justicedao/ipfs_state_laws huggingface dataset:
839-025-0210 Adjustment of Fees Paid by Public Agency (1) Within 30 days of the final progress payment to the contractor by the public agency after completion of the contract, the public agency must determine the final contract price. The public agency must consider all change orders or other adjustments to the contract price in making the determination. (2) The public agency must calculate the fee in accordance with OAR 839-025-0200(2) and must credit the amount paid pursuant to 839-025-0200(3). The difference, if any, must be determined as follows: (a) In the case of a reduction of more than $100 in the amount of the fee, the public agency may submit a request to the bureau for a refund of the difference and the bureau will pay a refund to the public agency; (b) In the case of an increase of more than $100 in the amount of the fee, the public agency must pay the difference to the bureau. (3) Requests for refunds and additional payments must be submitted with sufficient documentation to show how the amount to be refunded or to be paid was calculated. All such requests or payments must be made to the Prevailing Wage Rate Unit within 30 days after the date the final progress payment was made to the contractor by the public agency after completion of the contract. (4) In order to assist public agencies in the proper calculation of the fee, the bureau has prepared a form for this purpose. The form, WH-40, is available, on request, from the Prevailing Wage Rate Unit. [ED. NOTE: Forms referenced are available from the agency.] Statutory/Other Authority: ORS 279 & 651 Statutes/Other Implemented: ORS 279.348 - 279.380 History: 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 18-2009(Temp), f. 8-3-09, cert. ef. 8-5-09 thru 1-31-10 BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08 Renumbered from 839-016-0210, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05 BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02 BL 3-1996, f. & cert. ef. 1-26-96
839-025-0220 Fees for Contract Without Specific Award Amounts (1) When a project is a public work subject to ORS 279C.800 to 279C.870, but the contract is awarded without stating any specific amount, the contract price for purposes of calculating the fee shall be based on the amount the public agency anticipates to be the guaranteed maximum amount of the project. (2) When the contract is completed, adjustments in the fees shall be calculated and paid or a refund may be requested as provided in OAR 839-025-0210. (3) When the public agency has not determined the guaranteed maximum amount, the agency shall make a good faith estimate of the contract price. The fee shall be calculated on this estimated amount. Statutory/Other Authority: ORS 279 & 651 Statutes/Other Implemented: ORS 279.348 - 279.380 History: BLI 42-2007, 12-28-07, cert. ef. 1-1-08 BLI 29-2005, f. 12-29-05, cert. ef. 1-1-06 Renumbered from 839-016-0220, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05 BL 3-1996, f. & cert. ef. 1-26-96
839-025-0300 Actions that Circumvent Payment of Prevailing Wages Prohibited No person shall take any action which circumvents the payment of the prevailing wage rate to workers on public works projects. Statutory/Other Authority: ORS 279 & 651 Statutes/Other Implemented: ORS 279.348 - 279.380 History: Renumbered from 839-016-0300, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05 BL 3-1996, f. & cert. ef. 1-26-96
839-025-0320 Payment of Prevailing Wage by Persons Other than Contractors or Subcontractors Prohibited (1) Except as provided herein, no person, other than the contractor or subcontractor, shall pay or contribute any portion of the prevailing rate of wage specified in the contract to workers employed on the public works contract. (2) A contractor or subcontractor violates ORS 279C.840(6)(a) and section (1) of this rule if another contractor, subcontractor, public agency, surety, or person pays the prevailing rate of wage or contributes any portion of the prevailing rate of wage that the contractor or subcontractor owes or pays to its workers for labor performed on a public works project. (3) Section (1) of this rule does not apply to payments to workers who are enrolled in government-subsidized training or retraining programs. (4) For purposes of this rule, a person pays or contributes to the payment of the prevailing rate of wage when a contractor or subcontractor receives monies pursuant to a program, plan or other agreement that includes a provision that members of a labor organization contribute part of their wages to the labor organization for the purpose of paying contractors or subcontractors the difference in the wage rate negotiated under the collective bargaining agreement and the wage rate used by the contractor or subcontractor in obtaining a contract. However, a person does not pay or contribute to the payment of the prevailing rate of wage when the contractor or subcontractor receives monies pursuant to such program, plan or agreement if the collectively bargained wage rate exceeded the prevailing rate of wage in effect at the time the contractor or subcontractor made a bid on a contract. Statutory/Other Authority: ORS 279C.808 & ORS 651.060(4) Statutes/Other Implemented: ORS 279C.840(6)(a) & OL Ch. 334 (2017) History: BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018 BLI 2-2016, f. & cert. ef. 3-31-16 Renumbered from 839-016-0320, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05 BL 3-1996, f. & cert. ef. 1-26-96
839-025-0330 Wage Averaging Prohibited (1) No contractor or subcontractor shall reduce a worker's regular rate of pay for work on projects not subject to the Prevailing Wage Rate Law (ORS 279C.800 to 279C.870) when the reduction in pay has the effect of the worker not receiving the prevailing rate of wage for work performed on the public works project. (2) As used in this rule, "regular rate" has the same meaning as that defined in OAR 839-020-0030(2)(b). (3) When making a determination of whether a contractor or subcontractor has reduced a worker's regular rate in violation of section (1) of this rule, the bureau shall consider: (a) The timing of the wage rate reduction; (b) Whether the wage rate reduction was made pursuant to an established plan; (c) Whether the wage rate reduction is applied equally to all workers in similar job classifications; (d) Whether the wage rate reductions are applied to workers employed on public works projects but not to workers employed only on projects not subject to the Prevailing Wage Rate Law (ORS 279C.800 to 279C.870); (e) Other considerations as the facts and circumstances of a particular matter may reveal. Statutory/Other Authority: ORS 279 & 651 Statutes/Other Implemented: ORS 279.348 - 279.380 History: Renumbered from 839-016-0330, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05 BL 3-1996, f. & cert. ef. 1-26-96
839-025-0340 Circumventions of the Prevailing Wage Rate Law (1) A public agency circumvents the payment of the prevailing rate of wage when it knowingly or intentionally: (a) Fails or refuses to include a provision stating the existing prevailing rate of wage in the contract specifications in violation of ORS 279C.830; (b) Fails or refuses to include a provision in the contract that workers on the contract shall be paid no less than the specified minimum hourly rate of wage in violation of ORS 279C.830; (c) Divides a project for the purpose of avoiding compliance with ORS 279C.800 to 279C.870 in violation of ORS 279C.827. (d) Awards a contract to a contractor whose name appears on the list of ineligibles maintained pursuant to ORS 279C.860. (2) The "specified minimum hourly rate of wage" as used in section (1)(b) of this rule means the applicable prevailing rate of wage. (3) A contractor circumvents the payment of the prevailing rate of wage when it knowingly or intentionally awards a contract to a contractor whose name appears on the list of ineligibles maintained pursuant to ORS 279C.860. Statutory/Other Authority: ORS 279 & 651 Statutes/Other Implemented: ORS 279.348 - 279.380 History: BLI 9-2011, f. 10-27-11, cert. ef. 11-1-11 BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08 BLI 20-2007(Temp), f. 7-30-07, cert. ef. 8-1-07 thru 1-27-08 Renumbered from 839-016-0340, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05 BL 3-1996, f. & cert. ef. 1-26-96
839-025-0500 Definitions Related to Civil Penalties for Violations of Prevailing Wage Rates on Public Works Matters As used in OAR 839-025-0500 to 839-025-0540, a person acts knowingly when the person has actual knowledge of a thing to be done or omitted or should have known the 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 that would place the person on reasonably diligent inquiry. A person acts knowingly if the person has the means to be informed but elects not to do so. For purposes of the rule, the contractor, subcontractor and public agency are presumed to know the circumstances of the public works project. Statutory/Other Authority: ORS 279C.808 & ORS 651.060 Statutes/Other Implemented: ORS 279C.800-279C.870 History: BLI 20-2024, amend filed 10/18/2024, effective 10/21/2024 BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08 Renumbered from 839-016-0500, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05 BL 3-1996, f. & cert. ef. 1-26-96
839-025-0510 Violations Separate and Distinct Each violation is separate and distinct. In the case of continuing violations, each day's continuance is a separate and distinct violation. Statutory/Other Authority: ORS 279 & 651 Statutes/Other Implemented: ORS 279.348 - 279.380 History: Renumbered from 839-016-0510, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05 BL 3-1996, f. & cert. ef. 1-26-96
839-025-0520 Criteria to Determine Civil Penalty (1) The commissioner shall consider the following mitigating and aggravating circumstances when determining the amount of any civil penalty to be assessed against a contractor, subcontractor or public agency and shall cite those the commissioner finds to be applicable: (a) The actions of the contractor, subcontractor or public agency in responding to previous violations of statutes and rules; (b) Prior violations, if any, of statutes and rules; (c) The opportunity and degree of difficulty to comply; (d) The magnitude and seriousness of the violation; (e) Whether the contractor, subcontractor or public agency knew or should have known of the violation. (2) It shall be the responsibility of the contractor, subcontractor or public agency to provide the commissioner with evidence of any mitigating circumstances set out in section (1) of this rule. (3) In arriving at the actual amount of the civil penalty, the commissioner shall consider the amount of the underpayment of wages, if any, in violation of any statute or rule. (4) Notwithstanding any other section of this rule, the commissioner shall consider all mitigating circumstances presented by the contractor, subcontractor or public agency for the purpose of reducing the amount of the civil penalty to be assessed. Statutory/Other Authority: ORS 279 & 651 Statutes/Other Implemented: ORS 279.348 - 279.380 History: BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08 Renumbered from 839-016-0520, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05 BL 3-1996, f. & cert. ef. 1-26-96
839-025-0540 Schedule of Civil Penalties (1) The civil penalty for any one violation may not exceed $5,000. The actual amount of the civil penalty will depend on all the facts and on any mitigating and aggravating circumstances. (2) For purposes of this rule, "repeated violations" means violations of a provision of law or rule which has been violated on more than one project within two years of the date of the most recent violation. (3) Notwithstanding any other section of this rule, when the commissioner determines to assess a civil penalty for a violation of ORS 279C.840 regarding the payment of the prevailing rate of wage, the minimum civil penalty will be calculated as follows: (a) An equal amount of the unpaid wages or $1,000, whichever is less, for the first violation; (b) Two times the amount of the unpaid wages or $3,000, whichever is less, for the first repeated violation; (c) Three times the amount of the unpaid wages or $5,000, whichever is less, for second and subsequent repeated violations. (4) Notwithstanding any other section of this rule, when the commissioner determines to assess a civil penalty for a violation of ORS 279C.825, or OAR 839-025-0200, or 839-025-0220 regarding fees to be paid by a public agency, the minimum civil penalty to be assessed will be calculated as follows: (a) An equal amount of the unpaid fee or $1,000, whichever is greater, for the first violation; (b) Two times the amount of the unpaid fee or $3,000, whichever is greater, for the second violation; (c) Three times the amount of the unpaid fee or $5,000, whichever is greater, for the third and subsequent violations. (5) Notwithstanding any other section of this rule, when the commissioner determines that a public agency willfully engaged in a violation of the least cost policy set forth in ORS 279C.305, the commissioner may assess a civil penalty of not more than $20,000. (6) The civil penalty for all other violations will be set in accordance with the determinations and considerations referred to in OAR 839-025-0520. (7) The civil penalties set out in this rule are in addition to any other penalty assessed or imposed by law or rule. Statutory/Other Authority: ORS 279C.808 & ORS 651.060(4) Statutes/Other Implemented: ORS 279C.305, .825, .840 & OL Ch. 715 (2017) History: BLI 4-2018, amend filed 02/22/2018, effective 02/22/2018 BLI 42-2007, f. 12-28-07, cert. ef. 1-1-08 Renumbered from 839-016-0540, BLI 7-2005, f. 2-25-05, cert. ef. 3-1-05 BLI 5-2002, f. 2-14-02, cert. ef. 2-15-02 BL 3-1996, f. & cert. ef. 1-26-96
839-026-0020 Good Faith Estimate of Work Schedule (1) For new employees, the employer shall provide the employee, at the time of hire, with a written good faith estimate of the employee's work schedule. The good faith estimate, which must be provided in the language the employer typically uses to communicate with the employee, shall include the median number of hours as defined in section (3) of this rule the employee can expect to work in an average one-month period, an explanation of any voluntary standby list maintained by the employer pursuant to ORS 653.432, and a statement indicating whether an employee who is not on the voluntary standby list may expect to work on-call shifts and an objective standard for those periods of time in which the employer will expect the employee to be available to work on an on-call basis. (2) A good faith estimate is a reasonable prediction which may be based on forecasts, prior hours worked by an employee or a similarly-situated employee, or other information. In the case of seasonal or episodic work, a good faith estimate may be based on an employee’s work schedule during a previous year. (3) The median number of hours is the middle number in an odd-numbered sequence or the average of the two middle numbers in an even-numbered sequence (e.g., 4 is the median of 1, 3, 4, 10, 20; 6 is the median of 1, 3, 4, 8, 9, 10). The median number of hours must be a single number, not a range of numbers. (4) An objective standard is a standard based on factors or criteria that can be measured or demonstrated, such as a reasonable expectation that the volume of work will increase during a particular period of time based on previous experience. Statutory/Other Authority: ORS 651.060(4) Statutes/Other Implemented: ORS 653.412 - 653.485 History: BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018
839-026-0040 Right to Rest between Work Shifts (1) Unless the employee requests or consents to work such hours, an employer may not schedule or require an employee to work: (a) Less than ten hours after the end of the previous calendar day's work shift or on-call shift; or (b) Less than ten hours following the end of a work shift or on-call shift that spanned two calendar days. (2) An employee may request or consent to work shifts separated by less than 10 hours on a situational or on-going basis and may revoke such consent at any time during employment, provided that the employee follows the employer’s usual and customary procedures for making work schedule changes. (3) When an employee works during a rest period established by ORS 653.442(1), the employer shall pay the compensation required by ORS 653.442(2) regardless of whether the employee requested or consented to work shifts separated by less than ten hours. The compensation must be paid to the employee no later than the regular payday for the pay period during which the work was performed. (4) When an employee works during a rest period established by ORS 653.442(1) but is engaged in “roadside assistance” as defined in ORS 653.442(3), the employer is not required to compensate an employee as described in ORS 653.442(2) for any time the employee spent performing roadside assistance services. (5) The requirements of ORS 653.442 and this rule do not apply to “split shifts” that take place entirely within one calendar day. For example, if an employee works in the morning, takes an extended break during mid-day, and works again in the evening of the same day, the 10-hour right to rest between shifts does not apply. Statutory/Other Authority: ORS 651.060(4) Statutes/Other Implemented: ORS 653.412 - 653.485 History: BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018
839-026-0050 Record Retention Requirements (1) An employer is required to retain records that document the employer’s compliance with ORS 653.412 to 653.485 and these rules for a period of not less than three years. Records may be printed or stored electronically. (2) Records to be retained by the employer include, but are not limited to: (a) The written work schedules provided by the employer to employees as required by ORS 653.436(1) and the written work schedules posted as required by ORS 653.436(2); (b) An employee’s written request to change the employee’s work schedule after the employer has provided the employee with a written work schedule as required by ORS 653.436; (c) A copy of the good faith estimate of the employee’s work schedule provided to a new employee as required by ORS 653.428; (d) If, pursuant to ORS 653.432, the employer maintains a voluntary standby list, the employer’s notification to the employee about the list and the employee’s request or agreement to be included on the list; (e) If, pursuant to ORS 653.460(2), an employer provides a poster giving notice of the rights described in ORS 653.412 to 653.485 to an employee on an individual basis, a copy of the communication or materials provided to the employee to satisfy the notice requirement or other documentation verifying receipt of the poster by the employee; and, (f) Documents demonstrating that the employer had just cause to subtract hours from an employee’s work schedule for disciplinary reasons as required by ORS 653.455(3)(e). For purposes of this subsection, “just cause” means conduct that is of such a serious nature or extent that reducing the employee’s work hours may be considered an appropriate step to correct the behavior. (3) All records required to be preserved and maintained by these rules shall be made available to the Commissioner or a duly authorized representative of the Commissioner upon request. Statutory/Other Authority: ORS 651.060(4) Statutes/Other Implemented: ORS 653.412 - 653.485 History: BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018
839-026-0060 Employees Covered by Collective Bargaining Agreements or Other Contracts Providing Remedy Equal to or Better than Remedy in ORS 653.442 or 653.455 An employer is not required to pay an employee the compensation described in ORS 653.442 or 653.455 when the employee is covered by a collective bargaining agreement or other collectively-bargained contract that is in force at the employee’s work site and that provides the employee a remedy equal to or better than the remedy provided by ORS 653.442 or 653.455. Statutory/Other Authority: ORS 651.060(4) Statutes/Other Implemented: ORS 653.412 - 653.485 History: BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018
839-026-0065 Unlawful Employment Practices (1) It is an unlawful employment practice for an employer to interfere with, restrain, deny, or attempt to deny the exercise of any right protected under ORS 653.412 to 653.485. (2) It is an unlawful employment practice for an employer to retaliate or in any way discriminate against an individual with respect to hire or tenure or any other term or condition of employment because the individual: (a) Has inquired about the provisions of ORS 653.412 to 653.485; (b) Has not requested or agreed to be added to the voluntary standby list, has requested to be removed from the standby list, or has declined an employer’s request that the employee work additional hours as a result of the employee being on the standby list; (c) Has declined any work shifts not included in the employee’s written work schedule; (d) Has requested not to be scheduled for work shifts during certain times or at certain locations; or (e) Has declined to work with less than 10 hours between shifts. Statutory/Other Authority: ORS 651.060(4) Statutes/Other Implemented: ORS 653.412 - 653.485 History: BLI 15-2018, adopt filed 06/08/2018, effective 07/01/2018
839-026-0120 Civil Penalties (1) The commissioner may assess a civil penalty for any of the following violations of ORS 653.412 to 653.485 and these rules: (a) Failure to provide an employee with a work schedule in writing or to post a written work schedule in a conspicuous and accessible location at least seven (7) calendar days before the first day of the work schedule (beginning on July 1, 2020, at least 14 calendar days before the first day of the work schedule); (b) Failure to compensate an employee for an employer-requested change to the employee’s written work schedule without advance notice; (c) Scheduling or requiring an employee to work a shift not included in the employee’s written work schedule; (d) Scheduling or requiring an employee to work during a rest period established by ORS 653.442 without the employee’s consent; (e) Failure to compensate an employee for working during a rest period established by ORS 653.442; (f) Denying or attempting to deny the exercise of any right protected under ORS 653.412 to 653.485 or retaliating against any individual because the individual has inquired about the provisions of ORS 653.412 to 653.485; (g) Failure to retain records that document the employer’s compliance with ORS 653.412 to 653.485; (h) Failure to display in the workplace a poster giving notice of the rights described in ORS 653.412 to 653.485; and, (i) Using the voluntary standby list for purposes other than to address unanticipated customer needs or unexpected employee absences. (2) As provided in ORS 653.432(7), the commissioner may assess a civil penalty against an employer who has coerced an employee into requesting or agreeing to be added to the voluntary standby list. For the purpose of this rule, an employer will be considered to have coerced an employee into requesting or agreeing to be added to the voluntary standby list under the following circumstances: (a) The employer requires an employee to request or agree to be added to the voluntary standby list; (b) The employer requires an employee to request or agree to be added to the voluntary standby list as a condition of employment; or (c) The employer requests or requires any person, including another employee, to require an employee to request or agree to be added to the voluntary standby list. Statutory/Other Authority: ORS 651.060(4) Statutes/Other Implemented: ORS 653.412 - 653.485 History: BLI 16-2018, adopt filed 06/08/2018, effective 01/01/2019