OR OP-2004-1 2004-01-05

Are inmates and youth offenders working in Oregon city, county, and state correctional programs covered by Oregon OSHA?

Short answer: It depends. The 2004 AG opinion concluded that adult jail inmates were covered by OR-OSHA only if the city or county had elected workers'-compensation coverage for them under ORS 656.041(2). Without that election, inmates were 'conscripts,' not employees, and OR-OSHA had no jurisdiction. Youth offenders working under ORS 420.060 to 420.074 were covered if their employer elected (or was required to provide) workers'-comp coverage or the youth was subject to the employer's direction and control.

Disclaimer: This is an official Oregon Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Oregon attorney for advice on your specific situation.

Plain-English summary

OR-OSHA's enforcement manager asked whether inmates working in city, county, and state correctional programs were covered by Oregon's occupational safety and health laws.

The AG's analysis turned on a definitional chain. OR-OSHA jurisdiction reaches "places of employment" where "employees" work. ORS 654.025; ORS 654.005(8). An "employee" is defined to include any individual provided with workers' compensation coverage under ORS chapter 656, "whether by operation of law or by election." ORS 654.005(4). So jurisdictional reach was tied to the workers' comp coverage status of the worker.

For city and county jail inmates, ORS 656.041(2) lets the city or county elect to treat working inmates as subject workers, which compels workers' comp coverage. The AG concluded that:

If the city/county elected coverage: the inmate became a subject worker, so an "employee" under ORS 654.005(4), and OR-OSHA had jurisdiction over the worksite.
If no election: the inmate was not an "employee" under the workers' comp definitional chain. The AG cited Westfall v. Multnomah County, 57 Or App 459 (1982), which held that an inmate on a county work crew was not a subject worker absent an ORS 656.041 election because the inmate was a "conscript," not an employee. Without an employee, no place of employment, no OR-OSHA jurisdiction. The AG also confirmed that no other Oregon statute imposed an injury/illness recordkeeping duty on entities using inmate labor outside the OSHA framework.

The reasoning rested on the workers' comp definition's "engage to furnish services for a remuneration" language. ORS 656.005(30) and the parallel ORS 654.005(4). "Engage" in the work context implies an agreement to serve. Hopkins v. Kobos Co., 186 Or App 273 (2003). Inmates compelled to work as a condition of incarceration are not engaging in employment; they are conscripts. Westfall, 57 Or App at 462. Article I, section 41(6) of the Oregon Constitution gives cities and counties authority to compel inmates into work and on-the-job-training programs, which underscored the involuntary character.

For youth offenders working under ORS 420.060 to 420.074, the analysis was different because ORS 420.074 expressly extended the protections of ORS chapters 652 (wage payment), 654 (OSHA), and 656 (workers' comp) "to the same extent as other employees of their employer under 21." That statute removed the conscript-status barrier; the offender's work-program status did not strip OR-OSHA jurisdiction. But OR-OSHA still had to show that the youth met the ORS 654.005(4) employee definition. So the test on the ground:

Did the employer elect (or was the employer required to provide) workers' comp coverage under ORS chapter 656? OR
Was the youth subject to the direction and control of the employer?

If either, OR-OSHA had jurisdiction. The AG was careful to point out that ORS 420.074 was the bridge that made the youth-offender analysis tractable. Without that statute, the same conscript-versus-employee problem from Westfall would have applied.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

OR-OSHA's enforcement reach is defined in ORS 654.025 and OAR 437-001-0020 by the concept of a "place of employment." "Place of employment" is "essentially anywhere employees actually or potentially work." ORS 654.005(8). The definition of "employee" in ORS 654.005(4) is the gatekeeper: an individual is an employee for OSHA purposes if they are "provided with workers' compensation coverage as a subject worker pursuant to ORS chapter 656, whether by operation of law or by election."

That cross-reference makes the OSHA analysis depend on the workers' comp analysis. Workers' comp coverage for jail inmates was governed by ORS 656.041(2), which lets a city or county elect to treat jail inmates performing authorized employment as subject workers. The election triggers the employer obligations in ORS 656.017 to 656.174.

The conscript point came from Westfall. An inmate injured on a county work crew sued for workers' comp benefits. The court held that the inmate was not a subject worker because the county had not made an ORS 656.041 election; the inmate was performing labor as a condition of incarceration, which made him a conscript rather than an employee.

Article I, section 41(6) of the Oregon Constitution confirmed the conscript framing. That subsection grants cities and counties authority to compel inmates to engage in work and on-the-job-training programs. ORS 169.170 to 169.320 fleshes out the operational details for sheriffs and jails.

For youth offenders, ORS 420.074 worked differently. The statute expressly entitled youth offenders working under ORS 420.060 to 420.074 to "the protection and benefits of ORS chapters 652, 654 and 656 to the same extent as other employees of their employer under 21," with two carve-outs about wage payment to the superintendent under ORS 420.065(2) and the treatment of workers' comp benefits as the offender's earnings. So the OSHA framework formally reached the youth offender's work, and the only question left was whether the youth met the ORS 654.005(4) employee definition: workers' comp coverage by election or operation of law, or direction and control by the employer.

The interpretive method was PGE v. BOLI, 317 Or 606 (1993): text first, then context, ending the inquiry when text and context unambiguously disclose intent.

Common questions

Q: At the time of this opinion, did OR-OSHA cover working jail inmates by default?
A: No. Coverage required an ORS 656.041(2) election by the city or county to treat the inmates as subject workers for workers' comp purposes. The election made them "employees" under the OR-OSHA jurisdictional definition; without it, they were "conscripts."

Q: What did "election" actually do?
A: It pulled inmates inside the workers' compensation regime as subject workers and obligated the city or county to provide workers' comp coverage. That covered worker status was the chain link that triggered OR-OSHA jurisdiction under ORS 654.005(4).

Q: Were entities using inmate labor required to keep injury logs even if OR-OSHA didn't reach them?
A: The opinion concluded no. The AG identified no separate Oregon statute imposing an injury and illness recordkeeping duty outside OSHA. If OSHA didn't apply, the OSHA 300 log requirement didn't apply either.

Q: Why did the youth-offender analysis come out differently?
A: ORS 420.074 explicitly entitled youth offenders to the protections of ORS chapters 652, 654, and 656 like any other under-21 employee of the employer. That statutory bridge avoided the conscript problem from Westfall. The youth still had to meet the ORS 654.005(4) employee definition to trigger OSHA, but the path was open.

Q: What was the legal significance of being a "conscript"?
A: A person compelled by law to perform labor as a condition of incarceration does not "engage to furnish services for a remuneration," which is the gateway to subject-worker status under ORS 656.005(30). Westfall held this directly; the AG followed it. The conscript framing also fit Article I, section 41(6) of the Oregon Constitution, which authorizes compelled inmate labor.

Q: Did it matter whether the inmate was paid?
A: The AG concluded that compensation alone was not enough. Inmates compelled to work as a condition of incarceration did not "engage to furnish services for remuneration" regardless of whether they received compensation. The compelled nature of the labor was decisive.

Q: How did the AG handle the youth-offender direction-and-control test?
A: That test came from ORS 654.005(4)'s definition of employee. If the employer was not required to provide workers' comp but the youth was nonetheless under the employer's direction and control, OR-OSHA still had jurisdiction. The opinion did not catalog the direction-and-control factors; that was a fact-specific inquiry.

Citations and references

Statutes and rules:

ORS 169.005(7); ORS 169.170 to 169.320 (city/county jails and prisoner work)
ORS 420.060 to 420.074 (youth offender employment program)
ORS 420.065(2); ORS 420.074 (wage payment and OSHA/workers' comp protections)
ORS 652, 654, 656 (wage payment, OSHA, workers' comp chapters)
ORS 654.005(4) (definition of "employee" for OSHA purposes)
ORS 654.005(8) (definition of "place of employment")
ORS 654.025 (OR-OSHA jurisdiction)
ORS 656.005(30) ("engage to furnish services for a remuneration")
ORS 656.041 (city/county election for inmate coverage)
ORS 656.041(1)(b) (defining "inmate" by reference)
Or. Const. art. I, § 41(6) (constitutional authority for compelled inmate labor)
OAR 437-001-0020 (delegation of OSHA enforcement)

Cases:

PGE v. BOLI, 317 Or 606 (1993), Oregon statutory construction methodology
Hopkins v. Kobos Co., 186 Or App 273 (2003), "engage to furnish services for a remuneration" requires an agreement
Astleford v. SAIF, 319 Or 225 (1994), context includes related provisions
ODOT v. City of Klamath Falls, 177 Or App 1 (2001), interpreting administrative rules with related rules in context
Westfall v. Multnomah County, 57 Or App 459 (1982), inmate on county work crew was a conscript, not a subject worker

Source

Original opinion text

HARDY MYERS

PETER D. SHEPHERD

Attorney General

Deputy Attorney General

DEPARTMENT OF JUSTICE
GENERAL COUNSEL DIVISION

January 5, 2004

Barry Jones, Manager of Enforcement
Oregon Occupational Safety and Health Division
350 Winter St, NE, Room 430
Salem OR 97301-3882
Re:

Opinion Request OP-2004-1

Dear Mr. Jones:

David Sparks, Special Assistant to the Administrator, Oregon Occupational Safety and Health Division of the Department of Consumer and Business Services (OR-OSHA), asked three questions about OR-OSHA's jurisdiction over inmates participating in prison work programs. We set out the questions asked and our short answers below, followed by our analysis.

In those situations where a city or county government in Oregon elects to provide workers' compensation coverage for inmates in accordance with ORS 656.041, do Oregon's occupational safety and health laws apply to those inmates by virtue of this election?

Yes.

In those situations where a city or county government has not elected to provide workers' compensation coverage for inmates, do Oregon's occupational safety and health laws apply to the inmates? Apart from occupational safety and health statutes, is there a separate legal obligation for an entity using and directing inmate labor to record injuries and illnesses of that labor in the OSHA 300 log?

No. Without election by a city or county government, the state's occupational safety and health laws do not apply to inmates. Our research has not identified any legal obligation to record injuries and illnesses for an entity using and directing inmate labor apart from occupational safety and health laws.

When youth offenders (under age 21) are temporarily employed per ORS 420.060 to 420.074, do Oregon's occupational safety and health laws apply to the youth offenders?

Oregon's occupational safety and health laws apply to youth offenders if the employer elects or is required to provide workers' compensation coverage for them under ORS chapter 656 or if the youth are subject to the direction and control of the employer.

Discussion

Applicability of Oregon occupational safety and health laws if a city or county elects to provide workers' compensation coverage to inmates under ORS 656.041.

Pursuant to a delegation of authority from the Director of the Oregon Department of Consumer and Business Services to the OR-OSHA Administrator, OR-OSHA has jurisdiction over all places of employment. ORS 654.025; OAR 437-001-0020. A place of employment is essentially anywhere employees actually or potentially work. ORS 654.005(8). "Employee" is defined to include "any individual who is provided with workers' compensation coverage as a subject worker pursuant to ORS chapter 656, whether by operation of law or by election." ORS 654.005(4).

ORS 656.041(2) provides that a city or county may elect to have inmates performing authorized employment considered as subject workers of the city or county for purposes of ORS chapter 656. If the city or county makes such an election, the city or county must provide workers' compensation coverage for those inmates that are considered subject workers for purposes of ORS chapter 656. ORS 656.017 to 656.174.

OR-OSHA, therefore, has jurisdiction over those inmates performing authorized employment for whom the city or county has elected to provide workers' compensation coverage, because those inmates are considered employees under ORS 654.005(4) and the area where the work is being performed is considered a place of employment under ORS 654.005(8).

In summary, the election by the city or county under ORS 656.041(2) makes the inmates subject workers when performing authorized employment and thereby compels workers' compensation coverage, which triggers OR-OSHA jurisdiction.

Applicability of Oregon occupational safety and health laws if city or county does not provide workers' compensation coverage.

The analysis for determining the applicability of Oregon occupational safety and health laws to city and county jail inmates begins with noting that both the definition of "employee" under ORS 654.005(4) and "worker" under 656.005(30) require the person to "engage to furnish services for a remuneration." The first step in analyzing any rule or statute is to examine the text and context using rules of statutory construction, and if the intent of the rule is clear from that analysis, then no further examination is undertaken. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).

"Engage" in the work context means "to arrange to obtain the services of usu. for a wage or fee; * * * to enter (oneself) into an agreement to serve." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 751 (unabridged 1993). Thus, "engage to furnish services for a remuneration" requires an agreement or contract for hire between the worker and the employer. See, e.g., Hopkins v. Kobos Co., 186 Or App 273, 276-277, 62 P3d 870 (2003) (phrase "engage to furnish services for a remuneration" in ORS 656.005(30) requires agreement between claimant and employer that employer will provide remuneration for claimant's services). The context of ORS chapter 656 also supports this conclusion since otherwise the election provisions in ORS 656.041(2) would be meaningless. See, e.g., Astleford v. SAIF, 319 Or 225, 230, 874 P2d 1329 (1994) (in first level of analysis under PGE framework of statutory interpretation, court considers both statutory provision's text and context, with context including other provisions of same statute and other statutes relating to same subject); ODOT v. City of Klamath Falls, 177 Or App 1, 8, 34 P3d 667 (2001) (in interpreting meaning of administrative rule, court considered effect of interpretation on related rule).

Inmates of a city or county correctional facility who participate in work release programs are compelled by law to provide labor as a condition of incarceration and, therefore, do not "engage to furnish services for remuneration" regardless of whether the inmates receive any compensation. See ORS 169.170 to 169.320 (assignment of city and county prisoners to public works and sheriff's control over prisoners; work by prisoners); see also Or Const., Art I §41(6) (grants cities and counties authority to compel inmates to engage in work and on-the-job training programs). In Westfall v. Multnomah County, 57 Or App 459, 645 P2d 561 (1982), the court directly addressed this issue with regard to workers' compensation coverage for an inmate on a county work crew. The Westfall court held that an inmate who was injured while working on a county work crew was not a "subject worker" covered under the Workers' Compensation Act because the county did not file an election of coverage under ORS 656.041. The court concluded that inmates are required to work because of their status as prisoners, making them "conscripts," not employees. Westfall, 57 Or App at 462.

As already stated in our short answer to this question, we have not identified any legal obligation to record injuries and illnesses for an entity using and directing inmate labor apart from requirements found in the occupational safety and health laws. Therefore, OR-OSHA would not have jurisdiction where the city or county has not elected to provide workers' compensation coverage for inmates under ORS 656.041(2), because the inmates would not be considered employees under ORS 654.005(4).

Applicability of Oregon occupational safety and health laws to youth offenders engaged in temporary employment under ORS 420.060 to 420.074.

ORS 420.074 provides that:

"While temporarily employed under the provisions of ORS 420.060 to 420.074, youth offenders placed in a youth correction facility are entitled to the protection and benefits of ORS chapters 652, 654 and 656 to the same extent as other employees of their employer under 21, except that:

(1) Payment of wages by an employer of a youth offender directly to the superintendent as provided by ORS 420.065 (2) shall not be deemed in violation of ORS chapter 652; and

(2) Compensation paid under ORS chapter 656 that is not expended on medical services shall be treated in the same manner as the youth offender's earnings under ORS 420.065, so long as the youth offender remains in the legal custody of the youth correction facility."

ORS 420.060 to 420.074 authorize an employment program for youth offenders placed in a youth correctional facility. It is clear under ORS 420.074 that when youth offenders are permitted to work under that program, the protections of Oregon's Occupational Safety and Health Act, ORS chapter 654, apply to the same extent as for non-offender youth employees. Thus, the offender status of the youth worker and the lack of a true contract for employment do not prevent OR-OSHA from asserting jurisdiction, as would normally be the case for inmates. In order to establish jurisdiction, OR-OSHA must still prove, however, that the youth is otherwise an "employee" under ORS 654.005(4), i.e. that the employer has elected or is required to provide workers' compensation coverage under ORS chapter 656 or that the youth is subject to the direction and control of the employer.

Sincerely,

Donald C. Arnold
Chief Counsel
General Counsel Division
KJM:rgs:naw/GENH6402

1/ As used in this Letter of Advice, the term "inmate" encompasses and includes, without limitation, those persons identified in ORS 656.041(1)(b) and ORS 169.005(7).