Oregon Personal Injury Lawyer Blog

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

This week in Portland, Oregon, Deanna B. testified against her former employer, Brookdale Senior Living, Inc. (NYSE: BKD). Ms. Bettencourt used to provide care for residents of Wynwood Mt. Hood, an assisted living facility. Like other such facilities and nursing homes in Oregon, Wynwood Mt. Hood has been cited for abuse and neglect because it employed too few employees to care for residents.

During Deanna's tenure, the assisted living facility served 82 residents. Brookdale promised those 82 residents services that would take a full page to list, including meals, laundry, help getting to appointments, help getting to the toilet (or cleaning up when help came too late), help with pets, medication, etc. Last year, the State of Oregon cited Brookdale when resident needs were not being met because it employed only two people on night shift for all residents. Obviously, when both employees were needed to help someone get to the bathroom, no one was available to assist any of the other 81 people.

The stingy ways of the Executive Director included altering the time cards of employees without their knowledge. Deanna complained about it. She challenged the integrity of her boss, repeatedly. Her boss then changed her working situation, wrote her up for things, and fired her. We sued, alleging that the company retaliated against Deanna for making her wage claims and accusing the company of stealing from her.

During the litigation, we have discovered other practices that we believe are improper. For example, those three employees on night shift must remain on call, even during their meal periods. They cannot take lunch or dinner in their cars. Employees remain on call to assist residents. Yet, despite being on call, Brookdale Senior Living does not pay them for their on-call time. We believe that violates wage statutes and is more evidence of how the company does whatever it can to reduce costs, whether or not proper. See, OAR 839-020-0004(20) & 839-020-0041.

I've sued assisted living facilities / nursing homes before, and I've learned too much to remain naive. I've told my wife that if I ever need to be in one long term, please leave a gun under my pillow. I'd rather kill myself than live in some of these places, in which the facility does not keep all of the bright promises made to prospective residents and their loved ones.

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 keep getting questions about an Oregon employee's right to see personnel records, so I decided to post the answer for all.

Oregon law provides employees the right to see and get copies of their personnel records. Some employers do not know this, and need to be told what the law is. The statute is ORS 652.750. For anyone considering a lawsuit in Oregon for wrongful termination, discrimination, or harassment, obtaining your personnel records is the first step. This article discusses your rights.

What are Personnel Records?

"Personnel Records" are the records used to decide on the employee's qualification for raises, promotion and even initial employment, (except that confidential reports from prior employers might be excluded). Personnel records include records used to decide upon suspension, demotion, other discipline or termination.

What are an Oregon Employee's Rights to See or Copy Personnel Records?

All an employee needs to do is ask, and the employer must provide the employee a reasonable chance to see the personnel records, at the workplace where he or she is working, not at corporate headquarters in Seattle or Tennessee. The employer has 45 days to provide the records.

The employee may request certified copies of personnel records, and the employer must provide the copies within 45 days.

The employer may charge the employee a reasonable amount to provide the personnel records.

DON'T WAIT TO ASK FOR YOUR RECORDS!

Oregon law does not require employers to have personnel files. However, if the employer does have personnel records, then Oregon law requires employers to keep personnel records only for 60 days after termination. So if you are fired, request your records right away. You have nothing to lose, because you are already fired.

What if the Employer Still Does Not Provide the Records?

You may file a complaint with the Oregon's Bureau of Labor and Industries. BOLI has the power to investigate and fine the employer $1,000.

Special Rights of Public Safety Officers

Unlike the rest of us, Public Safety Officers must see any negative comments before they go into his or her personnel file. The Public Safety Officer then has 30 days to submit a written response, which must be attached to the negative comment.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

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

Oregon employees enjoy new rights and protections as of January 1, 2010. Three of the new laws provide: (1) more protection for whistleblowers, (2) employment protection for victims of domestic violence, sexual assault or stalking, and (3) leave for spouses of military service members.

Whistleblower Protection.

Oregon employers may not fire or discriminate against employees in retaliation for certain protected activities, including certain things done for the public good. Those things are listed in various laws (and court cases). The new whistleblower law is more general. HB 3162 prohibits employers from retaliating against an employee for reporting information that the employee honestly believes is evidence of a violation of a federal or state regulation or law.

In wrongful termination cases, one of the battles has been legal. The judge must decide the question of -- even if the company fired the employee for reporting a problem -- was the problem a type that the law cares about: was it "protected conduct?" HB 3162 eliminates that legal question in many more cases.

The factual battle for the jury will remain. In all wrongful discharge cases the factual battle is whether the company fired the worker for legitimate reasons or because he or she engaged in protected conduct.

Victim protection.

Oregon now provides employment protection to victims of domestic violence, sexual assault, and stalking. SB 928 prohibits discrimination against victims in hiring, promotion and other terms of employment. The new Oregon law also requires employers to make "reasonable safety accommodations" to victims.

Employers are familiar with the accommodation procedure from the requirement to accommodate employees with disabilities. The process is expected to be similar, calling for a back and forth discussion to figure out a reasonable way to protect the victim and also get the employer's work done.

Employment Leave for Military Spouses.

Oregon businesses with 25 or more employees must allow military spouses to take up to 14 days leave per deployment during periods of military conflict. The time is to spend with the service member before deployment, after deployment or during leave. HB 2744 requires the spouse to provide timely notice, and it prohibits discrimination against the spouse for using the leave.

A good resource for Oregon laws controlling employment is the Oregon Bureau of Labor and Industries.

Jeff Merrick, Oregon Trial Attorney
503-665-4234