justicedao/ipfs_state_laws huggingface dataset:
839-007-0033 Sick Time on Public Works Projects In addition to OAR 839-007-0000 through OAR 839-007-0120, the following applies to employees performing work on public works projects subject to ORS 279C.800-ORS 279C.870: (1) An employer may not reduce an employee’s benefits, including but not limited to health care benefits and/or fringe benefits as defined in OAR 839-025-004(9), because the employee uses accrued sick time to which the employee is entitled pursuant to ORS 653.601 to 653.661 and these rules. (2) “Regular rate of pay” means the prevailing wage rate as defined in ORS 279C.800(4) that an employee earns for the workweek in which the employee uses paid sick time and which is no less than the applicable prevailing wage rate on a public works project. An employer must apply a consistent methodology when calculating the regular rates of pay to similarly situated employees. An employee’s regular rate of pay shall be determined as follows: (a) For employees paid on the basis of a single hourly rate, the regular rate of pay means the same hourly rate the employee would have earned for the period of time in which sick time is used. (b) Where a worker performs work in one or more classifications which provide for one or more hourly rates of pay, the regular rate of pay means the wages the employee would have been paid for the period of time in which sick time is used. Statutory/Other Authority: ORS 653.601-653.661 & ORS 651 Statutes/Other Implemented: ORS 653.601-653.661 & ORS 651 History: BLI 4-2023, adopt filed 06/14/2023, effective 07/01/2023
839-007-0035 Sick Time for Shifts of Indeterminate Length or On-Call Shifts (1) If an employee uses sick time for a shift of indeterminate length (for example, a shift that is defined by business needs rather than a specified number of hours), the employer may determine the amount of sick time used by the employee based on the number of hours worked by a replacement employee in the same shift or a similarly situated employee who works the same shift or who has worked a similar shift in the past. (2) On-call employees are entitled to use sick time for hours they have been scheduled to work. Being “scheduled to work” does not include shifts for which an employee has been asked to be available or on-call, unless the employee is working while on-call as defined in OAR 839-020-0041(3). If, by agreement with the employer, an on-call employee is to be paid for a scheduled shift regardless of whether the employee actually works the shift, the employer must provide sick time. Statutory/Other Authority: OL Ch. 537 & 2015 Statutes/Other Implemented: OL Ch. 537 & 2015 History: BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16
839-007-0040 Employee Notice Policy and Procedures (1) An employer may require an employee to comply with the employer’s usual and customary written notice and procedure requirements for foreseeable absences for requesting time off if those requirements do not interfere with the ability of the employee to use sick time. Such requirements may include notice by a reasonable time and by reasonable means including but not limited to calling a designated telephone number, applying a uniform call-in procedure or by using another means of communication accessible to the employee. (2) If the reason for sick time is a foreseeable absence, such as a pre-scheduled medical appointment, the employer may require employees to provide advance notice of their intention to use sick time, not to exceed 10 calendar days prior to the date the sick time is to begin or as soon as practicable, but in no case may an employee be required to provide such notice more than 10 calendar days prior to the date sick time is to begin. (3) When an employee uses sick time for a foreseeable absence, the employee shall make a reasonable effort to schedule the sick time in a manner that does not unduly disrupt the operations of the employer. For example, the employee should make a reasonable attempt not to schedule medical appointments during peak business hours, when work is time-sensitive or when mandatory meetings are scheduled. (4) The employee shall inform the employer of any change in the expected duration of the sick time as soon as is practicable. (5) If the reason for sick time is unforeseeable, such as an emergency, accident, or sudden illness, the employee shall provide notice before the start of the employee’s shift or, when circumstances prevent the employee from providing notice before the start of the employee’s shift, as soon as is practicable. In all cases, whether and when an employee can practicably provide notice depends upon the individual facts and circumstances of the situation. (6) An employer may discipline an employee for violating workplace policies and procedures if the employee fails to provide notice as required by these rules or if the employee fails to make a reasonable effort to schedule leave in a manner that does not unduly disrupt the operations of the employer as provided in section (3) of this rule. The employer may not discipline the employee for use of sick time. Statutory/Other Authority: OL Ch. 537 & 2015 Statutes/Other Implemented: OL Ch. 537 & 2015 History: BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16
839-007-0050 Required Employer Notices (1) Employers are required to provide to each employee: (a) Written notification at least quarterly of the amount of accrued and unused sick time available for use by the employee. Inclusion of this information on the statement required under ORS 652.610 meets the requirements of this subsection. If an employee has not worked during the previous quarter, the employer is not required to provide a quarterly notice. (b) Written notice of the requirements of ORS 653.601 to 653.661 and these rules. (2) Employers may use notices provided by the Bureau of Labor and Industries to comply with the requirements of section (1) or may create their own written notice, as long as the notice includes all of the substantive information provided in the bureau’s notice. (3) The notices provided in this rule must be in the language the employer typically uses to communicate with the employee. (4) Employers shall provide the written notice required in subsection (1)(b) no later than the end of the employer’s first pay period after the effective date of ORS 653.601 to 653.661 or, for employees hired after the effective date, the end of the first pay period for those employees. (5) An employer may comply with the requirement to provide the written notice required in subsection (1)(b) by: (a) Distributing the written notice to each employee personally, by regular mail or email, or by including it with a paycheck; (b) Incorporating the written notice into a handbook or manual made available to employees, whether in a print or electronic format; or (c) Posting the written notice in a conspicuous and accessible location in each workplace of the employer. Statutory/Other Authority: ORS 653.601-653-661 & ORS 651 Statutes/Other Implemented: ORS 653.601-653-661 & OL Ch. 520 History: BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018 BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16
839-007-0055 Substantial Equivalency An employer’s own sick leave, paid vacation, paid personal time off, or other paid time off policy is substantially equivalent to sick time required under ORS 653.601 to 653.661 when such a policy provides for at least the same number of sick time hours an employee would earn under ORS 653.606 and complies with all other minimum requirements as listed in ORS 653.601 to 653.661. These requirements include but are not limited to provisions related to when employees can use sick time; the rate of accrual; the regular rate of pay; qualifying absences; conditions of notice and documentation; and employment protections. Statutory/Other Authority: ORS 653.601-653.661 & ORS 651 Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017) History: BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018 BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16
839-007-0065 Unlawful Employment Practice (1) It is an unlawful employment practice for an employer or any other person to deny, interfere with, restrain or fail to pay for sick time to which an employee is entitled. (2) It is an unlawful employment practice for an employer or any other person to retaliate or in any way discriminate against an employee because the employee has: (a) Inquired about the provisions of ORS 653.601 to 653.661; (b) Submitted a request for sick time; (c) Taken sick time; (d) Participated in any manner in an investigation, proceeding or hearing related to ORS 653.601 to 653.661; or (e) Invoked any provision of ORS 653.601 to 653.661. (3) It is an unlawful employment practice for an employer or any other person to apply an absence control policy that includes sick time absences covered under ORS 653.601 to 653.661 as an absence that may lead to or result in an adverse employment action against the employee. Statutory/Other Authority: ORS 653.601-653.661 & ORS 651 Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017) History: BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018 BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16
839-007-0100 Civil Penalties (1) The Commissioner of the Bureau of Labor and Industries may assess a civil penalty for any of the following willful violations of ORS 653.601 to 653.661 and these rules: (a) Failure to permit any employee to make use of accrued sick time; (b) Failure to pay any employee the full amount of paid sick time when the employee uses accrued sick time; (c) Failure to provide written notice of the sick time requirements to any employee; (d) Failure to provide written notification at least quarterly to each employee of the amount of accrued and unused sick time available for use by the employee; or, (e) Reducing benefits for which an employee is eligible because the employee has used accrued sick time. (2) The civil penalty for any one violation may not exceed $1000. The actual amount of the civil penalty will depend on all the facts and circumstances referred to in OAR 839-007-0120. (3) The civil penalties set out in this rule will be in addition to any other penalty assessed or imposed by law or rule. Statutory/Other Authority: ORS 653.601-653.661 & ORS 651 Statutes/Other Implemented: ORS 653.601-653.661 & OL Ch. 520 (2017) History: BLI 1-2018, amend filed 01/03/2018, effective 01/03/2018 BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16
839-007-0120 Criteria for Determining a Civil Penalty (1) The Commissioner of the Bureau of Labor and Industries may consider the following mitigating and aggravating circumstances when determining the amount of any civil penalty to be assessed and cite those the commissioner finds to be appropriate: (a) The history of the employer in taking all necessary measures to prevent or correct violations of statutes or rules; (b) Prior violations, if any, of statutes or rules; (c) The magnitude and seriousness of the violation; (d) Whether the employer knew or should have known of the violation; (e) The opportunity and degree of difficulty to comply; (f) Whether the employer’s action or inaction has resulted in the loss of a substantive right of an employee. (2) It shall be the responsibility of the employer to provide the commissioner any mitigating evidence concerning the amount of the civil penalty to be assessed. (3) Notwithstanding any other section of this rule, the commissioner shall consider all mitigating circumstances presented by the employer for the purpose of reducing the amount of the civil penalty to be assessed. Statutory/Other Authority: OL Ch. 537 & 2015 Statutes/Other Implemented: OL Ch. 537 & 2015 History: BLI 16-2015, f. 12-9-15, cert. ef. 1-1-16
839-008-0005 Seeking and Screening Job Applicants Based on Compensation (1) Pursuant to ORS 659A.357, it is an unlawful practice under ORS chapter 659A for an employer or prospective employer to seek the salary history of an applicant or employee from the applicant or employee or a current or former employer of the applicant or employee. (2) Pursuant to ORS 652.220(1)(c), it is an unlawful employment practice under ORS chapter 659A for an employer to screen job applicants based on current or past compensation. As used in ORS 652.220(1)(c) and these rules, “to screen job applicants based on current or past compensation” includes using information, however obtained, about a job applicant’s current or past compensation to determine a job applicant’s suitability or eligibility for employment. (3) The unsolicited disclosure of a job applicant’s current or past compensation by a job applicant, employee or a current or former employer of the applicant or employee that is not considered by an employer does not constitute a violation of ORS 659A.357 or ORS 652.220(1)(c). (4) Pursuant to ORS 652.220(1)(d), it is an unlawful employment practice under ORS chapter 659A for an employer to determine compensation for a position based on the current or past compensation of a prospective employee. (5) Sections (1) and (2) of this rule are not intended to prevent an employer from requesting from a prospective employee written authorization to confirm prior compensation after the employer makes an offer of employment to the prospective employee that includes an amount of compensation. Statutory/Other Authority: ORS 659A.805 Statutes/Other Implemented: ORS 652.220 & ORS 659A.357 History: BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019
839-008-0010 Work of Comparable Character (1) As used in ORS 652.210 to ORS 652.235 and these rules, “work of comparable character” includes substantially similar knowledge, skill, effort, responsibility and working conditions as defined or described as follows, with no single factor being determinative : (a) Knowledge considerations may include, but are not limited to, the following: (A) Certifications, licenses and certificates; (B) Education; (C) Experience; or (D) Training. (b) Skill considerations may include, but are not limited to, the following: (A) Ability; (B) Agility; (C) Coordination; (D) Creativity; (E) Efficiency; (F) Experience; or (G) Precision. (c) Effort considerations may include, but are not limited to, the following: (A) Amount of physical or mental exertion needed; (B) Amount of sustained activity; or (C) Complexity of job tasks performed. (d) Responsibility considerations may include, but are not limited to, the following: (A) Accountability, decision-making discretion or impact of an employee's exercise of their job functions on the employer's business; (B) Amount, level or degree of significance of job tasks; (C) Autonomy or extent to which the employee works without supervision; (D) Extent to which the employee exercises supervisory functions; or (E) Extent to which an employee’s work or actions expose an employer to risk or liability. (e) Working condition considerations include the following: (A) Work environment; (B) Hours, which may include, but are not limited to, the following considerations: (i) Alternative scheduling such as split shifts; (ii) Level of busyness during hours of work; (iii) Limited duration assignments; (iv) Number of hours; (v) Overtime hours; or (vi) Part-time or full-time work. (C) Time of day, which may include, but is not limited to, the consideration of shift differentials related to the day of the week or time of day work shifts are scheduled; (D) Physical surroundings, which may include, but are not limited to, the following considerations: (i) Air quality; (ii) Distractions; (iii) Dust; (iv) Exposure to weather; (v) Isolation; (vi) Lighting; (vii) Noise; (viii) Physical design or layout of workspace; (ix) Temperature; (x) Ventilation; or (xi) Wetness. (E) Potential hazards, which may include, but are not limited to, the following considerations: (i) Degree or severity of potential injury; (ii) Frequency of exposure; (iii) Intensity; (iv) Physical hazards; (v) Risk of injury; or (vi) Toxicity. (2) Evaluations of work of comparable character need only consider comparisons of Oregon employees as defined in OAR 839-008-0000. Statutory/Other Authority: ORS 659A.805 Statutes/Other Implemented: ORS 652.210-.235 History: BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019
839-008-0015 Bona Fide Factors that May Be Considered in Paying Employees Performing Work of Comparable Character at Different Compensation Levels Pursuant to ORS 652.220(2), employees may receive different levels of compensation for work of comparable character if the entire compensation differential is based on one or more bona fide factors related to the position in question. The bona fide factors that may be considered in determining the compensation differential between individuals are as follows: (1) A seniority system that recognizes and compensates employees based on length of service with the employer. A seniority system utilized by an employer may be considered as a bona fide factor by the employer’s successor in interest, as defined by OAR 839-005-0014; (2) A merit system that provides for variations in pay based upon employee performance as measured through job-related criteria, for example, a written performance evaluation plan or policy that measures employee performance using a set numerical or other established rating scale, such as from “unsatisfactory” to “exceeds expectations,” and takes employees’ ratings into account in determining employee pay rates; (3) A system that measures earnings by quantity or quality of production, including piece rate work; (4) Notwithstanding any other applicable federal, state or local laws, workplace location considerations may include, but are not limited to, the following: (a) Cost of living; (b) Desirability of worksite location; (c) Access to worksite location; (d) Minimum wage zones; or (e) Wage and hour zones. (5) Necessary and regular travel; (6) Education considerations may include, but are not limited to, substantive knowledge acquired through relevant coursework, as well as any completed certificate or degree program; (7) Training considerations may include, but are not limited to, on-the-job training acquired in current or past positions as well as training acquired through a formal training program; (8) Experience considerations include, but are not limited to, any relevant experience that may be applied to the particular job; or (9) Any combination of the factors described in subsections (a)–(h) of this section, if the combination of those factors accounts for the entire compensation differential. Statutory/Other Authority: ORS 659A.805 Statutes/Other Implemented: OL. CH. 617 (2019) & ORS 652.220 History: BLI 15-2019, amend filed 10/31/2019, effective 01/01/2020 BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019
839-008-0020 Determining Benefits as Part of Compensation For purposes of ORS 652.210 to 652.235 and these rules, an employer may provide different benefits as part of compensation to employees performing work of comparable character if: (1) The same benefit options are offered to all employees performing work of comparable character. For example, an employer may provide and pay for a more expensive health care policy that covers an employee and the employee’s spouse and dependent children, as compared to another employee performing work of comparable character that does not have a spouse or dependent children, so long as both employees are provided the same health care options. For another example, an employer may offer an array of benefit options to employees performing work of comparable character to select from, with or without cost caps, so long as each employee performing work of comparable character is offered the same options. (2) The cost of a bona fide benefit offered by an employer, but declined by an employee, may be considered as part of the total amount of compensation paid to the employee. For example, if an employee chooses not to take advantage of a health insurance policy offered by an employer because the employee is covered under their spouse’s plan, the cost of providing the benefit that would have been incurred by the employer to provide the employee with the benefit offered may be included as part of the employee’s total compensation rate for purposes of calculating the employee’s total compensation under this law. Statutory/Other Authority: ORS 659A.805 Statutes/Other Implemented: ORS 652.210-.235 History: BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019
839-008-0025 Reductions in Employee Compensation (1) Pursuant to ORS 652.220(4), an employer may not reduce the compensation level of an employee to comply with the provisions of ORS 652.210 to 652.235 and these rules. (2) Red circling, freezing or otherwise holding an employee’s compensation constant as other employees come into alignment are not considered reductions in the compensation level for the employee whose compensation is being held constant. Statutory/Other Authority: ORS 659A.805 Statutes/Other Implemented: ORS 652.210-.235 History: BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019
839-008-0030 Required Posting and Notice Requirements (1) The Bureau of Labor and Industries shall make available to employers a template that meets the required notice provisions of ORS 652.220(7). (2) Employers shall display the poster in every establishment where employees work. If displaying the poster is not feasible, an employer may comply with the requirement to provide written notice as required in ORS 652.220 by any of the following: (a) Distributing the written notice to each employee personally by regular mail or email, or by including it with a paycheck; (b) Incorporating the written notice into a handbook or manual made available to employees, whether in a print or electronic format; or (c) Posting the written notice in a conspicuous and accessible location in each workplace of the employer or via electronic format that is reasonably conspicuous and accessible. Statutory/Other Authority: ORS 659A.805 Statutes/Other Implemented: ORS 652.220 History: BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019
839-008-0035 Individual Acts of Remuneration as Distinct Violations An employer commits an unlawful compensation practice each time an employee is remunerated in violation of ORS 652.220. Statutory/Other Authority: ORS 659A.805 Statutes/Other Implemented: ORS 652.220 & ORS 659A.875 History: BLI 22-2018, adopt filed 11/19/2018, effective 01/01/2019