Chapter 144
AN ACT
HB 2372
Relating to breast-feeding; creating new
provisions; and amending ORS 243.650, 653.077 and 653.256.
Be It Enacted by the People of
the State of
SECTION 1. ORS 653.077 is amended to read:
653.077. (1) As used in this section:
(a) “Reasonable efforts”
means efforts that do not impose an undue hardship on the operation of an
employer’s business.
(b) “Undue hardship”
means significant difficulty or expense when considered in relation to the
size, financial resources, nature or structure of the employer’s business.
[(1)] (2)(a) An employer [may] shall provide reasonable
unpaid rest periods to accommodate an employee who needs to express milk for
her child.
(b) The employee
shall [notify] provide reasonable
notice to the employer that the employee intends to express milk upon
returning to work. [The employee shall,
if feasible, take the rest periods to express milk at the same time as rest
periods that are otherwise provided to the employee. The employer may provide
the employee up to 60 minutes in rest periods per eight-hour shift to express
milk.]
(c) Unless otherwise
agreed to by the employer and the employee, the employer shall provide the
employee a 30-minute rest period to express milk during each four-hour work
period, or the major part of a four-hour work period, to be taken by the
employee approximately in the middle of the work period.
(d) The employee shall,
if feasible, take the rest periods to express milk at the same time as the rest
periods or meal periods that are otherwise provided to the employee.
(e) If the employer is required by law or
contract to provide the employee with paid rest periods, the employer shall
treat the rest periods used by the employee for expressing milk as paid rest
periods, up to the amount of time the employer is required to provide as paid
rest periods. If an employee takes unpaid rest periods, the employer may allow
the employee to work before or after her normal shift to make up the amount of
time used during the unpaid rest periods. If the employee does not work to make
up the amount of time used during the unpaid rest periods, the employer is not
required to compensate the employee for that time.
(3) When an employer’s
contribution to an employee’s health insurance is influenced by the number of
hours the employee works, the employer shall treat any unpaid rest periods used
by the employee to express milk as paid work time for the purpose of measuring
the number of hours the employee works.
(4) An employer is not
required to provide rest periods under this section if to do so would impose an
undue hardship on the operation of the employer’s business.
[(2)(a)] (5)(a) An employer [may] shall make reasonable efforts to
provide a [room or other] location,
other than a public restroom or toilet stall, in close proximity to the
employee’s work area for the employee to express milk in private.
(b) The [room or other] location may include,
but is not limited to:
(A) The employee’s work
area if the work area meets the requirements of paragraph (a) of this
subsection; [or]
(B) A room connected
to a public restroom, such as a lounge, if the room allows the employee to
express milk in private; or
[(B)] (C) A child care facility in close proximity to the
employee’s work location where the employee can express milk in private.
[(3)] (6) An employer may allow an
employee to temporarily change job duties if the employee’s regular job duties
do not allow her to express milk.
[(4)] (7) This section applies only
to an employer whose employee is expressing milk for [a] her child 18 months of age or younger.
[(5)] (8) This section applies only to employers who employ
25 or more employees in the State of Oregon for each working day during each of
20 or more calendar workweeks in the year in which the rest periods are to be
taken or in the year immediately preceding the year in which the rest periods
are to be taken.
(9) Notwithstanding
ORS 653.020 (3), this section applies to individuals engaged in administrative,
executive or professional work as described in ORS 653.020 (3).
(10)(a) In addition to,
and not in lieu of, any other requirement under this section, each school
district board shall adopt a policy regarding breast-feeding in the workplace
to accommodate an employee who needs to express milk for her child.
(b) Each policy must, at
a minimum, designate a location at the school facility, other than a public
restroom or toilet stall, in close proximity to the employee’s work area for
the employee to express milk in private.
(c) A policy adopted
under this subsection, including the designated locations where an employee may
express milk, must be published in an employee handbook. In addition, a list of
the designated locations must be readily available, upon request, in the
central office of each school facility and in the central administrative office
for each school district.
(11) The Commissioner of
the Bureau of Labor and Industries shall adopt rules to implement and enforce
this section.
SECTION 2. ORS 653.256 is amended to read:
653.256. (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 $1,000 against any
person who willfully violates ORS 653.025, 653.030, 653.045, 653.050, 653.060
or 653.261 or any rule adopted thereunder.
(2) In addition to
any other penalty provided by law, the commissioner may assess a civil penalty
not to exceed $1,000 against any person who intentionally violates ORS 653.077
or any rule adopted thereunder.
[(2)] (3) Civil penalties authorized by this section shall be
imposed in the manner provided in ORS 183.745.
[(3)] (4)(a) All sums collected as penalties under this
section shall be first applied toward reimbursement of costs incurred in determining
the violations, conducting hearings under this section and addressing and
collecting [such] the
penalties.
(b) The
remainder, if any, of the sums collected as penalties under subsection (1)
of this section shall be paid over by the commissioner to the Department of
State Lands for the benefit of the Common School Fund of this state. The
department shall issue a receipt for the money to the commissioner.
(c) The remainder, if
any, of the sums collected as penalties under subsection (2) of this section
shall be paid over by the commissioner to the Department of Human Services for
the benefit of the Breastfeeding Mother Friendly Employer Project. The
department shall issue a receipt for the moneys to the commissioner.
SECTION 3. ORS 243.650 is amended to read:
243.650. As used in ORS
243.650 to 243.782, unless the context requires otherwise:
(1) “Appropriate
bargaining unit” means the unit designated by the Employment Relations Board or
voluntarily recognized by the public employer to be appropriate for collective
bargaining. However, an appropriate bargaining unit [cannot] may not include both academically licensed and
unlicensed or nonacademically licensed school employees. Academically licensed
units may include but are not limited to teachers, nurses, counselors,
therapists, psychologists, child development specialists and similar positions.
This limitation [shall] does not apply to any bargaining unit certified or
recognized prior to June 6, 1995, or to any school district with fewer than 50
employees.
(2) “Board” means the
Employment Relations Board.
(3) “Certification”
means official recognition by the board that a labor organization is the
exclusive representative for all of the employees in the appropriate bargaining
unit.
(4) “Collective
bargaining” means the performance of the mutual obligation of a public employer
and the representative of its employees to meet at reasonable times and confer
in good faith with respect to employment relations for the purpose of
negotiations concerning mandatory subjects of bargaining, to meet and confer in
good faith in accordance with law with respect to any dispute concerning the
interpretation or application of a collective bargaining agreement, and to
execute written contracts incorporating agreements that have been reached on
behalf of the public employer and the employees in the bargaining unit covered
by such negotiations. The obligation to meet and negotiate does not compel
either party to agree to a proposal or require the making of a concession. [Nothing in] This subsection [shall] may not be construed to
prohibit a public employer and a certified or recognized representative of its
employees from discussing or executing written agreements regarding matters
other than mandatory subjects of bargaining that are not prohibited by law, so
long as there is mutual agreement of the parties to discuss these matters,
which are permissive subjects of bargaining.
(5) “Compulsory
arbitration” means the procedure whereby parties involved in a labor dispute are
required by law to submit their differences to a third party for a final and
binding decision.
(6) “Confidential
employee” means one who assists and acts in a confidential capacity to a person
who formulates, determines and effectuates management policies in the area of
collective bargaining.
(7)(a) “Employment
relations” includes, but is not limited to, matters concerning direct or
indirect monetary benefits, hours, vacations, sick leave, grievance procedures
and other conditions of employment.
(b) “Employment
relations” does not include subjects determined to be permissive, nonmandatory
subjects of bargaining by the Employment Relations Board prior to June 6, 1995.
(c) After June 6, 1995, “employment
relations” [shall] does not
include subjects which the Employment Relations Board determines to have a
greater impact on management’s prerogative than on employee wages, hours, or
other terms and conditions of employment.
(d) “Employment
relations” [shall] does not
include subjects that have an insubstantial or de minimis effect on public
employee wages, hours, and other terms and conditions of employment.
(e) For school district
bargaining, “employment relations” [shall
expressly exclude] excludes class size, the school or educational
calendar, standards of performance or criteria for evaluation of teachers, the
school curriculum, reasonable dress, grooming and at-work personal conduct
requirements respecting smoking, gum chewing and similar matters of personal
conduct, the standards and procedures for student discipline, the time between
student classes, the selection, agendas and decisions of 21st Century Schools
Councils established under ORS 329.704, requirements for expressing milk
under ORS 653.077, and any other subject proposed that is permissive under
paragraphs (b), (c) and (d) of this subsection.
(f) For all other
employee bargaining except school districts, “employment relations” [expressly] excludes staffing levels and
safety issues (except those staffing levels and safety issues which have a
direct and substantial effect on the on-the-job safety of public employees),
scheduling of services provided to the public, determination of the minimum
qualifications necessary for any position, criteria for evaluation or
performance appraisal, assignment of duties, workload when the effect on duties
is insubstantial, reasonable dress, grooming, and at-work personal conduct
requirements respecting smoking, gum chewing, and similar matters of personal
conduct at work, and any other subject proposed that is permissive under
paragraphs (b), (c) and (d) of this subsection.
(8) “Exclusive
representative” means the labor organization that, as a result of certification
by the board or recognition by the employer, has the right to be the collective
bargaining agent of all employees in an appropriate bargaining unit.
(9) “Fact-finding” means
identification of the major issues in a particular labor dispute by one or more
impartial individuals who review the positions of the
parties, resolve factual differences and make recommendations for settlement of
the dispute.
(10) “Fair-share
agreement” means an agreement between the public employer and the recognized or
certified bargaining representative of public employees whereby employees who
are not members of the employee organization are required to make an
in-lieu-of-dues payment to an employee organization except as provided in ORS
243.666. Upon the filing with the board of a petition by 30 percent or more of
the employees in an appropriate bargaining unit covered by such union security
agreement declaring they desire that such agreement be rescinded, the board
shall take a secret ballot of the employees in such unit and certify the
results thereof to the recognized or certified bargaining representative and to
the public employer. Unless a majority of the votes cast in an election favor
such union security agreement, the board shall certify deauthorization thereof.
A petition for deauthorization of a union security agreement must be filed not
more than 90 calendar days after the collective bargaining agreement is
executed. Only one such election [shall]
may be conducted in any appropriate bargaining unit during the term of a
collective bargaining agreement between a public employer and the recognized or
certified bargaining representative.
(11) “Final offer” means
the proposed contract language and cost summary submitted to the mediator
within seven days of the declaration of impasse.
(12) “Labor dispute”
means any controversy concerning employment relations or concerning the
association or representation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of employment relations,
regardless of whether the disputants stand in the proximate relation of
employer and employee.
(13) “Labor organization”
means any organization that has as one of its purposes representing employees
in their employment relations with public employers.
(14) “Last best offer
package” means the offer exchanged by parties not less than 14 days prior to
the date scheduled for an interest arbitration hearing.
(15) “Legislative body”
means the Legislative Assembly, the city council, the county commission and any
other board or commission empowered to levy taxes.
(16) “Managerial
employee” means an employee of the State of Oregon who possesses authority to
formulate and carry out management decisions or who represents management’s
interest by taking or effectively recommending discretionary actions that
control or implement employer policy, and who has discretion in the performance
of these management responsibilities beyond the routine discharge of duties. A “managerial
employee” need not act in a supervisory capacity in relation to other
employees. Notwithstanding this subsection, “managerial employee” [shall not be construed to] does not
include faculty members at a community college, college or university.
(17) “Mediation” means
assistance by an impartial third party in reconciling a labor dispute between
the public employer and the exclusive representative regarding employment
relations.
(18) “Payment-in-lieu-of-dues”
means an assessment to defray the cost for services by the exclusive
representative in negotiations and contract administration of all persons in an
appropriate bargaining unit who are not members of the organization serving as
exclusive representative of the employees. The payment [shall] must be equivalent to regular union dues and
assessments, if any, or [shall]
must be an amount agreed upon by the public employer and the exclusive
representative of the employees.
(19) “Public employee”
means an employee of a public employer but does not include elected officials,
persons appointed to serve on boards or commissions, incarcerated persons
working under section 41, Article I of the Oregon Constitution, or persons who
are confidential employees, supervisory employees or managerial employees.
(20) “Public employer”
means the State of Oregon, and the following political subdivisions: Cities,
counties, community colleges, school districts, special districts, mass transit
districts, metropolitan service districts, public service corporations or
municipal corporations and public and quasi-public corporations.
(21) “Public employer
representative” includes any individual or individuals specifically designated
by the public employer to act in its interests in all matters dealing with
employee representation, collective bargaining and related issues.
(22) “Strike” means a
public employee’s refusal in concerted action with others to report for duty,
or his or her willful absence from his or her position, or his or her stoppage
of work, or his or her absence in whole or in part from the full, faithful or
proper performance of his or her duties of employment, for the purpose of
inducing, influencing or coercing a change in the conditions, compensation,
rights, privileges or obligations of public employment; however, nothing shall
limit or impair the right of any public employee to lawfully express or
communicate a complaint or opinion on any matter related to the conditions of
employment.
(23) “Supervisory
employee” means any individual having authority in the interest of the employer
to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward
or discipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in connection
therewith, the exercise of such authority is not of a merely routine or
clerical nature but requires the use of independent judgment. Failure to assert
supervisory status in any Employment Relations Board proceeding or in
negotiations for any collective bargaining agreement [shall] does not thereafter prevent assertion of supervisory
status in any subsequent board proceeding or contract negotiation.
Notwithstanding the provisions of this subsection, [no] a nurse, charge nurse or similar nursing position [shall] may not be deemed to be
supervisory unless [such] that
position has traditionally been classified as supervisory.
(24) “Unfair labor practice”
means the commission of an act designated an unfair labor practice in ORS
243.672.
(25) “Voluntary
arbitration” means the procedure whereby parties involved in a labor dispute
mutually agree to submit their differences to a third party for a final and
binding decision.
SECTION 3a. If Senate Bill 400 becomes law, section 3
of this 2007 Act (amending ORS 243.650) is repealed and ORS 243.650, as amended
by section 1, chapter 141, Oregon Laws 2007 (Enrolled Senate Bill 400), is
amended to read:
243.650. As used in ORS
243.650 to 243.782, unless the context requires otherwise:
(1) “Appropriate
bargaining unit” means the unit designated by the Employment Relations Board or
voluntarily recognized by the public employer to be appropriate for collective
bargaining. However, an appropriate bargaining unit [cannot] may not include both academically licensed and
unlicensed or nonacademically licensed school employees. Academically licensed
units may include but are not limited to teachers, nurses, counselors,
therapists, psychologists, child development specialists and similar positions.
This limitation does not apply to any bargaining unit certified or recognized
prior to June 6, 1995, or to any school district with fewer than 50 employees.
(2) “Board” means the
Employment Relations Board.
(3) “Certification”
means official recognition by the board that a labor organization is the
exclusive representative for all of the employees in the appropriate bargaining
unit.
(4) “Collective
bargaining” means the performance of the mutual obligation of a public employer
and the representative of its employees to meet at reasonable times and confer
in good faith with respect to employment relations for the purpose of
negotiations concerning mandatory subjects of bargaining, to meet and confer in
good faith in accordance with law with respect to any dispute concerning the
interpretation or application of a collective bargaining agreement, and to
execute written contracts incorporating agreements that have been reached on
behalf of the public employer and the employees in the bargaining unit covered
by such negotiations. The obligation to meet and negotiate does not compel
either party to agree to a proposal or require the making of a concession. This
subsection may not be construed to prohibit a public employer and a certified
or recognized representative of its employees from discussing or executing
written agreements regarding matters other than mandatory subjects of
bargaining that are not prohibited by law as long as there is mutual agreement
of the parties to discuss these matters, which are permissive subjects of
bargaining.
(5) “Compulsory
arbitration” means the procedure whereby parties involved in a labor dispute
are required by law to submit their differences to a third party for a final
and binding decision.
(6) “Confidential
employee” means one who assists and acts in a confidential capacity to a person
who formulates, determines and effectuates management policies in the area of
collective bargaining.
(7)(a) “Employment
relations” includes, but is not limited to, matters concerning direct or
indirect monetary benefits, hours, vacations, sick leave, grievance procedures
and other conditions of employment.
(b) “Employment
relations” does not include subjects determined to be permissive, nonmandatory
subjects of bargaining by the Employment Relations Board prior to June 6, 1995.
(c) After June 6, 1995, “employment
relations” does not include subjects that the Employment Relations Board
determines to have a greater impact on management’s prerogative than on
employee wages, hours, or other terms and conditions of employment.
(d) “Employment
relations” does not include subjects that have an insubstantial or de minimis
effect on public employee wages, hours, and other terms and conditions of
employment.
(e) For school district
bargaining, “employment relations” does not include class size, the school or
educational calendar, standards of performance or criteria for evaluation of
teachers, the school curriculum, reasonable dress, grooming and at-work
personal conduct requirements respecting smoking, gum chewing and similar
matters of personal conduct, the standards and procedures for student
discipline, the time between student classes, the selection, agendas and decisions
of 21st Century Schools Councils established under ORS 329.704, requirements
for expressing milk under ORS 653.077, and any other subject proposed that
is permissive under paragraphs (b), (c) and (d) of this subsection.
(f) For employee
bargaining involving employees covered by ORS 243.736, “employment relations”
includes safety and staffing only as they relate to on-the-job safety.
(g) For all other
employee bargaining except school district bargaining and except as provided in
paragraph (f) of this subsection, “employment relations” does not include
staffing levels and safety issues (except those staffing levels and safety
issues that have a direct and substantial effect on the on-the-job safety of
public employees), scheduling of services provided to the public, determination
of the minimum qualifications necessary for any position, criteria for
evaluation or performance appraisal, assignment of duties, workload when the
effect on duties is insubstantial, reasonable dress, grooming, and at-work personal
conduct requirements respecting smoking, gum chewing, and similar matters of
personal conduct at work, and any other subject proposed that is permissive
under paragraphs (b), (c) and (d) of this subsection.
(8) “Exclusive
representative” means the labor organization that, as a result of certification
by the board or recognition by the employer, has the right to be the collective
bargaining agent of all employees in an appropriate bargaining unit.
(9) “Fact-finding” means
identification of the major issues in a particular labor dispute by one or more
impartial individuals who review the positions of the
parties, resolve factual differences and make recommendations for settlement of
the dispute.
(10) “Fair-share
agreement” means an agreement between the public employer and the recognized or
certified bargaining representative of public employees whereby employees who
are not members of the employee organization are required to make an
in-lieu-of-dues payment to an employee organization except as provided in ORS
243.666. Upon the filing with the board of a petition by 30 percent or more of
the employees in an appropriate bargaining unit covered by such union security
agreement declaring they desire that the agreement be rescinded, the board
shall take a secret ballot of the employees in the unit and certify the results
thereof to the recognized or certified bargaining representative and to the
public employer. Unless a majority of the votes cast in an election favor the
union security agreement, the board shall certify deauthorization of the
agreement. A petition for deauthorization of a union security agreement must be
filed not more than 90 calendar days after the collective bargaining agreement
is executed. Only one such election [shall]
may be conducted in any appropriate bargaining unit during the term of a
collective bargaining agreement between a public employer and the recognized or
certified bargaining representative.
(11) “Final offer” means
the proposed contract language and cost summary submitted to the mediator
within seven days of the declaration of impasse.
(12) “Labor dispute”
means any controversy concerning employment relations or concerning the
association or representation of persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or conditions of employment relations,
regardless of whether the disputants stand in the proximate relation of
employer and employee.
(13) “Labor organization”
means any organization that has as one of its purposes representing employees
in their employment relations with public employers.
(14) “Last best offer
package” means the offer exchanged by parties not less than 14 days prior to
the date scheduled for an interest arbitration hearing.
(15) “Legislative body”
means the Legislative Assembly, the city council, the county commission and any
other board or commission empowered to levy taxes.
(16) “Managerial
employee” means an employee of the State of Oregon who possesses authority to
formulate and carry out management decisions or who represents management’s
interest by taking or effectively recommending discretionary actions that
control or implement employer policy, and who has discretion in the performance
of these management responsibilities beyond the routine discharge of duties. A “managerial
employee” need not act in a supervisory capacity in relation to other
employees. Notwithstanding this subsection, “managerial employee” [may not be construed to] does not
include faculty members at a community college, college or university.
(17) “Mediation” means
assistance by an impartial third party in reconciling a labor dispute between
the public employer and the exclusive representative regarding employment
relations.
(18) “Payment-in-lieu-of-dues”
means an assessment to defray the cost for services by the exclusive
representative in negotiations and contract administration of all persons in an
appropriate bargaining unit who are not members of the organization serving as
exclusive representative of the employees. The payment [shall] must be equivalent to regular union dues and
assessments, if any, or [shall]
must be an amount agreed upon by the public employer and the exclusive
representative of the employees.
(19) “Public employee”
means an employee of a public employer but does not include elected officials,
persons appointed to serve on boards or commissions, incarcerated persons
working under section 41, Article I of the Oregon Constitution, or persons who
are confidential employees, supervisory employees or managerial employees.
(20) “Public employer”
means the State of Oregon, and the following political subdivisions: Cities,
counties, community colleges, school districts, special districts, mass transit
districts, metropolitan service districts, public service corporations or
municipal corporations and public and quasi-public corporations.
(21) “Public employer
representative” includes any individual or individuals specifically designated
by the public employer to act in its interests in all matters dealing with
employee representation, collective bargaining and related issues.
(22) “Strike” means a
public employee’s refusal in concerted action with others to report for duty,
or his or her willful absence from his or her position, or his or her stoppage
of work, or his or her absence in whole or in part from the full, faithful or
proper performance of his or her duties of employment, for the purpose of
inducing, influencing or coercing a change in the conditions, compensation,
rights, privileges or obligations of public employment; however, nothing shall
limit or impair the right of any public employee to lawfully express or
communicate a complaint or opinion on any matter related to the conditions of
employment.
(23) “Supervisory
employee” means any individual having authority in the interest of the employer
to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward
or discipline other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if in connection
therewith, the exercise of the authority is not of a merely routine or clerical
nature but requires the use of independent judgment. Failure to assert
supervisory status in any Employment Relations Board proceeding or in
negotiations for any collective bargaining agreement does not thereafter
prevent assertion of supervisory status in any subsequent board proceeding or
contract negotiation. Notwithstanding the provisions of this subsection, [no] a nurse, charge nurse or
similar nursing position [shall]
may not be deemed to be supervisory unless [the] that position has traditionally been classified as
supervisory.
(24) “Unfair labor
practice” means the commission of an act designated an unfair labor practice in
ORS 243.672.
(25) “Voluntary arbitration”
means the procedure whereby parties involved in a labor dispute mutually agree
to submit their differences to a third party for a final and binding decision.
SECTION 4. (1) The Commissioner of the Bureau of Labor
and Industries shall appoint an advisory committee. The advisory committee must
include equal representation of members from labor and management.
(2) Upon request by a
particular industry or profession, the advisory committee shall:
(a) Determine when the
ordinary course of the requesting industry or profession makes compliance with
ORS 653.077 difficult for an employer in that industry or profession; and
(b) Submit to the
commissioner recommendations for rules that address compliance difficulties in
that industry or profession.
(3) The commissioner
shall determine the terms and organization of the advisory committee.
(4) All agencies of
state government, as defined in ORS 174.111, are directed to assist the
advisory committee in the performance of its duties and, to the extent permitted
by laws relating to confidentiality, to furnish such information and advice as
the members of the advisory committee consider necessary to perform their
duties.
SECTION 5. ORS 653.075 and 653.077 are added to and
made a part of ORS 653.010 to 653.261.
SECTION 6. The amendments to ORS 243.650, 653.077 and
653.256 by sections 1 to 3 of this 2007 Act apply to conduct occurring on or
after the effective date of this 2007 Act.
SECTION 6a. If Senate Bill 400 becomes law, section 6 of
this 2007 Act is amended to read:
Sec.
6. The amendments to ORS 243.650, 653.077 and 653.256 by sections 1,
2 and 3a [to 3] of this 2007 Act
apply to conduct occurring on or after the effective date of this 2007 Act.
SECTION 7. Notwithstanding section 6 of this 2007 Act, ORS
653.077 (10) first applies to the 2008-2009 school year.
Approved by the Governor May 17, 2007
Filed in the office of Secretary of State May 17, 2007
Effective date January 1, 2008
__________