Chapter 399 Oregon Laws 1999

Session Law

AN ACT

SB 179

Relating to farm labor contractor licensing fees; creating new provisions; amending ORS 658.415, 658.417, 658.425, 658.435, 658.455, 658.810 and 658.815; and appropriating money.

SECTION 1. Section 2 of this 1999 Act is added to and made a part of ORS 658.405 to 658.503.

SECTION 2. (1) The Commissioner of the Bureau of Labor and Industries shall establish by rule a fee schedule for issuing and renewing licenses and indorsements under ORS 658.405 to 658.503 and 658.705 to 658.850. The fees shall be in amounts reasonably necessary to provide sufficient funds to administer ORS 658.405 to 658.503 and 658.705 to 658.850. Fees may not exceed the following amounts:

(a) $100 for a farm labor contractor license.

(b) $100 for a farm labor contractor license with employee indorsement.

(c) $250 for a farm labor contractor license with forestation or reforestation indorsement.

(d) $250 for a farm labor contractor license with forestation or reforestation indorsement subject to ORS 658.418.

(e) $250 for a farm labor contractor license with employee and forestation or reforestation indorsements.

(f) $50 for a farmworker camp indorsement, paid in addition to one of the fees set out in paragraphs (a) to (e) of this subsection.

(2) An applicant for a license or indorsement, or for the renewal of a license or indorsement, shall pay the fee or fees established by the commissioner under subsection (1) of this section.

(3) Fees may not be refunded or prorated.

(4) All fees received pursuant to this section shall be credited to the Bureau of Labor and Industries Account and are continuously appropriated to the Bureau of Labor and Industries to be used only for the administration of ORS 658.405 to 658.503 and 658.705 to 658.850.

SECTION 3. 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] under 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. 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] commissioner 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, 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 the cash deposit, shall be based on the maximum number of employees the contractor employs at any time during the year. The bond or 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] under ORS 658.416, if the contractor employs 21 or more 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] that 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] commissioner 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] that would be covered by the bond 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 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 [can] may be canceled or otherwise terminated.

(6) Each application must be accompanied by [a] the fee [of $20] established under section 2 of this 1999 Act.

(7) Any person who uses the services of a farm labor contractor 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 for the work done for that person.

(b) Be personally liable for all penalty wages [which] that have occurred under ORS 652.150 for the wages due under this section.

(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 shall have a right of action in the name of the person against the surety upon the bond or against the deposit with the commissioner. The right of action:

(a) Is assignable and must be included with an assignment of a wage claim, of any other appropriate claim, or of a judgment thereon.

(b) 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 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] shall be paid in part.

(10) [No] A person [shall] may not bring any suit or action against the surety company or the commissioner on the 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 or the commissioner still has funds [which] that are applicable to the person's judgment or acknowledgment.

(11) The commissioner [shall] may not be prevented from accepting assignments of wage claims and enforcing liability against the surety on the bond or from applying the deposit to just wage claims filed with the commissioner.

(12) All claims against the bond 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 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 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 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 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 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 farm 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] that 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 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.

___________________________________________________________________

(18) A person who cosigns with a farm labor contractor for a bond required by subsection (3) of this section is not personally or jointly and severally liable for unpaid wages above the amount of the bond solely because the person cosigned for the bond.

(19) The court may award reasonable attorney fees to the prevailing party in any action to enforce the provisions of this section.

SECTION 4. 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)] the fee established under section 2 of this 1999 Act.

(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] that 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 5. 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 Commissioner of 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] established under section 2 of this 1999 Act.

(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 6. ORS 658.435 is amended to read:

658.435. (1) Each license shall expire one year following the date of its issuance unless sooner revoked by the Commissioner of the Bureau of Labor and Industries.

(2) Applications for renewal of the license shall be made 30 days prior to the expiration date by payment of the fee [required pursuant to ORS 658.415 (6) or 658.417 (2)] established under section 2 of this 1999 Act, but the commissioner may require any person seeking renewal to file a new application under ORS 658.415 (1) and (2) and may conduct a new investigation of the applicant's character, competence and reliability, and of any other matter relating to the manner by which the applicant proposes to conduct and has conducted operations as a farm labor contractor.

SECTION 7. ORS 658.455 is amended to read:

658.455. Except as provided in ORS 658.453 (3) and 658.815, and except for money received under a bond or deposit as provided in ORS 658.415 (3) and 658.735 (1), 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] 658.715 to 658.850 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)] and used as provided in section 2 of this 1999 Act.

SECTION 8. ORS 658.810 is amended to read:

658.810. Fees required for farmworker camp indorsements shall be established under section 2 of this 1999 Act. [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.]

SECTION 9. ORS 658.815 is amended to read:

658.815. [(1) All fees received by the Commissioner of the Bureau of Labor and Industries under ORS 658.715 to 658.850 shall be credited to the Bureau of Labor and Industries Account and shall be used for the administration of ORS 658.705 to 658.850.]

[(2)] All moneys other than fees described in [subsection (1) of this section] section 2 of this 1999 Act received by the commissioner under ORS 658.715 to 658.850 shall be credited to the General Fund.

Approved by the Governor June 29, 1999

Filed in the office of Secretary of State June 30, 1999

Effective date October 23, 1999

__________