Oregon Bulletin
April 1, 2011
Rule
Caption: Revises prevailing rate of pay to
use median wage instead of average.
Adm.
Order No.: ED 2-2011(Temp)
Filed with Sec. of
State: 2-18-2011
Certified to be
Effective: 3-1-11 thru 8-28-11
Notice Publication
Date:
Rules Amended: 471-030-0037, 471-030-0038
Subject: The proposed change replaces the term ‘average’ with
‘median’ as it relates to the rate of pay for an individual. Using average
takes into account all wages paid to an individual for a particular industry.
This can be skewed by a few individuals who make substantially more than the
majority of workers. Using the median wage takes out the impact of a few high
wage earners and provides a more accurate representation of the wage an
individual would be expected to receive for a particular occupation.
Rules Coordinator: Courtney Brooks—(503) 947-1724
471-030-0037
Prevailing Rate of Pay
(1) For the purposes of ORS 657.176(2)(d), and for the
purposes of ORS 657.195(1)(b), work is not suitable if the rate of pay is
substantially less favorable than the rate prevailing in the locality. A rate
of pay is substantially less favorable than the rate prevailing in the locality
when the rate of pay is at least ten percent lower than the median rate of pay
for similar work in the locality. The median rate of pay prevailing in the
locality shall be determined by employees of the Employment Department
adjudicating office using available research data compiled by the department.
(2) In applying the provisions of ORS 657.176(2)(e),
and for the purposes of ORS 657.195(1)(b), if inadequate rate of pay was one of
the reasons for refusing to accept new work, the work is not suitable if the
rate of pay is substantially less favorable than the rate of pay prevailing in
the locality. A rate of pay is substantially less favorable than the rate
prevailing in the locality when the rate of pay is at least ten percent lower
than the median rate of pay for similar work in the locality. The median rate
of pay prevailing in the locality shall be determined by employees of the
Employment Department adjudicating office using available research data
compiled by the department.
Stat. Auth.: ORS 657.610
Stats. Implemented: ORS
657.176(2)(d), 657.176(2)(e) & 657.195(1)(b)
Hist.: 1DE 151, f. 9-28-77, ef.
10-4-77; ED 2-1991, f. & cert. ef. 10-14-91; ED 2-1992, f. & cert. ef.
6-29-92; ED 4-2004, f. 7-30-04, cert. ef. 8-1-04; ED 2-2011(Temp), f. 2-18-11,
cert. ef. 3-1-11 thru 8-28-11
471-030-0038
Work Separations, Job Referrals
and Job Refusals
(1)(a) As used in ORS 657.176(2)(a), (b) and (c) and
sections (1) through (5) of this rule the term “work” means the continuing
relationship between an employer and an employee. An employment relationship
exists even in circumstances where the work performed is not subject employment
as set forth in ORS Chapter 657. This section does not apply where no
employment relationship exists because the worker is an independent contractor
or operating an independently established business. With the exception of the
provisions of ORS 657.221(2)(a), the date an individual is separated from work
is the date the employer-employee relationship is severed. In the case of
individuals working for temporary agencies or employee leasing companies, the
employment relationship shall be deemed severed at the time that a work
assignment ends.
(b) In the case of absence due to labor dispute, the
employee is separated from work on the date there is a complete dissociation
from all participation in the labor dispute and no re-employment rights are
claimed.
(c) As used in this rule, “wantonly negligent” means
indifference to the consequences of an act or series of actions, or a failure
to act or a series of failures to act, where the individual acting or failing
to act is conscious of his or her conduct and knew or should have know that his
or her conduct would probably result in a violation of the standards of
behavior which an employer has the right to expect of an employee.
(d) As used in this rule, the following standards apply
to determine whether an “isolated instance of poor judgment” occurred:
(A) The act must be isolated. The exercise of poor
judgment must be a single or infrequent occurrence rather than a repeated act
or pattern of other willful or wantonly negligent behavior.
(B) The act must involve judgment. A judgment is an
evaluation resulting from discernment and comparison. Every conscious decision
to take an action (to act or not to act) in the context of an employment
relationship is a judgment for purposes of OAR 471-030-0038(3).
(C) The act must involve poor judgment. A decision to
willfully violate an employer’s reasonable standard of behavior is poor
judgment. A conscious decision to take action that results in a wantonly
negligent violation of an employer’s reasonable standard of behavior is poor
judgment. A conscious decision not to comply with an unreasonable employer
policy is not misconduct.
(D) Acts that violate the law, acts that are tantamount
to unlawful conduct, acts that create irreparable breaches of trust in the
employment relationship or otherwise make a continued employment relationship
impossible exceed mere poor judgment and do not fall within the exculpatory
provisions of OAR 471-030-0038(3).
(e) For purposes of this rule, “compelling family
reasons” means:
(A) Domestic violence, as defined in OAR 471-30-0150,
which causes the individual reasonably to believe that the individual’s
continued employment would jeopardize the safety of the individual or a member
of the individual’s immediate family; or
(B) The illness or disability of a member of the
individual’s immediate family necessitates care by another and the individual’s
employer does not accommodate the employee’s request for time off; or
(C) The need to accompany the individual’s spouse or
domestic partner;
(i) To a place from which it is impractical for such
individual to commute; and
(ii) Due to a change in location of the spouse’s or
domestic partner’s employment.
(f) As used in OAR 471-030-0150 and this rule, “a
member of the individual’s immediate family” includes spouses, domestic
partners, parents, and minor children under the age of 18, including a foster
child, stepchild or adopted child.
(2) The distinction between voluntary leaving and
discharge is:
(a) If the employee could have continued to work for
the same employer for an additional period of time the separation is a
voluntary leaving of work;
(b) If the employee is willing to continue to work for
the same employer for an additional period of time but is not allowed to do so
by the employer the separation is a discharge.
(3)(a) As used in ORS 657.176(2)(a) and (b) a willful
or wantonly negligent violation of the standards of behavior which an employer
has the right to expect of an employee is misconduct. An act or series of
actions that amount to a willful or wantonly negligent disregard of an
employer’s interest is misconduct.
(b) Isolated instances of poor judgment, good faith
errors, unavoidable accidents, absences due to illness or other physical or
mental disabilities, or mere inefficiency resulting from lack of job skills or
experience are not misconduct.
(c) The willful or wantonly negligent failure to
maintain a license, certification or other similar authority necessary to the
performance of the occupation involved is misconduct, so long as such failure
is reasonably attributable to the individual.
(d) Discharge for “compelling family reasons,” when the
individual has made the attempt to maintain the employer-employee relationship,
is not misconduct.
(4) Good cause for voluntarily leaving work under ORS
657.176(2)(c) is such that a reasonable and prudent person of normal
sensitivity, exercising ordinary common sense, would leave work. For an
individual with a permanent or long-term “physical or mental impairment” (as
defined at 29 CFR ¦1630.2(h)) good cause for voluntarily leaving work is
such that a reasonable and prudent person with the characteristics and
qualities of such individual, would leave work. Except as provided in OAR
471-030-0038(5)(g), for all individuals, the reason must be of such gravity
that the individual has no reasonable alternative but to leave work.
(5) In applying section (4) of this rule:
(a) If an individual leaves work to accept an offer of
other work good cause exists only if the offer is definite and the work is to
begin in the shortest length of time as can be deemed reasonable under the
individual circumstances. Furthermore, the offered work must reasonably be
expected to continue, and must pay:
(A) An amount equal to or in excess of the weekly
benefit amount; or
(B) An amount greater than the work left.
(b) Leaving work without good cause includes, but is
not limited to:
(A) Leaving suitable work to seek other work;
(B) Leaving work rather than paying union membership
dues;
(C) Refusing to join a bona fide labor organization
when membership therein was a condition of employment;
(D) Leaving to attend school, unless required by law;
(E) Willful or wantonly negligent failure to maintain a
license, certification or other similar authority necessary to the performance
of the occupation involved, so long as such failure is reasonably attributable
to the individual;
(F) Resignation to avoid what would otherwise be a
discharge for misconduct or potential discharge for misconduct;
(G) Leaving work for self employment.
(c) Good cause for voluntarily leaving work while on
layoff status shall be determined solely under the provisions of section (4) of
this rule without regard to the provisions of subsections (a) and (b) of this
section;
(d) Reduction in rate of pay: If an individual leaves
work due to a reduction in the rate of pay, the individual has left work
without good cause unless the newly reduced rate of pay is ten percent or more
below the median rate of pay for similar work in the individual’s normal labor
market area. The median rate of pay in the individual’s labor market shall be
determined by employees of the Employment Department adjudicating office using
available research data compiled by the department.
(A) This section applies only when the employer reduces
the rate of pay for the position the individual holds. It does not apply when
an employee’s earnings are reduced as a result of transfer, demotion or
reassignment.
(B) An employer does not reduce the rate of pay for an
employee by changing or eliminating guaranteed minimum earnings, by reducing
the percentage paid on commission, or by altering the calculation method of the
commission.
(C) An employer does not reduce the rate of pay by loss
or reduction of fringe benefits.
(D) If the Employment Department cannot determine the
median rate of pay, the provisions of OAR 471-030-0038(4) apply.
(e) Reduction in hours: If an individual leaves work
due to a reduction in hours, the individual has left work without good cause
unless continuing to work substantially interferes with return to full time
work or unless the cost of working exceeds the amount of remuneration received;
(f) Where the gravity of the situation experienced by
the individual results from his or her own deliberate actions, to determine
whether good cause exists, the actions of the individual in creating the grave
situation must be examined in accordance with the provisions of section (4) of
this rule.
(g) Leaving work with good cause includes, but is not
limited to, leaving work due to compelling family reasons.
(6) As used in ORS 657.176(2)(d) and (e), the term
“work” means the performance of services for which remuneration, compensation
or wages is intended to be received or earned. Good cause as used in ORS
657.176(2)(d) and (e) is such that a reasonable and prudent person, exercising
ordinary common sense, would refuse to apply for available suitable work when
referred by the employment office or accept suitable work when offered by the
employer. For an individual with a permanent or long-term “physical or mental
impairment” (as defined at 29 CFR ¦1630.2(h)) good cause is such that a
reasonable and prudent person with the characteristics and qualities of such
individual, would refuse to apply for available suitable work when referred by
the employment office or accept suitable work when offered by the employer. In
determining disqualification under this section, consideration shall be given
to suitable work factors and exceptions as set forth in ORS 657.190 and
657.195.
[Publications: Publications
referenced are available from the agency.]
Stat. Auth.: ORS 657.176, 657.260,
657.265 & 657.610
Stats. Implemented: ORS 657.176
Hist.: 1DE 1-1979(Temp), f. &
ef. 4-30-79; 1DE 5-1979, f. & ef. 8-27-79; 1DE 1-1984, f. & ef.
3-21-84; 1DE 2-1986, f. & ef. 4-14-86; ED 5-1992, f. & cert. ef.
12-14-92; ED 2-1993(Temp), f. & cert. ef. 8-12-93; ED 4-1993, f. &
cert. ef. 11-22-93; ED 6-1999, f. 9-23-99, cert. ef. 9-26-99; ED 7-2001(Temp),
f. 5-17-01, cert. ef. 5-20-01 thru 11-11-01; ED 13-2001, f. 11-2-01, cert. ef.
11-4-01; ED 8-2004, f. 12-17-04, cert. ef. 12-19-04; ED 1-2009(Temp), f.
6-25-09, cert. ef. 6-29-09 thru 12-26-09; ED 6-2009, f. 10-30-09, cert. ef.
11-1-09; ED 2-2011(Temp), f. 2-18-11, cert. ef. 3-1-11 thru 8-28-11
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, 2010.
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