Current through Register Vol. 63, No. 9, September 1, 2024
As used in OAR chapter 839, division 25, unless the context
requires otherwise:
(1) "Apprentice"
means:
(a) A person who is individually
registered in a bona fide apprenticeship program registered with the U.S.
Department of Labor, Office of Apprenticeship (OA), or with any state
apprenticeship agency recognized by OA, and who is employed by a registered
training agent pursuant to ORS
660.010(10) and
is working pursuant to the standards of the apprentice's apprenticeship
program; or
(b) A person in
probationary employment as an apprentice in such an apprenticeship program, but
who is not individually registered in the program, but who has been certified
by the OA or a state apprenticeship agency to be eligible for probationary
employment as an apprentice, and who is employed by a registered training agent
pursuant to ORS 660.010 (10)
and is working pursuant to the standards of the apprentice's apprenticeship
program.
(2) "The Basic
Hourly Rate of Pay" or "Hourly Rate" means the rate of hourly wage, excluding
fringe benefits, paid to the worker.
(3) "Bureau" means the Bureau of Labor and
Industries.
(4) "Collective
bargaining agreement in effect" means a collective bargaining agreement which
is recognized as being binding on all parties by the National Labor Relations
Board; which is enforceable within the geographic area in which the public
improvement is located; and, the terms of which extend to workers who are
working on the public improvement project.
(5) "Commissioner" means the Commissioner of
the Bureau of Labor and Industries, or designee.
(6) "Construction" means the initial
construction of buildings and other structures, or additions thereto, and of
highways and roads. "Construction" does not include the transportation of
material or supplies to or from the public works project by employees of a
construction contractor or construction subcontractor.
(7) "Demolition" includes the dismantling,
razing, destroying, wrecking or removal of buildings or other structures or any
part thereof, and of highways and roads.
(8) "Division" means the Wage and Hour
Division of the Bureau of Labor and Industries.
(9) "Employ" includes to suffer or permit to
work.
(10) "Fringe benefits" means
the amount of:
(a) The rate of contribution
irrevocably made on a "regular basis" and "not less often than quarterly," as
those terms are defined in OAR
839-025-0043, by a contractor or
subcontractor to a trustee or to a third person pursuant to a plan, fund or
program; and
(b) The rate of costs
to the contractor or subcontractor which may be reasonably anticipated in
providing benefits to workers pursuant to an enforceable commitment to carry
out a financially responsible plan or program which is committed in writing to
the workers affected, for medical or hospital care, pensions on retirement or
death, compensation for injuries or illness resulting from occupational
activity, or insurance to provide any of the foregoing, for unemployment
benefits, life insurance, disability and sickness insurance or accident
insurance, for vacation and holiday pay, for defraying costs of apprenticeship
or other similar programs or for other bona fide fringe benefits, but only
where the contractor or subcontractor is not required by other federal, state
or local law to provide any of such benefits. Other bona fide fringe benefits
do not include reimbursement to workers for meals, lodging or other travel
expenses, nor contributions to industry advancement funds (CIAF for example),
drug testing or union dues.
(11)
(a)
"Funds of a public agency" includes any funds of a public agency that are
directly or indirectly used, as described below.
(A) "Directly used funds of a public agency"
means revenue, money, or that which can be valued in money collected for a
public agency or derived from a public agency's immediate custody and control,
and, except as provided in ORS
279C.810(1)(a)(H) and
(J) and subsection (b) of this section,
includes but is not limited to any money loaned by a public agency, including
the loan of proceeds from the sale of conduit or pass-through revenue bonds for
the specific purpose of financing a project, and public property or other
assets used as payment for all or part of a project.
(B) "Indirectly used funds of a public
agency" means, except as provided in subsection (b) of this section, that a
public agency ultimately bears the cost of all or part of the project, even if
a public agency is not paying for the project directly or completing payment at
the time it occurs or shortly thereafter. A public agency does not indirectly
use funds of a public agency when it elects not to collect land rent that is
due. Examples of when an agency "ultimately bears the cost" of all or part of a
project include but are not limited to:
(i)
Amortizing the costs of construction over the life of a lease and paying these
costs with funds of a public agency during the course of the lease;
(ii) A public agency subsidizing the costs of
construction that would normally be borne by the contractor;
(iii) Using insurance proceeds that belong to
a public agency to pay for construction. Insurance proceeds represent "money
collected for the custody and control of a public agency" and therefore are
funds of a public agency, whether the contractor obtains payment directly from
the insurance company or the public agency; or
(iv) Using or creating a private entity as a
conduit for funding a project when the private entity is in fact an alter ego
of the public agency.
(b) "Funds of a public agency" does not
include:
(A) Funds provided in the form of a
government grant to a nonprofit organization, unless the government grant is
issued for the purpose of construction, reconstruction, major renovation or
painting;
(B) Building and
development permit fees paid or waived by the public agency;
(C) Tax credits or tax abatements;
(D) Land that a public agency sells to a
private entity at fair market value;
(E) The difference between:
(i) The value of land that a public agency
sells to a private entity as determined at the time of the sale after taking
into account any plan, requirement, covenant, condition, restriction or other
limitation, exclusive of zoning or land use regulations, that the public agency
imposes on the development or use of the land; and
(ii) The fair market value of the land if the
land is not subject to the limitations described in subparagraph (i) of this
paragraph;
(F) Staff
resources of the public agency used to manage a project or to provide a
principal source of supervision, coordination or oversight of a
project;
(G) Staff resources of the
public agency used to design or inspect one or more components of a
project;
(H) Moneys derived from
the sale of bonds that are loaned by a state agency to a private entity, unless
the moneys will be used for a public improvement;
(I) Value added to land as a consequence of a
public agency's site preparation, demolition of real property or remediation or
removal of environmental contamination, except for value added in excess of the
expenses the public agency incurred in the site preparation, demolition or
remediation or removal when the land is sold for use in a project otherwise
subject to ORS 279C.800 to
279C.870; or
(J) Bonds, or loans from the proceeds of
bonds, issued in accordance with ORS Chapter 289 or 441.525 to 441.595, unless
the bonds or loans will be used for a public improvement.
(12) "Hazardous waste" has the
meaning given in OAR 340-100-0010.
(13) "Highest rate of wage among collective
bargaining agreements" is the highest rate of wage when combining the hourly
rate plus the fringe benefits.
(14)
"Housing" has the meaning given that term in ORS
456.055.
(15) "Labor organization" means any
organization certified as such by the National Labor Relations Board.
(16) "Major renovation" means the remodeling
or alteration of buildings and other structures within the framework of an
existing building or structure and the alteration of existing highways and
roads, the contract price of which exceeds $50,000.
(17) "Nonprofit organization," as used in
section (9)(b)(A) of this rule, means an organization or group of organizations
described in section 501(c)(3) of the
Internal Revenue Code that is exempt from income tax under section
501(a) of the
Internal Revenue Code.
(18) "Normal
business hours" means the hours during which the office of the contractor or
subcontractor is normally open for business. In the absence of evidence to the
contrary, the Division will consider the hours between 8:00 a.m. and 5:00 p.m.,
excluding the hours between 12:00 noon and 1:00 p.m., on weekdays as normal
business hours.
(19) "Overtime"
means all hours worked:
(a) On
Saturdays;
(b) On the following
legal holidays:
(A) Each Sunday;
(B) New Year's Day on January 1;
(C) Memorial Day on the last Monday in
May;
(D) Independence Day on July
4;
(E) Labor Day on the first
Monday in September;
(F)
Thanksgiving Day on the fourth Thursday in November;
(G) Christmas Day on December 25.
(c) Over 40 hours in a week; and
either
(d) Over eight (8) hours in
a day; or
(e) Over 10 hours in a
day provided:
(A) The employer has established
a work schedule of four consecutive days (Monday through Thursday or Tuesday
through Friday) pursuant to OAR
839-025-0034; and
(B) The employer operates in accordance with
this established work schedule.
(20) "Overtime rate" means the basic hourly
rate of pay multiplied by one and one-half.
(21) "Overtime wages" means the overtime
hours worked multiplied by the overtime rate.
(22) "Person" includes a public or private
corporation, a partnership, a sole proprietorship, a limited liability company,
a government or governmental instrumentality.
(23) "Prevailing wage rate claim" means a
claim for wages filed by a worker with the Division.
(24) "Public agency" means the State of
Oregon or any political subdivision thereof or any county, city, district,
authority, public corporation or entity and any instrumentality thereof
organized and existing under law or charter.
(25)
(a)
"Public work," "public works" or "public works project" includes but is not
limited to:
(A) Roads, highways, buildings,
structures and improvements of all types for which a public agency contracts or
carries on construction, reconstruction, major renovation, demolition, removal
of hazardous waste or painting to serve the public interest;
(B) A project for constructing,
reconstructing, painting, demolishing, removing hazardous waste from, or
performing a major renovation on a road, highway, building, structure or
improvement of any type that uses $750,000 or more of funds of a public
agency;
(C) A project for the
construction of a privately owned road, highway, building, structure or
improvement of any type that uses funds of a private entity and in which 25
percent or more of the square footage of the completed project will be occupied
or used by a public agency;
(D) A
device, structure, or mechanism, or a combination of devices, structures, or
mechanisms that:
(i) Uses solar radiation as a
source for generating heat, cooling, or electrical energy; and
(ii) Is constructed or installed, with or
without using funds of a public agency, on land, premises, structures, or
buildings that a public agency owns, regardless of the total project
cost;
(E) A project for
the construction, reconstruction, painting, demolition, removal of hazardous
waste from, or major renovation of, a road, highway, building, structure, or
improvement of any type that occurs, with or without using funds of a public
agency, on real property that a public university listed in ORS
352.002 owns;
(F) Demolition of, or removal of hazardous
waste from, a road, highway, building, structure or improvement of any type
that uses $750,000 or more in funds of a public agency, or that occurs on real
property that a state agency owns, but that does not involve constructing,
reconstructing, renovating or painting a road, highway, building, structure or
improvement; or
(G) Pursuant to ORS
352.138(4)(b),
a project resulting from an agreement under the terms of which a private entity
constructs, reconstructs, renovates or paints an improvement of any type that
occurs, with or without using funds of a public agency, on real property owned
by a public university listed in ORS
352.002 or by a nonprofit
organization or other entity that a public university listed in ORS
352.002 owns or controls
exclusively.
(b) "Public
work," "public works" or "public works project" does not include reconstructing
or renovating privately owned property that a public agency leases.
(26) "Public works contract" or
"contract" means any contract, agreement or understanding, written or oral,
into which a public agency enters for any public work.
(27) "Reconstruction" means highway and road
resurfacing and rebuilding, the restoration of existing highways and roads, and
the restoration of buildings and other structures.
(28) "Reconstruction or renovation of
privately owned property which is leased by a public agency" includes
improvements of all types within the framework or footprint of an existing
building or structure.
(29)
(a) "Residential construction project" means
a public works project for the construction, reconstruction, major renovation
or painting of a single family house or apartment building of not more than
four (4) stories in height and all incidental items such as site work, parking
areas, utilities, streets and sidewalks pursuant to the U.S. Department of
Labor's "All Agency Memorandum No. 130" -- "Application Of The Standard of
Comparison 'Projects Of a Character Similar' Under the Davis-Bacon and Related
Acts" dated March 17, 1978, and "All Agency Memorandum No. 131" "Clarification
of All Agency Memorandum No. 130" dated July 14, 1978. (See Appendix
6.)
(b) Notwithstanding the
provisions of subsection (a) of this section, where it is determined that a
different definition of "residential construction" has been adopted by local
ordinance or code, or that the prevailing practice of a particular trade or
occupation regarding what is considered "residential construction" differs from
the U.S. Department of Labor definition of residential construction, the
commissioner may consider such information in determining a project to be a
"residential construction project."
(30) "Site of work" is defined as follows:
(a) The site of work is limited to the
physical place or places where the construction, reconstruction, major
renovation or painting called for in the contract will remain when work on it
has been completed, or the physical place or places where the demolition or
hazardous waste removal called for in the contract will be performed, and other
adjacent or nearby property used by the contractor or subcontractor for such
work which can reasonably be said to be included in the site.
(b) Except as provided in subsection (c) of
this section, fabrication plants, mobile factories, batch plants, borrow pits,
job headquarters, tool yards and similar facilities, are part of the site of
work provided they are dedicated exclusively, or nearly so, to the performance
of the contract or project, and are so located in proximity to the actual
construction location that it would be reasonable to include them. Such
facilities which are established by a supplier of materials for the project
after the opening of bids are deemed to be dedicated exclusively to the
performance of the contract or project.
(c) Not included in the site of work are
permanent home offices, branch plant establishments, fabrication plants, and
tool yards of a contractor or subcontractor whose locations and continuance in
operation are determined wholly without regard to a particular contract or
project. In addition, fabrication plants, batch plants, borrow pits, job
headquarters, tool yards, and similar facilities of a commercial supplier or
materialman which are established by a supplier of materials for the project
before opening of bids and not on the project site, are not included in the
site of work. Such permanent, previously established facilities are not part of
the site of the work, even where the operations for a period of time may be
dedicated exclusively, or nearly so, to the performance of a contract or
project.
(31) "Special
wage determination" means a wage determination made at the request of a public
agency and which is applicable only to specific job classes. A special wage
determination is issued in those cases where there is no current wage
determination applicable to specific job classes and the use of such job
classes is contemplated on a public works project.
(32) "Staff resources of a public agency"
means employees of the public agency who may manage, supervise or oversee a
project or employees of the public agency used to design or inspect one or more
components of a project, but not persons with whom a public agency contracts to
perform such services.
(33) "Trade"
or "occupation" is defined in accordance with the prevailing practices of the
construction industry in Oregon.
(34) "Trainee" means a person registered and
receiving on-the-job training in a construction occupation under a program
which has been approved in advance by the U.S. Department of Labor, Office of
Apprenticeship (OA), as meeting its standards for on-the-job training programs,
and which has been so certified by that office, and who is employed by a
registered training agent pursuant to ORS
660.010(10) and
is working pursuant to the standards of the trainee's program.
(35) "Training agent" means an employer that
is registered with a local joint committee and the Apprenticeship and Training
Division of the Bureau of Labor and Industries.
(36) "Wage determination" includes the
original decision and any subsequent amendments made by the commissioner in
accordance with ORS 279C.815.
(37) "Wages" or "Prevailing Wages" means the
basic hourly rate of pay and fringe benefits as defined in this rule.
(38) "Worker" means a person employed on a
public works project and whose duties are manual or physical in nature
(including those workers who use tools or who are performing the work of a
trade), as distinguished from mental, professional or managerial. The term
"worker" includes apprentices, trainees and any person employed or working on a
public works project in a trade or occupation for which the commissioner has
determined a prevailing rate of wage.
To view tables referenced in rule text,
click here to view
rule.
Statutory/Other Authority: ORS
651.060 & ORS
279C.808
Statutes/Other Implemented: ORS
279C.800 -
279C.870
