839-001-0000
Notice of Proposed Rule

Prior to the permanent adoption, amendment, or repeal of any rule relating to wage claims enforcement matters, any rule relating to interpretive rules regarding maximum hours of work, and any rules pertaining to money collected from employees for group health insurance coverage and notification of various parties on termination of group health insurance coverage the Wage and Hour Division of the Bureau of Labor and Industries will give notice of the intended action as required in OAR 839-002-0002.

Statutory/Other Authority: ORS 183.335, 651.060(4) & 652
Statutes/Other Implemented: ORS 652
History:
BLI 9-2004, f. 7-26-04, cert. ef. 7-27-04
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1996, f. & cert. ef. 10-8-96
BL 10-1992, f. & cert. ef. 7-1-92
BL 8-1990, f. & cert. ef. 5-11-90
BL 1-1982, f. & ef. 1-13-82
BL 190, f. & ef. 5-7-76
BL 184, f. & ef. 1-21-76

839-001-0100
Definitions for Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

As used in ORS 652.010 to 652.030 and in OAR 839-001-0100 to 839-001-0200, unless the context requires otherwise:

(1) “Administrative duties” means office or non-manual work directly related to the employer’s management policies or general business operations.

(2) "Agent of the Employer" includes any person acting as the employer's agent for purposes of assigning work, assigning hours of work, or authorizing overtime payments to employees.

(3) "Bureau" means the Bureau of Labor and Industries of the State of Oregon.

(4) "Commissioner" means the Commissioner of the Bureau of Labor and Industries.

(5) "Day" or "Day of 24 Hours" means any time period of 24 consecutive hours as determined by the employer.

(6) “Direct processing of goods” means the use of machinery in the production of manufactured goods.

(7) "Employ" includes to suffer or permit to work.

(8) "Employed in" refers to employment of employees in the actual place specified in ORS 652.010 to 652.030. Employees who are not performing duties in the named places are not "employed in" those places.

(9) "Employee" means any individual employed by an employer.

(10) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee.

(11) "Factory" means a building or set of buildings with facilities for manufacturing; the seat of some kind of production. "Factory" in the context used in these rules is a "manufacturing establishment".

(12) "Finished Forest Products" means a forest product ready for sale to a wholesaler or retailer of finished products.

(13) “Machinery” means material-handling equipment and power-driven machines powered by electricity, nuclear or fossil fuels, hydroelectric power, geothermal power or another power source other than by human hand, foot or breath.

(14) “Manufacturing” means the process of using machinery to transform materials, substances or components into new products.

(15) “Manufacturing establishment” means an establishment engaged in manufacturing.

(16) "Mill" means a building or collection of buildings with machines for manufacturing. "Mills" in the context used in these rules are "manufacturing establishments".

(17) “Perishable product” means any product that may spoil, deteriorate or undergo other material changes that render it unsuitable for the use for which it was produced. “Perishable product” includes agricultural crops, meat and fish.

(18) "Primary Duty" means duties the employee is engaged in over 50 percent of the time the employee is employed in any workweek.

(19) “Undue hardship period” means the period of time during which a perishable product must be processed after harvesting, slaughter or catch.

(20) “Workweek” means a fixed period of time established by an employer that reflects a regularly recurring period of 168 hours or seven consecutive 24-hour periods. A workweek may begin on any day of the week and any hour of the day and need not coincide with a calendar week. The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade overtime requirements.

Statutory/Other Authority: ORS 651.060(4), ORS 652 & OL Ch. 685 (2017 Laws)
Statutes/Other Implemented: ORS 652.010 - 652.030 & OL Ch. 685 (2017 Laws)
History:
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
BL 8-1990, f. & cert. ef. 5-11-90

839-001-0125
Individual Exemptions from Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

(1) The following employees are exempt from the provisions of ORS 652.020:

(a) Any employee whose primary duty is that of a member of a logging train crew;

(b) Any employee whose primary duty is that of a guard (performing duties such as firewatch or security);

(c) Any employee whose primary duty is that of a boiler operator;

(d) Any employee who is engaged regularly in the transportation of other employees to and from work;

(e) Any employee whose primary duty is that of making necessary repairs. This includes employees conducting maintenance on buildings, equipment or machinery;

(f) Any employee engaged in emergency work pursuant to section (2) of this rule;

(g) Any employee whose primary duty is that of cleaning, guarding, repairing and otherwise caring for the living quarters and immediate surrounding areas of other employees;

(h) Any employee whose primary duty is that of feeding, grooming, guarding or otherwise caring for livestock by, among other things, cleaning and repairing the areas in which the livestock is kept;

(i) Any employee whose primary duty is to be employed in mess halls where meals are served to other employees. This would include any and all employment necessary to conduct the mess hall operations;

(j) Any employee whose primary duty is that of supervising and directing work. This includes supervisors, managers, and persons who are temporarily acting in these capacities in the absence of the named employees;

(k) Any employee whose primary duty is the loading and removal of finished forest products. This includes employees engaged in shipping or otherwise removing the final finished forest product from the establishment's premises. This applies to finished products only and not to products shipped for further processing at another location;

(l) Any employee whose principal duties are administrative in nature; or

(m) Any employee who is not engaged in the direct processing of goods in the usual course of the employee’s duties.

(2) Employees engaged in activities under emergency situations are only exempt when the emergency puts life or property in imminent danger. In order to be exempt, therefore, employees must be employed in an emergency situation which threatens to harm or destroy life or property. When the normal production process is interrupted by a breakdown of machinery or unexpected absences of employees, life and property are not normally threatened with harm or destruction. For this reason, the exemption is not applicable to normal routine operational occurrences.

(3) Employees who are party to a collective bargaining agreement are not subject to ORS 652.020, provided that:

(a) The agreement is in effect at the employee's work site;

(b) The agreement contains a provision which limits the employee's required hours of work; and

(c) The agreement contains a provision for the payment of overtime hours of work.

(4) Except as provided in section (5) of this rule, employees who are party to a collective bargaining agreement which, for any reasons, was not renewed, extended or not otherwise in force are not subject to ORS 652.020, provided that:

(a) The agreement was in effect at the employee's work site;

(b) The limits on the employee's required hours of work continue as if the agreement were still in effect; and

(c) The payment of overtime continues as if the agreement were still in effect.

(5) Section (4) of this rule does not apply under the following circumstances:

(a) Employees who are party to the collective bargaining agreement are locked out;

(b) Employees who are party to the collective bargaining agreement are engaged in a strike; or

(c) The employer has unilaterally implemented new terms and conditions of employment.

Statutory/Other Authority: ORS 651.060(4), 652 & OL Ch. 685 (2017)
Statutes/Other Implemented: ORS 652.020 & OL Ch. 685 (2017)
History:
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
BL 8-1990, f. & cert. ef. 5-11-90

839-001-0127
Establishment Exemptions from Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

Until the states of Washington, Idaho, and California enact legislation similar to ORS 652.020, the provisions of that statute do not apply to employees employed in the following establishments:

(1) A sawmill. As used in this rule, a sawmill means a mill that is exclusively engaged in the manufacture and distribution of lumber made from logs by use of saws to cut the logs into various size boards.

(2) A shingle mill. As used in this rule, a shingle mill means a mill exclusively engaged in the manufacture and distribution of wooden shingles.

(3) A planing mill. As used in this rule, a planing mill means a mill exclusively engaged in the planing of lumber so as to finish the boards cut in the sawmill and in the distribution of the finished forest product.

(4) A logging camp. As used in this rule, a logging camp means an establishment which provides support for logging operations by means of housing, feeding and otherwise caring for employees engaged in logging operations by means of maintaining supplies and equipment necessary to continue logging operations.

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.030
History:
BL 8-1990, f. & cert. ef. 5-11-90

839-001-0130
Exempt and Non-exempt Work for Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

(1) The exempt status of an employee is determined by the type of work the individual performs and the location of the work performed in any one day. As indicated in sections (2) and (3) of this rule, the exempt status of individual employees may vary from day to day.

(2) Employees performing exempt and nonexempt work are exempt from the provisions of ORS 652.020 only when they are engaged in exempt work more than 50 percent of their working time in any one day.

(3) Where a mill, factory or manufacturing establishment is a combination of an exempt and non-exempt establishment, employees who are exclusively engaged in the sawmill, shingle mill, planing mill, or logging camp areas of the establishment are exempt. However, when an employee is engaged in both exempt and non-exempt areas of the establishment, the employee is not exempt.

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020
History:
BLI 13-1999, f. 9-28-99, cert. ef. 10-23-99
BL 8-1990, f. & cert. ef. 5-11-90

839-001-0140
Determination of the Day; Failure to Make Determination for Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

(1) The employer shall establish the beginning time and the ending time of the day to be used by the employer for purposes of complying with these rules.

(2) Once established, the beginning time of the day shall not be changed unless the change is intended to be permanent and is not designed to circumvent the provisions of ORS 652.020.

(3) If the employer fails to establish the beginning and ending times of day as provided for in section (1) of this rule, the Bureau shall consider the day to begin at the time the individual employee commences work and to end 24 consecutive hours after the work began.

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020
History:
BL 8-1990, f. & cert. ef. 5-11-90

839-001-0143
Failure to Establish a Workweek

If an employer fails to establish the beginning day of the workweek as provided for in ORS 652.020(1)(b) and OAR 839-001-0100(19), the Bureau shall consider the workweek to begin on the day the individual commences work and to end seven consecutive days after the work began, for the period of time in which the employer failed to establish a workweek.

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020
History:
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
BL 8-1990, f. & cert. ef. 5-11-90

839-001-0145
Determination of Employees "Employed in" a Named Establishment for Regulations Pertaining to Maximum Hours of Work in Mills, Factories, Manufacturing Establishments

As used in ORS 652.020, the term “employed in” refers to employees who are actually employed in the mill, factory or manufacturing establishment. Employees who are employed by the same employer but not employed to perform duties in a mill, factory, or manufacturing establishment are not covered by ORS 652.020 because they are not “employed in” the establishment.

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020 & OL Ch. 685 (2017)
History:
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
Bl 8-1990, f. & cert. ef. 5-11-90

839-001-0147
Employee's Written Consent to Work up to 60 Hours in a Workweek

(1) Pursuant to ORS 652.020(2), an employer is prohibited from requiring or permitting an employee to work over 55 hours in one workweek except that the employer may permit an employee to work up to 60 hours in one workweek if the employee requests or consents in writing to work more than 55 hours in one workweek.

(2) Employers must obtain written consent or a written request from employees prior to permitting employees to work in excess of 55 hours in one workweek.

(3) The employer must retain and keep available to the commissioner a copy of each employee’s written consent or written request during the period for which the written consent or written request is in effect and for no less than one year thereafter.

(4) The commissioner shall create a template for the written consent that employers may, but are not required to, use to document the employee’s written consent and withdrawal of consent.

(5) The employee must inform the employer of the employee's withdrawal of consent in writing, seven (7) calendar days prior to the start of the workweek in which the employee no longer consents to work over 55 hours in the workweek.

Statutory/Other Authority: ORS 651.060(4), ORS chapter 652 & OL Ch. 685 (2017)
Statutes/Other Implemented: ORS chapter 652 & OL Ch. 685 (2017)
History:
BLI 8-2017, adopt filed 12/27/2017, effective 01/01/2018

839-001-0148
Undue Hardship Notices and Employee's Written Consent

(1) Pursuant to the provisions of ORS 652.020, an employer that processes perishable products may be exempt from the restrictions on maximum workweek hours if an undue hardship exists. To claim such an exemption, an employer must provide notice of the undue hardship period to the Bureau within seven calendar days of the beginning of the hardship period permitting employees to work more than 55 hours in one workweek (or more than 60 hours if the employee has previously consented to work up to 60 hours in one workweek pursuant to ORS 652.020(2)(b) and OAR 839-001-0147). The notice submitted by the employer to the Bureau must include:

(a) The name and address of the employer;

(b) A description of the reasons for the undue hardship period;

(c) The start and expected end dates of the undue hardship period;

(d) An estimate of the number of employees whose work hours will exceed the maximum workweek hours because of the undue hardship exemption;

(e) The start and end dates of any undue hardship periods previously claimed by the employer in the same calendar year;

(f) The printed name and signature of the person submitting the notice, with the date of signature.

(2) The employer’s notice of the undue hardship period may be submitted on Form WH-262, which is available to any interested person. An employer may copy this form or use a similar form provided that the form contains all of the elements of Form WH-262.

(3) When claiming an undue hardship exemption, an employer must obtain written consent from each employee whose work hours, pursuant to ORS 652.020(2)(c), will exceed the maximum workweek hours because of the undue hardship exemption. The written consent, which must be completed by the employee prior to performing work during the undue hardship period, must include:

(a) A description of the employer’s reasons for the undue hardship period;

(b) The start and expected end dates of the undue hardship period;

(c) A statement that the employer may require the employee to work up to 84 hours in a workweek for up to four workweeks during the undue hardship period;

(d) A statement that the employer may require the employee to work up to 80 hours in a workweek for the remainder of the undue hardship period;

(e) A statement that the employee consents to working up to 84 hours in a workweek for up to four weeks during the undue hardship period and up to 80 hours in a workweek for the remainder of the undue hardship period but that the employee may withdraw such consent at any time in writing, no less than seven calendar days prior to the start of the workweek in which the employee no longer consents to work over 55 hours in the workweek;

(f) A statement that the employee has the right to decline to work more than 55 hours per workweek.

(g) The printed name and signature of the employee completing the written consent, with the date of signature; and

(h) Contact information for the Bureau of Labor and Industries.

(4) To provide the written consent, an employee may use Form WH-263 or any similar form provided that the form contains all of the elements of Form WH-263. The employee’s written consent must be in the language used by the employer to communicate with the employee.

(5) The employer must retain and keep available to the Bureau a copy of each employee’s written consent during the period for which the written consent is in effect and for no less than one year thereafter.

Statutory/Other Authority: ORS 651.060 & ORS 652.020
Statutes/Other Implemented: ORS 652.020
History:
BLI 1-2024, amend filed 01/04/2024, effective 01/04/2024
BLI 8-2017, adopt filed 12/27/2017, effective 01/01/2018

839-001-0150
Civil Penalties for Violation of ORS 652.020, Maximum Working Hours in Mills, Factories and Manufacturing Establishments: Overtime Hours and Pay

As used in ORS 652.020, 652.900 and OAR 839-001-0150 to 839-001-0160:

(1) "Violation" means a transgression of any statute or rule, or any part thereof and includes both acts and omissions.

(2) "Knowingly" or "Willfully" means action undertaken with actual knowledge of a thing to be done or omitted. A person "should have known the thing to be done or omitted" if the person has knowledge of facts or circumstances which, with reasonably diligent inquiry, would place the person on notice of the thing to be done or omitted to be done.

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020
History:
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08
BL 8-1990, f. & cert. ef. 5-11-90

839-001-0153
Violations Separate and Distinct

Each violation of ORS 652.020 or any rule adopted pursuant thereto is a separate and distinct offense. In the case of continuing violations, each day's continuance is a separate and distinct violation.

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.020
History:
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08
BL 8-1990, f. & cert. ef. 5-11-90

839-001-0155
Violations of ORS 652.020 for Which a Civil Penalty May Be Imposed

(1) Pursuant to ORS 652.900, the commissioner may assess a civil penalty for violations of ORS 652.020 or of these rules as follows:

(a) Failure to pay employees subject to ORS 652.020 time and one-half their regular rate of pay for all hours worked over ten in any day of 24 hours;

(b) Permitting any agent of the employer to require or permit employees to work over ten hours in any day of 24 hours when the employees are not paid time and one-half their regular rate of pay for such hours worked over ten in a day;

(c) Requiring or permitting an employee subject to ORS 652.020 to work more than 13 hours in any day of 24 hours;

(d) Permitting any agent of the employer to require or permit employees to work more than 13 hours in any day of 24 hours;

(e) Requiring or permitting an employee subject to ORS 652.020 to work more hours than permitted under ORS 652.020(2)(a), (b), or (c);

(f) Requiring or permitting an employee subject to ORS 652.020 to work more than 55 hours in any one workweek without obtaining the employee’s request or consent in writing, in violation of ORS 652.020(2)(b) or (4)(b);

(g) Permitting an employee subject to ORS 652.020 to work up to the maximum hours permitted by ORS 652.020(2)(c) when the employer is not eligible for an undue hardship exemption;

(h) Failure to make available to the commissioner, upon request, a copy of an employee’s written request or consent as required by OAR 839-001-0147(3) and OAR 839-001-0148(5);

(i) Failure to provide notice of the undue hardship period to the commissioner within seven (7) calendar days of the date on which the undue hardship period began; or

(j) Requiring or permitting an employee subject to ORS 652.020 to begin a work shift less than 10 hours after the end of the employee’s previous work shift if the employee’s previous work shift totaled eight (8) or more hours, unless the employer requires the employee to work additional hours due to the disruptions in business operations caused by a power outage, major equipment breakdown, severe weather or similar emergency outside the employer's control.

(2) As provided in ORS 652.020(9)(a), notwithstanding ORS 652.900, the commissioner may assess a civil penalty against an employer that has coerced an employee into consenting to work more than 55 hours in one workweek. For the purpose of this rule, an employer will be considered to have coerced an employee into consenting to work more than 55 hours in one workweek under the following circumstances:

(a) The employer requires an employee to consent in writing to work more than 55 hours per workweek;

(b) The employer requires an employee to consent to work more than 55 hours per workweek as a condition of employment at the time of hire; or

(c) The employer requests or requires any person, including another employee, to require an employee to consent in writing to work more than 55 hours per workweek.

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.900 & OL Ch. 685 (2017)
History:
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
Bl 8-1990, f. & cert. ef. 5-11-90

839-001-0160
Schedule of Civil Penalties for Violations of ORS 652.020

(1) Except as provided in section (4) of this rule, the civil penalty for any one violation of ORS 652.020 or any rule adopted pursuant thereto shall not exceed $1,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) When the commissioner determines to assess a civil penalty for requiring or permitting an employee to work over ten hours in a day when the employee is not paid time and one-half the regular rate of pay in violation of ORS 652.020, the minimum civil penalty to be assessed shall be $50 per day for each employee affected. For example, when the employer or an employer's agent requires or permits five employees to work over ten hours in a day for four days without paying the employees time and one-half their regular rate of pay for the hours worked over ten in a day, the minimum civil penalty to be assessed shall be $1,000 (5 employees x 4 days x $50 per day per employee = $1,000).

(3) When the commissioner determines to assess a civil penalty for requiring or permitting an employee to work more than 13 hours in any day of 24 hours, the minimum civil penalty shall be $500 per day for the first offense. For example, when an employer or an employer's agent requires or permits any number of employees to work over 13 hours in a day for four days, the minimum civil penalty shall be $2,000 (4 days x $500/day = $2,000). When the commissioner determines to assess a civil penalty for subsequent offenses, the commissioner may assess up to $1,000 for each such offense.

(4) When the commissioner determines that an employer has violated ORS 652.020 by coercing an employee into consenting to work more than 55 hours in one workweek, the civil penalty shall not exceed:

(a) $2,000 for any one violation if the employer coerced an employee to work more than 55 hours per workweek under ORS 652.0250(2)(b); or

(b) $3,000 for any one violation if the employer coerced an employee to work more than 55 hours per workweek during a period of undue hardship under ORS 652.020(4)(b).

(5) The civil penalties set out in sections (2), (3) and (4) of this rule shall be in addition to any other penalty imposed by law or rule.

(6) The civil penalty for all other violations shall be set in accordance with the determinations and considerations referred to in OAR 839-001-0496.

Statutory/Other Authority: ORS 651.060(4) & 652
Statutes/Other Implemented: ORS 652.900 & OL Ch. 685 (2017)
History:
BLI 8-2017, amend filed 12/27/2017, effective 01/01/2018
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08
BL 8-1990, f. & cert. ef. 5-11-90

839-001-0200
Deductions for Garnishment Processing Fee

(1) If a garnishee that employs a debtor is required to make any payment under a writ of garnishment by reason of wages payable to the debtor, the garnishee may collect a processing fee as provided pursuant to ORS 18.736 for each week of wages, or fraction of a week of wages, for which a payment is made under the provisions of 18.735. The processing fee must be collected after the last payment is made under the writ. The fee shall be withheld from the wages of the debtor, and is in addition to the amounts withheld for payment to the garnishor under the writ or under any other writ delivered to the garnishee.

(2) The fee provided for in this section may not be collected if withholding of the fee would reduce the debtor's net disposable income below the minimum amount prescribed by ORS 18.385.

Statutory/Other Authority: ORS 651.060(4), 652, 653 & HB 3544 (2003 OL)
Statutes/Other Implemented: ORS 18.838, 652.150 & 653.261(1)
History:
BLI 22-2010, f. 12-30-10, cert. ef. 1-1-11
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04

839-001-0250
Deductions for Costs of Benefits Paid by the Employer While the Employee Is on OFLA Leave

The Oregon Family Leave Act (ORS 659.470 to 659.494) provides that notwithstanding 652.610(3), when an employer pays the employee’s portion of the cost of providing health, disability, life or other insurance coverage for an employee while the employee is on family leave, the employer may recover such cost under the following circumstances:

(1) Upon the employee’s return to work, the employer may deduct from the employee’s pay the amount of the costs it paid, provided, however, that the total amount deducted from any paycheck may not exceed 10% of the employee’s gross wages earned in the pay period covered by the paycheck.

(2) If an employee does not return to work, the employer may deduct all of the costs it paid from amounts due and owing to the employee, provided, however, that no deduction may be made if the employee fails to return to work for the following reasons:

(a) The employee’s absence from work is caused by a continuation, recurrence or onset of a serious health condition that would entitle the employee to family leave as provided for in ORS 659.470 to 659.494; or

(b) The employee’s absence from work is caused by circumstances beyond the control of the employee.

(3) If an employee does not return to work the employer may seek to recover amounts paid for insurance coverage on behalf of the employee by any other legal means provided however, that no legal action may be initiated if the employee failed to return to work for the reasons set out in subsections (2)(a) or (2)(b) of this rule.

(4) The deduction provided for in this rule may be made with or without the employee’s authorization. The employer shall notify the employee of the deduction before the deduction is made.

Statutory/Other Authority: ORS 651.060(4)
Statutes/Other Implemented: ORS 659.484
History:
BL 9-1996, f. & cert. ef. 10-8-96

839-001-0300
Liability of Employer for Issuance of Dishonored Check in Payment of Wages

(1) As used in this rule:

(a) “Check” means a check, draft or order for the payment of money.

(b) “Drawee” means a person ordered in a draft to make payment pursuant to ORS 73.0103(1)(b).

(2) Pursuant to ORS 30.701, an employer that issues a dishonored check to an employee for payment of wages due is liable to the employee for damages in an amount equal to $100 or triple the amount for which the check is drawn, whichever is greater, in addition to the amount for which the check was drawn. The amount of damages may not exceed the amount for which the check was drawn by more than $500.

(3) Pursuant to the provisions of ORS 652.195, the Commissioner of the Bureau of Labor and Industries may assess a civil penalty payable to the employee in an amount equal to the statutory damages provided by ORS 30.701 against an employer that issues a dishonored check to an employee for payment of wages due.

(4) The commissioner may not assess a civil penalty as provided in this rule if:

(a) After the employee or the employee’s assignee has made written demand of the employer not less than 30 days before commencing the action, the employer pays the employee before the commencement of the action an amount of money not less than the amount for which the check was drawn and all interest that has accrued on the check under ORS 82.010 as of the date of demand; or

(b) The employee has commenced an action under ORS 30.701 against the employer for the same dishonored check.

(5) If the commissioner determines that the failure of the employer to satisfy the dishonored check at the time demand was made under subsection (4)(a) of this rule was due to economic hardship, the commissioner may waive all or part of the statutory damages provided for in section (2) of this rule.

(6) The provisions of this rule apply only to a check that has been dishonored because of a lack of funds or credit to pay the check, because the employer has no account with the drawee, or because the employer has stopped payment on the check without good cause. An employee is entitled to the remedies provided in this rule without regard to the reasons given by the employer for dishonoring the check.

(7) An employee may not bring an action under ORS 30.701 against an employer for the same dishonored check if the commissioner has assessed or proposed to assess a civil penalty under this rule.

Statutory/Other Authority: ORS 30.701, 651.060 & Ch. 652
Statutes/Other Implemented: ORS 652
History:
BLI 6-2014, f. & cert. ef. 5-5-14
BLI 11-2011, f. 12-30-11, cert. ef. 1-1-12

839-001-0410
Definitions for Regulations Pertaining to the Payment of Wages at Termination of Employment

As used in ORS 652.140 to 652.165 and in OAR 839-001-0410 to 839-001-0480, unless the context requires otherwise;

(1) "Business day" includes Monday through Friday, exclusive of state holidays as provided in ORS 187.010, in which the business operations of the employer is conducted.

(2) "Seasonal farmworker" means any person who, for an agreed remuneration or rate of pay, performs temporary labor for another to work in the production of farm products or planting, cultivating or harvesting of seasonal agricultural crops or in the forestation or reforestation of lands, including but not limited to, the planting, transplanting, tubing, pre-commercial thinning and thinning of trees and seedlings, the clearing, piling and disposal of brush and slash and other related activities.

(3) "Seasonal reforestation worker" means "seasonal farmworker" as defined in subsection (2) of this rule.

(4) "Willfully," as used in ORS 652.150, means that which is done or omitted is done or omitted intentionally. When a person knows what the person is doing, intends to do what the person is doing and is a free agent, the person is acting willfully. An act or omission is willful even if the person did not know the act or omission was a violation of ORS 652.140 or 652.145.

(5) "Wages" means all compensation for performance of service by an employee for an employer whether paid by the employer or another person. Wages include the cash value of all compensation paid in any medium other than cash and all compensation owed an employee by an employer.

Statutory/Other Authority: ORS 652.165
Statutes/Other Implemented: ORS 652.140 - 652.160
History:
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1996, f. & cert. ef. 10-8-96

839-001-0420
Payment of Wages at Termination of Employment

(1) Except as provided in OAR 839-001-0440 and 839-001-0490, when an employer unilaterally discharges an employee or when the employee and the employer mutually agree to the termination of employment, all of the wages that have been earned but not paid, become due and payable not later than the end of the first business day after the discharge or termination. Except as provided in subsections (3) and (5) of this rule, when the employment terminates because of discharge or mutual agreement on a Saturday, Sunday or holiday, all wages earned and unpaid must be paid by not later than the end of the first business day after the employment termination.

(2) When the employee gives the employer notice of 48 hours or more (not including Saturday, Sunday and holidays) that the employee intends to quit employment, all wages that have been earned but not paid become due and payable on the last day of the employee's employment.

(3)(a) Except as provided in subsections (b) and (c), when the employee fails to give the employer notice as provided in subsection (2) of this rule, all wages that have been earned but not paid, become due and payable within five days, excluding Saturdays, Sundays and holidays, of the date the employee quit or at the next regularly scheduled payday, whichever occurs first.

(b) If an employee has not given to the employer the notice described in subsection (2) of this rule, and if the employee is regularly required to submit time records to the employer to enable the employer to determine the wages due the employee, within five days after the employee has quit, the employer shall pay the employee the wages the employer estimates are due and payable.

(c) In the event an employee whose final payment of wages are subject to the provisions of subsection (b) submits required time records after the last day of the employee’s employment, then any additional wages due to the employee and not paid pursuant to subsection (b) must be paid within five days after the employee submits the required time records.

(4) When an employee employed pursuant to an unexpired contract which provides for a definite period of work, quits with or without notice, all wages earned but not paid become due and payable at the next regularly scheduled payday.

(5) When the employment terminates because of discharge, mutual agreement or the employee quits (with or without notice) and the employer is the Oregon State Fair and Exposition Center, a county fair or show, the County Fair Commission or other employer engaged in activities authorized by ORS 565.010 to 565.990, all wages earned and unpaid must be paid not later than the end of the second business day after the employment termination. This subsection does not apply to contractors, exhibitors or others which are not agencies, boards or commissions established in ORS 565.010 to 565.990.

(6) The provisions of this rule do not apply when the employee's employment with the employer is covered by a collective bargaining agreement, the terms of which provide for the payment of wages at termination of employment. However, if the collective bargaining agreement does not contain provisions for the payment of wages at termination of employment, the provisions of this rule are applicable.

Statutory/Other Authority: ORS 652.165
Statutes/Other Implemented: ORS 652.140
History:
BLI 27-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04
BL 9-1996, f. & cert. ef. 10-8-96

839-001-0430
When Layoff is Considered Termination of Employment

(1) When an employee is laid off with no reasonable expectation that the employee will return to work, the layoff is considered to be a termination of employment for purposes of OAR 839-001-0420 and 839-001-0440 and the wages earned and unpaid shall become due and payable in accordance with 839-001-0420 and 839-001-0440.

(2) When an employee is laid off and the employee returns to work within 35 days, the layoff is not considered to be a termination of employment for purposes of OAR 839-001-0420 and 839-001-0440 and all wages earned and unpaid shall become due and payable at the next regularly scheduled payday following the layoff. If the layoff occurs on a regularly scheduled payday, the wages become due and payable on the same day.

(3) This rule applies to all layoffs regardless of whether an employee is subject to recall to work.

Statutory/Other Authority: ORS 652.165
Statutes/Other Implemented: ORS 652.140
History:
BL 9-1996, f. & cert. ef. 10-8-96

839-001-0440
Special Provisions for Payment of Wages at Termination for Seasonal Farmworkers and Seasonal Reforestation Workers

(1) Unless the conditions described in ORS 652.145(1)(a) apply, when a seasonal farmworker or seasonal reforestation worker terminates employment because of discharge or mutual consent, all wages earned and unpaid become due and payable on the last day the employee works.

(2) When a seasonal farmworker or seasonal reforestation worker quits employment and gives the employer at least 48 hours notice of intent to quit, all wages earned and unpaid become due and payable on the last day the employee works.

(3) When a seasonal farmworker or seasonal reforestation worker quits employment and fails to give the employer at least 48 hours notice, all wages earned and unpaid become due and payable within 48 hours after the employee quits or on the next regularly scheduled payday, whichever comes first.

Statutory/Other Authority: ORS 651.060(4) & 652.165
Statutes/Other Implemented: 2013 SB 677 & ORS 652.145
History:
BLI 6-2013, f. 12-18-13, cert. ef. 1-1-14
BL 9-1996, f. & cert. ef. 10-8-96

839-001-0450
Forwarding Wages and Direct Deposit of Wages at Termination of Employment

(1) All wages due and payable at termination of employment shall be forwarded by the employer to the employee to any address designated by the employee when the employee requests the employer to forward the wages.

(2) Unless an employee has made either a written or oral request that wages due be paid by check, all wages due and payable at termination of employment may be deposited, without discount, in the employee's account in a bank, national bank, mutual savings bank, credit union or savings and loan association located in Oregon.

Statutory/Other Authority: ORS 651.060(4) & 652.165
Statutes/Other Implemented: 2013 HB 2683 & ORS 652.110
History:
BLI 6-2013, f. 12-18-13, cert. ef. 1-1-14
BL 9-1996, f. & cert. ef. 10-8-96

839-001-0460
Payment in Case of a Dispute over the Amount of Wages Due at Termination of Employment/Employee Rights and Remedies

(1) In case of a dispute over the amount of wages due and payable at termination of employment, the employer shall pay the amount of wages that the employer concedes to be due and payable to the employee. Such payment shall be made unconditionally and within the time set out in OAR 839-001-0420, 839-001-0430 and 839-001-0440.

(2) An employee may use all remedies available to the employee for the balance of wages that the employee claims are due and payable.

Statutory/Other Authority: ORS 652.165
Statutes/Other Implemented: ORS 652.160
History:
BL 9-1996, f. & cert. ef. 10-8-96

839-001-0470
Penalty for Failure to Pay Wages on Termination of Employment

(1) When an employer willfully fails to pay all or part of the wages due and payable to the employee upon termination of employment within the time specified in OAR 839-001-0420, 839-001-0430 and 839-001-0440, the employer will be subject to the following penalty:

(a) The wages of the employee will continue to accrue from the date the wages were due and payable until the date the wages are paid or until a legal action is commenced, whichever occurs first;

(b) The employee's wages will continue to accrue at the employee's hourly rate of pay times eight (8) hours for each day the wages are unpaid;

(c) The maximum penalty will be no greater than the employee's hourly rate of pay times 8 hours per day times 30 days.

(d) Except as provided in subsection (e), the wages of an employee that are computed at a rate other than an hourly rate (e.g. salaries) will be reduced to an hourly rate for penalty computation purposes by dividing the total wages earned during the wage claim period (the period for which wages are owed and upon which the wage claim is based) by the total number of hours worked during the wage claim period.

(e) Notwithstanding subsection (d), when wages are earned based on commission, bonus, piece rate, or other methods not based on hours worked, the wages will be reduced to an hourly rate for penalty computation purposes by dividing the total wages earned in the last 30 calendar days of employment by the total number of hours worked in the last 30 calendar days of employment. If the employee was employed for less than 30 days, the total wages earned during the entire period of employment will be divided by the number of hours worked during the entire period of employment.

(2) If the employer pays the full amount of unpaid wages within 12 calendar days after the written notice of such unpaid wages is sent by the employee or a person on behalf of the employee, the penalty may not exceed 100 percent of the employee's unpaid wages.

(a) If the employee or person on behalf of the employee fails to send the written notice of unpaid wages to the employer, the penalty may not exceed 100 percent of the employee's unpaid wages.

(b) Subsection (2) does not apply when the employer has violated ORS 652.140, 652.145 one or more times in the year before the employee's employment ceased or the employer terminated one or more other employees on the same date that the employee's employment ceased.

(c) For purposes of determining when an employer has paid wages or compensation under this subsection, payment occurs on the date the employer delivers the payment to the employee or sends the payment by first class mail, express mail or courier service to the employee's last-known address.

(3) Additional actual wages owed to an employee in any pay period for which the employer has timely paid the employee any estimated wages due and payable in compliance with OAR 839-001-0420(3)(b) are not considered unpaid wages subject to the penalty provisions of section (1) of this rule unless the employer fails to pay the employee the additional actual wages owed for such pay period within the time required under 839-001-0420(3)(c).

(4) In addition to any other penalty provided by law, the Commissioner of the Bureau of Labor and Industries may assess a civil penalty not to exceed $1000 against any person who violates ORS 652.140 and 652.145 or any rule adopted pursuant thereto.

(5) When an employer shows that it was financially unable to pay the wages at the time the wages accrued, the employer will not be subject to the penalty provided for in OAR 839-001-0470. If an employer continues to operate a business or chooses to pay certain debts and obligations in preference to an employee's wages, there is no financial inability.

Statutory/Other Authority: ORS 652.165
Statutes/Other Implemented: ORS 652.150
History:
BLI 27-2005, f. 12-29-05, cert. ef. 1-1-06
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04
BLI 1-2002, f. & cert. ef. 1-9-02
BL 9-1996, f. & cert. ef. 10-8-96

839-001-0490
Special Provisions for Payment of Wages at Termination for Employees of Businesses Primarily Engaged in the Sale of Motor Vehicles or Farm Implements Who Are Paid on a Commission Basis

(1) When an employee of a business primarily engaged in the sale of motor vehicles or farm implements who is paid on a commission basis is terminated, unpaid commissions are not owed to the employee until all the terms and conditions of any agreement between the employer and employee concerning the method of payment of commissions are fulfilled. If no such agreement exists, the commission is due with all other earned and unpaid wages or compensation as provided in ORS 652.140.

(2) Notwithstanding the provisions of OAR 839-001-0470, when an employee who is paid on a commission basis is terminated by a business that primarily sells motor vehicles or farm implements and there is a dispute between the employer and employee concerning the amount of commission due upon termination, if the amount of unpaid commission is found to be less than 20 percent of the amount of unpaid commission claimed by the employee, the penalty wage may not exceed the amount of the unpaid commission or $200, whichever is greater.

Statutory/Other Authority: ORS 651.060(4), 652 & 653: Other Auth HB 3544(2003 legislature)
Statutes/Other Implemented: ORS 18.838, 652.150 & 653.261(1)
History:
BLI 7-2003, f. 12-31-03, cert. ef. 1-1-04

839-001-0495
Violations Separate and Distinct

Each violation of ORS 652.110, 652.140, 652.145, 652.260, 652.610(4), 652.750 or any rule adopted pursuant thereto is a separate and distinct offense. In the case of continuing violations, each day's continuance is a separate and distinct violation.

Statutory/Other Authority: ORS 651.060(4), 652.165 & 652.900
Statutes/Other Implemented: ORS 652.010–652.900
History:
BLI 26-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08

839-001-0496
Civil Penalties for Violation of Regulations Pertaining to the Payment of Wages

(1) When assessing a civil penalty for violations of ORS 652.110, 652.140, 652.145, 652.260, 652.610(4), 652.750 or any rule adopted pursuant thereto, the commissioner may consider the following mitigating and aggravating circumstances in determining the amount of the civil penalty to be assessed and cite those the commissioner finds to be appropriate:

(a) The history of the employer in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(c) The magnitude and seriousness of the violation;

(d) Whether the employer knew or should have known of the violation.

(2) The commissioner may consider what amount of civil penalty is likely to deter an employer from committing violations in the future.

(3) Notwithstanding any other section of this rule, the commissioner shall consider all aggravating circumstances presented by any employee or any other person for the purpose of increasing the amount of the civil penalty to be assessed.

(4) It shall be the responsibility of the employer to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be assessed.

(5) Notwithstanding any other section of this rule, the commissioner shall consider all mitigating circumstances presented by the employer for the purpose of reducing the amount of the civil penalty to be assessed.

Statutory/Other Authority: ORS 651.060(4), 652.165 & 652.900
Statutes/Other Implemented: ORS 652.010–652.900
History:
BLI 26-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08

839-001-0500
Definitions for Wage Security Fund Regulations

As used in OAR 839-001-0500 to 839-001-0560 unless the context requires otherwise:

(1) “Assets” include real and personal property of whatsoever nature, excluding such property which the employer has a right to claim exempt.

(2) “Bureau” means Bureau of Labor and Industries.

(3) “Commissioner” means the Commissioner of the Bureau of Labor and Industries.

(4) “Division” means the Wage and Hour Division of the Bureau of Labor and Industries.

(5) “Employee” has the same meaning given it in ORS 652.310(2), except “employee” does not include a principal officer or director of a corporation who is also a stockholder.

(6) “Employer” has the same meaning given it in ORS 652.310(1).

(7) "Final Order" means final agency action expressed in writing as required by OAR 839-050-0420 or OAR 839-050-0430.

(8) “Fringe Benefits” means the amount of compensation which accompanies or is in addition to a person’s regular salary or wages and includes, but is not limited to, payment for profit sharing plans, retirement or pension plans, insurance, sick leave, holidays, severance, or vacation.

(9) “Fund” means the Wage Security Fund established by ORS 652.409(1); income earned on moneys in the Wage Security Fund, as provided for in 652.409(1); amounts recovered by the Commissioner on wage claims paid out of the “Fund”; and amounts of eligible wage claim payments which are disallowed because of the inability to locate the wage claimant.

(10) "Judgment" has the definition set forth in ORS 18.005.

(11) “Promptly,” as used in OAR 839-001-0500 to 839-001-0560, means the next regular payday established by the employer, or 35 days from the last payday, whichever is sooner.

(12) “Successor” means one who follows an employer in ownership or control of a business so far as such employer has not paid employees in full. A successor employer may be any successor to the business of any employer, or any lessee or purchaser of any employer’s business property for the continuation of the same business.

(13) “Wage Claim” has the same meaning given it in ORS 652.320(7). However, in the case of claims against the Fund, “wage claim” refers to actual wages earned only. It does not include any other item of compensation considered to be a fringe benefit, nor does it include any damages, civil penalties or interest otherwise provided by law.

Statutory/Other Authority: ORS 652.414(6) & ORS 652.414
Statutes/Other Implemented: House Bill 2818, 2021
History:
BLI 1-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 13-2021, temporary amend filed 08/06/2021, effective 08/06/2021 through 02/01/2022
BL 9-1996, f. & cert. ef. 10-8-96
BL 8-1989, f. & cert. ef. 10-12-89
BL 5-1986, f. 6-20-86, ef. 7-1-86

839-001-0510
Eligibility for Wage Payment from the Wage Security Fund

(1) An employee is eligible for the payment of a wage claim from the Fund when the Commissioner makes the following determinations:

(a) The employer has ceased doing business in Oregon; and

(b) The employer is without sufficient assets to fully and promptly pay the wage claim at the cessation of doing business; and

(c) The wage claim cannot otherwise be fully and promptly paid; and

(d) The wage claim is valid; and

(e) The amount claimed was earned within 60 days of the date of the cessation of business or if the claimant filed a wage claim before the cessation of business, the amount claimed was earned within 60 days before the last day the claimant was employed.

(2) When the Commissioner obtains a judgment or issues a final order, including an order of determination that has become final, an employee is eligible for the payment of the amount of unpaid wages due pursuant to the judgment or final order from the Fund, except as provided in OAR 839-001-0520(3) and (4). 

Statutory/Other Authority: ORS 651.060(4) & Chapter 652
Statutes/Other Implemented: ORS 652.414 & House Bill 2818, 2021
History:
BLI 1-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 13-2021, temporary amend filed 08/06/2021, effective 08/06/2021 through 02/01/2022
BLI 13-1999, f. 9-28-99, cert. ef. 10-23-99
BL 9-1996, f. & cert. ef. 10-8-96
BL 2-1994, f. & cert. ef. 5-27-94
Reverted to BL 8-1989, f. & cert. ef. 10-12-89
BL 9-1993(Temp), f. & cert. ef. 9-13-93
BL 8-1989, f. & cert. ef. 10-12-89
BL 5-1986, f. 6-20-86, ef. 7-1-86

839-001-0515
Factors to Be Considered in Making Determinations Related to Eligibility for Payment from the Wage Security Fund When Employer Has Closed

(1) In determining that an employer has ceased doing business the Commissioner may consider:

(a) Whether the business premises are no longer occupied by the employer;

(b) Whether business operations are being conducted;

(c) Whether customers of the employer are being served;

(d) Whether the employer is employing employees;

(e) Any other information indicating whether the business has ceased its operations.

(2) In determining that an employer is without sufficient assets to fully and promptly pay the wage claim at the cessation of business, the Commissioner may consider:

(a) Whether the debts of the employer exceed the total amount of assets;

(b) Whether the liquid assets of the employer are not sufficient to pay the wages due;

(c) Whether the accounts receivable of the employer are not sufficient to pay the wages due;

(d) Whether the claims of a secured creditor on the assets of the employer would exceed the amount due in wages;

(e) Whether the employer has filed for protection under the Bankruptcy Code (The filing of bankruptcy in and of itself does not determine the insufficiency of assets.);

(f) Whether the assets of the employer are in the process of being involuntarily liquidated;

(g) Any other information indicating that the assets of the employer are insufficient to promptly pay the wage claim at the cessation of business.

(3) In determining that a wage claim cannot otherwise be fully and promptly paid the Commissioner may consider:

(a) Whether the employee has a right of claim against a bond or deposit held by the employer, which may be used for the purpose of paying wage claims;

(b) Whether the business is in receivership and the type of receivership;

(c) Whether there is a successor to the employer's business;

(d) Any other information indicating that the wage claim cannot otherwise be fully and promptly paid.

(4) In determining that the wage claim is valid the Commissioner may consider:

(a) Whether there is judgment of the court;

(b) Whether there is a final administrative order issued pursuant to statute or rule;

(c) Whether the employer acknowledges the amount of wages owed;

(d) The results of the Division's investigation of the wage claim;

(e) Any other information indicating that the wage claim is valid.

[Publications: Publications referenced are available from the agency.]

Statutory/Other Authority: ORS 651.060(4), ORS 652.414, ORS 652.414(6) & ORS 652
Statutes/Other Implemented: House Bill 2818, 2021
History:
BLI 1-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 13-2021, temporary amend filed 08/06/2021, effective 08/06/2021 through 02/01/2022
BLI 26-2009, f. 12-1-09, cert. ef. 1-1-10
BL 5-1986, f. 6-20-86, ef. 7-1-86

839-001-0520
Amount of Claim to Be Paid from the Wage Security Fund

(1) Except as provided in sections (3) and (4) of this rule, after a wage claim is determined to be eligible for payment from the Fund, the amount to be paid shall be:

(a) The unpaid amount of wages earned within 60 days before the date of the cessation of business; or

(b) If the claimant filed a wage claim before the cessation of business, the unpaid amount of wages earned within 60 days before the last day the claimant was employed.

(2) Except as provided in sections (3) and (4) of this rule, when the Commissioner obtains a judgment or issues a final order, including an order of determination that has become final, the amount to be paid from the Fund shall be the amount of unpaid wages due pursuant to the judgment or final order.

(3) The commissioner shall pay the amount of wages earned as provided in sections (1) and (2) only to the extent of $10,000.

(4) When the amount of a valid wage claim determined to be eligible for payment is greater than the amount available in the Fund for paying such claims, payments on wage claims shall be prorated in accordance with OAR 839-001-0530.

Statutory/Other Authority: ORS 651.060(4) & Chapter 652
Statutes/Other Implemented: ORS 652.414, OL CH. 444, 2019 & House Bill 2818, 2021
History:
BLI 1-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 13-2021, temporary amend filed 08/06/2021, effective 08/06/2021 through 02/01/2022
BLI 12-2019, amend filed 10/31/2019, effective 01/01/2020
BLI 26-2009, f. 12-1-09, cert. ef. 1-1-10
BLI 13-1999, f. 9-28-99, cert. ef. 10-23-99
BL 5-1986, f. 6-20-86, ef. 7-1-86

839-001-0525
Priority of Payments from the Wage Security Fund

The Bureau shall pay from or encumber the Fund, on a monthly basis, the administrative and operating expenses incurred while carrying out the provisions of ORS 652.414, and these rules before paying wage claims.

Statutory/Other Authority: ORS 652.414(6)
Statutes/Other Implemented: ORS 652.414
History:
BL 9-1996, f. & cert. ef. 10-8-96
BL 5-1986, f. 6-20-86, ef. 7-1-86

839-001-0530
Wage Security Fund Amount Available for Claim Payment: Prorating Claims When Insufficient Funds are Available

(1) When the amount in the Fund is determined to be insufficient to pay in full all accumulated wage claims determined to be eligible for payment, such wage claims will be prorated.

(2) The computation of prorated amount shall be made according to the following formula:

(a) Amount Available for Payments divided by Total Amount of Eligible Wage Claims = Z

(b) Eligible Amount of Individual Wage Claim times Z = Prorated Amount to Be Paid to Wage Claimant

(3) Wage claims paid from the Fund on a prorated basis are limited to prorated amount paid, and no employee will be paid any additional amount on the same wage claim from the Fund.

Statutory/Other Authority: ORS 652.414(6)
Statutes/Other Implemented: ORS 652.414
History:
BL 9-1996, f. & cert. ef. 10-8-96
BL 5-1986, f. 6-20-86, ef. 7-1-86

839-001-0550
Procedure for Timely and Cost Efficient Method for the Payment of Wages from the Wage Security Fund

(1) When it has been determined that an employer has ceased doing business in Oregon, the Division shall approve or deny payment from the Fund within 30 days of the date the completed wage claim has been filed or the employer has ceased doing business, whichever is later. At the Division’s discretion, the 30 day time period may be extended to 45 days.

(2) When the Commissioner obtains a judgment or issues a final order allowing the claimant to be paid from the Fund and the amount due is not paid upon demand by the Commissioner, the Division shall approve payment from the Fund within 30 days of the date after all appeals of the judgment or final order have been exhausted or the wage claimant has provided all necessary documents to proceed, whichever is later. At the Division's discretion, the 30 day time period may be extended to 45 days. 

(3) Payments from the Fund for wage claims shall be made not less than once in any month.

(4) It is the responsibility of the employee to provide and keep the Division advised of the employee’s current mailing address and telephone number and the name, mailing address, and telephone number of another individual who will generally always be able to advise the Division of the employee’s whereabouts and current address and phone number.

(5) The Division will mail payments from the Fund to the last known address of the employee as reflected in the Division’s records. If the mail is returned, the Division will make one attempt to locate the employee by contacting the individual reflected in the Bureau’s records as the person who will generally always know the employee’s whereabouts.

(6) If the employee cannot be located within 45 days after the payment was first mailed to the employee’s last known current address as reflected in the Division’s records, the wage claim shall be disallowed as eligible for payment from the Fund and the amount of the payment shall revert and be irrevocably added back into the Fund.

(7) Notwithstanding the provisions of section (5) of this rule, an employee whose claim has been disallowed because the employee could not be located within the time provided for in section (5) of this rule may refile the wage claim with the Division; provided, however, that such refiled wage claim shall be deemed and treated for all purposes as a newly filed wage claim.

Statutory/Other Authority: ORS 652.414(6)
Statutes/Other Implemented: ORS 652.414 & House Bill 2818, 2021
History:
BLI 6-2022, minor correction filed 04/13/2022, effective 04/13/2022
BLI 1-2022, amend filed 03/21/2022, effective 04/01/2022
BLI 13-2021, temporary amend filed 08/06/2021, effective 08/06/2021 through 02/01/2022
BL 9-1996, f. & cert. ef. 10-8-96
BL 5-1986, f. 6-20-86, ef. 7-1-86

839-001-0560
Recovery from Employers When Sums Paid from the Wage Security Fund

(1) The Commissioner may perfect a security interest in the personal property of the employer in the amount of the sums paid from the Fund on a wage claim and in an additional amount of the penalty provided for in ORS 652.414(3).

(2) The penalty provided in ORS 652.414(3) of 25 percent of the amount of wages paid from the Wage Security Fund or $200, whichever amount is greater, shall be calculated based on the amount paid to each employee from the Wage Security Fund.

(3) Action to perfect a security interest shall be taken in accordance with ORS 652.414(3) and (4).

Statutory/Other Authority: ORS 652.414(6)
Statutes/Other Implemented: ORS 652.414
History:
BLI 12-2011, f. 12-30-11, cert. ef. 1-1-12
BL 9-1996, f. & cert. ef. 10-8-96
BL 8-1989, f. & cert. ef. 10-12-89
BL 5-1986, f. 6-20-86, ef. 7-1-86

839-001-0700
Definitions for Regulations Pertaining to Moneys Collected from Employees for Group Health Insurance Coverage and Notification of Various Parties on Termination of Group Health Insurance Coverage

As used in ORS 652.710 and in OAR 839-001-0700 to 839-001-0800, unless the context requires otherwise:

(1) "Bureau" means the Bureau of Labor and Industries of the State of Oregon.

(2) "Commissioner" means the Commissioner of the Bureau of Labor and Industries.

(3) "Contract" includes a group health insurance policy.

(4) "Contractor" includes any person who enters into an agreement with an employer to provide health care services to employees. "Contractor" also includes any person who enters into an agreement with an employer to provide insurance coverage pursuant to the terms of a group health insurance policy.

(5) "Employ" includes to suffer or permit to work.

(6) "Employee" means any individual employed by an employer.

(7) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee.

(8) "Group health insurance policy" as used in ORS 652.710(3) has the same meaning as that defined in 743.522.

(9) "Health care services" includes services that provide medical and surgical attention, hospital care, x-rays, ambulance, nursing or other related service or care for sickness or injury. Health care services also include services that are provided under the terms of a group health insurance policy.

(10) "Home address" means the last known mailing address as recorded in the employer's records.

(11) "Insurer" as used in ORS 652.710(3) has the same meaning as that defined in ORS 731.106 and includes a contractor as defined in section (4) of this rule.

(12) "Promptly be paid" or "Promptly pay" means that trust funds are paid no later than the date agreed to by the employer and the contractor.

(13) "Termination" or "Terminated", as used in ORS 652.710(3), means the cessation of coverage on the last day of the period through which coverage is paid up; provided, however, that a group health insurance policy that provides for a grace period for paying premium on the policy terminates on the final day of the grace period. Termination of coverage under a group health insurance policy also includes the amendment or reissuance of a policy to delete one or more classes of certificate holders from coverage.

(14) "Trust funds" means all moneys collected by an employer from employees of the employer or moneys retained from the employee's wages for the purposes of providing or furnishing to the employee’s health care services pursuant to a contract.

(15) "Violation" means a transgression of any statute or rule or any part thereof and includes both acts and omissions.

(16) "Working day" means any day the business of the employer is open for business to its customers or day the employees of the employer are actually working on the employer's business.

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 652.710
History:
BLI 26-2009, f. 12-1-09, cert. ef. 1-1-10
BL 10-1992, f. & cert. ef. 7-1-92

839-001-0710
Effective Dates for Civil Penalty Provisions

(1) The civil penalty provisions become effective on the following dates:

(a) The civil penalty provisions of ORS 652.710 for violations of 652.710(1) are effective September 29, 1991;

(b) The civil penalty provisions of ORS 652.710 for violations of 652.710(3) are effective July 1, 1992.

(2) The notification requirements of ORS 652.710(3) are effective July 1, 1992.

(3) The provisions of ORS 652.710(1) have been effective since June 14, 1941.

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 652.710
History:
BL 10-1992, f. & cert. ef. 7-1-92

839-001-0720
Notification of Termination of Group Health Insurance Policy

(1) When an employer receives notice from a contractor or insurer who is providing or has provided the employer with a group health insurance policy that the policy is terminated by the insurer and when the employer does not replace the group health insurance coverage with another group health insurance policy, the employer shall notify all employees who were covered under the terminated policy.

(2) The employer shall notify the employees in writing no later than ten working days from the date the employer has received notice from the contractor or insurer that the group health insurance policy is terminated.

(3) The employer shall deliver the notice to each employee who was covered by the terminated group health insurance policy as follows:

(a) The employer shall deliver the notice to each employee affected in person; or

(b) The employer shall deliver the notice to each employee affected by mailing the notice to the employee’s home address as recorded in the employer’s records.

(4) If the employer mails the notice, the employer shall complete a certificate of mailing for each notice mailed.

(5) If the employer delivers the notice in person, the employer shall request the employee to acknowledge in writing that the employee received the notice.

(6) The notice to employees shall contain the following information:

(a) A statement to the effect that the group health insurance policy covering the employees has been terminated;

(b) A statement to the effect that the employer will no longer provide group health insurance coverage for its employees;

(c) The date the termination of the group health insurance policy takes effect;

(d) An exact and clearly legible copy of the information supplied to the employer by the contractor or insurer pursuant to ORS 743.560.

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 652.710
History:
BL 10-1992, f. & cert. ef. 7-1-92

839-001-0730
Records to Be Kept/Availability of Records

(1) The employer shall keep and make available for inspection by the Commissioner of the Bureau of Labor and Industries or representatives of the commissioner the following documents:

(a) A true copy of the notice delivered to employees pursuant to these rules;

(b) If the notice was mailed, the certificate of mailing for each employee to whom a notice was mailed;

(c) If the notice was distributed in person, a written acknowledgement, signed by the employee, that the employee received the notice.

(2) The documents required to be kept in section (1) of this rule shall be maintained for a period of two years from the date the notice was delivered.

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 652.710
History:
BL 10-1992, f. & cert. ef. 7-1-92

839-001-0740
Employee Notification Form for Termination of Group Health Insurance Coverage

(1) For purposes of complying with ORS 652.710(3) and OAR 839-001-0720, there is no specific form required. The document used by the employer to notify its employees must contain all the information provided for in OAR 839-001-0720(6).

(2) When the form supplied to the employer by the contractor or insurer contains the required information and when an exact and clearly legible copy of the form is delivered to employees within the time required in ORS 652.710(3) and OAR 839-001-0720(3), the notification requirements are satisfied.

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 652.710
History:
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08
BL 10-1992, f. & cert. ef. 7-1-92

839-001-0760
Violations Separate and Distinct

Each violation of ORS 652.710(1) and (3) is a separate and distinct offense. In the case of continuing violations, each day's continuance is a separate and distinct violation.

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 183.090 & 652.710
History:
BLI 37-2007, f. 12-28-07, cert. ef. 1-1-08
BL 10-1992, f. & cert. ef. 7-1-92

839-001-0770
Violations of ORS 652.710(10) and (3) for Which a Civil Penalty May Be Assessed

Pursuant to ORS 652.710(4), the Commissioner may assess a civil penalty for violations of 652.710(1) and (3) as follows:

(1) Violations of ORS 652.710(1):

(a) Failure of the employer to keep trust funds in accounts separate of other accounts maintained by the employer;

(b) Failure of the employer to promptly pay the trust funds over to the contractor pursuant to a contract for health care services;

(c) Allowing trust funds to become part of the employer’s assets.

(2) Violations of ORS 652.710(3):

(a) Failure to deliver the notification required in ORS 652.710(3) to each employee covered by the terminated group health insurance policy in person or by delivering the notice by mail to the employee’s home address;

(b) Failure to deliver the notice no later than ten (10) working days to each employee after the employer has received notice from the contractor or insurer pursuant to ORS 743.560;

(c) Failure to provide in the notice to each employee the information required in OAR 839-001-0720(6).

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 183.090 & 652.710
History:
BL 10-1992, f. & cert. ef. 7-1-92

839-001-0780
Criteria for Determining a Civil Penalty

(1) The Commissioner may consider the following mitigating and aggravating circumstances when determining the amount of any civil penalty to be assessed and cite those the Commissioner finds to be appropriate:

(a) The history of the employer in taking all necessary measures to prevent or correct violations of statutes or rules;

(b) Prior violations, if any, of statutes or rules;

(c) The magnitude and seriousness of the violation;

(d) Whether the employer knew or should have known of the violation;

(e) Whether the employer’s action or inaction has resulted in the loss of a substantive right of an employee.

(2) It will be the responsibility of the employer to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be assessed.

(3) Notwithstanding any other section of this rule, the commissioner will consider evidence of all mitigating circumstances presented by the employer for the purpose of reducing the amount of the civil penalty to be assessed.

Statutory/Other Authority: ORS 652.710(7), 652.710(11) & 673
Statutes/Other Implemented: ORS 183.090 & 652.710
History:
BLI 1-2002, f. & cert. ef. 1-9-02
BL 10-1992, f. & cert. ef. 7-1-92

839-001-0790
Schedule of Civil Penalties for Violation of ORS 652.710(1)

(1) The civil penalty for any one violation shall not exceed $1,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) When the Commissioner determines to assess a civil penalty for violation(s) of ORS 652.710(1), the minimum civil penalty to be assessed shall be $50 for each employee affected; provided, however, that if the violation(s) of 652.710(1) result(s) in a lapse of health care insurance coverage or otherwise in the unavailability of health care services through the employer’s contract, the minimum civil penalty to be assessed shall be $500 for each employee affected.

(3) The civil penalty for all other violations shall be set in accordance with the determinations and considerations referred to in OAR 839-001-0780.

(4) When the Commissioner determines to assess a civil penalty for any violation of ORS 652.710(1) by an employer who has previously been assessed a civil penalty for violation of 652.710(1), the minimum civil penalty shall be as follows:

(a) For a second offense, double the amounts specified in sections (2) and (3) of this rule;

(b) For third and subsequent offenses, $1,000 for each violation.

(5) The civil penalties set out in this rule shall be in addition to any other penalty imposed by law or rule.

Statutory/Other Authority: ORS 652.710(7) & 652.710(11)
Statutes/Other Implemented: ORS 183.090 & 652.710
History:
BL 10-1992, f. & cert. ef. 7-1-92

839-001-0800
Schedule of Civil Penalties for Violation of ORS 652.710(3)

(1) The civil penalties for any one violation shall not exceed $1,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances.

(2) When the Commissioner determines to assess a civil penalty for violation(s) of ORS 652.710(3), if delivery of notice satisfying the requirements of 652.710(3) occurred no later than three working days prior to the date upon which employee rights to conversion coverage terminate, a minimum civil penalty of $50 per employee shall be assessed. However, if delivery of notice as required by 652.710(3) is not made at least three days prior to the expiration of conversion rights, a minimum civil penalty of $500 per employee shall be assessed.

(3) When the Commissioner determines to assess a civil penalty for the failure to provide all required information in the notice, a minimum civil penalty of $25 per employee for each notice not containing the required information.

(4) The civil penalty for all other violations shall be set in accordance with the determinations and considerations referred to in OAR 839-001-0780.

(5) When the Commissioner determines to assess a civil penalty for any violation of ORS 652.710(3) by an employer who has previously been assessed a civil penalty for violation of ORS 652.710(3), the minimum civil penalty shall be as follows:

(a) For a second offense, double the amounts specified in sections (2), (3), and (4) of this rule;

(b) For third and subsequent offenses, $1,000 for each violation.

(6) The civil penalties set out in this rule shall be in addition to any other penalty assessed or imposed by law or rule.

Statutory/Other Authority: ORS 652.710(11)
History:
BL 10-1992, f. & cert. ef. 7-1-92