Oregon Personal Injury Lawyer Blog

Tim Tebow's eye black versus Mississippi State was "Eph. 4:32," referring to "Be kind and compassionate . . ., forgiving each other, just as in Christ God forgave you." Jeremiah Masoli's black eye in State of Oregon v. Masoli was "ORS 164.215," which refers to Second Degree Burglary. The NCAA's black eye is how it stacks the deck against student athletes.

Most student athletes do not make the pages of Sports Illustrated. Instead, they are like a former client of mine, who simply love a sport and want to earn a college degree. The scholarships are one-year contracts. If a student is injured in a game or practice, then coaches often do not grant the scholarship the next season. The student is treated like damaged goods, like a flat tire that can't be repaired.

Every time I see a young man or young woman carried off of a field of play, I have two feelings. First, I feel guilty that I encourage with my cheers the type of hard (brutal) play that often leads to injury. Second, I worry about the kid. Will he be disabled for life? Will she be able to afford to continue her schooling when the coach yanks the scholarship?

I read where the NCAA has not yet ruled, officially, that Mr. Masoli may play for Ole Miss. Why not? The young man graduated from the University of Oregon. The U. of O. cut him. Why should he not be free to play wherever a coach wants him to play if he is otherwise eligible? Is it fair that NCAA schools, as a group, can make multi-year claims and demands upon students, yet only promise one-year scholarships that may be revoked?

A bigger black eye than that arising from Mr. Masoli's youthful errors is that huge ugly thing all over the face of the NCAA Schools, which conspire to tie up wide-eyed teenagers in one-sided contracts. If you ruin a knee for a school? It's, "Sorry, son, it was a one-year deal; pay for your own tuition next year." You inspire the entire State of Oregon with your play, graduate early and want to play some more? It's, "Not so fast, buster."

Jeff Merrick, Oregon Trial Attorney
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

Last week, the Oregon Supreme Court ruled in favor of a Klamath County schoolteacher who quit under threat of termination. Robert McDowell and his attorneys fought 3½ years for this result and for his unemployment compensation. Finally, common sense prevailed.

Here are the facts. Robert McDowell was a probationary teacher of language arts and drama in Klamath County. He showed his class a 10-minute film clip from "Glengarry Glen Ross," which contained some profanity for the ears of the senior class of the high school. That was against policy, because the teacher did not obtain advance approval. But here's the thing: no one ever told him he needed to get approval. So, someone said, "gotcha," which seems ridiculously unfair.

The employer needed no reason at all to fire a probationary employee. So, when the personnel director advised Robert of his decision to recommend termination to the School Board, Robert took it seriously. The union's attorney told Robert that the School Board always goes along with the recommendations. Consequently, on the day the School Board met, Robert resigned to protect his ability to ever get another teaching job.

Somehow, it took the Oregon Supreme Court to see that a reasonable person would have quit under the circumstances, which is one of the legal standards to qualify for unemployment compensation.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
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

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.

A continuing education class on the use of CPT® codes got an Oregon woman wondering whether her employer used the wrong code, intentionally, to make sure insurance paid for procedures. This Oregon business performed CT scans, mammography and other radiological procedures. CPT® codes (Current Procedural Terminology) are reference numbers for medical procedures established by the American Medical Association. Insurance companies, Medicare and other payers rely on CPT® codes when deciding whether to pay for a procedure and, if so, how much.

After some more research, my client decided that she might be participating in civil fraud and criminal activity if she continued working. If caught, at a minimum, she might lose her professional licenses. At worst, she'd go to jail and be sued. So she quit, and wisely so.

In Oregon, it is against the law to present false bills for health care services or supplies. Participation in it is a felony. Oregon law also defines "racketeering activity" to include false medical billing.

The federal false claims act also makes illegal any false claims submitted for payment to the federal government, including medical bills paid by Medicare. The federal law has a "Qui Tam" provision. That means the whistleblower can earn a reward or bounty for money recovered by or for the government. The whistleblower earns a percentage (15% to 30%), the amount of which depends on whether the government prosecutes the claim or whether the whistleblower and her attorney prosecute the claim. Under the federal false claims act, anyone with knowledge can pursue the claim, not just employees.

Oregon and federal laws protect current employees who blow the whistle on cheating employers. That is, if an employee reports false CPT® coding - or other medical fraud -- to the authorities, the employer may not fire her or otherwise change her working conditions.

My client decided against pursuing a whistleblower claim under the federal false claims act. She believed that the best we could do is win a worthless judgment against a corporation that was about to go out of business. But for those of you working for big enterprises - such as national assisted living facilities or big hospitals -- that are cheating Medicare, keep in mind that you can provide a great service to all of us taxpayers if you decide to become a whistle blowing, Qui Tam, bounty hunter.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
http://www.jeffmerrick.com 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 law specifies when final or severance paychecks are due. Here are the rules as of January 2010.

Termination, firing, or discharge. If you are fired, the employer must pay you the next business day.

Lay offs. If you are (honestly) laid off, then you get paid on the next regular payday. But what is a "lay off" under Oregon law? For purposes of the final paycheck rules, if there is no recall date or the layoff will last more than 35 days, then the termination rules apply, and you must be paid on the next business day.

Resignation or quit. The answer depends on the situation. If you give two-weeks resignation notice, and the employer fires you on the spot, then the termination rules apply. If you give at least 48 hours notice, then an Oregon employer must pay you on your last day. If the employee quits with less than 48 hours notice, then an Oregon employer must give you the severance paycheck on the sooner of (a) the next regular payday or (b) five business days.

Exceptions. As with most laws, there are exceptions to every rule, which is why you should never rely on the stuff you read on the Internet. The biggest exception is for union workers, who are paid according to final paycheck rules in the collective bargaining agreement.

A good general resource for both Oregon employees and employers is the Oregon Bureau of Labor and Industries.

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