SENATE COMMITTEE ON COMMERCE

 

February 15, 2005                                                                                                   Hearing Room C

3:10 P.M.                                                                                                                      Tapes 15 - 16

 

MEMBERS PRESENT:         Sen. Floyd Prozanski, Chair

Sen. Roger Beyer, Vice-Chair

Sen. Ginny Burdick

Sen. Charlie Ringo

 

MEMBER EXCUSED:          Sen. Whitsett

 

STAFF PRESENT:                 Anna Braun, Committee Administrator

Karen Scoffield, Committee Assistant

 

MEASURES/ISSUES HEARD:        

                                                SB 433 – Public Hearing

                                                SB 144 – Public Hearing

                                                SB 434 – Public Hearing

                                                HB 2153 – Public Hearing and Work Session

 

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 15, A

005

Chair Prozanski

Calls meeting to order at 3:10 p.m. Opens public hearing on SB 433.

SB 433 – PUBLIC HEARING

015

Anna Braun

Committee Administrator.  Gives an overview of SB 433.

020

Bob Russell

President, Oregon Trucking Associations.  Discusses and submits written testimony in support of SB 433 (EXHIBIT A).  Discusses the need for the bill.

060

Russell

Discusses the ability of SB 433 to amend current law.  Discusses specific language in the bill.

075

Sen. Ringo

Inquires as to a statutory definition of a “for hire” motor carrier.

080

Russell

Answers question.

082

Sen. Ringo

Asks if the term “for hire” is the same as owner operator.

085

Russell

Answers clarification.

090

Chair Prozanski

Interjects that the term “for hire” is under ORS 825.005. 

095

Sen. Ringo

Discusses ORS 825.005(7)(a) and (b) regarding the definition of “for hire.”  Inquires how you can distinguish who fits under this definition.

110

Russell

Discusses line two (2) on page three (3) of the bill in response to Sen. Ringo.

111

Sen. Ringo

Comments on his understanding of the bill. 

115

Sen. Burdick

Inquires who covers people who are not considered a covered worker if they are injured on job.

120

Russell

Answers regarding insurance options for these type of employees.

130

Sen. Burdick

Inquires if someone has a remedy against their employer if they file a workers’ compensation claim and the employer is negligent.

135

Russell

Discusses question.

140

Sen. Ringo

Asks for question to be repeated.

141

Sen. Burdick

Explains question again.

150

Russell

Answers why policies convert to workers’ compensation claims.

155

Sen. Ringo

Inquires regarding examples of owner operators who work for the same trucking company and the companies decides what they do.

160

Russell

Answers regarding uniqueness of trucking companies in relation to independent contractors. Discusses the fact that many owner operators lease and work for a particular motor carrier for a long period of time.

195

Sen. Ringo

Inquires regarding the current practice of insurance companies in relation to the coverage of independent operators.

200

Russell

Answers question.  Remarks that insurance premiums are currently based on twenty five percent of total compensation. 

205

Sen. Ringo

Asks how many owner operators this bill will impact.

210

Russell

Answers that there is not a database of owner operators. Remarks that it does not appear that there will be a huge impact for owner operators.

220

Sen. Ringo

Inquires if the impact of the bill will be that drivers who are injured will not receive workers’ compensation coverage.

225

Russell

Answers, no.  States opinion that drivers, if injured, will either have an if any insurance policy or occupational accident insurance.

240

Sen. Ringo

Inquires if an owner operators’ vehicle insurance covers personal injury protection coverage.

250

Russell

Discusses insurance requirements for owner operators.

260

Chair Prozanski

Closes public hearing on SB 433 and opens public hearing on SB 144.

SB 144 – PUBLIC HEARING

265

Anna Braun

Committee Administrator. Gives an overview of SB 144.

270

Dan Gardner

Commissioner, Bureau of Labor and Industries (BOLI). Discusses and submits written testimony in support of SB 144 (EXHIBIT B).  Discusses and submits informational brochure on meal periods and rest breaks (EXHIBIT C)  and a sample letter regarding meal periods and rest breaks (EXHIBIT D).

330

Chair Prozanski

Asks for clarification regarding what period of time BOLI waits until  the third violation.

335

Gardner

Answers that it is within a one (1) year period of time. Remarks that they send out a demand letter to try to get the employer into compliance.  Refers to EXHIBIT B.  Explains that after a third violation within a one (1) year period they begin an investigation.

350

Chair Prozanski

Inquires if BOLI has considered restitution for the loss of an employee rather than giving them a portion of the fine.

355

Gardner

Answers question.

365

Chair Prozanski

Clarifies question. Inquires if department has considered what a person would be able to receive as a restitution.

375

Gardner

Discusses answer to question.

390

Chair Prozanski

Inquires what would transpire during a case of an employer who is out of compliance.

400

Christine Hammond

Administrator, Wage and Hour Division, BOLI.  Discusses procedures of BOLI. 

415

Chair Prozanski

Inquires if BOLI has an estimate regarding the impact of the violations.

420

Hammond

Answers that BOLI has only had to assess civil penalties five (5) times over the past several years.

435

Chair Prozanski

Inquires as to how many times they gained compliance without assessing a fine.

440

Hammond

Answers that they have sent letters, but do not follow up until they receive further complaints.

450

Chair Prozanski

Comments on estimation of how many letters might have been sent in the past.

455

Hammond

Answers clarification.

TAPE 16, A

030

Don Schellenberg

Farm Bureau. Discusses and submits written testimony in opposition to SB 144 (EXHIBIT E).  Explains piece rate procedures.

075

Sen. Burdick

Inquires regarding the Farm Bureau’s opposition to the bill.

080

Schellenberg

Discusses the concern of the bill providing an incentive to cause a problem for the employer. 

095

Chair Prozanski

Remarks that the rule has been in place for two (2) years and inquires if there have been reports from farmworkers to BOLI regarding the type of claims that Schellenberg is concerned about.

100

Schellenberg

Answers that he is not aware of any claims, but is concerned that this might cause an employer to be open to more claims.

110

Chair Prozanski

Provides a scenario and asks a question about it.

120

Schellenberg

Answers question. 

135

John McCulley

Tree Fruit Growers.  Discusses opposition to SB 144.  Discusses concern of SB 144 being an incentive for employees to violate their meal and rest periods and collect monetary damages.

160

Chair Prozanski

Discusses need of clarification from BOLI on a few items.  Inquires if the Tree Fruit Growers’ concerns would be alleviated if BOLI answers that there is no obligation on the employer to force employees to take breaks.

180

McCulley

Answers that they will discusses this, but they understand that employers have to force employees to take their breaks.

185

Sen. Beyer

Remarks that even if breaks do not have to be enforced by the employer, this is not enough of an incentive for an employee to not seek damages.

200

Chair Prozanski

Comments that employees could benefit from the bill by seeking damages, but they are not aware of any previous complaints.

210

Schellenberg

Remarks that the piece rate issue is the biggest concern of the Farm Bureau. Employers with hourly employees do not have as much trouble regarding breaks because the employees are not losing money during breaks. 

220

Gardner

Clarifies that the rule went into effect February 1, 2004.  Remarks that he is not aware of any agricultural employees who have complained that they do not want a meal and rest period. Answers that employers do need to document that breaks are taken, but they do not have to force employees to take them all at the same time.

300

Chair Prozanski

Inquires if a farmer has to force piece meal farmworkers to take breaks.

305

Gardner

Answers that employers have an obligation to make their employees knowledgeable about the breaks, but not to force them to take it. Discusses that they have only had seven (7) complaints and they were resolved through demand letters and educating the employer.   

325

Chair Prozanski

Inquires if BOLI would consider a waiver that an employer had an employee sign if allegations are made.

340

Gardner

This was discussed previously, but other states that do it are concerned regarding the coercion to have an employee sign it.

355

Chair Prozanski

Comments that when you create a potential for someone to receive monetary gain there becomes concern from the employer that they become open to allegations.

360

Gardner

Remarks that the bill only allows BOLI the discretion to give up to fifty percent to employees, but the fifty percent is not mandatory.

375

Chair Prozanski

Closes public hearing on SB 144 and opens public hearing on SB 434.

SB 434 – PUBLIC HEARING

380

Anna Braun

Committee Administrator. Gives an overview of SB 434.  Submits written testimony on behalf of Stephanie Harper, Deputy City Attorney, The City of Portland, Oregon (EXHIBIT F).

395

Marcia Ohlemiller

Legal Policy Advisor, Bureau of Labor and Industries (BOLI). Submits and discusses written testimony in support of SB 434 (EXHIBIT G)

TAPE 15, B

025

Ohlemiller

Discusses and submits informational packet on BOLI’S Wage and Hour Division’s subpoena procedure (EXHIBIT H).  Discusses the need of SB 434 to clarify the language of current statute.

070

Chair Prozanski

Inquires if the framework in SB 434 is the same as administrative law proceedings.

072

Ohlemiller

Answers yes.

075

Sen. Beyer

Asks if example by Ohlemiller would be an Occupational Safety and Health Administration (OSHA) issue instead of a BOLI issue.

080

Ohlemiller

Answers that BOLI has jurisdiction over Forest Labor Contract licensing and therefore, have authority at times regarding worker safety.

085

Sen. Beyer

Remarks the he disagrees with Ohlemiller’s comment that the bill does not give BOLI any new authority.  Discuses that the bill expands the chapters of law that give BOLI subpoena authority.

090

Ohlemiller

Answers that the bill is not adding more authority than what they already have jurisdiction over.

100

Sen. Beyer

Comments that the bill expands BOLI’s authority by adding more chapters.

105

Chair Prozanski

Comments regarding his understanding that the bill does add the full chapter, but he is not sure if this does in fact give more authority.

115

Annette Talbott

Deputy Commissioner, BOLI. Discusses current statute abilities regarding subpoenas. 

125

Sen. Beyer

Inquires regarding the purpose of specific language in section two (2) of the bill.

130

Ohlemiller

Answers that the language was repeated for drafting and clarification purposes.

140

Sen. Beyer

Clarifies that it was an issue dealing with public contracting.

142

Talbott

Answers that HB 2314 (2003) rewrote public contracting laws to segregate them out.

150

Sen. Burdick

Discusses EXHIBIT H and asks if Ohlemiller can help to alleviate the concerns of the City of Portland.

160

Ohlemiller

Answers that she spoke with Legislative Counsel regarding the language that the City of Portland is concerned about and Legislative Counsel felt that the questions were consistent with current statute regarding subpoena authority. Refers to EXHIBIT H.

190

Sen. Burdick

Comments on the need to hear if the City of Portland’s concerns have been alleviated.

200

Chair Prozanski

Asks that administrator contacts the City of Portland to receive clarification.

205

Talbott

Comments the BOLI would be happy to work with the City of Portland. 

215

Chair Prozanski

Closes public hearing on SB 434 and opens public hearing on HB 2153.

HB 2153 – PUBLIC HEARING

220

Floyd Lanter

Administrator, Division of Finance and Corporate Securities, Department of Consumer and Business Services (DCBS).  Discusses and submits written testimony in support of HB 2153 (EXHIBIT I).

255

Chair Prozanski

Inquires regarding the status of the House vote on the bill. Closes public hearing and opens work session on HB 2153.

HB 2153 – WORK SESSION

265

Sen. Beyer

MOTION:  Moves HB  2153 to the floor with a DO PASS recommendation.

 

 

VOTE:  3-0-2

EXCUSED:  2 - Ringo, Whitsett

 

Chair Prozanski

Hearing no objection, declares the motion CARRIED.

SEN. BURDICK will lead discussion on the floor.

 

270

Chair Prozanski

Closes work session on HB 2153.  Discusses upcoming committee meetings.  Adjourns the meeting at 4:50 p.m.

 

 

EXHIBIT SUMMARY

 

  1. SB 433, written testimony, Bob Russell, 2 pp
  2. SB 144, written testimony, Dan Gardner, 2 pp
  3. SB 144, informational brochure, Dan Gardner, 4 pp
  4. SB 144, sample letter, Dan Gardner 1 p
  5. SB 144, written testimony, Don Schellenberg, 2 pp
  6. SB 434, written testimony of Stephanie Harper, Anna Braun, 2 pp
  7. SB 434, written testimony, Marcia Ohlemiller, 3 pp
  8. SB 434, informational packet, Marcia Ohlemiller, 20 pp
  9. HB 2153, written testimony, Floyd Lanter, 2 pp