74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
Enrolled
Senate Bill 946
Sponsored by Senators BROWN, MONNES ANDERSON, Representative
TOMEI; Senators ATKINSON, AVAKIAN, DEVLIN, WALKER,
Representatives BARKER, BERGER, BEYER, BONAMICI, BOONE,
BUCKLEY, CANNON, CLEM, COWAN, DINGFELDER, D EDWARDS, GALIZIO,
GELSER, HOLVEY, HUNT, KOMP, KRIEGER, MACPHERSON, MERKLEY,
NATHANSON, NOLAN, OLSON, RILEY, ROSENBAUM, SCHAUFLER, SCOTT,
SHIELDS, P SMITH, WHISNANT
CHAPTER ................
AN ACT
Relating to leave from work for victims of certain crimes;
creating new provisions; amending ORS 659A.885; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 2 to 7 of this 2007 Act are added to
and made a part of ORS chapter 659A. + }
SECTION 2. { + Definitions. As used in sections 2 to 7 of
this 2007 Act:
(1) 'Covered employer' means an employer who employs six or
more individuals 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 address domestic violence,
sexual assault or stalking, or in the year immediately preceding
the year in which an eligible employee takes leave to address
domestic violence, sexual assault or stalking.
(2) '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; and
(b) Is a victim of domestic violence, sexual assault or
stalking or is the parent or guardian of a minor child or
dependent who is a victim of domestic violence, sexual assault or
stalking.
(3) 'Protective order' means an order authorized by ORS 30.866,
107.095 (1)(c), 107.700 to 107.735, 124.005 to 124.040 or 163.730
to 163.750 or any other order that restrains an individual from
contact with an eligible employee or the employee's minor child
or dependent.
(4) 'Victim of domestic violence' means:
(a) An individual who has been a victim of abuse, as defined in
ORS 107.705; or
(b) Any other individual designated as a victim of domestic
violence by rule adopted under ORS 659A.805.
(5) 'Victim of sexual assault' means:
(a) An individual against whom a sexual offense has been
committed as described in ORS 163.305 to 163.467 or 163.525; or
Enrolled Senate Bill 946 (SB 946-INTRO) Page 1
(b) Any other individual designated as a victim of sexual
assault by rule adopted under ORS 659A.805.
(6) 'Victim of stalking' means:
(a) An individual against whom stalking has been committed as
described in ORS 163.732; or
(b) Any other individual designated as a victim of stalking by
rule adopted under ORS 659A.805.
(7) 'Victim services provider' means a prosecutor-based victim
assistance program or a nonprofit program offering safety
planning, counseling, support or advocacy related to domestic
violence, sexual assault or stalking. + }
SECTION 3. { + Leave from work. Except as provided in section
4 of this 2007 Act, a covered employer shall allow an eligible
employee to take reasonable leave from employment for any of the
following purposes:
(1) To seek legal or law enforcement assistance or remedies to
ensure the health and safety of the employee or the employee's
minor child or dependent, including preparing for and
participating in protective order proceedings or other civil or
criminal legal proceedings related to domestic violence, sexual
assault or stalking.
(2) To seek medical treatment for or to recover from injuries
caused by domestic violence or sexual assault to or stalking of
the eligible employee or the employee's minor child or dependent.
(3) To obtain, or to assist a minor child or dependent in
obtaining, counseling from a licensed mental health professional
related to an experience of domestic violence, sexual assault or
stalking.
(4) To obtain services from a victim services provider for the
eligible employee or the employee's minor child or dependent.
(5) To relocate or take steps to secure an existing home to
ensure the health and safety of the eligible employee or the
employee's minor child or dependent. + }
SECTION 4. { + Undue hardship. (1) As used in this section, '
undue hardship' means a significant difficulty and expense to a
covered employer's business and includes consideration of the
size of the employer's business and the employer's critical need
for the eligible employee.
(2) A covered employer may limit the amount of leave an
eligible employee takes under section 3 of this 2007 Act if the
employee's leave creates an undue hardship on the employer's
business. + }
SECTION 5. { + Denying leave to employee prohibited; civil
action. It is an unlawful employment practice for a covered
employer to deny leave to an eligible employee or to discharge,
threaten to discharge, demote, suspend or in any manner
discriminate or retaliate against an employee with regard to
promotion, compensation or other terms, conditions or privileges
of employment because the employee takes leave as provided in
section 3 of this 2007 Act. + }
SECTION 6. { + Notice to employer; records confidential. (1)
An eligible employee shall give the covered employer reasonable
advance notice of the employee's intention to take leave for the
purposes identified in section 3 of this 2007 Act, unless giving
the advance notice is not feasible.
(2) The covered employer may require the eligible employee to
provide certification that:
(a) The employee or the employee's minor child or dependent is
a victim of domestic violence, sexual assault or stalking; and
Enrolled Senate Bill 946 (SB 946-INTRO) Page 2
(b) The leave taken is for one of the purposes identified in
section 3 of this 2007 Act.
(3) The eligible employee shall provide the certification
within a reasonable time after receiving the covered employer's
request for the certification.
(4) Any of the following constitutes sufficient certification:
(a) A copy of a police report indicating that the eligible
employee or the employee's minor child or dependent was a victim
of domestic violence, sexual assault or stalking.
(b) A copy of a protective order or other evidence from a court
or attorney that the eligible employee appeared in or was
preparing for a civil or criminal proceeding related to domestic
violence, sexual assault or stalking.
(c) Documentation from an attorney, law enforcement officer,
health care professional, licensed mental health professional or
counselor, member of the clergy or victim services provider that
the eligible employee or the employee's minor child or dependent
was undergoing treatment or counseling, obtaining services or
relocating as a result of domestic violence, sexual assault or
stalking.
(5) All records and information kept by a covered employer
regarding an eligible employee's leave under sections 2 to 7 of
this 2007 Act, including the fact that the employee has requested
or obtained leave under section 3 of this 2007 Act, are
confidential and may not be released without the express
permission of the employee, unless otherwise required by law. + }
SECTION 7. { + Use of paid leave. (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 to an eligible employee under
section 3 of this 2007 Act.
(2) An eligible employee who takes leave pursuant to section 3
of this 2007 Act may use any paid accrued vacation 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 paid accrued leave is to be used
when more than one type of paid accrued leave is available to the
employee. + }
SECTION 8. ORS 659A.885 is amended to read:
659A.885. (1) Any individual 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:
Enrolled Senate Bill 946 (SB 946-INTRO) Page 3
(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 alleging a violation of { + section 5 of this 2007 Act
or + } ORS 25.337, 25.424, 171.120, 399.235, 476.574, 659A.030,
659A.040, 659A.043, 659A.046, 659A.063, 659A.069, 659A.100 to
659A.145, 659A.150 to 659A.186, 659A.194, 659A.203, 659A.218,
659A.230, 659A.233, 659A.236, 659A.250 to 659A.262, 659A.300,
659A.306, 659A.309, 659A.315, 659A.318 or 659A.421 (1) or (3).
(3) In any action under subsection (1) of this section alleging
a violation of ORS 25.337, 25.424, 659A.040, 659A.043, 659A.046,
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 171.120, 476.574, 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) Any individual against whom any distinction, discrimination
or restriction on account of race, color, religion, sex, national
origin, marital status or age, if the individual is 18 years of
age or older, 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
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(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).
SECTION 9. { + The section captions used in this 2007 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2007 Act. + }
SECTION 10. { + This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2007 Act takes effect on
its passage. + }
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Enrolled Senate Bill 946 (SB 946-INTRO) Page 5
Passed by Senate April 18, 2007
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 14, 2007
...........................................................
Speaker of House
Enrolled Senate Bill 946 (SB 946-INTRO) Page 6
Received by Governor:
......M.,............., 2007
Approved:
......M.,............., 2007
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2007
...........................................................
Secretary of State
Enrolled Senate Bill 946 (SB 946-INTRO) Page 7