The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

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BUREAU OF LABOR AND INDUSTRIES

 

DIVISION 2
PROCEDURAL RULES

839-002-0001
Purpose of These Rules
The Bureau of Labor and Industries
is authorized to develop administrative rules necessary for enforcement of statutes
for which it is responsible. The purpose of these rules is to guide the bureau in
the rule-making process.
Stat. Auth.: ORS 183

Stats. Implemented: ORS 183.335
Hist.: BLI 1-2000, f. & cert. ef. 1-11-00; BLI 33-2008,
f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
839-002-0002
Proposed Rule Notice
Prior to the permanent adoption,
amendment or repeal of any rule of the Bureau of Labor and Industries, the bureau
will give notice of intended action:
(1) In the Secretary of State's
Bulletin, referred to in ORS 183.360, at least 21 days prior to the rule's effective
date.
(2) To persons on the bureau's
mailing list and email list established pursuant to ORS 183.335(8).
(3) To the legislature, by mailing
a copy of the notice to the legislators specified in ORS 183.335(15) at least 49
days before the effective date of the rule.
(4) To the general public, by
posting the notice on the bureau's Website.
Stat. Auth.: ORS 183

Stats. Implemented: ORS 183.335

Hist.: BLI 1-2000, f. &
cert. ef. 1-11-00; BLI 8-2004, f. 7-26-04, cert. ef. 7-27-04; BLI 7-2006, f. 3-16-06
cert. ef. 3-20-06; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0005
Model Rules of Procedure
(1) The Attorney General's Model
Rules of Procedure under the Administrative Procedures Act, are hereby adopted to
govern the operations of the Bureau of Labor and Industries.
(2) The Model Rules of Procedure
will govern operations of the Hearings Unit of the Bureau of Labor and Industries
except to the extent they conflict with or are modified by rules in any division
of chapter 839 of the Oregon Administrative Rules. The rules for contested case
proceedings are set forth in OAR chapter 839, division 50.
[ED. NOTE: The full text of
the Attorney General's Model Rules of Procedure is available from the office of
the Attorney General or the Bureau of Labor and Industries.]
Stat. Auth.: ORS 183

Stats. Implemented: ORS 183.341

Hist.: BL 5-1980, f. & ef.
8-4-80; BL 2-1981, f. & ef. 1-8-81; BL 3-1982, f. & ef. 2-9-82; BL 4-1996,
f. & cert. ef. 3-12-96; BLI 1-2000, f. & cert. ef. 1-11-00; BLI 7-2006,
f. 3-16-06 cert. ef. 3-20-06; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI
13-2011, f. 12-30-11, cert. ef. 1-1-12
 
Investigative Subpoenas for Civil Rights Division and Wage and Hour Division
839-002-0015
Authority
(1) ORS 651.060(1) authorizes
the commissioner to conduct investigations in all matters relating to the duties
required under ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170,
and Chapters 652, 653, 658, and 659A.
(2) ORS 651.060(1) gives the
commissioner the authority to issue subpoenas ad testificandum and subpoenas duces
tecum, administer oaths, obtain evidence and take testimony.
(3) These rules govern the commissioner’s
gathering of information through subpoenas or testimony and establish procedures
through which a subpoenaed party may object to answering questions or producing
any document or other thing subpoenaed.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0020
Definitions
(1) “Division” means
the Civil Rights Division and Wage and Hour Division in the Bureau of Labor and
Industries.
(2) “Document” means
any existing written, printed, typed, or recorded matter of any kind or nature,
however produced or reproduced, including but not limited to all mechanical, electronic,
sound or video recordings or their transcripts, photographs, electronic files and
computer stored data.
(3) “Other thing”
means any existing tangible object that is not a “document.”
(4) “Party” means
any person who has been served by a subpoena under these rules.
(5) “Person” means
any individual, partnership, corporation, association, governmental subdivision,
or public or private organization of any character.
(6) “Subpoena ad testificandum”
is a subpoena that requires an individual to appear and give testimony under oath.
(7) “Subpoena duces tecum”
is a subpoena that requires the production of documents or other things.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0025
Who and What May Be Subpoenaed
The commissioner may issue subpoenas
to persons to compel testimony and the production of documents or other things that
are relevant to the commissioner’s lawful investigative purpose and reasonable
in scope under matters relating to the duties required under ORS 279C.800 to 279C.870,
651.030, 651.050, 651.120 and 651.170, and chapters 652, 653, 658, and 659A.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0030
Circumstances under Which
a Subpoena May be Issued
(1) The commissioner may issue
a subpoena at any time when the information sought is relevant to a lawful investigative
purpose and is reasonable in scope. Investigative purposes include any preliminary
inquiries in determining whether to pursue a formal investigation.
(2) The commissioner may issue
a subpoena ad testificandum to compel a person to testify under oath when:
(a) A Division determines that
the person is a material witness in an investigation being conducted by the Division
under ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170, or chapters
652, 653, 658, and 659A; and
(b) The Division has been unable
to interview the person after having made reasonable attempts to do so, or the person
states that the person will only consent to an interview if first served with a
subpoena.
(3) The commissioner may also
issue a subpoena ad testificandum to compel a person to testify under oath about
the contents of documents or other things produced in response to a subpoena duces
tecum served on the same person.
(4) The commissioner may issue
a subpoena duces tecum to compel a person to produce documents or other things when:
(a) A Division determines that
the documents or other things are relevant to the Division’s inquiry being
conducted under ORS 279C.800 to 279C.870, 651.030, 651.050, 651.120 and 651.170,
or chapters 652, 653, 658, and 659A; and
(b) The Division has made a
written request for production of documents or things and the person to whom the
request was made has failed to comply within the time specified by the Division,
unless the commissioner finds a subpoena is necessary to protect the documents and
things from destruction.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 5-2010(Temp),
f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10;
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
839-002-0035
Who May Issue Subpoenas
The commissioner or the commissioner’s
designees may issue subpoenas.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0040
Subpoena Duces Tecum
(1) A subpoena duces tecum may be issued
to any person who has custody, possession, or control of documents or other things
named in the subpoena duces tecum when the conditions set out in OAR 839-002-0030(4)
have been met.
(2) A subpoena duces tecum issued
to a corporation will be addressed to the records custodian of the corporation.
(3) A subpoena duces tecum will
not require production of documents or other things less than 14 days from the date
of service upon the person required to produce and permit inspection of the documents
or things unless the commissioner finds a shorter period necessary to protect the
documents and things from destruction or if the Division has an immediate need for
the documents or things being subpoenaed.
(4) The commissioner may also
command the person to whom a subpoena duces tecum is issued to produce documents
and other things by mail or otherwise, at a time and place specified in the subpoena,
without commanding inspection of the originals. The person to whom the subpoena
is directed complies if the person produces copies of the specified items in the
specified manner and certifies that the copies are true copies of all documents
and other things responsive to the subpoena.
(5) The subpoenaed documents
and other things must be produced at the location, time, and date required in the
subpoena.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 5-2010(Temp),
f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10;
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
839-002-0045
Subpoena Ad Testificandum
(1) A subpoena ad testificandum
may be issued to any person when the conditions set out in 839-002-0030(2) or 839-002-0030(3)
have been met.
(2) The subpoena ad testificandum
must give the person a reasonable time for preparation and travel to the place of
attendance and the place of attendance must be in a suitable place in the vicinity
to which testimony is applicable.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 5-2010(Temp),
f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10;
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
839-002-0050
Method of Service
(1) Except as noted in subsections
(2) and (3) of this rule, subpoenas must be served in person by delivering a copy
to the witness personally and, at the same time, giving or offering to the witness
the fees to which the person is entitled for travel to and from the place where
the witness is commanded to appear, along with one day’s attendance fee. A
subpoena may be served by any person 18 years of age or older.
(2) Subpoenas ad testificandum
may be served by mail under the following circumstances:
(a) The Division must have,
by personal or telephone contact, confirmed the witness’s willingness to appear
if subpoenaed and certify this on the return of service;
(b) The Division made arrangements
for payment to the witness of fees and mileage satisfactory to the witness and pays
those fees and mileage; and
(c) The subpoena is sent by
certified mail to the witness more than 10 days before the date set for appearance
or production of documents or other things and the Division receives a return receipt
signed by the witness more than three days prior to that date.
(3) A subpoena duces tecum that
commands production of documents or other things but is not accompanied by a subpoena
ad testificandum may be served by mailing the subpoena to the person required to
produce and permit inspection of the documents or things by first class mail and
by certified or registered mail, return receipt requested.
(4) A subpoena duces tecum issued
to a corporation will be served in accordance with requirements for service of summons
on a corporation pursuant to ORCP 7 D(3)(b).
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A; ORCP 7

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 5-2010(Temp),
f. 2-10-10, cert. ef. 2-12-10 thru 8-6-10; BLI 14-2010, f. 5-4-10, cert. ef. 5-5-10;
BLI 13-2011, f. 12-30-11, cert. ef. 1-1-12
839-002-0055
Fees
All persons subpoenaed by the
commissioner must be paid the mileage and per diem set out in ORS 44.415(2).
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0060
Time and Manner of Objecting
to Subpoenas
(1) Any person served with an
investigative subpoena may object to testifying or providing the documents or other
things sought. Grounds for objections include:
(a) The information sought is
irrelevant to a lawful investigative purpose;
(b) The information sought is
unreasonable in scope;
(c) The witness is ordered to
appear to give testimony in a place that is not suitable or not in the vicinity
to which the testimony is applicable;
(d) The time and expense involved
in copying the documents sought. In order to have this objection considered, a person
making this objection must include a written estimate of the time involved and number
of copies to be made in order to comply with the subpoena;
(e) Reasonable cause to refuse
to comply; and
(f) Any other basis that may
be asserted under Oregon law.
(2) Objections to subpoenas
must be in writing and must be received by the Division at least seven calendar
days before the time that the witness is subpoenaed to testify or provide documents
or other things.
(3) If a subpoenaed witness
refuses to answer specific questions while giving testimony, the witness must state
the reason for the witness’s objection at the time that the witness refuses
to answer the questions.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0065
Response to Objections
(1) The Division serving a subpoena
will respond in writing within fourteen calendar days of receiving objection from
a person receiving the subpoena that:
(a) Alleges grounds stated
in OAR 839-002-0060(1); and
(b) Is timely received under
the requirements of OAR 839-002-0060(2).
(2) In its response the Division
will address the specific objections raised.
(3) The Division may at its
discretion prior to or upon the fourteenth calendar day to respond, engage in communication
with the person objecting to the subpoena to determine whether the Division’s
objective and the objecting person’s concerns can be addressed without enforcing
the subpoena as provided in OAR 839-002-0080.
Stat. Auth.: ORS 651.060, 658.220 &
659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12; BLI 1-2015(Temp), f. 1-5-15, cert. ef. 1-6-15 thru 7-4-15;
BLI 4-2015, f. & cert. ef. 5-15-15
839-002-0070
Method of Taking Testimony
(1) When a witness appears to
give testimony in response to a subpoena ad testificandum, an oath or affirmation
will be administered to the witness prior to the witness’s testimony. The
oath or affirmation will be administered by an officer authorized to administer
oaths in Oregon, generally a notary public employed by the Bureau of Labor and Industries.
(2) The witness’s testimony will
be preserved by an audio or video recording. Upon request, the Division will give
the witness a copy of the recording at no cost.
Stat. Auth.: ORS 651.060, 658.220 &
659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0075
Failure to Appear
If a person served with a subpoena
fails to appear and has not filed any prior objections, the commissioner will conclude
that the person has refused, without reasonable cause, to answer any question or
to produce any document or other thing.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12
839-002-0080
Enforcement of Subpoena
If a person served with a subpoena
refuses, without reasonable cause, to be examined, to answer any question, or to
produce any document or other thing as required by the subpoena, the commissioner
may petition the circuit court in the county in which the investigation is pending
for an order directing the person to show cause why the person has not complied
with the subpoena and should not be held in contempt. The commissioner shall serve
the court’s order upon the person in the manner provided by ORCP 55 D.
Stat. Auth.: ORS 651.060, 658.220
& 659A.800

Stats. Implemented: ORS 279C,
651, 652, 653, 658 & 659A

Hist.: BLI 38-2007; f. 12-28-07,
cert. ef. 1-1-08; BLI 33-2008, f. 10-22-08, cert. ef. 10-25-08; BLI 13-2011, f.
12-30-11, cert. ef. 1-1-12


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