Or. Admin. R. 839-001-0515 - Factors to Be Considered in Making Determinations Related to Eligibility for Payment from the Wage Security Fund When Employer Has Closed

(1) In determining that an employer has ceased doing business the Commissioner may consider:

(a) Whether the business premises are no longer occupied by the employer;

(b) Whether business operations are being conducted;

(c) Whether customers of the employer are being served;

(d) Whether the employer is employing employees;

(e) Any other information indicating whether the business has ceased its operations.

(2) In determining that an employer is without sufficient assets to fully and promptly pay the wage claim at the cessation of business, the Commissioner may consider:

(a) Whether the debts of the employer exceed the total amount of assets;

(b) Whether the liquid assets of the employer are not sufficient to pay the wages due;

(c) Whether the accounts receivable of the employer are not sufficient to pay the wages due;

(d) Whether the claims of a secured creditor on the assets of the employer would exceed the amount due in wages;

(e) Whether the employer has filed for protection under the Bankruptcy Code (The filing of bankruptcy in and of itself does not determine the insufficiency of assets.);

(f) Whether the assets of the employer are in the process of being involuntarily liquidated;

(g) Any other information indicating that the assets of the employer are insufficient to promptly pay the wage claim at the cessation of business.

(3) In determining that a wage claim cannot otherwise be fully and promptly paid the Commissioner may consider:

(a) Whether the employee has a right of claim against a bond or deposit held by the employer, which may be used for the purpose of paying wage claims;

(b) Whether the business is in receivership and the type of receivership;

(c) Whether there is a successor to the employer's business;

(d) Any other information indicating that the wage claim cannot otherwise be fully and promptly paid.

(4) In determining that the wage claim is valid the Commissioner may consider:

(a) Whether there is judgment of the court;

(b) Whether there is a final administrative order issued pursuant to statute or rule;

(c) Whether the employer acknowledges the amount of wages owed;

(d) The results of the Division's investigation of the wage claim;

(e) Any other information indicating that the wage claim is valid.

Notes

Or. Admin. R. 839-001-0515

BL 5-1986, f. 6-20-86, ef. 7-1-86; BLI 26-2009, f. 12-1-09, cert. ef. 1-1-10; BLI 13-2021, temporary amend filed 08/06/2021, effective 8/6/2021through 2/1/2022; BLI 1-2022, amend filed 03/21/2022, effective 4/1/2022

Publications: Publications referenced are available from the agency.

Statutory/Other Authority: ORS 651.060(4), ORS 652.414, ORS 652.414(6) & ORS 652

Statutes/Other Implemented: House Bill 2818, 2021