75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3675
A-Engrossed
Senate Bill 966
Ordered by the Senate May 6
Including Senate Amendments dated May 6
Sponsored by Senator ROSENBAUM, Representatives CANNON, DEMBROW,
TOMEI; Senators BATES, BONAMICI, CARTER, DINGFELDER, MONROE,
MORRISETTE, PROZANSKI, WALKER, Representatives BAILEY, BARKER,
BOONE, GALIZIO, GELSER, GREENLICK, HARKER, HOLVEY, KAHL, KOMP,
KOTEK, NOLAN, RILEY, SHIELDS, J SMITH, WITT
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Creates Family Leave Benefits Insurance Program to provide
benefits to employees taking family leave. Establishes Family
Leave Benefits Insurance Account. Requires employers to pay
premiums withheld from employee earnings into account.
Continuously appropriates moneys in account to Bureau of Labor
and Industries and requires bureau to administer claims for
benefits. Establishes qualifications for benefits. Creates
unlawful employment practice. Authorizes bureau to assess civil
penalties against employers for failure to comply with
withholding requirements.
Establishes procedures and requirements for employers to file
reports with Department of Revenue.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to family leave benefits insurance; creating new
provisions; amending ORS 316.168 and 316.171; appropriating
money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Sections 1 to 12 of this 2009 Act may be cited
as the Family Leave Benefits Insurance Act. + }
SECTION 2. { + (1) The Legislative Assembly finds that:
(a) Although family leave laws have assisted employees to
balance the demands of the workplace with their family
responsibilities, more needs to be done to achieve the goals of
workforce stability and economic security.
(b) Many employees do not have access to family leave, and
those who do may not be in a financial position to take leave
that is unpaid.
(c) Employer-paid benefits meet only a small part of this need.
(d) The establishment of paid family leave benefits will reduce
the impact on state income support programs by increasing the
ability of workers to provide caregiving services for family
members while maintaining employment.
(2) Sections 1 to 12 of this 2009 Act are enacted to allow an
employee:
(a) To care for an infant or newly adopted child under 18 years
of age, or for a newly placed foster child under 18 years of age,
or for an adopted or foster child older than 18 years of age if
the child is incapable of self-care because of a mental or
physical disability.
(b) To care for a family member with a serious health
condition. + }
SECTION 3. { + As used in sections 1 to 12 of this 2009 Act:
(1) 'Application year' means the 12-month period beginning on
the first day of the calendar week in which an employee files an
application for family leave benefits and, thereafter, the
12-month period beginning with the first day of the calendar week
in which the employee files a subsequent application for family
leave benefits after the expiration of the employee's last
preceding application year.
(2) 'Employer' means a covered employer as defined in ORS
659A.150.
(3) 'Family leave' means a leave of absence described in ORS
659A.159 (1)(a) or (b).
(4) 'Family member' has the meaning given that term in ORS
659A.150.
(5) 'Health care provider' has the meaning given that term in
ORS 659A.150.
(6) 'Paid family leave' includes family leave with pay from the
employer and family leave during which the employee uses any
other type of paid leave, such as paid vacation leave or paid
sick leave.
(7) 'Premium' means the payments required by section 6 of this
2009 Act to be made for the Family Leave Benefits Insurance
Account.
(8) 'Qualifying year' means the 180 days immediately preceding
the first day of the employee's application year.
(9) 'Serious health condition' has the meaning given that term
in ORS 659A.150. + }
SECTION 4. { + (1) The Bureau of Labor and Industries shall
establish and administer a Family Leave Benefits Insurance
Program.
(2) The bureau may adopt rules as necessary to implement
sections 1 to 12 of this 2009 Act. In adopting rules, the bureau
shall maintain consistency with the rules adopted to implement
ORS 659A.150 to 659A.186, to the extent those rules are not in
conflict with sections 1 to 12 of this 2009 Act. + }
SECTION 5. { + (1) Family leave benefits are payable under the
Family Leave Benefits Insurance Program to an employee during a
period in which the employee is on unpaid family leave if the
employee:
(a) Takes family leave to care for:
(A) An infant or newly adopted child under 18 years of age, or
for a newly placed foster child under 18 years of age, or for an
adopted or foster child older than 18 years of age if the child
is incapable of self-care because of a mental or physical
disability; or
(B) A family member with a serious health condition.
(b) Files a claim for benefits as required by rules adopted by
the Bureau of Labor and Industries.
(c) Establishes the employee's eligibility to take family leave
under ORS 659A.156.
(d) Establishes that the employee has had premiums withheld
throughout the employee's qualifying year via payroll
withholdings as provided under section 6 of this 2009 Act.
(e) Establishes an application year. An application year may
not be established if the qualifying year includes assessments
withheld before establishment of a previous application year.
(f) Documents that the employee has notified the employer as
provided in ORS 659A.165.
(2) The bureau may require that a claim for benefits under this
section be supported by a certification issued by a health care
provider who is providing care to the employee's family member if
applicable.
(3) An employee is not eligible for benefits under this section
for any week for which the employee receives paid family leave.
If an employer provides paid family leave, the employee may elect
whether first to use the paid family leave or to receive benefits
under this section. An employee may not be required to use paid
family leave to which the employee is entitled before receiving
benefits under this section.
(4)(a) An employee is disqualified from family leave benefits
under this section if the employee:
(A) Willfully makes a false statement or misrepresentation
regarding a material fact, or willfully fails to disclose a
material fact, to obtain benefits;
(B) Seeks benefits based on an intentionally self-inflicted
serious health condition; or
(C) Seeks benefits based on a serious health condition that
resulted from the employee's commission of a felony.
(b) A disqualification for benefits under this subsection is
for a period of two years, and commences on the first day of the
calendar week in which the employee filed a claim for benefits
under this section. Any employee who is disqualified for benefits
under this subsection is liable to the bureau for a penalty in an
amount equal to 15 percent of the amount of benefits received by
the employee.
(5)(a) This section does not limit an employee's right to take
leave from employment under other laws or employer policy.
(b) The eligibility of an employee for benefits is not affected
by a strike or lockout at the factory, establishment or other
premises at which the employee is or was last employed.
(c) An employee who has received benefits under this section
may not lose any other employment benefits, including seniority
or pension rights, accrued before the date that family leave
commenced. However, this section does not entitle an employee to
accrue employment benefits during a period of family leave or to
a right, benefit or position of employment other than a right,
benefit or position to which the employee would have been
entitled had the employee not taken family leave.
(d) This section does not diminish an employer's obligation to
comply with a collective bargaining agreement or an employment
benefits program or plan that provides greater benefits to
employees than the benefits provided under this section.
(e) An agreement by an employee to waive the employee's rights
under this section is void as contrary to public policy. The
benefits under this section may not be diminished by a collective
bargaining agreement or another employment benefits program or
plan entered into or renewed after the effective date of this
2009 Act.
(6) This section does not create a continuing entitlement or
contractual right. + }
SECTION 6. { + (1) Every employer shall retain from the moneys
earned by all employees a premium amount of not more than two
cents for each hour or part of an hour the employee is employed
and pay the moneys retained in the manner and at such intervals
as the Commissioner of the Bureau of Labor and Industries
directs.
(2) Moneys collected pursuant to subsection (1) of this
section, and any accrued cash balances, shall be deposited in the
Family Leave Benefits Insurance Account for the expenditures of
the Bureau of Labor and Industries in carrying out the functions
and duties of the bureau under sections 1 to 12 of this 2009 Act.
Factors to be considered in making the adjustment under
subsection (3) of this section in rate of premiums withheld
include, but are not limited to, the cash balance as determined
by the commissioner and estimated expenditures and revenues of
the Family Leave Benefits Insurance Account.
(3) It is the intent of the Legislative Assembly that the
commissioner may adjust rates, not to exceed the amount
established in subsection (1) of this section, for the collection
of premiums pursuant to subsection (1) of this section. The
commissioner shall set rates for premiums in a manner that
minimizes the volatility of the rates assessed and so that at the
end of the period for which the rates are effective, the cash
balance shall be an amount approximating 12 months of projected
expenditures from the Family Leave Benefits Insurance Account,
considering the functions and duties of the bureau under sections
1 to 12 of this 2009 Act.
(4) Every employer required to pay premiums under this section
shall make and file a report of employee hours worked and amounts
due under this section upon a combined report form prescribed by
the Department of Revenue. The report shall be filed with the
department:
(a) At the times and in the manner prescribed in ORS 316.168
and 316.171; or
(b) Annually as required or allowed pursuant to ORS 316.197 or
657.571.
(5) If the employer is a temporary employment agency that
provides employees on a temporary basis to its customers, the
temporary employment agency is considered the employer for
purposes of this section.
(6)(a) When an employer quits business or sells out, exchanges
or otherwise disposes of the business or stock of goods, any
premium payable under this section is immediately due and
payable, and the employer shall, within 10 days thereafter, pay
the premium due. Any person who becomes a successor to the
business is liable for the full amount of the premium and shall
withhold from the purchase price a sum sufficient to pay any
premium due from the employer until the employer produces a
receipt from the bureau showing payment in full of any premium
due or a certificate that no premium is due. If the premium is
not paid by the employer within 10 days after the date of the
sale, exchange or disposal, the successor is liable for the
payment of the full amount of premium. The successor's payment of
the premium is, to the extent of the payment, a payment upon the
purchase price, and if the payment is greater in amount than the
purchase price, the amount of the difference is a debt due the
successor from the employer.
(b) A successor is not liable for any premium due from the
person from whom the successor has acquired a business or stock
of goods if the successor gives written notice to the bureau of
the acquisition and no assessment is issued by the bureau within
one year after receipt of the notice against the former operator
of the business.
(7)(a) Information contained in the files and records
pertaining to an employee under this section is confidential and
not open to public inspection, other than to public employees in
the performance of their official duties. However, the employee
or an authorized representative of an employee may review the
records or receive specific information from the records on the
presentation of the signed authorization of the employee. An
employer or the employer's duly authorized representative may
review the records of an employee in connection with a pending
claim. At the bureau's discretion, other persons may review
records when those persons are rendering assistance to the bureau
at any stage of the proceedings on any matter pertaining to the
administration of this section.
(b) An employer must keep at its place of business records of
employment from which the information needed by the bureau for
purposes of this section may be obtained. The records shall at
all times be open to the inspection of the bureau pursuant to
rules adopted by the bureau. + }
SECTION 7. { + (1) The Bureau of Labor and Industries shall
notify the employer of an employee filing a claim for family
leave benefits under section 5 of this 2009 Act within five
business days of the claim being filed.
(2) In an application year, family leave benefits are payable
for a maximum of six weeks.
(3) The first payment of benefits shall be made to an employee
within two weeks after the claim is filed or the family leave
began, whichever is later. Subsequent payments shall be made
twice a month thereafter.
(4) Family leave benefits shall be paid as follows:
(a) Benefits shall be $300 per week for an employee who at the
time family leave began was regularly working 40 hours per week,
or a prorated amount based on the weekly hours regularly worked
for an employee regularly working more than or less than 40 hours
per week.
(b) Only in daily amounts for family leave taken by an
employee. The minimum period of family leave for which benefits
may be paid is one week. The bureau may not pay a claim for
benefits for a period of family leave of less than one week.
(c) If an employee dies before receiving payment of benefits,
the payment shall be made by the bureau to the surviving spouse
or to the surviving child or children if there is no surviving
spouse. If there is no surviving spouse and no surviving child or
children, the payment shall be made and distributed consistent
with the terms of the decedent's will or, if the decedent dies
intestate, consistent with the provisions of ORS chapter 112.
(5) Family leave benefits are payable under this section only
to the extent that moneys are available in the Family Leave
Benefits Insurance Account for that purpose. Neither the state
nor the bureau is liable for any amount in excess of this
limitation.
(6) The bureau shall provide a tax form to each employee who
has received family leave benefits for the employee's use in
paying federal income tax on the benefits and shall advise an
employee filing a new claim for family leave benefits, at the
time of filing the claim, that:
(a) Benefits are subject to federal income tax; and
(b) Requirements exist pertaining to estimated tax
payments. + }
SECTION 8. { + (1) If an employee receives any family leave
benefits under section 7 of this 2009 Act to which the employee
is not entitled:
(a) The employee is liable to the Bureau of Labor and
Industries for the amount of benefits received; and
(b) The amount of benefits received may be deducted by the
bureau from any future benefits otherwise payable to the employee
under section 7 of this 2009 Act.
(2) If the bureau decides that an employee has been paid
benefits to which the employee is not entitled because of an
error, and that the employee is not subject to disqualification
under section 5 (4) of this 2009 Act, the amounts received in
error may be recovered by the bureau only by deductions from
benefits otherwise payable to the employee under section 7 of
this 2009 Act during the 52 weeks following the date on which the
order establishing the amount of the erroneous payment becomes
final. If amounts determined to be recoverable have not been paid
within that time, the liability shall be canceled by the bureau
and charged against the Family Leave Benefits Insurance Account.
(3) Except as provided in subsection (4) of this section, if
benefits determined to be recoverable under this section have not
been paid within three years after the date that the order of the
bureau establishing the liability of the employee becomes final,
and no payments have been received on the liability for at least
three months, the liability shall be canceled by the bureau and
charged against the Family Leave Benefits Insurance Account.
(4) Any amount due under this section may be collected by the
bureau in a civil action against the employee brought in the name
of the bureau.
(5) Interest on any benefits recoverable under this section
shall be paid and collected at the same time repayment of
benefits is made by the employee. Interest on an amount
recoverable under this section accrues at the rate specified in
ORS 82.010, beginning on the first day of the month following 60
days after entry of the order establishing the amount
recoverable.
(6) Any amount collected under this section by the bureau shall
be paid into the Family Leave Benefits Insurance Account. + }
SECTION 9. { + (1) It is an unlawful employment practice for
an employer, temporary employment agency, employment agency,
employee organization or other person to discharge, expel or
otherwise discriminate against a person because the person has
filed or communicated to the employer an intent to file a claim,
a complaint or an appeal or has testified or is about to testify
or has assisted in any proceeding under sections 1 to 12 of this
2009 Act.
(2) The Bureau of Labor and Industries may assess a civil
penalty not to exceed $5,000 against an employer that:
(a) Fails to withhold premiums or fails to pay when due the
moneys withheld as provided in section 6 of this 2009 Act; or
(b) Fails to comply with the provisions of sections 1 to 12 of
this 2009 Act or rules adopted under sections 1 to 12 of this
2009 Act relating to reports or other requirements necessary to
carry out the purposes of sections 1 to 12 of this 2009 Act.
(3) All civil penalties collected under this section shall be
applied first toward reimbursement of the costs incurred in
investigating violations, conducting hearings and assessing and
collecting penalties. All remaining amounts shall be paid into
the Family Leave Benefits Insurance Account. + }
SECTION 10. { + (1) If an employer defaults with respect to
any premium payment required to be made by the employer to the
Family Leave Benefits Insurance Account under section 6 of this
2009 Act, a person described in subsection (2) of this section
who, as an officer, member, partner or employee, is under a duty
to perform the actions required by employers under sections 1 to
12 of this 2009 Act shall be personally liable for amounts due
under section 6 of this 2009 Act. More than one person may be
jointly and severally liable under this section.
(2) This section applies only to a person who is one or more of
the following:
(a) An officer or employee of a corporation;
(b) A member or an employee of a limited liability corporation;
or
(c) A partner in or an employee of a limited liability
partnership.
(3) If the Commissioner of the Bureau of Labor and Industries
determines that an amount is due under this section, the
commissioner shall issue a notice of assessment to the person
liable under this section mailed to the person's last-known
address of record with the commissioner. + }
SECTION 11. { + The Family Leave Benefits Insurance Account is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned by the account shall be credited to
the account. All moneys from premiums received under section 6 of
this 2009 Act shall be credited to the account. Moneys in the
account are continuously appropriated to the Bureau of Labor and
Industries for the purposes authorized by sections 1 to 12 of
this 2009 Act. + }
SECTION 12. { + (1) An employer that is not subject to section
6 of this 2009 Act or a self-employed person may elect to provide
benefits to the employer's employees or the self-employed person
under section 5 of this 2009 Act for an initial coverage period
of not less than three years and subsequent coverage periods of
not less than one year. The employer or self-employed person must
file a written notice of election with the Bureau of Labor and
Industries. The election becomes effective on the date the notice
is filed.
(2) An employer or self-employed person that makes an election
under this section may withdraw the election not more than 30
days after the end of the initial three-year coverage period, or
at such other times as the bureau may prescribe by rule, and the
withdrawal takes effect no sooner than 30 days after the filing
of the notice.
(3) The bureau may cancel an election made under this section
if the employer or self-employed person fails to remit required
premiums or reports. The bureau may collect unpaid premiums and
may levy an additional premium for the remainder of the coverage
period. A cancellation under this subsection becomes effective 30
days after the issuance of a written notice of cancellation to
the employer or self-employed person or such earlier time as
specified in the notice of cancellation. + }
SECTION 13. { + Section 12 of this 2009 Act becomes operative
on July 1, 2013. + }
SECTION 14. { + Sections 1 to 12 of this 2009 Act are added to
and made a part of ORS chapter 659A. + }
SECTION 15. { + (1) Employers shall first withhold quarterly
premiums from employees' earnings for quarters worked beginning
on or after January 1, 2011.
(2) Employees may first file claims for benefits under section
7 of this 2009 Act on or after January 1, 2012, for family leave
taken on or after January 1, 2012. + }
SECTION 16. ORS 316.168 is amended to read:
316.168. (1) Except as otherwise provided by law, every
employer subject to the provisions of ORS 316.162 to 316.221
{ - , - } { + or + } 656.506 { + or sections 1 to 12 of this
2009 Act + } { - and - } { + or + } ORS chapter 657, or a
payroll-based tax imposed by a mass transit district and
administered by the Department of Revenue under ORS 305.620,
shall make and file a combined quarterly tax and assessment
report upon a form prescribed by the department.
(2) The report shall be filed with the Department of Revenue on
or before the last day of the month following the quarter to
which the report relates and shall be deemed received on the date
of mailing, as provided in ORS 305.820.
(a) The report shall be accompanied by payment of any tax or
assessment due and a combined tax and assessment payment coupon
prescribed by the department. The employer shall indicate on the
coupon the amount of the total payment and the portions of the
payment to be paid to each of the tax or assessment programs.
(b) The Department of Revenue shall credit the payment to the
tax or assessment programs in the amounts indicated by the
employer on the coupon and shall promptly remit the payments to
the appropriate taxing or assessing body.
(c) If the employer fails to allocate the payment on the
coupon, the department shall allocate the payment to the proper
tax or assessment programs on the basis of the percentage the
payment bears to the total amount due.
(d) The Department of Revenue shall distribute copies of the
combined quarterly tax and assessment report and the necessary
tax or assessment payment information to each of the agencies
charged with the administration of a tax or assessment covered by
the report.
(e) The Department of Revenue, the Employment Department and
the Department of Consumer and Business Services shall develop a
system of account numbers and assign to each employer a single
account number representing all of the tax and assessment
programs included in the combined quarterly tax and assessment
report.
SECTION 17. ORS 316.171 is amended to read:
316.171. Except as provided in { - this section and - } ORS
314.840, 316.168, 316.197, 316.202 and 657.571 { + and sections
1 to 12 of this 2009 Act + }, the statutes and regulations
applicable to each agency, requiring a report and imposing a tax,
shall govern the audit and examination of reports and returns,
determination of deficiencies, assessments, claims for refund,
penalties, interest, administrative and judicial appeals and the
procedures relating thereto.
SECTION 18. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
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