Bill Text: OR HB2041 | 2011 | Regular Session | Introduced

---

Bill Title: Relating to enforcement authority of the Commissioner of the Bureau of Labor and Industries.

Spectrum: Unknown

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB2041 Detail]

Download: Oregon-2011-HB2041-Introduced.html

---

     76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session

NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .

LC 730

                         House Bill 2041

Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Commissioner of the Bureau
  of Labor and Industries Brad Avakian)

                             SUMMARY

The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.

  Authorizes Commissioner of Bureau of Labor and Industries to
issue temporary cease and desist order under certain
circumstances.

                        A BILL FOR AN ACT
Relating to enforcement authority of the Commissioner of the
  Bureau of Labor and Industries; creating new provisions; and
  amending ORS 651.060 and 652.332.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 651.060 is amended to read:
  651.060. (1) The Commissioner of the Bureau of Labor and
Industries may conduct investigations, issue subpoenas and
subpoenas duces tecum, administer oaths, obtain evidence and take
testimony in all matters relating to the duties required under
ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170
and ORS chapters 652, 653, 658 and 659A and in all contested
cases scheduled for hearing by the Bureau of Labor and Industries
pursuant to ORS chapter 183 when the information sought is
relevant to a lawful investigative purpose and is reasonable in
scope. The testimony shall be taken in some suitable place in the
vicinity to which testimony is applicable. The commissioner shall
adopt rules for gathering information through subpoenas or
testimony. The rules must include procedures through which a
party may object to providing information. After being served
with a subpoena, if a person refuses, without reasonable cause,
to be examined, to answer any question or to produce any document
or other thing as required by the subpoena, the commissioner may
petition the circuit court in the county in which the
investigation is pending for an order directing the person to
show cause why the person has not complied with the subpoena and
should not be held in contempt. The commissioner shall serve the
court's order upon the person in the manner provided by ORCP 55
D. If the person fails to show cause for the noncompliance, the
court shall order the person to comply with the subpoena within
such time as the court shall direct and may hold the person in
contempt.
  (2) Witnesses subpoenaed and testifying before any officer of
the bureau shall be paid the fees and mileage provided for
witnesses in ORS 44.415 (2). The payment shall be made from the
fund appropriated for the use of the bureau and in the manner
provided in ORS 651.170 for the payment of other expenses of the
bureau.
  (3) The commissioner shall employ a deputy commissioner and
  { - such - }  other assistants or personnel as may be necessary
to carry into effect the powers and duties of the commissioner or
of the bureau and may prescribe the duties and responsibilities
of the employees. The commissioner may delegate any of the powers
of the commissioner or of the bureau to the deputy commissioner
and to the other assistants employed under this subsection for
the purpose of transacting the business of the commissioner's
office or of the bureau. In the absence of the commissioner, the
deputy commissioner and the other assistants whom the
commissioner employs have full authority, under the
commissioner's direction, to do and perform any duty that the law
requires the commissioner to perform. However, the commissioner
is responsible for all acts of the deputy commissioner and of the
assistants employed under this subsection.
  (4) The commissioner may adopt   { - such - }  reasonable rules
 { - as - }  { +  that + } may be necessary to administer and
enforce   { - any - }  { +  the + } statutes over which the
commissioner or the bureau has jurisdiction.
  (5) The commissioner may conduct { + , + } and  { + may + }
charge and collect fees for { + , + } public information programs
pertaining to   { - any of - }  the statutes over which the
commissioner or the bureau has jurisdiction.
   { +  (6) If the commissioner has reason to believe that an
employer has violated the provisions of ORS 279C.800 to 279C.870
or 658.405 to 658.503 or of ORS chapter 652 or 653, the
commissioner may issue a temporary cease and desist order
requiring an employer to refrain from the unlawful practice
alleged. + }
  SECTION 2. ORS 652.332 is amended to read:
  652.332. (1) In any case when the Commissioner of the Bureau of
Labor and Industries has received a wage claim complaint
  { - which - }   { + that + } the commissioner could seek to
collect through court action, the commissioner may instead elect
to seek collection of
  { - such - }  { +  the + } claim through administrative
proceedings in the manner provided in this section, subject to
the employer's right to request a trial in a court of law. The
commissioner may join in a single administrative proceeding any
number of wage claims against the same employer. Upon making such
election, the commissioner shall serve upon the employer and the
wage claimant an order of determination directing the employer to
pay to the commissioner the amount of the wage claim and any
penalty amounts under ORS 279C.855 (1), 652.150 and 653.055 (1)
determined to be owed the wage claimant. Service shall be made in
the same manner as service of summons or by certified mail,
return receipt requested. The order of determination shall
include:
  (a) A reference to the particular sections of the statutes or
rules involved;
  (b) A short and concise statement of the basis for the amounts
determined to be owed to each wage claimant;
  (c) A statement of the party's right to request a contested
case hearing and to be represented by counsel at   { - such a - }
 { +  the + } hearing, and of the employer's right to a trial in
a court of law, provided that any request for a contested case
hearing or trial in a court of law must be received by the
commissioner in writing within 20 days after receipt by the party
of the order of determination;
  (d) A statement that the employer must, within 20 days after
receipt of the order of determination, either pay in full the
wage claim and any penalties assessed, or present to the

commissioner a written request for a contested case hearing or a
trial in a court of law as provided in this section;
  (e) A statement that failure to make a written request to the
commissioner for a contested case hearing or a trial of the claim
in a court of law within the time specified shall constitute a
waiver of the right   { - thereto - }   { + to a contested case
hearing + } and a waiver of the right to a trial by jury; and
  (f) A statement that unless the written requests provided for
in paragraph (c) of this subsection are received by the
commissioner within the time specified for making   { - such - }
 { +  the + } requests, the order of determination shall become
final.
  (2) Upon failure of the employer to pay the amount specified in
the order of determination or to request a trial in a court of
law within the time specified, and upon failure of any party to
request a contested case hearing within the time specified, the
order of determination shall become final.
  (3) If a party makes a timely request for a contested case
hearing, a hearing shall be held in accordance with the
applicable provisions of ORS 183.415 to 183.500 by the
commissioner or the commissioner's designee. The commissioner
shall adopt rules for
  { - such - }  { +  the + } hearing. In any hearing before the
commissioner's designee, the designee is authorized to issue the
final order in the case. If the employer makes a timely request
for a trial in a court of law, the commissioner may proceed
against the employer as provided in ORS 652.330 (1)(b).
   { +  (4) The commissioner or the commissioner's designee may
include in a final order issued under this section a cease and
desist order against an employer found to have engaged in an
unlawful practice alleged in the order of determination. The
final order must take into account the need to supervise
compliance with the terms of the final order. The final order may
require the employer to:
  (a) Perform an act or a series of acts designated in the final
order that are reasonably calculated to:
  (A) Carry out the purposes of ORS 279C.800 to 279C.870, 658.405
to 658.503 and ORS chapters 652 and 653;
  (B) Eliminate the effects of the unlawful practice that the
employer has been found to have engaged in, including but not
limited to paying all wages and penalties due and owing to the
wage claimant and complying with injunctive or other equitable
relief; and
  (C) Protect the rights of the wage claimant and other persons
similarly situated;
  (b) Submit reports to the commissioner on the manner of
compliance with other terms and conditions specified in the final
order, and take other action as may be required to ensure
compliance with the final order; and
  (c) Refrain from an action specified in the final order that
would jeopardize the rights of the wage claimant or other persons
similarly situated, or that would otherwise frustrate the
purposes of ORS 279C.800 to 279C.870, 658.405 to 658.503 and ORS
chapters 652 and 653. + }
    { - (4) - }   { + (5) + } Final administrative orders issued
in a wage claim proceeding are subject to review by the Court of
Appeals as provided in ORS 183.480 and 183.482.
    { - (5) - }   { + (6) + } When an order issued under this
section becomes final, it may be recorded in the County Clerk
Lien Record in any county of this state. In addition to any other
remedy provided by law, recording   { - an - }   { + a final + }
order in the County Clerk Lien Record pursuant to the provisions
of this section has the effect provided for in ORS 205.125 and
205.126, and the  { + final + } order may be enforced as provided
in ORS 205.125 and 205.126. { +  The final order may also be

enforced by writ of mandamus or civil action to compel
performance of the final order. + }
    { - (6) - }   { + (7) + }   { - Where - }   { + If + } the
wage claim arose out of work performed by the claimant for the
employer on any public works project to which ORS 279C.830 or
279C.840 applies, and a state agency holds sufficient funds as
retainage on   { - such - }  { +  the + } project to pay
 { - such - }   { + the + } claim or   { - any portion
thereof - }  { +  a portion of the claim + }, the state agency
may, at the request of the commissioner, pay to the commissioner
from the retainage all or part of the amount due on the claim
under the final order.
  SECTION 3.  { + The amendments to ORS 652.332 by section 2 of
this 2011 Act apply to orders that become final on or after the
effective date of this 2011 Act. + }
                         ----------