68th OREGON LEGISLATIVE ASSEMBLY--1995 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 2064
Senate Bill 364
Sponsored by Senator DERFLER
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.
Revises farm labor contractor licensing law and bond
requirements.
A BILL FOR AN ACT
Relating to farm labor contractor licensing law; creating new
provisions; and amending ORS 658.405, 658.407 and 658.415.
Be It Enacted by the People of the State of Oregon:
+ } { + SECTION 1. + } ORS 658.405 is amended to read:
658.405. As used in ORS 658.405 to 658.503 and 658.830 and
658.991 (2) and (3), unless the context requires otherwise:
(1) { + (a) + } 'Farm labor contractor' means any person who,
for an agreed remuneration or rate of pay { + : + } { - , - }
{ + (A) + } 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 - } { +
(B) Recruits, solicits, supplies or employs workers for another
to gather evergreen boughs, yew bark, bear grass, salal or ferns
from public lands for sale or market prior to processing or
manufacture;
(C) + } Recruits, solicits, supplies or employs workers on
behalf of an employer engaged in { - these - } activities { +
described in subparagraph (A) or (B) of this paragraph + };
{ - or who, - } { +
(D) + } In connection with the recruitment or employment of
workers to work in { - these - } activities { + described in
subparagraph (A) or (B) of this paragraph + }, furnishes board or
lodging for such workers; or { - who bids or submits prices on
contract offers for those activities; or who - } { +
(E) + } Enters into a subcontract with another for any of
{ - those - } { + the + } activities { + described in
subparagraph (A) or (B) of this paragraph + }. { +
(b) 'Farm labor contractor' includes any person who bids or
submits prices on contract offers for activities described in
paragraph (a)(A) or (B) of this subsection. + }
{ + (c) + } { - However, - } 'Farm labor contractor' does
not include:
{ - (a) - } { + (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) - } { + (B) + }The Employment Department;
{ - (c) - } { + (C) + } A crew leader;
{ - (d) - } { + (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) - } { + (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) - } { + (F) + } An educational institution which is
recognized as such by the Department of Education; or
{ - (g) - } { + (G) + } A farmer who operates a farm-worker
camp, regulated under ORS 658.750, who recruits, supplies,
solicits or employs workers only for the farmer's own operations,
and has farm workers 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.
(2) { + (a) + } 'Crew leader' means the member of a group of
workers who { + : + }
{ - (a) - } { + (A) + } Acts as spokesman for the
group { + ; + } { - , - }
{ - (b) - } { + (B) + } Travels with the group from another
state into Oregon { + ; + } and
{ - (c) - } { + (C) + } Performs the same work along with
other group members.
{ + (b) + } 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.
(3) 'Commissioner' means the Commissioner of the Bureau of
Labor and Industries.
SECTION 2. ORS 658.415 is amended to read:
658.415. (1) No person shall act as a farm labor contractor
unless the person has first been licensed by the Commissioner
{ + of the Bureau of Labor and Industries + } pursuant to ORS
658.405 to 658.503 and 658.830. Any person may file an
application for a license to act as a farm labor contractor at
any office of the Bureau of Labor and Industries. The application
shall be sworn to by the applicant and shall be written on a form
prescribed by the commissioner { - of the Bureau of Labor and
Industries - } . The form shall include, but not be limited to,
questions asking:
(a) The applicant's name, Oregon address and all other
temporary and permanent addresses the applicant uses or knows
will be used in the future.
(b) Information on all motor vehicles to be used by the
applicant in operations as a farm labor contractor including
license number and state of licensure, vehicle number and the
name and address of vehicle owner for all vehicles used.
(c) Whether or not the applicant was ever denied a license
under ORS 658.405 to 658.503 and 658.830 within the preceding
three years, or in this or any other jurisdiction had such a
license denied, revoked or suspended within the preceding three
years.
(d) The names and addresses of all persons financially
interested, whether as partners, shareholders, associates or
profit-sharers, in the applicant's proposed operations as a farm
labor contractor, together with the amount of their respective
interests, and whether or not, to the best of the applicant's
knowledge, any of these persons was ever denied a license under
ORS 658.405 to 658.503 and 658.830 within the preceding three
years, or had such a license denied, revoked or suspended within
the preceding three years in this or any other jurisdiction.
(2) Each applicant shall furnish satisfactory proof with the
application of the existence of a policy of insurance in an
amount adequate under rules issued by the Bureau of Labor and
Industries for vehicles to be used to transport workers. For the
purpose of this subsection the certificate of an insurance agent
licensed in Oregon is satisfactory evidence of adequate
insurance.
(3) Each applicant shall submit with the application and shall
continually maintain thereafter, until excused, proof of
financial ability to promptly pay the wages of employees and
other obligations specified in this section. The proof required
in this subsection shall be in the form of a corporate surety
bond of a company licensed to do such business in Oregon,
{ - an irrevocable letter of credit issued by a commercial bank
as defined in ORS 706.005, - } a cash deposit or a deposit the
equivalent of cash. For the purposes of this subsection it shall
be deemed sufficient compliance if the farm labor contractor
procures a savings account at a bank or savings and loan
institution in the name of the commissioner as trustee for the
employees of the farm labor contractor and others as their
interests may appear and delivers the evidence of the account and
the ability to withdraw the funds to the commissioner under the
terms of a bond approved by the commissioner. The amount of the
bond and the security behind the bond, or { - of the letter of
credit - } { + the cash deposit, + } shall be based on the
maximum number of employees the contractor employs at any time
during the year. The bond or { - letter of credit - }
{ + cash deposit + } shall be:
(a) $10,000 if the contractor employs no more than 20
employees; { + or + }
(b) $30,000 { + , or such lesser sum as may be authorized by
the commissioner pursuant to section 4 of this 1995 Act, + } if
the contractor employs 21 { - to 50 - } { + or more + }
employees { + . + } { - ; - }
{ - (c) $60,000 if the contractor employs 51 to 100
employees; and - }
{ - (d) $90,000 if the contractor employs more than 100
employees. - }
(4) In the event that a single business entity licensed as a
farm labor contractor has more than one natural person who, as an
owner or employee of the business entity, engages in activities
which require the persons to be licensed individually as farm
labor contractors, and each such person engages in such
activities solely for that business entity, the Bureau of Labor
and Industries may provide by rule for lower aggregate bonding
requirements for the business entity and its owners and
employees. If there is an unsatisfied final judgment of a court
or decision of an administrative agency against a license
applicant, the subject of which is any matter which would be
covered by the bond { - , letter of credit - } or deposit
referred to in subsection (3) of this section, the commissioner
shall not issue a license to the applicant until the judgment or
decision is satisfied. As a condition of licensing any such
applicant, the commissioner may require the applicant to submit
proof of financial ability required by subsection (3) of this
section in an amount up to three times that ordinarily required
of a license applicant.
(5) All corporate surety bonds { - and letters of credit - }
filed under this section shall be executed to cover liability for
the period for which the license is issued. During the period for
which { + it is + } executed { + , + } no bond { - or letter
of credit - } can be canceled or otherwise terminated.
(6) Each application must be accompanied by a fee of $20.
(7) Any person who uses the services of a farm labor contractor
{ - shall be liable as follows if the farm labor contractor has
failed to comply with any of the provisions of this section - }
{ + who has failed to comply with any of the provisions of this
section shall + }:
(a) Be personally and jointly and severally liable to any
employee so far as such employee has not been paid wages in full.
(b) Be personally liable for all penalty wages which have
occurred under ORS 652.150 for the wages due under this section.
(c) Be personally liable for court costs and disbursements and
a reasonable attorney fee at trial and on appeal to be set by the
court or judge if suit or action is commenced to enforce any of
the provisions of this section and the plaintiff prevails.
(8) Any person who suffers any loss of wages from the employer
of the person or any other loss specified in subsection (16) of
this section { - the person - } shall have a right of action
in the name of the person against the surety upon the bond { - ,
against the letter of credit issuer - } or against the deposit
with the commissioner { + . The right of action + }:
(a) { - The right of action - } Is assignable and must be
included with an assignment of a wage claim, { + of + } any
other appropriate claim, or of a judgment thereon.
(b) { - The right of action - } Shall not be included in any
suit or action against the farm labor contractor but must be
exercised independently after first procuring a judgment, decree,
or other form of adequate proof of liability established by rule
and procedure under subsection (14) of this section establishing
the farm labor contractor's liability for the claim.
(9) The surety company or the commissioner shall make prompt
and periodic payments on the farm labor contractor's liability up
to the extent of the total sum of the bond { - , letter of
credit - } or deposit. Payments shall be made in the following
manner:
(a) Payment shall be made based upon priority of wage claims
over advances made by the grower or producer of agricultural
commodities or the owner or lessee of land intended to be used
for the production of timber, for advances made to or on behalf
of the farm labor contractor.
(b) Payment in full of all sums due to each person who presents
adequate proof of the claim.
(c) If there are insufficient funds to pay in full the person
next entitled to payment in full such person will be paid in
part.
(10) No person shall bring any suit or action against the
surety company { - , the letter of credit issuer - } or the
commissioner on the { - bonding or letter of credit obligation
or as - } { + bond or against the commissioner as the + }
trustee for the beneficiaries of the farm labor contractor under
any deposit made pursuant to this section unless the person has
first exhausted the procedures contained in subsections (8) and
(12) of this section and contends that the surety company { - ,
the letter of credit issuer - } or the commissioner still has
funds which are applicable to the person's judgment or
acknowledgment.
(11) The commissioner shall not be prevented from accepting
assignments of wage claims and enforcing liability against the
surety on the bond { - or the letter of credit issuer - } or
from applying the deposit to just wage claims filed with the
commissioner.
(12) All claims against the bond { - , letter of credit - }
or deposit shall be unenforceable unless request for payment of a
judgment or other form of adequate proof of liability or a notice
of the claim has been made by certified mail to the surety or the
commissioner within six months from the end of the period for
which the bond { - , letter of credit - } or deposit was
executed and made.
(13) If the commissioner has received no notice as provided in
subsection (12) of this section within six months after a farm
labor contractor is no longer required to provide and maintain a
surety bond { - , letter of credit - } or deposit { + , + } the
commissioner shall terminate and surrender any bond or any
deposit under the control of the commissioner to the person who
is entitled thereto upon receiving appropriate proof of such
entitlement.
(14) The commissioner shall adopt rules reasonably necessary
for administration and enforcement of the provisions of this
section.
(15) Every farm labor contractor required by this section to
furnish a surety bond { - or a letter of credit, - } or make a
deposit in lieu thereof, shall keep conspicuously posted upon the
premises where employees working under the contractor are
employed, a notice in both English and any other language used by
the farm labor contractor to communicate with workers specifying
the contractor's compliance with the requirements of this section
and specifying the name and Oregon address of the surety on the
bond
{ - or the name and address of the letter of credit issuer - }
or a notice that a deposit in lieu of the bond has been made with
the commissioner together with the address of the commissioner.
(16) The bond { - , letter of credit - } or deposit referred
to in subsection (3) of this section shall be payable to the
commissioner and shall be conditioned upon:
(a) Payment in full of all sums due on wage claims of
employees.
(b) Payment by the labor contractor of all sums due to the
grower or producer of agricultural commodities or the owner or
lessee of land intended to be used for the production of timber
for advances made to or on behalf of the farm labor contractor.
(17) No license shall be issued until the applicant executes a
written statement which shall be subscribed and sworn to and
which shall contain the following declaration:
_________________________________________________________________
With regards to any action filed against me concerning my
activities as a farm labor contractor, I appoint the Commissioner
of the { - Oregon - } Bureau of Labor and Industries as my
lawful agent to accept service of summons when I am not present
in the jurisdiction in which such action is commenced or have in
any other way become unavailable to accept service.
_________________________________________________________________
SECTION 3. { + (1) The employee of a farm labor contractor who
is licensed under ORS 658.405 to 658.503 may be licensed as a
farm labor contractor subject to an employee indorsement if the
employee continuously meets all of the following conditions:
(a) The employee's employer has filed with the Commissioner of
the Bureau of Labor and Industries a signed statement, in a form
required by the commissioner, agreeing to sponsor the application
and to notify the commissioner promptly upon termination of the
employment of the employee;
(b) The employee engages in activities that would require
licensing as a farm labor contractor solely on behalf of the
employer;
(c) The employee does not personally employ any workers and is
not responsible for paying any workers;
(d) The employer maintains proof of financial responsibility;
(e) The employer's license remains in good standing; and
(f) The employee meets all of the conditions for licensing as a
farm labor contractor, except as provided in this section.
(2) A farm labor contractor subject to an employee indorsement
acting in compliance with subsection (1) of this section need not
provide proof of financial responsibility under ORS 658.415 (3).
(3) A farm labor contractor subject to an employee indorsement
acting in compliance with subsection (1) of this section need not
comply with ORS 658.417 (4).
(4) The license of a farm labor contractor subject to an
employee indorsement shall state the conditions contained in
subsection (1) of this section on its face, and shall state that
a farm labor contractor subject to an employee indorsement who
operates out of compliance with these restrictions is an
unlicensed farm labor contractor.
(5) A farm labor contractor who employs another farm labor
contractor is personally, jointly and severally liable for any
damages, attorney fees or costs awarded against the employee for
the actions of the farm labor contractor employee undertaken
within the scope of employment, or for actions of the employee
that the employee takes under color of an employee's license
subject to an employee indorsement that are known, or reasonably
should have been known, by the employer. In the case of a farm
labor contractor that is a corporation, both the corporation and
the licensed majority shareholder or shareholders are so
liable. + }
SECTION 4. { + If the Commissioner of the Bureau of Labor and
Industries finds that an applicant has operated as an Oregon
licensed farm labor contractor without an employee indorsement
for at least two years in compliance with ORS 658.405 to 658.503
and with any other laws pertaining to the conduct of farm labor
contractors, and that no valid claims for unpaid wages have been
made against the applicant, then the commissioner may reduce the
amount of the bond or deposit that would otherwise be required
pursuant to ORS 658.415 (3) to an amount determined by the
commissioner, but in no event less than the following:
(1) If the commissioner finds that the contractor has so
operated for a period of at least five years, $20,000;
(2) If the commissioner finds that the contractor has so
operated for at least four years, $22,500;
(3) If the commissioner finds that the contractor has so
operated for at least three years, $25,000; or
(4) If the commissioner finds that the contractor has so
operated for at least two years, $27,500. + }
SECTION 5. { + Sections 3 and 4 of this Act are added to and
made a part of ORS 658.405 to 658.503. + }
SECTION 6. ORS 658.407 is amended to read:
658.407. The Commissioner of the Bureau of Labor and Industries
shall administer and enforce ORS 658.405 to 658.503 and 658.830,
and in so doing shall:
(1) Investigate and attempt to adjust equitably controversies
between farm labor contractors and their workers with respect to
claims arising under ORS 658.415 (3).
(2) Take appropriate action to establish the liability or lack
thereof of the farm labor contractor for wages of the employees
of the farm labor contractor and if appropriate proof exists of
liability for wages the commissioner shall pay the same or such
part thereof as the commissioner has funds on deposit or cause
the surety company { - or letter of credit issuer - } to
forthwith pay the entire liability or such part thereof as the
sums due under the bond { - or letter of credit - } will
permit.
(3) Adopt appropriate rules to administer ORS 658.405 to
658.503 and 658.830.
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