471-030-0005
Week Defined

(1) A “week” as defined in subsection (10) of ORS 657.010 shall end on Saturday except that where an individual is attached to a regular employer a week may consist of any seven consecutive days approved by the Director. The provisions of this section shall not be construed to allow benefits for a period of less than seven days or for the same period more than once.

(2) Except for purposes of computing total base year wages under ORS 657.150(2) and benefit entitlement under ORS 657.150(4), a week is within that calendar quarter which includes the greater part of the week.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.010(10)
History:
ED 2-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 1-1984, f. & ef. 3-21-84
1DE 150, f. & ef. 2-9-76

471-030-0010
Assignment of Wages

For purposes of ORS 657.150(2) and (4) wages shall be assigned to the calendar quarter in which they are paid, in the same manner that taxes are payable pursuant to OAR 471-031-0070(1).

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.150(2) & 657.150(4)
History:
ED 3-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 1-1984, f. & ef. 3-21-84

471-030-0012
Standard Base Year Defined

As used in ORS 657.173(1)(b), “standard base year” means a regular base year or period that is not expanded in any way.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.610
History:
ED 4-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 5-2009, f. 10-30-09, cert. ef. 11-1-09
ED 3-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09

471-030-0015
Social Security Account Number

(1) Each employee in employment subject to the Employment Department Law shall procure a Federal Social Security Account Number and report this number to every employer for whom the employee is engaged in employment.

(2) Employers shall furnish appropriate Social Security Application forms to each employee who does not have an account number.

(3) It shall be the responsibility of the employer that such applications are filed by each such employee within 30 days after the date on which employment begins.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657
History:
ED 5-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 2-2003, f. 2-7-03 cert. ef. 2-9-03
1DE 150, f. & ef. 2-9-76

471-030-0017
Defining and Allocating Remuneration, Holidays, and Vacations

(1) The effective date of this rule is June 23, 2021.

(2) Definitions. For purposes of applying ORS 657.100 and 657.150, and as used in this rule:

(a) "Employment" means:

(A) Being in an employer-employee relationship during a period of time for which remuneration was paid or payable; or

(B) Providing a service or product for cash or cash value.

(b) "Earnings" means remuneration;

(c) Where an employer-employee relationship exists, "remuneration" means compensation resulting from the employer-employee relationship, including wages, salaries, incentive pay, sick pay, compensatory pay, bonuses, commissions, stand-by pay, and tips;

(d) Where no employer-employee relationship exists, "remuneration" means the gross amount of compensation for the product or service, less only the value of tangible components involved in producing or providing the product or service and limited to the tangible components that remain with the party receiving the service or product;

(e) "Bonus" means an extra payment given by an employer in consideration of performance, production or a share of profits;

(f) "Back pay" means payment awarded as reimbursement by an employer for loss of wages during a period for which no services were performed and no payment was intended;       

(g) For purposes of ORS 657.150(7), the term "holiday" means those holidays listed in 187.010(1)(b)-(k) and (2), 187.020 and any holiday designated by the employer, union contract or otherwise;

(h) For purposes of ORS 657.150(7), the term "vacation" means a specific period of time, paid or unpaid, during which the individual is freed from work/job/employment duties and responsibilities and is free to use the time away from work for any purpose the individual chooses.

(i) For purposes of ORS 657.150(6)(a), the term "minimum hourly wage" means the minimum wage rate as computed under 653.025(2).

(3) For purposes of section (1) of this rule, except for agricultural labor and domestic service, remuneration shall include the value, determined pursuant to OAR 471-031-0055(3), of compensation paid in any medium other than cash.

(4) Allocating Remuneration: For purposes of ORS 657.100 and 657.150(6) remuneration or an applicable prorate share thereof shall be allocated as follows:

(a) In the case of services, allocated to the week in which the service was performed;

(b) In the case of products, allocated to the week in which the product was sold;

(c) In the case of bonuses, allocated equally to the weeks during which the individual worked within the period being rewarded;

(d) If the dates of sale or service are not clearly established, allocation shall be made upon a reasonable estimate provided by the individual. If the individual cannot or will not provide a reasonable estimate, the remuneration shall be allocated equally over the period during which services were rendered or products were sold.

(5) Back pay is reportable for and deductible from unemployment insurance benefits, and shall be allocated as follows:

(a) When awarded after the end of a shutdown due to a lapse in federal appropriations, allocated equally to the weeks in which the shutdown occurred;

(b) When awarded in all other circumstances, allocated to the week in which it is paid.

Statutory/Other Authority: ORS 657.610, ORS 657.100 & 183.335(5)
Statutes/Other Implemented: ORS 657.100 & 657.150
History:
ED 17-2022, amend filed 12/14/2022, effective 12/14/2022
ED 6-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 2-2016, f. & cert. ef. 7-1-16
ED 3-2007, f. & cert. ef. 7-12-07
ED 8-2004, f. 12-17-04, cert. ef. 12-19-04

471-030-0020
Retirement Pay, Allocation of Periodic and Lump Sum Payments

(1) For the purposes of ORS 657.205(1) and (2), the Director shall apportion lump sum payments on the basis of the individual's regular rate of pay for full-time employment. For the purposes of this section, full-time employment shall be considered 40 hours of work per week except in those industries, trades or professions where due to practice, custom or agreement the usual work week is other than 40 hours.

(2) Periodic payments paid in other than weekly installments shall be converted in such a way as to achieve the same results as if they were paid in weekly installments. Monthly payments shall be converted to equivalent weekly amounts by multiplying the monthly payments amount by the fraction 12/52 and rounding the result to the nearest multiple of $1.

(3) Except as provided in ORS 657.205(3), an individual who elects to receive retirement benefits in a lump sum payment when the option exists to receive periodic payments during the individual's benefit year shall be considered eligible for periodic payments under 657.205(1). Such lump sum payment shall be apportioned as provided in 657.205(2) and section (1) of this rule and allocated beginning with the first week with respect to which the individual would have been eligible for a periodic payment.

(4) As used in ORS 657.205(3)(b), the term “dislocated worker” has the meaning given in 657.335(1).

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.205
History:
ED 7-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 17-2001, f. 12-19-01, cert. ef. 12-23-01
ED 1-1991, f. & cert. ef. 4-1-91
1DE 1-1984, f. & ef. 3-21-84
1DE 5-1980, f. 6-5-80, ef. 6-16-80
1DE 3-1980(Temp), f. 4-1-80, ef. 4-6-80
1DE 152, f. 9-28-77, ef. 10-4-77
1DE 150, f. & ef. 2-9-76

471-030-0021
Allocation of Wages

(1) When an individual is paid at irregular intervals as described in ORS 657.150(3), the individual shall be considered to have been paid on the first of the month for the time worked the previous month, except that where an agreement provides that the employer shall pay wages at some future date, the date specified by the agreement shall be used for base year wage allocation purposes.

(2) An individual who is paid at least once every 35 days is deemed to have been paid at regular intervals.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.150(3)
History:
ED 8-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 151, f. 9-28-77, ef. 10-4-77

471-030-0022
“Full-Time Work” Defined

“Full-time work,” for the purposes of ORS 657.100, is 40 hours of work in a week except in those industries, trades or professions in which most employers due to custom, practice, or agreement utilize a normal work week of more or less than 40 hours in a week.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.100
History:
ED 9-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 151, f. 9-28-77, ef. 10-4-77

471-030-0023
Incapable of Work for the Purpose of Extending the Base Year

(1) As used in ORS 657.170, “incapable of work” means inability to engage in any gainful occupation solely because of physical or mental defect, disease or injury as verified in writing by a licensed medical or therapeutic practitioner, or other evidence satisfactory to the Director.

(2) For purposes of applying ORS 657.170(2), where the date of the injury and the date on which claimant became temporarily totally disabled are not the same, the three-year time period for seeking a base year extension shall begin at the start of the claimant’s period of temporary total disability, not on the date of the injury.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.170
History:
ED 10-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 4-2004, f. 7-30-04, cert. ef. 8-1-04
1DE 3-1981, f. & ef. 2-16-81

471-030-0025
Claimant’s Responsibilities

(1) With all claims, an individual shall furnish the Director with their social security number and other information required for processing their claim. Such information may include, but is not limited to, information pertaining to prior work history, separations from work, current work activity and earnings, licenses or permits held, self-employment, entitlement to pay and allowances of various kinds, work seeking activity, working restrictions, and working ability. With respect to work activity or self-employment during any week claimed, the information required may include the type of work activity, the amount of time devoted to such activity, the gross and net amount of compensation, remuneration, wages, commission, salary, or income, if any, received or expected to be received, and any other factors material to a determination of eligibility for benefits.

(2) The claimant is required to furnish such information required for processing their claim within the time frame provided by the Director or an authorized representative of the Employment Department. Unless the time frame is otherwise defined under Employment Department statute or rule, or is specifically directed otherwise by an authorized representative of the Employment Department, the claimant is required to respond to all requests for information within the following time frames:

(a) For requests for information by letter mailed to the address of record, the claimant shall have five (5) calendar days to respond from the date the letter was mailed. When responding by mail, the date of the response shall be the date of the postmark affixed by the United States Postal Service. In the absence of a postmarked date, the date of the response shall be the most probable date of mailing as determined by the Employment Department.

(b) For requests for information by telephone message, fax, email, or other electronic means, the claimant shall have 48 hours to respond.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657
History:
ED 11-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 6-2017, f. & cert. ef. 9-1-17
1DE 3-1985, f. & ef. 12-16-85
1DE 152, f. 9-28-77, ef. 10-4-77
1DE 150, f. & ef. 2-9-76

471-030-0034
Reemployment Service Assistance and Eligibility

(1) In determining under ORS 657.156 whether an individual is likely to exhaust benefits and will need reemployment service assistance to make a successful transition to new employment the Employment Department may consider, but is not limited to, the following criteria:

(a) The individual’s job tenure in his/her primary occupation and industry;

(b) The individual’s education level;

(c) The individual’s reemployment rights (recall status) with his/her regular employer;

(d) Employment conditions in the individual’s primary occupation and industry;

(e) The insured unemployment rate in the locality where the individual resides or seeks work.

(2) “Justifiable cause” under ORS 657.156 means such circumstances that a reasonable and prudent person exercising ordinary common sense would fail to participate in reemployment services. For an individual with a permanent or long-term “physical or mental impairment” (as defined at 29 CFR § 1630.2(h)) justifiable cause for failure to participate in reemployment services is such that a reasonable and prudent person with the characteristics and qualities of such individual, would fail to participate.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.156
History:
ED 12-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 1-1997, f. 9-23-97, cert. ef. 9-29-97

471-030-0035
Work Registration

(1) A claimant may fulfill the "registered for work" requirements of ORS 657.155(1)(a) by completion of such processes as directed by the Director in order to create a full registration for work.

(2) “Full registration for work” as used in this rule, means providing information regarding the individual’s job qualifications, skills, training and experience as the Director or an authorized representative of the Director deems necessary to carry out job placement services for the individual.

(3) The provisions of this rule shall not apply to an individual claiming benefits as a "partially unemployed individual" as defined in OAR 471-030-0060.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.155
History:
ED 13-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 8-2005, f. 12-23-05, cert. ef. 12-25-05
1DE 2-1986, f. & ef. 4-14-86
1DE 150, f. & ef. 2-9-76

471-030-0036
Eligibility Factors

(1) In considering suitable work factors under ORS 657.190 and for purposes of determining eligibility under 657.155(1)(c), the Director may require an individual to actively seek the type of work the individual is most capable of performing due to prior job experience and training except that:

(a) If an individual is unable to secure the individual's customary type of work after contacting the potential employers in their labor market or if the individual is unable to meet the requirements of section (3) of this rule, the Director may require the individual to seek less desirable but similar work or work of another type which the individual is capable of performing by virtue of experience and training.

(b) If the type of work an individual is most capable of performing does not exist in the labor market where the individual is claiming benefits, the Director may require the individual to seek any work that exists in the labor market for which the individual is suited by virtue of experience and training.

(c) After the individual has contacted the potential employers in the labor market where benefits are being claimed and is still unable to obtain work as described in (1)(a) and (b) of this section, the Director may require the individual to further expand work-seeking activities.

(2) For the purposes of ORS 657.155(1)(c), an individual shall be considered able to work in a particular week only if physically and mentally capable of performing the work the individual is actually is seeking during all of the week except:

(a) An occasional and temporary disability for less than half of the week shall not result in a finding that the individual is unable to work for that week; and

(b) An individual with a permanent or long-term "physical or mental impairment" (as defined at 29 CFR 1630.2(h)) which prevents the individual from working full time or during particular shifts shall not be deemed unable to work solely on that basis so long as the individual remains available for some work.

(3) For the purposes of ORS 657.155(1)(c), an individual shall be considered available for work if, at a minimum, the individual is:

(a) Willing to work full time, part time, and accept temporary work opportunities, during all of the usual hours and days of the week customary for the work being sought, unless such part time or temporary opportunities would substantially interfere with return to the individual's regular employment; and

(b) Capable of accepting and reporting for any suitable work opportunities within the labor market in which work is being sought, including temporary and part time opportunities; and

(c) Not imposing conditions which substantially reduce the individual's opportunities to return to work at the earliest possible time; and

(d) Physically present in the normal labor market area as defined by section (6) of this rule, every day of the week, unless:

(A) The individual is actively seeking work outside his or her normal labor market area; or

(B) The individual is infrequently absent from the normal labor market area for reasons unrelated to work search, for less than half of the week, and no opportunity to work or referral to work was missed by such absence.

(e) However, an individual with a permanent or long-term physical or mental impairment (as defined at 29 CFR 1630.2(h)) which prevents the individual from working full time or during particular shifts shall not be deemed unavailable for work solely on that basis so long as the individual remains available for some work.

(f) For the purposes of ORS 657.155(1)(c), an individual is not available for work in any week claimed if:

(A) The individual has an opportunity to perform suitable work during the week and fails to accept or report for such work.

(B) During the week, the individual is incarcerated during any days or hours customary for the type of work the individual is seeking.

(i) “Incarcerated” means in custody at a city, county, state, or federal law enforcement or correctional facility to include any “arrest” as defined in ORS 133.005 or a similar law in another state or jurisdiction.

(ii) When an individual is in an alternative sentencing facility operated pursuant to a community corrections plan that individual will not be considered unavailable for work solely because of their non-traditional custody. Alternative sentencing is defined by the jurisdiction responsible for supervision of the suspect or offender.

(iii) “Incarcerated” does not include a “stop” as authorized under ORS 131.605 to 131.625.

(iv) “Incarcerated” does not mean being involved in questioning by peace officers as part of an investigation where the individual is free to leave and not charged with a crime.

(g) An individual will be considered not available for work if the individual fails or refuses to seek the type of work required by the Director pursuant to section (1) of this rule.

(h) Providing the individual is otherwise eligible for benefits pursuant to OAR 471-030-0036(3)(a) through (g), a person who has been found to be qualified for benefits under the provisions of ORS 657.176(2)(f) or (g) or 657.176(9)(b)(A) shall be considered available for work only during weeks in which the individual is enrolled in and participating in a recognized drug or alcohol treatment program if such participation was a condition in the determination to allow benefits. This provision does not apply if the individual has satisfactorily completed the course of treatment in accordance with the terms and conditions of the recognized treatment program.

(A) An individual is participating when engaged in a course of treatment through a recognized drug or alcohol rehabilitation program;

(B) A recognized drug or alcohol rehabilitation program is a program authorized and licensed under the provisions of OAR chapter 415.

(i) An individual is not available for work in any week claimed under ORS 657.155 if the individual resides or spends the major portion of the week:

(A) In Canada unless the individual is authorized to work in Canada;

(B) In a country not included in the Compact of Free Association with the United States of America; or

(C) outside of the United States, District of Columbia or any territory or political division that is directly overseen by the United States federal government; except,

(i) If the individual is the spouse or domestic partner of an individual stationed at a military base or embassy located outside the United States;

(ii) Job opportunities exist on the military base or embassy for family members of those stationed there;

(iii) The individual lives within a reasonable commuting distance to job opportunities at the military base or embassy; and

(iv) The individual is willing to accept the conditions and terms of the available employment provided they are not inconsistent with ORS 657.195.

(4) Notwithstanding the provisions of OAR 471-030-0036(3), an individual with a circumstance which restricts their availability such as, but not limited to, lack of childcare, caring for an immediate family member or another person in their household, lack of transportation, or attendance in school or training to improve their job skills or long-term employment opportunities, will not be deemed unavailable for work if:

(a) The work the individual is seeking or is otherwise willing to seek is customarily performed during other days and hours  in the individual's normal labor market area as defined by OAR 471-030-0036(6); and

(b) The individual is willing and capable of working full time during other days and hours for which they could reasonably expect employers to schedule them.

(5) This section addresses the requirements for actively seeking work, as required under ORS 657.155(1)(c):

(a) Unless the individual is temporarily unemployed, as described in section (b), or a member of a dispatching union, as described in section (c), a federal employee as described in section (d), or otherwise directed by the director or an authorized representative of the Employment Department, they must conduct at least five work-seeking activities per week. Two of the five work-seeking activities must be a direct contact with an employer who might hire the individual.

(A) Work seeking activities include but are not limited to registering for job placement services with the Employment Department, attending job placement meetings sponsored by the Employment Department, participating in a job club or networking group dedicated to job placement, updating a resume, reviewing the newspaper or job placement web sites without responding to a posted job opening, and making direct contact with an employer.

(B) Direct contact with an employer means making contact with an employer in person, by phone, mail, or electronically to inquire about a job opening or applying for job openings in the manner required by the hiring employer.

(b) For an individual who is temporarily unemployed:

(A) They are considered to be actively seeking work when they remain in contact with their regular employer and are capable of accepting and reporting for any suitable work with that employer;

(B) There is a reasonable expectation that they will be returning to work for their regular employer. The work the individual is returning to must be full time or pay an amount that equals or exceeds their weekly benefit amount;

(C) The department will not consider the individual to be temporarily unemployed if they were separated from their employer for reasons other than a lack of work, the work the individual is returning to is not with their most recent employer, or the length the individual is unemployed is longer than the period described in subsection (D) of this section; and

(D) The department will consider that the period for which an individual is temporarily unemployed:

(i) Begins the last date the individual performed services for the employer. In the case of an individual still working for the employer, it is the last date worked during the week in which the individual had earnings less than their weekly benefit amount; and

(ii) Cannot be greater than four weeks between the week the individual became temporarily unemployed and the week the individual returns to work as described in subsection (B) of this section.

(c) For an individual who is a member in good standing of a union that does not allow members to seek non-union work, such individual is actively seeking work by remaining in contact with that union and being capable of accepting and reporting for work when dispatched by that union if the union dispatches its members for work. If the union does not allow its members to accept non-union work but does not dispatch their members to available work, the individual must meet the requirements of subsection (a) of this section.

(d) For an individual who is a federal employee temporarily unemployed due to a government shutdown and expects to resume work with their regular employer once the shutdown ends, they are considered to be actively seeking work when they remain in contact with their regular employer and are capable of accepting and reporting for any suitable work with that employer.

(e) For an individual who is filing a continued claim for the first week of an initial or additional claim:

(A) If the individual worked less than full time and remuneration paid or payable to the individual for services performed during the week is less than the individual’s weekly benefit amount, each day the individual worked for the employer shall be considered a direct employer contact.

(B) An individual does not meet the requirements of this subsection if the individual performed no work for an employer during the first week of an initial or additional claim; therefore the individual must seek work consistent with subsection (a) of this section.

(f) In determining whether to modify the requirements in this section for an individual the Employment Department may consider among other factors, length of unemployment, economic conditions in the individual's labor market and prospective job openings, weather conditions affecting occupations or industries, seasonal aspects of the individual's regular occupation, expected date of return to work in regular occupation, seniority status of individual, registration with a union hiring hall and normal practices for obtaining the type of work which the individual is seeking pursuant to section (1) of this rule. The department shall provide a written copy of the work search requirements to the individual if the individual’s work search requirements are modified.

(6)(a) An individual's normal labor market shall be the geographic area surrounding the individual's permanent residence within which employees in similar circumstances are generally willing to commute to seek and accept the same type of work at a comparable wage. The geographic area shall be defined by employees of the Employment Department, based on criteria set forth in this section;

(b) When an individual seeks work through a union hiring hall, the individual's normal labor market area for the work sought is the normal referral jurisdiction of the union, as indicated by the applicable contract.

(7) Nothing in this rule shall prohibit an individual who is a citizen, permanent legal resident, or otherwise legally authorized to work in the United States from seeking work in other labor market areas in any state or country.

Statutory/Other Authority: ORS 657.610 & ORS 657.100
History:
ED 6-2022, minor correction filed 03/21/2022, effective 03/21/2022
ED 5-2022, amend filed 03/09/2022, effective 03/13/2022
ED 4-2021, temporary amend filed 09/23/2021, effective 09/26/2021 through 03/24/2022
ED 5-2020, temporary amend filed 07/30/2020, effective 08/02/2020 through 12/26/2020
ED 6-2019, amend filed 12/06/2019, effective 12/08/2019
ED 55-2018, amend filed 03/30/2018, effective 04/01/2018
ED 2-2014, f. 1-15-14, cert. ef. 2-23-14
ED 1-2014, f. 1-3-14, cert. ef. 2-23-14
ED 1-2006, f. 1-5-06, cert. ef. 1-8-06
ED 8-2004, f. 12-17-04, cert. ef. 12-19-04
ED 5-2003, f. 4-11-03, cert. ef. 4-13-03
ED 2-1997, f. 10-24-97, cert. ef. 11-3-97
ED 5-1994(Temp), f. 10-13-94, cert. ef. 10-16-94
ED 2-1992, f. & cert. ef. 6-29-92
1DE 1-1982, f. & cert. ef. 6-30-82
1DE 5-1979, f. & cert. ef. 8-27-79
1DE 4-1979(Temp), f. & cert. ef. 7-5-79
1DE 151, f. 9-28-77, cert. ef. 10-4-77

471-030-0037
Prevailing Rate of Pay

(1) For the purposes of ORS 657.176(2)(d), and for the purposes of ORS 657.195(1)(b), work is not suitable if the rate of pay is substantially less favorable than the rate prevailing in the locality. A rate of pay is substantially less favorable than the rate prevailing in the locality when the rate of pay is at least ten percent lower than the median rate of pay for similar work in the locality. The median rate of pay prevailing in the locality shall be determined by employees of the Employment Department adjudicating office using available research data compiled by the department.

(2) In applying the provisions of ORS 657.176(2)(e), and for the purposes of 657.195(1)(b), if inadequate rate of pay was one of the reasons for refusing to accept new work, the work is not suitable if the rate of pay is substantially less favorable than the rate of pay prevailing in the locality. A rate of pay is substantially less favorable than the rate prevailing in the locality when the rate of pay is at least ten percent lower than the median rate of pay for similar work in the locality. The median rate of pay prevailing in the locality shall be determined by employees of the Employment Department adjudicating office using available research data compiled by the department.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.176(2)(d), 657.176(2)(e) & 657.195(1)(b)
History:
ED 14-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 6-2011, f. & cert. ef. 8-3-11
ED 2-2011(Temp), f. 2-18-11, cert. ef. 3-1-11 thru 8-28-11
ED 4-2004, f. 7-30-04, cert. ef. 8-1-04
ED 2-1992, f. & cert. ef. 6-29-92
ED 2-1991, f. & cert. ef. 10-14-91
1DE 151, f. 9-28-77, ef. 10-4-77

471-030-0038
Work Separations, Job Referrals and Job Refusals

(1)(a) As used in ORS 657.176(2)(a), (b) and (c) and sections (1) through (5) of this rule the term "work" means the continuing relationship between an employer and an employee. An employment relationship exists even in circumstances where the work performed is not subject employment as set forth in ORS Chapter 657. This section does not apply where no employment relationship exists because the worker is an independent contractor or operating an independently established business. With the exception of the provisions of ORS 657.221(2)(a), the date an individual is separated from work is the date the employer-employee relationship is severed. In the case of individuals working for temporary agencies, employee leasing companies, or under a governmental program where a state agency serves as the employer of record for individuals performing home care services, the employment relationship shall be deemed severed at the time that a work assignment ends.

(b) In the case of absence due to labor dispute, the employee is separated from work on the date there is a complete dissociation from all participation in the labor dispute and no re-employment rights are claimed.

(c) As used in this rule, "wantonly negligent" means indifference to the consequences of an act or series of actions, or a failure to act or a series of failures to act, where the individual acting or failing to act is conscious of his or her conduct and knew or should have known that his or her conduct would probably result in a violation of the standards of behavior which an employer has the right to expect of an employee.

(d) As used in this rule, the following standards apply to determine whether an "isolated instance of poor judgment" occurred:

(A) The act must be isolated. The exercise of poor judgment must be a single or infrequent occurrence rather than a repeated act or pattern of other willful or wantonly negligent behavior.

(B) The act must involve judgment. A judgment is an evaluation resulting from discernment and comparison. Every conscious decision to take an action (to act or not to act) in the context of an employment relationship is a judgment for purposes of OAR 471-030-0038(3).

(C) The act must involve poor judgment. A decision to willfully violate an employer's reasonable standard of behavior is poor judgment. A conscious decision to take action that results in a wantonly negligent violation of an employer's reasonable standard of behavior is poor judgment. A conscious decision not to comply with an unreasonable employer policy is not misconduct.

(D) Acts that violate the law, acts that are tantamount to unlawful conduct, acts that create irreparable breaches of trust in the employment relationship or otherwise make a continued employment relationship impossible exceed mere poor judgment and do not fall within the exculpatory provisions of OAR 471-030-0038(3).

(e) For purposes of this rule, “compelling family reasons” means:

(A) Domestic violence, as defined in OAR 471-030-0150, which causes the individual reasonably to believe that the individual’s continued employment would jeopardize the safety of the individual or a member of the individual’s immediate family; or

(B) The illness or disability of a member of the individual’s immediate family necessitates care by another and the individual’s employer does not accommodate the employee’s request for time off; or

(C) The need to accompany the individual’s spouse or domestic partner;

(i) To a place from which it is impractical for such individual to commute; and

(ii) Due to a change in location of the spouse’s or domestic partner’s employment.

(f) As used in OAR 471-030-0150 and this rule, "a member of the individual’s immediate family” includes spouses, domestic partners, parents, and minor children under the age of 18, including a foster child, stepchild or adopted child.

(2) The distinction between voluntary leaving and discharge is:

(a) If the employee could have continued to work for the same employer for an additional period of time the separation is a voluntary leaving of work;

(b) If the employee is willing to continue to work for the same employer for an additional period of time but is not allowed to do so by the employer the separation is a discharge.

(3)(a) As used in ORS 657.176(2)(a) and (b) a willful or wantonly negligent violation of the standards of behavior which an employer has the right to expect of an employee is misconduct. An act or series of actions that amount to a willful or wantonly negligent disregard of an employer's interest is misconduct.

(b) Isolated instances of poor judgment, good faith errors, unavoidable accidents, absences due to illness or other physical or mental disabilities, or mere inefficiency resulting from lack of job skills or experience are not misconduct.

(c) The willful or wantonly negligent failure to maintain a license, certification or other similar authority necessary to the performance of the occupation involved is misconduct, so long as such failure is reasonably attributable to the individual.

(d) Discharge for “compelling family reasons,” when the individual has made the attempt to maintain the employer-employee relationship, is not misconduct.

(4) Good cause for voluntarily leaving work under ORS 657.176(2)(c) is such that a reasonable and prudent person of normal sensitivity, exercising ordinary common sense, would leave work. For an individual with a permanent or long-term "physical or mental impairment" (as defined at 29 CFR §1630.2(h)) good cause for voluntarily leaving work is such that a reasonable and prudent person with the characteristics and qualities of such individual, would leave work. Except as provided in OAR 471-030-0038(5)(g), for all individuals, the reason must be of such gravity that the individual has no reasonable alternative but to leave work.

(5) In applying section (4) of this rule:

(a) If an individual leaves work to accept an offer of other work good cause exists only if the offer is definite and the work is to begin in the shortest length of time as can be deemed reasonable under the individual circumstances. Furthermore, the offered work must reasonably be expected to continue, and must pay:

(A) An amount equal to or in excess of the weekly benefit amount; or

(B) An amount greater than the work left.

(b) Leaving work without good cause includes, but is not limited to:

(A) Leaving suitable work to seek other work;

(B) Leaving work rather than paying union membership dues;

(C) Refusing to join a bona fide labor organization when membership therein was a condition of employment;

(D) Leaving to attend school, unless required by law;

(E) Willful or wantonly negligent failure to maintain a license, certification or other similar authority necessary to the performance of the occupation involved, so long as such failure is reasonably attributable to the individual;

(F) Resignation to avoid what would otherwise be a discharge for misconduct or potential discharge for misconduct;

(G) Leaving work for self employment.

(c) Good cause for voluntarily leaving work while on layoff status shall be determined solely under the provisions of section (4) of this rule without regard to the provisions of subsections (a) and (b) of this section;

(d) Reduction in rate of pay: If an individual leaves work due to a reduction in the rate of pay, the individual has left work without good cause unless the newly reduced rate of pay is ten percent or more below the median rate of pay for similar work in the individual's normal labor market area. The median rate of pay in the individual's labor market shall be determined by employees of the Employment Department adjudicating office using available research data compiled by the department.

(A) This section applies only when the employer reduces the rate of pay for the position the individual holds. It does not apply when an employee's earnings are reduced as a result of transfer, demotion or reassignment.

(B) An employer does not reduce the rate of pay for an employee by changing or eliminating guaranteed minimum earnings, by reducing the percentage paid on commission, or by altering the calculation method of the commission.

(C) An employer does not reduce the rate of pay by loss or reduction of fringe benefits.

(D) If the Employment Department cannot determine the median rate of pay, the provisions of OAR 471-030-0038(4) apply.

(e) Reduction in hours: If an individual leaves work due to a reduction in hours, the individual has left work without good cause unless continuing to work substantially interferes with return to full time work or unless the cost of working exceeds the amount of remuneration received;

(f) Where the gravity of the situation experienced by the individual results from his or her own deliberate actions, to determine whether good cause exists, the actions of the individual in creating the grave situation must be examined in accordance with the provisions of section (4) of this rule.

(g) Leaving work with good cause includes, but is not limited to, leaving work due to compelling family reasons.

(6) As used in ORS 657.176(2)(d) and (e), the term "work" means the performance of services for which remuneration, compensation or wages is intended to be received or earned. Good cause as used in ORS 657.176(2)(d) and (e) is such that a reasonable and prudent person, exercising ordinary common sense, would refuse to apply for available suitable work when referred by the employment office or accept suitable work when offered by the employer. For an individual with a permanent or long-term "physical or mental impairment" (as defined at 29 CFR Sec. 1630.2(h)) good cause is such that a reasonable and prudent person with the characteristics and qualities of such individual, would refuse to apply for available suitable work when referred by the employment office or accept suitable work when offered by the employer. In determining disqualification under this section, consideration shall be given to suitable work factors and exceptions as set forth in ORS 657.190 and 657.195.

Statutory/Other Authority: 657.260, 657.265, 657.610 & ORS 657.176
Statutes/Other Implemented: ORS 657.176 & ORS 410.619
History:
ED 6-2020, minor correction filed 09/22/2020, effective 09/22/2020
ED 59-2018, amend filed 12/21/2018, effective 12/23/2018
ED 15-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 6-2011, f. & cert. ef. 8-3-11
ED 2-2011(Temp), f. 2-18-11, cert. ef. 3-1-11 thru 8-28-11
ED 6-2009, f. 10-30-09, cert. ef. 11-1-09
ED 1-2009(Temp), f. 6-25-09, cert. ef. 6-29-09 thru 12-26-09
ED 8-2004, f. 12-17-04, cert. ef. 12-19-04
ED 13-2001, f. 11-2-01, cert. ef. 11-4-01
ED 7-2001(Temp), f. 5-17-01, cert. ef. 5-20-01 thru 11-11-01
ED 6-1999, f. 9-23-99, cert. ef. 9-26-99
ED 4-1993, f. & cert. ef. 11-22-93
ED 2-1993(Temp), f. & cert. ef. 8-12-93
ED 5-1992, f. & cert. ef. 12-14-92
1DE 2-1986, f. & ef. 4-14-86
1DE 1-1984, f. & ef. 3-21-84
1DE 5-1979, f. & ef. 8-27-79
1DE 1-1979(Temp), f. & ef. 4-30-79

471-030-0039
Administrative Decisions

(1) Administrative decisions made in compliance with the requirements of ORS 657.267 and 657.268 shall be based upon reliable information, gathered as necessary by the authorized representative from the claimant, employers and other sources as appropriate.

(2) Written notice of administrative decisions shall be provided as required in ORS 657.267 and 657.268 and shall be personally delivered or mailed to the parties or their authorized agents at their last address of record.

(3) Each administrative decision for which notice is required shall contain, as a minimum:

(a) Identification of the parties;

(b) Identification of the issues, laws and rules involved;

(c) Facts, reasoning and conclusions necessary for clarity and understanding;

(d) A statement allowing or denying benefits;

(e) The date of the decision;

(f) The date the decision becomes final; and

(g) A statement of appeal rights and procedures.

Statutory/Other Authority: ORS 183.335, 657.260, 657.265 - 657.270, 657.335, 657.610, 729 & OL 1993
Statutes/Other Implemented: ORS 657.267, 657.268 & 657
History:
ED 16-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 4-1994, f. & cert. ef. 9-2-94
1DE 1-1984, f. & ef. 3-21-84
1DE 4-1983(Temp), f. & ef. 9-28-83
1DE 5-1979, f. & ef. 8-27-79

471-030-0040
Initial, Additional, and Reopened Claims

(1) As used in these rules, unless the context requires otherwise:

(a) "Claimant" is an individual who has filed an initial, additional, or reopened claim for unemployment insurance purposes within a benefit year or other eligibility period;

(b) An "initial claim" is a new claim that is a certification by a claimant completed as required by OAR 471-030-0025 to establish a benefit year or other eligibility period;

(c) "Additional claim" is a claim certification by a claimant completed as required by OAR 471-030-0025 that restarts a claim during an existing benefit year or other eligibility period and certifies to the end of a period of employment;

(d) "Reopened claim" is a certification by a claimant completed as required by OAR 471-030-0025 that restarts a claim during an existing benefit year or other eligibility period and certifies that there was no employment in any week since last reporting on this claim;

(e) "Backdating" occurs when an authorized representative of the Employment Department corrects, adjusts, resets or otherwise changes the effective date of an initial, additional or reopened claim to reflect filing in a prior week. Backdating may occur based upon evidence of the individual's documented contact on the prior date with the Employment Department or with any other state Workforce agency, or as otherwise provided in this rule.

(2) For the purposes of filing an initial, additional, or reopened claim:

(a) When delivered in person to any Employment Department office in the state of Oregon, the date of filing shall be the date of delivery, as evidenced by the receipt date stamped or written by the public employee who receives the document;

(b) When filed by mail, the date of filing shall be the date of the postmark affixed by the United States Postal Service. In the absence of a postmarked date, the date of filing shall be the most probable date of mailing as determined by the Employment Department;

(c) When filed by fax, the date of filing shall be the encoded date on the fax document unless such date is absent, illegible, improbable or challenged, in which case the fax receipt date, if available, shall be the date of filing. If a filing date cannot otherwise be determined, the filing date shall be the most probable date of faxing as determined by the Employment Department;

(d) When filed by Internet, the date of filing shall be the initial date of transmission of the online claim; or

(e) When filed by telephone, the date of filing shall be the date recorded in the completed telephone initial claim record of the agency system or by an employee completing the filing of the claim record.

(f) An incomplete certification must be completed and returned within seven business days from the date of notification that the original was incomplete to preserve the original date of filing.

(3) An initial, additional, or reopened claim must be filed prior to or during the first week or series of weeks for which benefits, waiting week credit, or noncompensable credit is claimed and prior to or during the first week of any subsequent series thereafter. An initial claim is effective the Sunday of the calendar week in which it is filed. An authorized representative of the Employment Department will backdate an additional or reopened claim to the calendar week immediately preceding the week in which the request to backdate was made when a claimant requests backdating of the additional or reopened claim.

(4) The provisions of this section do not apply to an individual claiming benefits as a "partially unemployed individual," as defined in OAR 471-030-0060.

Statutory/Other Authority: ORS 657.610 & 657.155
Statutes/Other Implemented: ORS 657.155 & 657.260
History:
ED 17-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 2-2014, f. 1-15-14, cert. ef. 2-23-14
ED 1-2014, f. 1-3-14, cert. ef. 2-23-14
ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14
ED 14-2003, f. 12-12-03 cert. ef. 12-14-03
ED 1-1987, f. & ef. 1-12-87
1DE 1-1982, f. & ef. 6-30-82
1DE 152, f. 9-28-77, ef. 10-4-77
1DE 150, f. & ef. 2-9-76

471-030-0042
Good Prospects

In applying the provisions of ORS 657.325(8), an individual has good prospects for obtaining work if the Director finds that the individual could be reasonably expected to obtain work in the individual’s customary occupation within four weeks from the week-ending date of the week in which the job referral or job offer was made.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.325(8)
History:
ED 18-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 1-1982, f. & ef. 6-30-82
1DE 7-1981, f. 10-1-81, cert. ef. 10-1-81 & 10-4-81
1DE 5-1981(Temp), f. 4-3-81, cert. ef. 4-5-81

471-030-0043
Customary Occupation

In applying the provisions of ORS 657.325(8), customary occupation means any work that the individual is capable of performing based on experience and training with respect to the individual’s work history during the most recent three-year period prior to the failure to accept an offer of or referral to a job.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.325(8)
History:
ED 19-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 1-1982, f. & ef. 6-30-82
1DE 7-1981, f. 10-1-81, cert. ef. 10-1-81 & 10-4-81
1DE 6-1981(Temp), f. & cert. ef. 4-10-81

471-030-0044
Systematic and Sustained Search for Work

(1) For purposes of ORS 657.325(10), the term “systematic and sustained effort to obtain work” means:

(a) “Systematic effort” is a thorough search for work conducted in accordance with a written plan that is calculated to produce positive results and that has been approved by the Director or the authorized representative.

(b) “Sustained effort” is ongoing work-seeking activity personally performed by the individual within each week for which the individual claims benefits and which is reasonably calculated to obtain work at the earliest possible time. Passive availability alone, including registration with a union or unions, a temporary/leasing agency or agencies or a state workforce agency or agencies, does not meet this standard.

(c) To satisfy the requirements of (a) and (b), above, an individual must perform a more diligent and intense effort to obtain work than that required to satisfy eligibility requirements for regular benefits.

(2) An authorized representative of the Employment Department must provide written notice, as outlined in 20 CFR Ch. V Part 615.8(h)(1)–(4), of the meaning the term “systematic and sustained effort to obtain work” to the individual as it applies to the individual’s work-seeking activities. The Department must provide this notice prior to any week for which the individual is denied eligibility as a result of the application of this term.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.325
History:
ED 20-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-030-0045
Continued Claims

(1) As used in these rules, unless the context requires otherwise:

(a) "Continued Claim" means an application that certifies to the claimant's completion of one or more weeks of unemployment and to the claimant's status during these weeks. The certification may request benefits, waiting week credit, or non-compensable credit for such week or weeks. A continued claim must follow the first effective week of an initial, additional or reopen claim, or the claimant's continued claim for the preceding week;

(b) A "non-compensable credit week" is a week of unemployment for which benefits [shall] will not be allowed but which may qualify as a week allowed toward satisfying a disqualification as provided in ORS 657.215.

(2) A claimant, in order to obtain benefits, waiting week credit, or non-compensable credit for a week of unemployment, must file a continued claim for the week by any method approved by the Director.

(3) As directed by the Director, a continued claim must be filed:

(a) In person at any Employment Department office in the state of Oregon. When delivered in person to any Employment Department office in the state of Oregon, the date of filing shall be the date of delivery, as evidenced by the receipt date stamped or written by the public employee who receives the document;

(b) By United States mail. When filed by mail, the date of filing shall be the date of the postmark affixed by the United States Postal Service. In the absence of a postmarked date, the date of filing shall be the most probable date of mailing as determined by the Employment Department;

(c) By fax. When filed by fax, the date of filing shall be the encoded date on the fax document unless such date is absent, illegible, improbable or challenged, in which case the fax receipt date, if available, shall be the date of filing. If a filing date cannot otherwise be determined, the filing date shall be the most probable date of faxing as determined by the Employment Department;

(d) By Internet. When filed on line, the date of filing shall be the initial date of transmission of the on line continued claim; or

(e) By telephone. When filed by telephone, the date of filing shall be the date marked, stamped, or imprinted on the document by the agency system that records the oral request or by the employee accepting the continued claim.

(4) A continued claim must be filed no later than seven days following the end of the week for which benefits, waiting week credit, or noncompensable credit, or any combination of the foregoing is claimed, unless:

(a) The continued claim is for the first effective week of the benefit year, in which case the week must be claimed no later than 13 days following the end of the week for which waiting week credit is claimed, or

(b) The claimant routinely files weekly claims by submitting a weekly paper certification forms, in which case the week is timely if it is filed to the Employment Department no later than seven days, as per sections (3)(a)–(c) of this rule, after the Employment Department originally sent the paper certification form to the claimant.

(5) The Director may, with respect to individual claimants or groups of claimants, direct that continued claims be filed on any reporting schedule appropriate to existing facilities and conditions.

(6) The provisions of this rule do not apply to an individual claiming benefits as a "partially unemployed individual," as defined in OAR 471-030-0060.

Statutory/Other Authority: ORS 657.610 & 657.155
Statutes/Other Implemented: ORS 657.155 & 657.260
History:
ED 21-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 2-2014, f. 1-15-14, cert. ef. 2-23-14
ED 1-2014, f. 1-3-14, cert. ef. 2-23-14
ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14
ED 14-2003, f. 12-12-03 cert. ef. 12-14-03
ED 4-1994, f. & cert. ef. 9-2-94
ED 4-1993, f. & cert. ef. 11-22-93
1DE 1-1984, f. & ef. 3-21-84
1DE 3-1981, f. & ef. 2-16-81
1DE 152, f. 9-28-77, ef. 10-4-77
1DE 150, f. & ef. 2-9-76

471-030-0046
Non-Cash Remuneration Applicable to Benefit Claims

(1) For the purposes of ORS 657.150(6), room and board and other non-cash remuneration provided to an individual in partial or full satisfaction for services performed, except in agricultural labor or domestic service, shall be considered as remuneration payable. The cash value of such remuneration shall be determined under the provisions of OAR 471-031-0055.

(2) “Agricultural labor,” as used in this section, means agricultural labor as defined in ORS 657.045(3), (4), (5), and (6).

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.150(6)
History:
ED 22-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 151, f. 9-28-77, ef. 10-4-77

471-030-0048
Amended Monetary Determinations

(1) An individual who receives a monetary claim determination under ORS 657.266(2) may request that the determination be amended. The Director upon receipt of such a request will examine wage records submitted to the Department by employers in an attempt to locate wages and/or hours of work alleged by the claimant to be missing. If the discrepancy involves only hours of work and the claimant has provided documentary evidence of hours sufficient to make the claim valid, the Director may issue a redetermination.

(2) If as the result of an investigation additional subject wages or hours of work are made available which either allow a non-valid claim to become valid, or increase the weekly benefit amount of a valid claim, a redetermination will be issued.

(3) If as the result of an investigation all or part of the requested wages or hours of work are not included in the claim determination, the Director will so notify the claimant. If the claimant requested an amended monetary determination as provided in section (1) of this rule within the period specified by ORS 657.266(5), such notice will be given by a determination amending or affirming the initial determination. Such notice shall be subject to appeal as provided in 657.266(5).

(4) An employer is affected by an amended determination issued under ORS 657.266(3) if it is found to have paid wages to a claimant, and is potentially affected if a claimant alleges wages were paid to him or her by that employer.

(5) If, during a hearing on an initial or amended determination issued under ORS 657.266(2) or (3), an issue arises as to whether wages at issue were actually paid to claimant by an employer that was not given notice of the initial or amended determination, that employer will become a party to that hearing. If the hearing has already commenced, it will be continued to allow reasonable time for the employer to be notified of the hearing.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.266
History:
ED 23-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 7-2011, f. & cert. ef. 8-3-11
ED 3-2011(Temp), f. 5-13-11, cert. ef. 7-1-11 thru 12-26-11
ED 2-2005, f. 4-29-05, cert. ef. 5-1-05
ED 2-1995, f. 8-29-95, cert. ef. 9-3-95
1DE 4-1981, f. & ef. 4-1-81
1DE 2-1981(Temp), f. & ef. 2-16-81

471-030-0049
Lost, Stolen or Destroyed Benefit Checks

The Director will proceed in the following manner when a benefit check has been lost, stolen or destroyed:

(1) For purposes of this rule:

(a) A benefit check is “lost” if the claimant never received an issued check, and the check’s whereabouts is unknown or it was received and cannot be found.

(b) A benefit check is “stolen” if the claimant never received an issued check, or it was received and the check was taken or cashed by another without the authorization of the payee, whether or not the other person’s identity is known.

(c) A benefit check is “destroyed” if an issued check has not been cashed and has been rendered nonnegotiable.

(d) “Forgery” of a benefit check has the same meaning as provided in ORS 165.007 and further defined in 165.002.

(2) If the benefit check has been issued but not cashed and the claimant completes a sworn statement that the benefit check was lost, stolen or destroyed, the check will be reissued if ten days from the date the original check was issued have elapsed. If the original check and replacement check are both received and cashed by the claimant, the claimant shall be liable for repayment of the overpayment.

(2) If the benefit check has been issued and cashed and it is alleged that the check was not signed by the claimant or the claimant's authorized agent, a determination will be made on the validity of the endorsement:

(a) If the endorsement is determined to be the claimant's or the claimant’s authorized agent, the Director will so notify the claimant by letter and no replacement check will be issued;

(b) In the case of forgery, or an unauthorized, non-valid or lack of endorsement, a replacement check will be issued if the claimant is due benefits, unless the claimant participated in forgery, received any portion of the benefits, or benefited from the funds.

(c) The agency will so advise the State Treasurer of the forged check.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.255
History:
ED 24-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 1-2006, f. 1-5-06, cert. ef. 1-8-06
1DE 3-1981, f. & ef. 2-16-81

471-030-0050
Benefit Payments

(1) Benefits shall be paid by such method as the Director may approve.

(2) The Employment Department’s primary payment method to any individual approved to receive unemployment insurance benefits is electronic funds transfer. “Electronic funds transfer” has the same meaning as provided in ORS 293.525.

(3) Individuals who do not apply for direct deposit will be paid by a stored value card, including but not limited to ReliaCard Visa.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.255
History:
ED 25-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 6-2007, f. 11-19-07, cert. ef. 12-3-07
ED 4-2007(Temp), f. & cert. ef. 9-26-07 thru 3-23-08
ED 8-2005, f. 12-23-05, cert. ef. 12-25-05
ED 2-2003, f. 2-7-03 cert. ef. 2-9-03
1DE 150, f. & ef. 2-9-76

471-030-0051
Cancellation of Overpayments, Tolerance Policy

(1) When any amount due to be repaid to the Director under the provisions of ORS 657.310, 657.315 or under any federal benefit or assistance program administered by the Employment Department is less than one dollar, such amount may be determined by the Director to be uncollectible and shall be canceled in accordance with the procedures in 657.320.

(2) For the purposes of ORS 657.320(1), “the state maximum weekly benefit amount then in effect” means the state maximum weekly benefit amount in effect on the date three years after the date the decision establishing the improper payment became final.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.310, 657.315 & 657.320
History:
ED 26-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 5-1979, f. & ef. 8-27-79
1DE 151, f. 9-28-77, ef. 10-4-77

471-030-0052
Misrepresentation Disqualification

(1) An authorized representative of the Employment Department shall determine the number of weeks of disqualification under ORS 657.215 according to the following criteria:

(a) When the disqualification is imposed because the individual failed to accurately report work and/or earnings, the number of weeks of disqualification shall be determined by dividing the total amount of benefits overpaid to the individual for the disqualifying act(s), by the maximum Oregon weekly benefit amount in effect during the first effective week of the initial claim in effect at the time of the individual's disqualifying act(s), rounding off to the nearest two decimal places, multiplying the result by four rounding it up to the nearest whole number.

(b) When the disqualification is imposed because the disqualifying act(s) under ORS 657.215 relates to the provisions of 657.176, the number of weeks of disqualification shall be the number of weeks calculated in the same manner as under subsection (a) above, or four weeks, whichever is greater.

(c) When the disqualification is imposed because the disqualifying act(s) relates to the provisions of ORS 657.155 (other than work and/or earnings), the number of weeks of disqualification shall be the number of weeks calculated in the same manner as under subsection (a) above, or the number of weeks in which a disqualifying act(s) occurred, whichever is greater.

(d) When the disqualification is imposed because the disqualifying act(s) under ORS 657.215 relates to the provisions of 657.176 and a failure to accurately report work and/or earnings, the number of weeks of disqualification shall be the number of weeks calculated in the manner set forth in subsection (a) plus four weeks.

(e) When the disqualification is imposed because the disqualifying act(s) relates to the provisions of ORS 657.155 (other than work and/or earnings) and a failure to accurately report work and/or earnings, the number of weeks of disqualification shall be the number of weeks calculated in the manner set forth in subsection (a) plus the number of weeks in which a disqualifying act(s) occurred relating to the provisions of 657.155 (other than work and earnings).

(2) The number of weeks of disqualification assessed under section (1) of this rule shall be doubled, but not to exceed 52 weeks, if the individual has one previous disqualification under ORS 657.215, and that prior disqualification determination has become final.

(3) Notwithstanding sections (1) and (2) of this rule, the number of weeks of disqualification under ORS 657.215 shall be 52 weeks if:

(a) The disqualification under ORS 657.215 is because the individual committed forgery; or

(b) The individual has two previous disqualifications under ORS 657.215, and those prior two disqualification determinations have become final.

(4) Notwithstanding sections (1), (2) and (3), an authorized representative of the Employment Department may determine the number of weeks of disqualification according to the circumstances of the individual case, but not to exceed 52 weeks.

(5) All disqualifications imposed under ORS 657.215 shall be served consecutively.

(6) Any week of disqualification imposed under ORS 657.215 may be satisfied by meeting all of the eligibility requirements of Chapter 657, other than 657.155(1)(e).

(7) The department will review the number of occurrences of misrepresentation when applying the penalty as described in ORS 657.310(2). An occurrence shall be counted each time an individual willfully makes a false statement or representation, or willfully fails to report a material fact to obtain benefits. The department shall use the date the individual failed to report a material fact or willfully made a false statement as the date of the occurrence. For an individual subject to disqualification by administrative action under 657.215, the penalty will be:

(a) For the first or second occurrence within 5 years of the occurrence for which a penalty is being assessed, 15 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(b) For the third or fourth occurrence within 5 years of the occurrence for which a penalty is being assessed, 20 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(c) For the fifth or sixth occurrence within 5 years of the occurrence for which a penalty is being assessed, 25 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(d) For the seventh or greater occurrence within 5 years of the occurrence for which a penalty is being assessed, 30 percent of the total amount of benefits the individual received but to which the individual was not entitled.

(e) In cases of forgery or identity theft, 30 percent of the amount of benefits the individual received but to which the individual was not entitled.

(8)(a) Under ORS 657.215, the Director or an authorized representative of the Employment Department may determine it is proper and equitable to cancel the disqualification if:

(A) All benefits, interest, penalties, fees, and court costs have been paid in full;

(B) Three or more years have passed since the decision assessing the number of weeks of disqualification was issued; and

(C) The department has issued only one decision assessing weeks of disqualification to the individual within the last 10 years from the date of the request to cancel.

(b) For the purposes of the section (c) of this rule, an “occurrence” is each time an individual willfully makes a false statement or representation, or willfully fails to report a material fact to obtain benefits within the same willful misrepresentation decision.

(c) The Director or an authorized representative of the Employment Department shall determine the amount of weeks applicable for cancellation under ORS 657.215 according to the following criteria:

(A) The individual has satisfied the requirements of subsection (a);

(B) When the individual has committed one occurrence of violating ORS 657.215 within the same willful misrepresentation decision, the director may cancel the remaining weeks of disqualification in whole.

(C) When the individual has committed two occurrences of violating ORS 657.215 within the same willful misrepresentation decision, the director may cancel half the weeks of disqualification.

(D) When the individual has committed three or more occurrences of violating ORS 657.215 within the same willful misrepresentation decision or the disqualification under 657.215 is because the individual committed forgery, weeks of disqualification shall not be cancelled.

(d) Weeks of disqualification served prior to the request for cancellation shall not be cancelled.

Statutory/Other Authority: ORS 657.610 & 657.155
Statutes/Other Implemented: ORS 657.155, 657.215 & 657.310
History:
ED 27-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 2-2014, f. 1-15-14, cert. ef. 2-23-14
ED 1-2014, f. 1-3-14, cert. ef. 2-23-14
ED 3-2013(Temp), f. 9-10-13, cert. ef. 10-1-13 thru 3-28-14
ED 8-2008, f. 5-20-08, cert. ef. 7-1-08
ED 3-2008(Temp), f. & cert. ef. 2-15-08 thru 8-13-08
ED 10-2003, f. 7-25-03, cert. ef. 7-27-03
1DE 151, f. 9-28-77, ef. 10-4-77

471-030-0053
Waiving Recovery of Overpayments

(1) The effective date of this rule is June 23, 2024.

(2) This rule addresses waiving recovery of overpayments pursuant to ORS 657.317.

(3) Overpayments will be waived if recovery of benefits is against equity and good conscience based on the following criteria

(a) Automatic waiver criteria, the individual has claimant non-fault overpayment and

(A) Has reported wages in the last four quarters that are less than or equal to 300% of the federal poverty level for a family of four, OR

(B) Is a recipient of Temporary Assistance for Needy Families (TANF) within the 60 days prior to establishing the overpayment.

(b) If automatic waiver criteria does not apply, claimants may request a waiver which will be allowed if

(A) The individual has claimant non-fault overpayment and

(i) Does not meet the automatic waiver criteria listed in subsection (a) and the size of their family, as defined in subsection (c) below, exceeds four persons and reported wages in the last 4 quarters that are less than or equal to 300% of the federal poverty level for the size of family listed by the claimant on the waiver request, OR

(ii) Was not receiving Temporary Assistance for Needy Families (TANF) at the time the overpayment was established and is receiving TANF at the time the waiver request is submitted.

(B) The individual has a claimant fault non-fraud overpayment and

(i) Has reported wages in the last four quarters that are less than or equal to 200% of the federal poverty level for a family of four, OR

(ii) The size of their family, as defined in subsection (c) below, exceeds four persons and reported wages in the last 4 quarters that are less than or equal to 200% of the federal poverty level for the size of family listed by the claimant on the waiver request, OR

(iii) Is a recipient of Temporary Assistance for Needy Families (TANF) within the 60 days prior to establishing the overpayment or is receiving TANF at the time the waiver request is submitted.

(c) For purposes of 471-030-0053 (b) (A) (i) and (B) (ii) “family” includes those individuals listed in OAR 471-030-0038(1)(f) that are financially supported by the claimant.

(d) All requests to waive a wage garnishment for claimant non-fault and claimant fault non-fraud overpayments will be considered to be requests to waive the overpayment and the criteria set forth in (3) (a) and (b) will be applied to the request.

(4) If a waiver is granted, the department will stop collection activity of the overpaid benefits that are waived. OED will give written notice of any waivers that are granted, indicating the amount of the overpaid benefits for which the waiver is granted.

(5) Any funds, which would otherwise have been restored to the balance of the claim impacted by the overpayment decision, will be removed if the overpayment is waived so the individual does not receive more than the claim’s maximum benefit amount.

(6) Waivers are effective the Sunday of the week in which the request for waiver was filed with OED. OED shall apply the provisions under OAR 471-010-0040 in determining the date the request for waiver is received.

(7) If a request for waiver of recovery is denied, the individual will receive an administrative decision as defined in OAR 471-030-0039.

(8) Overpaid benefits that have been recovered prior to the filing of a waiver request will not be waived or refunded.

(9) If the individual is paid more than once for the same week(s), only the amount in excess of the final entitlement is eligible to be waived.

(10) In applying ORS 657.315 when the individual is not eligible for a waiver under the provisions of this rule, the provisions under OAR 471-030-0320 shall apply for offsetting overpaid benefits.

(11) In applying ORS 657.317(3), a waiver will not be granted if the overpayment is a result of willful misrepresentation or fraud as established in ORS 657.215.

(12) Overpayments caused by the negotiation of an original and a replacement check that were issued for the same period pursuant to OAR 471-030-0049 will not be waived.

(13) The determination to waive recovery of overpayments under ORS 657.317 and this rule shall be made by employees authorized by the Director.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.267, 657.268, 657.315 & 657.317
History:
ED 4-2024, amend filed 06/21/2024, effective 06/23/2024
ED 1-2023, amend filed 03/15/2023, effective 03/15/2023
ED 28-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 2-2014, f. 1-15-14, cert. ef. 2-23-14
ED 1-2014, f. 1-3-14, cert. ef. 2-23-14
ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14
ED 11-2011, f. & cert. ef. 12-5-11
ED 4-2011(Temp), f. & cert. ef. 6-29-11 thru 12-15-11
ED 2-1995, f. 8-29-95, cert. ef. 9-3-95

471-030-0054
Theft Cases

For purposes of satisfying ORS 657.176(3)(b), any person, party or entity may present the Employment Department with the written admission.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.176
History:
ED 29-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-030-0055
Continuous Jurisdiction

(1) In accordance with the provisions of subsection (2) of ORS 657.290, the following employees are designated by the Director as having the authority to act for and in the name of the Director in matters of reconsideration and correction of decisions and claims, to the full extent provided in subsections (1) and (2) of ORS 657.290:

(a) Assistant Director for Unemployment Insurance;

(b) Manager of Benefits.

(2) If the Director finds, as new facts not previously known to the Director or the designees specified in section (1) of this rule, that a claimant or an employing unit has suffered or would suffer substantial adverse effect because of:

(a) Misinformation provided to such party by an employee of the Employment Department; or

(b) Improper application of Employment Department Law or administrative rules by an employee of the Employment Department, the Director, or one of the designees specified in section (1) of this rule, may take appropriate action to restore to the injured party all rights and benefits which were improperly denied.

(3) Notice of action taken in accordance with the provisions of section (2) of this rule shall be provided to all other parties who may suffer substantial adverse effect as a result of the correcting action taken. Such notice shall be subject to hearing, review and appeal in accordance with ORS 657.265 to 657.282.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.290
History:
ED 30-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 4-2004, f. 7-30-04, cert. ef. 8-1-04
ED 5-1992, f. & cert. ef. 12-14-92
ED 1-1987, f. & ef. 1-12-87
1DE 2-1984, f. & ef. 9-28-84
1DE 1-1984, f. & ef. 3-21-84
1DE 5-1979, f. & ef. 8-27-79
1DE 150, f. & ef. 2-9-76

471-030-0056
Investigatory Subpoenas

(1) Investigators or their supervisors may issue and cause to be served subpoenas which compel the attendance of witnesses, order the production of any books, papers, contracts, accounts, records, documents or other physical evidence, or both, as described in but not limited to information in ORS 657.660, in the possession of any person, company or corporation. Such subpoenas shall relate to a scheduled hearing or pertain to the discovery of information necessary to carry out the Employment Department’s statutory duties.

(2) In connection with subpoenas issued pursuant to this rule, no witness fees or mileage shall be paid other than for attendance at a scheduled hearing. When witness fees and mileage are payable pursuant to this rule, payment shall be made in the same manner and subject to the same conditions as provided for in OAR 471-040-0020(6) and (7).

(3) An employer, employing unit, company or corporation that fails to comply with a subpoena in accordance with ORS 657.660 and this rule, shall be subject to the penalty provided in 657.990(4).

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.660 & 657.990
History:
ED 31-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 1-2006, f. 1-5-06, cert. ef. 1-8-06

471-030-0057
Payment of Benefits Due a Deceased Person

(1) Any individual who requests receipt of benefits due a deceased person in accordance with ORS 657.255(2) will be required by the Director to complete a notarized affidavit attesting to the death of the claimant and to the individual’s relationship to the claimant.

(2) If there is no surviving spouse and benefits are requested by one or more surviving children, the child requesting the benefits must furnish the Director, in addition to the affidavit required in section (1) of this rule, with statements signed by each of the other surviving children authorizing payment to the petitioning child. The statement(s) may be waived if the petitioner can demonstrate to the satisfaction of the Director that there are no other surviving children or that any other surviving child or children cannot be located.

(3) If there is no surviving spouse and no surviving children and benefits are requested by either the claimant’s mother or father, the petitioner must furnish the Director, in addition to the affidavit required in section (1) of this rule, a signed statement by the other parent authorizing payment to the petitioning parent. The statement may be waived if the petitioner can demonstrate to the satisfaction of the Director that the other parent is deceased or cannot be located.

(4) No benefit checks will be reissued to survivors other than those listed in sections (1), (2), or (3) of this rule. In the absence of a valid petition, the benefit check(s) will be canceled and the monies permanently returned to the benefit fund.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.255
History:
ED 32-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 1-1984, f. & ef. 3-21-84
1DE 3-1981, f. & ef. 2-16-81

471-030-0058
Offset of Unemployment Compensation Debt Through U.S. Treasury Offset Program

(1) The Oregon Employment Department may submit liquidated unemployment insurance overpayments and delinquent taxes for offset against federal tax refunds and federal non-tax payments through the "Treasury Offset Program" under 26 USC 6402(f) and 31 CFR 285.8. For purposes of this rule, “liquidated” means legally enforceable because:

(a) The liability is assessed by the department;

(b) The department has made written demand for payment of the liability;

(c) The debtor is not in bankruptcy; and

(d) All relevant appeal periods for contesting the liability have expired.

(2) Notice of intent to offset. Before submitting an unemployment insurance overpayment or delinquent tax debt to Financial Management Service, U.S. Treasury for offset against a federal refund or a federal non-tax payment, the Oregon Employment Department must send written notice of intent to offset to the debtor by mail.

(3) Disagreement procedures. If a debtor disagrees with the notice of intent to offset and wants reconsideration, the debtor must submit a letter of disagreement within 60 days of the date shown on the notice of intent to offset. The debtor must provide, and the department will limit consideration to, evidence that the debt scheduled for offset is not:

(a) Past due; or

(b) Legally enforceable.

(4) If the debtor claims that the debt is not legally enforceable, the department will consider the merits of such a claim unless the issue has already been finally adjudicated by the Office of Administrative Hearings, Employment Appeals Board, or court of competent jurisdiction in a proceeding to which the department is a party.

(5) Review of disagreement. For each letter of disagreement provided by the debtor, the department will:

(a) Review evidence provided by the debtor, and

(b) Remove debtor’s name from the federal refund offset list for this debt if evidence supports the debtor’s position that the debt is not past due or is not legally enforceable.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.610, 657.155, 657.260 & SB 259 2013
History:
ED 7-2019, amend filed 12/06/2019, effective 12/08/2019
ED 33-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 5-2017, f. & cert. ef. 8-25-17
ED 2-2014, f. 1-15-14, cert. ef. 2-23-14
ED 1-2014, f. 1-3-14, cert. ef. 2-23-14
ED 2-2013(Temp), f. 8-22-13, cert. ef. 9-1-13 thru 2-26-14

471-030-0060
Procedure for Payment of Benefits for Partial Unemployment

(1) As used in these rules, a partially unemployed individual is one who:

(a) Has been working full time and remains attached to their usual and regular employer; and

(b) Now works some but less than their customary full time hours for such employer because of lack of full time work;

(c) Has earnings less than their weekly benefit amount; and

(d) Expects to return to full time work for such employer.

(2) A "Notice and Verification of Partial Unemployment" is a form furnished or approved by the Employment Department which sets forth the procedures for filing unemployment insurance claims during periods of partial unemployment and makes provisions for both employer and worker certifications to facts material to a determination of eligibility for benefits.

(3) In order to claim benefits for a week of partial unemployment, an individual need not be registered for work but must:

(a) Within 30 calendar days after termination of the week for which benefits are claimed, request from the employer or an Employment Department UI Center, a "Notice and Verification of Partial Unemployment" for such week; and

(b) Mail or fax the completed notice to an Employment Department UI Center within 14 calendar days after receiving the form.

(4) A claimant who had been receiving benefits for partial unemployment may continue to file claims as a partially unemployed individual under this section for four consecutive weeks of total or part-total unemployment with no wages from the regular employer. The conditions of ORS 657.155 as respects registration shall not apply so long as the individual remains attached to the regular employer. If the claimant has no employment and no wages from such regular employer for a fifth consecutive week, he or she no longer qualifies as a partially unemployed individual. In order to continue to claim benefits, the individual must register for work and file continued claims in accordance with the provisions of OAR 471-030-0045. However, such claimant shall not be denied benefits for failure to register as stated herein if the failure was due to omission or neglect by an employee of the Employment Department to advise the claimant of such requirement.

Statutory/Other Authority: ORS 657 & 657.610
Statutes/Other Implemented: ORS 657.255 & 657
History:
ED 34-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 8-2005, f. 12-23-05, cert. ef. 12-25-05
ED 2-1992, f. & cert. ef. 6-29-92
1DE 152, f. 9-28-77, ef. 10-4-77
1DE 150, f. & ef. 2-9-76

471-030-0065
Discretionary Filing Procedures

(1) Pursuant to the provisions of ORS 657.155(1)(a) and to support the policy of prompt payment of benefits when due, the Director may discretionally authorize the use of special or alternative forms and procedures for filing unemployment insurance claims under any of the following conditions:

(a) Mass layoffs from employment;

(b) Irregular working schedules;

(c) Plant, factory, firm, or business closure;

(d) Extraordinary weather conditions;

(e) Damage or impairment to Employment Department facilities;

(f) Disaster;

(g) Petroleum fuel shortages; or

(h) Other unusual conditions.

(2) In the exercise of the Director's discretion the Director shall consider:

(a) The number of claimants and employing units affected;

(b) Travel, transportation, and mailing facilities;

(c) Frequency of and anticipated duration of periods of unemployment;

(d) Prospects of reemployment for unemployed workers;

(e) Labor organization involvement;

(f) Administrative expense and feasibility; and

(g) Any other factors that may be significant and material.

(3) When an official identified in section (4) of this rule finds that any of the conditions specified in section (1) of this rule exists, that official may:

(a) Waive the registration requirements of ORS 657.155 for up to four consecutive weeks for which benefits are claimed;

(b) Waive the initial, additional or reopened claim filing requirements of OAR 471-030-0040(3) to permit filing such claims in a week subsequent to the time period allowed in OAR 471-030-0040. The time extension is to be determined by the Director in a manner calculated to insure equity and provide prompt payment of benefits and may vary from one set of circumstances to another.

(4) The use of special forms and procedures as proposed by this rule may be authorized by the following employees only:

(a) Deputy Director;

(b) Assistant Director for Unemployment Insurance;

(c) Manager of Benefits.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.255
History:
ED 35-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 8-2005, f. 12-23-05, cert. ef. 12-25-05
ED 4-2004, f. 7-30-04, cert. ef. 8-1-04
ED 1-1991, f. & cert. ef. 4-1-91
1DE 2-1984, f. & ef. 9-28-84
1DE 1-1984, f. & ef. 3-21-84
1DE 3-1981, f. & ef. 2-16-81
1DE 5-1979, f. & ef. 8-27-79
1DE 150, f. & ef. 2-9-76

471-030-0071
Benefit eligibility during a declared emergency

Unless otherwise provided, the provisions of this rule apply retroactively, beginning September 13, 2020. 
(1) During a state of emergency declared by the Governor under ORS 401.165, or a public health emergency declared under ORS 433.441, the Director of the Employment Department may waive, otherwise limit, or modify the requirements of OAR 471-030-0036, 471-030-0038, and 471-030-0053.
(2) To the extent reasonably possible the Department shall give public notice of the new requirements. The public notice shall include the effective dates for the new requirements. 
(3) The new requirements may not extend beyond 90 days from the end of the state of emergency or public health emergency.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657
History:
ED 7-2020, adopt filed 10/22/2020, effective 10/25/2020

471-030-0074
School Employees

(1) The effective date of this rule shall apply retroactively to September 1, 2021.

(2) An “academic year” is the time frame within 12 months and separated by break periods in which an educational institution, program(s) within an educational institution, or location(s) of an educational institution ordinarily operates to provide courses of study. 

(3) The provisions of 657.221 (5) shall apply when the individual performs the majority of their job duties in the occupation while working in the industry classified as educational services. 

(4) ORS 657.167 and 657.221 apply when the individual claiming benefits was not unemployed, as defined by ORS 657.100, during the relevant period in the preceding academic year or term. The relevant period is:

(a) The week prior to the holiday or vacation period when the week(s) claimed commenced during a holiday or vacation period.

(b) The prior academic year or term when the week(s) claimed commenced during a customary recess period between academic terms or years, unless there is a specific agreement providing for services between regular, but not successive terms.

(c) The last academic year or term when the week(s) claimed commenced during a recess between non-consecutive academic terms or years when there is a specific agreement providing for services between regular, but not successive terms.

(5) The provisions of ORS 657.167 and 657.221 apply regardless of whether or not the individual performed services only during an academic year or in a year-round position.

(6) When an individual performs services for more than one educational institution, any wages earned by the individual working for an institution for which there is a contract or reasonable assurance are excluded from the determination of the individual’s weekly and maximum benefit amount during the period between academic year, term or remainder of a term.

(7) In accordance with ORS 657.660, each educational institution shall provide the Employment Department, annually, the time frames for their break, vacation, or holiday periods. Failure to do so will result in a determination based on the shortest established time frames for similar institutions.

Statutory/Other Authority: ORS 657.610 & 657.100(3)
Statutes/Other Implemented: 657.100(3), ORS 657.221 & 657.167
History:
ED 7-2022, amend filed 04/15/2022, effective 04/20/2022
ED 5-2021, temporary amend filed 10/22/2021, effective 10/22/2021 through 04/19/2022
ED 1-2020, amend filed 01/03/2020, effective 01/05/2020
ED 56-2018, amend filed 04/25/2018, effective 04/29/2018
ED 1-2007, f. & cert. ef. 1-29-07
ED 13-2006(Temp), f. 12-1-06, cert. ef. 12-3-06 thru 6-1-07
ED 4-2004, f. 7-30-04, cert. ef. 8-1-04

471-030-0075
Contract or reasonable assurance defined

(1) The following must be present before determining whether an individual has a contract or reasonable assurance:

(a) There must be an offer of employment, which can be written, oral, or implied. The offer must be made by an individual with authority to offer employment.

(b) The offer of employment during the ensuing academic year or term must be in the same or similar capacity as the service performed during the prior academic year or term. The term ‘same or similar capacity’ refers to the type of services provided: i.e., a ‘professional’ capacity as provided by ORS 657.167 or a ‘nonprofessional’ capacity as provided by ORS 657.221.

(c) The economic conditions of the offer may not be considerably less in the following academic year, term or remainder of a term than the employment in the first year or term. The term ‘considerably less’ means the employee will not earn at least 90% of the amount, excluding employer paid benefits, than the employee earned in the first academic year or term, or in a corresponding term if the employee does not regularly work successive terms (i.e. the employee works spring term each year).

(2) An individual has a contract to perform services during the ensuing academic year, term, or remainder of a term when there is an enforceable, non-contingent agreement that provides for compensation for an entire academic year or on an annual basis.

(3) An individual has reasonable assurance to perform services during the ensuing academic year, term, or remainder of a term when:

(a) The agreement contains no contingencies within the employer’s control. Contingencies within the employer’s control include, but are not limited to, the following:

(A) Course Programming;

(B) Decisions on how to allocate available funding;

(C) Final course offerings;

(D) Program changes;

(E) Facility availability; and

(F) Offers that allow an employer to retract at their discretion.

(b) The totality of circumstances shows it is highly probable there is a job available for the individual in the following academic year or term. Factors to determine the totality of the circumstances include, but are not limited to:

(A) Funding, including appropriations;

(B) Enrollment;

(C) The nature of the course (required or options, taught regularly or sporadically);

(D) The employee’s seniority;

(E) Budgeting and assignment practices of the school;

(F) The number of offers made in relation to the number of potential teaching assignments; and

(G) The period of student registration.

(c) It is highly probable any contingencies not within the employer’s control in the offer of employment will be met.

(4) An individual who voluntarily leaves work for good cause, as defined under OAR 471-030-0038, does not have reasonable assurance with the employer from whom the person left work. 

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.167 & 657.221
History:
ED 56-2018, amend filed 04/25/2018, effective 04/29/2018
ED 4-2017, f. & cert. ef. 8-25-17
ED 2-2017(Temp), f. & cert. ef. 2-27-17 thru 8-25-17
ED 1-2007, f. & cert. ef. 1-29-07
ED 13-2006(Temp), f. 12-1-06, cert. ef. 12-3-06 thru 6-1-07
ED 4-2004, f. 7-30-04, cert. ef. 8-1-04
1DE 3-1985, f. & ef. 12-16-85
1DE 1-1984, f. & ef. 3-21-84
1DE 152, f. 9-28-77, ef. 10-4-77
1DE 150, f. & ef. 2-9-76

471-030-0076
Benefits for Athletes

(1) As used in ORS 657.186, "any services, substantially all of which consist of participating in sports or athletic events" means all services performed by an individual in any subject employment during their base year if such individual was engaged in remunerative sports or athletic events for 90 percent or more of the total time spent in subject employment during such base year.

(2) As used in this section, "participating in sports or athletic events" means any services performed in an athletic activity by an individual as:

(a) A regular player or team member;

(b) An alternate player or team member;

(c) An individual in training to become a regular player or team member;

(d) An individual who, although performing no active services, is retained as a player or team member while recuperating from illness or injury.

(3) The beginning and ending dates of any sport season and the beginning and ending dates of the time period between two successive sport seasons shall be determined by the Director after taking into consideration factors of custom and practice within a particular sport, published dates for beginning and ending of a season and any other information bearing upon such determination.

(4) For the purposes of ORS 657.186, a reasonable assurance that an individual will perform services in sports or athletic events in a subsequent season is presumed to exist if:

(a) The individual has an express or implied multi-year contract which extends into the subsequent sport season; or

(b) The individual is free to negotiate with other teams or employers for employment as a participant in the subsequent sport season; and

(c) There is reason to believe that one or more employers of participants in athletic events is considering or would be desirous of employing the individual in an athletic capacity in the subsequent sport season; and

(d) The individual has not clearly and affirmatively withdrawn from participating in remunerative and competitive sports or athletic events.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.186
History:
ED 36-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 7-2006, f. 7-5-06, cert.ef. 7-9-06
ED 2-2006(Temp), f. & cert. ef. 1-12-06 thru 7-11-06
ED 2-2003, f. 2-7-03 cert. ef. 2-9-03
1DE 5-1979, f. & ef. 8-27-79
1DE 151, f. 9-28-77, ef. 10-4-77

471-030-0077
Benefits for Aliens

(1) With respect to the application of the provisions of ORS 657.184, any data or information required of an applicant to obtain verification as to the individual’s status as an alien or a citizen shall, on the initial claim application, be uniformly applied to all individuals applying for benefits or for a determination of benefit rights, regardless of ethnic, racial, or linguistic characteristics of the applicant.

(2) When the determination that benefits are not to be paid is based upon a finding that an individual does not meet the requirements of ORS 657.184, such findings must be supported by a preponderance of the evidence.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.184
History:
ED 37-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 5-1979, f. & ef. 8-27-79
1DE 151, f. 9-28-77, ef. 10-4-77

471-030-0079
Shared Work Plans and Benefits

(1) The beginning date for a shared work plan shall be no earlier than the week after the plan is approved.

(2) An initial claim for shared work benefits is effective the week filed. An initial claim for shared work benefits submitted prior to the start week of the employer's shared work plan will be filed effective the week the employer's shared work plan becomes effective.

(3) When an incomplete form is submitted by the employer, the Employment Department shall send a request for information to the employer. If the requested information is supplied by the employer within seven calendar days of the date of the request, the date on the original form will be honored.

(4) If an employee's work schedule is reduced by more than 50% in a week covered by a shared work plan, the employee may use hours from other paid time, such as vacation time, to bring the work hour reduction within the  10% to 50% range required to receive shared work benefits.

(5) As determined by the Department, paid time used for the purposes of serving jury duty, bereavement leave, the employee being sick, caring for a member of the employee's immediate family who is sick, or in response to a declared emergency as defined in OAR 471-030-0071 shall count as hours worked during the week. However, this does not apply when the employee misses an opportunity to work for other reasons.

(a) Example 1: An employer's shared work plan reduces the regular working hours from 40 hours to 20 hours per week (a reduction of 50%). The employer has 20 hours of work available but the employee misses a day of work to provide care for an immediate family member who is sick. The employee may use paid time for the day to bring them within the 10% to 50% range required to receive shared work benefits.

(b) Example 2: An employer's shared work plan reduces regular working hours from 40 hours to 20 hours per week (a reduction of 50%). The employer has 20 hours of work available but the employee does not work some of the available hours because they traveled out of state for vacation purposes. The employee missed an opportunity to work and cannot use other paid time to bring their work hour reduction within the 10% to 50% required to receive shared work benefits.

(6) For purposes of section (5) of this rule, the term “immediate family” has the same meaning as the term is defined in OAR 471-030-0038(1)(f).

(7) The provisions of 471-030-0079(4) and (5) do not apply when an entire week of work for the shared work employer is missed.

(8) For purposes of ORS 657.155(1)(c), during any week an employee is not eligible for shared work benefits and files a claim for regular unemployment insurance benefits, the employee will be considered actively seeking work if:

(a) The employee remains in contact with the shared work employer; and

(b) The employee has been given a date to return to either full time work, their normal weekly hours of work, or to working the number of hours required to qualify for shared work benefits; and

(c) The date to return to work is within four calendar weeks following the week the employee did not meet the hourly reduction requirements for shared work eligibility.

(9) Continued claims for shared work benefits shall be completed by the shared work employee and submitted to the Employment Department no later than seven days following the end of the week for which benefits, waiting week credit, non-compensable credit week, or any combination of these is claimed. Shared work employees must provide the Employment Department all information needed to claim a week of shared work benefits. Such information may include, but is not limited to, information about work and earnings for another employer, missed opportunities to work, or other paid time used during the week being claimed.
 

Statutory/Other Authority: ORS 657.610, ORS 657.100, ORS 183.335 & ORS 183.355
Statutes/Other Implemented: ORS 657.370, ORS 657.375, ORS 657.380, ORS 657.385 & ORS 657.390
History:
ED 3-2024, amend filed 03/15/2024, effective 03/17/2024
ED 9-2023, temporary amend filed 09/22/2023, effective 09/24/2023 through 03/21/2024
ED 2-2021, amend filed 06/21/2021, effective 06/25/2021
ED 9-2020, temporary suspend filed 12/24/2020, effective 12/27/2020 through 06/24/2021
ED 38-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 3-2016, f. & cert. ef. 8-1-16

471-030-0080
Career and Technical Training

(1) Career and technical training, as defined in ORS 657.335, shall not be approved by the Director unless the public or private institution, school, or agency offering such program is certified or licensed by the Oregon State Board of Education, the Superintendent of Public Instruction, the Oregon Workforce Investment Board, or another Oregon State agency authorized to grant such certification or license or an equivalent state agency in the state where the training is to be provided.

(2) Career and technical training shall not be approved by the Director if the Director finds that the planned curriculum of classes and course activity is less than the equivalent of full-time student status as defined by the training provider. The Director may waive this requirement if:

(a) Classes needed to complete the training are not available to the individual; or

(b) The number of classes needed to complete the training is less than the equivalent of a full-time schedule.

(3) To receive benefits for any week during career and technical training, a dislocated worker who is otherwise eligible for unemployment insurance benefits must:

(a) Submit a written application for approval of career and technical training on forms prescribed or approved for such purpose by the Director, with the Employment Department Benefits Section — UI Training Programs Unit within 90 days of:

(A) Certification as a dislocated worker; or

(B) Termination from the dislocating employment; or

(C) The filing of a claim for unemployment insurance benefits; and

(b) Submit to the Employment Department a timely claim for such week in accordance with OAR 471-030-0045(4) which establishes the individual:

(A) Was physically present in the individual’s labor market as defined in OAR 471-030-0036(6); and

(B) Attended and participated in all scheduled classes for each week of approved career and technical training; or

(C) If the individual failed to attend or participate in all scheduled classes during the week, was able and available for work; and

(c) At the end of each term provide to the Employment Department grades or completion of program documentation from the training facility which certifies that the claimant was satisfactorily pursuing the approved career and technical training; and

(4) Decisions of the Director to approve or disapprove an application for course approval or to discontinue such approval for one or more weeks during career and technical training or to approve or deny supplemental benefits under the provisions of ORS 657.335 through 657.360 shall be in writing, shall set forth the reasons therefore, and shall be served upon the claimant by mailing to the claimant's last known address of record with the Employment Department.

(5) As used in ORS 657.335(1):

(a) "Eligible dislocated workers" includes:

(A) For purposes of ORS 657.345(1), any worker attending training financed wholly or in part, or directly delivered by, a recipient or subrecipient administering Title 1B of the Workforce Investment Act of 1998 (P.L. 105-220).

(B) For purposes of ORS 657.345(2), any worker identified as dislocated by the Employment Department under ORS 657.335(1).

(b) "Unlikely to return to their previous industry or occupation” includes the following:

(A) The individual has been identified as meeting the Worker Profiling Program participation threshold developed by the Employment Department, or

(B) The individual has been permanently separated from an employer in an occupation identified as declining by the Employment Department in that geographic area in which the claimant resides, or

(C) The individual has been evaluated and referred to training by a vocational rehabilitation provider, including but not limited to Vocational Rehabilitation Division, Workers Compensation Division, or a private insurance carrier.

(c) "Long-term unemployed" means unemployed from the dislocated occupation for at least 15 of the last 26 weeks or for at least 8 consecutive weeks immediately prior to application (including survival jobs during such period).

(6) In applying the provisions of ORS 657.340, the Director may approve a program of instruction, including transfer credit programs of instruction given at community colleges, leading toward a baccalaureate or higher degree or training that has for its purpose the preparation of persons for employment in occupations which require a baccalaureate or higher degree from institutions of higher education if:

(a) The individual does not have significant transferable skills for other occupations in the statewide labor market;

(b) Unless previously approved in accordance with the provisions of Title IB of the Workforce Investment Act of 1998 (P.L. 105-220), the individual is within 48 quarter credit hours (or the semester equivalent) from completing the baccalaureate or higher degree; and

(c) Completing the baccalaureate or higher degree offers the best chance of long term employment.

(7) As used in ORS 657.340(2), "attendance in career and technical training" means the period of time beginning with the starting date of the training and ends with satisfactory completion of the training program. The period of time defined in this section includes customary academic recesses for holidays and between academic terms but does not include the customary academic summer recess. For purposes of applying 657.340(2), an individual may be determined not to be in "attendance in career and technical training" as defined in this section if the individual fails to demonstrate satisfactory progress and attendance as defined in section (3) of this rule.

(8) As used in ORS 657.340(3), "terms and conditions" includes "benefit year" as defined in 657.010(3). In applying the provisions of 657.340(3), the benefit year of an eligible dislocated worker may be extended, whether or not the benefit year has expired, if the eligible dislocated worker has not filed a subsequent initial claim establishing a new benefit year.

(9) The determination that an individual meets the definition of dislocated worker may be made by the Employment Department for purposes of paying benefits under ORS 657.335 to 657.360.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.335 - 657.360
History:
ED 39-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 3-2012, f. & cert. ef. 3-5-12
ED 10-2011(Temp), f. & cert. ef. 9-13-11 thru 3-9-12
ED 11-2008, f. & cert. ef. 9-16-08
ED 10-2005, f. 12-29-05, cert. ef. 1-1-06
ED 11-2003, f. 7-25-03, cert. ef. 7-27-03
ED 8-2002, f. 11-22-02 cert. ef. 11-24-02
ED 6-2001, f. 4-20-01, cert. ef. 4-22-01
ED 5-2001(Temp), f. 4-6-01, cert. ef. 4-7-01 thru 10-4-01
ED 5-2000, f. 10-6-00, cert. ef. 10-8-00 thru 4-6-01
ED 1-1996, f. 4-24-96, cert. ef. 4-29-96
ED 4-1994, f. & cert. ef. 9-2-94
ED 1-1993, f. & cert. ef. 3-22-93
ED 4-1992(Temp), f. & cert. ef. 10-19-92
ED 3-1992, f. & cert. ef. 6-29-92
Reverted to ED 1-1991, f. & cert. ef. 4-1-91
ED 4-1991(Temp), f. & cert. ef. 12-30-91
ED 1-1991, f. & cert. ef. 4-1-91
1DE 2-1983, f. & ef. 8-12-83
1DE 1-1983(Temp), f. & ef. 3-9-83
1DE 150, f. & ef. 2-9-76

471-030-0081
Relief of Charges to Employers

(1) For the purposes of ORS 657.471(7)(a)(B), the "most recent separation from the employer" means the latest separation from such employer at the time notice of an initial valid determination of a claim filed by an individual is mailed to the employer's last known address as shown by the records of the Employment Department.

(2) The effective date for implementing this rule shall apply retroactively, beginning October 7, 2013.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.471(7)
History:
ED 40-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 5-2014, f. & cert. ef. 10-28-14
ED 4-2014(Temp), f. & cert. ef. 5-19-14 thru 11-1-14
1DE 151, f. 9-28-77, ef. 10-4-77

471-030-0082
Charge Relief for Part-Time Work

(1) For purposes of ORS 657.471(9)(a) and (c):

(a) "Part-time work" means hours of work which are less than full-time as defined in OAR 471-030-0022;

(b) "Substantially the same amount" means wages have been earned by the part-time employee, with respect to a week in the benefit year, in an amount equal to 90 percent or more of the claimant's average part-time weekly base year wage as determined in accordance with section (2) of this rule.

(2) A claimant's average part-time weekly base year wage shall be calculated by dividing the claimant's total base year part-time wages paid by the employer requesting relief of charges, by the total weeks of part-time work associated with such wages.

(3) The effective date for implementing this rule shall apply retroactively, beginning October 7, 2013.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.471(10)
History:
ED 41-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 5-2014, f. & cert. ef. 10-28-14
ED 4-2014(Temp), f. & cert. ef. 5-19-14 thru 11-1-14
1DE 2-1984, f. & ef. 9-28-84

471-030-0083
Employer Penalties

For the purposes of ORS 657.471:

(1) A request for information means when the Department asks an employer or its representative to provide the Department with information regarding Unemployment Insurance by:

(a) A written notice of claim filing as provided in ORS 657.265, where an individual was discharged, suspended, or voluntarily left work;

(b) Any communication made by mail, telephone, or electronically, to an employer or agent of the employer relating to a notice of claim filing as provided in ORS 657.265 regarding an individual’s discharge, suspension, or voluntary leaving work;

(c) Any communication made by mail, telephone, or electronically, to an employer or agent of the employer in order for the department to make a determination under ORS 657.215.

(2) An employer or agent of the employer has failed to respond timely when they do not respond within the time frame provided by the department to a request for information.

(3) An employer or agent of the employer has failed to respond adequately when:

(a) The employer or agent of the employer does not respond to a request for information; or

(b) The employer or agent of the employer responds to a request for information but provides incomplete or inaccurate information to the questions asked.

(4) An employer or agent of the employer has established a pattern when the employer or agent of the employer has failed to respond timely or adequately to the greater of:

(a) More than (2%) of the requests for information; or,

(b) More than (2) requests for information.

(5) For the purposes of this rule, the department will determine if the employer or agent of the employer has established a pattern of failing to respond timely or accurately to requests for information by reviewing requests for information during the previous twelve months ending the month prior to which the decision creating the overpayment of unemployment insurance benefits is issued.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: 657.610, 657.155, 657.260 & 657.471
History:
ED 42-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 2-2014, f. 1-15-14, cert. ef. 2-23-14
ED 1-2014, f. 1-3-14, cert. ef. 2-23-14

471-030-0095
Claim Cancellations

(1) An initial or amended determination may be canceled at any time provided the requirements of ORS 657.266(4) are met.

(2) Requests for cancellation may be taken by phone or in writing. Any written request must be signed by the claimant or by an authorized agent of the claimant.

(3) Cancellation will be denied if benefits have been paid. Benefits have been paid if the claimant negotiates a benefit check or if the claimant's account in a bank or similar financial institution has been credited with one or more benefit payments.

Statutory/Other Authority: ORS 183.335, 657.260, 657.265 - 657.270, 657.335, 657.610 & OL 1993 Ch. 729
Statutes/Other Implemented: ORS 657.266(4)
History:
ED 43-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 2-2005, f. 4-29-05, cert. ef. 5-1-05
ED 4-1994, f. & cert. ef. 9-2-94
1DE 151, f. 9-28-77, ef. 10-4-77

471-030-0097
Labor Disputes

The term “labor dispute” as used in the Employment Department law means any concerted or deliberate action by two or more individuals or by an employing unit resulting in either a strike or lockout in which wages, hours, working conditions or terms or employment of the individuals are involved.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.200
History:
ED 44-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 1-1982, f. & ef. 6-30-82
1DE 7-1980, f. & ef. 11-3-80
1DE 4-1980(Temp), f. & ef. 5-16-80

471-030-0100
Maximum Benefit Amount

For purposes of ORS 657.176(4) the term “maximum benefit amount” shall be the amount of benefit entitlement established under 657.150(5).

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.176(4)
History:
ED 45-2018, minor correction filed 01/11/2018, effective 01/11/2018
1DE 8-1981, f. & ef. 11-2-81

471-030-0120
Jury Duty

For purposes of ORS 657.155(1)(c), an individual who is in all respects otherwise eligible for unemployment insurance benefits shall not be denied benefits solely by reason of serving on jury duty provided:

(1) The individual does not miss an opportunity to perform suitable work as a result of jury duty; and

(2) The individual actively sought work during the hours and days of the week in which the individual was not engaged in serving on jury duty.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.155(1)(c)
History:
ED 46-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 2-2005, f. 4-29-05, cert. ef. 5-1-05
1DE 1-1982, f. & ef. 6-30-82

471-030-0125
Drug, Cannabis, and Alcohol Adjudication Policy

(1) Purpose. For purposes of any applicable provision of ORS 657.176, this rule establishes policy for adjudicating cases involving the use, sale, possession or effects of drugs, cannabis, or alcohol in the workplace.

(2) Definitions. For the purposes of this rule:

(a) For purposes of ORS 657.176(9), "workplace" means the employer's premises or any place at or in which an individual performs services for the employer or otherwise acts within the course and scope of employment.

(b) For purposes of ORS 657.176(9), an individual "fails or refuses to take" a drug, cannabis, or alcohol test when the individual does not take the test as directed by the employer in accordance with the provisions of an employer's reasonable written policy or collective bargaining agreement.

(c) For purposes of ORS 657.176(9) and 657.176(13), an individual is "under the influence" of intoxicants if, at the time of a test administered in accordance with the provisions of an employer's reasonable written policy or collective bargaining agreement, the individual has any detectable level of drugs, cannabis, or alcohol present in the individual's system, unless the employer otherwise specifies particular levels of drugs, cannabis, or alcohol in its policy or collective bargaining agreement.

(d) "Performing services for the employer" as used in ORS 657.176(9) and "during work" as used in ORS 657.176(9) mean that an employee is on duty and is, or is expected to be, actively engaged in tasks as directed or expected by the employer for which the employee will or expects to be compensated with remuneration.

(e) For purposes of ORS 657.176(9), an individual "tests positive" for alcohol, cannabis, or an unlawful drug when the test is administered in accordance with the provisions of an employer's reasonable written policy or collective bargaining agreement, and at the time of the test:

(A) The amount of drugs, cannabis, or alcohol determined to be present in the individual's system equals or exceeds the amount prescribed by such policy or agreement; or

(B) The individual has any detectable level of drugs, cannabis, or alcohol present in the individual's system if the policy or agreement does not specify a cut off level.

(f) An individual fails a test for alcohol, cannabis, or unlawful drugs when the individual tests positive as described in subsection (e) of this section.

(g) For purposes of ORS 657.176(9) and 657.176(13), "unlawful drug" means a drug which is unlawful for the individual to use, possess, or distribute under Oregon law. This term does not include a drug prescribed and taken by the individual under the supervision of a licensed health care professional and used in accordance with the prescribed directions for consumption, or other uses authorized by law.

(h) "Connection with employment" as used in ORS 657.176(9) means where such positive test affects or has a reasonable likelihood of affecting the employee's work, the employer's interest, or workplace.

(i) For purposes of ORS 657.176(9):

(A) "Recognized drug, cannabis, or alcohol rehabilitation program" means a program authorized and licensed by the State of Oregon, or another state.

(B) "Documentation of participation in the program" means a signed statement by an authorized representative of the recognized program that the individual is or was participating in a treatment program.

(C) "Participation" means to be engaged in a course of treatment through a recognized drug, cannabis, or alcohol rehabilitation program.

(3) For purposes of ORS 657.176(9), (10), and 657.176(13), a written employer policy is reasonable if:

(a) The policy prohibits the use, sale, possession, or effects of drugs, cannabis, or alcohol in the workplace; and

(b) The policy does not require the employee to pay for any portion of the test; and

(c) The policy has been published and communicated to the individual or provided to the individual in writing; and

(d) When the policy provides for drug, cannabis, or alcohol testing, the employer has:

(A) Probable cause for requiring the individual to submit to the test; or

(B) The policy provides for random, blanket or periodic testing.

(4) Probable Cause for Testing. For purposes of ORS 657.176(9), an employer has probable cause to require an employee to submit to a test for drugs, cannabis, alcohol, or a combination thereof if:

(a) The employer has, prior to the time of the test, observable, objective evidence that gives the employer a reasonable basis to suspect that the employee may be impaired or affected by drugs, cannabis, or alcohol in the workplace. Such evidence may include, but is not limited to, abnormal behavior in the workplace, a change in productivity, repeated tardiness or absences, or behavior which causes an on-the-job injury or causes substantial damage to property; or

(b) The employer has received reliable information that a worker uses or may be affected by drugs, cannabis, or alcohol in the workplace; or

(c) Such test is required by applicable state or federal law, or an applicable collective bargaining agreement that has not been declared invalid in final arbitration; or

(d) Such test is required or allowed pursuant to a reasonable agreement.

(5) Random, blanket and periodic testing. For purposes of ORS 657.176(9) and (10):

(a) A "random test for drugs, cannabis, or alcohol, or a combination thereof" means a test for drugs, cannabis, or alcohol, or a combination thereof given to a sample drawn from a population in which each member of the population has an equal chance to be selected for testing.

(b) A "periodic test for drugs, cannabis, or alcohol, or a combination thereof" means a drug, cannabis, or alcohol test or a combination thereof administered at prescribed intervals.

(c) A "blanket test for drugs, cannabis, or alcohol, or a combination thereof" means a test for drugs, cannabis, or alcohol, or a combination thereof applied uniformly to a specified group or class of employees.

(6) For purposes of ORS 657.176(9), (10), and (13), no employer policy is reasonable if the employer does not follow their own policy.

(7) For purposes of ORS 657.176(13), a reasonable agreement is a document signed by the employee as a condition of continued employment and:

(a) The agreement may require the employee to submit to drug, cannabis, or alcohol testing;

(b) The agreement may not require the employee to pay for the test; and

(c) The agreement may not require them to attend a rehabilitation program that causes a hardship to the individual.

(8) Failure to Apply or Failure to Accept:

(a) A requirement that job candidates submit to a pre-employment drug, cannabis, or alcohol test does not make the work unsuitable for purposes of ORS 657.176(2) and 657.190.

(b) If, after being referred by the Employment Department, an individual does not apply for otherwise suitable work because the employer requires a pre-employment drug, cannabis, or alcohol test, the individual has committed a disqualifying act, unless the individual is required to pay for costs associated with the drug, cannabis, or alcohol test.

(c) If an individual does not accept an offer of otherwise suitable work because the employer requires pre-employment drug, cannabis, or alcohol testing, the individual has committed a disqualifying act, unless the individual is required to pay for the costs associated with the drug, cannabis, or alcohol test.

(9) The employee is discharged or suspended for committing a disqualifying act if:

(a) The employee violates or admits a violation of a reasonable written employer policy governing the use, sale, possession or effects of drugs, cannabis, or alcohol in the workplace; unless in the case of drugs the employee can show that the violation did not result from unlawful drug use.

(b) In the absence of a test, there is clear observable evidence that the employee is under the influence of alcohol in the workplace.

(10) For the purposes of ORS 657.176(9) and (10):

(a) Testing for drugs, cannabis, or alcohol must be conducted in accordance with ORS 438.435.

(b) Breathalyzer tests for alcohol must be conducted in accordance with ORS 659A.300 and ORS 659.840.

(11) If the employer discharges or suspends an employee because of use, sale, or possession of drugs, cannabis, or alcohol in the workplace and the employer has no written policy regarding the use, sale, or possession of drugs, cannabis, or alcohol in the workplace, the provisions of OAR 471-030-0038 apply.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.176 & Ch. 792 & OL 2003 (SB 916)
History:
ED 47-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 1-2018, amend filed 01/05/2018, effective 01/07/2018
ED 5-2006, f. 3-9-06, cert. ef. 3-12-06
ED 17-2003, f. 12-31-03, cert. ef. 1-4-04

471-030-0126
Absence Due to Alcohol, Cannabis, or Drug Use

(1) "Drug" has the meaning given in ORS 475.005(6);

(2) "Documentation of program participation" means a signed statement by an authorized representative of the recognized program that the individual is or was participating in a treatment program;

(3) "Participation" means to be engaged in a course of treatment through a recognized drug, cannabis, or alcohol rehabilitation program;

(4) "Recognized drug, cannabis, or alcohol rehabilitation program" means a program authorized and licensed by the State of Oregon, or authorized and licensed by another state.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.176
History:
ED 48-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 1-2018, amend filed 01/05/2018, effective 01/07/2018
ED 4-2004, f. 7-30-04, cert. ef. 8-1-04
ED 1-2004(Temp), f. 4-9-04, cert. ef. 4-11-04 thru 10-8-04

471-030-0150
Domestic Violence

(1) As used in ORS 657.176(12) and for purposes of this rule, "a member of the individual’s immediate family” has the same meaning as the term is defined in OAR 471-030-0038(1).

(2) As used in ORS 657.176(12), "domestic violence" means the physical injury, sexual assault or forced imprisonment, or threat thereof, of a person by another who is related by blood or marriage or has a significant relationship with the other person at the present, or who has been related or has had a significant relationship at some time in the past, to the extent that the person's health, safety or welfare is harmed or threatened thereby.

(3) As used in ORS 657.176(12), "stalking" means:

(a) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person thereby alarming or coercing the other person;

(b) It is objectively reasonable for a person in the victim's situation to have been alarmed or coerced by the contact; and

(c) The repeated and unwanted contact causes the individual or a member of the individual’s immediate family reasonable apprehension regarding the personal safety of the individual or the family member.

(4) As used in ORS 657.176(12), "sexual assault" means any unwanted touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.

(5) The effective date for implementing this rule shall be June 29, 2009.

Statutory/Other Authority: ORS 657.176 & 657.610
Statutes/Other Implemented: ORS 657.176 & HB 2767 (OL 2001)
History:
ED 49-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 7-2009, f. 10-30-09, cert. ef. 11-1-09
ED 2-2009(Temp), f. 6-25-09, cert. ef. 6-29-09 thru 12-26-09
ED 7-2005, f. & cert. ef. 12-15-05
ED 4-2005(Temp), f. & cert. ef. 7-5-05 thru 12-17-05
ED 3-2005(Temp), f. & cert. ef. 6-24-05 thru 12-17-05
ED 13-2001, f. 11-2-01, cert. ef. 11-4-01

471-030-0174
Child Support Intercept Appeals

(1) An individual who has had benefits withheld pursuant to ORS 657.780 shall have appeal rights from such action. Such appeal must be filed in writing within 20 days of the mailing of an affected benefit payment and shall be confined to the issues provided in section (2) of this rule.

(2) A hearing in such cases shall be conducted by an administrative law judge assigned by the Office of Administrative Hearings. The hearing shall be conducted pursuant to OAR chapter 471, division 040, and shall be limited to the issues of the authority of the Employment Department to withhold and the accuracy of the amount so withheld, or either one.

(3) A decision of the administrative law judge shall become final on the date of notification or the mailing thereof to the Director and to the individual at the last-known address of record with the Director.

(4) Judicial review of decisions under this rule shall be as provided in ORS 183.480 for review of orders in contested cases.

Statutory/Other Authority: ORS 657
Statutes/Other Implemented: ORS 657.780
History:
ED 50-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 8-2005, f. 12-23-05, cert. ef. 12-25-05
1DE 3-1985, f. & ef. 12-16-85
1DE 2-1982, f. & ef. 12-8-82

471-030-0210
Interstate Reciprocal Overpayment Recovery Arrangement

(1) The following rules shall govern the Oregon Employment Department in its administrative cooperation with other States adopting similar regulations for the recovery of overpayments.

(2) Definitions: As used in these rules unless the context clearly requires otherwise:

(a) "State" includes the District of Columbia, Puerto Rico, and the Virgin Islands.

(b) "Offset" means the withholding of an amount against benefits which would otherwise be payable for a compensable week of unemployment.

(c) "Overpayment" means an improper payment of benefits, from a State or Federal unemployment compensation fund that has been determined recoverable under the Requesting State's law.

(d) "Participating State" means a State which has subscribed to the Interstate Reciprocal Overpayment Recovery Arrangement.

(e) "Paying State" means the State under whose law a claim for unemployment benefits has been established on the basis of combining wages and employment covered in more than one State.

(f) "Recovering State" means the state that has received a request for assistance from a "Requesting State".

(g) "Requesting State" means the State that has issued a final determination of overpayment and is requesting another State to assist it in recovering the outstanding balance from the overpaid individual.

(h) "Transferring State" means a State in which a Combined Wage claimant had covered employment and wages in the base period of a paying State, and which transfers such employment and wages to the paying State for its use in determining the benefit rights of such claimant under its law.

(i) "Liable State" means any state against which an individual files, through another state, a claim for benefits.

(3) Recovery of State or Federal Benefit Overpayments:

(a) Duties of the Requesting State. The requesting State shall:

(A) Send the recovering State a written request or a request using an approved electronic application for overpayment recovery assistance which includes:

(i) Certification that the overpayment is legally collectable under the requesting State's law;

(ii) Certification that the determination is final and that any rights to postponement of recoupment have been exhausted or have expired;

(iii) A statement as to whether the State is participating in cross-program offset by agreement with the U.S. Secretary of Labor; and,

(iv) A copy of the initial overpayment determination and a statement of the outstanding balance.

(B) Send notice of this request to the claimant; and

(C) Send to the recovering State a new outstanding overpayment balance whenever the requesting State receives any amount of repayment from a source other than the recovering State (e.g., interception of tax refund, etc.).

(b) Duties of Recovering State. The Recovering State shall:

(A) Issue an overpayment recovery determination to the claimant which includes at a minimum:

(i) The statutory authority for the offset;

(ii) The name of the State requesting recoupment;

(iii) The date of the original overpayment determination;

(iv) Type of overpayment (fraud or nonfraud);

(v) Program type (UI, UCFE, UCX, TRA, etc.)

(vi) Total amount to be offset;

(vii) The amount to be offset weekly;

(viii) The right to request redetermination and appeal of the determination to recover the overpayment by offset.

(B) Offset benefits payable for each week claimed in the amount determined under State law; and

(C) Provide the claimant with a notice of the amount offset; and,

(D) Prepare and forward, no less than once a month, a payment representing the amount recovered made payable to the requesting State, except as provided in section (c) below.

(E) Retain a record of the overpayment balance in its files no later than the exhaustion of benefits, end of the benefit year, exhaustion or end of an additional or extended benefits period, or other extensions of benefits, whichever is later.

(F) The Recovering State shall not redetermine the original overpayment determination.

(c) Combined Wage Claims. When processing combined wage claims, the following shall apply:

(A) Recovery of Outstanding Overpayment in Transferring State. The paying State shall:

(i) Offset any outstanding overpayment in a Transferring State(s) prior to honoring a request from any other "Participating State" under this Arrangement.

(ii) Credit the deductions against the Statement Of Benefits Paid To Combined Wage Claimants, Form IB-6 or forward a check to the Transferring State as described in (b)(D).

(B) Withdrawal of Combined Wage Claim After Benefits Have Been Paid. Withdrawal of a Combined Wage Claim after benefits have been paid shall be honored only if the combined wage claimant has repaid any benefits paid or authorizes the new liable State to offset the overpayment.

(i) The Paying State shall issue an overpayment determination and forward a copy, together with an overpayment recovery request and an authorization to offset, with the initial claim to the new liable State.

(ii) The Recovering State (which is the new liable State) shall:

(I) Offset the total amount of any overpayment, resulting from the withdrawal of a Combined Wage claim, prior to the release of any payments to the claimant;

(II) Offset the total amount of any overpayment, resulting from the withdrawal of a Combined Wage Claim prior to honoring a request from any other Participating State under this arrangement;

(III) Provide the claimant with a notice for the amount offset; and,

(IV) Prepare and forward a check representing the amount recovered to the Requesting State as described in (b)(D).

(d) Cross-Program Offset: The Recovering State shall offset benefits payable under a State unemployment compensation program to recover any benefits overpaid under a Federal unemployment compensation program (as described in the Recovering State's Agreement with the Secretary of Labor) and vice versa, in the same manner as required under subsection (3)(b) and (c) of this Section, as appropriate, if the Recovering State and Requesting State have entered into an agreement with the U.S. Secretary of Labor to implement Section 303(g)(2) of the Social Security Act.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.155 & 657.760
History:
ED 51-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 2-2014, f. 1-15-14, cert. ef. 2-23-14
ED 1-2014, f. 1-3-14, cert. ef. 2-23-14
ED 2-2002, f. 3-29-02, cert. ef. 3-31-02
ED 12-2001(Temp), f. 10-12-01, cert. ef. 10-14-01 thru 4-7-02

471-030-0215
Union Referral List

As used in ORS 657.176(11)(c), “referral list under the collective bargaining agreement” means a list of unemployed members in good standing maintained by a union/labor organization to which the worker belongs. The union/labor organization maintains the referral list for the sole purpose of selecting, notifying, directing and dispatching eligible members to job openings with employers who have a contract/collective bargaining agreement with that union/labor organization and, based on the agreement, only hire members of that union/labor organization referred by that union/labor organization to perform specific categories of job duties. A referral list does not include any list maintained by a union/labor organization solely for the purpose of rehire or recall to the worker’s former/current position.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657
History:
ED 52-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 10-2008, f. 7-1-08, cert. ef. 8-1-08
ED 5-2008(Temp), f. & cert. ef. 4-24-08 thru 10-21-08

471-030-0220
Economically Distressed Worker Training

(1) As used in House Bill 3483, Enrolled Oregon 2009 Regular Session, and this rule:

(a) A “high-demand occupation” means one for which there are, or are expected to be reasonable employment opportunities in the area, or opportunities to develop a self-employment enterprise, and which are likely to become full-time endeavors paying at least 110 per cent of the minimum wage established under ORS 653.025.

(b) “High-demand occupations,” as defined in section (1) of this rule, will be determined by the Oregon Employment Department Workforce and Economic Research Section. High-demand occupations for an individual will be based upon the labor market of the individual’s permanent residence.

(c) “Attendance in economically distressed worker training” means attending training that is the equivalent of full-time status as defined by the training provider, and which begins with the starting date of the economically distressed worker training and ends with satisfactory completion of the training program. The period of time defined in this subsection includes customary academic recesses for holidays and between academic terms but does not include the customary academic summer recess.

(d) “Minimum wage” as used to determine gainful employment or self employment in HB 3483, Section 1, Subsection 1, is the minimum wage in effect at the beginning of the first week claimed under this program.

(e) “Minimum wage” as used to calculate an individual’s eligibility for economically distressed worker training in HB 3483, Section 1, Subsection 2 is the highest minimum wage in effect during the individual’s base year.

(f) “Minimum wage” as used to apply HB 3483, Section 2, is the minimum wage in effect at the time the work is offered.

(2) Application of Eligibility Criteria.

(a) The Employment Department will make the determination that an individual meets the definition of economically distressed worker for purposes of paying benefits under HB 3483. To determine whether an individual was employed in work paying less than 110 per cent of the minimum wage during the individual’s entire base year, the individual’s total base year wages will be divided by the number of hours the individual worked during the base year. The result will be compared to 110% of the applicable minimum wage, as defined in Section (1)(e) of this rule, to determine the individual’s eligibility.

(3) To receive benefits for any week while attending economically distressed worker training, an economically distressed worker who is otherwise eligible for unemployment insurance benefits must:

(a) Submit a written application for approval of economically distressed worker training on forms approved for such purpose by the Director to the Employment Department within 90 days prior to the start of training or school; and

(b) Submit to the Employment Department a timely claim for such week in accordance with procedures established in OAR 471-030-0045(4); and

(c) Attend half or more of the scheduled class days during such week unless the days missed will not prevent satisfactory completion of the approved economically distressed worker training.

(4) Decisions of the Director to approve or disapprove an application for training approval or to discontinue such approval for one or more weeks during economically distressed worker training will be issued in accordance with OAR 471-030-0039.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.610 & 2009 HB 3483
History:
ED 53-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 3-2010, f. & cert. ef. 4-14-10
ED 8-2009(Temp), f. 10-30-09, cert. ef. 11-1-09 thru 4-30-10

471-030-0225
Extended Benefits Look Back

As used in ORS 657.321 to ORS 657.329, when an individual’s benefit year ends before the start of an Extended Benefits period and federal law provides funding greater than 50% of Extended Benefits, the Director shall allow for an eligibility period that begins within the Extended Benefits period.

Statutory/Other Authority: ORS 657.610
History:
ED 54-2018, minor correction filed 01/11/2018, effective 01/11/2018
ED 4-2010, f. & cert. ef. 7-16-10
ED 2-2010(Temp), f. & cert. ef. 3-3-10 thru 8-29-10

471-030-0235
Self-employment Assistance Program

(1) As used in ORS 657.158(1)(b), “entrepreneurial training” means training that will develop skills in organizing, operating, and assuming the risk for a business venture.

(2) As used in ORS 657.158(3)(d), “full-time basis” means 40 hours each week.

(3) Any individual eligible for “regular benefits,” as defined in ORS 657.158(1)(a), can request to participate in self-employment assistance activities in accordance with ORS 657.158.

(4) Any individual submitting an application form to participate in the Self-employment Assistance program agrees to:

(a) Meet the terms and conditions of ORS 657.156 and 657.158, and OAR 471-030-0034;

(b) Obtain any necessary occupational certifications prior to submitting the application form. The Director may waive this requirement when such requirement would be inconsistent with the policy set forth in ORS 657.158; and

(c) As specified under ORS 657.158(1)(b) and (c), provide supporting documentation as required in writing by the Employment Department to demonstrate the completion of any types of “Self-employment assistance activities” within 45 calendar days of the date the individual was approved for the Self-employment Assistance program.

(5) All applications for the Self-employment Assistance program must:

(a) Be for a business that is legal to operate under the provisions of the federal government and the laws of the state in which the individual who owns the business is practicing their business;

(b) Be for a business that the individual is legally able to operate under the provisions of the federal government and the laws of the state in which the individual who owns the business is practicing their business; and

(c) Be for a business that has been reviewed for feasibility by the Employment Department in collaboration with a local Oregon Small Business Development Center network representative.

Statutory/Other Authority: ORS chapter 657, ORS 657.610 & 657.158
Statutes/Other Implemented: ORS 657.158
History:
ED 8-2019, amend filed 12/06/2019, effective 12/08/2019
ED 4-2019, renumbered from 471-020-0025, filed 08/02/2019, effective 08/04/2019
ED 5-2005, f. 7-15-05, cert. ef. 7-17-05

471-030-0320
Recovery by Offset of Overpaid Benefits and Recovery Periods

(1) The effective date of this rule is June 23, 2024.

(2) This rule addresses the percentage of future weekly benefits that may be offset pursuant to Oregon Revised Statute (ORS) 657.215, 657.310, and ORS 657.315.

(3) OED shall offset 100% of the benefits payable for each week claimed when the overpayment is due to misrepresentation under ORS 657.215.

(4) Effective June 23, 2024, OED shall offset 100% of the benefits payable for each week claimed when the overpayment is determined not liable for penalty under ORS 657.310(2)(a) except:

(a) If an individual meets the requirement for a waiver under OAR 471-030-0053 the overpayment is cancelled.

(b) If an individual's request for waiver submitted under OAR 471-030-0053 cannot be canceled under OAR 471-030-0053(3) and has reported wages in the last 4 quarters that are more than 200% of the federal poverty level for a family of four but less than 300% of the federal poverty level for a family of four, the department shall offset 50% of the benefits payable for each week claimed for a period of six (6) months. After six (6) months, the offset will be at 100%.

(c) When the overpayment is the result of back pay as described in OAR 471-030-0017, the department shall offset 50% of the benefits payable for each week claimed.

(5) Effective June 23, 2024, OED shall offset 50% of the benefits payable for each week claimed when the overpayment is determined to have been paid erroneously under ORS 657.315 including when the overpayment is the result of back pay as described in OAR 471-030-0017, except:

(a) If an individual meets the requirement for a waiver under OAR 471-030-0053 the overpayment is cancelled.

(b) If an individual's request for waiver submitted under OAR 471-030-0053 cannot be canceled under OAR 471-030-0053(3) and has reported wages in the last 4 quarters that are more than 300% of the federal poverty level for a family of four but less than 400% of the federal poverty level for a family of four, the department shall offset 0% of the benefits payable for each week claimed for a period of six (6) months. After six (6) months, the offset will be at 50%.

(6) OED will reconsider at any time the offset requirements provided in sections (4) and (5) of this rule if the individual's financial situation changes and the individual:

(a) Submits a new request for waiver; and

(b) Submits a statement explaining the change in their financial situation.

(7) Offsetting overpaid benefits, as described in sections (4) and (5) of this rule, is limited to the five years following the week in which the decision establishing an overpayment became final. When a decision is issued under ORS 657.306 the five years begins immediately following the week the decision establishing an overpayment became final.

Statutory/Other Authority: ORS 657.610
Statutes/Other Implemented: ORS 657.215, 657.267, 657.268, 657.306, 657.310, 657.315, 657.317 & 657.320
History:
ED 4-2024, amend filed 06/21/2024, effective 06/23/2024
ED 1-2023, adopt filed 03/15/2023, effective 03/15/2023