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Oregon Bulletin

February 1, 2012

 

Bureau of Labor and Industries
Chapter 839

Rule Caption: Amends the prevailing rates of wage for the period beginning July 1, 2011 and October 1, 2011 amendment.

Adm. Order No.: BLI 10-2011

Filed with Sec. of State: 12-30-2011

Certified to be Effective: 1-1-12

Notice Publication Date:

Rules Amended: 839-025-0700

Subject: The amended rule amends the prevailing rates of wage as determined by the Commissioner of the Bureau of Labor and Industries for the period beginning July 1, 2011 and October 1, 2011 amendment.

Rules Coordinator: Marcia Ohlemiller—(971) 673-0784

839-025-0700

Prevailing Wage Rate Determination/Amendments to Determination

(1) Pursuant to ORS 279C.815, the Commissioner of the Bureau of Labor and Industries has determined that the wage rates stated in publication of the Bureau of Labor and Industries entitled Prevailing Wage Rates on Public Works Contracts in Oregon dated January 1, 2012, are the prevailing rates of wage for workers upon public works in each trade or occupation in the locality where work is performed for the period beginning January 1, 2012, and the effective dates of the applicable special wage determination and rates amendments:

(2) Copies of Prevailing Wage Rates on Public Works Contracts in Oregon dated January 1, 2012, are available from any office of the Wage and Hour Division of the Bureau of Labor and Industries. The offices are located in Eugene, Portland and Salem and are listed in the blue pages of the phone book. Copies are also available on the bureau’s webpage at www.oregon.gov/boli or may be obtained from the Prevailing Wage Rate Coordinator, Prevailing Wage Rate Unit, Wage and Hour Division, Bureau of Labor and Industries, 800 NE Oregon Street #1045, Portland, Oregon 97232; (971) 673-0839.

Stat. Auth.: ORS 279C.815, 651.060

Stats. Implemented: ORS.279C.815

Hist.: BLI 7-1998(Temp), f. & cert. ef. 10-29-98 thru 4-27-99; BLI 1-1999, f. 1-8-99, cert. ef. 1-15-99; BLI 4-1999, f. 6-16-99, cert. ef. 7-1-99; BLI 6-1999, f. & cert. ef. 7-23-99; BLI 9-1999, f. 9-14-99, cert. ef. 10-1-99: BLI 16-1999, f. 12-8-99, cert. ef. 1-1-00; BLI 4-2000, f. & cert. ef. 2-1-00; BLI 9-2000, f. & cert. ef. 3-1-00; BLI 10-2000, f. 3-17-00, cert. ef. 4-1-00; BLI 22-2000, f. 9-25-00, cert. ef. 10-1-00; BLI 26-2000, f. 12-14-00 cert. ef. 1-1-01; BLI 1-2001, f. & cert. ef. 1-5-01; BLI 3-2001, f. & cert. ef. 3-15-01; BLI 4-2001, f. 3-27-01, cert. ef. 4-1-01; BLI 5-2001, f. 6-21-01, cert. ef. 7-1-01; BLI 8-2001, f. & cert. ef. 7-20-01; BLI 14-2001, f. 9-26-01, cert. ef. 10-1-01; BLI 16-2001, f. 12-28-01, cert. ef. 1-1-02; BLI 2-2002, f. 1-16-02, cert. ef. 1-18-02; BLI 8-2002, f. 3-25-02, cert. ef. 4-1-02; BLI 12-2002 f. 6-19-02 cert. ef. 7-1-02; BLI 16-2002, f. 12-24-02 cert. ef. 1-1-03; BLI 1-2003, f. 1-29-03, cert. ef. 2-14-03; BLI 3-2003, f. & cert. ef. 4-1-03; BLI 4-2003, f. 6-26-03, cert. ef. 7-1-03; BLI 5-2003, f. 9-17-03, cert. ef. 10-1-03; BLI 9-2003, f. 12-31-03, cert. ef. 1-5-04; BLI 1-2004, f. 4-9-04, cert. ef. 4-15-04; BLI 6-2004, f. 6-25-04, cert. ef. 7-1-04; BLI 11-2004, f. & cert. ef. 10-1-04; BLI 17-2004, f. 12-10-04 cert. ef. 12-13-04; BLI 18-2004, f. 12-20-04, cert. ef. 1-1-05; Renumbered from 839-016-0700, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 8-2005, f. 3-29-05, cert. ef. 4-1-05; BLI 18-2005, f. 9-19-05, cert. ef. 9-20-05; BLI 19-2005, f. 9-23-05, cert. ef. 10-1-05; BLI 26-2005, f. 12-23-05, cert. ef. 1-1-06; BLI 1-2006, f. 1-24-06, cert. ef. 1-25-06; BLI 2-2006, f. & cert. ef. 2-9-06; BLI 4-2006, f. 2-23-06, cert. ef. 2-24-06; BLI 14-2006, f. 3-30-06, cert. ef. 4-1-06; BLI 20-2006, f. & cert. ef. 6-16-06; BLI 21-2006, f. 6-16-06 cert. ef. 7-1-06; BLI 23-2006, f. 6-27-06 cert. ef. 6-29-06; BLI 25-2006, f. & cert. ef. 7-11-06; BLI 26-2006, f. & cert. ef. 7-13-06; BLI 28-2006, f. 7-21-06, cert. ef. 7-24-06; BLI 29-2006, f. 8-8-06, cert. ef. 8-9-06; BLI 32-2006, f. & cert. ef. 9-13-06; BLI 33-2006, f. 9-28-06, cert. ef. 10-1-06; BLI 36-2006, f. & cert. ef. 10-4-06; BLI 37-2006, f. & cert. ef. 10-19-06; BLI 40-2006, f. 11-17-06, cert. ef. 11-20-06; BLI 43-2006, f. 12-7-06, cert. ef. 12-8-06; BLI 45-2006, f. 12-26-06, cert. ef. 1-1-07; BLI 5-2007, f. 1-30-07, cert. ef. 1-31-07; BLI 6-2007, f. & cert. ef. 3-5-07; BLI 7-2007, f. 3-28-07, cert. ef. 3-30-07; BLI 8-2007, f. 3-29-07, cert. ef. 4-1-07; BLI 9-2007, f. & cert. ef. 4-2-07; BLI 10-2007, f. & cert. ef. 4-30-07; BLI 12-2007, f. & cert. ef. 5-31-07; BLI 13-2007, f. 6-8-07, cert. ef. 6-11-07; BLI 14-2007, f. 6-27-07, cert. ef. 6-28-07; BLI 15-2007, f. & cert. ef. 6-28-07; BLI 16-2007, f. 6-29-07, cert. ef. 7-1-07; BLI 18-2007, f. 7-10-07, cert. ef. 7-12-07; BLI 21-2007, f. 8-3-07, cert. ef. 8-8-07; BLI 22-2007, cert. & ef. 8-30-07; BLI 23-2007, f. 8-31-07, cert. ef. 9-4-07; BLI 24-2007, f. 9-11-07, cert. ef. 9-12-07; BLI 25-2007, f. 9-19-07, cert. ef. 9-20-07; BLI 26-2007, f. 9-25-07 cert. ef. 9-26-07; BLI 27-2007, f. 9-25-07 cert. ef. 10-1-07; BLI 28-2007, f. 9-26-07 cert. ef. 10-1-07; BLI 31-2007, f. 11-20-07, cert. ef. 11-23-07; BLI 34-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 1-2008, f. & cert. ef. 1-4-08; BLI 2-2008, f. & cert. ef. 1-11-08; BLI 3-2008, f. & cert. ef. 2-21-08; BLI 6-2008, f. & cert. ef. 3-13-08; BLI 8-2008, f. 3-31-08, cert. ef. 4-1-08; BLI 9-2008, f. & cert. ef. 4-14-08; BLI 11-2008, f. & cert. ef. 4-24-08; BLI 12-2008, f. & cert. ef. 4-30-08; BLI 16-2008, f. & cert. ef. 6-11-08; BLI 17-2008, f. & cert. ef. 6-18-08; BLI 19-2008, f. & cert. ef. 6-26-08; BLI 20-2008, f. & cert. ef. 7-1-08; BLI 23-2008, f. & cert. ef. 7-10-08; BLI 26-2008, f. & cert. ef. 7-30-08; BLI 28-2008, f. & cert. ef. 9-3-08; BLI 30-2008, f. & cert. ef. 9-25-08; BLI 31-2008, f. 9-29-08, cert. ef. 10-1-08; BLI 32-2008, f. & cert. ef. 10-8-08; BLI 36-2008, f. & cert. ef. 10-29-08; BLI 41-2008, f. & cert. ef. 11-12-08; BLI 42-2008, f. & cert. ef. 12-1-08; BLI 44-2008, f. & cert. ef. 12-29-08; BLI 45-2008, f. 12-31-08, cert. ef. 1-1-09; BLI 1-2009, f. & cert. ef. 1-6-09, BLI 2-2009, f. & cert. ef. 1-12-09; BLI 4-2009, f. & cert. ef. 2-11-09; BLI 6-2009, f. & cert. ef. 3-17-09; BLI 7-2009, f. & cert. ef. 3-24-09; BLI 8-2009, f. 3-31-09, cert. ef. 4-1-09; BLI 10-2009, f. 6-9-09, cert. ef. 6-10-09; BLI 11-2009, f. 6-29-09, cert. ef. 6-30-09; BLI 12-2009, f. 6-29-09, cert. ef. 7-1-09; BLI 13-2009, f. & cert. ef. 7-1-09; BLI 14-2009, f. & cert. ef. 7-10-09; BLI 15-2009, f. & cert. ef. 7-16-09; BLI 16-2009, f. & cert. ef. 7-22-09; BLI 17-2009, f. & cert. ef. 7-29-09; BLI 19-2009, f. & cert. ef. 8-18-09; BLI 20-2009, f. & cert. ef. 9-14-09; BLI 21-2009, f. & cert. ef. 9-21-09; BLI 22-2009, f. 9-30-09, cert. ef. 10-1-09; BLI 23-2009, f. & cert. ef. 10-8-09; BLI 24-2009, f. & cert. ef. 11-12-09; BLI 25-2009, f. & cert. ef. 11-23-09; BLI 29-2009, f. 12-31-09, cert. ef. 1-1-10; BLI 1-2010, f. 1-8-10, cert. ef. 1-12-10; BLI 2-2010, f. 1-11-10, cert. ef. 1-13-10; BLI 3-2010, f. & cert. ef 1-19-10; BLI 4-2010, f. & cert. ef 1-27-10; BLI 13-2010, f. & cert. ef. 4-1-10; BLI 17-2010, f. 6-29-10, cert. ef. 7-1-10; BLI 20-2010, f. & cert. ef. 10-1-10; BLI 24-2010, f. 12-30-10, cert. ef. 1-1-11; BLI 2-2011, f. 3-25-11, cert. ef. 4-1-11; BLI 4-2011, f. 6-30-11, cert. ef. 7-1-11; BLI 7-2011, f. & cert. ef. 10-12-11; BLI 10-2011, f. 12-30-11, cert. ef. 1-1-12

 

Rule Caption: Implements legislation providing civil penalties for issuance of dishonored checks in payment of wages.

Adm. Order No.: BLI 11-2011

Filed with Sec. of State: 12-30-2011

Certified to be Effective: 1-1-12

Notice Publication Date: 12-1-2011

Rules Adopted: 839-001-0300

Subject: This new rule implements the provisions of House Bill (HB) 2039 enacted by the 2011 Legislature. HB 2039, effective January 1, 2012, amends ORS chapter 652 to authorize the Commissioner of the Bureau of Labor and Industries to assess civil penalties payable to employees equal to the damages provided in ORS 30.701 relating to actions against makers of dishonored checks. ORS 30.701 provides that when an individual is issued a check for which there are insufficient funds, the person may recover from the maker of the dishonored check statutory damages in an amount equal to $100 or triple the amount for which the check is drawn, not to exceed $500 more than the value of the check.

      This new rule provides that such amounts may be assessed as civil penalties by the Bureau of Labor and Industries pursuant to the Administrative Procedure Act (ORS 183.413 to 183.470) and the bureau’s Contested Case Hearing Rules.

Rules Coordinator: Marcia Ohlemiller—(971) 673-0784

839-001-0300

Liability of Employer for Issuance of Dishonored Check in Payment of Wages

(1) As used in this rule:

(a) “Check” means a check, draft or order for the payment of money.

(b) “Drawee” means a person ordered in a draft to make payment pursuant to ORS 73.0103(1)(b).

(2) Pursuant to ORS 30.701, an employer that issues a dishonored check to an employee for payment of wages due is liable to the employee for damages in an amount equal to $100 or triple the amount for which the check is drawn, whichever is greater, in addition to the amount for which the check was drawn. The amount of damages may not exceed the amount for which the check was drawn by more than $500.

(3) Pursuant to the provisions of House Bill 2039 (2011), the Commissioner of the Bureau of Labor and Industries may assess a civil penalty payable to the employee in an amount equal to the statutory damages provided by ORS 30.701 against an employer that issues a dishonored check to an employee for payment of wages due. Such civil penalties will be assessed pursuant to the provisions of the Administrative Procedure Act (ORS 183.413 to 183.470) and the bureau’s Contested Case Hearing Rules.

(4) The commissioner may not assess a civil penalty as provided in this rule if:

(a) After the employee or the employee’s assignee has made written demand of the employer not less than 30 days before commencing the action, the employer pays the employee before the commencement of the action an amount of money not less than the amount for which the check was drawn and all interest that has accrued on the check under ORS 82.010 as of the date of demand; or,

(b) The employee has commenced an action under ORS 30.701 against the employer for the same dishonored check.

(5) If the commissioner determines that the failure of the employer to satisfy the dishonored check at the time demand was made under subsection (4)(a) of this rule was due to economic hardship, the commissioner may waive all or part of the statutory damages provided for in section (2) of this rule.

(6) The provisions of this rule apply only to a check that has been dishonored because of a lack of funds or credit to pay the check, because the employer has no account with the drawee, or because the employer has stopped payment on the check without good cause. An employee is entitled to the remedies provided in this rule without regard to the reasons given by the employer for dishonoring the check.

(7) An employee may not bring an action under ORS 30.701 against an employer for the same dishonored check if the commissioner has assessed or proposed to assess a civil penalty under this rule.

Stat. Auth: ORS 30.701, 651.060 & Ch. 652

Stats. Implemented: ORS 652

Hist.: BLI 11-2011, f. 12-30-11, cert. ef. 1-1-12

 

Rule Caption: Clarifies how employer penalty is to be computed in Wage Security Fund recovery actions.

Adm. Order No.: BLI 12-2011

Filed with Sec. of State: 12-30-2011

Certified to be Effective: 1-1-12

Notice Publication Date: 12-1-2011

Rules Amended: 839-001-0560

Subject: ORS 652.414, relating to the payment of wage claims from the Wage Security Fund, provides that the Commissioner of the Bureau of Labor and Industries may initiate action to recover from employers or other persons liable for unpaid wages, amounts paid from the Wage Security Fund. In addition, the commissioner is also entitled to recover a penalty of 25 percent of the amount of wages paid from the Wage Security Fund or $200, whichever amount is greater. This rule amendment clarifies that in cases where multiple employees of an employer are paid from the Fund, the penalty of 25 percent amount of wages paid or $200, whichever is greater, is to be calculated based on the amount paid to each employee from the Wage Security Fund, rather than the total aggregated amount paid to the employees of the employer.

Rules Coordinator: Marcia Ohlemiller—(971) 673-0784

839-001-0560

Recovery from Employers

(1) The Commissioner may perfect a security interest in the personal property of the employer in the amount of the sums paid from the Fund on a wage claim and in an additional amount of the penalty provided for in ORS 652.414(3).

(2) The penalty provided in ORS 652.414(3) of 25 percent of the amount of wages paid from the Wage Security Fund or $200, whichever amount is greater, shall be calculated based on the amount paid to each employee from the Wage Security Fund.

(3) Action to perfect a security interest shall be taken in accordance with ORS 652.414(3) and (4).

Stat. Auth.: ORS 652.414(6)

Stats. Implemented: ORS 652.414

Hist.: BL 5-1986, f. 6-20-86, ef. 7-1-86; BL 8-1989, f. & cert. ef. 10-12-89; BL 9-1996, f. & cert. ef. 10-8-96; BLI 12-2011, f. 12-30-11, cert. ef. 1-1-12

 

Rule Caption: Amendments clarifying time during which bureau may issue subpoenas and correcting statutory cites.

Adm. Order No.: BLI 13-2011

Filed with Sec. of State: 12-30-2011

Certified to be Effective: 1-1-12

Notice Publication Date: 11-1-2011

Rules Amended: 839-002-0001, 839-002-0002, 839-002-0005, 839-002-0015, 839-002-0020, 839-002-0025, 839-002-0030, 839-002-0035, 839-002-0040, 839-002-0045, 839-002-0050, 839-002-0055, 839-002-0060, 839-002-0065, 839-002-0070, 839-002-0075, 839-002-0080

Subject: The amendments clarify the time frame during which the bureau may issue subpoenas. The authorizing statute, ORS 651.0060(1), provides that the bureau may issue subpoenas “when the information sought is relevant to a lawful investigative purpose.” The amendments clarify that the bureau may issue a subpoena at any time when the information sought “is relevant to a lawful investigative purpose and deemed to be reasonable in scope,” which would include during official preliminary inquiries prior to initiating an investigation. The amendments also include corrections to statutory cites.

Rules Coordinator: Marcia Ohlemiller—(971) 673-0784

839-002-0001

Purpose of These Rules

The Bureau of Labor and Industries is authorized to develop administrative rules necessary for enforcement of statutes for which it is responsible. The purpose of these rules is to guide the bureau in the rule-making process.

Stat. Auth.: ORS 183

Stats. Implemented: ORS 183.335

Hist.: BLI 1-2000, f. & cert. ef. 1-11-00; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0002

Proposed Rule Notice

Prior to the permanent adoption, amendment or repeal of any rule of the Bureau of Labor and Industries, the bureau will give notice of intended action:

(1) In the Secretary of State’s Bulletin, referred to in ORS 183.360, at least 21 days prior to the rule’s effective date.

(2) To persons on the bureau’s mailing list and email list established pursuant to ORS 183.335(8).

(3) To the legislature, by mailing a copy of the notice to the legislators specified in ORS 183.335(15) at least 49 days before the effective date of the rule.

(4) To the general public, by posting the notice on the bureau’s Website.

Stat. Auth.: ORS 183

Stats. Implemented: ORS 183.335

Hist.: BLI 1-2000, f. & cert. ef. 1-11-00; BLI 8-2004, f. 7-26-04, cert. ef. 7-27-04; BLI 7-2006, f. 3-16-06 cert. ef. 3-20-06; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0005

Model Rules of Procedure

(1) The Attorney General’s Model Rules of Procedure under the Administrative Procedures Act, are hereby adopted to govern the operations of the Bureau of Labor and Industries.

(2) The Model Rules of Procedure will govern operations of the Hearings Unit of the Bureau of Labor and Industries except to the extent they conflict with or are modified by rules in any division of chapter 839 of the Oregon Administrative Rules. The rules for contested case proceedings are set forth in OAR chapter 839, division 50.

[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the office of the Attorney General or the Bureau of Labor and Industries.]

Stat. Auth.: ORS 183

Stats. Implemented: ORS 183.341

Hist.: BL 5-1980, f. & ef. 8-4-80; BL 2-1981, f. & ef. 1-8-81; BL 3-1982, f. & ef. 2-9-82; BL 4-1996, f. & cert. ef. 3-12-96; BLI 1-2000, f. & cert. ef. 1-11-00; BLI 7-2006, f. 3-16-06 cert. ef. 3-20-06; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0015

Authority

(1) ORS 651.060(1) authorizes the commissioner to conduct investigations in all matters relating to the duties required under ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170, and Chapters 652, 653, 658, and 659A.

(2) ORS 651.060(1) gives the commissioner the authority to issue subpoenas ad testificandum and subpoenas duces tecum, administer oaths, obtain evidence and take testimony.

(3) These rules govern the commissioner’s gathering of information through subpoenas or testimony and establish procedures through which a subpoenaed party may object to answering questions or producing any document or other thing subpoenaed.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0020

Definitions

(1) “Division” means the Civil Rights Division and Wage and Hour Division in the Bureau of Labor and Industries.

(2) “Document” means any existing written, printed, typed, or recorded matter of any kind or nature, however produced or reproduced, including but not limited to all mechanical, electronic, sound or video recordings or their transcripts, photographs, electronic files and computer stored data.

(3) “Other thing” means any existing tangible object that is not a “document.”

(4) “Party” means any person who has been served by a subpoena under these rules.

(5) “Person” means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character.

(6) “Subpoena ad testificandum” is a subpoena that requires an individual to appear and give testimony under oath.

(7) “Subpoena duces tecum” is a subpoena that requires the production of documents or other things.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0025

Who and What May Be Subpoenaed

The commissioner may issue subpoenas to persons to compel testimony and the production of documents or other things that are relevant to the commissioner’s lawful investigative purpose and reasonable in scope under matters relating to the duties required under ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170, and chapters 652, 653, 658, and 659A.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0030

Circumstances under Which a Subpoena May be Issued

(1) The commissioner may issue a subpoena at any time when the information sought is relevant to a lawful investigative purpose and is reasonable in scope. Investigative purposes include any preliminary inquiries in determining whether to pursue a formal investigation.

(2) The commissioner may issue a subpoena ad testificandum to compel a person to testify under oath when:

(a) A Division determines that the person is a material witness in an investigation being conducted by the Division under ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170, or chapters 652, 653, 658, and 659A; and

(b) The Division has been unable to interview the person after having made reasonable attempts to do so, or the person states that the person will only consent to an interview if first served with a subpoena.

(3) The commissioner may also issue a subpoena ad testificandum to compel a person to testify under oath about the contents of documents or other things produced in response to a subpoena duces tecum served on the same person.

(4) The commissioner may issue a subpoena duces tecum to compel a person to produce documents or other things when:

(a) A Division determines that the documents or other things are relevant to the Division’s inquiry being conducted under ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170, or chapters 652, 653, 658, and 659A; and

(b) The Division has made a written request for production of documents or things and the person to whom the request was made has failed to comply within the time specified by the Division, unless the commissioner finds a subpoena is necessary to protect the documents and things from destruction.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 5-2010(Temp), f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0035

Who May Issue Subpoenas

The commissioner or the commissioner’s designees may issue subpoenas.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0040

Subpoena Duces Tecum

(1) A subpoena duces tecum may be issued to any person who has custody, possession, or control of documents or other things named in the subpoena duces tecum when the conditions set out in OAR 839-002-0030(4) have been met.

(2) A subpoena duces tecum issued to a corporation will be addressed to the records custodian of the corporation.

(3) A subpoena duces tecum will not require production of documents or other things less than 14 days from the date of service upon the person required to produce and permit inspection of the documents or things unless the commissioner finds a shorter period necessary to protect the documents and things from destruction or if the Division has an immediate need for the documents or things being subpoenaed.

(4) The commissioner may also command the person to whom a subpoena duces tecum is issued to produce documents and other things by mail or otherwise, at a time and place specified in the subpoena, without commanding inspection of the originals. The person to whom the subpoena is directed complies if the person produces copies of the specified items in the specified manner and certifies that the copies are true copies of all documents and other things responsive to the subpoena.

(5) The subpoenaed documents and other things must be produced at the location, time, and date required in the subpoena.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 5-2010(Temp), f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0045

Subpoena Ad Testificandum

(1) A subpoena ad testificandum may be issued to any person when the conditions set out in 839-002-0030(2) or 839-002-0030(3) have been met.

(2) The subpoena ad testificandum must give the person a reasonable time for preparation and travel to the place of attendance and the place of attendance must be in a suitable place in the vicinity to which testimony is applicable.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 5-2010(Temp), f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0050

Method of Service

(1) Except as noted in subsections (2) and (3) of this rule, subpoenas must be served in person by delivering a copy to the witness personally and, at the same time, giving or offering to the witness the fees to which the person is entitled for travel to and from the place where the witness is commanded to appear, along with one day’s attendance fee. A subpoena may be served by any person 18 years of age or older.

(2) Subpoenas ad testificandum may be served by mail under the following circumstances:

(a) The Division must have, by personal or telephone contact, confirmed the witness’s willingness to appear if subpoenaed and certify this on the return of service;

(b) The Division made arrangements for payment to the witness of fees and mileage satisfactory to the witness and pays those fees and mileage; and

(c) The subpoena is sent by certified mail to the witness more than 10 days before the date set for appearance or production of documents or other things and the Division receives a return receipt signed by the witness more than three days prior to that date.

(3) A subpoena duces tecum that commands production of documents or other things but is not accompanied by a subpoena ad testificandum may be served by mailing the subpoena to the person required to produce and permit inspection of the documents or things by first class mail and by certified or registered mail, return receipt requested.

(4) A subpoena duces tecum issued to a corporation will be served in accordance with requirements for service of summons on a corporation pursuant to ORCP 7 D(3)(b).

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A; ORCP 7

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 5-2010(Temp), f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0055

Fees

All persons subpoenaed by the commissioner must be paid the mileage and per diem set out in ORS 44.415(2).

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0060

Time and Manner of Objecting to Subpoenas

(1) Any person served with an investigative subpoena may object to testifying or providing the documents or other things sought. Grounds for objections include:

(a) The information sought is irrelevant to a lawful investigative purpose;

(b) The information sought is unreasonable in scope;

(c) The witness is ordered to appear to give testimony in a place that is not suitable or not in the vicinity to which the testimony is applicable;

(d) The time and expense involved in copying the documents sought. In order to have this objection considered, a person making this objection must include a written estimate of the time involved and number of copies to be made in order to comply with the subpoena;

(e) Reasonable cause to refuse to comply; and

(f) Any other basis that may be asserted under Oregon law.

(2) Objections to subpoenas must be in writing and must be received by the Division at least seven calendar days before the time that the witness is subpoenaed to testify or provide documents or other things.

(3) If a subpoenaed witness refuses to answer specific questions while giving testimony, the witness must state the reason for the witness’s objection at the time that the witness refuses to answer the questions.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0065

Response to Objections

(1) The Division will respond in writing to any objections timely received under OAR 839-002-0060(2).

(2) If the objection made is the time and expense involved in copying the documents sought, the Division will provide a check to the person subpoenaed to pay for the estimated time and expense, calculated at the rates set out in OAR 839-030-0010. The Division may provide this check before or at the time the witness is subpoenaed to provide documents or other things.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0070

Method of Taking Testimony

(1) When a witness appears to give testimony in response to a subpoena ad testificandum, an oath or affirmation will be administered to the witness prior to the witness’s testimony. The oath or affirmation will be administered by an officer authorized to administer oaths in Oregon, generally a notary public employed by the Bureau of Labor and Industries.

(2) The witness’s testimony will be preserved by an audio or video recording. Upon request, the Division will give the witness a copy of the recording at no cost.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0075

Failure to Appear

If a person served with a subpoena fails to appear and has not filed any prior objections, the commissioner will conclude that the person has refused, without reasonable cause, to answer any question or to produce any document or other thing.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

839-002-0080

Enforcement of Subpoena

If a person served with a subpoena refuses, without reasonable cause, to be examined, to answer any question, or to produce any document or other thing as required by the subpoena, the commissioner may petition the circuit court in the county in which the investigation is pending for an order directing the person to show cause why the person has not complied with the subpoena and should not be held in contempt. The commissioner shall serve the court’s order upon the person in the manner provided by ORCP 55 D.

Stat. Auth.: ORS 651.060, 658.220 & 659A.800

Stats. Implemented: ORS 279C, 651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07, cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12

 

Rule Caption: Conforms civil rights rules to provisions of HB 2036, HB 2828 and HB 3482 (2011).

Adm. Order No.: BLI 14-2011

Filed with Sec. of State: 12-30-2011

Certified to be Effective: 1-1-12

Notice Publication Date: 11-1-2011

Rules Adopted: 839-005-0075, 839-005-0130, 839-005-0135

Rules Amended: 839-005-0160, 839-005-0170, 839-009-0325, 839-009-0330, 839-009-0340, 839-009-0345, 839-009-0355, 839-009-0360, 839-009-0362, 839-009-0365

Rules Renumbered: 839-005-0033 to 839-005-0125

Subject: The new rules would implement HB 2036, which (1) corrects references in ORS 659A.106 that relate to employment to refer only to employment-related disability statutes (ORS 659A.112–659A.139); (2) allows BOLI to enforce law providing protected leave to attend a criminal proceeding (ORS 659A.194(2); and (3) clarifies that an employer may consider the credit history of applicants for public safety officer employment and clarifies exceptions to the prohibition on the use of credit history information in employment.

      The new rules would implement provisions of HB 2828, creating an unlawful employment practice if an employer who employs 10 or more people ceases to provide health, disability, life or other insurance during a period in which the employee is serving or is scheduled to serve as juror and the employee notified the employer of election to have coverage continue.

      The new rules would implement provisions of HB 3482, adding harassment to crime victim protections.

Rules Coordinator: Marcia Ohlemiller—(971) 673-0784

839-005-0075

Exceptions

OL 2010, Ch. 102 does not apply to:

(1) Employers that are federally insured banks or credit unions;

(2) Employers that are required by state or federal law to use individual credit history for employment purposes;

(3) Employees in or applicants for positions responsible for enforcing the criminal laws of this state, including:

(a) A public safety officer who is a member of a law enforcement unit;

(b) A peace officer commissioned by a city, port, school district, mass transit district, county, Indian reservation, or the Criminal Justice Division of the Department of Justice, the Oregon State Lottery Commission, the Governor; or

(c) Employees in positions responsible for enforcing the criminal laws of this state or laws or ordinances related to airport security; or

(4)(a) The obtainment or use by an employer of information in the credit history of an applicant or employee because the information is substantially job-related, and the employer’s reasons for the use of such information are disclosed to the employee or prospective employee in writing.

(b) The burden of proving the employer’s disclosure to the employee rests with the employer.

Stat. Auth.: OL 2010, Ch. 102(5), ORS 659A.805

Stats. Implemented: OL 2010, Ch. 102

Hist.: BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-005-0125

Discrimination in Retaliation for Opposing Unlawful Practices

(1) This rule interprets ORS 659A.030(1)(f).

(2) An employer will be found to have unlawfully retaliated against an employee if:

(a) The employee has engaged in protected activity by:

(A) Explicitly or implicitly opposing an unlawful practice or what the employee reasonably believed to be an unlawful practice, or

(B) Filing a charge, testifying, or assisting in an investigation, proceeding, or lawsuit under ORS 659A, or attempting to do so;

(b) The employer has subjected the employee to any adverse treatment, in or out of the workplace, that is reasonably likely to deter protected activity, regardless of whether it materially affects the terms, conditions, or privileges of employment; and

(c) There is a causal connection between the protected activity and the adverse treatment.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.030(1)(f)

Hist.: BLI 27-2008, f. 8-5-08, cert. ef. 8-6-08; Renumbered from 839-005-0033, BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-005-0130

Discrimination Against Employees Serving as Jurors

(1) An employer commits an unlawful employment practice under ORS chapter 659A if the employer discharges, threatens to discharge, intimidates or coerces any employee by reason of the employee’s service or scheduled service as a juror on a grand jury, trial jury or jury of inquest.

(2) An employee who alleges a violation of subsection (1) of this rule may bring a civil action under ORS 659A.885 or may file a complaint with the Commissioner of the Bureau of Labor and Industries in the manner provided by ORS 659A.820.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 10.090, OL 2011 c. 118

Hist.: BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-005-0135

Insurance Coverage for Employees Serving as Jurors

(1) An employer who employs 10 or more persons commits an unlawful employment practice under ORS chapter 659A if:

(a) The employer ceases to provide health, disability, life or other insurance coverage for an employee during times when the employee serves or is scheduled to serve as a juror; and

(b) The employee elected to have coverage continued while the employee served or was scheduled to serve as a juror, and the employee provided notice of that election to the employer in compliance with the employer’s policy for notification.

(2) Notwithstanding ORS 652.610(3), if, following an election described in subsection (1) of this section, an employer is required or elects to pay any part of the costs of providing health, disability, life or other insurance coverage for the employee that should have been paid by the employee, the employer may deduct from the employee’s pay such amounts upon the employee’s return to work until the amount the employer advanced toward the payments is paid. The total amount deducted for insurance under this subsection may not exceed 10 percent of the employee’s gross pay each pay period.

(3) Notwithstanding ORS 652.610(3), if the employer pays any part of the costs of providing health, disability, life or other insurance coverage for an employee under subsection (2) of this section, and the employee ceases to work for the employer before the total amount the employer advanced toward the payments is paid, the employer may deduct the remaining amounts from any amounts owed by the employer to the employee or may seek to recover those amounts by any other legal means.

(4) An employee who alleges a violation of this section may bring a civil action under ORS 659A.885 or may file a complaint with the Commissioner of the Bureau of Labor and Industries in the manner provided by ORS 659A.820.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 10.090, OL 2011 c. 118

Hist.: BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-005-0160

Protection from Discrimination and Safety Accommodation for Victims of Domestic Violence, Harassment, Sexual Assault or Stalking

(1) As provided in ORS 659A.290, it is an unlawful employment practice for an employer, because an individual is a victim of domestic violence, harassment, sexual assault or stalking, to:

(a) Refuse to hire an otherwise qualified individual; or

(b) Discharge, threaten to discharge, demote, suspend or in any way discriminate or retaliate against an individual with respect to promotion, compensation or any other terms, conditions or privileges of employment.

(2) ORS 659A.290 requires employers to provide safety accommodation for victims of domestic violence, harassment, sexual assault or stalking.

(3) The Civil Rights Division (“division”) of the Bureau of Labor and Industries enforces ORS 659A.290.

(4) Leave from employment is available for victims of domestic violence, harassment, sexual assault or stalking for purposes including but not limited to: seeking legal or law enforcement remedies, seeking medical care or counseling, and for relocating or other safety measures. The division enforces ORS 659A.270 to 659A.285, which require leave for victims of domestic violence, harassment, sexual assault or stalking. OAR 839-009-0321 to 839-009-0365 implement and interpret ORS 659A.270 to 659A.285.

(5) OAR 839-005-0160 to 839-005-0170 implement and interpret ORS 659A.290.

(6) Definitions for OAR 839-005-0160 to 839-005-0170:

(a) “Victim of domestic violence” means:

(A) An individual who has been threatened with abuse or is a victim of abuse, as defined in ORS 107.705; or

(B) Any other person who has suffered financial, social, psychological or physical harm as a result of domestic violence committed against the victim as defined in subsection (a), including a member of the victim’s immediate family.

(b) “Victim of harassment” means an individual against whom harassment has been committed as described in Oregon’s criminal code at ORS 166.065.

(c) “Victim of sexual assault” means:

(A) An individual against whom a sexual offense has been threatened or committed as described in ORS 163.305 to 163.467 or 163.525; or

(B) Any other person who has suffered financial, social, psychological or physical harm as a result of a sexual assault committed against the victim as defined in subsection (a), including a member of the victim’s immediate family.

(d) “Victim of Stalking” means:

(A) An individual against whom stalking has been threatened or committed as described in ORS 163.732; or

(B) Any other person who has suffered financial, social, psychological or physical harm as a result of a stalking committed against the victim as defined in subsection (a), including a member of the victim’s immediate family; or

(C) An individual who has obtained a court’s stalking protective order or a temporary court’s stalking protective order under ORS 30.866.

(e) In no event will an alleged perpetrator of domestic violence, harassment, sexual assault or stalking be considered a victim for the purposes of ORS 659A.290 or these rules.

Stat. Auth.: ORS 659A.805, 659A.270

Stats. Implemented: ORS 659A.290, OL 2011 c. 687

Hist.: BLI 9-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-005-0170

Reasonable Safety Accommodation for Victims of Domestic Violence, Harassment, Sexual Assault or Stalking

(1) It is an unlawful employment practice to refuse to make a reasonable safety accommodation requested by an individual who is a victim of or under threat of domestic violence, harassment, sexual assault, or stalking, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.

(2) “Reasonable safety accommodation” may include, but is not limited to, a transfer, reassignment, modified schedule, unpaid leave from employment, changed work telephone number, changed work station, installed lock, implemented safety procedure or any other adjustment to a job structure, workplace facility or work requirement in response to actual or threatened domestic violence, harassment, sexual assault or stalking.

(3) Undue hardship means a significant difficulty and expense to an employer’s business and includes consideration of the size of the employer’s business. Other factors to consider in determining whether granting a safety accommodation will cause an undue hardship on an employer’s business include, but are not limited to:

(a) The safety accommodation requested and the relative cost to an employer’s business;

(b) The overall financial resources of the employer’s facility or facilities, the number of persons employed at the facility and the effect on expenses and resources or other impacts on the operation of the facility if the safety accommodation were granted;

(c) The overall financial resources of the employer, the overall size of the business of the employer with respect to the number of its employees and the number, type and location of the employer’s facilities;

(d) The type of operations conducted by the employer, including the composition, structure and functions of the employer’s workforce.

(4) Prior to making a reasonable safety accommodation, an employer may require an individual to provide certification that the individual is a victim of domestic violence, harassment, sexual assault, or stalking.

(a) An individual must provide a certification permitted under OAR 839-009-0362(5) within a reasonable time after receiving the employer’s request for certification.

(b) Any of the following constitutes sufficient certification:

(A) A copy of a police report indicating that the individual was or is a victim of domestic violence, harassment, sexual assault or stalking.

(B) A copy of a protective order or other evidence from a court or attorney that the individual appeared in or is preparing for a civil or criminal proceeding related to domestic violence, harassment, sexual assault or stalking.

(C) Documentation from an attorney, law enforcement officer, health care professional, licensed mental health professional or counselor, member of the clergy or victim services provider that the individual was or is undergoing treatment or counseling, obtaining services or relocating as a result of domestic violence, harassment, sexual assault or stalking.

(D) All records and information kept by an employer regarding a reasonable safety accommodation made for an individual are confidential and may not be released without the express permission of the individual, unless otherwise required by law.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.290, OL 2011 c. 687

Hist.: BLI 9-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-009-0325

Purpose and Scope

(1) The Civil Rights Division of the Bureau of Labor and Industries (“division”) enforces ORS 659A.270 to 659A.285 which require leave for victims of domestic violence, harassment, sexual assault or stalking. These rules implement and interpret ORS 659A.270 to 659A285.

(2) The division enforces ORS 659A.290, requiring employers to provide safety accommodation for, and prohibiting discrimination or retaliation against, victims of domestic violence, harassment, sexual assault or stalking. The rules implementing and interpreting ORS 659A.290 are found at OAR 839-005-0160 and 839-005-0170.

(3) ORS 659A.190 to 659A.198 provide for leave for crime victims to attend criminal proceedings. The division does not enforce ORS 659A.190 to 659A.198.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.270 - 659A.285, OL 2011 c. 687

Hist.: BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-009-0330

Prohibited Discrimination

It is an unlawful employment practice for a covered employer to deny leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking to an eligible employee or to discharge, threaten to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment because the employee inquires about, applies for, or takes leave as provided under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.270 – 659A.285, OL 2011 c. 687

Hist.: BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-009-0340

Definitions

(1) “Covered employer” means an employer who employs 6 or more individuals in the state of Oregon for each working day during each of 20 or more calendar workweeks in the calendar year in which an eligible employee takes leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking or in the calendar year immediately preceding the year in which an eligible employee takes the leave.

(2) “Eligible employee” means an employee who is employed in the state of Oregon on the date leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking begins; and

(a) Worked an average of more than 25 hours per week for a covered employer for at least 180 calendar days immediately preceding the date the employee takes the leave.

(A) In determining that an employee has been employed for the preceding 180 calendar days, the employer must count the number of days an employee is maintained on the payroll, including all time paid or unpaid. If an employee continues to be employed by a successor in interest to the original employer, the number of days worked are counted as continuous employment by a single employer.

(B) In determining more than 25 hours average per week, the employer must count actual hours worked using guidelines set out pursuant to the regulations under the Fair Labor Standards Act (See 29 CFR Part 785).

(C) For the purpose of qualifying as an eligible employee, the employee need not perform work solely in the state of Oregon.

(D) Eligibility of employees reemployed following a period of uniformed service:

(i) The federal Uniformed Services Employment and Reemployment Act, 38 USC 43 (USERRA) provides that an employee reemployed following a period of uniformed service is entitled to the seniority and seniority-based rights and benefits that the employee had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if the employee had remained continuously employed. Federal Department of Labor regulation 20 CFR 1002.210 provides that in determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. The rights and benefits protected by USERRA upon reemployment include those provided by the employer and those required by statute. Under USERRA, a reemployed service member would be eligible for leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking if the number of days and the number of hours of work for which the service member was employed by the civilian employer, together with the number of days and number of hours of work for which the service member would have been employed by the civilian employer during the period of uniformed service, meet the eligibility requirements of these rules. In the event that a service member is denied leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking for failing to satisfy the days and hours of work requirement due to absence from employment necessitated by uniformed service, the service member may have a cause of action under USERRA but not under these statutes.

(ii) ORS 659A.082–659A.088 provides that an employee reemployed following a period of uniformed service is entitled to the seniority and seniority-based rights and benefits that the employee had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if the employee had remained continuously employed. In determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. If a reemployed service member was eligible for leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking prior to the date uniformed service began, the leave eligibility requirements are considered met.

(b) Is a victim of domestic violence, harassment, sexual assault or stalking or is the parent or guardian of a minor child or dependent who is the victim of domestic violence, harassment, sexual assault or stalking.

(3) “Dependent” means an adult dependent child substantially limited by a physical or mental impairment as defined by ORS 659A.104(1)(a), (3), and (4) or any adult of whom the employee has guardianship.

(4) “Foster child” means a child, not adopted, but being reared as a result of legal process, by a person other than the child’s natural parent.

(5) “Health care professional” means a physician or other health care practitioner who is licensed, certified or otherwise authorized by law to provide health care services.

(6) “Immediate family” means spouse, domestic partner, father, mother, sibling, child, stepchild, grandparent, or any person who had the same primary residence as the victim at the time of the domestic violence, harassment, sexual assault or stalking.

(7) “In loco parentis” means in the place of a parent, having financial or day-to-day responsibility for the care of a child. A legal or biological relationship is not required.

(8) “Intermittent leave” means leave taken in multiple blocks of time and/or requiring an altered or reduced work schedule.

(9) “Law enforcement officer” means all police, corrections, and parole and probation officers who are included in the Public Safety Standards and Training Act as described in ORS 181.610 and 181.651.

(10) “Minor child,” means a biological, adopted, foster or stepchild, or a child with whom the employee is or was in a relationship of in loco parentis. It also includes the biological, adopted, foster or stepchild of an employee’s registered domestic partner. The minor child must be under the age of 18.

(11) “Parent or guardian” means a custodial parent, non-custodial parent, adoptive parent, foster parent, biological parent or an employee who is or was in relationship of in loco parentis with a minor child or a dependent with whom the employee is or was in a relationship of in loco parentis.

(12) “Protective order” means an order authorized by ORS 30.866, 107.095(1)(c), 107.700 to 107.735, 124.005 to 124.040 or 163.730 to 163.750 or any other order that restrains an individual from contact with an eligible employee or the employee’s minor child or dependent.

(13) “Reasonable leave” means any amount of leave that does not cause an undue hardship on a covered employer’s business.

(14) “Victim of domestic violence” means:

(a) An individual who has been threatened with abuse or who is a victim of abuse, as defined in ORS 107.705; or

(b) Any other person who has suffered financial, social, psychological or physical harm as a result of domestic violence committed against the victim as defined in (a), including a member of the victim’s immediate family.

(c) In no event will the alleged perpetrator of the domestic violence be considered a victim for the purposes of these rules.

(15) “Victim of harassment” means an individual against whom harassment has been committed as described in Oregon’s criminal code at ORS 166.065.

(16) “Victims services provider” means a prosecutor-based victim assistance program or a nonprofit program offering safety planning, counseling, support or advocacy related to domestic violence, harassment, sexual assault or stalking.

(17) “Victim of sexual assault” means:

(a) An individual against whom a sexual offense has been threatened or committed as described in ORS 163.305 to 163.467 or 163.525; or

(b) Any other person who has suffered financial, social, psychological or physical harm as a result of a sexual assault committed against the victim as defined in (a), including a member of the victim’s immediate family.

(c) In no event will the alleged perpetrator of the sexual offense be considered a victim for the purposes of these rules.

(18) “Victim of stalking” means:

(a) An individual against whom stalking has been threatened or committed as described in ORS 163.732; or

(b) Any other person who has suffered financial, social, psychological or physical harm as a result of a stalking committed against the victim as defined in (a), including a member of the victim’s immediate family; or

(c) An individual who has obtained a court’s stalking protective order or a temporary court’s stalking protective order under ORS 30.866.

(c) In no event will the alleged perpetrator of the stalking be considered a victim for the purposes of these rules.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.270 - 659A.285, OL 2011 c. 687

Hist.: BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-009-0345

Purposes for Taking Leave

A covered employer must allow an eligible employee to take reasonable leave from employment for any of the following purposes:

(1) To seek legal or law enforcement assistance or remedies to ensure the health and safety of the eligible employee or the eligible employee’s minor child or dependent, including preparing for and participating in protective order proceedings or other civil or criminal legal proceedings related to domestic violence, harassment, sexual assault or stalking.

(2) To seek medical treatment for or to recover from injuries caused by domestic violence or harassment or sexual assault or stalking of the eligible employee or the eligible employee’s minor child or dependent.

(3) To obtain, or to assist the eligible employee’s minor child or dependent in obtaining counseling from a licensed mental health professional related to an experience of domestic violence, harassment, sexual assault or stalking.

(4) To obtain services from a victim services provider for the eligible employee or the eligible employee’s minor child or dependent.

(5) To relocate or take steps to secure an existing home to ensure the health and safety of the eligible employee or the eligible employee’s minor child or dependent. Relocate includes:

(a) Transition periods spent moving the eligible employee or the eligible employee’s minor child or dependent from one home or facility to another, including but not limited to time to pack and make security or other arrangements for such transitions related to domestic violence, harassment, sexual assault or stalking;

(b) Transportation or other assistance required for an eligible employee or the eligible employee’s minor child or dependent related to the domestic violence, harassment, sexual assault or stalking.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.270 - 659A.285, OL 2011 c. 687

Hist.: BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-009-0355

Undue Hardship

Undue Hardship means a significant difficulty and expense to a covered employer’s business and includes consideration of the size of the covered employer’s business and the covered employer’s critical need for the eligible employee. Other factors to consider in determining whether granting leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking will cause an undue hardship on a covered employer’s business include, but are not limited to:

(1) The length of leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking requested and the relative cost to a covered employer’s business;

(2) The overall financial resources of the covered employer’s facility or facilities, the number of persons employed at the facility and the effect on expenses and resources or other impacts on the operation of the facility if the leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking were granted;

(3) The overall financial resources of the covered employer, the overall size of the business of the covered employer with respect to the number of its employees and the number, type and location of the covered employer’s facilities;

(4) The type of operations conducted by the covered employer, including the composition, structure and functions of the covered employer’s workforce.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.270 - 659A.285, OL 2011 c. 687

Hist.: BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-009-0360

Intermittent Leave and Alternate Duty

(1) An eligible employee may take leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking in multiple blocks of time and/or requiring an altered or reduced work schedule.

(2) A covered employer may transfer an employee on intermittent leave or a reduced work schedule into an alternate position with the same or different duties to accommodate the leave, provided the following exist:

(a) The eligible employee accepts the transfer position voluntarily and without coercion;

(b) The transfer is temporary, lasts no longer than necessary to accommodate the leave and has equivalent pay and benefits;

(c) Transfer to an alternate position is used only when there is no other reasonable option available that would allow the eligible employee to use intermittent leave or reduced work schedule; and

(d) The transfer is not used to discourage the eligible employee from taking intermittent or reduced work schedule leave, or to create a hardship for the eligible employee.

(3) An eligible employee transferred to an alternate position for the purpose of a reduced work schedule under section (2)(a) through (d) of this rule must be returned to the eligible employee’s former position when the eligible employee notifies the employer that the eligible employee is ready to return to the former position.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.270 - 659A.285, OL 2011 c. 687

Hist.: BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-009-0362

Notice by Employee

(1) An eligible employee seeking leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking will give the covered employer reasonable advance notice of the employee’s intention to take leave unless giving the advance notice is not feasible.

(2) When taking leave in an unanticipated or emergency situation, an eligible employee must give oral or written notice as soon as is practicable. This notice may be given by any other person on behalf of an eligible employee taking unanticipated leave.

(3) An eligible employee able to give advance notice of the need to take leave must follow the covered employer’s known, reasonable and customary procedures for requesting any kind of leave;

(4) The covered employer may require the eligible employee to provide certification that:

(a) The eligible employee or the eligible employee’s minor child or dependent is a victim of domestic violence, harassment, sexual assault or stalking as defined in OAR 839-009-0340(14), (15), (16) and (17); and

(b) The leave taken is for one of the purposes identified in OAR 839-009-0345.

(5) Any of the following constitutes sufficient certification:

(a) A copy of a police report indicating that the eligible employee or the eligible employee’s minor child or dependent was a victim or alleged victim of domestic violence, harassment, sexual assault or stalking as defined in OAR 839-009-0340(14), (15), (16) and (17); or

(b) A copy of a protective order or other evidence from a court or attorney that the eligible employee appeared in or is preparing for a civil or criminal proceeding related to domestic violence, harassment, sexual assault or stalking as defined in OAR 839-009-0340(14), (15), (16) and (17); or

(c) Documentation from an attorney, law enforcement officer, health care professional, licensed mental health professional or counselor, member of the clergy or victim services provider that the eligible employee or the eligible employee’s minor child or dependent is undergoing treatment or counseling, obtaining services or relocating as a result of domestic violence, harassment, sexual assault or stalking as defined in OAR 839-009-0340(14), (15), (16) and (17).

(6) Consistent with ORS 659A.306, the covered employer must pay the cost of any medical verification related to OAR 839-009-0345(1)(b) and (c) not covered by insurance or other benefit plan.

(7) The eligible employee will provide the certification within a reasonable time after receiving the covered employer’s written request for the certification.

(8) The covered employer may provisionally designate an absence as leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking until sufficient certification is received, if requested, to make a determination.

(9) An eligible employee on leave who needs to take more leave than originally authorized should give the covered employer notice as soon as is practicable prior to the end of the authorized leave, following the covered employer’s known, reasonable and customary procedures for requesting any kind of leave. However, when an authorized period of leave has ended and an eligible employee does not return to work, a covered employer having reason to believe the continuing absence may qualify as leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking may request additional information. If the covered employer requests additional information the eligible employee will provide the requested information as soon as is practicable. The covered employer may not treat a continuing absence as unauthorized unless requested information is not provided or does not support leave qualification.

(10) All records and information kept by a covered employer regarding an eligible employee’s leave under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking, including the fact that the eligible employee has requested or obtained such leave, are confidential and may not be released without the express permission of the eligible employee, unless otherwise required by law.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.270 - 659A.285, OL 2011 c. 687

Hist.: BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

839-009-0365

Enforcement and Denial of leave under ORS 659A.270 to 659A.285 for Victims of Domestic Violence, Harassment, Sexual Assault or Stalking

(1) A covered employer’s duties and obligations under ORS 659A.270 to 659A.285 extend to a successor employer as defined in 29 CFR 825.107.

(2) It is an unlawful employment practice for a covered employer to count leave under ORS 659A.270 to 659A.285 against an employee in determining the employee’s compliance with attendance policies or to count such leave against an employee when determining eligibility for bonuses based on attendance. An employee is entitled to continue eligibility for a bonus based on attendance upon return from leave under ORS 659A.270 to 659A.285 and may not be disqualified from the bonus as a result of taking leave.

(3) Pursuant to ORS 659A.030(1)(g), it is an unlawful employment practice for any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts in violation of ORS 659A.270 to 659A.285 or to attempt to do so.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.270 - 659A.285, OL 2011 c. 687

Hist.: BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12

 

Rule Caption: New and amended rule language to conform to and implement statutes relating to veterans’ employment.

Adm. Order No.: BLI 15-2011

Filed with Sec. of State: 12-30-2011

Certified to be Effective: 1-1-12

Notice Publication Date: 10-1-2011

Rules Amended: 839-006-0440, 839-006-0450, 839-006-0455, 839-006-0470, 839-006-0480

Subject: The new rules would implement HB 2241, which expands the definition of “uniformed service” for purpose of employment protections to match federal definitions.

      The new rules would implement HB 3207, which requires public employers to interview each veteran who applies for a civil service position or eligibility list and who has obtained through military
education or experience skills that substantially relate to the civil service position.

      The new rules would implement SB 72, which clarifies the
definition of “disabled veteran” for purposes of statutes relating to veterans’ preference in public employment.

      The new rules would implement SB 277, which clarifies that a veteran or disabled veteran who applies for a vacant civil position or who seeks promotion to a civil service position with a higher maximum salary rate is entitled to veterans’ preference.

Rules Coordinator: Marcia Ohlemiller—(971) 673-0784

839-006-0440

Definitions

(1) “Active duty” does not include attendance at a school under military orders, except schooling incident to an active enlistment or a regular tour of duty, or normal military training as a reserve officer or member of an organized reserve or a National Guard unit.

(2) “Armed Forces” means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. (Title 38 USC Part I Chapter 1 Section 101). Reserve components mean:

(a) The Army Reserve;

(b) The Navy Reserve;

(c) The Marine Corps Reserve;

(d) The Air force Reserve;

(e) The Coast Guard Reserve;

(f) The Army National Guard of the United States; and

(g) The Air National Guard of the United States.

(3) “Civil service position” means any position for which a hiring or promotion decision is made or required to be made based on the results of a merit based, competitive process that includes, but is not limited to, consideration of an applicant’s or employee’s relative ability, knowledge, experience and other skills. A “civil service” position need not be labeled a “civil service position.”

(4) “Combat zone” means an area designated by the President of the United States by executive order in which, on the dates designated by executive order, the Armed Forces of the United States are or have engaged in combat.

(5) “Disabled veteran” means a person who has a disability rating from the United States Department of Veterans Affairs, a person whose discharge or release from active duty was for a disability incurred or aggravated in the line of duty or a person who was awarded the Purple Heart for wounds received in combat.

(6) “Eligibility list” means a list of ranked eligible candidates for a civil service position who have become eligible for the position through a test or series of tests and who will be considered for the civil service position in ranked order. Rankings of eligible candidates identified as tiers, bands or other names function as eligibility lists for purposes of these rules.

(7) “Military leave” means any period of time for which a person is absent from a permanent civil service position for the performance of active duty in the Armed Forces of the United States.

(8) “Promotion” means any position with a higher maximum salary rate.

(9) “Public employer” includes a public body as defined in ORS 174.109, and any person authorized to act on behalf of the public body, with respect to control, management or supervision of any employee. “Public employer” includes but is not limited to:

(a) Employers in local governments;

(b) Employers in a public corporation created under a statute of this state and specifically designated as a public corporation; and

(c) Employers in any public body that is created by statute, ordinance or resolution that is not part of state government or local government.

(10) “Transferable skill” means a skill that a veteran has obtained through military education or experience that substantially relates, directly or indirectly, to the civil service position for which the veteran is applying.

(11) “Veteran” means a person who:

(a) Served on active duty with the Armed Forces of the United States:

(A) For a period of more than 90 consecutive days beginning on or before January 31, 1955, and was discharged or released under honorable conditions;

(B) For a period of more than 178 consecutive days beginning after January 31, 1955, and was discharged or released from active duty under honorable conditions;

(C) For 178 days or less and was discharged or released from active duty under honorable conditions because of a service-connected disability;

(D) For 178 days or less and was discharged or released from active duty under honorable conditions and has a disability rating from the United States Department of Veterans Affairs; or

(E) For at least one day in a combat zone and was discharged or released from active duty under honorable conditions;

(b) Received a combat or campaign ribbon or an expeditionary medal for service in the Armed Forces of the United States and was discharged or released from active duty under honorable conditions; or

(c) Is receiving a nonservice-connected pension from the United States Department of Veterans Affairs.

(d) For questions regarding military discharge, consult the Oregon Department of Veterans’ Affairs website at <http://www.oregon.gov/ODVA/docs/PDFs/Criminal_Justice_Portal/Military_discharge.pdf?ga=t>.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 408.225, 408.230, 408.235, OL 2011, Ch 484, OL 2011, Ch 29

Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12

839-006-0450

Applying the Employment Preference

(1) A public employer shall grant a preference to a veteran or disabled veteran who applies for a vacant civil service position or who seeks promotion to a civil service position with a higher maximum salary rate and who:

(a) Successfully completes an initial application screening or an application examination for the position; or

(b) Successfully completes a civil service test the employer administers to establish eligibility for the position; and

(c) Meets the minimum qualifications and any special qualifications for the position.

(2) At each stage of the application process a public employer will grant a preference to a veteran or disabled veteran who successfully completes an initial application screening or an application examination or a civil service test the public employer administers to establish eligibility for a vacant civil service position.

(3) For an initial application screening used to develop a list of persons for interviews, the public employer will add five preference points to a veteran’s score and ten preference points to a disabled veteran’s score.

(4) For an application examination, given after the initial application screening, that results in a score, the public employer will add five preference points to a veteran’s and ten preference points to a disabled veteran’s total combined examination score without allocating the points to any single feature or part of the examination.

(5) If a public employer uses an application examination that consists of an evaluation method of ranking an applicant that does not result in a score, the public employer will devise and apply methods by which the public employer gives special consideration in the public employer’s hiring decision to veterans and disabled veterans.

(6) When an interview is a component of the selection process for a civil service position or for an eligibility list for a civil service position, a public employer shall interview each veteran:

(a) Whom the public employer determines meets the minimum qualifications and special qualifications for the civil service position or eligibility list; and

(b) Who submits application materials that the public employer determines show sufficient evidence that the veteran has the transferable skills required and requested by the public employer for the civil service position or eligibility list.

(7) A public employer is not required to comply with subsection (6) of this rule if the employer’s practice is to generate an eligibility list without conducting interviews of possible candidates.

(8) A public employer may consult with the Oregon Military Department and the Department of Veterans’ Affairs to determine whether certain military education or experience produces a transferable skill. To evaluate a veteran’s transferable skills from a transcript of military training, a public employer may consult the American Council on Education’s website, “A Guide to Educational Experiences in the Military,” at <http://militaryguides.acenet.edu/CourseSearch.asp>.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 408.230, 408.235, OL 2011, Ch 484

Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12

839-006-0455

Employment Preference for Promotions

A public employer will grant a preference to a person seeking promotion in the manner described at OAR 839-006-0450.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 408.225, 408.230, 408.235, OL 2011, Ch 484

Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12

839-006-0470

Enforcement

The Civil Rights Division of the Bureau of Labor and Industries enforces the provisions of ORS 408.230. A person claiming a violation of 408.230 may file a verified written complaint with the Civil Rights Division in accordance with 659A.820.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 408.230, 408.235, 659A.820, OL 2011, Ch 484

Hist.: BLI 37-2008, f. 11-6-08, cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12

839-006-0480

Discrimination Based on Uniformed Service

(1) For purposes of this rule:

(a) “Service” means the performance of duty on a voluntary or involuntary basis in a uniformed service that may involve active duty, active duty for training, initial active duty for training, inactive duty for training, full time duty in the National Guard, funeral honors duty or an examination to determine fitness for service in a uniformed service; and

(b) “Uniformed service” means the Armed Forces of the United States, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training or full-time National Guard duty, the commissioned corps of the United States Public Health Service and any other category of persons designated by the President of the United States in a time of war or national emergency.

(2) It is an unlawful employment practice for an employer to discriminate against a person because of the person’s service in a uniformed service by:

(a) Denying a public officer or public employee the status or rights provided by ORS 408.240 to 408.240 and 408.290, if the employer is a public body.

(b) Discharging, expelling, disciplining, threatening or otherwise retaliating against the person for exercising or attempting to exercise the status or rights provided by this section.

(c) Denying any of the following because a person is a member of, applies to be a member of, performs, has performed, applies to perform or has an obligation to perform service in a uniformed service:

(A) Initial employment;

(B) Reemployment following a leave from employment taken by reason of service in a uniformed service;

(C) Retention in employment;

(D) Promotion; or

(E) Any other term, condition or privilege of employment, including but not limited to compensation.

(3) An employer does not commit an unlawful employment practice under this rule if the employer acted based on a bona fide occupational requirement reasonably necessary to the normal operation of the employer’s business and the employer’s actions could not be avoided by making a reasonable accommodation of the person’s service in a uniformed service.

(4) The federal Uniformed Services Employment and Reemployment Act, 38 USC 43 (USERRA) provides that an employee reemployed following a period of uniformed service is entitled to the seniority and seniority-based rights and benefits that the employee had on the date the uniformed service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if the employee had remained continuously employed. Federal Department of Labor regulation 20 CFR 1002.210 provides that in determining entitlement to seniority and seniority-based rights and benefits, the period of absence from employment due to or necessitated by uniformed service is not considered a break in employment. The rights and benefits protected by USERRA upon reemployment include those provided by the employer and those required by statute.

(5) To the extent possible, this rule shall be construed in a manner that is consistent with similar provisions of the federal Uniformed Services Employment and Reemployment Rights Act of 1994, 38 USC 43.

(6) Protections for spouses and domestic partners of uniformed service members may be found under the Oregon Family Military Leave Act, ORS 659A.090 to 659A.099 and OAR 839-009-0370 - 839-009-0460.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.082, OL 2011, Ch 18

Hist.: BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12

 

Rule Caption: Amendments clarifying filing deadlines, default relief and ex parte definition.

Adm. Order No.: BLI 16-2011

Filed with Sec. of State: 12-30-2011

Certified to be Effective: 1-1-12

Notice Publication Date: 11-1-2011

Rules Amended: 839-050-0040, 839-050-0310, 839-050-0340

Subject: The amendments add a reference to state furlough days to the rule on filing documents, clarify the relief from default rule and add the definition of ex parte to the ex parte rule.

Rules Coordinator: Marcia Ohlemiller—(971) 673-0784

839-050-0040

Filing of Documents with the Hearings Unit; Calculation of Time and Filing Dates

(1) Except as modified by statute or enlarged by these rules, by order of the commissioner, or by decision of the administrative law judge, a document is filed with the Hearings Unit either on the date the Hearings Unit receives the document, or on the date postmarked on the properly addressed document, whichever is earlier.

(2) Documents are not to be filed by facsimile transmission except with the prior approval of the administrative law judge. The administrative law judge may require the participant filing a document by facsimile transmission to also send the Hearings Unit a copy of the document by mail or personal delivery and may require the participant to serve the other participants with the document by facsimile transmission in addition to mail or personal delivery.

(3) The computation of any period of time will not include the day from which the designated period begins to run. The computation will include the last day of this period unless it is a Saturday, Sunday, furlough day officially recognized by the State of Oregon or holiday officially recognized by the State of Oregon or the federal government. If the last day of the time period is a Saturday, Sunday, furlough day or holiday, the period will run until 5 p.m. of the next day that is not a Saturday, Sunday, furlough day or holiday.

(4) All time periods described in these rules are measured in calendar days.

Stat. Auth.: ORS 183 & 651.060(4)

Stats. Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850

Hist.: BL 8-1986, f. & ef. 9-2-86; BL 10-1988, f. & cert. ef. 6-16-88; BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93; BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0035; BL 12-1996, f. & cert. ef. 12-10-96; BLI 2-2000, f. & cert. ef. 1-27-00; BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04; BLI 16-2011, f. 12-30-11, cert. ef. 1-1-12

839-050-0310

Ex Parte Communications

(1) An ex parte communication is an oral or written communication to an agency decision maker or the presiding officer not made in the presence of all parties to the hearing, concerning a fact in issue in the proceeding, but does not include communication from agency staff or counsel about facts in the record.

(2) The administrative law judge will place on the record a statement of the substance of any ex parte communication on a fact in issue made to the administrative law judge while the proceeding is pending. Participants will be given notice of such ex parte communication and of their right to rebut the substance of the ex parte communication on the record.

Stat. Auth.: ORS 183 & 651.060(4)

Stats. Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850

Hist.: BL 8-1986, f. & ef. 9-2-86; BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93; BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0101; BL 12-1996, f. & cert. ef. 12-10-96; BLI 2-2000, f. & cert. ef. 1-27-00; BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04; BLI 16-2011, f. 12-30-11, cert. ef. 1-1-12

839-050-0340

Relief from Default

(1) A party seeking relief from default must file a written request for relief from default within 10 days after any of the following:

(a) A Final Order by default has been issued by the administrator of the Wage and Hour Division;

(b) A notice of default has been issued; or

(c) A party has failed to appear at a hearing.

(2) Relief from default may be granted when the party’s written request for relief from default shows good cause for the party’s action or inaction that caused the default. The party’s request should state any facts supporting the party’s claim of good cause and include any documents that support the party’s claim.

(3) The computation of the 10-day deadline for filing begins on the day after one of the events listed in (1)(a), (b) or (c) of this rule occurs. If the 10th day is a Saturday, Sunday, furlough day officially recognized by the State of Oregon, or holiday officially recognized by the State of Oregon or the federal government, the 10-day deadline will expire at 5 p.m. of the next day that is not a Saturday, Sunday, furlough day or holiday. A request for relief from default is filed on the date that it is postmarked or received, whichever is earlier.

(4) A request for relief from default made after a Final Order by default has been issued by the administrator of the Wage and Hour Division must be addressed to the administrator of the Wage and Hour Division and ruled upon by an administrative law judge. When the administrator of the Wage and Hour Division receives a request for relief from default, the administrator will forward that request to the Hearings Unit for assignment to an administrative law judge, along with a copy of the Final Order by default. The administrator may also file a response to the request for relief from default. Any response the administrator files will be served on the requesting party.

(5) A request for relief from default made after a notice of default has been issued or after the party has failed to appear at a hearing must be addressed to and ruled upon by the administrative law judge.

Stat. Auth.: ORS 183 & 651.060(4)

Stats. Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850

Hist.: BL 8-1986, f. & ef. 9-2-86; BL 4-1987, f. 2-11-87, ef. 2-13-87; BL 10-1988, f. & cert. ef. 6-16-88; BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93; BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0190; BL 12-1996, f. & cert. ef. 12-10-96; BLI 2-2000, f. & cert. ef. 1-27-00; BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04; BLI 16-2011, f. 12-30-11, cert. ef. 1-1-12

 

Rule Caption: Correct grammar and conform administrative rules for registered apprenticeship programs to federal requirements.

Adm. Order No.: BLI 1-2012

Filed with Sec. of State: 1-3-2012

Certified to be Effective: 1-3-12

Notice Publication Date: 12-1-2011

Rules Amended: 839-011-0020, 839-011-0050, 839-011-0051, 839-011-0060, 839-011-0070, 839-011-0072, 839-011-0074, 839-011-0082, 839-011-0084, 839-011-0088, 839-011-0090, 839-011-0140, 839-011-0141, 839-011-0142, 839-011-0143, 839-011-0145, 839-011-0162, 839-011-0175, 839-011-0265, 839-011-0270, 839-011-0290, 839-011-0310, 839-011-0320, 839-011-0334

Subject: Pursuant to ORS 660.010–660.210, the Oregon Bureau of Labor and Industries (BOLI) administers registered apprenticeship programs through its Apprenticeship and Training Division (ATD). States that administer registered apprenticeship programs do so under an agreement with the United States Department of Labor, Employment and Training Administration (USDOL, ETA). Recent changes in federal apprenticeship regulations have necessitated changes to ORS 660.010–660.210. The proposed amendments bring Oregon into conformance with federal requirements. Corrections in grammar and usage were also incorporated into these amendments. The
proposed amendment harmonizes definitions in these rules with
federal definitions and requirements

Rules Coordinator: Marcia Ohlemiller—(971) 673-0784

839-011-0020

Date and Location of Council Meetings

The Council shall hold at least four regular public meetings each year as required by ORS 660.120(2)(g). The date of the next regular Council meeting will be designated by the Chair and announced at each Council meeting. Meetings may be scheduled at any location within the state of Oregon selected by the Chair.

Stat. Auth.: ORS 660

Stats. Implemented: ORS 660.120(2)(g)

Hist.: BL 4-1985, f. & ef. 8-8-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0050

Certificate of Meritorious Service

Upon the recommendation of a local committee or the motion of a Council member, the Council may award a certificate of meritorious service to any individual who has devoted a minimum of three years of service to a registered apprenticeship program.

Stat. Auth.: ORS 660

Stats. Implemented: ORS 660.120

Hist.: BL 4-1985, f. & ef. 8-8-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0051

Delegation of Authority by Council

(1) The Chair and Director, with the approval of the Chair, may act on behalf of the Council for federal purposes and in all cases where immediate action is deemed necessary by the Chair and Director. All such actions shall be placed on the agenda for the next regular Council meeting for Council approval or ratification.

(2) All matters pertaining to the approval or deregistration of apprenticeship committees, standards, program sponsors, employers, training agents or apprentices must be ratified by the Council at its next meeting.

(3) Any standards referred back to local committees by the Council for revision may be approved by the Director when revised according to Council action.

Stat. Auth.: ORS 660.120(3)

Stats. Implemented: ORS 660.120, 660.210 & 660.170

Hist.: BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0060

Public Records Request

(1) The Bureau will make available any record requested by any person pursuant to ORS 192.420, provided that the request is in writing and the record requested is not exempt from disclosure under the provisions of ORS chapter 192 or other applicable law. A reasonable time shall be allowed for the Bureau to locate and retrieve information requested.

(2) The Bureau may charge a fee reasonably calculated to reimburse the Bureau for costs of providing and conveying copies of public records. When the fee is estimated to exceed $25.00 per public records request, the Bureau will provide the requestor with written notice of the estimated amount of the fee and require written confirmation that the requestor intends to proceed with the request.

(3) As used in these rules:

(a) “Page” refers to paper either 8.5 x 11 inches or 8.5 x 14 inches. Staff will not reduce size or otherwise manipulate records to fit additional records on a page, unless staff concludes that it will be the most effective use of their time. A double-sided copy consists of two pages. Because of the increased staff time involved in double-sided copying, there is no reduction in the per page fee.

(b) “Normal and reasonable” staff time is 10 minutes or less per request.

(4) Unless otherwise specified in OAR Chapter 839, the Bureau will charge a minimum fee of $5.00 per request for records located in the Bureau’s office facilities or $15.00 per request for records located offsite, plus $.20 per page, as reimbursement for requests requiring normal and reasonable staff time.

(5) If the time required exceeds normal and reasonable staff time, the actual costs of staff or supervisory time necessary for locating, reviewing, separating, photocopying, certifying and preparing records for mailing or other delivery will be charged for each hour or fraction thereof as follows:

(a) Supervisor/Administrator — $39.00 per hour;

(b) Investigator/Compliance Specialist/Consultant — $32.00 per hour;

(c) Clerical — $23.00 per hour.

(6) In addition to staff time, the Bureau will charge for supplies and use of equipment for producing records as follows:

(a) Twenty cents per page for photocopies;

(b) Actual cost for postage or other delivery costs;

(c) Fifty cents per page for copies by facsimile (fax) machine with a limit of 20 pages.

(7) The Bureau will charge $41.00 per hour, with a $12.00 minimum, for public record requests that require electronic reproduction. Charges include, but are not limited to, staff time spent locating, downloading, formatting, copying and transferring records to media, and any charges by a third party vendor.

(8) The Bureau will provide blank reproduction media at the following rates:

(a) Diskettes, 3.5 inch, $1.00 each. (Due to the possibility of computer viruses, the Bureau will not permit requesters to provide diskettes;

(b) Video Cassettes, two hours, $3.00 each;

(c) Audio Cassettes, $2.00 each;

(d) Compact disks, 1.5 hours: $1.50 (Due to the possibility of computer viruses, the Bureau will not permit requesters to provide compact disks.).

(9) The costs of any necessary Attorney General review of requested public records will be charged to the requester at the rate billed by the Department of Justice to the Bureau.

(10) The Bureau may require that all fees assessed pursuant to this rule be paid in cash, in correct change, prior to furnishing any copies, material, or information.

(11) Where a request is made to inspect records, the Bureau may impose restrictions regarding the location where the information requested will be made available for inspection. Where the Bureau allows the person requesting the information to search or inspect Bureau records, the Bureau may, as it deems necessary for the protection of the records, assign an employee to supervise the search. The charge for this service will be in accordance with section (5) of this rule.

(12) The Bureau may enter into agreements to provide routine, periodic reports in a consistent format for a negotiated price.

(13) The commissioner may waive the requirements to pay the charges described in this rule, or any part thereof after determining that the waiver is in the public interest and primarily benefits the general public. In determining whether sufficient public interest is demonstrated, relevant factors include:

(a) The requester’s identity;

(b) The intended use of the information;

(c) The character of the information;

(d) Whether the requested information is already in the public domain;

(e) Whether the requester can demonstrate the ability to disseminate the information to the public; and

(f) The requestor’s inability to pay, although this alone is not a sufficient basis to waive a fee.

Stat. Auth.: ORS 344.745(1) & 660.120(1)

Stats. Implemented: ORS 344.745

Hist.: BL 4-1985, f. & ef. 8-8-85; BL 1-1991, f. & cert. ef. 1-23-91; BL 7-1993, f. & cert. ef. 7-12-93; BL 6-1994, f. & cert. ef. 10-10-94; BL 7-1996, f. & cert. ef. 7-22-96; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0070

Definitions

(1) “Division” means the Apprenticeship and Training Division of the Bureau.

(2) “Employee” means any person employed or active in an applicable trade.

(3) “Local Committee” means any registered joint or trades apprenticeship or training committee approved by the Council.

(4) “State minimum guideline standards” means industry/trade benchmarks developed by a Council approved state committee and approved by the Council that represent the fundamental requirements necessary for entry into and completion of specific Council approved apprenticeship or training programs.

(5) “Registered apprenticeship program” means a local committee approved by the Council to operate an apprenticeship or training program in a specific occupation.

(6) “Registration of an Apprenticeship Agreement” means the acceptance and recording of an apprentice or trainee agreement by the Division on behalf of the Council. Registration is evidence of the participation of the apprentice or trainee in a registered program.

(7) “Standards” means a written agreement submitted by a local committee and approved by the Council, which sets forth a plan containing all terms and conditions for the qualification, employment and training of apprentices or trainees as set forth in ORS 660.126 and 660.137.

(8) “Trainee” means any individual registered to a registered training program. For the purposes of these rules, all apprentice requirements apply to trainees unless otherwise noted.

(9) “Training agent” means an employer approved by a local committee to train apprentices and registered with the Division.

(10) “Training program” means any registered program of 2,000 on-the-job training hours or less. For the purposes of these rules, all apprenticeship requirements apply to training programs unless otherwise noted.

(11) “Traveling Training Agent” is an approved training agent working outside the geographic area where its primary place of business is located and registered by the Division.

(12) “Journeyworker” is a fully skilled practitioner who can work independently in a given trade or occupation in accordance with ORS 660.010(4). Generally, a skilled crafts person has a minimum of four years of verifiable trade-specific experience or has completed a state certified apprenticeship program in the applicable trade and holds a license where required.

(13) “Completion rate” means the percentage of an apprenticeship cohort who receive a certificate of apprenticeship completion within 1 year of the projected completion date. An apprenticeship cohort is the group of individual apprentices registered to a specific program during a 1 year time frame, except that a cohort does not include the apprentices whose apprenticeship agreement has been cancelled during the probationary period. The projected completion date is the number of years determined by the greater of the following measures:

(a) The number of required on-the-job training hours needed for completion of the program divided by 2000 and rounded up to the nearest whole number; or

(b) The number of years of required related training prescribed in the applicable standard.

(14) “Job Site” means:

(a) For standards in construction trades, the area covered by an approved building permit, plan of development or contract number, or contractual agreement for new construction or renovation;

(b) For standards in non-construction trades, the physical area within the wall that services are offered or the location that is identified on the license by the licensing board and/or other local government or a single job or group of jobs on the same circuit or within the same general area.

Stat. Auth.: ORS 660.120(3)

Stats. Implemented: ORS 660.120(1)

Hist.: BL 6-1985, f. & ef. 10-15-85; BL 7-1991, f. & cert. ef. 8-15-91 (and corrected 2-3-92); BL 6-1994, f. & cert. ef. 10-10-94; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0072

Formation of Joint Committees

(1) Any person or group interested in forming a local joint committee may give written notice to the Division. Local committees in building and construction trades occupations may only be approved as group programs serving multiple employers.

(2) The interested party or group shall establish a date for an organizational meeting and provide the Division with written notice of the date, time and location of the meeting at least 5 (five) working days in advance of the meeting. Division staff may attend organizational meetings in an informational role.

(3) At the organizational meeting participants, excluding Division staff, will:

(a) Adopt Roberts Rules of Order;

(b) Specify the committee name, its geographical jurisdiction, and the occupation(s) for which it will train;

(c) Nominate committee members and submit their names to the Council pursuant to OAR 839-011-0074;

(d) Elect a chair and a secretary as committee officers, pursuant to OAR 839-011-0074(8).

(4) Local committees and training agents shall be responsible for the administrative cost and expenses associated with the operation of their programs. No committee or training agent shall charge or cause charges to be levied against an apprentice for purposes of financially supporting the administrative, clerical or organizational cost of operating a registered program. Apprentices may be required to pay the normal cost of tuition and related training materials.

Stat. Auth.: ORS 660

Stats. Implemented: ORS 660.120(2)(c), 660.135(1), (2), (3), (4) & (5)

Hist.: BL 6-1985, f. & ef. 10-15-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0074

Committee Member Selection

(1) Committees shall consist of an equal number of employer and employee representatives.

(a) Representatives of employers, or an employer organization representing the industry, shall submit nominations for employer committee members.

(b) Individuals representing the journey level workforce for the occupation, or an employee organization that represents the concerned employees and is involved with the occupation, shall submit nominations for employee committee members. For the purposes of these rules, an individual is eligible to serve as an employee representative for the occupation only if that individual:

(A) Is or has been a skilled practitioner in the occupation and does not serve in a supervisory capacity as defined in the National Labor Relations Act, as amended; or

(B) Is a bargaining unit representative for the employees of a participating training agent.

(2) Joint apprenticeship or training committees (JATC/JAC/JTC) shall consist of not less than two or more than four principal employer representatives and not less than two or more than four principal employee representatives.

(3) Trade apprenticeship or training committees (TATC/TAC/TTC) shall consist of one principal employer representative and one principal employee representative for each approved standard of the committee.

(4) State minimum guideline committees shall consist of one principal employer and one principal employee representative from each local committee training in the occupation pursuant to the appointment procedures in OAR 839-011-0141.

(5) Committees may nominate one alternate member for each principal committee member and the alternate shall be selected according to the nominations procedures for principal committee members set forth in this rule. Alternates shall serve in the absence of principal members consistent with ORS 660.135(2).

(6) The Director shall list the names of the nominees on the next Council agenda. After consideration of whether the appointments provide a balanced representation of the viewpoints of employer and employee groups, the Council will approve the nominations.

(a) The Council may request the names of additional nominees if it does not approve any of the nominees.

(b) If either employers or employees cannot or will not recommend nominees for the committee, the Apprenticeship Representative for the area may recommend individuals involved with the occupation, and forward the name of the individual(s) to the Director. The Director will evaluate the individual(s), and if appropriate, provide interim approval pending submittal of the names of the individual(s) to the Council for approval according to the procedures of section (1) of this rule.

(7) When a vacancy occurs on a committee, it shall be filled according to the member nomination procedures set forth in this rule.

(8) Each committee shall elect a chairperson and a secretary from committee members. One of the offices must be held by an employer member and one office must be held by an employee member.

(a) The officers shall serve for no less than one year and no more than two years without an election unless the committee has adopted policies and procedures establishing the duration of officers’ terms.

(b) In the event of a vacancy in an office, the respective employer or employee members shall elect from their representation a replacement to serve the unfilled term of office consistent with ORS 660.

(9) No Division staff may be elected or appointed to any position within a committee.

(10) Associate members may be elected or appointed by the committee but such members do not have voting rights on local committee matters.

Stat. Auth.: ORS 660

Stats. Implemented: ORS 660.145

Hist.: BL 6-1985, f. & ef. 10-15-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0082

Deregistration of Committees

(1) The Council will deregister committees for inactivity, inadequate activity, or failure to abide by ORS Chapter 660 or the rules and policies of the Council pursuant to ORS 660.120(4)(d), or if the committee has informed the Director or the Council that it will no longer perform its duties.

(2) On behalf of the Council, the Director shall, to the extent practical, secure the formation of a new committee where a previously approved committee failed to carry out an effective program.

(3) A committee shall be subject to deregistration if it has had no apprentices registered for two years or more, has not had at least two quorum meetings in a twelve month period, has failed to administer to the needs of the apprentices or the industry concerned or if so otherwise deemed appropriate by the Council.

Stat. Auth.: ORS 660

Stats. Implemented: ORS 660.120(d)

Hist.: BL 6-1985, f. & ef. 10-15-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0084

Approval of New Committees and Standards

(1) Additional committees or standards in an area already served by an existing committee in the same trade, craft or occupation shall be established in the same manner as any other local committee.

(2) All employers and their qualified employees shall be afforded the opportunity to participate, on a non-discriminatory basis, in existing programs.

(3) The Council and the Apprenticeship and Training Division of the Bureau of Labor and Industries will approve the creation of a new local committee or new standards for an existing committee only if the applicant for the new program or new standards can first demonstrate to the Council and the Apprenticeship and Training Division, by a preponderance of evidence, that the application is in conformity with the following requirements:

(a) The applicant shall submit documentation showing committee composition pursuant to ORS 660.135, .145.

(b) The applicant shall submit standards in a format approved by the Council that meet or exceed any existing statewide minimum guideline standards for the occupation. Where no state guideline standards exist, proposed standards shall meet or exceed national guideline standards approved by the federal Office of Apprenticeship. Where no state or national guideline standards exist, standards will be approved at the discretion of the Council and the Apprenticeship and Training Division when the proposed occupation is clearly identified and commonly recognized throughout an industry.

(c) The applicant shall submit an administration plan that includes:

(A) Written designation of the program administrator;

(B) Documented assurances that the committee will be adequately funded to support its administration and the presentation of related instruction;

(C) A written statement that details all costs to apprentices (including instruction, books, tuition); and

(D) Assurances that training agents and prospective training agents will be provided with a written statement of costs for program participation.

(d) The applicant must demonstrate the ability to track required on-the-job training, related and supplemental training and affirmative action information (i.e., work progress reports, apprentice/trainee rotation system, employer’s apprentice/trainee evaluation forms, grading sheets, applicant logs) and provide the Council with copies of the forms and documents that will be used to track such information.

(e) The applicant shall submit a plan detailing how the committee will ensure that participating employers will provide work in all areas covered by the program standards (ORS 660.137(5)), including:

(A) Training in all counties listed in proposed geographical area;

(B) Training in all work processes set forth in the standards;

(C) Committee expectations of supervising journeyworkers and a plan for the supervision of apprentices/trainees in the ratio set forth in the standards (ORS 660.126(1)(c), (f));

(D) Training agent qualifications and duties (ORS 660.137(5)); and

(E) A plan for training participating employers on their duties and responsibilities.

(f) The applicant shall submit a complete related training curriculum, including instructor qualifications, class outlines and expected competencies, grading procedures and completion criteria. This submission shall include:

(A) An explanation of the curriculum delivery method and a description of the related training facilities;

(B) Certification of the curriculum and instructional delivery plan by either a state education certifying authority or nationally recognized industry association (ORS 660.137(2)(c), .126(1)(j), .157); and

(C) Assurances that classroom and related instruction can be delivered throughout the geographic area. The applicant must submit a contract or other documentation demonstrating that actual instructional resources are in place. The committee’s geographic area must be one that can be reasonably served by the committee with respect to employers and the location of the related training services (ORS 660.126(1)(a)).

(D) Assurances that instructors meet the Oregon Department of Education or Office of Community Colleges and Workforce Development requirements for vocational-technical instructors or are subject matter experts, defined as an individual, such as a journeyworker, who is recognized within an industry as having expertise in a specific occupation. If the instructor is a subject matter expert, the submission must include assurances that the instructor has or will have had training in teaching techniques and adult learning styles, which may occur before or within nine months after the apprenticeship instructor has started to provide the related technical instruction.

(g) The applicant must submit operating policies and procedures and assurances that the program will be operated in accordance with the same; and

(h) The applicant shall submit a plan to recruit, evaluate and select apprentice/trainee applicants, including an application form that meets Council requirements.

(4) All objections to the approval of a new committee or new standards shall be submitted to the Council in writing at the meeting where the application is being considered for approval, specifically detailing any objections to the application. Council may rule on the application and objections thereto at that time or grant the applicant 30 days after the Council meeting to submit a written rebuttal to the objections to the Director. Council shall direct the Director to investigate and evaluate the objections and rebuttal and to provide a report to Council within 45 days of receipt of the rebuttal statement. At the next Council meeting after the initial submission, Council shall either approve or deny the application and provide a specific written explanation for its actions.

(5) All new programs shall serve a probationary period of three years after Council approval. Failure to clearly demonstrate the ability to operate a satisfactory program during the probationary period, based upon periodic program reviews conducted by the Division, shall result in deregistration of the program by Council.

(6) Compliance reviews will be conducted during the probationary period pursuant to OAR 839-011-0145 unless the Council directs the Division to conduct reviews more frequently. Should the Council find operating deficiencies in the course of any such review, the program shall immediately take action to correct the deficiencies and submit a report to the Council explaining corrective measures taken within 90 days of the Council initial finding of deficiencies. If the committee has not corrected the deficiencies within the 90 day period, the Council shall deregister the program at the next scheduled Council meeting.

Stat. Auth.: ORS 660.120(3)

Stats. Implemented: ORS 660.135(1)

Hist.: BL 6-1985, f. & ef. 10-15-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 16-2005(Temp), f. & cert. ef. 8-23-05 thru 2-19-06; Administrative correction 3-20-06; BLI 16-2006, f. 4-17-06, cert. ef. 4-18-06; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0088

Registration of Apprenticeship Agreements

(1) The Council delegates registration of apprenticeship agreements to the Division and recognizes an agreement as registered when:

(a) It is on a form that has been approved pursuant to ORS 660.020 and issued by the Division;

(b) Information requested on the form as authorized by ORS 660.020 has been supplied by the apprentice. The requested information includes, but is not limited to the apprentice’s Social Security Number for identification purposes;

(c) It has been signed by the apprentice and the local joint committee. Approval must be recorded as soon as possible at a committee meeting; and

(d) The agreement has been submitted to and received by a representative of the Division.

(2) The effective starting date of an apprenticeship in non-licensed trades shall be not more than forty five (45) days prior to the date that a fully executed original agreement and committee minutes approving the registration are received by a representative of the Division. In the licensed trades, the effective starting date of an apprenticeship shall not commence before a fully executed apprenticeship agreement is received by a representative of the Division, unless the committee has written authorization from the Division to issue an initial license and operates in accordance with the conditions of authorization.

(3) Local committees shall develop and implement a policy and procedures detailing the process for evaluating previous experience in a uniform manner and awarding advanced standing to new apprentices for on-the-job or related training.

(a) The committee may grant credit for prior experience for any time previously spent by the apprentice in the trade or occupation that the committee considers applicable to the work processes in the program standards.

(b) In licensed trades, only lawfully obtained and documented experience that specifically applies to an Oregon license may be considered in granting credit for prior experience.

(4) All apprenticeship agreements will be maintained in the Division’s main office.

Stat. Auth.: ORS 660.120(3)

Stats. Implemented: ORS 657.732 & 660.060(8)

Hist.: BL 6-1985, f. & ef. 10-15-85; BL 1-1991, f. & cert. ef. 1-23-91; BL 7-1996, f. & cert. ef. 7-22-96; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0090

Causes for Disciplinary Actions by Council

The Council has the authority to take disciplinary action against a committee for conduct or action, including but not limited to:

(1) Inappropriate use of an apprentice’s registration status or an apprentice’s time, skills or training;

(2) Inadequate training of apprentices;

(3) Inappropriate assignment or abuse of discretion in work assignments;

(4) Discriminatory action(s) against an apprentice(s);

(5) Violation of any state or federal law;

(6) Failure to submit required documentation to the Division in a timely manner;

(7) Failure to communicate with the Division or the Council in a timely manner; or

(8) Any other action deemed inappropriate by the Council.

Stat. Auth.: ORS 660.120(1)

Stats. Implemented: ORS 660.120(1) & ORS 660.120(2)(d)

Hist.: BL 6-1994, f. & cert. ef. 10-10-94; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0140

Approval and Dissolution of Standards

(1) A local committee must submit new standards or revisions to previously approved standards, together with executed signature sheets and committee minutes to the Director at least 45 calendar days before the date of the next Council meeting pursuant to OAR 839-011-0030.

(2) Proposed standards and revisions must be in a form and format approved by Council that includes all elements specified in ORS 660.126. The Council may require additional information of committees pursuant to OAR 839-011-0084, including program administration and training plans.

(3) Standards in a form or format other than that approved by the Council and the Division may be accepted when they are part of the federal Office of Apprenticeship approved national pattern standards and are consistent with federal Office of Apprenticeship regulations and guidelines, these rules and Council policies.

(4) With Council approval, local committees may charge applicants a reasonable non-refundable application fee. Such fees shall be stated in the standards as a minimum qualification for entry into the program. Committees shall be required to:

(a) Incorporate the payment of a non-refundable application fee into the minimum qualifications of the committee’s standards. The standards shall also reflect that applicants with an income below 150% of the federal poverty guidelines may apply for a non-refundable application fee waiver. Federal poverty guidelines are established by the Federal Department of Health and Human Services and are recognized by the Oregon Adult and Family Services Division;

(b) Show that the non-refundable application fee results in no disparate impact and report annually to the Council whether disparate impact has been determined to result from the fees charged; and

(c) Show that the local committee experiences an extraordinary burden with respect to the administration of applications, i.e., beyond the ordinary course of conducting such procedures. Examples of an extraordinary burden include, but not limited to, development of specific entrance examinations, validation studies and extensive testing or interview procedures.

(5) Revised standards will supersede the committee’s previous standards covering the same occupation.

(6) Every registered apprenticeship program must have at least one registered apprentice, except for the following specified periods of time, that may not exceed 1 year:

(a) Between the date when a program is registered and the date of registration for its first apprentice(s); or

(b) Between the date that a program graduates an apprentice and the date of registration for the next apprentice(s) in the program.

(7) The Division will report any standards that apprentices have not been active in for two or more years to the Council for dissolution due to inactivity. Thereafter, new standards must be approved prior to registration of any new apprentices.

Stat. Auth.: ORS 660.120(3)

Stats. Implemented: ORS 660.120(2)(b), 660.126 & 660.137

Hist.: BL 95, f. 8-16-65; BL 130, f. 10-5-72, ef. 10-15-72; BL 3-1978, f. & ef. 4-3-78; BL 13-1988, f. & cert. ef. 7-1-88; BL 1-1991, f. & cert. ef. 1-23-91; BL 6-1994, f. & cert. ef. 10-10-94; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0141

Minimum Guideline Standards

The Council may approve minimum guideline standards for occupations it deems necessary.

(1) At its discretion, or upon petition by two or more local committees directly affected by minimum guideline standards, the Council will direct the Division to convene a state committee composed of members of local committees training in the occupation. Division staff will organize the meeting time and location, and contact all appropriate local committees.

(a) Each local joint committee training in the occupation may appoint no more than one employer and one employee representative (with alternates) to the state committee pursuant to OAR 839-011-0074. Notification of this action must be submitted to the Division in writing annually. Appointments will be valid only after written notice of the names of the appointees is received by the Division at least one (1) day before a scheduled state guideline committee meeting.

(b) The employer and employee members of local trades committees (and alternates) shall represent their respective occupations on the state committee pursuant to ORS 660.155(2).

(c) Only properly appointed representatives to the state guideline committee will be permitted to vote on issues before the State Guideline Committee.

(d) A quorum shall consist of 50% plus one of the total appointed local joint committee representatives; local trade committee representatives will be counted only if they are present at the state committee meeting. A quorum of the total appointed local committee representatives constituted pursuant to this rule may revise the quorum requirement for future state committee meetings, pending review and approval by the Council.

(e) Each state committee may adopt policies and procedures consistent with ORS 660 as it deems necessary for the orderly conduct of its meetings.

(2) The state committee will develop or revise minimum guideline standards in accordance with the needs of the industry and occupation. This committee shall establish minimum guidelines in the following standards areas:

(a) Minimum qualifications;

(b) Hours of employment;

(c) Maximum probationary period;

(d) Maximum ratio of apprentices to journey workers;

(e) Minimum work processes and approximate hours; and

(f) Minimum related/supplemental instruction.

(3) New or revised minimum guideline standards shall be distributed to all local committees training in the occupation for review and comment prior to submission to the Council.

(a) Each local committee shall have not more than 30 days to present any written objections. This information shall be referred to the state committee for review.

(b) The state committee shall then prepare its final recommendations to the Council.

(c) If consensus is not reached by the state committee, a majority and minority report will be submitted to the Council for consideration.

(d) When majority and minority reports are submitted, the Council and the Division will take into consideration the geographic area covered by each participating committee as well as the number of apprentices served and the number of training agents affected in determining whether to accept the minimum guideline standard as submitted or approved amendments thereto.

(4) Total on-the-job training hours for a local committee may not fluctuate below the requirements dictated by minimum guideline standards. The variations must be within statutory limits governing the licensed occupations.

Stat. Auth.: ORS 660.120(3)

Stats. Implemented: ORS 660.120(2)(a)

Hist.: BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0142

Apprentice/Trainee Qualifications

(1) The Council and the Division shall evaluate proposed qualification standards or selection methods pursuant to the criteria set forth in Title 29 CFR Part 30, the Equal Employment Opportunity in Apprenticeship Plan noted in OAR 839-011-0200, the objectives expressed by the committee and/or sponsor, and such other factors as the Council and the Division may deem appropriate. Evaluation of proposed qualification standards or selection methods shall include an analysis of whether they would result in an adverse impact upon any protected class of applicants.

(2) The Council and the Division shall not consider proposed standards that contain any of the following requirements within their minimum qualifications:

(a) Physical ability to do the job, unless it specifically references a validated occupational requirement, such as lifting a sack of cement to a specified height;

(b) Any tests (including color tests) that do not meet the validity requirements under 41 CFR 60.3;

(c) A valid driver’s license; or

(d) A medical exam.

(3) Standards submitted containing any of these requirements will not be placed on the Council agenda.

(4) The minimum qualifications section of the standards may include a note advising applicants that employers may require apprentices to meet additional lawful conditions of employment. These must be identified by employers and specified in the standards.

Stat. Auth.: ORS 660.120(3)

Stats. Implemented: ORS 660.120(2)(a)

Hist.: BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0143

Ratio

(1) Registered apprentices shall only work for training agents registered to the same committee as the apprentice the subject committees and employer have reached agreement on a plan that will enhance the training opportunities for all apprentices and have jointly submitted a written request to the Council outlining their plan and requesting the exemption from this rule.

(2) Except as provided in sections (6) and (7) below, registered apprentices shall be supervised by journeyworkers employed in the same trade or occupation by the same training agent employing the apprentice.

(3) The apprentice to journey worker ratio for any registered program approved by the Council and the Division shall be clearly set forth in the standards for the given occupation and must be specific as to application in terms of jobsite, workforce, department or plant.

(4) The maximum ratio of apprentices to journey workers for an occupation covered by a state committee will be developed as part of the minimum guideline standards for the occupation. Requests for a less restrictive ratio from local committees will be referred to the state committee for evaluation of minimum guideline ratio.

(5) For occupations where a minimum guideline standard is not in place, local committees are expected to meet the following apprentice to journey level ratios:

(a) Construction trades: Not more than one apprentice for the first journeyworker on the job site. Additional apprentices are authorized at the ratio of one apprentice for each three additional journeyworkers on the job site. (Expressed hereafter as 1:1, 1:3)

(b) Industrial trades and fixed-site facilities: 1:1,1:2

(c) Other trades (non-traditional and new and emerging occupations): 1:1,1:1

(d) Committees wishing a less restrictive ratio must submit a request to the Council for consideration, along with information including but not limited to:

(A) Specific workforce demographics justifying a different ratio;

(B) Plan to monitor effects of ratio on the safety and continuity of employment for apprentices; and

(C) Comparison of completion rate to statewide average for occupation.

(6) In licensed trades, an apprentice must be supervised by a journey worker in the same or a higher license classification than the apprentice, unless the local committee that the apprentice is registered to has approved supervision by a journeyworker holding a license covering the specific work being performed by the apprentice on the job site.

(7) Electrical power line installers and repairers and linemen apprentices may work for training agents registered to other local joint committees in order to ensure that all work processes are fulfilled, pursuant to a written agreement between the apprentice, the local committees and both training agents.

(8) In limited situations, the Council may grant a training agent a short-term waiver of the established ratio for a given program, upon demonstration of extreme need. In no event shall an apprentice work without qualified journeyworker supervision. Ratio waivers of less than 90 days must be requested by the committee on behalf of a training agent. Local committees are not authorized to grant temporary waivers to training agents. A temporary waiver of ratio may be granted under the following circumstances:

(a) Serious injury or illness of the journeyworker, where the journeyworker is expected to return to work in 90 days or less; or

(b) The sudden departure of a journeyworker from employment with the training agent for causes not attributable to the training agent. The employer is expected to replace the departing journeyworker within a reasonable amount of time and in no event shall this amount of time exceed ninety (90) days. The training agent must document its efforts to replace journey workers which may include, but shall not be limited to:

(A) Copies of job orders;

(B) Classified advertising, including a posting of the journey wage rate offered; and

(C) Job orders placed with the Oregon Employment Division.

(9 The lack of available qualified or licensed journeyworkers shall not be a valid reason for granting a temporary ratio waiver.

(10) The Council may authorize the Director to grant or deny waivers as set forth above on an interim basis. Such action taken by the Director must be submitted to the Council for ratification at its next meeting after interim approval or denial has been made.

Stat. Auth.: ORS 660.120(3)

Stats. Implemented: ORS 660.120(2), 660.126(1)(f)

Hist.: BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0145

Compliance Reviews

(1) All committees are subject to periodic reviews of program operation and affirmative action activities.

(2) The Division shall develop and maintain a review schedule that identifies programs scheduled for review, the type of review to be conducted and the time period to be evaluated.

(3) The Program Operation Compliance Review will evaluate program operation and administration.

(a) New committees will receive a Program Operation Compliance Review annually for the first three years of operation, unless otherwise directed by the Council.

(b) After the first three (3) years, committees found in compliance will receive a Program Operation Compliance Review every three (3) years. Committees maintaining a completion rate of at least 70% for all standards during the three (3) previous consecutive years will receive a Program Operation Compliance Review every five (5) years.

(4) The Affirmative Action Compliance Review will evaluate outreach, recruitment, and selection activities.

(a) Committees with five or more apprentices registered to a single standard during the previous three years will receive an annual Affirmative Action Compliance Review.

(b) Training agents who select their own apprentices in accordance with the committee’s approved selection procedure will receive a separate annual Affirmative Action Compliance Review.

(5) Additional reviews may be scheduled if

(a) The Director has a reasonable belief that such reviews are prudent and in the best interest of apprenticeship;

(b) Complaints have been received that the program is not operating in compliance; or

(c) At the Council’s direction.

(6) Committees found out of compliance will be required to appear at the next meeting of the appropriate Council subcommittee.

(7) All reviews shall be reported on a form and in a format approved by the Council. Upon review of compliance reports, the Council shall take action including but not limited to any of the following:

(a) Approve the report;

(b) Refer the report back for further clarification;

(c) Extend the review period for up to six (6) months;

(d) Order a probationary period including more frequent and detailed program reviews;

(e) Direct compliance and/or corrective action accordingly;

(f) Impose sanctions;

(g) Deregister the committee and/or standards for non-compliance; and

(h) Any other action as directed by the Council and the Division.

Stat. Auth.: ORS 660.120(3)

Stats. Implemented: ORS 660.120(2)(a) & 660.120(2)(f)

Hist.: BL 16-1979, f. & ef. 11-8-79; BL 6-1994, f. & cert. ef. 10-10-94; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0162

Employer Training Agents

(1) The Division will register training agents upon receipt of committee minutes showing approval of specific employers as training agents and a fully executed training agent registration agreement for each employer.

(2) The effective starting date for a new training agent shall be no more than forty five (45) days prior to the date that a fully executed original training agent agreement and committee minutes approving the registration of the employer are received by a representative of the Division.

(3) No employer shall be required to join an industry or trade association as a condition of approval as a training agent.

(4) Where two or more programs of the same occupation exist in the same geographical area an employer may not serve as an approved training agent for more than one such program at a time.

(a) In the event an employer has been approved as a training agent by two or more such programs, the Division shall notify the employer and the appropriate committees of this rule and require that the employer respond within twenty (20) working days of receipt of the notice, designating the program in which the employer chooses to continue and resigning from all others. Such notice shall be sent by certified mail, return receipt requested.

(b) An employer who does not respond pursuant to section (3)(a) of this rule, shall be deemed conclusively to have elected to resign as a training agent from all such programs. The Division shall notify the committees serving programs in which the employer had participated that the employer’s training agent status has been revoked by operation of this rule.

(5) In limited cases where special conditions exist, the Council may consider an employer’s request to participate in multiple programs in the same occupation within the same geographical area:

(a) When an individual construction project has special conditions warranting consideration for multiple training agent status, the employer must work with all committees involved to establish a plan that provides for the health, safety, and continuity of employment for all apprentices.

(b) When the committees and employer have reached agreement on a plan that will enhance the training opportunities for all apprentices, they shall jointly submit a written request to the Council outlining their plan and requesting the exemption from section (2) of this rule.

(6) An employer with a principal place of business outside the geographic jurisdiction of a local committee may seek approval to register with that local committee as a traveling training agent. Each such employer must agree to comply with Oregon state, county and municipal laws, rules and ordinances and the rules, policies, procedures and standards of the local committee.

(7) A local committee may approve traveling training agent status for an applicant employer that is a registered training agent with an apprenticeship sponsor or committee outside its geographic jurisdiction if:

(a) The employer is in good standing with its sponsor or home committee;

(b) The employer provides the committee with periodic updates of its good standing status from its sponsor or home committee;

(c) The employer and its sponsor provides the local committee with a plan explaining how the related training of any traveling apprentices will be accomplished;

(d) The employer and its sponsor provide updates to the local committee every six (6) months on the progress status of any traveling apprentices; and

(e) The employer and the local committee must agree on the number of traveling apprentices, directly employed by the traveling training agent, who will be registered through the local committee. The employer and the local committee must agree on the manner in which local apprentices will be utilized by the traveling training agent.

(8) A local committee may approve traveling training agent status for an unregistered employer whose principal place of business is outside of its geographic jurisdiction, but all apprentices dispatched to the traveling training agent must be registered to the local committee.

Stat. Auth.: ORS 660

Stats. Implemented: ORS 660.120(1) & 660.137(5)

Hist.: BL 17-1979, f. & ef. 11-8-79; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0175

Cancellation Notices

All notices to appear for cancellation of apprenticeship agreements must be mailed and addressed to the apprentice and postmarked at least twenty-two (22) calendar days in advance of the appearance date for the consideration of the cancellation.

Stat. Auth.: ORS 660.137(4)

Stats. Implemented: ORS 660

Hist.: BL 6-1994, f. & cert. ef. 10-10-94; BL 11-1996, f. & cert. ef. 12-10-96; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0265

Partial Rotation of Apprentices

(1) All apprentices must obtain work experience for at least 50% of the hours listed for each work process in the committee’s approved standards. A committee unable to provide an apprentice with work experience equaling at least 50% of the hours listed in any of the work processes must provide and document additional related training to compensate for the lack of on-the-job training. A written statement, held in the apprentice’s files, shall document such compensatory training and shall include, date, time, place, hours and instructor. In no event may distance learning classes be used to compensate for deficiencies in total work process hours.

(2) For licensed occupations, all variations in work processes must be within the statutory limits governing the trade.

Hist.: BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0270

Administrative Cancellation or Completion of Apprenticeship Agreements

(1) Whenever a local committee has insufficient members to conduct business, has not met at least once within a six-month period or has been dissolved by Council, the Director may:

(a) Cancel an apprenticeship agreement:

(A) At the apprentice’s request; or

(B) For good cause as defined by ORS 660.060(7) or;

(C) In the case of program deregistration, or for lack of training standards.

(b) Complete an apprenticeship agreement when documentation has been submitted to the Director demonstrating that the apprentice has complied with the required standards established by the committee.

(2) Such action by the Director or the committee shall be taken pursuant to the following procedure:

(a) Notice shall be provided by certified mail to the apprentice, employer, committee, Council and any interested parties before any action to administratively complete or cancel an agreement; and

(b) Written notice to the apprentice, employer, committee, Council and any interested parties of the final action taken by the Director.

(3) An apprentice may appeal an administrative cancellation as an order other than a contested case order under ORS 183.484.

Stat. Auth.: ORS 660.120

Stats. Implemented: ORS 660.120(2)(f)

Hist.: BL 7-1986, f. & ef. 7-14-86; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0290

Plumber Apprentices — Phased Supervision

(1) The Division shall issue plumbing apprentice licenses to active apprentices or trainees registered to standards approved by the Council. Apprentice license formats shall be jointly agreed to by the Division and the Oregon Building Codes Division.

(2) All apprentices and trainees must be directly supervised in accordance with OAR 839-011-0143, unless approved for phased supervision.

(3) Pursuant to OAR 918-695-0140, a local committee may take action to permit plumbing apprentices to work under phased supervision under the following circumstances:

(a) The plumber apprentice must work in the physical presence of an appropriate journey level plumber; and

(b) An appropriate journey level plumber present at the immediate work site at all times, except for not more than a cumulative thirty (30) minutes during any work shift during which time the journeyworker is immediately available by voice communication.

(4) The plumber apprentice may work under phased supervision when the following specific conditions are met:

(a) The appropriate journeyworker is immediately available to the apprentice by voice communication (immediately available means that the apprentice can reach the appropriate journeyworker within a 15-minute period);

(b) The appropriate journeyworker meets with the apprentice at least once each day to go over the work done by the apprentice;

(c) The activity is consistent with the committee’s work requirements as established in its written policy;

(d) There is only one apprentice on the job site; and

(e) The apprentice has been specifically approved for one (1) or more of the following phases:

(A) Phase 1: The apprentice only engages in water heater replacement or conversion after completing at least six (6) months of work experience, eight (8) hours of related instruction and is evaluated and authorized to do this type of work by the committee;

(B) Phase 2: The apprentice engages in work covered in Phase 1 and minor repairs in a one (1) or two (2) family dwelling after completion of three (3) periods of work experience, the appropriate related instruction for three (3) periods and is evaluated and authorized to do this type of work by the committee;

(C) Phase 3: The apprentice engages in work covered in Phase 1 and 2, and general repairs and replacement of existing installations after completion of four (4) periods of work experience, the appropriate related instruction for four (4) periods and is evaluated and authorized to do this type of work by the committee; or

(D) Phase 4: The apprentice engages in work covered in Phase 1, 2 and 3, and new or remodel installations after completing five (5) periods of work experience, the appropriate related instruction for five (5) periods and is evaluated and authorized to do this type of work by the committee.

(5) Phased supervision licenses will be issued by the Division upon notification of committee approval and reissued for the duration of the program unless the committee takes action to rescind approval.

Stat. Auth.: ORS 660.120(3)

Stats. Implemented: ORS 693.040

Hist.: BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0310

Apprentice Rights

(1) Upon registration the local committee shall provide each apprentice with the following information:

(a) Apprenticeship Standards for the program in which the apprentice is registered;

(b) Division approved committee policies and procedures; and

(c) Copy of the apprenticeship agreement.

(2) Within the constraints of industry and market conditions, the apprentice has the right to be employed and diligently and faithfully trained by the committee’s approved training agents in accordance with the terms and conditions of the Apprenticeship Agreement and Apprenticeship Standards.

(3) The apprentice has the right to classroom and workplace conditions that are free of harassment or intimidation.

(a) “Harassment or intimidation” includes any act that takes place on or immediately adjacent to apprenticeship classrooms or training agent work sites that:

(A) Substantially interferes with the apprentice’s educational benefits, opportunities or performance; and

(B) Has the effect of:

(i) Physically harming an apprentice or damaging an apprentice’s property; or

(ii) Knowingly placing an apprentice in reasonable fear of physical harm to the apprentice or damage to the apprentice’s property; or

(iii) Creating a hostile educational environment, including interfering with the psychological well-being of an apprentice; and

(C) May be based on, but not limited to, the protected class status of a person.

Stat. Auth.: ORS 660.120(1)

Stats. Implemented: ORS 660.120(2)(a)

Hist.: BL 7-1991, f. & cert. ef. 8-15-91 (and corrected 2-3-92); BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0320

Required Appearance at Council Meetings

(1) The Council shall require a committee member or designee other than Division or federal Office of Apprenticeship staff to be present at the appropriate subcommittee meeting when seeking approval for:

(a) New committee;

(b) New standards or;

(c) Other submittals that do not have a staff recommendation for approval.

(2) When a committee member or designee is not required to be present at a subcommittee meeting and questions or deficiencies are noted, the committee will be given ten (10) working days to correct the deficiencies and obtain a Division recommendation for approval.

(a) If deficiencies are corrected, the submittal will be moved to the Council agenda.

(b) Any submittal with deficiencies not corrected within the ten (10) day time limit will be referred to the next meeting of the appropriate subcommittee.

(3) The Director may make exceptions to this rule upon receipt of a written request from the committee setting forth circumstances, such as an emergency or undue hardship, that might justify a failure to attend subcommittee meeting.

Stat. Auth.: ORS 660.120(1)

Stats. Implemented: ORS 660.120(2)(a)

Hist.: BL 7-1991, f. & cert. ef. 8-15-91 (and corrected 2-3-92); BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

839-011-0334

Eligibility of Family and Current Employees

(1) To the extent that the State Apprenticeship and Training Council determines that it would not result in an adverse impact on apprenticeship opportunities based on an individual’s protected class status, an applicant who is otherwise eligible for selection as an apprentice under the selection method approved by the Council for use by the local committee may be directly registered to a family business or the applicant’s current employer, subject to the consent of the applicant, regardless of whether another employer would otherwise be entitled to register the applicant under the selection method used by the local committee.

(2) As used in this section, “otherwise eligible for selection as an apprentice under the selection method approved by the Council for use by the local committee” shall mean that the applicant:

(a) Has met the minimum qualifications for entry into the program; and

(b) Has been evaluated or ranked by the local committee pursuant to the procedure set forth in its approved selection method; and

(c) Based on that evaluation or ranking, is the next applicant or in the immediate group of applicants eligible to be assigned or dispatched to a registered training agent pursuant to the local committee’s approved selection method.

(3) When submitting a new or revised selection method to the Council for approval, local committees must indicate whether they will be using an exception to the selection methods established in Title 29 CFR Part 30 and must note in their committee minutes when an individual is registered pursuant to subsections (1) and (2) above.

(4) Nothing in this rule is intended or should be interpreted as discouraging the use of a qualification standard or selection method on the basis of relative qualifications, if the qualification standard or selection criteria have been validated in accord with the guidelines established in Title 41 CFR Part 60-3.6.

Stat. Auth.: ORS 660.120(1)

Stats. Implemented: ORS 660.139

Hist.: BLI 17-1999, f. & cert. ef. 12-20-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12

Notes
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