Oregon Administrative Rules › Chapter 839 - BUREAU OF LABOR AND INDUSTRIES › Division 20 - RULES REGULATING MINIMUM WAGE, OVERTIME AND WORKING CONDITIONS › Section 839-020-0004 - Definitions Generally

Current through Register Vol. 63, No. 7, July 1, 2024
As used in ORS
				653.010 to
				653.261 and these rules, unless
				the context requires otherwise:
(1)
			 "Acute care in hospital settings" means care provided in an acute inpatient
			 care facility.
(2) "Acute inpatient
			 care facility" has the meaning given that phrase in ORS
			 442.470.
(3) "Administrator" means the Administrator
			 of the Wage and Hour Division.
(4)
			 "Adult" means an individual of 18 years of age or more.
(5) "Adult foster home" has the meaning given
			 that phrase in ORS 443.705.
(6) "Agriculture" includes farming in all its
			 branches and among other things includes the cultivation and tillage of the
			 soil, dairying, the production, cultivation, growing, and harvesting of any
			 agricultural or horticultural commodities, the raising of livestock, bees,
			 fur-bearing animals, or poultry and any practices performed by a farmer or on a
			 farm as an incident to or in conjunction with such farming operations,
			 including preparation for market, delivery to storage or to market or to
			 carriers for transportation to market. "Agricultural employment" is employment
			 in "Agriculture" as herein defined.
(7) "Bureau" means Bureau of Labor and
			 Industries.
(8) "Casual basis" as
			 used in ORS 653.020 and these rules means
			 employment which is irregular and intermittent and which is not performed by an
			 individual whose vocation is providing domestic services.
(9) "Child care service person" means an
			 individual who performs child care services in the home of the individual or
			 the child and who during any part of a 24 hour period provides custodial care
			 and protection to infants or children.
(10) "Commissioner" means the Commissioner of
			 the Bureau of Labor and Industries.
(11) "Commissions" or "pay on a commission
			 basis" means payment based on a percentage of total sales, or of sales in
			 excess of a specified amount, or on a fixed allowance per unit agreed upon as a
			 measure of accomplishment or on some other formula and may be the sole source
			 of compensation or may be payment in addition to other compensation.
(12) "Companionship services", as used in ORS
			 653.020 and in these rules,
			 means those services that provide fellowship, care and protection for a person
			 who, because of advanced age or physical or mental infirmity, cannot care for
			 his or her own needs. Such services may include household work related to the
			 care of the elderly or infirm person such as meal preparation, bed making,
			 washing of clothes and other similar services. They may also include the
			 performance of general household work: provided, however, that such work is
			 incidental, i.e., does not exceed 20 percent of the total weekly hours worked.
			 Individuals employed in domestic service employment in or about a family home
			 to provide companionship services are not required to be employed by the
			 individual for whom they provide such services. The term "companionship
			 services" does not include services relating to the care and protection of the
			 elderly or infirm which require and are performed by trained personnel, such as
			 a registered or practical nurse. While such trained personnel do not qualify as
			 companions, this fact does not remove them from the category of covered
			 domestic service employees when employed in or about a family home.
(13) "Division" means the Wage and Hour
			 Division of the Bureau of Labor and Industries.
(14) "Domestic service" means services of a
			 household nature performed by an employee in or about a family home (permanent
			 or temporary) of the person by whom the employee is employed. The term
			 includes, but is not limited to, employees such as cooks, waiters, butlers,
			 valets, maids, housekeepers, governesses, nurses, janitors, gardeners, and
			 providers of companionship services to the elderly and infirm.
(15) "Domicile" means the permanent residence
			 of a person or the place to which that person intends to return even though
			 that person may actually reside elsewhere.
(16) "Employed on a seasonal basis at", as
			 used in ORS 653.020 and in these rules,
			 means employment that occurs during the time the organized camp provides
			 services to campers at the camp site where campers are located. The term
			 includes employment at the camp site in duties preparatory to the opening or
			 closing of the camp site. The term includes employment during the camping
			 season only and does not include full time, year around employment.
(17) "Employer" has the meaning given that
			 term in ORS 653.010.
(18) "Fair market value" means an amount not
			 to exceed the retail price customarily paid by the general public for the same
			 or similar meals, lodging or other facilities or services provided to the
			 employee by the employer. In determining the fair market value of meals,
			 lodging and other facilities and services, the bureau will be guided by these
			 rules and by Title 29, CFR Part 531 - Wage Payments under the Fair Labor
			 Standards Act of 1938, where applicable.
(19) "Family home", as used in ORS
			 653.020 and this section, means
			 a residence, the purpose of which is to provide an abode for the owner or
			 renter of the residence and any family members of the owner or renter. For
			 example, a boarding house or an adult foster care home are not family homes for
			 purposes of ORS 653.020 and these rules.
			 However, when casual domestic service work is performed in structures where the
			 owner or renter resides and operates a business, such work may qualify as
			 exempt under ORS 653.020 depending upon all the
			 facts of the particular arrangement.
(20) "Homeworker" means any employee suffered
			 or permitted to produce goods or services for an employer in or about a home,
			 apartment or room in a residence in which that employee or other employees of
			 an employer resides, regardless of the source of the materials used by the
			 homeworker in such production.
(21)
			 "Hours worked" means all hours for which an employee is employed by and
			 required to give to the employer and includes all time during which an employee
			 is necessarily required to be on the employer's premises, on duty or at a
			 prescribed work place and all time the employee is suffered or permitted to
			 work. "Hours worked" includes "work time" as defined in ORS
			 653.010.
(22) "Immediate family" means grandfather,
			 grandmother, father, mother, son, daughter, sister, brother, uncle or
			 aunt.
(23) "Minimum wage" means the
			 rate of pay prescribed in ORS
			 653.025 and
			 653.030.
(24) "Minor" means an individual of 17 years
			 of age or less.
(25) "Organized
			 camp" has the meaning given that phrase in ORS
			 653.010.
(26) "Primary duty" means, as a general rule,
			 the major part, or over 50 percent, of an employee's time. However, a
			 determination of whether an employee has management as the employee's primary
			 duty must be based on all the facts of a particular case. Time alone is not the
			 sole test and in situations where the employee does not spend over 50 percent
			 of the employee's time in managerial duties, the employee might have management
			 as a primary duty if other pertinent factors support such a conclusion. Factors
			 to be considered include, but are not limited to, the relative importance of
			 the managerial duties as compared with other duties, the frequency with which
			 the employee exercises discretionary powers, the relative freedom from
			 supervision and the relationship between the salary paid the employee and wages
			 paid other employees for the kind of non-exempt work performed by the
			 supervisor.
(27) "Primary school"
			 means a learning institution containing any combination of grades Kindergarten
			 - 8 or age level equivalent.
(28)
			 "Region" means a geographic area for which ORS
			 653.025 establishes a minimum
			 rate of wage.
(29) "Reside" means a
			 personal presence at some place of abode with no present intention of definite
			 and early removal and with the intent to remain for an undetermined period, but
			 not necessarily combined with the intent to stay permanently.
(30) "Resident manager" means an employee of
			 an adult foster home who is domiciled at the home and who is directly
			 responsible for the care of residents in the home on a day to day
			 basis.
(31) "Salary" means a
			 predetermined amount constituting all or part of the employee's compensation
			 paid for each pay period of one week or longer (but not to exceed one month).
			 The predetermined amount may not be any amount less than the equivalent of a
			 monthly salary calculated by multiplying the wage set pursuant to ORS
			 653.025 by 2,080 hours per year,
			 then dividing by 12 months.
(32)
			 "Salary basis" means a salary as defined in this rule, which is not subject to
			 deduction because of lack of work for part of a work week, however, deductions
			 for absences of one day or more may be made if the employee is absent for other
			 reasons. Deductions may not be made for absences of less than one day, except
			 as permitted for employers covered by the federal Family and Medical Leave Act
			 of 1993, Public Law
			 103-3, for part-day absences due to leave pursuant
			 to that law. Employees who are not paid for workweeks in which they performed
			 no work are considered to be on a salary basis provided they are paid on a
			 salary basis in workweeks when work is performed.
(a) Payment of additional compensation is not
			 inconsistent with the salary basis of payment.
(b) Compensation paid in the form of fees is
			 not inconsistent with the salary basis of payment, provided the fees paid in
			 each pay period are not less than the amount required to be paid pursuant to
			 ORS 653.025 and meet the
			 requirements for fee payments under Title 29, Code of Federal Regulations, Part
			 541.605.