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." »

Recently, Oregon's Court of Appeals provided a road map for how a disappointed client may seek attorney fees in a legal malpractice case. The case, Saul Rivera-Martinez v. Tommy Vu and Donald Hooton, applies to claims alleging that an attorney committed legal malpractice on an employment retaliation claim, wage claim, or other claims that provide for attorney fees.

The general rule is simple. On negligence claims, including claims that a lawyer was negligent, a party my not win attorney fees on top of other losses. So, in legal malpractice cases, the former client may not seek attorney fees against the lawyer who was negligent.

But what if the client hired the lawyer to win a case that provided for attorney fees? Certain statutory claims provide attorney fees to the winning party, including employee whistleblower lawsuits and wage claims. Mr. Rivera-Martinez alleged that his employer did not pay him overtime wages, which is against the Oregon and United States law. Both laws allow for attorney fees. Attorney fees in such cases are critical. If, for example, the employer owes only $4,000, then it would not make sense to sue, because it would cost the employee more than $4,000 to take the case through court (unless the employer settles promptly). Unfortunately, the attorneys filed late, after the statute of limitations expired, so Mr. Rivera-Martinez lost his right to sue for wages.

Mr. Rivera-Martinez sued his lawyers for legal malpractice. His new attorney alleged that Mr. R-M should recover both the wages lost plus attorney fees that would have been expended. The case went to arbitration first. The arbitrator believed that attorney fees may be claimed as part of the money losses to the client. (The Court of Appeals assumed this was true without actually deciding the issue.) Nevertheless, the trial court did not award money for attorney fees because it held that the legal malpractice attorney did not ask for attorney fees in the correct way.

There were two possible ways to ask for attorney fees. The first was to offer evidence during a trial or arbitration of what attorney fees and costs would have been if the first lawyers had filed the wage case on time. The second possibility was to ask for attorney fees like we do in a wage case - that is - wait until after the trial and then submit the attorney bills. Mr. R-M's attorneys took the second route and argued that the time they spent proving the wage-claim part of the case was a fair measure of what should be paid.

The arbitrator, the trial judge, and the Court of Appeals all said that to recover the attorney fee part of a wage claim, the client must offer evidence during trial -- in his "case-in-chief" -- of what the attorney fees would likely have been. The post-trial route of submitting actual attorney fee bills may not be used when the attorney fees are part of damages from the legal malpractice.

Yes, this is a bit confusing to nonlawyers. But it makes perfect sense to attorneys.

Jeff Merrick, Oregon Trial Attorney
Legal Malpractice, Personal 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.

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:

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.

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.

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

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.

An Oregon jury awarded $821,000 for the wrongful death of Ruby Larson against the Pheasant Pointe Retirement and Assisted Living Residents and its Parent company. The family entrusted their beloved Ruby to the assisted living facility. The nursing home knew that Ruby had dementia and wandered off, but kept letting her do it. A young boy found Ruby's dead bones.

Too often, Oregon's assisted living facilities are bad. Oregon is among the worst. From my cases against them, I have seen how out-of-state owners run some facilities with too few staff. When their employees complain or try to make the facilities comply with the law, the company fires complainer.

In a nutshell, here is the problem. Some facilities promise everything to potential customers. Pheasant Point marketed itself as a place for people with memory problems. In cases I've had against other places, facility directors get bonuses based, in part, on how full the facility is. They get bonuses for keeping costs down. So, the pressure from out-of-state masters is to keep the number of residents high and number of staff low. Because Oregon does not have sufficient resources to police the facilities, too often assisted living facilities get away with it.

I happened to see the lawyer who represented the family in court on Monday. She looked extremely preoccupied. Now, I know it was because the jury was deliberating. Thank goodness for lawyers like Jane Paulson, who fight for clients like Ruby's family. Only when the costs of neglect become too high will these big for-profit companies consider hiring sufficient staff make good on the promises they make to care for and about people.

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.

Jurors awarded $677 million against a nursing home because it understaffed its skilled nursing facilities. In Oregon, I have seen the same thing, time and again. These companies make big promises of excellent care and abundant services for assisted living facilities. Yet, they consistently run understaffed. Also, I've seen Oregon facilities underpay their staff and then get rid of the most caring staff members who actually complain about the problems.

We often think about these cases in terms of malpractice or abuse. However, I now see it as fraud: the corporations that operate the homes promise services that they simply cannot deliver with the staff they are willing to hire and pay.

Oregon law protects both the residents of homes and nurses and staff who blow the whistle. I love to represent victims and whistleblower employees because I think, hope and pray that once the companies factor in the costs of lawsuits, they will decide it is cheaper to hire more workers and provide good care.

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

It was "not about the money," said one of the nurses who sent an anonymous letter alerting officials to the questionable practices of a doctor. The doctor went to his sheriff friend to investigate who sent the letter, and county charged the nurses with felony misuse of information. The whistleblowing nurses sued the county for the vindictive prosecution. Today, the county approved a settlement.

The Oregon nurses I've represented have been among the most caring and ethical professionals I've known. Nurses seem to learn fast that they will never have the biggest ego in the hospital, but rarely do nurses take second place when it comes to caring for patients.

And it is not just in hospitals. Nurses and staff in assisted living facilities work their tails off because, typically, the facilities do not employ enough staff to meet all of the promises made by the nursing homes. Too often, when staff becomes a "squeaky wheel" or report to officials, they find themselves in trouble, written up, and fired. Fortunately, Oregon law protects whistleblowers in assisted living facilities, nursing homes and other places.

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

Oregon employees or others who blow the whistle and report violations of securities law to the SEC are now eligible for a bounty of 10% to 30% of money collected by the Securities and Exchange Commission (SEC), so long as the total money collected exceeds $1 million. Section 922 of the Dodd-Frank Law allows the whistleblower to remain anonymous by using an attorney to pass along the information. Also, if the employer knows the identity of the whistleblower, the employer may not discharge or discriminate against the employee because of an honest report.

The SEC may pay a monetary reward if the whistleblower's information is "original information." Original means that the whistleblower came up with the analysis or facts independently, and the SEC does not already have the information from any other source.

The whistleblower must make the claim within 3 years of the date of the time the employee knew or should have known of facts supporting the allegation of wrongdoing.

The whisteblower reward may not be claimed by people convicted of participating or by people whose job it is to uncover problems, such as employees of regulatory agencies, the Department of Justice, or someone who performs audits required by the SEC.

In some ways, the new Federal Law is duplicates Oregon's Whistleblower Protection Law, which protects employees from discharge or discrimination for reporting violations of any law. What's new is the chance to earn a bounty under the Dodd-Frank Law.

The above does not constitute legal advice and does not establish an attorney-client relationship. However, feel free to call me if you are an Oregon whistleblower and feel like you need legal counsel.

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

EEOC press releases show that terrible sexual harassment occurs frequently against immigrants in Oregon, Washington, and the rest of the nation. For example, the EEOC sued Allstar Fitness, which operates in Washington and Oregon, because one of its supervisors forced an employee to choose between sex with him and her job. (Supervisor Forzó Sexo en una Empleada Latina.) The company did not train employees on the laws against discrimination. It produced no written harassment policies and no complaint procedure.

In another case from a Mollala, Oregon nursery (Willamette Tree Wholesale, Inc.), the EEOC charged that Latina workers were sexually harassed, raped, and threatened.

EEOC charged a Washington state apple grower (Evans Fruit) with sexual harassment because supervisors assigned women to isolated jobs so that they could make sexual advances. The court issued an order stopping the company from retaliating against or attempting to influence any potential witnesses or victims during the time the case proceeds.

Other examples include a $260,000 settlement to an employee of Wilcox Farms, in Aurora, Oregon. Schiemer Farms, also of Oregon, fired two workers on their first day of work after they reported sexual harassment, and it cost Schiemer $14,500.

Latinas are not the only vulnerable immigrants who have been victimized. Sexual harassment in the Korean Community in Los Angeles is leading to settlements and educational efforts toward small businesses, to prevent harassment before it happens. The EEOC is hiring investigators who speak different languages in its effort to address discrimination against immigrant women in the workplace.

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