Oregon Bulletin
Rule Caption: Revises prevailing rate of pay to use median instead of average wage.
Adm. Order No.: ED 6-2011
Filed with Sec. of State: 8-3-2011
Certified to be Effective: 8-3-11
Notice Publication Date: 6-1-2011
Rules Amended: 471-030-0037, 471-030-0038
Rules Repealed: 471-030-0037(T), 471-030-0038(T)
Subject: The proposed change replaces “average” with “median”
for the rate of pay of an individual, as used in determining suitable work.
using the average rate of pay takes into account wages paid over all individuals
for a particular occupation. This can result in an average not being
representative for wages in a field, as it can be skewed by a few highly paid
workers. The median wage provides a better estimate of the prevailing rate of
pay 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 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; ED 6-2011, f. &
cert. ef. 8-3-11
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
Sec. 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; ED 6-2011, f. & cert. ef. 8-3-11
Rule Caption: Employer notification requirements in amended monetary determinations.
Adm. Order No.: ED 7-2011
Filed with Sec. of State: 8-3-2011
Certified to be Effective: 8-3-11
Notice Publication Date: 7-1-2011
Rules Amended: 471-030-0048
Rules Repealed: 471-030-0048(T)
Subject: Adds additional consideration for employer
notification during amended monetary determination.
Rules Coordinator: Courtney Brooks—(503) 947-1724
471-030-0048
Amended
Monetary Determinations
(1) An
individual who receives a monetary claim determination under ORS 657.266(2) may
request that the determination be amended. The Director upon receipt of such a
request will examine wage records submitted to the Department by employers in
an attempt to locate wages and/or hours of work alleged by the claimant to be
missing. If the discrepancy involves only hours of work and the claimant has
provided documentary evidence of hours sufficient to make the claim valid, the
Director may issue a redetermination.
(2) If as
the result of an investigation additional subject wages or hours of work are
made available which either allow a non-valid claim to become valid, or
increase the weekly benefit amount of a valid claim, a redetermination will be issued.
(3) If as
the result of an investigation all or part of the requested wages or hours of
work are not included in the claim determination, the Director will so notify
the claimant. If the claimant requested an amended monetary determination as
provided in section (1) of this rule within the period specified by ORS
657.266(5), such notice will be given by a determination amending or affirming
the initial determination. Such notice shall be subject to appeal as provided
in 657.266(5).
(4) An
employer is affected by an amended determination issued under ORS 657.266(3) if
it is found to have paid wages to a claimant, and is potentially affected if a
claimant alleges wages were paid to him or her by that employer.
(5) If,
during a hearing on an initial or amended determination issued under ORS
657.266(2) or (3), an issue arises as to whether wages at issue were actually
paid to claimant by an employer that was not given notice of the initial or
amended determination, that employer will become a party to that hearing. If
the hearing has already commenced, it will be continued to allow reasonable
time for the employer to be notified of the hearing.
Stat.
Auth.: ORS 657
Stats.
Implemented: ORS 657.266
Hist.: 1DE
2-1981(Temp), f. & ef. 2-16-81; 1DE 4-1981, f. & ef. 4-1-81; ED 2-1995,
f. 8-29-95, cert. ef. 9-3-95; ED 2-2005, f. 4-29-05, cert. ef. 5-1-05; ED
3-2011(Temp), f. 5-13-11, cert. ef. 7-1-11 thru 12-26-11; ED 7-2011, f. &
cert. ef. 8-3-11
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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