PWR -- TABLE OF CONTENTS Table of Contents 14.7 --- Failure to File Certified Payroll Statements PREVAILING WAGE RATE (PWR) 14.8 --- Failure to Pay Fee for Costs of Administering Law

15.0 CIVIL PENALTIES 1.0 IN GENERAL 15.1 --- In General 1.1 --- Definitions 15.2 --- Failure to Pay PWR 1.1.1 ------"Apprentice" 15.3 --- Failure to Post PWR 1.1.2 ------"Construction" 15.4 --- Failure to Pay Fee for Costs of 1.1.3 ------"Fringe Benefits" Administering Law 1.1.4 ------“Intentional” (see also 16.2, 16.3) 15.5 --- Failure to File Certified Payroll 1.1.5 ------"Locality" Statements 1.1.6 ------"Prevailing Rate of Wage" 15.6 --- Filing Incomplete, Inaccurate, or 1.1.7 ------"Public Agency" Untimely Certified Payroll Statements 1.1.8 ------"Public Contract" 15.7 --- Failure to Complete and Return PWR 1.1.9 ------"Public Works" Survey 1.1.10 ------"Public Works Project" 15.8 --- Failure to Make Records Available to Wage and Hour Division 1.1.11 ------"Retainage" 15.9 --- Penalties for Other Violations 1.1.12 ------"Trade or Occupation" 15.10 --- Aggravating Circumstances 1.1.13 ------"Worker" 15.10.1 ------Response to Prior Violations of 1.1.14 ------"Other" Statutes and Rules 2.0 AUTHORITY OF THE COMMISSIONER 15.10.2 ------Prior Violations of Statutes and 3.0 TRADE OR OCCUPATION Rules 4.0 APPRENTICES/TRAINEES 15.10.3 ------Opportunity and Degree of 5.0 ART, INSTALLATION Difficulty to Comply 6.0 BASIC HOURLY RATE OF WAGE 15.10.4 ------Magnitude and Seriousness of 7.0 FRINGE BENEFITS Violation 8.0 RECORDS 15.10.5 ------Knowledge of Violation 9.0 RECORDS AVAILABILITY 15.10.6 ------Other 10.0 PUBLIC AGENCY LIABILITY 15.11 --- Mitigating Circumstances 11.0 FEE FOR COSTS OF ADMINISTERING 16.0 PLACEMENT ON INELIGIBLE LIST LAW 16.1 --- In General 12.0 FAILURE TO PAY PWR 16.2 --- Intentional Failure to Pay PWR 13.0 FAILURE TO POST PWR 16.3 --- Intentional Failure to Post PWR 14.0 OTHER VIOLATIONS 16.4 --- Liability of Corporate Officers or 14.1 --- Taking Action to Circumvent the PWR Agents Laws 16.5 --- Aggravating Circumstances 14.2 --- Dividing a Public Works Project for the 16.6 --- Mitigating Circumstances Purpose of Avoiding Compliance with 16.7 --- Length of Debarment the PWR Laws 17.0 LIQUIDATED DAMAGES 14.3 --- Failure to Make and Maintain 18.0 AFFIRMATIVE DEFENSES Necessary Records 18.1 --- Equitable Estoppel (see also Ch. III, 14.4 --- Failure to Make Records Available to sec. 86.0) Wage and Hour Division 18.2 --- Ignorance of the Law 14.5 --- Failure to Complete and Return PWR Survey 18.3 --- Other 14.6 --- Filing Incomplete, Inaccurate, or 19.0 EXEMPTIONS Untimely Certified Payroll Statements 20.0 STATUTORY INTERPRETATION 21.0 AGENCY RULE INTERPRETATION

VII - 1 PWR -- 1.0 IN GENERAL

------279.361(1) implies a culpable mental state, indicating 1.0 IN GENERAL that debarment should not be triggered by merely innocent, or even negligent, failure to pay. ----- In the 1.1 --- Definitions Matter of Harkcom Pacific, 27 BOLI 62, 81 (2005). 1.1.1 --- "Apprentice" ‰ In the context of a prevailing wage rate debarment, 1.1.2 --- "Construction" this forum has previously defined “intentional” as being ‰ A contractor’s work that involved building concrete synonymous with “willful.” The forum has also adopted footings and a roof over an existing reservoir while under the Oregon Supreme Court’s interpretation of “willful” set contract with a public agency was “construction” within out in Sabin v. Willamette Western Corporation, 276 Or the meaning of former Ors 279.348(3) and former OAR 1083 (1976). “Willful,” the court said, “amounts to 839-016-004(5). ----- In the Matter of Labor Ready nothing more than this: That the person knows what he Northwest, Inc., 28 BOLI 91, 113 (2007). is doing, intends to do what he is doing, and is a free agent.” The forum declined to adopt the standard Appeal pending. proposed by respondent – that respondent’s subjective ‰ A contractor’s work that involved building an entire motivation, as determined by its conduct, should be public high school while under contract with a public considered as an element in determining whether a agency was “construction” within the meaning of former violation is “intentional.” ----- In the Matter of Labor Ors 279.348(3) and former OAR 839-016-004(5). ----- In Ready Northwest, Inc., 22 BOLI 245, 290 (2001). the Matter of Labor Ready Northwest, Inc., 28 BOLI Reversed in part, Labor Ready Northwest, Inc. v. 47, 73 (2007). Bureau of Labor and Industries, 188 Or App 346, 71 P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 Appeal pending. (2004). 1.1.3 --- "Fringe Benefits" See also In the Matter of Larson Construction Co., Inc., 1.1.4 --- "Intentional" (see also 16.2, 16.3) 22 BOLI 118, 163 (2001). ‰ The Oregon Court of Appeals has determined that, ‰ “Intentional” means that the person knows what he under former ORS 279.361, to “intentionally” fail to pay is doing, intends to do what he is doing, and is a free the prevailing rate of wage “the employer must either agent. ----- In the Matter of Johnson Builders, Inc., 21 consciously choose not to determine the prevailing wage BOLI 103, 124 (2000). or know the prevailing wage but consciously choose not ‰ The terms “intentional” and “willful” are to pay it.” The focus is on what the employer interchangeable and means only that the person knows intentionally failed or refused to do, not what the what he is doing, intends to do what he is doing, and is a employer intentionally did. The inclusion of the word free agent. ----- In the Matter of Southern Oregon “intentionally” in former ORS 279.361(1) implies a Flagging, Inc., 18 BOLI 138, 160 (1999). See also In “culpable mental state,” indicating that debarment should the Matter of Haskell Tallent, 13 BOLI 273, 280 (1994); not be “triggered by merely innocent, or even negligent, In the Matter of Sealing Technology, Inc., 11 BOLI 241, failure to pay.” This requires an assessment of an 250 (1993). employer’s state of mind at the time that its employees were not paid the prevailing wage in order to determine 1.1.5 --- “Locality" whether the employer “intentionally” failed or refused to 1.1.6 --- "Prevailing Rate of Wage" pay the prevailing wage. ----- In the Matter of Labor Ready Northwest, Inc., 28 BOLI 91, 123 (2007). 1.1.7 --- "Public Agency" Appeal pending. ‰ A public school district that entered into two separate contracts, with two separate contractors, to ‰ To intentionally fail to pay the prevailing wage, the build and provide equipment and furnishings for a high employer must either consciously choose not to school, was a public agency. ----- In the Matter of Labor determine the prevailing wage or know the prevailing Ready Northwest, Inc., 28 BOLI 47, 73 (2007). wage but consciously choose not to pay it. ----- In the Matter of Labor Ready Northwest, Inc., 27 BOLI 83, Appeal pending. 147 (2005). 1.1.8 --- "Public Contract" Affirmed, Labor Ready Northwest, Inc. v. Bureau of ‰ The agency alleged in its notice that respondents Labor and Industries, 208 Or App 195, 145 P3d 232 performed two separate contracts. Respondents’ (2006), rev den 342 Or 473, 155 P3d 51 (2007). answer alleged that it performed only one contract. At See also In the Matter of Harkcom Pacific, 27 BOLI 62, hearing, undisputed evidence established that the two 81 (2005). contracts, though related, involved two different offers and acceptances, two separate purchase orders, two ‰ The forum must assess respondent’s state of mind separate bids that took place on two different dates and at the time that respondent’s employees were not paid involved two disparate bidding processes, two distinct the prevailing wage in order to determine whether jobs, and two distinct billings. Based on this evidence, respondent “intentionally” failed or refused to pay the the forum concluded that respondent performed two prevailing wage. ----- In the Matter of Harkcom Pacific, separate contracts. ----- In the Matter of Larson 27 BOLI 62, 81 (2005). Construction Co., Inc., 22 BOLI 118, 151-52 (2001). ‰ The inclusion of the word “intentionally” in ORS 1.1.9 --- "Public Works"

VII - 2 PWR -- 1.0 IN GENERAL

‰ Although the prime contractor had completed its place without it; (3) the two contracts were part of a construction of a high school that was a public works by continuum that resulted in the completion of the larger the time a furniture contractor, through a subcontractor project; (4) the work performed on the contracts was a and respondent, commenced delivering and assembling necessary prerequisite, or integral to, continued furniture at the high school, the forum concluded that the construction on the larger project; and (5) the work high school remained a “public works.” The forum based performed on the contracts furthered the anticipated this conclusion on three factors. First, the school district outcome of the larger project. ----- In the Matter of believed that the work performed under this contract was Larson Construction Co., Inc., 22 BOLI 118, 154-55 subject to the prevailing wage rate. Second, the work (2001). was performed in the same building that the prime contractor had just constructed, with no significant break ‰ The term "project" in ORS 279.357(1)(a) does not in time between the end of construction and the refer to an individual contract as it is bid out by a installation of furniture. Third, the work performed by contracting agency. Rather, it refers more abstractly to subcontractor and respondent’s workers was in fact the any group of public works contracts that properly are completion of the same project that the prime contractor viewed as fitting together to form a single project. ----- In had begun. The commissioner also took notice that the the Matter of the City of Klamath Falls, 19 BOLI 266, newly constructed public high school was unusable for 282-83 (2000). the purpose for which it was intended without the ‰ The ORS 279.357(1)(a) exemption from the PWR equipment and furniture that respondent’s workers laws for "[p]rojects for which the contract price does not carried into the high school and assembled. ----- In the exceed $25,000.00" applies only when the cost of the Matter of Labor Ready Northwest, Inc., 28 BOLI 47, entire project – not just a single contract – is $25,000.00 73-74 (2007). or less. ----- In the Matter of the City of Klamath Falls, Appeal pending. 19 BOLI 266, 282-83 (2000). ‰ When respondent contracted with the City of ‰ To determine whether a group of public works Warrenton to construct a road and install a drainpipe and contracts form a single public works project, the factors catch basin related to the construction of the City’s new listed in the relevant statutes, rules and agency municipal building, the contract was a “public work.” ----- interpretations must be considered. Those factors are: In the Matter of Larson Construction Co., Inc., 22 (1) the physical separation of the project structures; (2) BOLI 118, 152 (2001). the timing of the work on project phases or structures and whether the work is performed in one time period or ‰ When respondent contracted with the City of in several phases as components of a larger entity; (3) Warrenton to demolish an old fire station that was being the continuity of project contractors and subcontractors demolished to make room for the City’s new police working on project parts or phases and whether a station, and an old house that was being demolished to contractor or subcontractor and their employees are the create space for a parking lot adjunct to the City’s new same or substantially the same throughout the particular municipal building, the forum found that both demolition project; (4) the manner in which the public contracting projects were “public works.” ----- In the Matter of agency and the contractors administer and implement Larson Construction Co., Inc., 22 BOLI 118, 152-53 the project; (5) whether a single public works project (2001). includes several types of improvements or structures and whether the structures or improvements are similar 1.1.10 --- "Public Works Project" to one another and combine to form a single, logical ‰ A public works “project” is “a large, multiphase entity having an overall purpose or function; and (6) the endeavor that may encompass more than one contract.” anticipated outcome of the particular improvements or The criteria for determining whether a prohibited division structures the agency plans to fund. ----- In the Matter has occurred are set out in ORS 279.357(2)(A)-(D) and of the City of Klamath Falls, 19 BOLI 266, 284-86 related agency administrative rules and published (2000). “Interpretations.” This language contemplates that the commissioner will examine various smaller public works ‰ The forum held that five water improvement undertakings – phases, parts, and structures – to contracts let by a city together formed a single public determine whether they are, in fact, part of a single works project when: (1) the five water improvements larger endeavor – a public works “project.” Flowing from were part of a single municipal water system even this prohibition is the logical corollary that any contract though they were not directly connected; (2) the city for less than $25,000 that is part of a larger public works contracted for the five improvements over a period of “project” involving more than $25,000 does not fall within only a few months during a single construction season; the ORS 279.357(1)(a) exemption. ----- In the Matter of (3) the city used several different contractors and Larson Construction Co., Inc., 22 BOLI 118, 153 engineering firms on the contracts, but only because the (2001). city could not bid out all the improvements in a single contract -- using a single contractor -- because that ‰ The forum held that two contracts let by a city for would have prevented the work from being completed by less than $25,000 were part of a larger public works the year-end funding deadline; (4) a single line item in “project” involving more than $25,000 when: (1) the the city's budget covered all five of the water system work performed on the contracts was on the same improvements and the funding for all five improvements project site as the larger project; (2) the work performed came from the same source; (5) the five contracts on the contracts constituted the first step of phase two of involved work of a similar nature and involved water the larger project and phase two could not have taken lines that were are all part of a single, logical entity with

VII - 3 PWR -- 2.0 AUTHORITY OF COMMISSIONER an overall purpose or function – the city's municipal project were “workers” who performed “manual” and water system; and (6) performance of each of the five “physical” duties within the meaning of former OAR 839- contracts helped further the city's goal of improving its 016-0004(29). ----- In the Matter of Labor Ready municipal water system. ----- In the Matter of the City Northwest, Inc., 28 BOLI 47, 74 (2007). of Klamath Falls, 19 BOLI 266, 284-86 (2000). Appeal pending. 1.1.11 --- "Retainage" 1.1.14 --- "Other" 1.1.12 --- "Trade or Occupation" 2.0 AUTHORITY OF COMMISSIONER ‰ Respondent’s workers who assisted other workers ‰ To prove five violations of ORS 279.350, the agency who were applying sprayed on fireproofing material were had to prove only that respondent had not paid five properly classified as tenders to plasterers. ----- In the workers the prevailing wage rate as determined by the Matter of Labor Ready Northwest, Inc., 22 BOLI 245, commissioner. The agency was not also required to 284-85 (2001). prove that the commissioner followed proper statutory Reversed in part, Labor Ready Northwest, Inc. v. procedure in determining the prevailing wage rate. Bureau of Labor and Industries, 188 Or App 346, 71 However, evidence in the record showed that the P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 commissioner had acted within the scope of his (2004). authority. ----- In the Matter of Northwest Permastore, ‰ ORS 279.350 sets out a policy that, once a contract 18 BOLI 1, 17 (1999), reconsidered 20 BOLI 37 (2000). is executed, the prevailing wage rates are set. Logically, Affirmed, Northwest Permastore Systems v. Bureau this policy must be also be applied to the creation of new of Labor and Industries, 172 Or App 427 (2001). trade classifications and establishment of new wage rates. Any new trade classification must have been ‰ The commissioner has authority to impose a civil approved prior to execution of the contract and penalty not to exceed $5,000 for each violation of ORS commencement of work in order to apply to a particular 279.348 to 279.380 and the administrative rules adopted public project. ----- In the Matter of Intermountain pursuant thereto. When respondent committed five Plastics, 7 BOLI 142, 158 (1988). violations of ORS 279.350(1), but had cooperated with the agency and had no prior violations, the forum ‰ When a contractor’s defense to a charge that he assessed the minimum penalty allowable, consisting of intentionally failed to pay the prevailing wage rate was $1,557.71, the amount of the unpaid wages and the that the agency wrongfully determined that installation of amount sought by the agency. ----- In the Matter of seamless epoxy flooring, the work performed by the Northwest Permastore, 18 BOLI 1, 19-20 (1999), contractor’s employees, should be paid at the same rate reconsidered 20 BOLI 37 (2000). as workers performing different work – work done by cement masons – the forum found that the Affirmed, Northwest Permastore Systems v. Bureau of Labor and Industries, 172 Or App 427 (2001). commissioner has the authority to make a job classification determination based on a “closest to” 3.0 TRADE OR OCCUPATION method, citing ORS 279.348(1). The forum held that, ‰ The forum determined that workers spraying on although the PWR guidebook did not contain a separate fireproofing were properly classified as plasterers and classification and wage rate for “architectural coatings that workers who assisted them were properly classified finisher,” the job title the contractor had given his as tenders to plasterers. ----- In the Matter of Labor workers, that fact did not constitute a defense to his Ready Northwest, Inc., 22 BOLI 245, 284-85 (2001). failure to determine in advance of commencing work on the project which rate was required to be paid to his Reversed in part on other grounds, Labor Ready workers and to pay that rate. The forum also held it was Northwest, Inc. v. Bureau of Labor and Industries, not a defense that the agency had not responded to the 188 Or App 346, 71 P3d 559 (2003), rev den 336 Or contractor’s request, made after the contractor had 534, 88 P3d 280 (2004). become a subcontractor on the public project, to list the ‰ The forum rejected respondent’s argument that the craft of “architectural coatings finisher” in the guidebook. commissioner’s classification of workers as boilermakers ----- In the Matter of Intermountain Plastics, 7 BOLI was faulty because it was based on union jurisdiction 142, 155-58 (1988). agreements, rather than on a field survey of industry 1.1.13 --- "Worker" practices, on the ground that respondent had agreed to be bound by the prevailing wage rate laws, including ‰ Employees who performed work that included trade classification, when it entered into the public works operating power equipment, building concrete forms, contract. ----- In the Matter of Northwest Permastore, tying rebar, pouring and finishing concrete, and 18 BOLI 1, 16 (1999), reconsidered 20 BOLI 37 (2000). dismantling concrete forms at a public works project were “workers” who performed “manual” and “physical” Affirmed, Northwest Permastore Systems v. Bureau duties within the meaning of former OAR 839-016- of Labor and Industries, 172 Or App 427 (2001). 0004(29). ----- In the Matter of Labor Ready 4.0 APPRENTICES/TRAINEES Northwest, Inc., 28 BOLI 91, 113-14 (2007). ‰ Respondents' apprenticeship program was a sham Appeal pending. when they paid only 70% of journeymen's wages but did not operate a registered apprenticeship program and ‰ Employees who moved and assembled furniture offered no related training to workers. ----- In the Matter using screwdrivers and wrenches at a public works of Larson Construction Co., Inc., 17 BOLI 54, 79

VII - 4 PWR -- 5.0 ART, INSTALLATION

(1998). including fringe benefits. The forum rejected that defense to the charge of intentional failure to pay the 5.0 ART, INSTALLATION prevailing wage rate because an employer has a duty to 6.0 BASIC HOURLY RATE OF WAGE know the wages due to an employee and ignorance of ‰ When a contractor arranged to have some workers the law as to what qualifies as a fringe benefit is not an live in their own trailers at a closed recreational vehicle excuse and because there was no reasonable or park that the contractor spent approximately $1,000 to objective basis for the supposed belief that providing a rehabilitate, the forum held that providing the recreational vehicle park hook-up was worth the recreational vehicle facility to some workers did not difference between the prevailing wage rate and what constitute a “fringe benefit” or “wages” under ORS the contractor was paying in actual wages. ----- In the 279.348 or under OAR 839-16-004. ----- In the Matter of Matter of P. Miller & Sons Contractors, Inc., 5 BOLI P. Miller & Sons Contractors, Inc., 5 BOLI 149, 159 149, 158 (1986). (1986). 8.0 RECORDS 7.0 FRINGE BENEFITS 9.0 RECORDS AVAILABILITY ‰ The prevailing wage rate includes fringe benefits 10.0 PUBLIC AGENCY LIABILITY paid into a bona fide benefit plan. ----- In the Matter of 11.0 FEE FOR COSTS OF ADMINISTERING Southern Oregon Flagging, Inc., 18 BOLI 138, 161 (1999). LAW ‰ Each contract for a public work must contain a ‰ For a fringe benefit plan to be bona fide, provision stating that a fee is required to be paid to the contributions must be: (1) irrevocable; (2) for the benefit commissioner unless the contract -- and any public of the employee; and (3) made to a trust or third party. -- works project of which the contract is a part -- has a total --- In the Matter of Southern Oregon Flagging, Inc., contract price of $25,000.00 or less. When a city did not 18 BOLI 138, 161 (1999). include the provision in the specifications for a public ‰ Fringe benefits include the rate of costs to the works contract that was part of a larger public works contractor or subcontractor that may be reasonably project with a cost exceeding $25,000.00, the city anticipated in providing benefits to workers. ----- In the violated ORS 279.352(2), even though the cost of the Matter of Southern Oregon Flagging, Inc., 18 BOLI contract itself was less than $25,000.00. ----- In the 138, 161 (1999). Matter of the City of Klamath Falls, 19 BOLI 266, 286 (2000). ‰ A fringe benefits plan was not bona fide when contributions remaining in an employee’s account at 12.0 FAILURE TO PAY PREVAILING WAGE year’s end were forfeited and credited back to the RATE employer. Contributions made to that plan were not ‰ Respondent’s tender of multiple checks to three “fringe benefits” constituting part of the prevailing wage workers in which their wages were calculated at the rate. ----- In the Matter of Southern Oregon Flagging, Laborer, Group 5 rate, a rate lower than the prevailing Inc., 18 BOLI 138, 161-62 (1999). wage rates for their trades in Region 4, constituted three ‰ When a contractor arranged to have some workers violations of former ORS 279.350(1) and former OAR live in their own trailers at a closed recreational vehicle 839-016-0035. ----- In the Matter of Labor Ready park that the contractor spent approximately $1,000 to Northwest, Inc., 28 BOLI 91, 115-16 (2007). rehabilitate, the forum held that providing the Appeal pending. recreational vehicle facility to some workers did not constitute a “fringe benefit” or “wages” under ORS ‰ The prevailing wage requirement in former ORS 279.348 or under OAR 839-16-004. ----- In the Matter of 279.350 is violated when a contractor or subcontractor P. Miller & Sons Contractors, Inc., 5 BOLI 149, 159 upon a public works tenders checks to workers less than (1986). the prevailing wage rate for an hour’s work in the same trade or occupation in the locality where such labor is ‰ When a contractor’s defense to a charge that he performed. ----- In the Matter of Labor Ready failed to pay fringe benefits was that he was looking into Northwest, Inc., 28 BOLI 91, 115 (2007). setting up a health and welfare plan for his employees, the forum found that there was no “enforceable plan” or Appeal pending. “written commitment to the workers” as required by ORS ‰ Respondent’s failure to pay the prevailing rate of 279.348. The forum held that the contractor’s violation wage to four workers when it first issued paychecks to was not negated by the contractor’s eventual payment of them constituted four violations of former ORS the wage differential to the workers, nor was the 279.350(1) and former OAR 839-016-0035. ----- In the contractor released from liability by the fact that the Matter of Labor Ready Northwest, Inc., 28 BOLI 47, contractor eventually began to pay the appropriate 75 (2007). prevailing wage rate. ----- In the Matter of P. Miller & Sons Contractors, Inc., 5 BOLI 149, 159 (1986). Appeal pending. ‰ A contractor testified he believed that the value of ‰ To establish a violation of former ORS 279.350(1), providing a housing opportunity in a rehabilitated the agency was required to prove: (1) The project at recreational vehicle park would be enough, when added issue was a public work, as that term was defined in to the hourly wage, to equal the prevailing wage rate, former ORS 279.348(3); (2) respondent was a

VII - 5 PWR -- 12.0 FAILURE TO PAY PREVAILING WAGE RATE subcontractor that employed workers on the public workers the amounts required by ORS 279.350; and (4) works project whose duties were manual or physical in the prime contractor, paid those workers on nature; and (3) respondent failed to pay four workers at respondent’s behalf. ----- In the Matter of Design N least the prevailing rate of wage for each hour worked on Mind, Inc., 27 BOLI 32, 41 (2005). the project. ----- In the Matter of Labor Ready Northwest, Inc., 28 BOLI 47,72 (2007). ‰ The agency established that respondent did not pay the correct prevailing wage rate by means of credible Appeal pending. testimony that four workers regularly performed carpentry, masonry, and ironwork and respondent’s ‰ The forum found respondent committed one payroll records, certified by respondent’s president, violation of ORS 279.350(1) by failing to pay a worker showing that respondent classified and paid one worker the applicable prevailing wage rate of $43.83 when the as a laborer or carpenter and the three other workers as worker’s wages were initially due. ----- In the Matter of laborers for all of the work they performed. ----- In the Labor Ready Northwest, Inc., 27 BOLI 83, 138 (2005). Matter of Design N Mind, Inc., 27 BOLI 32, 42 (2005). Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 ‰ Respondents’ tacit acknowledgment in their answer (2006), rev den 342 Or 473, 155 P3d 51 (2007). that the prime contractor paid the amount respondents owed to the workers, coupled with evidence that the ‰ When respondent failed to pay the prevailing wage prime provided BOLI with a check in the amount of rate to six workers on a public works project at the time $12,674.28 that BOLI distributed amongst the four their wages were initially paid, but subsequently issued workers, established that the prime contractor paid to the back pay checks to five of the six workers, bringing their four workers the amount of unpaid prevailing wages wages up to the prevailing wage rate, the forum found owed for work they performed. ----- In the Matter of that respondent committed six violations of ORS Design N Mind, Inc., 27 BOLI 32, 42 (2005). 279.350(1). Respondent did not violate ORS 279.350(1) with regard to the sixth worker because his name was ‰ The forum found that the respondent corporate not included in the agency’s list of eight underpaid subcontractor intentionally failed to pay the prevailing workers in its notice of intent, and the notice was not wage rate on a public works and that its president Bruce amended to include it. ----- In the Matter of Labor D. Huhta was responsible for this failure when credible Ready Northwest, Inc., 27 BOLI 83, 136 (2005). evidence in the record showed Huhta administered the subcontract, Huhta completed a certified payroll report Affirmed, Labor Ready Northwest, Inc. v. Bureau of that stated workers were paid $22.68 per hour, the Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). applicable prevailing wage rate, that workers were not paid the amounts certified by Huhta and were never paid ‰ To establish a violation of ORS 279.350(1), the the prevailing wage rate for any of the manual labor they agency must prove: (1) the project at issue was a public performed during the course of the project, and that work, as that term is defined in ORS 279.348(3); (2) Huhta chastised the prime contractor’s vice-president for respondent was a contractor or subcontractor that having paid the workers’ unpaid wages, stating it was employed workers on the public works project whose “stupid” to have made the payment and that he duties were manual or physical in nature; and (3) purposely did not provide the agency investigator with respondent failed to pay those workers at least the payroll records to avoid having to pay more money to his prevailing rate of wage for each hour worked on the workers. ----- In the Matter of Bruce D. Huhta, 21 BOLI project. ----- In the Matter of Labor Ready Northwest, 249, 258 (2001) Inc., 27 BOLI 83, 135 (2005). ‰ When respondent admitted in a letter to the agency Affirmed, Labor Ready Northwest, Inc. v. Bureau of that he had paid only $130.00 to one employee and only Labor and Industries, 208 Or App 195, 145 P3d 232 $70.00 to another – far less than the prevailing wage, (2006), rev den 342 Or 473, 155 P3d 51 (2007). even if the two men had worked only 40 hours each, as See also In the Matter of William George Allmendinger, respondent asserted -- and this admission corroborated 21 BOLI 151, 169-70 (2000); In the Matter of Keith the claims of the two employees that respondent did not Testerman, 20 BOLI 112, 126-27 (2000). pay them all wages due, the forum found the evidence in the record sufficient to establish that respondent ‰ Fringe benefits are part of the prevailing rate of committed two violations of ORS 279.350(1) by failing to wage and respondent’s failure to pay those benefits to pay the two employees the prevailing rate of wage for seven workers constituted seven separate violations. ---- each hour they worked on the project. ----- In the Matter - In the Matter of Harkcom Pacific, 27 BOLI 62, 76-77 of William George Allmendinger, 21 BOLI 151, 170 (2005). (2000).

‰ When the agency alleged that respondent failed to ‰ The agency did not meet its burden of proving that pay four workers the prevailing wage rate and the prime respondent committed a third violation of ORS contractor paid those amounts on respondent’s behalf, 279.350(1) by failing to pay a third employee the the agency’s prima facie case consisted of reliable prevailing wage rate when the only evidence in the evidence that (1) the project at issue was a public work, record concerning that employee’s work on the subject as that term was defined in ORS 279.348(3); (2) project was the certified payroll report stating that the respondent was a subcontractor that employed workers employee worked 30 hours and respondent’s on the public work whose duties were manual or uncontroverted assertion that he paid the employee physical in nature; (3) respondent failed to pay those $702.60 for that work – the exact amount he should

VII - 6 PWR -- 13.0 FAILURE TO POST PREVAILING WAGE RATE have been paid under the prevailing wage rate laws. ----- of Labor and Industries, 172 Or App 427 (2001). In the Matter of William George Allmendinger, 21 ‰ To prove five violations of ORS 279.350, the agency BOLI 151, 170 (2000). had to prove only that respondent had not paid five ‰ When the agency alleged that respondent violated workers the prevailing wage rate set by the ORS 279.350(1) eight times by intentionally failing to pay commissioner. ----- In the Matter of Northwest the prevailing rate of wage to eight different workers who Permastore, 18 BOLI 1, 16-17 (1999), on subsequently filed wage claims with BOLI, the forum reconsideration 20 BOLI 37 (2000). held that the agency’s prima facie case consisted of Affirmed, Northwest Permastore Systems v. Bureau credible evidence of the following: (1) respondent of Labor and Industries, 172 Or App 427 (2001). employed the eight claimants; and (2) the claimants performed work for which respondent did not pay them ‰ It is the agency’s burden to prove that the the prevailing rate of wage. ----- In the Matter of respondent employer failed to pay the prevailing rate of Johnson Builders, Inc., 21 BOLI 103, 122 (2000). wage. ----- In the Matter of Southern Oregon Flagging, Inc., 18 BOLI 138, 162 (1999). ‰ The agency established its prima facie case through respondent’s own certified payroll reports showing that ‰ The agency proved that respondent committed five all eight wage claimants were employed by respondent violations of ORS 279.350(1) by failing to pay five on public works projects, and through credible witness standpipe erection workers the prevailing wage rate for testimony and time records as to the hours that seven boilermakers. ----- In the Matter of Northwest claimants worked and that they worked hours for which Permastore, 18 BOLI 1, 18 (1999), reconsidered 20 they were paid nothing. The forum found that BOLI 37 (2000). respondent committed seven violations of ORS Affirmed, Northwest Permastore Systems v. Bureau 279.350(1), and rejected the allegation concerning the of Labor and Industries, 172 Or App 427 (2001). eighth claimant because it was not supported by credible evidence. ----- In the Matter of Johnson Builders, Inc., ‰ When a contractor’s defense to a charge that he 21 BOLI 103, 122-23 (2000). failed to pay fringe benefits was that he was looking into setting up a health and welfare plan for his employees, ‰ When respondent used a payroll company to write the forum found that there was no “enforceable plan” or and issue checks to its employees, the payroll company “written commitment to the workers” as required by ORS was dependent on respondent’s corporate president for 279.348. The forum held that the contractor’s violation payroll information concerning dates and hours that was not negated by the contractor’s eventual payment of employees worked and their rate of pay, and there was the wage differential to the workers, nor was the no evidence presented that respondent was unaware of contractor released from liability by the fact that the the wages due, the forum found that respondent’s failure contractor eventually began to pay the appropriate to pay the prevailing wage rate to its seven employees prevailing wage rate. ----- In the Matter of P. Miller & was intentional. ----- In the Matter of Johnson Sons Contractors, Inc., 5 BOLI 149, 159 (1986). Builders, Inc., 21 BOLI 103, 124-25 (2000). 13.0 FAILURE TO POST PREVAILING WAGE ‰ When respondent acknowledged it did not pay RATE boilermakers' wages to five workers who performed standpipe erection work on a public works project, ‰ When two workers credibly testified that they were credible evidence in the record established that the on a relatively small jobsite every day and never saw Index of Prevailing Practice reflects the commissioner's any posted rates, and respondent offered no credible prevailing practice determinations and the 1996/1997 rebuttal evidence, the forum concluded that respondent Index classified standpipe erection workers as failed to keep the prevailing wage rates posted on the boilermakers, the forum inferred that the prevailing jobsite as required by statute. ----- In the Matter of practice at all material times was to classify standpipe Labor Ready Northwest, Inc., 28 BOLI 91, 120 (2007). erectors as boilermakers and that respondent committed Appeal pending. five violations of ORS 279.350(1). ----- In the Matter of Northwest Permastore Systems, Inc., 20 BOLI 37, 55 ‰ The Oregon Court of Appeals has determined that (2000). former ORS 279.350(4) required every contractor and subcontractor engaged in a public project to Affirmed, Northwest Permastore Systems v. Bureau personally initially post the prevailing wage and to of Labor and Industries, 172 Or App 427 (2001). maintain that posting throughout the course of its ‰ To prove five violations of ORS 279.350, the agency employees' work on the project. ----- In the Matter of had to prove only that respondent had not paid five Labor Ready Northwest, Inc., 28 BOLI 91, 119-20 workers the prevailing wage rate as determined by the (2007). commissioner. The agency did that by demonstrating: 1) that the Index of Prevailing Practice classified standpipe Appeal pending. erection workers as boilermakers; and 2) that ‰ When respondent’s branch manager testified that respondent had not paid five of its standpipe erection he did not post or keep posted any prevailing wage rates workers the prevailing wage rate for boilermakers. ----- on a public works project on which respondent employed In the Matter of Northwest Permastore Systems, Inc., workers, and there was no evidence that anyone else 20 BOLI 37, 57 (2000). posted or kept them posted on respondent’s behalf, the Affirmed, Northwest Permastore Systems v. Bureau forum concluded that respondent committed one violation of former ORS 279.350(4) and former OAR

VII - 7 PWR -- 14.0 OTHER VIOLATIONS

839-016-0033. ----- In the Matter of Labor Ready ‰ When the agency failed to prove that the Northwest, Inc., 28 BOLI 47, 80 (2007). respondents required or coerced anybody to report overtime hours as straight time, and the respondents Appeal pending. took no adverse action against any employee who ‰ When respondent’s manager testified that she did complained about not receiving the wages to which they not initially believe that a project was a public work, then were entitled, the forum found no violation of ORS tried to post the prevailing wage rates for the project by 279.370(7). ----- In the Matter of Southern Oregon giving them to the prime contractor’s foreman and asking Flagging, Inc., 18 BOLI 138, 167 (1999). him to post them, but did not post them herself or verify ‰ The forum may penalize subcontractors for taking that they were posted or were kept posted, the forum action to circumvent payment of the prevailing wage. ---- held that respondent’s failure to personally initially post - In the Matter of Larson Construction Co., Inc., 17 the prevailing wage and to maintain that posting BOLI 54, 79-80 (1998). throughout the course of its employees’ work on the project violated ORS 279.350(4). ----- In the Matter of ‰ Respondent’s requirement that workers accept less Labor Ready Northwest, Inc., 27 BOLI 83, 133 (2005). than the prevailing wage rate as part of a bogus Affirmed, Labor Ready Northwest, Inc. v. Bureau of apprenticeship program violated ORS 279.350(7). ----- In Labor and Industries, 208 Or App 195, 145 P3d 232 the Matter of Larson Construction Co., Inc., 17 BOLI (2006), rev den 342 Or 473, 155 P3d 51 (2007). 54, 79 (1998).

‰ The proper interpretation of ORS 279.350(4) is that 14.2 --- Dividing a Public Works Project for every contractor and subcontractor engaged on a project the Purpose of Avoiding for which there is a contract for public work must Compliance with the PWR Laws personally post and keep posted the prevailing wage ‰ The Little Davis-Bacon Act includes a provision rates for the project for the period of time that the prohibiting contracting agencies from "divid[ing] a public contractor or subcontractor is engaged in work on the works project into more than one contract for the project. ----- In the Matter of Labor Ready Northwest, purpose of avoiding compliance with ORS 279.348 to Inc., 27 BOLI 83, 133 (2005). 279.380." When no evidence suggested that the Affirmed, Labor Ready Northwest, Inc. v. Bureau of respondent let five separate contracts, rather than a Labor and Industries, 208 Or App 195, 145 P3d 232 single contract covering all five improvements, "for the (2006), rev den 342 Or 473, 155 P3d 51 (2007). purpose of" avoiding compliance with the prevailing See also In the Matter of Labor Ready Northwest, Inc., wage rate laws, section (2) of ORS 279.357 did not 22 BOLI 245, 283 (2001), reversed in part, Labor Ready apply. ----- In the Matter of the City of Klamath Falls, Northwest, Inc. v. Bureau of Labor and Industries, 188 19 BOLI 266, 282 (2000). Or App 346, 71 P3d 559 (2003), rev den 336 Or 534, 88 14.3 --- Failure to Make and Maintain P3d 280 (2004). Necessary Records ‰ When respondent’s project manager credibly ‰ When the agency alleged that respondent failed to testified that respondent did not post the applicable maintain records required by OAR 839-016-0025(2)(b), prevailing wage rates during the performance of the (c), (e) and (f) for workers, but only offered evidence subject contracts, the forum concluded that respondent consisting of testimony of an agency compliance intentionally failed to post the applicable prevailing wage specialist that these records were requested, but not rates on the subject contracts. ----- In the Matter of provided, and that nine certified payroll reports were Larson Construction Co., Inc., 22 BOLI 118, 155 absent, the forum concluded that failure to make records (2001). available or provide those records and file certified ‰ When respondent had obtained agency approval to payroll reports does not, ipso facto, prove that those post the prevailing wage rates on flagging jobs by records were not maintained. ----- In the Matter of placing the information in pilot cars and informing each Johnson Builders, Inc., 21 BOLI 103, 127-28 (2000). employee where the information could be found, the ‰ To establish that a respondent violated OAR 839- forum held that respondent did not intentionally fail to 016-0025(2)(f), the agency must prove: 1) that the post the prevailing wage rate. ----- In the Matter of respondent was a contractor or subcontractor on a Southern Oregon Flagging, Inc., 18 BOLI 138, 164 public works contract subject to the Oregon prevailing (1999). wage rate laws; and 2) that the respondent failed to 14.0 OTHER VIOLATIONS make and maintain records of the total daily and weekly hours worked by each employee. ----- In the Matter of 14.1 --- Taking Action to Circumvent the Labor Ready, Inc., 20 BOLI 73, 96 (2000). PWR Laws ‰ Respondent violated OAR 839-016-0025(2)(e) by ‰ Respondent entered into two prevailing wage failing to make and maintain records of the daily contracts while on the list of ineligibles and paid its compensation it paid its employees. ----- In the Matter workers the prevailing wage rate. Respondent did not of Labor Ready, Inc., 20 BOLI 73, 97 (2000). violate ORS 279.350(7) when the evidence did not establish that it entered into the contracts with the intent 14.4 --- Failure to Make Records Available of not paying the prevailing wage rate and in fact paid to Wage and Hour Division the prevailing wage rate. ----- In the Matter of Larson Construction Co., Inc., 22 BOLI 118, 160-62 (2001). ‰ When the agency requested records deemed

VII - 8 PWR -- 14.0 OTHER VIOLATIONS necessary by the commissioner to determine if the Storm King Construction, Inc., 27 BOLI 46, 52 (2005); In prevailing wage rate was actually being paid by the Matter of Emmert Industrial Corporation, 26 BOLI respondent on a public works project and respondent did 284, 289 (2005); In the Matter of Cedar Landscape, Inc., not provide the requested records until five months later, 23 BOLI 287, 292 (2002); In the Matter of Harney Rock the forum held that respondent had violated ORS & Paving Co., 22 BOLI 177, 183 (2001); In the Matter of 279.355 and OAR 839-016-0030. ----- In the Matter of Spot Security, Inc., 22 BOLI 170, 175 (2001); In the Labor Ready Northwest, Inc., 27 BOLI 83, 144-46 Matter of Landscape Company of Portland, LLC, 22 (2005). BOLI 69, 75 (2001); In the Matter of Landco Enterprises, Inc., 22 BOLI 62, 67 (2001); In the Matter of M. Carmona Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 Painting, Inc., 22 BOLI 52, 59 (2001); In the Matter of (2006), rev den 342 Or 473, 155 P3d 51 (2007). WB Painting and Decorating, Inc., 22 BOLI 18, 24 (2001); In the Matter of Green Planet Landscaping, Inc., ‰ An agency compliance specialist credibly testified 21 BOLI 130, 137 (2000); In the Matter of Schneider that he contacted respondents through letters and by Equipment, Inc., 21 BOLI 60, 72 (2000); In the Matter of telephone asking for payroll records and information Martha Morrison, 20 BOLI 275, 278-79 (2000); In the related to the investigation and that, although Matter of F.R. Custom Builders, Inc., 20 BOLI 102, 109- respondent negotiated several extensions of time with 110 (2000). which to provide the records, respondent ultimately failed to provide the requested information. Under those ‰ The agency proved that the commissioner circumstances, the forum concluded that respondent conducted a prevailing wage rate survey that required failed to make its payroll records available for inspection persons receiving the survey to make reports or returns in violation of ORS 279.355(2). ----- In the Matter of to the agency for the purpose of determining the Design N Mind, Inc., 27 BOLI 32, 43 (2005). prevailing wage rates by submitting an affidavit by an employee of the Employment Department establishing ‰ When the records sought by the agency were that BOLI contracted with the Employment Department necessary to determine if respondent had paid the from 1999 to 2004 to conduct Construction Industry prevailing rate of wage to five wage claimants, the Occupational Wage Surveys and that those surveys agency’s demand that respondent provide those records were in fact conducted. ----- In the Matter of Storm within 10 days was reasonable and respondent’s failure King Construction, Inc., 27 BOLI 46, 53 (2005). to provide those records constituted a violation of ORS 279.355(2) and OAR 839-016-0030(1) and (2). ----- In ‰ Respondent’s testimony that he filled out the 2004 the Matter of Johnson Builders, Inc., 21 BOLI 103, wage survey and returned it after September 17, 2004, 128-29 (2000). the submission deadline, established that respondent did not timely submit the 2004 wage survey. ----- In the ‰ Only the contractor or subcontractor that the Wage Matter of Storm King Construction, Inc., 27 BOLI 46, and Hour Division asks to provide records is responsible 54 (2005). for providing those records. ----- In the Matter of Labor Ready, Inc., 20 BOLI 73, 98 (2000). ‰ To resolve the issue of whether or not respondent had received the commissioner’s 2000 wage survey 14.5 --- Failure to Complete and Return when credible evidence showed it was sent by first class PWR Survey mail to respondent’s correct address and respondent ‰ The agency proved that respondent failed to denied receiving it, the forum took guidance from the complete and return the commissioner’s prevailing wage Oregon Rules of Evidence, specifically ORE 311(1)(q), rate survey by showing that: (1) respondent received the which creates a rebuttable presumption that “[A] letter 2005 wage survey; (2) respondent was required to duly directed and mailed was received in the regular complete and return the survey by September 19, 2005; course of the mail.” The forum found that testimony by (3) the Employment Department received the completed respondent witnesses as to the lack of “recollection” by wage survey from respondent on March 29, 2006; and respondent’s corporate officers who received (4) there was no credible evidence that the Employment respondent’s mail and the lack of a “record” as legally Department received anything from respondent until it insufficient to overcome the presumption that respondent received the completed wage survey on March 29, 2006. received the wage surveys and reminder notices. ----- In ----- In the Matter of Wildfang, Inc., 28 BOLI 1, 7 the Matter of Harney Rock & Paving Co., 22 BOLI (2006). 177, 184 (2001). ‰ To prove respondent violated ORS 279(C).815(3), ‰ In a prevailing wage rate wage survey case, the agency must establish: (1) respondent is a “person” respondent’s failure to deny that it received the 2000 as defined in ORS 279(C).815(1); (2) the commissioner survey forms was held to be an admission that conducted a survey in 2005 that required persons respondent received the forms. ----- In the Matter of receiving the surveys to make reports or returns to the Spot Security, Inc., 22 BOLI 170, 176 (2001). See also agency for the purpose of determining the prevailing In the Matter of WB Painting and Decorating, Inc., 22 wage rates; (3) respondent received the commissioner’s BOLI 18, 20 (2001), amended 22 BOLI 27 (2001). 2005 survey; and (4) respondent failed to make the ‰ In a prevailing wage rate wage survey case, required reports or returns within the time prescribed by respondent’s failure to deny that it was an “employer” the commissioner. ----- In the Matter of Wildfang, Inc., was held to be an admission that respondent was a 28 BOLI 1, 6 (2006). See also In the Matter of Troy “person” for purposes of ORS 279.359. ----- In the Wingate, 27 BOLI 282, 291 (2006); In the Matter of Matter of Spot Security, Inc., 22 BOLI 170, 176 (2001).

VII - 9 PWR -- 14.0 OTHER VIOLATIONS

See also In the Matter of Landco Enterprises, Inc., 22 respondent’s payroll reports misclassified three workers, BOLI 62, 67 (2001). two payroll report reported overtime work as straight time work, and one payroll report stated that an ‰ In a default case, respondent asserted in its answer employee had worked days that he had not worked and that it completed and returned the 2000 wage survey did not report days that he did work, the forum found six forms on August 23, 2000 and enclosed a completed violations of ORS 279.354. ----- In the Matter of Labor copy of those forms bearing the purported signature of Ready Northwest, Inc., 27 BOLI 83, 140-426 (2005). “Jody Van Damme” and a handwritten date of “8/23/2000” next to the signature. The agency rebutted Affirmed, Labor Ready Northwest, Inc. v. Bureau of respondent’s assertion by providing credible testimony Labor and Industries, 208 Or App 195, 145 P3d 232 from an Employment Department employee, an affidavit (2006), rev den 342 Or 473, 155 P3d 51 (2007). from a research analyst in the Employment Department, ‰ The Agency alleged and proved that respondent’s and a print-out of records routinely maintained by the payroll records for the weeks of March 2-8, 2003, March Employment Department establishing that no wage 9-15, 2003, March 16-22, 2003, March 23-29, 2003, survey forms were mailed out prior to August 28, 2000, March 30 to April 5, 2003, and April 6-12, 2003, failed to and that respondent’s wage survey was received on include the correct classification and pay rate for four January 17, 2001. This evidence was sufficient to workers, and that each worker should have been paid a overcome respondent’s unsworn assertion that it timely higher rate than the amount respondent reported it paid returned completed 2000 wage survey forms on August them while misclassifying them as laborers. The forum 23, 2000. ----- In the Matter of WB Painting and concluded that respondent’s payroll records for those Decorating, Inc., 22 BOLI 18, 24-25 (2001), amended periods were inaccurate and incomplete, in violation of 22 BOLI 27(2001). ORS 279.354(1), and that respondent committed six ‰ Respondent informed the Employment Department violations. ----- In the Matter of Design N Mind, Inc., 27 that its correct address was on the Odell Highway, an BOLI 32, 45 (2005). address that remained respondent’s correct address ‰ Respondent violated ORS 279.354 and OAR 839- through the time of hearing. The Employment 016-0010 when it failed to submit certified payroll Department mailed the 1999 wage survey and follow-up statements within 15 days of the date it began work on reminders to respondent at the correct Odell Highway two contracts subject to Oregon’s prevailing wage rate address, and none of those documents was ever laws. ----- In the Matter of Larson Construction Co., returned to the Employment Department as Inc., 22 BOLI 118, 157-58 (2001). “undeliverable” or for any other reason. The forum inferred from these facts that respondent received the ‰ When the two certified payroll reports completed by 1999 wage survey. Based on this evidence and respondent did not state the hours two employees respondent’s admission that it never returned the 1999 worked each day, as required by ORS 279.354(1), the wage survey by the deadline set by the commissioner, forum found two violations of ORS 279.354(1). ----- In the agency proved that respondent violated ORS the Matter of William George Allmendinger, 21 BOLI 279.359(2). ----- In the Matter of Green Planet 151, 170-71 (2000). Landscaping, Inc., 21 BOLI 130, 138-39 (2000). ‰ Respondent committed three violations of ORS ‰ Persons are required to return the commissioner’s 279.354(1) by filing three certified payroll reports that did wage surveys even if they performed only residential not include all information required by law and, in one construction work and even if they did no work on public case, certifying falsely that workers were paid all wages works projects. ----- In the Matter of F.R. Custom they earned. ----- In the Matter of Keith Testerman, 20 Builders, Inc., 20 BOLI 102, 111 (2000). BOLI 112, 128 (2000). 14.6 --- Filing Incomplete, Inaccurate, or ‰ Contractors and subcontractors on prevailing wage Untimely Certified Payroll rate jobs are required to file certified payroll reports that Statements “set out accurately and completely the payroll records for the prior week.” ----- In the Matter of Labor Ready, Inc., ‰ When respondent’s certified payroll reports lacked 20 BOLI 73, 97 (2000). the certification language required by ORS 279.354 and contained on the agency’s WH-38, did not state a ‰ Respondent violated ORS 279.354(1) by filing “group” classification for respondent’s workers, failed to certified payroll reports that contained inaccurate list the location of the project, and reported overtime information regarding the projects on which its hours as straight time hours, the forum found one employees had worked. ----- In the Matter of Labor violation of ORS 279.354, the number of violations Ready, Inc., 20 BOLI 73, 97 (2000). alleged by the agency. ----- In the Matter of Labor ‰ Filing false certified statements is a serious Ready Northwest, Inc., 27 BOLI 83, 143 (2005). violation. ----- In the Matter of Southern Oregon Affirmed, Labor Ready Northwest, Inc. v. Bureau of Flagging, Inc., 18 BOLI 138, 166 (1999). Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). ‰ Respondents failed to accurately report hours and dates of work on 20 certified statements filed on a public ‰ When six of respondent’s certified payroll reports works project. The filed statements reflected the lacked the certification language required by ORS respondents’ impermissible practices of banking hours, 279.354 and contained on the agency’s WH-38, none of counting hours worked after midnight as hours worked the reports listed the location of the project, five of on a different day, and paying straight time for hours

VII - 10 PWR -- 15.0 CIVIL PENALTIES worked in excess of eight in a day when workers worked violations and respondent’s actions in responding to the on different jobs or projects in the same day. ----- In the prior violations, the seriousness of the current violation, Matter of Southern Oregon Flagging, Inc., 18 BOLI and whether respondent knew it was violating the law. 138, 166 (1999). The forum must also consider any mitigating circumstances offered by respondent. ----- In the Matter ‰ The agency proved that respondent committed a of Emmert Industrial Corporation, 26 BOLI 284, 289 single violation of ORS 279.354(1) by submitting a (2005). See also In the Matter of Spot Security, Inc., 22 certified payroll record inaccurately stating that five BOLI 170, 176 (2001); also In the Matter of The workers on respondent’s public works project were Landscape Company of Portland, LLC, 22 BOLI 69, 76 laborers when their correct classification was (2001); In the Matter of Landco Enterprises, Inc., 22 boilermakers. ----- In the Matter of Northwest BOLI 62, 68 (2001); In the Matter of M. Carmona Permastore, 18 BOLI 1, 18 (1999), reconsidered 20 Painting, Inc., 22 BOLI 52, 60 (2001); In the Matter of BOLI 37 (2000). Larson Construction Co., Inc., 17 BOLI 54, 77 (1998). Affirmed, Northwest Permastore Systems v. Bureau of Labor and Industries, 172 Or App 427 (2001). ‰ In determining the amount of civil penalty, the forum must consider all aggravating and mitigating factors. 14.7 --- Failure to File Certified Payroll Respondent bears the burden of proving mitigating Statements circumstances. ----- In the Matter of Larson Construction Co., Inc., 22 BOLI 118, 155, 157 (2001). 14.8 --- Failure to Pay Fee for Costs of Administering Law ‰ Civil penalties, liquidated damages, and debarment ‰ When respondent entered into a public works are distinct forms of sanctions the agency may impose contract subject to ORS 279.348 to 279.380 and did not for violations of prevailing wage rate laws. ----- In the pay the prevailing wage rate fee required by ORS Matter of Larson Construction Co., Inc., 17 BOLI 54, 279.375 within 60 days after work on the contract began, 71 (1998). these facts established a violation of ORS 279.375 as a 15.2 --- Failure to Pay PWR matter of law and subjected respondent to a potential civil penalty. ----- In the Matter of Steven D. Harris, 21 ‰ When mitigating circumstances were outweighed by BOLI 139, 143 (2000). the aggravating circumstances, particularly respondent’s 18 prior violations and failure to visit the jobsite to 15.0 CIVIL PENALTIES determine the type of work being performed by its 15.1 --- In General workers, the commissioner imposed a $5,000 civil penalty for each of respondent’s three violations, for a ‰ In determining an appropriate penalty, the forum total of $15,000. ----- In the Matter of Labor Ready must consider any aggravating circumstances alleged Northwest, Inc., 28 BOLI 91, 119 (2007). and proved by the agency, any mitigating circumstances, and prior final orders. ----- In the Matter of Labor Ready Appeal pending. Northwest, Inc., 28 BOLI 91, 116 (2007). ‰ Former OAR 839-016-0540(3)(a) establishes a Appeal pending. minimum, not an upper limit, on the commissioner’s authority to determine an appropriate civil penalty. ----- See also In the Matter of Labor Ready Northwest, Inc., In the Matter of Labor Ready Northwest, Inc., 28 28 BOLI 47, 75 (2007), appeal pending; In the Matter of BOLI 91, 116 (2007). Harkcom Pacific, 27 BOLI 62, 77 (2005). Appeal pending. ‰ When seeking more than the minimum civil penalty, the agency must establish aggravating circumstances to See also In the Matter of Labor Ready Northwest, Inc., justify the increased amount. ----- In the Matter of Labor 28 BOLI 47, 75 (2007), appeal pending. Ready Northwest, Inc., 28 BOLI 91, 116 (2007). ‰ When mitigating circumstances were considerably Appeal pending. outweighed by the gravity of aggravating circumstances that included 14 prior violations of the same statute, the See also In the Matter of Labor Ready Northwest, Inc., commissioner imposed a $5,000 civil penalty for each of 28 BOLI 47, 75 (2007), appeal pending. respondent’s four violations, for a total of $20,000. ----- ‰ ORS 279.370 authorizes the commissioner to In the Matter of Labor Ready Northwest, Inc., 28 impose a civil penalty not to exceed $5,000 for each BOLI 47, 79-80 (2007). violation of the prevailing wage rate laws. ----- In the Appeal pending. Matter of Design N Mind, Inc., 27 BOLI 32, 44 (2005). ‰ Considering all the aggravating and mitigating ‰ When determining the civil penalty amount, the circumstances, the forum assessed a $5,000 civil commissioner must consider the mitigating and penalty for respondent’s single violation of ORS aggravating circumstances set forth in OAR 839-016- 279.350(1) when respondent’s violation was properly 0520(1). ----- In the Matter of Troy Wingate, 27 BOLI classified as “second and subsequent repeated” violation 282, 292 (2006). See also In the Matter of Storm King under OAR 839-016-0540. ----- In the Matter of Labor Construction, 27 BOLI 46, 54 (2005); In the Matter of Ready Northwest, Inc., 27 BOLI 83, 139 (2005). Design N Mind, Inc., 27 BOLI 32, 44 (2005). Affirmed, Labor Ready Northwest, Inc. v. Bureau of ‰ In determining an appropriate penalty, the forum Labor and Industries, 208 Or App 195, 145 P3d 232 must consider respondent’s history, including prior (2006), rev den 342 Or 473, 155 P3d 51 (2007).

VII - 11 PWR -- 15.0 CIVIL PENALTIES

‰ Considering all the aggravating and mitigating magnitude, and there were other aggravating circumstances, the forum assessed a $3,000 civil circumstances and no mitigating circumstances, the penalty for each of respondent’s violations of ORS forum assessed a $3,750 civil penalty for each violation, 279.350(1), for a total of $15,000, when respondent’s or $15,000 in total. ----- In the Matter of Johnson violations were properly classified as “first repeated” Builders, Inc., 21 BOLI 103, 124 (2000). violations under OAR 839-016-0540. ----- In the Matter of Labor Ready Northwest, Inc., 27 BOLI 83, 137 ‰ The commissioner imposed a $1000 penalty for (2005). each of respondent’s three violations of ORS 279.350(1) when respondent previously had violated the prevailing Affirmed, Labor Ready Northwest, Inc. v. Bureau of wage rate laws, respondent’s workers went unpaid for a Labor and Industries, 208 Or App 195, 145 P3d 232 period of time, and the general contractor on the public (2006), rev den 342 Or 473, 155 P3d 51 (2007). works contract suffered a financial loss because it paid ‰ The forum assessed $2,000 per violation, for a total workers’ wages on respondent’s behalf. ----- In the of $14,000, for respondent’s “first” violation of ORS Matter of Keith Testerman, 20 BOLI 112, 128 (2000). 279.350(1). ----- In the Matter of Harkcom Pacific, 27 ‰ The forum assessed a minimum civil penalty sought BOLI 62, 77 (2005). by the agency in an amount equal to the unpaid wages ‰ The forum assessed civil penalties of $2,000 per for each of respondent's failures to pay the prevailing violation, for a total of $8,000, for respondent’s failure to wage rate. ----- In the Matter of Northwest Permastore pay four workers the prevailing wage rate on a public Systems, Inc., 20 BOLI 37, 60 (2000). works. ----- In the Matter of Design N Mind, Inc., 27 Affirmed, Northwest Permastore Systems v. Bureau BOLI 32, 44-45 (2005). of Labor and Industries, 172 Or App 427 (2001). ‰ The minimum civil penalty per violation is $1,000 or ‰ The forum imposed no civil penalties for the amount of unpaid wages, whichever is less. When respondent’s failure to pay the prevailing wage rate the agency seeks more than the minimum civil penalty, it when: the agency had approved respondent’s fringe must establish aggravating circumstances to justify the benefit plan in 1996 and did not notify respondent until increased amount. ----- In the Matter of Design N Mind, August 1997 that it saw problems with the plan; Inc., 27 BOLI 32, 44 (2005). respondent promptly sought expert assistance in developing a bona fide plan; and respondent cooperated ‰ When respondent failed to pay the prevailing wage with the agency’s investigation and made every effort to rate to eight workers, it was respondent’s first violation, bring the plan into compliance. ----- In the Matter of and both aggravating and mitigating circumstances were Southern Oregon Flagging, Inc., 18 BOLI 138, 164-65 present, the forum assessed civil penalties of $1,500 for (1999). each violation, for a total of $12,000. ----- In the Matter of Labor Ready Northwest, Inc., 22 BOLI 245, 283 ‰ The commissioner has authority to impose a civil (2001). penalty not to exceed $5,000 for each violation of ORS Reversed in part, Labor Ready Northwest, Inc. v. 279.348 to 279.380 and the administrative rules adopted Bureau of Labor and Industries, 188 Or App 346, 71 pursuant thereto. When respondent committed five P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 violations of ORS 279.350(1), but had cooperated with (2004). the agency and had no prior violations, the forum assessed the minimum penalty allowable, consisting of ‰ The forum assessed a $1,000 civil penalty for each $1,557.71, the amount of the unpaid wages and the of respondent’s two violations of ORS 279.350(1). ----- In amount sought by the agency. ----- In the Matter of the Matter of William George Allmendinger, 21 BOLI Northwest Permastore, 18 BOLI 1, 19-20 (1999), 151, 171 (2000). reconsidered 20 BOLI 37 (2000). ‰ OAR 839-016-0540(3)(a) requires the commissioner Affirmed, Northwest Permastore Systems v. Bureau to assess a minimum civil penalty of “[A]n “equal amount of Labor and Industries, 172 Or App 427 (2001). of the unpaid wages or $1,000, whichever is less, for the first violation” of ORS 279.350(1). When respondent’s ‰ "Repeated violations" are violations of a law or rule “first” three violations were of great seriousness and that the respondent has violated on more than one magnitude, and they were coupled with the other project within two years of the date of the most recent aggravating circumstances and the lack of any mitigating violation. ----- In the Matter of Larson Construction circumstances, the forum assessed $2,000 in civil Co., Inc., 17 BOLI 54, 76 (1998). penalties for each violation, or $6,000 in total. ----- In the ‰ A subcontractor who fails to pay the prevailing wage Matter of Johnson Builders, Inc., 21 BOLI 103, 124 rate is subject to a penalty for each worker to whom it (2000). failed to pay the wage. The minimum penalty for a ‰ OAR 839-016-0540(3)(b) requires the commissioner repeated violation of failing to pay the prevailing wage to assess a minimum civil penalty of “[T]wo times the rate is twice the amount of unpaid wages owed the amount of unpaid wages or $3,000, whichever is less, worker or $3000, whichever is less. ----- In the Matter of for the first repeated violation” of ORS 279.350 regarding Larson Construction Co., Inc., 17 BOLI 54, 76-77 the payment of the prevailing rate of wage. When (1998). respondent’s violation was a first repeated violation and ‰ When respondents deliberately avoided complying two times the unpaid wages amounted to $9,178, with the prevailing wage rate laws, with the result that respondent’s failure to pay its four workers any money their workers did not receive the legally required wage, whatsoever for their work was of great seriousness and

VII - 12 PWR -- 15.0 CIVIL PENALTIES the forum imposed a civil penalty of $5000.00. ----- In depends on any aggravating or mitigating the Matter of Larson Construction Co., Inc., 17 BOLI circumstances. ----- In the Matter of Larson 54, 79-80 (1998). Construction Co., Inc., 17 BOLI 54, 77 (1998). 15.3 --- Failure to Post PWR ‰ The agency views failure to post prevailing wage rates as a serious violation. The forum imposed a $4000 ‰ Considering the number of aggravating circumstances and absence of any mitigating civil penalty for such a violation when the respondents: circumstances, including respondent’s four prior took no action to correct their failure to post prevailing violations of former ORS 279.350(4), the commissioner wage rates after the agency informed them of a similar imposed a $5,000 civil penalty for Respondent’s failure violation on another site; failed to post prevailing wage to post the prevailing wage rate. ----- In the Matter of rates for many months; did not show the rates to workers Labor Ready Northwest, Inc., 28 BOLI 91, 123 (2007). who asked about them; knew or should have known of their duty to post the rates; did show some cooperation Appeal pending. with the agency's investigation; and sent their office manager to prevailing wage rate training. ----- In the ‰ Considering the number of aggravating Matter of Larson Construction Co., Inc., 17 BOLI 54, circumstances that included three prior violations of the 77-78 (1998). same statute and the absence of any mitigating circumstances, the commissioner imposed a $5,000 civil 15.4 --- Failure to Pay Fee for Costs of penalty for respondent’s single violation of former ORS Administering Law 279.350(4). ----- In the Matter of Labor Ready Northwest, Inc., 28 BOLI 47, 79-80 (2007). ‰ When the agency sought a $2,500 civil penalty for one violation of ORS 279.375, the forum found that, Appeal pending. under the facts of the case, a $2,500 civil penalty was disproportionate to the violation and assessed the ‰ Considering all the aggravating and mitigating circumstances, the forum assessed a $5,000 civil minimum civil penalty of $1,000. ----- In the Matter of penalty for respondent’s third violation of ORS Steven D. Harris, 21 BOLI 139, 150 (2000). 279.350(4). ----- In the Matter of Labor Ready 15.5 --- Failure to File Certified Payroll Northwest, Inc., 27 BOLI 83, 135 (2005). Statements Affirmed, Labor Ready Northwest, Inc. v. Bureau of ‰ The forum assessed civil penalties of $1,250 for Labor and Industries, 208 Or App 195, 145 P3d 232 each of respondent’s 23 violations of ORS 279.354 (2006), rev den 342 Or 473, 155 P3d 51 (2007). based on misclassification of workers or submission of ‰ Considering all the aggravating and mitigating certified statements without accompanying payroll, and circumstances, the forum assessed a $4,000 civil $2,000 for each of respondent’s violations of failing to file penalty for respondent’s second violation of ORS any certified payroll report. ----- In the Matter of 279.350(4). ----- In the Matter of Labor Ready Johnson Builders, Inc., 21 BOLI 103, 126-27 (2000). Northwest, Inc., 27 BOLI 83, 134 (2005). 15.6 --- Filing Incomplete, Inaccurate, or Affirmed, Labor Ready Northwest, Inc. v. Bureau of Untimely Certified Payroll Labor and Industries, 208 Or App 195, 145 P3d 232 Statements (2006), rev den 342 Or 473, 155 P3d 51 (2007). ‰ Considering all the aggravating and mitigating ‰ When respondent could have easily complied with circumstances, the commissioner assessed a $5,000 the law and was aware of its violation, the forum civil penalty for respondent’s single violation of former assessed a civil penalty of $2,000, the amount sought by ORS 279.354. ----- In the Matter of Labor Ready the agency, based on respondent’s failure to post the Northwest, Inc., 27 BOLI 83, 144 (2005). applicable prevailing wage rates on its job site. ----- In the Matter of Labor Ready Northwest, Inc., 22 BOLI Affirmed, Labor Ready Northwest, Inc. v. Bureau of 245, 284 (2001). Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). Reversed in part, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 ‰ Considering all the aggravating and mitigating P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 circumstances, the commissioner assessed a $4,000 (2004). civil penalty for respondent’s single violation of former ORS 279.354. ----- In the Matter of Labor Ready ‰ The forum assessed a civil penalty of $3,000 when Northwest, Inc., 27 BOLI 83, 142 (2005). respondent could have easily complied with the law, should have known of its obligation to post the prevailing Affirmed, Labor Ready Northwest, Inc. v. Bureau of wage rates, had committed a prior violation of the same Labor and Industries, 208 Or App 195, 145 P3d 232 statute and had responded inadequately to prevent (2006), rev den 342 Or 473, 155 P3d 51 (2007). subsequent violations, but cooperated with the agency’s ‰ Considering all the aggravating and mitigating investigation and lacked actual knowledge that the circumstances, the commissioner assessed $3,000 per subject contracts were subject to Oregon’s prevailing violation, for a total of $18,000 in civil penalties, for wage rate laws. ----- In the Matter of Larson respondent’s six violations of former ORS 279.354. ----- Construction Co., Inc., 22 BOLI 118, 157 (2001). In the Matter of Labor Ready Northwest, Inc., 27 BOLI 83, 141-42 (2005). ‰ The maximum penalty for failure to post prevailing wage rates is $5000, and the amount of the penalty Affirmed, Labor Ready Northwest, Inc. v. Bureau of

VII - 13 PWR -- 15.0 CIVIL PENALTIES

Labor and Industries, 208 Or App 195, 145 P3d 232 penalty as it did in that case. The forum disagreed with (2006), rev den 342 Or 473, 155 P3d 51 (2007). the agency’s assertion that the maximum $5000 penalty ‰ Based on precedent and the aggravating factors for each violation was appropriate, stating that the forum present, the forum assessed $1,000 per violation for imposes that penalty in cases when the violations are respondent’s 20 violations of ORS 279.354. ----- In the widespread and the certified payroll reports include Matter of Harkcom Pacific, 27 BOLI 62, 79-80 (2005). intentional falsification of hours worked and wages paid. ----- In the Matter of William George Allmendinger, 21 ‰ By not paying fringe benefits, respondent did not BOLI 151, 172 (2000). pay its workers the full weekly wages they earned and the forum concluded that the certification by ‰ The forum assessed civil penalties of $1,250 for respondent’s president on each of the 20 certified payroll each of respondent’s 23 violations of ORS 279.354 reports that no worker was paid less than the prevailing based on misclassification of workers or submission of rate of wage was untruthful and a violation of ORS certified statements without accompanying payroll, and 279.354(1). ----- In the Matter of Harkcom Pacific, 27 $2,000 for each of respondent’s violations of failing to file BOLI 62, 79 (2005). any certified payroll report. ----- In the Matter of Johnson Builders, Inc., 21 BOLI 103, 126-27 (2000). ‰ To comply with ORS 279.354(1), a contractor’s certified payroll reports must include accurate complete ‰ For the single violation of ORS 279.354(1), the payroll records for the prior week for each worker forum assessed a $1,000 civil penalty.----- In the Matter containing the information prescribed by statute, the of Northwest Permastore Systems, Inc., 20 BOLI 37, hourly rate paid to each worker, a certification that no 60 (2000). worker was paid less than the prevailing rate of wage, Affirmed, Northwest Permastore Systems v. Bureau and certification that the contractor has read the of Labor and Industries, 172 Or App 427 (2001). statement and certificate, knows the contents, and that the certification and payroll records are true. ----- In the ‰ The commissioner imposed a $1000 penalty for Matter of Harkcom Pacific, 27 BOLI 62, 78 (2005). each of respondent’s three violations of ORS 279.354(1) when the agency previously had warned respondent ‰ In summary, ORS 279.354(1) requires a contractor about other violations of the prevailing wage rate laws, it to provide: (a) truthful payroll information, and (b) a would not have been difficult for respondent to complete truthful certification that the payroll information is true the certified payroll reports accurately, and the reports and that no worker was paid less than the prevailing rate contained relatively serious misstatements or omissions. of wage. Truth is the key element. ----- In the Matter of ----- In the Matter of Keith Testerman, 20 BOLI 112, Harkcom Pacific, 27 BOLI 62, 78 (2005). 128-29 (2000). ‰ The forum assessed civil penalties of $2,000 per ‰ The commissioner imposed a $5000 penalty for violation, for a total of $12,000, for respondent’s six respondent’s violation of ORS 279.354(1) when the inaccurate certified payroll reports. ----- In the Matter of violation was aggravated by respondent’s “less than Design N Mind, Inc., 27 BOLI 32, 45 (2005). impressive” response to the agency’s prior investigations of it; respondent’s persistent difficulties in ensuring that ‰ Respondent committed nine separate violations of workers on prevailing wage rate jobs were paid overtime ORS 279.354 and OAR 839-016-0010 when all nine for work they did on weekends; the fact that misclassified workers as laborers, four of the statements respondent’s failure to record daily hours worked either misstated the amount of straight time worked by resulted in one worker not receiving all wages due for respondent’s workers on particular days or the total several months; the ease with which respondent could hours worked by those workers on particular days, and have complied with the law; and the fact that respondent all nine were missing the certified statement contained deliberately included possibly inaccurate information on on the agency’s form WH-38. The commissioner the certified payroll reports. ----- In the Matter of Labor assessed $2,000 per violation, for a total of $18,000 in Ready, Inc., 20 BOLI 73, 100-01 (2000). civil penalties. ----- In the Matter of Labor Ready Northwest, Inc., 22 BOLI 245, 287 (2001). ‰ The forum imposed a civil penalty of $250 for each of 24 violations of ORS 279.354(7) when respondents Reversed in part, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 should have known that their payroll methods, as P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 reflected in their certified statements, were illegal. ----- In (2004). the Matter of Southern Oregon Flagging, Inc., 18 BOLI 138, 166-67, 169 (1999). ‰ When respondent submitted untimely certified payroll statements, the forum assessed a civil penalty of ‰ The forum imposed a $5000 civil penalty for $1,000 based on all the aggravating and mitigating respondents' failure to file accurate and complete factors measured against civil penalties assessed for the certified statements when aggravating factors included: same violation in prior cases. ----- In the Matter of respondents' response to their prior violations of the Larson Construction Co., Inc., 22 BOLI 118, 158-59 prevailing wage rate laws; the widespread and (2001). deliberate nature of the present violations; respondents' use of a sham apprenticeship program to circumvent ‰ The forum assessed $1,000 each for respondent’s paying prevailing wage rates; respondents' practice of two violations of ORS 279.354(1), finding the violations banking hours and recording overtime and weekend to be similar in magnitude to the violations committed by hours as though they were worked on weekdays, for the the subcontractor in Testerman and imposed the same same purpose; the certification of statements that

VII - 14 PWR -- 15.0 CIVIL PENALTIES included deliberately falsified hours and rates of pay; ‰ When respondent failed to return the 2000 wage and the fact that respondents knew or should have survey, could have easily complied with the law, and known of the violation. ----- In the Matter of Larson was given at least two reminder notices, and there were Construction Co., Inc., 17 BOLI 54, 79 (1998). no mitigating circumstances present, the commissioner assessed a $500 civil penalty. ----- In the Matter of 15.7 --- Failure to Return PWR Survey Landco Enterprises, Inc., 22 BOLI 62, 68 (2001). ‰ Based on aggravating circumstances and the lack of mitigating circumstances, the forum assessed a civil ‰ When respondent failed to return the 2000 wage penalty of $1,000, the amount sought by the agency, for survey, could have easily complied with the law, was respondent’s single violation of ORS 279C.815(3). ----- given at least two reminder notices, did not complete or In the Matter of Wildfang, Inc., 28 BOLI 1, 9 (2006). return the 1998 and 1999 wage surveys, and did not perform any non-residential construction work, the ‰ When there were several aggravating factors, and commissioner assessed a $500 civil penalty. ----- In the only one mitigating factor, the commissioner assessed a Matter of M. Carmona Painting, Inc., 22 BOLI 52, 61 civil penalty of $750 for respondent’s single violation of (2001). ORS 279C.815(3). ----- In the Matter of Troy Wingate, 27 BOLI 282, 294 (2006). ‰ The forum assessed the $500 civil penalty sought by the agency for one violation of ORS 279.359(2). ----- ‰ Considering there were several aggravating In the Matter of Green Planet Landscaping, Inc., 21 circumstances and no mitigating circumstances, and that BOLI 130, 139 (2000). the amount of civil penalties sought by the agency was amply supported by the facts and prior final orders, the ‰ The forum assessed a $500 civil penalty for each of forum assessed a $250 civil penalty for respondent’s respondent’s two violations of ORS 279.359(2). ----- In 2001 violation, a $250 civil penalty for respondent’s 2002 the Matter of Schneider Equipment, Inc., 21 BOLI 60, violation, and a $500 civil penalty for respondent’s 2004 73 (2000). violation, for a total of $1,000. ----- In the Matter of ‰ When respondent failed to complete and return a Storm King Construction, 27 BOLI 46, 55 (2005). 1998 wage survey form in violation of ORS 279.359 but employed no construction workers in 1998, the ‰ Considering all the aggravating and mitigating circumstances, the commissioner assessed a $500 civil commissioner assessed a $250 civil penalty. ----- In the penalty for a respondent’s single violation of ORS Matter of Martha Morrison, 20 BOLI 275, 286 (2000). 279.359. ----- In the Matter of Emmert Industrial ‰ When respondent’s failure to complete and return a Corp., Inc., 26 BOLI 284, 290 (2005). 1999 wage survey was aggravated by several factors and there were no mitigating factors present, the ‰ Considering all the aggravating and mitigating circumstances, the commissioner assessed a $350 civil commissioner found that the $500 sought by the agency penalty for a respondent’s single violation of ORS was an appropriate civil penalty. ----- In the Matter of 279.359. ----- In the Matter of Cedar Landscape, Inc., Martha Morrison, 20 BOLI 275, 287 (2000). 23 BOLI 287, 293-94 (2002). ‰ The commissioner imposed a $500 penalty for a violation of ORS 279.359(2) when there was no ‰ When respondent performed non-residential construction work in the period of time covered by the evidence that respondent had previously violated the 2000 wage survey and untimely submitted the prevailing wage rate laws; it would have been relatively commissioner’s wage survey form, failed to complete easy for respondent to return the wage survey; and the and return the commissioner’s 1998 wage survey, and agency gave respondent several warnings and presented no credible evidence of mitigating factors, the opportunities to comply with the statute before issuing commissioner assessed a civil penalty of $750. ----- In the notice of intent. ----- In the Matter of F.R. Custom the Matter of Harney Rock & Paving Co., 22 BOLI Builders, Inc., 20 BOLI 102, 111 (2000). 177, 185 (2001). See also In the Matter of WB Painting 15.8 --- Failure to Make Records Available and Decorating, Inc., 22 BOLI 18, 25 (2001), amended to Wage and Hour Division 22 BOLI 27(2001). ‰ Considering all the aggravating and mitigating ‰ When respondent failed to return the 2000 wage circumstances, the commissioner assessed $2,500 for a survey, could have easily complied with the law and was respondent’s violation of ORS 279.355. ----- In the given at least two reminder notices, but there was no Matter of Labor Ready Northwest, Inc., 27 BOLI 83, evidence that respondent performed any non-residential 146 (2005). construction work in the year 2000, the commissioner assessed a $350 civil penalty. ----- In the Matter of Spot Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 Security, Inc., 22 BOLI 170, 175 (2001). (2006), rev den 342 Or 473, 155 P3d 51 (2007). ‰ When respondent failed to return the 2000 wage ‰ The forum imposes a maximum $5,000 penalty survey, could have easily complied with the law, was when the violations are widespread and are of given at least two reminder notices, did not complete or considerable magnitude, usually due to the number of return the 1998 and 1999 wage surveys, and there were workers affected by the violation. In cases when the no mitigating circumstances present, the commissioner forum has imposed the maximum penalty for failure to assessed a $1,000 civil penalty. ----- In the Matter of provide requested records to the agency, the The Landscape Company of Portland, LLC, 22 BOLI subcontractor was found to have never filed certified 69, 76-77 (2001). payroll records as required. ----- In the Matter of Design

VII - 15 PWR -- 15.0 CIVIL PENALTIES

N Mind, Inc., 27 BOLI 32, 45 (2005). the action was determined to be a violation. When December 13, 2001, was the first date on which ‰ Based on aggravating circumstances – respondent respondent was determined to have committed a had ample opportunity to comply provide requested violation, the forum held that respondent’s actions that records and could have done so without undue difficulty, took place in May 2001 could not be evaluated as but failed to do so -- the forum assessed a civil penalty responding to a subsequent determination. ----- In the of $2,000 for respondent’s single violation of 279.355(2). Matter of Labor Ready Northwest, Inc., 27 BOLI 83, ----- In the Matter of Design N Mind, Inc., 27 BOLI 32, 130 (2005). 46 (2005). Affirmed, Labor Ready Northwest, Inc. v. Bureau of ‰ The forum assessed a $3500 civil penalty against Labor and Industries, 208 Or App 195, 145 P3d 232 respondent for his single violation of ORS 279.355 (2006), rev den 342 Or 473, 155 P3d 51 (2007). based on the aggravating circumstances of the case. ---- - In the Matter of William George Allmendinger, 21 ‰ Respondent’s failure to post the applicable BOLI 151, 171-72 (2000). prevailing wage rates was aggravated by its less than overwhelming response to its previous violations, ‰ When respondent’s violation of ORS 279.355(2) including respondent’s failure to send any of its was aggravated and there were no mitigating factors, the employees to BOLI’s prevailing wage rate seminars to forum assessed the maximum civil penalty of $5,000. ---- obtain additional education in the law since a final order - In the Matter of Johnson Builders, Inc., 21 BOLI was issued regarding respondent’s prior violations. ----- 103, 129 (2000). In the Matter of Larson Construction Co., Inc., 22 BOLI 118, 156 (2001). 15.9 --- Penalties for Other Violations ‰ The commissioner imposed a $4000 penalty for ‰ Respondent’s failure to submit timely certified each of respondent’s two violations of OAR 839-016- payroll statements was aggravated by the fact that its 0025(2) when respondent’s failure to make and maintain response to prior violations had “not been required records was not a deliberate attempt to overwhelming.” ----- In the Matter of Larson circumvent the prevailing wage rate law, but the Construction Co., Inc., 22 BOLI 118, 158 (2001). violations were aggravated by respondent’s “less than ‰ Respondents' failure to post prevailing wage rates impressive” response to the agency’s prior investigations was aggravated by the failure to post after the agency of it; respondent’s persistent difficulties in ensuring that informed them of a similar violation on another site. ----- workers on prevailing wage rate jobs were paid overtime In the Matter of Larson Construction Co., Inc., 17 for work they did on weekends; the fact that BOLI 54, 77-78 (1998). respondent’s failure to record daily hours worked resulted in one worker not receiving all wages due for 15.10.2 --- Prior Violations of Statutes and several months; and the ease with which respondent Rules could have complied with the law. ----- In the Matter of ‰ Respondent’s failure to post the prevailing wage Labor Ready, Inc., 20 BOLI 73, 99-100 (2000). rate was aggravated by its four prior violations of former ‰ The forum imposed no penalty for a city's failure to ORS 279.350(4) on four separate projects. ----- In the include a contract provision stating that a fee had to be Matter of Labor Ready Northwest, Inc., 28 BOLI 91, paid to the commissioner when there was no evidence 120-21 (2007). that any person was paid less than the prevailing wage Appeal pending. rate or that the city previously had violated prevailing wage rate laws, and the city did not intentionally sever ‰ Respondent’s failure to pay the prevailing wage rate the contract from other water line improvement contracts to three workers on a public works project in 2004 was to avoid having to comply with the prevailing wage rate aggravated by its 18 prior violations of former ORS laws. ----- In the Matter of the City of Klamath Falls, 279.350(1), eight in 1998, six in 2000, and four in 2003. - 19 BOLI 266, 286-87 (2000). ---- In the Matter of Labor Ready Northwest, Inc., 28 BOLI 91, 117 (2007). ‰ The forum imposed a civil penalty of $5,000 based on respondent’s requirement that workers accept less Appeal pending. than the prevailing wage rate as part of a bogus ‰ Respondent’s failure to post the prevailing wage apprenticeship program that violated ORS 279.350(7). -- rate was aggravated by its three prior violations of --- In the Matter of Larson Construction Co., Inc., 17 former ORS 279.350(4) on three separate projects. ----- BOLI 54, 79 (1998). In the Matter of Labor Ready Northwest, Inc., 28 15.10 --- Aggravating Circumstances BOLI 47, 80 (2007). 15.10.1 --- Response to Prior Violations of Appeal pending. Statutes and Rules ‰ Respondent committed 14 prior violations that were ‰ OAR 839-016-0520(1)(b) is intended to penalize litigated at two different contested case hearings. Final contractors and subcontractors for actions taken after an orders were issued and respondent filed appeals in both actual determination that a previous violation occurred. cases, but did not assign error to the assessment of civil It does not apply to actions taken before such a penalties for those 14 violations. In its exceptions, determination has been made. This rule is in contrast to respondent argued that those violations should not be the “prior violation” rule, which turns on the date the considered because of their remoteness in time and action constituting the violation occurred, not the date because the cases were on appeal. The commissioner

VII - 16 PWR -- 15.0 CIVIL PENALTIES denied respondent’s exceptions and considered the 14 ‰ When the agency’s notice alleged that respondent’s prior violations as aggravating factors. ----- In the Matter failure to return the commissioner’s 1998 wage survey of Labor Ready Northwest, Inc., 28 BOLI 47, 76-77 was an aggravating circumstance but did not charge in (2007). the notice that it was a specific violation and the issue was not previously litigated, the forum declined to Appeal pending. consider it as a prior violation because there was no ‰ Respondent’s single violation of ORS 279.354 was evidence that the agency ever investigated or cited aggravated by a prior violation of the same statute. ----- respondent for its failure to return the 1998 wage survey In the Matter of Labor Ready Northwest, Inc., 27 and the facts giving rise to that violation were outside the BOLI 83, 143 (2005). substantive allegation in the notice. However, the forum considered this failure as an aggravating circumstance Affirmed, Labor Ready Northwest, Inc. v. Bureau of because it showed that respondent knew or should have Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). known of the violation. ----- In the Matter of Harney Rock & Paving Co., 22 BOLI 177, 184 (2001). See ‰ Respondent’s filing of an untimely payroll report was also In the Matter of M. Carmona Painting, Inc., 22 BOLI aggravated by respondent’s three prior violations of the 52, 60 (2001). same statute ----- In the Matter of Labor Ready Northwest, Inc., 27 BOLI 83, 142 (2005). ‰ Respondent’s failure to post the applicable prevailing wage rates was aggravated by its prior Affirmed, Labor Ready Northwest, Inc. v. Bureau of violations of Oregon’s prevailing wage rate laws, Labor and Industries, 208 Or App 195, 145 P3d 232 including a violation of ORS 279.350(4), between 1995 (2006), rev den 342 Or 473, 155 P3d 51 (2007). and 1997, and a violation of ORS 279.359 in 1999. ----- ‰ Respondent’s filing of six inaccurate or incomplete In the Matter of Larson Construction Co., Inc., 22 payroll reports was aggravated by respondent’s two prior BOLI 118, 156 (2001). violations of the same statute. ----- In the Matter of ‰ Respondent’s failure to submit timely certified Labor Ready Northwest, Inc., 27 BOLI 83, 141 (2005). payroll statements was aggravated by its prior violations Affirmed, Labor Ready Northwest, Inc. v. Bureau of of Oregon’s prevailing wage rate laws. ----- In the Matter Labor and Industries, 208 Or App 195, 145 P3d 232 of Larson Construction Co., Inc., 22 BOLI 118, 157-58 (2006), rev den 342 Or 473, 155 P3d 51 (2007). (2001). ‰ Respondent’s failure to pay the applicable prevailing ‰ An aggravating circumstance regarding wage rates was aggravated because it was a “first respondent’s five “first repeated violations” of ORS repeated” violation. ----- In the Matter of Labor Ready 279.350 was that respondent had violated ORS 279.350 Northwest, Inc., 27 BOLI 83, 53-54 (2004). on the previous project. ----- In the Matter of Johnson Affirmed, Labor Ready Northwest, Inc. v. Bureau of Builders, Inc., 21 BOLI 103, 123-24 (2000). Labor and Industries, 208 Or App 195, 145 P3d 232 ‰ Aggravating respondent’s 1999 violation of ORS (2006), rev den 342 Or 473, 155 P3d 51 (2007). 279.359 was the fact that it was her second violation. ---- ‰ Respondent’s failure to post the applicable - In the Matter of Martha Morrison, 20 BOLI 275, 286 prevailing wage rates was aggravated by respondent’s (2000). prior violation of the same statute. ----- In the Matter of Labor Ready Northwest, Inc., 27 BOLI 83, 133 (2005). 15.10.3 --- Opportunity and Degree of Difficulty to Comply Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 ‰ Respondent’s failure to post was aggravated by the (2006), rev den 342 Or 473, 155 P3d 51 (2007). facts that respondent had ample opportunity to comply with Oregon’s posting requirement, was aware of the ‰ The agency offered exhibits documenting a wage posting requirement and still failed to post, and there claim allegedly filed by an employee of respondent for was no evidence that it would have been difficult for the purpose of establishing a “prior violation.” The forum respondent to post. ----- In the Matter of Labor Ready rejected the exhibits on the grounds that the agency did Northwest, Inc., 28 BOLI 91, 121 (2007). not establish that the wage claim was filed against respondent. ----- In the Matter of Labor Ready Appeal pending. Northwest, Inc., 27 BOLI 83, 130 (2005). ‰ When respondent, a temporary employment Affirmed, Labor Ready Northwest, Inc. v. Bureau of agency, failed to pay the prevailing wage rate, Labor and Industries, 208 Or App 195, 145 P3d 232 respondent’s violations were aggravated by the fact that (2006), rev den 342 Or 473, 155 P3d 51 (2007). respondent did not take advantage of following opportunities to comply that would not have been difficult ‰ The forum held that a wage claim in which the to pursue. About a week after they started work, alleged unpaid wages became due and owing after the respondent’s two workers visited respondent’s office for alleged violations in the agency’s notice of intent the first time to pick up their paychecks, described the occurred could not constitute a prior violation. ----- In the duties they were performing, and complained they were Matter of Labor Ready Northwest, Inc., 27 BOLI 83, underpaid. In response, respondent’s customer service 129-30 (2005). representative telephoned the contractor. As a result of Affirmed, Labor Ready Northwest, Inc. v. Bureau of that conversation and her review of BOLI’s Prevailing Labor and Industries, 208 Or App 195, 145 P3d 232 Wage Rate booklet, the customer service representative (2006), rev den 342 Or 473, 155 P3d 51 (2007). concluded that the work being performed by the two

VII - 17 PWR -- 15.0 CIVIL PENALTIES workers was in a higher classification than the rate survey notice stated that the wage survey “is an annual respondent was paying its workers and determined the mandatory survey of all employers with construction- higher classification at which she thought the workers related employment.” ----- In the Matter of Troy should be paid. When the workers disagreed and Wingate, 27 BOLI 282, 292 (2006). suggested she investigate, respondent’s customer service representative did not visit the job site or take ‰ The forum found it should have been simple for any other action to determine the actual work that the respondent to comply with former ORS 279.354 and workers were performing, despite her apparent former OAR 839-016-0010. The statute and rule are conclusion that the contractor had misstated the very specific about the information required, and BOLI classification of the work to be performed when first provides a specific form that contractors or contracting for respondent’s services. Furthermore, subcontractors may use to comply with the law. Instead, despite the customer service representative’s conclusion respondent opted to use its own form, which was fine so that the workers should be paid in a higher classification, long as it contained all the elements of the agency’s there was no evidence that she took any action, at any form, including a certified statement. Respondent’s form time during their employment, to see that they were did not contain all the required elements, and even reclassified and paid at the higher rate. ----- In the respondent’s corrected submissions lacked the required Matter of Labor Ready Northwest, Inc., 28 BOLI 91, certified statement. Respondent’s original submissions 117-18 (2007). also incorrectly reported the classification of workers and hours worked. If respondent had original time records Appeal pending. that were correct and had taken care to determine the type of work its workers were performing, these ‰ When respondent failed to post, despite undisputed inaccuracies would not have occurred. ----- In the Matter evidence that respondent’s manager knew the correct of Labor Ready Northwest, Inc., 27 BOLI 83, 141 job classification for respondent’s workers and there was (2005). no evidence that posting posed any degree of difficulty for respondent, the forum found that respondent’s Affirmed, Labor Ready Northwest, Inc. v. Bureau of violation was aggravated by respondent’s ample Labor and Industries, 208 Or App 195, 145 P3d 232 opportunity and lack of difficulty in complying with the (2006), rev den 342 Or 473, 155 P3d 51 (2007). law. The forum rejected respondent’s contention that ‰ Respondent’s violation was aggravated by the fact posting is never “difficult, unless, for example, the work that respondent might have avoided its violations of ORS place is on a cliff or under water.” ----- In the Matter of 279.350(1) and (4) entirely if it had inquired, when taking Labor Ready Northwest, Inc., 28 BOLI 47, 80 (2007). a job order, if the job was a public works, or if Appeal pending. respondent had sent someone to visit the job site. ----- In the Matter of Labor Ready Northwest, Inc., 27 BOLI ‰ When respondent’s manager understood that 83, 136, 138 (2005). project was a prevailing wage rate job, but continued to pay respondent’s workers the minimum wage of $6.90 Affirmed, Labor Ready Northwest, Inc. v. Bureau of per hour for one day based on the excuse that he had Labor and Industries, 208 Or App 195, 145 P3d 232 not received written confirmation from BOLI, the forum (2006), rev den 342 Or 473, 155 P3d 51 (2007). concluded that respondent, through its manager, had the ‰ Respondent could have easily avoided its false opportunity to comply with the law and elected not to do certification that it paid its workers the prevailing wage so, constituting an aggravating circumstance. ----- In the rate simply by ascertaining the applicable rates in BOLI’s Matter of Labor Ready Northwest, Inc., 28 BOLI 47, prevailing wage rate booklet and paying those amounts 77-78 (2007). and by paying its workers for the actual dates and hours Appeal pending. worked. ----- In the Matter of Harkcom Pacific, 27 BOLI 62, 79 (2005). ‰ Respondent had ample opportunity and a minimal degree of difficulty to comply with the prevailing wage ‰ Respondent’s violation was aggravated because rate laws when the commissioner’s 2005 wage survey respondent did nothing to remedy the problem when the was mailed to respondent well over a month before the agency brought the unpaid wages to respondent’s required due date, giving respondent ample opportunity attention and the agency had to collect the unpaid to comply with the law; respondent had at least two wages from respondent’s surety. ----- In the Matter of reminders after the due date passed before the agency Harkcom Pacific, 27 BOLI 62, 77 (2005). warned that sanctions were imminent; even after the ‰ Had respondent wanted to pay the prevailing wage agency’s final warning letter, respondent remained rate, it could have easily done so simply by ascertaining unresponsive until the notice of intent to assess civil the applicable rates in BOLI’s prevailing wage rate penalties issued; and respondent should have had little booklet and paying those amounts and by paying its difficulty acquiring and providing the requested workers for the actual dates and hours that they worked. information. ----- In the Matter of Wildfang, Inc., 28 ----- In the Matter of Harkcom Pacific, 27 BOLI 62, 77 BOLI 1, 8 (2006). (2005). ‰ The forum found respondent had ample opportunity ‰ When respondent received multiple reminders of its to comply with the law when respondent actually obligation to submit wage surveys in 2001, 2002, and received the wage survey booklet mailed to him, the 2004, the forum concluded that respondent had ample Employment Department mailed its pre-survey notice opportunity to comply with the law. ----- In the Matter of and two reminders to the same address, and the pre- Storm King Construction, 27 BOLI 46, 55 (2005).

VII - 18 PWR -- 15.0 CIVIL PENALTIES

‰ Respondent’s violation was aggravated by the fact Reversed in part, Labor Ready Northwest, Inc. v. that it should not have been difficult to provide the Bureau of Labor and Industries, 188 Or App 346, 71 records the agency requested because respondent was P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 legally obligated to make and maintain them. ----- In the (2004). Matter of Design N Mind, Inc., 27 BOLI 32, 45 (2005). ‰ Respondent’s failure to return the commissioner’s 2000 wage survey was aggravated by the fact that it ‰ Respondent had ample opportunity to pay its would have been relatively easy for respondent to workers the correct prevailing wage rate and avoid the comply with the law by returning the wage survey, and violations by correctly classifying its employees based the agency gave respondent several opportunities to on the work they were performing. ----- In the Matter of comply, in the form of reminder notices sent by the Design N Mind, Inc., 27 BOLI 32, 44 (2005). Employment Department, before issuing its notice. ----- ‰ In a wage survey case, the commissioner found it In the Matter of Harney Rock & Paving Co., 22 BOLI would have been relatively easy for respondent to 177, 184 (2001). See also In the Matter of Spot comply with the law by simply returning the wage survey, Security, Inc., 22 BOLI 170, 176 (2001); In the Matter of and respondent was given several opportunities to do The Landscape Company of Portland, LLC, 22 BOLI 69, so. ----- In the Matter of Emmert Industrial 76 (2001); In the Matter of Landco Enterprises, Inc., 22 Corporation, 26 BOLI 284, 289 (2005). BOLI 62, 68 (2001); In the Matter of WB Painting and Decorating, Inc., 22 BOLI 18, 25 (2001), amended 22 ‰ Respondent’s violation of ORS 279.359 was BOLI 27(2001); In the Matter of Green Planet aggravated by the fact that it would have been relatively Landscaping, Inc., 21 BOLI 130, 139 (2000). easy for respondent to comply with the law by returning the wage survey, and the agency gave respondent ‰ Respondent’s failure to post the applicable several opportunities to comply, in the form of reminder prevailing wage rates was aggravated by the fact that it notices sent by the Employment Department, before could have easily complied with the law by having an issuing its notice. ----- In the Matter of Cedar employee attach the rates to a stake and drive the stake Landscape, Inc., 23 BOLI 287, 293 (2002). into the ground on the job site, a practice respondent had used in the past. ----- In the Matter of Larson ‰ Respondent’s certified payroll violation was Construction Co., Inc., 22 BOLI 118, 155-56 (2001). aggravated by the fact that it would have been relatively simple for respondent to comply with the statute. All ‰ Respondent’s failure to submit timely certified respondent had to do was list the same hours on its payroll statements was aggravated by the facts that payroll statements as submitted on its invoices to its respondent had seven days to complete and submit the client, use the WH-38 certification attachment, and make reports after it acquired actual knowledge that they were a phone call to BOLI’s prevailing wage unit to ascertain required and the completed, late report had only two the correct classification for its workers and record that names on it, with no evidence being presented to show it information. ----- In the Matter of Labor Ready could not have been timely completed and submitted. --- Northwest, Inc., 22 BOLI 245, 287 (2001). -- In the Matter of Larson Construction Co., Inc., 22 BOLI 118, 157-58 (2001). Reversed in part, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 ‰ Respondent’s violation of ORS 279.355(2) was P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 aggravated by evidence showing that he provided very (2004). few payroll records to the agency and no records related ‰ When respondent failed to pay the prevailing wage to the work performed by two employees on the subject rate to eight workers, respondent’s violation was project, the ease with which respondent could have aggravated because it would have been relatively simple provided records requested by the agency, and the for respondent to comply with the law. All respondent ample opportunity he had to comply with the agency’s had to do was to determine the specific duties performed request. ----- In the Matter of William George by its workers, pick up the phone and call BOLI’s Allmendinger, 21 BOLI 151, 171-72 (2000). prevailing wage unit, then follow the advice BOLI’s ‰ An aggravating factor in respondent’s violation of prevailing wage unit would have given. Respondent did ORS 279.375 was respondent’s ample opportunity to none of these things. ----- In the Matter of Labor Ready comply based on BOLI’s four warning letters stating that Northwest, Inc., 22 BOLI 245, 285 (2001). the $100 fee was due and where to send it. ----- In the Reversed in part, Labor Ready Northwest, Inc. v. Matter of Steven D. Harris, 21 BOLI 140, 149-50 Bureau of Labor and Industries, 188 Or App 346, 71 (2000). P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 (2004). ‰ When respondent committed 32 violations of ORS 279.354, the violations were aggravated by the ease ‰ Respondent’s failure to post the applicable with which respondent could have complied with the law. prevailing wage rates was aggravated by the fact that it ----- In the Matter of Johnson Builders, Inc., 21 BOLI would have been simple for respondent to comply with 103, 126-27 (2000). the statute; all it would have taken was a visit by respondent’s local branch manager to the job site to post ‰ An aggravating factor in respondent’s violation of a copy of the prevailing wage rate for respondent’s ORS 279.355(2) was that respondent was required by workers in a place conspicuous and accessible to them. law to maintain the records of the type requested by the ----- In the Matter of Labor Ready Northwest, Inc., 22 agency; there was no evidence that respondent could BOLI 245, 283 (2001). not have easily provided the records; and respondent

VII - 19 PWR -- 15.0 CIVIL PENALTIES had ample time in which to comply with the agency’s prevailing wage rates that ranged from $29.06 per hour request for records. ----- In the Matter of Johnson to $40.28 per hour; and (3) Respondent’s workers did Builders, Inc., 21 BOLI 103, 129 (2000). not receive their back pay until 5-7 weeks after that pay was due. Based on these facts, the forum concluded ‰ Respondent’s 1998 violation of ORS 279.359 was that respondent’s violations were of moderate aggravated by the ease of complying with the law and magnitude. ----- In the Matter of Labor Ready respondent’s failure to comply after BOLI sent her two Northwest, Inc., 28 BOLI 91, 118-19 (2007). reminders of her failure to comply. In addition, the fact that respondent only employed two construction workers Appeal pending. in 1999 for a total of 45 reportable hours showed it would ‰ In determining the magnitude of respondent’s have been relatively simple for respondent to complete violation of failing to post the prevailing wage rate, the the wage survey and return it. ----- In the Matter of forum considered the following facts: (1) Respondent did Martha Morrison, 20 BOLI 275, 286-87 (2000). not provide its workers with any way of finding out they 15.10.4 --- Magnitude and Seriousness of were being underpaid due to its failure to post or Violation otherwise inform its workers of the prevailing wage rate they were entitled to receive; (2) Respondent still did not ‰ The requirement that every contractor or post when it learned the project it dispatched workers to subcontractor post the prevailing wage rates for its was a prevailing wage rate job; (3) Over a three week employees promotes the statutory purpose of assuring period, respondent initially underpaid 15 workers the compliance by informing employees of the rate of pay total amount of $10,630.83. Respondent’s workers were they should be receiving. When contractors or unaware of this underpayment primarily because of subcontractors do not post, this directly undermines the respondent’s failure to post, and three of respondent’s legislature’s intent of ensuring that workers on public workers did not become aware of the underpayment until works be paid the prevailing wage rate. Consequently, 10 months later due to the fact that they were no longer the forum considers failure to post to be a serious working for respondent when respondent finally began matter. ----- In the Matter of Labor Ready Northwest, paying the prevailing wage. Based on these facts, the Inc., 28 BOLI 91, 121 (2007). forum concluded that respondent’s violations were of Appeal pending. substantial magnitude. ----- In the Matter of Labor Ready Northwest, Inc., 28 BOLI 47, 81 (2007). ‰ In determining the magnitude of respondent’s violation of failure to pay the prevailing wage rate, the Appeal pending. forum considered the following facts: (1) Over a two ‰ In determining the magnitude of respondent’s week period, respondent underpaid its three workers the violation of failing to pay the prevailing wage rate, the total amount of $1,529.82; (2) Two of the workers knew forum considered the following facts: (1) Over a three they were being underpaid and filed complaints with week period, respondent initially underpaid 15 workers BOLI that resulted in all three workers receiving their full the total amount of $10,630.83; (2) In making the back pay a little more than one month after their last day underpayments, respondent only paid its workers $6.90 of work; (3) Respondent’s corporate office did not per hour instead of $28.29 per hour, the applicable provide its local office with a posting ready rate sheet prevailing wage rate; and (3) As a direct result of until the last day that two of its workers worked on the respondent’s initial underpayment, three of respondent’s project, more than two weeks after respondent’s local workers did not receive their back pay until 10 months office provided respondent’s corporate office with the after they earned that pay. Based on these facts, the requisite paperwork, and after one of its workers had forum concluded that respondent’s violations were of already completed his employment with respondent. substantial magnitude. ----- In the Matter of Labor Based on these facts, the forum concluded that Ready Northwest, Inc., 28 BOLI 47, 78-79 (2007). respondent’s violations were of moderate magnitude. --- -- In the Matter of Labor Ready Northwest, Inc., 28 Appeal pending. BOLI 91, 121-22 (2007). ‰ When respondent’s prevailing wage rate survey Appeal pending. data would have been considered in the 2005 survey because the evidence showed respondent performed ‰ The commissioner considers violations of former non-residential work during 2005, the forum found ORS 279.350(1) to be a serious matter. ----- In the respondent’s non-compliance to be serious because it Matter of Labor Ready Northwest, Inc., 28 BOLI 91, undermines the commissioner’s ability to complete his 118 (2007). statutory duty to accurately determine the prevailing Appeal pending. wage rates. ----- In the Matter of Wildfang, Inc., 28 BOLI 1, 9 (2006). See also In the Matter of Labor Ready Northwest, Inc., 28 BOLI 47, 78 (2007), appeal pending. ‰ Based on the fact that the commissioner’s wage survey asks contractors to state whether or not they ‰ In determining the magnitude of respondent’s performed non-residential construction, the forum violation of failing to pay the prevailing wage rate, the inferred that the survey was intended to be the forum considered the following facts: (1) Over a two commissioner’s source of information as to whether or week period, respondent initially underpaid its three not surveyed contractors were required to submit wage workers the total amount of $1,529.82; (2) In making the data and that, in the absence of respondent fulfilling his underpayments, respondent paid its three workers legal obligation to complete and return the survey, the $27.65 per hour instead of one of four applicable

VII - 20 PWR -- 15.0 CIVIL PENALTIES commissioner had no way of knowing if respondent had receive his full back pay until it was four months wage data that might affect the calculation of prevailing overdue. ----- In the Matter of Labor Ready Northwest, wage rates. If all contractors imitated respondent’s non- Inc., 27 BOLI 83, 138 (2005). compliance, it would be impossible for the commissioner Affirmed, Labor Ready Northwest, Inc. v. Bureau of to carry out his statutory duty of determining the Labor and Industries, 208 Or App 195, 145 P3d 232 prevailing wage rates. Consequently, even though (2006), rev den 342 Or 473, 155 P3d 51 (2007). respondent would not have provided any wage data because he only performed residential work during the ‰ Failure to pay the applicable prevailing wage rates survey period, the commissioner found respondent’s is a serious violation that requires placement on the violation to be serious. ----- In the Matter of Troy commissioner’s list of ineligibles if the commissioner Wingate, 27 BOLI 282, 293 (2006). finds that the violation was intentional. ----- In the Matter of Labor Ready Northwest, Inc., 27 BOLI 83, 136 ‰ The seriousness of respondent’s violation of ORS (2005). 279.355 was considerable because the agency was unable to perform its statutorily mandated duty of Affirmed, Labor Ready Northwest, Inc. v. Bureau of determining that workers have been paid the prevailing Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). wage rate without obtaining these records. The magnitude was high because of the number of workers ‰ The magnitude of respondent’s ORS 279.350(1) involved in the audit. ----- In the Matter of Labor Ready violation was substantial because it resulted in the Northwest, Inc., 27 BOLI 83, 146 (2005). underpayment of six workers, three of whom did not receive their full pay until five months after their pay was Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 due, and a fourth who was still owed wages at the time (2006), rev den 342 Or 473, 155 P3d 51 (2007). of the hearing. ----- In the Matter of Labor Ready Northwest, Inc., 27 BOLI 83, 136 (2005). ‰ The magnitude of respondent’s violation of ORS 279.354 was increased because of the number of Affirmed, Labor Ready Northwest, Inc. v. Bureau of workers involved, the fact that the inaccuracies and Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). inconsistencies in respondent’s reports caused the agency to expend considerable time in determining that ‰ Failure to post the applicable prevailing wage rates respondent had in fact paid its workers the prevailing is a serious violation that requires placement on the wage rate, and the existence of several reports, each of commissioner’s list of ineligibles if the commissioner which would comprise a separate violation had the finds that the violation was intentional. ----- In the Matter agency chosen to plead multiple violations, that were of Labor Ready Northwest, Inc., 27 BOLI 83, 133-34 compressed by the charging document into one (2005). violation. ----- In the Matter of Labor Ready Northwest, Inc., 27 BOLI 83, 143 (2005). Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 Affirmed, Labor Ready Northwest, Inc. v. Bureau of (2006), rev den 342 Or 473, 155 P3d 51 (2007). Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). ‰ The magnitude of respondent’s failure to post was substantial when respondent did not provide its worker ‰ Respondent’s failure to file a certified payroll report with any way of finding out he was being underpaid and until prompted by the agency was serious. However, the the workers were initially paid less than the prevailing magnitude was limited, in that it only affected one wage rate. ----- In the Matter of Labor Ready worker. ----- In the Matter of Labor Ready Northwest, Northwest, Inc., 27 BOLI 83, 134 (2005). Inc., 27 BOLI 83, 142 (2005). Affirmed, Labor Ready Northwest, Inc. v. Bureau of Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). (2006), rev den 342 Or 473, 155 P3d 51 (2007). ‰ The magnitude of respondent’s failure to post was ‰ Respondent’s certified payroll violations were substantial when respondent did not provide its workers serious, as the inaccurate information provided affected with any way of finding out they were being underpaid the agency’s ability to determine if respondent’s workers and six workers were initially paid less than the had been paid properly. The magnitude was also prevailing wage rate. ----- In the Matter of Labor Ready substantial, in that respondent’s submissions contained Northwest, Inc., 27 BOLI 83, 133 (2005). inaccurate information about at least six workers. ----- In the Matter of Labor Ready Northwest, Inc., 27 BOLI Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 83, 141 (2005). (2006), rev den 342 Or 473, 155 P3d 51 (2007). Affirmed, Labor Ready Northwest, Inc. v. Bureau of ‰ The commissioner considers inaccurate or falsified Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). certified payroll reports to be a serious matter. ----- In the Matter of Harkcom Pacific, 27 BOLI 62, 79 (2005). ‰ The magnitude of respondent’s ORS 279.350(1) violation was substantial because of the extreme ‰ Respondent’s untruthful certification of its certified contrast between the wage respondent’s worker was payroll reports was serious, in that it disguised initially paid -- $6.75 per hour, and the wage he was respondent’s failure to pay its workers $15,898 in earned entitled to -- $43.83 per hour, and the fact that he did not wages. ----- In the Matter of Harkcom Pacific, 27 BOLI

VII - 21 PWR -- 15.0 CIVIL PENALTIES

62, 79 (2005). could only speculate as to the magnitude of respondent’s violation, inasmuch as the agency offered ‰ Respondent’s failure to pay the prevailing wage rate no evidence from which the forum could gauge the resulted was serious, in that it resulted in an extent, if any, to which respondent’s failure to return the underpayment of wages amounting to $15,898. ----- In 2001 wage survey skewed the commissioner’s the Matter of Harkcom Pacific, 27 BOLI 62, 77 (2005). determination of the prevailing wage rates. ----- In the ‰ Respondent’s failure to complete and return the Matter of Cedar Landscape, Inc., 23 BOLI 287, 293 commissioner’s wage surveys was serious, in that the (2002). commissioner would be unable to complete his ‰ Respondent’s violations of the certified payroll statutorily required duty of determining Oregon’s requirements were serious, in that the misclassification prevailing wage rates if all survey recipients did not of workers and inaccurate statements of hours worked return the wage surveys or only returned them after it made it impossible for BOLI to determine, based on the was too late to consider them. Respondent’s data, if payroll statements, just what the workers should have timely submitted, would have been included in the data been paid. The magnitude of the violation was used to set prevailing wage rates. The agency also substantial, given that there were nine defective alleged that respondent’s three violations resulted in a statements involving eight workers and over $3,000 in skewing of the established prevailing wage rates, but unpaid wages. ----- In the Matter of Labor Ready offered insufficient evidence to prove that allegation. ----- Northwest, Inc., 22 BOLI 245, 287-88 (2001). In the Matter of Storm King Construction, 27 BOLI 46, 55 (2005). Reversed in part, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 ‰ Respondent’s failure to provide requested records P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 was serious because a subcontractor’s failure to provide (2004). requested records undermines the agency’s ability to ‰ Respondent’s failure to pay the prevailing wage rate enforce the prevailing wage laws and ensure that to eight workers was a serious one that requires workers are properly paid. ----- In the Matter of Design debarment if the commissioner finds that the violation N Mind, Inc., 27 BOLI 32, 45 (2005). was intentional. The magnitude was high because it ‰ Respondent’s certified payroll report violations were resulted in the underpayment of eight workers. ----- In serious because a subcontractor’s failure to maintain the Matter of Labor Ready Northwest, Inc., 22 BOLI and provide required records undermines the agency’s 245, 285-86 (2001). ability to ensure that laborers on Oregon public works Reversed in part, Labor Ready Northwest, Inc. v. projects are paid the wages to which they are statutorily Bureau of Labor and Industries, 188 Or App 346, 71 entitled. ----- In the Matter of Design N Mind, Inc., 27 P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 BOLI 32, 45 (2005). (2004).

‰ Respondent’s failure to pay the prevailing wage rate ‰ Failure to post the applicable prevailing wage rates to four workers was a serious violation because it is a serious violation that requires debarment if the resulted in an underpayment to four workers that the commissioner finds that the violation was intentional. prime contractor ultimately paid on respondent’s behalf The magnitude of respondent’s violation was high and required placing respondent on the list of ineligibles. because respondent itself did not provide its workers ----- In the Matter of Design N Mind, Inc., 27 BOLI 32, with any way of finding out that they were being 44 (2005). underpaid and because respondent did not post prevailing wage rates at any of the 134 prevailing wage ‰ Respondent’s violation was serious because the rate jobs on which it employed workers in the year 2000. commissioner would be unable to complete his statutory ----- In the Matter of Labor Ready Northwest, Inc., 22 duty of determining Oregon’s prevailing wage rates if all BOLI 245, 283-84 (2001). survey recipients failed to return the wage survey until it was too late to be considered. ----- In the Matter of Reversed in part, Labor Ready Northwest, Inc. v. Emmert Industrial Corporation, 26 BOLI 284, 289 Bureau of Labor and Industries, 188 Or App 346, 71 (2005). P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 (2004). ‰ The forum declined to speculate on the magnitude of respondent’s violation when the agency offered no ‰ Respondent’s failure to return the commissioner’s evidence from which the forum could gauge the extent to 2000 wage survey was deemed serious because the which, if any, respondent’s failure to return the 2004 commissioner’s statutorily mandated duty of determining wage survey skewed the commissioner’s determination Oregon’s prevailing wage rates would be impossible if all of the prevailing wage rates. ----- In the Matter of survey recipients failed to return the wage survey until Emmert Industrial Corporation, 26 BOLI 284, 289 they were too late to be considered. The forum declined (2005). to speculate as to the magnitude of respondent’s violation because the agency offered no evidence from ‰ Respondent’s violation of ORS 279.359 was which the forum could gauge the extent to which aggravated by its seriousness, in that the commissioner respondent’s failure to return the 2000 wage survey would be unable to complete his statutorily mandated skewed the commissioner’s determination of the duty of determining Oregon’s prevailing wage rates if all prevailing wage rates. ----- In the Matter of Harney survey recipients failed to return the wage survey until it Rock & Paving Co., 22 BOLI 177, 185 (2001). See was too late to be considered. However, the forum also In the Matter of Spot Security, Inc., 22 BOLI 170,

VII - 22 PWR -- 15.0 CIVIL PENALTIES

176 (2001). with the law, and its effect was to cheat the workers out of the minimum wage required by law. ----- In the Matter ‰ The agency argued that the accuracy of the of Larson Construction Co., Inc., 17 BOLI 54, 80 commissioner’s prevailing wage determinations depends (1998). on receiving completed surveys from all contractors and a contractor’s failure to comply could result in skewing 15.10.5 --- Knowledge of Violation the established rates. However, respondent performed ‰ The forum concluded that respondent knew or only residential work and the agency did not offer should have known of its failure to post the prevailing evidence to show how respondent, who was not required wage rate when the evidence was undisputed that to provide any data for the survey, could adversely affect respondent’s corporate and local offices knew that the accuracy of the commissioner’s prevailing wage rate Oregon law required respondent to post the prevailing determinations by not signing and returning the wage wage rates on all public works projects to which it survey form. ----- In the Matter of M. Carmona dispatched workers, both offices knew that respondent Painting, Inc., 22 BOLI 52, 60-61 (2001). was employing workers on the a public works project, ‰ The forum has found wage survey violations not as and respondent’s local office did not post and serious as violations involving the failure to pay or post respondent’s corporate office did not provide the means the prevailing wage rate. ----- In the Matter of Landco for respondent’s local office to timely post. ----- In the Enterprises, Inc., 22 BOLI 62, 68 (2001). See also In Matter of Labor Ready Northwest, Inc., 28 BOLI 91, the Matter of M. Carmona Painting, Inc., 22 BOLI 52, 61 122 (2007). (2001). Appeal pending. ‰ The forum considers failure to post prevailing wage ‰ Weeks before respondent dispatched workers to a rates as a serious violation. ----- In the Matter of Larson prevailing wage rate job, the Oregon Court of Appeals Construction Co., Inc., 22 BOLI 118, 156 (2001). held that “ORS 279.350(4) requires every contractor and ‰ Respondent’s violation of ORS 279.355(2) was subcontractor engaged in a public project to personally aggravated by its seriousness. ----- In the Matter of initially post the prevailing wage and to maintain that William George Allmendinger, 21 BOLI 151, 171-72 posting throughout the course of its employees' work on (2000). the project.” Respondent was a party in that case and appealed that very issue. Despite this unequivocal ‰ An aggravating factor in respondent’s violation of statement of Oregon’s prevailing wage rate posting ORS 279.375 was the seriousness and magnitude requirement, respondent did not train its branch because respondent failed to pay a fee dedicated to manager on the posting requirement and there was no paying the costs of determining the prevailing wage rate, evidence that respondent took any action to develop a enforcing the prevailing wage rate laws, and educating consistent policy with regard to Oregon’s posting the public on prevailing wage rate laws, all significant requirements until several months after the court’s concerns. ----- In the Matter of Steven D. Harris, 21 decision. Once developed, the actual policy was not BOLI 140, 150 (2000). posted on respondent’s intranet and available to respondent’s Oregon employees until 10 months after ‰ Respondent’s 32 violations of ORS 279.354 were the court’s decision. Under these circumstances, the aggravated by their seriousness and considerable forum concluded that respondent’s failure to post was magnitude. ----- In the Matter of Johnson Builders, aggravated by its knowledge of the posting requirement Inc., 21 BOLI 103, 126 (2000). and the fact that its branch manager should have and ‰ Respondent’s failure to pay its four workers any would have known of the requirement, had respondent money whatsoever for their work was of great provided him with any training on that requirement. ----- seriousness and magnitude. ----- In the Matter of In the Matter of Labor Ready Northwest, Inc., 28 Johnson Builders, Inc., 21 BOLI 103, 124 (2000). BOLI 47, 81-82 (2007). ‰ An aggravating factor in respondent’s violation of Appeal pending. ORS 279.355(2) was that the violation was serious and ‰ Respondent’s knowing failure to return the of considerable magnitude, in that the project contractor commissioner’s 2004 prevailing wage rate survey and the agency had to conduct an extensive demonstrated respondent’s knowledge of its 2005 investigation to determine whether or not respondent violation and showed that respondent did not take its had paid the prevailing rate of wage; and the contractor legal obligation seriously, aggravating respondent’s ultimately had to pay respondent’s workers. ----- In the violation. ----- In the Matter of Wildfang, Inc., 28 BOLI Matter of Johnson Builders, Inc., 21 BOLI 103, 129 1, 8 (2006). (2000). ‰ Respondent knew or should have known of his ‰ Filing false certified statements is a serious violation when he received the wage survey booklet violation. ----- In the Matter of Southern Oregon mailed to him before the survey was due, and a pre- Flagging, Inc., 18 BOLI 138, 166 (1999). survey notice and two reminders were mailed to the ‰ Respondent’s violation of ORS 279.350(7), same address. ----- In the Matter of Troy Wingate, 27 consisting of respondent’s requirement that workers BOLI 282, 292 (2006) accept less than the prevailing wage rate as part of a ‰ Based on OAR 839-016-0500, the forum imputed bogus apprenticeship program, was particularly serious knowledge to respondent that a public works project on because it was a deliberate effort to avoid complying which respondent employed a worker was a prevailing

VII - 23 PWR -- 15.0 CIVIL PENALTIES wage rate job and concluded that respondent knowingly ‰ Respondent, through its president, knowingly signed failed to file a certified payroll report. ----- In the Matter a false certification on all 20 certified payroll reports of Labor Ready Northwest, Inc., 27 BOLI 83, 142 certifying that respondent’s employees had been paid (2005). their full weekly wages. ----- In the Matter of Harkcom Pacific, 27 BOLI 62, 79 (2005). Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 ‰ Respondent, through its president, knew that fringe (2006), rev den 342 Or 473, 155 P3d 51 (2007). benefits were part of the prevailing rate of wage in ‰ Respondent was on notice and had knowledge that Oregon and entered into a contract with Clatskanie its practices regarding certified payroll reports required School District that contained a statement of the by former ORS 279.354 were defective when all of applicable prevailing wage rates for the Clatskanie respondent’s reports were prepared by staff employed Project. Respondent, again through its president who by respondent’s corporate parent; that corporate parent signed the certified payroll reports, knew that fringe was previously notified by the agency that its certified benefits and overtime were not paid to its workers on the payroll reports must contain the following language: “I Clatskanie Project. ----- In the Matter of Harkcom have read this certified statement, know the contents Pacific, 27 BOLI 62, 77 (2005). thereof and it is true to my knowledge”; and there was no ‰ The forum concluded that respondent knew or evidence that respondent had modified its forms to meet should have known of its failure to respond to the that requirement. ----- In the Matter of Labor Ready commissioner’s wage surveys when evidence showed Northwest, Inc., 27 BOLI 83, 141 (2005). that respondent received the 2001, 2002, and 2004 Affirmed, Labor Ready Northwest, Inc. v. Bureau of wage surveys, as well as information accompanying Labor and Industries, 208 Or App 195, 145 P3d 232 those surveys stating that respondent was required by (2006), rev den 342 Or 473, 155 P3d 51 (2007). law to complete and return the surveys. The forum held that respondent’s argument that the wage surveys were ‰ When respondent’s work ticket indicated that its indistinguishable from “junk mail” and his implied failure worker was referred to work at a “high school,” this to read the mail from BOLI is not a defense to the should have alerted respondent’s branch manager to agency’s allegation that respondent knowingly failed to inquire if its worker would be working on a public works return the 2001 and 2002 wage surveys and knowingly project, and the forum imputed knowledge to respondent failed to return the 2004 survey in time to have it pursuant to OAR 839-016-0500. ----- In the Matter of considered. The forum also held that respondent’s belief Labor Ready Northwest, Inc., 27 BOLI 83, 138 (2005). that ORS 279.359(2) did not apply to him was not a Affirmed, Labor Ready Northwest, Inc. v. Bureau of defense to the agency’s charge that respondent knew or Labor and Industries, 208 Or App 195, 145 P3d 232 should have known of the violation. ----- In the Matter of (2006), rev den 342 Or 473, 155 P3d 51 (2007). Storm King Construction, 27 BOLI 46, 54 (2005). ‰ Respondent’s failure to pay workers the prevailing ‰ Respondent knew or should have known of the wage rate was aggravated by respondent’s failure to pay agency’s request for records because the agency’s full back pay to four workers until several months after request was directed to respondent’s president and respondent acquired actual knowledge that the subject secretary, who subsequently asked for and received project was a prevailing wage rate job. ----- In the Matter several extensions of time to provide them to the of Labor Ready Northwest, Inc., 27 BOLI 83, 136 agency. ----- In the Matter of Design N Mind, Inc., 27 (2005). BOLI 32, 45 (2005). Affirmed, Labor Ready Northwest, Inc. v. Bureau of ‰ When respondent’s president knew of and regularly Labor and Industries, 208 Or App 195, 145 P3d 232 performed work on the subcontract and supervised the (2006), rev den 342 Or 473, 155 P3d 51 (2007). workers at the job site, so that he knew or should have ‰ When respondent failed to inquire if a project was a known the type of work respondent’s workers performed public works until three weeks after the job had started, each day, and he prepared and signed all of the payroll the forum applied OAR 839-016-0500 and concluded records and must have known the records contained that respondent should have known of its violation. ----- information contrary to his own knowledge of the job site, In the Matter of Labor Ready Northwest, Inc., 27 this constituted reliable evidence that respondent knew BOLI 83, 136 (2005). or should have known of its failure to pay the correct prevailing wage rate and that respondent knew or should Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 have known of its failure to pay the correct prevailing (2006), rev den 342 Or 473, 155 P3d 51 (2007). wage rate and, despite that knowledge, misclassified and underpaid each worker. ----- In the Matter of ‰ Respondent’s failure to post the applicable Design N Mind, Inc., 27 BOLI 32, 44-45 (2005). prevailing wage rates was aggravated by respondent’s failure to take adequate steps to post the rates once it ‰ Evidence that respondent received at least two learned the project was a public works. ----- In the reminders beforehand of the commissioner’s wage Matter of Labor Ready Northwest, Inc., 27 BOLI 83, survey and disregarded them established that 133 (2005). respondent knew of the violation before the agency issued its notice of intent. ----- In the Matter of Emmert Affirmed, Labor Ready Northwest, Inc. v. Bureau of Industrial Corporation, 26 BOLI 284, 289 (2005). Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). ‰ Respondent’s violation of ORS 279.359 was

VII - 24 PWR -- 15.0 CIVIL PENALTIES aggravated because it received reminder notices from Construction Co., Inc., 22 BOLI 118, 156 (2001). the agency and therefore knew or should have known of its violation. ----- In the Matter of Cedar Landscape, ‰ Respondent’s failure to submit timely certified Inc., 23 BOLI 287, 293-94 (2002). payroll statements was aggravated by the fact that it knew of the violation. ----- In the Matter of Larson ‰ Respondent’s violations of the certified payroll Construction Co., Inc., 22 BOLI 118, 158 (2001). requirements were aggravated because respondent knew or should have known of the violations based on ‰ Respondent’s violation of ORS 279.355(2) was an agency letter dated January 26, 2000. ----- In the aggravated by the fact that he knew or should have Matter of Labor Ready Northwest, Inc., 22 BOLI 245, known of the violation. ----- In the Matter of William 288 (2001). George Allmendinger, 21 BOLI 151, 171-72 (2000). Reversed in part, Labor Ready Northwest, Inc. v. ‰ An aggravating factor in respondent’s violation of Bureau of Labor and Industries, 188 Or App 346, 71 ORS 279.375 was respondent’s knowledge of his legal P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 obligation to pay the fee based on his prior fee payment (2004). to BOLI on three previous public works contracts, the contract language, and from BOLI’s four warning letters. ‰ Respondent’s failure to post the applicable ----- In the Matter of Steven D. Harris, 21 BOLI 140, prevailing wage rates on its job site was aggravated by 150 (2000). its knowledge of its violation and the fact that, at the time of hearing, respondent still did not post prevailing wage ‰ Respondent’s 32 violations of ORS 279.354, the rates on public works projects subject to Oregon’s violations were aggravated by respondent’s president’s prevailing wage rate laws when respondent employs knowledge of the violations. ----- In the Matter of workers. ----- In the Matter of Labor Ready Northwest, Johnson Builders, Inc., 21 BOLI 103, 126 (2000). Inc., 22 BOLI 245, 284 (2001). ‰ Respondent’s violation of ORS 279.350(1) was Reversed in part, Labor Ready Northwest, Inc. v. aggravated by the fact that respondent’s president, who Bureau of Labor and Industries, 188 Or App 346, 71 was in charge of payroll, knew or should have known of P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 respondent’s failure to pay the wages and intentionally (2004). failed to pay them. ----- In the Matter of Johnson ‰ When the agency’s notice alleged that respondent’s Builders, Inc., 21 BOLI 103, 123 (2000). failure to return the commissioner’s 1998 wage survey ‰ An aggravating factor in respondent’s violation of was an aggravating circumstance, the forum considered ORS 279.355(2) was that respondent knew of the this failure as an aggravating circumstance because it agency’s request for records, yet ignored it. ----- In the showed that respondent knew or should have known of Matter of Johnson Builders, Inc., 21 BOLI 103, 129 the violation. ----- In the Matter of Harney Rock & (2000). Paving Co., 22 BOLI 177, 185 (2001). See also In the Matter of WB Painting and Decorating, Inc., 22 BOLI 18, ‰ An aggravating factor in respondent’s failure to 25 (2001), amended 22 BOLI 27(2001). respond to BOLI’s 1998 wage survey was respondent’s awareness of the wage survey and deliberate choice not ‰ Respondent’s failure to return the commissioner’s to complete and return it. ----- In the Matter of 2000 wage survey was aggravated by the fact that it Schneider Equipment, Inc., 21 BOLI 60, 73 (2000). knew or should have known of the violation because it received reminder notices from the agency. ----- In the ‰ Respondent’s failure to return BOLI’s 1999 wage Matter of Harney Rock & Paving Co., 22 BOLI 177, survey was aggravated by the fact that respondent failed 185 (2001). to comply after receiving reminder notices. ----- In the Matter of Martha Morrison, 20 BOLI 275, 286 (2000). ‰ Respondent’s admitted failure to complete and return two previous wage surveys, though outside the ‰ When respondents knew or should have known that scope of the charging document, was considered as an their payroll methods were illegal, the forum considered aggravating circumstance because it demonstrated that an aggravating circumstance. ----- In the Matter of knowledge of the violation charged by the agency – Southern Oregon Flagging, Inc., 18 BOLI 138, 166 respondent’s failure to complete and return the 2000 (1999). wage survey. ----- In the Matter of The Landscape Company of Portland, LLC, 22 BOLI 69, 76 (2001). ‰ Respondent’s violation of ORS 279.350(7), consisting of respondent’s requirement that workers ‰ Respondent’s failure to post the applicable accept less than the prevailing wage rate as part of a prevailing wage rates was aggravated by the forum’s bogus apprenticeship program, was aggravated by the conclusion that respondent and its managerial fact that respondent knew or should have known that his employees should have known of the violation, in that action violated the law, given his years in the the circumstances of the project were such that a construction trades, and the plain language of certified reasonable person would have made a more diligent statements that apprentices must be in registered inquiry, including taking the initiative to ask the programs. ----- In the Matter of Larson Construction contracting city’s representative on the project if the Co., Inc., 17 BOLI 54, 80 (1998). proposed contracts were part of a larger project, then calling BOLI if there was any question that those ‰ Respondents' failure to post prevailing wage rates contracts were subject to the prevailing wage rate before was aggravated by the fact that respondent knew or entering into the contracts. ----- In the Matter of Larson should have known of its duty to post the rates. ----- In the Matter of Larson Construction Co., Inc., 17 BOLI

VII - 25 PWR -- 15.0 CIVIL PENALTIES

54, 77-78 (1998). ‰ Aggravating factors in respondent’s violation of ORS 279.355(2) consisted of the following: (1) respondent 15.10.6 --- Other also committed seven violations of ORS 279.350 and 32 ‰ When the agency had to expend significant violations of ORS 279.354; (2) respondent was required resources trying to obtain respondent’s compliance with by law to maintain the records of the type requested by the law – the Employment Department sent two the agency; there is no evidence that respondent could reminder notices to respondent after mailing its survey not have easily provided the records; and respondent booklet; the agency sent a follow-up letter indicating its had ample time in which to comply with the agency’s intent to issue a notice of intent and assess civil request for records; (3) respondent knew of the request, penalties if respondent failed to comply; and respondent yet ignored it; and (4) the violation was serious and of still failed to submit the 2005 wage survey, necessitating considerable magnitude, in that the project contractor an enforcement action, Respondent’s violation was and the agency had to conduct an extensive aggravated by his failure to take appropriate action, after investigation to determine whether or not respondent having its violation pointed out, to remedy the violation or had paid the prevailing rate of wage; and the contractor prevent its recurrence. ----- In the Matter of Troy ultimately had to pay respondent’s workers. ----- In the Wingate, 27 BOLI 282, 293 (2006). Matter of Johnson Builders, Inc., 21 BOLI 103, 129 (2000). ‰ Respondent’s violation of ORS 279.355 was aggravated by respondent’s lack of cooperation. It took ‰ Aggravating factors in respondent’s failure to respondent five months to comply with the agency’s respond to BOLI’s 1998 wage survey were respondent’s initial request for payroll and time records, whereas it failure to produce reliable evidence to support its should have been relatively simple to comply with the contention that timely completion of the wage survey agency’s straightforward request to provide those was extremely difficult, imposing a burden so onerous records within two weeks. Instead, the agency had to that respondent was essentially required to suspend its make multiple requests. There was no evidence that business operations during the peak construction respondent even attempted to provide any records other season; respondent’s employment of workers on non- than payroll reports until more than two months after the residential construction projects in 1998, which could agency’s initial request. ----- In the Matter of Labor adversely affect the accuracy of the agency’s prevailing Ready Northwest, Inc., 27 BOLI 83, 146 (2005). wage determination, the whole purpose of the wage survey; and respondent’s awareness of the wage survey Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 and deliberate choice not to complete and return it. The (2006), rev den 342 Or 473, 155 P3d 51 (2007). forum found that a $500 penalty was appropriate under the circumstances. ----- In the Matter of Schneider ‰ When the Employment Department, which was Equipment, Inc., 21 BOLI 60, 73 (2000). under contract with BOLI to conduct wage surveys, had to send reminder notes and a second wage survey ‰ Respondent’s violation of ORS 279.359 by failing to packet to respondent in 2001, 2002, and 2004, and BOLI complete and return BOLI’s wage survey form in 1999 itself sent a letter to respondent in an attempt to gain was aggravated by the fact that respondent employed respondent’s compliance before issuing its notice, construction workers in 1999 whose wages would have respondent’s violations were aggravated. ----- In the been included in the commissioner’s calculation of Matter of Storm King Construction, 27 BOLI 46, 54- prevailing wage rates in the Medford area and would 55 (2005). have potentially affected those rates. ----- In the Matter of Martha Morrison, 20 BOLI 275, 286-87 (2000). ‰ The forum did not consider respondent’s submission of a completed wage survey with a false date as an ‰ When respondent committed two violations of OAR aggravating factor because it was not alleged as an 839-016-0025(2), the commissioner found the violations aggravating factor in the agency’s notice of intent. ----- In were aggravated by respondent’s “less than impressive” the Matter of WB Painting and Decorating, Inc., 22 response to the agency’s prior investigations of it; BOLI 18, 26 (2001), amended 22 BOLI 27(2001). respondent’s persistent difficulties in ensuring that workers on prevailing wage rate jobs were paid overtime ‰ Aggravating circumstances regarding respondent’s for work they did on weekends; the fact that three “first violations” of ORS 279.350(1) were as respondent’s failure to record daily hours worked follows: (1) respondent not only paid its three resulted in one worker not receiving all wages due for employees less than the prevailing wage rate, it paid several months; and the ease with which respondent them nothing at all for periods of time; (2) In those time could have complied with the law. ----- In the Matter of periods, respondent failed to pay its three employees a Labor Ready, Inc., 20 BOLI 73, 99-100 (2000). total of $5,785.39 in prevailing wages; (3) respondent’s president, who was in charge of payroll, knew or should ‰ When respondent committed one violation of ORS have known of respondent’s failure to pay the wages 279.354(1), the commissioner found the violation was and intentionally failed to pay them; and (4) in the same aggravated by respondent’s “less than impressive” time period respondent failed to pay its employees, it response to the agency’s prior investigations of it; also committed 32 violations of ORS 279.354 and OAR respondent’s persistent difficulties in ensuring that 839-016-0010 by filing inaccurate or uncertified payroll workers on prevailing wage rate jobs were paid overtime reports or no reports at all, as well as one violation of for work they did on weekends; the fact that ORS 279.355(2). ----- In the Matter of Johnson respondent’s failure to record daily hours worked Builders, Inc., 21 BOLI 103, 123 (2000). resulted in one worker not receiving all wages due for several months; the ease with which respondent could

VII - 26 PWR -- 15.0 CIVIL PENALTIES have complied with the law; and the fact that respondent Appeal pending. deliberately included possibly inaccurate information on ‰ The forum concluded that respondent presented no the certified payroll reports. ----- In the Matter of Labor mitigating circumstances when respondent’s claim that Ready, Inc., 20 BOLI 73, 100-01 (2000). she submitted the commissioner’s wage survey before it ‰ When respondents failed to post the prevailing was due on September 19, 2005, was contradicted by wage rate, aggravating factors included their failure to other credible evidence, including evidence that the post prevailing wage rates for many months and failure Employment Department received respondent’s to show the rates to workers who asked about them. ----- completed survey well over six months past the date In the Matter of Larson Construction Co., Inc., 17 designated by the commissioner. ----- In the Matter of BOLI 54, 77-78 (1998). Wildfang, Inc., 28 BOLI, 7 (2006). 15.11 --- Mitigating Circumstances ‰ Respondent’s violation was partially mitigated because respondent performed only residential work ‰ Although respondent’s development of intranet during the wage survey period and his failure to timely training for its Oregon employees on Oregon prevailing submit the wage survey therefore had no statistical wage rate law and its posting requirements that includes impact on the commissioner’s ability to carry out his corporate procedures and policies for posting was a statutory duty of accurately determining the prevailing mitigating circumstance to respondent’s failure to post, it wage rates. ----- In the Matter of Troy Wingate, 27 was rendered moot by the fact that respondent’s BOLI 282, 293 (2006). corporate office did not even mail a posting-ready rate sheet to its local office until the last day that respondent ‰ Based on the fact that he performed only residential employed workers on the project, 17 days after work, respondent’s believed that he was not required to respondent’s local office faxed it to the corporate office. - complete the survey based on the following statement ---- In the Matter of Labor Ready Northwest, Inc., 28 conspicuously printed on the front cover of the 2005 BOLI 91, 122 (2007). wage survey booklet: “FOR PUBLIC AND PRIVATE PROJECTS (DOES NOT INCLUDE RESIDENTIAL Appeal pending. PROJECTS).” Respondent’s belief was not considered ‰ Respondent’s issuance of partial back pay checks mitigation because of the language in the to its three workers two weeks after their last day of work commissioner’s pre-survey postcard stating that the on the project and immediate issuance of back pay survey was a “mandatory survey of all employers with checks to the same workers upon learning from BOLI construction-related employment.” ----- In the Matter of that the three workers had been misclassified and Troy Wingate, 27 BOLI 282, 293 (2006). underpaid for their work were mitigating circumstances regarding respondent’s failure to pay the prevailing wage ‰ Respondent’s violation of ORS 279.355 was rate. ----- In the Matter of Labor Ready Northwest, mitigated by two facts. First, when respondent Inc., 28 BOLI 91, 119 (2007). eventually provided the requested records, the agency was able to determine that all workers had been paid the Appeal pending. correct prevailing wage rate. Second, respondent has eliminated deductions for equipment and transportation ‰ Respondent’s subsequent development of intranet on prevailing wage rate jobs, making it marginally easier training for its Oregon employees on Oregon prevailing for an auditor to determine if respondent has correctly wage rate law and its posting requirements was a paid its workers. ----- In the Matter of Labor Ready mitigating circumstance regarding respondent’s failure to Northwest, Inc., 27 BOLI 83, 146 (2005). post, but it was offset by the fact that respondent had not trained its branch manager on Oregon’s posting Affirmed, Labor Ready Northwest, Inc. v. Bureau of requirement before the job at issue ended, despite an Labor and Industries, 208 Or App 195, 145 P3d 232 earlier Court of Appeals decision, to which respondent (2006), rev den 342 Or 473, 155 P3d 51 (2007). was a party, that clearly stated respondent was required ‰ Respondent’s violation of ORS 279.354 was to post. ----- In the Matter of Labor Ready Northwest, mitigated by the fact that no workers were underpaid as Inc., 28 BOLI 47, 82 (2007). a result of respondent’s defective payroll reports, Appeal pending. respondent’s reformat of its certified payroll reports to reflect fringe benefits and elimination of deductions for ‰ Respondent’s failure to pay the prevailing wage rate equipment and transportation on prevailing wage rate was mitigated by three circumstances. First, credible jobs, and respondent’s new requirement that prevailing evidence shows that respondent’s manager made a wage rate work must be reported on a daily, instead of a diligent effort to determine if the project was a prevailing weekly basis, in order to ensure that its reporting of wage rate job on the first day that respondent dispatched hours and days worked by workers is accurate. ----- In workers to the job site. Second, respondent issued back the Matter of Labor Ready Northwest, Inc., 27 BOLI pay checks to all underpaid workers within a week after 83, 143-44 (2005). BOLI informed respondent that the project was a prevailing wage rate job. Third, respondent promptly Affirmed, Labor Ready Northwest, Inc. v. Bureau of sent BOLI a check to cover back pay to four workers Labor and Industries, 208 Or App 195, 145 P3d 232 when BOLI’s investigator informed respondent that the (2006), rev den 342 Or 473, 155 P3d 51 (2007). earlier paychecks issued to those four individuals had ‰ Respondent’s single violation of ORS 279.354 was not cleared. ----- In the Matter of Labor Ready mitigated by the creation of an audit team in Northwest, Inc., 28 BOLI 47, 79 (2007). respondent’s prevailing wage rate department that

VII - 27 PWR -- 15.0 CIVIL PENALTIES conducts daily reviews of two reports in an attempt to that she or anyone else employed by respondent took minimize the possibility that Respondent has any steps to ascertain that the rates were in fact posted unknowingly sent workers to prevailing wage rate jobs. -- and kept posted. ----- In the Matter of Labor Ready --- In the Matter of Labor Ready Northwest, Inc., 27 Northwest, Inc., 27 BOLI 83, 133-34 (2005). BOLI 83, 142 (2005). Affirmed, Labor Ready Northwest, Inc. v. Bureau of Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). (2006), rev den 342 Or 473, 155 P3d 51 (2007). ‰ When respondent credibly testified that his serious ‰ Respondent’s six violations of ORS 279.354 were illness in October 2004 affected his ability to perform mitigated by respondent’s eventual submission of payroll administrative tasks, but the deadline for submission of reports that showed the correct hours and wages earned the 2004 wage survey was September 17, 2004, by by its workers, its reformat of reports to include a which time respondent already had five weeks to separate box for fringe benefits, and its new requirement complete and return the survey, and respondent did not that prevailing wage rate work must be reported on a testify that he would have submitted the 2004 wage daily, instead of a weekly basis, in order to ensure that survey in October 2004, had he not become ill, the forum its reporting of hours and days worked by workers is did not consider his illness to be a mitigating accurate. ----- In the Matter of Labor Ready circumstance. Likewise, the forum did not accept Northwest, Inc., 27 BOLI 83, 141 (2005). respondent’s belief that the wage survey was “junk mail” or his mistaken belief that respondent was not required Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 to complete and return the wage surveys as mitigating (2006), rev den 342 Or 473, 155 P3d 51 (2007). circumstances. ----- In the Matter of Storm King Construction, 27 BOLI 46, 55 (2005). ‰ The forum found that respondent’s failure to pay the prevailing wage rate was mitigated to a limited degree by ‰ A respondent is responsible for providing the two facts. First, respondent sent the agency a check for commissioner with evidence any mitigating the full amount of back pay owed to its worker shortly circumstances. ----- In the Matter of Design N Mind, after the agency notified respondent of the Inc., 27 BOLI 32, 44 (2005). underpayment. Second, respondent’s prevailing wage ‰ When determining the civil penalty amount, the unit manager has created an audit team in her commissioner must consider the mitigating and department that conducts daily reviews of two reports in aggravating circumstances set forth in OAR 839-016- an attempt to minimize the possibility that respondent 0520(1). ----- In the Matter of Design N Mind, Inc., 27 has unknowingly sent workers to prevailing wage rate BOLI 32, 44 (2005). jobs. ----- In the Matter of Labor Ready Northwest, Inc., 27 BOLI 83, 139 (2005). ‰ Respondent’s assertions that its payroll manager was inexperienced in prevailing wage rate matters and Affirmed, Labor Ready Northwest, Inc. v. Bureau of “accidentally submitted the wrong survey” did not Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). mitigate respondent’s violation. Employers cannot avoid their legal responsibilities by the selective ignorance or ‰ The forum found that respondent’s failure to pay the inattention of themselves or their employees. ----- In the prevailing wage rate was mitigated by two facts. First, Matter of Emmert Industrial Corporation, 26 BOLI respondent eventually paid full back pay to five workers 284, 289 (2005). and all but $34.50 in back pay to a sixth. Second, respondent’s prevailing wage unit manager has created ‰ Respondent’s violation of ORS 279.359 was an audit team in her department that conducts daily partially mitigated by two circumstances. First, reviews of two reports in an attempt to minimize the respondent had fired the manager who was responsible possibility that respondent has unknowingly sent workers for respondent’s failure to return the 2001 wage survey. to prevailing wage rate jobs. ----- In the Matter of Labor Second, respondent stated it had enacted new Ready Northwest, Inc., 27 BOLI 83, 137 (2005). procedures to avoid noncompliance in the future. Although respondent did not specify what those Affirmed, Labor Ready Northwest, Inc. v. Bureau of procedures are, the forum considered respondent’s Labor and Industries, 208 Or App 195, 145 P3d 232 representation as mitigation because the agency did not (2006), rev den 342 Or 473, 155 P3d 51 (2007). contest respondent’s assertion. ----- In the Matter of ‰ Respondent’s subsequent payment of back wages Cedar Landscape, Inc., 23 BOLI 287, 293 (2002). may be considered as a mitigating factor, but is not a ‰ Respondent’s failure to pay eight workers the defense to respondent’s failure to pay the prevailing prevailing wage rate was mitigated by three factors -- wage rate. ----- In the Matter of Labor Ready respondent’s subsequent cooperation with the agency in Northwest, Inc., 27 BOLI 83, 135 (2005). paying the $3,442.91 in back wages that the agency Affirmed, Labor Ready Northwest, Inc. v. Bureau of asserted was owed to respondent’s eight workers; Labor and Industries, 208 Or App 195, 145 P3d 232 respondent’s revised policy requiring that its Oregon (2006), rev den 342 Or 473, 155 P3d 51 (2007). district manager must now visit the job site of all public works projects in Oregon before respondent can send ‰ Respondent’s failure to post the applicable prevailing wage rates was not mitigated by its branch workers to it; and the lack of any prior violations by manager’s visit to the job site with a copy of the respondent of ORS 279.350(1). ----- In the Matter of prevailing wage rates because there was no evidence Labor Ready Northwest, Inc., 22 BOLI 245, 286

VII - 28 PWR -- 15.0 CIVIL PENALTIES

(2001). Matter of Larson Construction Co., Inc., 22 BOLI 118, 156 (2001). Reversed in part, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 ‰ When respondent submitted untimely certified P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 payroll statements, the contracting agency’s deliberate (2004). failure to inform respondent that the subject contracts ‰ When respondent failed to post the applicable were subject to the prevailing wage rate was not a prevailing wage rate, a mitigating factor was that mitigating factor because respondent had adequate time respondent’s parent company advises branch managers to comply after it acquired actual knowledge of the to do a site visit and look for postings on the job site. requirement. ----- In the Matter of Larson Construction Respondent’s adoption of a contract addenda that Co., Inc., 22 BOLI 118, 158 (2001). requires clients on prevailing wage rate jobs to provide ‰ The single factor mitigating the seriousness of respondent, a temporary employment service, with “a respondent’s violation was the lack of evidence that copy of the proper wage classification schedule,” warrant respondent had committed violations of the prevailing that it has been posted appropriately at the jobsite, and wage rate laws on previous occasions. ----- In the to “reimburse [respondent] for underpayment of wages, Matter of William George Allmendinger, 21 BOLI 151, penalties, and other losses due to [the client’s] failure to 172 (2000) do so,” was not a mitigating factor because it does nothing to insure that respondent will post the rates. ‰ Mitigating respondent’s single violation of ORS Likewise, the fact that prevailing wage rates were posted 279.375 was the fact that it was respondent’s first at the job were not considered a mitigating factor violation of Oregon’s prevailing wage rate laws. ----- In because respondent itself did not post the rates and the Matter of Steven D. Harris, 21 BOLI 139, 150 there was no evidence that respondent took any action (2000). on the job site to ensure that the rates were posted. ----- In the Matter of Labor Ready Northwest, Inc., 22 ‰ Mitigating respondent’s single violation of ORS BOLI 245, 283 (2001). 279.359(2) was the absence of evidence that respondent previously has violated the prevailing wage Reversed in part, Labor Ready Northwest, Inc. v. rate laws and the fact that, although the accuracy of the Bureau of Labor and Industries, 188 Or App 346, 71 agency's prevailing wage rate determinations depends P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 on receiving completed surveys from all contractors, (2004). respondent's violation was not as serious as violations ‰ The forum did not consider respondent’s eventual like failure to pay or post the prevailing rate of wage. ----- submission of the 2000 wage survey forms as a In the Matter of Green Planet Landscaping, Inc., 21 mitigating factor for the reason that the submission came BOLI 130, 139 (2000). too late to be included in the data used in the ‰ Respondent’s January, 2000, submission of BOLI’s commissioner’s prevailing wage rate determinations. ----- 1999 wage survey was not a mitigating factor because: In the Matter of Harney Rock & Paving Co., 22 BOLI (1) it was only submitted after respondent received the 177, 185 (2001). notice of intent and the agency’s threat to impose a ‰ In a wage survey case, the forum did not accept as larger penalty if it was not submitted; and (2) there was mitigation respondent’s claim that one principal was no evidence that it was submitted in time for the ignorant of the other’s failure to timely complete and commissioner to use its data in carrying out his statutory return the 2000 wage survey and that therefore the civil mandate of calculating the prevailing wage rate. ----- In penalty should be abated. The forum stated that it had the Matter of Schneider Equipment, Inc., 21 BOLI 60, never given any weight to the fact that a respondent’s 73 (2000). internal affairs were in disarray, noting that employers ‰ A mitigating factor in respondent’s failure to respond cannot avoid their legal responsibilities by selective to BOLI’s 1998 wage survey was evidence that ignorance or inattention. ----- In the Matter of The respondent had not previously violated the prevailing Landscape Company of Portland, LLC, 22 BOLI 69, wage rate laws. ----- In the Matter of Schneider 76 (2001). See also In the Matter of WB Painting and Equipment, Inc., 21 BOLI 60, 73 (2000). Decorating, Inc., 22 BOLI 18, 25 (2001), amended 22 BOLI 27(2001). ‰ The forum found that respondent's failure to include a contract provision stating that a fee had to be paid to ‰ OAR 839-016-0520(4) mandates that “the the commissioner was mitigated by the absence of commissioner shall consider all mitigating circumstances evidence that any person was paid less than the presented by the contractor * * * for the purpose of prevailing wage rate; the absence of evidence that the reducing the amount of the civil penalty to be assessed.” city previously had violated prevailing wage rate laws; ----- In the Matter of Larson Construction Co., Inc., 22 and the fact that the city did not intentionally sever the BOLI 118, 156 (2001). contract from the other water line improvement contracts ‰ Based on the unique circumstances of the case, the to avoid having to comply with the prevailing wage rate forum considered respondent’s lack of actual knowledge laws. ----- In the Matter of the City of Klamath Falls, that two subject contracts were subject to Oregon’s 19 BOLI 266, 286-87 (2000). prevailing wage rate laws as a mitigating factor in ‰ When respondents failed to post prevailing wage assessing a civil penalty based on respondent’s failure rates, mitigating factors included respondents' partial to post the applicable prevailing wage rate while cooperation with the agency's investigation and the fact performing work on the two subject contracts. ----- In the

VII - 29 PWR -- 16.0 PLACEMENT ON INELIGIBLE LIST that they sent their office manager to prevailing wage ‰ Respondent made a conscious choice not to rate training, indicating that respondents were less likely determine the prevailing wage and a corresponding to violate prevailing wage rate laws in the future. ----- In intentional failure to pay the prevailing rates of wage to the Matter of Larson Construction Co., Inc., 17 BOLI its three workers under the following circumstances: (1) 54, 78 (1998). Respondent’s local customer service representative Barrera believed that either Woods or Rand, two of 16.0 PLACEMENT ON INELIGIBLE LIST respondent’s three workers employed on the prevailing 16.1 --- In General wage rate project at issue, had been performing the ‰ ORS 279.361 provides that debarment shall be for duties of a power equipment operator on the project; (2) “a period not to exceed three years.” Although that Barrera believed that they had been misclassified and statute and the agency’s administrative rules interpreting the duties they were performing fit into the higher paying it do not explicitly authorize the forum to consider Laborer, Group 1 classification; (3) Barrera believed mitigating factors in determining the length of a Rand and Woods should be paid at the higher Laborer, debarment, the commissioner has held that mitigating Group 1 rate; (4) Barrera had received information from factors may be considered in determining whether the Rand and Woods that they had been operating power debarment of a contractor or subcontractor should last equipment, tying rebar, and building forms on the project less than the entire three-year period allowed by law. and that they were not performing general labor as Aggravating factors may also be considered. ----- In the respondent’s client had represented. This evidence Matter of Labor Ready Northwest, Inc., 27 BOLI 83, established that Barrera had actual knowledge that 152 (2005). respondent had misclassified and had been underpaying its workers and that she was told by respondent’s Appeal pending. workers that they were doing work that was not in the See also In the Matter of Design N Mind, Inc., 27 BOLI Laborer classification. Armed with this knowledge, 32, 43 (2005); In the Matter of Labor Ready Northwest, Barrera and respondent failed to take any subsequent Inc., 27 BOLI 83, 152 (2005), affirmed, Labor Ready action to “investigate” or otherwise verify the actual job Northwest, Inc. v. Bureau of Labor and Industries, 208 duties that respondent’s workers were performing and Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, continued to pay them as Laborers, Group 5, the lowest 155 P3d 51 (2007; In the Matter of Design N Mind, Inc., classification possible. There was no evidence in the 27 BOLI 32, 43 (2005). record as to a reason or reasons why Barrera and respondent failed to take any additional action and no ‰ Although the agency’s administrative rules evidence that Barrera and respondent failed to take any interpreting ORS 279.361 do not explicitly authorize the additional action because of a “mistake.” Rather, the forum to consider mitigating factors in determining the evidence was that respondent recklessly disregarded length of a debarment, the commissioner has held that facts and circumstances that would have led a mitigating factors may be considered in determining reasonable employer to make a further inquiry to whether the debarment of a contractor or subcontractor determine if workers it employed upon a public work should last less than the entire three-year period allowed were being paid correctly. ----- In the Matter of Labor by law. ----- In the Matter of Labor Ready Northwest, Ready Northwest, Inc., 28 BOLI 91, 124-26 (2007). Inc., 22 BOLI 245, 290-91 (2001). Appeal pending. Reversed in part, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 ‰ When there was no evidence that respondent had P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 contemporaneous knowledge of the correct prevailing (2004). wage rates for the four classifications of work that its workers performed and consciously chose not to pay See also In the Matter of Larson Construction Co., Inc., those rates, the forum considered the following factors in 22 BOLI 118, 165 (2001); In the Matter of Keith determining whether or not respondent consciously Testerman, 20 BOLI 112, 129 (2000); In the Matter of chose not to determine those prevailing wage rates: (1) Southern Oregon Flagging, 18 BOLI 138, 162, 169 The circumstances of the project that were known by (1999). respondent’s employees; (2) When respondent’s ‰ In a prevailing wage rate debarment, the phrase employees acquired that knowledge; (3) The action or “should have known” is synonymous with constructive failure to take action by respondent’s employees in knowledge or notice. ----- In the Matter of Larson response to that knowledge; and (4) The reason or Construction Co., Inc., 22 BOLI 118, 164 (2001). reasons, if any were given, for the action or failure to take action by respondent’s employees. Under this ‰ The commissioner does not consider aggravating analysis, the forum imputed the knowledge possessed and mitigating factors in making the initial determination by, action taken by, and failure to take action by whether to debar a subcontractor. ----- In the Matter of respondent’s employees to respondent. ----- In the Larson Construction Co., Inc., 17 BOLI 54, 76 (1998). Matter of Labor Ready Northwest, Inc., 28 BOLI 91, 124 (2007). ‰ Civil penalties, liquidated damages, and debarment are distinct forms of sanctions the agency may impose Appeal pending. for violations of prevailing wage rate laws. ----- In the Matter of Larson Construction Co., Inc., 17 BOLI 54, ‰ The Oregon Court of Appeals has determined that, 71 (1998). under former ORS 279.361, to “intentionally” fail to pay the prevailing rate of wage “the employer must either 16.2 --- Intentional Failure to Pay PWR consciously choose not to determine the prevailing wage

VII - 30 PWR -- 16.0 PLACEMENT ON INELIGIBLE LIST or know the prevailing wage but consciously choose not was five months late in issuing back pay checks to three to pay it.” The focus is on what the employer workers, but no evidence was presented at hearing to intentionally failed or refused to do, not what the explain this failure, the forum concluded that employer intentionally did. The inclusion of the word respondent’s failure to timely pay the prevailing wage “intentionally” in former ORS 279.361(1) implies a rate was not intentional because there was no evidence “culpable mental state,” indicating that debarment should that respondent made a conscious choice not to pay the not be “triggered by merely innocent, or even negligent, prevailing wage rate when it was initially due or to timely failure to pay.” This requires an assessment of an issue back pay checks once respondent became aware employer’s state of mind at the time that its employees that back pay was due. ----- In the Matter of Labor were not paid the prevailing wage in order to determine Ready Northwest, Inc., 27 BOLI 83, 148-49 (2005). whether the employer “intentionally” failed or refused to Affirmed, Labor Ready Northwest, Inc. v. Bureau of pay the prevailing wage. ----- In the Matter of Labor Labor and Industries, 208 Or App 195, 145 P3d 232 Ready Northwest, Inc., 28 BOLI 91, 123 (2007). (2006), rev den 342 Or 473, 155 P3d 51 (2007).

Appeal pending. ‰ To intentionally fail to pay the prevailing wage, the ‰ The commissioner placed respondent on the list of employer must either consciously choose not to ineligibles for one year based on respondent’s determine the prevailing wage or know the prevailing intentional failure to pay the prevailing wage rate on a wage but consciously choose not to pay it. The inclusion public works project. The commissioner also placed of the word intentionally in ORS 279.361(1) implies a respondent on the list of ineligibles for one year based culpable mental state, indicating that debarment should on respondent’s intentional failure to post the prevailing not be triggered by merely innocent, or even negligent, wage rate on the same project, with the one year failure to pay. Under this standard, the forum must debarments to run concurrently. ----- In the Matter of assess respondent’s state of mind at the time that its Labor Ready Northwest, Inc., 27 BOLI 83, 153 (2005). employees were not paid the prevailing wage in order to determine whether respondent “intentionally” failed or Affirmed, Labor Ready Northwest, Inc. v. Bureau of refused to pay the prevailing wage. ----- In the Matter of Labor and Industries, 208 Or App 195, 145 P3d 232 Labor Ready Northwest, Inc., 27 BOLI 83, 147 (2005). (2006), rev den 342 Or 473, 155 P3d 51 (2007). Affirmed, Labor Ready Northwest, Inc. v. Bureau of ‰ Respondent sent one worker to a public works Labor and Industries, 208 Or App 195, 145 P3d 232 project for one day but was unaware that the project was (2006), rev den 342 Or 473, 155 P3d 51 (2007). a public works project and did not pay that worker the prevailing wage until later notified of that fact by BOLI. ‰ Respondent’s president knew: (1) that respondent’s When BOLI notified respondent of that fact, respondent project was a prevailing wage rate job; (2) that the immediately sent a check for the total amount of unpaid applicable prevailing wage rates were posted in the prevailing wages due to its worker. Although commissioner’s prevailing wage rate booklet; (3) that respondent’s job order indicated that its worker would be respondent’s workers were entitled to fringe benefits, in working at a high school, there was no evidence that addition to an hourly wage, and had worked overtime. respondent knew the project was a public work until When respondent’s president did not pay fringe benefits notified by BOLI or that respondent made a conscious and directed his office manager not to show overtime on choice not to determine that the project was a public the certified payroll reports and there was no evidence work. The forum concluded that respondent’s failure to that he took any action to make sure respondent’s pay its worker the prevailing wage was not an intentional employees were paid all the wages they earned, the failure. ----- In the Matter of Labor Ready Northwest, forum concluded this reflected a conscious and Inc., 27 BOLI 83, 149-50 (2005). intentional choice not to pay the prevailing wage rate and held that respondent and its corporation president Affirmed, Labor Ready Northwest, Inc. v. Bureau of were both subject to debarment based on the president’s Labor and Industries, 208 Or App 195, 145 P3d 232 intentional choice not to pay the prevailing wage rate. ---- (2006), rev den 342 Or 473, 155 P3d 51 (2007). - In the Matter of Harkcom Pacific, 27 BOLI 62, 81-82 ‰ When respondent failed to pay a worker $34.50 in (2005). earned and due prevailing wages on a public works ‰ The forum must assess respondent’s state of mind project, respondent was aware that the project was a at the time that respondent’s employees were not paid public works project when the wages earned, and the prevailing wage in order to determine whether respondent admitted owing the $34.50 but claimed it had respondent “intentionally” failed or refused to pay the not paid the wages because the agency told respondent prevailing wage. ----- In the Matter of Harkcom Pacific, not to pay it, the forum did not believe respondent’s 27 BOLI 62, 81 (2005). explanation and concluded that respondent intentionally failed to pay the $34.50 to the worker and was subject to ‰ The inclusion of the word “intentionally” in ORS debarment. ----- In the Matter of Labor Ready 279.361(1) implies a culpable mental state, indicating Northwest, Inc., 27 BOLI 83, 149 (2005). that debarment should not be triggered by merely Affirmed, Labor Ready Northwest, Inc. v. Bureau of innocent, or even negligent, failure to pay. ----- In the Labor and Industries, 208 Or App 195, 145 P3d 232 Matter of Harkcom Pacific, 27 BOLI 62, 81 (2005). (2006), rev den 342 Or 473, 155 P3d 51 (2007). ‰ To “intentionally” fail to pay the prevailing rate of ‰ When respondent initially failed to pay its workers wage, the employer must either consciously choose not the prevailing wage rate on a public works project and to determine the prevailing wage or know the prevailing wage but consciously choose not to pay it. ----- In the

VII - 31 PWR -- 16.0 PLACEMENT ON INELIGIBLE LIST

Matter of Harkcom Pacific, 27 BOLI 62, 81 (2005). pay the prevailing wage rate was blatant and not the result of a misunderstanding between respondent and ‰ When the forum found that the prime contractor paid the agency; respondent did not cooperate with the respondent’s four workers wage amounts owed by agency’s investigation; and respondent made no attempt respondent to those workers and that respondent’s to rectify the underpayment of wages. ----- In the Matter corporation president was responsible for respondent’s of Keith Testerman, 20 BOLI 112, 129-30 (2000). failure to pay the correct amounts owed to those workers, the commissioner was required to place ‰ Under ORS 279.361(1), the commissioner must respondent and respondent’s corporation president on debar a respondent for a period not to exceed three the list of ineligibles. ----- In the Matter of Design N years when there is a finding that the respondent Mind, Inc., 27 BOLI 32, 43 (2005). intentionally failed to pay the prevailing rate of wage to workers employed on public works projects. ----- In the ‰ When respondent, a subcontractor, failed to Matter of Southern Oregon Flagging, Inc., 18 BOLI exercise reasonable diligence in determining the proper 138, 157, 159, 162, 169 (1999). classification and pay rate for its workers and thereby acted knowingly in classifying and paying its workers as ‰ Any corporate officer responsible for the intentional laborers instead of tenders to plasterers, a classification failure to pay or post the prevailing wage rate shall be that paid $5.00 per hour, including fringe benefits, more placed on the list of ineligibles for a period of up to three than the laborer classification, the forum was required by years. ----- In the Matter of Southern Oregon law to debar respondent for a period of time not to Flagging, Inc., 18 BOLI 138, 159-60, 162-63 (1999). exceed three years. ----- In the Matter of Labor Ready See also In the Matter of Larson Construction, 17 BOLI Northwest, Inc., 22 BOLI 245, 290 (2001). 54, 75 (1998). Reversed in part, Labor Ready Northwest, Inc. v. ‰ The commissioner placed respondent on the Bureau of Labor and Industries, 188 Or App 346, 71 ineligible list for a period of only one month when P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 respondent had intentionally failed to pay the prevailing (2004). wage rate to workers on public works projects by using a ‰ The commissioner placed respondent on the list of fringe benefits plan that was not “bona fide,” but: took ineligibles for three years because his failure to pay the immediate action to correct the plan once the agency prevailing wage rate was intentional and because the informed her of the problem; cooperated with the agency contractor paid the unpaid wages on respondent’s investigation; and paid the underlying fringe benefits as behalf. ----- In the Matter of William George back wages. The commissioner also found it notable that Allmendinger, 21 BOLI 151, 173 (2000). three agencies previously had approved the fringe benefits plan that the agency later found defective. ----- ‰ ORS 279.361(1) requires that a subcontractor be In the Matter of Southern Oregon Flagging, Inc., 18 placed on the commissioner’s list of ineligibles for a BOLI 138, 157 (1999). period not to exceed three years when the commissioner determines, through a contested case proceeding, that ‰ A subcontractor that has intentionally failed to pay the subcontractor has intentionally failed to pay the or post prevailing wage rates "shall be ineligible" for up prevailing rate of wage to workers employed upon public to three years to receive any public works contract or works, or when the subcontractor has failed to pay the subcontract. It is no defense that, after an agency prevailing rate of wage to its employees and the investigation, the subcontractor paid the back wages contractor has paid those amounts on the owed. ----- In the Matter of Larson Construction Co., subcontractor’s behalf. When the forum determined that Inc., 17 BOLI 54, 75 (1998). both situations occurred, respondent was placed on the ‰ The words “intentionally” and “willfully” are list of ineligibles for three years. ----- In the Matter of interchangeable. “Willful” means that the person knows Johnson Builders, Inc., 21 BOLI 103, 125 (2000). what he is doing, intends to do what he is doing, and is a ‰ When the commissioner determines that a free agent. ----- In the Matter of Haskell Tallent, 13 contractor or subcontractor has intentionally failed to pay BOLI 273, 280 (1994). See also In the Matter of Sealing the prevailing rate of wage, the commissioner must Technology, Inc., 11 BOLI 241, 250 (1993). place the contractor or subcontractor and any firm, ‰ The commissioner held that respondent intentionally corporation, partnership or association in which the failed to pay the prevailing wage rate to his workers on contractor or subcontractor has an interest on the list of two public works, in violation of ORS 279.350(1), when those ineligible to receive public works contracts or he bid on and received subcontracts on two public works subcontracts for a period not to exceed three years. The projects, knew that the prevailing wage rate was commissioner must also place on the list of ineligibles required to be paid on the projects, intentionally paid his any subcontractor that has failed to pay the prevailing 12 workers wage rates under the appropriate prevailing rate of wage, whether or not that failure was intentional, wage rates, and acted as a free agent. ----- In the if the contractor has paid the wages on the Matter of Haskell Tallent, 13 BOLI 273, 277-79 (1994). subcontractor’s behalf. ----- In the Matter of Keith Testerman, 20 BOLI 112, 129 (2000). ‰ When a corporation’s president and secretary knew they were paying employees less than the prevailing ‰ The commissioner placed respondent on the list of wage rate on four public projects, intended to pay the ineligibles for three years when no mitigating factors employees such wages, and were free agents, the were present; respondent had previously violated the commissioner held that the corporation intentionally prevailing wage rate laws; respondent’s current failure to failed to pay the prevailing wage rate in violation of ORS

VII - 32 PWR -- 16.0 PLACEMENT ON INELIGIBLE LIST

279.350(1). ----- In the Matter of Sealing Technology, pay the prevailing wage rate to workers employed on the Inc., 11 BOLI 241, 250-51 (1993). public project in violation of ORS 279.350 and was subject to the provisions of ORS 279.361, which ‰ When a contractor contended that the failure to pay authorized the commissioner to place the contractor on a the prevailing wage rate was not intentional because the list of persons ineligible to receive public contracts. ----- contractor did pay the wages owed once the “errors In the Matter of Loren Malcom, 6 BOLI 1, 7-8 (1986). were pointed out,” the forum held that the contractor’s violation was not negated by the contractor’s eventual ‰ In a prevailing wage rate case in which the only payment of the wage differential to the workers, nor was issue was whether the contractor’s failure to pay the the contractor released from liability by the fact that the prevailing wage rate was intentional under ORS contractor eventually began to pay the appropriate 279.361, the forum found that the terms “intentional” and prevailing wage rate. ----- In the Matter of Loren “willful” have been determined to be interchangeable. ---- Malcom, 6 BOLI 1, 11 (1986). - In the Matter of Loren Malcom, 6 BOLI 1, 9-10 (1986). ‰ When a contractor relied on the defense that the company was expanding and the contractor was “not ‰ A contractor testified he believed that the value of schooled in bookkeeping or record keeping and did not providing a housing opportunity in a rehabilitated check the project for payroll records or audit those recreational vehicle park would be enough, when added records in a manner consistent with the contract, the to the hourly wage, to equal the prevailing wage rate, forum held that a failure to check or audit records or including fringe benefits. The forum rejected that maintain a business about which the contractor was defense to the charge of intentional failure to pay the sufficiently knowledgeable did not establish prevailing wage rate because an employer has a duty to “inadvertence” or an “unintentional miscalculation.” ----- know the wages due to an employee and ignorance of In the Matter of Loren Malcom, 6 BOLI 1, 11 (1986). the law as to what qualifies as a fringe benefit is not an excuse and because there was no reasonable or ‰ The law imposes a duty upon an employer to know objective basis for the supposed belief that providing a the wages due its employees. A faulty payroll system is recreational vehicle park hook-up was worth the no defense to a failure to pay wages owed and certainly difference between the prevailing wage rate and what does not allow the employer’s actions to be the contractor was paying in actual wages. ----- In the characterized as unintentional. Respondent’s violation Matter of P. Miller & Sons Contractors, Inc., 5 BOLI was intentional, even if it was the result of this type of 149, 158 (1986). bookkeeping error, because respondent knew the law regarding the prevailing wage rate, but disregarded it ‰ When respondent bid on and received subcontracts and failed to take steps reasonably calculated to assure on two public works projects and intentionally paid his 12 compliance. ----- In the Matter of Loren Malcom, 6 workers less than the appropriate prevailing wage rates, BOLI 1, 10 (1986). the commissioner placed respondent’s name on the list of contractors ineligible for public contracts for a period ‰ The forum held that a contractor’s argument at of three years. ----- In the Matter of Haskell Tallent, 13 hearing that his failure to pay the prevailing wage rate BOLI 273, 277-79 (1994). was a bookkeeping error, and therefore not an intentional failure to pay, would not be successful even if ‰ When a corporation’s president and secretary true. The forum stated that the definition of “willful” intentionally paid employees less than the prevailing excludes “unintentional miscalculation,” but found that wage rate on four public projects, the commissioner held the contractor’s bookkeeping error was far from an that the corporation intentionally failed to pay the unintentional miscalculation when the contractor was prevailing wage rate, in violation of ORS 279.350(1), and aware of his obligation to pay the prevailing wage rate, placed respondent’s name on the list of contractors was performing other public works contracts at the time, ineligible for public contracts for a period of three years. - and incorrectly entered the rate of pay for six employees ---- In the Matter of Sealing Technology, Inc., 11 BOLI on six different time cards over a period of several 241, 250-51 (1993). months. ----- In the Matter of Loren Malcom, 6 BOLI 1, 10 (1986). ‰ An individual respondent who intentionally failed to pay prevailing wage rate, including overtime, to workers ‰ When the public agency’s invitation to bid contained on a public works project was placed on the list of a provision regarding the requirement that, pursuant to contractors ineligible for public contracts for a period of ORS 279.350, workers on the public works project be 18 months. ----- In the Matter of Intermountain paid no less than the prevailing wage rate; the Plastics, 7 BOLI 142, 160 (1988). contractor’s proposal contained a statement that the provisions of ORS 279.350 would be included in the ‰ When respondents -- a corporation, its president, contract; a copy of the PWR book was attached to the and its secretary -- were subcontractors on a public contract; and the contractor paid the workers the works, the forum found the corporation and its secretary prevailing wage rate during the first phase of the public were responsible for a failure to pay the prevailing wage project but failed to pay them the prevailing wage rate rate. However, the record did not establish that the during the second phase, which took place after a five corporate president, who was participate owner of the month break due to winter weather; the forum found that corporation, knew or should have known that the the contractor, having knowledge of the legal applicable prevailing wage rates were not being paid on requirements of ORS 279.310 to 279.356 and the the project. The forum placed the names of the contractor’s contractual obligations, intentionally failed to corporation and its secretary on the list of contractors

VII - 33 PWR -- 16.0 PLACEMENT ON INELIGIBLE LIST ineligible for public contracts for a period of three years. - (2007). ---- In the Matter of Jet Insulation, Inc., 7 BOLI 133, Appeal pending. 141-42 (1988). ‰ All subcontractors and contractors on prevailing ‰ When two partners who owned respondent’s wage rate jobs are accountable for knowing the company intentionally failed to pay the prevailing wage classifications of work performed by their employees. rate to workers employed on a public works project in The fact that respondent was a temporary employment violation of ORS 279.350, both partners were placed on agency and had no supervisory workers on the job site the list of contractors ineligible for public contracts for a does not relieve it of the same obligation. ----- In the period of three years. ----- In the Matter of Loren Matter of Labor Ready Northwest, Inc., 28 BOLI 91, Malcom, 6 BOLI 1, 7-8 (1986). 127-28 (2007). ‰ When a corporate respondent intentionally failed to Appeal pending. pay the prevailing wage rate to workers on two public works projects and the corporation’s two owners and ‰ If respondent, a temporary employment agency, had officers were responsible for the failure to pay the any doubt about the appropriate classifications for its prevailing wage rate, the corporation and both workers, it could have fulfilled its posting obligation by owner/officers were placed on the commissioner’s list of simply posting BOLI’s entire PWR booklet that contractors ineligible for public contracts for a period of respondent’s local customer service representative three years. ----- In the Matter of P. Miller & Sons testified was in respondent’s local office. ----- In the Contractors, Inc., 5 BOLI 149, 159 (1986). Matter of Labor Ready Northwest, Inc., 28 BOLI 91, 128 (2007). 16.3 --- Intentional Failure to Post PWR Appeal pending. ‰ When the forum concludes that respondent failed to post the applicable prevailing wage rates on a prevailing ‰ The forum concluded that respondent intentionally wage rate job, the commissioner is required to place failed to post the prevailing wage rates as required by respondent on the list of ineligibles if that failure was former ORS 279.350(4) when (1) respondent’s branch “intentional.” ----- In the Matter of Labor Ready manager who was responsible for posting and Northwest, Inc., 28 BOLI 91, 127 (2007). respondent’s corporate office knew that the project to which respondent dispatched its workers to was a Appeal pending. prevailing wage rate job and knew the correct See also In the Matter of Labor Ready Northwest, Inc., classification for respondent’s workers, and the correct 28 BOLI 47, 83 (2007), appeal pending. prevailing wage rate that applied to those workers; and (2) no evidence was presented to show that anyone else ‰ In determining whether respondent’s failure to post had posted the prevailing wage rate or that the branch was intentional, the forum focused on what respondent manager or respondent believed that anyone else had failed to do, not what respondent did. ----- In the Matter posted the prevailing wage rate. ----- In the Matter of of Labor Ready Northwest, Inc., 28 BOLI 91, 127 Labor Ready Northwest, Inc., 28 BOLI 47, 84-85 (2007). (2007). Appeal pending. Appeal pending.

‰ When the Oregon Court of Appeals held, in a case ‰ Respondent, through its branch manager, knew that in which respondent was a party, that subcontractors its workers would be performing manual and physical were required to post the prevailing wage rates at all duties on a high school when its workers were initially public works on which they employed workers, and the dispatched. In the first few days that respondent’s Oregon Supreme Court denied review of the same case workers were employed at the high school, the branch before respondent sent workers to a public works manager was proactive in attempting to determine if project, there could be no question that respondent knew respondent needed to pay the prevailing wage rate. He that it was required to post all prevailing wage rate jobs spoke with two managers employed by JBH, the at that time it sent workers to the project. ----- In the company that was using respondent as a subcontractor Matter of Labor Ready Northwest, Inc., 28 BOLI 91, and with the prime contractor’s office, and was assured 127 (2007). by the prime contractor that construction was complete Appeal pending. and by JBH that the work was not subject to the prevailing wage rate because JBH was a “vendor.” ‰ When respondent’s local office and corporate office Although the branch manager could have called BOLI for knew that respondent’s local office had dispatched a definitive answer, under the circumstances, the forum workers to a prevailing wage rate job and there was no concluded that respondent did not intentionally fail to dispute about the classification of work that respondent’s post before the date that BOLI told the branch manager three workers performed on a prevailing wage rate job or that the job was a prevailing wage rate job. ----- In the that the classification could have been determined by Matter of Labor Ready Northwest, Inc., 28 BOLI 47, observing the workers and reading BOLI’s PWR booklet, 83 (2007). respondent’s failure to take any action whatsoever to post the prevailing wage rates amounted to a conscious Appeal pending. choice not to post the prevailing wage rates and ‰ The commissioner placed respondent on the list of subjected respondent to debarment. ----- In the Matter ineligibles for one year based on respondent’s failure to of Labor Ready Northwest, Inc., 28 BOLI 91, 127-28 pay and post the prevailing wage rate on a public works

VII - 34 PWR -- 16.0 PLACEMENT ON INELIGIBLE LIST project. ----- In the Matter of Labor Ready Northwest, ‰ When respondent failed to post the applicable Inc., 27 BOLI 83, 153 (2005). prevailing wage rates during the performance of a subject contract, in violation of ORS 279.350(4), the Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 commissioner had no choice but to debar respondent, (2006), rev den 342 Or 473, 155 P3d 51 (2007). based on this determination and the mandatory language in the statute. The commissioner’s only ‰ Respondent employed one worker for one day on a discretion in this matter is the length of the debarment. -- public work and did not post the prevailing wage rate, --- In the Matter of Larson Construction Co., Inc., 22 but was unaware that the project was a public work until BOLI 118, 165 (2001). contacted by BOLI several months later. Although respondent’s job order indicated that its worker would be 16.4 --- Liability of Corporate Officers or working at a high school, there was no evidence that Agents respondent knew the project was a public work until ‰ When there were no mitigating circumstances and notified by BOLI or that respondent made a conscious multiple aggravating circumstances, including knowledge choice not to determine that the project was a public by respondent’s corporation president that respondent’s work. Under these circumstances, the forum concluded project was a prevailing wage rate job and that fringe that respondent’s failure to post the prevailing wage rate benefits and overtime must be paid; his falsification of 20 was not intentional. ----- In the Matter of Labor Ready certified payroll reports in an apparent attempt to Northwest, Inc., 27 BOLI 83, 151-52 (2005). deceive the contracting agency and to avoid paying Affirmed, Labor Ready Northwest, Inc. v. Bureau of almost $16,000 in earned wages to respondent’s Labor and Industries, 208 Or App 195, 145 P3d 232 workers; his directive to respondent’s office manager to (2006), rev den 342 Or 473, 155 P3d 51 (2007). falsify respondent’s certified payroll reports so they did not show overtime; the seriousness of the respondent’s ‰ When respondent failed to post the prevailing wage violations, in that they resulted in an underpayment of rates after respondent’s manager was aware that wages of $15,898 to respondent’s workers; and posting was required, respondent’s failure to personally respondent’s failure to correct the problem when the post and maintain that posting was a conscious choice agency brought it to respondent’s attention, the and an intentional failure within the meaning of ORS commissioner debarred respondent and its president for 279.261(1), subjecting respondent to debarment. ----- In three years. ----- In the Matter of Harkcom Pacific, 27 the Matter of Labor Ready Northwest, Inc., 27 BOLI BOLI 62, 82-83 (2005). 83, 151 (2005). ‰ Based on several key facts, the forum concluded Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 that respondent’s president was integrally involved and (2006), rev den 342 Or 473, 155 P3d 51 (2007). responsible for respondent’s failure to pay the prevailing rate of wage on a public works project. First, as ‰ A negligent or otherwise inadvertent failure to post corporate president and supervisor on projects, the the prevailing wage rate is insufficient to require forum inferred that he was aware of the extent of the debarment. A heightened level of culpability must be work being performed by respondent’s employees on the proven before an employer can be debarred based on project. Second, he was an experienced Oregon and an intentional failure to post. ----- In the Matter of Labor Washington contractor on prevailing wage rate projects Ready Northwest, Inc., 27 BOLI 83, 150 (2005). and was presumed to know the law, including the Affirmed, Labor Ready Northwest, Inc. v. Bureau of requirements of paying fringe benefits and overtime. Labor and Industries, 208 Or App 195, 145 P3d 232 Third, he knew that respondent was required to pay (2006), rev den 342 Or 473, 155 P3d 51 (2007). fringe benefits on the project. Fourth, the forum disbelieved his testimony that he did not know that ‰ When respondent, a subcontractor, knew it had not respondent’s employees worked overtime, including posted applicable prevailing wage rates on its job site, Saturdays and Sundays, on the project due to the fact intended not to post them, and was under no restrictions that he supervised the project. Fifth, he signed all that would have prevented it from posting the rates, the certified payroll reports, none of which reflected any forum was required by law to debar respondent for a payment for fringe benefits to any of respondent’s period up to three years. ----- In the Matter of Labor employees. Finally, the forum regarded his lack of Ready Northwest, Inc., 22 BOLI 245, 290 (2001). credibility under oath at the hearing as a further Reversed in part, Labor Ready Northwest, Inc. v. indication of his capacity to knowingly make a false Bureau of Labor and Industries, 188 Or App 346, 71 certification. ----- In the Matter of Harkcom Pacific, 27 P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 BOLI 62, 79-80 (2005). (2004). ‰ The agency presented credible evidence of ‰ When respondent and its agents knew they had not aggravating circumstances, proving that respondent’s posted the applicable prevailing wage rates on the president was actively and regularly engaged on the job subject contracts, intended not to post them, and were site, entered and certified all of the information contained under no restrictions that would have prevented them within the payroll records, and wrote out the checks from posting the rates, the forum was required to place payable to respondent’s workers on respondent’s respondent on the list of ineligibles for a period of time corporate account. These actions were imputed to not to exceed three years. ----- In the Matter of Larson respondent and both respondent and its corporation Construction Co., Inc., 22 BOLI 118, 163 (2001). president were placed on the list of ineligibles for three years. ----- In the Matter of Design N Mind, Inc., 27

VII - 35 PWR -- 16.0 PLACEMENT ON INELIGIBLE LIST

BOLI 32, 44 (2005). that wage rate. ----- In the Matter of Bruce D. Huhta, 21 BOLI 249, 258 (2001). ‰ Respondent’s corporate president, was “responsible” for respondent’s failure to post the ‰ When respondent’s wife, who was named as a co- applicable prevailing wage rate and subject to respondent, was not a contractor or subcontractor who debarment if he “knew or should have known * * * that intentionally failed or refused to pay the prevailing rate of such wages must be posted.” ----- In the Matter of wage to workers employed upon public works, the forum Larson Construction Co., Inc., 22 BOLI 118, 163 lacked the authority to place her on the list of ineligibles (2001). unless her consent to such placement was part of a settlement agreement arrived at pursuant to OAR 839- ‰ Whether respondent’s corporate president “knew” 050-0220. The forum dismissed the charges against that the applicable prevailing wage rates must be posted her. ----- In the Matter of William George was dependent on whether he had actual knowledge Allmendinger, 21 BOLI 151, 174 (2000). that the subject contracts were subject to the prevailing wage rate. If he had this knowledge, the forum would ‰ When the forum determined that respondent automatically conclude that he was aware that of the intentionally failed to pay the prevailing rate of wage to legal requirement to post the applicable prevailing wage seven claimants, and credible testimony from the rates based on his prior experience as a contractor on agency’s witnesses established that respondent’s public works. When there was no evidence that he had corporate president was personally responsible for that actual knowledge prior to work on the subject providing records of dates and hours worked by contracts being completed, the forum could not conclude respondent’s employees to respondent’s payroll service that he “knew” that the prevailing wage rates must be and sending funds to that service so that it could issue posted on the subject contracts. ----- In the Matter of paychecks to respondent’s employees, the forum found Larson Construction Co., Inc., 22 BOLI 118, 163-64 respondent’s corporate president responsible for failing (2001). to provide records and funds that would have allowed the payroll service to pay the seven claimants. ----- In ‰ The forum concluded that respondent’s corporate the Matter of Johnson Builders, Inc., 21 BOLI 103, president “should have known” that the applicable 125 (2000). prevailing wage rates must be posted on the subject contracts when he was an experienced contractor who ‰ Respondent’s corporate president was found to be had to know that any contract involving the contracting directly responsible for respondent’s failure to pay the agency was a public works subject to the prevailing prevailing wage rate and was placed on the list of wage rate unless it was for less than $25,000 or was ineligibles for three years. ----- In the Matter of regulated by the Davis-Bacon Act, when he visited the Johnson Builders, Inc., 21 BOLI 103, 125-26 (2000). actual job site before the contracts were awarded to respondent and observed that a larger project was ‰ Any corporate officer responsible for the intentional taking place in the same immediate area, and when he failure to pay or post the prevailing wage rate shall be was well aware of BOLI’s interpretation of the scope of placed on the list of ineligibles for a period of up to three debarment stating that contracts for less than $25,000 years. ----- In the Matter of Southern Oregon were not exempt if they were part of a larger project and Flagging, Inc., 18 BOLI 138, 159-60, 162-63 (1999). had relied on it for the prior 16 months in determining See also In the Matter of Larson Construction, 17 BOLI respondent’s eligibility to bid on projects. The forum 54, 75 (1998). concluded that a person of common prudence would ‰ A corporate officer responsible for a corporation’s have inquired further into the circumstances of the failure to pay and post prevailing wages was placed on prospective contracts, and respondent’s corporate the ineligible list for a period of one month. ----- In the president did not do that, instead relying relying solely on Matter of Southern Oregon Flagging, Inc., 18 BOLI the contracting agency’s determination, which turned out 138, 157 (1999). to be both misleading and erroneous. ----- In the Matter of Larson Construction Co., Inc., 22 BOLI 118, 164-65 ‰ When a corporation’s president signed four (2001). contracts for public works projects, all of which mentioned that the prevailing wage rate applied and ‰ When respondent failed to post the applicable some of which had the PWR booklet attached, and when prevailing wage rates and respondent’s corporate the corporation never paid the workers the correct president was responsible for this failure during the prevailing wage rate, including the wage rate for the performance of a subject contract, in violation of ORS classifications the president claimed were correct even 279.350(4), the commissioner had no choice, based on after the agency repeatedly advised the president of the this determination and the mandatory language in the correct classification and wage rate, the commissioner statute, but to debar respondent’s corporate president. found that the president knew or should have known the The commissioner’s only discretion in this matter is the amount of the applicable prevailing wages, that the length of the debarment. ----- In the Matter of Larson corporation was not paying them, and that the president Construction Co., Inc., 22 BOLI 118, 165 (2001). was responsible for that failure. The commissioner placed the president’s name on the list of contractors ‰ A respondent subcontractor’s corporate president was placed on the list of ineligibles for three years when ineligible for public contracts for three years. ----- In the credible evidence on the record showed that he knew Matter of Sealing Technology, Inc., 11 BOLI 241, 251- the amount of the applicable prevailing wage rate and 53 (1993). was responsible for the subcontractor’s failure to pay ‰ When a corporate secretary was also the

VII - 36 PWR -- 16.0 PLACEMENT ON INELIGIBLE LIST bookkeeper and prepared the payroll, was aware of the ‰ When the commissioner determined that agency’s investigation and correspondence concerning respondent intentionally failed to post the prevailing the correct wage rates, prepared prevailing wage rate wage rate, aggravating circumstances in a prevailing “bonus” checks for the corporation’s employees, and the wage rate debarment case included: the magnitude and corporation submitted falsified certified payroll records to seriousness of the violation -- 15 workers were initially the agency, the commissioner found that the secretary underpaid a total of $10,630.83; at least three workers knew or should have known the amount of the applicable remained unpaid for ten months; respondent’s failure to prevailing wages and that the corporation was not post despite ample opportunity to comply and the paying them. The commissioner placed the secretary’s relative ease of compliance; respondent’s failure to train name on the list of contractors ineligible for public its manager of Oregon’s prevailing wage posting contracts for three years. ----- In the Matter of Sealing requirement, despite clear direction from the Oregon Technology, Inc., 11 BOLI 241, 253 (1993). Court of Appeals; respondent’s failure to post despite its corporate headquarters having knowledge that the ‰ When respondents -- a corporation, its president, project to which it dispatched its workers was a and its secretary -- were subcontractors on a public prevailing wage rate job; and respondent’s three prior works, the forum found the corporation and its secretary violations of former ORS 279.350(4) in the previous five were responsible for a failure to pay the prevailing wage years, including one intentional violation. ----- In the rate. However, the record did not establish that the Matter of Labor Ready Northwest, Inc., 28 BOLI 47, corporate president, who was part owner of the 85 (2007). corporation, knew or should have known that the applicable prevailing wage rates were not being paid on Appeal pending. the project. The forum placed the names of the ‰ When the forum was required to debar respondent corporation and its secretary on the list of contractors based on respondent’s violations of ORS 279.350(1) and ineligible for public contracts for a period of three years. - (4) on a public works project, the forum considered the ---- In the Matter of Jet Insulation, Inc., 7 BOLI 133, following aggravating factors in determining the 141-42 (1988). appropriate length of debarment: (1) respondent’s ‰ When two partners who owned respondent’s failure to pay three workers the prevailing wage for five company intentionally failed to pay the prevailing wage months after it learned its workers were entitled to the rate to workers employed on a public works project in prevailing wage rate and failure to pay one worker the violation of ORS 279.350, both partners were placed on prevailing wage by the time of the hearing; (2) the list of contractors ineligible for public contracts for a respondent’s initial failure to pay the prevailing wage to period of three years. ----- In the Matter of Loren eight workers employed a previous public works project; Malcom, 6 BOLI 1, 7-8 (1986). (3) respondent’s six violations of ORS 279.354 on the project; (4) respondent’s single violations of ORS ‰ When a corporate respondent intentionally failed to 279.354 and ORS 279.355 on another public works pay the prevailing wage rate to workers on two public project; (5) respondent’s initial failure to pay the works projects and the corporation’s two owners and prevailing wage on another public works project; (6) officers were responsible for the failure to pay the respondent’s failure to post on another public works prevailing wage rate, the corporation and both project; and (7) respondent’s failure, despite a prior owner/officers were placed on the commissioner’s list of warning, to correct the certification statement attached to contractors ineligible for public contracts for a period of its payroll report. ----- In the Matter of Labor Ready three years. ----- In the Matter of P. Miller & Sons Northwest, Inc., 27 BOLI 83, 152 (2005). Contractors, Inc., 5 BOLI 149, 159 (1986). Affirmed, Labor Ready Northwest, Inc. v. Bureau of 16.5 --- Aggravating Circumstances Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). ‰ Aggravating factors may be considered in determining the length of debarment. The aggravating ‰ Aggravating factors may be considered in circumstances considered may include those set out in determining the length of debarment. ----- In the Matter former OAR 839-016-0520(1). ----- In the Matter of of Labor Ready Northwest, Inc., 27 BOLI 83, 152 Labor Ready Northwest, Inc., 28 BOLI 91, 128 (2007). (2005). Appeal pending. Affirmed, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 208 Or App 195, 145 P3d 232 See also In the Matter of Labor Ready Northwest, Inc., (2006), rev den 342 Or 473, 155 P3d 51 (2007). 28 BOLI 47, 85 (2007), appeal pending. ‰ To determine the length of time a respondent’s ‰ When the commissioner determined that name should remain on the list of ineligibles, the forum respondent intentionally failed to pay and post the may consider mitigating and aggravating circumstances. prevailing wage rate, aggravating circumstances in a ----- In the Matter of Design N Mind, Inc., 27 BOLI 32, prevailing wage rate debarment case included 43 (2005). respondent’s 18 prior violations of former ORS 279.350(1) on four separate projects and respondent’s ‰ The agency presented credible evidence of four prior violations of former ORS 279.350(4) on four aggravating circumstances, proving that respondent’s separate projects. ----- In the Matter of Labor Ready president was actively and regularly engaged on the job Northwest, Inc., 28 BOLI 91, 128 (2007). site, entered and certified all of the information contained within the payroll records, and wrote out the checks Appeal pending. payable to respondent’s workers on respondent’s

VII - 37 PWR -- 16.0 PLACEMENT ON INELIGIBLE LIST corporate account. These actions were imputed to was a party, that respondent was required to post. ----- respondent. ----- In the Matter of Design N Mind, Inc., In the Matter of Labor Ready Northwest, Inc., 28 27 BOLI 32, 44 (2005). BOLI 47, 85-86 (2007). ‰ Respondent and its corporate president were placed Appeal pending. on the list of ineligibles for three years when ‰ To determine the length of time a respondent’s respondent’s president was responsible for respondent’s name should remain on the list of ineligibles, the forum failure to pay its workers the prevailing wage rate, the may consider mitigating and aggravating circumstances. violation was aggravated, and there were no mitigating ----- In the Matter of Design N Mind, Inc., 27 BOLI 32, factors. ----- In the Matter of Design N Mind, Inc., 27 43 (2005). BOLI 32, 44 (2005). ‰ In mitigation, the forum considered that respondent: ‰ In determining the length of respondent’s (1) had paid back wages in full to all but one worker; (2) debarment, the forum considered several aggravating had made changes to its payroll records and reports that factors: respondent’s lack of reasonable diligence in make them easier to audit and less likely to contain determining the specific job duties of its workers and errors concerning hours and dates worked; (3) promptly their correct classification that resulted in significant paid back wages owed to its worker on a public works underpayment of wages to respondent’s workers; project when the agency made a demand for payment; respondent’s corporate policy of not posting prevailing (4) created a corporate “audit team” that conducts daily wage rates at job sites; the total number of violations; reviews designed to identify prevailing wage rate respondent’s failure to correct the certification statement projects; and (5) had given its manager who failed to attached to its certified payroll -- despite a warning from post the prevailing wage rate on a public works project, BOLI; the relative ease with which respondent could some training on prevailing wage rate jobs. ----- In the have avoided the violations; and the seriousness and Matter of Labor Ready Northwest, Inc., 27 BOLI 83, magnitude of the violations. ----- In the Matter of Labor 152-53 (2005). Ready Northwest, Inc., 22 BOLI 245, 291 (2001). Affirmed, Labor Ready Northwest, Inc. v. Bureau of Reversed in part, Labor Ready Northwest, Inc. v. Labor and Industries, 208 Or App 195, 145 P3d 232 Bureau of Labor and Industries, 188 Or App 346, 71 (2006), rev den 342 Or 473, 155 P3d 51 (2007). P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 (2004). ‰ ORS 279.361 provides that debarment shall be for “a period not to exceed three years.” Although that 16.6 --- Mitigating Circumstances statute and the agency’s administrative rules interpreting ‰ Mitigating factors may be considered in determining it do not explicitly authorize the forum to consider whether the debarment of a contractor or subcontractor mitigating factors in determining the length of a should last less than the maximum three-year period debarment, the commissioner has held that mitigating allowed by law. ----- In the Matter of Labor Ready factors may be considered in determining whether the Northwest, Inc., 28 BOLI 91, 128 (2007). debarment of a contractor or subcontractor should last Appeal pending. less than the entire three-year period allowed by law. ---- - In the Matter of Labor Ready Northwest, Inc., 27 See also In the Matter of Labor Ready Northwest, Inc., BOLI 83, 152 (2005). 28 BOLI 47, 85 (2007), appeal pending. Affirmed, Labor Ready Northwest, Inc. v. Bureau of ‰ Mitigating circumstances in a prevailing wage rate Labor and Industries, 208 Or App 195, 145 P3d 232 debarment case based on respondent’s failure to pay (2006), rev den 342 Or 473, 155 P3d 51 (2007). and post to prevailing wage rate included respondent’s See also In the Matter of Labor Ready Northwest, Inc., payment of back wages in full to the three workers who 22 BOLI 245, 290-91 (2001), reversed in part, Labor were underpaid and respondent’s creation of an intranet Ready Northwest, Inc. v. Bureau of Labor and Industries, site where its Oregon employees can review Oregon’s 188 Or App 346, 71 P3d 559 (2003), rev den 336 Or posting requirements. ----- In the Matter of Labor 534, 88 P3d 280 (2004); In the Matter of Larson Ready Northwest, Inc., 28 BOLI 91, 128 (2007). Construction Co., Inc., 22 BOLI 118, 165 (2001); In the Appeal pending. Matter of Keith Testerman, 20 BOLI 112, 129 (2000); In the Matter of Southern Oregon Flagging, 18 BOLI 138, ‰ Mitigating circumstances in a prevailing wage rate 162, 169 (1999). debarment case based on respondent’s failure to post included respondent’s prompt issuance of checks to the ‰ In determining the length of respondent’s 15 workers once respondent learned the project was a debarment, the forum considered several mitigating prevailing wage rate job and respondent’s development factors: respondent’s current policy that its district of a corporate policy and intranet training site for Oregon manager must visit prevailing wage rate job sites before employees on the subject of Oregon prevailing wage respondent can send workers to those sites; rate laws, including the posting requirement. The former respondent’s advisory that branch managers should do a was partially abated by the fact that three workers did site visit and look for postings; respondent’s prompt not receive their checks until 10 months after the wages payment of back wages owed to its eight workers when were earned. The latter was abated because BOLI made a demand for payment; and the prevailing respondent did not even begin developing its policy and wage rate training to which respondent’s parent intranet training site until two and one half months after company, currently subjects its managers. ----- In the the Court of Appeals held, in a case to which respondent Matter of Labor Ready Northwest, Inc., 22 BOLI 245,

VII - 38 PWR -- 16.0 PLACEMENT ON INELIGIBLE LIST

291 (2001). debarment for respondent’s intentional violations of ORS 279.354(1) and (4) on a public works project. ----- In the Reversed in part, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 Matter of Labor Ready Northwest, Inc., 27 BOLI 83, P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 153 (2005). (2004). Affirmed, Labor Ready Northwest, Inc. v. Bureau of 16.7 --- Length of Debarment Labor and Industries, 208 Or App 195, 145 P3d 232 (2006), rev den 342 Or 473, 155 P3d 51 (2007). ‰ The forum found that three years was an appropriate period of debarment based on respondent’s ‰ When there were no mitigating circumstances and intentional failure to pay the prevailing rate of wage to multiple aggravating circumstances, including knowledge three workers employed on a prevailing wage rate job by respondent’s corporation president that respondent’s that three years was also an appropriate period of project was a prevailing wage rate job and that fringe debarment based on respondent’s intentional failure to benefits and overtime must be paid; his falsification of 20 post the prevailing wage rates as required by former certified payroll reports in an apparent attempt to ORS 279.350(4) on that same job. The forum stated it deceive the contracting agency and to avoid paying would impose the same three-year debarment for either almost $16,000 in earned wages to respondent’s violation independently but chose, in its discretion, to run workers; his directive to respondent’s office manager to the two three-year debarment periods concurrently falsify respondent’s certified payroll reports so they did rather than consecutively. ----- In the Matter of Labor not show overtime; the seriousness of the respondent’s Ready Northwest, Inc., 28 BOLI 91, 128-29 (2007). violations, in that they resulted in an underpayment of wages of $15,898 to respondent’s workers; and Appeal pending. respondent’s failure to correct the problem when the ‰ Considering all the aggravating and mitigating agency brought it to respondent’s attention, the circumstances, the commissioner debarred respondent commissioner debarred respondent and its president for for three years based on respondent’s intentional failure three years. ----- In the Matter of Harkcom Pacific, 27 to post. ----- In the Matter of Labor Ready Northwest, BOLI 62, 82-83 (2005). Inc., 28 BOLI 47, 86 (2007). ‰ The forum debarred respondent, a subcontractor, Appeal pending. for one year based on its intentional failure to post and pay prevailing wage rates when numerous aggravating ‰ The commissioner was required to debar factors and several mitigating factors existed. ----- In the respondent based on its intentional failure to post the Matter of Labor Ready Northwest, Inc., 22 BOLI 245, prevailing wage rate on a prevailing wage rate project, 291 (2001). with the only question being the length of the debarment. ----- In the Matter of Labor Ready Northwest, Inc., 28 Reversed in part, Labor Ready Northwest, Inc. v. BOLI 47, 85 (2007). Bureau of Labor and Industries, 188 Or App 346, 71 P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 Appeal pending. (2004). ‰ ORS 279.361 provides that debarment shall be for ‰ Based on “unique circumstances,” the forum limited “a period not to exceed three years.” Although that the length of debarment of respondent and its corporate statute and the agency’s administrative rules interpreting president to one month based on respondent’s failure to it do not explicitly authorize the forum to consider post the applicable prevailing wage rate. ----- In the mitigating factors in determining the length of a Matter of Larson Construction Co., Inc., 22 BOLI 118, debarment, the commissioner has held that mitigating 166 (2001). factors may be considered in determining whether the ‰ A respondent subcontractor’s corporate president debarment of a contractor or subcontractor should last was placed on the list of ineligibles for three years when less than the entire three-year period allowed by law. ---- credible evidence on the record showed that he knew - In the Matter of Labor Ready Northwest, Inc., 27 the amount of the applicable prevailing wage rate and BOLI 83, 152 (2005). was responsible for the subcontractor’s failure to pay Affirmed, Labor Ready Northwest, Inc. v. Bureau of that wage rate. ----- In the Matter of Bruce D. Huhta, 21 Labor and Industries, 208 Or App 195, 145 P3d 232 BOLI 249, 258 (2001). (2006), rev den 342 Or 473, 155 P3d 51 (2007). ‰ The commissioner placed respondent on the list of See also In the Matter of Harkcom Pacific, 27 BOLI 62, ineligibles for three years because his failure to pay the 82 (2005); In the Matter of Labor Ready Northwest, Inc., prevailing wage rate was intentional and because the 22 BOLI 245, 290-91 (2001), reversed in part, Labor contractor paid the unpaid wages on respondent’s Ready Northwest, Inc. v. Bureau of Labor and Industries, behalf. ----- In the Matter of William George 188 Or App 346, 71 P3d 559 (2003), rev den 336 Or Allmendinger, 21 BOLI 151, 173 (2000). 534, 88 P3d 280 (2004); In the Matter of Larson Construction Co., Inc., 22 BOLI 118, 165 (2001); In the ‰ ORS 279.361(1) requires that a subcontractor be Matter of Keith Testerman, 20 BOLI 112, 129 (2000); In placed on the commissioner’s list of ineligibles for a the Matter of Southern Oregon Flagging, 18 BOLI 138, period not to exceed three years when the commissioner 162, 169 (1999). determines, through a contested case proceeding, that the subcontractor has intentionally failed to pay the ‰ Considering all aggravating and mitigating prevailing rate of wage to workers employed upon public circumstances, the commissioner imposed a one-year works, or when the subcontractor has failed to pay the

VII - 39 PWR -- 17.0 LIQUIDATED DAMAGES prevailing rate of wage to its employees and the corporation and its secretary on the list of contractors contractor has paid those amounts on the ineligible for public contracts for a period of three years. - subcontractor’s behalf. When the forum determined that ---- In the Matter of Jet Insulation, Inc., 7 BOLI 133, both situations occurred, respondent was placed on the 141-42 (1988). list of ineligibles for three years. ----- In the Matter of Johnson Builders, Inc., 21 BOLI 103, 125 (2000). ‰ When two partners who owned respondent’s company intentionally failed to pay the prevailing wage ‰ When respondent’s corporate president was directly rate to workers employed on a public works project in responsible for respondent’s failure to pay the prevailing violation of ORS 279.350, both partners were placed on wage rate, he was placed on the list of ineligibles for the list of contractors ineligible for public contracts for a three years. ----- In the Matter of Johnson Builders, period of three years. ----- In the Matter of Loren Inc., 21 BOLI 103, 125-26 (2000). Malcom, 6 BOLI 1, 7-8 (1986). ‰ The commissioner placed respondent on the list of ‰ When a corporate respondent intentionally failed to ineligibles for three years when no mitigating factors pay the prevailing wage rate to workers on two public were present; respondent had previously violated the works projects and the corporation’s two owners and prevailing wage rate laws; respondent’s current failure to officers were responsible for the failure to pay the pay the prevailing wage rate was blatant and not the prevailing wage rate, the corporation and both result of a misunderstanding between respondent and owner/officers were placed on the commissioner’s list of the agency; respondent did not cooperate with the contractors ineligible for public contracts for a period of agency’s investigation; and respondent made no attempt three years. ----- In the Matter of P. Miller & Sons to rectify the underpayment of wages. ----- In the Matter Contractors, Inc., 5 BOLI 149, 159 (1986). of Keith Testerman, 20 BOLI 112, 129-30 (2000). 17.0 LIQUIDATED DAMAGES ‰ In determining how long a debarred respondent ‰ Civil penalties, liquidated damages, and debarment should remain on the list of ineligibles, the commissioner are distinct forms of sanctions the agency may impose may consider such mitigating factors as the respondent’s for violations of prevailing wage rate laws. ----- In the cooperation with the agency, the respondent’s efforts to Matter of Larson Construction Co., Inc., 17 BOLI 54, comply with the prevailing wage rate laws, the 71 (1998). respondent’s history of correcting violations, and the likelihood that the respondent will violate the law in the ‰ A respondent who failed to pay the prevailing wage future. ----- In the Matter of Southern Oregon rate on a public works contract was ordered to pay back Flagging, Inc., 18 BOLI 138, 162, 169 (1999). pay and liquidated damages to his workers. ----- In the Matter of Intermountain Plastics, 7 BOLI 142, 160 ‰ When respondent bid on and received subcontracts (1988). on two public works projects and intentionally paid his 12 workers less than the appropriate prevailing wage rates, 18.0 AFFIRMATIVE DEFENSES the commissioner placed respondent’s name on the list 18.1 --- Equitable Estoppel (see also Ch. III, of contractors ineligible for public contracts for a period of three years. ----- In the Matter of Haskell Tallent, 13 sec. 86.0) BOLI 273, 277-79 (1994). ‰ Respondent alleged that the agency was estopped from commencing its action seeking civil penalties and ‰ When a corporation’s president and secretary placement of respondent on the commissioner’s list of intentionally paid employees less than the prevailing ineligibles by virtue of the agency’s prior actions and wage rate on four public projects, the commissioner held respondent’s detrimental reliance on them. The forum that the corporation intentionally failed to pay the held that the doctrine of equitable estoppel does not prevailing wage rate, in violation of ORS 279.350(1), and apply to the agency when it is enforcing a mandatory placed respondent’s name on the list of contractors requirement of the law, and denied respondent’s motion ineligible for public contracts for a period of three years. - on the basis that the agency was seeking to enforce ---- In the Matter of Sealing Technology, Inc., 11 BOLI mandatory requirements of the law and equitable 241, 250-51 (1993). estoppel was not available to respondent as a defense ‰ An individual respondent who intentionally failed to as a matter of law. ----- In the Matter of Labor Ready pay the prevailing wage rate, including overtime, to Northwest, Inc., 22 BOLI 252, 247-53 (2001). workers on a public works project was placed on the list Reversed in part, Labor Ready Northwest, Inc. v. of contractors ineligible for public contracts for a period Bureau of Labor and Industries, 188 Or App 346, 71 of 18 months. ----- In the Matter of Intermountain P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 Plastics, 7 BOLI 142, 160 (1988). (2004). ‰ When respondents -- a corporation, its president, ‰ The doctrine of equitable estoppel does not apply to and its secretary -- were subcontractors on a public the agency when it is enforcing a mandatory requirement works, the forum found the corporation and its secretary of the law. ----- In the Matter of Southern Oregon were responsible for a failure to pay the prevailing wage Flagging, Inc., 18 BOLI 138, 162 (1999). See also In rate. However, the record did not establish that the the Matter of Larson Construction Co., Inc., 17 BOLI 54, corporate president, who was participate owner of the 73 (1998). corporation, knew or should have known that the ‰ The doctrine of equitable estoppel cannot prevent applicable prevailing wage rates were not being paid on the agency from imposing a discretionary civil penalty as the project. The forum placed the names of the

VII - 40 PWR -- 18.0 AFFIRMATIVE DEFENSES part of its enforcement of mandatory requirements of the familiar with the contents of any document that bears his law. ----- In the Matter of Larson Construction Co., signature, and the contents of the contracts should have Inc., 17 BOLI 54, 73 (1998). put the president on notice of the prevailing wage rate requirements. ----- In the Matter of Sealing ‰ Respondents have the burden of proving estoppel Technology, Inc., 11 BOLI 241, 251-52 (1993). by a preponderance of the evidence. ----- In the Matter of Larson Construction Co., Inc., 17 BOLI 54, 74 ‰ A contractor testified he believed that the value of (1998). providing a housing opportunity in a rehabilitated recreational vehicle park would be enough, when added ‰ To constitute estoppel, there must be a false to the hourly wage, to equal the prevailing wage rate, representation, it must be made with knowledge of the including fringe benefits. The forum rejected that facts, the other party must have been ignorant of the defense to the charge of intentional failure to pay the truth, the representation must have been made with the prevailing wage rate in part because an employer has a intention that it should be acted on by the other party, duty to know the wages due to an employee and and the other party must have been induced to act on it. ignorance of the law as to what qualifies as a fringe ----- In the Matter of Larson Construction Co., Inc., 17 benefit is not an excuse. ----- In the Matter of P. Miller BOLI 54, 74 (1998). & Sons Contractors, Inc., 5 BOLI 149, 158 (1986). 18.2 --- Ignorance of the Law 18.3 --- Other ‰ Respondent’s branch manager’s ignorance of the ‰ The forum rejected respondent’s exception that it legal requirement to post the prevailing wage rate was entitled, as a matter of law, to rely on its own because respondent failed to apprise him of that interpretation of former ORS 279.350(4) – which was requirement did not provide a defense for respondent. --- that as a subcontractor, it was not required to post, -- In the Matter of Labor Ready Northwest, Inc., 28 despite the decision of the Oregon Court of Appeals’ BOLI 47, 84 (2007). opinion to the contrary, until its appellate rights were Appeal pending. exhausted. ----- In the Matter of Labor Ready Northwest, Inc., 28 BOLI 47, 87 (2007). ‰ Employers cannot avoid their legal responsibilities by their or their employees’ selective ignorance or Appeal pending. inattention. ----- In the Matter of Emmert Industrial ‰ The forum rejected respondent’s defense that a Corp., 26 BOLI 284, 290 (2005). press release issued by the commissioner stated ‰ All employers are charged with the knowledge of “Gardner noted that while the appeal [of a court decision wage and hour laws governing their activities as concerning the application of the state’s prevailing wage employers. ----- In the Matter of Southern Oregon rate law] is pending, the [Circuit Court] judge’s decision Flagging, Inc., 18 BOLI 138, 166 (1999). See also In is not binding on the agency’s interpretation in that case the Matter of Larson Construction Co., Inc., 17 BOLI 54, or in any other cases.” The forum’s reason was that the 78, 79 (1998). commissioner’s press release was an incorrect statement of the law and respondent did not articulate ‰ Respondent asserted that his failure to pay the how this statement provided a legal defense, if any, to prevailing wage rate was not intentional because he had respondent that would make the statement relevant to never previously performed public works projects in this case. ----- In the Matter of Labor Ready Oregon. The commissioner rejected respondent’s Northwest, Inc., 28 BOLI 47, 87 (2007). defense on the basis that respondent, like all employers, was charged with knowing the wage and hour laws Appeal pending. governing its activities as an employer and noted that ‰ Respondent’s affirmative defense that the agency’s the forum has never given any weight to a defense of action was barred by the statute of limitations was lack of experience with prevailing wage practices in rejected because respondent did not cite an applicable Oregon. ----- In the Matter of Haskell Tallent, 13 BOLI statute of limitations at hearing and the forum was 273, 279 (1994). unaware of any statute of limitations that applied. ----- In ‰ The commissioner rejected respondent’s defense to the Matter of Labor Ready Northwest, Inc., 28 BOLI a charge that he intentionally failed to pay the prevailing 47, 86 (2007). wage rate because he was ignorant of his responsibility Appeal pending. to pay the prevailing wage rate, noting that all employers are charged with knowledge of wage and hour laws ‰ To prevail on the defense of laches, a respondent governing their activities as employers, the law imposes must prove three elements: (1) there was an a duty upon employers to know the wages that are due unreasonable delay by the agency; (2) the agency had to their employees, and employers cannot escape their full knowledge of facts that would have allowed it to responsibilities under the law by selective ignorance or avoid the unreasonable delay; and (3) that the inattention. ----- In the Matter of Sealing Technology, unreasonable delay resulted in such prejudice to Inc., 11 BOLI 241, 252 (1993). respondent that it would be inequitable to afford the relief sought by the agency. The mere passage of time is not ‰ When a corporate president signed four public sufficient to invoke the equitable doctrine of laches; works contracts, but claimed he was ignorant of the respondent must prove that it suffered actual prejudice requirement to pay the prevailing wage rate, the attributable to the passage of time. Respondent did not commissioner held that a person is presumed to be prove any of these elements and the forum rejected its

VII - 41 PWR -- 18.0 AFFIRMATIVE DEFENSES defense of laches. ----- In the Matter of Labor Ready (2004). Northwest, Inc., 28 BOLI 47, 86 (2007). ‰ In a wage survey case, the forum did not accept as Appeal pending. mitigation respondent’s claim that one principal was ignorant of the other’s failure to timely complete and ‰ Respondent’s subsequent payment of back wages return the 2000 wage survey and that therefore the civil may be considered as a mitigating factor, but is not a penalty should be abated, stating that the forum had defense to respondent’s failure to pay the prevailing never given any weight to the fact that a respondent’s wage rate. ----- In the Matter of Labor Ready internal affairs were in disarray and that employers Northwest, Inc., 27 BOLI 83, 136-37 (2005). cannot avoid their legal responsibilities by selective Affirmed, Labor Ready Northwest, Inc. v. Bureau of ignorance or inattention. ----- In the Matter of The Labor and Industries, 208 Or App 195, 145 P3d 232 Landscape Company of Portland, LLC, 22 BOLI 69, (2006), rev den 342 Or 473, 155 P3d 51 (2007). 76 (2001). ‰ Respondent’s belief that ORS 279.359(2) did not ‰ Respondent argued that the requirement that apply to him was not a defense to the agency’s charge respondent complete and return the commissioner’s that respondent knew or should have known of the 1998 and 1999 wage surveys was invalid because it violation. ----- In the Matter of Storm King placed respondent in the position of being “self- Construction, 27 BOLI 46, 54 (2005). incriminating” if it completed and returned the wage surveys. The forum interpreted this as a constitutional ‰ When there was no evidence of terms or conduct on the part of the agency that would clearly indicate an argument, which an authorized representative is not intention to renounce the agency’s authority to assess authorized to make. Even if respondent had properly civil penalties or place respondent on the raised the argument through counsel, the forum would commissioner’s list of ineligibles, the forum rejected have rejected it because the privilege against self- respondent’s defense of waiver. ----- In the Matter of incrimination is only applicable in criminal proceedings. - Labor Ready Northwest, Inc., 22 BOLI 252, 295 ---- In the Matter of Schneider Equipment, Inc., 21 (2001). BOLI 60, 74 (2000). Reversed in part, Labor Ready Northwest, Inc. v. ‰ Respondent argued that civil penalties could not be Bureau of Labor and Industries, 188 Or App 346, 71 assessed because there was no specific statutory cite in P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 the wage surveys authorizing the assessment of civil (2004). penalties in any amount for respondent’s failure to complete and return BOLI’s 1998 and 1999 wage ‰ Waiver is the intentional relinquishment of a known surveys. The forum held that respondent was clearly right. It must be plainly and unequivocally manifested, placed on notice of the law by the unequivocal language either in terms or by such conduct as clearly indicates an on both wage survey forms that completion and intention to renounce a known privilege or power. In submission of the wage surveys is required by Oregon general, the question of whether a waiver has occurred law, and a specific statutory cite of the type described by is resolved by examining the particular circumstances of respondent is not required by the law. ----- In the Matter each case. Waiver may be either explicit or implicit, that of Schneider Equipment, Inc., 21 BOLI 60, 74 (2000). is, implied from a party’s conduct. ----- In the Matter of Labor Ready Northwest, Inc., 22 BOLI 252, 293 ‰ Respondent argued that it should not be required to (2001). complete and return the 1998 and 1999 wage surveys because of a “lack of custody or control” by the agency, Reversed in part, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 as manifested by the agency’s contract with the P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 Employment Department to gather this information. The (2004). forum rejected this defense because ORS 279.359(4) specifically authorizes the commissioner to enter into ‰ The forum declined to adopt respondent’s theory of contracts with “public or private parties” such as the “waiver by estoppel,” holding that “waiver by estoppel” Employment Department to conduct wage surveys. ----- refers to estoppel and not waiver. ----- In the Matter of In the Matter of Schneider Equipment, Inc., 21 BOLI Labor Ready Northwest, Inc., 22 BOLI 252, 293 60, 74-75 (2000). (2001). ‰ Respondent argued that the commissioner’s Reversed in part, Labor Ready Northwest, Inc. v. prescribed timelines for completing BOLI’s 1998 and Bureau of Labor and Industries, 188 Or App 346, 71 P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 1999 wage surveys were unreasonable, given that (2004). respondent and other contractors were required to complete them in a short period of time during peak ‰ The forum rejected respondent’s argument that it construction season. In 1998, that prescribed timeline could not have determined from BOLI’s applicable was “two weeks”; in 1999 it was twenty-seven days. The prevailing wage rate book that its workers should have 1998 survey was due at the end of September 1998; the been classified as tenders to plasterers. ---- In the 1999 survey was due on September 15, 1999. The Matter of Labor Ready Northwest, Inc., 22 BOLI 245, forum concluded that the commissioner exercised his 284-85 (2001). discretion within the range of discretion delegated to him Reversed in part, Labor Ready Northwest, Inc. v. by law, that the commissioner’s action followed the Bureau of Labor and Industries, 188 Or App 346, 71 procedures prescribed by statute, and that the P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 substance of the commissioner’s action was reasonable.

VII - 42 PWR -- 19.0 EXEMPTIONS

----- In the Matter of Schneider Equipment, Inc., 21 that he was in compliance with the law did not constitute BOLI 60, 74-75 (2000). an “unintentional miscalculation” that excused his failure to pay the prevailing wage rate. ----- In the Matter of ‰ Respondent's argument that it did not violate ORS Loren Malcom, 6 BOLI 1, 11 (1986). 279.350(1) because the commissioner's classification of the workers as boilermakers was faulty in that it was ‰ When a contractor argued at hearing that his failure based on union jurisdictional agreements, rather than on to pay the prevailing wage rate was a bookkeeping error, a field survey of industry practices, was inapplicable. ----- and therefore not an intentional failure to pay, the forum In the Matter of Northwest Permastore Systems, Inc., found that this argument, even if true, would not be 20 BOLI 37, 55 (2000). successful. The forum stated that the definition of “willful” excludes “unintentional miscalculation,” but Affirmed, Northwest Permastore Systems v. Bureau of Labor and Industries, 172 Or App 427 (2001). found that the contractor’s bookkeeping error was far from an unintentional miscalculation when the contractor ‰ Respondent did not meet its burden of proving, as was aware of his obligation to pay the prevailing wage an affirmative defense, that the commissioner’s rate, was performing other public works contracts at the classification of standpipe erection workers as time, and incorrectly entered the rate of pay for six boilermakers was incorrect. ----- In the Matter of employees on six different time cards over a period of Northwest Permastore, 18 BOLI 1, 17-18 (1999), several months. ----- In the Matter of Loren Malcom, 6 reconsidered 20 BOLI 37 (2000). BOLI 1, 10 (1986). Affirmed, Northwest Permastore Systems v. Bureau ‰ When a contractor has violated ORS 279.350 by of Labor and Industries, 172 Or App 427 (2001). failing to pay the prevailing wage rate on a public project, ‰ Respondent’s affirmative defense that, whatever the the payment of fringe benefits and additional wages by union jurisdictional practice may be, the actual industry the contractor after an investigation by the Wage and practice in Oregon is to pay laborers’ wages to standpipe Hour Division of the agency is not a defense to failure to erection workers was not an available defense as a pay the prevailing wage rate. ----- In the Matter of P. matter of law. ----- In the Matter of Northwest Miller & Sons Contractors, Inc., 5 BOLI 149, 155 Permastore, 18 BOLI 1, 18 (1999), reconsidered 20 (1986). BOLI 37 (2000). ‰ A contractor testified he believed that the value of Affirmed, Northwest Permastore Systems v. Bureau providing a housing opportunity in a rehabilitated of Labor and Industries, 172 Or App 427 (2001). recreational vehicle park would be enough, when added to the hourly wage, to equal the prevailing wage rate, ‰ When respondent asserted the affirmative defense including fringe benefits. The forum rejected that that the commissioner had acted inconsistently with an defense to the charge of intentional failure to pay the established prior agency practice by proposing that civil prevailing wage rate because an employer has a duty to penalties be assessed against respondent, but did not know the wages due to an employee and ignorance of identify any prior agency practice that would have the law as to what qualifies as a fringe benefit is not an permitted it to pay laborers’ wages to its standpipe excuse and because there was no reasonable or erection workers, the forum held that respondent could objective basis for the supposed belief that providing a not prevail on this theory. ----- In the Matter of recreational vehicle park hook-up was worth the Northwest Permastore, 18 BOLI 1, 18 (1999), difference between the prevailing wage rate and what reconsidered 20 BOLI 37 (2000). the contractor was paying in actual wages. ----- In the Affirmed, Northwest Permastore Systems v. Bureau Matter of P. Miller & Sons Contractors, Inc., 5 BOLI of Labor and Industries, 172 Or App 427 (2001). 149, 159 (1986). ‰ A subcontractor that has intentionally failed to pay 19.0 EXEMPTIONS or post prevailing wage rates "shall be ineligible" for up ‰ Projects “for which the contract price does not to three years to receive any public works contract or exceed $25,000” and projects “regulated under the subcontract. It is no defense that, after an agency Davis-Bacon Act” are exempt from the provisions of investigation, the subcontractor paid the back wages ORS 279.348 to 279.380. There was no evidence owed. ----- In the Matter of Larson Construction Co., presented showing that the subject contracts were Inc., 17 BOLI 54, 75 (1998). regulated by the Davis-Bacon Act. However, both ‰ The prime contractor’s payment of the differential contracts involved individual contracts for less than between the prevailing wage rates and the lower wage $25,000, a fact which would make them exempt from rates paid by the respondent subcontractor to his 12 Oregon’s prevailing wage rate laws unless they were employees did not negate the subcontractor’s violation part of a larger “project” costing more than $25,000. of ORS 279.350(1). ----- In the Matter of Haskell ORS 279.357(1)(a). ----- In the Matter of Larson Tallent, 13 BOLI 273, 279-80 (1994). Construction Co., Inc., 22 BOLI 118, 153 (2001). ‰ A contractor’s late payment of the prevailing wage 20.0 STATUTORY INTERPRETATION rate to his workers after the “errors were pointed out” did ‰ When statutory interpretation is required, the forum not make his violation of ORS 279.350 unintentional. ---- must attempt to discern the legislature’s intent. To do - In the Matter of Loren Malcom, 6 BOLI 1, 11 (1986). that, the forum first examines the text and context of the ‰ When a contractor testified that he knew of the statute. The text of the statutory provision itself is the requirement to pay the prevailing wage rate, his “feeling” starting point for interpretation and the best evidence of

VII - 43 PWR -- 21.0 AGENCY RULE INTERPRETATION the legislature’s intent. Also relevant is the context of plausible and cannot be shown to be inconsistent with the statutory provision, which includes other provisions the wording of the rule itself, or with any other source of of the same statute and other related statutes. If the law, the agency’s interpretation is entitled to deference. - legislature’s intent is clear from the text and context of ---- In the Matter of Larson Construction Co., Inc., 22 the statutory provision, further inquiry is unnecessary. --- BOLI 118, 152 (2001). -- In the Matter of Labor Ready Northwest, Inc., 22 BOLI 245, 281 (2001). ‰ When the agency’s written interpretation of its rule drew a common sense distinction between demolition Reversed in part, Labor Ready Northwest, Inc. v. that is merely destruction of a structure and demolition Bureau of Labor and Industries, 188 Or App 346, 71 that is connected with construction, reconstruction, or P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 renovation subject to prevailing wage rate laws that (2004). cannot occur until an existing structure has been See also In the Matter of Larson Construction Co., Inc., demolished, the forum found this was a plausible 22 BOLI 118, 162 (2001). interpretation that was neither inconsistent with the wording of the rule or any other source of law. The ‰ ORS 174.010 limits the forum’s role in construing statutes “simply to ascertain[ing] and declar[ing] what is, forum relied on the agency’s interpretation regarding in terms or in substance, contained therein, not to insert when demolition work is subject to Oregon’s prevailing what has been omitted, or to omit what has been wage rate laws in determining whether the subject inserted[.]” ----- In the Matter of Labor Ready contract fell within the category of “public works.” ----- In Northwest, Inc., 22 BOLI 252, 282(2001). the Matter of Larson Construction Co., Inc., 22 BOLI 118, 152-53 (2001). Reversed in part, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 (2004). ‰ The forum rejected respondent’s argument that it erred by relying on a strictly textual analysis of ORS 279.350(4), stating that if the legislative intent can be determined from the wording of the statute, no further inquiry is permissible. ----- In the Matter of Labor Ready Northwest, Inc., 22 BOLI 252, 282 (2001). Reversed in part, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 (2004). ‰ The forum rejected respondent’s argument that the forum’s interpretation would lead to absurd results, holding that when legislative intent is clear from an inquiry into text and context, the forum may not apply the absurd-result maxim. ----- In the Matter of Labor Ready Northwest, Inc., 22 BOLI 252, 282 (2001). Reversed in part, Labor Ready Northwest, Inc. v. Bureau of Labor and Industries, 188 Or App 346, 71 P3d 559 (2003), rev den 336 Or 534, 88 P3d 280 (2004). 21.0 AGENCY RULE INTERPRETATION ‰ Former OAR 839-016-0540(3)(a) establishes a minimum, not an upper limit, on the commissioner’s authority to determine an appropriate civil penalty. ----- In the Matter of Labor Ready Northwest, Inc., 28 BOLI 91, 116 (2007). Appeal pending. See also In the Matter of Labor Ready Northwest, Inc., 28 BOLI 47, 75 (2007), appeal pending. ‰ This forum and Oregon’s appellate courts have previously held that an agency may apply a policy interpretation established at a contested case hearing to matters that are the subject of the case. ----- In the Matter of Larson Construction Co., Inc., 22 BOLI 118, 152 (2001). ‰ When an agency’s interpretation of its own rule is

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