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 894
Senate Bill 705
Sponsored by Senator WALDEN, Representatives LUNDQUIST, WATT;
Senator DERFLER, Representatives JOHNSON, MONTGOMERY, REPINE,
TARNO
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.
Transfers farmworker camp registration from Bureau of Labor and
Industries to Department of Consumer and Business Services.
A BILL FOR AN ACT
Relating to farmworkers; creating new provisions; amending ORS
315.164, 658.015, 658.405, 658.407, 658.415, 658.417, 658.425,
658.440, 658.445, 658.450, 658.452, 658.453, 658.455, 658.465,
658.475, 658.501, 658.715, 658.750, 658.755, 658.760, 658.780,
658.785, 658.805, 658.810, 658.825 and 658.991; repealing ORS
658.827 and 658.830; and appropriating money.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 658.750 is amended to read:
658.750. (1) Every farmworker camp operator shall register with
the { - bureau - } { + Department of Consumer and Business
Services + } each farmworker camp operated by the operator.
(2) The { - bureau - } { + department + } shall establish,
by rule, procedures for annual registration of farmworker camps.
(3) Upon receipt of an initial application for registration,
the { - bureau - } { + department + } shall conduct a
preoccupancy { - inspection - } { + consultation with the
operator + } of the farmworker camp if:
(a) The camp was not registered with the department prior to
January 1, 1989, and has not been registered with the
Commissioner { + of the Bureau of Labor and Industries or the
Director of the Department of Consumer and Business Services + }
in a prior year; or
(b) The camp operator requests { - an inspection - } { + a
consultation + }.
(4) If the department has determined that the health and safety
conditions existing at the camp are not in conformance with the
rules of the department, the { - commissioner - }
{ + department + } shall not register the camp until the
department determines that the camp has been brought into
compliance.
{ - (5) The director and the commissioner shall adopt an
interagency agreement to provide for joint preoccupancy visits of
a proposed farmworker camp to insure that: - }
{ - (a) It meets the health and safety standards of the
department; - }
{ - (b) It is in conformance with other applicable laws and
rules for a farmworker camp; and - }
{ - (c) The operator has a camp indorsement if required by
ORS 658.705 to 658.850. - }
{ - (6) The interagency agreement shall provide for the
coordination of joint preoccupancy visits to allow the bureau to
conduct preoccupancy inspections and the department to conduct
preoccupancy consultations. - }
{ - (7) - } { + (5) + } Upon registration of a camp, the
{ - bureau - } { + department + } shall transmit a copy of the
registration to the
{ - department - } { + Bureau of Labor and Industries + }.
{ + (6) + } The { - bureau - } { + department + } shall
compile periodically a list of all registered camps and make the
list available to the
{ - department - } { + bureau + } and other interested
persons.
SECTION 2. { + Section 3 of this Act is added to and made a
part of ORS 658.715 to 658.850. + }
SECTION 3. { + Every farmworker camp operator shall:
(1) Post an informational notice, on a form provided by the
Department of Consumer and Business Services as set forth in
subsection (2) of this section, in an area of the farmworker camp
frequented by the occupants.
(2) The notice provided by the department under subsection (1)
of this section shall be published in English and in the language
or languages used to communicate with the occupants of the
farmworker camp and shall contain the following information:
(a) The name and address of the operator.
(b) The address and phone number of the department.
(c) A statement that inquiries regarding health and sanitation
matters or the terms and conditions of occupancy may be made to
the department.
(d) A statement that the farmworker camp is registered with the
department.
(e) A statement that agricultural activities are not subject to
the regulation of hours of employment by the Commissioner of the
Bureau of Labor and Industries, as provided in ORS 653.261
(2). + }
SECTION 4. ORS 658.755 is amended to read:
658.755. (1) Every farmworker camp operator shall:
(a) If a farm labor contractor, comply with the provisions of
ORS 658.405 to 658.503 { - and 658.830 - } .
(b) Comply with ORS chapter 654 and the administrative rules of
the Department { + of Consumer and Business Services + } adopted
pursuant to ORS chapter 654.
(c) Comply with all applicable building codes and health and
safety laws.
(d) Comply with ORS 659.280 to 659.295.
(e) Pay or distribute promptly, when due, to individuals
entitled thereto, all moneys or other things of value entrusted
to the farmworker camp operator, or agents or employees of the
operator, by any individual for that purpose.
(f) Comply with the terms and provisions of all legal and valid
agreements or contracts entered into in the operator's capacity
as an operator of a farmworker camp.
{ - (g) Post an informational notice, on a form provided by
the bureau set forth in subsection (2) of this section, in an
area of the farmworker camp frequented by occupants. - }
{ - (2) The notice provided by the bureau under subsection
(1)(g) of this section shall be published in English and in the
language used to communicate with the occupants of the farmworker
camp and shall contain the following information: - }
{ - (a) The name and address of the operator. - }
{ - (b) The address and phone number of the bureau as
specified by the commissioner. - }
{ - (c) A statement that inquiries regarding the terms and
conditions of occupancy may be made to the bureau. - }
{ - (d) A statement that the farmworker camp is registered
with the bureau. - }
{ - (e) The address and phone number of the department as
specified by the department. - }
{ - (f) A statement that inquiries regarding health and
sanitation matters may be made to the department at the address
or phone number listed. - }
{ - (3) - } { + (2) + } No farmworker camp operator shall:
(a) Operate a camp which is not registered with the
{ - bureau - } { + department + } as required by ORS 658.750.
(b) Make any material misrepresentation, false statement or
willful concealment in the application for an indorsement or
registration.
(c) Willfully make or cause to be made to any person any false,
fraudulent or misleading representation concerning the terms and
conditions of occupancy in the farmworker camp.
(d) Knowingly publish or circulate any false or misleading
information concerning the terms, conditions or existence of
housing or employment at any place.
(e) Assist a person who is not entitled to operate a farmworker
camp under ORS 658.705 to 658.850 to act in violation of ORS
658.705 to 658.850 or in violation of ORS 658.405 to 658.503
{ - and 658.830 - } or ORS chapter 654.
(f) By force, intimidation or threat in any manner whatsoever,
induce any occupant of the farmworker camp to give up any part of
the compensation the occupant is entitled to by contract or by
any state or federal wage payment law.
(g) By force, intimidation or threat in any manner whatsoever,
restrain any person who wishes to leave the camp from doing so.
SECTION 5. ORS 658.780 is amended to read:
658.780. Any individual may protest the registration of any
proposed farmworker camp and the { - commissioner - }
{ + Department of Consumer and Business Services + } shall give
the individual an opportunity to state the reasons for the
objection.
SECTION 6. ORS 658.785 is amended to read:
658.785. The { - commissioner - } { + Department of
Consumer and Business Services + } may revoke or suspend a
registration upon the
{ - commissioner's - } { + department's + } own motion or
upon complaint by an aggrieved individual if the:
{ - (1) Camp is no longer in compliance with the provisions
of ORS 658.715 to 658.850 or any rules adopted thereunder; - }
{ - (2) - } { + (1) + } Conditions under which the
registration was accepted have changed or no longer exist;
{ - (3) - } { + (2) + } Information supplied by the
operator or applicant regarding the farmworker camp included any
material misrepresentation, false statement or willful
concealment in the registration or in any procedure in the
application process; or
{ - (4) - } { + (3) + } The department finds that the camp
fails to comply with the requirements of ORS chapter 654 and the
regulations adopted thereunder.
SECTION 7. ORS 658.805 is amended to read:
658.805. (1) Except to appeal from an act or determination of
the Commissioner { + of the Bureau of Labor and Industries or
the Department of Consumer and Business Services + }, no person
operating a farmworker camp, as defined in ORS 658.705
{ - (7) - } , is entitled to demand, receive or accept any fee
directly or indirectly or maintain any suit or action in the
courts of this state involving the farmworker camp, without
alleging and proving that the person was registered or indorsed
to operate a farmworker camp.
(2) The commissioner, Director { + of the Department of
Consumer and Business Services + } or any local governmental
agency may bring suit in any court of competent jurisdiction to
enjoin any person from violating any of the provisions of ORS
658.705 to 658.850, or rules adopted pursuant thereto, and from
committing future violations.
(3) Any aggrieved person may bring suit in any court of
competent jurisdiction to enjoin any person violating ORS 658.715
(1) or 658.755 { - (3)(a) - } { + (2)(a) + } from violating
any of the provisions of ORS 658.705 to 658.850, or rules adopted
pursuant thereto, and from committing future violations.
(4) In actions brought pursuant to this section, the court may
award to the prevailing party costs and disbursements and a
reasonable attorney fee. In addition, if damages are found, the
amount of damages recoverable from a farmworker camp operator who
is subject to suit pursuant to subsection (3) of this section who
violates ORS 658.705 to 658.850 is actual damages or $500,
whichever is greater.
SECTION 8. ORS 658.810 is amended to read:
658.810. Fees required shall be paid to the Commissioner
{ + of the Bureau of Labor and Industries + } but shall not
exceed:
(1) For each new farmworker camp indorsement, $50.
(2) For each renewal of a farmworker camp indorsement, $25.
{ - (3) For each preoccupancy inspection, $75. - }
{ - (4) For each initial camp registration application under
ORS 658.750, $25. - }
{ - (5) For each renewal registration, $10. - }
SECTION 9. ORS 658.825 is amended to read:
658.825. The Commissioner { + of the Bureau of Labor and
Industries + } shall not revoke, suspend or refuse to renew or
reissue an indorsement { - or registration - } under ORS
658.740 { - or 658.785 - } or any rule adopted thereunder, or
assess penalties under ORS 658.850 for violations of ORS chapter
654 or any rule adopted thereunder unless the Department { + of
Consumer and Business Services + } has determined that the
operator has failed to comply with ORS chapter 654 or any rules
adopted thereunder.
SECTION 10. ORS 658.015 is amended to read:
658.015. (1) ORS 658.005 to 658.245 do not apply to farm labor
contractors subject to ORS 658.405 to 658.503 { - and
658.830 - } .
(2) ORS 658.005 to 658.245 do not apply to any nonprofit
organization or corporation organized for the purpose of economic
adjustment, civic betterment and the giving of vocational
guidance and placement to its members, when all of the following
requirements are met:
(a) None of its directors, officers or employees are deriving
any profit beyond a nominal salary for services performed on its
behalf.
(b) Membership dues and fees are used solely for the
maintenance of the organization or corporation.
(c) No fee is charged for employment services.
(d) On request of the Commissioner { + of the Bureau of Labor
and Industries + }, the organization or corporation files with
the commissioner, on or before the first day of April of each
year, a copy of its constitution or articles of incorporation and
its bylaws, together with a sworn statement setting forth its
place of business; the names and addresses of its officers,
directors and employees, the salaries they receive and the
services they actually perform; and the various benefits
furnished to its members.
(3) As used in subsection (2) of this section:
(a) 'Civic betterment' means the promotion of the common good
and general welfare of the people of this state or any political
subdivision therein.
(b) 'Economic adjustment' means the promotion of a program by
which individuals are helped to acquire new vocational skills,
add to their existing vocational skills or change their type of
vocation.
(4) ORS 658.005 to 658.245 do not apply to a bona fide labor
organization of workers or a nonprofit organization or
corporation that has been formed in good faith for the
regulation, promotion and advancement of the general professional
interests of its members and that incidentally maintains a
placement service principally engaged in securing employment for
such members.
SECTION 11. 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) '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 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 which 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.
(2) '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.
(3) 'Commissioner' means the Commissioner of the Bureau of
Labor and Industries.
SECTION 12. 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 - } .
SECTION 13. 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
shall be based on the maximum number of employees the contractor
employs at any time during the year. The bond or letter of credit
shall be:
(a) $10,000 if the contractor employs no more than 20
employees;
(b) $30,000 if the contractor employs 21 to 50 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 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:
(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:
(a) The right of action is assignable and must be included with
an assignment of a wage claim, 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 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 14. ORS 658.417 is amended to read:
658.417. In addition to the regulation otherwise imposed upon
farm labor contractors pursuant to ORS 658.405 to 658.503
{ - and 658.830 - } , a person who acts as a farm labor
contractor with regard to the forestation or reforestation of
lands shall:
(1) Obtain a special indorsement from the Commissioner of the
Bureau of Labor and Industries on the license required by ORS
658.410 that authorizes the person to act as a farm labor
contractor with regard to the forestation or reforestation of
lands.
(2) Pay a license fee of $100, in lieu of the fee prescribed in
ORS 658.415 (6).
(3) Provide to the Commissioner of the Bureau of Labor and
Industries a certified true copy of all payroll records for work
done as a farm labor contractor when the contractor pays
employees directly. The records shall be submitted in such form
and at such times and shall contain such information as the
commissioner, by rule, may prescribe.
(4) Provide workers' compensation insurance for each individual
who performs manual labor in forestation or reforestation
activities regardless of the business form of the contractor and
regardless of any contractual relationship which may be alleged
to exist between the contractor and the workers notwithstanding
any provision of ORS chapter 656, unless workers' compensation
insurance is otherwise provided.
SECTION 15. ORS 658.425 is amended to read:
658.425. (1) The office of the Bureau of Labor and Industries
in which an application is filed shall issue to the applicant a
temporary permit valid for not more than 60 days, if the
following conditions are satisfied:
(a) The application is complete on its face.
(b) The applicant has furnished satisfactory evidence of
adequate insurance under rules issued by the Bureau of Labor and
Industries.
(c) The applicant has paid in advance the fee required by ORS
658.415 (6) or 658.417, as the case may be.
(d) The applicant or any person financially interested in the
applicant's proposed operation as a farm labor contractor,
whether as a partner, shareholder, associate, profitsharer or
otherwise, has not been denied a license in a jurisdiction other
than Oregon or under ORS 658.405 to 658.503 { - and 658.830 - }
within the preceding three years, nor has had such a license
revoked or suspended in Oregon or any other jurisdiction within
the preceding three years, as appears of record with the
Commissioner of the Bureau of Labor and Industries.
(2) Any temporary permit expires immediately if the
commissioner rejects the application of the person holding that
permit.
(3) For the purposes of ORS 658.415 (1)(c) and (d) and
subsection (1)(d) of this section, the refusal by the
commissioner to renew a license shall be considered as the
revocation of that license on the date of its expiration.
SECTION 16. ORS 658.440 is amended to read:
658.440. (1) Each person acting as a farm labor contractor
shall:
(a) Carry a labor contractor's license at all times and exhibit
it upon request to any person with whom the contractor intends to
deal in the capacity of a farm labor contractor.
(b) File immediately at the United States post office serving
the labor contractor's address, as noted on the face of the
license, a correct change of address if the contractor
permanently changes address, and notify the Commissioner of the
Bureau of Labor and Industries each time an address change is
made.
(c) Pay or distribute promptly, when due, to the individuals
entitled thereto all money or other things of value entrusted to
the labor contractor by any person for that purpose.
(d) Comply with the terms and provisions of all legal and valid
agreements or contracts entered into in the contractor's capacity
as a farm labor contractor.
(e) File with the Bureau of Labor and Industries, as required
by rule, information relating to work agreements between the farm
labor contractor and farmers and between the farm labor
contractor and workers or information concerning changes in the
circumstances under which the license was issued.
(f) Furnish to each worker, at the time of hiring, recruiting,
soliciting or supplying, whichever occurs first, a written
statement in the English language and any other language used by
the farm labor contractor to communicate with the workers that
contains a description of:
(A) The method of computing the rate of compensation.
(B) The terms and conditions of any bonus offered, including
the manner of determining when the bonus is earned.
(C) The terms and conditions of any loan made to the worker.
(D) The conditions of any housing, health and day care services
to be provided.
(E) The terms and conditions of employment, including the
approximate length of season or period of employment and the
approximate starting and ending dates thereof.
(F) The terms and conditions under which the worker is
furnished clothing or equipment.
(G) The name and address of the owner of all operations where
the worker will be working as a result of being recruited,
solicited, supplied or employed by the farm labor contractor.
(H) The existence of a labor dispute at the worksite.
(I) The worker's rights and remedies under ORS chapters 654 and
656, ORS 658.405 to 658.503 { - and 658.830 - } , the Service
Contract Act (41 U.S.C. �� 351-401) and any other such law
specified by the Commissioner of the Bureau of Labor and
Industries, in plain and simple language in a form specified by
the commissioner.
(g) At the time of hiring and prior to the worker performing
any work for the farm labor contractor, execute a written
agreement between the worker and the farm labor contractor
containing the terms and conditions described in paragraph (f)(A)
to (I) of this subsection. The written agreement shall be in the
English language and any other language used by the farm labor
contractor to communicate with the workers.
(h) Furnish to the worker each time the worker receives a
compensation payment from the farm labor contractor, a written
statement itemizing the total payment and amount and purpose of
each deduction therefrom, hours worked and rate of pay or rate of
pay and pieces done if the work is done on a piece rate basis,
and if the work is done under the Service Contract Act (41
U.S.C. �� 351-401) or related federal or state law, a written
statement of any applicable prevailing wage.
(2) If the farm labor contractor:
(a) Employs workers, the contractor shall substantially comply
with the provisions of ORS 654.174 relating to field sanitation,
and its implementing regulations as adopted by the Department of
Consumer and Business Services.
(b) Owns or controls housing furnished to workers in connection
with the recruitment or employment of workers, the contractor
shall assure that the housing substantially complies with any
applicable law relating to the health, safety or habitability of
the housing.
(c) Recruits or solicits any worker to travel from one place to
another for the purpose of working at a time prior to the
availability of such employment, the contractor shall furnish to
any such worker, at no charge, lodging and an adequate supply of
food until employment begins, in compliance with rules adopted by
the Bureau of Labor and Industries. If employment does not begin
within 30 days from the date the farm labor contractor
represented employment would become available, the contractor
shall refund to any such worker all sums paid by the worker to
the contractor and provide the worker, in cash or other form of
payment authorized by ORS 652.110, the costs of transportation,
including meals and lodging in transit, to return the worker to
the place from which the worker was induced to travel or the
costs of transportation, including meals and lodging in transit,
to another worksite selected by the worker, whichever is less.
For the purposes of this paragraph, 'recruits or solicits' does
not include the mere provision of housing or employment to
persons who have not otherwise been recruited or solicited by the
farm labor contractor or an agent of the farm labor contractor
prior to their arrival at the place of housing or employment.
Workers who arrive at the place of employment prior to the date
they were instructed by the contractor to arrive are not entitled
to the benefits of this subsection until the date they were
instructed to arrive.
(3) No person acting as a farm labor contractor, or applying
for a license to act as a farm labor contractor, shall:
(a) Make any misrepresentation, false statement or willful
concealment in the application for a license.
(b) Willfully make or cause to be made to any person any false,
fraudulent or misleading representation, or publish or circulate
any false, fraudulent or misleading information concerning the
terms, condition or existence of employment at any place or by
any person.
(c) Solicit or induce, or cause to be solicited or induced, the
violation of an existing contract of employment.
(d) Knowingly employ an alien not legally present or legally
employable in the United States.
(e) Assist an unlicensed person to act in violation of ORS
658.405 to 658.503 { - and 658.830 - } .
(f) By force, intimidation or threat of procuring dismissal or
deportation or by any other manner whatsoever, induce any worker
employed or in a subcontracting relationship to the farm labor
contractor to give up any part of the compensation to which the
worker is entitled under the contract of employment or under
federal or state wage laws.
(g) Solicit or induce, or cause to be solicited or induced, the
travel of a worker from one place to another by representing to a
worker that employment for the worker is available at the
destination when employment for the worker is not available
within 30 days after the date the work was represented as being
available.
SECTION 17. ORS 658.445 is amended to read:
658.445. The Commissioner of the Bureau of Labor and Industries
may revoke, suspend or refuse to renew a license to act as a
labor contractor upon the commissioner's own motion or upon
complaint by any individual, if:
(1) The licensee or agent has violated or failed to comply with
any provision of ORS 658.405 to 658.503 { - and 658.830 and ORS
658.991 (2) and (3) - } ; or
(2) The conditions under which the license was issued have
changed or no longer exist; or
(3) The licensee's character, reliability or competence makes
the licensee unfit to act as a farm labor contractor.
SECTION 18. ORS 658.450 is amended to read:
658.450. (1) All proceedings relating to the issuance,
revocation, suspension, renewal or refusal to renew a license to
act as a farm labor contractor shall be conducted under ORS
183.310 to 183.550.
(2) All rules of the Bureau of Labor and Industries under ORS
658.405 to 658.503 { - and 658.830 - } shall be issued in
compliance with ORS 183.310 to 183.550.
SECTION 19. ORS 658.452 is amended to read:
658.452. No farm labor contractor or employer shall discharge
or in any other manner discriminate against any employee because:
(1) The employee has made a claim against the farm labor
contractor or employer for compensation for the employee's own
personal services.
(2) The employee has caused to be instituted any proceedings
under or related to ORS 658.405 to 658.503 { - and 658.830 - }
.
(3) The employee has testified or is about to testify in any
such proceedings.
(4) The employee has discussed or consulted with anyone
concerning the employee's rights under ORS 658.405 to 658.503
{ - and 658.830 - } .
SECTION 20. ORS 658.453 is amended to read:
658.453. (1) In addition to any other penalty provided by law,
the Commissioner of the Bureau of Labor and Industries may assess
a civil penalty not to exceed $2,000 for each violation by:
(a) A farm labor contractor who, without the license required
by ORS 658.405 to 658.503 { - and 658.830 - } , recruits,
solicits, supplies or employs a worker.
(b) A farm labor contractor who fails to comply with ORS
658.415 (15).
(c) A farm labor contractor who fails to comply with ORS
658.440 (1), (2)(c) or (3).
(d) Any person who violates ORS 658.452.
(e) A farm labor contractor who fails to comply with ORS
658.417 (1), (3) or (4).
(f) Any person who uses an unlicensed farm labor contractor
without complying with ORS 658.437.
(2) Civil penalties under this section shall be imposed as
provided in ORS 183.090.
(3) All penalties recovered under this section shall be paid
into the State Treasury and credited to the Housing Development
Account of the Housing and Community Services Department for the
purpose of providing technical assistance for development of
farmworker housing.
(4) After filing a complaint with the Commissioner of the
Bureau of Labor and Industries, in addition to any other penalty
provided by law, a worker has a right of action against a farm
labor contractor who violates subsection (1)(c), (d) or (e) of
this section or ORS 658.440 (2)(a) or (b) without exhausting any
alternative administrative remedies. No such action may be
commenced later than two years after the date of the violation
giving rise to the right of action. The amount of damages
recoverable for each violation under this subsection is actual
damages or $1,000, whichever amount is greater. In any such
action the court may award to the prevailing party, in addition
to costs and disbursements, reasonable attorney fees at trial and
appeal.
SECTION 21. ORS 658.455 is amended to read:
658.455. Except as provided in ORS 658.453 (3), all fees and
other money received by the Commissioner of the Bureau of Labor
and Industries under ORS 658.405 to 658.503 { - and 658.830 - }
shall be credited to the Bureau of Labor and Industries Account
and are continuously appropriated to the account and shall be
used only for the administration of ORS 658.405 to 658.503 unless
the money received is under a bond or deposit as provided in ORS
658.415 (3).
SECTION 22. ORS 658.465 is amended to read:
658.465. (1) Any person who knowingly uses the services of an
unlicensed farm labor contractor shall be personally, jointly and
severally liable with the person acting as a farm labor
contractor to the same extent and in the same manner as provided
in ORS 658.453 (4).
(2) No surety insurer shall provide any bond, undertaking,
recognizance or other obligation for the purpose of securing or
guaranteeing any act, duty or obligation, or the refraining from
any act with respect to a contract using the services of a farm
labor contractor unless the farm labor contractor has a valid
license issued pursuant to ORS 658.405 to 658.503 { - and
658.830 - } at the time of issuance of the bond, undertaking,
recognizance or other obligation.
SECTION 23. ORS 658.475 is amended to read:
658.475. The Commissioner of the Bureau of Labor and
Industries, or any other person, may bring suit in any court of
competent jurisdiction to enjoin any person from using the
services of an unlicensed farm labor contractor or to enjoin any
person acting as a farm labor contractor in violation of ORS
658.405 to 658.503 { - and 658.830 - } , or rules promulgated
pursuant thereto, from committing future violations. The court
may award to the prevailing party costs and disbursements and a
reasonable attorney fee. In addition, the amount of damages
recoverable from a person acting as a farm labor contractor with
regard to the forestation or reforestation of lands who violates
ORS 658.410, 658.417 (3) or (4) or 658.440 (3)(e) is actual
damages or $500, whichever amount is greater.
SECTION 24. ORS 658.501 is amended to read:
658.501. ORS 658.405 to 658.503 { - and 658.830 - } apply to
all transactions, acts and omissions of farm labor contractors
and users of farm labor contractors that are within the
constitutional power of the state to regulate, and not preempted
by federal law, including but not limited to the recruitment of
workers in this state to perform work outside this state, the
recruitment of workers outside of this state to perform work in
whole or in part within this state, the housing of workers in
this state for work in another state, the housing of workers from
another state in connection with work to be performed in this
state, the transportation of workers through this state and the
payment, terms and conditions, disclosure and record keeping
required with respect to work performed outside this state by
workers recruited in this state.
SECTION 25. ORS 658.715 is amended to read:
658.715. (1) No person shall operate a farmworker camp unless:
(a) The person is a farm labor contractor licensed under ORS
658.405 to 658.503 { - and 658.830 - } , and the contractor
first obtains an indorsement to do so as provided in ORS 658.730;
or
(b) The person:
(A) Has a substantial ownership interest in the real property,
subject to special farm use assessment under ORS
{ - chapter - } 308.345 to 308.406, on which the camp is
located or has any form of ownership interest in a business
organization that operates the farmworker camp and files a
schedule F as part of an income tax return in the preceding tax
year; or
(B) Is related by blood or marriage to any person who has a
substantial ownership interest in the real property, subject to
special farm use assessment under ORS 308.345 to 308.406, on
which the camp is located or has any form of ownership interest
in the business organization that operates the farmworker camp
and files a schedule F as part of an income tax return in the
preceding tax year.
(2) Nothing in ORS 658.705 to 658.850 requires a permanent
employee of a farmworker camp operator, who has no financial
interest in the camp other than the wages paid to the employee,
to obtain a camp indorsement.
SECTION 26. ORS 658.760 is amended to read:
658.760. (1) No farmworker camp operator shall discharge, evict
or in any other manner discriminate against any person because
that person:
(a) Has made a claim against the operator or employer for
compensation for the occupant's own personal services.
(b) Has caused to be instituted any proceedings under or
related to ORS 658.705 to 658.850.
(c) Has testified or is about to testify in any such
proceedings.
(d) Has discussed or consulted with anyone concerning the
occupant's rights under ORS 658.405 to 658.503 { - and
658.830 - } or 658.705 to 658.850.
(2) The aggrieved person shall have the burden of proving that
the discrimination was because of the protected activity.
SECTION 27. ORS 658.991 is amended to read:
658.991. (1) Violation of ORS 658.005 to 658.245 is punishable,
upon conviction, by a fine of not more than $250 or by
imprisonment in the county jail for not more than 60 days, or by
both.
(2) Violation of ORS 658.452 is a Class A misdemeanor.
(3) Any person who intentionally defaces, alters or changes a
license or permit to act as a farm labor contractor, or who uses
the license or permit of another or knowingly permits that
person's license or permit to be used by another, or who acts as
a farm labor contractor without a valid license or permit under
ORS 658.405 to 658.503, is guilty of a Class A misdemeanor.
(4) Any person who willfully swears or affirms falsely under
ORS 658.415 (1), (2) or (3) in regard to any matter concerning
which an oath or affirmation is required, or who solicits or
induces another person to do so, whether or not the matter sworn
to or affirmed is material, is guilty of a Class A misdemeanor.
(5) Violation of ORS 658.440 (1)(f), (g) or (h), (2)(c) or
(3)(a), (b), (c), (e), (f) or (g) is a Class C misdemeanor.
(6) Any person who violates the provisions of ORS 658.410 (1)
or 658.417 (1) is guilty of a Class C felony if:
(a) The person has previously been convicted of violating the
provisions of ORS 658.410 (1) or 658.417 (1);
(b) The person's license to act as a farm labor contractor has
been suspended, revoked or denied; or
(c) The person is acting in violation of an outstanding order
of any court of competent jurisdiction arising out of the
enforcement of ORS 658.405 to 658.503 { - and 658.830 - } .
SECTION 28. ORS 315.164 is amended to read:
315.164. (1) As used in this section:
(a) 'Condition of habitability' means a condition that is in
compliance with:
(A) The applicable provisions of the state building code under
ORS chapter 455 and the rules adopted thereunder; or
(B) If determined on or before December 31, 1995, sections 12
and 13, chapter 964, Oregon Laws 1989.
(b) 'Eligible costs' includes finance costs, construction
costs, excavation costs and permit costs and excludes land costs.
(c) 'Rehabilitation' means to restore and reinstate a building
to a condition of habitability.
(d) 'Seasonal farmworker' means any person who, for an agreed
remuneration or rate of pay, performs temporary labor for another
in the production of farm products or in the planting,
cultivating or harvesting of seasonal agricultural crops or in
the 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.
(e) 'Seasonal farmworker housing' means housing limited to
occupancy by seasonal farmworkers and their immediate families
which is occupied no more than nine months of the year.
(f) 'Seasonal farmworker housing project' means construction or
rehabilitation of seasonal farmworker housing.
(g) 'Year-round farmworker housing' means housing limited to
occupancy by farmworkers and their immediate families.
(h) 'Year-round farmworker housing project' means construction
or rehabilitation of farmworker housing.
(2) A resident individual is allowed a credit against the taxes
otherwise due under { + ORS + } chapter 316 or, if the taxpayer
is a corporation, the credit shall be allowed against taxes
otherwise due under ORS chapter 317. The amount of the credit
shall be equal to 50 percent of the eligible costs actually paid
or incurred to complete a seasonal or year-round farmworker
housing project.
(3) The credit allowed under subsection (2) of this section
shall be taken in five equal installments over a period of five
consecutive tax years beginning in the tax year of the taxpayer
during which the project is completed.
(4) The credit shall apply only to a seasonal or a year-round
farmworker housing project that is physically begun on or after
January 1, 1990.
(5) Except as provided under subsection (6) of this section,
the credit allowed in any one year shall not exceed the tax
liability of the taxpayer.
(6) Any tax credit otherwise allowable under this section which
is not used by the taxpayer in a particular tax year may be
carried forward and offset against the taxpayer's tax liability
for the next succeeding tax year. Any credit remaining unused in
such next succeeding tax year may be carried forward and used in
the second succeeding tax year, and likewise any credit not used
in that second succeeding tax year may be carried forward and
used in the third succeeding tax year, and any credit not used in
that third succeeding tax year may be carried forward and used in
the fourth succeeding tax year, and any credit not used in that
fourth succeeding tax year may be carried forward and used in the
fifth succeeding tax year, but may not be carried forward for any
tax year thereafter.
(7)(a) The credit provided by this section is not in lieu of
any depreciation or amortization deduction for the project to
which the taxpayer otherwise may be entitled under ORS chapter
316 or 317 for such year.
(b) The taxpayer's adjusted basis for determining gain or loss
shall not be further decreased by any tax credits allowed under
this section.
(8)(a) If the taxpayer is a person who is not, and will not be,
the owner or operator of the seasonal or year-round farmworker
housing, the taxpayer is entitled to the credit allowed under
this section only if, upon completion of the seasonal or
year-round farmworker housing project and first occupation by
farmworkers, the housing complies with all safety or health laws,
rules, regulations and standards applicable for farmworker
housing.
(b) If the taxpayer is a person who is, or will be, the owner
or operator of the seasonal or year-round farmworker housing at
any time during the period for which the credit is claimed, the
housing must:
(A) { - Be inspected by the Department of Consumer and
Business Services prior to occupancy and must - } Comply with
all occupational safety or health laws, rules, regulations and
standards;
(B) If registration is required, be registered as a farmworker
camp with the { - Bureau of Labor and Industries - }
{ + Department of Consumer and Business Services + } under ORS
658.750; and
(C) Upon occupancy and if an indorsement is required, be
operated by a person who holds a valid indorsement as a
farm-worker camp operator under ORS 658.730.
(c) For purposes of this section, 'owner' does not include a
person whose only interest in the housing is as holder of a
security interest.
(9)(a) Pursuant to the procedures for a contested case under
ORS 183.310 to 183.550, the department may order the disallowance
of the credit allowed under this section if it finds, by order,
that:
(A) The credit was obtained by fraud or misrepresentation; or
(B) In the event that an owner or operator claims or claimed
the credit:
(i) The taxpayer has failed substantially to comply with the
occupational safety or health laws, rules, regulations or
standards; or
(ii) After occupancy and if registration is required, the
seasonal or year-round farmworker housing is not registered as a
farmworker camp with the { - Bureau of Labor and Industries - }
{ + Department of Consumer and Business Services + } under ORS
658.750; or
(iii) After occupancy and if an indorsement is required, the
seasonal or year-round farmworker housing is not operated by a
person who holds a valid indorsement as a farmworker camp
operator under ORS 658.730.
(b) If the tax credit is disallowed pursuant to this
subsection, notwithstanding ORS 314.410 or other law, all prior
tax relief provided to the taxpayer shall be forfeited and the
department shall proceed to collect those taxes not paid by the
taxpayer as a result of the prior granting of the credit.
(c) If the tax credit is disallowed pursuant to this
subsection, the taxpayer shall be denied any further credit
provided under this section, in connection with the seasonal or
year-round farmworker housing project, as the case may be, from
and after the date that the order of disallowance becomes final.
(10) In the event that the farmworker housing is destroyed by
fire, flood, natural disaster or act of God before all of the
credit has been used, the taxpayer may nevertheless claim the
credit as if no destruction had taken place. In the event of
fire, if the fire chief of the fire protection district or unit
determines that the fire was caused by arson, as defined in ORS
164.315 and 164.325, by the taxpayer or by another at the
taxpayer's direction, then the fire chief shall notify the
department. Upon conviction of arson, the department shall
disallow the credit in accordance with subsection (9) of this
section.
(11)(a) A nonresident individual shall be allowed the credit
computed in the same manner and subject to the same limitations
as the credit allowed a resident by this section. However, the
credit shall be prorated using the proportion provided in ORS
316.117.
(b) If a change in the taxable year of a taxpayer occurs as
described in ORS 314.085, or if the department terminates the
taxpayer's taxable year under ORS 314.440, the credit allowed by
this section shall be prorated or computed in a manner consistent
with ORS 314.085.
(c) If a change in the status of a taxpayer from resident to
nonresident or from nonresident to resident occurs, the credit
allowed by this section shall be determined in a manner
consistent with ORS 316.117.
(12) The department may adopt rules for carrying out the
provisions of this section.
SECTION 29. { + The duties, functions and powers of the Bureau
of Labor and Industries to carry out the provisions of ORS
658.750, 658.780 and 658.785 are transferred to the Department of
Consumer and Business Services. + }
SECTION 30. { + The Commissioner of the Bureau of Labor and
Industries shall deliver to the Director of the Department of
Consumer and Business Services all records and property within
the jurisdiction of the commissioner that relate to the duties,
functions and powers transferred under section 29 of this
Act. + }
SECTION 31. { + Any proceeding, action, prosecution or other
business or matter undertaken or commenced before the effective
date of this Act by the Commissioner of the Bureau of Labor and
Industries with respect to the duties, functions or powers
transferred to the Department of Consumer and Business Services
by section 29 of this Act, and still pending on the effective
date of this Act, may be conducted and completed by the
department in the same manner, under the same terms and
conditions and with the same effect as though undertaken,
conducted or completed by the commissioner before the
transfer. + }
SECTION 32. { + Nothing in this Act relieves any person of any
obligation with respect to a tax, fee, fine or other charge,
interest, penalty, forfeiture or other liability, duty or
obligation. + }
SECTION 33. { + The Department of Consumer and Business
Services to which duties, functions and powers are assigned and
transferred by section 29 of this Act is considered to be a
continuation of the Bureau of Labor and Industries with respect
to such duties, functions and powers, and not a new authority,
for the purpose of succession to all rights and obligations of
the bureau as constituted at the time of such assignment or
transfer, except as otherwise provided by this Act, with the same
force and effect as if such duties, functions and powers had not
been assigned or transferred. + }
SECTION 34. { + The lawful rules of the Bureau of Labor and
Industries with respect to duties, functions or powers assigned
or transferred by this Act continue in effect until superseded or
rescinded by rules lawfully adopted by the Department of Consumer
and Business Services to which was transferred the duty, function
or power to which the rules apply. + }
SECTION 35. { + Section 36 of this Act is added to and made a
part of ORS 658.705 to 658.850. + }
SECTION 36. { + There hereby is established in the General
Fund in the State Treasury an account to be known as the
Farmworker Camp Account. All moneys in the account are
appropriated continuously to the Department of Consumer and
Business Services for the administration of ORS 658.705 to
658.850. + }
SECTION 37. { + ORS 658.827 and 658.830 are repealed. + }
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