Current through Register Vol. 63, No. 12, December 1, 2024
(1) When an
employer willfully fails to pay all or part of the wages due and payable to the
employee upon termination of employment within the time specified in OAR
839-001-0420,
839-001-0430 and
839-001-0440, the employer will
be subject to the following penalty:
(a) The
wages of the employee will continue to accrue from the date the wages were due
and payable until the date the wages are paid or until a legal action is
commenced, whichever occurs first;
(b) The employee's wages will continue to
accrue at the employee's hourly rate of pay times eight (8) hours for each day
the wages are unpaid;
(c) The
maximum penalty will be no greater than the employee's hourly rate of pay times
8 hours per day times 30 days.
(d)
Except as provided in subsection (e), the wages of an employee that are
computed at a rate other than an hourly rate (e.g. salaries) will be reduced to
an hourly rate for penalty computation purposes by dividing the total wages
earned during the wage claim period (the period for which wages are owed and
upon which the wage claim is based) by the total number of hours worked during
the wage claim period.
(e)
Notwithstanding subsection (d), when wages are earned based on commission,
bonus, piece rate, or other methods not based on hours worked, the wages will
be reduced to an hourly rate for penalty computation purposes by dividing the
total wages earned in the last 30 calendar days of employment by the total
number of hours worked in the last 30 calendar days of employment. If the
employee was employed for less than 30 days, the total wages earned during the
entire period of employment will be divided by the number of hours worked
during the entire period of employment.
(2) If the employer pays the full amount of
unpaid wages within 12 calendar days after the written notice of such unpaid
wages is sent by the employee or a person on behalf of the employee, the
penalty may not exceed 100 percent of the employee's unpaid wages.
(a) If the employee or person on behalf of
the employee fails to send the written notice of unpaid wages to the employer,
the penalty may not exceed 100 percent of the employee's unpaid
wages.
(b) Subsection (2) does not
apply when the employer has violated ORS
652.140,
652.145 one or more times in the
year before the employee's employment ceased or the employer terminated one or
more other employees on the same date that the employee's employment
ceased.
(c) For purposes of
determining when an employer has paid wages or compensation under this
subsection, payment occurs on the date the employer delivers the payment to the
employee or sends the payment by first class mail, express mail or courier
service to the employee's last-known address.
(3) Additional actual wages owed to an
employee in any pay period for which the employer has timely paid the employee
any estimated wages due and payable in compliance with OAR
839-001-0420(3)(b)
are not considered unpaid wages subject to
the penalty provisions of section (1) of this rule unless the employer fails to
pay the employee the additional actual wages owed for such pay period within
the time required under OAR
839-001-0420(3)(c).
(4) In addition to any other penalty provided
by law, the Commissioner of the Bureau of Labor and Industries may assess a
civil penalty not to exceed $1000 against any person who violates ORS
652.140 and
652.145 or any rule adopted
pursuant thereto.
(5) When an
employer shows that it was financially unable to pay the wages at the time the
wages accrued, the employer will not be subject to the penalty provided for in
OAR 839-001-0470. If an employer
continues to operate a business or chooses to pay certain debts and obligations
in preference to an employee's wages, there is no financial
inability.
Stat. Auth.: ORS
652.165
Stats. Implemented: ORS
652.150
