SENATE COMMITTEE ON COMMERCE

 

CORRECTED 5/9/05

January 25, 2005                                                                                                     Hearing Room C

3:30 p.m.                                                                                                                           Tapes 3 - 4

 

MEMBERS PRESENT:         Sen. Floyd Prozanski, Chair

Sen. Roger Beyer, Vice-Chair

Sen. Ginny Burdick

Sen. Charlie Ringo

Sen. Doug Whitsett

 

STAFF PRESENT:                 Anna Braun, Committee Administrator

Karen Scoffield, Committee Assistant

 

MEASURES/ISSUES HEARD & WITNESSES:      

                                                SB 136 – Public Hearing and Work Session

                                                SB 137 – Public Hearing and Work Session

                                                SB 138 – Public Hearing and Work Session

SB 145 – Public Hearing

                                                                 

These minutes are in compliance with Senate and House Rules.  Only text enclosed in quotation marks reports a speaker’s exact words.  For complete contents, please refer to the tapes.

 

TAPE/#

Speaker

Comments

TAPE 3, A

005

Chair Prozanski

Calls the meeting to order at 3:30 p.m. Opens public hearing on SB 136, SB 137, SB 138 and SB 145.

SB 136, SB 137, SB 138, SB 145 – PUBLIC HEARING

010

Dan Gardner

Commissioner, Bureau of Labor and Industries (BOLI). Introduces himself and other witnesses. Submits and presents written testimony in support of SB 136 (EXHIBIT A).

030

Christine Hammond

Administrator, Wage and Hour Division, BOLI. Discusses details of SB 136.

040

Gardner

Submits and presents written testimony in support of SB 137  (EXHIBIT B).

060

Gardner

Submits and presents written testimony in support of SB 138 (EXHIBIT C). Mentions BOLI’s technical assistance unit designed to assist employers.

100

Annette Talbott

Deputy Commissioner, Bureau of Labor and Industries (BOLI). Discusses SB 138. Discusses the 45 day time frame for an employer to produce records.

115

Gardner

Submits and presents written testimony in support of  SB 145 (EXHIBIT D).

120

Talbott

Testifies in support of SB 145.  Remarks that SB 145 will codify current practice and assist employers.

140

Chair Prozanski

Asks Gardner for clarification regarding SB 136 that flaggers are covered by either the little (state) or big (federal) Davis Bacon act depending on funding.

150

Gardner

Responds.

160

Chair Prozanski

Asks committee members for questions regarding SB 137. Asks Gardner for clarification that youths will get a meal break between the third and fifth hour of work like adults.

165

Gardner

Answers question regarding eligibility.

167

Chair Prozanski

Responds.

170

Sen. Beyer

Addresses subsection 4, lines 22-25.  Asks how this situation would work regarding employee records and the agreement of the extension between the employer and employee.

185

Gardner

Addresses question. Remarks that 45 days should be a sufficient amount of time for employer to produce records. States that it would take exceptional circumstances to need to extend this timeline.

205

Sen. Beyer

Inquires as to what type of scenario would have to happen for subsection 4 to apply. Comments that an employee could prolong the appointments and therefore try to receive civil penalties against the employer.

215

Gardner

Remarks that the civil penalty is discretionary upon the part of the Bureau and comments that they would not enforce a civil penalty in that situation.

225

Sen. Beyer

States that he is concerned that the statute does not reflect that the Bureau would not enforce a civil penalty if an employee manipulates the ability to view their records.

235

Talbott

Remarks that employees ask to see their employee records because they actually do want to see their record. This is why the bill has been drafted, to help employees receive their file.

265

Sen. Beyer

Inquires what other penalties section 2 is referring to other than civil.

270

Talbott

Answers that there are no other existing penalties regarding section 1 of the bill, which relates to personnel records. That is why the bill was drafted.

280

Gardner

Adds that the only current remedy for an employee is to hire an attorney and go to court to receive their records.

285

Sen. Beyer

Clarifies why he asked the question.

290

Sen. Whitsett

Asks how many cases of non-compliance complied with the demand from the Bureau voluntarily.

292

Gardner

Answers question. States that they sent out 117 letters, but do not track how many employers produce records after the letter is sent.

300

Sen. Whitsett

Remarks that he questions how much the legislation is needed because they do not know how many employers did not comply.

305

Gardner

Responds that many employees come to them to complain and they feel that the legislation is necessary.

315

Sen. Whitsett

Asks to see the numbers to know how much the law is needed.

320

Gardner

Remarks that due to staffing reductions, this has not become a priority.

325

Sen. Ringo

Comments that there may be possible wrong doings out there not being brought to BOLI’s attention.

335

Gardner

Agrees that this is a concern and needs to be addressed. Remarks that the goal of SB 138 bill is to save employees from having to go to court.

350

Sen. Ringo

Draws attention to section 1, subsection 2 of SB 138. Remarks that an employer would not be in violation if they provide reasonable opportunity.

365

Gardner

Agrees that if an employer has provided a number of opportunities to view the file and the employee has broken the appointments, the employer has provided the reasonable opportunity.

375

Sen. Ringo

States that section 1, subsection 4 is written to give flexibility to employers.

380

Gardner

Agrees.

385

Sen. Ringo

Gives an example of how an employer may help an employee.

390

Gardner

Points out that there is another section in the bill to address this.

400

Sen. Burdick

Discusses section 1, subsection 4. Inquires as to how an employee’s record would not be available within 45 days.

410

Talbott

Comments that they tried to consider all circumstances and that there is a possibility that it may take up to 45 days. States that they wanted to provide the employer flexibility.

435

Sen. Burdick

Comments that she wonders what the employee’s motivation would be to give an extension to the employer.

445

Talbott

Comments that the Bureau was trying to provide flexibility.

450

Chair Prozanski

Remarks that under section 1, line 7, the definition of personnel records says it does not include records relating to criminal law. Asks for clarification as to why this would not be included in someone’s personnel record.

470

Talbott

Answers that arrest records are not always best to rely on.

TAPE 4, A

040

Chair Prozanski

Inquires as to the history of not including criminal law activity in employee’s personnel records.

065

Talbott

Agrees to look into the history and return information.

070

Chair Prozanski

Asks for any questions regarding SB 145 from the committee.

075

Sen. Whitsett

Asks for clarification regarding the writing of SB 145.

080

Gardner

Answers clarification.

095

Sen. Whitsett

Inquires as to why language needs to be changed if the bill does not change the confidentiality.

100

Gardner

Answers that it is a clarification of current practices.

110

Sen. Whitsett

Inquires as to what happens if the bill does not pass.

112

Gardner

Explains that they will continue their currents practice, but would like to receive the statutory authority to do so. States that the clarity of the law will limit exposure.

117

Sen. Whitsett

Asks Gardner if he thinks his current practices are outside of current statutory authority.

120

Gardner

Answers, no, but states that he desires the clarity to avoid litigation or potential for argument.

125

Talbott

Submits Confidentiality Agreement (EXHIBIT E).  States that all employees are required to sign the Confidentiality Agreement.

130

Sen. Beyer

Inquires as to the current practices of the Bureau.

135

Gardner

Answers question.

145

Talbott

Discusses the authority for their decisions.

150

Sen. Beyer

Asks for direction to where Talbott is speaking of.

151

Talbott

Directs committees attention to page 1, lines 11-13.

160

Sen. Beyer

Discusses the need of the bill by the request of the Bureau.

170

Gardner

Discusses that the bill is needed for clarity.

175

Sen. Beyer

Asks for example of what this bill would assist with.

180

Talbott

Answers question and provides an example of when the bill would be applicable.

220

Chair Prozanski

Seeing no further witnesses, closes public hearing on SB 136. Asks for more witnesses regarding SB 137.

235

Patrick Allen

Manager, Office of Regulatory Streamlining, Department of Consumer and Business Services. Discusses purpose of the Department.  Discusses and submits Regulatory Streamlining Legislative Agenda in support of SB 137 (EXHIBIT F).

245

Chair Prozanski

Closes public hearing on SB 137. Seeing no further witnesses, closes public hearing on SB 138.

260

Tamara Brickman

Legislative Coordinator,  Oregon Employment Department. Offers to answer questions regarding SB 145.

265

Sen. Beyer

Asks for clarification of current procedures regarding confidential information.

270

Brickman

Answers question.

280

Sen. Beyer

Inquires if they have sought an attorney general’s opinion on this issue.

285

Brickman

Answers that they have not.

290

Sen. Beyer

Asks for example as to what would be contained in information.

295

Brickman

Answers that it would generally be wage records and address. Not quite sure.

300

Sen. Beyer

Gives scenario and inquires as to what level of detail is provided to BOLI.

315

Brickman

Answers that she does not know, but offers to return information.

320

Sen. Whitsett

Asks if SB 145 would change the current laws that allow limited release of employment department information.

330

Brickman

Answers, no it would not.

335

Chair Prozanski

Closes public hearing on SB 145.

345

Chair Prozanski

Calls meeting to a recess.

346

Chair Prozanski

Calls meeting back to order.  Opens work session on SB 136.

SB 136 - WORK SESSION

350

Sen. Beyer

MOTION:  Moves SB 136 to the floor with a DO PASS recommendation.

 

 

VOTE:  4-0-1

EXCUSED:  1 - Sen. Ringo

 

Chair Prozanski

Hearing no objection, declares the motion CARRIED.

SEN. BEYER will lead discussion on the floor.

365

Chair Prozanski

Closes work session on SB 136 and opens work session on SB 137.

SB 137 – WORK SESSION

370

Sen. Beyer

MOTION:  Moves SB  137 to the floor with a DO PASS recommendation.

 

 

VOTE:  4-0-1

EXCUSED:  1 - Sen. Ringo

 

Chair Prozanski

Hearing no objection, declares the motion CARRIED.

SEN. BURDICK will lead discussion on the floor.

375

Chair Prozanski

Closes work session on SB 137. Opens work session on SB 138.

SB 138 – WORK SESSION

385

Sen. Beyer

MOTION:  Moves SB 138 to the floor with a DO PASS recommendation.

390

Sen. Beyer

Stated that Senator Ringo’s previous comments regarding this bill alleviated his prior concerns.

 

 

VOTE:  4-0-1

EXCUSED:  1 - Sen. Ringo

415

Chair Prozanski

Hearing no objection, declares the motion CARRIED.

SEN. WHITSETT will lead discussion on the floor.

435

Chair Prozanski

Closes work session on SB 138. Discusses next committee meeting. Adjourns the meeting at 4:30 p.m.

 

 

 

EXHIBIT SUMMARY

 

  1. SB 136, written testimony, Dan Gardner, 1 p
  2. SB 137, written testimony, Dan Gardner, 1 p
  3. SB 138, written testimony, Dan Gardner, 2 pp
  4. SB 145, written testimony, Dan Gardner, 1 p
  5. SB 145, confidentiality agreement, Annette Talbott, 1 p
  6. SB 137, legislative agenda, Patrick Allen, 5 pp