Oregon Personal Injury Lawyer Blog

"I was fired, and my employer wants me to sign a "release" called Employment Termination Agreement. Should I?" Oregonians ask me this question more frequently. This post discusses the history of termination agreements and what to consider. Whatever you do, at least "sleep on it." Do not sign it while you are in the shock of termination. Evaluate the offer, and contact an attorney if you are unsure of what to do.

In 1987, I wrote an article saying Oregon employers would be smart to use termination agreements. I believed that most good lawyers could identify a potential claim against even private, non-union employers. Termination agreements made sense for employers because it is cheaper to eliminate the risk of an expensive lawsuit by paying the employee extra money for him or her to release or waive any rights to sue. 25 years later, employees have even more rights to sue employers, and employers frequently offer termination agreements.

An enforceable contract requires an offer, acceptance and "consideration." Consideration means that something of value is exchanged. It distinguishes an enforceable promise from, say, a gift. If I tell you I will give you my old car but, instead, donate it to a charity, you cannot sue me for the car, because you promised me nothing in exchange. So, for an enforceable employment termination agreement, the employer needs to give the employee something extra in exchange for the employee waiving his or her rights to sue.

The exchange typically involves extra money - how much money depends on a lot of factors, which I will discuss in a minute. Other terms we often see in a FINAL agreement (as compared to the one proposed by the employer) include:

• Letter of "reference" for the employee


• "Non-Disparagement," which means both sides agree not to say negative things about the other.


• The employee will not reapply for employment.


• Employer releases any claims against employee, too.


• Confidentiality about the agreement, the worker, and the business.

The factors to consider in determining the amount include the following:

Continue reading "Oregon Employers Use Employment Termination Agreements More Frequently." »

The Oregon Bureau of Labor and Industries (BOLI) issued formal charges against Typhoon! Restaurant, alleging it paid workers from Thailand less and imposed longer hours than non-Thai workers. As Oregon's workforce includes more and more people from other countries, it's important to remember that Oregon law prohibits discrimination based upon national origin.

I've fielded calls on this topic from several angles. There was a man from El Salvador who accused his Mexican-born boss of demeaning him. Several Mexican-born and Mexican-American employees have complained about their U.S.-born co-workers or bosses. And a U.S.-born worker called me saying that his crew boss gave his hours to Mexicans, thereby constructively discharging him. ("Constructive Discharge" is defined in OAR 839-005-0011.)

Q: Does National Origin Discrimination Cover Mexican-Americans? I was born in Oregon.

A: Yes. Oregon generally follows the similar United States law against discrimination. Regulations under U.S. law cover discrimination because of an ancestor's place of origin, too. (29 CFR 1606.1) So, you do not have to be born in Mexico to be protected.

Q. My co-workers are hassling me - calling me Mexican because I have an accent - is that discrimination based upon national origin?

A. It could be, if the employer knows about it and fails to take immediate and appropriate corrective action. (This is a link to Oregon harassment law.) If you have linguistic characteristics of another national group, that can be enough to trigger protection.
http://www.jeffmerrick.com/lawyer-attorney-1845427.html
Q. I married a man named Ivanov, and they keep calling me Ruse-Key and asking me if he's part of the Russian Mafia. Or I married a man named Martinez, and they started using nasty slurs. Is this national origin discrimination?

A. If people associate a person's name or their spouse's name with a national group, and they treat you negatively at work, that is covered. You need to make sure the company knows you do not appreciate the slurs. Then, talk to an attorney if the company does not take appropriate measures to fix the problem.

Today, America honors the work and life of Martin Luther King, Jr. We cannot wait for leaders and movements. All of us, in our own small ways, must fight the battles we see for justice and equality. If you work in Oregon and need help with your own fight, you may call me.

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. Law changes over time. So, if you read this months or years after it was written, then it might no longer be accurate.

Sometimes, we think that sexual harassment is a thing of the past because we all know better. Think again. Today, the Equal Employment Opportunity Commission (EEOC) announced a sexual harassment and retaliation settlement of $267,000 against Lakemont Homes, a real estate developer. Even after complaints, four women had to put up with vulgar sexual comments and unwanted touching or propositions.

But Lakemont Homes is not the only case. The EEOC has reported several other cases, including another settlement for $365,000 just 9 days ago. Merchant Management Systems, which processes credit card payments, agreed to pay after allegations that the owner engaged in various forms of harassment against 11 women, which included:

I found the classic book, Getting to Yes: Negotiating Agreement Without Giving In, on my bookshelf last week, and I read it again. Considering less than 1% of civil lawsuits in Multnomah County, Oregon result in a trial by jury, every trial attorney needs to negotiate effectively. I have the second edition, written by Fisher, Ury and Patton of the Harvard Negotiation Project. This post highlights the key concepts in their approach.

The authors urge negotiators to reject bargaining over "positions." A "position" refers to a statement such as "I will take no less than $100." If that is true and if the buyer cannot pay $100, then there is no point in negotiating. On the other hand, if the person - secretly - would take $60, then staking out the position of no less than $100 could prevent a favorable settlement, especially if the other person is prepared to pay up to $95.

But if price seems to be the only thing over which to bargain, then what can negotiators do other than toss out numbers and try to bluff the other side as to the price they'd actually pay or accept? The authors set forth a four-part process.

First, separate the people from the problem. We need to deal with both. The above "problem" to be solved could be stated as follows: "I'd like to sell this item, and you desire to buy it. How can we come up with an acceptable price." However, If a negotiator stakes out a position such as "no less than $100," then we need to deal with the issue of him defending his position and his integrity. In my law practice, we often need to address the real emotions of my clients for which there is no dollar value. The failure to address "people" and "problem" as real and separate issues can confuse the process and lead to failure or less-satisfactory results.

Second, one needs to identify interests. At first glance, there seems to be nothing to discuss other than price: I want to pay less and you want to receive more. But further discussions might reveal other interests. For example, the buyer might not have more than $50 now, but will receive some money after he sells something. The seller might want to delay receipt of income until January 1. The buyer might need to spend money on shipping. The Seller might have regular delivery routes.

By identifying interests, negotiators then move into the third phase of the method: invent options for mutual gain. In this example, the options become apparent: consider payments over time and discounted or free delivery. Nevertheless, there is still the issue of price.

Here is where the authors insist on developing and using objective criteria instead of just talking tough. If the seller says, "It was my grandfathers, I cannot sell it for less than $100," The buyer must refocus to, "I understand, but let's determine what is a fair price for non-related people." [I've used my own examples in this post, not the authors'.] Bargain over the process: how one can we determine a fair market value that we each might be able to accept. Try to get commitments on process. This avoids taking a position and then defending it. Agreeing on an objective process does not, necessarily, bind the parties to the result of the process, although that is a possible solution, too. The authors point out that the more negotiators can separate ego and feelings from an objective process, the better the chance of agreement.

The authors acknowledge that not everyone wants to "play" their game of negotiating over principles instead of positions. They discuss the concept of hard and soft negotiation and offer suggestions on how to deal with different situations.

I'm glad I re-read the book. It is a good reminder of how to move negotiations forward when things bog down. Attorneys who represent people need to be especially well versed in negotiation tactics because most people have only negotiated car purchases. By contrast, insurance company claims adjusters negotiate all the time. Insurance companies know the tricks. Consequently, to achieve fair value for a claim, people need to make sure their own attorney is skilled at preparing for settlement discussions and negotiating.

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.

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.

This week, the Ninth Circuit Court of Appeals held that the whistleblower protection of Sarbanes-Oxley (SOX) does not protect leaks to the media. In Tides & Neumann v. The Boeing Company, employees Nicholas Tides and Mathew Neumann served as internal auditors for SOX compliance. They alleged pressure to rate internal SOX controls as "effective," despite some concerns over some issues and expressed those concerns within the company.

Then, a news reporter knocked on Mr. Neumann's door. Company policy required referring any media inquiries to Boeing's communication department. However, Mr. Neumann spoke the reporter and confirmed a draft of what she had written, despite knowing of the news-referral policy.

Mr. Tides contacted the reporter, himself, after receiving his performance evaluation, and provided her information.

Boeing discovered who the "whistleblowers" were and fired them. They filed suit under Sarbanes-Oxley whistleblower provisions.

The Ninth Circuit felt this was an easy case. The SOX whistleblower section protects only disclosures to the following: (A) Federal regulatory or law enforcement agencies, (B) a Congress member or Congressional committee, and (C) the supervisor or other person working for the employer who has authority to deal with the misconduct. The list does not include blowing the whistle to the news media.

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 Ninth Circuit Court of Appeals resolved an important question in an Oregon case under the Family Medical Leave Act (FMLA). In Diane Sanders v. City of Newport, the city refused to reinstate Ms. Sanders after her doctors said she was fit for duty following her medical leave. Later, the city fired her, claiming that they could not guarantee a workplace that would not trigger her medical reaction to chemical sensitivities. The question was, Who had the burden of proof? Must the employee prove that the employer had no good reason to keep her off work? Or is the burden of proof on the employer to prove a lawful reason to avoid reinstatement after medical leave?

Ms. Sanders alleged discrimination and interference with her rights under FMLA and under Oregon's Family Leave Act. The trial judge instructed the jury that the worker must prove that the employer, without reasonable cause, did not put her back to work.

The Ninth Circuit held that the employee did not have to prove what was in the mind of the employer. Instead, all the employee needed to prove was (1) she qualified for FMLA rights, (2) she was entitled to leave, (3) she followed the rules for reinstatement, and (4) the employer did not provide the FMLA rights. If the employer has a legally-sufficient reason to avoid reinstating the employee, then the EMPLOYER has the burden to prove its good reason.

This was not my case, so I cannot comment on the City of Newport. However, there are some employers who just do not want to deal with employees with medical conditions, especially if they involve workers' compensation claims. Often employers will never reemploy the workers and come up with some bogus reason, or pretext, for not reemploying the worker. The Ninth Circuit got it right. If the employer has some good reason to fire a worker after she had a medical condition, then the employer should prove it.

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.

Yesterday, Oregon's Supreme Court declared the circumstances under which a trial court may keep secret the names, addresses and employers of jurors. In this day when a name is the key to finding out so much about someone on Facebook, Twitter and other sources, the ruling is very important. The trial court justified anonymity by telling the lawyers that purpose of the jury selection process, "isn't about your knowledge of them (prospective jurors); it's about their knowledge of you and your case or type of case." The supreme court disagreed.

When anonymity is not the norm, instructing jurors NOT to disclose their names or employers can suggest that the court thinks the defendant is a very dangerous dude. Without some clear explanation to neutralize that impression, Oregon's Supreme Court held that the alleged scumball did not get a fair trial.

The court said that anonymity might be okay in some circumstances, such as if there is a history of juror intimidation or the defendant is linked with a dangerous group. First, however, trial court must identify those reasons and then do its best to minimize the negative inference from secrecy. A sufficient reason does NOT include blanket juror privacy from Facebook research. Or, in the words of the court. A good reason for anonymity is NOT a "generalized desire to protect the anonymity of all jurors in all cases in the interests of juror privacy."

Jury service is an important civic duty. We respect and honor those who serve. We must protect them if their service could imperil them. Yesterday, the court confirmed that only when jurors are at risk may they perform their service anonymously.

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

For about a decade, the general manager of an Oswego, NY, grocery story harassed his workers, many of whom where teenagers. Sex talk, touching, and sexual propositions created a very hostile working environment.

Finally, some of the women took on this guy. They went after him criminally, and he pleaded guilty to a charge in 2008. The women went to the EEOC, who took him to court. Although the EEOC only won awards of about $10,000 per woman for compensatory damages (which seems low to me), it won a whopping punitive damage award of $1.25 million. No doubt, that will be appealed.

Too often, employers try to take advantage of teenage girls on their first jobs. Not just sexual harassment, but violations of wage and hour laws. Unfortunately, the young women are not sure what to expect and what is legal.

When young people proudly report to parents that they got their first job, parents should make sure that their children know to ask them when something questionable happens. Sometimes, what is wrong is as simple as asking them to wait in the break room "off the clock." Other times, the problem can be a serious as rape. If prevention does not work, then contact an attorney, Oregon's Bureau of Labor and Industries, or the EEOC.

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, a Portland, Oregon company paid $85,000 to settle a claim that it fired Jesus Perez in retaliation for questioning whether he received a smaller raise than non-Hispanic co-workers. The same day Mr. Perez asked about the raise, his employer, Pacific Seafood Company, sent him packing with his final paycheck after telling him that if he was going to accuse the company of discrimination, they "should part ways."

Retaliation is not uncommon in Oregon. Currently, I represent five former employees of a construction company. One was fired after he filed a workers' compensation claim. One was fired after challenging his wage rate by going to the Oregon Bureau of Labor and Industries (BOLI), and others were fired when the bosses learned they were going to contact a lawyer about other issues at work.

This employer, from the Oregon coast, constantly threatened employees with termination whenever they questioned anything. In years past, the company got away with it. But, finally, these employees decided to take on the company, and I'm proud to represent them.

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

Yesterday, the Oregon Court of Appeals held that a person must respond timely to a summons and complaint even though overwhelmed by other personal and business issues.

In Estrelia Saldivar v. Ken Roberts and Bridge Homes, LLC., Ms. Saldivar sued for fraud, misrepresentation, unfair labor practices and conversion. Defendant did not respond, and her attorney obtained a default judgment. Only after her attorney garnished defendant's bank account did he show up in court and ask to lift the default judgment because of "excusable neglect."

Mr. Roberts told the court of his personal problems: divorce, terrible economic times for his real estate business, a barrage of other certified letters demanding things. He confessed that he should have responded, but that he was overwhelmed. The trial judge gave him a break, recognizing that this has truly been an unusual time of recession.

I've been critical of the unfairness of holding plaintiffs to tight time deadlines imposed by the statute of limitations, but letting defendants off the hook. It is to the point where we lawyers think it is a waste of time to default defendants, because it so easy overturn the default judgment. On this occasion, however, the Court of Appeals said the trial judge abused his discretion; he was too easy on defendant.

The court explained that personal problems might be enough IF they amount to psychiatric problems making a person incapable of taking care of affairs. However, Mr. Roberts did not claim that. Instead, Mr. Roberts, basically, said that this claim never rose to the top of his "to do list."

I notice that Mr. Roberts was not represented by an attorney in the Court of Appeals. I suppose that defense lawyers will learn from this case. In the future, when defendants want to lift a default judgment, they better submit a note from a psychologist saying that the defendant was, effectively, paralyzed.

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.

Some restaurant owners in Oregon violate wage and other employment laws that protect workers. I had a case involving a restaurant that required waitresses to be at the restaurant, but "off the clock," until it got busy. That's illegal. If the employer demands your time, then it must pay you. Two press releases from the Oregon Bureau of Labor and Industries (BOLI) reminded me of the problems facing some restaurant workers.

BOLI determined that Stanich's, a Portland landmark known for its burgers, violated wage laws. BOLI also criticized Stanich's for not being forthcoming during the investigation. BOLI also reported that two employees filed suit alleging the restaurant wrongfully terminated them in retaliation for asserting their rights under wage laws.

In another case, BOLI alleged that Typhoon Restaurant mistreated its workers from Thailand. The restaurant paid Thai workers less, provided them less vacation, and denied raises. When workers complained, the employer threatened to fire them worse.

Most recently, a teenager came to me who worked at a coffee shop. The owner asked if she was pregnant, and then fired her after she said, "yes." Duh! An employer may not fire a worker because she is pregnant.

My take on all of this is that some restaurant owners are dumb. Others know precisely what they are doing, but hope that their workers - often young - will not know better, or be too scared to complain. This post shows that both BOLI and private lawyers are here to help Oregon restaurant workers oppose illegal practices.

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.