Oregon Bulletin
Rule
Caption: Amends the prevailing rates of
wage for the period beginning July 1, 2011 and October 1, 2011 amendment.
Adm.
Order No.: BLI 10-2011
Filed with Sec. of
State: 12-30-2011
Certified to be
Effective: 1-1-12
Notice Publication
Date:
Rules Amended: 839-025-0700
Subject: The amended rule amends the prevailing rates of wage
as determined by the Commissioner of the Bureau of Labor and Industries for the
period beginning July 1, 2011 and October 1, 2011 amendment.
Rules Coordinator: Marcia Ohlemiller—(971) 673-0784
839-025-0700
Prevailing Wage Rate
Determination/Amendments to Determination
(1) Pursuant to ORS 279C.815, the Commissioner of the
Bureau of Labor and Industries has determined that the wage rates stated in
publication of the Bureau of Labor and Industries entitled Prevailing Wage
Rates on Public Works Contracts in Oregon dated January 1, 2012, are the
prevailing rates of wage for workers upon public works in each trade or
occupation in the locality where work is performed for the period beginning
January 1, 2012, and the effective dates of the applicable special wage
determination and rates amendments:
(2) Copies of Prevailing Wage Rates on Public Works
Contracts in Oregon dated January 1, 2012, are available from any office of
the Wage and Hour Division of the Bureau of Labor and Industries. The offices
are located in Eugene, Portland and Salem and are listed in the blue pages of
the phone book. Copies are also available on the bureau’s webpage at
www.oregon.gov/boli or may be obtained from the Prevailing Wage Rate
Coordinator, Prevailing Wage Rate Unit, Wage and Hour Division, Bureau of Labor
and Industries, 800 NE Oregon Street #1045, Portland, Oregon 97232; (971)
673-0839.
Stat. Auth.: ORS 279C.815, 651.060
Stats. Implemented: ORS.279C.815
Hist.: BLI 7-1998(Temp), f. &
cert. ef. 10-29-98 thru 4-27-99; BLI 1-1999, f. 1-8-99, cert. ef. 1-15-99; BLI
4-1999, f. 6-16-99, cert. ef. 7-1-99; BLI 6-1999, f. & cert. ef. 7-23-99;
BLI 9-1999, f. 9-14-99, cert. ef. 10-1-99: BLI 16-1999, f. 12-8-99, cert. ef.
1-1-00; BLI 4-2000, f. & cert. ef. 2-1-00; BLI 9-2000, f. & cert. ef.
3-1-00; BLI 10-2000, f. 3-17-00, cert. ef. 4-1-00; BLI 22-2000, f. 9-25-00,
cert. ef. 10-1-00; BLI 26-2000, f. 12-14-00 cert. ef. 1-1-01; BLI 1-2001, f.
& cert. ef. 1-5-01; BLI 3-2001, f. & cert. ef. 3-15-01; BLI 4-2001, f.
3-27-01, cert. ef. 4-1-01; BLI 5-2001, f. 6-21-01, cert. ef. 7-1-01; BLI
8-2001, f. & cert. ef. 7-20-01; BLI 14-2001, f. 9-26-01, cert. ef. 10-1-01;
BLI 16-2001, f. 12-28-01, cert. ef. 1-1-02; BLI 2-2002, f. 1-16-02, cert. ef.
1-18-02; BLI 8-2002, f. 3-25-02, cert. ef. 4-1-02; BLI 12-2002 f. 6-19-02 cert.
ef. 7-1-02; BLI 16-2002, f. 12-24-02 cert. ef. 1-1-03; BLI 1-2003, f. 1-29-03,
cert. ef. 2-14-03; BLI 3-2003, f. & cert. ef. 4-1-03; BLI 4-2003, f.
6-26-03, cert. ef. 7-1-03; BLI 5-2003, f. 9-17-03, cert. ef. 10-1-03; BLI
9-2003, f. 12-31-03, cert. ef. 1-5-04; BLI 1-2004, f. 4-9-04, cert. ef.
4-15-04; BLI 6-2004, f. 6-25-04, cert. ef. 7-1-04; BLI 11-2004, f. & cert.
ef. 10-1-04; BLI 17-2004, f. 12-10-04 cert. ef. 12-13-04; BLI 18-2004, f.
12-20-04, cert. ef. 1-1-05; Renumbered from 839-016-0700, BLI 7-2005, f.
2-25-05, cert. ef. 3-1-05; BLI 8-2005, f. 3-29-05, cert. ef. 4-1-05; BLI
18-2005, f. 9-19-05, cert. ef. 9-20-05; BLI 19-2005, f. 9-23-05, cert. ef.
10-1-05; BLI 26-2005, f. 12-23-05, cert. ef. 1-1-06; BLI 1-2006, f. 1-24-06,
cert. ef. 1-25-06; BLI 2-2006, f. & cert. ef. 2-9-06; BLI 4-2006, f.
2-23-06, cert. ef. 2-24-06; BLI 14-2006, f. 3-30-06, cert. ef. 4-1-06; BLI
20-2006, f. & cert. ef. 6-16-06; BLI 21-2006, f. 6-16-06 cert. ef. 7-1-06;
BLI 23-2006, f. 6-27-06 cert. ef. 6-29-06; BLI 25-2006, f. & cert. ef.
7-11-06; BLI 26-2006, f. & cert. ef. 7-13-06; BLI 28-2006, f. 7-21-06,
cert. ef. 7-24-06; BLI 29-2006, f. 8-8-06, cert. ef. 8-9-06; BLI 32-2006, f.
& cert. ef. 9-13-06; BLI 33-2006, f. 9-28-06, cert. ef. 10-1-06; BLI
36-2006, f. & cert. ef. 10-4-06; BLI 37-2006, f. & cert. ef. 10-19-06;
BLI 40-2006, f. 11-17-06, cert. ef. 11-20-06; BLI 43-2006, f. 12-7-06, cert.
ef. 12-8-06; BLI 45-2006, f. 12-26-06, cert. ef. 1-1-07; BLI 5-2007, f.
1-30-07, cert. ef. 1-31-07; BLI 6-2007, f. & cert. ef. 3-5-07; BLI 7-2007,
f. 3-28-07, cert. ef. 3-30-07; BLI 8-2007, f. 3-29-07, cert. ef. 4-1-07; BLI
9-2007, f. & cert. ef. 4-2-07; BLI 10-2007, f. & cert. ef. 4-30-07; BLI
12-2007, f. & cert. ef. 5-31-07; BLI 13-2007, f. 6-8-07, cert. ef. 6-11-07;
BLI 14-2007, f. 6-27-07, cert. ef. 6-28-07; BLI 15-2007, f. & cert. ef.
6-28-07; BLI 16-2007, f. 6-29-07, cert. ef. 7-1-07; BLI 18-2007, f. 7-10-07,
cert. ef. 7-12-07; BLI 21-2007, f. 8-3-07, cert. ef. 8-8-07; BLI 22-2007, cert.
& ef. 8-30-07; BLI 23-2007, f. 8-31-07, cert. ef. 9-4-07; BLI 24-2007, f.
9-11-07, cert. ef. 9-12-07; BLI 25-2007, f. 9-19-07, cert. ef. 9-20-07; BLI
26-2007, f. 9-25-07 cert. ef. 9-26-07; BLI 27-2007, f. 9-25-07 cert. ef.
10-1-07; BLI 28-2007, f. 9-26-07 cert. ef. 10-1-07; BLI 31-2007, f. 11-20-07,
cert. ef. 11-23-07; BLI 34-2007, f. 12-27-07, cert. ef. 1-1-08; BLI 1-2008, f.
& cert. ef. 1-4-08; BLI 2-2008, f. & cert. ef. 1-11-08; BLI 3-2008, f.
& cert. ef. 2-21-08; BLI 6-2008, f. & cert. ef. 3-13-08; BLI 8-2008, f.
3-31-08, cert. ef. 4-1-08; BLI 9-2008, f. & cert. ef. 4-14-08; BLI 11-2008,
f. & cert. ef. 4-24-08; BLI 12-2008, f. & cert. ef. 4-30-08; BLI
16-2008, f. & cert. ef. 6-11-08; BLI 17-2008, f. & cert. ef. 6-18-08;
BLI 19-2008, f. & cert. ef. 6-26-08; BLI 20-2008, f. & cert. ef.
7-1-08; BLI 23-2008, f. & cert. ef. 7-10-08; BLI 26-2008, f. & cert.
ef. 7-30-08; BLI 28-2008, f. & cert. ef. 9-3-08; BLI 30-2008, f. &
cert. ef. 9-25-08; BLI 31-2008, f. 9-29-08, cert. ef. 10-1-08; BLI 32-2008, f.
& cert. ef. 10-8-08; BLI 36-2008, f. & cert. ef. 10-29-08; BLI 41-2008,
f. & cert. ef. 11-12-08; BLI 42-2008, f. & cert. ef. 12-1-08; BLI
44-2008, f. & cert. ef. 12-29-08; BLI 45-2008, f. 12-31-08, cert. ef.
1-1-09; BLI 1-2009, f. & cert. ef. 1-6-09, BLI 2-2009, f. & cert. ef.
1-12-09; BLI 4-2009, f. & cert. ef. 2-11-09; BLI 6-2009, f. & cert. ef.
3-17-09; BLI 7-2009, f. & cert. ef. 3-24-09; BLI 8-2009, f. 3-31-09, cert.
ef. 4-1-09; BLI 10-2009, f. 6-9-09, cert. ef. 6-10-09; BLI 11-2009, f. 6-29-09,
cert. ef. 6-30-09; BLI 12-2009, f. 6-29-09, cert. ef. 7-1-09; BLI 13-2009, f.
& cert. ef. 7-1-09; BLI 14-2009, f. & cert. ef. 7-10-09; BLI 15-2009,
f. & cert. ef. 7-16-09; BLI 16-2009, f. & cert. ef. 7-22-09; BLI
17-2009, f. & cert. ef. 7-29-09; BLI 19-2009, f. & cert. ef. 8-18-09;
BLI 20-2009, f. & cert. ef. 9-14-09; BLI 21-2009, f. & cert. ef.
9-21-09; BLI 22-2009, f. 9-30-09, cert. ef. 10-1-09; BLI 23-2009, f. &
cert. ef. 10-8-09; BLI 24-2009, f. & cert. ef. 11-12-09; BLI 25-2009, f.
& cert. ef. 11-23-09; BLI 29-2009, f. 12-31-09, cert. ef. 1-1-10; BLI
1-2010, f. 1-8-10, cert. ef. 1-12-10; BLI 2-2010, f. 1-11-10, cert. ef.
1-13-10; BLI 3-2010, f. & cert. ef 1-19-10; BLI 4-2010, f. & cert. ef
1-27-10; BLI 13-2010, f. & cert. ef. 4-1-10; BLI 17-2010, f. 6-29-10, cert.
ef. 7-1-10; BLI 20-2010, f. & cert. ef. 10-1-10; BLI 24-2010, f. 12-30-10,
cert. ef. 1-1-11; BLI 2-2011, f. 3-25-11, cert. ef. 4-1-11; BLI 4-2011, f.
6-30-11, cert. ef. 7-1-11; BLI 7-2011, f. & cert. ef. 10-12-11; BLI
10-2011, f. 12-30-11, cert. ef. 1-1-12
Rule
Caption: Implements legislation providing
civil penalties for issuance of dishonored checks in payment of wages.
Adm.
Order No.: BLI 11-2011
Filed with Sec. of
State: 12-30-2011
Certified to be
Effective: 1-1-12
Notice Publication
Date: 12-1-2011
Rules Adopted: 839-001-0300
Subject: This new rule implements the provisions of House Bill
(HB) 2039 enacted by the 2011 Legislature. HB 2039, effective January 1, 2012,
amends ORS chapter 652 to authorize the Commissioner of the Bureau of Labor and
Industries to assess civil penalties payable to employees equal to the damages
provided in ORS 30.701 relating to actions against makers of dishonored checks.
ORS 30.701 provides that when an individual is issued a check for which there
are insufficient funds, the person may recover from the maker of the dishonored
check statutory damages in an amount equal to $100 or triple the amount for
which the check is drawn, not to exceed $500 more than the value of the check.
This new rule
provides that such amounts may be assessed as civil penalties by the Bureau of
Labor and Industries pursuant to the Administrative Procedure Act (ORS 183.413
to 183.470) and the bureau’s Contested Case Hearing Rules.
Rules Coordinator: Marcia Ohlemiller—(971) 673-0784
839-001-0300
Liability of Employer for Issuance
of Dishonored Check in Payment of Wages
(1) As used in this rule:
(a) “Check” means a check, draft or order for the
payment of money.
(b) “Drawee” means a person ordered in a draft to make
payment pursuant to ORS 73.0103(1)(b).
(2) Pursuant to ORS 30.701, an employer that issues a
dishonored check to an employee for payment of wages due is liable to the
employee for damages in an amount equal to $100 or triple the amount for which
the check is drawn, whichever is greater, in addition to the amount for which
the check was drawn. The amount of damages may not exceed the amount for which
the check was drawn by more than $500.
(3) Pursuant to the provisions of House Bill 2039
(2011), the Commissioner of the Bureau of Labor and Industries may assess a
civil penalty payable to the employee in an amount equal to the statutory
damages provided by ORS 30.701 against an employer that issues a dishonored
check to an employee for payment of wages due. Such civil penalties will be
assessed pursuant to the provisions of the Administrative Procedure Act (ORS
183.413 to 183.470) and the bureau’s Contested Case Hearing Rules.
(4) The commissioner may not assess a civil penalty as
provided in this rule if:
(a) After the employee or the employee’s assignee has
made written demand of the employer not less than 30 days before commencing the
action, the employer pays the employee before the commencement of the action an
amount of money not less than the amount for which the check was drawn and all
interest that has accrued on the check under ORS 82.010 as of the date of
demand; or,
(b) The employee has commenced an action under ORS
30.701 against the employer for the same dishonored check.
(5) If the commissioner determines that the failure of
the employer to satisfy the dishonored check at the time demand was made under
subsection (4)(a) of this rule was due to economic hardship, the commissioner
may waive all or part of the statutory damages provided for in section (2) of
this rule.
(6) The provisions of this rule apply only to a check
that has been dishonored because of a lack of funds or credit to pay the check,
because the employer has no account with the drawee, or because the employer
has stopped payment on the check without good cause. An employee is entitled to
the remedies provided in this rule without regard to the reasons given by the
employer for dishonoring the check.
(7) An employee may not bring an action under ORS
30.701 against an employer for the same dishonored check if the commissioner
has assessed or proposed to assess a civil penalty under this rule.
Stat. Auth: ORS 30.701, 651.060
& Ch. 652
Stats. Implemented: ORS 652
Hist.: BLI 11-2011, f. 12-30-11,
cert. ef. 1-1-12
Rule
Caption: Clarifies how employer penalty is
to be computed in Wage Security Fund recovery actions.
Adm.
Order No.: BLI 12-2011
Filed with Sec. of
State: 12-30-2011
Certified to be
Effective: 1-1-12
Notice Publication
Date: 12-1-2011
Rules Amended: 839-001-0560
Subject: ORS 652.414, relating to the payment of wage claims
from the Wage Security Fund, provides that the Commissioner of the Bureau of
Labor and Industries may initiate action to recover from employers or other
persons liable for unpaid wages, amounts paid from the Wage Security Fund. In
addition, the commissioner is also entitled to recover a penalty of 25 percent
of the amount of wages paid from the Wage Security Fund or $200, whichever
amount is greater. This rule amendment clarifies that in cases where multiple
employees of an employer are paid from the Fund, the penalty of 25 percent
amount of wages paid or $200, whichever is greater, is to be calculated based
on the amount paid to each employee from the Wage Security Fund, rather than
the total aggregated amount paid to the employees of the employer.
Rules Coordinator: Marcia Ohlemiller—(971) 673-0784
839-001-0560
Recovery from Employers
(1) The Commissioner may perfect a security interest in
the personal property of the employer in the amount of the sums paid from the
Fund on a wage claim and in an additional amount of the penalty provided for in
ORS 652.414(3).
(2) The penalty provided in ORS 652.414(3) of 25
percent of the amount of wages paid from the Wage Security Fund or $200,
whichever amount is greater, shall be calculated based on the amount paid to
each employee from the Wage Security Fund.
(3) Action to perfect a security interest shall be
taken in accordance with ORS 652.414(3) and (4).
Stat. Auth.: ORS 652.414(6)
Stats. Implemented: ORS 652.414
Hist.: BL 5-1986, f. 6-20-86, ef.
7-1-86; BL 8-1989, f. & cert. ef. 10-12-89; BL 9-1996, f. & cert. ef.
10-8-96; BLI 12-2011, f. 12-30-11, cert. ef. 1-1-12
Rule
Caption: Amendments clarifying time during
which bureau may issue subpoenas and correcting statutory cites.
Adm.
Order No.: BLI 13-2011
Filed with Sec. of
State: 12-30-2011
Certified to be
Effective: 1-1-12
Notice Publication
Date: 11-1-2011
Rules Amended: 839-002-0001, 839-002-0002, 839-002-0005,
839-002-0015, 839-002-0020, 839-002-0025, 839-002-0030, 839-002-0035,
839-002-0040, 839-002-0045, 839-002-0050, 839-002-0055, 839-002-0060,
839-002-0065, 839-002-0070, 839-002-0075, 839-002-0080
Subject: The amendments clarify the time frame during which the
bureau may issue subpoenas. The authorizing statute, ORS 651.0060(1), provides
that the bureau may issue subpoenas “when the information sought is relevant to
a lawful investigative purpose.” The amendments clarify that the bureau may
issue a subpoena at any time when the information sought “is relevant to a
lawful investigative purpose and deemed to be reasonable in scope,” which would
include during official preliminary inquiries prior to initiating an
investigation. The amendments also include corrections to statutory cites.
Rules Coordinator: Marcia Ohlemiller—(971) 673-0784
839-002-0001
Purpose of These Rules
The Bureau of Labor and Industries is authorized to
develop administrative rules necessary for enforcement of statutes for which it
is responsible. The purpose of these rules is to guide the bureau in the
rule-making process.
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183.335
Hist.: BLI 1-2000, f. & cert.
ef. 1-11-00; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0002
Proposed Rule Notice
Prior to the permanent adoption, amendment or repeal of
any rule of the Bureau of Labor and Industries, the bureau will give notice of
intended action:
(1) In the Secretary of State’s Bulletin, referred to
in ORS 183.360, at least 21 days prior to the rule’s effective date.
(2) To persons on the bureau’s mailing list and email
list established pursuant to ORS 183.335(8).
(3) To the legislature, by mailing a copy of the notice
to the legislators specified in ORS 183.335(15) at least 49 days before the
effective date of the rule.
(4) To the general public, by posting the notice on the
bureau’s Website.
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183.335
Hist.: BLI 1-2000, f. & cert.
ef. 1-11-00; BLI 8-2004, f. 7-26-04, cert. ef. 7-27-04; BLI 7-2006, f. 3-16-06
cert. ef. 3-20-06; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011,
f. 12-30-11, cert. ef. 1-1-12
839-002-0005
Model Rules of Procedure
(1) The Attorney General’s Model Rules of Procedure
under the Administrative Procedures Act, are hereby adopted to govern the
operations of the Bureau of Labor and Industries.
(2) The Model Rules of Procedure will govern operations
of the Hearings Unit of the Bureau of Labor and Industries except to the extent
they conflict with or are modified by rules in any division of chapter 839 of
the Oregon Administrative Rules. The rules for contested case proceedings are
set forth in OAR chapter 839, division 50.
[ED. NOTE: The full text of the
Attorney General’s Model Rules of Procedure is available from the office of the
Attorney General or the Bureau of Labor and Industries.]
Stat. Auth.: ORS 183
Stats. Implemented: ORS 183.341
Hist.: BL 5-1980, f. & ef.
8-4-80; BL 2-1981, f. & ef. 1-8-81; BL 3-1982, f. & ef. 2-9-82; BL
4-1996, f. & cert. ef. 3-12-96; BLI 1-2000, f. & cert. ef. 1-11-00; BLI
7-2006, f. 3-16-06 cert. ef. 3-20-06; BLI 33-2008, f. 10-22-08, cert. ef.
10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
839-002-0015
Authority
(1) ORS 651.060(1) authorizes the commissioner to
conduct investigations in all matters relating to the duties required under ORS
279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170, and Chapters 652,
653, 658, and 659A.
(2) ORS 651.060(1) gives the commissioner the authority
to issue subpoenas ad testificandum and subpoenas duces tecum, administer
oaths, obtain evidence and take testimony.
(3) These rules govern the commissioner’s gathering of
information through subpoenas or testimony and establish procedures through
which a subpoenaed party may object to answering questions or producing any
document or other thing subpoenaed.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0020
Definitions
(1) “Division” means the Civil Rights Division and Wage
and Hour Division in the Bureau of Labor and Industries.
(2) “Document” means any existing written, printed,
typed, or recorded matter of any kind or nature, however produced or
reproduced, including but not limited to all mechanical, electronic, sound or
video recordings or their transcripts, photographs, electronic files and
computer stored data.
(3) “Other thing” means any existing tangible object
that is not a “document.”
(4) “Party” means any person who has been served by a
subpoena under these rules.
(5) “Person” means any individual, partnership,
corporation, association, governmental subdivision, or public or private
organization of any character.
(6) “Subpoena ad testificandum” is a subpoena that
requires an individual to appear and give testimony under oath.
(7) “Subpoena duces tecum” is a subpoena that requires
the production of documents or other things.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0025
Who and What May Be Subpoenaed
The commissioner may issue subpoenas to persons to
compel testimony and the production of documents or other things that are
relevant to the commissioner’s lawful investigative purpose and reasonable in
scope under matters relating to the duties required under ORS 279C.800 to
279C.870, 651.030, 651.050, 651.120 and 651.170, and chapters 652, 653, 658,
and 659A.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0030
Circumstances under Which a
Subpoena May be Issued
(1) The commissioner may issue a subpoena at any time
when the information sought is relevant to a lawful investigative purpose and
is reasonable in scope. Investigative purposes include any preliminary
inquiries in determining whether to pursue a formal investigation.
(2) The commissioner may issue a subpoena ad
testificandum to compel a person to testify under oath when:
(a) A Division determines that the person is a material
witness in an investigation being conducted by the Division under ORS 279C.800
to 279C.870, 651.030, 651.050, 651.120 and 651.170, or chapters 652, 653, 658,
and 659A; and
(b) The Division has been unable to interview the
person after having made reasonable attempts to do so, or the person states
that the person will only consent to an interview if first served with a
subpoena.
(3) The commissioner may also issue a subpoena ad
testificandum to compel a person to testify under oath about the contents of
documents or other things produced in response to a subpoena duces tecum served
on the same person.
(4) The commissioner may issue a subpoena duces tecum
to compel a person to produce documents or other things when:
(a) A Division determines that the documents or other
things are relevant to the Division’s inquiry being conducted under ORS
279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170, or chapters 652,
653, 658, and 659A; and
(b) The Division has made a written request for
production of documents or things and the person to whom the request was made
has failed to comply within the time specified by the Division, unless the
commissioner finds a subpoena is necessary to protect the documents and things
from destruction.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI
5-2010(Temp), f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f.
5-4-10, cert. ef. 5-5-10; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
839-002-0035
Who May Issue Subpoenas
The commissioner or the commissioner’s designees may
issue subpoenas.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0040
Subpoena Duces Tecum
(1) A subpoena duces tecum may be issued to any person
who has custody, possession, or control of documents or other things named in
the subpoena duces tecum when the conditions set out in OAR 839-002-0030(4)
have been met.
(2) A subpoena duces tecum issued to a corporation will
be addressed to the records custodian of the corporation.
(3) A subpoena duces tecum will not require production
of documents or other things less than 14 days from the date of service upon
the person required to produce and permit inspection of the documents or things
unless the commissioner finds a shorter period necessary to protect the
documents and things from destruction or if the Division has an immediate need
for the documents or things being subpoenaed.
(4) The commissioner may also command the person to
whom a subpoena duces tecum is issued to produce documents and other things by
mail or otherwise, at a time and place specified in the subpoena, without
commanding inspection of the originals. The person to whom the subpoena is
directed complies if the person produces copies of the specified items in the
specified manner and certifies that the copies are true copies of all documents
and other things responsive to the subpoena.
(5) The subpoenaed documents and other things must be
produced at the location, time, and date required in the subpoena.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 5-2010(Temp),
f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f. 5-4-10, cert. ef.
5-5-10; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
839-002-0045
Subpoena Ad Testificandum
(1) A subpoena ad testificandum may be issued to any
person when the conditions set out in 839-002-0030(2) or 839-002-0030(3) have
been met.
(2) The subpoena ad testificandum must give the person
a reasonable time for preparation and travel to the place of attendance and the
place of attendance must be in a suitable place in the vicinity to which
testimony is applicable.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI
5-2010(Temp), f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f.
5-4-10, cert. ef. 5-5-10; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
839-002-0050
Method of Service
(1) Except as noted in subsections (2) and (3) of this
rule, subpoenas must be served in person by delivering a copy to the witness
personally and, at the same time, giving or offering to the witness the fees to
which the person is entitled for travel to and from the place where the witness
is commanded to appear, along with one day’s attendance fee. A subpoena may be
served by any person 18 years of age or older.
(2) Subpoenas ad testificandum may be served by mail
under the following circumstances:
(a) The Division must have, by personal or telephone
contact, confirmed the witness’s willingness to appear if subpoenaed and
certify this on the return of service;
(b) The Division made arrangements for payment to the
witness of fees and mileage satisfactory to the witness and pays those fees and
mileage; and
(c) The subpoena is sent by certified mail to the
witness more than 10 days before the date set for appearance or production of
documents or other things and the Division receives a return receipt signed by
the witness more than three days prior to that date.
(3) A subpoena duces tecum that commands production of
documents or other things but is not accompanied by a subpoena ad testificandum
may be served by mailing the subpoena to the person required to produce and
permit inspection of the documents or things by first class mail and by
certified or registered mail, return receipt requested.
(4) A subpoena duces tecum issued to a corporation will
be served in accordance with requirements for service of summons on a
corporation pursuant to ORCP 7 D(3)(b).
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A; ORCP 7
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI
5-2010(Temp), f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f.
5-4-10, cert. ef. 5-5-10; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
839-002-0055
Fees
All persons subpoenaed by the commissioner must be paid
the mileage and per diem set out in ORS 44.415(2).
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0060
Time and Manner of Objecting to
Subpoenas
(1) Any person served with an investigative subpoena
may object to testifying or providing the documents or other things sought.
Grounds for objections include:
(a) The information sought is irrelevant to a lawful
investigative purpose;
(b) The information sought is unreasonable in scope;
(c) The witness is ordered to appear to give testimony
in a place that is not suitable or not in the vicinity to which the testimony
is applicable;
(d) The time and expense involved in copying the
documents sought. In order to have this objection considered, a person making
this objection must include a written estimate of the time involved and number
of copies to be made in order to comply with the subpoena;
(e) Reasonable cause to refuse to comply; and
(f) Any other basis that may be asserted under Oregon
law.
(2) Objections to subpoenas must be in writing and must
be received by the Division at least seven calendar days before the time that
the witness is subpoenaed to testify or provide documents or other things.
(3) If a subpoenaed witness refuses to answer specific
questions while giving testimony, the witness must state the reason for the
witness’s objection at the time that the witness refuses to answer the
questions.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0065
Response to Objections
(1) The Division will respond in writing to any
objections timely received under OAR 839-002-0060(2).
(2) If the objection made is the time and expense
involved in copying the documents sought, the Division will provide a check to
the person subpoenaed to pay for the estimated time and expense, calculated at
the rates set out in OAR 839-030-0010. The Division may provide this check
before or at the time the witness is subpoenaed to provide documents or other
things.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0070
Method of Taking Testimony
(1) When a witness appears to give testimony in
response to a subpoena ad testificandum, an oath or affirmation will be
administered to the witness prior to the witness’s testimony. The oath or
affirmation will be administered by an officer authorized to administer oaths
in Oregon, generally a notary public employed by the Bureau of Labor and
Industries.
(2) The witness’s testimony will be preserved by an
audio or video recording. Upon request, the Division will give the witness a
copy of the recording at no cost.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0075
Failure to Appear
If a person served with a subpoena fails to appear and has
not filed any prior objections, the commissioner will conclude that the person
has refused, without reasonable cause, to answer any question or to produce any
document or other thing.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0080
Enforcement of Subpoena
If a person served with a subpoena refuses, without
reasonable cause, to be examined, to answer any question, or to produce any
document or other thing as required by the subpoena, the commissioner may
petition the circuit court in the county in which the investigation is pending
for an order directing the person to show cause why the person has not complied
with the subpoena and should not be held in contempt. The commissioner shall
serve the court’s order upon the person in the manner provided by ORCP 55 D.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800
Stats. Implemented: ORS 279C, 651,
652, 653, 658 & 659A
Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
Rule
Caption: Conforms civil rights rules to
provisions of HB 2036, HB 2828 and HB 3482 (2011).
Adm.
Order No.: BLI 14-2011
Filed with Sec. of
State: 12-30-2011
Certified to be
Effective: 1-1-12
Notice Publication
Date: 11-1-2011
Rules Adopted: 839-005-0075, 839-005-0130, 839-005-0135
Rules Amended: 839-005-0160, 839-005-0170, 839-009-0325,
839-009-0330, 839-009-0340, 839-009-0345, 839-009-0355, 839-009-0360,
839-009-0362, 839-009-0365
Rules Renumbered: 839-005-0033 to 839-005-0125
Subject: The new rules would implement HB 2036, which (1)
corrects references in ORS 659A.106 that relate to employment to refer only to
employment-related disability statutes (ORS 659A.112–659A.139); (2)
allows BOLI to enforce law providing protected leave to attend a criminal
proceeding (ORS 659A.194(2); and (3) clarifies that an employer may consider
the credit history of applicants for public safety officer employment and
clarifies exceptions to the prohibition on the use of credit history
information in employment.
The new rules
would implement provisions of HB 2828, creating an unlawful employment practice
if an employer who employs 10 or more people ceases to provide health,
disability, life or other insurance during a period in which the employee is
serving or is scheduled to serve as juror and the employee notified the
employer of election to have coverage continue.
The new rules
would implement provisions of HB 3482, adding harassment to crime victim
protections.
Rules Coordinator: Marcia Ohlemiller—(971) 673-0784
839-005-0075
Exceptions
OL 2010, Ch. 102 does not apply to:
(1) Employers that are federally insured banks or
credit unions;
(2) Employers that are required by state or federal law
to use individual credit history for employment purposes;
(3) Employees in or applicants for positions
responsible for enforcing the criminal laws of this state, including:
(a) A public safety officer who is a member of a law
enforcement unit;
(b) A peace officer commissioned by a city, port,
school district, mass transit district, county, Indian reservation, or the
Criminal Justice Division of the Department of Justice, the Oregon State
Lottery Commission, the Governor; or
(c) Employees in positions responsible for enforcing
the criminal laws of this state or laws or ordinances related to airport
security; or
(4)(a) The obtainment or use by an employer of
information in the credit history of an applicant or employee because the
information is substantially job-related, and the employer’s reasons for the use
of such information are disclosed to the employee or prospective employee in
writing.
(b) The burden of proving the employer’s disclosure to
the employee rests with the employer.
Stat. Auth.: OL 2010, Ch. 102(5),
ORS 659A.805
Stats. Implemented: OL 2010, Ch.
102
Hist.: BLI 14-2011, f. 12-30-11,
cert. ef. 1-1-12
839-005-0125
Discrimination in Retaliation for
Opposing Unlawful Practices
(1) This rule interprets ORS 659A.030(1)(f).
(2) An employer will be found to have unlawfully
retaliated against an employee if:
(a) The employee has engaged in protected activity by:
(A) Explicitly or implicitly opposing an unlawful
practice or what the employee reasonably believed to be an unlawful practice,
or
(B) Filing a charge, testifying, or assisting in an investigation,
proceeding, or lawsuit under ORS 659A, or attempting to do so;
(b) The employer has subjected the employee to any
adverse treatment, in or out of the workplace, that is reasonably likely to
deter protected activity, regardless of whether it materially affects the
terms, conditions, or privileges of employment; and
(c) There is a causal connection between the protected
activity and the adverse treatment.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS
659A.030(1)(f)
Hist.: BLI 27-2008, f. 8-5-08,
cert. ef. 8-6-08; Renumbered
from 839-005-0033, BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
839-005-0130
Discrimination Against Employees
Serving as Jurors
(1) An employer commits an unlawful employment practice
under ORS chapter 659A if the employer discharges, threatens to discharge,
intimidates or coerces any employee by reason of the employee’s service or
scheduled service as a juror on a grand jury, trial jury or jury of inquest.
(2) An employee who alleges a violation of subsection
(1) of this rule may bring a civil action under ORS 659A.885 or may file a
complaint with the Commissioner of the Bureau of Labor and Industries in the
manner provided by ORS 659A.820.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 10.090, OL
2011 c. 118
Hist.: BLI 14-2011, f. 12-30-11,
cert. ef. 1-1-12
839-005-0135
Insurance Coverage for Employees
Serving as Jurors
(1) An employer who employs 10 or more persons commits
an unlawful employment practice under ORS chapter 659A if:
(a) The employer ceases to provide health, disability,
life or other insurance coverage for an employee during times when the employee
serves or is scheduled to serve as a juror; and
(b) The employee elected to have coverage continued
while the employee served or was scheduled to serve as a juror, and the
employee provided notice of that election to the employer in compliance with
the employer’s policy for notification.
(2) Notwithstanding ORS 652.610(3), if, following an
election described in subsection (1) of this section, an employer is required
or elects to pay any part of the costs of providing health, disability, life or
other insurance coverage for the employee that should have been paid by the
employee, the employer may deduct from the employee’s pay such amounts upon the
employee’s return to work until the amount the employer advanced toward the
payments is paid. The total amount deducted for insurance under this subsection
may not exceed 10 percent of the employee’s gross pay each pay period.
(3) Notwithstanding ORS 652.610(3), if the employer
pays any part of the costs of providing health, disability, life or other
insurance coverage for an employee under subsection (2) of this section, and
the employee ceases to work for the employer before the total amount the
employer advanced toward the payments is paid, the employer may deduct the
remaining amounts from any amounts owed by the employer to the employee or may
seek to recover those amounts by any other legal means.
(4) An employee who alleges a violation of this section
may bring a civil action under ORS 659A.885 or may file a complaint with the
Commissioner of the Bureau of Labor and Industries in the manner provided by
ORS 659A.820.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 10.090, OL
2011 c. 118
Hist.: BLI 14-2011, f. 12-30-11,
cert. ef. 1-1-12
839-005-0160
Protection from Discrimination and
Safety Accommodation for Victims of Domestic Violence, Harassment, Sexual
Assault or Stalking
(1) As provided in ORS 659A.290, it is an unlawful employment
practice for an employer, because an individual is a victim of domestic
violence, harassment, sexual assault or stalking, to:
(a) Refuse to hire an otherwise qualified individual;
or
(b) Discharge, threaten to discharge, demote, suspend
or in any way discriminate or retaliate against an individual with respect to
promotion, compensation or any other terms, conditions or privileges of
employment.
(2) ORS 659A.290 requires employers to provide safety
accommodation for victims of domestic violence, harassment, sexual assault or
stalking.
(3) The Civil Rights Division (“division”) of the
Bureau of Labor and Industries enforces ORS 659A.290.
(4) Leave from employment is available for victims of
domestic violence, harassment, sexual assault or stalking for purposes
including but not limited to: seeking legal or law enforcement remedies,
seeking medical care or counseling, and for relocating or other safety
measures. The division enforces ORS 659A.270 to 659A.285, which require leave
for victims of domestic violence, harassment, sexual assault or stalking. OAR
839-009-0321 to 839-009-0365 implement and interpret ORS 659A.270 to 659A.285.
(5) OAR 839-005-0160 to 839-005-0170 implement and
interpret ORS 659A.290.
(6) Definitions for OAR 839-005-0160 to 839-005-0170:
(a) “Victim of domestic violence” means:
(A) An individual who has been threatened with abuse or
is a victim of abuse, as defined in ORS 107.705; or
(B) Any other person who has suffered financial,
social, psychological or physical harm as a result of domestic violence
committed against the victim as defined in subsection (a), including a member
of the victim’s immediate family.
(b) “Victim of harassment” means an individual against
whom harassment has been committed as described in Oregon’s criminal code at
ORS 166.065.
(c) “Victim of sexual assault” means:
(A) An individual against whom a sexual offense has
been threatened or committed as described in ORS 163.305 to 163.467 or 163.525;
or
(B) Any other person who has suffered financial, social,
psychological or physical harm as a result of a sexual assault committed
against the victim as defined in subsection (a), including a member of the
victim’s immediate family.
(d) “Victim of Stalking” means:
(A) An individual against whom stalking has been
threatened or committed as described in ORS 163.732; or
(B) Any other person who has suffered financial,
social, psychological or physical harm as a result of a stalking committed
against the victim as defined in subsection (a), including a member of the
victim’s immediate family; or
(C) An individual who has obtained a court’s stalking
protective order or a temporary court’s stalking protective order under ORS
30.866.
(e) In no event will an alleged perpetrator of domestic
violence, harassment, sexual assault or stalking be considered a victim for the
purposes of ORS 659A.290 or these rules.
Stat. Auth.: ORS 659A.805,
659A.270
Stats. Implemented: ORS 659A.290,
OL 2011 c. 687
Hist.: BLI 9-2010, f. & cert.
ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
839-005-0170
Reasonable Safety Accommodation
for Victims of Domestic Violence, Harassment, Sexual Assault or Stalking
(1) It is an unlawful employment practice to refuse to
make a reasonable safety accommodation requested by an individual who is a
victim of or under threat of domestic violence, harassment, sexual assault, or
stalking, unless the employer can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of the employer.
(2) “Reasonable safety accommodation” may include, but
is not limited to, a transfer, reassignment, modified schedule, unpaid leave
from employment, changed work telephone number, changed work station, installed
lock, implemented safety procedure or any other adjustment to a job structure,
workplace facility or work requirement in response to actual or threatened
domestic violence, harassment, sexual assault or stalking.
(3) Undue hardship means a significant difficulty and
expense to an employer’s business and includes consideration of the size of the
employer’s business. Other factors to consider in determining whether granting
a safety accommodation will cause an undue hardship on an employer’s business
include, but are not limited to:
(a) The safety accommodation requested and the relative
cost to an employer’s business;
(b) The overall financial resources of the employer’s
facility or facilities, the number of persons employed at the facility and the
effect on expenses and resources or other impacts on the operation of the
facility if the safety accommodation were granted;
(c) The overall financial resources of the employer,
the overall size of the business of the employer with respect to the number of
its employees and the number, type and location of the employer’s facilities;
(d) The type of operations conducted by the employer,
including the composition, structure and functions of the employer’s workforce.
(4) Prior to making a reasonable safety accommodation,
an employer may require an individual to provide certification that the
individual is a victim of domestic violence, harassment, sexual assault, or
stalking.
(a) An individual must provide a certification
permitted under OAR 839-009-0362(5) within a reasonable time after receiving
the employer’s request for certification.
(b) Any of the following constitutes sufficient
certification:
(A) A copy of a police report indicating that the
individual was or is a victim of domestic violence, harassment, sexual assault
or stalking.
(B) A copy of a protective order or other evidence from
a court or attorney that the individual appeared in or is preparing for a civil
or criminal proceeding related to domestic violence, harassment, sexual assault
or stalking.
(C) Documentation from an attorney, law enforcement
officer, health care professional, licensed mental health professional or
counselor, member of the clergy or victim services provider that the individual
was or is undergoing treatment or counseling, obtaining services or relocating
as a result of domestic violence, harassment, sexual assault or stalking.
(D) All records and information kept by an employer
regarding a reasonable safety accommodation made for an individual are
confidential and may not be released without the express permission of the
individual, unless otherwise required by law.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.290,
OL 2011 c. 687
Hist.: BLI 9-2010, f. & cert.
ef. 2-24-10; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
839-009-0325
Purpose and Scope
(1) The Civil Rights Division of the Bureau of Labor
and Industries (“division”) enforces ORS 659A.270 to 659A.285 which require
leave for victims of domestic violence, harassment, sexual assault or stalking.
These rules implement and interpret ORS 659A.270 to 659A285.
(2) The division enforces ORS 659A.290, requiring
employers to provide safety accommodation for, and prohibiting discrimination
or retaliation against, victims of domestic violence, harassment, sexual
assault or stalking. The rules implementing and interpreting ORS 659A.290 are
found at OAR 839-005-0160 and 839-005-0170.
(3) ORS 659A.190 to 659A.198 provide for leave for
crime victims to attend criminal proceedings. The division does not enforce ORS
659A.190 to 659A.198.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.270 -
659A.285, OL 2011 c. 687
Hist.: BLI 32-2007, f. 12-27-07,
cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f.
12-30-11, cert. ef. 1-1-12
839-009-0330
Prohibited Discrimination
It is an unlawful employment practice for a covered
employer to deny leave under ORS 659A.270 to 659A.285 for victims of domestic
violence, harassment, sexual assault or stalking to an eligible employee or to
discharge, threaten to discharge, demote, suspend or in any manner discriminate
or retaliate against an employee with regard to promotion, compensation or
other terms, conditions or privileges of employment because the employee
inquires about, applies for, or takes leave as provided under ORS 659A.270 to
659A.285 for victims of domestic violence, harassment, sexual assault or
stalking.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.270
– 659A.285, OL 2011 c. 687
Hist.: BLI 32-2007, f. 12-27-07,
cert. ef. 1-1-08; BLI 8-2011, f. 10-13-11, cert. ef. 10-14-11; BLI 14-2011, f.
12-30-11, cert. ef. 1-1-12
839-009-0340
Definitions
(1) “Covered employer” means an employer who employs 6
or more individuals in the state of Oregon for each working day during each of
20 or more calendar workweeks in the calendar year in which an eligible
employee takes leave under ORS 659A.270 to 659A.285 for victims of domestic
violence, harassment, sexual assault or stalking or in the calendar year
immediately preceding the year in which an eligible employee takes the leave.
(2) “Eligible employee” means an employee who is
employed in the state of Oregon on the date leave under ORS 659A.270 to
659A.285 for victims of domestic violence, harassment, sexual assault or
stalking begins; and
(a) Worked an average of more than 25 hours per week
for a covered employer for at least 180 calendar days immediately preceding the
date the employee takes the leave.
(A) In determining that an employee has been employed
for the preceding 180 calendar days, the employer must count the number of days
an employee is maintained on the payroll, including all time paid or unpaid. If
an employee continues to be employed by a successor in interest to the original
employer, the number of days worked are counted as continuous employment by a
single employer.
(B) In determining more than 25 hours average per week,
the employer must count actual hours worked using guidelines set out pursuant
to the regulations under the Fair Labor Standards Act (See 29 CFR Part 785).
(C) For the purpose of qualifying as an eligible
employee, the employee need not perform work solely in the state of Oregon.
(D) Eligibility of employees reemployed following a
period of uniformed service:
(i) The federal Uniformed Services Employment and
Reemployment Act, 38 USC 43 (USERRA) provides that an employee reemployed
following a period of uniformed service is entitled to the seniority and
seniority-based rights and benefits that the employee had on the date the
uniformed service began, plus any seniority and seniority-based rights and
benefits that the employee would have attained if the employee had remained
continuously employed. Federal Department of Labor regulation 20 CFR 1002.210
provides that in determining entitlement to seniority and seniority-based
rights and benefits, the period of absence from employment due to or
necessitated by uniformed service is not considered a break in employment. The
rights and benefits protected by USERRA upon reemployment include those
provided by the employer and those required by statute. Under USERRA, a
reemployed service member would be eligible for leave under ORS 659A.270 to
659A.285 for victims of domestic violence, harassment, sexual assault or
stalking if the number of days and the number of hours of work for which the
service member was employed by the civilian employer, together with the number
of days and number of hours of work for which the service member would have
been employed by the civilian employer during the period of uniformed service,
meet the eligibility requirements of these rules. In the event that a service
member is denied leave under ORS 659A.270 to 659A.285 for victims of domestic
violence, harassment, sexual assault or stalking for failing to satisfy the
days and hours of work requirement due to absence from employment necessitated
by uniformed service, the service member may have a cause of action under
USERRA but not under these statutes.
(ii) ORS 659A.082–659A.088 provides that an
employee reemployed following a period of uniformed service is entitled to the
seniority and seniority-based rights and benefits that the employee had on the
date the uniformed service began, plus any seniority and seniority-based rights
and benefits that the employee would have attained if the employee had remained
continuously employed. In determining entitlement to seniority and
seniority-based rights and benefits, the period of absence from employment due
to or necessitated by uniformed service is not considered a break in
employment. If a reemployed service member was eligible for leave under ORS
659A.270 to 659A.285 for victims of domestic violence, harassment, sexual
assault or stalking prior to the date uniformed service began, the leave
eligibility requirements are considered met.
(b) Is a victim of domestic violence, harassment,
sexual assault or stalking or is the parent or guardian of a minor child or
dependent who is the victim of domestic violence, harassment, sexual assault or
stalking.
(3) “Dependent” means an adult dependent child
substantially limited by a physical or mental impairment as defined by ORS
659A.104(1)(a), (3), and (4) or any adult of whom the employee has
guardianship.
(4) “Foster child” means a child, not adopted, but
being reared as a result of legal process, by a person other than the child’s
natural parent.
(5) “Health care professional” means a physician or
other health care practitioner who is licensed, certified or otherwise
authorized by law to provide health care services.
(6) “Immediate family” means spouse, domestic partner,
father, mother, sibling, child, stepchild, grandparent, or any person who had
the same primary residence as the victim at the time of the domestic violence,
harassment, sexual assault or stalking.
(7) “In loco parentis” means in the place of a parent,
having financial or day-to-day responsibility for the care of a child. A legal
or biological relationship is not required.
(8) “Intermittent leave” means leave taken in multiple
blocks of time and/or requiring an altered or reduced work schedule.
(9) “Law enforcement officer” means all police,
corrections, and parole and probation officers who are included in the Public
Safety Standards and Training Act as described in ORS 181.610 and 181.651.
(10) “Minor child,” means a biological, adopted, foster
or stepchild, or a child with whom the employee is or was in a relationship of
in loco parentis. It also includes the biological, adopted, foster or stepchild
of an employee’s registered domestic partner. The minor child must be under the
age of 18.
(11) “Parent or guardian” means a custodial parent,
non-custodial parent, adoptive parent, foster parent, biological parent or an
employee who is or was in relationship of in loco parentis with a minor child
or a dependent with whom the employee is or was in a relationship of in loco parentis.
(12) “Protective order” means an order authorized by
ORS 30.866, 107.095(1)(c), 107.700 to 107.735, 124.005 to 124.040 or 163.730 to
163.750 or any other order that restrains an individual from contact with an
eligible employee or the employee’s minor child or dependent.
(13) “Reasonable leave” means any amount of leave that
does not cause an undue hardship on a covered employer’s business.
(14) “Victim of domestic violence” means:
(a) An individual who has been threatened with abuse or
who is a victim of abuse, as defined in ORS 107.705; or
(b) Any other person who has suffered financial,
social, psychological or physical harm as a result of domestic violence
committed against the victim as defined in (a), including a member of the
victim’s immediate family.
(c) In no event will the alleged perpetrator of the
domestic violence be considered a victim for the purposes of these rules.
(15) “Victim of harassment” means an individual against
whom harassment has been committed as described in Oregon’s criminal code at
ORS 166.065.
(16) “Victims services provider” means a
prosecutor-based victim assistance program or a nonprofit program offering
safety planning, counseling, support or advocacy related to domestic violence,
harassment, sexual assault or stalking.
(17) “Victim of sexual assault” means:
(a) An individual against whom a sexual offense has
been threatened or committed as described in ORS 163.305 to 163.467 or 163.525;
or
(b) Any other person who has suffered financial,
social, psychological or physical harm as a result of a sexual assault
committed against the victim as defined in (a), including a member of the
victim’s immediate family.
(c) In no event will the alleged perpetrator of the
sexual offense be considered a victim for the purposes of these rules.
(18) “Victim of stalking” means:
(a) An individual against whom stalking has been
threatened or committed as described in ORS 163.732; or
(b) Any other person who has suffered financial,
social, psychological or physical harm as a result of a stalking committed
against the victim as defined in (a), including a member of the victim’s
immediate family; or
(c) An individual who has obtained a court’s stalking
protective order or a temporary court’s stalking protective order under ORS 30.866.
(c) In no event will the alleged perpetrator of the
stalking be considered a victim for the purposes of these rules.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.270 -
659A.285, OL 2011 c. 687
Hist.: BLI 32-2007, f. 12-27-07,
cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f.
10-13-11, cert. ef. 10-14-11; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
839-009-0345
Purposes for Taking Leave
A covered employer must allow an eligible employee to
take reasonable leave from employment for any of the following purposes:
(1) To seek legal or law enforcement assistance or
remedies to ensure the health and safety of the eligible employee or the
eligible employee’s minor child or dependent, including preparing for and
participating in protective order proceedings or other civil or criminal legal
proceedings related to domestic violence, harassment, sexual assault or
stalking.
(2) To seek medical treatment for or to recover from
injuries caused by domestic violence or harassment or sexual assault or
stalking of the eligible employee or the eligible employee’s minor child or
dependent.
(3) To obtain, or to assist the eligible employee’s
minor child or dependent in obtaining counseling from a licensed mental health
professional related to an experience of domestic violence, harassment, sexual
assault or stalking.
(4) To obtain services from a victim services provider
for the eligible employee or the eligible employee’s minor child or dependent.
(5) To relocate or take steps to secure an existing
home to ensure the health and safety of the eligible employee or the eligible
employee’s minor child or dependent. Relocate includes:
(a) Transition periods spent moving the eligible
employee or the eligible employee’s minor child or dependent from one home or
facility to another, including but not limited to time to pack and make
security or other arrangements for such transitions related to domestic
violence, harassment, sexual assault or stalking;
(b) Transportation or other assistance required for an
eligible employee or the eligible employee’s minor child or dependent related
to the domestic violence, harassment, sexual assault or stalking.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.270 -
659A.285, OL 2011 c. 687
Hist.: BLI 32-2007, f. 12-27-07,
cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f.
12-30-11, cert. ef. 1-1-12
839-009-0355
Undue Hardship
Undue Hardship means a significant difficulty and
expense to a covered employer’s business and includes consideration of the size
of the covered employer’s business and the covered employer’s critical need for
the eligible employee. Other factors to consider in determining whether
granting leave under ORS 659A.270 to 659A.285 for victims of domestic violence,
harassment, sexual assault or stalking will cause an undue hardship on a
covered employer’s business include, but are not limited to:
(1) The length of leave under ORS 659A.270 to 659A.285
for victims of domestic violence, harassment, sexual assault or stalking
requested and the relative cost to a covered employer’s business;
(2) The overall financial resources of the covered
employer’s facility or facilities, the number of persons employed at the
facility and the effect on expenses and resources or other impacts on the
operation of the facility if the leave under ORS 659A.270 to 659A.285 for
victims of domestic violence, harassment, sexual assault or stalking were
granted;
(3) The overall financial resources of the covered
employer, the overall size of the business of the covered employer with respect
to the number of its employees and the number, type and location of the covered
employer’s facilities;
(4) The type of operations conducted by the covered
employer, including the composition, structure and functions of the covered
employer’s workforce.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.270 -
659A.285, OL 2011 c. 687
Hist.: BLI 32-2007, f. 12-27-07,
cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f.
12-30-11, cert. ef. 1-1-12
839-009-0360
Intermittent Leave and Alternate
Duty
(1) An eligible employee may take leave under ORS
659A.270 to 659A.285 for victims of domestic violence, harassment, sexual
assault or stalking in multiple blocks of time and/or requiring an altered or
reduced work schedule.
(2) A covered employer may transfer an employee on
intermittent leave or a reduced work schedule into an alternate position with the
same or different duties to accommodate the leave, provided the following
exist:
(a) The eligible employee accepts the transfer position
voluntarily and without coercion;
(b) The transfer is temporary, lasts no longer than
necessary to accommodate the leave and has equivalent pay and benefits;
(c) Transfer to an alternate position is used only when
there is no other reasonable option available that would allow the eligible
employee to use intermittent leave or reduced work schedule; and
(d) The transfer is not used to discourage the eligible
employee from taking intermittent or reduced work schedule leave, or to create
a hardship for the eligible employee.
(3) An eligible employee transferred to an alternate
position for the purpose of a reduced work schedule under section (2)(a)
through (d) of this rule must be returned to the eligible employee’s former
position when the eligible employee notifies the employer that the eligible
employee is ready to return to the former position.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.270 -
659A.285, OL 2011 c. 687
Hist.: BLI 32-2007, f. 12-27-07,
cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f.
12-30-11, cert. ef. 1-1-12
839-009-0362
Notice by Employee
(1) An eligible employee seeking leave under ORS
659A.270 to 659A.285 for victims of domestic violence, harassment, sexual
assault or stalking will give the covered employer reasonable advance notice of
the employee’s intention to take leave unless giving the advance notice is not
feasible.
(2) When taking leave in an unanticipated or emergency
situation, an eligible employee must give oral or written notice as soon as is
practicable. This notice may be given by any other person on behalf of an
eligible employee taking unanticipated leave.
(3) An eligible employee able to give advance notice of
the need to take leave must follow the covered employer’s known, reasonable and
customary procedures for requesting any kind of leave;
(4) The covered employer may require the eligible
employee to provide certification that:
(a) The eligible employee or the eligible employee’s
minor child or dependent is a victim of domestic violence, harassment, sexual
assault or stalking as defined in OAR 839-009-0340(14), (15), (16) and (17);
and
(b) The leave taken is for one of the purposes
identified in OAR 839-009-0345.
(5) Any of the following constitutes sufficient
certification:
(a) A copy of a police report indicating that the
eligible employee or the eligible employee’s minor child or dependent was a
victim or alleged victim of domestic violence, harassment, sexual assault or
stalking as defined in OAR 839-009-0340(14), (15), (16) and (17); or
(b) A copy of a protective order or other evidence from
a court or attorney that the eligible employee appeared in or is preparing for
a civil or criminal proceeding related to domestic violence, harassment, sexual
assault or stalking as defined in OAR 839-009-0340(14), (15), (16) and (17); or
(c) Documentation from an attorney, law enforcement
officer, health care professional, licensed mental health professional or
counselor, member of the clergy or victim services provider that the eligible
employee or the eligible employee’s minor child or dependent is undergoing
treatment or counseling, obtaining services or relocating as a result of
domestic violence, harassment, sexual assault or stalking as defined in OAR
839-009-0340(14), (15), (16) and (17).
(6) Consistent with ORS 659A.306, the covered employer
must pay the cost of any medical verification related to OAR 839-009-0345(1)(b)
and (c) not covered by insurance or other benefit plan.
(7) The eligible employee will provide the
certification within a reasonable time after receiving the covered employer’s
written request for the certification.
(8) The covered employer may provisionally designate an
absence as leave under ORS 659A.270 to 659A.285 for victims of domestic
violence, harassment, sexual assault or stalking until sufficient certification
is received, if requested, to make a determination.
(9) An eligible employee on leave who needs to take
more leave than originally authorized should give the covered employer notice
as soon as is practicable prior to the end of the authorized leave, following
the covered employer’s known, reasonable and customary procedures for
requesting any kind of leave. However, when an authorized period of leave has
ended and an eligible employee does not return to work, a covered employer
having reason to believe the continuing absence may qualify as leave under ORS
659A.270 to 659A.285 for victims of domestic violence, harassment, sexual
assault or stalking may request additional information. If the covered employer
requests additional information the eligible employee will provide the requested
information as soon as is practicable. The covered employer may not treat a
continuing absence as unauthorized unless requested information is not provided
or does not support leave qualification.
(10) All records and information kept by a covered
employer regarding an eligible employee’s leave under ORS 659A.270 to 659A.285
for victims of domestic violence, harassment, sexual assault or stalking,
including the fact that the eligible employee has requested or obtained such
leave, are confidential and may not be released without the express permission
of the eligible employee, unless otherwise required by law.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.270 -
659A.285, OL 2011 c. 687
Hist.: BLI 32-2007, f. 12-27-07,
cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 14-2011, f.
12-30-11, cert. ef. 1-1-12
839-009-0365
Enforcement and Denial of leave
under ORS 659A.270 to 659A.285 for Victims of Domestic Violence, Harassment,
Sexual Assault or Stalking
(1) A covered employer’s duties and obligations under
ORS 659A.270 to 659A.285 extend to a successor employer as defined in 29 CFR
825.107.
(2) It is an unlawful employment practice for a covered
employer to count leave under ORS 659A.270 to 659A.285 against an employee in
determining the employee’s compliance with attendance policies or to count such
leave against an employee when determining eligibility for bonuses based on
attendance. An employee is entitled to continue eligibility for a bonus based
on attendance upon return from leave under ORS 659A.270 to 659A.285 and may not
be disqualified from the bonus as a result of taking leave.
(3) Pursuant to ORS 659A.030(1)(g), it is an unlawful
employment practice for any person, whether an employer or an employee, to aid,
abet, incite, compel or coerce the doing of any of the acts in violation of ORS
659A.270 to 659A.285 or to attempt to do so.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.270 -
659A.285, OL 2011 c. 687
Hist.: BLI 32-2007, f. 12-27-07,
cert. ef. 1-1-08; BLI 10-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f.
10-13-11, cert. ef. 10-14-11; BLI 14-2011, f. 12-30-11, cert. ef. 1-1-12
Rule
Caption: New and amended rule language to
conform to and implement statutes relating to veterans’ employment.
Adm.
Order No.: BLI 15-2011
Filed with Sec. of
State: 12-30-2011
Certified to be
Effective: 1-1-12
Notice Publication
Date: 10-1-2011
Rules Amended: 839-006-0440, 839-006-0450, 839-006-0455,
839-006-0470, 839-006-0480
Subject: The new rules would implement HB 2241, which expands
the definition of “uniformed service” for purpose of employment protections to
match federal definitions.
The new rules
would implement HB 3207, which requires public employers to interview each
veteran who applies for a civil service position or eligibility list and who
has obtained through military
education or experience skills that substantially relate to the civil service
position.
The new rules
would implement SB 72, which clarifies the
definition of “disabled veteran” for purposes of statutes relating to veterans’
preference in public employment.
The new rules
would implement SB 277, which clarifies that a veteran or disabled veteran who
applies for a vacant civil position or who seeks promotion to a civil service
position with a higher maximum salary rate is entitled to veterans’ preference.
Rules Coordinator: Marcia Ohlemiller—(971) 673-0784
839-006-0440
Definitions
(1) “Active duty” does not include attendance at a
school under military orders, except schooling incident to an active enlistment
or a regular tour of duty, or normal military training as a reserve officer or
member of an organized reserve or a National Guard unit.
(2) “Armed Forces” means the United States Army, Navy,
Marine Corps, Air Force, and Coast Guard, including the reserve components
thereof. (Title 38 USC Part I Chapter 1 Section 101). Reserve components mean:
(a) The Army Reserve;
(b) The Navy Reserve;
(c) The Marine Corps Reserve;
(d) The Air force Reserve;
(e) The Coast Guard Reserve;
(f) The Army National Guard of the United States; and
(g) The Air National Guard of the United States.
(3) “Civil service position” means any position for
which a hiring or promotion decision is made or required to be made based on
the results of a merit based, competitive process that includes, but is not
limited to, consideration of an applicant’s or employee’s relative ability, knowledge,
experience and other skills. A “civil service” position need not be labeled a
“civil service position.”
(4) “Combat zone” means an area designated by the
President of the United States by executive order in which, on the dates
designated by executive order, the Armed Forces of the United States are or
have engaged in combat.
(5) “Disabled veteran” means a person who has a
disability rating from the United States Department of Veterans Affairs, a
person whose discharge or release from active duty was for a disability
incurred or aggravated in the line of duty or a person who was awarded the
Purple Heart for wounds received in combat.
(6) “Eligibility list” means a list of ranked eligible
candidates for a civil service position who have become eligible for the
position through a test or series of tests and who will be considered for the
civil service position in ranked order. Rankings of eligible candidates
identified as tiers, bands or other names function as eligibility lists for
purposes of these rules.
(7) “Military leave” means any period of time for which
a person is absent from a permanent civil service position for the performance
of active duty in the Armed Forces of the United States.
(8) “Promotion” means any position with a higher maximum
salary rate.
(9) “Public employer” includes a public body as defined
in ORS 174.109, and any person authorized to act on behalf of the public body,
with respect to control, management or supervision of any employee. “Public
employer” includes but is not limited to:
(a) Employers in local governments;
(b) Employers in a public corporation created under a
statute of this state and specifically designated as a public corporation; and
(c) Employers in any public body that is created by
statute, ordinance or resolution that is not part of state government or local
government.
(10) “Transferable skill” means a skill that a veteran
has obtained through military education or experience that substantially
relates, directly or indirectly, to the civil service position for which the
veteran is applying.
(11) “Veteran” means a person who:
(a) Served on active duty with the Armed Forces of the
United States:
(A) For a period of more than 90 consecutive days
beginning on or before January 31, 1955, and was discharged or released under
honorable conditions;
(B) For a period of more than 178 consecutive days
beginning after January 31, 1955, and was discharged or released from active
duty under honorable conditions;
(C) For 178 days or less and was discharged or released
from active duty under honorable conditions because of a service-connected
disability;
(D) For 178 days or less and was discharged or released
from active duty under honorable conditions and has a disability rating from
the United States Department of Veterans Affairs; or
(E) For at least one day in a combat zone and was
discharged or released from active duty under honorable conditions;
(b) Received a combat or campaign ribbon or an
expeditionary medal for service in the Armed Forces of the United States and
was discharged or released from active duty under honorable conditions; or
(c) Is receiving a nonservice-connected pension from
the United States Department of Veterans Affairs.
(d) For questions regarding military discharge, consult
the Oregon Department of Veterans’ Affairs website at
<http://www.oregon.gov/ODVA/docs/PDFs/Criminal_Justice_Portal/Military_discharge.pdf?ga=t>.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.225,
408.230, 408.235, OL 2011, Ch 484, OL 2011, Ch 29
Hist.: BLI 37-2008, f. 11-6-08,
cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2011, f.
12-30-11, cert. ef. 1-1-12
839-006-0450
Applying the Employment Preference
(1) A public employer shall grant a preference to a
veteran or disabled veteran who applies for a vacant civil service position or
who seeks promotion to a civil service position with a higher maximum salary
rate and who:
(a) Successfully completes an initial application
screening or an application examination for the position; or
(b) Successfully completes a civil service test the
employer administers to establish eligibility for the position; and
(c) Meets the minimum qualifications and any special
qualifications for the position.
(2) At each stage of the application process a public
employer will grant a preference to a veteran or disabled veteran who
successfully completes an initial application screening or an application
examination or a civil service test the public employer administers to
establish eligibility for a vacant civil service position.
(3) For an initial application screening used to
develop a list of persons for interviews, the public employer will add five
preference points to a veteran’s score and ten preference points to a disabled
veteran’s score.
(4) For an application examination, given after the
initial application screening, that results in a score, the public employer
will add five preference points to a veteran’s and ten preference points to a
disabled veteran’s total combined examination score without allocating the
points to any single feature or part of the examination.
(5) If a public employer uses an application
examination that consists of an evaluation method of ranking an applicant that
does not result in a score, the public employer will devise and apply methods
by which the public employer gives special consideration in the public
employer’s hiring decision to veterans and disabled veterans.
(6) When an interview is a component of the selection
process for a civil service position or for an eligibility list for a civil
service position, a public employer shall interview each veteran:
(a) Whom the public employer determines meets the
minimum qualifications and special qualifications for the civil service
position or eligibility list; and
(b) Who submits application materials that the public
employer determines show sufficient evidence that the veteran has the
transferable skills required and requested by the public employer for the civil
service position or eligibility list.
(7) A public employer is not required to comply with
subsection (6) of this rule if the employer’s practice is to generate an
eligibility list without conducting interviews of possible candidates.
(8) A public employer may consult with the Oregon
Military Department and the Department of Veterans’ Affairs to determine
whether certain military education or experience produces a transferable skill.
To evaluate a veteran’s transferable skills from a transcript of military
training, a public employer may consult the American Council on Education’s
website, “A Guide to Educational Experiences in the Military,” at
<http://militaryguides.acenet.edu/CourseSearch.asp>.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.230,
408.235, OL 2011, Ch 484
Hist.: BLI 37-2008, f. 11-6-08,
cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2011, f.
12-30-11, cert. ef. 1-1-12
839-006-0455
Employment Preference for
Promotions
A public employer will grant a preference to a person
seeking promotion in the manner described at OAR 839-006-0450.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.225,
408.230, 408.235, OL 2011, Ch 484
Hist.: BLI 37-2008, f. 11-6-08,
cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 8-2011, f.
10-13-11, cert. ef. 10-14-11; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12
839-006-0470
Enforcement
The Civil Rights Division of the Bureau of Labor and
Industries enforces the provisions of ORS 408.230. A person claiming a
violation of 408.230 may file a verified written complaint with the Civil
Rights Division in accordance with 659A.820.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 408.230,
408.235, 659A.820, OL 2011, Ch 484
Hist.: BLI 37-2008, f. 11-6-08,
cert. ef. 11-10-08; BLI 8-2010, f. & cert. ef. 2-24-10; BLI 15-2011, f.
12-30-11, cert. ef. 1-1-12
839-006-0480
Discrimination Based on Uniformed
Service
(1) For purposes of this rule:
(a) “Service” means the performance of duty on a
voluntary or involuntary basis in a uniformed service that may involve active
duty, active duty for training, initial active duty for training, inactive duty
for training, full time duty in the National Guard, funeral honors duty or an
examination to determine fitness for service in a uniformed service; and
(b) “Uniformed service” means the Armed Forces of the
United States, the Army National Guard and the Air National Guard when engaged
in active duty for training, inactive duty training or full-time National Guard
duty, the commissioned corps of the United States Public Health Service and any
other category of persons designated by the President of the United States in a
time of war or national emergency.
(2) It is an unlawful employment practice for an
employer to discriminate against a person because of the person’s service in a
uniformed service by:
(a) Denying a public officer or public employee the
status or rights provided by ORS 408.240 to 408.240 and 408.290, if the
employer is a public body.
(b) Discharging, expelling, disciplining, threatening
or otherwise retaliating against the person for exercising or attempting to
exercise the status or rights provided by this section.
(c) Denying any of the following because a person is a
member of, applies to be a member of, performs, has performed, applies to
perform or has an obligation to perform service in a uniformed service:
(A) Initial employment;
(B) Reemployment following a leave from employment
taken by reason of service in a uniformed service;
(C) Retention in employment;
(D) Promotion; or
(E) Any other term, condition or privilege of
employment, including but not limited to compensation.
(3) An employer does not commit an unlawful employment
practice under this rule if the employer acted based on a bona fide
occupational requirement reasonably necessary to the normal operation of the
employer’s business and the employer’s actions could not be avoided by making a
reasonable accommodation of the person’s service in a uniformed service.
(4) The federal Uniformed Services Employment and
Reemployment Act, 38 USC 43 (USERRA) provides that an employee reemployed
following a period of uniformed service is entitled to the seniority and
seniority-based rights and benefits that the employee had on the date the
uniformed service began, plus any seniority and seniority-based rights and
benefits that the employee would have attained if the employee had remained
continuously employed. Federal Department of Labor regulation 20 CFR 1002.210
provides that in determining entitlement to seniority and seniority-based
rights and benefits, the period of absence from employment due to or
necessitated by uniformed service is not considered a break in employment. The
rights and benefits protected by USERRA upon reemployment include those
provided by the employer and those required by statute.
(5) To the extent possible, this rule shall be
construed in a manner that is consistent with similar provisions of the federal
Uniformed Services Employment and Reemployment Rights Act of 1994, 38 USC 43.
(6) Protections for spouses and domestic partners of
uniformed service members may be found under the Oregon Family Military Leave
Act, ORS 659A.090 to 659A.099 and OAR 839-009-0370 - 839-009-0460.
Stat. Auth.: ORS 659A.805
Stats. Implemented: ORS 659A.082,
OL 2011, Ch 18
Hist.: BLI 8-2010, f. & cert.
ef. 2-24-10; BLI 15-2011, f. 12-30-11, cert. ef. 1-1-12
Rule
Caption: Amendments clarifying filing
deadlines, default relief and ex parte definition.
Adm.
Order No.: BLI 16-2011
Filed with Sec. of
State: 12-30-2011
Certified to be
Effective: 1-1-12
Notice Publication
Date: 11-1-2011
Rules Amended: 839-050-0040, 839-050-0310, 839-050-0340
Subject: The amendments add a reference to state furlough days
to the rule on filing documents, clarify the relief from default rule and add
the definition of ex parte to the ex parte rule.
Rules Coordinator: Marcia Ohlemiller—(971) 673-0784
839-050-0040
Filing of Documents with the
Hearings Unit; Calculation of Time and Filing Dates
(1) Except as modified by statute or enlarged by these
rules, by order of the commissioner, or by decision of the administrative law
judge, a document is filed with the Hearings Unit either on the date the
Hearings Unit receives the document, or on the date postmarked on the properly
addressed document, whichever is earlier.
(2) Documents are not to be filed by facsimile
transmission except with the prior approval of the administrative law judge.
The administrative law judge may require the participant filing a document by
facsimile transmission to also send the Hearings Unit a copy of the document by
mail or personal delivery and may require the participant to serve the other participants
with the document by facsimile transmission in addition to mail or personal
delivery.
(3) The computation of any period of time will not
include the day from which the designated period begins to run. The computation
will include the last day of this period unless it is a Saturday, Sunday,
furlough day officially recognized by the State of Oregon or holiday officially
recognized by the State of Oregon or the federal government. If the last day of
the time period is a Saturday, Sunday, furlough day or holiday, the period will
run until 5 p.m. of the next day that is not a Saturday, Sunday, furlough day
or holiday.
(4) All time periods described in these rules are
measured in calendar days.
Stat. Auth.: ORS 183 &
651.060(4)
Stats. Implemented: ORS 279C.860,
279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 &
659A.850
Hist.: BL 8-1986, f. & ef.
9-2-86; BL 10-1988, f. & cert. ef. 6-16-88; BL 4-1993(Temp), f. 4-7-93,
cert. ef. 4-12-93; BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from
839-030-0035; BL 12-1996, f. & cert. ef. 12-10-96; BLI 2-2000, f. &
cert. ef. 1-27-00; BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04; BLI 16-2011, f.
12-30-11, cert. ef. 1-1-12
839-050-0310
Ex Parte Communications
(1) An ex parte communication is an oral or written
communication to an agency decision maker or the presiding officer not made in
the presence of all parties to the hearing, concerning a fact in issue in the
proceeding, but does not include communication from agency staff or counsel
about facts in the record.
(2) The administrative law judge will place on the
record a statement of the substance of any ex parte communication on a fact in
issue made to the administrative law judge while the proceeding is pending.
Participants will be given notice of such ex parte communication and of their
right to rebut the substance of the ex parte communication on the record.
Stat. Auth.: ORS 183 &
651.060(4)
Stats. Implemented: ORS 279C.860,
279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 &
659A.850
Hist.: BL 8-1986, f. & ef.
9-2-86; BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93; BL 8-1993, f. &
cert. ef. 9-3-93, Renumbered from 839-030-0101; BL 12-1996, f. & cert. ef.
12-10-96; BLI 2-2000, f. & cert. ef. 1-27-00; BLI 15-2004, f. 11-1-04,
cert. ef. 11-3-04; BLI 16-2011, f. 12-30-11, cert. ef. 1-1-12
839-050-0340
Relief from Default
(1) A party seeking relief from default must file a
written request for relief from default within 10 days after any of the
following:
(a) A Final Order by default has been issued by the
administrator of the Wage and Hour Division;
(b) A notice of default has been issued; or
(c) A party has failed to appear at a hearing.
(2) Relief from default may be granted when the party’s
written request for relief from default shows good cause for the party’s action
or inaction that caused the default. The party’s request should state any facts
supporting the party’s claim of good cause and include any documents that
support the party’s claim.
(3) The computation of the 10-day deadline for filing
begins on the day after one of the events listed in (1)(a), (b) or (c) of this
rule occurs. If the 10th day is a Saturday, Sunday, furlough day officially
recognized by the State of Oregon, or holiday officially recognized by the
State of Oregon or the federal government, the 10-day deadline will expire at 5
p.m. of the next day that is not a Saturday, Sunday, furlough day or holiday. A
request for relief from default is filed on the date that it is postmarked or
received, whichever is earlier.
(4) A request for relief from default made after a
Final Order by default has been issued by the administrator of the Wage and
Hour Division must be addressed to the administrator of the Wage and Hour Division
and ruled upon by an administrative law judge. When the administrator of the
Wage and Hour Division receives a request for relief from default, the
administrator will forward that request to the Hearings Unit for assignment to
an administrative law judge, along with a copy of the Final Order by default.
The administrator may also file a response to the request for relief from
default. Any response the administrator files will be served on the requesting
party.
(5) A request for relief from default made after a
notice of default has been issued or after the party has failed to appear at a
hearing must be addressed to and ruled upon by the administrative law judge.
Stat. Auth.: ORS 183 &
651.060(4)
Stats. Implemented: ORS 279C.860,
279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 &
659A.850
Hist.: BL 8-1986, f. & ef.
9-2-86; BL 4-1987, f. 2-11-87, ef. 2-13-87; BL 10-1988, f. & cert. ef.
6-16-88; BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93; BL 8-1993, f. &
cert. ef. 9-3-93, Renumbered from 839-030-0190; BL 12-1996, f. & cert. ef.
12-10-96; BLI 2-2000, f. & cert. ef. 1-27-00; BLI 15-2004, f. 11-1-04,
cert. ef. 11-3-04; BLI 16-2011, f. 12-30-11, cert. ef. 1-1-12
Rule
Caption: Correct grammar and conform
administrative rules for registered apprenticeship programs to federal
requirements.
Adm.
Order No.: BLI 1-2012
Filed with Sec. of
State: 1-3-2012
Certified to be
Effective: 1-3-12
Notice Publication
Date: 12-1-2011
Rules Amended: 839-011-0020, 839-011-0050, 839-011-0051,
839-011-0060, 839-011-0070, 839-011-0072, 839-011-0074, 839-011-0082,
839-011-0084, 839-011-0088, 839-011-0090, 839-011-0140, 839-011-0141,
839-011-0142, 839-011-0143, 839-011-0145, 839-011-0162, 839-011-0175,
839-011-0265, 839-011-0270, 839-011-0290, 839-011-0310, 839-011-0320,
839-011-0334
Subject: Pursuant to ORS 660.010–660.210, the Oregon
Bureau of Labor and Industries (BOLI) administers registered apprenticeship
programs through its Apprenticeship and Training Division (ATD). States that
administer registered apprenticeship programs do so under an agreement with the
United States Department of Labor, Employment and Training Administration
(USDOL, ETA). Recent changes in federal apprenticeship regulations have
necessitated changes to ORS 660.010–660.210. The proposed amendments
bring Oregon into conformance with federal requirements. Corrections in grammar
and usage were also incorporated into these amendments. The
proposed amendment harmonizes definitions in these rules with
federal definitions and requirements
Rules Coordinator: Marcia Ohlemiller—(971) 673-0784
839-011-0020
Date and Location of Council
Meetings
The Council shall hold at least four regular public
meetings each year as required by ORS 660.120(2)(g). The date of the next
regular Council meeting will be designated by the Chair and announced at each
Council meeting. Meetings may be scheduled at any location within the state of
Oregon selected by the Chair.
Stat. Auth.: ORS 660
Stats. Implemented: ORS
660.120(2)(g)
Hist.: BL 4-1985, f. & ef.
8-8-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 18-2010, f. 7-29-10, cert.
ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0050
Certificate of Meritorious Service
Upon the recommendation of a local committee or the
motion of a Council member, the Council may award a certificate of meritorious
service to any individual who has devoted a minimum of three years of service
to a registered apprenticeship program.
Stat. Auth.: ORS 660
Stats. Implemented: ORS 660.120
Hist.: BL 4-1985, f. & ef.
8-8-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef.
4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert.
ef. 1-3-12
839-011-0051
Delegation of Authority by Council
(1) The Chair and Director, with the approval of the
Chair, may act on behalf of the Council for federal purposes and in all cases
where immediate action is deemed necessary by the Chair and Director. All such
actions shall be placed on the agenda for the next regular Council meeting for
Council approval or ratification.
(2) All matters pertaining to the approval or
deregistration of apprenticeship committees, standards, program sponsors,
employers, training agents or apprentices must be ratified by the Council at
its next meeting.
(3) Any standards referred back to local committees by
the Council for revision may be approved by the Director when revised according
to Council action.
Stat. Auth.: ORS 660.120(3)
Stats. Implemented: ORS 660.120,
660.210 & 660.170
Hist.: BLI 18-2010, f. 7-29-10,
cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12;
BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0060
Public Records Request
(1) The Bureau will make available any record requested
by any person pursuant to ORS 192.420, provided that the request is in writing
and the record requested is not exempt from disclosure under the provisions of
ORS chapter 192 or other applicable law. A reasonable time shall be allowed for
the Bureau to locate and retrieve information requested.
(2) The Bureau may charge a fee reasonably calculated
to reimburse the Bureau for costs of providing and conveying copies of public
records. When the fee is estimated to exceed $25.00 per public records request,
the Bureau will provide the requestor with written notice of the estimated
amount of the fee and require written confirmation that the requestor intends
to proceed with the request.
(3) As used in these rules:
(a) “Page” refers to paper either 8.5 x 11 inches or
8.5 x 14 inches. Staff will not reduce size or otherwise manipulate records to
fit additional records on a page, unless staff concludes that it will be the
most effective use of their time. A double-sided copy consists of two pages.
Because of the increased staff time involved in double-sided copying, there is
no reduction in the per page fee.
(b) “Normal and reasonable” staff time is 10 minutes or
less per request.
(4) Unless otherwise specified in OAR Chapter 839, the
Bureau will charge a minimum fee of $5.00 per request for records located in
the Bureau’s office facilities or $15.00 per request for records located
offsite, plus $.20 per page, as reimbursement for requests requiring normal and
reasonable staff time.
(5) If the time required exceeds normal and reasonable
staff time, the actual costs of staff or supervisory time necessary for
locating, reviewing, separating, photocopying, certifying and preparing records
for mailing or other delivery will be charged for each hour or fraction thereof
as follows:
(a) Supervisor/Administrator — $39.00 per hour;
(b) Investigator/Compliance Specialist/Consultant
— $32.00 per hour;
(c) Clerical — $23.00 per hour.
(6) In addition to staff time, the Bureau will charge
for supplies and use of equipment for producing records as follows:
(a) Twenty cents per page for photocopies;
(b) Actual cost for postage or other delivery costs;
(c) Fifty cents per page for copies by facsimile (fax)
machine with a limit of 20 pages.
(7) The Bureau will charge $41.00 per hour, with a
$12.00 minimum, for public record requests that require electronic
reproduction. Charges include, but are not limited to, staff time spent
locating, downloading, formatting, copying and transferring records to media,
and any charges by a third party vendor.
(8) The Bureau will provide blank reproduction media at
the following rates:
(a) Diskettes, 3.5 inch, $1.00 each. (Due to the
possibility of computer viruses, the Bureau will not permit requesters to provide
diskettes;
(b) Video Cassettes, two hours, $3.00 each;
(c) Audio Cassettes, $2.00 each;
(d) Compact disks, 1.5 hours: $1.50 (Due to the
possibility of computer viruses, the Bureau will not permit requesters to
provide compact disks.).
(9) The costs of any necessary Attorney General review
of requested public records will be charged to the requester at the rate billed
by the Department of Justice to the Bureau.
(10) The Bureau may require that all fees assessed
pursuant to this rule be paid in cash, in correct change, prior to furnishing
any copies, material, or information.
(11) Where a request is made to inspect records, the
Bureau may impose restrictions regarding the location where the information
requested will be made available for inspection. Where the Bureau allows the
person requesting the information to search or inspect Bureau records, the
Bureau may, as it deems necessary for the protection of the records, assign an
employee to supervise the search. The charge for this service will be in
accordance with section (5) of this rule.
(12) The Bureau may enter into agreements to provide
routine, periodic reports in a consistent format for a negotiated price.
(13) The commissioner may waive the requirements to pay
the charges described in this rule, or any part thereof after determining that
the waiver is in the public interest and primarily benefits the general public.
In determining whether sufficient public interest is demonstrated, relevant
factors include:
(a) The requester’s identity;
(b) The intended use of the information;
(c) The character of the information;
(d) Whether the requested information is already in the
public domain;
(e) Whether the requester can demonstrate the ability
to disseminate the information to the public; and
(f) The requestor’s inability to pay, although this
alone is not a sufficient basis to waive a fee.
Stat. Auth.: ORS 344.745(1) &
660.120(1)
Stats. Implemented: ORS 344.745
Hist.: BL 4-1985, f. & ef.
8-8-85; BL 1-1991, f. & cert. ef. 1-23-91; BL 7-1993, f. & cert. ef.
7-12-93; BL 6-1994, f. & cert. ef. 10-10-94; BL 7-1996, f. & cert. ef.
7-22-96; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert.
ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0070
Definitions
(1) “Division” means the Apprenticeship and Training
Division of the Bureau.
(2) “Employee” means any person employed or active in
an applicable trade.
(3) “Local Committee” means any registered joint or
trades apprenticeship or training committee approved by the Council.
(4) “State minimum guideline standards” means
industry/trade benchmarks developed by a Council approved state committee and
approved by the Council that represent the fundamental requirements necessary
for entry into and completion of specific Council approved apprenticeship or
training programs.
(5) “Registered apprenticeship program” means a local
committee approved by the Council to operate an apprenticeship or training
program in a specific occupation.
(6) “Registration of an Apprenticeship Agreement” means
the acceptance and recording of an apprentice or trainee agreement by the
Division on behalf of the Council. Registration is evidence of the
participation of the apprentice or trainee in a registered program.
(7) “Standards” means a written agreement submitted by
a local committee and approved by the Council, which sets forth a plan
containing all terms and conditions for the qualification, employment and
training of apprentices or trainees as set forth in ORS 660.126 and 660.137.
(8) “Trainee” means any individual registered to a
registered training program. For the purposes of these rules, all apprentice
requirements apply to trainees unless otherwise noted.
(9) “Training agent” means an employer approved by a
local committee to train apprentices and registered with the Division.
(10) “Training program” means any registered program of
2,000 on-the-job training hours or less. For the purposes of these rules, all
apprenticeship requirements apply to training programs unless otherwise noted.
(11) “Traveling Training Agent” is an approved training
agent working outside the geographic area where its primary place of business
is located and registered by the Division.
(12) “Journeyworker” is a fully skilled practitioner
who can work independently in a given trade or occupation in accordance with
ORS 660.010(4). Generally, a skilled crafts person has a minimum of four years
of verifiable trade-specific experience or has completed a state certified
apprenticeship program in the applicable trade and holds a license where
required.
(13) “Completion rate” means the percentage of an
apprenticeship cohort who receive a certificate of apprenticeship completion
within 1 year of the projected completion date. An apprenticeship cohort is the
group of individual apprentices registered to a specific program during a 1
year time frame, except that a cohort does not include the apprentices whose
apprenticeship agreement has been cancelled during the probationary period. The
projected completion date is the number of years determined by the greater of
the following measures:
(a) The number of required on-the-job training hours
needed for completion of the program divided by 2000 and rounded up to the
nearest whole number; or
(b) The number of years of required related training
prescribed in the applicable standard.
(14) “Job Site” means:
(a) For standards in construction trades, the area
covered by an approved building permit, plan of development or contract number,
or contractual agreement for new construction or renovation;
(b) For standards in non-construction trades, the
physical area within the wall that services are offered or the location that is
identified on the license by the licensing board and/or other local government
or a single job or group of jobs on the same circuit or within the same general
area.
Stat. Auth.: ORS 660.120(3)
Stats. Implemented: ORS 660.120(1)
Hist.: BL 6-1985, f. & ef.
10-15-85; BL 7-1991, f. & cert. ef. 8-15-91 (and corrected 2-3-92); BL
6-1994, f. & cert. ef. 10-10-94; BLI 2-1999, f. & cert. ef. 4-2-99; BLI
18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef.
7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0072
Formation of Joint Committees
(1) Any person or group interested in forming a local
joint committee may give written notice to the Division. Local committees in
building and construction trades occupations may only be approved as group
programs serving multiple employers.
(2) The interested party or group shall establish a
date for an organizational meeting and provide the Division with written notice
of the date, time and location of the meeting at least 5 (five) working days in
advance of the meeting. Division staff may attend organizational meetings in an
informational role.
(3) At the organizational meeting participants,
excluding Division staff, will:
(a) Adopt Roberts Rules of Order;
(b) Specify the committee name, its geographical
jurisdiction, and the occupation(s) for which it will train;
(c) Nominate committee members and submit their names
to the Council pursuant to OAR 839-011-0074;
(d) Elect a chair and a secretary as committee
officers, pursuant to OAR 839-011-0074(8).
(4) Local committees and training agents shall be
responsible for the administrative cost and expenses associated with the
operation of their programs. No committee or training agent shall charge or
cause charges to be levied against an apprentice for purposes of financially
supporting the administrative, clerical or organizational cost of operating a
registered program. Apprentices may be required to pay the normal cost of
tuition and related training materials.
Stat. Auth.: ORS 660
Stats. Implemented: ORS
660.120(2)(c), 660.135(1), (2), (3), (4) & (5)
Hist.: BL 6-1985, f. & ef.
10-15-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef.
4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert.
ef. 1-3-12
839-011-0074
Committee Member Selection
(1) Committees shall consist of an equal number of
employer and employee representatives.
(a) Representatives of employers, or an employer
organization representing the industry, shall submit nominations for employer
committee members.
(b) Individuals representing the journey level workforce
for the occupation, or an employee organization that represents the concerned
employees and is involved with the occupation, shall submit nominations for
employee committee members. For the purposes of these rules, an individual is
eligible to serve as an employee representative for the occupation only if that
individual:
(A) Is or has been a skilled practitioner in the
occupation and does not serve in a supervisory capacity as defined in the
National Labor Relations Act, as amended; or
(B) Is a bargaining unit representative for the
employees of a participating training agent.
(2) Joint apprenticeship or training committees
(JATC/JAC/JTC) shall consist of not less than two or more than four principal
employer representatives and not less than two or more than four principal
employee representatives.
(3) Trade apprenticeship or training committees
(TATC/TAC/TTC) shall consist of one principal employer representative and one
principal employee representative for each approved standard of the committee.
(4) State minimum guideline committees shall consist of
one principal employer and one principal employee representative from each
local committee training in the occupation pursuant to the appointment
procedures in OAR 839-011-0141.
(5) Committees may nominate one alternate member for
each principal committee member and the alternate shall be selected according
to the nominations procedures for principal committee members set forth in this
rule. Alternates shall serve in the absence of principal members consistent
with ORS 660.135(2).
(6) The Director shall list the names of the nominees
on the next Council agenda. After consideration of whether the appointments
provide a balanced representation of the viewpoints of employer and employee
groups, the Council will approve the nominations.
(a) The Council may request the names of additional
nominees if it does not approve any of the nominees.
(b) If either employers or employees cannot or will not
recommend nominees for the committee, the Apprenticeship Representative for the
area may recommend individuals involved with the occupation, and forward the
name of the individual(s) to the Director. The Director will evaluate the
individual(s), and if appropriate, provide interim approval pending submittal of
the names of the individual(s) to the Council for approval according to the
procedures of section (1) of this rule.
(7) When a vacancy occurs on a committee, it shall be
filled according to the member nomination procedures set forth in this rule.
(8) Each committee shall elect a chairperson and a
secretary from committee members. One of the offices must be held by an
employer member and one office must be held by an employee member.
(a) The officers shall serve for no less than one year
and no more than two years without an election unless the committee has adopted
policies and procedures establishing the duration of officers’ terms.
(b) In the event of a vacancy in an office, the
respective employer or employee members shall elect from their representation a
replacement to serve the unfilled term of office consistent with ORS 660.
(9) No Division staff may be elected or appointed to
any position within a committee.
(10) Associate members may be elected or appointed by
the committee but such members do not have voting rights on local committee
matters.
Stat. Auth.: ORS 660
Stats. Implemented: ORS 660.145
Hist.: BL 6-1985, f. & ef.
10-15-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef.
4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert.
ef. 1-3-12
839-011-0082
Deregistration of Committees
(1) The Council will deregister committees for
inactivity, inadequate activity, or failure to abide by ORS Chapter 660 or the
rules and policies of the Council pursuant to ORS 660.120(4)(d), or if the
committee has informed the Director or the Council that it will no longer
perform its duties.
(2) On behalf of the Council, the Director shall, to
the extent practical, secure the formation of a new committee where a
previously approved committee failed to carry out an effective program.
(3) A committee shall be subject to deregistration if
it has had no apprentices registered for two years or more, has not had at
least two quorum meetings in a twelve month period, has failed to administer to
the needs of the apprentices or the industry concerned or if so otherwise
deemed appropriate by the Council.
Stat. Auth.: ORS 660
Stats. Implemented: ORS 660.120(d)
Hist.: BL 6-1985, f. & ef.
10-15-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 18-2010, f. 7-29-10, cert.
ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0084
Approval of New Committees and
Standards
(1) Additional committees or standards in an area
already served by an existing committee in the same trade, craft or occupation
shall be established in the same manner as any other local committee.
(2) All employers and their qualified employees shall
be afforded the opportunity to participate, on a non-discriminatory basis, in
existing programs.
(3) The Council and the Apprenticeship and Training
Division of the Bureau of Labor and Industries will approve the creation of a
new local committee or new standards for an existing committee only if the
applicant for the new program or new standards can first demonstrate to the
Council and the Apprenticeship and Training Division, by a preponderance of
evidence, that the application is in conformity with the following
requirements:
(a) The applicant shall submit documentation showing
committee composition pursuant to ORS 660.135, .145.
(b) The applicant shall submit standards in a format
approved by the Council that meet or exceed any existing statewide minimum
guideline standards for the occupation. Where no state guideline standards
exist, proposed standards shall meet or exceed national guideline standards
approved by the federal Office of Apprenticeship. Where no state or national
guideline standards exist, standards will be approved at the discretion of the
Council and the Apprenticeship and Training Division when the proposed
occupation is clearly identified and commonly recognized throughout an
industry.
(c) The applicant shall submit an administration plan
that includes:
(A) Written designation of the program administrator;
(B) Documented assurances that the committee will be
adequately funded to support its administration and the presentation of related
instruction;
(C) A written statement that details all costs to
apprentices (including instruction, books, tuition); and
(D) Assurances that training agents and prospective
training agents will be provided with a written statement of costs for program
participation.
(d) The applicant must demonstrate the ability to track
required on-the-job training, related and supplemental training and affirmative
action information (i.e., work progress reports, apprentice/trainee rotation
system, employer’s apprentice/trainee evaluation forms, grading sheets, applicant
logs) and provide the Council with copies of the forms and documents that will
be used to track such information.
(e) The applicant shall submit a plan detailing how the
committee will ensure that participating employers will provide work in all
areas covered by the program standards (ORS 660.137(5)), including:
(A) Training in all counties listed in proposed
geographical area;
(B) Training in all work processes set forth in the
standards;
(C) Committee expectations of supervising journeyworkers
and a plan for the supervision of apprentices/trainees in the ratio set forth
in the standards (ORS 660.126(1)(c), (f));
(D) Training agent qualifications and duties (ORS
660.137(5)); and
(E) A plan for training participating employers on
their duties and responsibilities.
(f) The applicant shall submit a complete related
training curriculum, including instructor qualifications, class outlines and
expected competencies, grading procedures and completion criteria. This
submission shall include:
(A) An explanation of the curriculum delivery method
and a description of the related training facilities;
(B) Certification of the curriculum and instructional
delivery plan by either a state education certifying authority or nationally
recognized industry association (ORS 660.137(2)(c), .126(1)(j), .157); and
(C) Assurances that classroom and related instruction
can be delivered throughout the geographic area. The applicant must submit a
contract or other documentation demonstrating that actual instructional resources
are in place. The committee’s geographic area must be one that can be
reasonably served by the committee with respect to employers and the location
of the related training services (ORS 660.126(1)(a)).
(D) Assurances that instructors meet the Oregon
Department of Education or Office of Community Colleges and Workforce
Development requirements for vocational-technical instructors or are subject
matter experts, defined as an individual, such as a journeyworker, who is
recognized within an industry as having expertise in a specific occupation. If
the instructor is a subject matter expert, the submission must include
assurances that the instructor has or will have had training in teaching
techniques and adult learning styles, which may occur before or within nine
months after the apprenticeship instructor has started to provide the related
technical instruction.
(g) The applicant must submit operating policies and
procedures and assurances that the program will be operated in accordance with
the same; and
(h) The applicant shall submit a plan to recruit,
evaluate and select apprentice/trainee applicants, including an application
form that meets Council requirements.
(4) All objections to the approval of a new committee
or new standards shall be submitted to the Council in writing at the meeting
where the application is being considered for approval, specifically detailing
any objections to the application. Council may rule on the application and
objections thereto at that time or grant the applicant 30 days after the
Council meeting to submit a written rebuttal to the objections to the Director.
Council shall direct the Director to investigate and evaluate the objections
and rebuttal and to provide a report to Council within 45 days of receipt of
the rebuttal statement. At the next Council meeting after the initial
submission, Council shall either approve or deny the application and provide a
specific written explanation for its actions.
(5) All new programs shall serve a probationary period
of three years after Council approval. Failure to clearly demonstrate the
ability to operate a satisfactory program during the probationary period, based
upon periodic program reviews conducted by the Division, shall result in
deregistration of the program by Council.
(6) Compliance reviews will be conducted during the
probationary period pursuant to OAR 839-011-0145 unless the Council directs the
Division to conduct reviews more frequently. Should the Council find operating
deficiencies in the course of any such review, the program shall immediately
take action to correct the deficiencies and submit a report to the Council
explaining corrective measures taken within 90 days of the Council initial
finding of deficiencies. If the committee has not corrected the deficiencies
within the 90 day period, the Council shall deregister the program at the next
scheduled Council meeting.
Stat. Auth.: ORS 660.120(3)
Stats. Implemented: ORS 660.135(1)
Hist.: BL 6-1985, f. & ef.
10-15-85; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef.
4-2-99; BLI 16-2005(Temp), f. & cert. ef. 8-23-05 thru 2-19-06;
Administrative correction 3-20-06; BLI 16-2006, f. 4-17-06, cert. ef. 4-18-06;
BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert.
ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0088
Registration of Apprenticeship
Agreements
(1) The Council delegates registration of
apprenticeship agreements to the Division and recognizes an agreement as
registered when:
(a) It is on a form that has been approved pursuant to
ORS 660.020 and issued by the Division;
(b) Information requested on the form as authorized by
ORS 660.020 has been supplied by the apprentice. The requested information
includes, but is not limited to the apprentice’s Social Security Number for
identification purposes;
(c) It has been signed by the apprentice and the local
joint committee. Approval must be recorded as soon as possible at a committee
meeting; and
(d) The agreement has been submitted to and received by
a representative of the Division.
(2) The effective starting date of an apprenticeship in
non-licensed trades shall be not more than forty five (45) days prior to the
date that a fully executed original agreement and committee minutes approving
the registration are received by a representative of the Division. In the
licensed trades, the effective starting date of an apprenticeship shall not
commence before a fully executed apprenticeship agreement is received by a representative
of the Division, unless the committee has written authorization from the
Division to issue an initial license and operates in accordance with the
conditions of authorization.
(3) Local committees shall develop and implement a
policy and procedures detailing the process for evaluating previous experience
in a uniform manner and awarding advanced standing to new apprentices for
on-the-job or related training.
(a) The committee may grant credit for prior experience
for any time previously spent by the apprentice in the trade or occupation that
the committee considers applicable to the work processes in the program
standards.
(b) In licensed trades, only lawfully obtained and
documented experience that specifically applies to an Oregon license may be
considered in granting credit for prior experience.
(4) All apprenticeship agreements will be maintained in
the Division’s main office.
Stat. Auth.: ORS 660.120(3)
Stats. Implemented: ORS 657.732
& 660.060(8)
Hist.: BL 6-1985, f. & ef.
10-15-85; BL 1-1991, f. & cert. ef. 1-23-91; BL 7-1996, f. & cert. ef.
7-22-96; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert.
ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI
1-2012, f. & cert. ef. 1-3-12
839-011-0090
Causes for
Disciplinary Actions by Council
The Council has the authority to take disciplinary
action against a committee for conduct or action, including but not limited to:
(1) Inappropriate use of an apprentice’s registration
status or an apprentice’s time, skills or training;
(2) Inadequate training of apprentices;
(3) Inappropriate assignment or abuse of discretion in
work assignments;
(4) Discriminatory action(s) against an apprentice(s);
(5) Violation of any state or federal law;
(6) Failure to submit required documentation to the
Division in a timely manner;
(7) Failure to communicate with the Division or the
Council in a timely manner; or
(8) Any other action deemed inappropriate by the
Council.
Stat. Auth.: ORS 660.120(1)
Stats. Implemented: ORS 660.120(1)
& ORS 660.120(2)(d)
Hist.: BL 6-1994, f. & cert.
ef. 10-10-94; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 1-2012, f. & cert.
ef. 1-3-12
839-011-0140
Approval and Dissolution of
Standards
(1) A local committee must submit new standards or
revisions to previously approved standards, together with executed signature
sheets and committee minutes to the Director at least 45 calendar days before
the date of the next Council meeting pursuant to OAR 839-011-0030.
(2) Proposed standards and revisions must be in a form
and format approved by Council that includes all elements specified in ORS
660.126. The Council may require additional information of committees pursuant
to OAR 839-011-0084, including program administration and training plans.
(3) Standards in a form or format other than that
approved by the Council and the Division may be accepted when they are part of
the federal Office of Apprenticeship approved national pattern standards and
are consistent with federal Office of Apprenticeship regulations and
guidelines, these rules and Council policies.
(4) With Council approval, local committees may charge
applicants a reasonable non-refundable application fee. Such fees shall be
stated in the standards as a minimum qualification for entry into the program.
Committees shall be required to:
(a) Incorporate the payment of a non-refundable
application fee into the minimum qualifications of the committee’s standards.
The standards shall also reflect that applicants with an income below 150% of
the federal poverty guidelines may apply for a non-refundable application fee
waiver. Federal poverty guidelines are established by the Federal Department of
Health and Human Services and are recognized by the Oregon Adult and Family
Services Division;
(b) Show that the non-refundable application fee
results in no disparate impact and report annually to the Council whether
disparate impact has been determined to result from the fees charged; and
(c) Show that the local committee experiences an
extraordinary burden with respect to the administration of applications, i.e.,
beyond the ordinary course of conducting such procedures. Examples of an
extraordinary burden include, but not limited to, development of specific
entrance examinations, validation studies and extensive testing or interview
procedures.
(5) Revised standards will supersede the committee’s
previous standards covering the same occupation.
(6) Every registered apprenticeship program must have
at least one registered apprentice, except for the following specified periods
of time, that may not exceed 1 year:
(a) Between the date when a program is registered and
the date of registration for its first apprentice(s); or
(b) Between the date that a program graduates an
apprentice and the date of registration for the next apprentice(s) in the
program.
(7) The Division will report any standards that
apprentices have not been active in for two or more years to the Council for
dissolution due to inactivity. Thereafter, new standards must be approved prior
to registration of any new apprentices.
Stat. Auth.: ORS 660.120(3)
Stats. Implemented: ORS
660.120(2)(b), 660.126 & 660.137
Hist.: BL 95, f. 8-16-65; BL 130,
f. 10-5-72, ef. 10-15-72; BL 3-1978, f. & ef. 4-3-78; BL 13-1988, f. &
cert. ef. 7-1-88; BL 1-1991, f. & cert. ef. 1-23-91; BL 6-1994, f. &
cert. ef. 10-10-94; BLI 2-1999, f. & cert. ef. 4-2-99; BLI 18-2010, f.
7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru
1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0141
Minimum Guideline Standards
The Council may approve minimum guideline standards for
occupations it deems necessary.
(1) At its discretion, or upon petition by two or more
local committees directly affected by minimum guideline standards, the Council
will direct the Division to convene a state committee composed of members of
local committees training in the occupation. Division staff will organize the
meeting time and location, and contact all appropriate local committees.
(a) Each local joint committee training in the
occupation may appoint no more than one employer and one employee
representative (with alternates) to the state committee pursuant to OAR
839-011-0074. Notification of this action must be submitted to the Division in
writing annually. Appointments will be valid only after written notice of the
names of the appointees is received by the Division at least one (1) day before
a scheduled state guideline committee meeting.
(b) The employer and employee members of local trades
committees (and alternates) shall represent their respective occupations on the
state committee pursuant to ORS 660.155(2).
(c) Only properly appointed representatives to the
state guideline committee will be permitted to vote on issues before the State
Guideline Committee.
(d) A quorum shall consist of 50% plus one of the total
appointed local joint committee representatives; local trade committee
representatives will be counted only if they are present at the state committee
meeting. A quorum of the total appointed local committee representatives
constituted pursuant to this rule may revise the quorum requirement for future
state committee meetings, pending review and approval by the Council.
(e) Each state committee may adopt policies and
procedures consistent with ORS 660 as it deems necessary for the orderly
conduct of its meetings.
(2) The state committee will develop or revise minimum
guideline standards in accordance with the needs of the industry and
occupation. This committee shall establish minimum guidelines in the following
standards areas:
(a) Minimum qualifications;
(b) Hours of employment;
(c) Maximum probationary period;
(d) Maximum ratio of apprentices to journey workers;
(e) Minimum work processes and approximate hours; and
(f) Minimum related/supplemental instruction.
(3) New or revised minimum guideline standards shall be
distributed to all local committees training in the occupation for review and
comment prior to submission to the Council.
(a) Each local committee shall have not more than 30
days to present any written objections. This information shall be referred to
the state committee for review.
(b) The state committee shall then prepare its final
recommendations to the Council.
(c) If consensus is not reached by the state committee,
a majority and minority report will be submitted to the Council for
consideration.
(d) When majority and minority reports are submitted,
the Council and the Division will take into consideration the geographic area
covered by each participating committee as well as the number of apprentices
served and the number of training agents affected in determining whether to
accept the minimum guideline standard as submitted or approved amendments
thereto.
(4) Total on-the-job training hours for a local
committee may not fluctuate below the requirements dictated by minimum
guideline standards. The variations must be within statutory limits governing
the licensed occupations.
Stat. Auth.: ORS 660.120(3)
Stats. Implemented: ORS
660.120(2)(a)
Hist.: BLI 18-2010, f. 7-29-10, cert.
ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI
1-2012, f. & cert. ef. 1-3-12
839-011-0142
Apprentice/Trainee Qualifications
(1) The Council and the Division shall evaluate
proposed qualification standards or selection methods pursuant to the criteria
set forth in Title 29 CFR Part 30, the Equal Employment Opportunity in
Apprenticeship Plan noted in OAR 839-011-0200, the objectives expressed by the
committee and/or sponsor, and such other factors as the Council and the Division
may deem appropriate. Evaluation of proposed qualification standards or
selection methods shall include an analysis of whether they would result in an
adverse impact upon any protected class of applicants.
(2) The Council and the Division shall not consider
proposed standards that contain any of the following requirements within their
minimum qualifications:
(a) Physical ability to do the job, unless it
specifically references a validated occupational requirement, such as lifting a
sack of cement to a specified height;
(b) Any tests (including color tests) that do not meet
the validity requirements under 41 CFR 60.3;
(c) A valid driver’s license; or
(d) A medical exam.
(3) Standards submitted containing any of these
requirements will not be placed on the Council agenda.
(4) The minimum qualifications section of the standards
may include a note advising applicants that employers may require apprentices
to meet additional lawful conditions of employment. These must be identified by
employers and specified in the standards.
Stat. Auth.: ORS 660.120(3)
Stats. Implemented: ORS
660.120(2)(a)
Hist.: BLI 18-2010, f. 7-29-10,
cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12;
BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0143
Ratio
(1) Registered apprentices shall only work for training
agents registered to the same committee as the apprentice the subject
committees and employer have reached agreement on a plan that will enhance the
training opportunities for all apprentices and have jointly submitted a written
request to the Council outlining their plan and requesting the exemption from
this rule.
(2) Except as provided in sections (6) and (7) below,
registered apprentices shall be supervised by journeyworkers employed in the
same trade or occupation by the same training agent employing the apprentice.
(3) The apprentice to journey worker ratio for any
registered program approved by the Council and the Division shall be clearly
set forth in the standards for the given occupation and must be specific as to
application in terms of jobsite, workforce, department or plant.
(4) The maximum ratio of apprentices to journey workers
for an occupation covered by a state committee will be developed as part of the
minimum guideline standards for the occupation. Requests for a less restrictive
ratio from local committees will be referred to the state committee for
evaluation of minimum guideline ratio.
(5) For occupations where a minimum guideline standard
is not in place, local committees are expected to meet the following apprentice
to journey level ratios:
(a) Construction trades: Not more than one apprentice
for the first journeyworker on the job site. Additional apprentices are authorized
at the ratio of one apprentice for each three additional journeyworkers on the
job site. (Expressed hereafter as 1:1, 1:3)
(b) Industrial trades and fixed-site facilities:
1:1,1:2
(c) Other trades (non-traditional and new and emerging
occupations): 1:1,1:1
(d) Committees wishing a less restrictive ratio must
submit a request to the Council for consideration, along with information
including but not limited to:
(A) Specific workforce demographics justifying a
different ratio;
(B) Plan to monitor effects of ratio on the safety and
continuity of employment for apprentices; and
(C) Comparison of completion rate to statewide average
for occupation.
(6) In licensed trades, an apprentice must be
supervised by a journey worker in the same or a higher license classification
than the apprentice, unless the local committee that the apprentice is
registered to has approved supervision by a journeyworker holding a license
covering the specific work being performed by the apprentice on the job site.
(7) Electrical power line installers and repairers and
linemen apprentices may work for training agents registered to other local
joint committees in order to ensure that all work processes are fulfilled,
pursuant to a written agreement between the apprentice, the local committees
and both training agents.
(8) In limited situations, the Council may grant a
training agent a short-term waiver of the established ratio for a given
program, upon demonstration of extreme need. In no event shall an apprentice
work without qualified journeyworker supervision. Ratio waivers of less than 90
days must be requested by the committee on behalf of a training agent. Local
committees are not authorized to grant temporary waivers to training agents. A
temporary waiver of ratio may be granted under the following circumstances:
(a) Serious injury or illness of the journeyworker,
where the journeyworker is expected to return to work in 90 days or less; or
(b) The sudden departure of a journeyworker from
employment with the training agent for causes not attributable to the training
agent. The employer is expected to replace the departing journeyworker within a
reasonable amount of time and in no event shall this amount of time exceed
ninety (90) days. The training agent must document its efforts to replace
journey workers which may include, but shall not be limited to:
(A) Copies of job orders;
(B) Classified advertising, including a posting of the
journey wage rate offered; and
(C) Job orders placed with the Oregon Employment
Division.
(9 The lack of available qualified or licensed
journeyworkers shall not be a valid reason for granting a temporary ratio
waiver.
(10) The Council may authorize the Director to grant or
deny waivers as set forth above on an interim basis. Such action taken by the
Director must be submitted to the Council for ratification at its next meeting
after interim approval or denial has been made.
Stat. Auth.: ORS 660.120(3)
Stats. Implemented: ORS 660.120(2),
660.126(1)(f)
Hist.: BLI 18-2010, f. 7-29-10,
cert. ef. 8-1-10; BLI 5-2011(Temp), f. 7-13-11, cert. ef. 7-18-11 thru 1-4-12;
BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0145
Compliance Reviews
(1) All committees are subject to periodic reviews of
program operation and affirmative action activities.
(2) The Division shall develop and maintain a review
schedule that identifies programs scheduled for review, the type of review to
be conducted and the time period to be evaluated.
(3) The Program Operation Compliance Review will
evaluate program operation and administration.
(a) New committees will receive a Program Operation
Compliance Review annually for the first three years of operation, unless
otherwise directed by the Council.
(b) After the first three (3) years, committees found
in compliance will receive a Program Operation Compliance Review every three
(3) years. Committees maintaining a completion rate of at least 70% for all
standards during the three (3) previous consecutive years will receive a Program
Operation Compliance Review every five (5) years.
(4) The Affirmative Action Compliance Review will
evaluate outreach, recruitment, and selection activities.
(a) Committees with five or more apprentices registered
to a single standard during the previous three years will receive an annual
Affirmative Action Compliance Review.
(b) Training agents who select their own apprentices in
accordance with the committee’s approved selection procedure will receive a
separate annual Affirmative Action Compliance Review.
(5) Additional reviews may be scheduled if
(a) The Director has a reasonable belief that such
reviews are prudent and in the best interest of apprenticeship;
(b) Complaints have been received that the program is
not operating in compliance; or
(c) At the Council’s direction.
(6) Committees found out of compliance will be required
to appear at the next meeting of the appropriate Council subcommittee.
(7) All reviews shall be reported on a form and in a
format approved by the Council. Upon review of compliance reports, the Council
shall take action including but not limited to any of the following:
(a) Approve the report;
(b) Refer the report back for further clarification;
(c) Extend the review period for up to six (6) months;
(d) Order a probationary period including more frequent
and detailed program reviews;
(e) Direct compliance and/or corrective action
accordingly;
(f) Impose sanctions;
(g) Deregister the committee and/or standards for
non-compliance; and
(h) Any other action as directed by the Council and the
Division.
Stat. Auth.: ORS 660.120(3)
Stats. Implemented: ORS
660.120(2)(a) & 660.120(2)(f)
Hist.: BL 16-1979, f. & ef.
11-8-79; BL 6-1994, f. & cert. ef. 10-10-94; BLI 2-1999, f. & cert. ef.
4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f.
7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0162
Employer Training Agents
(1) The Division will register training agents upon
receipt of committee minutes showing approval of specific employers as training
agents and a fully executed training agent registration agreement for each
employer.
(2) The effective starting date for a new training
agent shall be no more than forty five (45) days prior to the date that a fully
executed original training agent agreement and committee minutes approving the
registration of the employer are received by a representative of the Division.
(3) No employer shall be required to join an industry
or trade association as a condition of approval as a training agent.
(4) Where two or more programs of the same occupation
exist in the same geographical area an employer may not serve as an approved
training agent for more than one such program at a time.
(a) In the event an employer has been approved as a
training agent by two or more such programs, the Division shall notify the
employer and the appropriate committees of this rule and require that the
employer respond within twenty (20) working days of receipt of the notice,
designating the program in which the employer chooses to continue and resigning
from all others. Such notice shall be sent by certified mail, return receipt
requested.
(b) An employer who does not respond pursuant to
section (3)(a) of this rule, shall be deemed conclusively to have elected to
resign as a training agent from all such programs. The Division shall notify
the committees serving programs in which the employer had participated that the
employer’s training agent status has been revoked by operation of this rule.
(5) In limited cases where special conditions exist,
the Council may consider an employer’s request to participate in multiple
programs in the same occupation within the same geographical area:
(a) When an individual construction project has special
conditions warranting consideration for multiple training agent status, the
employer must work with all committees involved to establish a plan that
provides for the health, safety, and continuity of employment for all
apprentices.
(b) When the committees and employer have reached
agreement on a plan that will enhance the training opportunities for all
apprentices, they shall jointly submit a written request to the Council
outlining their plan and requesting the exemption from section (2) of this rule.
(6) An employer with a principal place of business
outside the geographic jurisdiction of a local committee may seek approval to
register with that local committee as a traveling training agent. Each such
employer must agree to comply with Oregon state, county and municipal laws,
rules and ordinances and the rules, policies, procedures and standards of the
local committee.
(7) A local committee may approve traveling training
agent status for an applicant employer that is a registered training agent with
an apprenticeship sponsor or committee outside its geographic jurisdiction if:
(a) The employer is in good standing with its sponsor
or home committee;
(b) The employer provides the committee with periodic
updates of its good standing status from its sponsor or home committee;
(c) The employer and its sponsor provides the local
committee with a plan explaining how the related training of any traveling
apprentices will be accomplished;
(d) The employer and its sponsor provide updates to the
local committee every six (6) months on the progress status of any traveling
apprentices; and
(e) The employer and the local committee must agree on
the number of traveling apprentices, directly employed by the traveling
training agent, who will be registered through the local committee. The
employer and the local committee must agree on the manner in which local
apprentices will be utilized by the traveling training agent.
(8) A local committee may approve traveling training
agent status for an unregistered employer whose principal place of business is
outside of its geographic jurisdiction, but all apprentices dispatched to the
traveling training agent must be registered to the local committee.
Stat. Auth.: ORS 660
Stats. Implemented: ORS 660.120(1)
& 660.137(5)
Hist.: BL 17-1979, f. & ef.
11-8-79; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef.
4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert.
ef. 1-3-12
839-011-0175
Cancellation Notices
All notices to appear for cancellation of
apprenticeship agreements must be mailed and addressed to the apprentice and
postmarked at least twenty-two (22) calendar days in advance of the appearance
date for the consideration of the cancellation.
Stat. Auth.: ORS 660.137(4)
Stats. Implemented: ORS 660
Hist.: BL 6-1994, f. & cert.
ef. 10-10-94; BL 11-1996, f. & cert. ef. 12-10-96; BLI 18-2010, f. 7-29-10,
cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0265
Partial Rotation of Apprentices
(1) All apprentices must obtain work experience for at
least 50% of the hours listed for each work process in the committee’s approved
standards. A committee unable to provide an apprentice with work experience
equaling at least 50% of the hours listed in any of the work processes must
provide and document additional related training to compensate for the lack of
on-the-job training. A written statement, held in the apprentice’s files, shall
document such compensatory training and shall include, date, time, place, hours
and instructor. In no event may distance learning classes be used to compensate
for deficiencies in total work process hours.
(2) For licensed occupations, all variations in work
processes must be within the statutory limits governing the trade.
Hist.: BLI 2-1999, f. & cert.
ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. &
cert. ef. 1-3-12
839-011-0270
Administrative Cancellation or
Completion of Apprenticeship Agreements
(1) Whenever a local committee has insufficient members
to conduct business, has not met at least once within a six-month period or has
been dissolved by Council, the Director may:
(a) Cancel an apprenticeship agreement:
(A) At the apprentice’s request; or
(B) For good cause as defined by ORS 660.060(7) or;
(C) In the case of program deregistration, or for lack
of training standards.
(b) Complete an apprenticeship agreement when
documentation has been submitted to the Director demonstrating that the
apprentice has complied with the required standards established by the
committee.
(2) Such action by the Director or the committee shall
be taken pursuant to the following procedure:
(a) Notice shall be provided by certified mail to the
apprentice, employer, committee, Council and any interested parties before any
action to administratively complete or cancel an agreement; and
(b) Written notice to the apprentice, employer,
committee, Council and any interested parties of the final action taken by the
Director.
(3) An apprentice may appeal an administrative
cancellation as an order other than a contested case order under ORS 183.484.
Stat. Auth.: ORS 660.120
Stats. Implemented: ORS
660.120(2)(f)
Hist.: BL 7-1986, f. & ef.
7-14-86; BL 1-1991, f. & cert. ef. 1-23-91; BLI 2-1999, f. & cert. ef.
4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert.
ef. 1-3-12
839-011-0290
Plumber Apprentices — Phased
Supervision
(1) The Division shall issue plumbing apprentice
licenses to active apprentices or trainees registered to standards approved by
the Council. Apprentice license formats shall be jointly agreed to by the
Division and the Oregon Building Codes Division.
(2) All apprentices and trainees must be directly
supervised in accordance with OAR 839-011-0143, unless approved for phased
supervision.
(3) Pursuant to OAR 918-695-0140, a local committee may
take action to permit plumbing apprentices to work under phased supervision
under the following circumstances:
(a) The plumber apprentice must work in the physical
presence of an appropriate journey level plumber; and
(b) An appropriate journey level plumber present at the
immediate work site at all times, except for not more than a cumulative thirty
(30) minutes during any work shift during which time the journeyworker is
immediately available by voice communication.
(4) The plumber apprentice may work under phased
supervision when the following specific conditions are met:
(a) The appropriate journeyworker is immediately
available to the apprentice by voice communication (immediately available means
that the apprentice can reach the appropriate journeyworker within a 15-minute
period);
(b) The appropriate journeyworker meets with the
apprentice at least once each day to go over the work done by the apprentice;
(c) The activity is consistent with the committee’s
work requirements as established in its written policy;
(d) There is only one apprentice on the job site; and
(e) The apprentice has been specifically approved for
one (1) or more of the following phases:
(A) Phase 1: The apprentice only engages in water
heater replacement or conversion after completing at least six (6) months of
work experience, eight (8) hours of related instruction and is evaluated and
authorized to do this type of work by the committee;
(B) Phase 2: The apprentice engages in work covered in
Phase 1 and minor repairs in a one (1) or two (2) family dwelling after
completion of three (3) periods of work experience, the appropriate related
instruction for three (3) periods and is evaluated and authorized to do this
type of work by the committee;
(C) Phase 3: The apprentice engages in work covered in
Phase 1 and 2, and general repairs and replacement of existing installations
after completion of four (4) periods of work experience, the appropriate
related instruction for four (4) periods and is evaluated and authorized to do
this type of work by the committee; or
(D) Phase 4: The apprentice engages in work covered in
Phase 1, 2 and 3, and new or remodel installations after completing five (5)
periods of work experience, the appropriate related instruction for five (5)
periods and is evaluated and authorized to do this type of work by the committee.
(5) Phased supervision licenses will be issued by the
Division upon notification of committee approval and reissued for the duration
of the program unless the committee takes action to rescind approval.
Stat. Auth.: ORS 660.120(3)
Stats. Implemented: ORS 693.040
Hist.: BLI 2-1999, f. & cert.
ef. 4-2-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 5-2011(Temp), f.
7-13-11, cert. ef. 7-18-11 thru 1-4-12; BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0310
Apprentice Rights
(1) Upon registration the local committee shall provide
each apprentice with the following information:
(a) Apprenticeship Standards for the program in which
the apprentice is registered;
(b) Division approved committee policies and
procedures; and
(c) Copy of the apprenticeship agreement.
(2) Within the constraints of industry and market
conditions, the apprentice has the right to be employed and diligently and
faithfully trained by the committee’s approved training agents in accordance
with the terms and conditions of the Apprenticeship Agreement and
Apprenticeship Standards.
(3) The apprentice has the right to classroom and
workplace conditions that are free of harassment or intimidation.
(a) “Harassment or intimidation” includes any act that
takes place on or immediately adjacent to apprenticeship classrooms or training
agent work sites that:
(A) Substantially interferes with the apprentice’s
educational benefits, opportunities or performance; and
(B) Has the effect of:
(i) Physically harming an apprentice or damaging an
apprentice’s property; or
(ii) Knowingly placing an apprentice in reasonable fear
of physical harm to the apprentice or damage to the apprentice’s property; or
(iii) Creating a hostile educational environment,
including interfering with the psychological well-being of an apprentice; and
(C) May be based on, but not limited to, the protected
class status of a person.
Stat. Auth.: ORS 660.120(1)
Stats. Implemented: ORS
660.120(2)(a)
Hist.: BL 7-1991, f. & cert.
ef. 8-15-91 (and corrected 2-3-92); BLI 2-1999, f. & cert. ef. 4-2-99; BLI
18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0320
Required Appearance at Council
Meetings
(1) The Council shall require a committee member or
designee other than Division or federal Office of Apprenticeship staff to be
present at the appropriate subcommittee meeting when seeking approval for:
(a) New committee;
(b) New standards or;
(c) Other submittals that do not have a staff
recommendation for approval.
(2) When a committee member or designee is not required
to be present at a subcommittee meeting and questions or deficiencies are
noted, the committee will be given ten (10) working days to correct the
deficiencies and obtain a Division recommendation for approval.
(a) If deficiencies are corrected, the submittal will
be moved to the Council agenda.
(b) Any submittal with deficiencies not corrected
within the ten (10) day time limit will be referred to the next meeting of the
appropriate subcommittee.
(3) The Director may make exceptions to this rule upon
receipt of a written request from the committee setting forth circumstances,
such as an emergency or undue hardship, that might justify a failure to attend
subcommittee meeting.
Stat. Auth.: ORS 660.120(1)
Stats. Implemented: ORS
660.120(2)(a)
Hist.: BL 7-1991, f. & cert.
ef. 8-15-91 (and corrected 2-3-92); BLI 2-1999, f. & cert. ef. 4-2-99; BLI
18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. & cert. ef. 1-3-12
839-011-0334
Eligibility of Family and Current
Employees
(1) To the extent that the State Apprenticeship and
Training Council determines that it would not result in an adverse impact on
apprenticeship opportunities based on an individual’s protected class status,
an applicant who is otherwise eligible for selection as an apprentice under the
selection method approved by the Council for use by the local committee may be
directly registered to a family business or the applicant’s current employer,
subject to the consent of the applicant, regardless of whether another employer
would otherwise be entitled to register the applicant under the selection
method used by the local committee.
(2) As used in this section, “otherwise eligible for
selection as an apprentice under the selection method approved by the Council
for use by the local committee” shall mean that the applicant:
(a) Has met the minimum qualifications for entry into
the program; and
(b) Has been evaluated or ranked by the local committee
pursuant to the procedure set forth in its approved selection method; and
(c) Based on that evaluation or ranking, is the next
applicant or in the immediate group of applicants eligible to be assigned or
dispatched to a registered training agent pursuant to the local committee’s
approved selection method.
(3) When submitting a new or revised selection method
to the Council for approval, local committees must indicate whether they will
be using an exception to the selection methods established in Title 29 CFR Part
30 and must note in their committee minutes when an individual is registered
pursuant to subsections (1) and (2) above.
(4) Nothing in this rule is intended or should be
interpreted as discouraging the use of a qualification standard or selection
method on the basis of relative qualifications, if the qualification standard
or selection criteria have been validated in accord with the guidelines
established in Title 41 CFR Part 60-3.6.
Stat. Auth.: ORS 660.120(1)
Stats. Implemented: ORS 660.139
Hist.: BLI 17-1999, f. & cert.
ef. 12-20-99; BLI 18-2010, f. 7-29-10, cert. ef. 8-1-10; BLI 1-2012, f. &
cert. ef. 1-3-12
Notes
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, 2011.
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