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.

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.

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.

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.

A young Oregon woman called me today after being fired because she was pregnant. She thought the laws against pregnancy discrimination applied only to employers of 15 or more employees. "Was that true?"

True and false, because two different laws apply: United States law and Oregon law.

Title VII is the U.S. law that prohibits discrimination in employment. Title VII applies to employers of 15 or more people. Title VII outlaws discrimination based on pregnancy, childbirth, and related medical issues.

Oregon Revised Statutes Chapter 659A prohibit discrimination in employment. Oregon's law applies to ALL employers of one or more employees. The law prohibits employment discrimination based upon "sex." ORS 659A.029 defines "sex" to include pregnancy, childbirth, and related conditions. It requires that employers treat a pregnant woman like any other employee.

So, to answer the caller's question: the coffee shop where she worked broke Oregon's law against discrimination when it fired her because she was pregnant.

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.

Employers continue to break Oregon's laws against firing someone because they get hurt on the job and use workers' compensation to pay for the medical bills. Recently, I filed a lawsuit alleging illegal retaliatory, wrongful discharge by a construction contractor against its worker. I won't talk about the facts of that case. Instead, this post discusses the rights of workers.

Workers' compensation is a compromise. Employers must insure workers against on the job injuries. It is a no-fault system. If you are injured on the job, then the insurer pays. In exchange, for guaranteed coverage, employees cannot sue the company for negligence. The purpose and effect is to save the company money from having to defend lawsuits and pay the higher monetary awards people get with personal injury lawsuits.

But some companies are greedy and seek additional, illegal savings.

If lots of people get hurt on dangerous jobs, then insurance premiums will increase. Some employers will intimidate workers, "If claims are filed, then premiums go up, and we might need to lay off employees." In other words, if you file a claim we will get rid of you.

Some Oregon employers encourage workers to use their regular medical insurance and offer to pay employee's health insurance deductible if they do not mention that they got hurt at work.

Here's what you need to know:

1. You have a right to medical coverage when hurt on the job.
2. You have a right to reinstatement to your old job when you recover.
3. You can sue your employer if it punishes you for reporting a work injury and using the workers compensation.
4. The right to sue for retaliation is not just if the company fires you, but discriminates in any way, such as giving you a less desirable shift, job, or lower-paying work.

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.

Some corporations must lay off workers when business slides. However, Oregon corporations may not use a reduction in force as cover for age discrimination or wrongful terminations. When does "downsize" or "right size" become illegal "young size?"

First, age discrimination is a big problem in Oregon and throughout the nation. In 2009, the EEOC received almost 23,000 charges of age discrimination and recovered $72 million in benefits for employees. Oregon's law against age discrimination protects both younger and older workers.

Right now, I'm helping a 50+ man who was replaced by someone in his 30s. The company has boasted, nationally, that it is coping with the recession by "right sizing" the firm. However, everyone it fired, who we know of, has been older, and that's illegal.

Well, you say, "It's the older workers who make the biggest money, so it makes sense to cut them." Well, the law does not work that way. A neutral policy (firing the high earners, for example) constitutes age discrimination if it impacts older workers disproportionately. That's called "disparate impact."

What a company should do is what my brother did for a large international corporation. As their human resources manager, he reviewed the proposed terminations and created a spreadsheet, which included the age of the workers. He alerted the foreign owners that United States law -- the Age Discrimination in Employment Act -- required the company to avoid impacting older workers.

So, today's lesson: Oregon employers must take care to avoid discriminating against older workers during lay offs or reductions in force. If employers violate the law, then Oregon employees need to educate them though an age discrimination lawsuit.

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.

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