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 927
House Bill 2834
Sponsored by Representative WITT (Presession filed.)
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.
Standardizes definitions of 'employ,' 'employee, ' ' employer'
and 'wages' for purposes of statutes relating to hours, wages,
wage claims, employment conditions, employment agencies, farm
labor contractors and construction contractors.
A BILL FOR AN ACT
Relating to definitions of terms concerning employment; creating
new provisions; and amending ORS 653.010, 658.005, 658.405 and
701.005.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 653.010 is amended to read:
653.010. As used in ORS 653.010 to 653.261, unless the context
requires otherwise:
(1) 'Commissioner' means the Commissioner of the Bureau of
Labor and Industries.
(2) 'Employ' includes to suffer or permit to work but does not
include voluntary or donated services performed for no
compensation or without expectation or contemplation of
compensation as the adequate consideration for the services
performed for a public { - employer referred to in subsection
(3) of this section - } { + body as defined in ORS 174.109 + },
or a religious, charitable, educational, public service or
similar nonprofit corporation, organization or institution for
community service, religious or humanitarian reasons or for
services performed by general or public assistance recipients as
part of any work training program administered under the state or
federal assistance laws.
{ + (3) 'Employee' means an individual employed by an
employer in this state. + }
{ - (3) - } { + (4) + } 'Employer' means any person
{ - who employs another person including the State of Oregon or
a political subdivision thereof or any county, city, district,
authority, public corporation or entity and any of their
instrumentalities organized and existing under law or charter - }
{ + that employs an individual, including a public body, as
defined in ORS 174.109, and any other person acting directly or
indirectly in the interest of an employer in relation to an
employee + }.
{ - (4) - } { + (5) + } 'Minor' means any person under 18
years of age.
{ - (5) - } { + (6) + } 'Occupation' means any occupation,
service, trade, business, industry, or branch or group of
industries or employment or class of employment in which
employees are gainfully employed.
{ - (6) - } { + (7) + } 'Organized camp' means a day or
resident camp, whether or not operated for profit, established to
give campers recreational, creative, religious or educational
experience in cooperative group living wherein the activities are
conducted on a closely supervised basis, whether or not the camp
is used primarily by an organized group or by members of the
public and whether or not the activities or facilities are
furnished free of charge or for the payment of a fee.
{ - (7) - } { + (8) + } 'Outside salesperson' means any
employee who is employed for the purpose of and who is
customarily and regularly engaged away from the employer's place
or places of business in making sales, or obtaining orders, or
obtaining contracts for services and whose hours of work of any
other nature for the employer do not exceed 30 percent of the
hours worked in the workweek by the nonexempt employees of the
employer.
{ - (8) - } { + (9) + } 'Piece-rate' means a rate of pay
calculated on the basis of the quantity of the crop harvested.
{ - (9) - } { + (10) + } 'Salary' means no less than the
wage set pursuant to ORS 653.025, multiplied by 2,080 hours per
year, then divided by 12 months.
{ - (10) - } { + (11) + } 'Wages' means { - compensation
due to an employee by reason of employment - } { + all
compensation for performance of service by an employee for an
employer, including penalty wages owed under ORS 652.150, whether
paid by the employer or another person + }, payable in legal
tender of the United States or check on banks convertible into
cash on demand at full face value, subject to such deductions,
charges or allowances as are permitted in ORS 653.035.
{ - (11) - } { + (12) + } 'Work time' includes both time
worked and time of authorized attendance.
SECTION 2. { + Section 3 of this 2011 Act is added to and made
a part of ORS chapter 652. + }
SECTION 3. { + As used in this chapter, unless a specially
applicable definition requires otherwise, 'employ, ' ' employee,'
'employer' and 'wages' have the meanings given those terms in ORS
653.010. + }
SECTION 4. 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 for services rendered by an employment agency.
(3) 'Commissioner' means the Commissioner of the Bureau of
Labor and Industries.
{ + (4) 'Employ' has the meaning given that term in ORS
653.010.
(5) 'Employee' has the meaning given that term in ORS 653.010.
(6) 'Employer' has the meaning given that term in ORS
653.010. + }
{ - (4)(a) - } { + (7)(a) + } 'Employment agency' or
'agency' means 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 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) An employment listing service, as defined in ORS 658.250.
{ + (8) 'Wages' has the meaning given that term in ORS
653.010. + }
SECTION 5. ORS 658.405 is amended to read:
658.405. As used in ORS 658.405 to 658.503 and 658.991 (2) and
(3), unless the context requires otherwise:
(1) 'Agricultural association' means a nonprofit or cooperative
association of farmers, growers or ranchers that is incorporated
under applicable state law and that acts as a farm labor
contractor solely on behalf of members of the association.
(2) 'Commissioner' means the Commissioner of the Bureau of
Labor and Industries.
(3) 'Crew leader' means the member of a group of workers who
(a) acts as spokesman for the group, (b) travels with the group
from another state into Oregon and (c) performs the same work
along with other group members. A crew leader may transport
workers from their local place of residence to their place of
employment so long as the crew leader does not perform this
service for a profit.
{ + (4) 'Employ' has the meaning given that term in ORS
653.010.
(5) 'Employee' has the meaning given that term in ORS 653.010.
(6) 'Employer' has the meaning given that term in ORS
653.010. + }
{ - (4) - } { + (7) + } 'Farm labor contractor' means any
person who, for an agreed remuneration or rate of pay, recruits,
solicits, supplies or employs workers to perform labor for
another to work in forestation or reforestation of lands,
including but not limited to the planting, transplanting, tubing,
precommercial thinning and thinning of trees and seedlings, the
clearing, piling and disposal of brush and slash and other
related activities or the production or harvesting of farm
products; or who recruits, solicits, supplies or employs workers
to gather evergreen boughs, yew bark, bear grass, salal or ferns
from public lands for sale or market prior to processing or
manufacture; or who recruits, solicits, supplies or employs
workers on behalf of an employer engaged in these activities; or
who, in connection with the recruitment or employment of workers
to work in these activities, furnishes board or lodging for such
workers; or who bids or submits prices on contract offers for
those activities; or who enters into a subcontract with another
for any of those activities. However, 'farm labor contractor'
does not include:
(a) Farmers, including owners or lessees of land intended to be
used for the production of timber, their permanent employees,
advertising media, platoon leaders or individuals engaged in the
solicitation or recruitment of persons for dayhaul work in
connection with the growing, production or harvesting of farm
products;
(b) The Employment Department;
(c) A crew leader;
(d) An individual who performs work, other than recruiting,
supplying, soliciting or employing workers to perform labor for
another, alone or only with the assistance of the individual's
spouse, son, daughter, brother, sister, mother or father;
(e) Individuals who perform labor pursuant to an agreement for
exchanging their own labor or services with each other, provided
the work is performed on land owned or leased by the individuals;
(f) An educational institution that is recognized as such by
the Department of Education; or
(g) A farmer who operates a farmworker camp, regulated under
ORS 658.750, who recruits, supplies, solicits or employs workers
only for the farmer's own operations, and has farmworkers living
in the camp who are employed by another on no more than an
incidental basis, and the farmer receives no remuneration by
virtue of such incidental employment.
{ + (8) 'Wages' has the meaning given that term in ORS
653.010. + }
SECTION 6. ORS 701.005, as amended by section 4, chapter 77,
Oregon Laws 2010, is amended to read:
701.005. As used in this chapter:
(1) 'Board' means the Construction Contractors Board.
(2) 'Commercial contractor' means a licensed contractor that
holds an endorsement as a:
(a) Commercial general contractor level 1;
(b) Commercial specialty contractor level 1;
(c) Commercial general contractor level 2;
(d) Commercial specialty contractor level 2; or
(e) Commercial developer.
(3) 'Commercial developer' means a developer of property that
is zoned for or intended for use compatible with a small
commercial or large commercial structure.
(4) 'Construction debt' means an amount owed under:
(a) An order or arbitration award issued by the board that has
become final by operation of law;
(b) A judgment or civil penalty that has become final by
operation of law arising from construction activities within the
United States; or
(c) A judgment or civil penalty that has become final by
operation of law arising from a failure to comply with ORS
656.017.
(5) 'Contractor' means any of the following:
(a) A person that, for compensation or with the intent to sell,
arranges or undertakes or offers to undertake or submits a bid to
construct, alter, repair, add to, subtract from, improve,
inspect, move, wreck or demolish, for another, a building,
highway, road, railroad, excavation or other structure, project,
development or improvement attached to real estate, or to do any
part thereof.
(b) A person that purchases or owns property and constructs or
for compensation arranges for the construction of one or more
residential structures or small commercial structures with the
intent of selling the structures.
(c) A school district, as defined in ORS 332.002, that permits
students to construct a residential structure or small commercial
structure as an educational experience to learn building
techniques and sells the completed structure.
(d) A community college district, as defined in ORS 341.005,
that permits students to construct a residential structure or
small commercial structure as an educational experience to learn
building techniques and sells the completed structure.
(e) A person except a landscape contracting business,
nurseryman, gardener or person engaged in the commercial harvest
of forest products, that is engaged as an independent contractor
to remove trees, prune trees, remove tree limbs or stumps or to
engage in tree or limb guying.
(f) A business that supplies the services of a home inspector
certified under ORS 701.350 or a cross-connection inspector and
backflow assembly tester certified under ORS 448.279.
(g) A person that for compensation arranges, undertakes, offers
to undertake or submits a bid to clean or service chimneys.
(6) 'Developer' means a contractor that owns property or an
interest in property and engages in the business of arranging for
construction work or performing other activities associated with
the improvement of real property, with the intent to sell the
property.
{ + (7) 'Employ' has the meaning given that term in ORS
653.010.
(8) 'Employee' has the meaning given that term in ORS 653.010.
(9) 'Employer' has the meaning given that term in ORS
653.010. + }
{ - (7)(a) - } { + (10)(a) + } 'General contractor' means a
contractor whose business operations require the use of more than
two unrelated building trades or crafts that the contractor
supervises or performs in whole or part, whenever the sum of all
contracts on any single property, including materials and labor,
exceeds an amount established by rule by the board.
(b) 'General contractor' does not mean a specialty contractor
or a residential limited contractor.
{ - (8)(a) - } { + (11)(a) + } 'Home improvement' means a
renovation, remodel, repair or alteration by a residential
contractor to an existing owner-occupied:
(A) Residence that is a site-built home;
(B) Condominium, rental residential unit or other residential
dwelling unit that is part of a larger structure, if the property
interest in the unit is separate from the property interest in
the larger structure;
(C) Modular home constructed off-site;
(D) Manufactured dwelling; or
(E) Floating home, as defined in ORS 830.700.
(b) 'Home improvement' does not include a renovation, remodel,
repair or alteration by a residential contractor:
(A) To a structure that contains one or more dwelling units and
is four stories or less above grade; or
(B) That the residential contractor performed in the course of
constructing a new residential structure.
{ - (9)(a) - } { + (12)(a) + } 'Home inspector' means a
person who, for a fee, inspects and provides written reports on
the overall physical condition of a residential structure and the
appurtenances of the residential structure.
(b) 'Home inspector' does not include persons certified under
ORS chapter 455 to inspect new, repaired or altered structures
for compliance with the state building code.
{ - (10) - } { + (13) + } 'Key employee' means an employee
or owner of a contractor who is a corporate officer, manager,
superintendent, foreperson or lead person or any other employee
the board identifies by rule.
{ - (11) - } { + (14) + } 'Large commercial structure'
means a structure that is not a residential structure or small
commercial structure.
{ - (12) - } { + (15) + } 'Officer' means any of the
following persons:
(a) A president, vice president, secretary, treasurer or
director of a corporation.
(b) A general partner in a limited partnership.
(c) A manager in a manager-managed limited liability company.
(d) A member of a member-managed limited liability company.
(e) A trustee.
(f) A person the board defines by rule as an officer. The
definition of officer adopted by board rule may include persons
not listed in this subsection who may exercise substantial
control over a business.
{ - (13) - } { + (16) + } 'Residential contractor' means a
licensed contractor that holds an endorsement as a:
(a) Residential general contractor;
(b) Residential specialty contractor;
(c) Residential limited contractor; or
(d) Residential developer.
{ - (14) - } { + (17) + } 'Residential developer' means a
developer of property that is zoned for or intended for use
compatible with a residential or small commercial structure.
{ - (15)(a) - } { + (18)(a) + } 'Residential structure'
means:
(A) A residence that is a site-built home;
(B) A structure that contains one or more dwelling units and is
four stories or less above grade;
(C) A condominium, rental residential unit or other residential
dwelling unit that is part of a larger structure, if the property
interest in the unit is separate from the property interest in
the larger structure;
(D) A modular home constructed off-site;
(E) A manufactured dwelling; or
(F) A floating home as defined in ORS 830.700.
(b) 'Residential structure' does not mean:
(A) Subject to paragraph (a)(C) of this subsection, a structure
that contains both residential and nonresidential units;
(B) Transient lodging;
(C) A residential school or residence hall;
(D) A state or local correctional facility other than a local
facility for persons enrolled in work release programs maintained
under ORS 144.460;
(E) A youth correction facility as defined in ORS 420.005;
(F) A youth care center operated by a county juvenile
department under administrative control of a juvenile court
pursuant to ORS 420.855 to 420.885;
(G) A detention facility as defined in ORS 419A.004;
(H) A nursing home;
(I) A hospital; or
(J) A place constructed primarily for recreational activities.
{ - (16) - } { + (19) + } 'Responsible managing individual'
means an individual who:
(a) Is an owner described in ORS 701.094 or an employee of the
business;
(b) Exercises management or supervisory authority, as defined
by the board by rule, over the construction activities of the
business; and
(c)(A) Successfully completed the training and testing required
for licensing under ORS 701.122 within a period the board
identifies by rule;
(B) Demonstrated experience the board requires by rule; or
(C) Complied with the licensing requirements of ORS 446.395.
{ - (17) - } { + (20) + } 'Small commercial structure'
means:
(a) A nonresidential structure that has a ground area of 10,000
square feet or less, including exterior walls, and a height of
not more than 20 feet from the top surface of the lowest flooring
to the highest interior overhead finish of the structure;
(b) A nonresidential leasehold, rental unit or other unit that
is part of a larger structure, if the unit has a ground area of
12,000 square feet or less, excluding exterior walls, and a
height of not more than 20 feet from the top surface of the
lowest flooring to the highest interior overhead finish of the
unit; or
(c) A nonresidential structure of any size for which the
contract price of all construction contractor work to be
performed on the structure as part of a construction project does
not total more than $250,000.
{ - (18) - } { + (21) + } 'Specialty contractor' means a
contractor who performs work on a structure, project, development
or improvement and whose operations as such do not fall within
the definition of ' general contractor.' 'Specialty contractor'
includes a person who performs work regulated under ORS 446.395.
{ + (22) 'Wages' has the meaning given that term in ORS
653.010. + }
{ - (19) - } { + (23) + } 'Zero-lot-line dwelling' means a
single-family dwelling unit constructed in a group of attached
units in which:
(a) Each attached unit extends from foundation to roof with
open space on two sides; and
(b) Each dwelling unit is separated by a property line.
----------