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The Oregon Administrative Rules contain OARs filed through August 15, 2015
 
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BUREAU OF LABOR AND INDUSTRIES

 

DIVISION 4

RETALIATION FOR OPPOSITION TO
HEALTH AND SAFETY HAZARDS

 

839-004-0001

Background, Purpose and Scope of the Oregon Safe Employment Act and these Rules

(1) The Oregon Safe Employment Act (OSEA) includes the statutes described below:

(a) ORS 654.001 to .295, providing for safety and health conditions in places of employment, workplace safety committees, hazard communication and hazardous substances, and health and sanitation inspections.

(b) ORS 654.412 to .423, providing for safety of health care employees.

(c) ORS 654.750 to .780, providing for hazardous chemicals in agriculture.

(2) ORS 654.062 provides that:

(a) An employee should notify the employer of any violation of law, regulation or standard pertaining to safety and health in the place of employment when the violation comes to the knowledge of the employee.

(b) Any employee or representative of the employee may complain of such violation to the Oregon Department of Consumer and Business Services (DCBS) whether or not the employee notifies the employer. DCBS will follow the procedures provided by ORS 654.062(3) and (4).

(c) The Civil Rights Division (division) of the Bureau of Labor and Industries has jurisdiction to enforce ORS 654.062(5), which provides that it is an unlawful employment practice for any person to bar or discharge from employment or otherwise discriminate against any employee or prospective employee because that individual has opposed any practice prohibited by OSEA; made any complaint or instituted or caused to be instituted any proceeding under or related to OSEA; testified or is about to testify in any such proceeding or exercised on behalf of the employee, prospective employee or others any right afforded by OSEA.

(3) Employees and prospective employees are also protected from discrimination under ORS 654.062(5):

(a) By any person, whether or not the person is the employee’s or prospective employee’s employer;

(b) If the employee or prospective employee is perceived to take any protected actions described in subsection (2)(c) of this rule; or

(c) If the employee or prospective employee opposed a practice that the employee or prospective employee in good faith believed was prohibited under OSEA.

Stat. Auth.: ORS 654.062(5), 659A.805
Stats. Implemented: ORS 654.062(5)
Hist.: BLI 14-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 19-2007(Temp), f. & cert. ef. 7-18-07 thru 1-1-08; BLI 29-2007 f. 9-27-07 cert. ef. 10-1-07; BLI 10-2015, f. & cert. ef. 7-30-15

839-004-0003

Definitions: Discrimination for Opposition to Practices Prohibited by Oregon Safe Employment Act (OSEA)

As defined in ORS 654.005:

(1) “Discrimination” includes but is not limited to:

(a) Barring or discharging an individual from employment;

(b) Treating an individual differently than others in compensation, terms, conditions or privileges of employment;

(c) Retaliating against or harassing an individual for participating in activities protected by ORS 654.062(5); or

(d) Actions described in (a)–(c) of this section taken against individuals by persons that are not the individual’s employer or prospective employer, such as, but not limited to, labor organizations and employment agencies.

(2) “Employee” includes:

(a) Any individual, including a minor whether lawfully or unlawfully employed, who engages to furnish services for remuneration, financial or otherwise, subject to the direction and control of an employer;

(b) Salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations; and

(c) Any individual including but not limited to a volunteer who is provided with workers' compensation coverage as a subject worker pursuant to ORS Chapter 656, whether by operation of law or by election.

(3) "Employer" includes:

(a) Any person who has one or more employees;

(b) Any sole proprietor or member of a partnership who elects workers' compensation coverage as a subject worker pursuant to ORS 656.128; and

(c) Any successor or assignee of an employer. As used in this paragraph, “successor” means a business or enterprise that is substantially the same entity as the predecessor employer according to criteria adopted by the Oregon Department of Consumer and Business Services in OAR 437-001-0015.

(4) "Person" means one or more individuals, legal representatives, partnerships, joint ventures, associations, corporations (whether or not organized for profit), business trusts, any organized group of persons, the state, state agencies, counties, municipal corporations, school districts and other public corporations or subdivisions.

(5) “Place of employment” includes:

(a) Every place, whether indoors or out or underground, and the premises and structures appurtenant thereto, where either temporarily or permanently an employee works or is intended to work; and

(b) Every place where there is carried on any process, operation or activity related, either directly or indirectly, to an employer’s industry, trade, business or occupation, including a labor camp, wherever located, provided by an employer for employees or by another person engaged in providing living quarters or shelters for employees.

(6) “Place of employment” does not include:

(a) Any place where the only employment involves non subject workers employed in or about a private home; and

(b) Any corporate farm where the only employment involves the farm’s family members, including parents, spouses, sisters, brothers, daughters, sons, daughters-in-law, sons-in-law, nieces, nephews or grandchildren.

Stat. Auth.: ORS 654.062(5); ORS 659A.805
Stats. Implemented: ORS 654.005; ORS 654.062
Hist.: BLI 14-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 10-2015, f. & cert. ef. 7-30-15

839-004-0016

Scope of Protection under ORS 654.062(5)

(1) ORS 654.062(5) prohibits discrimination against an employee or prospective employee (“individual”) because the individual:

(a) Made any complaint or instituted or caused to be instituted any proceeding under or related to the Oregon Safe Employment Act (OSEA);

(b) Testified or is about to testify in any such proceeding;

(c) Exercised on behalf of the individual or others any right afforded by OSEA;

(d) Engaged in a practice provided for by OSEA; or

(e) Opposed any practice prohibited by OSEA or which the individual in good faith believed was prohibited by OSEA; or

(f) Is perceived to take any actions described in subsections (a) through (e) of this rule.

(2) ORS 654.062(5) does not state to whom or in what manner an individual must oppose a practice in order to be protected from discrimination. Protected actions include the individual communicating opposition to practices prohibited by OSEA or which the individual in good faith believes are prohibited by OSEA to anyone, including but not limited to:

(a) Coworkers;

(b) Employers; and

(c) Newspapers and other media.

(3) The protection of ORS 654.062(5) for opposing practices does not generally extend to an individual refusing to work or walking off the job. However, an individual would have protection under ORS 654.062(5) for such actions if the individual has reasonable cause to believe that:

(a) The work, work area, equipment or other factors pose an imminent risk of serious injury or death due to hazardous conditions not inherent in the job;

(b) There is insufficient time or opportunity, or it would be futile for the individual to inform the employer of the risk factors and request that the employer address them because the employer is not available or denies the risk factors exist or refuses to address the risk factors; and

(c) There is insufficient time or opportunity to seek assistance from regulatory enforcement authorities.

(4) ORS 654.062(5) does not protect an employee who refuses to comply with OSEA or the employer's legitimate safety rules.

Stat. Auth.: ORS 654.062(5)
Stats. Implemented: ORS 654.062(5)
Hist.: BLI 14-2000, f. & cert. ef. 8-11-00; BLI 10-2002, f. & cert. ef. 5-17-02; BLI 10-2015, f. & cert. ef. 7-30-15

839-004-0021

Procedures for Complaints; Statutes of Limitation; Private Right of Action; Statutory Construction; Remedies

(1) Employees or prospective employees alleging violations of ORS 654.062(5) of the Oregon Safe Employment Act (OSEA) may file a complaint with the Civil Rights Division (division) of the Bureau of Labor and Industries as aggrieved persons as provided in ORS 659A.820 and OAR 839-003-0031.

(2) Aggrieved persons alleging violations of ORS 654.062(5) must contact the division within 90 days after the date on which the aggrieved person has reasonable cause to believe they have been discriminated against. An aggrieved person would have reasonable cause to believe a violation has occurred on the earliest date that the aggrieved person:

(a) Believed discrimination had occurred against the aggrieved person for opposing practices prohibited by OSEA; and

(b) Knew or should have known of the right to file a complaint with the division and of the requirement to contact the division within 90 days after the alleged discrimination.

(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 requirement to contact the division within 90 days after the alleged discrimination.

(B) If the employer failed to post the required OSEA poster, the requirement to contact the division within 90 days after the alleged discrimination will begin on the date the employee learned of the right to file a complaint and of the 90 day 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).

(3) Upon receipt of a complaint the commissioner of the Bureau of Labor and Industries (commissioner) will process the complaint under the procedures, policies and remedies established by ORS chapter 659A and the policies established by ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780 in the same way and to the same extent that the complaint would be processed if the complaint involved allegations of unlawful employment practices under ORS 659A.030(1)(f).

(4)(a) If the commissioner dismisses the complaint, the commissioner will issue a notice to the aggrieved person pursuant to ORS 659A.880 that a civil action may be filed within 90 days of the dismissal.

(b) The aggrieved person may appeal the dismissal to the Oregon Occupational Safety and Health Division within 15 calendar days of issuance of the determination.

(5) Provisions of OSEA are to be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Occupational Safety and Health Act of 1970, 29 USC ch.15 ¦651-678 as amended (OSHA).

(6) An affected employee or prospective employee may bring a civil action in any circuit court of the State of Oregon against any person alleged to have violated ORS 654.062(5). The civil action must be commenced within one year after the employee or prospective employee has reasonable cause to believe a violation has occurred, unless a complaint has been timely filed under ORS 659A.820.

(7) The commissioner or the circuit court may order all appropriate relief including rehiring or reinstatement to the employee’s former position with back pay.

Stat. Auth.: ORS 654.062(5), ORS 659A.805
Stats. Implemented: ORS 654.062(5), ORS 659A.030(1)(f)
Hist.: BLI 14-2000, f. & cert. ef. 8-11-00; BLI 5-2005, f. 1-13-05, cert. ef. 1-19-05; BLI 19-2007(Temp), f. & cert. ef. 7-18-07 thru 1-1-08; BLI 29-2007, f. 9-27-07 cert. ef. 10-1-07; BLI 10-2015, f. & cert. ef. 7-30-15

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