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Oregon Bulletin

February 1, 2014

Bureau of Labor and Industries, Chapter 839

Rule Caption: Amends the prevailing rates of wage for the period beginning January 1, 2014.

Adm. Order No.: BLI 5-2013

Filed with Sec. of State: 12-16-2013

Certified to be Effective: 1-1-14

Notice Publication Date: 12-1-2013

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 January 1, 2014.

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, 2014, 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, 2014, 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, 2014, 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. 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; BLI 4-2012, f. & cert. ef. 3-29-12; BLI 6-2012, f. & cert. ef. 7-2-12; BLI 10-2012, f. 9-26-12, cert. ef. 10-1-12; BLI 13-2012, f. 12-28-12, cert. ef. 1-1-13; BLI 1-2013, f. & cert. ef. 3-25-13; BLI 2-2013, f. & cert. ef. 9-20-13; BLI 3-2013, f. 9-30-13, cert. ef. 10-1-13; BLI 5-2013, f. 12-16-13, cert. ef. 1-1-14


Rule Caption: Implements legislation relating to direct deposit of wages and seasonal farmworker final wages

Adm. Order No.: BLI 6-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 1-1-14

Notice Publication Date: 11-1-2013

Rules Amended: 839-001-0440, 839-001-0450

Subject: H.B. 2683 amended ORS 652.110 to permit an employer to pay an employee’s wages without discount through the direct deposit of wages into the employee’s account in a financial institution unless the employee requested to be paid by check. In addition, S.B. 677 amended ORS 652.145 to permit, under certain conditions, the payment of final wages to a seasonal farmworker by noon on the day after termination of employment. The amendments permit employers to make final payment of wages by direct deposit, unless an employee has requested to be paid by check, and to make payment of wages at termination for seasonal farmworkers at noon on the day following termination if conditions established by S.B. 677 are met.

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

839-001-0440

Special Provisions for Payment of Wages at Termination for Seasonal Farmworkers and Seasonal Reforestation Workers

(1) Unless the conditions described in ORS 652.145(1)(a) apply, when a seasonal farmworker or seasonal reforestation worker terminates employment because of discharge or mutual consent, all wages earned and unpaid become due and payable on the last day the employee works.

(2) When a seasonal farmworker or seasonal reforestation worker quits employment and gives the employer at least 48 hours notice of intent to quit, all wages earned and unpaid become due and payable on the last day the employee works.

(3) When a seasonal farmworker or seasonal reforestation worker quits employment and fails to give the employer at least 48 hours notice, all wages earned and unpaid become due and payable within 48 hours after the employee quits or on the next regularly scheduled payday, whichever comes first.

Stat. Auth.: ORS 651.060(4) & 652.165

Stats. Implemented: 2013 SB 677 & ORS 652.145

Hist.: BL 9-1996, f. & cert. ef. 10-8-96; BLI 6-2013, f. 12-18-13, cert. ef. 1-1-14

839-001-0450

Forwarding Wages and Direct Deposit of Wages at Termination of Employment

(1) All wages due and payable at termination of employment shall be forwarded by the employer to the employee to any address designated by the employee when the employee requests the employer to forward the wages.

(2) Unless an employee has made either a written or oral request that wages due be paid by check, all wages due and payable at termination of employment may be deposited, without discount, in the employee’s account in a bank, national bank, mutual savings bank, credit union or savings and loan association located in Oregon.

Stat. Auth.: ORS 651.060(4) & 652.165

Stats. Implemented: 2013 HB 2683 & ORS 652.110

Hist.: BL 9-1996, f. & cert. ef. 10-8-96; BLI 6-2013, f. 12-18-13, cert. ef. 1-1-14


Rule Caption: Removes references to the Wage and Hour Commission in rules governing child labor violations.

Adm. Order No.: BLI 7-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 1-1-14

Notice Publication Date: 11-1-2013

Rules Amended: 839-019-0004, 839-019-0010, 839-019-0100

Subject: S.B. 135, 77th Leg., Reg. Session (Or. 2013) abolished the Wage and Hour Commission. The amendments to rules governing civil penalties for violations of child labor regulations are revised to remove references to the commission.

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

839-019-0004

Definitions

As used in ORS 653.365 to 653.370 and in these rules, unless the context requires otherwise:

(1) “Bureau” means the Bureau of Labor and Industries of the State of Oregon.

(2) “Commissioner” means the Commissioner of the Bureau of Labor and Industries or the Commissioner’s authorized deputies and officers.

(3) “Employ” shall have the same meaning as that which appears in ORS 653.010(2).

(4) “Employer” shall have the same meaning as that which appears in ORS 653.010(3).

(5) “Employment Certificate” means the employment certificate issued to employers for the employment of minors pursuant to ORS 653.307 and the employment permit referred to in ORS 653.360.

(6) “Minor” means any person under 18 years of age.

(7) “Person” includes the term “employer” as defined in section (4) of this rule and school districts required to comply with ORS 653.307(3).

(8) “Violation” means a transgression of any statute, rule or order, or any part thereof, and includes both acts and omissions.

(9) “Willful” means intentional and includes failure to act. A person commits a willful act when the person knows what she/he is doing, intends to do what she/he is doing and is a free agent.

(10) “Work Permit” means the employment certificate issued to minors pursuant to ORS 653.307.

Stat. Auth.: ORS 651.060(4) & 653.525

Stats. Implemented: 2013 SB 135, ORS 653.370

Hist.: BL 5-1988, f. & cert. ef. 4-12-88; BLI 7-2013 f. 12-18-13, cert. ef. 1-1-14

839-019-0010

Violations for Which a Penalty May Be Imposed

The Commissioner may impose a civil penalty for violations of any of the following statutes, administrative rules and orders:

(1) Violation of any provision of ORS 653.305 to 653.370.

(2) Violation of any provision of OAR 839-021-0001 to 839-021-0500.

(3) Violation of any term or condition of an Order issued pursuant to any violation of ORS 653.305 to 653.370 and OAR 839-021-0001 to 839-021-0500.

Stat. Auth.: ORS 651.060(4) & 653.525

Stats. Implemented: 2013 SB 135, ORS 653.370

Hist.: BL 5-1988, f. & cert. ef. 4-12-88; BLI 7-2013 f. 12-18-13, cert. ef. 1-1-14

839-019-0100

Exemptions

The provisions of OAR 839-019-0000 to 839-019-0025 do not apply when minors are employed under the following circumstances:

(1) The minor is employed by the parent of the minor;

(2) The minor is employed by a person standing in the place of the parent of the minor and who has custody of the minor. For minors employed in agriculture, “a person standing in the place of the parent of the minor” is defined by OAR 839-021-0297(2).

Stat. Auth. ORS 651.060(4) & 653.525

Stats. Implemented: 2013 SB 135, ORS 653

Hist.: BL 5-1988, f. & cert. ef. 4-12-88; BL 7-1997, f. & cert. ef. 11-13-97; BLI 7-2013 f. 12-18-13, cert. ef. 1-1-14


Rule Caption: Removes references to the Wage and Hour Commission; clarifies timing of the meal period

Adm. Order No.: BLI 8-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 1-1-14

Notice Publication Date: 11-1-2013

Rules Amended: 839-020-0004, 839-020-0025, 839-020-0040, 839-020-0050, 839-020-0070, 839-020-1010

Subject: S.B. 135, 77th Leg., Reg. Session (Or 2013) abolished the Wage and Hour Commission, which necessitates the removal of references to the commission from OAR 839, division 20. In addition, 839-020-0050 is amended to provide additional clarification concerning the timing of meal periods for employees subject to the provisions of the state’s minimum wage law.

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

839-020-0004

Definitions

As used in ORS 653.010 to 653.261 and these rules, unless the context requires otherwise:

(1) “Administrator” means the Administrator of the Wage and Hour Division.

(2) “Adult” means an individual of 18 years of age or more.

(3) “Adult foster home” means any family home or facility in which residential care is provided in a homelike environment for five or fewer adults who are not related to the provider by blood or marriage.

(4) “Agriculture” includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, fur-bearing animals, or poultry and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. “Agricultural employment” is employment in “Agriculture” as herein defined.

(5) “Bureau” means Bureau of Labor and Industries.

(6) “Casual basis” as used in ORS 653.020(2) and these rules means employment which is irregular and intermittent and which is not performed by an individual whose vocation is providing domestic services.

(7) “Child care service person” means an individual who performs child care services in the home of the individual or the child and who during any part of a 24 hour period provides custodial care and protection to infants or children.

(8) “Commissioner” means the Commissioner of the Bureau of Labor and Industries.

(9) “Commissions” or “pay on a commission basis” means payment based on a percentage of total sales, or of sales in excess of a specified amount, or on a fixed allowance per unit agreed upon as a measure of accomplishment or on some other formula and may be the sole source of compensation or payment in addition to other compensation.

(10) “Companionship services”, as used in ORS 653.020(14) and in these rules, means those services which provide fellowship, care and protection for a person who, because of advanced age or physical or mental infirmity, cannot care for his or her own needs. Such services may include household work related to the care of the elderly or infirm person such as meal preparation, bed making, washing of clothes and other similar services. They may also include the performance of general household work: provided, however, that such work is incidental, i.e., does not exceed 20 percent of the total weekly hours worked. Individuals employed in domestic service employment in or about a family home to provide companionship services are not required to be employed by the individual for whom they provide such services. The term “companionship services” does not include services relating to the care and protection of the elderly or infirm which require and are performed by trained personnel, such as a registered or practical nurse. While such trained personnel do not qualify as companions, this fact does not remove them from the category of covered domestic service employees when employed in or about a family home.

(11) “Division” means the Wage and Hour Division of the Bureau of Labor and Industries.

(12) “Domestic service” means services of a household nature performed by an employee in or about a family home (permanent or temporary) of the person by whom the employee is employed. The term includes, but is not limited to, employees such as cooks, waiters, butlers, valets, maids, housekeepers, governesses, nurses, janitors, gardeners, and companions to the elderly and infirm.

(13) “Domicile” means the permanent residence of a person or the place to which that person intends to return even though that person may actually reside elsewhere.

(14) “Employed on a seasonal basis at”, as used in ORS 653.020(10) and in these rules, means employment that occurs during the time the organized camp provides services to campers at the camp site where campers are located. The term includes employment at the camp site in duties preparatory to the opening or closing of the camp site. The term includes employment during the camping season only and does not include full time, year around employment.

(15) “Employer” has the same meaning as that in ORS 653.010(3).

(16) “Fair market value” means an amount not to exceed the retail price customarily paid by the general public for the same or similar meals, lodging or other facilities or services provided to the employee by the employer. In determining the fair market value of meals, lodging and other facilities and services, the bureau will be guided by these rules and by Title 29, CFR Part 531 — Wage Payments under the Fair Labor Standards Act of 1938, where applicable.

(17) “Family home”, as used in ORS 653.020(2) and this section, means a residence, the purpose of which is to provide an abode for the owner or renter of the residence and family members of the owner or renter. For example, a boarding house or an adult foster care home are not family homes for purposes of ORS 653.020(2) and these rules. However, when casual domestic service work is performed in structures where the owner or renter resides and operates a business, such work may qualify as exempt under ORS 653.020(2) depending upon all the facts of the particular arrangement.

(18) “Homeworker” means any employee suffered or permitted to produce goods or services for an employer in or about a home, apartment or room in a residence in which that employee or other employees of an employer resides, regardless of the source of the materials used by the homeworker in such production.

(19) “Hours worked” means all hours for which an employee is employed by and required to give to the employer and includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place and all time the employee is suffered or permitted to work. “Hours worked” includes “work time” as defined in ORS 653.010(11).

(20) “Immediate family” means grandfather, grandmother, father, mother, son, daughter, sister, brother, uncle or aunt.

(21) “Minimum wage” means the rate of pay prescribed in ORS 653.025 and 653.030.

(22) “Minor” means an individual of 17 years of age or less.

(23) “Organized camp” has the same meaning as that in ORS 653.010(6).

(24) “Primary duty” means, as a general rule, the major part, or over 50 percent, of an employee’s time. However, a determination of whether an employee has management as the employee’s primary duty must be based on all the facts of a particular case. Time alone is not the sole test and in situations where the employee does not spend over 50 percent of the employee’s time in managerial duties, the employee might have management as a primary duty if other pertinent factors support such a conclusion. Factors to be considered include, but are not limited to, the relative importance of the managerial duties as compared with other duties, the frequency with which the employee exercises discretionary powers, the relative freedom from supervision and the relationship between the salary paid the employee and wages paid other employees for the kind of non-exempt work performed by the supervisor.

(25) “Primary school” means a learning institution containing any combination of grades Kindergarten - 8 or age level equivalent.

(26) “Reside” means a personal presence at some place of abode with no present intention of definite and early removal and with the intent to remain for an undetermined period, but not necessarily combined with the intent to stay permanently.

(27) “Resident manager” means an employee of an adult foster home who is domiciled at the home and who is directly responsible for the care of residents in the home on a day to day basis.

(28) “Salary” means a predetermined amount constituting all or part of the employee’s compensation paid for each pay period of one week or longer (but not to exceed one month). The predetermined amount may not be any amount less than the equivalent of a monthly salary calculated by multiplying the wage set pursuant to ORS 653.025 by 2,080 hours per year, then dividing by 12 months.

(29) “Salary basis” means a salary as defined in section (28) of this rule, which is not subject to deduction because of lack of work for part of a work week, however, deductions for absences of one day or more may be made if the employee is absent for other reasons. Deductions may not be made for absences of less than one day, except as permitted for employers covered by the federal Family and Medical Leave Act of 1993, Public Law 103-3, for part-day absences due to leave pursuant to that law. Employees who are not paid for workweeks in which they performed no work are considered to be on a salary basis provided they are paid on a salary basis in workweeks when work is performed.

(a) Payment of additional compensation is not inconsistent with the salary basis of payment.

(b) Compensation paid in the form of fees is not inconsistent with the salary basis of payment, provided the fees paid in each pay period are not less than the amount required to be paid pursuant to ORS 653.025 and meet the requirements for fee payments under Title 29, Code of Federal Regulations, Part 541.605 and related regulations as amended April 23, 2004.

(30) “Secondary school” means a learning institution containing any combination of grades 9–12 or age level equivalent and includes those institutions that provide junior high schools which include 9th grade.

(31) “Violation” means a transgression of any statute or rule, or any part thereof and includes both acts and omissions.

(32) “Willfully” means knowingly. An action is done knowingly when it is undertaken with actual knowledge of a thing to be done or omitted or action undertaken by a person who should have known the thing to be done or omitted. A person “should have known the thing to be done or omitted” if the person has knowledge of facts or circumstances which, with reasonably diligent inquiry, would place the person on notice of the thing to be done or omitted to be done. A person acts willfully if the person has the means to inform himself or herself but elects not to do so. For purposes of these rules, the employer is presumed to know the requirements of ORS 653.010 to 653.261 and these rules.

Stat. Auth.: ORS 651.060(4) & 653.040

Stats. Implemented: 2013 SB 135, ORS 653

Hist.: BL 1-1987, f. & ef. 1-12-87; BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BL 10-1990, f. & cert. ef. 7-26-90; BL 3-1992, f. & cert. ef. 3-2-92; BL 5-1993(Temp), f. 5-7-93, cert. ef. 5-14-93; BL 12-1993, f. 10-29-93, cert. ef. 11-1-93; BL 9-1996, f. & cert. ef. 10-8-96; BL 9-1997, f. & cert. ef. 11-13-97; BLI 1-2002, f. & cert. ef. 1-9-02; TIC 3-2006, f. & cert. ef. 11-24-06; BLI 41-2006(Temp), f. & cert. ef. 11-27-06 thru 5-23-07; BLI 11-2007, f. 5-10-07, cert. ef. 5-15-07; BLI 15-2010, f. 5-25-10, cert. ef. 6-1-10; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14

839-020-0025

Deductions for Meals, Lodging, Facilities or Other Services

(1) The fair market value of meals, lodging and other facilities or services furnished by the employer to the employee for the private benefit of the employee may be deducted from the minimum wage. The employer has the burden of establishing the fair market value (See also OAR 839-020-0004(16)).

(2) “Fair market value” may be established in either of the following ways:

(a) The amount actually and customarily charged for comparable meals, lodging, facilities or services to consumers who are not employees of the employer; or

(b) The actual cost to the employer in purchasing, preparing or providing the meals, lodging or other facilities or services.

(3) The provisions of section (1) of this rule do not prohibit the payment of wages as meals, lodging and other facilities or services furnished to employees either as additions to wages or as items for which deductions from wages will be made. These provisions apply to all facilities or services furnished by the employer as compensation to the employee regardless of whether the employer calculates charges for such facilities or services as additions to or deductions from wages. In order for the employer to be able to claim credit toward the minimum wage for providing meals, lodging or other facilities or services furnished to an employee, the deduction of these costs from the employee’s wages must have been authorized by the employee in writing, the deduction must have been for the private benefit of the employee, and the deduction must be recorded in the employer’s books, or the deduction of these costs must be authorized by a collective bargaining agreement, in accordance with the provisions of ORS 652.610.

(4) Full settlement of sums owed to the employer by the employee because of meals, lodging and other facilities or services furnished by the employer shall be made on each regular payday.

(5) The provisions of section (1) of this rule apply only when the following conditions are continuously met:

(a) The employer has met the conditions of ORS 652.610(3); and

(b) The employee actually receives the meals, lodging or other facilities or services; and

(c) The meals, lodging or other facilities or services are furnished by the employer for the private benefit of the employee; and

(d) The meals, lodging or other facilities and services are provided in a lawful manner. No deduction from the minimum wage may be made for alcohol provided without applicable permits, for illegal substances or services, such as drugs or prostitution, or for any other substance, facility or service which is provided in a manner determined by a court or appropriate administrative agency to have been unlawful.

(6) As used in this rule, meals actually received by the employee and furnished by the employer are regarded as being for the private benefit of the employee except when meal expenses are incurred by an employee while traveling away from the employee’s home on the employer’s business.

(7) Lodging or other facilities or services are furnished for the private benefit of the employee when such lodging or other facilities or services are not required by the employer. For purposes of this rule, lodging or other facilities or services are required by the employer when:

(a) Acceptance of the lodging or other facilities or services is a condition of the employee’s employment; or

(b) The expense is incurred by an employee who must travel away from the employee’s home on the employer’s business; or

(c) The acceptance of the lodging or other facilities or services is involuntary or coerced; or

(d) The provision of lodging or other facilities or services is necessary in order for the employer to maintain an adequate work force at the times and locations the employer needs them.

Stat. Auth.: ORS 651.060(4) & 653.040

Stats. Implemented: 2013 SB 135, ORS 653

Hist.: BL 1-1987, f. & ef. 1-12-87; BL 5-1991(Temp), f. 5-15-91, cert. ef. 5-17-91; BL 3-1992, f. & cert. ef. 3-2-92; BL 9-1996, f. & cert. ef. 10-8-96; BLI 15-1999, f. & cert. ef. 10-6-99; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14

839-020-0040

Hours Worked — Generally

(1) OAR 839-020-0040 to 839-020-0047 deals with hours worked as defined by OAR 839-020-0004(19) and discusses principles involved in determining what constitutes working time for purposes of ORS 653.010 to 653.261 and these rules.

(2) Work requested or required is considered work time. Work not requested, but suffered or permitted is considered work time.

(3) Work performed for the employer but away from the employer’s premises or job site is considered work time. If the employer knows or has reason to believe that work is being performed, the time spent must be counted as hours worked.

(4) It is the duty of the employer to exercise control and see that the work is not performed if it does not want the work to be performed. The mere promulgation of a policy against such work is not enough.

Stat. Auth.: ORS 651.060(4) & 653.040

Stats. Implemented: 2013 SB 135, ORS 653.010 - 653.261

Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BL 10-1990, f. & cert. ef. 7-26-90; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14

839-020-0050

Meal and Rest Periods

(1) The purpose of this rule is to prescribe minimum meal periods and rest periods for the preservation of the health of employees.

(2)(a) Except as otherwise provided in this rule, every employer shall provide to each employee, for each work period of not less than six or more than eight hours, a meal period of not less than 30 continuous minutes during which the employee is relieved of all duties.

(b) Except as otherwise provided in this rule, if an employee is not relieved of all duties for 30 continuous minutes during the meal period, the employer must pay the employee for the entire 30-minute meal period.

(c) An employer is not required to provide a meal period to an employee for a work period of less than six hours. When an employee’s work period is more than eight hours, the employer shall provide the employee the number of meal periods listed in Appendix A of this rule.

(d) Timing of the meal period: If the work period is seven hours or less, the meal period is to be taken after the conclusion of the second hour worked and completed prior to the commencement of the fifth hour worked. If the work period is more than seven hours, the meal period is to be taken after the conclusion of the third hour worked and completed prior to the commencement of the sixth hour worked.

(3) If an employer does not provide a meal period to an employee under section (2) of this rule, the employer has the burden to show that:

(a) To do so would impose an undue hardship on the operation of the employer’s business as provided in section (4), and that the employer has complied with section (5) of this rule;

(b) Industry practice or custom has established a paid meal period of less than 30 minutes (but no less than 20 minutes) during which employees are relieved of all duty; or

(c) The failure to provide a meal period was caused by unforeseeable equipment failures, acts of nature or other exceptional and unanticipated circumstances that only rarely and temporarily preclude the provision of a meal period required under section (2) of this rule. If an employee is not relieved of all duties for 30 continuous minutes during the meal period, the employer must pay the employee for the entire 30-minute meal period.

(4) As used in section (3)(a) of this rule, “undue hardship” means significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business. For the purpose of determining whether providing a meal period requires significant difficulty or expense, the following factors may be considered:

(a) The employer’s cost of complying with the requirement to provide a meal period under section (2) of this rule.

(b) The overall financial resources of the employer.

(c) The number of persons employed at the particular worksite and their qualifications to relieve the employee; the total number of persons employed by the employer; and the number, type and geographic separateness of the employer’s worksites.

(d) The effect of providing the meal period required under section (2) of this rule on worksite operations involving: the startup or shutdown of machinery in continuous-operation industrial processes; intermittent and unpredictable workflow not in the control of the employer or employee; the perishable nature of materials used on the job; and the safety and health of other employees, patients, clients or the public.

(5) When an employer does not provide a meal period to an employee under section (2) of this rule, and is able to make the required showing under section (3)(a) of this rule:

(a) The employer shall instead provide the employee adequate paid periods in which to rest, consume a meal, and use the restroom; and

(b) The employer shall first provide to each employee a notice provided by the commissioner of the Bureau of Labor and Industries regarding rest and meal periods in the language used by the employer to communicate with the employee. The employer shall retain and keep available to the commissioner a copy of the notice for the duration of the employee’s employment and for no less than six months after the termination date of the employee. Notices that comply with this subsection are available upon request from the bureau. This subsection takes effect on March 16, 2009.

(6)(a) Except as provided in subsection (b) of this section, every employer shall provide to each employee, for each segment of four hours or major part thereof worked in a work period, a rest period of not less than ten continuous minutes during which the employee is relieved of all duties, without deduction from the employee’s pay.

(A) As the nature of the work allows, the employer shall provide the rest period approximately in the middle of each segment of four hours or major part thereof worked in a work period. When the employee’s work period is more than eight hours, the employer shall provide the employee the number of rest periods listed in Appendix A of this rule.

(B) The employer shall provide rest periods in addition to and taken separately from the time provided for a meal period. An employer may not require or allow an employee to add the rest period to a meal period or deduct the rest period from the beginning or end of the employee’s work period to reduce the overall length of the work period.

(C) An employer has the burden to show that the employer provided the rest periods required under this section.

(b) An employer is not required to provide a rest period to an employee when all of the following conditions are met:

(A) The employee is 18 years of age or older;

(B) The employee works less than five hours in any period of 16 continuous hours;

(C) The employee is working alone;

(D) The employee is employed in a retail or service establishment, i.e., a place where goods and services are sold to the general public, not for resale; and

(E) The employee is allowed to leave the employee’s assigned station when the employee must use the restroom facilities.

(7) The provisions of this rule regarding meal periods and rest periods may be modified by the terms of a collective bargaining agreement if the provisions of the collective bargaining agreement entered into by the employees specifically prescribe rules concerning meal periods and rest periods.

(8)(a) Pursuant to the provisions of ORS 653.261(5), if an employer agrees, an employee may waive a meal period if all of the following conditions are met:

(A) The employee is employed to serve food or beverages, receives tips, and reports the tips to the employee’s employer;

(B) The employee is at least 18 years of age;

(C) The employee voluntarily requests to waive the employee’s meal periods no less than seven calendar days after beginning employment;

(D) The employee’s request to waive the employee’s meal periods is in writing in the language used by the employer to communicate with the employee, on a form provided by the commissioner, and is signed and dated by both the employee and employer;

(E) The employer retains and keeps available to the commissioner a copy of the employee’s request to waive the employee’s meal period during the duration of the employee’s employment and for no less than six months after the termination date of the employee;

(F) The employee is provided with a reasonable opportunity to consume food during any work period of six hours or more while continuing to work;

(G) The employee is paid for any and all meal periods during which the employee is not completely relieved of all duties;

(H) The employee is not required to work longer than eight hours without receiving a 30-minute meal period during which the employee is relieved of all duties;

(I) The employer makes and keeps available to the commissioner accurate records of hours worked by each employee that clearly indicate whether or not the employee has received meal periods; and

(J) The employer posts a notice provided by the commissioner regarding rest and meal periods in a conspicuous and accessible place where all employees can view it.

(b) Either the employer or employee may revoke the agreement for the employee to waive the employee’s meal periods by providing at least seven (7) calendar days written notice to the other.

(c) Notwithstanding subsection (b) of this section, an employee who has requested to waive meal periods under this section may request to take a meal period without revoking the agreement to waive such periods. The request to take a meal period must be submitted in writing to the employer no less than 24 hours prior to the meal period requested.

(d) An employer may not coerce an employee into waiving a meal period.

(e) An employer will be considered to have coerced an employee into waiving the employee’s meal period under the following circumstances:

(A) The employer requests or requires an employee to sign a request to waive meal periods;

(B) An employee is required to waive meal periods as a condition of employment at the time of hire or at any time while employed;

(C) The employer requests or requires any person, including another employee, to request or require an employee to waive meal periods; or

(D) The employee signs a form requesting to waive meal periods prior to being employed for seven calendar days.

(f) Employee waiver forms and notices regarding rest and meal periods that comply with this section are available upon request from the bureau.

(9) Rest and meal period requirements specific to minors under 18 years of age are provided in OAR 839-021-0072.

(10) As used in this rule:

(a) “Work period” means the period between the time the employee begins work and the time the employee ends work.

(b) “Work period” includes a rest period as provided in section (6) of this rule, and any period of one hour or less (not designated as a meal period) during which the employee is relieved of all duties.

(c) “Work period” does not include a meal period unless the meal period is paid work time as provided in section (2) or (5) of this rule.

[ED. NOTE: Appendices referenced are available from the agency.]

Stat. Auth.: ORS 651.060(4) & 653.040

Stats. Implemented: ORS 653

Hist.: BL 1-1987, f. & ef. 1-12-87; BL 10-1990, f. & cert. ef. 7-26-90; BL 9-1996, f. & cert. ef. 10-8-96; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 21-2008, f. & cert. ef. 7-8-08; BLI 29-2008(Temp), f. 9-22-08, cert. ef. 9-23-08 thru 3-22-09; BLI 3-2009, f. & cert. ef. 1-12-09; BLI 15-2010, f. 5-25-10, cert. ef. 6-1-10; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14

839-020-0070

Homework — Generally

(1) Homeworkers as defined by OAR 839-020-0004(18) will be paid not less than the applicable minimum wage pursuant to ORS 653.025 for all hours suffered or permitted to work.

(2) Homeworkers will be paid no less than time and one-half their regular rate of pay for all hours worked in excess of 40 hours in a work week pursuant to OAR 839-020-0030.

(3) General record keeping requirements, as provided in these rules, OAR 839-020-0080(1) through (3), are applicable to homeworkers.

(4) Employer employing homeworkers are subject to the provisions of OAR 839-020-0083 and 839-020-0085 concerning record availability and posting requirements.

Stat. Auth.: ORS 651.060(4) & 653.040

Stats. Implemented: 2013 SB 135 & ORS 653

Hist.: BL 1-1990, f. 2-27-90, cert. ef. 2-28-90; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14

839-020-1010

Violations for Which a Civil Penalty May Be Assessed

(1) The commissioner may assess a civil penalty for any of the following willful violations:

(a) Failure to pay the applicable minimum wage for all hours worked in violation of ORS 653.025 and OAR 839-020-0010.

(b) Failure to pay overtime for all hours worked over forty (40) in a week in violation of OAR 839-020-0030.

(c) Payment to persons with mental or physical disabilities less than a fixed minimum hourly wage rate which has been approved by the commissioner in violation of ORS 653.030 and OAR 839-020-0015;

(d) Payment to student-learners less than a fixed minimum hourly wage rate which has been approved by the commissioner in violation of ORS 653.030 and 839-020-0015;

(e) Failure to make required payroll and other records in violation of ORS 653.045, OAR 839-020-0050, 839-020-0080, and 839-020-0082;

(f) Failure to keep available required payroll and other records in violation of ORS 653.045, OAR 839-020-0050, 839-020-0080, 839-020-0082, and 839-020-0083;

(g) Failure to supply each of the employer’s employees with itemized statements of amounts and purposes of deductions in the manner provided in ORS 652.610 in violation of 653.045, OAR 839-020-0012 and 839-020-0080;

(h) Failure to keep summaries of ORS 653.010 to 653.261 and rules promulgated thereto by the commissioner posted in a conspicuous and accessible place in or about the premises where such employees are employed in violation of ORS 653.050;

(i) Discharging or discriminating in any other manner against any employee in violation of ORS 653.060:

(A) Because the employee has made complaint that the employee has not been paid wages in accordance with ORS 653.010 to 653.261;

(B) Because the employee has caused to be instituted or is about to cause to be instituted any proceedings under or relating to ORS 653.010 to 653.261; or

(C) Because the employee has testified or is about to testify in any such proceedings.

(j) Failure to provide to each employee appropriate meal periods in violation of OAR 839-020-0050;

(k) Coercing an employee into waiving a meal period in violation of ORS 653.261(5)(b);

(l) Failure to provide to each employee appropriate rest periods in violation of OAR 839-020-0050;

(m) Intentional failure to provide a reasonable rest period to accommodate an employee who needs to express breast milk in violation of ORS 653.077 and OAR 839-020-0051;

(n) Requiring any employee to lift excessive weights in violation of OAR 839-020-0060; or

(o) Employing any employee to work under any conditions in violation of OAR 839-020-0065.

(2) Except as provided in ORS 653.261(5)(c), the civil penalty for any one violation will not exceed $1000. The actual amount of the civil penalty will depend on all the facts and circumstances referred to in OAR 839-020-1020.

(3) The civil penalties set out in this rule will be in addition to any other penalty assessed or imposed by law or rule.

Stat. Auth.: ORS 651.060(4) & 653.040

Stats. Implemented: 2013 SB 135 & ORS 653

Hist.: BL 9-1997, f. & cert. ef. 11-13-97; BLI 1-2002, f. & cert. ef. 1-9-02; BLI 15-2002, f. 10-17-02, cert. ef. 10-18-02; BLI 41-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 8-2013, f. 12-18-13, cert. ef. 1-1-14


Rule Caption: Implements legislation related to prevailing wage law; clarifies fringe benefit contribution requirements

Adm. Order No.: BLI 9-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 1-1-14

Notice Publication Date: 11-1-2013

Rules Amended: 839-025-0004, 839-025-0010, 839-025-0013, 839-025-0020, 839-025-0035, 839-025-0043, 839-025-0085, 839-025-0090, 839-025-0095, 839-025-0230, 839-025-0530

Subject: The 2013 Regular Session of the Oregon Legislature enacted two pieces of legislation which require amendments to be made to the administrative rules governing the payment of prevailing wage rates on public works projects. First, the rule amendments add any member or manager of a limited liability company who is responsible for certain violations of the prevailing wage rate regulations to those persons who may be made ineligible to receive a public works contract. Second, the definition of a public works is modified to include projects for the construction, reconstruction, major renovation or painting of a road, highway, building, structure, or improvement of any type that occurs, with or without using funds of a public agency, on real property that the Oregon University System or an institution of the Oregon University System owns. Additionally, revisions are made to rules addressing the frequency of payments to fringe benefit plans. Under existing rule, contributions made by contractors to a bona fide fringe benefit plan are required to be made on a regular basis and not less often than quarterly. 839-025-0043 is amended to define the terms “regular basis” and “not less often than quarterly;” 839-025-0530 makes clear that the failure to contribute fringe benefit wages timely to a plan on a “regular basis” and “not less often than quarterly” is a violation of the prevailing wage rate regulations for which a civil penalty may be assessed. 839-025-0035(8) clarifies that persons employed on a public works project for personal services, as that term is defined in ORS 279C.100(5), are not workers required to be paid the prevailing rate of wage.

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

839-025-0004

Definitions

As used in OAR chapter 839, division 025, unless the context requires otherwise:

(1) “Apprentice” means:

(a) A person who is individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Office of Apprenticeship (OA), or with any state apprenticeship agency recognized by OA, and who is employed by a registered training agent pursuant to ORS 660.010(10) and is working pursuant to the standards of the apprentice’s apprenticeship program; or

(b) A person in probationary employment as an apprentice in such an apprenticeship program, but who is not individually registered in the program, but who has been certified by the OA or a state apprenticeship agency to be eligible for probationary employment as an apprentice, and who is employed by a registered training agent pursuant to ORS 660.010 (10) and is working pursuant to the standards of the apprentice’s apprenticeship program.

(2) “The Basic Hourly Rate of Pay” or “Hourly Rate” means the rate of hourly wage, excluding fringe benefits, paid to the worker.

(3) “Bureau” means the Bureau of Labor and Industries.

(4) “Commissioner” means the Commissioner of the Bureau of Labor and Industries, or designee.

(5) “Construction” means the initial construction of buildings and other structures, or additions thereto, and of highways and roads. “Construction” does not include the transportation of material or supplies to or from the public works project by employees of a construction contractor or construction subcontractor.

(6) “Division” means the Wage and Hour Division of the Bureau of Labor and Industries.

(7) “Employ” includes to suffer or permit to work.

(8) “Fringe benefits” means the amount of:

(a) The rate of contribution irrevocably made on a “regular basis” and “not less often than quarterly,” as those terms are defined in OAR 839-025-0043, by a contractor or subcontractor to a trustee or to a third person pursuant to a plan, fund or program; and

(b) The rate of costs to the contractor or subcontractor which may be reasonably anticipated in providing benefits to workers pursuant to an enforceable commitment to carry out a financially responsible plan or program which is committed in writing to the workers affected, for medical or hospital care, pensions on retirement or death, compensation for injuries or illness resulting from occupational activity, or insurance to provide any of the foregoing, for unemployment benefits, life insurance, disability and sickness insurance or accident insurance, for vacation and holiday pay, for defraying costs of apprenticeship or other similar programs or for other bona fide fringe benefits, but only where the contractor or subcontractor is not required by other federal, state or local law to provide any of such benefits. Other bona fide fringe benefits do not include reimbursement to workers for meals, lodging or other travel expenses, nor contributions to industry advancement funds (CIAF for example).

(9)(a) “Funds of a public agency” includes any funds of a public agency that are directly or indirectly used, as described below.

(A) “Directly used funds of a public agency” means revenue, money, or that which can be valued in money collected for a public agency or derived from a public agency’s immediate custody and control, and, except as provided in ORS 279C.810(1)(a)(H) and (J) and subsection (b) of this section, includes but is not limited to any money loaned by a public agency, including the loan of proceeds from the sale of conduit or pass-through revenue bonds for the specific purpose of financing a project, and public property or other assets used as payment for all or part of a project.

(B) “Indirectly used funds of a public agency” means, except as provided in subsection (b) of this section, that a public agency ultimately bears the cost of all or part of the project, even if a public agency is not paying for the project directly or completing payment at the time it occurs or shortly thereafter. A public agency does not indirectly use funds of a public agency when it elects not to collect land rent that is due. Examples of when an agency “ultimately bears the cost” of all or part of a project include but are not limited to:

(i) Amortizing the costs of construction over the life of a lease and paying these costs with funds of a public agency during the course of the lease;

(ii) A public agency subsidizing the costs of construction that would normally be borne by the contractor;

(iii) Using insurance proceeds that belong to a public agency to pay for construction. Insurance proceeds represent “money collected for the custody and control of a public agency” and therefore are funds of a public agency, whether the contractor obtains payment directly from the insurance company or the public agency; or

(iv) Using or creating a private entity as a conduit for funding a project when the private entity is in fact an alter ego of the public agency.

(b) “Funds of a public agency” does not include:

(A) Funds provided in the form of a government grant to a nonprofit organization, unless the government grant is issued for the purpose of construction, reconstruction, major renovation or painting;

(B) Building and development permit fees paid or waived by the public agency;

(C) Tax credits or tax abatements;

(D) Land that a public agency sells to a private entity at fair market value;

(E) The difference between:

(i) The value of land that a public agency sells to a private entity as determined at the time of the sale after taking into account any plan, requirement, covenant, condition, restriction or other limitation, exclusive of zoning or land use regulations, that the public agency imposes on the development or use of the land; and

(ii) The fair market value of the land if the land is not subject to the limitations described in subparagraph (i) of this paragraph;

(F) Staff resources of the public agency used to manage a project or to provide a principal source of supervision, coordination or oversight of a project;

(G) Staff resources of the public agency used to design or inspect one or more components of a project;

(H) Moneys derived from the sale of bonds that are loaned by a state agency to a private entity, unless the moneys will be used for a public improvement;

(I) Value added to land as a consequence of a public agency’s site preparation, demolition of real property or remediation or removal of environmental contamination, except for value added in excess of the expenses the public agency incurred in the site preparation, demolition or remediation or removal when the land is sold for use in a project otherwise subject to ORS 279C.800 to 279C.870; or

(J) Bonds, or loans from the proceeds of bonds, issued in accordance with ORS Chapter 289 or 441.525 to 441.595, unless the bonds or loans will be used for a public improvement.

(10) “Housing” has the meaning given that term in ORS 456.055.

(11) “Major renovation” means the remodeling or alteration of buildings and other structures within the framework of an existing building or structure and the alteration of existing highways and roads, the contract price of which exceeds $50,000.

(12) “Nonprofit organization,” as used in section (9)(b)(A) of this rule, means an organization or group of organizations described in section 501(c)(3) of the Internal Revenue Code that is exempt from income tax under section 501(a) of the Internal Revenue Code.

(13) “Normal business hours” means the hours during which the office of the contractor or subcontractor is normally open for business. In the absence of evidence to the contrary, the Division will consider the hours between 8:00 a.m. and 5:00 p.m., excluding the hours between 12:00 noon and 1:00 p.m., on weekdays as normal business hours.

(14) “Overtime” means all hours worked:

(a) On Saturdays;

(b) On the following legal holidays:

(A) Each Sunday;

(B) New Year’s Day on January 1;

(C) Memorial Day on the last Monday in May;

(D) Independence Day on July 4;

(E) Labor Day on the first Monday in September;

(F) Thanksgiving Day on the fourth Thursday in November;

(G) Christmas Day on December 25.

(c) Over 40 hours in a week; and either

(d) Over eight (8) hours in a day; or

(e) Over 10 hours in a day provided:

(A) The employer has established a work schedule of four consecutive days (Monday through Thursday or Tuesday through Friday) pursuant to OAR 839-025-0034; and

(B) The employer operates in accordance with this established work schedule.

(15) “Overtime rate” means the basic hourly rate of pay multiplied by one and one-half.

(16) “Overtime wages” means the overtime hours worked multiplied by the overtime rate.

(17) “Person” includes a public or private corporation, a partnership, a sole proprietorship, a limited liability company, a government or governmental instrumentality.

(18) “Prevailing wage rate claim” means a claim for wages filed by a worker with the Division.

(19) “Public agency” means the State of Oregon or any political subdivision thereof or any county, city, district, authority, public corporation or entity and any instrumentality thereof organized and existing under law or charter.

(20)(a) “Public work,” “public works” or “public works project” includes but is not limited to:

(A) Roads, highways, buildings, structures and improvements of all types, the construction, reconstruction, major renovation or painting of which is carried on or contracted for by any public agency to serve the public interest;

(B) A project for the construction, reconstruction, major renovation or painting of a privately owned road, highway, building, structure or improvement of any type that uses funds of a private entity and $750,000 or more of funds of a public agency; or

(C) A project for the construction of a privately owned road, highway, building, structure or improvement of any type that uses funds of a private entity and in which 25 percent or more of the square footage of the completed project will be occupied or used by a public agency; or

(D) A device, structure, or mechanism, or a combination of devices, structures, or mechanisms that:

(i) Uses solar radiation as a source for generating heat, cooling, or electrical energy; and

(ii) Is constructed or installed, with or without using funds of a public agency, on land, premises, structures, or buildings that a public agency owns, regardless of the total project cost; or

(E) A project for the construction, reconstruction, major renovation or painting of a road, highway, building, structure, or improvement of any type that occurs, with or without using funds of a public agency, on real property that the Oregon University System or an institution in the Oregon University System owns.

(b) “Public works” does not include:

(A) The reconstruction or renovation of privately owned property that is leased by a public agency; or

(B) The renovation of publicly owned real property that is more than 75 years old by a private nonprofit entity if:

(i) The real property is leased to the private nonprofit entity for more than 25 years;

(ii) Funds of a public agency used in the renovation do not exceed 15 percent of the total cost of the renovation; and

(iii) Contracts for the renovation were advertised or, if not advertised, were entered into before July 1, 2003, but the renovation has not been completed on or before July 1, 2007.

(21) “Public works contract” or “contract” means any contract, agreement or understanding, written or oral, into which a public agency enters for any public work.

(22) “Reconstruction” means highway and road resurfacing and rebuilding, the restoration of existing highways and roads, and the restoration of buildings and other structures.

(23) “Reconstruction or renovation of privately owned property which is leased by a public agency” includes improvements of all types within the framework or footprint of an existing building or structure.

(24)(a) “Residential construction project” means a public works project for the construction, reconstruction, major renovation or painting of a single family house or apartment building of not more than four (4) stories in height and all incidental items such as site work, parking areas, utilities, streets and sidewalks pursuant to the U.S. Department of Labor’s “All Agency Memorandum No. 130” -- “Application Of The Standard of Comparison ‘Projects Of a Character Similar’ Under the Davis-Bacon and Related Acts” dated March 17, 1978. (See Appendix 6.)

(b) Notwithstanding the provisions of subsection (a) of this section, where it is determined that a different definition of “residential construction” has been adopted by local ordinance or code, or that the prevailing practice of a particular trade or occupation regarding what is considered “residential construction” differs from the U.S. Department of Labor definition of residential construction, the commissioner may consider such information in determining a project to be a “residential construction project.”

(25) “Site of work” is defined as follows:

(a) The site of work is limited to the physical place or places where the construction called for in the contract will remain when work on it has been completed, and other adjacent or nearby property used by the contractor or subcontractor in such construction which can reasonably be said to be included in the site.

(b) Except as provided in subsection (c) of this section, fabrication plants, mobile factories, batch plants, borrow pits, job headquarters, tool yards and similar facilities, are part of the site of work provided they are dedicated exclusively, or nearly so, to the performance of the contract or project, and are so located in proximity to the actual construction location that it would be reasonable to include them. Such facilities which are established by a supplier of materials for the project after the opening of bids are deemed to be dedicated exclusively to the performance of the contract or project.

(c) Not included in the site of work are permanent home offices, branch plant establishments, fabrication plants, and tool yards of a contractor or subcontractor whose locations and continuance in operation are determined wholly without regard to a particular contract or project. In addition, fabrication plants, batch plants, borrow pits, job headquarters, tool yards, and similar facilities of a commercial supplier or materialman which are established by a supplier of materials for the project before opening of bids and not on the project site, are not included in the site of work. Such permanent, previously established facilities are not part of the site of the work, even where the operations for a period of time may be dedicated exclusively, or nearly so, to the performance of a contract or project.

(26) “Special wage determination” means a wage determination made at the request of a public agency and which is applicable only to specific job classes. A special wage determination is issued in those cases where there is no current wage determination applicable to specific job classes and the use of such job classes is contemplated on a public works project.

(27) “Trade” or “occupation” is defined in accordance with the prevailing practices of the construction industry in Oregon.

(28) “Trainee” means a person registered and receiving on-the-job training in a construction occupation under a program which has been approved in advance by the U.S. Department of Labor, Office of Apprenticeship (OA), as meeting its standards for on-the-job training programs, and which has been so certified by that office, and who is employed by a registered training agent pursuant to ORS 660.010(10) and is working pursuant to the standards of the trainee’s program.

(29) “Training agent” means an employer that is registered with a local joint committee and the Apprenticeship and Training Division of the Bureau of Labor and Industries.

(30) “Wage determination” includes the original decision and any subsequent amendments made by the commissioner in accordance with ORS 279C.815.

(31) “Wages” or “Prevailing Wages” means the basic hourly rate of pay and fringe benefits as defined in sections (2) and (8) of this rule.

(32) “Worker” means a person employed on a public works project and whose duties are manual or physical in nature (including those workers who use tools or who are performing the work of a trade), as distinguished from mental, professional or managerial. The term “worker” includes apprentices, trainees and any person employed or working on a public works project in a trade or occupation for which the commissioner has determined a prevailing rate of wage. (See OAR 839-025-0035.)

[ED. NOTE: Appendices referenced are available from the agency.]

Stat. Auth.: Stat. Auth.: ORS 651.060(4), 279C.808

Stats. Implemented: H.B. 2646, 77th Leg., Reg. Ses. (Or2013), ORS 279C

Hist.: BL 14-1982, f. 10-19-82, ef. 10-20-82; BL 4-1984, f. & ef. 3-13-84; BL 7-1989(Temp), f. 10-2-89, cert. ef. 10-3-89; BL 5-1990, f. 3-30-90, cert. ef. 4-1-90; BL 3-1996, f. & cert. ef. 1-26-96; BL 8-1996, f. 8-26-96, cert. ef. 9-1-96; BL 3-1997(Temp), f. 7-31-97, cert. ef. 8-1-97; BL 1-1998, f. & cert. ef. 1-5-98; BLI 15-2001, f. & cert. ef. 11-14-01; BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02; Renumbered from 839-016-0004, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06; BLI 19-2006(Temp), f. 5-12-06, cert. ef. 5-15-06 thru 11-10-06; BLI 39-2006, f. 11-8-06, cert. ef. 11-10-06; BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru 1-27-08; BLI 42-2007, f.12-28-07, cert. ef. 1-1-08; BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11; BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14

839-025-0010

Payroll and Certified Statement

(1) The form required by ORS 279C.845 is the Payroll and Certified Statement form, WH-38. This form must accurately and completely set out the contractor’s or subcontractor’s payroll records, including the name and address of each worker, the worker’s correct classification, rate of pay, daily and weekly number of hours worked and the gross wages the worker earned each week during which the contractor or subcontractor employs a worker upon a public works project.

(2) The contractor or subcontractor may submit the weekly payroll on the WH-38 form or may use a similar form providing such form contains all the elements of the WH-38 form. When submitting the weekly payroll on a form other than WH-38, the contractor or subcontractor must attach the certified statement contained on the WH-38 form to the payroll forms submitted.

(3) Each Payroll and Certified Statement form must be submitted by the contractor or subcontractor to the public agency by the fifth business day of each month following a month in which workers were employed upon a public works project.

(4) The Payroll and Certified Statement forms received by the public agency are public records subject to the provisions of ORS 192.410 to 192.505. As such, they must be made available upon request. Pursuant to ORS 279C.845(4), information submitted on certified statements may be used only to ensure compliance with the provisions of ORS 279C.800 through 279C.870.

(5) If the contractor fails to submit its payroll and certified statement forms to the public agency as required by subsection (3) of this rule, the public agency must retain 25 percent of any amount earned by the contractor until the contractor has submitted the required payroll and certified statements to the public agency.

(a) The amount to be retained shall be calculated at 25 percent of the unpaid amount earned by the contractor at the time each payroll and certified statement are due. For example, if the contractor fails to submit its payroll and certified statement by the fifth of the month and the contractor earned $100,000 in the period since its last payroll and certified statement were submitted to the public agency, the public agency must retain 25 percent of $100,000 ($25,000), until such time as the required payroll and certified statement are submitted.

(b) When calculating the amount to be retained, amounts previously retained shall not be included as amounts earned by the contractor.

(c) Once the required payroll and certified statement have been submitted to the public agency, the public agency must pay the amount retained to the contractor within 14 days.

(6) If a first-tier subcontractor fails to submit a payroll and certified statement form to the public agency as required by subsection (3) of this rule, the contractor must retain 25 percent of any amount earned by the first-tier subcontractor until the first-tier subcontractor has submitted the required payroll and certified statements to the public agency.

(a) The amount to be retained shall be calculated at 25 percent of the unpaid amount earned by the first-tier subcontractor at the time each payroll and certified statement are due. For example, if the first-tier subcontractor fails to submit the payroll and certified statement by the fifth of the month and the first-tier subcontractor earned $100,000 in the period since the last payroll and certified statement were submitted to the public agency, the contractor must retain 25 percent of $100,000 ($25,000), until such time as the required payroll and certified statement are submitted.

(b) When calculating the amount to be retained, amounts previously retained shall not be included as amounts earned by the first-tier subcontractor.

(c) The contractor must verify that the first-tier subcontractor has filed the required payroll and certified statement(s) with the public agency before the contractor may pay the first-tier subcontractor any amount retained under this section.

(d) Once the first-tier subcontractor has filed the required payroll and certified statement with the public agency, the contractor must pay the amount retained to the first-tier subcontractor within 14 days.

(7) Notwithstanding ORS 279C.555 or 279C.570(7), amounts retained pursuant to the provisions of this rule shall be in addition to any other amounts retained.

(8)(a) If a project is a public works of the type described in ORS 279C.800(6)(a)(B), and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public agency or agencies providing funds for the project.

(b) When more than one public agency provides funds for a project, the public agencies may designate one agency to receive the contractor’s and any subcontractors’ payrolls.

(9)(a) If a project is a public works of the type described in ORS 279C.800(6)(a)(C), and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public agency or agencies that will occupy or use the completed project.

(b) When more than one public agency will occupy or use the completed project, the public agencies may designate one agency to receive the contractor’s and any subcontractors’ payrolls.

(10) If a project is a public works of the type described in ORS 279C.800(6)(a)(D), and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public agency that owns the land, premise(s), structure(s) or building(s) on which the solar radiation device(s) will be constructed or installed.

(11) If a project is a public works of the type described in ORS 279C.800(6)(a)(E), and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the Oregon University System or an institution in the Oregon University System that owns the real property.

[ED. NOTE: Forms and Publications referenced are available from the agency.]

Stat. Auth.: ORS 651.060(4), 279C.808

Stats. Implemented: H.B. 2646, 77th Leg., Reg. Ses. (Or2013), ORS 279C

Hist.: BL 14-1982, f. 10-19-82, ef. 10-20-82; BL 4-1984, f. & ef. 3-13-84; BL 13-1992, f. & cert. ef. 12-14-9; BL 3-1996, f. & cert. ef. -1-26-96; BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02; Renumbered from 839-016-0010, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06; BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10; BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14

839-025-0013

Notice of Public Works Form

(1) The notification form required by ORS 279C.835 is the Notice of Public Works form, WH-81.

(2) Except as provided in sections (4), (5), and (6) of this rule, the public agency must file the Notice of Public Works form, WH-81, with the Prevailing Wage Rate Unit within 30 days after the date a public works contract is awarded.

(3) The Notice of Public Works form, WH-81, must be accompanied by:

(a) payment of the fee required pursuant to ORS 279C.825; and

(b) a copy of the disclosure of first-tier subcontractors submitted to the public agency by the contractor if required pursuant to ORS 279C.370 and if a public agency awards a contract to a contractor for a public works project.

(4) When a project is a public works project pursuant to ORS 279C.800(6)(a)(B) and no public agency awards a contract to a contractor for the project, the Notice of Public Works form shall be filed by the public agency providing public funds for the project at the time the public agency commits to the provision of funds for the project.

(5) When a project is a public works project pursuant to ORS 279C.800(6)(a)(C) and no public agency awards a contract to a contractor for the project, the Notice of Public Works form shall be filed by the public agency when the agency enters into an agreement to occupy or use the completed project.

(6) When a project is a public works project pursuant to ORS 279C.800(6)(a)(D) and no public agency awards a contract to a contractor for the project, the Notice of Public Works form shall be filed by the public agency that owns the land, premise(s), structure(s) or building(s) on which the solar radiation device will be constructed or installed at the time the public agency enters into an agreement authorizing the construction or installation of the solar radiation device.

(7) When a project is a public works project pursuant to ORS 279C.800(6)(a)(E) and no public agency awards a contract to a contractor for the project, the Notice of Public Works form shall be filed by the Oregon University System or an institution in the Oregon University System that owns the real property on which the work takes place, at the time the public agency enters into an agreement authorizing the project.

(8) Public agencies are not required to file a Notice of Public Works form when the contract awarded is not regulated under the provisions of ORS 279C.800 to 279C.870.

[ED. NOTE: Forms and Publications referenced are available from the agency.]

Stat. Auth.: ORS 651.060(4), 279C.808

Stats. Implemented: H.B. 2646, 77th Leg., Reg. Ses. (Or2013), ORS 279C

Hist.: BL 14-1982, f. 10-19-82, ef. 10-20-82; BL 4-1984, f. & ef. 3-13-84; BL 3-1996, f. & cert. ef. 1-26-96; BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02; Renumbered from 839-016-0013, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10; BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10; BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14

839-025-0020

Public Works Contracts and Contract Specifications; Required Conditions

(1) For purposes of this rule:

(a) “Construction Manager/General Contractor contract” (or “CM/GC contract”) means a contract that typically results in a general contractor/construction manager initially undertaking various pre-construction tasks that may include, but are not limited to: design phase development, constructability reviews, value engineering, scheduling, and cost estimating, and in which a guaranteed maximum price for completion of construction-type work is typically established by amendment of the initial contract, after the pre-construction tasks are complete or substantially complete. “CM/GC” refers to the general contractor/construction manager under this form of contract. Following the design phase, the CM/GC may then act as a General Contractor and begin the subcontracting process. The CM/GC typically coordinates and manages the construction process, provides contractor expertise, and acts as a member of the project team.

(b) “Construction specifications” include the detailed description of physical characteristics of the improvement, design details, technical descriptions of the method and manner of doing the work, quantities or qualities of any materials required to be furnished, descriptions of dimensions, required units of measurement, composition or manufacturer, and descriptions of any quality, performance, or acceptance requirements.

(2) Every public works contract must contain the following:

(a) A condition or clause that, if the contractor fails, neglects, or refuses to make prompt payment of any claim for labor or services furnished to the contractor or a subcontractor by any person, or the assignee of the person, in connection with the public works contract as such claim becomes due, the proper officer or officers of the public agency may pay such claim and charge the amount of the payment against funds due or to become due the contractor by reason of the contract (Reference: ORS 279C.515);

(b) A condition that no person will be employed for more than 10 hours in any one day, or 40 hours in any one week except in cases of necessity, emergency, or where the public policy absolutely requires it, and in such cases the person so employed must be paid at least time and one-half the regular rate of pay for all time worked:

(A) For all overtime in excess of eight hours a day or 40 hours in any one week when the work week is five consecutive days, Monday through Friday; or

(B) For all overtime in excess of 10 hours a day or 40 hours in any one week when the work week if four consecutive days, Monday through Friday; and

(C) For all work performed on Saturday and on any legal holiday specified in ORS 279C.540 (Reference: ORS 279C.520(1));

(c) A condition that an employer must give notice to employees who work on a public works contract in writing, either at the time of hire or before commencement of work on the contract, or by posting a notice in a location frequented by employees, of the number of hours per day and days per week that the employees may be required to work (Reference: ORS 279C.520(2)); and

(d) A condition that the contractor must promptly, as due, make payment to any person, co-partnership, association or corporation, furnishing medical, surgical and hospital care or other needed care and attention, incident to sickness or injury, to employees of such contractor, of all sums which the contractor agrees to pay for such services and all moneys and sums which the contractor collected or deducted from the wages of the contractor’s employees pursuant to any law, contract or agreement for the purpose of providing or paying for such service (Reference: ORS 279C.530); and

(e) A condition or clause that requires the contractor to:

(A) Have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt under ORS 279C.836(4), (7), (8) or (9).

(B) Require, in every subcontract, that the subcontractor have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt under ORS 279C.836(4), (7), (8) or (9).

(3)(a) Every public works contract and subcontract must provide that each worker the contractor, subcontractor or other person who is a party to the contract uses in performing all or part of the contract, must be paid not less than the applicable prevailing rate of wage for each trade or occupation as defined by the Commissioner of the Bureau of Labor and Industries in the applicable publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon.

(b) If a public works project is subject to both ORS 279C.800 to ORS 279C.870 and to the Davis-Bacon Act (40 U.S.C. 3141 et seq.), every public works contract and subcontract must provide that the worker whom the contractor, subcontractor or other person who is a party to the contract uses in performing all or part of the contract, must be paid not less than the higher of the applicable state prevailing rate of wage for each trade or occupation as defined by the Commissioner of the Bureau of Labor and Industries in the applicable publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon or federal prevailing rate of wage.

(4)(a) The specifications for every public works contract must contain a provision that states the existing state prevailing rate of wage and, if applicable, the federal prevailing rate of wage required under the Davis-Bacon Act (40 U.S.C. 3141 et seq.).

(b) Except as provided in subsection (d) of this section and sections (6) and (7) of this rule, the existing state prevailing rate of wage and the applicable publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon are those in effect at the time the initial specifications were first advertised for bid solicitations.

(c) If a public agency is required under subsection (a) of this section or section (6) of this rule to include the state and federal prevailing rates of wage in the specifications for a contract for public works, the public agency shall also include in the specifications the requirement that the contractor pay the higher of the applicable state or federal prevailing rate of wage to all workers on the public works project.

(d) Pursuant to ORS 279C.838(4) and notwithstanding ORS 279C.830(1), if the contract is subject to both ORS 279C.800 to 279C.870 and the Davis Bacon Act (40 U.S.C. 3141 et seq.), the public agency may provide in the specifications for the contract a single date to be used to establish the “existing state prevailing rate of wage,” the applicable publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon, and the “applicable federal prevailing rate of wage” that is consistent with the federal requirements under 29 CFR 1.6.

(e) The specifications for a contract for public works must provide that the contractor and every subcontractor must have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt under ORS 279C.836(4), (7), (8) or (9).

(5)(a) The provisions described in sections (3) and (4), and sections (6) and (7) if applicable, must be included in all specifications for each contract awarded on the project, regardless of the price of any individual contract, so long as the combined price of all contracts awarded on the project is $50,000 or more (Reference: ORS 279C.830).

(b) A statement incorporating the applicable state prevailing wage rate publication and any amendments thereto into the specifications by reference will satisfy these requirements. Except as provided in subsection (c), such reference must include the title of the applicable wage rates publication or determination and the date of the publication or determination as well as the date of any applicable amendments.

(c) When the prevailing wage rates are available electronically or are accessible on the Internet, the rates may be incorporated into the specifications by referring to the electronically accessible or Internet-accessible rates and by providing adequate information about how to access the rates. Such reference must include the title of the applicable wage rates publication or determination and the date of the publication or determination as well as the date of any applicable amendments. The reference requirements of this subsection will be satisfied if such reference includes Uniform Resource Locator (URL) information for a webpage or webpages showing the title of each applicable wage rates publication or determination and the date of each publication or determination as well as the date of any applicable amendments.

(6)(a) When a public agency is a party to a CM/GC contract, the CM/GC contract becomes a public works contract either when the contract first constitutes a binding and enforceable obligation on the part of the CM/GC to perform or arrange for the performance of construction, reconstruction, major renovation or painting of an improvement that is a public works or when the CM/GC contract enters the construction phase, whichever occurs first.

(b) For example, the CM/GC will have a binding and enforceable obligation to perform or arrange for the performance of construction, reconstruction, major renovation or painting of an improvement after the public agency and CM/GC commit to the guaranteed maximum price.

(c) For purposes of this rule, the CM/GC contract enters the construction phase when the agency first authorizes the performance of early construction, reconstruction, major renovation or painting work directly related to the improvement project.

(d) The publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon and the prevailing wage rate in effect at the time the CM/GC contract becomes a public works contract shall apply and the applicable prevailing wage rates must be included with the construction specifications for the CM/GC contract.

(7) A public works project described in ORS 279C.800(6)(a)(B), (C), (D), or (E) that is not a CM/GC contract subject to section (6) of this rule is subject to the publication entitled Definitions of Covered Occupations for Public Works Contracts in Oregon and the existing state prevailing rate of wage or, if applicable, the federal prevailing rate of wage required under the Davis-Bacon Act that are in effect at the time a public agency enters into an agreement with a private entity for the project. (Note: The effective date of the applicable federal prevailing rate of wage may be different under federal law.) After that time, the specifications for any contract for the public works shall include the applicable prevailing rate of wage.

(8) If a project is a public works of the type described in ORS 279C.800(6)(a)(B), (C), (D), or (E) a public agency will be deemed to have complied with the provisions of ORS 279C.830 if the public agency requires compliance with the provisions of section (5) of this rule in any agreement entered into by the public agency committing to provide funds for the project, to occupy or use the completed project, or authorizing the construction or installation of a solar radiation device.

(9) Public agencies may obtain, without cost, a copy of the existing state prevailing rate of wages for use in preparing the contract specifications by contacting the Prevailing Wage Rate Unit or any office of the bureau.

Stat. Auth.: ORS 651.060(4), 279C.808

Stats. Implemented: H.B. 2646, 77th Leg., Reg. Ses. (Or2013), ORS 279C

Hist.: BL 14-1982, f. 10-19-82, ef. 10-20-82; BL 7-1989(Temp), f. 10-2-89, cert. ef. 10-3-89; BL 5-1990, f. 3-30-90, cert. ef. 4-1-90; BL 3-1996, f. & cert. ef. 1-26-96; BL 3-1997(Temp), f. 7-31-97, cert. ef. 8-1-97; BL 1-1998, f. & cert. ef. 1-5-98; BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02; Renumbered from 839-016-0020, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06; BLI 19-2006(Temp), f. 5-12-06, cert. ef. 5-15-06 thru 11-10-06; BLI 39-2006, f. 11-8-06, cert. ef. 11-10-06; BLI 2-2007, f. & cert. ef. 1-23-07; BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru 1-27-08; BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10; BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10; BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11; BLI 3-2011(Temp), f. & cert. ef. 6-8-11 thru 12-4-11; BLI 6-2011(Temp), f. & cert. ef. 7-22-11 thru 12-4-11; BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14

839-025-0035

Payment of Prevailing Rate of Wage

(1) Every contractor or subcontractor employing workers on a public works project must pay to such workers no less than the applicable prevailing rate of wage for each trade or occupation, as determined by the commissioner, in which the workers are employed. Additionally, all wages due and owing to the workers shall be paid on the regular payday established and maintained under ORS 652.120.

(2) When a public works project is subject to the Davis-Bacon Act (40 U.S.C. 3141 et seq.), if the state prevailing rate of wage is higher than the federal prevailing rate of wage, the contractor and every subcontractor on the project shall pay no less than the state prevailing rate of wage as determined under ORS 279C.815.

(3) Every person paid by a contractor or subcontractor in any manner for the person’s labor in the construction, reconstruction, major renovation or painting of a public work is employed and must receive no less than the applicable prevailing rate of wage, regardless of any contractual relationship alleged to exist. Thus, for example, if partners are themselves performing the duties of a worker, the partners must receive no less than the prevailing rate of wage for the hours they are so engaged.

(4) Persons employed on a public works project and who are spending more than 20% of their time during any workweek in performing duties which are manual or physical in nature as opposed to mental or managerial in nature are workers and must be paid the applicable prevailing rate of wage. Mental or managerial duties include, but are not limited to, administrative, executive, professional, supervisory or clerical duties.

(5) Persons employed on a public works project for the manufacture or furnishing of materials, articles, supplies or equipment (whether or not a public agency acquires title to such materials, articles, supplies or equipment during the course of the manufacture or furnishing, or owns the materials from which they are manufactured or furnished) are not workers required to be paid the applicable prevailing rate of wage unless the employment of such persons is performed in connection with and at the site of the public works project.

(6) Except as provided in ORS 279C.838, persons employed on a public works project who are employed by a commercial supplier of goods or materials must be paid no less than the applicable prevailing rate of wage when the work is performed at the “site of work” as that term is defined in OAR 839-025-0004(25) or when the work is performed in fabrication plants, batch plants, borrow pits, job headquarters, tool yards or other such places that are dedicated exclusively or nearly so to the public works project.

(7) Except as provided in ORS 279C.838, persons employed on a public works project by the construction contractor or construction subcontractor to transport materials or supplies to or from the public works project are required to be paid the applicable prevailing wage rate for work performed in connection with the transportation of materials or supplies at the “site of work” as that term is defined in OAR 839-025-0004(25).

(8) Persons employed on a public works project for personal services, as that term is defined in ORS 279C.100(5), as opposed to construction work, are not workers required to be paid the prevailing rate of wage.

(9) Every apprentice, as defined in OAR 839-025-0004(1), must be paid not less than the appropriate percentage of the applicable journeyman’s wage rate and fringe benefits as determined pursuant to ORS 279C.800 to 279C.870. Any worker on a public works project who is not an apprentice as defined in OAR 839-025-0004(1), or who is not employed by a registered training agent pursuant to ORS 660.010(10), or who is not working pursuant to the standards of the apprentice’s apprenticeship program, must be paid not less than the applicable prevailing rate of wage for the classification of work actually performed. In addition, if the total number of apprentices employed exceeds the ratio permitted in the applicable standards, all apprentices so employed must be paid not less than the applicable journeyman’s prevailing wage rate for work actually performed.

(10) Every trainee, as defined in OAR 839-025-0004(28), must be paid not less than the appropriate percentage of the applicable journeyman’s wage rate and fringe benefits determined pursuant to ORS 279C.800 to 279C.870. Any worker on a public works project who is not a trainee as defined in OAR 839-025-0004(28), or who is not employed by a registered training agent pursuant to ORS 660.010(10), or who is not working pursuant to the standards of the trainee’s program, must be paid not less than the applicable prevailing rate of wage for the classification of work actually performed. In addition, if the total number of trainees employed exceeds the ratio permitted in the applicable standards, all trainees so employed must be paid not less than the applicable journeyman’s prevailing wage rate for work actually performed.

Stat. Auth.: Stat. Auth.: ORS 651.060(4), 279C.808

Stats. Implemented: ORS 279C

Hist.: BL 14-1982, f. 10-19-82, ef. 10-20-82; BL 4-1984, f. & ef. 3-13-84; BL 7-1989(Temp), f. 10-2-89, cert. ef. 10-3-89; BL 5-1990, f. 3-30-90, cert. ef. 4-1-90; BL 8-1996, f. 8-26-96, cert. ef. 9-1-96; BL 1-1997(Temp), f. & cert. ef. 4-29-97; BL 4-1997, f. & cert. ef. 8-29-97; BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02; Renumbered from 839-016-0035, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06; BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10; BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10; BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14

839-025-0043

Frequency of Payment of Fringe Benefits

(1) Contributions made by a contractor or subcontractor to a bona fide fringe benefit plan, fund, or program must be made on a regular basis and not less often than quarterly.

(a) “Regular basis” means either the schedule of contribution as provided in writing in the plan, fund or program, or if none, the regular contribution schedule established by the contractor or subcontractor pursuant to subsection (b) of this section. For example, if the plan specifies that contributions to a bona fide fringe benefit fund be made by the fifteenth calendar day of each month following the month the wages were earned, then contributions to the fund must be made by that date.

(b) If the plan, fund or program does not specify a contribution date, or if the specified contribution date as written in the plan, fund or program does not meet the meaning of “not less often than quarterly,” as defined below, the contractor or subcontractor must establish and maintain a contribution date by which payment to the plan, fund or program will be made on a regular basis and not less often than quarterly.

(c) “Not less often than quarterly” means that the fringe benefit portion of wages must be contributed to a bona fide fund, plan or program at least once every three months within an established consecutive twelve month period. The contribution must represent payment to the fund, plan or program for amounts earned in the three month period immediately prior to the contribution date.

(A) An established twelve month period may be a calendar year, fiscal year, plan year, or other consecutive twelve month period as determined by the employer. The beginning of the twelve month period may be changed only if the change is intended to be permanent, and is not designed to evade the timely payment of contributions into a bona fide fund, plan or program. If an employer does not determine a consecutive twelve month period, the default period shall be a calendar year; that is, from 12:00 midnight on January 1 to 11:59 p.m. December 31, each year.

(B) As an example, using the calendar year as the established consecutive twelve month period, a contractor or subcontractor establishes a contribution date of April 15 for the payment of fringe benefits earned between January 1 and March 31 into the plan, fund or program; consequently, amounts earned between April 1 and June 30 must be contributed into the plan, fund or program on or before July 15; amounts earned between July 1 and September 30 must be contributed into the plan, fund or program on or before October 15; and amounts earned between October 1 and December 31 must be contributed into the plan, fund or program on or before January 15.

(2) Payments of fringe benefits made directly to the worker in lieu of payment of fringe benefits to a plan, fund, or program must be paid to the worker as wages on the regularly scheduled pay date.

Stat. Auth.: Stat. Auth.: ORS 651.060(4), 279C.808

Stats. Implemented: ORS 279C

Hist.: BL 1-1998, f. & cert. ef. 1-5-98; Renumbered from 839-016-0043, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14

839-025-0085

Contract Ineligibility

(1) Under the following circumstances, the commissioner, in accordance with the Administrative Procedures Act, may determine that a contractor or a subcontractor or a firm, limited liability company, corporation, partnership or association in which the contractor or subcontractor has a financial interest may not receive a contract or subcontract for a public works for a period of three years:

(a) The contractor or subcontractor has intentionally failed or refused to pay the prevailing rate of wage to workers employed on a public works project as required under ORS 279C.840;

(b) The subcontractor has failed to pay the prevailing rate of wage to workers employed on a public works project as required under ORS 279C.840 and the contractor has paid the amounts owed on the subcontractor’s behalf;

(c) The contractor or subcontractor has intentionally failed or refused to post the prevailing wage rates as required under ORS 279C.840(4) and these rules; or

(d) The contractor or subcontractor has intentionally falsified information in the certified statements the contractor or subcontractor submitted under ORS 279C.845.

(2) If a contractor or subcontractor is a corporation or a limited liability company, the provisions of this rule will apply to any corporate officer or agent of the corporation or any member or manager of the limited liability company who is responsible for failing or refusing to pay or post the prevailing wage rates, failing to pay to a subcontractor’s employees amounts required under ORS 279C.840 that the contractor pays on the subcontractor’s behalf or intentionally falsifying information in the certified statements the contractor or subcontractor submits under ORS 279C.845.

(3) As used in section (2) of this rule, any corporate officer or agent of the corporation or any member or manager of the limited liability company responsible for failing or refusing to pay or post the prevailing wage rates, failing to pay to a subcontractor’s employees amounts required under ORS 279C.840 that the contractor pays on the subcontractor’s behalf or intentionally falsifying information in the certified statements the contractor or subcontractor submits under ORS 279C.845, includes, but is not limited to, the following individuals when the individuals knew or should have known the amount of the applicable prevailing wages or that such wages must be posted:

(a) The corporate president;

(b) The corporate vice president;

(c) The corporate secretary;

(d) The corporate treasurer;

(e) Any member or manager of the limited liability company;

(f) Any other person acting as an agent of a corporate officer, the corporation, limited liability member or manager, or limited liability company.

(4) The Wage and Hour Division will maintain a written list of the names of contractors, subcontractors and other persons who are ineligible to receive public works contracts and subcontracts. The list will contain the name of contractors, subcontractors and other persons and the name of any firms, corporations, limited liability companies, partnerships or associations in which the contractor, subcontractor or other persons have a financial interest. Except as provided in OAR 839-025-0095, such names will remain on the list for the duration of the period, as determined by the commissioner, in which no contract or subcontract for public works may be received.

(5) Before placing a name on the ineligible list referred to in section (4) of this rule, the commissioner will serve a notice of intended action upon the contractor or subcontractor in the same manner as service of summons or by certified mail, return receipt requested. The notice will include:

(a) A reference to ORS 279C.840;

(b) A short and concise statement of the matters which constitute intentional failure or refusal to pay or post the prevailing rate of wage or intentional falsification of information in the certified statements;

(c) A statement of the party’s right to request a contested case hearing and to be represented by counsel at such hearing, provided that any such request must be received by the commissioner in writing within 20 days of service of the notice;

(d) A statement that the party’s name will be published on a list of persons ineligible to receive public works contracts or subcontracts, unless the party requests a contested case hearing as provided in section (5)(c) of this rule;

(e) A statement that failure to make written request to the commissioner for a contested case hearing within the time specified will constitute a waiver of the right thereto; and

(f) A statement that if a hearing is requested, the contractor or subcontractor will be given information on procedures and rights as required by ORS 183.413(2).

(6) Upon the failure of the contractor or subcontractor to request a contested case hearing within the time specified, the commissioner or the commissioner’s designee will enter an order supporting the bureau’s action.

(7) If a contractor or subcontractor makes a timely request for a contested case hearing, a hearing will be held in accordance with the Attorney General’s Model Rules of Procedure under the Administrative Procedure Act by the commissioner or the commissioner’s designee.

Stat. Auth.: ORS 651.060(4), 279C.808

Stats. Implemented: H.B. 2646, 77th Leg., Reg. Ses. (Or2013), ORS 279C

Hist.: BL 14-1982, f. 10-19-82, ef. 10-20-82; BL 4-1984, f. & ef. 3-13-84; BL 3-1996, f. & cert. ef. 1-26-96; BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02; Renumbered from 839-016-0085, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10; BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14

839-025-0090

List of Ineligibles

(1) The name of the contractor, subcontractor or other persons and the names of any firm, corporation, limited liability company, partnership or association in which the contractor or subcontractor has a financial interest whom the commissioner determines are ineligible to receive public works contracts shall be published on a list of persons ineligible to receive such contracts or subcontracts.

(2) The list of persons ineligible to receive contracts or subcontracts on public works shall be known as the List of Ineligibles. In addition to names referred to in section (1) of this rule, the list shall contain the date the name was placed on the list and the period of time for which the person is ineligible.

(3) The List of Ineligibles shall be published and amended as needed at any time. Such list shall be made available to the public as published or amended.

Stat. Auth.: ORS 651.060(4), 279C.808

Stats. Implemented: H.B. 2646, 77th Leg., Reg. Ses. (Or2013), ORS 279C

Hist.: BL 14-1982, f. 10-19-82, ef. 10-20-82; BL 4-1984, f. & ef. 3-13-84; Renumbered from 839-016-0090, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 42-2007, f. 12-28-07. cert. ef. 1-1-08; BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14

839-025-0095

Removal of Names from List

(1) The names of the contractor, subcontractor or other persons and the names of any firm, corporation, limited liability company, partnership or association in which the contractor, subcontractor or other persons have a financial interest shall remain on the list for the period of time for which the contractor, subcontractor or other person is ineligible.

(2) The names referred to in section (1) of this rule shall be removed from the list after the period of time for which the contractor, subcontractor or other person is ineligible has expired.

(3) The commissioner may, for good cause shown, remove a name from the list before the expiration of the period of ineligibility. If the commissioner determines good cause has been shown, the commissioner shall issue an order directing the removal of such name or names.

(4) Contractors, subcontractors or other persons, or any firm, corporation, limited liability company, partnership or association in which the contractor, subcontractor or other persons have a financial interest who desire to be removed from the list before the expiration of the period of ineligibility must show good cause for such removal. Such persons may petition the commissioner at any time during the period of ineligibility.

(5) In reviewing such petitions, the commissioner shall consider the following matters:

(a) The past history of the petitioner in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(c) Magnitude and seriousness of the violation;

(d) Other matters which indicate to the commissioner that the petitioner is not likely to violate ORS 279C.800 to 279C.870 and these rules in the future.

(6) The commissioner shall grant or deny the petition.

Stat. Auth.: ORS 651.060(4), 279C.808

Stats. Implemented: H.B. 2646, 77th Leg., Reg. Ses. (Or2013), ORS 279C

Hist.: BL 14-1982, f. 10-19-82, ef. 10-20-82; BL 4-1984, f. & ef. 3-13-84; Renumbered from 839-016-0095, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14

839-025-0230

Special Circumstances

(1) When a public agency enters into an agreement for construction management services or chooses to act as its own general contractor or construction manager in connection with a public works project subject to ORS 279C.800 to 279C.870, the contract price for purposes of determining whether the project is regulated under the law shall be the sum of all contracts associated with the project or, if the actual sums are not known at the time work begins, the contract price shall be the guaranteed maximum amount for the project or the agency’s good faith estimate of the contract price of the project if there is no guaranteed maximum amount.

(2) When a public agency contracts with a contractor to act as the general manager of a public works project, the contract for general manager services is a public works contract for purposes of these rules and a fee is required just as it is for any other public works contract, since the contract would not have been entered into but for the public works project.

(3) When a public agency acts as its own general contractor and enters into one or several contracts in connection with a public works project subject to ORS 279C.800 to 279C.870, the public agency is required to pay the fee in connection with each contract awarded to each contractor. The fee is required on all contracts, regardless of the contract price of any individual contract, so long as the combined price of all contracts awarded on the project is $50,000 or more.

(4) When a project is a public works project pursuant to ORS 279C.800(6)(a)(B) and no public agency awards a contract to a contractor for the project, the public agency or agencies providing public funds for the project shall pay the required fee at the time the public agency or agencies commit(s) to the provision of funds for the project. The amount of the fee shall be based on the total project amount. When the amount of the project is not known by the public agency or agencies providing public funds for the project, the public agency or agencies shall pay the required fee pursuant to the provisions of OAR 839-025-0220.

(5) When a project is a public works project pursuant to ORS 279C.800(6)(a)(C) and no public agency awards a contract to a contractor for the project, the public agency or agencies that will occupy or use the completed project shall pay the required fee when the agency or agencies enter(s) into an agreement to occupy or use the completed project. The amount of the fee shall be based on the total project amount. When the amount of the project is not known by the public agency or agencies that will occupy or use the completed project, the public agency or agencies shall pay the required fee pursuant to the provisions of OAR 839-025-0220.

(6) When a project is a public works project pursuant to ORS 279C.800(6)(a)(D) and no public agency awards a contract to a contractor for the project, the public agency that owns the land, premise(s), structure(s), or building(s) on which the solar radiation device will be constructed or installed shall pay the required fee at the time the public agency enters into an agreement authorizing the construction or installation of the solar radiation device. The amount of the fee shall be based on the total project amount. When the amount of the project is not known by the public agency, the public agency shall pay the required fee pursuant to the provisions of OAR 839-025-0220.

(7) When a project is a public works project pursuant to ORS 279C.800(6)(a)(E) and no public agency awards a contract to a contractor for the project, the Oregon University System or institution in the Oregon University System that owns the land, premise(s), structure(s), or building(s) on which the construction, reconstruction, major renovation or painting takes place shall pay the required fee at the time the Oregon University System or institution in the Oregon University System enters into an agreement authorizing the construction, reconstruction, major renovation or painting. The amount of the fee shall be based on the total project amount. When the amount of the project is not known by the Oregon University System or institution in the Oregon University System, the Oregon University System or institution in the Oregon University System shall pay the required fee pursuant to the provisions of OAR 839-025-0220.

(8) When more than one public agency is required to pay a fee pursuant to section (4) or (5) of this rule, the amount of the fee owed by each public agency shall, if not otherwise previously agreed upon by the agencies, be pro-rated proportionately based on the amount of public funds provided or space occupied or used by each agency.

Stat. Auth.: ORS 651.060(4), 279C.808

Stats. Implemented: H.B. 2646, 77th Leg., Reg. Ses. (Or2013), ORS 279C

Hist.: BL 3-1996, f. & cert. ef. 1-26-96; Renumbered from 839-016-0230, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06; BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 23-2010, f. 12-30-10, cert. ef. 1-1-11; BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14

839-025-0530

Violations for Which a Civil Penalty May Be Assessed

(1) The commissioner may assess a civil penalty for each violation of any provision of the Prevailing Wage Rate Law (ORS 279C.800 to 279C.870) and for each violation of any provision of the administrative rules adopted under the Prevailing Wage Rate Law.

(2) Civil penalties may be assessed against any contractor, subcontractor or public agency regulated under the Prevailing Wage Rate Law and are in addition to, not in lieu of, any other penalty prescribed by law.

(3) The commissioner may assess a civil penalty against a contractor or subcontractor for any of the following violations:

(a) Failure to pay the applicable prevailing rate of wage in violation of ORS 279C.840;

(b) Failure to pay all wages due and owing to the contractor’s or subcontractor’s workers on the regular payday established and maintained under ORS 652.120 in violation of ORS 279C.840(1).

(c) Failure to post the applicable prevailing wage rates in violation of ORS 279C.840(4);

(d) Failure to post the notice describing the health and welfare or pension plans in violation of ORS 279C.840(5);

(e) Failure to include a provision in a subcontract that workers shall be paid not less than the specified minimum hourly rate of wage in violation of ORS 279C.830(1)(c);

(f) If a public works project is subject to both ORS 279C.800 to 279C.870 and to the Davis-Bacon Act (40 U.S.C. 3141 et seq.), failure to include a provision in a subcontract that workers must be paid not less than the higher of the applicable state or federal prevailing rate of wage in violation of ORS 279C.830(1)(d);

(g) Failure to include in a subcontract a provision requiring the subcontractor to have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt, in violation of ORS 279C.830(2);

(h) Failure to file with the Construction Contractors Board a public works bond, as required under ORS 279C.836, before starting work on a contract or subcontract for a public works project subject to the provisions of ORS 279C.800 to 279C.870;

(i) Failure to verify that a subcontractor has filed a public works bond as required or has elected not to file a public works bond under ORS 279C.836 prior to permitting a subcontractor to start work on a public works project;

(j) Failure to file certified statements in violation of ORS 279C.845;

(k) Filing inaccurate or incomplete certified statements in violation of ORS 279C.845;

(l) Failure to retain 25 percent of the amount the first-tier subcontractor earned when the first-tier subcontractor fails to submit payroll and certified statement forms to the public agency in violation of ORS 279C.845;

(m) Paying the prevailing rate of wage in violation of ORS 279C.840(6);

(n) Reducing an employee’s pay in violation of ORS 279C.840(7);

(o) Taking action to circumvent the payment of the prevailing wage, other than subsections (k) and (m) of this section, in violation of ORS 279C.840(7);

(p) Failure to submit reports and returns in violation of ORS 279C.815(3);

(q) Failure to certify the accuracy of reports and returns in violation of ORS 279C.815(3);

(r) Failure to timely pay the fee required by ORS 279C.825 on public works contracts first advertised or solicited prior to January 1, 2008;

(s) Receiving a public works contract or subcontract while on the list of ineligibles in violation of ORS 279C.860;

(t) Awarding a contract to a contractor whose name appears on the list of ineligibles maintained pursuant to ORS 279C.860.

(u) Failure to contribute fringe benefit wages timely to a trustee or to a third person pursuant to a plan, fund or program on a “regular basis” and “not less often than quarterly,” as those terms are defined in OAR 839-025-0043.

(4) The commissioner may assess a civil penalty against a public agency for any of the following violations:

(a) Failure to include in the specifications for a public works contract a provision stating the applicable existing prevailing wage rate in violation of ORS 279C.830(1)(a);

(b) If a public works project is subject to both ORS 279C.800 to 279C.870 and to the Davis-Bacon Act (40 U.S.C. 3141 et seq.), failure to require the contractor to pay the higher of the applicable state prevailing rate of wage or federal prevailing rate of wage to all workers in violation of ORS 279C.830(1)(b);

(c) Failure to include a contract provision stating that workers must be paid the applicable prevailing rate of wage in violation of ORS 279C.830(1)(c);

(d) If a public works project is subject to both ORS 279C.800 to 279C.870 and to the Davis-Bacon Act (40 U.S.C. 3141 et seq.), failure to include a contract provision stating that workers on public works must be paid not less than the higher of the applicable state prevailing rate of wage or federal prevailing rate of wage in violation of ORS 279C.830(1)(d);

(e) Failure to include in the specifications for a contract for a public works stating that the contractor and every subcontractor must have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt, in violation of ORS 279C.830(2);

(f) Failure to include in a contract for a public works a provision requiring the contractor to have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt, in violation of ORS 279C.830(2)(a);

(g) Failure to include in a contract for a public works a provision requiring the contractor to include in every subcontract a provision requiring the contractor to have a public works bond filed with the Construction Contractors Board before starting work on the project, unless exempt, in violation of ORS 279C.830(2)(b);

(h) Failure to notify the commissioner when a contract is awarded in violation of ORS 279C.835;

(i) Dividing a public works project in violation of ORS 279C.827;

(j) Failure to include a copy of the disclosure of first-tier subcontractors with the Notice of Award in violation of ORS 279C.835;

(k) Failure to retain 25 percent of the amount the contractor earned when the contractor fails to submit payroll and certified statement forms to the public agency in violation of ORS 279C.845;

(l) Failure to timely pay the fee required in violation of ORS 279C.825;

(m) Awarding a contract to a contractor whose name appears on the list of ineligibles maintained pursuant to ORS 279C.860;

(n) Entering into an agreement with another state or a political subdivision or agency of another state agreeing that a contractor or subcontractor may pay less than the prevailing rate of wage determined in accordance with ORS 279C.815 under the terms of a contract for public works to which the contracting agency is a party or of which the contracting agency is a beneficiary in violation of ORS 279C.829.

Stat. Auth.: ORS 651.060(4), 279C.808

Stats. Implemented: ORS 279C

Hist.: BL 3-1996, f. & cert. ef. 1-26-96; BL 1-1998, f. & cert. ef. 1-5-98; BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02; Renumbered from 839-016-0530, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05; BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06; BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru 1-27-08; BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10; BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10; BLI 3-2011(Temp), f. & cert. ef. 6-8-11 thru 12-4-11; BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11; BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14


Rule Caption: Implements legislation abolishing Wage and Hour Commission; modifies meal period requirement for minors

Adm. Order No.: BLI 10-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 1-1-14

Notice Publication Date: 11-1-2013

Rules Amended: 839-021-0006, 839-021-0067, 839-021-0070, 839-021-0072, 839-021-0087, 839-021-0097, 839-021-0102, 839-021-0104, 839-021-0175, 839-021-0220, 839-021-0221, 839-021-0246, 839-021-0248, 839-021-0255, 839-021-0265, 839-021-0280, 839-021-0290, 839-021-0292, 839-021-0294, 839-021-0297, 839-021-0315, 839-021-0320, 839-021-0325, 839-021-0330, 839-021-0335, 839-021-0340, 839-021-0345, 839-021-0350, 839-021-0355, 839-021-0360, 839-021-0365, 839-021-0370, 839-021-0490

Subject: The 2013 Regular Session of the Oregon Legislature abolished the Wage and Hour Commission and transferred its duties, functions, and powers to the Bureau of Labor and Industries. The rule amendments replace references to the Wage and Hour Commission with the Bureau of Labor and Industries. In addition, the rule amendments conform the meal period requirement for minor employees to that found in OAR 839-020-0050, which establishes the meal period requirement for adult employees.

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

839-021-0006

Definitions

As used in ORS 653.305 to 653.370 and in OAR 839-021-0001 to 839-021-0500, unless the context requires otherwise:

(1) “Agriculture” includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities, the raising of livestock, bees, fur-bearing animals, or poultry and any practices performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market, or to carriers for transportation to market. “Agricultural employment” is employment in “Agriculture” as herein defined.

(2) “Bureau” means Bureau of Labor and Industries of the State of Oregon.

(3) “Commissioner” means the Commissioner of the Bureau of Labor and Industries.

(4) “Employ” has the same meaning as that which appears in ORS 653.010(2).

(5) “Employer” has the same meaning as that which appears in ORS 653.010(3).

(6) “Employment Certificate” means the employment certificate issued to employers for the employment of minors pursuant to ORS 653.307, and the employment permit referred to in ORS 653.320(3).

(7) “Harvest Season” means a period of time during which the crop or crops of the agricultural employer for whom a minor is employed are harvested. Work performed during the harvest season includes work in connection with the gathering of the crop but does not include cultivation and tillage of the soil or cultivation and growing of agricultural commodities.

(8) “Minor” means any person under 18 years of age.

(9) “Workday” means any fixed period of 24 consecutive hours.

(10) “Workweek” means any fixed and regularly recurring period of seven consecutive workdays.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 6-1988, f. & cert. ef. 4-12-88; BL 11-1991, f. & cert. ef. 10-31-91; BL 3-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0067

Hours of Employment for Minors 16 and 17 Years of Age

(1) An employer may not employ a 16 or 17 year old to work more than 44 hours per week except those employed in organized youth camps or those employed in agricultural employment.

(2) An employer who wishes to employ a 16 or 17 year old to work more than 44 hours per week must be issued a Special Emergency Overtime Permit by the Bureau. This permit will not be issued unless:

(a) The number of hours do not exceed those provided by statute; and

(b) When the minor is not otherwise exempt from the overtime pay provisions of any law, the minor receives one and one half times the regular rate of pay for all hours worked over 40 in a workweek.

(3) The maximum number of hours for a 16 or 17 year old employed in a cannery is ten hours per day.

(4) An employer who wishes to employ a 16 or 17 year old in a cannery for time in excess of ten hours per day, may apply in writing to the Child Labor Unit of the Wage and Hour Division, Bureau of Labor and Industries, 800 NE Oregon St., Suite 1045, Portland OR 97232-2180.

(a) The employer must set out the full and complete circumstances of the proposed employment in the written application.

(b) The Bureau will investigate the terms and conditions of the proposed employment and if the Bureau determines that the character of the employment is suitable and that the employment will not adversely affect the physical and moral well-being of the minor, the Bureau will issue a Special Emergency Overtime Permit to the employer.

(5) If, after the investigations referred to in section (4)(b) of this rule, the Bureau determines that the character of the employment is unsuitable and that such employment will adversely affect the physical and moral well-being of the minor or that there is no adverse effect on the employment opportunities of the minor, the Bureau will refuse to issue a Special Emergency Overtime Permit.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 142, f. 6-28-73, ef. 7-15-73; BL 3-1979(Temp), f. & ef. 3-21-79; BL 5-1979(Temp), f. & ef. 5-16-79; BL 12-1979, f. & ef. 9-6-79; BL 11-1981(Temp), f. & ef. 10-30-81; BL 4-1982, f. & ef. 3-5-82; BL 6-1988, f. & cert. ef. 4-12-88; BL 11-1990, f. 8-16-90, cert. ef. 9-1-90; BL 11-1991, f. & cert. ef. 10-31-91; BL 3-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0070

Hours of Employment for Minors Under 16 Years of Age

(1) Except as otherwise provided in this rule, employment of minors under 16 years of age must be confined to the following periods:

(a) Outside school hours;

(b) Not more than 40 hours in any one week when school is not in session;

(c) Not more than 18 hours in any one week when school is in session;

(d) Not more than eight hours in any one day when school is not in session;

(e) Not more than three hours in any one day when school is in session;

(f) Between 7 a.m. and 7 p.m., except that during the summer (June 1 through Labor Day) the minor may work until 9:00 p.m.

(2) In the case of enrollees in work training programs conducted under Part B of Title I of the Economic Opportunity Act of 1964, there is an exception to the requirement of subsection (1)(a) of this rule if the employer has on file with the records kept pursuant to OAR 839-021-0170 an unrevoked written statement of the Regional Manpower Administrator of the U.S. Department of Labor or representative setting out the periods which the minor will work and certifying that the minor’s employment confined to such periods will not interfere with the minor’s health and well-being, countersigned by the principal of the school which the minor is attending with the principal’s certificate that such employment will not interfere with the minor’s schooling.

(3) In the case of students enrolled in a career exploration or other work experience program, there is an exception to subsection (1)(a) of this rule when:

(a) The minor is employed as a student learner pursuant to ORS 653.070; or

(b) The minor is enrolled in a school-supervised and school-administered work experience and career exploration program meeting the educational standards established and approved by the Oregon Department of Education.

(4) This rule does not apply when Title 29, CFR, Part 570, Subpart C, Section 570.35a would otherwise apply.

(5) Employment of minors enrolled in a program pursuant to sections (2), (3), and (4) of this rule must be confined to not more than 23 hours in any one week when school is in session and not more than three hours in any day when school is in session, any portion of which may be during school hours. Insofar as these provisions are inconsistent with the provisions of section (1) of this rule, this section will be controlling.

(6) The employment of a minor enrolled in a program pursuant to sections (2), (3), and (4) of this rule must not have the effect of displacing a worker employed in the establishment of the employer.

(7) The Bureau may waive the provisions of section (1)(f) of this rule and OAR 839-021-0246(4)(d) and authorize minors under 16 years of age employed by their parent(s) or person(s) standing in the place of their parent(s) to work as late as 9:00 p.m. when the Bureau determines that such hours of work will not be detrimental to the health, safety or education of the children so employed and the minor is supervised by the minor’s parent(s) or person(s) standing in the place of their parent(s) during the extended hours employed. No minor may be employed to work in violation of the provisions of (1)(a), (b), (c), (d), and (e) of this rule or, in the case of minors under 14 years of age, in violation of OAR 839-021-0246(4)(a), (b), and (c).

(8) Pursuant to section (7) of this rule, a parent/employer desiring to employ a minor under 16 years of age later than the times permitted in section (1)(f) of this rule or OAR 839-021-0246(4)(d) may apply in writing to the Child Labor Unit of the Wage and Hour Division, Bureau of Labor and Industries, 800 NE Oregon St., Suite 1045, Portland OR 97232-2180. The Bureau will investigate the employment and the facts and circumstances set out in the application. If the Bureau determines that the employment is suitable and will not adversely affect the well-being of the minor(s), the Bureau will issue a special permit to the parent/employer, setting out the terms and conditions of the permit.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 11-1990, f. 8-16-90, cert. ef. 9-1-90; BL 15-1992, f. 12-14-92, cert. ef. 12-15-92; BL 3-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 13-2000, f. 5-31-00, cert. ef. 6-1-00; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 27-2009, f. 12-1-09, cert. ef. 1-1-10; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0072

Rest Periods and Meal Periods

(1) Every employer must provide to each minor employee a meal period of not less than 30 continuous minutes in the manner prescribed by OAR 839-020-0050. However, the exemption provided for by OAR 839-020-0050(3) does not apply to minor employees under the age of 16.

(2) Every employer must provide each minor employee a rest period of not less than 15 minutes in the manner prescribed by OAR 839-020-0050.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 142, f. 6-28-73, ef. 7-15-73; BL 13-1979, f. & ef. 9-6-79; BL 6-1988, f. & cert. ef. 4-12-88; BLI 4-1998, f. & cert. ef. 3-5-98; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0087

Working Conditions

(1) An employer may not employ any minor to work in the State of Oregon, except under the following conditions:

(a) Where a sanitary and safe work area is provided;

(b) Where adequate lighting is provided;

(c) Where adequate ventilation is provided;

(d) Where adequate washrooms are provided;

(e) Where adequate toilet facilities are provided;

(f) Where the employer is in full compliance with provisions of ORS Chapter 654 (The Oregon Safe Employment Act) and the rules and regulations promulgated thereunder. For the purposes of this rule, the compliance status of the employer is determined by the Occupational Safety and Health Division of the Department of Consumer and Business Services;

(g) Where the employer is in full compliance with the provisions of the following statutes relating to the payment of wages:

(A) ORS 652.110 to 652.190;

(B) ORS 652.610;

(C) ORS 653.010 to 653.265;

(D) ORS 279.348 to 279.365;

(E) Title 29, U.S.C., 201, et seq. (Federal Fair Labor Standards Act);

(F) Title 40, U.S.C., 276a. (Davis-Bacon Act);

(G) Title 41, U.S.C., 351, et seq. (Service Contract Act).

(2) When the following facilities are provided, an employer may not employ any minor to work in the State of Oregon unless:

(a) The rest rooms provided are adequate;

(b) The dressing rooms provided are adequate;

(c) The lunch rooms provided are adequate;

(d) The cot or stretcher provided for use in illnesses, accidents, or other emergencies is adequate.

(3) Upon expiration of ten days after receipt of notice and recommendations of the appropriate governmental agency with respect to temperature and humidity conditions or within such further time after receipt of the notice as may be prescribed by the Bureau, an employer may not employ any minor without complying with the recommendations.

(4) Every employer must provide to each minor when required by the nature of the work, “suitable seats,” “suitable tables,” and “suitable work benches”:

(a) “Suitable seats” means convenient, comfortable and safe seats where the work is such that minors may sit while working. “Suitable seats” in cannery occupations means one for every three minors who work in or on inspection tables and inspection belts;

(b) “Suitable tables” and “suitable work benches” mean tables and work benches so constructed as to give the greatest possible comfort and convenience to minors where the nature of the work and the safety and convenience of the minor requires a bench or table.

(5) An employer may not require a minor to report for work without providing adequate work to earn a reasonable compensation, or paying to such minor a reasonable compensation in lieu thereof. As used in this paragraph:

(a) “Adequate work” means sufficient work to earn at least one-half the amount the minor would have earned at the minor’s regular rate had the minor worked the hours that the minor and the employer previously agreed to;

(b) “Reasonable compensation” means the greater of:

(A) The amount the minor receives for one hour of work at the minor’s regular rate of pay; or

(B) The amount determined by multiplying the minor’s regular rate of pay by one-half the hours the minor and the employer agreed the minor would work.

(6) The provisions of section (5) of this rule do not apply when all the following conditions are met pertaining to the employer providing the minor notice not to report to work:

(a) The employer has a policy describing how notice not to report to work will be given minors; and

(b) The employer posts its notice policy in a conspicuous place frequented by employees at the worksite where the minor is employed; and

(c) The employer communicates this policy to the minor prior to the minor’s first day of work; and

(d) The employer makes a good faith attempt to follow its policy so as to give the minor notice before the minor must leave home to travel to work; or

(7) When circumstances beyond the employer’s control prevent the performance of the work the minor was to perform during the hours the minor had agreed to or was scheduled to work. Such circumstances include, but are not limited to, acts of nature (e.g., snowstorms, flooding), emergencies (e.g., fires, power outages), and unforeseeable equipment failures.

(8) The employer has the burden to maintain records sufficient to resolve any dispute arising under section (5) of this rule concerning the hours the minor agreed to or was scheduled to work.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 142, f. 6-28-73, ef. 7-15-73; BL 2-1987, f. & ef. 1-16-87; BL 6-1987, f. & ef. 3-19-87; BL 6-1988, f. & cert. ef. 4-12-88; BL 12-1990(Temp), f. 8-16-90, cert. ef. 8-17-90; BL 2-1991, f. 1-23-91, cert. ef. 2-14-91; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0097

Special Employment Situations

(1) No minor under 16 years of age:

(a) May be employed in an occupation or type of work declared hazardous by the Bureau (see OAR 839-021-0102);

(b) May be assigned any duties in connection with an organized youth camp prior to 6 a.m. or after 10 p.m., or more than eight hours per day;

(c) May be employed to act as a canvasser, peddler or “outside salesperson” as defined in ORS 653.010(7), from house to house.

(2) Except as provided in subsection (3) of this section, no minor may be employed at any work on or around any unenclosed commercial wharves or docks or in any unenclosed buildings extending over water, unless:

(a) There is located at the site of the work and conspicuously displayed at such site adequate safety equipment including, but not limited to:

(A) For every 30 linear feet of unenclosed area no less than one Type IV personal flotation device containing 16.5 pounds of buoyancy and one polypropylene line no less than 30 feet in length attached thereto;

(B) No less than one pole of not less than ten feet in length with a blunt hook attached thereto; and

(b) The minors so employed have been adequately instructed in the use of such equipment;

(c) There is provision made that no minor employee ever be required to work out of sight and hearing of another employee; and

(d) There is located at the site of the work and conspicuously displayed an alarm device adequate to alert all employees on the job site to the existence of a perilous situation.

(3) Minors may not be employed on or around fishing vessels except under the following conditions:

(a) Minors of 16 and 17 years of age may be employed as assistants on chartered fishing or pleasure boats;

(b) Minors of 14 and 15 years of age may be employed at dock areas used by chartered fishing or pleasure boats; and

(c) Minors may be employed on commercial fishing vessels without an employment certificate when employed and supervised by the minors’ grandfather, grandmother, father, mother, brother, sister, uncle, or aunt.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 142, f. 6-28-73, ef. 7-15-73; BL 185, f. 1-30-76, ef. 2-1-76; BL 11-1978(Temp), f. 9-18-78, ef. 9-19-78; BL 14-1978, f. 12-13-78, ef. 1-17-79; BL 2-1979, f. & ef. 2-13-79; BL 1-1985, f. 2-21-85, ef. 3-1-85; BL 6-1988, f. & cert. ef. 4-12-88; BL 3-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0102

Occupations and Types of Work Declared Hazardous for Minors Under 16 Years of Age

(1) Pursuant to OAR 839-021-0097(1)(a), the Bureau hereby declares the following occupations and types of work to be hazardous and any employment by minors under 16 years of age is hereby prohibited:

(a) Baking;

(b) Blast furnaces;

(c) Breweries;

(d) Bridge operations;

(e) Briquet plants;

(f) Building cleaning (exterior);

(g) Cattle handling;

(h) Coal plants or bunkers;

(i) Cold storage plants;

(j) Commercial docks;

(k) Construction (alteration, repair, painting, or demolition of buildings, bridges, and structures);

(l) Cooking (except: cooking with a gas or electric grill that does not have an open flame; using a microwave to warm food; or using a deep fryer that is equipped with a device that automatically raises and lowers the basket);

(m) Creosoting works;

(n) Distilleries;

(o) Electric power plants, lines;

(p) Electric light plants, lines;

(q) Engineering works (construction, improvement, alteration, or repair of steam plants, water power plants, telephone, telegraph, or electric plants or lines or railroads, streets, highways, sewers, harbors, docks, or canals);

(r) Firefighting;

(s) Foundries;

(t) Garbage works;

(u) Gas works;

(v) Grain elevators;

(w) Gravel or sand plant or bunker;

(x) Ice plants;

(y) Kitchen cleaning of equipment when the surface is hotter than 100 degrees Fahrenheit, or filtering or disposing of cooking oil or grease that is hotter than 100 degrees Fahrenheit;

(z) Railroads;

(aa) Land clearing (with blasting or presence of heavy equipment);

(bb) Logging operations;

(cc) Longshoring;

(dd) Lumber loading;

(ee) Mechanical amusements;

(ff) Milk condenseries;

(gg) Mines;

(hh) Moving buildings, bridges, and structures;

(ii) Peace officer work;

(jj) Powder works;

(kk) Quarries;

(ll) Reduction works;

(mm) Rock crusher;

(nn) Smelters;

(oo) Stockyards;

(pp) Surveying;

(qq) Tanneries;

(rr) Tree surgery;

(ss) Well digging and drilling;

(tt) Window cleaning (outside above ground);

(uu) Wineries;

(vv) Wood cutting, sawing.

(2) The following occupations and types of work are declared to be hazardous for any minor under 16 years of age when the work is performed in rooms or areas having power-driven machinery:

(a) Boat repair shops;

(b) Canneries;

(c) Chop mills;

(d) Creameries;

(e) Cycle repair shops;

(f) Electrotyping plants;

(g) Engraving plants;

(h) Factories (manufacturing, repair, alteration);

(i) Feed mills;

(j) Flour mills;

(k) Garages;

(l) Grain warehouses;

(m) Irrigation works;

(n) Laundries;

(o) Lithographing plants;

(p) Mills;

(q) Motor repair shops;

(r) Photoengraving plants;

(s) Printing plants;

(t) Shipbuilding operations;

(u) Stereotyping plants;

(v) All kinds of work in workshops or any premise, room, or place where power-driven machinery is used in or incidental to adapting articles or goods for sale.

(3) The following occupations or types of work are declared to be hazardous for any minor under 16 years of age and these minors are permitted to perform office work only in the following operations:

(a) Auto wrecking yards;

(b) Junk dealers;

(c) Motor vehicle (transportation);

(d) Lumbering;

(e) Water works.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 116, f. 10-20-71, ef. 11-1-71, Renumbered from 839-021-0045; BL 6-1988, f. & cert. ef. 4-12-88; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 17-2006, f. 5-12-06, cert. ef. 5-15-06; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0104

Occupations Particularly Hazardous or Detrimental to the Health or Well-Being of Minors Under the Age of 18

(1) Except as provided in OAR 839-021-0285, an employer may not employ a minor under 18 years of age in any occupation declared particularly hazardous or detrimental to their health or well-being, except under terms and conditions specifically set forth by rules of the Bureau.

(2) Those occupations set out in Title 29 CFR, Part 570.51 to and including Part 570.68 as amended July 19, 2010 are hereby adopted as occupations particularly hazardous or detrimental to the health and well-being of minors 16 and 17 years of age and the regulations pertaining to these occupations set out in Title 29 CFR, Part 570.51 to and including Part 570.68 as amended July 19, 2010 are hereby adopted and incorporated by reference herein and are attached as Appendix 1.

[ED. NOTE: Appendices referenced are available from the agency.]

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 182, f. & ef. 11-14-75; BL 6-1988, f. & cert. ef. 4-12-88; BLI 3-1999, f. & cert. ef. 6-16-99; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 17-2006, f. 5-12-06, cert. ef. 5-15-06; BLI 19-2010, f. 9-28-10, cert. ef. 10-1-10; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0175

Records Availability

(1) All records required to be preserved and maintained by OAR 839-021-0001 to 839-021-0500 shall be preserved and maintained for a period of at least two years.

(2) All employers shall keep the records required by OAR 839-021-0001 to 839-021-0500 in a safe and accessible place.

(3) All records required to be preserved and maintained by OAR 839-021-0001 to 839-021-0500 shall be made available for inspections and transcription by the Bureau.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 6-1988, f. & cert. ef. 4-12-88; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0220

Employment Certificates for the Employment of Minors 14 through 17 Years of Age

(1) Unless otherwise provided by rule, no minor 14 through 17 years of age may be employed or permitted to work unless the employer:

(a) Verifies the minor’s age by requiring the minor to produce acceptable proof of age as prescribed by these rules; and

(b) Complies with the provisions of this rule.

(2) An employer may not employ a minor without having first obtained a validated employment certificate from the Bureau. Application forms for an employment certificate may be obtained from any office of the Bureau or by contacting the Child Labor Unit, Wage and Hour Division, Bureau of Labor and Industries, 800 NE Oregon Street Suite 1045, Portland OR 97232, 971-673-0836, www.oregon.gov/BOLI.

(a) The Bureau will issue a validated employment certificate upon review and approval of the application. The validated employment certificate will be effective for one year from the date it was issued, unless it is suspended or revoked.

(b) If, after the issuance of a validated employment certificate, the duties of the minors are changed from those originally authorized under the employment certificate or the employer wishes to employ minors at an additional establishment, the employer must submit a “Notice of Change (to Annual Employment Certificate)” form to the Child Labor Unit, Wage and Hour Division of the Bureau of Labor and Industries. The “Notice of Change (to Annual Employment Certificate)” form must be submitted within 15 days of the change on a form provided by the Bureau. The Bureau will approve or deny any change(s) in duties and notify the employer. If the Bureau denies the changes, the employer must immediately reassign any affected minor to approved duties or terminate the minor’s employment.

(3) The employer must post the validated employment certificate in a conspicuous place where all employees can readily see it. When the employer employs minors in more than one establishment, a copy of the validated employment certificate must be posted at each establishment. As used in this rule, “establishment” means a distinct physical place of business. If a minor is employed by one employer to perform work in more than one location, the minor will be considered employed in the establishment where the minor receives management direction and control.

(4) If the employer employs minors at more than one establishment, a copy of the Summary of Child Labor Laws provided to the employer by the Bureau pursuant to OAR 839-021-0221(4) must be provided by the employer to the manager of each establishment where minors will be employed.

(5) The employer must apply for a validated employment certificate once each year by filing a renewal application on a form provided by the Bureau. The renewal application must be received by any office of the Bureau no later than the expiration date of the validated employment certificate.

(6) If the Bureau’s review of any application indicates a failure to comply with any law or rule pertaining to the employment of minors or any order of the commission, the Bureau may deny the application and inform the employer of the reason(s) for the denial.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 117, f. 10-20-71, ef. 11-1-71, Renumbered from 839-021-0115; BL 6-1988, f. & cert. ef. 4-12-88; BL 3-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 4-1998, f. & cert. ef. 3-5-98; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 17-2006, f. 5-12-06, cert. ef. 5-15-06; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0221

Employment Certificates; Required Information

(1) The application form for an employment certificate must include:

(a) The name and address of the employer;

(b) The name and address of the company representative completing the application form;

(c) An estimate of the number of minors to be employed during the twelve month period covered by the application;

(d) A description of the duties to be performed by the minor(s);

(e) A description of the machinery or other equipment to be used by the minor(s);

(f) Whether 14 and 15 year-old minors are to be employed.

(2) The “Notice of Change (to Annual Employment Certificate)” must include:

(a) The name and address of the employer;

(b) The name and address of the company representative completing the notice;

(c) A description of the change in duties previously authorized;

(d) A description of any machinery or equipment to be used by any minor;

(e) Any address change(s) or additional establishments where minors are proposed to be employed. As used in this rule, “establishment” has the same meaning as defined in OAR 839-021-0220(3).

(3) The Renewal Application for an employment certificate must include:

(a) The name and address of the employer;

(b) The name and address of the company representative completing the application;

(c) The actual number of minors employed during the preceding 12 month period;

(d) An estimate of the number of minors to be employed during the 12-month period covered by the application;

(e) A description of the duties to be performed and the machinery and equipment to be used if different from the previous year or if there are no changes in duties, a statement to that effect;

(f) Any address change(s) or additional establishments where minors are proposed to be employed.

(4) The Bureau will send a summary of the child labor laws and rules to all employers applying for an employment certificate.

(5) The Bureau will provide upon request a “Notice of Change (to Annual Employment Certificate)” form with an explanation of its use.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 3-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 4-1998, f. & cert. ef. 3-5-98; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0246

Employment Permits for Minors Under 14 Years of Age

(1) No child under 14 years of age may be employed or permitted to work unless the employer has been issued a validated Employment Permit by the Bureau authorizing the child to work for that particular employer.

(2) A minor under 14 years of age and an employer who wishes to employ the minor under the provisions of ORS 653.320(4) which exempt the minor from the provisions of section (1), (2), or (3) of ORS 653.320, must make a joint application for an Employment Permit using a form supplied by the Wage and Hour Division and available at any office of the Bureau. The application must be delivered to the Child Labor Unit of the Wage and Hour Division, 800 NE Oregon St., Suite 1045, Portland OR 97232-2180. Each application must include:

(a) Minor’s name and residence address, and the name and address of parents or legal guardian;

(b) Minor’s date of birth and proof of age, consisting of either a certified copy of a birth certificate, hospital certificate, baptismal certificate, or other acceptable proof of age;

(c) Last grade in school completed and the school currently attended and its address;

(d) Name and address of prospective employer and nature of such employer’s business;

(e) Amount of compensation to be paid;

(f) The maximum number of hours proposed to be worked on any given day, the maximum number of hours to be worked in any work week, and the maximum number of days proposed to be worked in any work week;

(g) A complete description of the work proposed to be performed;

(h) A separate certification by the employer that the minor will be continuously supervised by a responsible adult.

(3) The Bureau will investigate the circumstances of the proposed employment and the information contained in the application. If the Bureau determines that the character of the employment is suitable and that the employment will not adversely affect the well-being of the minor, the Bureau will issue an Employment Permit, setting out limitations concerning the employment deemed appropriate by the Bureau, which limitations should be consistent with the provisions of section (4) of this rule.

(4) Except as provided in OAR 839-021-0070(7), employment permits for the employment of minors under 14 years of age may be issued only under the following circumstances:

(a) Hours of employment for minors under 14 years of age during the term when schools are in session will be limited to not more than two hours after school hours; not more than six hours on Saturdays and Sundays; and not more than 18 hours per week, not to exceed five work days in one week;

(b) During any vacation period extending over a period of two weeks or longer, minors under 14 years of age may not be employed more than eight hours in any one day and not more than 40 hours in one week and not more than five work days in one week;

(c) Minors under 14 years of age may not be employed in any enterprise subject to the Federal Fair Labor Standards Act, (29 U.S.C. 201, et seq.), in any establishment where alcoholic beverages are dispensed or served, in any theater or amusement park, in any work that involves the minor in canvassing door to door, or in any establishment catering to adults only;

(d) Except as provided in OAR 839-021-0070, minors under 14 years of age may not be employed before the hour of 8 a.m. or after the hour of 6 p.m.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 6-1978, f. & ef. 8-7-78; BL 6-1988, f. & cert. ef. 4-12-88; BLI 13-2000, f. 5-31-00, cert. ef. 6-1-00; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0248

Reports from Employers Employing Minors

Employers employing minors shall file reports that may be required by the Bureau.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 6-1988, f. & cert. ef. 4-12-88; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0255

Special Rules for Temporary Employment of Several Minors for a Short Duration

(1) As used in this rule, unless the context requires otherwise:

(a) “Temporary employment of a short duration” means employment which terminates on or by the tenth day from the date of hire.

(b) “Several minors” means 10 or more minors.

(2) In circumstances involving temporary employment of a short duration where the employment of several minors is proposed, the prospective employer may comply with the provisions of rules OAR 839-021-0220 to 839-021-0248 (Employment Certificates and Employment Permits) or may address a letter application to the Child Labor Unit of the Wage and Hour Division setting out the full and complete circumstances of the proposed employment. The Bureau will investigate the proposed employment and if the Bureau determines that the character of the employment is suitable and that such employment will not adversely affect the physical and moral well-being of the minors, the Bureau will issue a special permit to the employer.

(3) Notwithstanding the provisions of subsection (1)(a) of this rule, the Bureau, for good cause shown, may issue a special permit pursuant to section (2) of this rule for more than 10 days if the Bureau determines that the circumstances of the proposed employment otherwise satisfy section (2) of this rule.

(4) Notwithstanding the provisions of section (2) of this rule, the Bureau, for good cause shown, may issue a special permit in circumstances other than as prescribed in OAR 839-021-0246(4) when it appears to the Bureau that the employment opportunities of the minor would be impaired and the employment, as determined by the Bureau, will not adversely affect the physical and moral well-being of the minor.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 6-1988, f. & cert. ef. 4-12-88; BL 14-1988(Temp), f. 8-2-88, cert. ef. 8-12-88; BL 1-1989, f. & cert. ef. 2-6-89; BL 3-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0265

Employment of Minors to Act as Canvassers, Peddlers or Outside Salespersons from House to House

(1) Minors 16 and 17 years of age may not be employed to act as a canvasser, a peddler, or an “outside salesman” as defined in ORS 653.010(7), from house to house, unless the employer obtains and maintains a validated registration certificate issued by the Bureau.

(2) To register, an employer may obtain an application form from any office of the Bureau. Upon completion, the application must be filed with the Child Labor Unit of the Wage and Hour Division, 800 NE Oregon St., Suite 1045, Portland OR 97232-2180. The application form will be prescribed by the Bureau and must include, but not be limited to, space for:

(a) The employer’s name, permanent address, and telephone number;

(b) The Oregon address and telephone number if different from permanent address and telephone number;

(c) A contact person’s name, address and telephone number;

(d) A brief history of company;

(e) A complete description of the work to be performed by minors who are 16 and 17 years of age;

(f) An estimate of the ages and of the number of minors 16 and 17 years of age that may be employed during the period of certification;

(g) A statement that the employer agrees to comply with the provisions of ORS 653.010 to 653.545, OAR 839-021-0001 to 839-021-0265 and any terms and conditions specified by the Bureau;

(h) The name and address of the employer’s workers’ compensation insurer and policy or binder number;

(i) Other information which will assure the Bureau that employment of minors by the employer will be in compliance with any law or rule concerning the employment of minors; and

(j) The signature of the applicant.

(3) In the case of a renewal application, the employer must submit with the application, a report of minors employed during the previous year. The report must include, but not be limited to, the following information:

(a) The number of minors employed;

(b) Whether any workers’ compensation insurance claims were filed by or for any minors while employed by the employer and the number of such claims; and

(c) Other information as may be deemed necessary by the Bureau.

(4) The Bureau will conduct an investigation of the facts and circumstances set out in the application for the registration certificate and may issue a certificate to the employer provided the provisions of OAR 839-021-0001 to 839-021-0265 have been met.

(a) The Bureau may set such terms and conditions upon the issuance of the certificate as the Bureau deems necessary or appropriate.

(b) The Bureau may refuse to issue or renew a certificate when it appears to the Bureau that the provisions of OAR 839-021-0001 to 839-021-0265 are not met or when the employer has violated any law or rule pertaining to the employment of minors.

(c) If the facts and circumstances or conditions under which the certificate is issued change, the employer must notify the Bureau of the change. The Bureau may modify the terms and conditions of the certificate, if any.

(d) Employers may apply for a registration certificate at any time and must apply to renew their registration by July 1 of each year. The registration will be effective through the following June 30.

(5) The Bureau may require the removal of minors from the employment of a registered employer when it appears to the Bureau that the employer has failed to comply with any law or rule pertaining to the employment of minors. Prior to the removal of minors from employment, the Bureau will consider the following factors:

(a) The past history of the employer in taking all necessary measures to prevent or correct violations of statutes and rules;

(b) Past violations, if any, of statutes and rules;

(c) The magnitude and seriousness of the violation; and

(d) Any other mitigating circumstances.

(6) When a registered employer is required by the Bureau to remove the minor employees from employment, the employer may request a hearing in accordance with OAR 839-022-0000 to 839-022-0060.

(7) The Bureau may revoke the registration certificate when it determines that the employer failed to comply with any rule or law covering the employment of minors. The employer must be accorded the opportunity of a hearing in accordance with OAR 839-022-0000 to 839-022-0060.

(8) In addition to all other rules, employers employing persons 16 and 17 years of age to act as a canvasser, peddler or “outside salesman” as defined in ORS 653.010(8) from house to house must provide each minor, before the minor begins work, with an identification card. The identification card must be shown to each customer or potential customer of the minor employed to act as a canvasser, peddler or “outside salesman” by the minor so employed. The identification card will be on a form prescribed by the Bureau. The identification card must include:

(a) A picture of the employee;

(b) The name of the employee;

(c) The name and local address of the employer;

(d) A statement to the effect that the employee is authorized to represent the employer as a canvasser, peddler or “outside salesman”;

(e) A statement to the effect that the employer is registered with the Bureau of Labor and Industries, 800 NE Oregon St., Suite 1045, Portland OR 97232-2180, 971-673-0836;

(f) A statement that the card is not valid for any other employer; and

(g) Other information as the Bureau may require to carry out the purpose of this subsection.

(9) Notwithstanding OAR 839-021-0067, minors 16 and 17 years of age employed to act as a canvasser, a peddler or an “outside salesman,” as defined in ORS 653.010(8), from house to house may not be employed past the hour of 9:00 p.m.

(10) The transportation of a minor employed to act as a canvasser, peddler, or “outside salesman” to and from the job site must be provided by the employer and must occur no later than 9:00 p.m. In the case of a minor who wants to provide the minor’s own transportation, the employer must obtain the written consent of the minor’s parents or legal guardian and maintain such written consent in the employer’s files.

(11) No minor employed to act as a canvasser, peddler, or “outside salesman” may be transported to another state without the express written consent of a parent or legal guardian of the minor.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 1-1985, f. 2-21-85, ef. 3-1-85; BL 6-1988, f. & cert. ef. 4-12-88; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0280

Operation or Assisting in the Operation of Power-Driven Farm Machinery

(1) As used in this rule, “assist(ing) in the operation of power-driven farm machinery,” includes starting, stopping, adjusting, feeding or any other activity involving physical contact associated with the operation of the machinery.

(2) Minors may not be employed to operate or assist in the operation of power-driven farm machinery unless:

(a) An Employment Certificate has been issued pursuant to OAR 839-021-0220; and

(b) The minor(s) has obtained a “Certificate of Training” on tractor operation or tractor and machinery operation issued by a 4-H Extension Service Program, or an approved secondary vocational agriculture program.

(A) The employer must obtain proof that the minor has a “Certificate of Training” on the operation of tractors or tractors and machinery operation; and

(B) The employer must retain a copy of such proof for two years from the date the minor was employed.

(3) In the event that neither a 4-H Extension Service nor vocational agricultural safety training program for the “Certificate of Training,” as required in section (2)(b) of this rule, is available within 35 miles of a minor’s residence, a 16 or 17 year-old minor may be employed to operate or assist in the operation of power-driven farm machinery otherwise prohibited if all of the following conditions are met:

(a) The minor is 16 or 17 years of age and the employer has verified the minor’s age;

(b) The employer has obtained an Employment Certificate application pursuant to OAR 839-021-0220; and

(c) The minor, the minor’s parent or guardian, and the employer of the minor sign a statement on a form prescribed by the commission certifying to all of the following:

(A) The training is not available within 35 miles of the minor’s residence;

(B) The employer has provided to the minor not less than eight hours of instruction, four hours of which must be “hands-on” training under the supervision of an adult experienced in the safe and proper operation of the specific equipment the minor is to use before the minor begins work including, but not limited to, training related to the normal working hazards in agriculture, the equipment’s instrument panel, equipment controls, daily maintenance and safety checks, starting and stopping the equipment, control of the equipment on different terrain, and the safe operation of hitches, power take-off and hydraulic controls, where applicable; and

(C) The employer agrees to supervise the minor continuously and closely while the minor operates the power-driven farm machinery, or, where such supervision is not feasible, agrees to check on the safety of the minor at intervals of no more than two hours during the operation of the equipment by the minor.

(4) The requirements for obtaining an Employment Certificate and a Certificate of Training do not apply to a minor employed by their parent(s) or person standing in the place of their parent as provided by OAR 839-021-0297.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 5-1987, f. & ef. 2-20-87; BL 6-1988, f. 4-12-88, cert. ef. 1-1-89; BL 4-1990, f. & cert. ef. 3-12-90; BL 11-1991, f. & cert. ef. 10-31-91; BL 4-1995, f. & cert. ef. 11-3-95; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 27-2009, f. 12-1-09, cert. ef. 1-1-10; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0290

Hours of Work of Minors Under 16 Years of Age in Agriculture

(1) Minors under 16 years of age may not be employed to work in agriculture while the school they attend is in session. As used in this rule, school is in session during the hours set by the school district in which the minor resides while employed in agriculture in accordance with the official school calendar of the district. A school week is any week in which school is in session for at least three days.

(2) The hours of work by minors in agriculture under 16 years of age may not exceed:

(a) Three hours a day on school days;

(b) Ten hours a day on non-school days;

(c) 25 hours a week during school weeks;

(d) From the last day of the most recently completed school year of the school district in which the minor resides while employed in agriculture to the first day of the school year immediately following the most recently completed school year of the district in which the minor resides while employed in agriculture:

(A) Ten hours per day; and

(B) 60 hours per week.

(e) Six days in any week at any time.

(3) Notwithstanding section (2) of this rule, when a minor under 16 years of age is employed in agriculture to operate or assist in the operation of power-driven farm machinery or when such minor is employed to ride in or on power-driven farm machinery as provided in OAR 839-021-0276 to 839-021-0285, the maximum number of hours the minor may work may not exceed:

(a) Three hours a day on school days;

(b) Eight hours a day on non-school days;

(c) Eighteen hours a week during school weeks;

(d) From the last day of the most recently completed school year of the school district in which the minor resides while employed in agriculture to the first day of the school year immediately following the most recently completed school year of the district in which the minor resides while employed in agriculture:

(A) Ten hours per day, 60 hours a week during the harvest season;

(B) Ten hours per day, 44 hours per week outside the harvest season;

(C) A greater number of weekly hours may be permitted when worked outside the harvest season pursuant to a Special Emergency Overtime Permit issued by the Bureau. However, even though a permit may be issued, the maximum number of hours worked in a week may not exceed 60.

(e) Six days in any week at any time.

(4) Notwithstanding sections (2) and (3) of this rule, the Bureau may issue special permits to employers for the employment of minors under 16 years of age in agriculture for more than the maximum number of hours provided in this rule when the Bureau determines that such hours of work will not be detrimental to the health and safety of the minors so employed.

(a) An employer desiring to employ a minor in agriculture for more than the maximum number of hours provided in this rule may apply in writing to the Child Labor Unit of the Wage and Hour Division, Bureau of Labor and Industries, 800 NE Oregon St., Suite 1045, Portland OR 97232-2180.

(b) The Bureau will investigate the employment and the facts and circumstances set out in the application. If the Bureau determines that the character of the employment is suitable and that the employment will not adversely affect the physical and moral well-being of the minor(s), the Bureau will issue a Special Emergency Overtime Permit to the employer, setting out the terms and conditions of the permit and the period of time for which it will be effective.

(5) Nothing in this rule should be construed to regulate the daily starting and quitting times of minors under 16 years of age who are employed in agriculture.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 11-1991, f. & cert. ef. 10-31-91; BL 2-1997(Temp), f. & cert. ef. 7-21-97; BL 10-1997, f. & cert. ef. 11-26-97; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 27-2009, f. 12-1-09, cert. ef. 1-1-10; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0292

Hours of Work of Minors 16 and 17 Years of Age in Agriculture

(1) When a minor who is 16 or 17 years of age is employed to operate or assist in the operation of power-driven farm machinery or when such minor is employed to ride in or on power-driven farm machinery as provided in OAR 839-021-0276 to 839-021-0285, the maximum number of hours the minor may work may not exceed:

(a) 25 hours a week during school weeks;

(b) From the last day of the most recently completed school year of the district in which the minor resides while employed in agriculture to the first day of the school year immediately following the most recently completed school year of the district in which the minor resides while employed in agriculture, 60 hours per week (notwithstanding OAR 839-021-0067(1));

(2) As used in this rule, the terms “school week” and “school is in session” have the same meaning as that provided in OAR 839-021-0290(1).

(3) Notwithstanding section (1) of this rule, the Bureau may issue special permits to employers for the employment of minors 16 and 17 years of age in agriculture for more than the maximum number of hours provided in this rule when the Bureau determines that such hours of work will not be detrimental to the health and safety of the children so employed.

(a) An employer who wishes to employ a minor 16 and 17 years of age in agriculture for more than the maximum number of hours provided in this rule may apply in writing to the Child Labor Unit of the Wage and Hour Division, Bureau of Labor and Industries, 800 NE Oregon St., Suite 1045, Portland, OR 97232-2180.

(b) The Bureau will investigate the employment and the facts and circumstances set out in the application. If the Bureau determines that the character of the employment is suitable and that the employment will not adversely affect the physical and moral well-being of the minor(s), the Bureau will issue a Special Emergency Overtime Permit to the employer, setting out the terms and conditions of the permit and the period of time for which it will be effective.

(4) Nothing in this rule should be construed to regulate the daily starting and quitting times of minors who are 16 or 17 years of age who are employed in agriculture.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 11-1991, f. & cert. ef. 10-31-91; BL 2-1997(Temp), f. & cert. ef. 7-21-97; BL 10-1997, f. & cert. ef. 11-26-97; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0294

Voc-Ed and Cooperative Education Programs

When a student under 16 years of age is enrolled in a course of study and training in a cooperative vocational agricultural training program recognized by the State Board of Education, the Bureau may, upon consideration of the circumstances, issue a special permit authorizing the minor to work during the hours that school is in session. The permit will contain such conditions as the Bureau deems appropriate.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 11-1991, f. & cert. ef. 10-31-91; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0297

Parental Exemption

(1) Notwithstanding any other rule, minors of any age may be employed by their parent or person standing in the place of their parent at any time in any occupation on a farm owned or operated by their parent or person standing in the place of their parent.

(2) A person standing in the place of a parent includes the following persons:

(a) Grandfather, grandmother, uncle, aunt, brother or sister;

(b) A person who, having custody or control of the minor, is responsible for the minor’s care and financial support;

(c) An agricultural employer who employs a minor in agriculture while the minor lives and works on a farm during any school vacation period of three weeks or more.

(A) The employment arrangement must be agreed to by the agricultural employer and the parents, or other persons having custody or control of the minor; and

(B) A copy of the agreement must be filed with the Bureau.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 11-1991, f. & cert. ef. 10-31-91; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0315

Special Hours Variance for Entertainment Employers

Employers, including registered employers, must apply for a special hours variance when the contemplated employment will exceed the maximum hours prescribed in OAR 839-021-0335. Employers must address a letter application to the Child Labor Unit of the Wage and Hour Division, Bureau of Labor and Industries, 800 NE Oregon St., Suite 1045, Portland, OR 97232-2180 setting out the full and complete circumstances of the proposed employment and the reasons why a special hours variance is being requested.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BL 6-1988, f. & cert. ef. 4-12-88; BL 3-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0320

Registered Employers

(1) In circumstances involving the employment of minors in short term employment, employers may satisfy the requirements of OAR 839-021-0310 by obtaining a registration certificate.

(2) Employers may apply for a registration certificate at any time and may apply to renew their registration by July 1 of each year. The registration will be effective through the following June 30.

(3) To register, an employer may obtain an application form from any office of the Bureau. Upon completion, the application must be filed with the Child Labor Unit of the Wage and Hour Division, 800 NE Oregon St., Ste 1045, Portland OR 97232. The application form will be prescribed by the Bureau and will include, but not be limited to, space for:

(a) The employer’s name, permanent address, and telephone number; and

(b) The Oregon address and telephone number if different from permanent address and telephone number; and

(c) A contact person’s name, address and telephone number; and

(d) A brief history of company; and

(e) A description of the kinds of events, activities, or productions contemplated which may involve the employment of minors in short term employment; and

(f) An estimate of the ages and number of minors that may be employed in short term employment; and

(g) A brief description of the types of work expected of such minors; and

(h) A statement that the employer agrees to comply with the provisions of ORS 653.010 to 653.545, OAR 839-021-0001 to 839-021-0500 and any terms and conditions specified by the Bureau;

(i) Name and address of workers’ compensation insurer and policy or binder number;

(j) Other information as will assure the Bureau that employment of minors by the employer will be in compliance with any law or rule concerning the employment of minors; and

(k) The signature of the applicant.

(4) No less than 24 hours prior to the employment of minors for a short duration, the registered employer must notify the Child Labor Unit of the Wage and Hour Division, which is located at 800 NE Oregon St., Ste 1045, Portland OR 97232. (Telephone Number 971-673-0836.) The notification may be accomplished by letter, in person or by telephone and must include:

(a) Approximate number of minors to be employed;

(b) Approximate ages of minors to be employed;

(c) Description of the duties to be performed by the minors;

(d) Approximate hours the minors will work;

(e) Dates the minors are to be employed;

(f) The physical location where the work is to be performed.

(5) In the case of a renewal application, the employer must submit with the application, a report of minors employed during the previous year. The report must include, but not be limited to, the following information:

(a) The number of minors employed in short term employment pursuant to OAR 839-021-0310(3);

(b) Whether any worker’s compensation insurance claims were filed by or for any minors while employed by the employer and the number of such claims;

(c) Other information as may be deemed necessary by the Bureau.

(6) The Bureau will conduct an investigation of the facts and circumstances set out in the application for the registration certificate and may issue a certificate to the employer provided the provisions of OAR 839-021-0001 to 839-021-0500 have been met.

(a) The Bureau may set such terms and conditions upon the issuance of the certificate as the Bureau deems necessary or appropriate.

(b) The Bureau may refuse to issue or renew a certificate when it appears to the Bureau that the provisions of OAR 839-021-0001 to 839-021-0500 are not met or when the employer has violated any law or rule pertaining to the employment of minors.

(7) If the facts and circumstances or conditions under which the certificate is issued change, the employer must notify the Bureau of the change. The Bureau may modify the terms and conditions of the certificate, if any.

(8) The Bureau may require the removal of minors from the employment of a registered employer when it appears to the Bureau that the employer has failed to comply with any law or rule pertaining to the employment of minors.

(9) Prior to the removal of minors as indicated in section (8) of this rule, the Bureau will consider the following factors:

(a) The past history of the employer in taking all necessary measures to prevent or correct violations of statutes and rules; and

(b) Past violations, if any, of statutes and rules; and

(c) The magnitude and seriousness of the violation; and

(d) Any other mitigating circumstances.

(10) When a registered employer is required by the Bureau to remove the minor employees from employment, the employer may request a hearing in accordance with OAR 839-022-0000 to 839-022-0060.

(11) The Bureau may revoke the registration certificate when it determines that the employer failed to comply with any rule of the commission or law covering the employment of minors. The employer must be accorded the opportunity of a hearing in accordance with OAR 839-022-0000 to 839-022-0060.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BL 6-1988, f. & cert. ef. 4-12-88; BLI 4-1998, f. & cert. ef. 3-5-98; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0325

School Release/Instruction/Waiver

(1) The employer must obtain a release from the Superintendent, or designee, of the school district in which the minor’s school is located, when the employment requires the minor’s absence from school for more than five days.

(2) The employer must provide minors under 16 years of age with no less than three hours of instruction per day, excluding Saturday and Sunday. The instruction must be provided by a teacher certified to teach in Oregon or, when the minors travel to Oregon from another state, certified to teach such minors in the state where the minors normally attend school. The instruction must be provided under the following circumstances:

(a) When the school the minor is attending is in session; and

(b) When the employment requires the minor’s absence from school for more than five days.

(3) The employer is responsible for ensuring that adequate instruction is provided to minors under 16 years of age. If adequate instruction is not available at the job site, the employer must provide the minors with relief from their duties for the purpose of attending a school. As used in this section, “adequate instruction” means educational instruction of no less than three hours per day which is provided by a teacher certified to teach as indicated in section (2) of this rule.

(4) The employer may apply to the Bureau for a special waiver from the provisions of sections (1) and (2) of this rule by submitting a letter application to the Bureau setting out the reasons for the waiver request. In the case of an emergency, the employer may make an application by telephone by calling the Child Labor Unit of the Wage and Hour Division at 971-673-0836 and setting out the reasons for the waiver request. The Bureau may temporarily grant or deny the application.

(5) As the Bureau does not have the authority to certify persons to teach minors, interested persons should contact the Oregon Teacher Standards and Practices Commission for information regarding the teaching certification requirements in Oregon.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BL 6-1988, f. & cert. ef. 4-12-88; BLI 4-1998, f. & cert. ef. 3-5-98; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0330

Supervision

(1) The employer must provide appropriate care and supervision of each minor at all times during the minor’s employment.

(2) The employer must provide a sufficient number of supervisors to ensure the safety of the minors employed. The following number of supervisors is considered to be sufficient to ensure the safety of the minors:

(a) At least one supervisor for nine or fewer minors employed;

(b) At least one supervisor for each multiple of ten, or part thereof, minors employed;

(c) The Bureau may require a greater or lesser number of supervisors as individual circumstances warrant.

(3) Example of the minimum number of supervisors required by section (2) of this rule:

(a) At least one, not more than nine minors employed — Numbers of supervisors required: One;

(b) At least ten, not more than 19 minors employed — Number of supervisors required: Two;

(c) At least 20, not more than 29 minors employed — Number of supervisors required: Three;

(d) At least 30, not more than 39 minors employed — Number of supervisors required: Four.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BL 6-1988, f. & cert. ef. 4-12-88; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0335

Working Hours

(1) No minor may be employed to work more than six consecutive days.

(2) For purposes of determining the number of consecutive days of work, the following days will be considered as work days:

(a) Days when the transportation of the minor is more than four hours duration;

(b) Days the minor attends school and does not work.

(3) Example of determining the number of days:

(a) Travel Days: Three hours on one day — School Days: Three — Work Days: Two — Total: Five;

(b) Travel Days: Five hours on one day — School Days: Two — Work Days: Three — Total: Six.

(4) The allowed time at the place of employment as used in this section includes transportation between the employer’s studio (or location headquarters) and any location. This time also includes any makeup, hairdress, wardrobe and rehearsal time as required by the employer.

(5) When a school which the minor regularly attends is in session, the minor will be permitted at the place of employment according to the following schedule:

(a) Ages 14–17: 11 hours a day including rest and meal breaks and, when required, an average of three hours of instruction;

(b) Ages 10–13: Ten hours a day including rest and meal breaks and, when required, an average of three hours of instruction;

(c) Ages 6–9: Nine hours a day including rest and meal breaks and, when required, an average of three hours of instruction;

(d) Ages 4–5: Seven hours a day, or eight hours a day if the minor is transported, including meal breaks and an average of three hours of rest, recreation, and instruction when required. Where the minor is enrolled in the first grade or above, an average of three hours of instruction must be provided when required.

(6) When the school in which the minor is enrolled is not in session, the minor will be permitted at the place of employment according to the following schedule:

(a) Ages 14–17: 11 hours a day including rest and meal breaks;

(b) Ages 10–13: Ten hours a day including three hours of rest, recreation, and meal breaks;

(c) Ages 6–9: Nine hours a day including three hours of rest, recreation, and meal breaks;

(d) Ages 4–5: Seven hours a day including three hours of rest, recreation, and meal breaks, or up to eight hours a day if the minor is transported;

(e) Ages 2–3: Six hours a day including three hours of rest, recreation, and meal breaks;

(f) Ages 1–2: Five hours a day including 2-1/2 hours of rest and recreation and meal breaks;

(g) Ages over six months– one: Four hours a day including two hours of rest and recreation and meal breaks;

(h) Ages 15 days–six months: Two hours a day, no more than 20 minutes of which will be spent as work time.

(7) The minor’s working day must end according to the following schedule:

(a) Ages over six months–5: 6:30 p.m.;

(b) Ages 6–8: 7:30 p.m.;

(c) Ages 9–10: 9:00 p.m.;

(d) Ages 11–14: 9:30 p.m.;

(e) Ages 15–17: 10:00 p.m. on evenings preceding a day in which the minor will attend the school in which he or she is enrolled; 12:30 a.m. in all other circumstances.

(8) Infants over the age of 15 days and up to and including six months may only work between the hours of 9:00 a.m. and 4:30 p.m.

(9) Minors over the age of six months and under 14 years may not commence their working days prior to 7:00 a.m. Minors between the ages of 14 and 18 years may not commence their working day prior to 5:30 a.m.

(10) A minor must receive a 12 hour rest break at the end of the minor’s working day and prior to the commencement of the minor’s next day of work or attendance at regular school.

(11) The employer may apply to the Bureau for a special waiver from the provisions of sections (1) through (9) of this rule by submitting a letter application to the Bureau setting out the reasons for the waiver request. In the case of an emergency, the employer may make an application by telephone by calling the Child Labor Unit of the Wage and Hour Division at 971-673-0836 and setting out the reasons for the waiver request. The Bureau may temporarily grant or deny the application.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BL 6-1988, f & cert. ef. 4-12-88; BL 3-1993(Temp), f. & cert. ef. 4-2-93; BL 13-1993, f. 10-29-93, cert. ef. 11-1-93; BLI 4-1998, f. & cert. ef. 3-5-98; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0340

Rest Periods

Employers shall provide minors with rest periods as prescribed by OAR 839-021-0072(2).

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84 ; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0345

Meal Periods

Employers shall provide minors with meal periods as prescribed by OAR 839-021-0072(1).

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0350

Other Working Conditions

(1) Employers shall, at any time, allow parents or legal guardians access to their minor children employed in the entertainment industry.

(2) Employers must provide the following:

(a) A safe and secure place for minors to rest and play; and

(b) Suitable nursery and rest facilities.

(3) Minors under six months of age may not be exposed to lights of greater than 100 foot candle-light intensity for more than thirty seconds at a time.

(4) Employers shall provide worker’s compensation insurance coverage for all minors in accordance with the laws of the State of Oregon.

(5) Transportation to the closest medical facility providing emergency services must be available at all times while minors are present.

(6) On location, the employer shall provide return transportation for the minor promptly upon dismissal.

(7) Employers shall comply with all statutes and rules concerning the employment of minors.

(8) No employer shall expose a minor to undue emotional stress while employing a minor in the entertainment industry.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0355

Prohibited Performances

(1) No employer may employ a minor in the entertainment industry in any occupation declared particularly hazardous pursuant to OAR 839-021-0102 and 839-021-0104 or in employment prohibited by 839-021-0097 and 839-021-0276 to 839-021-0285. However, a safe simulation of such employment may be allowed.

(2) Minors under fifteen days of age may not be employed in the entertainment industry.

(3) Minors under one year of age may not be employed in the entertainment industry unless the employer can demonstrate a need for such minor. A separate letter of application must be submitted to the Child Labor Unit of the Wage and Hour Division, Bureau of Labor and Industries, 800 NE Oregon St., Suite 1045, Portland, OR 97232-2180 setting forth the details of the needed employment. The letter must include:

(a) A complete description of the action in which the minor is expected to participate; and

(b) Certification that the minor will not be engaged for longer than the hours allowed by OAR 839-021-0335; and

(c) A signed statement from the minor’s parent permitting the employment; and

(d) A signed statement from a physician licensed by the Oregon State Board of Health attesting that the minor is physically able to perform the expected duties. The physician’s statement must be accompanied by the physician’s complete address and the physician’s agreement to furnish the Bureau of Labor and Industries with any or all of the information necessary to confirm the particulars of such statement.

(4) No employer may employ a minor under one year of age in the entertainment industry unless a registered nurse is present and available to the minor at all times while the minor is present.

(5) No employer may employ a minor in the entertainment industry when the employment would place the minor in a clear and present danger to life and limb. If the minor believes there exists such danger, the employer must, at the same time, discuss the matter with the minor and the minor’s parent or guardian together. If the minor persists in the belief that a clear and present danger to life and limb exists, regardless of its validity, the employer must not require the minor to perform the activity the minor believes will present such danger.

(6) No employer may employ a minor to participate in a performance in the entertainment industry unless the minor has been trained to portray it safely.

(7) No employer may employ a minor to participate in, or be present during, an obscene performance or the depiction of an obscene performance in violation of ORS 163.665 to 163.695 or 167.060 to 167.095.

(8) No employer may employ a minor in a place of public amusement or entertainment in violation of ORS 167.830 to 167.840.

(9) No employer may employ a minor to be exhibited in a trance.

(10) Notwithstanding the provisions of OAR 839-021-0102 and this rule, upon written request, the Bureau may, for good cause shown, exempt the employment of a minor under 16 years of age in the entertainment industry from the provisions of OAR 839-021-0102 and this rule after determining that the exemption will not be detrimental to the health or safety of the minor affected. Such exemption will be granted only under circumstances including but not limited to the following:

(a) The employment is not in violation of federal child labor regulations;

(b) The minor employee is adequately trained to perform the duties requested;

(c) The minor employee will be adequately supervised in performing the duties of the position;

(d) The parent or person standing in the place of the minor’s parent has given written consent for the employment of the minor to perform duties otherwise prohibited; and

(e) The employer complies with all other applicable provisions of laws and rules.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BL 6-1988, f. & cert. ef. 4-12-88; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2004(Temp), 7-29-04 thru 1-24-05; BLI 1-2005, f. & cert. ef. 1-3-05; BLI 19-2010, f. 9-28-10, cert. ef. 10-1-10; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0360

Special Permit, Hours Variance or Employment Certificate May Be Refused

When it appears to the Bureau that the proposed employment would be prohibited by OAR 839-021-0355, the Bureau may refuse to issue any special permit, hours variance or employment certificate.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BL 3-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0365

Required Records

(1) Employers, including registered employers, employing minors in long-term employment and unregistered employers employing minors in short-term employment must maintain the following records for a period of two years from the date of initial employment:

(a) Name, address and telephone number of all minors employed;

(b) Total hours worked each day and each week;

(c) Daily starting and quitting time;

(d) Age of each minor;

(e) Date authorized to employ such minors by the Bureau;

(f) Rate of wage and total wages paid each week;

(g) Any deductions, rebates or refunds taken from an employee’s total wages and the net amount of wages paid;

(h) Any payroll or other such records pertaining to the employment of minors.

(2) Registered employers employing minors in a single engagement in short term employment must comply with section (1) of this rule. When, in a single engagement, the number of minors employed is more than five, the registered employer must maintain the following records for a period of two years from the date employment began on the particular engagement:

(a) Total number of minors employed on the engagement;

(b) Dates the minors were employed;

(c) Approximate ages of the minors;

(d) Date notification made to the Child Labor Unit pursuant to OAR 839-021-0320(4).

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BLI 4-1998, f. & cert. ef. 3-5-98; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0370

Records Availability

All employers must make available to representatives of the Wage and Hour Division of the Bureau, records necessary to determine whether the employer is complying with OAR 839-021-0300 to 839-021-0375. Such records include, but are not limited to, the records described in OAR 839-021-0365. Such records must be made available to such representatives for inspection and transcription during normal business hours.

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BL 6-1988, f. & cert. ef. 4-12-88; BLI 9-2002, f. 3-28-02, cert. ef. 4-1-02; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14

839-021-0490

Penalties

(1) In addition to any civil penalties which may be assessed by the Commissioner pursuant to ORS 653.370, the Bureau may, at its discretion, revoke the right of an employer to hire minors in the future if it is determined by the Bureau that the employer has failed to comply with the provisions of 653.305 to 653.340 or with OAR 839-021-0210 to 839-021-0248.

(2) Prior to the revocation of the right to employ minors in the future an employer may request a contested case hearing pursuant to the Administrative Procedures Act (ORS Chapter 183).

Stat. Auth.: ORS 651.060(4), 653.261

Stats. Implemented: S.B. 135, 77th Leg., Reg. Ses. (Or.2013), ORS 653

Hist.: BL 9-1984, f. & ef. 8-7-84; BL 6-1988, f. & cert. ef. 4-12-88, Renumbered from 839-021-0380; BLI 10-2013, f. 12-18-13, cert. ef. 1-1-14


Rule Caption: Repeals rules governing the Wage and Hour Commission’s gathering of information through subpoenas or testimony

Adm. Order No.: BLI 11-2013

Filed with Sec. of State: 12-18-2013

Certified to be Effective: 1-1-14

Notice Publication Date: 11-1-2013

Rules Repealed: 839-022-0000, 839-022-0010, 839-022-0100, 839-022-0105, 839-022-0110, 839-022-0115, 839-022-0120, 839-022-0125, 839-022-0130, 839-022-0135, 839-022-0140, 839-022-0145, 839-022-0150, 839-022-0155, 839-022-0160, 839-022-0165

Subject: S.B. 135, 77th Leg., Reg. Session (Or. 2013) abolished the Wage and Hour Commission and repealed ORS 653.530, which authorized the commission to conduct investigations, issue subpoenas, obtain evidence, and take testimony in matters related to the commission’s duties. OAR 839, division 22, implemented ORS 653.530 by establishing procedures for the issuance of subpoenas and the gathering of testimony through the commission. With the abolition of the Wage and Hour Commission and repeal of its authority to issue subpoenas and gather testimony, repeal of the related administrative rules is necessary. The rule amendments repeal procedures for the issuance of subpoenas and the gathering of testimony through the commission.

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


Rule Caption: Amending and adopting rules to implement newly enacted whistleblower protection regarding election laws

Adm. Order No.: BLI 12-2013

Filed with Sec. of State: 12-30-2013

Certified to be Effective: 12-30-13

Notice Publication Date: 11-1-2013

Rules Adopted: 839-010-0300, 839-010-0305, 839-010-0310

Rules Amended: 839-010-0000

Subject: Amendments clarify the purpose and scope of the rules in correctly stating the provisions of the Oregon Revised Statutes that are enforced. Newly adopted rules implement newly enacted legislation extending whistleblower protections to disclosures regarding violations of election laws.

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

839-010-0000

Purpose and Scope

(1) The Civil Rights Division of the Oregon Bureau of Labor and Industries enforces the provisions of ORS 441.174, 652.355, 653.060, 659A.199, 659A.200 to 659A.233 and S.B. 148, 77th Leg., Reg. Session (Or. 2013), prohibiting discrimination based on whistleblowing disclosures or activities that are described in the statutes. These rules apply to all such complaints and inquiries received on or after the effective date of these rules.

(2) The purpose of these rules is to clarify the provisions of the statutes.

(3) In accordance with ORS 659A.820, an individual claiming a violation of 441.174, 652.355, 653.060, 659A.199, 659A.200 to 659A.233, or these rules, may file a complaint with the Civil Rights Division, as provided in OAR 839-003-0025.

Stat. Auth.: ORS 652.355, 653.060, 659A.221, 659A.805.

Stats. Implemented: ORS 441.174, 652.355, 653.060, 659A.199, 659A.200 - 659A.233, S.B. 148, 77th Leg., Reg. Session (Or. 2013)

Hist.: BL 9-1991, f. & cert. ef. 8-29-91; BL 4-1996, f. & cert. ef. 3-12-96; BLI 17-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 39-2007, f. 12-28-07, cert. ef. 1-1-08; BLI 12-2013, f. & cert. ef. 12-30-13

839-010-0300

Application

These rules apply to a person who pays money or offers other valuable consideration for obtaining signatures of electors on a state initiative, referendum, or recall petition or on a prospective petition of a state measure to be initiated.

Stat. Auth.: ORS 659A.805

Stats. Implemented: S.B. 148, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 12-2013, f. & cert. ef. 12-30-13

839-010-0305

Unlawful Employment Practice

In addition to the conduct prohibited in ORS 659A.199, it is an unlawful employment practice for a person described in OAR 839-010-0300 to discriminate or retaliate against another person with respect to hire or tenure, compensation or other terms, conditions or privileges of employment for the reason that the person has in good faith reported information that the person believes is evidence of a violation of a state or federal election law, rule or regulation.

Stat. Auth.: ORS 659A.805

Stats. Implemented: S.B. 148, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 12-2013, f. & cert. ef. 12-30-13

839-010-0310

Inspection

(1) The Commissioner of the Bureau of Labor and Industries may inspect the accounts of a chief petitioner of an initiative or referendum petition relating to a state measure who pays any person money or other valuable consideration to obtain signatures on the petition or prospective petition, under reasonable circumstances at any time before the deadline for filing signatures on the petition or during the period specified for retention of the accounts, as provided in S.B. 148, 77th Leg., Reg. Session (Or. 2013) Section 5.

(2) The right of inspection may be enforced by a writ of mandamus issued by any court of competent jurisdiction.

Stat. Auth.: ORS 659A.805

Stats. Implemented: S.B. 148, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 12-2013, f. & cert. ef. 12-30-13


Rule Caption: Amendments to Division 839-003 reflecting commissioner complaint process and conforming civil action terms to statutes

Adm. Order No.: BLI 13-2013

Filed with Sec. of State: 12-30-2013

Certified to be Effective: 12-30-13

Notice Publication Date: 11-1-2013

Rules Amended: 839-003-0005, 839-003-0020, 839-003-0031, 839-003-0090, 839-003-0100, 839-003-0235, 839-003-0245

Subject: OARs 839-003-0005, 839-003-0031, 839-003-0090, 839-003-0100, and 839-003-0245 include the term “complainant” but not the term “aggrieved person.” Amendments to these rules add “aggrieved person” to clarify that the Commissioner or the Attorney General, acting as the complainant, may bring complaints on behalf of aggrieved persons.

   OARs 839-003-0020 and 839-003-0235 use the term “civil suit” rather than “civil action” as used in the enabling statutes. Amendments conform the terminology of these rules with the statutes.

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

839-003-0005

Definitions

For purposes of these rules:

(1) “Administrator” means the Administrator of the Civil Rights Division of the Bureau of Labor and Industries or a designee of the administrator.

(2) “Aggrieved Person” means either:

(a) A person who is, or was at any time, eligible to file a complaint under ORS 659A.820 or who is otherwise similarly situated; or

(b) A person who files a complaint under ORS 659A.825.

(3) “Bureau” means the Bureau of Labor and Industries.

(4) “Commissioner” means the Commissioner of the Bureau of Labor and Industries or a designee of the commissioner.

(5) “Complaint” means for the purpose of ORS Chapter 659A, except complaints under OSEA, ORS 659A.145 or 659A.421 or federal housing law, a written, verified statement that:

(a) Gives the name and address of the complainant and the respondent;

(b) Identifies the protected class basis of the complaint;

(c) Is signed by the complainant;

(d) Describes the actions complained of, including:

(A) The date(s) of occurrence;

(B) What the action was and how it harmed the complainant; and

(C) The causal connection between the complainant’s protected class and the alleged harm.

(6) “Complainant” means a person filing a complaint personally or through an attorney.

(7) “Days,” unless otherwise stated in the text of a document, means calendar days. “Work days” means Monday through Friday, except holidays officially recognized by the State of Oregon or the federal government.

(8) “Division” means the Civil Rights Division of the Bureau of Labor and Industries.

(9) “EEOC” means the Equal Employment Opportunity Commission of the federal government.

(10) “Federal Housing Law” means The Fair Housing Act (42 U.S.C. 3601 et seq.) for which the U.S. Department of Housing And Urban Development (“HUD”) has jurisdiction.

(11) “Notice” means written information delivered personally or sent by mail to the person’s last known personal or business address or business address of the person’s designated representative.

(12) “OSEA” means the Oregon Safe Employment Act, ORS 654.001 et seq.

(13) “Protected class” means a group of people protected by law from discrimination on the basis of a shared characteristic, or a perception of that characteristic, such as race, sex, age, disability or other.

(14) “Person” has the meaning given in ORS 659A.001(9).

(15) “Respondent” includes any person or other entity against whom a complaint or charge of unlawful practices is filed with the division or whose name has been added to such complaint or charge pursuant to ORS 659A.835(1).

(16) “Formal Charges” are formal charges drafted and issued by the bureau’s Hearings Unit.

(17) “Substantial evidence” means:

(a) Proof that a reasonable person would accept as sufficient to support the allegations of the complaint, except complaints under ORS 659A.145 or 659A.421 or federal housing law.

(b) Under ORS 659A.145 or 659A.421, reasonable cause for the Commissioner to believe the facts concerning the alleged discriminatory housing practice are sufficient to warrant the initiation of a civil action in circuit court.

(18) “Substantial Evidence Determination” means the division’s written findings of substantial evidence.

(19) “Written verified complaint” means a complaint that is:

(a) In writing; and

(b) Under oath or affirmation.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 7-1982, f. & ef. 4-22-82; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert. ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 36-2007 f. 12-27-07 cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08; Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 6-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 5-2012(Temp), f. & cert. ef. 6-13-12 thru 12-10-12; BLI 7-2012, f. & cert. ef. 8-8-12; BLI 8-2012(Temp), f. & cert. ef. 8-8-12 thru 1-31-13; BLI 11-2012, f. & cert. ef. 10-10-12; BLI 13-2013, f. & cert. ef. 12-30-13

839-003-0020

Civil Action

As used in enforcing ORS Chapter 659A, including housing discrimination under 659A.145 or 659A.421 or federal housing law, except as provided below.

(1) A person alleging unlawful discrimination under state law may file a civil action as provided in ORS 659A.870 to 659A.885.

(a) A person is not required to file a complaint of a violation of state law with the division before filing a civil action.

(b) A person filing a civil action in state or federal court waives the right to file a complaint with the division with respect to those matters alleged in the civil action. This subsection does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or federal housing law.

(2) After filing a complaint with the division, a complainant may file a civil action in state or federal court alleging the same matters as those alleged in the complaint filed with the division. The complainant should notify the division of the civil action. When the division receives notice from the complainant or complainant’s attorney, or court documents indicating that such a civil action has been filed, the division will dismiss the complaint. The division will notify the complainant and respondent that the division has dismissed the complaint and will take no further action. This subsection does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or federal housing law.

(3) The commissioner will notify the complainant in writing of the right to file a civil action in state court, as provided in ORS 659A.870 to 659A.885, when a complaint is dismissed by the division or on the one-year anniversary of the complaint filing, whichever occurs first. The complainant will have 90 days from the notice mailing date to file a civil action. A complainant filing a civil action against a public body must also file a tort claim notice as required by 30.275. This subsection does not apply to housing discrimination complaints under 659A.145 or 659A.421or federal housing law.

(4) A civil action under ORS 659A.885 against a public body, as defined in 30.260, or any officer, employee or agent of a public body as defined in 30.260, based on an unlawful employment practice must be commenced within one year after the occurrence of the unlawful employment practice unless a complaint has been timely filed under 659A.820.

(5) An action alleging breach of a division settlement agreement, entered into under ORS 659A.001 to 659A.030, 659A.233, 659A.303, 659A.145, 659A.409, 659A.420, 659A.421, 659A.150 to 659A.224 and 659A.800 to 659A.890, may be filed under 659A.860 in accordance with the applicable statute of limitations.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800- 659A.890

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 12-1982, f. & ef. 8-10-82; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert. ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 9-2006, f. 3-16-06, cert. ef. 3-20-06; BLI 24-2006(Temp), f. 7-5-06, cert. ef. 7-7-06 thru 1-3-07; BLI 38-2006, f. 10-25-06, cert. ef. 10-27-06; BLI 36-2007 f. 12-27-07 cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08; Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 13-2013, f. & cert. ef. 12-30-13

839-003-0031

Filing a Complaint Under the Oregon Safe Employment Act

(1) A person or the person’s attorney may file a complaint under the Oregon Safe Employment Act (OSEA), in person or by mail, with the division at any bureau office in the state of Oregon. Complaint means a written statement signed by the complainant that:

(a) Gives the name and address of the complainant and the respondent;

(b) Identifies the protected class basis of the complaint;

(c) Is signed by the complainant;

(d) Describes the actions complained of, including:

(A) The date(s) of occurrence;

(B) What the action was and how it harmed the aggrieved person; and

(C) The causal connection between the aggrieved person’s protected class and the alleged harm.

(2) A person alleging discrimination for reporting or opposing unsafe or unhealthy work conditions under ORS 654.062 must contact the division within 90 days of having reasonable cause to believe that such violation has occurred. An employee would have reasonable cause to believe a violation has occurred on the earliest date that the employee:

(a) Believed retaliation had occurred against the employee for opposing employee health and safety hazards; and

(b) Knew or should have known of the right to file a complaint with the division and of the requirement that the complaint be filed within 90 days of the alleged retaliation.

(A) If a notice required by OSEA, as provided in OAR 437-001-0275(2)(a), was properly posted in the employee’s workplace, continuously on and following the date of the alleged retaliation, the division will find that the employee knew or should have known of the 90-day filing requirement.

(B) If the employer failed to post the required OSEA poster, the 90-day filing requirement will begin on the date the employee learned of the right to file a complaint and of the 90-day filing requirement. The employee may establish this date based on the employee’s own statement or other evidence offered by the employee.

(C) If the employer disagrees with the employee’s presented date as the date the employee learned of the right to file a complaint, the burden is on the employer to show that the employee knew or should have known on an earlier date.

(D) If extenuating circumstances exist, the division may extend the 90-day period as provided in 29 CFR ¦1977.15(3).

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 654.062; ORS 659A.800 - 659A.865

Hist.: BLI 5-2012(Temp), f. & cert. ef. 6-13-12 thru 12-10-12; BLI 7-2012, f. & cert. ef. 8-8-12; BLI 13-2013, f. & cert. ef. 12-30-13

839-003-0090

Remedy

This section does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or federal housing law. Remedies in complaints of housing discrimination are addressed in OAR 839-003-0230.

(1) In cases of employment discrimination remedy includes, but is not limited to:

(a) Employment or reemployment;

(b) Wages or other benefits lost due to the practice;

(c) Out-of-pocket expenses attributable to the practice;

(d) Compensation for emotional distress and impaired personal dignity; and

(e) Interest.

(2) Consideration of all acts alleged to comprise a hostile work environment in a complaint, including alleged acts occurring outside the one year statute of limitations for filing a complaint, is permissible for the purposes of assessing liability, so long as any act contributing to that hostile work environment takes place within the statutory period.

(3) In order to recover damages for lost wages, the aggrieved person will generally be required to mitigate damages by seeking employment.

(a) Earned income from employment may be deducted from lost wage damages.

(b) In most cases, unearned income such as unemployment or public assistance benefits will not be deducted from lost wage damages.

(4) Settlements of complaints and the awards in commissioner’s Final Orders do not necessarily include all possible remedies named in sections (1) and (2) of this rule. Nothing in this rule will be construed to limit or alter the statutory powers of the commissioner to protect the rights of persons similarly situated to the aggrieved person or to order the performance of an act or a series of acts designed to eliminate the effect of any unlawful practice found.

(5) The commissioner may order the respondent to eliminate the effects of any unlawful practice found and may require respondent to:

(a) Perform a designated act or series of acts that are calculated to carry out the policy of these rules in order to eliminate the effects of an unlawful practice and to protect the rights of those affected;

(b) Take action and submit reports to the commissioner on the manner of compliance with the terms and conditions specified in the commissioner’s order or agreement;

(c) Refrain from any action prohibited by the order or agreement that would jeopardize the rights of the individuals or groups named in the complaint or would frustrate the purpose and the policy of these rules and relevant statutes.

(6) When the respondent makes an offer of remedy, the division will inform the aggrieved person of the offer. If the aggrieved person does not accept an offer that the division has determined will eliminate the effects of the unlawful practice, the division may dismiss the complaint.

(7) Any agreement or order issued by the commissioner may be enforced by mandamus or injunction or by suit in equity to compel specific performance.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800 - 659A.865

Hist.: BL 7-1981, f. & ef. 6-25-81; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert. ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 20-2005, f. 10-20-05, cert. ef. 10-21-05; BLI 8-2006, f. 3-16-06 cert. ef. 3-20-06; BLI 36-2007 f. 12-27-07 cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08; Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 13-2013, f. & cert. ef. 12-30-13

839-003-0100

Commissioner’s Complaint

This section does not apply to housing discrimination complaints under ORS 659A.145 or 659A.421 or federal housing law. Commissioner’s complaints of housing discrimination are addressed in OAR 839-003-0245.

(1) The Commissioner of the Bureau of Labor and Industries may make, sign and file a complaint whenever the commissioner has reason to believe that any person or group of persons has been denied rights due to an unlawful practice or employment practice. The complaint will be processed in the same manner as any other complaint filed under OAR 839-003-0025.

(2) The commissioner is the “complainant” in a commissioner’s complaint.

(3) The commissioner may identify an aggrieved person or persons in a commissioner’s complaint, by name, pseudonym or by general description as being injured by an alleged unlawful practice or otherwise similarly situated to a person eligible to file a complaint under ORS 659A.820.

(4) Any cease and desist order issued in a proceeding in which the commissioner filed a complaint may, in addition to any other action authorized by law, include remedies for an aggrieved person or persons.

(5) In the matter of concurrent complaints, nothing in these rules will be construed to:

(a) Require or prohibit the filing of a commissioner’s complaint involving the same or similar issues or allegations stated in any other complaint filed with the division or circuit court by an individual under ORS 659A.820, 659A.825, or 659A.885;

(b) Require or prohibit the continued processing or initiation of a commissioner’s complaint in the event that a complaint filed with the division or circuit court by an individual under ORS 659A.820, 659A.825, or 659A.885, is resolved or dismissed, with or without remedy to the individual; or

(c) Require or prohibit the continued processing or initiation of a commissioner’s complaint in the event that a complaint filed with the division or circuit court by an individual under ORS 659A.820, 659A.825, or 659A.885, is resolved or dismissed, with or without remedy to the individual; or

(d) Alter or limit an individual’s private right of action provided under ORS 659A.870 to 659A.885.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800 - 659A.865

Hist.: BL 7-1985(Temp), f. & ef. 10-17-85; BL 11-1986, f. & ef. 10-29-86; BL 4-1996, f. & cert. ef. 3-12-96; BLI 11-2000, f. & cert. ef. 3-24-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08; Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 13-2013, f. & cert. ef. 12-30-13

839-003-0235

Civil Action

(1) A person alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law may file a civil action as provided in 659A.870 to 659A.885, or 30.680. A person is not required to file a complaint of a violation of state law with the division before filing a civil action.

(2) A civil action alleging an unlawful practice under ORS 659A.145 or 659A.421 or discrimination under federal housing law, may be filed no later than two years after the occurrence or termination of an alleged discriminatory housing practice, or within two years after the breach of any settlement agreement entered into under ORS 659A.840, whichever occurs last. The two-year period may not include any time during which an administrative proceeding was pending with respect to the housing practice.

(3) After filing a complaint with the division, a complainant may file a civil action in state or federal court alleging the same matters as those alleged in the complaint filed with the division. The complainant should notify the division of the civil action. When the division receives notice from the complainant or complainant’s attorney, or court documents indicating that such a civil action has been filed the division will not dismiss the complaint until the civil trial commences. The division will notify the complainant and respondent that the division has dismissed the complaint and will take no further action.

(4) If Formal Charges have been issued with respect to a housing discrimination complaint, and an administrative law judge has commenced a hearing on the record under ORS Chapter 659A, the complainant may not commence a civil action in court that alleges the same matters.

(5) When the commissioner or the Attorney General has reasonable cause to believe that a person or group of persons is engaged in a pattern or practice of resistance to the rights protected by ORS 659A.145 or 659A.421 or federal housing law, the commissioner or the Attorney General may file a civil action on behalf of the aggrieved individuals in the same manner as an individual or group of individuals may file a civil action under 659A.885.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800 - 659A.890

Hist.: BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08; Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 13-2013, f. & cert. ef. 12-30-13

839-003-0245

Commissioner’s Complaint

(1) The Commissioner of the Bureau of Labor and Industries may make, sign and file a complaint whenever the commissioner has reason to believe that any person or group of persons has been denied rights or is about to be denied rights due to an unlawful practice under ORS 659A.145 or 659A.421 or federal housing law. The complaint will be processed in the same manner as any other complaint filed under OAR 839-003-0200.

(2) The commissioner is the “complainant” in a commissioner’s complaint.

(3) The commissioner may identify an aggrieved person or persons in a commissioner’s complaint, by name, pseudonym or by general description as being affected by an alleged unlawful practice or otherwise similarly situated to a person eligible to file a complaint under ORS 659A.820.

(4) Any cease and desist order issued in a proceeding in which the commissioner filed a complaint may, in addition to any other action authorized by law, include remedies for an aggrieved person or persons.

(5) In the matter of concurrent complaints, nothing in these rules will be construed to:

(a) Require or prohibit the filing of a commissioner’s complaint involving the same or similar issues or allegations stated in any other complaint filed with the division or circuit court by an individual under ORS 659A.820, 659A.825, or 659A.885;

(b) Require or prohibit the continued processing or initiation of a commissioner’s complaint in the event that a complaint filed with the division or circuit court by an individual under ORS 659A.820, 659A.825, or 659A.885, is resolved or dismissed, with or without remedy to the individual; or

(c) Alter or limit an individual’s private right of action provided under ORS 659A.870 to 659A.885.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.800 - 659A.885

Hist.: BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08; Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 13-2013, f. & cert. ef. 12-30-13


Rule Caption: Amending, adopting 839-005 rules regarding career schools, social media, interns, substantial evidence, commissioner complaints

Adm. Order No.: BLI 14-2013

Filed with Sec. of State: 12-30-2013

Certified to be Effective: 12-30-13

Notice Publication Date: 11-1-2013

Rules Adopted: 839-005-0300, 839-005-0305, 839-005-0310, 839-005-0315, 839-005-0320, 839-005-0325, 839-005-0400

Rules Amended: 839-005-0003, 839-005-0011, 839-005-0030, 839-005-0060, 839-005-0065, 839-005-0070, 839-005-0075, 839-005-0080, 839-005-0085, 839-005-0160, 839-005-0170, 839-005-0200, 839-005-0206

Subject: Amendments to 839-005-0003, 839-005-0011, 839-005-0030 replace the term “complainant” with “aggrieved person” because the Commissioner and Attorney General may bring complaints on behalf of aggrieved persons

   Amendments to 839-005-0003 implement newly enacted legislation extending employee protections under ORS 695A.030, 695A.082, 695A.109, 695A.112, 695A.136, 695A.142, 695A.199, 695A.230, 695A.233, 695A.236, 695A.290, 695A.300, 695A.303, 695A.306, and 695A.315 to interns.

   Amendments to 839-005-0206 make the definition of substantial evidence in the Housing Discrimination section internally consistent and consistent with Federal laws and necessary elements for proving discrimination.

   Adoptions of 839-005-0300, 839-005-0305, 839-005-0310, 839-005-0315, 839-005-0320, 839-005-0325 address discrimination by Career Schools. These new rules reference the statutes prohibiting unlawful discrimination by career schools which are enforced by BOLI and clarify the BOLI’s standards and procedures.

   Adoption of 839-005-0400 addresses unlawful employment practices by an employer related to employee’s social media accounts to be consistent with newly enacted legislation.

   Amendments to 839-005-0060, 839-005-0065, 839-005-0070, 839-005-0075, 839-005-0080 and 839-005-0085 replace the Oregon Laws citation with ORS 659A.320, the statutory citation for limitations on the lawful use of credit history in employment.

   Amendments to 839-005-0200 change the definition of substantially limits consistent with newly enacted legislation.

   Amendments to 839-005-0160 make the definition of Victim of Harassment consistent with definitions of Victim of Domestic Violence, Victim of Sexual Assault, and Victim of Stalking.

   Amendments to 839-005-0160 and 839-005-0170 implement newly enacted legislation.

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

839-005-0003

Definitions

As used in enforcing ORS Chapter 659A, including housing discrimination under 659A.145 or 659A.421 or federal housing law:

(1) “Aggrieved Person” means either:

(a) A person who is, or was at any time, eligible to file a complaint under ORS 659A.820 or who is otherwise similarly situated; or

(b) A person who files a complaint under ORS 659A.825.

(2) “Bureau” means the Bureau of Labor and Industries.

(3) “Complainant” means an individual who files a complaint with the division, personally or through the individual’s attorney, pursuant to the guidelines provided in OAR 839-003-0025 or 839-003-0200 for complaints alleging housing discrimination filed under ORS 659A.145, 659A.421 or federal housing law.

(4) “Division” means the Civil Rights Division of the Bureau of Labor and Industries.

(5) “Employee” does not include any individual employed by that individual’s parents, spouse or child or in the domestic service of any person.

(6) “Employer” means any person in this state who, directly or through an agent, engages or utilizes the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed. Employer also includes any public body that, directly or through an agent, engages or utilizes the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed, including all officers, agencies, departments, divisions, bureaus, boards and commissions of the legislative, judicial and administrative branches of the state, all county and city governing bodies, school districts, special districts, municipal corporations and all other political subdivisions of the state. Employer also includes any person who is in an employment relationship with an intern as defined in subsection (10) of this rule.

(7) “Employment agency” includes any person undertaking to procure employees or opportunities to work.

(8) “Gender expression” means the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, or speech, whether or not that expression is different from that traditionally associated with the individual’s assigned sex at birth.

(9) “Gender identity” means an individual’s gender-related identity, whether or not that identity is different from that traditionally associated with the individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous.

(10) “Intern” means a person who performs work for an employer for the purpose of training if:

(a) The employer is not committed to hire the person performing the work at the conclusion of the training period;

(b) The employer and the person performing the work agree in writing that the person performing the work is not entitled to wages for the work performed; and

(c) The work performed:

(A) Supplements training given in an education environment that may enhance employability of the intern;

(B) Provides experience for the benefit of the person performing the work;

(C) Does not displace regular employees;

(D) Is performed under the close supervision of existing staff; and

(E) Provides no immediate advantage to the employer providing the training and may occasionally impede the operations of the employer.

(d) An intern is considered to be in an employment relationship with an employer for the purposes of employee protections provided under ORS 659A.030, 659A.082, 659A.109, 659A.112, 659A.136, 659A.142, 659A.199, 659A.230, 659A.233, 659A.236, 659A.290, 659A.300, 659A.303, 659A.306, and 659A.315.

(e) “Intern” includes any person meeting the description set forth in this rule regardless of the title of the person’s position or whether they are currently enrolled in an education or training program.

(11) “Labor organization” includes any organization that is constituted for the purpose, in whole or in part, of collective bargaining or in dealing with employers concerning grievances, terms or conditions of employment or of other mutual aid or protection in connection with employees.

(12) “Person” includes one or more individuals, partnerships, associations, labor organizations, limited liability companies, joint-stock companies, corporations, legal representatives, trustees, and trustees in bankruptcy or receivers. “Person” also includes a public body as defined in ORS 30.260. For the purposes of 659A.145 or 659A.421 or federal housing law, “person” also includes fiduciaries, mutual companies, trusts and unincorporated organizations.

(13) “Protected class” means a group of people protected by law from discrimination on the basis of a shared characteristic, such as race, sex, sexual orientation, disability, or other, or a perception of that characteristic.

(14) “Respondent” includes any person against whom a complaint or charge of unlawful practices is filed with the division or whose name has been added to such complaint or charge pursuant to ORS 659A.835(1).

(15) “Sex” means the anatomical, physiological and genetic characteristics associated with being male or female.

(16) “Sexual orientation” means an individual’s actual or perceived heterosexuality, homosexuality, bisexuality, or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s assigned sex at birth.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A, H.B. 2669, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 19-2000, f. & cert. ef. 9-15-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08; Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0011

Constructive Discharge

Constructive discharge occurs when an individual leaves employment because of unlawful discrimination. The elements of a constructive discharge are:

(1) The employer intentionally created or intentionally maintained discriminatory working conditions related to the individual’s protected class status;

(2) The working conditions were so intolerable that a reasonable person in the individual’s circumstances would have resigned because of them;

(3) The employer desired to cause the individual to leave employment as a result of those working conditions, or knew or should have known that the individual was certain, or substantially certain, to leave employment as a result of the working conditions; and

(4) The individual left employment as a result of the working conditions.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A

Hist.: BLI 19-2000, f. & cert. ef. 9-15-00; BLI 10-2002, f. & cert. ef. 5-17-02; Renumbered from 839-005-0035, BLI 7-2010, f. & cert. ef. 2-24-10; BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0030

Sexual Harassment

(1) Sexual harassment is unlawful discrimination on the basis of sex and includes the following types of conduct:

(a) Unwelcome sexual advances, requests for sexual favors, or other conduct of a sexual nature when such conduct is directed toward an individual because of that individual’s sex and:

(A) Submission to such conduct is made either explicitly or implicitly a term or condition of employment; or

(B) Submission to or rejection of such conduct is used as the basis for employment decisions affecting that individual.

(b) Any unwelcome verbal or physical conduct that is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with work performance or creating a hostile, intimidating or offensive working environment.

(2) The standard for determining whether harassment based on an individual’s sex is sufficiently severe or pervasive to create a hostile, intimidating or offensive working environment is whether a reasonable person in the circumstances of the complaining individual would so perceive it.

(3) Employer proxy: An employer is liable for harassment when the harasser’s rank is sufficiently high that the harasser is the employer’s proxy, for example, the respondent’s president, owner, partner or corporate officer.

(4) Harassment by Supervisor plus Tangible Employment Action: An employer is liable for sexual harassment by a supervisor with immediate or successively higher authority over an individual when the harassment results in a tangible employment action that the supervisor takes or causes to be taken against that individual. A tangible employment action includes but is not limited to the following:

(a) Terminating employment, including constructive discharge;

(b) Failing to hire;

(c) Failing to promote; or

(d) Changing a term or condition of employment, such as work assignment, work schedule, compensation or benefits or making a decision that causes a significant change in an employment benefit.

(5) Harassment by Supervisor, No Tangible Employment Action: When sexual harassment by a supervisor with immediate or successively higher authority over an individual is found to have occurred, but no tangible employment action was taken, the employer is liable if:

(a) The employer knew of the harassment, unless the employer took immediate and appropriate corrective action.

(b) The employer should have known of the harassment. The division will find that the employer should have known of the harassment unless the employer can demonstrate:

(A) That the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and

(B) That the aggrieved person unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

(6) Harassment by Co-Workers or Agents: An employer is liable for sexual harassment by the employer’s employees or agents who do not have immediate or successively higher authority over the aggrieved person when the employer knew or should have known of the conduct, unless the employer took immediate and appropriate corrective action.

(7) Harassment by Non-Employees: An employer is liable for sexual harassment by non-employees in the workplace when the employer or the employer’s agents knew or should have known of the conduct unless the employer took immediate and appropriate corrective action. In reviewing such cases the division will consider the extent of the employer’s control and any legal responsibility the employer may have with respect to the conduct of such non-employees.

(8) Withdrawn Consent: An employer is liable for sexual harassment of an individual by the employer’s supervisory or non-supervisory employees, agents or non-employees, even if the acts complained of were of a kind previously consented to by the aggrieved person, if the employer knew or should have known that the aggrieved person had withdrawn consent to the offensive conduct.

(9) When employment opportunities or benefits are granted because of an individual’s submission to an employer’s sexual advances, requests for sexual favors, or other sexual harassment, the employer is liable for unlawful sex discrimination against other individuals who were qualified for but denied that opportunity or benefit.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.030

Hist.: BLI 19-2000, f. & cert. ef. 9-15-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 46-2006, f. 12-29-06, cert. ef. 1-3-07; BLI 35-2007, f. 12-27-07 cert. ef. 1-1-08; BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0060

Purpose and Scope

(1) It is the policy of the State of Oregon to guarantee individuals the fullest possible participation in the social and economic life of the state, including employment. Obtainment or use by an employer of information in an applicant’s credit history impacts the individual’s privacy, and must relate only to the position for which the individual is being considered or holds. The people of Oregon have the right to employment without unlawful discrimination on the basis of credit history.

(2) Prohibited discrimination is a basis of unlawful practices described in ORS Chapter 659A and other chapters of the Oregon statutes.

(3) Any individual claiming to be aggrieved by an unlawful practice including a violation of ORS 659A.320 may file a complaint under 659A.820 or may bring a civil action under 659A.885.

(4) The Civil Rights Division of the Bureau of Labor and Industries enforces ORS 659A.320. These rules implement and interpret.

Stat. Auth.: 659A.805

Stats. Implemented: ORS 659A.320

Hist.: BLI 16-2010, f. 6-1-10, cert. ef. 7-1-10; BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0065

Definitions

(1) “Applicant” means an individual who has submitted information for the purpose of gaining employment.

(2) “Credit history” means any written or other communication of any information by a consumer reporting agency that bears on a consumer’s creditworthiness, credit standing or credit capacity.

(3) “Division” means the Civil Rights Division of the Bureau of Labor and Industries.

(4) “Employer” means any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed.

(5) “Respondent” includes any person against whom a complaint or charge of unlawful practices is filed with the division or whose name has been added to such complaint or charge pursuant to ORS 659A.835(1).

(6) “Substantially job-related” is defined in OAR 839-005-0080.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.320

Hist.: BLI 16-2010, f. 6-1-10, cert. ef. 7-1-10; BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0070

Unlawful Discrimination

(1) It is an unlawful employment practice for an employer to obtain or use for employment purposes information contained in the credit history of an applicant for employment or an employee, or to refuse to hire, discharge, demote, suspend, retaliate or otherwise discriminate against an applicant or an employee with regard to promotion, compensation or the terms, conditions or privileges of employment based on information in the credit history of the applicant or employee.

(2) Obtainment or use of credit history information may not be conducted in a manner that results in adverse impact discrimination as prohibited by 42 U.S.C. ¦ 2000e-2, ORS 659A.030 and OAR 839-005-0010. A finding of adverse impact discrimination does not require establishment of intentional discrimination.

(3) ORS 659A.320 permits an employer to obtain or use for employment purposes information contained in the credit history of an applicant or employee under circumstances described at 659A.320(2). ORS 659A.320(2)(d) permits an employer to obtain or use information contained in the credit history of an applicant or employee if the credit history 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.

(4) The burden of proving the employer’s disclosure to the employee of its reasons for the use of such information rests with the employer.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.320

Hist.: BLI 16-2010, f. 6-1-10, cert. ef. 7-1-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0075

Exceptions

ORS 659A.320 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.: ORS 659A.805

Stats. Implemented: ORS 659A.320

Hist.: BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0080

Substantially Job-Related

(1) The determination of whether credit history information is substantially job-related must be evaluated with respect to the position for which the individual is being considered or holds.

(2) Credit history information of an applicant or employee is substantially job-related if:

(a) An essential function of the position at issue requires access to financial information not customarily provided in a retail transaction that is not a loan or extension of credit. Financial information customarily provided in a retail transaction includes information related to the exchange of cash, checks and credit or debit card numbers; or

(b) The position at issue is one for which an employer is required to obtain credit history as a condition of obtaining insurance or a surety or fidelity bond.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.320

Hist.: BLI 16-2010, f. 6-1-10, cert. ef. 7-1-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0085

Enforcement and Retaliation

(1) An employer’s duties and obligations under ORS 659A.320 extend to an employer that is a successor in interest as defined in OAR 839-005-0014.

(2) An applicant or employee claiming a violation of ORS 659A.320 or these rules may file a complaint with the Civil Rights Division of the Bureau of Labor and Industries in the manner provided by 659A.820.

(3) An applicant or employee claiming a violation of ORS 659A.320 may bring a civil action under 659A.885.

(4) Pursuant to ORS 659A.030(1)(f), it is an unlawful employment practice for an employer to discharge, expel or otherwise discriminate against any person because the person has filed a complaint, testified or assisted in any proceeding in connection with 659A.320.

(5) 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 659A.320 or to attempt to do so.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.320

Hist.: BLI 16-2010, f. 6-1-10, cert. ef. 7-1-10; BLI 14-2013, f. & cert. ef. 12-30-13

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) Paid leave is available for an eligible employee of a public employer as provided in OAR 839-009-0363 and HB 3263, 77th Leg., Reg. Session (Or. 2013).

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

(7) 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:

(A) An individual against whom harassment has been committed as described in Oregon’s criminal code at ORS 166.065; or

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

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

(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, HB 3263, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 9-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 14-2013, f. & cert. ef. 12-30-13

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, use of available paid leave from employment, 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, HB 3263, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 9-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0200

Definitions

(1) “Aggrieved person” includes a person who believes that the person:

(a) Has been injured by an unlawful practice or discriminatory housing practice; or

(b) Will be injured by an unlawful practice or discriminatory housing practice that is about to occur.

(2) “Complainant” means an individual who files a complaint with the division, personally or through the individual’s attorney, pursuant to the guidelines provided under OAR 839-003-0200 for complaints alleging housing discrimination filed under ORS 659A.145, 659A.421 or federal housing law.

(3) “Disability” means:

(a) A physical or mental impairment that substantially limits one or more major life activities of the individual.

(b) A record of having a physical or mental impairment that substantially limits one or more major life activities of the individual. An individual has a record of having a physical or mental impairment if the individual has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities of the individual.

(c) A physical or mental impairment that the individual is regarded as having.

(A) An individual is regarded as having a physical or mental impairment if the individual has been subjected to an action prohibited under ORS 659A.112 to 659A.139 because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity of the individual.

(B) An individual is not regarded as having a physical or mental impairment if the individual has an impairment that is minor and that has an actual or expected duration of six months or less.

(4) “Dwelling” means any building, structure, or portion of a building or structure that is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land that is offered for sale or lease for the construction or location of any such building, structure, or portion of such a building or structure. “Family” includes a single individual.

(5) “Familial status” means the relationship between one or more individuals who have not attained 18 years of age and the individual with whom they are domiciled who is:

(a) A parent or another person having legal custody of the individual; or

(b) The designee of the parent or other person having such custody, with the written permission of the parent or other person.

(c) “Familial status” includes any individual, regardless of age or domicile, who is pregnant or is in the process of securing legal custody of an individual who has not attained 18 years of age.

(d) “Domiciled” includes but is not limited to part-time residence in a dwelling where an individual has a reasonable expectation of a continuing right to return.

(6) “Federal Housing Law” means The Fair Housing Act (42 U.S.C. 3601 et seq.) for which the U.S. Department of Housing And Urban Development has jurisdiction.

(7) “Major life activity” includes, but is not limited to:

(a) Caring for oneself;

(b) Performing manual tasks;

(c) Seeing;

(d) Hearing;

(e) Eating;

(f) Drinking;

(g) Sleeping;

(h) Walking;

(i) Standing;

(j) Lifting;

(k) Bending;

(l) Twisting;

(m) Speaking;

(n) Breathing;

(o) Cognitive functioning;

(p) Learning;

(q) Education;

(r) Reading;

(s) Concentrating;

(t) Remembering;

(u) Thinking;

(v) Communicating;

(w) Working: To be substantially limited in the major life activity of working, an individual must be significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes as compared to the ability of an average person with comparable skill, experience, education or other job-related requirements needed to perform those same positions;

(x) Socialization;

(y) Sitting;

(z) Reaching;

(aa) Interacting with others;

(bb) Sexual relations;

(cc) Employment;

(dd) Ambulation;

(ee) Transportation;

(ff) Operation of a major bodily function, including but not limited to:

(A) Functions of the immune system;

(B) Normal cell growth; and

(C) Digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions; and

(gg) Ability to acquire, rent or maintain property.

(8) “Misclassified,” as used in ORS 659A.100(2)(b), means an erroneous or unsupported medical diagnosis, report, certificate or evaluation.

(9) “Person” includes one or more individuals, partnerships, associations, labor organizations, limited liability companies, joint stock companies, corporations, legal representatives, trustees, trustees in bankruptcy or receivers, fiduciaries, mutual companies, trusts and unincorporated organizations and public bodies as defined in ORS 30.260 that have the primary purpose of serving, representing or otherwise benefiting the protected class.

(10) “Physical or mental impairment” means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, traumatic brain injury, emotional or mental illness, and specific learning disabilities.

(11) “Property” and “real property” means property used or intended for commercial, business or residential purposes including, but not limited to a dwelling.

(12) “Purchaser” includes an occupant, prospective occupant, renter, prospective renter, lessee, prospective lessee, buyer or prospective buyer.

(13) “Receipt or alleged receipt of treatment for a mental disorder,” as used in ORS 659A.142(5), means actual treatment of an individual for a mental condition or an assertion that the person received such treatment.

(14) “Regarded as having an impairment,” as used in ORS 659A.100(2)(c), means:

(a) An individual having a physical or mental impairment that does not substantially limit a major life activity but who has been treated as having an impairment by a seller, lessor, advertiser, real estate broker or salesperson, or the agent of any seller, lessor, advertiser, real estate broker or salesperson;

(b) An individual having a physical or mental impairment that substantially limits a major life activity only as a result of the attitude of others toward such impairment; or

(c) An individual having no physical or mental impairment but who is treated as having an impairment by a seller, lessor, advertiser, real estate broker or salesperson, or the agent of any seller, lessor, advertiser, real estate broker or salesperson.

(15) “Residential real estate related transaction” means any of the following:

(a) The making or purchasing of loans or providing other financial assistance:

(A) For purchasing, constructing, improving, repairing or maintaining a dwelling; or

(B) Secured by residential real estate; or

(b) The selling, brokering or appraising of residential real property.

(16) “Substantially limits” means that an individual has an impairment, had an impairment or is perceived as having an impairment that restricts one or more major life activities of the individual as compared to most people in the general population.

(a) An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.

(b) An impairment that substantially limits one major life activity of the individual need not limit other major life activities of the individual.

(c) To have a disability (or to have a record of a disability) an individual must be substantially limited in performing a major life activity as compared to most people in the general population.

(d) An impairment that is episodic or in remission is considered to substantially limit a major life activity of the individual if the impairment would substantially limit a major life activity of the individual when the impairment is active Nonetheless, not every impairment will constitute a disability within the meaning of this section.

(e) The term “substantially limits” shall be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of ORS 659A.100 to 659A.145 and 659A.400 to 659A.425, and should not require extensive analysis.

(17) “To rent” includes to lease, to sublease, to let and otherwise to grant for a consideration the right to occupy premises not owned by the occupant.

(18) “Treatment” includes examination, evaluation, diagnosis and therapy by a health professional within the scope of the professional’s applicable license.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.103 - 659A.142; 659A.145, 659A.421, HB 2111, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 36-2007, f. 12-27-07 cert. ef. 1-1-08; BLI 7-2008(Temp), f. 3-20-08, cert. ef. 3-25-08 thru 9-21-08; Administrative correction 10-21-08; BLI 40-2008(Temp), f. 11-10-08, cert. ef. 11-12-08 thru 5-1-09; BLI 43-2008, f. 12-3-08, cert. ef. 12-5-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0206

Discrimination Theories: Housing

(1) For the purposes of housing discrimination complaints under ORS 659A.145 or 659A.421 or discrimination complaints under federal housing law, a complainant need not be a member of a protected class. An aggrieved person may file a complaint of housing discrimination.

(2) Substantial evidence of intentional unlawful discrimination exists if the division’s investigation reveals reasonable cause for the Commissioner to believe the facts concerning the alleged discriminatory housing practice are sufficient to warrant the initiation of a civil action in circuit court under one of the following theories:

(a) Specific Intent Theory: The respondent knowingly and purposefully discriminates against an individual because of that individual’s membership in a protected class.

(b) Different or Unequal Treatment Theory: The respondent treats members of a protected class differently than others who are not members of that protected class. When the respondent makes this differentiation because of the individual’s protected class and not because of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing a case of different or unequal treatment:

(A) There must be substantial evidence that the individual was harmed or was about to be harmed by the action of the respondent under circumstances that make it appear that the respondent treated the individual differently than comparably situated individuals who were not members of the individual’s protected class. Substantial evidence of discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support that protected class membership was a motivating factor for the respondent’s alleged unlawful action. If the respondent fails to rebut this evidence with evidence of a legitimate non-discriminatory reason, the division will conclude that substantial evidence of discrimination exists.

(i) Pretext: If the respondent rebuts the evidence with evidence of a legitimate non-discriminatory reason, but there is substantial evidence that the respondent’s reason is a pretext for discrimination, the division will conclude there is substantial evidence of unlawful discrimination.

(ii) Mixed Motive: If the respondent presents substantial evidence that a legitimate, non-discriminatory reason contributed to the respondent’s action, but the division finds the individual’s protected class membership was also a substantial factor in the respondent’s action, the division will determine there is substantial evidence of unlawful discrimination.

(B) The complainant at all times has the burden of proving that the individual’s protected class was the motivating factor for the respondent’s unlawful action.

(3) Adverse Impact Discrimination in Housing:

(a) For the purposes of interpreting ORS 90.390, a court or the commissioner may find that a person has violated or is going to violate 659A.145 or 659A.421 if:

(A) The person applies a facially neutral housing policy to a member of a protected class;

(B) Application of the policy adversely impacts members of the protected class to a greater extent than the policy impacts persons generally.

(b) In determining under subsection (a) of this section whether a violation has occurred or will occur and, if it is determined that a violation has occurred or will occur, what relief should be granted, a court or the commissioner will consider:

(A) The significance of the adverse impact on the protected class;

(B) The importance and necessity of any business purpose for the facially neutral housing policy; and

(C) The availability of less discriminatory alternatives for achieving the business purpose for the facially neutral housing policy.

(4) As used in enforcing ORS 659A.145 or 659A.421 or federal housing law, harassment on the basis of a protected class is an unlawful practice in housing when:

(a) Conduct of a verbal or physical nature relating to protected classes is unlawful when substantial evidence of the elements of intentional discrimination, as described in section (2) of this rule is shown; and

(A) Such conduct is sufficiently severe or pervasive to have the purpose or effect of creating an intimidating, hostile, or offensive environment; or

(B) Submission to such conduct is made either explicitly or implicitly a term or condition of housing; or

(C) Submission to or rejection of such conduct is used as the basis for housing decisions affecting that individual.

(b) The standard for determining whether harassment is sufficiently severe or pervasive to create a hostile, intimidating or offensive environment is whether a reasonable person in the circumstances of the individual against whom the harassment is directed would so perceive it.

(5) Tenant-on-tenant harassment: A housing provider is liable for a resident’s harassment of another resident when the housing provider knew or should have known of the conduct, unless the housing provider took immediate and appropriate corrective action.

(6) Harassment by Employees or Agents: A housing provider is liable for harassment of a resident by the housing provider’s employees or agents when the housing provider knew or should have known of the conduct, unless the housing provider took immediate and appropriate corrective action.

(7) Discrimination based on disability may involve intentional discrimination, including harassment, or discrimination that need not be intentional, including adverse impact, or the failure to permit reasonable modifications, the refusal to make reasonable accommodations or the failure to design and construct covered buildings under applicable rules. To be protected from discrimination based on disability, an individual must have a disability, as described in ORS 659A.104 and the relevant rules. Reasonable accommodation in real property transactions is covered by 659A.145 and OAR 839-005-0220. Reasonable modifications in housing and the design and construction of covered buildings are covered by ORS 659A.145. Claims of disability discrimination brought under federal housing law are defined under that law.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.103 - 659A.142; 659A.145, 659A.421

Hist.: BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0300

Purpose and Scope

(1) ORS 345.240 prohibits unlawful discrimination by career schools licensed under 345.010 to 345.450.

(2) A violation of ORS 345.240 is an unlawful practice under ORS Chapter 659A. The provisions of ORS Chapter 659A that apply to unlawful practices, apply to alleged violations of 345.240, including but not limited to 659A.030(1)(f) and 659A.800 through 659A.865.

(3) Any individual claiming to be aggrieved by an unlawful practice including a violation of ORS 345.240 may file a complaint with the Commissioner of the Bureau of Labor and Industries under 659A.820.

(4) The Civil Rights Division of the Bureau of Labor and Industries enforces ORS 345.240. These rules implement and interpret 345.240.

Stat. Auth.: ORS 651.060

Stats. Implemented: ORS 345.240

Hist.: BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0305

Definitions

For purposes of ORS 345.240 and these rules:

(1) “Agent” means a person employed by or for a career school for the purpose of procuring students, enrollees or subscribers by solicitation in any form, made at a place or places other than the school office or place of business of such school.

(2) “Career school” includes any private proprietary professional, technical, home study, correspondence, business or other school instruction, organization or person that offers any instruction or training for the purpose or purported purpose of instructing, training or preparing persons for any profession. “Career school” includes those required to be licensed under ORS 345.010 to 345.450, and excludes entities described in 345.015. Entities excluded by 345.015 but receiving state funds, may be subject to 659.850, which is under the jurisdiction of the State Board of Higher Education.

(3) “Discrimination” means any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on age, disability, national origin, race, color, marital status, religion, sex or sexual orientation.

(4) “Sexual orientation” means an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.

Stat. Auth.: ORS 651.060

Stats. Implemented: ORS 345.240, 345.010 & 659.850

Hist.: BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0310

Unlawful Discrimination

(1) No career school or its agent may, based on the protected classes of age, disability, national origin, race, color, marital status, religion, sex or sexual orientation of an individual or any other individual with whom that individual associates:

(a) Refuse admission to any individual;

(b) Discriminate in any aspect of admission or enrollment against any individual;

(c ) Discriminate in giving instruction to any individual;

(d) Discriminate in requirements for or the provision of aid, benefits, or services;

(e) Discriminate in application of rules of behavior, sanctions, or any other treatment; or

(f) Otherwise limit any individual in the enjoyment of any right, privilege, advantage, or opportunity.

(2) No career school may aid or perpetuate discrimination by joining or remaining a member of any organization that discriminates, based on the protected classes in subsection (1) of this rule, in providing any aid, benefit, or service to students or employees.

Stat. Auth.: ORS 651.060

Stats. Implemented: ORS 345.240 & 659.850

Hist.: BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0315

Discrimination Theories for Career Schools

(1) Intentional Unlawful Discrimination: Substantial evidence of intentional unlawful discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001(10) and OAR 839-005-0003(12) of these rules;

(b) The complainant is a member of a protected class;

(c) The complainant was harmed by an action of the respondent; and

(d) The complainant’s protected class was the motivating factor for the respondent’s action. In determining whether the complainant’s protected class was the reason for the respondent’s action, the division uses whichever of the following theories applies:

(A) Specific Intent Theory: The respondent knowingly and purposefully discriminates against an individual because of that individual’s membership in a protected class, unless the respondent can show that a bona fide voluntary, court-ordered affirmative action plan (OAR 839-005-0013(3)) allows the action.

(B) Different or Unequal Treatment Theory: The respondent treats members of a protected class differently than others who are not members of that protected class. When the respondent makes this differentiation because of the individual’s protected class and not because of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing a case of different or unequal treatment:

(i) There must be substantial evidence that the complainant was harmed by an action of the respondent under circumstances that make it appear that the respondent treated the complainant differently than comparably situated individuals who were not members of the complainant’s protected class. Substantial evidence of discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support that protected class membership was a motivating factor for the respondent’s alleged unlawful action. If the respondent fails to rebut this evidence with evidence of a legitimate non-discriminatory reason, the division will conclude that substantial evidence of unlawful discrimination exists.

(I) Pretext: If the respondent rebuts the evidence with evidence of a legitimate non-discriminatory reason, but there is substantial evidence that the respondent’s reason is a pretext for discrimination, the division will conclude there is substantial evidence of unlawful discrimination.

(II) Mixed Motive: If the respondent presents substantial evidence that a legitimate, non-discriminatory reason contributed to the respondent’s action, but the division finds the individual’s protected class membership was also a substantial factor in the respondent’s action, the division will determine there is substantial evidence of discrimination.

(ii) The complainant at all times has the burden of proving that the complainant’s protected class was the reason for the respondent’s unlawful action.

(2) Harassment based on an individual’s protected class is a type of intentional unlawful discrimination.

(a) Conduct of a verbal or physical nature relating to protected classes other than sex is unlawful when substantial evidence of the elements of intentional discrimination, as described in section (1) of this rule, is shown and:

(A) Such conduct is sufficiently severe or pervasive to have the purpose or effect of unreasonably interfering with an individual’s performance or creating an intimidating, hostile or offensive environment;

(B) Submission to such conduct is made either explicitly or implicitly a term or condition of enrollment; or

(C) Submission to or rejection of such conduct is used as the basis for enrollment decisions affecting that individual.

(b) The standard for determining whether harassment is sufficiently severe or pervasive to create a hostile, intimidating or offensive environment is whether a reasonable person in the circumstances of the complaining individual would so perceive it.

(3) Adverse Impact Discrimination: Substantial evidence of adverse impact discrimination does not require establishment of intentional discrimination as provided in (1) of this rule. Adverse impact discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001(10) and OAR 839-005-0003(10) of these rules;

(b) The respondent has a standard or policy that is applied equally.

(c) The standard or policy has the effect of screening out or otherwise affecting members of a protected class at a significantly higher rate than others who are not members of that protected class; and

(d) The complainant is a member of the protected class adversely affected by the respondent’s standard or policy and has been harmed by the respondent’s application of the standard or policy.

(4) Reasonable Accommodation of Religion: A career school must reasonably accommodate a student’s or applicant’s religious belief, observance or practice unless the career school can demonstrate that such accommodation would cause it undue hardship.

Stat. Auth.: ORS 651.060

Stats. Implemented: ORS 345.240, 345.120 & 345.060

Hist.: BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0320

Authority of Superintendent of Public Instruction Related to Complaints Under ORS 345.240

(1) Pursuant to ORS 345.120, the Superintendent of Public Instruction of the State of Oregon has authority to suspend or revoke licenses of career schools violating 345.010 to 345.450 or any applicable rule. A certified copy of a finding by the Commissioner of the Bureau of Labor and Industries in a contested case proceeding under 659A.850 that the school has violated 345.240 is adequate proof of the violation.

(2) Pursuant to ORS 345.060, the Superintendent of Public Instruction may accept service of all actions or proceedings brought against a career school not domiciled in Oregon.

Stat. Auth.: ORS 651.060

Stats. Implemented: ORS 345.240, 345.120 & 345.060

Hist.: BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0325

Retaliation or Discrimination Prohibited

Pursuant to ORS 659A.030(1)(f), it is an unlawful practice for a career school or its agent to retaliate or discriminate against any individual because the individual has filed a complaint, testified or assisted in any proceeding in connection with 345.240 or ORS Chapter 659A.

Stat. Auth.: ORS 651.060

Stats. Implemented: ORS 345.240 & 659A.030

Hist.: BLI 14-2013, f. & cert. ef. 12-30-13

839-005-0400

Unlawful Employment Practice

(1) It is an unlawful employment practice for an employer to:

(a) Require or request an employee or an applicant for employment to disclose or to provide access through the employee’s or applicant’s user name and password, password or other means of authentication that provides access to a personal social media account;

(b) Compel an employee or applicant for employment to add the employer or an employment agency to the employee’s or applicant’s list of contacts associated with a social media website;

(c) Except as provided in subsection (4)(b) of this section, compel an employee or applicant for employment to access a personal social media account in the presence of the employer and in a manner that enables the employer to view the contents of the personal social media account that are visible only when the personal social media account is accessed by the account holder’s user name and password, password or other means of authentication;

(d) Take, or threaten to take, any action to discharge, discipline or otherwise penalize an employee for the employee’s refusal to disclose, or to provide access through, the employee’s user name and password, password or other means of authentication that is associated with a personal social media account, to add the employer to the employee’s list of contacts associated with a social media website or to access a personal social media account as described in paragraph (c) of this subsection; or

(e) Fail or refuse to hire an applicant for employment because the applicant refused to disclose, or to provide access through, the applicant’s user name and password, password or other means of authentication that is associated with a personal social media account, to add the employer to the applicant’s list of contacts associated with a social media website or to access a personal social media account as described in paragraph (c) of this subsection.

(2) An employer may require an employee to disclose any username and password, password or other means for accessing an account provided by, or on behalf of, the employer or to be used on behalf of the employer.

(3) An employer may not be held liable for the failure to request or require an employee or applicant to disclose the information specified in subsection (1)(a) of this section.

(4) Nothing in this section prevents an employer from:

(a) Conducting an investigation, without requiring an employee to provide a user name and password, password or other means of authentication that provides access to a personal social media account of the employee, for the purpose of ensuring compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct based on receipt by the employer of specific information about activity of the employee on a personal online account or service.

(b) Conducting an investigation permitted under this subsection that requires an employee, without providing a user name and password, password or other means of authentication that provides access to a personal social media account of the employee, to share content that has been reported to the employer that is necessary for the employer to make a factual determination about the matter.

(c) Complying with state and federal laws, rules and regulations and the rules of self-regulatory organizations.

(5) Nothing in this section prohibits an employer from accessing information available to the public about the employee or applicant that is accessible through an online account.

(6) If an employer inadvertently receives the user name and password, password or other means of authentication that provides access to a personal social media account of an employee through the use of an electronic device or program that monitors usage of the employer’s network or employer-provided devices, the employer is not liable for having the information but may not use the information to access the personal social media account of the employee.

(7) As used in this section, “social media” means an electronic medium that allows users to create, share and view user-generated content, including, but not limited to, uploading or downloading videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail or Internet website profiles or locations.

Stat. Auth.: ORS 659A.805

Stats. Implemented: HB 2654, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 14-2013, f. & cert. ef. 12-30-13


Rule Caption: Amending, adopting and renumbering rules in Division 839-006 regarding disabilities

Adm. Order No.: BLI 15-2013

Filed with Sec. of State: 12-30-2013

Certified to be Effective: 12-30-13

Notice Publication Date: 11-1-2013

Rules Adopted: 839-006-0291, 839-006-0292, 839-006-0345

Rules Amended: 839-006-0205, 839-006-0212, 839-006-0270, 839-006-0290, 839-006-0295, 839-006-0305

Rules Renumbered: 839-006-0332 to 839-006-0350

Rules Ren. & Amend: 839-006-0307 to 839-006-0340

Subject: Amendments to 839-006-0205 and 839-006-0212 make the rules consistent with newly enacted legislation regarding substantial limitations.

   Amendments to 839-006-0270 and 839-006-0295 and adoption of 839-006-0292 provide definitions for auxiliary aids and services for state government. Adoption of 839-006-0291 would provide clarification for reasonable modifications by state government. These are all consistent with the Americans with Disabilities Act and ORS 659A.139. Amendments to 839-006-0290 implement newly enacted legislation regarding places of public accommodation and state government.

   Amendments to 839-006-0305 modify the definition of place of public accommodation consistent with newly enacted legislation.

   Amendments and renumbering of 839-006-0307 to 839-006-0340 reorganize the rule as theories of discrimination that apply to state government and places of public accommodation. The amendments would also replace the term “complainant” with “individual” because the Commissioner and the Attorney General may bring complaints on behalf on individuals with disabilities

   Adoption of 839-006-0345 provides information on assistance animals in places of public accommodation and state government, consistent with newly enacted legislation.

   Renumbering of 839-006-0332 to 839-006-0350 moves the existing rule without amendments, as the subject of the rule, requirements for transient lodging, is separate and not a part of the Oregon disability statutes.

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

839-006-0205

Definitions

(1) “Disability” means:

(a) A physical or mental impairment that substantially limits one or more major life activities of the individual.

(b) A record of having a physical or mental impairment that substantially limits one or more major life activities of the individual. An individual has a record of having a physical or mental impairment if the individual has a history of, or has been misclassified as having, a physical or mental impairment that substantially limits one or more major life activities of the individual.

(c) A physical or mental impairment that the individual is regarded as having.

(A) An individual is regarded as having a physical or mental impairment if the individual has been subjected to an action prohibited under ORS 659A.112 to 659A.139 because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity of the individual.

(B) An individual is not regarded as having a physical or mental impairment if the individual has an impairment that is minor and that has an actual or expected duration of six months or less.

(2) “Employer” means any person that employs six or more persons and includes the state, counties, cities, districts, authorities, public corporations and entities and their instrumentalities, except the Oregon National Guard, as provided in ORS 659A.106. The “six or more persons” need not be employed within Oregon.

(3) “Employment agency” includes any person undertaking to procure employees or opportunities to work.

(4) “Essential functions” are the fundamental duties of a position an individual with a disability holds or desires.

(a) A job function may be essential for any of several reasons, including but not limited to, the following:

(A) The position exists to perform that function;

(B) A limited number of employees is available to carry out the essential function; or

(C) The function is highly specialized so that the position incumbent was hired for the expertise or ability required to perform the function.

(b) Evidence of whether a particular function is essential includes but is not limited to:

(A) The amount of time spent performing the function;

(B) The consequences of not performing the function;

(C) The terms of a collective bargaining agreement;

(D) The work experience of past incumbents in the job; and

(E) The current work experience of incumbents in similar jobs.

(5) “Labor organization” includes any organization constituted for the purpose, in whole or in part, of collective bargaining or dealing with employers concerning grievances, terms or conditions of employment or of other mutual aid or protection in connection with employees.

(6) “Major life activity” includes, but is not limited to:

(a) Caring for oneself;

(b) Performing manual tasks;

(c) Seeing;

(d) Hearing;

(e) Eating;

(f) Drinking;

(g) Sleeping;

(h) Walking;

(i) Standing;

(j) Lifting;

(k) Bending;

(l) Twisting;

(m) Speaking;

(n) Breathing;

(o) Cognitive functioning;

(p) Learning;

(q) Education;

(r) Reading;

(s) Concentrating;

(t) Remembering;

(u) Thinking;

(v) Communicating;

(w) Working: To be substantially limited in the major life activity of working, an individual must be significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes as compared to the ability of an average person with comparable skill, experience, education or other job-related requirements needed to perform those same positions;

(x) Socialization;

(y) Sitting;

(z) Reaching;

(aa) Interacting with others;

(bb) Sexual relations;

(cc) Employment;

(dd) Ambulation;

(ee) Transportation;

(ff) Operation of a major bodily function, including but not limited to:

(A) Functions of the immune system;

(B) Normal cell growth; and

(C) Digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions; and

(gg) Ability to acquire, rent or maintain property.

(7) “Medical,” as used in ORS 659A.133 and 659A.136 and these rules, means any information, whether oral, written or electronic that:

(a) Is created or received by an employer; and

(b) Relates to the past, present, or future physical or mental health status or condition of an individual.

(8) “Misclassified,” as used in ORS 659A.104(b), means an erroneous or unsupported medical diagnosis, report, certificate or evaluation.

(9) “Physical or mental impairment” means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, traumatic brain injury, emotional or mental illness, and specific learning disabilities.

(10) A “qualified individual with a disability” is an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of a position that the individual holds or desires, and who can, with or without reasonable accommodation, perform the position’s essential functions.

(11) “Reasonable accommodation” is defined in OAR 839-006-0206.

(12) “Substantially limits” means that an individual has an impairment, had an impairment or is perceived as having an impairment that restricts one or more major life activities of the individual as compared to most people in the general population.

(a) An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.

(b) An impairment that substantially limits one major life activity of the individual need not limit other major life activities of the individual.

(c) In determining whether an impairment substantially limits a major life activity, the ability of the individual with the impairment to perform that major life activity is compared to that of individuals in the general population.

(d) Factors that could affect whether an impairment “substantially limits a major life activity” include, but are not limited to, the presence of other impairments that combine to make the impairment disabling.

(e) An impairment that is episodic or in remission is considered to substantially limit a major life activity of the individual if the impairment would substantially limit a major life activity of the individual when the impairment is active. Nonetheless, not every impairment will constitute a disability within the meaning of this section.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.103 - 659A.142, H.B. 2111, 77th Leg., Reg. Session (Or. 2013)

Hist.: BL 2-1984, f. & ef. 1-31-84; BL 15-1990, f. 10-29-90, cert. ef. 11-1-90; BL 4-1996, f. & cert. ef. 3-12-96; BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 9-2006, f. 3-16-06, cert. ef. 3-20-06; BLI 4-2007, f. 1-29-07, cert. ef. 2-1-07; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

839-006-0212

Determining Whether an Impairment Substantially Limits a Major Life Activity

(1) When determining whether an impairment substantially limits a major life activity of an individual, the determination shall be made without regard to the ameliorative effects of mitigating measures, including:

(a) Medication;

(b) Medical supplies, equipment or appliances;

(c) Low vision devices or other devices that magnify, enhance or otherwise augment a visual image, except that ordinary eyeglasses or contact lenses or other similar lenses that are intended to fully correct visual acuity or eliminate refractive error may be considered when determining whether an impairment substantially limits a major life activity of an individual;

(d) Prosthetics, including limbs and devices;

(e) Hearing aids, cochlear implants or other implantable hearing devices;

(f) Mobility devices;

(g) Oxygen therapy equipment or supplies;

(h) Assistive technology;

(i) Reasonable accommodations or auxiliary aids or services; or

(j) Learned behavioral or adaptive neurological modifications.

(2) The non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered when determining whether an individual’s impairment substantially limits a major life activity.

(3) The determination of whether a person is substantially limited in a major life activity shall be made on a case-by-case basis.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.103 - 659A.142

Hist.: BL 2-1998, f. & cert. ef. 2-3-98; BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

839-006-0270

Purpose and Scope: State Government

(1) ORS 659A.103 provides that it is the policy of the State of Oregon to guarantee individuals the fullest possible participation in the social and economic life of the state, including participating in and receiving the benefits of the services, programs and activities of state government, without discrimination on the basis of disability.

(2) ORS 659A.142(5) provides that:

(a) It is an unlawful practice for state government to exclude an individual from participation in or deny an individual the benefits of the services, programs or activities of state government or to make any distinction, discrimination or restriction because the individual has a disability.

(b) State government shall make reasonable modifications in services, programs or activities, including but not limited to policies and procedures, when the modifications are necessary for state government to comply with ORS 659A.142(5).

(c) State government shall provide auxiliary aids and services when necessary to ensure equal access to state government programs, services, and activities.

(3) Theories applied in cases of alleged discrimination under ORS 659A.142(5) are found in OAR 839-006-0340.

(4) An individual claiming a violation of ORS 659A.142(5) may file a complaint with the Civil Rights Division as provided in OAR 839-003-0025.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.142(5)

Hist.: BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05; BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

839-006-0290

Other Statutes, Regulations and Agencies Governing Access by or Discrimination Against Persons with Disabilities

(1) Public transportation services, programs, and activities of public entities are subject to Title II of the federal Americans with Disabilities Act and regulated by the U.S. Department of Transportation. See 42 USC 12141 ¦ 221 and 49 CFR ¦ 37. Public transportation is covered by ORS 659A.142(4).

(2) Accessibility of government facilities is subject to Title II of the Americans with Disabilities Act, 42 USC ¦12131. The U.S. Department of Justice regulates existing government facilities (28 CFR ¦ 35.150) and new construction and alterations to government facilities (28 CFR ¦ 35.151). The Oregon Department of Consumer and Business Services has jurisdiction over disability access to state and local government facilities in Oregon. See ORS 447.210 to 447.310 and administrative rules and standards adopted pursuant thereto.

(3) The federal Rehabilitation Act provides that no otherwise qualified individual with a disability in the United States shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any federal executive agency or by the United States Postal Service. 29 USC ¦ 794.

(4) Discrimination against individuals with disabilities in employment is subject to ORS 659A.103 to 659A.139 and OAR 839-006-0200 to 0265.

(5) Discrimination against individuals with disabilities by places of public accommodation is subject to ORS 659A.142(4) and OAR 839-006-0300 to 0335.

(6) Assistance animals in places of public accommodation or access to state government are subject to SB 610, 77th Leg., Reg. Session (Or. 2013) and OAR 839-006-0345.

(7) Discrimination against individuals with disabilities in real property transactions is subject to ORS 659A.142, 659A.145 and OAR 839-005-0195 to 839-005-0220.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.103 - .142, HB 2668, 77th Leg., Reg. Session (Or. 2013) and SB 610, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05; BLI 14-2008, f. 5-30-08, cert. ef. 6-6-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

839-006-0291

Reasonable Modifications: State Government

(1) State government shall make reasonable modifications in services, programs or activities, including but not limited to policies and procedures, when the modifications are necessary for state government to comply with ORS 659A.142(5) unless state government can demonstrate that making the modifications would result in a fundamental alteration in the nature of the service, program, or activity or would result in undue financial or administrative burdens on state government. This will be determined on a case by case basis.

(2) ORS 659A.142(5) and these rules are not intended to:

(a) Create an independent entitlement to any service, program or activity of state government; or

(b) Require state government to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program or activity or would result in undue financial or administrative burdens, as determined on a case-by-case basis.

(3) In determining whether financial and administrative burdens are undue for purposes of ORS 659A.142(5) and these rules, all resources available for use in the funding and operation of the service, program, or activity will be considered.

(4) Nothing in ORS 659A.142(5) or these rules prohibits state government from providing benefits, services, or advantages to individuals with disabilities beyond those required by 659A.142(5) or these rules.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.142(5)

Hist.: BLI 15-2013, f. & cert. ef 12-30-13

839-006-0292

Definitions — Auxiliary Aids and Services: State Government

(1) “Qualified interpreter” means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.

(2) “Qualified reader” means a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary.

(3) “Video remote interpreting (VRI) service” means an interpreting service that uses video conferencing technology over dedicated lines or wireless technology offering high-speed, wide- bandwidth video connection that delivers high-quality video images.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.142

Hist.: BLI 15-2013, f. & cert. ef 12-30-13

839-006-0295

Provision of Auxiliary Aids and Services: State Government

(1) Except as provided for in subsection (3) of this section, state government must provide auxiliary aids and services when necessary to ensure equal access for individuals with disabilities to state government programs, services, and activities.

(2) Auxiliary aids and services may include, but are not limited to:

(a) Qualified interpreters, note takers, real-time computer-aided transcription services, transcription services, written materials, exchange of written notes, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning including real-time captioning, voice, text and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, telecommunications devices for deaf persons (TDDs), videotext displays, computer aided real time captioning (CART), accessible electronic and information technology, or other effective methods of making aurally delivered materials available to individuals with hearing impairments;

(b) Qualified readers, taped texts, audio recordings, brailed materials and displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), large print materials, accessible electronic and information technology including e-mail, or other effective methods of making visually delivered materials available to individuals with visual impairments;

(c) Acquisition or modification of equipment or devices; and

(d) Other similar services and actions.

(3) State government is not required to provide auxiliary aids or services that state government can demonstrate would result in a fundamental alteration in the nature of a service, program or activity of state government or would result in undue financial or administrative burdens on state government. This will be determined on a case by case basis.

(4) State government may not place a surcharge to cover the costs of measures such as the provision of auxiliary aids or program accessibility, that are required to provide an individual with a disability with the nondiscriminatory treatment required by ORS 659A.142(5).

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.142

Hist.: BLI 21-2005, f. 10-20-05, cert. ef. 10-21-05; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

839-006-0305

Definitions

(1) “Disability” has the meaning given in OAR 839-006-0205.

(2) “Major life activity” has the meaning given in OAR 839-006-0205(6).

(3) “Physical or mental impairment” has the meaning given in OAR 839-006-0205 (9).

(4) “Place of public accommodation” means:

(a) Any place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise;

(b) Any place that is open to the public and owned or maintained by a public body, as defined in ORS 174.109, regardless of whether the place is commercial in nature; or

(c) Any service to the public that is provided by a public body, as defined in ORS 174.109, regardless of whether the service is commercial in nature.

(5) A place of public accommodation does not include:

(a) A Department of Corrections institution as defined in ORS 421.005;

(b) A state hospital as defined in ORS 162.135;

(c) A youth correction facility as defined in ORS 420.005;

(d) A local correction facility or lockup as defined in ORS 169.005; or

(e) An institution, bona fide club or place of accommodation that is in its nature distinctly private.

(6) “Substantially limits” has the meaning given in OAR 839-006-0205(12).

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.142, HB 2668, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 15-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 9-2006, f. 3-16-06, cert. ef. 3-20-06; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2013, f. & cert. ef 12-30-13

839-006-0340

Discrimination Theories: Discrimination Against Individuals with Disabilities by State Government or Places of Public Accommodation

(1) A violation of discrimination laws against individuals with disabilities may involve either intentional or unintentional discrimination. Discrimination against individuals with disabilities need not be intentional to be unlawful. Unintentional discrimination may occur, for example, in situations involving adverse impact. To be protected from discrimination based on disability, an individual must have a disability, as defined in ORS 659A.104 and the relevant rules.

(2) Substantial evidence of intentional unlawful discrimination against an individual exists if the investigation of the Civil Rights Division (“division”) reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001(10) and OAR 839-005-0003(12) of these rules;

(b) The individual has a disability;

(c) The individual was harmed by an action of the respondent; and

(d) The individual’s disability was the motivating factor for the respondent’s action. In determining whether the individual’s disability was the motivating factor for the respondent’s action, the division uses whichever of the following theories applies:

(A) Specific Intent Theory: The respondent knowingly and purposefully discriminates against an individual because that individual has a disability.

(B) Different or Unequal Treatment Theory: The respondent treats individuals with disabilities differently than others who do not have disabilities. When the respondent makes this differentiation because of the individual’s disability and not because of legitimate, non-discriminatory reasons, unlawful discrimination exists. In establishing a case of different or unequal treatment:

(i) There must be substantial evidence that the individual was harmed by an action of the respondent under circumstances that make it appear that the respondent treated the individual differently than comparably situated individuals who do not have disabilities. Substantial evidence of discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support that an individual’s disability was a motivating factor for the respondent’s alleged unlawful action. If the respondent fails to rebut this evidence with evidence of a legitimate non-discriminatory reason, the division will conclude that substantial evidence of unlawful discrimination exists.

(I) Pretext: If the respondent rebuts the evidence with evidence of a legitimate non-discriminatory reason, but there is substantial evidence that the respondent’s reason is a pretext for discrimination, the division will conclude there is substantial evidence of unlawful discrimination.

(II) Mixed Motive: If the respondent presents substantial evidence that a legitimate, non-discriminatory reason contributed to the respondent’s action, but the division finds the individual’s disability was also a substantial factor in the respondent’s action, the division will determine there is substantial evidence of discrimination.

(ii) The individual with a disability at all times has the burden of proving that the individual’s disability was the motivating factor for the respondent’s unlawful action.

(3) Adverse impact by a place of public accommodation or by state government on the basis of disability: Substantial evidence of adverse impact discrimination does not require establishment of intentional discrimination as provided in (2) of this rule. Adverse impact discrimination exists if the division’s investigation reveals evidence that a reasonable person would accept as sufficient to support the following elements:

(a) The respondent is a respondent as defined by ORS 659A.001(10) and OAR 839-005-0003(12) of these rules;

(b) The respondent has a standard or policy that is applied equally.

(c) The standard or policy has the effect of screening out or otherwise affecting members of a protected class at a significantly higher rate than others who are not members of that protected class; and

(d) The complainant is a member of the protected class adversely affected by the respondent’s standard or policy and has been harmed by the respondent’s application of the standard or policy.

(4) Harassment by a place of public accommodation or by state government on the basis of disability:

(a) Conduct of a verbal or physical nature on the basis of disability is unlawful when substantial evidence of the elements of intentional discrimination, as described in section (2) of this rule, is shown and:

(A) Such conduct is sufficiently severe or pervasive to have the purpose or effect of creating an intimidating, hostile or offensive environment; or

(B) Submission to such conduct is made either explicitly or implicitly a term or condition of receiving services, accommodations, advantages, facilities or privileges from a place of public accommodation or services, programs or activities of state government; or

(C) Submission to or rejection of such conduct is used as the basis for decisions affecting that individual.

(b) The standard for determining whether harassment is sufficiently severe or pervasive to create a hostile, intimidating or offensive environment is whether a reasonable person in the circumstances of the individual against whom the harassment is directed would so perceive it.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.103 & 659A.142

Hist.: BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; Renumbered from 839-006-0307 by BLI 15-2013, f. & cert. ef 12-30-13

839-006-0345

Assistance Animals in Places of Public Accommodation or Access to State Government

(1) “Assistance animal” means a dog or other animal designated by administrative rule that has been individually trained to do work or perform tasks for the benefit of an individual.

(2) “Assistance animal trainee” means an animal that is undergoing a course of development and training to do work or perform tasks for the benefit of an individual that directly relate to the disability of the individual.

(3) “Assistance animal trainer” means an individual exercising care, custody and control over an assistance animal trainee during a course of training designed to develop the trainee into an assistance animal.

(4) A place of public accommodation or of access to state government services, programs or activities may not:

(a) Ask an individual about the nature or extent of a disability that the individual has or may have;

(b) Require an individual to provide documentation proving that an animal is an assistance animal or an assistance animal trainee; or

(c) Notwithstanding any fee or admission charge imposed for pets, require that a person with a disability or an assistance animal trainer pay a fee or admission charge for an assistance animal or assistance animal trainee.

(5) A place of public accommodation or of access to state government services, programs or activities may:

(a) Ask whether an animal is required due to a disability; and

(b) Ask about the nature of the work or task that an animal is trained to do or perform or is being trained to do or perform, unless it is readily apparent that the animal performs or is being trained to perform work or a task for the benefit of a person with a disability.

(6) If a place of public accommodation or of access to state government services, programs or activities customarily charges a person for damages that the person causes to the place, the place may charge a person with a disability or an assistance animal trainer for damages that an assistance animal or assistance animal trainee causes to the place.

(7) A person with a disability or an assistance animal trainer must maintain control of an assistance animal or assistance animal trainee.

(a) Except as provided in this subsection, control shall be exerted by means of a harness, leash or other tether.

(b) If the use of a harness, leash or other tether would interfere with the ability of the animal to do the work or perform the tasks for which the animal is trained or is being trained, control may be exerted by the effective use of voice commands, signals or other means.

(c) If an animal is not under control as required in this subsection, a place of public accommodation or of access to state government services, programs or activities may consider the animal to be out of control for purposes of subsection (8) of this section.

(8)(a) Except as provided in this subsection, a place of public accommodation or of access to state government services, programs or activities may not deny a person with a disability or an assistance animal trainer the right to be accompanied by an assistance animal or assistance animal trainee in any area of the place that is open to the public or to business invitees.

(b) A place of public accommodation or of access to state government services, programs or activities may require a person with a disability or an assistance animal trainer to remove an assistance animal or assistance animal trainee if:

(A) The animal is not housebroken; or

(B) The animal is out of control and effective action is not taken to control the animal.

(c) A place of public accommodation or of access to state government services, programs or activities may impose legitimate requirements necessary for the safe operations of the place of public accommodation or the services, programs or activities. The place of public accommodation or of access to state government services, programs or activities shall ensure that the safety requirements are based on actual risks, not on speculation, stereotypes or generalizations about persons with disabilities.

(9) A place of public accommodation or of access to state government services, programs or activities shall make reasonable modifications as necessary to allow an opportunity for a person with a disability who is benefited by the use of an assistance animal to obtain goods, services and the use of the advantages, facilities and privileges of the place or the advantages, facilities and privileges of the state government services, programs or activities. For purposes of this subsection, except as provided in subsections (5) and (7) of this section, in addition to any other applicable accommodation requirement, allowing the presence of the assistance animal is a reasonable modification.

(10) If a place of public accommodation or of access to state government services, programs or activities requires a person with a disability to remove an assistance animal under subsection (8) of this section, the place or state government shall give the person with a disability a reasonable opportunity to obtain goods, services and the use of the advantages, facilities and privileges of the place or the advantages, facilities and privileges of the state government services, programs or activities without the assistance animal’s presence.

(11) A place of public accommodation or of access to state government services, programs or activities is not required to provide care or supervision for an assistance animal or assistance animal trainee.

(12) The protection granted under this section to a person with a disability or an assistance animal trainer does not invalidate or limit the remedies, rights and procedures of any other federal, state or local laws that provide equal or greater protection of the rights of a person with a disability, an assistance animal trainer or individuals associated with a person with a disability.

Stat. Auth.: ORS 659A.805

Stats. Implemented: SB 610, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 15-2013, f. & cert. ef 12-30-13

839-006-0350

Lift Systems for Transient Lodging

(1) A transient lodging provider shall ensure that in transient lodging facilities of 175 or more rooms or suite of rooms that at least one room or suite of rooms has a lift system or multiple lift systems that enable an individual with a disability to access a bed, a toilet, and a shower or bathtub in the room or suite of rooms occupied by the individual with a disability.

(a) “Lift system” means a system that:

(A) Is used to transfer a person to a bed, toilet, shower or bathtub, but does not provide the individual with independent mobility;

(B) May be a manual lift, an electronic lift or a lift that uses a track system; and

(C) May require operation by an assistant.

(b) “Transient lodging” means a unit consisting of a room or suite of rooms that: (A) Is not occupied as a principal residence;

(B) Is typically occupied for a period of fewer than 30 consecutive days; and

(C) Includes services that are part of the regularly charged cost of occupancy, including maid and linen services.

(2) Additional information regarding the requirement described in section (3) of this rule is available at ORS 659A.144.

(3) Any violation of section (1) of this rule or of the authorizing statutes is an unlawful practice.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.144

Hist.: BLI 9-2010, f. & cert. ef. 2-24-10; Renumbered from 839-006-0332 by BLI 15-2013, f. & cert. ef 12-30-13


Rule Caption: Amending rules in Division 839-009 to add new statutory provisions, add leave form, housekeeping edits

Adm. Order No.: BLI 16-2013

Filed with Sec. of State: 12-31-2013

Certified to be Effective: 12-31-13

Notice Publication Date: 11-1-2013

Rules Amended: 839-009-0210, 839-009-0230, 839-009-0240, 839-009-0250, 839-009-0270, 839-009-0280, 839-009-0325, 839-009-0330, 839-009-0340, 839-009-0345, 839-009-0362, 839-009-0363, 839-009-0380, 839-009-0390, 839-009-0430

Subject: Amendments to 839-009-0210, 839-009-0230, 839-009-0240, 839-009-0250 implement newly enacted legislation on OFLA.

   Further amendments to 839-009-0210 are for housekeeping and to make the definition of health care provider consistent with the statutes.

   Amendments to 839-009-0270 clarify that employer payment of health benefits is an employer option for OFLA-only leave.

   Amendments to 839-009-0280 replace “available” paid leave with “accrued” paid leave for clarification.

   Amendments to 839-009-0325, 839-009-0340, 839-009-0362, 839-009-0363 implement newly enacted legislation regarding public employers with respect to victims under this section.

   Amendments to OAR 839-009-0325 and 839-009-0330 clarify what posting is required under newly enacted legislation. Currently 839-009-0325 and 839-009-0330 do not include a posting requirement for ORS 659A.170 to 659A.285. Newly amended legislation creates this requirement.

   Amendments to 839-009-0340 reflect newly enacted legislation and create consistency among the definitions of victim. Currently OAR 839-009-0340 includes definitions which are no longer consistent with newly enacted legislation. It also currently contains a definition of Victim of Harassment that is not consistent with definitions of Victim of Domestic Violence, Victim of Sexual Assault, and Victim of Stalking.

   Amendments to 839-009-0340 and 839-009-0380 remove the word “calendar” in reference to year to be consistent with the statutes.

   Amendments to 839-009-0430 include an example request form for OMFLA which a covered employee may provide.

   Amendments to 839-009-0210, 839-009-0340, and 839-009-0380 adding a definition of spouse.

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

839-009-0210

Definitions: OFLA

(1) “Alternate duty” means work assigned to an employee that may consist of:

(a) The employee’s same duties worked on a different schedule; or

(b) Different duties worked on the same or different schedule.

(2) “Child,” for the purposes of parental and sick child leave only (not for the purposes of serious health condition leave), means a biological, adopted, foster or stepchild, the child of an employee’s same-gender domestic partner or a child with whom the employee is or was in a relationship of in loco parentis. The child must be:

(a) Under the age of 18; or

(b) An adult dependent child substantially limited by a physical or mental impairment as defined by ORS 659A.104(1)(a), (3), and (4).

(3) “Covered employer” means any employer employing 25 or more persons in the state of Oregon for each working day during each of 20 or more calendar work weeks in the calendar year in which the leave is to be taken or in the calendar year immediately preceding the year in which the leave is to be taken.

(4) “Domestic partner” means an individual joined in a domestic partnership.

(5) “Domestic partnership” for the purposes of ORS Chapter 659A means two individuals of the same sex who have received a Certificate of Registered Domestic Partnership from the State of Oregon in compliance with 432.405(1) and rules adopted by the State Registrar of the Center for Health Statistics.

(6) “Eligible employee” means an employee employed in the state of Oregon on the date OFLA leave begins. For eligibility of employees reemployed following a period of uniformed service, see subsections (c) and (d) of this section.

(a) For the purpose of taking parental leave, an employee must be employed by a covered employer for at least 180 calendar days immediately preceding the date on which OFLA leave begins.

(b) For purposes of taking all other types of OFLA leave, including pregnancy disability leave, an employee must have worked for a covered employer for an average of at least 25 hours per week during the 180 calendar days immediately preceding the date OFLA leave begins.

(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 25 hours average per week, the employer must count actual hours worked using guidelines set out pursuant to the Fair Labor Standards Act (See 29 CFR ¦ 785).

(c) 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 OFLA 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 OFLA’s eligibility requirements. In the event that a service member is denied OFLA leave for failing to satisfy the OFLA 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 OFLA.

NOTE: USERRA also applies to leave under the federal Family and Medical Leave Act of 1993, 29 USC ¦2601-2654 (FMLA).

(d) 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 OFLA prior to the date uniformed service began, OFLA’s eligibility requirements are considered met.

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

(7) “Family member” means the spouse, same-gender domestic partner, custodial parent, non-custodial parent, adoptive parent, foster parent, biological parent, parent-in-law, parent of same-gender domestic partner, grandparent or grandchild of the employee, or a person 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 or the child of an employee’s same-gender domestic partner. For the purposes of OFLA, an employee’s child in any of these categories may be either a minor or an adult at the time serious health condition leave is taken.

(8) “FMLA” is the federal Family and Medical Leave Act, 29 USC ¦2601.

(9) “Foreseeable leave” means leave taken for a purpose set out in ORS 659A.159 that is not “unforeseeable leave” as defined in OAR 839-009-0210(21).

(10) “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.

(11) “Gender” means an individual’s assigned sex at birth, gender identity, or gender expression.

(12) “Gender expression” means the manner in which an individual’s gender identity is expressed, including, but not limited to, through dress, appearance, manner, speech, or lifestyle, whether or not that expression is different from that traditionally associated with the individual’s assigned sex at birth.

(13) “Gender identity” means an individual’s gender-related identity, whether or not that identity is different from that traditionally associated with the individual’s assigned sex at birth, including, but not limited to, a gender identity that is transgender or androgynous.

(14) “Health care provider” means:

(a) A person who is primarily responsible for providing health care to an eligible employee or a family member of an eligible employee, who is performing within the scope of the person’s professional license or certificate and who is:

(A) A physician licensed to practice medicine under ORS 677.110, including a doctor of osteopathy;

(B) A podiatrist licensed under ORS 677.825;

(C) A dentist licensed under ORS 679.090;

(D) A psychologist licensed under ORS 675.030;

(E) An optometrist licensed under ORS 683.070;

(F) A naturopath licensed under ORS 685.080;

(G) A registered nurse licensed under ORS 678.050;

(H) A nurse practitioner certified under ORS 678.375;

(I) A direct entry midwife licensed under ORS 687.420;

(J) A licensed registered nurse who is certified by the Oregon State Board of Nursing as a nurse midwife nurse practitioner;

(K) A regulated social worker authorized to practice regulated social work under ORS 675.510 to 675.600;

(L) A chiropractic physician licensed under ORS 684.054, but only to the extent the chiropractic physician provides treatment consisting of manual manipulation of the spine to correct a subluxation demonstrated to exist by X-rays;

(M) A physician’s assistant licensed under ORS 677.512.

(b) A person who is primarily responsible for the treatment of an eligible employee or a family member of an eligible employee solely through spiritual means, including but not limited to a Christian Science practitioner.

(15) “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.

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

(17) “OFLA” is the Oregon Family Leave Act, ORS 659A.150 to 659A.186.

(18) “OFLA leave” means a leave of absence for purposes described in ORS 659A.159, HB 2950, 77th Leg., Reg. Session (Or. 2013) and OAR 839-009-0230(1) through (5). Except that “OFLA leave” does not include leave taken by an eligible employee who is unable to work because of a disabling compensable injury, as defined in ORS 656.005, unless the employee has refused a suitable offer of light duty or modified employment under ORS 659A.043(3)(a)(D) or 659A.046(3)(d). See 659A.162, OAR 839-006-0131(2) and 839-006-0136(4).

(19) “OFLA leave year,” for calculating the OFLA leave year entitlement, means a calendar year (January to December), a fixed 12-month period such as a fiscal year, a 12-month period measured forward from the date of the employee’s first OFLA leave, or a 12-month period measured backward from the date the employee uses any OFLA leave. The option selected must be applied to all employees. In the absence of an employer policy or collective bargaining agreement defining how an OFLA leave year will be measured, a calendar year will be used.

(20) “Serious health condition” means an illness, injury, impairment or physical or mental condition of an employee or family member:

(a) That requires inpatient care in a medical care facility such as a hospital, hospice or residential facility such as a nursing home. When a family member resides in a long-term residential care facility, leave applies only to:

(A) Transition periods spent moving the family member from one home or facility to another, including time to make arrangements for such transitions;

(B) Transportation or other assistance required for a family member to obtain care from a physician; or

(C) Serious health conditions as described in (b) through (h) of section (20) of this rule.

(b) That the treating health care provider judges to pose an imminent danger of death, or that is terminal in prognosis with a reasonable possibility of death in the near future;

(c) That requires constant or continuing care such as home care administered by a health care professional;

(d) That involves a period of incapacity. Incapacity is the inability to perform at least one essential job function, or to attend school or perform regular daily activities for more than three consecutive calendar days and any subsequent required treatment or recovery period relating to the same condition. This incapacity must involve:

(A) Two or more treatments by a health care provider; or

(B) One treatment plus a regimen of continuing care.

(e) That results in a period of incapacity or treatment for a chronic serious health condition that requires periodic visits for treatment by a health care provider, continues over an extended period of time, and may cause episodic rather than a continuing period of incapacity, such as asthma, diabetes or epilepsy;

(f) That involves permanent or long-term incapacity due to a condition for which treatment may not be effective, such as Alzheimer’s disease, a severe stroke or terminal stages of a disease. The employee or family member must be under the continuing care of a health care provider, but need not be receiving active treatment;

(g) That involves multiple treatments for restorative surgery or for a condition such as chemotherapy for cancer, physical therapy for arthritis, or dialysis for kidney disease that if not treated would likely result in incapacity of more than three days; or

(h) That involves any period of disability of a female due to pregnancy or childbirth or period of absence for prenatal care.

(21) “Unforeseeable leave” means leave taken as a result of:

(a) An unexpected serious health condition of an employee or family member of an employee; or

(b) An unexpected illness, injury or condition of a child of the employee that requires home care; or

(c) A premature birth or a placement for adoption or foster care the exact date of which cannot be previously determined with certainty.

(d) The death of a family member.

(22) “Spouse” includes individuals in same sex marriages validly performed in other jurisdictions.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.150–659A.186, 659A.043, 659A.046, HB 2950, 77th Leg., Reg. Session (Or. 2013); OAR 105-010-0018

Hist.: BL 2-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 5-2000, f. & cert. ef. 2-1-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 35-2006, f. 10-3-06, cert. ef. 10-4-06; BLI 44-2007, f. 12-31-07, 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 16-2013, f. & cert. ef. 12-31-13

839-009-0230

Purposes for Taking OFLA Leave

Eligible employees may take OFLA leave for the purposes commonly referred to as parental leave, serious health condition leave, pregnancy disability leave, sick child leave, and the death of a family member.

(1) Parental leave is leave taken to care for the employee’s newborn, newly adopted or newly placed foster child under 18 years of age or for a newly adopted or newly placed foster child 18 years of age or older who is incapable of self care because of a physical or mental impairment. It includes leave time to effectuate the legal process required for placement of a foster child or the adoption of a child.

(2) Serious health condition leave is leave taken:

(a) To provide care for a family member with a serious health condition as defined in 839-009-0210(20); or

(b) To recover from or seek treatment for a serious health condition that renders an employee unable to perform at least one essential function of the employee’s regular position.

(3) Pregnancy disability leave is leave taken by a female employee for a disability related to pregnancy or childbirth, occurring before or after the birth of the child, or for prenatal care. Pregnancy disability leave is a form of serious health condition leave.

(4) Sick child leave is leave taken to care for an employee’s child suffering from an illness or injury that requires home care but is not a serious health condition. An employer is not required to grant leave for routine medical or dental appointments.

(5) Leave to deal with the death of a family member is leave taken to attend the funeral or alternative to a funeral of the family member, to make arrangements necessitated by the death of the family member, or to grieve the death of the family member.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.150 - 659A.186, HB 2950, 77th Leg., Reg. Session (Or. 2013)

Hist.: BL 2-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 5-2000, f. & cert. ef. 2-1-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 16-2013, f. & cert. ef. 12-31-13

839-009-0240

Length of Leave and Other Conditions of OFLA Leave

(1) An eligible employee is entitled to up to a total of 12 weeks of OFLA leave in any one-year period.

(2) In addition to the 12 weeks of leave authorized by ORS 659A.162 (1), a female eligible employee may take a total of 12 weeks of leave within the same leave year for an illness, injury or condition related to pregnancy or childbirth that disables the employee from performing any available job duties offered by the employer. The employee may use all or part of the 12 weeks of leave authorized by 659A.162(1) and all or part of the 12 weeks of pregnancy disability leave in any order. The employee need not exhaust either type of leave in order to use the other.

(3) An eligible employee taking the entire 12 weeks of OFLA leave authorized by ORS 659A.162 (1) for parental leave may take an additional 12 weeks of sick child leave within the same leave year. If the employee uses less than 12 weeks of parental leave, however, no additional sick child leave is available, except that the balance of the 12 weeks of OFLA leave authorized by 659A.162 may be used for sick child leave or for any OFLA leave purpose.

(4) A female eligible employee may take up to 36 weeks of OFLA leave in one leave year that includes up to 12 weeks of pregnancy disability leave, 12 weeks of parental leave, and up to 12 weeks of sick child leave.

(5) An eligible employee may take up to 24 weeks of OFLA leave in one leave year under the following circumstances:

(a) The employee takes 12 weeks of parental leave, followed by:

(b) Up to 12 weeks of sick child leave.

(6) An eligible employee taking leave under HB 2950, 77th Leg., Reg. Session (Or 2013) and OAR 839-009-0230(5) to deal with the death of a family member is entitled to take up to a total of two weeks of OFLA leave for that purpose.

(a) An eligible employee is entitled to take up to two weeks of OFLA leave upon the death of each family member of the employee within any one-year period, except that the leave taken to deal with the deaths of family members may not exceed the total in ORS 659A.159(1) and subsection (1) of this rule.

(b) A covered employer may not require an eligible employee to take multiple leave periods concurrently if more than one family member of the employee dies during the one year period. If multiple family members of an eligible employee die concurrently, an eligible employee may take up to two weeks of leave for the death of each family member.

(c) All leave taken under HB 2950, 77th Leg., Reg. Session (Or 2013) and OAR 839-009-0230(5) shall be counted toward the total period of OFLA leave authorized in ORS 659A.159(1) and subsection (1) of this rule.

(d) All leave taken for the death of a family member must be completed within 60 days of the date on which the eligible employee receives notice of the death of the family member. Notice of the death of a family member may be by any means and from any source.

(7) Two or more eligible employees who are family members of each other as defined in OAR 839-009-0210(7), working for the same covered employer, may take OFLA leave at the same time with that covered employer only under the following circumstances:

(a) One eligible family member needs to care for another eligible family member who is suffering from a serious health condition;

(b) One eligible family member needs to care for a child suffering from a serious or nonserious health condition while another eligible family member is suffering from a serious health condition;

(c) Two or more eligible family members are suffering from one or more serious health conditions;

(d) The employer allows family members to take concurrent leave; or

(e) The eligible family members are taking leave described in HB 2950, 77th Leg., Reg. Session (Or. 2013) and OAR 839-009-0230 (5).

(8) Unless the covered employer approves otherwise, parental leave shall be taken in one uninterrupted period, and shall be completed within 12 months of the birth, adoption or placement of the child. An exception shall be made to allow intermittent parental leave to effectuate adoption or foster placement of the child. Parental leave taken to effectuate adoption or foster placement of a child is part of the total amount of parental leave available to the employee, but need not be taken in one, uninterrupted period with any remaining parental leave taken after the actual placement of the child.

(9) The birth, adoption or foster placement of multiple children at one time entitles the employee to take only one 12-week period of parental leave.

(10) Sick child leave need not be provided to an eligible employee by a covered employer if another family member of the child, including a non-custodial biological parent, is willing and able to care for the child.

(11) A covered employer may not reduce the amount of OFLA leave available to an eligible employee under this section by any period the employee is unable to work because of a disabling compensable injury as defined in ORS 656.005.

(a) If an employee uses OFLA leave for a workplace injury pending acceptance of a workers’ compensation claim, upon acceptance of the claim any OFLA leave used for the workplace injury must be restored to the employee. If the claim is denied, OFLA leave will be deducted from the employee’s entitlement. If the employer uses a rolling forward leave year, a fixed leave year or a calendar leave year, and a worker’s compensation claim is first denied and then accepted, the employer must restore any OFLA leave taken in the leave year in which the worker’s compensation claim is accepted.

(b) An employee must be eligible under OAR 839-009-0210(6) in order to use OFLA leave following a period the employee is unable to work because of a disabling compensable injury as defined in ORS 656.005.

(12) Notwithstanding section (11) of this rule, the employer may reduce the amount of OFLA leave available to an eligible employee under this section by any period the employee is unable to work because of a disabling compensable injury as defined in ORS 656.005 after the employee has refused a suitable offer of light duty or modified employment under 659A.043(3)(a)(D) or 659A.046(3)(d). See 659A.043(4), 659A.046(5), 659A.162, OAR 839-006-0131(2) and 839-006-0136(4).

(13) For the purpose of intermittent leave, OFLA leave entitlement is calculated for an employee by multiplying the number of hours the employee normally works per week by 12. (For example, an employee normally employed to work 30 hours per week is entitled to 12 times 30 hours, or a total of 360 hours OFLA leave.)

(a) If an employee’s schedule varies from week to week, a weekly average of the hours worked over the 12 months worked prior to the beginning of the leave period must be used for calculating the employee’s normal work week. (For example, an employee working an average of 25 hours per week is entitled to 12 times 25 hours, or a total of 300 hours OFLA leave.)

(b) If an employee takes intermittent or reduced work schedule OFLA leave, only the actual number of hours of leave taken may be counted toward the 12 weeks of OFLA leave to which the employee is entitled.

(14) An employee who has previously qualified for and taken some portion of OFLA leave must requalify as an “eligible employee” as defined in OAR 839-009-0210(6) each time the employee begins additional OFLA leave within the same leave year. Exceptions:

(a) An employee who has been granted OFLA leave for a qualifying serious health condition of the employee or family member need not requalify under OAR 839-009-0210(6) each time the employee takes leave for the same individual and the same serious health condition during the same leave year.

(b) A female eligible employee taking, in any order, some or all of 12 weeks of OFLA pregnancy disability leave and some or all of 12 weeks of OFLA leave for any other purpose, need not requalify under OAR 839-009-0210(6) each time she takes OFLA leave within the same leave year.

(c) An employee who has taken 12 weeks of OFLA parental leave, need not requalify under OAR 839-009-0210(6) for up to an additional 12 weeks of leave within the same leave year when used for the purposes of OFLA sick child leave.

(15) An exempt employee is a salaried executive, administrative or professional employee under the federal Fair Labor Standards Act (see 29 CFR ¦ 541 through 541.315) or the state minimum wage and overtime laws (ORS chapters 652 and 653).

(a) When OFLA leave is also covered by FMLA and the employee takes intermittent leave in blocks of less than one day, the employer may reduce the employee’s salary for the part-day absence without the loss of the employee’s exempt status in accordance with OAR 839-020-0004(30)(a).

(b) When OFLA leave is not covered by FMLA (e.g., the employer has 25 to 49 employees, the leave is taken for a sick child, for the serious health condition of a parent-in-law, for the serious health condition of a registered domestic partner or for the serious health condition of a registered domestic partner’s parents), and the employee takes intermittent leave in blocks of less than one day, an employer will jeopardize the employee’s exempt status if the employer reduces the employee’s salary for the part-day absence.

(16) The requirements of OFLA do not apply to any employer offering eligible employees a nondiscriminatory cafeteria plan, as defined by section 125 of the Internal Revenue Code of 1986, that provides as one of its options employee leave at least as generous as the leave required by OFLA.

(17) ORS 659A.150 to 659A.186 and these rules do not limit any right of an employee to any leave that is similar to the leave described in 695A.159(1) and OAR 839-009-0230 and to which the employee may be entitled under any agreement between the employer and the employee, collective bargaining agreement or employer policy.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.150 - 659A.186, 659A.043, 659A.046, HB 2950, 77th Leg., Reg. Session (Or. 2013)

Hist.: BL 2-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 5-2000, f. & cert. ef. 2-1-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 3-2005, f. 1-6-05, cert. ef. 1-7-05; BLI 44-2007, f. 12-31-07, cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 16-2013, f. & cert. ef. 12-31-13

839-009-0250

OFLA Leave: Notice by Employee; Designation by Employer; Notice by Employer Regarding Eligibility or Qualification

(1) Except in situations described in sections (2) and (3) of this rule, a covered employer may require an eligible employee to give 30 days written notice of the need for foreseeable leave, including an explanation of the need for leave, before starting OFLA leave. The employee is not required to specify that the request is for OFLA leave.

(a) An employee able to give advance notice of the need to take OFLA leave must follow the employer’s known, reasonable and customary procedures for requesting any kind of leave, absent unusual circumstances.

(b) An employer may request additional information to determine that a requested leave qualifies for designation as OFLA leave, except in cases of parental leave.

(c) The employer may provisionally designate an absence as OFLA leave until sufficient information is received to make a determination. An employee who calls in sick without providing further information will not be considered to have provided sufficient notice to trigger an employer’s obligations under OFLA.

(d) An employee on OFLA leave who needs to take more leave than originally authorized must give the employer reasonable notice prior to the end of the authorized leave, following the employer’s known, reasonable and customary procedures for requesting any kind of leave. However, when an authorized period of OFLA leave has ended and an employee does not return to work, an employer having reason to believe the continuing absence may qualify as OFLA leave must request additional information, and may not treat a continuing absence as unauthorized unless requested information is not provided or does not support OFLA qualification.

(2) When an employee is unable to give the employer 30 days notice but has some advance notice of the need for leave, the employee must give the employer as much advance notice as is practicable.

(3) When taking OFLA leave in an unforeseeable situation, an employee must give verbal or written notice within 24 hours before or after commencement of the leave. This notice may be given by any other person on behalf of an employee taking unforeseeable OFLA leave. The employer may require written notice by the employee within three days of the employee’s return to work.

(4) If an employee fails to give notice as required by sections (1), (2), and (3) of this rule or the employer’s policies:

(a) The employer may reduce the total period of unused OFLA leave by an amount no greater than the number of days of leave the employee has taken without providing timely notice of leave. This reduction of leave may not exceed three weeks in a one-year leave period (see ORS 659A.165(4); and

(b) The employee may also be subject to disciplinary action under an employer’s uniformly applied policy or practice. This practice must be consistent with the employer’s discipline for similar violations of comparable rules.

(c) A reduction of OFLA leave under this rule may not limit leave under HB 2950, 77th Leg., Reg. Session (Or. 2013) and OAR 839-009-0230(5) for the death of a family member.

(5) Except in the case of sick child leave and leave for the death of a family member, when an employee requests OFLA leave, or when the employer acquires knowledge that an employee’s leave may be for an OFLA-qualifying reason, the employer must provide the employee within five business days a written request for information to verify whether the leave is OFLA-qualifying. Within five business days of receiving the requested information, the employer must notify the employee whether or not the employee is eligible and qualifies to take OFLA leave absent extenuating circumstances. All OFLA absences for the same qualifying reason are considered a single leave event and employee qualification as to that reason for leave does not change during the applicable 12-month period unless the reason is no longer qualifying. If an employer determines that an employee does not qualify for OFLA leave for the reason requested, the employer must notify the employee in writing that the employee does not qualify.

(a) The written notice that the employee does not qualify must state that the employee is ineligible or the reason for requested leave does not qualify for OFLA leave and at least one reason why the employee is not eligible or the reason does not qualify for leave.

(b) If an employer determines that an employee does not qualify for OFLA leave for the reason requested because a medical verification is incomplete or insufficient, the written notice that the employee does not qualify must state what additional information is required to make the verification complete or sufficient, and the employee must be afforded a reasonable period of time to correct the deficiency.

(6) An employer may not request medical verification of the need for sick child leave until after an employee’s third occurrence of sick child leave in the same OFLA leave year.

(7) When an employee fails to respond to reasonable employer requests for medical verification of the employee’s requested reason for leave to determine whether the leave is OFLA qualifying, the employer may deny use of OFLA leave until medical verification is received.

(8) An employer may not request medical verification of the need for OFLA leave under HB 2950, 77th Leg., Reg. Session (Or. 2013) and OAR 839-009-0230(5) for the death of a family member.

(9) An employer may not reduce an employee’s available OFLA leave or take disciplinary action unless the employer has posted the required Bureau of Labor and Industries Family Leave Act notice or the employer can otherwise establish that the employee had actual knowledge of the notice requirement.

(10) Federal regulations prohibit reducing the leave period under FMLA, but allow an employer to delay the start of leave because of improper notice (see 29 CFR Section 825.304).

(11) When an employee is subject to both FMLA and OFLA, the employer must apply the discipline available under (4)(a), (b) or (6) of this rule that is most beneficial to the employee’s individual circumstances.

(12) An employee who refuses an offer of employment under ORS 659A.043(3)(a)(D) or 659A.046(3)(d) and who otherwise is entitled to OFLA leave under 659A.150 to 659A.186:

(a) Automatically commences a period of OFLA leave upon refusing the offer of employment; and

(b) Need not give notice to the employer that would otherwise be required by this rule that the employee is commencing a period of leave. See ORS 659A.162, OAR 839-006-0131(2) and 839-006-0136(4).

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.150–659A.186, 659A.043, 659A.046, H.B. 2950, 77th Leg., Reg. Session (Or. 2013)

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.150–659A.186, 659A.043, 659A.046

Hist.: BL 2-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 5-2000, f. & cert. ef. 2-1-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 1-2007, f. 1-16-07, cert. ef. 1-17-07; BLI 44-2007, f. 12-31-07, 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 16-2013, f. & cert. ef. 12-31-13

839-009-0270

Job Protection

(1) An employer must restore an employee returning from OFLA leave, including intermittent and alternative duty leave, to the employee’s former position if the job still exists, even if it has been filled during the employee’s OFLA leave. The former position is the position held by the employee at the time OFLA leave began, regardless of whether the job has been renamed or reclassified. (For example, a delivery driver must be returned to the same route, at the same rate of pay and benefits, driving the same truck, delivering the same goods, on the same shift and working from the same location as when the driver started OFLA leave.)

(2) Any worker hired during an eligible employee’s leave to perform the same work that the eligible employee performed before the leave was taken is a replacement worker. When the eligible employee notifies the employer that the employee is ready to return to work, the employer must give that employee the opportunity to work any hours that the replacement worker would otherwise have been scheduled to work.

(3) The employee is not entitled to return to the former position if the employee would have been bumped if OFLA leave had not been taken.

(4) If the position held by the employee at the time OFLA leave began has in fact been eliminated and not merely renamed or reclassified, the employer must restore the employee to any available, equivalent position.

(a) An available position is a position that is vacant or not permanently filled.

(b) An equivalent position is a position that is the same as the former position in as many aspects as possible. If an equivalent position is not available at the employee’s former job site, the employee may be restored to an equivalent position within 20 miles of the former job site.

(5) Unless the terms of a collective bargaining agreement, other agreement or the employer’s policy provide otherwise:

(a) An employee on OFLA leave does not accrue seniority, production bonuses or other benefits that would accrue while the employee is working;

(b) An employee has no greater right to a job or other employment benefits than if the employee had not taken OFLA leave; and

(c) An employee is subject to layoff the same as similarly situated employees not taking OFLA leave.

(6) Except for benefits used while on OFLA leave, benefits an employee was entitled to prior to starting OFLA leave must be restored in full upon the employee’s return to work. (For example, an employer’s medical insurance requires a three-month waiting period for health insurance coverage. An employee works seven months, takes OFLA leave for 12 weeks and returns to work with health problems. The employee must be covered immediately at the same level of coverage, with the same benefits as before the commencement of the OFLA leave.) The benefits do not have to be restored, however, if such benefits have been eliminated or changed for similarly situated employees. This applies to all benefit provisions.

(a) An employer electing to continue health or other insurance coverage for an employee on OFLA leave may require that the employee pay only the same share of health or other insurance premium during the leave that the employee paid prior to the leave.

(b) If an employee cannot or will not pay such costs, the employer may elect to discontinue benefit coverage, unless to do so would render the employer unable to restore the employee to full benefit coverage as required in section (6) of this rule.

(c) If an employer pays any portion of any employee’s benefit coverage for employees on non-OFLA leave, the employer electing to continue benefits during OFLA leave must pay that portion during OFLA leave.

(d) If the employer pays (directly or indirectly, voluntarily or as required by state or federal statute) any part of the employee’s share of health or other insurance premium while an employee is on OFLA leave, the employer may deduct up to 10 percent of the employee’s gross pay each pay period after the employee returns to work until the amount is repaid.

(e) If an employee fails to return to work — unless the failure to return to work is because of a serious health condition for which the employee would be entitled to OFLA leave or another circumstance beyond the employee’s control — the employer may recover the employee’s share of benefits paid by the employer. The employer may use any legal means to collect the amount owed for the employee’s share of benefits paid by the employer, including deducting the amount from the employee’s final paycheck.

(7) An employer may require an employee to follow the employer’s established leave policy regarding periodic reporting to the employer of the employee’s current status. Before restoring the employee to work after taking OFLA leave for the employee’s own serious health condition, the employer may require the employee to present verification from the employee’s health care provider that the employee is able to resume work, provided such requirement is applied pursuant to a uniformly applied practice or policy of the employer.

(a) Pursuant to ORS 659A.168(1), the employer is responsible for any co-pay or other out-of-pocket costs incurred by the employee in providing the verification.

(b) The employer may not require the employee to obtain a second opinion.

(8)(a) If an employee gives unequivocal notice of intent not to return to work from OFLA leave:

(b) The employee is entitled to complete the approved OFLA leave, providing that the original need for OFLA leave still exists. The employee remains entitled to all the rights and protections under OFLA, including but not limited to, the use of vacation, sick leave and health benefits pursuant to OAR 839-009-0270 and 839-009-0280, except that:

(A) The employer’s obligations under OFLA to restore the employee’s position and to restore benefits upon the completion of leave cease, except as required by federal COBRA law, 29 USC 1161 et seq.; and

(B) The employer is not required to hold a position vacant or available for the employee who gives unequivocal notice of intent not to return.

(9) An employer may not use the provisions of this section as a subterfuge to avoid the employer’s responsibilities under OFLA.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.150 - 659A.186

Hist.: BL 2-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 5-2000, f. & cert. ef. 2-1-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 16-2013, f. & cert. ef. 12-31-13

839-009-0280

Use of Paid Leave: OFLA

(1) Except as provided in this rule or the terms of a collective bargaining agreement, an agreement between the eligible employee and the covered employer, or an employer policy, OFLA leave is not required to be granted with pay.

(2) An employee eligible to take OFLA leave is entitled to use accrued paid sick leave, personal leave, vacation leave or any other paid leave that is offered in lieu of vacation leave, during the period of OFLA leave. As used in this rule, accrued paid sick leave does not include disability insurance or disability benefits.

(3) An employer may require an employee to use accrued paid leave during OFLA leave that would otherwise be unpaid, and may determine the order in which paid leave is to be used if to do so is consistent with a collective bargaining agreement or other written agreement between the eligible employee and the covered employer or an employer policy. The employer may exercise these prerogatives only if:

(a) Prior to the commencement of OFLA leave, the employer provides written notice to the employee that accrued paid leave is to be used during OFLA leave; or

(b) Within five business days of the employee’s notice of unforeseeable leave, the employer provides written notice to the employee.

(4) An eligible employee or covered employer may choose to have the employee’s OFLA leave run concurrently with a type of paid or unpaid leave not referenced in these rules, as provided or allowed under an employer policy, except that a covered employer may not reduce the amount of OFLA leave available to an eligible employee by any period the employee is unable to work because of a disabling compensable injury which entitles the employee to compensation from the covered employer. See 659A.162(6) and ORS 656.005.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.150 – 659A.186

Hist.: BL 2-1995, f. 9-8-95, cert. ef. 9-9-95; BLI 5-2000, f. & cert. ef. 2-1-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 47-2006, f. 12-29-06, cert. ef. 1-3-07; BLI 44-2007, f. 12-31-07, 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 16-2013, f. & cert. ef. 12-31-13

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 certain employers to grant leave for victims of domestic violence, harassment, sexual assault or stalking. These rules implement and interpret 659A.270 to 659A285.

(2) The division enforces ORS 659A.290, requiring all employers to provide reasonable safety accommodation (including use of available paid leave from employment) for, and prohibiting discrimination or retaliation against, victims of domestic violence, harassment, sexual assault or stalking. The rules implementing and interpreting 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 have authority to enforce ORS 659A.190 to 659A.198.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.270 - 659A.285

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; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 16-2013, f. & cert. ef. 12-31-13

839-009-0330

Prohibited Discrimination under ORS 659A.270-.290; Employer Notice Obligations

(1) It is an unlawful employment practice for an employer covered under ORS 659A.270 to 659A.285 to deny leave 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 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking.

(2) It is an unlawful employment practice under ORS 659A.290 for any employer to discriminate against an individual because an individual is a victim of domestic violence, harassment, sexual assault or stalking. See OAR 839-005-0160 and 839-005-0170.

(3) Every employer covered under ORS 659A.270 to 659A.285 shall keep summaries of 659A.270 to 695A.285 and summaries of all rules promulgated for the enforcement of these statutes posted in a conspicuous and accessible place in or about the premises where the employees of the covered employer are employed. Employers may download any number of summaries from the website of the Bureau of Labor and Industries at no charge, or upon request of a printed copy from the bureau, the first copy shall be furnished without charge.

(4) Upon request, the bureau shall furnish the complete text of all rules promulgated pursuant to ORS 659A.270 to 659A.285 to any employer without charge.

(5) A public employer, defined by HB 3263, 77th Leg., Reg. Session (Or. 2013) as the State of Oregon, shall annually inform all employees of the provisions of 659A.290, regarding reasonable safety accommodations.

(6) If a public employer defined by HB 3263, 77th Leg., Reg. Session (Or. 2013) as the State of Oregon, has knowledge, or reasonably should have knowledge, that an employee is a victim of domestic violence, harassment, or stalking and that any direct or indirect communication related to this victimization is made or attempted to be made in the workplace to the eligible employee, the public employer shall immediately inform the employee and offer to report the communication to law enforcement.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.270 - 659A.285, HB 3263, 77th Leg., Reg. Session (Or. 2013)

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; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 16-2013, f. & cert. ef. 12-31-13

839-009-0340

Definitions: Leave under ORS 659A.270-.285

(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 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 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 begins under ORS 659A.270 to 659A.285 for victims of domestic violence, harassment, sexual assault or stalking and 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” includes 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) “Public employer” for purposes of HB 3263, 77th Leg., Reg. Session (Or.2013) and these rules means the State of Oregon.

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

(15) “Spouse” includes individuals in same sex marriages validly performed in other jurisdictions.

(16) “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.

(17) “Victim of harassment” means:

(a) An individual against whom harassment has been committed as described in Oregon’s criminal code at ORS 166.065; or

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

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

(18) “Victim 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.

(19) “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.

(20) “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.

(d) 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, HB 3263 77th Leg., Reg. Session (Or. 2013) & OAR 105-010-0018

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; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 16-2013, f. & cert. ef. 12-31-13

839-009-0345

Purposes for Taking Leave under ORS 659A.270-.285

A covered employer shall 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

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; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 16-2013, f. & cert. ef. 12-31-13

839-009-0362

Notice by Employee: Leave under ORS 659A.270-.285

(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

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; BLI 3-2012, f. & cert. ef. 2-8-12; BLI 16-2013, f. & cert. ef. 12-31-13

839-009-0363

Use of Paid Leave: ORS 659A.270-659A.285

(1) Leave is unpaid leave unless otherwise provided by:

(a) A collective bargaining agreement;

(b) The terms of an agreement between the eligible employee and the covered employer; or

(c) A covered employer’s policy.

(2) An eligible employee taking leave pursuant to an agreement between the eligible employee and the covered employer, a collective bargaining agreement or a covered employer policy may use any paid accrued vacation leave or may use any other paid leave that is offered by the covered employer in lieu of vacation leave during the period of leave.

(3) Subject to the terms of any agreement between the eligible employee and the covered employer or the terms of a collective bargaining agreement or a covered employer policy, the covered employer may determine the order in which paid accrued leave is to be used when more than one type of paid accrued leave is available to the employee.

(4) An eligible employee of a public employer shall be granted leave with pay for the purposes in ORS 659A.272 and OAR 839-009-0345.

(a) “Public employer” for purposes of H.B.3263, 77th Leg., Reg. Session (Or.2013) and this rule means the State of Oregon.

(b) Leave with pay taken under this subsection is in addition to any vacation, sick, personal business, or other forms of paid or unpaid leave available to the eligible employee.

(c) The eligible employee must exhaust all other forms of paid leave before the employee may use the paid leave under this section.

(d) An eligible employee may take up to 160 hours of leave with pay authorized by HB 3263, 77th Leg., Reg. Session (Or. 2013) in each calendar year.

(e) A covered employer shall allow an eligible employee who has exhausted the 160 hours of leave with pay authorized by HB 3263, 77th Leg., Reg. Session to take reasonable additional unpaid leave for the purposes in ORS 659A.272 and OAR 839-009-0345.

Stat. Auth.: ORS 659A.805

Stats. Implemented: ORS 659A.270 - 659A.285, H.B. 3263, 77th Leg., Reg. Session (Or. 2013)

Hist.: BLI 32-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 16-2013, f. & cert. ef. 12-31-13

839-009-0380

Definitions: OMFLA

(1) “Active duty or call to active duty status” means duty under a call or order to active duty, or notification of an impending call or order to active duty, during a contingency operation, pursuant to Title 10 of the United States Code. “Contingency operation” means a military operation that:

(A) Is designated by the Secretary of Defense as an operation in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force; or

(B) Results in the call or order to, or retention on, active duty of members of the uniformed services under section 688, 12301(a), 12302, 12304, 12305, or 12406 of Title 10 of the United States Code, chapter 15 of Title 10 of the United States Code, or any other provision of law during a war or during a national emergency declared by the President or Congress. (See 10 U.S.C. 101(a)(13))

(2) “Covered employer” means:

(a) The state, and a department, agency, board or commission of the state; and

(b) A local government, including but not limited to a county, city, town, municipal corporation, independent public corporation or political subdivision of the state.

(c) A person, firm, corporation, partnership, legal representative, or other business entity that engages in any business, industry, profession, or activity in the state of Oregon and that employs 25 or more individuals in the state of Oregon for each working day during each of 20 or more calendar workweeks in the year in which an eligible employee takes OMFLA leave or in the year immediately preceding the year in which an eligible employee takes OMFLA leave;

(3) “Domestic partner” means an individual joined in a domestic partnership.

(4) “Domestic partnership” for the purposes of ORS chapter 659A means two individuals of the same sex who have received a Certificate of Registered Domestic Partnership from the State of Oregon in compliance with ORS 432.405(1) and rules adopted by the State Registrar of the Center for Health Statistics.

(5) “Eligible employee” means an individual who performs services for compensation for an employer for an average of at least 20 hours per week and includes all individuals employed at any site owned or operated in Oregon by an employer, but does not include independent contractors.

(a) In determining an average of at least 20 hours per week, the employer must count actual hours worked using guidelines set out pursuant to the Fair Labor Standards Act. (See 29 CFR ¦ 785)

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

(c) Eligibility of employees reemployed following a period of uniformed service: 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 OMFLA leave 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 OMFLA leave 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 OMFLA.

(d) 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 OMFLA prior to the date uniformed service began, OMFLA’s eligibility requirements are considered met.

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

(7) “Period of Military Conflict” means a period of war:

(a) Declared by the United States Congress;

(b) Declared by executive order of the President of the United States; or

(c) In which a reserve component of the Armed Forces of the United States is ordered to active duty pursuant to Title 32 of the United States Code or section 12301 or 12302 of Title 10 of the United States Code.

(8) “Spouse” includes individuals in same sex marriages validly performed in other jurisdictions.

Stat. Auth.: ORS 659A.093(6)

Stats. Implemented: ORS 659A.090 - 659A.099 & OAR 105-010-0018

Hist.: BLI 10-2010, f. & cert. ef. 2-24-10; BLI 16-2013, f. & cert. ef. 12-31-13

839-009-0390

Length of Leave: OMFLA

(1) During a period of military conflict, an employee who is a spouse or domestic partner of a member of the Armed Forces of the United States, the National Guard or the military reserve forces of the United States who has been notified of an impending call or order to active duty or who has been deployed, is entitled to a total of 14 days of unpaid leave per deployment that may be taken:

(a) After the military spouse or domestic partner has been notified of an impending call or order to active duty and before deployment; and/or

(b) When the military spouse or domestic partner is on leave from deployment.

(2) The 14 day entitlement is per deployment. If multiple deployments occur in an employee’s leave year, the employee is entitled to use 14 days of Oregon Military Family Leave Act (“OMFLA”) leave for each deployment.

(3) The 14 days of unpaid leave to which the employee is entitled are individual days on which the employee, if working their normal schedule, would otherwise perform services for compensation for the employer. (Example: Employee normally works Monday through Friday. Employee is entitled to 14 days of leave, which if taken consecutively would be Monday through Friday on two consecutive weeks plus Monday through Thursday of the third week.)

(4) OMFLA leave need not be taken in one, uninterrupted period, but may be taken intermittently.

(a) For the purpose of intermittent leave, OMFLA leave is calculated for an employee by multiplying the number of hours the employee normally works per day by 14. (For example, an employee normally employed to work eight hours per day is entitled to 14 times eight hours, or a total of 112 hours of OMFLA leave.)

(b) If an employee’s schedule varies from day to day, a daily average of the employee’s hours must be used for calculating the employee’s normal work day. For example, an employee working an average of six hours per day is entitled to 14 times six hours, or a total of 84 hours of OMFLA leave. An employee working an average of 10 hours per day is entitled to 14 times 10 hours, or 140 hours.

(c) If an employee takes intermittent OMFLA leave, only the actual number of hours of leave taken may be counted toward the hours of OMFLA leave to which the employee is entitled.

Stat. Auth.: ORS 659A.093(6)

Stats. Implemented: ORS 659A.090 - 659A.099

Hist.: BLI 10-2010, f. & cert. ef. 2-24-10; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 12-2012, f. & cert. ef. 11-21-12; BLI 16-2013, f. & cert. ef. 12-31-13

839-009-0430

Notice by Employee: OMFLA

(1) An eligible employee seeking Oregon Military Family Leave must provide the employer with notice of the intention to take leave within five business days of receiving official notice of an impending call or order to active duty or of a leave from deployment, or as soon as is practicable when official notice is provided fewer than five days before commencement of the leave.

(2) The active duty orders of a covered military member will generally specify if the service member is serving in support of a period of military conflict by citation to the relevant section of Title 10 of the United States Code and/or by reference to the specific name of the military conflict (see OAR 839-009-0380(7)).

(3) An eligible employee’s notice of intention to take OMFLA leave must follow the covered employer’s known, customary, and uniformly applied procedures for requesting any kind of leave. A covered employer may provide an OMFLA leave request form. An example is found at Appendix A of this rule.

(a) The covered employer may require in writing that the eligible employee provide a photocopy of the service member’s orders to verify that the leave is for the purpose defined in OAR 839-009-0380(7).

(b) The eligible employee will provide any required photocopy of the service member’s orders within a reasonable time after receiving the covered employer’s written request.

(c) The covered employer may provisionally designate an absence as OMFLA leave until any requested photocopy of the service member’s orders is received.

[ED. NOTE: Appendices referenced are available from the agency.]

Stat. Auth.: ORS 659A.093(6)

Stats. Implemented: ORS 659A.090 – 659A.099

Hist.: BLI 10-2010, f. & cert. ef. 2-24-10; BLI 16-2013, f. & cert. ef. 12-31-13

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2013.

2.) Copyright Oregon Secretary of State: Terms and Conditions of Use

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