OAR 839-015-0500: Action Against the Bond or Deposit

(1) Any person not paid wages owed to him/her by a labor contractor or any construction property owner, owner or property manager of property where janitorial services are or were to be performed, grower or producer of agricultural goods 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, owner or property manager of property where janitorial services are or were to be performed, grower or producer of agricultural goods 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.