Chapter 654

 

      Chapter 654

 

NOTES OF DECISIONS

 

      An administrative regulation requires Accident Prevention Division to prove reasonableness of civil penalty imposed for violation of Oregon State Employment Act. Accident Prevention Div. v. Sunrise Seed, 26 Or App 879, 554 P2d 550 (1976)

 

      Accident Prevention Division rule allowing citation for “repeat violation” of division’s safety standards while prior citation is contested and not yet upheld by final order is within agency’s authority to promulgate rules consistent with purpose of Act to assure as far as possible safe and healthful working conditions. Accident Prevention Div. v. Hoffman Construction, 64 Or App 73, 667 P2d 543 (1983)

 

ATTY. GEN. OPINIONS: Inapplicability of occupational safety and health laws to inmates in prison work programs, (1996) Vol 48, p 134

 

      654.001 to 654.295

 

NOTES OF DECISIONS

 

      Safety codes under Oregon Safe Employment Act apply to all work places and not only to work places covered by Employer Liability Law. Miller v. Ga.-Pacific, 294 Or 750, 662 P2d 718 (1983)

 

      Violation of Workers’ Compensation Department rule resulting in injury to nonemploye is not negligence per se, but it does not follow that rule is irrelevant to determination of due care in case grounded in common law negligence. Shahtout v. Emco Garbage Co., 298 Or 598, 695 P2d 897 (1985)

 

      Where right of action for injuries exists resulting from violation of Oregon Safe Employment Act, right belongs only to employee whom Act directly protects not “indirect” employee. Flores v. Metro Machinery Rigging, Inc., 99 Or App 636, 783 P2d 1024 (1989), Sup Ct review denied

 

      Referee did not err in finding employer in violation of rule requiring workers to be “properly...supervised” where employee killed in accident was skilled and experienced supervisor working with two other supervisors during strike, but none of the three was in charge. Accident Prevention Div. v. Roseburg Forest Prod., 106 Or App 69, 806 P2d 172 (1991)

 

      Whether identity of complainant falsely reporting violation is subject to disclosure under Oregon public records law ([former] ORS 192.410 et seq.) depends on complainant’s good or bad faith in making complaint. Hood Technology Corp. v. Oregon Occupational Safety and Health Division, 168 Or App 293, 7 P3d 564 (2000)

 

      654.003

 

NOTES OF DECISIONS

 

      Legislature did not direct Workers’ Compensation Department, in setting standards for workers for purposes of this section, to take account of cost of consequential civil liability toward other parties, and statute implies that safeguards for workers are not to be compromised by such considerations. Shahtout v. Emco Garbage Co., 298 Or 598, 695 P2d 897 (1985)

 

      Where there was no substantial evidence that compliance with regulation adopted by Accident Prevention Division was economically infeasible, Workers’ Compensation Board’s order could reduce protection of workers contrary to purpose of Oregon Safe Employment Act. Accident Prevention Division v. Bliss, 97 Or App 508, 776 P2d 1302 (1989)

 

      654.005

 

NOTES OF DECISIONS

 

      Where vehicle fits within definition of “place of employment” because it is place where activity related to employer’s business is carried on and defendant holds record title to the vehicle and would retain ownership of it after lease expired, defendant was “owner” under Oregon Safe Employment Act. Moe v. Beck, 100 Or App 177, 785 P2d 781 (1990), aff’d 311 Or 499, 815 P2d 692 (1991)

 

      654.022

 

NOTES OF DECISIONS

 

      Welder’s refusal to comply with safety regulation by trimming beard to make respirator mask fit snugly constituted misconduct connected with work. Rascoe v. Employment Division, 34 Or App 339, 578 P2d 3 (1978)

 

      Where vehicle fits within definition of “place of employment” because it is place where activity related to employer’s business is carried on and defendant holds record title to the vehicle and would retain ownership of it after lease expired, defendant was “owner” under Oregon Safe Employment Act. Moe v. Beck, 100 Or App 177, 785 P2d 781 (1990), aff’d 311 Or 499, 815 P2d 692 (1991)

 

      Workplace owner is negligent per se for regulation violation that caused injury only if violated regulation explicitly or by nature imposes obligations on owner. Brown v. Boise-Cascade Corp., 150 Or App 391, 946 P2d 324 (1997), Sup Ct review denied

 

      654.025

 

      See also annotations under ORS 654.410 and 654.415 in permanent edition.

 

NOTES OF DECISIONS

 

      Violation of Workers’ Compensation Department rule resulting in injury to nonemployee is not negligence per se, but it does not follow that rule is irrelevant to determination of due care in case grounded in common law negligence. Shahtout v. Emco Garbage Co., 298 Or 598, 695 P2d 897 (1985)

 

      654.062

 

NOTES OF DECISIONS

 

      Welder who refused to work on particular machine alleging inadequate ventilation and need for respirators was not within protection of this section, where referee found that claimant had refused to work without justification. Pintok v. Employment Division, 32 Or App 273, 573 P2d 773 (1978)

 

      Filing of administrative complaint does not bar bringing of civil action unless administrative complaint has been dismissed following hearing on merits. Carsner v. Freightliner Corp., 69 Or App 666, 688 P2d 398 (1984), Sup Ct review denied

 

      Where plaintiff was discharged by defendant employer after allegedly suffering handicap and complaining about causative unsafe working conditions, plaintiff’s action for wrongful discharge, unlawful employment practices and breach of discharge provisions of personnel manual not barred by collateral estoppel or res judicata on basis of earlier denial of his claims for workers’ compensation and unemployment compensation. Griffith v. Hodes, 96 Or App 387, 772 P2d 1370 (1989), Sup Ct review denied

 

      Where terminated employee sued former employer for wrongful discharge and employer moved to dismiss, this section provides state law remedy for employees discharged for complaining about health and safety problems. Messer v. Portland Adventist Medical Center, 707 F Supp 449 (D. Or. 1989)

 

      Applicable statute of limitations for actions under this section is one-year period for filing unlawful employment practice claim. Raptopolous v. WS, Inc., 738 F. Supp. 394 (D. Or. 1990)

 

      Where employer discharged employee in violation of this section, Bureau of Labor and Industries did not err in refusing to offset unemployment compensation benefits received by employee from back pay award authorized by this section. German Auto Parts v. Bureau of Labor and Ind., 111 Or App 522, 826 P2d 1026 (1992)

 

      Employees working outside state are not within scope of statute and therefore are not barred from common law tort claim for wrongful discharge. Anderson v. Evergreen International Airlines, Inc., 131 Or App 726, 886 P2d 1068 (1994), Sup Ct review denied

 

      If complaint by employee “related to” Oregon Safe Employment Act, employee need not establish that violation of law, regulation or standard was alleged or actually existed in order to prove retaliatory action. Butler v. Dept. of Corrections, 138 Or App 190, 909 P2d 163 (1995)

 

      Successful defendant in suit by employee or prospective employee is not entitled to prevailing party attorney fees. Mantia v. Hanson, 190 Or App 36, 77 P3d 1143 (2003), Sup Ct review denied

 

      Because “all appropriate relief” does not include compensatory or punitive damages, availability of relief under this section does not preclude common law suit for wrongful discharge. Cantley v. DSMF, Inc., 422 F. Supp. 2d 1214 (D. Or. 2006)

 

      Where plaintiff shows plaintiff’s protected characteristic caused discrimination, wrongful motives of subordinate may be imputed to independent decision maker; plaintiff need not prove decision maker had protected characteristic in mind when making adverse employment decision. Ossanna v. Nike, Inc., 290 Or App 16, 415 P3d 55 (2018)

 

      654.067

 

      See also annotations under ORS 654.047 in permanent edition.

 

NOTES OF DECISIONS

 

      Requirement of presenting credentials to employer prior to investigative questioning of employees applies only to questioning done on employer’s premises. Oregon Occupational Safety and Health Division v. Don Whitaker Logging, 124 Or App 246, 862 P2d 526 (1993), Sup Ct review denied

 

      Right of employer under ORS 654.293 to be represented by attorney does not create right to have representative present during private employee interviews. Oregon Occupational Safety and Health Division v. Eslinger Logging, Inc., 156 Or App 519, 967 P2d 889 (1998), Sup Ct review denied; Nygaard Logging Company, Inc. v. Oregon Occupational Safety and Health Division, 165 Or App 90, 995 P2d 589 (2000), Sup Ct review denied

 

      654.071

 

NOTES OF DECISIONS

 

      Authority to issue citation and notice for discovered violation is not linked to or limited by purpose of inspection that uncovered violation. Oregon Occupational Safety and Health Division v. Fall Creek Logging Co., 137 Or App 506, 905 P2d 241 (1995)

 

      For purpose of time limit on issuance of citation or notice, director’s knowledge that violation has occurred must be actual, not constructive. Oregon Occupational Safety v. Port of Portland, 141 Or App 467, 918 P2d 448 (1996)

 

      654.078

 

NOTES OF DECISIONS

 

      Board is not authorized to grant attorney fees to prevailing party. Oregon Occupational Safety v. Don Whitaker Logging, 123 Or App 498, 861 P2d 368 (1993), Sup Ct review denied

 

      Where agency fails to substantially comply with procedural requirements, citation can be dismissed without demonstrating that procedural irregularity resulted in prejudice to employer. Oregon Occupational Safety v. Ostlie, 136 Or App 284, 902 P2d 580 (1995)

 

      654.082

 

      See annotations under ORS 654.050 in permanent edition.

 

      654.086

 

      See also annotations under ORS 654.050 in permanent edition.

 

NOTES OF DECISIONS

 

      A jury trial is not required by Art. I, §17 of the Oregon Constitution for the imposition of a penalty imposed under this section. Accident Prevention Div. v. No. Am. Contractors, Inc., 22 Or App 614, 540 P2d 391 (1975)

 

      Where monetary penalties assessed for violations under this section were within statutory limits, court was without power to redetermine assessment. Accident Prevention Division v. Van Eyk, 31 Or App 1355, 572 P2d 671 (1977), Sup Ct review denied

 

      Under rules adopted by Accident Prevention Division under this section, hearings referee has no authority to impose penalties less than those required by rules. Accident Prevention Div. v. Asana, 110 Or App 103, 821 P2d 432 (1991)

 

      Assessment of employer’s exercise of reasonable diligence requires consideration of (1) time of violation; (2) employer’s proximity to and opportunity to witness violation; (3) foreseeability of violation; (4) general circumstances of, and level of danger inherent in, work; (5) potential need for continuous supervision of employee; (6) nature and extent of employer’s other duties; (7) employee’s training and experience; and (8) extent and efficacy of employer’s safety programs. Oregon Occupational Safety and Health Division v. CBI Services, Inc., 254 Or App 466, 295 P3d 660 (2013), aff’d on other grounds, 356 Or 577, 341 P3d 701 (2014)

 

      Under this section, whether employer “did not, and could not with the exercise of reasonable diligence, know of the presence of the violation” refers to what employer was capable of knowing or discovering under circumstances. Oregon Occupational Safety and Health Division v. CBI Services, Inc., 356 Or 577, 341 P3d 701 (2014)

 

      Whether employer exercised “reasonable diligence” as used in phrase “could not with the exercise of reasonable diligence, know of the presence of the violation” is determination for agency to evaluate with specific factors. Oregon Occupational Safety and Health Division v. CBI Services, Inc., 356 Or 577, 341 P3d 701 (2014)

 

LAW REVIEW CITATIONS: 26 WLR 393 (1990)

 

      654.176

 

LAW REVIEW CITATIONS: 27 WLR 109 (1991)

 

      654.206

 

NOTES OF DECISIONS

 

      Where no administrative standards had been adopted to guarantee that search warrants issued pursuant to this section would be justified by reasonable governmental interest, warrants were invalid. State ex rel Accident Prevention Division v. Foster, 31 Or App 291, 570 P2d 398 (1977)

 

      Where premises sought to be inspected had prior history of violations, reluctance to cure violations, unwillingness to accept voluntary inspections, and injuries to employes, sufficient cause to justify issuance of warrant was present. Accident Prevention Division v. Hogan, 37 Or App 251, 586 P2d 1132 (1978)

 

      Validity of Oregon Safe Employment Act inspection warrant could not be collaterally attacked in contempt proceeding instituted after employer’s refusal to comply with warrant. State ex rel Acc. Prev. Div. v. Sturdi-Craft, 45 Or App 319, 608 P2d 209 (1980), Sup Ct review denied

 

      654.212

 

NOTES OF DECISIONS

 

      Validity of Oregon Safe Employment Act inspection warrant could not be collaterally attacked in contempt proceeding instituted after employer’s refusal to comply with warrant. State ex rel Acc. Prev. Div. v. Sturdi-Craft, 45 Or App 319, 608 P2d 209 (1980), Sup Ct review denied

 

      654.290

 

      See also annotations under ORS 654.040 and 654.065 in permanent edition.

 

NOTES OF DECISIONS

 

      A jury trial is not required by Art. I, §17 of the Oregon Constitution for the imposition of a penalty imposed under this section. Accident Prevention Div. v. No. Am. Contractors, Inc., 22 Or App 614, 540 P2d 391 (1975)

 

      654.293

 

NOTES OF DECISIONS

 

      “Proceeding” refers to formal administrative hearing or similar proceeding and does not include private employee interviews pursuant to ORS 654.067 or other inspections or investigations. Oregon Occupational Safety and Health Division v. Eslinger Logging, Inc., 156 Or App 519, 967 P2d 889 (1998), Sup Ct review denied; Nygaard Logging Company, Inc. v. Oregon Occupational Safety and Health Division, 165 Or App 90, 995 P2d 589 (2000), Sup Ct review denied

 

      654.305 to 654.336

 

NOTES OF DECISIONS

 

In general

 

      The standard of care required by this section is inapplicable to actions brought under general maritime law or Longshoremen’s and Harbor Workers’ Compensation Act. Birrer v. Flota Mercante Grancolombiana, 386 F Supp 1105 (1974)

 

      A collective bargaining agreement did not give employer right to actual control, and without such right to directly control injury-creating activity Act does not apply. Wienke v. Ochoco, 276 Or 1159, 558 P2d 319 (1976)

 

      Inapplicability of Employer Liability Act does not preclude bringing claim for common-law negligence. Cortez v. Nacco Materials Handling Group, 248 Or App 435, 274 P3d 202 (2012), aff’d 356 Or 254, 337 P3d 111 (2014)

 

      Where general contractor retained right to require additional safety measures and to inspect work site in entirety, general contractor also retained some contractual responsibility for subcontractor’s employees at work site. Yeatts v. Polygon Northwest Co., 360 Or 170, 379 P3d 445 (2016)

 

Application of the Act generally

 

      This Act did not apply to the action brought by a longshoreman against the shipowner which was covered by the Federal Longshoremen’s and Harbor Worker’s Compensation Act. Crowshaw v. Koninklijke Nedlloyd, B V. Rijswijk, 398 F Supp 1224 (1975)

 

      Before Employer’s Liability Act can be made basis of claim for relief by injured worker suing defendant other than employer of worker, defendant must be in charge of or have responsibility for work involving risk or danger in either (a) situation where defendant and plaintiff’s employer are simultaneously engaged in carrying out work on common enterprise, or (b) situation in which defendant retains right to control or actually exercises control as to manner or method in which risk-producing activity is performed. Miller v. Ga.-Pacific, 294 Or 750, 662 P2d 718 (1983)

 

      Injured worker had no claim under these sections against business which was not his employer and whose sole connection with worker’s activities was to deliver materials which injured worker to jobsite. Dingell v. Downing-Gilbert, Inc., 81 Or App 545, 726 P2d 937 (1986), Sup Ct review denied

 

Relations of parties as affecting duties and liability

 

      Vice-principal defense was not available to general contractor for injury to foreman employed by subcontractor caused by absence of safety measures for which general contractor was responsible and in connection with which foreman had no delegated duties from either his employer or the general contractor. Kauffman v. L.D. Mattson, Inc., 61 Or App 462, 657 P2d 720 (1983), Sup Ct review denied

 

      Where defendant had right to exercise control over use of forklift which resulted in plaintiff’s injury, plaintiff was employe of defendant as a matter of law under this Act and failure to so instruct jury was reversible error. Helms v. Halton Tractor, 66 Or App 890, 676 P2d 347 (1984), Sup Ct review denied

 

      Where employer had retained right to control risk-creating activity, plaintiff has claim under Employers’ Liability Act as indirect employee if there is connection between plaintiff’s employer’s work and that of defendant. Flores v. Metro Machinery Rigging, Inc., 99 Or App 636, 783 P2d 1024 (1989), Sup Ct review denied

 

      654.305

 

NOTES OF DECISIONS

 

      To recover under Employer’s Liability Act against person other than injured worker’s employer, injured worker must establish that defendant had actual charge of plaintiff’s work or had right to control manner in which plaintiff performed that work or that defendant and plaintiff’s employer were engaged in work on common enterprise. Torres v. US National Bank of Oregon, 65 Or App 207, 670 P2d 230 (1983), Sup Ct review denied; Quackenbush v. PGE, 134 Or App 111, 894 P2d 535 (1995), Sup Ct review denied; Moe v. Eugene Zurbrugg Construction Co., 202 Or App 577, 123 P3d 338 (2005)

 

      Where plaintiff suffered on-the-job injury alleging employe of defendant was negligent in connection with accident and alleges defendant is his “indirect employer” for purposes of Employer’s Liability Act, defendant and employe sent to advise and assist had no responsibility for safety of equipment or plaintiff’s job safety and trial court did not err in directing verdict for defendant. Fortney v. Crawford Door Sales Corp., 97 Or App 276, 775 P2d 910 (1989)

 

      Defendant supplier of scaffold which caused plaintiff’s worker’s injury was not subject to Employer’s Liability Act where defendant retained no control over scaffold or its use and had no connection with plaintiff’s job activity after bringing scaffold to job site. Steiner v. Beaver State Scaffolding Equipment Co., 97 Or App 453, 777 P2d 965 (1989)

 

      “Public” includes worker whose employer is engaged in common enterprise with in-charge third party. Trout v. Liberty Northwest Ins. Corp., 154 Or App 89, 961 P2d 235 (1998)

 

      Person who is not direct employer of plaintiff is liable under Employer Liability Law if person: (1) engages with direct employer in common enterprise; (2) retains right to control manner or method in which risk-producing activity is performed; or (3) actually controls manner or method in which risk-producing activity is performed. Cortez v. Nacco Materials Handling Group, 248 Or App 435, 274 P3d 202 (2012), aff’d 356 Or 254, 337 P3d 111 (2014)

 

      Person is engaged in common enterprise with direct employer of plaintiff when: (1) operations of person are integral to or component part of work; (2) work involves risk or danger to employees or public; (3) person has adopted plaintiff as employee or allowed intermingling of work performed by employees and plaintiff; and (4) person has charge of, or responsibility for, activity or instrumentality that caused plaintiff’s injury. Cortez v. Nacco Materials Handling Group, 248 Or App 435, 274 P3d 202 (2012), aff’d 356 Or 254, 337 P3d 111 (2014)

 

      654.310

 

NOTES OF DECISIONS

 

      Independent contractor is not covered by provisions of this section. Groves v. Max J. Kuney Company, 303 Or 468, 737 P2d 1240 (1987)

 

      654.315

 

NOTES OF DECISIONS

 

      Vice-principal defense was not available to general contractor for injury to foreman employed by subcontractor caused by absence of safety measures for which general contractor was responsible and in connection with which foreman had no delegated duties from either his employer or the general contractor. Kauffman v. L.D. Mattson, Inc., 61 Or App 462, 657 P2d 720 (1983), Sup Ct review denied

 

      Where there is no evidence that plaintiff, who was injured by dozer blade, was foreman or other person “having charge of a particular work”, plaintiff is not barred from recovery under “vice-principal” rule. Miller v. Ga.-Pacific, 294 Or 750, 662 P2d 718 (1983)

 

      654.991

 

      See annotations under ORS 654.990 in permanent edition.