Bill Text: OR SB610 | 2011 | Regular Session | Introduced

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Bill Title: Relating to regulation of employment.

Spectrum: Committee Bill

Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB610 Detail]

Download: Oregon-2011-SB610-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 3516

                         Senate Bill 610

Sponsored by COMMITTEE ON JUDICIARY (at the request of Northwest
  Workers Justice Project & Oregon Coalition to Stop Wage Theft)

                             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.

  Requires day labor service agencies to register with
Commissioner of Bureau of Labor and Industries. Requires employer
to provide information about work, employer and wages and to
provide certain special attire, accessories, tools or safety
equipment to day laborers. Prohibits employers from retaliating
or taking certain other actions against day laborers or third
party employers.
  Requires commissioner to adopt rules to implement and enforce
law. Authorizes commissioner to assess civil penalties and to
deny, suspend or revoke registration of day labor service agency.
  Prohibits employers from discriminating in compensation against
part-time employees and employees in contingent jobs.  Provides
exception. Prohibits person from entering into contract for labor
or services with certain contractors when person knows or should
know that contract does not include sufficient funds to allow
contractor to comply with laws governing labor or services to be
provided.
  Regulates entity that procures employment for others as
employment agency when entity's services are paid for by anyone
other than job applicant. Increases amount of bond or other
security employment agency must maintain. Prohibits employment
agencies from charging applicants for certain items or services.
Prohibits employment agencies from taking certain actions against
applicants.
  Creates cause of action for violations.

                        A BILL FOR AN ACT
Relating to regulation of employment; creating new provisions;
  and amending ORS 658.005, 658.075 and 658.172.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + (1) As used in this section:
  (a) 'Day labor' includes labor or employment that is occasional
or irregular, in which an individual is employed for not longer
than the period of time required to complete the assignment for
which the individual is hired and in which wage payments are made
directly or indirectly to the individual by a day labor service
agency or a third party employer for work undertaken by the
individual. 'Day labor' does not include labor or employment of a
professional or clerical nature.
  (b) 'Day labor employer' includes:
  (A) Any person that directly or indirectly, through an agent,
day labor service agency or other person acting in the day labor
employer's interest, suffers or permits a day laborer to work or
otherwise exercises control over the wages, hours or working
conditions of a day laborer;
  (B) A day labor service agency; and
  (C) A third party employer.
  (c) 'Day labor service agency' includes any person that
recruits, dispatches or otherwise facilitates the employment of
day laborers by a third party employer. 'Day labor service
agency' does not include a nonprofit organization described in
section 501(c)(3) of the Internal Revenue Code.
  (d) 'Day laborer' means an individual solicited or employed to
engage in day labor.
  (e) 'Third party employer' includes a person that suffers or
permits a day laborer to work by contracting with a day labor
service agency for the personal services of the day laborer.
  (2) Day labor service agencies and third party employers are
day labor employers and share all legal obligations placed on day
labor employers by this section.
  (3) A day labor service agency shall register with the
Commissioner of the Bureau of Labor and Industries in accordance
with rules adopted by the commissioner, unless the day labor
service agency is regulated as an employment agency under ORS
658.005 to 658.245, or is licensed as a farm labor contractor
under 658.405 to 658.503, and has notified the commissioner that
the day labor service agency provides day labor services. The
commissioner shall establish by rule an annual registration fee
not exceeding $250.
  (4) A day labor service agency offering to refer day laborers
to work shall post in the public reception area of the day labor
service agency:
  (a) A list of all employers that are seeking day laborers.  The
list must include for each employer:
  (A) The name and address of the employer and the address of the
work site if different from that of the employer;
  (B) The type of job opportunities for day laborers;
  (C) The amount of wages to be paid per hour for the work; and
  (D) Whether transportation is available, whether the work site
is accessible by public or personal transportation and the
approximate commute time to the work site.
  (b) A notice to inform the public of a toll-free telephone
number for the commissioner for filing complaints about wage
disputes and alleged violations of this section by a day labor
employer. The commissioner shall furnish copies of this notice to
day labor service agencies without charge.
  (5) A day labor employer shall, for each job opportunity
offered, provide a written description of the work to each day
laborer recruited or hired at the time of the recruitment or
hiring, whichever is earlier. The written description of the work
must include:
  (a) A description of the work to be performed by the day
laborer, including the pay and any requirements for special
attire, accessories, tools, safety equipment or other items
required by law or custom to perform the work assignment.
  (b) The exact address of the work site and a telephone number
at which a day laborer can be reached for emergency purposes. If
the location is in a rural area, the written description of the
work must contain directions to the work site.
  (c) The time of day the work will begin and the time of day the
work will end.
  (d) Whether a meal is provided, either by the day labor service
agency or the third party employer, and the cost of the meal, if
any, that would be charged to the day laborer.

  (e) A phone number and business address of the third party
employer requesting the day laborer though the day labor service
agency.
  (6) The postings and the written description of the work
required by subsections (4) and (5) of this section shall be
written in English and any other language that is generally used
in the locale of the day labor employer.
  (7) A day labor employer shall pay a day laborer not less than
the prevailing wage rate paid to permanent employees performing
substantially equivalent work, with due consideration given to
seniority, experience and skills.
  (8) When a day labor employer and a day laborer have agreed
upon a wage rate, the day labor employer may not reduce the
agreed wage rate during the term of the employment.
  (9) At the time wages are paid, a day labor employer shall
provide a day laborer with a written statement itemizing the day
laborer's total wages, the basis of the calculation of the wages
and the amount and purpose of each deduction made from the wages.
  (10) A day labor employer shall provide, at no cost to a day
laborer, any special attire, accessories, tools, safety equipment
or other items required by law or custom to perform the work
assignment. For any other attire, accessories, tools, safety
equipment or other items the day labor employer makes available
for purchase, the day labor employer may not charge the day
laborer more than the actual cost or reasonable market value,
whichever is less, for the item. If a day laborer willfully fails
to return an item provided by the day labor employer, the day
labor employer may charge the day laborer for the market value of
the item.
  (11) If a day labor employer fails to appear at a designated
time and location after requesting a day laborer's services, the
day labor employer shall compensate the day laborer for four
hours of work at the regular rate of pay.
  (12) Unless the day laborer requests otherwise, when a day
laborer has been transported to a work site, the day labor
employer shall provide transportation back to the point of hire
at the end of each work day.
  (13) A day labor employer may not:
  (a) Charge a day laborer for transportation to and from a
worksite or between worksites.
  (b) Directly or indirectly charge a day laborer for cashing a
paycheck.
  (c) Send a day laborer to a workplace where a strike, lockout
or other labor trouble exists.
  (14) A day labor service agency may not restrict the right of a
day laborer to accept permanent employment with a third party
employer to whom the day laborer has been referred for temporary
work or restrict the right of the third party employer to offer
permanent employment to a day laborer. The day labor service
agency may not charge a day laborer a fee or fine for accepting
an offer of permanent employment from a third party employer or
charge a third party employer additional amounts for offering
permanent employment to a day laborer.
  (15) Any agreement between a day laborer and a day labor
employer to waive any rights or responsibilities under this
section is void and unenforceable as violative of public policy.
  (16) When a day labor employer has not complied with any
notification or record keeping provisions required under this
section or rules adopted under this section, there is a
rebuttable presumption that any reasonable factual presentation
by the day laborer is accurate. The presumption may be rebutted
only by clear and convincing evidence.
  (17) A day labor employer may not retaliate against a day
laborer seeking to enforce rights granted under this section.
Protected activities include, but are not limited to:
  (a) Making a complaint to the day laborer's employer;
  (b) Conferring with a state or federal agency, an attorney or a
community organization concerning rights granted a day laborer
under this section;
  (c) Making a complaint to an employer or a coworker or before a
public hearing or the press that rights granted a day laborer
under this section have been violated;
  (d) Causing to be instituted any proceeding under or related to
this section; and
  (e) Testifying or preparing to testify in an investigation or
proceeding under this section.
  (18) The commissioner shall adopt rules necessary to implement
and enforce this section, including rules for hearings and the
assessment of civil penalties for violations of this section.
  (19) The commissioner shall promptly investigate a complaint
concerning an alleged violation of this section or any rule
adopted under this section.
  (20) In addition to any other penalty provided by law, the
commissioner may assess a civil penalty for each violation by:
  (a) A day labor service agency that fails to register in
accordance with subsection (3) of this section. The civil penalty
is $1,000 for the first violation and $5,000 for the second and
any subsequent violation.
  (b) A person that commits a violation of this section, other
than a violation described in paragraph (a) of this subsection,
or any rule adopted under this section. The civil penalty may not
exceed $1,000 for each violation for each day laborer affected.
  (21) The commissioner may deny, suspend or revoke the
registration of a day labor service agency if warranted by public
health and safety concerns or any violation of this section or
any rule adopted under this section.
  (22) The commissioner or any day laborer aggrieved by a
violation of this section or any rule adopted under this section
by a day labor employer may file a civil action in circuit court.
The filing of a complaint with the commissioner under this
section is not a condition precedent to the filing of a civil
action. The civil action must be brought within three years after
the last date of employment with the day labor employer. An
action may be brought by one or more day laborers for and on
behalf of themselves and other day laborers similarly situated.
Any day laborer whose rights have been violated under this
section by a day labor employer is entitled to collect:
  (a) Compensatory damages or an amount of $500 for each
violation of this section or a rule adopted under this section,
whichever is greater;
  (b) In the case of unlawful retaliation, all legal or equitable
relief that may be appropriate; and
  (c) Attorney fees and costs. + }
  SECTION 2.  { + (1) As used in this section, unless the context
clearly requires otherwise:
  (a) 'Benefits' includes, but is not limited to, accrual of
seniority, credit for length of service, holidays, vacations,
sick leaves and other leave, disability and health insurance,
health and welfare and pension benefits.
  (b) 'Casual employment' means work scheduled on an occasional
or intermittent basis, without a regular schedule.
  (c) 'Client' means a person that receives services or functions
from another person.
  (d) 'Client employer' means a client that is an employer or
joint employer.
  (e) 'Client work site' means a place of work owned, operated or
controlled by a client employer.
  (f) 'Contingent job' means a job in which an individual does
not have an explicit or implicit contract for long-term,
full-time employment, including casual employment, contractor
employment, day labor employment, home-based employment, leased

employment, on-call employment, seasonal employment, temporary
agency employment or temporary direct-hire employment.
  (g) 'Contractor employment' means employment in which a worker
is employed by a person that has contracted with a client to
provide services to the client.
  (h) 'Cost of health benefits' means the total cost of health
insurance premiums and out-of-pocket health care expenses.
  (i) 'Day labor employment' means employment in which a worker
is hired for a day or on a day-to-day basis to perform an
unskilled or semiskilled task.
  (j) 'Employer' includes an individual, organization,
partnership, association, trust, estate, joint stock company,
insurance company or corporation, whether domestic or foreign,
receiver or trustee in bankruptcy, the legal representative of a
deceased person or a public body, as defined in ORS 174.109, that
employs one or more individuals during any day or portion of any
day.
  (k) 'Full-time employment' means a job with regularly scheduled
work of more than 32 hours per week or more than 64 hours in a
two-week period.
  (L) 'Home-based employment' means employment in which an
individual produces goods or delivers services in or about a
home, apartment, tenement or room in a residential establishment
for an employer that suffers or permits the production or service
delivery, regardless of the source, whether obtained from an
employer or elsewhere, of the materials used by the individual in
the production.
  (m) 'Joint employer' includes a contractor and a client that
are in a relationship in which the employees of the contractor
perform work that is an integral component of the client's
enterprise and in which one or more of the following exists:
  (A) The contractor's employees are required to follow the
client's instructions concerning the specifics of how and when
the services are to be performed;
  (B) The contractor's employees perform the services on a
regular basis on premises owned or managed by the client; or
  (C) The capital goods used by the contractor's employees in
performing the services in question are provided, or
substantially financed, directly or indirectly by the client.
  (n) 'Leased employment' means employment in which an individual
performs services for a client through a leasing organization
pursuant to an agreement between the client and the leasing
organization.
  (o) 'On-call employment' means employment in which a worker
reports to work only when asked by the worker's employer to do so
and the worker does not have a regular schedule.
  (p) 'Part-time employment' means regularly scheduled work that
is less than the full-time work schedule customary for the
individual's occupation.
  (q) 'Seasonal employment' means employment that regularly
provides no work for at least 90 days during a year.
  (r) 'Temporary agency employment' means work performed by a
person who is hired and remunerated by an agency that provides
the worker to a client, where there is no implicit or explicit
contract for long-term employment.
  (s) 'Temporary direct-hire employment' means work performed by
an individual who is hired and remunerated by the person for whom
the individual provides services, where there is no implicit or
explicit contract for long-term employment or there is an
established employment period of one year or less.
  (2) An employer, including joint employers of employees at a
client work site, may not discriminate in any way in the
compensation paid as between full-time employees and part-time
employees, whether or not the employees are employed in permanent
or contingent jobs, or between employees employed in permanent
jobs and employees employed in contingent jobs. However,
variations in compensation are not prohibited when the variations
are based on differences in job duties.
  (3) For the purpose of determining the compensation paid to
full-time employees that will be used to determine whether the
employer is discriminating against contingent workers or
part-time workers, full-time compensation is deemed to be the
gross hourly wages of similarly situated full-time employees,
plus a 30 percent surcharge. The surcharge is deemed to be paid
to the contingent employee or part-time employee if the surcharge
is included directly in wages or is offered as part of the cost
of health, welfare and retirement benefits.
  (4) Nothing in this section may be construed to diminish or
otherwise affect the requirements, guarantees or protections
under any bargaining agreement, company policy or state or
federal law that provides for greater or additional benefits than
those required under this section. + }
  SECTION 3.  { + Any individual aggrieved by a violation of
section 1 of this 2011 Act may, within three years of the alleged
violation, institute and prosecute in the individual's own name
and on the individual's own behalf, or for the individual and for
others similarly situated, a civil action for injunctive relief
and any damages incurred, including treble damages for any loss
of wages and other benefits. If the aggrieved individual
prevails, the court shall award the individual reasonable
attorney fees and costs. + }
  SECTION 4.  { + (1) As used in this section:
  (a) 'Contingent job' has the meaning given that term in section
1 of this 2011 Act.
  (b) 'Knows' includes the knowledge, arising from familiarity
with the normal facts and circumstances of the business activity
engaged in, that a contract or agreement does not include funds
sufficient to allow the contractor to comply with applicable
laws.
  (c) 'Should know' includes the knowledge of any additional
facts or information that would make a reasonably prudent person
inquire whether a contract or agreement contains sufficient funds
to allow the contractor to comply with applicable laws.
  (2)(a) A person may not enter into a contract or agreement with
a construction, farm labor, janitorial or security guard
contractor for labor or services provided by workers in
contingent jobs if the person knows or should know that the
contract or agreement does not include funds sufficient to allow
the contractor to comply with all applicable local, state and
federal laws, rules or regulations governing the labor or
services to be provided.
  (b) The person shall request any information from the
contractor that is reasonably necessary to determine whether the
contract or agreement between the person and the contractor
includes funds sufficient to allow the contractor to comply with
applicable local, state and federal laws, rules or regulations
governing the labor or services to be provided under the contract
or agreement. A person is presumed to know the information
described in this section, and a failure to request the
information from the contractor is no defense.
  (3) Subsection (2) of this section does not apply to:
  (a) A person that executes a collective bargaining agreement
covering the workers employed under the contract or agreement; or
  (b) A person that enters into a contract or agreement for labor
or services to be performed on the person's home residence if a
family member of the person resides for at least a part of the
year in the residence.
  (4)(a) A worker aggrieved by a violation of subsection (2) of
this section may file a civil action for damages to recover the
greater of the worker's actual damages or $250 per worker per
violation for an initial violation or $1,000 per worker for each
subsequent violation. If the aggrieved worker prevails, the court
shall award the worker reasonable attorney fees and costs. An
action under this section may not be maintained unless the worker
pleads and proves that the worker was damaged as a result of a
violation of an applicable local, state and federal law, rule or
regulation governing the labor or services provided under the
contract or agreement.
  (b) A worker aggrieved by a violation of subsection (2) of this
section may also bring an action for injunctive relief and, upon
prevailing, may recover reasonable attorney fees and costs.
  (c) A person who has violated subsection (2) of this section is
jointly and severally liable with the contractor to any worker of
the contractor who is aggrieved by the contractor's
violation. + }
  SECTION 5. ORS 658.005 is amended to read:
  658.005. As used in ORS 658.005 to 658.245, unless the context
requires otherwise:
  (1) 'Applicant for employment' or 'applicant' means an
individual who is seeking or who has obtained employment through
the services of an employment agency.
  (2) 'Charge for services' means any money or other
consideration paid or promised to be paid by an applicant for
employment  { + or by an employer + } for services rendered by an
employment agency.
  (3) 'Commissioner' means the Commissioner of the Bureau of
Labor and Industries.
  (4)(a) 'Employment agency' or 'agency'   { - means - }
 { + includes + } a business, service, bureau or club operated by
a person, firm, organization, limited liability company or
corporation engaged in procuring for a fee  { - , - }  employment
for others and employees for employers.
  (b) 'Employment agency' or 'agency' does not include:
  (A) A nursing school, business school or career school that
does not charge a fee for placement.
  (B)   { - Any - }   { + A + } business, person, service,
bureau, organization or club that by advertisement or otherwise
offers as its main object or purpose to counsel, teach or prepare
individuals to obtain employment, and which charges for its
services, whether in the form of dues, tuition, membership fees,
registration fees or any other valuable service.
    { - (C) Any business, service, bureau or club operated by a
person engaged in procuring employment for others when the
charges for services are paid, directly or indirectly, by anyone
other than the applicant for employment. - }
    { - (D) - }   { + (C) + } An employment listing service, as
defined in ORS 658.250.
  SECTION 6. ORS 658.075 is amended to read:
  658.075. (1) Each employment agency shall maintain a corporate
surety bond or irrevocable letter of credit issued by an insured
institution as defined in ORS 706.008 of   { - $5,000 - }  { +
$20,000 + }, payable to the people of the State of Oregon,
conditioned that the employment agency will comply with ORS
658.005 to 658.245 and will pay:
  (a) All sums legally owing to any person when the employment
agency or its agents have received such sums;
  (b) All damages occasioned to any person by reason of any
willful misrepresentation, fraud, deceit or other unlawful act or
omission by the employment agency, or its agents or employees
acting within the scope of their employment; and
  (c) All sums legally owing to any employee of the employment
agency.
  (2) For the purposes of this section, each general partner
shall furnish the required bond or letter of credit. When an
employment agency is operated by a limited liability company or
corporation, the bond or letter of credit shall be in the name of
the limited liability company or corporation.
  SECTION 7. ORS 658.172 is amended to read:
  658.172. (1) Any job referrals between an employment agency and
an applicant for whom   { - such - }   { + the + } agency is to
procure employment and from whom a charge for services is to be
exacted or attempted to be collected shall be in writing. The
employment agency shall give the applicant a copy of the job
referral document.
  (2) The job referral document, which shall be assigned the same
number as the receipt of the job order by the agency, shall
include:
  (a) The name, address and telephone number of the employment
agency.
  (b) The date of issuing the job referral document.
  (c) The name of the applicant, the name and address of the
person to whom the applicant is sent for interview and the
address where the applicant is to report for employment.
  (d) The approximate amount of fee to be charged and to be
collected from the applicant, if the applicant accepts
employment, and a statement   { - that - }   { + as to
whether + } the employer is   { - not - } responsible for paying
the fee.
  (e) The kind of work or employment.
  (f) The daily hours of work and the approximate wages or
salary, including any consideration of privilege.
   { +  (g) The projected duration of the job assignment. + }
    { - (g) - }   { + (h) + } If any labor trouble exists at the
place of employment, a statement of that fact.
  (3) The job referral document shall be signed by a
representative of the employment agency, and shall be delivered
to the applicant or sent by United States mail to the applicant.
  (4)   { - No fee or charge shall be required or accepted - }
 { + The employment agency may not require or accept a fee or
charge + } from an applicant for employment when the employment
agency fails to comply with the provisions of subsection (3) of
this section.
   { +  (5) The job referral document shall be written in English
and any other language that is generally used in the locale of
the employment agency. + }
  SECTION 8.  { + (1) An employment agency may not, directly or
indirectly, charge for any special attire, accessories, tools,
safety equipment or other item required by law or custom to
perform the work assignment. For any other attire, accessories,
tools, safety equipment or item the employment agency makes
available for purchase, the employment agency may not charge the
applicant more than the actual cost or reasonable market value,
whichever is less, for the item.
  (2) An employment agency may not:
  (a) Charge an applicant for transportation to and from the work
site or between work sites; or
  (b) Directly or indirectly charge an applicant for cashing a
paycheck.
  (3) An employment agency may not restrict the right of an
applicant to accept permanent employment with a third party
employer to whom the applicant has been referred for temporary
work or restrict the right of a third party employer to offer
permanent employment to the applicant. The employment agency may
not charge an applicant a fee or fine for accepting an offer of
permanent employment from a third party employer or charge a
third party employer additional amounts for offering permanent
employment to an applicant, except as otherwise provided in ORS
658.005 to 658.245.
  (4) If an employment agency pays wages to an applicant, the
agency shall, at the time wages are paid, provide the applicant a
written statement itemizing the applicant's total wages, the
basis of the calculation of the wages and the amount and purpose
of each deduction made from the wages. + }

  SECTION 9.  { + Any applicant aggrieved by a violation of ORS
658.005 to 658.245, or any rule adopted under ORS 658.005 to
658.245, by an employment agency may file a civil action in
circuit court. The filing of a complaint with the Commissioner of
the Bureau of Labor and Industries is not a condition precedent
to the filing of a civil action. The civil action must be brought
within three years after the date of the final referral of an
applicant who is a party to the action by the employment agency.
An action may be brought by one or more applicants for and on
behalf of themselves and other applicants similarly situated. Any
applicant whose rights under ORS 658.005 to 658.245 have been
violated is entitled to collect:
  (1) Compensatory damages or an amount of $500 for each
violation, whichever is greater;
  (2) In the case of unlawful retaliation, all legal or equitable
relief as may be appropriate; and
  (3) Attorney fees and costs. + }
  SECTION 10.  { + Any agreement between an applicant and an
employment agency to waive rights and responsibilities under ORS
658.005 to 658.245 or any rule adopted under ORS 658.005 to
658.245 is void and unenforceable as violative of public
policy. + }
  SECTION 11.  { + When an employment agency has not complied
with a notification or record keeping provision required under
ORS 658.005 to 658.245 or any rule adopted under ORS 658.005 to
658.245, there is a rebuttable presumption that any reasonable
factual presentation by the applicant is accurate. The
presumption may be rebutted only by clear and convincing
evidence. + }
  SECTION 12.  { + An employment agency may not retaliate against
an applicant seeking to enforce the applicant's rights under ORS
658.005 to 658.245 or any rule adopted under ORS 658.005 to
658.245. Protected activities include, but are not limited to:
  (1) Making a complaint to the employment agency;
  (2) Conferring with a state or federal agency, an attorney or a
community organization concerning rights granted an applicant
under ORS 658.005 to 658.245;
  (3) Making a public complaint to a coworker, or before a public
hearing or the press, that rights granted under ORS 658.005 to
658.245 or any rule adopted under ORS 658.005 to 658.245 have
been violated;
  (4) Causing to be instituted any proceeding under or related to
ORS 658.005 to 658.245; and
  (5) Testifying or preparing to testify in an investigation or
proceeding under ORS 658.005 to 658.245. + }
  SECTION 13.  { + Sections 8 to 12 of this 2011 Act are added to
and made a part of ORS 658.005 to 658.245. + }
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