Chapter 628 Oregon Laws 1999
Session Law
AN ACT
SB 980
Relating to farm labor
contractor licenses; creating new provisions; and amending ORS 658.405,
658.407, 658.410, 658.415 and 658.455.
Be It Enacted by the People of the State of Oregon:
SECTION 1.
ORS 658.405 is amended to read:
658.405. As used in ORS 658.405 to 658.503 and 658.830 and
658.991 (2) and (3), unless the context requires otherwise:
(1) "Agricultural
association" means a nonprofit or cooperative association of farmers,
growers or ranchers that is incorporated under applicable state law and that
acts as a farm labor contractor solely on behalf of members of the association.
(2) "Commissioner"
means the Commissioner of the Bureau of Labor and Industries.
(3) "Crew leader"
means the member of a group of workers who (a) acts as spokesman for the group,
(b) travels with the group from another state into Oregon and (c) performs the
same work along with other group members. A crew leader may transport workers
from their local place of residence to their place of employment so long as the
crew leader does not perform this service for a profit.
[(1)] (4) "Farm labor contractor"
means any person who, for an agreed remuneration or rate of pay, recruits,
solicits, supplies or employs workers to perform labor for another to work in
forestation or reforestation of lands, including but not limited to the
planting, transplanting, tubing, precommercial thinning and thinning of trees
and seedlings, the clearing, piling and disposal of brush and slash and other
related activities or the production or harvesting of farm products; or who
recruits, solicits, supplies or employs workers to gather evergreen boughs, yew
bark, bear grass, salal or ferns from public lands for sale or market prior to
processing or manufacture; or who recruits, solicits, supplies or employs
workers on behalf of an employer engaged in these activities; or who, in
connection with the recruitment or employment of workers to work in these
activities, furnishes board or lodging for such workers; or who bids or submits
prices on contract offers for those activities; or who enters into a
subcontract with another for any of those activities. However, "farm labor
contractor" does not include:
(a) Farmers, including owners or lessees of land intended to be
used for the production of timber, their permanent employees, advertising
media, platoon leaders or individuals engaged in the solicitation or
recruitment of persons for dayhaul work in connection with the growing,
production or harvesting of farm products;
(b) The Employment Department;
(c) A crew leader;
(d) An individual who performs work, other than recruiting,
supplying, soliciting or employing workers to perform labor for another, alone
or only with the assistance of the individual's spouse, son, daughter, brother,
sister, mother or father;
(e) Individuals who perform labor pursuant to an agreement for
exchanging their own labor or services with each other, provided the work is
performed on land owned or leased by the individuals;
(f) An educational institution [which] that is
recognized as such by the Department of Education; or
(g) A farmer who operates a farmworker camp, regulated under
ORS 658.750, who recruits, supplies, solicits or employs workers only for the
farmer's own operations, and has farmworkers living in the camp who are
employed by another on no more than an incidental basis, and the farmer
receives no remuneration by virtue of such incidental employment.
[(2) "Crew
leader" means the member of a group of workers who (a) acts as spokesman
for the group, (b) travels with the group from another state into Oregon and
(c) performs the same work along with other group members. A crew leader may
transport workers from their local place of residence to their place of employment
so long as the crew leader does not perform this service for a profit.]
[(3)
"Commissioner" means the Commissioner of the Bureau of Labor and
Industries.]
SECTION 2.
ORS 658.410 is amended to read:
658.410. (1) Except as provided by ORS 658.425 and subsection (3) of this section, no
person shall act as a farm labor contractor without a valid license in the
person's possession issued to the person by the Commissioner of the Bureau of
Labor and Industries. Except as provided
in subsection (3) of this section, no person shall act as a farm labor
contractor with regard to the forestation or reforestation of lands unless the
person possesses a valid farm labor contractor's license with the indorsement
required by ORS 658.417 (1). The Bureau of Labor and Industries shall make
rules for the issuance of duplicate licenses in the event of the loss or
destruction of original licenses.
(2) Farm labor contractor licenses may be issued by the
commissioner only as follows:
(a) To a natural person operating as a sole proprietor under
the person's own name or under an assumed business name registered with the
Office of Secretary of State.
(b) To two or more natural persons operating as a partnership or as a limited liability partnership
under their own names or under an assumed business name registered with the
Office of Secretary of State.
(c) Except as provided
in subsection (3) of this section, to the majority shareholder or majority
shareholders of a corporation or a
limited liability company that is licensed to operate as a farm labor
contractor.
(d) Except as provided
in subsection (3) of this section, to a corporation or a limited liability company whose majority shareholder or
majority shareholders are also licensed to operate as a farm labor contractor
and that is authorized to do business in Oregon by the Office of Secretary of
State.
(e) To a cooperative corporation authorized to do business in Oregon by the Office
of Secretary of State [to do business in
this state].
(f) To a private
nonprofit corporation authorized to do business in Oregon by the Office of
Secretary of State, provided:
(A) The purpose of the
corporation is to provide education or training;
(B) The corporation is
designated by the Internal Revenue Service as exempt under section 501(c)(3) of
the Internal Revenue Code; and
(C) The workers recruited,
solicited, supplied or employed by the corporation to engage in the forestation
or reforestation of lands or in the production or harvesting of farm products
are recruited, solicited, supplied or employed only for the purpose of
educating or training the workers.
(g) To an agricultural
association that is authorized to do business in Oregon by the Office of
Secretary of State.
(3) The majority shareholder
or majority shareholders of a corporation or limited liability company are not
required to be licensed under this section if the corporation or limited
liability company:
(a)(A) Publicly trades its
shares of stock on a stock exchange regulated by the United States Securities
and Exchange Commission; or
(B) Has 10 or more
shareholders and demonstrates to the satisfaction of the commissioner that the
corporation or limited liability company is adequately capitalized; and
(b) Is authorized to do
business in Oregon by the Office of Secretary of State.
SECTION 3. Sections 4 and 5 of this 1999 Act are added
to and made a part of ORS 658.405 to 658.503.
SECTION 4. (1) Notwithstanding the provisions of ORS
658.415 (3), (4), (8), (9) and (16), an agricultural association shall submit
with the application for a license to act as a farm labor contractor and shall
continually maintain thereafter, until excused, a corporate surety bond of a
company licensed to do such business in Oregon, a cash deposit or a deposit the
equivalent of cash, in a form approved by and payable to the Commissioner of
the Bureau of Labor and Industries, in the amount of $30,000.
(2) Any person who suffers
any loss of wages from the employer of the person or any other loss due to
activities of the agricultural association as a farm labor contractor shall
have a right of action against the surety upon the bond or against the deposit
with the commissioner. The right of action is assignable and may not be
included in any action against the agricultural association but shall be
exercised independently after first procuring adequate proof of liability as
provided by the commissioner by rule.
(3) The surety company or
the commissioner shall make prompt and periodic payments on the agricultural
association's liability up to the extent of the total sum of the bond or
deposit. Payments shall be made in the following manner:
(a) Payment based upon
priority of wage claims over other liabilities;
(b) Payment in full of all
sums due to each person who presents adequate proof of the claim; and
(c) If there are
insufficient funds to pay in full the person next entitled to payment in full,
payment in part to the person.
SECTION 5. A member of any agricultural association
that is required to be licensed under ORS 658.410 shall be jointly and
severally liable for any damages, attorney fees or costs awarded to any person
for actions taken by the association in its capacity as a farm labor contractor
if such actions were requested, authorized, approved or ratified by the member.
SECTION 6.
ORS 658.415 is amended to read:
658.415. (1) No person shall act as a farm labor contractor
unless the person has first been licensed by the Commissioner of the Bureau of
Labor and Industries pursuant to ORS 658.405 to 658.503 and 658.830. 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 and 658.830 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 and 658.830 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 of the existence of a policy of insurance in an amount adequate
under rules issued by the Bureau of Labor and Industries for vehicles to be
used to transport workers. For the purpose of this subsection the certificate
of an insurance agent licensed in Oregon is satisfactory evidence of adequate
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
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 pursuant to 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 [which] 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 Bureau
of Labor and Industries may provide by rule for lower aggregate bonding
requirements for the business entity and its owners and employees. If there is
an unsatisfied final judgment of a court or decision of an administrative
agency against a license applicant, the subject of which is any matter [which] that would be covered by the bond or deposit referred to in
subsection (3) of this section, the commissioner shall 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 section 4 of this 1999 Act shall be
executed to cover liability for the period for which the license is issued.
During the period for which it is executed, no bond can be canceled or
otherwise terminated.
(6) Each application must be accompanied by a fee of $20.
(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 section 4 of this 1999 Act shall:
(a) Be personally and jointly and severally liable to any
employee so far as such employee has not been paid wages in full for the work
done for that person.
(b) Be personally liable for all penalty wages [which] 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) Shall not be included in any suit or action against the
farm labor contractor but must be exercised independently after first procuring
a judgment, decree, 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) 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. Payments shall be made in the
following manner:
(a) 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.
(b) Payment in full of all sums due to each person who presents
adequate proof of the claim.
(c) If there are insufficient funds to pay in full the person
next entitled to payment in full such person will be paid in part.
(10) No person shall 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
section 4 of this 1999 Act unless the person has first exhausted the
procedures contained in subsections (8) and (12) of this section or in section 4 of this 1999 Act and
contends that the surety company or the commissioner still has funds [which] that are applicable to the person's judgment or acknowledgment.
(11) The commissioner shall 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 section 4 of this 1999 Act.
(15) Every farm labor contractor required by this section or section 4 of this 1999 Act 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 section 4 of this 1999 Act 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 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 until the applicant executes a
written statement [which] that shall be subscribed and sworn to
and [which] 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 section 4 of this 1999 Act 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 section 4 of this 1999 Act.
SECTION 7.
ORS 658.407 is amended to read:
658.407. The Commissioner of the Bureau of Labor and Industries
shall administer and enforce ORS 658.405 to 658.503 and 658.830, and in so doing
shall:
(1) Investigate and attempt to adjust equitably controversies
between farm labor contractors and their workers with respect to claims arising
under ORS 658.415 (3) or section 4 of
this 1999 Act.
(2) Take appropriate action to establish the liability or lack
thereof of the farm labor contractor for wages of the employees of the farm
labor contractor and if appropriate proof exists of liability for wages the
commissioner shall pay the same or such part thereof as the commissioner has
funds on deposit or cause the surety company to forthwith pay the entire
liability or such part thereof as the sums due under the bond will permit.
(3) Adopt appropriate rules to administer ORS 658.405 to
658.503 and 658.830.
SECTION 8.
ORS 658.455 is amended to read:
658.455. Except as provided in ORS 658.453 (3), all fees and
other money received by the Commissioner of the Bureau of Labor and Industries
under ORS 658.405 to 658.503 and 658.830 shall be credited to the Bureau of
Labor and Industries Account and are continuously appropriated to the account
and shall be used only for the administration of ORS 658.405 to 658.503 unless
the money received is under a bond or deposit as provided in ORS 658.415 (3) or section 4 of this 1999 Act.
SECTION 9. If Senate Bill 179 becomes law, section 8
of this 1999 Act (amending ORS 658.455) is repealed and ORS 658.455, as amended
by section 7, chapter 399, Oregon Laws 1999 (Enrolled Senate Bill 179), is
amended to read:
658.455. Except as provided in ORS 658.453 (3) and 658.815, and
except for money received under a bond or deposit as provided in ORS 658.415
(3) [and] or 658.735 (1) or section 4
of this 1999 Act, all fees and other money received by the Commissioner of
the Bureau of Labor and Industries under ORS 658.405 to 658.503 and 658.715 to
658.850 shall be credited and used as provided in section 2, chapter 399, Oregon Laws 1999 (Enrolled Senate Bill 179) [of this 1999 Act].
Approved by the Governor
July 12, 1999
Filed in the office of
Secretary of State July 12, 1999
Effective date October 23,
1999
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