Notice of Proposed Rules
Prior to the permanent adoption, amendment or repeal of any rule relating to civil penalties for child labor violation matters, the Wage and Hour Division of the Bureau of Labor and Industries shall give notice of intended action as required in OAR 839-002-0002.
Stat. Auth.: ORS 651.060(4), 653.305 - 653.545
Stats. Implemented: ORS 183.335
Hist.: BL 5-1988, f. & cert. ef. 4-12-88; BLI 9-2004, f. 7-26-04, cert. ef. 7-27-04
As used in ORS 653.365 to 653.370 and in these rules, unless the context requires otherwise:
(1) "Bureau" means the Bureau of Labor and Industries of the State of Oregon.
(2) "Commission" means the Wage and Hour Commission of the State of Oregon.
(3) "Commissioner" means the Commissioner of the Bureau of Labor and Industries or the Commissioner's authorized deputies and officers.
(4) "Employ" shall have the same meaning as that which appears in ORS 653.010(2).
(5) "Employer" shall have the same meaning as that which appears in ORS 653.010(3).
(7) "Minor" means any person under 18 years of age.
(8) "Person" includes the term "employer" as defined in section (5) of this rule and school districts required to comply with ORS 653.307(3).
(9) "Violation" means a transgression of any statute, rule or order, or any part thereof and includes both acts and omissions.
(10) "Wilful" means intentional and includes failure to act. A person commits a wilful act when the person knows what she/he is doing, intends to do what she/he is doing and is a free agent.
(11) "Work Permit" means the employment certificate issued to minors pursuant to ORS 653.307.
Violations for Which a Penalty May Be Imposed
The Commissioner may impose a civil penalty for violations of any of the following statutes, administrative rules and orders:
(1) Violation of any provision of ORS 653.305 to 653.370.
(2) Violation of any provision of OAR 839-021-0001 to 839-021-0500.
(3) Violation of any term or condition of an Order of the Wage and Hour Commission issued pursuant to any violation of ORS 653.305 to 653.370 and OAR 839-021-0001 to 839-021-0500.
Violations Separate and Distinct
Each violation is a separate and distinct offense. In the case of continuing violations, each day's continuance is a separate and distinct violation.
Determination of the Amount of the Civil Penalty
(1) Except as provided in section (4) of this rule, when determining the amount of civil penalty to be imposed, the Commissioner shall consider the following circumstances and shall cite those the Commissioner finds applicable:
(a) The history of the employer in taking all necessary measures to prevent or correct violations of statutes and rules;
(b) Prior violations, if any, of statutes and rules;
(c) The magnitude and seriousness of the violation;
(d) The opportunity and degree of difficulty to comply;
(e) Any other mitigating circumstances.
(2) It shall be the responsibility of the employer to provide the Commissioner with evidence of the mitigating circumstances set out in section (1) of this rule.
(3) In arriving at the actual amount of the civil penalty, the Commissioner shall consider whether the minor was injured while employed in violation of the statute and rules.
(4) Notwithstanding section (1) of this rule, in the case of a serious injury to or the death of a minor while employed in violation of the statutes or rules, the Commissioner may impose the maximum penalty allowed by ORS 653.370.
(5) Notwithstanding any other section of this rule, the Commissioner shall consider all mitigating and aggravating circumstances presented by the employer for the purpose of reducing the amount of the civil penalty to be imposed.
Schedule of Civil Penalties
(1) The civil penalty for any one violation shall not exceed $1,000. The actual amount of the civil penalty will depend on all the facts and any mitigating and aggravating circumstances.
(2) When the Commissioner determines to impose a civil penalty for the employment of a minor without a valid employment certificate, the minimum civil penalty shall be as follows:
(a) $100 for the first offense;
(b) $300 for the second offense;
(c) $500 for the third and subsequent offenses.
(3) The civil penalties set out in section (2) of this rule shall be in addition to any other penalty imposed by law or rule.
(4) When a minor incurs a serious injury or dies while employed in violation of any of the following statutes and rules, the violation is considered to be so serious and of such magnitude that the maximum penalty will be imposed when the Commissioner determines to impose a civil penalty:
(a) Employment of a minor under 14 years of age in violation of ORS 653.320.
(b) Employment of a minor in violation of ORS 653.330, 653.335, 653.340 or 653.360.
(c) Employment of a minor in violation of OAR 839-021-0097(1)(a), 839-021-0097(1)(c) or 839-021-0097(2).
(d) Employment of a minor in violation of OAR 839-021-0102 or OAR 839-021-0104.
(e) Employment of a minor in violation of OAR 839-021-0280(2) or 839-021-0282.
(f) Employment of a minor in the entertainment industry in violation of OAR 839-021-0355, Prohibited Performances.
(5) Willful and repeated violations of the provisions of ORS 653.305 to 653.370 or OAR 839-021-0001 to 839-021-0500 are considered to be of such seriousness and magnitude that no less than $500 for each willful or repeated violation will be imposed when the Commissioner determines to impose a civil penalty.
(6) The civil penalty for all other violations shall be set in accordance with the determinations and considerations referred to in OAR 839-019-0020.
The provisions of OAR 839-019-0000 to 839-019-0025 do not apply when minors are employed under the following circumstances:
(1) The minor is employed by the parent of the minor;
(2) The minor is employed by a person standing in the place of the parent of the minor and who has custody of the minor.
Stat. Auth. ORS Ch. 651 & 653
Stats. Implemented: ORS 653.365 & 653.370
Hist.: BL 5-1988, f. & cert. ef. 4-12-88; BL 7-1997, f. & cert. ef. 11-13-97