74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 202
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 of the Bureau
of Labor and Industries Dan Gardner)
CHAPTER ................
AN ACT
Relating to farm labor contractor duties; creating new
provisions; and amending ORS 658.411, 658.415, 658.417,
658.440, 658.453 and 658.475.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 658.415 is amended to read:
658.415. (1) A person may not act as a farm labor contractor
unless the person has first been licensed by the Commissioner of
the Bureau of Labor and Industries 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. The application shall be sworn to by the applicant
and shall be written on a form prescribed by the commissioner.
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 { + :
(a) + } Of the existence of a policy of insurance in an amount
adequate under rules issued by the commissioner for vehicles to
be used to transport workers. For the purpose of this
Enrolled Senate Bill 202 (SB 202-INTRO) Page 1
{ - subsection - } { + paragraph + }, the certificate of an
insurance producer licensed in Oregon is satisfactory
{ - evidence - } { + proof + } of adequate insurance.
{ + (b) Of the existence of workers' compensation insurance
as provided in ORS 658.440 (1)(j). The commissioner may adopt
rules concerning satisfactory proof of adequate workers'
compensation 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 as
trustee for the employees of the farm labor contractor and others
as their interests may appear and delivers { - the evidence - }
{ + proof + } of the account and the ability to withdraw the
funds to the commissioner under the terms of a bond approved by
the commissioner. 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 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 may
provide by rule for lower aggregate bonding requirements for the
business entity and its owners and employees. If there is an
unsatisfied judgment of a court or final 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
may not issue a license to the applicant until the judgment or
decision is satisfied. As a condition of licensing any such
applicant, the commissioner 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 - } { + the + } bond may { + not + } 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:
Enrolled Senate Bill 202 (SB 202-INTRO) Page 2
(a) Be personally and jointly and severally liable to any
employee as far as the 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. 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) May not be included in any suit or action against the farm
labor contractor but must be exercised independently after first
procuring a judgment 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)(a) The surety company or the commissioner 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.
(b) 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.
(c) Payment shall be made in full of all sums due to each
person who presents adequate proof of the claim.
(d) Payment shall be made in part if there are insufficient
funds to pay in full the person next entitled to payment in full.
(10) A person may not bring any suit or action against the
surety company or the commissioner on the bond or against the
commissioner 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 still has funds that are applicable to the person's
judgment or acknowledgment.
(11) The commissioner 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.
(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
within six months from the end of the period for which the bond
or deposit was executed and made.
(13) If the commissioner 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 shall terminate and
surrender any bond or any deposit under the control of the
commissioner to the person who is entitled thereto upon receiving
appropriate proof of such entitlement.
(14) The commissioner shall adopt rules reasonably necessary
for administration and enforcement of the provisions of this
section and ORS 658.419.
Enrolled Senate Bill 202 (SB 202-INTRO) Page 3
(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 together with the address of
the commissioner.
(16) The bond or deposit referred to in subsection (3) of this
section shall be payable to the commissioner 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 - } { + The
commissioner may not issue a license + } 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 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 2. 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 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. - }
Enrolled Senate Bill 202 (SB 202-INTRO) Page 4
SECTION 3. 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.
(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, 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,
Enrolled Senate Bill 202 (SB 202-INTRO) Page 5
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.
{ + (j)(A) If the person is a farm labor contractor engaged
in the forestation or reforestation of lands, 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 ORS 656.027, unless
workers' compensation insurance is otherwise provided; or
(B) If the person is a farm labor contractor but is not engaged
in the forestation or reforestation of lands, provide workers'
compensation insurance to the extent required under ORS chapter
656, unless workers' compensation insurance is otherwise
provided. + }
(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 - } { + rules + } 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 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 - } { + the + } employment, the
contractor shall furnish to { - any such - } { + the + }
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 - } { + the + } 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) A person acting as a farm labor contractor, or applying for
a license to act as a farm labor contractor, may not:
(a) Make any misrepresentation, false statement or willful
concealment in the application for a license.
Enrolled Senate Bill 202 (SB 202-INTRO) Page 6
(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 4. 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;
(c) The employee does not personally employ any workers and is
not responsible for paying any workers;
(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 { + :
(a) + } Provide proof of financial responsibility under ORS
658.415 (3).
{ + (b) Comply with ORS 658.440 (1)(j). + }
{ - (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 (3). - }
{ - (4) - } { + (3) + } 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) - } { + (4) + } A farm labor contractor who employs
another farm labor contractor is personally, jointly and
severally liable for any damages, attorney fees or costs awarded
Enrolled Senate Bill 202 (SB 202-INTRO) Page 7
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 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).
(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) { - or (3) - } .
(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, 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 - } { + an action in circuit
court + } 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 658.440 (1)(i) { + or (j) + } or (3)(e) is actual
damages or $500, whichever amount is greater.
SECTION 7. { + (1) The amendments to ORS 658.415 by section 1
of this 2007 Act apply only to an applicant for a farm labor
contractor license, including an applicant for the renewal of a
Enrolled Senate Bill 202 (SB 202-INTRO) Page 8
farm labor contractor license, who files an application on or
after the effective date of this 2007 Act.
(2) The amendments to ORS 658.411, 658.417, 658.440, 658.453
and 658.475 by sections 2 to 6 of this 2007 Act apply to:
(a) A person acting as a farm labor contractor without a valid
farm labor contractor license on or after the effective date of
this 2007 Act.
(b) A person who has a valid farm labor contractor license on
the effective date of this 2007 Act only after the license
expires under ORS 658.435 or is revoked. + }
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Enrolled Senate Bill 202 (SB 202-INTRO) Page 9
Passed by Senate March 12, 2007
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 10, 2007
...........................................................
Speaker of House
Enrolled Senate Bill 202 (SB 202-INTRO) Page 10
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 202 (SB 202-INTRO) Page 11