Oregon Revised Statutes Chapter 651 § 651.090 — Discussion communications; rules

Discussion communications; rules. (1) As used in this section: (a) “Advisory opinion” has the meaning given that term in ORS 651.100. (b)(A) “Discussion communications” means: (i) All communications, written and oral, that are made in the course of or in connection with a discussion between an employer and the Employer Assistance Division of the Bureau of Labor and Industries. (ii) All memoranda, work products, documents and other materials that are prepared for or submitted in the course of or in connection with a discussion between an employer and the division. (B) “Discussion communications” does not mean written or oral communications that occur after an employer has requested an advisory opinion. (c)(A) “Penalty” includes but is not limited to: (i) A financial sanction imposed by the Bureau of Labor and Industries for a violation of law and due and owing to the bureau or the State of Oregon; and (ii) Civil penalties described in ORS 652.035, 652.100, 652.710, 652.900, 653.256, 653.261, 653.370, 653.432, 659A.370, 659A.390, 659A.419, 659A.550 and 659A.855. (B) “Penalty” does not include moneys owing to an employee, including, but not limited to: (i) Wages described in ORS 652.150 or 653.055; (ii) The civil penalty for issuing a dishonored check for payment of wages as described in ORS 652.195; (iii) Liquidated damages described under ORS 279C.855 or 653.258; or (iv) The remedies described in ORS 659A.850. (d) “Requesting employer” means an employer that requests assistance from the division. (2) Discussion communications made under this section: (a) Are not subject to disclosure under ORS 192.311 to 192.478. (b) Except as provided in subsection (4) of this section, are not admissible as evidence in any subsequent adjudicatory proceeding conducted by the bureau and may not be disclosed in any subsequent adjudicatory proceeding conducted by the bureau. (3) Unless otherwise required by law, the division may not disclose the identity of a requesting employer as a requesting employer to any other regulatory body or any other division within the bureau. (4)(a) The prohibitions against disclosure under subsection (2) or (3) of this section do not apply to this subsection. (b) Discussion communications may be disclosed and admitted as evidence in a subsequent adjudicatory proceeding conducted by the bureau when offered by the requesting employer who participated in the discussion to show that the employer acted in good faith and in reliance on the communications. (5)(a) Except as provided in paragraph (b) of this subsection, the bureau may not impose a penalty on a requesting employer for any good faith action taken in reliance on discussion communications in which the employer has participated. A requesting employer seeking application of this paragraph bears the burden of proving that: (A) The discussion communications applied the same law that was in effect at the time that the employer took the good faith actions; and (B) The discussion communications involved the same or substantially similar facts such that it was reasonable for the employer to have relied on the discussion communications in taking good faith actions. (b) Paragraph (a) of this subsection does not apply if the bureau determines that the requesting employer omitted or misstated material facts during the course of or in connection with the discussion. (6) The Bureau of Labor and Industries may adopt rules to implement and enforce this section. [2025 c.22 §3]