Chapter 1067 Oregon Laws 1999

Session Law

AN ACT

HB 2813

Relating to unemployment benefits; creating new provisions; amending ORS 657.176, 657.270 and 657.275; and repealing section 123, chapter 849, Oregon Laws 1999 (Enrolled House Bill 2525).

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 657.176 is amended to read:

657.176. (1) An authorized representative designated by the Director of the Employment Department shall promptly examine each claim to determine whether an individual is subject to disqualification as a result of a separation, termination, leaving, resignation, or disciplinary suspension from work or as a result of failure to apply for or accept work and shall promptly enter a director's decision if required by ORS 657.267. The authorized representative may address issues raised by information before the authorized representative, including but not limited to the nature of the separation, notwithstanding the way the parties characterize those issues.

(2) An individual shall be disqualified from the receipt of benefits until the individual has performed service in employment subject to this chapter, or for an employing unit in this or any other state or Canada or as an employee of the Federal Government, for which remuneration is received [which] that equals or exceeds four times the individual's weekly benefit amount subsequent to the week in which the act causing the disqualification occurred, if the authorized representative designated by the director finds that the individual:

(a) Has been discharged for misconduct connected with work;

(b) Has been suspended from work for misconduct connected with work;

(d) Failed without good cause to apply for available suitable work when referred by the employment office or the director;

(e) Failed without good cause to accept suitable work when offered;

(f) Has been discharged or suspended for being absent or tardy in reporting to work and the absence or tardiness occurred as a result of the unlawful use of any controlled substance unless the person was participating in a recognized drug rehabilitation program at the time of the absence or tardiness, or is so participating within 10 days of the date of the discharge or suspension, and the person provides to the Employment Department documentation of program participation. As used in this paragraph, "unlawful use" does not include the use of a controlled substance taken under the supervision of a licensed health care professional and in accordance with the prescribed directions for consumption, or other uses authorized by the laws of this state; or

(g) Has been discharged or suspended for being absent or tardy in reporting to work and the absence or tardiness occurred as the result of the use of alcohol on a second or any subsequent occasion within a period of 12 months unless the person was participating in a recognized alcohol rehabilitation program at the time of the absence or tardiness, or is so participating within 10 days of the date of the discharge or suspension, and the person provides to the department documentation of program participation.

(3) If the authorized representative designated by the director finds an individual was discharged for misconduct because of the individual's commission of a felony or theft in connection with the individual's work, all benefit rights based on wages earned prior to the date of the discharge shall be canceled if the individual's employer notifies the director of the discharge within 10 days following issuance of the notice provided for in ORS 657.265 or 657.266, and:

(a) The individual has admitted commission of the felony or theft to an authorized representative of the director;

(b) The individual has signed a written admission of such act and such written admission has been presented to an authorized representative of the director; or

(4) An individual disqualified under subsection (2) of this section shall have the individual's maximum benefit amount reduced by eight times the individual's weekly benefit amount. However, in no event shall the individual's maximum benefit amount be reduced to less than the individual's weekly benefit amount unless the individual has previously received benefits during the individual's benefit year.

(5) An individual shall not be disqualified from receiving benefits under subsection (2)(c) or (e) of this section or under ORS 657.200 if the individual ceases work or fails to accept work when a collective bargaining agreement between the individual's bargaining unit and the individual's employer is in effect and the employer unilaterally modifies the amount of wages payable under the agreement, in breach of the agreement.

(6) For purposes of applying subsection (2) of this section, when an individual has notified an employer that the individual will leave work on a specific date and it is determined:

(a) That such separation would be for reasons [which] that constitute good cause;

(b) The individual voluntarily left work without good cause prior to the date of the impending good cause voluntary leaving date; and

(c) The actual voluntary leaving of work occurs no more than 15 days prior to the planned date of voluntary leaving,then such separation from work shall be adjudicated as if the actual voluntary leaving had not occurred and the planned voluntary leaving had occurred. However, the individual shall be ineligible for benefits for the period including the week in which the actual voluntary leaving occurred through the week prior to the week of the planned good cause voluntary leaving date.

(7) For purposes of applying subsection (2) of this section, when an employer has notified an individual that the individual will be discharged on a specific date and it is determined:

(a) That such discharge would not be for reasons [which] that constitute misconduct connected with the work;

(b) The individual voluntarily left work without good cause prior to the date of the impending discharge; and

(c) The voluntary leaving of work occurs no more than 15 days prior to the date of the impending discharge,then such separation from work shall be adjudicated as if the voluntary leaving had not occurred and the discharge had occurred. However, the individual shall be ineligible for benefits for the period including the week in which the voluntary leaving occurred through the week prior to the week in which the individual would have been discharged.

(8) For purposes of applying subsection (2) of this section, when an individual has notified an employer that the individual will leave work on a specific date and it is determined:

(a) That such voluntary leaving would be for reasons [which] that do not constitute good cause;

(b) The employer discharged the individual, but not for misconduct connected with work, prior to the date of the planned voluntary leaving; and

(c) The actual discharge occurs no more than 15 days prior to the planned voluntary leaving,then such separation from work shall be adjudicated as if the discharge had not occurred and the planned voluntary leaving had occurred. However, the individual shall be eligible for benefits for the period including the week in which the actual discharge occurred through the week prior to the week of the planned voluntary leaving date.

(9)(a) For the purposes of subsection (2) of this section, an individual is considered to have committed a disqualifying act when the individual fails to comply with the terms and conditions of a reasonable policy established by the employer, which may include blanket, random, periodic and probable cause testing, that governs the use, sale, possession or effects of controlled substances or alcohol in the workplace.

(b) The department shall adopt rules to carry out the provisions of this subsection.

(10) As used in subsections (2)(f) and (9) of this section, "controlled substance" has the meaning for that term provided in ORS 475.005.

(11) An individual may not be disqualified from receiving benefits under subsection (2)(c) of this section and shall be deemed laid off if the individual:

(a) Works under a collective bargaining agreement;

(b) Elects to be laid off when the employer has decided to lay off employees; and

(c) Is placed on the referral list under the collective bargaining agreement.

SECTION 2. ORS 657.270 is amended to read:

657.270. (1) When a request for hearing upon the claim has been filed, as provided in ORS 657.266 to 657.269, the Director of the Employment Department shall designate a referee to conduct such hearing. The director shall also notify the parties, in plain language, of their right, upon their request, to receive by mail copies of all documents and records in the possession of the Employment Department relevant to the decision of the authorized representative, including any statements of the claimant, employer or employer's agents.

(2) When the hearing is conducted by telephone, the director shall mail all parties copies of all documents and records in the possession of the director [which] that will be introduced at the hearing as exhibits, including any statements of the claimant, employer or employer's agents, and all jurisdictional documents, at least seven days prior to the hearing. A party may request that the hearing be continued in order to receive copies of and respond to documentary evidence introduced at the hearing and not mailed to the party prior to the hearing.

(3) After the referee has [afforded] given all parties reasonable opportunity for a fair hearing, the referee shall promptly affirm, modify or set aside the decision of the authorized representative with respect to the claim and promptly shall notify all parties entitled to notice of the decision of the authorized representative, as set forth in ORS 657.266 to 657.269, of the referee's decision and reasons therefor. The referee may address issues raised by evidence in the record, including but not limited to the nature of the separation, notwithstanding the scope of the issues raised by the parties or the arguments in a party's request for hearing.

(4) Unless the director or any other party to the hearing, within 20 days after the delivery of such notification, or if mailed, within 20 days after the same was mailed to the party's last-known address, files with the Employment Appeals Board an application for review, such decision shall be final.

(5) [Where] When the claimant or the employer is unrepresented at the hearing, the referee shall explain the issues involved in the hearing and the matters [which] that the unrepresented claimant or the employer must either prove or disprove. The referee shall insure that the record developed at the hearing shows a full and fair inquiry into the facts necessary for consideration of all issues properly before the referee in the case. As used in this section, a claimant or employer is "unrepresented" if not represented by an attorney, paralegal worker, legal assistant, union representative or person otherwise qualified by experience or training.

SECTION 3. If House Bill 2525 becomes law, section 2 of this 1999 Act (amending ORS 657.270) is repealed and ORS 657.270, as amended by section 122, chapter 849, Oregon Laws 1999 (Enrolled House Bill 2525), is amended to read:

657.270. (1) When a request for hearing upon the claim has been filed, as provided in ORS 657.266 to 657.269, a hearing officer from the Hearing Officer Panel established under section 3, chapter 849, Oregon Laws 1999 (Enrolled House Bill 2525), [of this 1999 Act] shall be assigned to conduct such hearing. The Director of the Employment Department shall also notify the parties, in plain language, of their right, upon their request, to receive by mail copies of all documents and records in the possession of the Employment Department relevant to the decision of the authorized representative, including any statements of the claimant, employer or employer's agents.

(3) After the hearing officer has [afforded] given all parties reasonable opportunity for a fair hearing, the hearing officer shall promptly affirm, modify or set aside the decision of the authorized representative with respect to the claim and promptly shall notify all parties entitled to notice of the decision of the authorized representative, as set forth in ORS 657.266 to 657.269, of the hearing officer's decision and reasons therefor. The hearing officer may address issues raised by evidence in the record, including but not limited to the nature of the separation, notwithstanding the scope of the issues raised by the parties or the arguments in a party's request for hearing.

(5) [Where] When the claimant or the employer is unrepresented at the hearing, the hearing officer shall explain the issues involved in the hearing and the matters [which] that the unrepresented claimant or the employer must either prove or disprove. The hearing officer shall ensure that the record developed at the hearing shows a full and fair inquiry into the facts necessary for consideration of all issues properly before the hearing officer in the case. As used in this section, a claimant or employer is "unrepresented" if not represented by an attorney, paralegal worker, legal assistant, union representative or person otherwise qualified by experience or training.

SECTION 4. The repeal of section 2 of this 1999 Act (amending ORS 657.270) by section 3 of this 1999 Act and the amendments to ORS 657.270 by section 122, chapter 849, Oregon Laws 1999 (Enrolled House Bill 2525), and section 3 of this 1999 Act become operative on January 1, 2000.

SECTION 5. If House Bill 2525 becomes law, section 123, chapter 849, Oregon Laws 1999 (Enrolled House Bill 2525) (amending ORS 657.270), is repealed and ORS 657.270, as amended by section 122, chapter 849, Oregon Laws 1999 (Enrolled House Bill 2525), and section 3 of this 1999 Act, is amended to read:

657.270. (1) When a request for hearing upon the claim has been filed, as provided in ORS 657.266 to 657.269, a hearing officer [from the Hearing Officer Panel established under section 3, chapter 849, Oregon Laws 1999 (Enrolled House Bill 2525),] designated by the Director of the Employment Department shall be assigned to conduct such hearing. The director [of the Employment Department] shall also notify the parties, in plain language, of their right, upon their request, to receive by mail copies of all documents and records in the possession of the Employment Department relevant to the decision of the authorized representative, including any statements of the claimant, employer or employer's agents.

(2) When the hearing is conducted by telephone, the director shall mail all parties copies of all documents and records in the possession of the director that will be introduced at the hearing as exhibits, including any statements of the claimant, employer or employer's agents, and all jurisdictional documents, at least seven days prior to the hearing. A party may request that the hearing be continued in order to receive copies of and respond to documentary evidence introduced at the hearing and not mailed to the party prior to the hearing.

(3) After the hearing officer has given all parties reasonable opportunity for a fair hearing, the hearing officer shall promptly affirm, modify or set aside the decision of the authorized representative with respect to the claim and promptly shall notify all parties entitled to notice of the decision of the authorized representative, as set forth in ORS 657.266 to 657.269, of the hearing officer's decision and reasons therefor. The hearing officer may address issues raised by evidence in the record, including but not limited to the nature of the separation, notwithstanding the scope of the issues raised by the parties or the arguments in a party's request for hearing.

(5) When the claimant or the employer is unrepresented at the hearing, the hearing officer shall explain the issues involved in the hearing and the matters that the unrepresented claimant or the employer must either prove or disprove. The hearing officer shall ensure that the record developed at the hearing shows a full and fair inquiry into the facts necessary for consideration of all issues properly before the hearing officer in the case. As used in this section, a claimant or employer is "unrepresented" if not represented by an attorney, paralegal worker, legal assistant, union representative or person otherwise qualified by experience or training.

SECTION 6. The amendments to ORS 657.270 by section 5 of this 1999 Act become operative on January 1, 2004.

SECTION 7. ORS 657.275 is amended to read:

657.275. (1) [Whenever] If the Director of the Employment Department or any interested party files with the Employment Appeals Board a timely application for review, the [Employment Appeals] board shall promptly affirm, modify or set aside the decision of the referee. The board shall promptly notify the claimant and any other interested party [shall be promptly notified] of its decision. If the [Employment Appeals] board finds that additional evidence is required to reach a decision, it may remand the matter to the referee to conduct a hearing to obtain additional evidence in the matter. The [Employment Appeals] board shall promptly notify the claimant and any other interested party of such action. The referee may either make a new decision based on the additional and original evidence or forward the additional evidence to the [Employment Appeals] board for a decision. If the referee issues a new decision, it shall be subject to review in accordance with the provisions of ORS 657.270 (4).

(2) The [Employment Appeals] board shall perform de novo review on the record. The board may address issues raised by evidence in the record, including but not limited to the nature of a separation, notwithstanding the scope of the issues raised by the parties, the arguments set forth in a party's application for review or the parties' written or oral arguments. The [Employment Appeals] board may enter its own findings and conclusions or may adopt the findings and conclusions of the referee, or any part thereof. [Where] When there is evidence in the record both to make more probable and less probable the existence of any basic fact or inference, the [Employment Appeals] board need not explain its decision to believe or rely on such evidence unless the referee has made an explicit credibility determination regarding the source of such facts or evidence. The [Employment Appeals] board is not required to give any weight to implied credibility findings. The decision of the [Employment Appeals] board shall become the final order unless a petition for judicial review is filed in accordance with ORS 657.282.

SECTION 8. The amendments to ORS 657.176, 657.270 and 657.275 by sections 1, 2, 3, 5 and 7 of this 1999 Act apply to claims filed on or after the effective date of this 1999 Act.

Approved by the Governor September 1, 1999

Filed in the office of the Secretary of State September 2, 1999

Effective date October 23, 1999

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