839-025-0010 Payroll and Certified Statement Requirements (1) As used in this rule: (a) “Public improvement project subject to enhanced reporting” means a public improvement contract with a contract price exceeding $3 million, that is entered into by a qualifying agency. (b) “Public improvement contract” has the meaning given that phrase in ORS 279A.010. (c) “Qualifying agency” has the meaning given that phrase in ORS 279C.533. (d) “Subcontractor” means a subcontractor required to report payroll certified statements under the provisions of ORS 279C.800 to 279C.870 or ORS 279C.533. (2)(a) Except as provided in subsection (b) of this section, the form required by ORS 279C.845 is the Payroll and Certified Statement form, WH-38. The WH-38 form must be submitted in accordance with ORS 279C.845 and include the information required by ORS 279C.845. (b) For public improvement projects subject to enhanced reporting, the form required by ORS 279C.533 and 279C.845 is the Enhanced Payroll and Certified Statement form, Enhanced WH-38. The Enhanced WH-38 form must be submitted in accordance with ORS 279C.845 and include the information required by ORS 279C.533 and 279C.845. (3)(a) The contractor or subcontractor must submit the weekly payroll to the public agency or qualifying agency on the WH-38 or Enhanced WH-38 form, or a similar form provided the form contains all the elements of the WH-38 or Enhanced WH-38 form. When submitting the weekly payroll to the public agency or qualifying agency on a form other than WH-38 or Enhanced WH-38 form, the contractor or subcontractor must include the certification statement contained on the WH-38 or Enhanced WH-38 form on the payroll forms submitted. (b) Not later than 30 days after making a final payment to a contractor on a public improvement project requiring enhanced reporting, a qualifying agency must make the required report to the Bureau of Labor and Industries in a format and via an electronic method specific by the Bureau in writing. (4) If the contractor on a public works project or a public improvement project subject to enhanced reporting fails to timely submit its payroll and certified statement forms to the public agency in accordance with ORS 279C.845, the public agency or qualifying agency must retain 25 percent of any amount earned by the contractor until the contractor has submitted the required payroll and certified statements to the public agency. (a) The amount to be retained shall be calculated at 25 percent of the unpaid amount earned by the contractor at the time each payroll and certified statement are due. For example, if the contractor fails to submit its payroll and certified statement by the fifth of the month and the contractor earned $100,000 in the period since its last payroll and certified statement were submitted to the public agency, the public agency must retain 25 percent of $100,000 ($25,000), until such time as the required payroll and certified statement are submitted. (b) When calculating the amount to be retained, amounts previously retained shall not be included as amounts earned by the contractor. (c) Once the required payroll and certified statement have been submitted to the public agency, the public agency must pay the amount retained to the contractor within 14 days. (5) If a first-tier subcontractor on a public works project or a public improvement project subject to enhanced reporting fails to timely submit a payroll and certified statement form to the public agency in accordance with ORS 279C.845, the contractor must retain 25 percent of any amount earned by the first-tier subcontractor until the first-tier subcontractor has submitted the required payroll and certified statements to the public agency. (a) The amount to be retained shall be calculated at 25 percent of the unpaid amount earned by the first-tier subcontractor at the time each payroll and certified statement are due. For example, if the first-tier subcontractor fails to submit the payroll and certified statement by the fifth of the month and the first-tier subcontractor earned $100,000 in the period since the last payroll and certified statement were submitted to the public agency, the contractor must retain 25 percent of $100,000 ($25,000), until such time as the required payroll and certified statement are submitted. (b) When calculating the amount to be retained, amounts previously retained shall not be included as amounts earned by the first-tier subcontractor. (c) The contractor must verify that the first-tier subcontractor has filed the required payroll and certified statement(s) with the public agency before the contractor may pay the first-tier subcontractor any amount retained under this section. (d) Once the first-tier subcontractor has filed the required payroll and certified statement with the public agency, the contractor must pay the amount retained to the first-tier subcontractor within 14 days. (6) Notwithstanding ORS 279C.555 or 279C.570, amounts retained pursuant to the provisions of this rule shall be in addition to any other amounts retained. (7)(a) If a project is a public works of the type described in ORS 279C.800(6)(a)(B) and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public agency or agencies providing funds for the project. (b) When more than one public agency provides funds for a project, the public agencies may designate one agency to receive the contractor's and any subcontractors' payrolls. (8)(a) If a project is a public works of the type described in ORS 279C.800(6)(a)(C) and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public agency or agencies that will occupy or use the completed project. (b) When more than one public agency will occupy or use the completed project, the public agencies may designate one agency to receive the contractor's and any subcontractors' payrolls. (9) If a project is a public works of the type described in ORS 279C.800(6)(a)(D) and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public agency that owns the land, premise(s), structure(s) or building(s) on which the solar radiation device(s) will be constructed or installed. (10) If a project is a public works of the type described in ORS 279C.800(6)(a)(E) and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public university listed in ORS 352.002 that owns the real property. (11) If a project is a public works of the type described in ORS 279C.800(6)(a)(F) and no public agency awards a contract to a contractor for the project, the contractors and any subcontractors employing workers upon the public works project shall submit weekly payrolls as required by ORS 279C.845 and this rule to the public agency or agencies providing funds for the project or to the public agency that owns the real property on which the demolition or removal of hazardous waste takes place. [ED. NOTE: Forms and Publications referenced are available from the Bureau of Labor and Industries.] Statutory/Other Authority: ORS 651.060 & ORS 279C.808 Statutes/Other Implemented: ORS 279C.800 - 279C.870 History: BLI 5-2024, amend filed 01/04/2024, effective 01/04/2024 BLI 2-2024, amend filed 01/04/2024, effective 01/04/2024 BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018 BLI 9-2013, f. 12-18-13, cert. ef. 1-1-14 BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11 BLI 28-2009, f. 12-1-09, cert. ef. 1-1-10 BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08 BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06 BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05, Renumbered from 839-016-0010 BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02 BL 3-1996, f. & cert. ef. -1-26-96 BL 13-1992, f. & cert. ef. 12-14-92 BL 4-1984, f. & cert. ef. 3-13-84 BL 14-1982, f. 10-19-82, cert. ef. 10-20-82