OAR 839-004-0021
Procedures for Complaints; Statutes of Limitation; Private Right of Action; Statutory Construction; Remedies
(1)
Employees or prospective employees alleging violations of ORS 654.062 (Notice of violation to employer by worker)(5) of the Oregon Safe Employment Act (OSEA) may file a complaint with the Civil Rights Division (division) of the Bureau of Labor and Industries as aggrieved persons as provided in ORS 659A.820 (Complaints) and OAR 839-003-0031 (Filing a Complaint under the Oregon Safe Employment Act (OSEA)).(2)
Aggrieved persons alleging violations of ORS 654.062 (Notice of violation to employer by worker)(5) must contact the division within 90 days after the date on which the aggrieved person has reasonable cause to believe they have been discriminated against. An aggrieved person would have reasonable cause to believe a violation has occurred on the earliest date that the aggrieved person:(a)
Believed discrimination had occurred against the aggrieved person for opposing practices prohibited by OSEA; and(b)
Knew or should have known of the right to file a complaint with the division and of the requirement to contact the division within 90 days after the alleged discrimination.(A)
If a notice required by OSEA, as provided in OAR 437-001-0275 (Posting Requirements)(2)(a), was properly posted in the employee’s workplace, continuously on and following the date of the alleged retaliation, the division will find that the employee knew or should have known of the requirement to contact the division within 90 days after the alleged discrimination.(B)
If the employer failed to post the required OSEA poster, the requirement to contact the division within 90 days after the alleged discrimination will begin on the date the employee learned of the right to file a complaint and of the 90 day requirement. The employee may establish this date based on the employee’s own statement or other evidence offered by the employee.(C)
If the employer disagrees with the employee’s presented date as the date the employee learned of the right to file a complaint, the burden is on the employer to show that the employee knew or should have known on an earlier date.(D)
If extenuating circumstances exist, the division may extend the 90-day period as provided in 29 CFR §1977.15(3).(3)
Upon receipt of a complaint the commissioner of the Bureau of Labor and Industries (commissioner) will process the complaint under the procedures, policies and remedies established by ORS chapter 659A and the policies established by ORS 654.001 (Short title) to 654.295 (Application of Oregon Safe Employment Act), 654.412 (Definitions for ORS 654.412 to 654.423) to 654.423 (Use of physical force by health care employee in self-defense against assault) and 654.750 (Definitions for ORS 654.750 to 654.780) to 654.780 (Providing basic information to employees) in the same way and to the same extent that the complaint would be processed if the complaint involved allegations of unlawful employment practices under ORS 659A.030 (Discrimination because of race, color, religion, sex, sexual orientation, national origin, marital status, age or expunged juvenile record prohibited)(1)(f).(4)
Intentionally left blank —Ed.(a)
If the commissioner dismisses the complaint, the commissioner will issue a notice to the aggrieved person pursuant to ORS 659A.880 (Ninety-day notice) that a civil action may be filed within 90 days of the dismissal.(b)
The aggrieved person may appeal the dismissal to the Oregon Occupational Safety and Health Division within 15 calendar days of issuance of the determination.(5)
Provisions of OSEA are to be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Occupational Safety and Health Act of 1970, 29 USC ch.15 §651-678 as amended (OSHA).(6)
An affected employee or prospective employee may bring a civil action in any circuit court of the State of Oregon against any person alleged to have violated ORS 654.062 (Notice of violation to employer by worker)(5). The civil action must be commenced within one year after the employee or prospective employee has reasonable cause to believe a violation has occurred, unless a complaint has been timely filed under ORS 659A.820 (Complaints).(7)
The commissioner or the circuit court may order all appropriate relief including rehiring or reinstatement to the employee’s former position with back pay.
Source:
Rule 839-004-0021 — Procedures for Complaints; Statutes of Limitation; Private Right of Action; Statutory Construction; Remedies, https://secure.sos.state.or.us/oard/view.action?ruleNumber=839-004-0021.