Oregon Statutes 659A.870 – Election of remedies
(1) Except as provided in this section, the filing of a civil action by a person in circuit court pursuant to ORS § 659A.885, or in federal district court under applicable federal law, waives the right of the person to file a complaint with the Commissioner of the Bureau of Labor and Industries under ORS § 659A.820 with respect to the matters alleged in the civil action.
Terms Used In Oregon Statutes 659A.870
- Bureau: means the Bureau of Labor and Industries. See Oregon Statutes 659A.001
- Commissioner: means the Commissioner of the Bureau of Labor and Industries. See Oregon Statutes 659A.001
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Employer: means any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed. See Oregon Statutes 659A.001
- Person: includes individuals, corporations, associations, firms, partnerships, limited liability companies and joint stock companies. See Oregon Statutes 174.100
- Precedent: A court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way.
- Respondent: means any person against whom a complaint or charge of an unlawful practice is filed with the commissioner or whose name has been added to such complaint or charge pursuant to ORS § 659A. See Oregon Statutes 659A.001
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
- Unlawful practice: includes a practice that is specifically denominated in another statute of this state as an unlawful practice and that is specifically made subject to enforcement under this chapter, or a practice that violates a rule adopted by the commissioner for the enforcement of the provisions of this chapter. See Oregon Statutes 659A.001
(2) The filing of a complaint under ORS § 659A.820 is not a condition precedent to the filing of any civil action.
(3) If a person files a civil action alleging an unlawful practice under ORS § 659A.145 or 659A.421 or discrimination under federal housing law, the filing does not constitute an election of remedies or a waiver of the right of the person to file a complaint with the commissioner under ORS § 659A.820, but the commissioner shall dismiss the complaint upon the commencement of a trial in the civil action.
(4) If a person files a complaint under ORS § 659A.820 alleging a violation of ORS § 652.220 and the commissioner issues a final order in favor of the complainant, the commissioner shall require the employer to pay an award of back pay for the lesser of:
(a) The two-year period immediately preceding the filing of the complaint plus the period of time commencing with the date on which the complaint is filed and ending on the date on which the commissioner issued the order; or
(b) The period of time the complainant was subject to an unlawful wage differential by the employer plus the period of time commencing with the date on which the complaint is filed and ending on the date on which the commissioner issued the order.
(5)(a) The filing of a complaint under ORS § 659A.820 by a person alleging an unlawful practice under ORS § 659A.145 or 659A.421 or discrimination under federal housing law does not constitute an election of remedies or a waiver of the right of the person to file a civil action with respect to the same matters, but a civil action may not be filed after a hearing officer has commenced a hearing on the record under this chapter with respect to the allegations of the complaint.
(b) A respondent or complainant named in a complaint filed under ORS § 659A.820 or 659A.825 alleging an unlawful practice under ORS § 659A.145 or 659A.421 or discrimination under federal housing law may elect to have the matter heard in circuit court under ORS § 659A.885. The election must be made in writing and received by the commissioner within 20 days after service of formal charges under ORS § 659A.845. If the respondent or the complainant makes the election, the commissioner shall pursue the matter in court on behalf of the complainant at no cost to the complainant.
(c) If the Attorney General or the commissioner files a complaint under ORS § 659A.825, the Attorney General or the commissioner may elect to have the matter heard in circuit court under ORS § 659A.885.
(d) If the respondent, the complainant, the Attorney General or the commissioner do not elect to have the matter heard in circuit court, the commissioner may conduct a hearing on the formal charges under ORS § 659A.850.
(6) A person who has filed a complaint under ORS § 659A.820 need not receive a 90-day notice under ORS § 659A.880 before commencing a civil action that is based on the same matters alleged in the complaint filed with the commissioner.
(7) Except as provided in subsections (3) and (5) of this section, this section does not limit or alter in any way the authority or power of the commissioner, or limit or alter in any way any of the rights of an individual complainant, until and unless the complainant commences a civil action. [2001 c.621 § 12; 2007 c.903 § 12; 2008 c.36 § 13; 2015 c.609 2,5; 2017 c.197 6,7]