Bill Text: OR HB2469 | 2011 | Regular Session | Introduced

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Bill Title: Relating to employment; declaring an emergency.

Spectrum: Unknown

Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB2469 Detail]

Download: Oregon-2011-HB2469-Introduced.html

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     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 976

                         House Bill 2469

Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of House Interim Committee on
  Consumer Protection and Government Accountability)

                             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.

  Establishes review processes for certain employer
determinations made by Department of Revenue and Employment
Department based on finding that one or more workers are
employees and not independent contractors.
  Modifies laws relating to Interagency Compliance Network.
Eliminates references to network and substitutes references to
specific agencies.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to employment; creating new provisions; amending ORS
  183.635, 305.410, 657.679, 670.700 and 670.705; and declaring
  an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { +  Definitions. As used in sections 1 to 6 of
this 2011 Act:
  (1) 'Employer determination' means:
  (a) A determination by the Employment Department under ORS
657.679 that an employing unit is an employer subject to ORS
chapter 657 based on a finding that one or more workers paid by
the employing unit are employees and not independent contractors;
  (b) A determination by the Employment Department under ORS
657.679 that services performed by an individual for an employer
liable for reimbursement payments in lieu of taxes is employment
subject to ORS chapter 657 based on a finding that one or more
workers paid by the employing unit are employees and not
independent contractors; or
  (c) A withholding or transit tax assessment issued by the
Department of Revenue to a person that is based in whole or part
on a finding that one or more workers paid by the person were
employees of the person under the tax laws of this state and not
independent contractors.
  (2) 'Final order' means an employer determination that is no
longer subject to judicial review. + }
  SECTION 2.  { + Employer determinations generally; notice of
issuance of employer determinations and of final orders. (1) The
Department of Revenue and the Employment Department by rule may
specify employer determinations that are subject to sections 1 to
6 of this 2011 Act. An employer determination is subject to
sections 1 to 6 of this 2011 Act only if the notice served on the
person identified in the determination so indicates.
  (2) The Department of Revenue and the Employment Department
shall promptly give notice to all agencies identified in ORS
670.700 (1) whenever:
  (a) An employer determination is issued by the Department of
Revenue or the Employment Department.
  (b) An employer determination issued by the Department of
Revenue or the Employment Department becomes a final order.
  (3) Notices given under this section must identify the person
that is the subject of the employer determination.
  (4) Receipt of a notice under this section does not prevent the
Department of Revenue or the Employment Department from issuing
an employer determination with respect to the person identified
in the notice. If the person requests a hearing within the time
allowed under section 4 of this 2011 Act on the first employer
determination received by the person, the person is deemed to
have requested a hearing within the time allowed under section 4
of this 2011 Act on the second employer determination.  The
hearings on the two determinations under section 4 of this 2011
Act shall be consolidated. + }
  SECTION 3.  { + Service of employer determinations; contents.
(1) An employer determination must be served on the person
identified in the determination by regular mail at the last-known
address for the person.
  (2) An employer determination must:
  (a) Indicate that the person identified in the determination
may request a hearing in the manner provided by section 4 of this
2011 Act if the person wishes to contest the determination;
  (b) Indicate that the determination will become a final order
if a hearing is not requested within the time allowed by section
4 of this 2011 Act; and
  (c) Include a statement that explains the binding effect of a
final order under section 5 of this 2011 Act. + }
  SECTION 4.  { + Hearing on employer determination. + }  { +
(1) Notwithstanding any other provision of law, an employer
determination becomes a final order 20 days after the notice is
mailed to the person identified in the determination if the
person does not file a written request for a hearing with the
department that issued the determination before the expiration of
the 20-day period.
  (2) If a request for a hearing on an employer determination is
made within the time allowed, a hearing shall be conducted in the
manner provided for contested cases under ORS chapter 183. The
hearing shall be conducted by an administrative law judge
assigned from the Office of Administrative Hearings.
  (3) Notwithstanding ORS 183.482, a petition for judicial review
of a decision by an administrative law judge under this section
must be filed within 20 days after the decision is final. + }
  SECTION 5.  { + Binding effect of employer determination. When
an employer determination becomes a final order, the
determination is binding on:
  (1) The person identified in the determination;
  (2) The Oregon Tax Court; and
  (3) The Department of Revenue and the Employment
Department. + }
  SECTION 6.  { + Exclusivity. Notwithstanding any other
provision of law, sections 1 to 6 of this 2011 Act provide the
exclusive means of contesting an employer determination. + }
  SECTION 7. ORS 183.635 is amended to read:
  183.635. (1) Except as provided in this section, all agencies
must use administrative law judges assigned from the Office of
Administrative Hearings established under ORS 183.605 to conduct
contested case hearings, without regard to whether those hearings
are subject to the procedural requirements for contested case
hearings.
  (2) The following agencies need not use administrative law
judges assigned from the office:
  (a) Attorney General.
  (b) Boards of stewards appointed by the Oregon Racing
Commission.
  (c) Bureau of Labor and Industries and the Commissioner of the
Bureau of Labor and Industries.
  (d) Department of Corrections.
  (e) Department of Education, State Board of Education and
Superintendent of Public Instruction.
  (f) Department of Human Services for vocational rehabilitation
services cases under 29 U.S.C. 722(c) and disability
determination cases under 42 U.S.C. 405.
  (g) Department of Revenue { + , except for hearings conducted
under section 4 of this 2011 Act + }.
  (h) Department of State Police.
  (i) Employment Appeals Board.
  (j) Employment Relations Board.
  (k) Energy Facility Siting Council.
  (L) Fair Dismissal Appeals Board.
  (m) Governor.
  (n) Land Conservation and Development Commission.
  (o) Land Use Board of Appeals.
  (p) Local government boundary commissions created pursuant to
ORS 199.430.
  (q) Oregon University System and institutions of higher
education listed in ORS 352.002.
  (r) Oregon Youth Authority.
  (s) Psychiatric Security Review Board.
  (t) Public Utility Commission.
  (u) State Accident Insurance Fund Corporation.
  (v) State Apprenticeship and Training Council.
  (w) State Board of Parole and Post-Prison Supervision.
  (x) State Land Board.
  (y) State Treasurer.
  (z) Wage and Hour Commission.
  (3) The Workers' Compensation Board is exempt from using
administrative law judges assigned from the office for any
hearing conducted by the board under ORS chapters 147, 654 and
656. Except as specifically provided in this subsection, the
Department of Consumer and Business Services must use
administrative law judges assigned from the office only for
contested cases arising out of the department's powers and duties
under:
  (a) ORS 86A.095 to 86A.198, 86A.990 and 86A.992 and ORS chapter
59;
  (b) ORS chapter 455;
  (c) ORS chapter 674;
  (d) ORS chapters 706 to 716;
  (e) ORS chapter 717;
  (f) ORS chapters 723, 725 and 726; and
  (g) ORS chapters 731, 732, 733, 734, 735, 737, 742, 743, 743A,
744, 746, 748 and 750.
  (4) Notwithstanding any other provision of law, in any
proceeding in which an agency is required to use an
administrative law judge assigned from the office, an officer or
employee of the agency may not conduct the hearing on behalf of
the agency.
  (5) Notwithstanding any other provision of ORS 183.605 to
183.690, an agency is not required to use an administrative law
judge assigned from the office if:
  (a) Federal law requires that a different administrative law
judge or hearing officer be used; or
  (b) Use of an administrative law judge from the office could
result in a loss of federal funds.

  (6) Notwithstanding any other provision of this section, the
Department of Environmental Quality must use administrative law
judges assigned from the office only for contested case hearings
conducted under the provisions of ORS 183.413 to 183.470.
  SECTION 8. ORS 305.410 is amended to read:
  305.410. (1) Subject only to the provisions of ORS 305.445
relating to judicial review by the Supreme Court and to
  { - subsection - }  { +  subsections + } (2)  { + and (5) + }
of this section, the tax court shall be the sole, exclusive and
final judicial authority for the hearing and determination of all
questions of law and fact arising under the tax laws of this
state. For the purposes of this section, and except to the extent
that they preclude the imposition of other taxes, the following
are not tax laws of this state:
  (a) ORS chapter 577 relating to Oregon Beef Council
contributions.
  (b) ORS 576.051 to 576.455 relating to commodity commission
assessments.
  (c) ORS chapter 477 relating to fire protection assessments.
  (d) ORS chapters 731, 732, 733, 734, 737, 742, 743, 743A, 744,
746, 748 and 750 relating to insurance company fees and taxes.
  (e) ORS chapter 473 relating to liquor taxes.
  (f) ORS chapter 583 relating to milk marketing, production or
distribution fees.
  (g) ORS chapter 825 relating to motor carrier taxes.
  (h) ORS chapter 319 relating to motor vehicle and aircraft fuel
taxes.
  (i) ORS title 59 relating to motor vehicle and motor vehicle
operators' license fees and ORS title 39 relating to boat
licenses.
  (j) ORS chapter 578 relating to Oregon Wheat Commission
assessments.
  (k) ORS chapter 462 relating to racing taxes.
  (L) ORS chapter 657 relating to unemployment insurance taxes.
  (m) ORS chapter 656 relating to workers' compensation
contributions, assessments or fees.
  (n) ORS 311.420, 311.425, 311.455, 311.650, 311.655 and ORS
chapter 312 relating to foreclosure of real and personal property
tax liens.
  (o) Sections 15 to 22, 24 and 29, chapter 736, Oregon Laws
2003, relating to long term care facility assessments.
  (2) The tax court and the circuit courts shall have concurrent
jurisdiction to try actions or suits to determine:
  (a) The priority of property tax liens in relation to other
liens.
  (b) The validity of any deed, conveyance, transfer or
assignment of real or personal property under ORS 95.060 and
95.070 (1983 Replacement Part) or 95.200 to 95.310 where the
Department of Revenue has or claims a lien or other interest in
the property.
  (3) Subject only to the provisions of ORS 305.445 relating to
judicial review by the Supreme Court, the tax court shall be the
sole, exclusive and final judicial authority for the hearing and
determination of all questions of law and fact concerning the
authorized uses of the proceeds of bonded indebtedness described
in section 11 (11)(d), Article XI of the Oregon Constitution.
  (4) Except as permitted under section 2, amended Article VII,
Oregon Constitution, this section and ORS 305.445, no person
shall contest, in any action, suit or proceeding in the circuit
court or any other court, any matter within the jurisdiction of
the tax court.
   { +  (5) Employer determinations that are subject to sections
1 to 6 of this 2011 Act are subject to review only as provided in
sections 1 to 6 of this 2011 Act. + }
  SECTION 9. ORS 657.679 is amended to read:

  657.679. A determination of the Director of the Employment
Department or the authorized representative of the director:
  (1) As to whether an employing unit is an employer subject to
this chapter, or
  (2) That services performed by an individual for an employer
liable for reimbursement payments in lieu of taxes is employment
subject to this chapter,

shall become final 20 days after written notice of the
determination is mailed to the last-known address of the
employing unit of record with the director unless within such
time the employing unit files an application with the director
for a hearing with respect thereto as provided in ORS
657.683 { + , or as provided in section 4 of this 2011 Act if the
determination is subject to section 1 to 6 of this 2011 Act + }.
  SECTION 10. ORS 670.700 is amended to read:
  670.700. (1)   { - There is established an Interagency
Compliance Network consisting of - }  { +  The following agencies
shall work together to increase compliance with laws relating to
taxation and employment in the manner described in subsection (2)
of this section + }:
  (a) The Department of Justice;
  (b) The Department of Revenue;
  (c) The Employment Department;
  (d) The Department of Consumer and Business Services;
  (e) The Bureau of Labor and Industries;
  (f) The Construction Contractors Board; { +  and + }
  (g) The State Landscape Contractors Board  { - ; and - }
    { - (h) Other state agencies that enter into the
intergovernmental agreement as described in subsection (3) of
this section - } .
  (2) The   { - Interagency Compliance Network established under
this section - }  { +  agencies identified in subsection (1) of
this section + } shall:
  (a) Work to establish consistency in agency determinations
relating to the classification of workers, including but not
limited to classification of workers as independent contractors;
  (b) Gather and share information relating to persons who pay
workers in cash and who do not comply with laws relating to
taxation or employment;
  (c) Gather and share information relating to the
misclassification of workers, including but not limited to
misclassification as independent contractors;
  (d) Develop investigative methods for auditing persons who pay
workers in cash, or who misclassify workers, and who do not
comply with laws relating to taxation or employment;
  (e) Conduct joint audits of persons who pay workers in cash, or
who misclassify workers, and who do not comply with laws relating
to taxation or employment;
  (f) Identify opportunities for and obstacles to improving
compliance with the laws relating to the classification of
workers, taxation or employment;
  (g) Create a coordinated enforcement process for the laws
relating to classification of workers that is efficient, fair and
effective for the public and the regulatory agencies charged with
enforcing laws relating to taxation or employment;
  (h) Engage in public outreach efforts to educate the public
generally on the distinctions between independent contractors and
employees and on the laws and regulations governing the duties
relating to classification of workers; and
  (i) Take such other action as the member agencies deem
appropriate to improve compliance with laws relating to taxation
or employment that are administered by the member agencies.
  (3) The agencies identified in subsection   { - (1)(a) to
(g) - }  { +  (1) + } of this section   { - shall - }  { +
may + } enter into an intergovernmental agreement for the purpose
of coordinating the efforts of the agencies under this section.
Any other agency of state government, as defined in ORS 174.111,
that has an interest in compliance with laws relating to taxation
or employment may   { - become a member of the Interagency
Compliance Network by entering into - }   { + become a party to
 + }the agreement on such terms as may be prescribed by the
agencies identified in subsection   { - (1)(a) to (g) - }  { +
(1) + } of this section.
    { - (4) - }  Notwithstanding ORS 314.835 or any other law
relating to confidentiality of information,   { - any agency that
is a member of the Interagency Compliance Network may enter into
an agreement with another member agency to provide information to
the other agency - }  { +  the agreement may provide for the
sharing of information between the agencies + }. Information
provided to an agency under this
  { - subsection - }  { +  agreement + } may be used by the
agency only for the purpose of enforcing compliance of laws that
are administered by the agency { + , and may be introduced as
evidence in any proceeding for the enforcement of the laws
administered by the agency + }.
  SECTION 11. ORS 670.705 is amended to read:
  670.705. The   { - member - }  agencies   { - of the
Interagency Compliance Network - }  { +  identified in ORS
670.700 (1)  + }shall prepare a report once every two years that
details the activities of the   { - network - }  { +  agencies
under ORS 670.700 + } during the two-year period. The report
shall identify the manner in which   { - the - }  funding for
 { - the network - }  { +  activities under ORS 670.700 + } has
been expended, and an estimate of the revenue impact of the
 { - network's - }  activities. The report shall be provided to
the Governor, and to the Legislative Assembly in the manner
provided by ORS 192.245.
  SECTION 12.  { + (1) Except as provided in subsection (2) of
this section, sections 1 to 6 of this 2011 Act and the amendments
to statutes by sections 7 to 11 of this 2011 Act become operative
January 1, 2012.
  (2) The Department of Revenue and the Employment Department may
take any action, including adopting rules, before January 1,
2012, necessary to allow implementation of sections 1 to 6 of
this 2011 Act and the amendments to statutes by sections 7 to 11
of this 2011 Act on January 1, 2012. + }
  SECTION 13.  { + The section captions used in this 2011 Act are
provided only for the convenience of the reader and do not become
part of the statutory law of this state or express any
legislative intent in the enactment of this 2011 Act. + }
  SECTION 14.  { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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