Oregon Personal Injury Lawyer Blog

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:

Okay, I'll tell you how my week was.

I probably talked with between 12 to 20 people who thought they had cases, and I responded to probably another dozen people who filled out contact forms. Some of their problems were in my "wheelhouse:"

• Car Accident: a distracted driver crossed the center line and ran an oncoming driver off the road. The distracted driver's insurance company said, "No collision - no claim." I say, "Valid case."

• Bike-Car Accident: Car hit man on bike

• Sexual Harassment & Retaliation: Woman pressured by boss to have sex. When she stopped, the boss-owner continued sexual harassment and retaliated against her by treating her so badly that she had to quit

• Medical Malpractice: Man went to the hospital over 100 times before they diagnosed him correctly.

• Employment Law: Several people claimed wrongful termination or discrimination. Some may be right; some are definitely wrong.

• Legal Malpractice: at least two people thought their attorney malpracticed.

For clients with cases in court, I prepared motions and gathered evidence. I counseled clients on the next steps of the litigation and what mediation is all about. I read and wrote countless E-mails and letters to move litigation forward toward conclusion.

Some cases are in the stage between the forming our attorney-client relationship and filing a lawsuit or other claim. This is a critical stage. What is the appropriate approach? Are we ready to file? Can we improve the case before filing? Should we start with a letter seeking settlement? Should we file a complaint with the Bureau of Labor and Industries? Should the first salvo be a lawsuit?

Every person is different. Every situation differs. The key is apply a quarter-century of experience to work through what is best for each person. That's the fun part of the job. The not-so-fun part of the job is dealing with the occasional jerk, whether it's an insurance company lawyer or someone who gets angry at me because I offered a free opinion that what they think is a case is not something they can or should sue about.

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

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, the Oregon Court of Appeals said that the Lake Oswego School District could not be held responsible for the alleged child abuse by a fifth grade teacher that occurred more than 2 years ago. In Does 1-7 v. Lake Oswego School District and Judd Johnson, the Appellate Court upheld the trial court, which threw out the case based upon time limitations under Oregon's Tort Claims Act.

Seven men claimed that a fifth grade teacher molested them between the years 1967-1984. In other cases, against churches, for example, child molestation and sexual battery from decades ago has been the subject of sexual abuse lawsuits in Oregon. There's an exception to the general statute of limitations for child abuse cases if the victim did not comprehend the harm until recently. However, that exception did not win the day against the school, which is a public body protected by the Oregon Tort Claims Act (ORS 30.260 and following).

The OTCA sets forth strict time limitations. First, the victim must notify the public body or government agency within 180 days of an injury. If the person is disabled or a child, then the time limit can be extended for an additional 90 days, to 270 days. The victim must file a lawsuit within two years. Both deadlines start at the time of discovery, which begiins when the person, or any reasonable person, would have been aware of (1) the injury, (2) who is the perpetrator, and (3) the cause of the injury.

The court held that when suing a school or public body, "injury" for sexual touching occurs at the time of the touching. All of the men knew they were touched inappropriately back in the fifth grade, even if they did not comprehend the full consequences of the touching. For that reason, the court held that they all missed the time deadlines under Oregon's Tort Claims Act.

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.

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.

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.

Oregon law protects employees against discrimination, harassment and retaliation from employers. We all know that an Oregon employee can sue the employer when the employer discriminates, retaliates, or fails to deal with harassment. But what about the actual man or woman who is responsible for the violation? May the employee sue him or her, too?

An Oregon statute authorizes victims to sue an employee if the boss or co-worker "aids, abets, incites, compels or coerces" the commission of unlawful employment practices. So the answer is, "yes," an employee may sue a boss or co-worker who is responsible for discrimination, harassment, retaliation or some other violations of law.

The next question is whether it makes sense to sue an employee. My general philosophy is K.I.S.S., which stands for keep it simple, stupid. There is no reason to add to your burden of proof or, possibly, add another law firm to oppose you unless there is a good reason. So, generally, I discourage suing employees. But there are two exceptions to my general rule.

The first exception is for closely held corporations. Sometimes, and employer might say, "So, sue us. We'll file bankruptcy." If "Oregon, Inc." can liquidate on day 1 and re-open on day 2 as "Portland, Corp.," then it makes sense to name the boss who aided or compelled the unlawful conduct. Then, the boss has an incentive not to play games with the corporate entity.

A second exception is when the "bad guy" is a citizen of Oregon but the employer is a "citizen" of another state. Sometimes, it is in the interest of a worker to sue an Oregon citizen to keep the case in a state court, not a federal court.

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.

What distinguishes Brett Favre's indiscretions from those of Tiger Woods? The Woods' women consented, and Woods and the women did not work for the same employer. That's why Jenn Sterger might have a claim against the New York Jets for sexual harassment. This post applies Oregon harassment law to the allegations against Brett Favre.

Allegedly, Brett Favre contacted the woman via my space first. Then Favre invited her to his hotel room via voice mail Apparently, she did not respond. In effect, she rejected him. But Favre did not quit. Someone, possibly another Jets employee tried to help Favre get what he wanted, and Ms. Sterger, again, turned him down. Yet, Favre persisted with his fantasy and sent penis photos, etc., allegedly. The NFL is investigating.

It will be interesting to learn if Sterger quit the Jets because of Favre, and she knew that the Jets would prefer to keep Favre over her, if forced to decide.

Oregon's law of sexual harassment is similar to the law of most jurisdictions. Generally, an employer is responsible if a supervisor is the perpetrator or if the employer knows about the unwanted conduct and fails to take immediate and appropriate action. Generally, a man or woman gets "one free ask," but "no" means "no."

From what we know about Favre / Sterger: The conduct was unwanted. She made her "no" clear, yet Favre persisted. Although Favre might not have been a direct supervisor, he was the most visible team leader and, apparently, someone else from the organization was trying to assist Favre get to Sterger. If the Jets were truly clueless about Favre's bad conduct toward women, then, perhaps, they could avoid liability. (Whether Sterger has a claim against Favre is a separate question.) On the other hand, if the investigation reveals that the Jets knew Favre was hitting on their employees - any of their employees -- and the Jets did not tell him to knock it off, then the Jets will be liable, especially if Sterger quit because of the alleged "stalking" by Favre.

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, the news broke the that Boy Scouts of America settled six sex abuse cases. The pressure to settle came from Oregon litigation: both a trial in April and another scheduled for trial in October. The April jury verdict included an award for punitive damages. Although the settlements with Boy Scout abuse victims are confidential, The Oregonian reported that the State of Oregon was paid $2.25 million for punitive damages.

We can only hope that the lawsuits will encourage all organizations responsible for children to take that responsibility seriously. As Oregon Attorney Kelly Clark opined about why the Catholic Church is safer these days, "It's not primarily because the bishops got the Holy Spirit, that's because the bishops got sued."

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

A woman sued Disney claiming that Donald Duck sexually assaulted her. The 27-year old woman's lawsuit alleges that Donald Duck grabbed at her breasts and then made a gesture as if he'd done something bad. It's not my case, so I can't add to the news article. However, as a loyal Oregon Duck fan (and disloyal Stanford Alum) I wanted to make sure the world knows that the accused was a Disney Duck, not the Oregon Duck.

Oregon's Duck is not pure as Snow White. Admitedly, Puddles has been seen on a Harley, and performs in rap videos. However, I refuse to stereotype Harley riders or rap artists.

Oregon's Duck was accused of assaulting a cougar (a mascot, not an older woman), but that was not alleged to be a sexual assault. (Some claim that the video was a total fabrication.) But, like the much maligned Massoli, Puddles pleaded guilty and accepted the punishment.

No, Oregon's Duck is a hardworking member of the University of Oregon community. Regardless of the merits of the lawsuit against the Disney Duck, my hope is that the negative publicity will not spread to Puddles.

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

Yesterday, I met with people who were harassed on the job in Bend, Oregon. The bad boss, in Bend, was an idiot in an unprofessional organization. Sometimes, we think that people and companies who violate the laws against sexual or racial harassment must be unsophisticated. The news about Mark Hurd resigning as Chief Executive Officer of Hewlett-Packard because of sexual harassment shows that women and others are not safe even in the most sophisticated workplaces in the world.

HP's press release does what it must. It acknowledges that Mr. Hurd was caught, and HP reinforced the allegedly high corporate standards that are observed in their breaking. It goes on to assure shareholders that all's well in the corporation. Ironically, HP still has posted the statement from Mark Hurd in 2006, also commenting on the company's standards of ethics being broken under the reign of Senate Candidate Carly Fiorina.

Sexual harassment at work continues to be a problem. Sexual harassment is not just men wanting sex from women. It also includes mistreatment of women even when no sex is at issue. For example, I settled a case arising out of a Portland, Oregon warehouse, where the men verbally abused the only woman worker. Giving women the crummy jobs is another form of harassment. So be alert: harassment is just another form of discrimination based upon gender - sometimes sex or requests for sex or dates has nothing to do with it.

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

United States District Court for the Northern District of California ruled that Proposition 8 is unconstitutional. The court's opinion is meticulous. The opinion reveals that the lawyers were extremely careful to create a record to support every contention asserted and to undercut the myths of the Prop 8 proponents.

Because the court and the lawyers grounded findings in the trial court record, the Ninth Circuit should uphold it.

The Supreme Court? Unfortunately, these days, the only rule that seems to control the U.S. Supreme Court is the "Rule of Five." By that, I mean that the Supremes seem unbound by any legal standards and perform legal gymnastics to reach the results that five of them want. The Rehnquist Court was the most activist in our nation's history, and the Roberts Court seems to be following its lead. Nevertheless, the care and seriousness with which the parties and the court addressed Proposition 8 might require the Five Supremes to bend and twist like Cirque du Soliel to circumvent the trial court record.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Attorney Gloria Allred announced a lawsuit alleging sexual harassment in employment against David Boreanaz, of the TV show Bones. She also announced that she represents another woman, but did not file a lawsuit on her behalf. Instead, she sent the matter to a state agency to investigate. Here's my take on what that means, having used Oregon's State Agency at times and having filed sexual harassment cases in Oregon's courts.

First, we lawyers screen cases based upon whether we believe our clients. I assume that Ms. Allred believes that both of her clients felt victimized.

Next, we look at what evidence is in hand and consider what evidence is likely to be found later. When I file a lawsuit, it is because I believe there is enough evidence in hand to get the case to a jury. I assume that Ms. Allred believes she has enough evidence on Kristina Hagan's case to reach a jury. During the "discovery process" (definition here), she hopes to develop more evidence to win the case.

On the other hand, if an attorney feels like a client was legitimately harmed, but wants more evidence before risking a lawsuit, it makes sense to refer the case to the state agency. The state agency will then conduct an investigation. The agency could turn up more evidence, giving the attorney more confidence before filing a case.

We attorneys want to make sure we win the case, because no client wants to go through the expense and trauma of litigation unless the odds of winning are very good.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Credibility is everything when an Oregonian decides to sue, whether it is for car accident personal injuries, sexual harassment, or legal malpractice, or anything. I just withdrew from a case arising in Oregon City before I even filed the lawsuit because I did not trust my client. This post discusses the concept of credibility and why it is so important for an attorney to work with his or her client to make sure the client is 100% credible.

Why is credibility everything?

The most important factor in whether you win your case is whether the jury (or defense attorney or claims examiner) believes you and likes you. Oregon judges instruct jurors that, "If you find that any person has intentionally given false testimony in some part, you may distrust the rest of the person's testimony." But beyond that, jurors are people. People do not empathize with or want to help people who they do not believe or like or relate to. I'd rather represent Mother Theresa with an iffy case than Adolf Hitler with what seems like a slam dunk case. Jurors will find a way to help Mother Theresa and find a way to give Hitler what he deserves.

Credibility is truth PLUS accuracy.

Credibility is not merely avoiding a lie. Just because you do not intend to deceive does not make you credible. Here's why.

At some point, defendant will want your deposition. You will swear to tell the truth, and a court reporter will record every word. If you guess wrong, then, later, the other attorney will call you on it. Even if your misstatement was small and not intentional, people will wonder what else you got wrong.

What you and your attorney should do to improve your credibility.

From the first day forward, there are many steps you can take to make sure your testimony is true, accurate and complete. Here are a few of them:

• Your attorney should tell you what information is important to keep track of.


• Keep track of important information in a systematic way; your attorney should help you with this.


• Before your deposition, you or your attorney should talk with other witnesses who have relevant information, so that you are fully informed. Sometimes, loved ones notice things about the injured person that the injured person does not notice about herself.


• Prepare and study for your deposition like you are taking the most important exam in your life. Your attorney should tell you about the process, the traps, and how the other attorney might behave. You need to know all of the pertinent dates, issues and facts so that you can give accurate testimony.

I am shocked when I hear that some attorneys will "prepare" a client for his or her deposition immediately before the deposition begins. I think you should expect more from your own attorney.

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