Oregon Personal Injury Lawyer Blog

Fast food restaurants provide first jobs for many young men and women. Too-often, wide-eyed, teenagers do not understand their employment rights and, otherwise, are naive. This makes them perfect victims for abuse by managers. With luck, news of the $2 million dollars paid by Sonic Drive-In to settle sexual harassment and retaliation claims will cause business owners to (1) train managers and workers, (2) respond properly to worker complaints, and (3) enforce the law without "help" from the EEOC and attorneys like myself.

This post summarizes the case and sets forth general legal guidelines on unlawful harassment and retaliation cases.

The EEOC announced the $2 million settlement, which was based upon the conduct of Robert Gomez, a manager and limited partner of the company. The EEOC said he harassed many women - over 70 women - with sexual innuendo, touching and sexual comments. When women objected, things got worse for them. The employer even cut their hours of work.

Harassment because of gender, race, age, or other protected activity is simply another form of unlawful employment discrimination. Often, we think of discrimination in terms of hiring or firing. But differences in "terms and conditions of employment" for illegal reasons also equals discrimination. If, for example, the women get the crummier jobs, then that could be unlawful discrimination. If only the women have to put up with verbal abuse, than that's unlawful discrimination

Retaliation is an employer's "pay back" if an employee opposes or objects to practices that he or she believes is unlawful. Even if the employee is not correct, if the employee reasonably believes that an employer is violating the law, raises the issue, and then suffers negative employment consequences, that's against Oregon law.

This EEOC settlement involved a boss. When a boss is involved, then (generally) the business is responsible. If, however, a non-management co-worker is causing the problems, then the business might not be legally liable if management does not know you are suffering. If you suffer in silence, you have a much tougher case to prove. Instead, you must let management know about sexual or other harassment. When the company knows, it must respond; it must take immediate and appropriate corrective action. If it does not, then you can sue the company.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Last week, Oregon's Governor John Kitzhaber signed a law controlling arbitration agreements between employers and employees. This post discusses (1) the purpose of arbitration agreements, (2) the changes to Oregon's Law, and (3) a tip for something to consider when representing employees against employers.

First, arbitration agreements deprive employees to their right to have a judge and jury decide their disputes. Instead, one person makes the decision. Sometimes the agreement imposed upon the employee dictate the agency to conduct the arbitration, such as the American Arbitration Association. Among the problems with specifying the AAA is that the AAA offers a very small pool of employment law arbitrators. The employee will never be a repeat customer of an arbitrator. A big company is likely to be a repeat customer. This, I believe, creates a strong incentive for the arbitrator to shade his or her ruling in favor of the employer. If an arbitrator awards a large amount to an employee, then the employer is less likely to pick that arbitrator in the future.

HB 3450 (2011) amends the existing law controlling arbitration agreements. It makes it easier for employers. Previously, the employer had to give the employee the agreement to consider two weeks before employment. ORS 36.620 (2007). Now, 72 hours notice is enough. The new law also provides a form of acknowledgment that must be included in the agreement. This will provide a "safe harbor:" if the language is in the agreement, the agreement is more likely to be enforceable. The amendment becomes effective January 1, 2012.

There is some dispute about the enforceability of Oregon's law in light of the Federal Arbitration Act. I wrote about this previously.

But here's the tip for employees. Read the arbitration agreement. How broad is it? Can you, THE EMPLOYEE, require the employer to go to arbitration if you've been demoted or, otherwise, have been aggrieved by the employer? Typically, it is the employer who drags out the arbitration agreement after it fired someone and the employee wants to sue. It's time to make arbitration agreements a "double-edged sword" whenever possible.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

I tell my litigation clients, "I HOPE the attorney for the other side is a really good attorney." That's because a good attorney will know the law, understand the how the facts fit in, and properly counsel their client on the risks and benefits of proceeding with each phase of the litigation. Dumb and / or inexperienced lawyers only increase the cost of litigation, which only benefits the attorneys.

I'm involved in a case now that should never have gone to court. The opposing party should have paid my client. We asked for the correct amount, which was far less then the costs of litigation. We had to sue. A good attorney would have told the defendant to pay the amount due on time. Maybe he did, and the client ignored him. I don't know.

The amount was small. In Oregon, a case under $50,000 must first go through an arbitration process. We won at arbitration. Now, the other side owes us attorney fees far in excess of the amount the defendant owes my client. A good attorney would have told his client to pay the award, and maybe he did. But the defendant appealed, which will only cost the defendant more money for attorney fees.

The Oregon State Bar regulates lawyers. If an attorney takes Ten Cents from a client trust account, he or she is in big trouble. If an attorney costs someone several thousands of dollars because of bad advice. . . ., then it's usually up to the client sue for legal malpractice.

I think the Oregon State Bar should have a program for identifying substandard lawyers. Once identified, the attorneys should get additional training. If their substandard practice continues, we should yank their licenses to practice law.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

Members of the Oregon State Bar must have legal malpractice insurance through the Professional Liability Fund. The minimum coverage is $300,000. (Patent attorneys can practice with permission from the US Patent office, and need not be members of the Oregon State Bar, and they may or may not have insurance.) Although the attorney is responsible for the care of the client, sometimes it is someone in the office who screwed up. This post discusses when mistakes are covered by the Oregon attorney's malpractice insurance.

A too-common error is serving a complaint late - missing the statute of limitations (or missing some other time deadline). Sometimes, it is a secretary or assistant who makes the mistake. Since the assistant messed up, is the attorney responsible? And is it covered by insurance? Yes. Yes.

The error is covered if committed by a person for whom the attorney is responsible and, at the time, the attorney was covered by insurance and the attorney's main law office was in Oregon. So, errors by secretaries and assistants are covered. But there is an exception.

What if the assistant is an attorney? Here's one situation. There are a lot of unemployed young law graduates who passed the Oregon State Bar. Some are serving as paralegals because they need the job and some attorneys need help that costs less than hiring someone as an associate attorney.

Another situation is when an attorney licensed in another state has a client with a matter in Oregon. Sometimes, the non-Oregon lawyer will associate with an Oregon lawyer for purposes of the one case only. What happens if the non-Oregon lawyer screws up the case?

Errors committed by the following are NOT covered by insurance provided by the Professional Liability Fund:

- Attorneys from another state, and
- Attorneys who claim that they are exempt from coverage by the PLF, such as an inactive member of the bar.

In conclusion, generally, if an Oregon lawyer handled your case and either the attorney caused you harm because of negligence, or if some assistant caused the mistake, then the mistake is probably insured and you should be able to recover.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Recently, the Oregon Court of Appeals held that an insurance policy issued to a Vancouver, Washington driver provided different rights than if the driver had lived in Portland, Oregon. The case involved a car accident and the uninsured motorist provision of an auto insurance policy, but the ruling could apply to any insurance contract. In Carla Morgan v. Amex Assurance Company, the result was that the injured driver had to pay attorney fees out of her settlement instead of keeping her entire settlement and having her insurance company pay her lawyer.

For decades, Oregon law said if (1) a person submits a "proof of loss" to his or her own insurance company, (2) the insurance company does not settle the claim or accept coverage within six months, and (3) the insured sues the company and wins in court, then the insurance company must pay the attorney fees of the person. (ORS 742.061). It is a very useful tool, and every Oregon lawyer should submit a proof of loss before suing. This opportunity to win attorney fees is another reason to see a lawyer right away - so you have time to use the law.

Another law, enacted after the attorney fee law, is kind of an introduction to the entire chapter involving insurance law. ORS 742.001 says the chapter applies to "insurance policies delivered or issued for delivery in this state." The insurance company said that this law deprived Carla Morgan of a chance for attorney fees because Ms. Morgan had applied for insurance when she lived in Vancouver and the policy issued to her in Washington. Oregon's Court of Appeals agreed with the insurance company.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.