Or. Admin. R. 839-050-0330

Current through Register Vol. 63, No. 9, September 1, 2024

Section 839-050-0330 - Default

(1) Default may occur when:

(a) A party fails to file a required response, including a request for hearing or an answer, within the time specified in the charging document;

(b) A party withdraws a request for hearing;

(c) The Forum has scheduled a hearing and a party notifies the Agency or the Administrative Law Judge that the party will not appear at the specified time and place; or

(d) Notice regarding the time and place of the hearing was sent to the party and the party fails to appear at the scheduled hearing.

(2) When the Agency has designated the Agency file, including all the materials submitted by a party, as the record in its charging document:

(a) If a circumstance described in (1)(b) or (c) of this rule occurs, the Administrative Law Judge will issue an order dismissing the party's request for hearing.

(b) If the circumstance described in (1)(d) of this rule occurs, the Administrative Law Judge will wait no longer than 30 minutes from the time set for the contested case proceeding before orally dismissing the party's request for hearing. The Administrative Law Judge will subsequently issue a written order dismissing the party's request for hearing.

(c) When section (2)(a) or (b) of this rule applies, the Administrative Law Judge will refer the case to the Administrator of the Wage and Hour Division for issuance of a Final Order by Default. The Administrative Law Judge will prepare the Record of Proceeding of the contested case, including all materials filed with the Forum by the Agency or the party up to the time set for hearing and submit it to the Contested Case Coordinator for delivery to the Wage and Hour Administrator.

(d) If the circumstances described in (1)(d) of this rule occur, and before issuing a final order dismissing the party's request for hearing, the Administrative Law Judge finds that the party had good cause for not appearing, the Administrative Law Judge may not dismiss the party's request for hearing and will schedule a new hearing date. If the reasons for the party's failure to appear are in dispute, the Administrative Law Judge will schedule a hearing on the reasons for the party's failure to appear.

(3) When the Agency has not designated the Agency file as the record in its charging document, and a circumstance described in (1)(b)-(d) of this rule occurs and the Administrative Law Judge has not granted relief from default, the Administrative Law Judge will take evidence of a prima facie case from the Agency at hearing. The Administrative Law Judge will not permit the defaulted party to participate in any manner in the hearing, including, but not limited to, presentation of witnesses or evidence on the party's own behalf, examination of Agency witnesses, objection to evidence presented by the Agency, making of motions or argument, or filing exceptions to the Proposed Order.

Or. Admin. R. 839-050-0330

BL 8-1986, f. & ef. 9-2-86; BL 4-1987, f. 2-11-87, ef. 2-13-87; BL 4-1993(Temp), f. 4-7-93, cert. ef. 4-12-93; BL 8-1993, f. & cert. ef. 9-3-93, Renumbered from 839-030-0185; BL 12-1996, f. & cert. ef. 12-10-96; BLI 2-2000, f. & cert. ef. 1-27-00; BLI 15-2004, f. 11-1-04, cert. ef. 11-3-04; BLI 5-2014, f. & cert. ef. 4-15-14; BLI 10-2014, f. & cert. ef. 9-4-14; BLI 8-2019, amend filed 07/01/2019, effective7/1/2019

Statutory/Other Authority: ORS chapter 183 & ORS 651.060(4)

Statutes/Other Implemented: ORS 279C.860, 279C.865, 652.332(3), 653.065(1), 658.115, 658.407(3), 658.820, 659A.845 & 659A.850