Or. Admin. Code § 839-015-0004

Current through Register Vol. 63, No. 11, November 1, 2024

Section 839-015-0004 - Definitions for Regulations Pertaining to Labor Contractors

As used in these rules, unless the context requires otherwise:

(1) "Aggregate bond or deposit" means a bond or deposit posted pursuant to ORS 658.415 by a licensed business entity on behalf of itself and any of its owners or employees who engage in labor contracting activities to secure payment of wages and advances due from the entity or any of its owners or employees arising from their activities as labor contractors, whether incurred on behalf of the entity or any of its owners or employees.

(2) "Agreed remuneration" means compensation of any kind that is agreed upon by a labor contractor and another for the services of such contractor.

(3) "Agricultural association" means a nonprofit or cooperative association of farmers, growers or ranchers that is incorporated under applicable state law and that acts as a farm labor contractor solely on behalf of members of the association.

(4) "Application of big game repellent by contract crew" means work performed by workers who are recruited, solicited, supplied or employed by a person who has contracted to supply a crew of workers to apply big game repellent.

(5) "Bureau" means the Bureau of Labor and Industries.

(6) "Commissioner" means the Commissioner of the Bureau of Labor and Industries, or designee.

(7) "Construction labor contractor" means any person that:

(a) For an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers to perform labor for another in construction;

(b) For an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers on behalf of an employer engaged in construction; or

(c) Enters into a subcontract with another for any of the activities described in subparagraph (a) or (b) of this paragraph.

(8) "Crew leader" means the member of a group of workers who acts as a spokesperson for the group, travels with the group from another state into Oregon, performs the same work along with other members of the group and receives no extra compensation from any person by virtue of acting as a crew leader, aside from any money received from other members of the group for sharing payment of the actual expenses of the group, and provided that the employer pays the members of the group directly and individually for their labor. An immediate family acting as a single unit is not a group, within the meaning of this rule. The spokesperson for such unit is not, therefore, a crew leader. An immediate family includes the father, mother, son, daughter, brother, sister, husband, or wife of the spokesperson for the family. A crew leader may perform the following activities without a license:

(a) Transporting workers from their local place of residence to their place of employment when the crew leader does not perform this service for a profit; and

(b) Making arrangements for jobs, housing, credit, or any other needs of the members of the group, provided the crew leader receives no compensation for this service; and

(c) Adding members to the group in Oregon, provided the crew leader receives no compensation therefore from the added members or from any other person.

(9) "Farm labor contractor" means:

(a) Any person who, for an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers to perform labor for another in the production or harvesting of farm products;

(b) Any person who recruits, solicits, supplies or employs workers for an employer who is engaged in the production or harvesting of farm products;

(c) Any person who recruits, solicits, supplies or employs workers to gather wild forest products, as that term is defined in paragraph (23) of this section;

(d) Any person who furnishes board or lodging for workers in connection with the recruiting, soliciting, supplying or employing of workers to be engaged in the production or harvesting of farm products or in the gathering of wild forest products;

(e) Any person who bids or submits contract offers for the production or harvesting of farm products or the gathering of wild forest products; or

(f) Any person who subcontracts with another for the production or harvesting of farm products or the gathering of wild forest products.

(10) "Farmer" means the owner or lessee of land used in the production and harvesting of farm products.

(11) "Farm-worker camp" has the same meaning as that defined in ORS 658.705(7).

(12) "Farm-worker camp operator" has the same meaning as that defined in OAR 839-014-0035(8).

(13) "Forest fire suppression by contract crew" includes work performed by forest fire fighters who are recruited, solicited, supplied or employed by a person who has contracted to supply a crew of forest fire fighters prior to the existence of the fire. (An incidental duty to assist in emergency fire suppression arising from a permit, timber sale contract, or similar agreement whose primary purpose does not relate to fire suppression does not constitute such a prior contract to supply forest fire fighters.)

(14) "Forest labor contractor" means:

(a) Any person who, for an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers to perform labor for another in the forestation or reforestation of lands; or

(b) Any person who recruits, solicits, supplies or employs workers for an employer who is engaged in the forestation or reforestation of lands; or

(c) Any person who furnishes board and lodging for workers in connection with the recruiting, soliciting, supplying or employing of workers to be engaged in the forestation or reforestation of lands;

(d) Any person who bids or submits contract offers for the forestation or reforestation of lands; or

(e) Any person who subcontracts with another for the forestation or reforestation of lands.

(15) "Forestation or reforestation of lands" includes, but is not limited to:

(a) The planting, transplanting, tubing, pre-commercial thinning, and thinning of trees and seedlings; and

(b) The clearing, piling and disposal of brush and slash; and

(c) Other activities related to the forestation or reforestation of lands including, but not limited to, tree shading, pinning, tagging or staking; fire trail construction and maintenance; slash burning and mop up; mulching of tree seedlings; forest fire suppression by contract crew; application of big game repellent by contract crew; herbicide or pesticide application in the forest by contract crew; gopher baiting; gopher trapping and any activity related to the growth of trees and tree seedlings and the disposal of debris from the land.

(16) "Herbicide or pesticide application in the forest by contract crew" means work performed by workers who are recruited, solicited, supplied or employed by a person who has contracted to supply a crew of workers to apply herbicides or pesticides in the forest.

(17) "Individuals engaged in the solicitation or recruitment of persons for day-haul work" means individuals who solicit or recruit only persons:

(a) Who reside permanently in the local area; and

(b) Who do not, temporarily or otherwise, reside on the farm on which they are working; and

(c) Who are not employed by the individuals; and

(d) Who are transported to the farm each day.

(18) "Janitorial Services" means work defined as "Janitorial Services" by the North American Industry Classification System (NAICS) but does not include residential housecleaning services.

(19) "Labor Contractor" or contractor means a construction, property services, farm or forest labor contractor.

(20) "License" means a labor contractor's license issued by the Bureau.

(21) "Perform labor" means the performance of work which is manual or physical in nature (including the use of tools), as distinguished from mental, technical, professional or managerial. Work of a mental, technical, professional or managerial nature includes, but is not limited to:

(a) The operation of aircraft, trucks or heavy equipment that require special permits to operate or labor performed by support crews in connection with such operation;

(b) Stocking surveys;

(c) Timber cruising;

(d) Plantation and timber stand examination;

(e) Surveying;

(f) Secretarial work;

(g) Supervising employees;

(h) Technical or professional work which requires an occupational license (other than the license required by ORS 658.405 to 658.475);

(i) Work requiring an advanced type of knowledge in a field of science, technology or learning customarily acquired over a prolonged course of specialized instruction and study;

(j) Forest research and genetic improvement work (including single-tree or sample lot cone collections and the planting of parent or study trees) that services technical forestry advancement rather than direct forestation or reforestation efforts.

(22) "Permanent employee" means an employee of a farmer, nursery owner, processor of farm products, or owner or lessee of land intended to be used for the production of timber whose employment is intended to continue indefinitely. Employees employed on a seasonal, temporary or transient basis are not permanent employees under the section.

(23) "Person" means any individual, sole proprietorship, partnership, corporation, cooperative corporation, association, public or private corporation, government or governmental instrumentality or other business or legal entity.

(24) "Platoon leader" means a temporary supervisor employed by the farmer to supervise employees hired independently by the farmer and placed under the direction of the platoon leader, provided there is no other connection between the platoon leader and the employees.

(25) "Production and harvesting of farm products" includes, but is not limited to, the cultivation and tillage of the soil, the production, cultivation, growing and harvesting of any agricultural commodity, including, but not limited to, cottonwood trees for fiber production and Christmas trees, and the preparation for and delivery to market of any such commodity.

(26) "Property services contractor" means any person that:

(a) For an agreed remuneration or rate of pay, recruits, solicits, supplies or employs workers to perform labor for another person to provide services that include janitorial services; or

(b) Enters into a subcontract with another for any of the activities described in subparagraph (a) of this paragraph.

(27) "Staffing agency" means any person:

(a) Who operates an established firm, the primary business purpose of which is to provide labor for other employers under written client agreements;

(b) Who conducts business from a fixed business location that is separate from the business or work location of the service recipient; and,

(c) Who simultaneously provides contracted services to two or more client employers, typically to employers representing a range of industries.

(28) "Supplies building materials or machinery, other than manual tools or hand-operated power tools" means to make a substantial investment in a construction project. This investment may be provided by supplying heavy equipment needed to complete the project, such as bull dozers, cranes, land movers, etc. Supplying tools that may be used by hand, such as hammers, skill saws, table saws, reciprocating saws, nail guns, saw horses, compressors, bazookas (for drywall installation) and similar tools would not constitute a substantial investment in the project sufficient to create an exemption. Supplying a significant quantity of structural building materials such as drywall, lumber, concrete, etc. is a substantial investment in a construction project. Supplying incidental materials such as nails, screws, drywall mud, tape, safety goggles, gloves, etc. is not a substantial investment.

(29) "To gather wild forest products" or "the gathering of wild forest products" means the gathering of evergreen boughs, yew bark, bear grass, salal or ferns, and nothing else, from public lands for sale or market prior to processing or manufacture. This term does not include the gathering of these products from private lands in any circumstance or from public lands when the person gathering the products, or the person's employer, does not sell the products in an unmanufactured or unprocessed state.

(a) Example: A nursery uses its own employees to gather evergreen boughs which it uses in the manufacture of Christmas wreaths. The nursery is not engaged in farm labor contracting activity and therefore would not be required to obtain a license.

(b) Example: A person contracts with the owner of private land to remove salal from the land for resale to florists. Because the salal is growing on private land, the person is not engaged in "gathering of wild forest products" as that term is used in these rules (although in some circumstances, the person may be harvesting a farm product).

(30) "To induce to travel" means to cause or entice a worker to travel to a specific geographical location or area, by any promise or inducement.

(31) "Worker" means an individual performing labor in construction, janitorial services, the forestation or reforestation of lands, in the gathering of wild forest products, or in the production and harvesting of farm products, or any person who is recruited, solicited, supplied or employed to perform such labor, notwithstanding whether or not a contract of employment is formed or the labor is actually performed. A "worker" includes, but is not limited to, employees and members of a cooperative corporation.

(31) As used in subsections (4), (13), and (16) of this rule, the term "work performed" has the same meaning as the term "perform labor" in subsection (20) of this rule.

Or. Admin. Code § 839-015-0004

BL 6-1984, f. & ef. 4-27-84; BL 16-1988, f. & cert. ef. 12-13-88; BL 3-1990, f. & cert. ef. 3-1-90; BL 2-1996, f. & cert. ef. 1-9-96; BL 5-1996, f. 6-14-96, cert. ef. 7-1-96; BLI 7-2000, f. & cert. ef. 2-23-00; BLI 13-2014, f. 11-14-14. cert. ef. 7-1-15; BLI 4-2017, amend filed 11/30/2017, effective 01/01/2018; BLI 7-2018, temporary amend filed 03/13/2018, effective 03/13/2018 through 09/08/2018; BLI 19-2018, amend filed 09/12/2018, effective 9/14/2018

Statutory/Other Authority: ORS 658.407

Statutes/Other Implemented: ORS 658.405 - 658.503 & OL Ch. 008 (2018)