts performed in the license year.

SECTION 5. 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 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).

(d) Any person who violates ORS 658.452.

(e) A farm labor contractor who fails to comply with ORS 658.417 (1)[,] or (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 183.745.

(3) All penalties recovered under this section shall be paid into the State Treasury and credited to the Farmworker Housing Development Account of the Oregon Housing Fund.

(4) After filing a complaint with the commissioner [of the Bureau of Labor and Industries], 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. The action may not 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 6. ORS 658.475 is amended to read:

658.475. The Commissioner of the Bureau of Labor and Industries, 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 (1)(i) or (3)(e) is actual damages or $500, whichever amount is greater.

SECTION 7. The amendments to ORS 658.411, 658.417, 658.418, 658.440, 658.453 and 658.475 by sections 1 to 6 of this 2005 Act apply only to payroll records for work done on or after the effective date of this 2005 Act.

Approved by the Governor June 29, 2005

Filed in the office of Secretary of State June 29, 2005

Effective date January 1, 2006

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