Occupational Safety and Health

ORS 654.062
Notice of violation to employer by worker

  • complaint by worker to director
  • inspection
  • protection of complaining employees
  • rebuttable presumption

(1)

Every employee should notify the employer of any violation of law, regulation or standard pertaining to safety and health in the place of employment when the violation comes to the knowledge of the employee.

(2)

However, any employee or representative of the employee may complain to the Director of the Department of Consumer and Business Services or any authorized representatives of the director of any violation of law, regulation or standard pertaining to safety and health in the place of employment, whether or not the employee also notifies the employer.

(3)

Upon receiving any employee complaint, the director shall make inquiries, inspections and investigations that the director considers reasonable and appropriate. When an employee or representative of the employee has complained in writing of an alleged violation and no resulting citation is issued to the employer, the director shall furnish to the employee or representative of the employee, upon written request, a statement of reasons for the decision.

(4)

The director shall establish procedures for keeping confidential the identity of any employee who requests protection in writing. When a request has been made, neither a written complaint from an employee, or representative of the employee, nor a memorandum containing the identity of a complainant may be disclosed under ORS 192.311 (Definitions for ORS 192) to 192.478 (Exemption for Judicial Department).

(5)

It is an unlawful employment practice for any person to bar or discharge from employment or otherwise discriminate against any employee or prospective employee because the employee or prospective employee has:

(a)

Opposed any practice forbidden by ORS 654.001 (Short title) to 654.295 (Application of Oregon Safe Employment Act), 654.412 (Definitions for ORS 654) to 654.423 (Use of physical force by health care employee in self-defense against assault) and 654.750 (Definitions for ORS 654) to 654.780 (Providing basic information to employees);

(b)

Made any complaint or instituted or caused to be instituted any proceeding under or related to ORS 654.001 (Short title) to 654.295 (Application of Oregon Safe Employment Act), 654.412 (Definitions for ORS 654) to 654.423 (Use of physical force by health care employee in self-defense against assault) and 654.750 (Definitions for ORS 654) to 654.780 (Providing basic information to employees), or has testified or is about to testify in any such proceeding;

(c)

Exercised on behalf of the employee, prospective employee or others any right afforded by ORS 654.001 (Short title) to 654.295 (Application of Oregon Safe Employment Act), 654.412 (Definitions for ORS 654) to 654.423 (Use of physical force by health care employee in self-defense against assault) and 654.750 (Definitions for ORS 654) to 654.780 (Providing basic information to employees); or

(d)

In good faith reported an assault that occurred on the premises of a health care employer as defined in ORS 654.412 (Definitions for ORS 654) or in the home of a patient receiving home health care services.
(6)(a) Any employee or prospective employee alleging to have been barred or discharged from employment or otherwise discriminated against in compensation, or in terms, conditions or privileges of employment, in violation of subsection (5) of this section may, within one year after the employee or prospective employee has reasonable cause to believe that the violation has occurred, file a complaint with the Commissioner of the Bureau of Labor and Industries alleging discrimination under the provisions of ORS 659A.820 (Complaints). Upon receipt of the complaint the commissioner shall 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) to 654.423 (Use of physical force by health care employee in self-defense against assault) and 654.750 (Definitions for ORS 654) 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, gender identity, national origin, marital status, age or expunged juvenile record prohibited) (1)(f).

(b)

Within 90 days after receipt of a complaint filed under this subsection, the commissioner shall notify the complainant of the commissioner’s determination.

(c)

The 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 subsection (5) of this section. 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).

(d)

The commissioner or the circuit court may order all appropriate relief including rehiring or reinstatement to the employee’s former position with back pay.
(7)(a) In any action brought under subsection (6) of this section, there is a rebuttable presumption that a violation of subsection (5) of this section has occurred if a person bars or discharges an employee or prospective employee from employment or otherwise discriminates against an employee or prospective employee within 60 days after the employee or prospective employee has engaged in any of the protected activities described in subsection (5)(a) to (d) of this section. The person may rebut the presumption that a violation of subsection (5) of this section has occurred by a demonstration of a preponderance of the evidence.

(b)

If a person bars or discharges an employee or prospective employee from employment or otherwise discriminates against the employee or prospective employee more than 60 days after the employee or prospective employee has engaged in any of the protected activities described under subsection (5)(a) to (d) of this section, such action does not create a presumption in favor of or against finding that a violation of subsection (5) of this section has occurred. Where such action has occurred more than 60 days after the protected activity, this subsection does not modify any existing rule of case law relating to the proximity of time between a protected activity and an adverse employment action. The burden of proof shall be on the employee or prospective employee to demonstrate by a preponderance of the evidence that a violation occurred. [Formerly 654.235; 1973 c.833 §14; 1983 c.275 §1; 1999 c.55 §3; 2001 c.621 §82; 2005 c.198 §1; 2007 c.279 §1; 2019 c.350 §3; 2021 c.293 §1; 2021 c.336 §1]

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), aff’d 365 Or 196, 445 P3d 281 (2019)

Source

Last accessed
Mar. 11, 2023

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