Or. Admin. Code § 839-015-0500 - Action Against the Bond or Deposit
(1) Any person not paid wages owed to him/her
by a construction, farm or forest labor contractor or any construction property
owner, farmer or owner or lessee of land intended to be used for the production
of timber not paid advances due them by the farm or forest labor contractor has
a right of action against the surety on the bond or deposit with the
commissioner. The individual may exercise this right or may assign this right
to another.
(2) The action on the
bond or on the deposit held by the commissioner may not be joined in a suit or
action on the bond or against the commissioner brought for any other
claim.
(3) Any person seeking to
recover on the bond or from the deposit with the commissioner must first
establish the licensee's liability. The liability may be established in any of
the following ways:
(a) A judgment of the
court;
(b) A final administrative
order issued pursuant to statute or rule;
(c) The acknowledgment of the contractor of
such liability;
(d) Other
satisfactory evidence of liability as may be shown which establishes the
liability.
(4) Claims
against the bond or deposit will not be paid unless, within six months of the
end of the period during which the bond or deposit applies, the claimant or
claimant's assignee gives notice of the claim by certified mail to the surety
or the commissioner. Notice of claim shall be sufficient if it states that a
wage claim is being made by the worker against the contractor, and it is not a
defense to payment on the bond or deposit that the amount of the wage claim is
not specified in the notice, or that the ultimate amount of wages found to be
due is greater than the amount specified in the notice.
(5) Any claim or notice of claim filed
pursuant to a claimant's right of action must be filed as follows:
(a) If the filing is against a surety bond,
the claim or notice must be filed with the surety. The name and address of the
surety may be obtained from the Bureau of Labor and Industries, Wage and Hour
Division, License Unit, 3865 Wolverine Street, NE, Bldg. E-1, Salem, OR
97305;
(b) If the filing is against
a deposit held by the commissioner, the claim or notice must be filed with the
Bureau of Labor and Industries, Wage and Hour Division, Farm Labor Unit, 3865
Wolverine Street, NE, Bldg. E-1, Salem, OR 97305.
(6) Except as provided in section (8) of this
rule, the commissioner and the surety shall make payments on the bond or
deposit in the following priority:
(a)
Payments on wage claims;
(b)
Payments on advances made to or on behalf of the contractor by a construction
property owner, farmer or an owner or lessee of land intended to be used for
the production of timber;
(c) If
there are insufficient funds to pay all wage claims in full, such claims will
be paid in part;
(d) If there are
insufficient funds to pay advances in full after all wage claims are paid, such
advances will be paid in part.
(7) Except as provided in section (8) of this
rule, in order to insure that all wage claims will be accorded priority
treatment as required by ORS
658.415(9)(a),
the commissioner may delay any payments for advances claimed, until the
expiration of the time within which wage claims may be submitted. The
commissioner may make conditional payment based upon adequate security that
subsequent wage claims will be paid.
(8) Any person who suffers any loss of wages
from the employer of the person or any other loss due to activities of an
agricultural association or private nonprofit corporation as a farm labor
contractor shall have a right of action against the surety upon the bond or
against the deposit with the commissioner. The right of action is assignable
and may not be included in any action against the agricultural association or
private nonprofit corporation but shall be exercised independently after first
procuring adequate proof of liability as provided in section (3) of this
rule.
(9) A member of any
agricultural association that is required to be licensed under ORS
658.410 shall be jointly and
severally liable for any damages, attorney fees, or costs awarded to any person
for actions taken by the association in its capacity as a farm labor contractor
if such actions were required, authorized, approved or ratified by the
member.
(10) The surety company or
the commissioner shall make prompt and periodic payments on the agricultural
association's or private nonprofit corporation's liability up to the extent of
the total sum of the bond or deposit. Payments shall be made in the following
manner:
(a) Payment based upon priority of
wage claims over other liabilities;
(b) Payment in full of all sums due to each
person who presents adequate proof of the claim; and
(c) If there are insufficient funds to pay in
full the person next entitled to payment in full, payment in part to the
person.
Notes
Statutory/Other Authority: ORS 164, 165, 651, 658 & 962
Statutes/Other Implemented: ORS 658.405 - 658.503
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