Current through Register Vol. 63, No. 3, March 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
