Chapter 245 Oregon Laws 1999
Session Law
AN ACT
SB 177
Relating to unlawful
practices; creating new provisions; amending ORS 659.010, 659.070, 659.121,
659.410, 659.450 and 659.455; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 659.121 is amended to read:
659.121. (1) Any person claiming to be aggrieved by an unlawful
employment practice prohibited by ORS 25.363, 399.235, 659.030, 659.035,
659.227, 659.270, 659.295, 659.330, 659.340[,
659.410, 659.415, 659.420, 659.425 or 659.470] or 659.400 to 659.494 may file a civil suit in circuit court for
injunctive relief and the court may order such other equitable relief as may be
appropriate, including but not limited to reinstatement or the hiring of
employees with or without back pay. Back pay liability shall not accrue from a
date more than two years prior to the filing of a complaint with the
Commissioner of the Bureau of Labor and Industries, pursuant to ORS 659.040, or
if no such complaint has first been filed, then, more than two years prior to
the filing of the civil suit provided for in ORS 659.040, 659.045, 659.095 and
this section. In any suit brought under this subsection, the court may allow
the prevailing party costs and reasonable attorney fees at trial and on appeal.
(2) Any person claiming to be aggrieved by alleged violations
of ORS 659.033 (1) or (3), 659.295 [or
659.400, 659.405, 659.410 (1), 659.415 to 659.435 and], 659.400 to 659.449 or 659.550 may file a civil action in circuit
court to recover compensatory damages or $200, whichever is greater, and
punitive damages. In addition, the court may award relief authorized under
subsection (1) of this section and such equitable relief as it considers
appropriate. At the request of any party, the trial of such case shall be by
jury. In any action brought under this subsection, the court may allow the
prevailing party costs and reasonable attorney fees at trial and on appeal. Any
attorney fee agreement shall be subject to approval by the court.
(3) Where no complaint has been filed pursuant to ORS 659.040
(1) or 659.045 (1) and except as otherwise provided herein, the civil suit or
action shall be commenced within one year of the occurrence of the alleged
unlawful employment practice. Where a complaint has been filed pursuant to ORS
659.040 (1) or 659.045 (1) the civil suit or action provided for herein shall
be commenced only in accordance with the time limitations provided for in ORS
659.095. The filing of a complaint with the commissioner under ORS 659.040 (1)
or 659.045 (1) shall not be a condition precedent to the filing of civil suit
or action under this section.
(4) This section shall not be construed to limit or alter in
any way the authority or power of the commissioner or to limit or alter in any
way any of the rights of an individual complainant until and unless the
complainant commences civil suit or action. Except as provided in subsection
(5) of this section, the filing of a civil suit or action in either circuit
court pursuant to subsection (1) of this section or federal district court
under applicable federal law shall constitute both an election of remedies as
to the rights of that individual with respect to those matters alleged in the
complaint filed with the commissioner, and a waiver with respect to the right
to file a complaint with the commissioner pursuant to ORS 659.040 (1) or
659.045 (1).
(5)(a) Where a person claiming to be aggrieved by alleged
violations of ORS 659.033 or 659.430 or applicable federal law files a civil
suit or action in circuit court or in federal district court, that filing does
not constitute an election of remedies until such time as the trial commences.
(b) An aggrieved person may not commence a civil action under
this subsection with respect to an alleged discriminatory housing practice
which forms the basis of specific charges issued by the commissioner if a
hearings referee has commenced a hearing on the record under this chapter with
respect to such charge.
(6) Notwithstanding any other provision of ORS 659.010 to
659.121 and 659.470 to 659.545, a civil complaint alleging violations of ORS
659.033 or 659.430 may be filed not later than two years after the occurrence
or the termination of an alleged discriminatory housing practice, or the breach
of a conciliation agreement entered into under ORS 659.010 to 659.121 and
659.470 to 659.545, whichever occurs last. The two-year period shall not
include any time during which an administrative proceeding was pending with
respect to the housing practice or breach.
SECTION 2.
ORS 659.010 is amended to read:
659.010. As used in ORS 659.010 to 659.110 and 659.400 to
659.545, unless the context requires otherwise:
(1) "Bureau" means the Bureau of Labor and
Industries.
(2) "Cease and desist order" means an order signed by
the commissioner, taking into account the subject matter of the complaint and
the need to supervise compliance with the terms of any specific order issued to
eliminate the effects of any unlawful practice found, addressed to a respondent
requiring the respondent to:
(a) Perform an act or series of acts designated therein and
reasonably calculated to carry out the purposes of ORS 30.670 to 30.685,
659.010 to 659.110 and 659.400 to 659.545, eliminate the effects of an unlawful
practice found, and protect the rights of the complainant and other persons
similarly situated;
(b) Take such action and submit such designated reports to the
commissioner on the manner of compliance with other terms and conditions
specified in the commissioner's order as may be required to ensure compliance
therewith; or
(c) Refrain from any action designated in the order which would
jeopardize the rights of the complainant or other person similarly situated or
frustrate the purpose of ORS 30.670 to 30.685, 659.010 to 659.110 and 659.400
to 659.545.
(3) "Commissioner" means the Commissioner of the
Bureau of Labor and Industries.
(4) "Conciliation agreement" means a written
agreement settling and disposing of a complaint under ORS 659.010 to 659.110
and 659.400 to 659.545 signed by a respondent and an authorized official of the
Bureau of Labor and Industries.
(5) "Employee" does not include any individual
employed by the individual's parents, spouse or child or in the domestic
service of any person.
(6) "Employer" means any person who in this state,
directly or through an agent, engages or utilizes the personal service of one
or more employees, reserving the right to control the means by which such
service is or will be performed. "Employer" also includes any public
body that, directly or through an agent, engages or utilizes the personal
service of one or more employees, reserving the right to control the means by
which such service is or will be performed, including all officers, agencies,
departments, divisions, bureaus, boards and commissions of the legislative,
judicial and administrative branches of the state, all county and city
governing bodies, school districts, special districts, and municipal
corporations, and all other political subdivisions of the state.
(7) "Employment agency" includes any person
undertaking to procure employees or opportunities to work.
(8) "Entity" includes employers, labor organizations,
employment agencies, places of public accommodation as defined in ORS 30.675 or
career schools.
(9)(a) "Familial status" means the relationship
between one or more individuals who have not attained 18 years of age and who
are domiciled with:
(A) A parent or another person having legal custody of the
individual; or
(B) The designee of the parent or other person having such
custody, with the written permission of the parent or other person.
(b) "Familial status" includes any individual,
regardless of age or domicile, who is pregnant or is in the process of securing
legal custody of an individual who has not attained 18 years of age.
(10) "Labor organization" includes any organization
which is constituted for the purpose, in whole or in part, of collective
bargaining or in dealing with employers concerning grievances, terms or
conditions of employment or of other mutual aid or protection in connection
with employees.
(11) "National origin" includes ancestry.
(12) "Person" includes one or more individuals,
partnerships, associations, corporations, legal representatives, trustees,
trustees in bankruptcy or receivers.
(13) "Respondent" includes any person or entity
against whom a complaint or charge of unlawful practices is filed with the
commissioner or whose name has been added to such complaint or charge pursuant
to ORS 659.050 (1).
(14) "Unlawful employment practice" includes only
those unlawful employment practices specified in ORS 25.363, 399.235, 654.062
(5), 659.030, 659.035, 659.036, 659.227, 659.270, 659.295, 659.330, 659.340,
659.358 (1) to (4)[, 659.410, 659.415,
659.420, 659.425 and 659.470] and
659.400 to 659.494.
(15) "Unlawful practice" means any unlawful
employment practice or any distinction, discrimination or restriction on
account of race, religion, color, sex, marital status or national origin made
by any place of public accommodation as defined in ORS 30.675, by any person
acting on behalf of any such place or by any person aiding or abetting any such
place or person in violation of ORS 30.685, or any violation of ORS 345.240,
659.033, 659.037, 659.430 or rules adopted pursuant to ORS 659.103 (1), but
does not include a refusal to furnish goods or services when the refusal is
based on just cause.
SECTION 3.
ORS 659.070 is amended to read:
659.070. Any conciliation agreement or order issued by the
Commissioner of the Bureau of Labor and Industries under ORS 659.060 may be
enforced by mandamus or injunction or by a suit in equity to compel specific
performance of such order. Any such agreement or order [which] that awards money
damages, unless paid, shall constitute a judgment and may be [filed in accordance with the provisions of
ORS 18.320 to 18.370. Execution may be issued upon the order in the same manner
as execution upon a judgment in a court of record] recorded in the County Clerk Lien Record pursuant to ORS 205.125 and
may be enforced as provided in ORS 205.126.
SECTION 4.
ORS 659.410 is amended to read:
659.410. [(1)] It is
an unlawful employment practice for an employer to discriminate against a
worker with respect to hire or tenure or any term or condition of employment
because the worker has applied for benefits or invoked or utilized the
procedures provided for in ORS chapter 656 or of ORS 659.400 to 659.460 or has
given testimony under the provisions of such sections.
[(2) It is an unlawful
employment practice for the State of Oregon as an employer to discriminate
against a worker as defined in ORS 659.450, by terminating the worker's group
health benefits while that worker is absent from the place of employment as a result
of an injury or illness for which a workers' compensation claim has been filed
against the same public employer pursuant to ORS chapter 656, except as
provided for in ORS 659.455.]
SECTION 5.
ORS 659.455 is amended to read:
659.455. (1) The State of Oregon shall cause group health
benefits to continue in effect with respect to that worker and any covered
dependents or family members by timely payment of the premium that includes the
contribution due from the employer under the applicable benefit plan, subject
to any premium contribution due from the worker that the worker paid before the
occurrence of the injury or illness. If the premium increases or decreases, the
employer and worker contributions shall be adjusted to remain consistent with
similarly situated active employees. The employer shall continue the worker's
health benefits in effect until whichever of the following events occurs first:
(a) The worker's attending physician has determined the worker
to be medically stationary and a determination order or notice of closure has
been entered;
(b) The worker returns to work for the employer, after a period
of continued coverage under this section, and satisfies any probationary or
minimum work requirement to be eligible for group health benefits;
(c) The worker takes full or part-time employment with another
employer that is comparable in terms of the number of hours per week the worker
was employed with the employer who is continuing coverage under ORS 659.450 to
659.460 or the worker retires;
(d) Twelve months have elapsed since the date the employer received
notice that the worker filed a workers' compensation claim pursuant to ORS
chapter 656;
(e) The claim is denied and the claimant fails to appeal within
the time provided by ORS 656.319 or the Workers' Compensation Board or a
workers' compensation hearings referee or a court issues an order finding the
claim is not compensable;
(f) The worker does not pay the required premium or portion
thereof in a timely manner in accordance with the terms and conditions under
this section;
(g) The worker elects to discontinue coverage under this
section and notifies the employer in writing of this election;
(h) The worker's attending physician has released the worker to
modified or regular work, the work has been offered to the worker and the
worker refuses to return to work; or
(i) The worker has been terminated from employment for reasons
unrelated to the workers' compensation claim.
(2) If the workers' compensation claim of a worker for whom
health benefits are provided pursuant to subsection (1) of this section is
denied and the worker does not appeal or the worker appeals and does not
prevail, the employer may recover from the worker the amount of the premiums
plus interest at the rate authorized by ORS 82.010. The employer may recover
the payments through a payroll deduction not to exceed 10 percent of gross pay
for each pay period.
(3) The employer shall notify the worker of the provisions of
ORS 659.121, 659.410 and 659.450 to 659.460 within a reasonable time after the
employer receives notice that the worker will be absent from work as a result
of an injury or illness for which a workers' compensation claim has been filed
pursuant to ORS chapter 656. The employer's notice shall include the terms and
conditions of the continuation of health benefits and what events will
terminate the coverage.
(4) If the worker fails to make timely payment of any premium
contribution owing, the employer shall notify the worker of impending
cancellation of the health benefits and provide the worker with 30 days to pay
the required premium prior to canceling the policy.
(5) It is an unlawful
employment practice for the State of Oregon as an employer to discriminate
against a worker, as defined in ORS 659.450, by terminating the worker's group
health benefits while that worker is absent from the place of employment as a result
of an injury or illness for which a workers' compensation claim has been filed
against the same public employer pursuant to ORS chapter 656, except as
provided for in this section.
SECTION 6.
ORS 659.450 is amended to read:
659.450. As used in ORS [659.410
(2) and] 659.450 to 659.460, unless the context requires otherwise:
(1) "Group health benefits" means that form of health
benefits provided by the State of Oregon to cover groups of employees, with or
without one or more members of their families or one or more dependents. The
group health benefits which are continued under ORS 659.450 to 659.460 shall be
the same as the worker and the worker's dependents had immediately prior to the
injury or illness, and includes, but is not limited to, medical care, dental
care, vision care or prescription drug coverage, or any combination thereof,
that the worker had elected prior to the injury or illness. If the plan elected
prior to the injury or illness is no longer available, the worker shall have
the same plan selection rights as do active employees.
(2) "Employer" means the State of Oregon.
(3) "Worker" means any state employee who has filed a
workers' compensation claim pursuant to ORS chapter 656.
SECTION 7. (1) The amendments to ORS 659.010 and
659.121 by sections 1 and 2 of this 1999 Act apply to all conduct that occurs
on or after October 4, 1997, and that constitutes an unlawful employment
practice under ORS 659.436 to 659.449. The amendments to ORS 659.010 and
659.121 by sections 1 and 2 of this 1999 Act do not act to revive any claim or
cause of action that is barred by reason of the operation of ORS 659.121 (3) or
659.095.
(2) The provisions of ORS
659.436 to 659.449 apply only to conduct occurring on or after October 4, 1997.
Any conduct that occurred before October 4, 1997, and that constituted an
unlawful employment practice under ORS 659.425 (1) (1995 Edition), shall
continue to be governed by the law in effect immediately before October 4, 1997.
(3) The amendments to ORS
659.010 and 659.121 by sections 1 and 2 of this 1999 Act do not act to revive
any civil action in which a judgment was entered before the effective date of
this 1999 Act.
SECTION 8. This 1999 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 1999 Act takes effect on its passage.
Approved by the Governor
June 10, 1999
Filed in the office of
Secretary of State June 10, 1999
Effective date June 10, 1999
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