Those of us who handle wage and hour cases learned yesterday that the Oregon Supreme Court issued a major decision denying employees the right to collect wages. In the case, Gafur v. Legacy Good Sam Hospital, workers who did not get mandatory rest breaks sued to collect unpaid wages.

Oregon law provides that employees get 10 minutes of rest for every four hours worked, and no pay may be deducted for the rest break. The employees argued that Oregon’s rest break rules means that they should have been paid 10 minutes’ wages when they were denied rest breaks. The logic to the argument is sound, in that for employees time is money. So if you’re not allowed to take the time provided to you, you should at least get the money.

But logic and law don’t always mesh. The Court got there by finding that the regulations are for health and safety and don’t create an entitlement to pay.

The other interesting thing is that the State Bureau of Labor and Industries–”BOLI”–filed an amicus, or friend of the court, brief that supported the employees. So the employees had both logic and BOLI on their side. Neither swung it with the Court.

The last interesting point is that the Court–as is common–was unanimous in its decision. At least two of the Oregon Supreme Court justices had significant background representing employees before they became judges. And most of the rest of the court had substantial experience representing the State–here BOLI. But as is common with our court, the judges’ pre-appointment backgrounds proved to be poor predictors of the outcome. This is one of those other measures of judicial integrity and judicial independence–two critically important features of our courts.

I can say as much, even though I believe the Court got it wrong. No doubt this is because I represent employees in wage claims and see these issues through a partisan filter.

David Sugerman

So this is last week’s news, but it’s important. As was widely reported, the Senate killed amendments to the Equal Pay Act. I’m only getting to it now because I was away last week.

Here’s some background on the Lebetter case, the horrible U.S. Supreme Court ruling that made this an issue. The gist is that women who get paid less than men must file their discrimination claims within 180 days of the first pay-setting act, or their rights to pursue claims are lost.

Interesting study in Senate conduct. For example, Senator McCain opposed the bill because it would, “open us to lawsuits.”  Sorry, but I have to call you on that one, Senator.  The law requires equal pay for equal work. Lawsuits happen only when employers fail to comply with anti-discrimination laws.  Or to simplify: pay equally, and you get no lawsuit.  So what you really meant was, “This change would mean that all employers who discriminate in their pay practices would have to face the consequences of illegal discrimination.”

Kudos to Oregon Senator Gordon Smith who correctly saw this as a non-partisan issue and broke with his party to vote in favor of the change. I periodically disagree with Senator Smith, but here I think he did the right thing. I would be remiss in failing to recognize his courage in doing so. I suppose some might suggest that Senator Smith voted in favor of the changes only because he faces a tough re-election in a blue state. I don’t particularly care how he got there. He did the right thing here.

My guess is that the opponents, which is to say most of the rest of the Senate Republicans, are playing with fire. The outcome is that women who are paid less than men for the same work have a very short time window for filing claims. Either the Republicans are encouraging people to file claims early on, or they are assuming that women don’t care. Bad message either way.

David Sugerman

Somehow I’m not surprised. But this report summarizes a new study indicating that employers fare better than employees when an arbitration result is challenged in court. The author describes the employees’ chances in arbitration reviews as “snowballing futility.” Nice phrase; horrible condition.

Congress is set to revisit the mandatory arbitration system abuses. Those who benefit from mandatory arbitration describe it as a fair, cheap, fast, less formal dispute resolution system. It’s often more expensive. Sometimes it’s faster, but often not. Whether arbitration is quicker depends on the speed of the various States’ court systems.

But the real lie is that it’s fair. While that is true at times, there is a perception–based on data points like this one–that it’s closer to a ring toss game at a carnival. What looks to be a fair and even chance at taking home that big teddy bear is just an illusion.

David Sugerman

As noted in a marvelous on-line LA Times piece, mandatory arbitration clause abuse has reached a new high. Or is that low?

Peggy Garrity writes about the terrible case of the woman who claimed to have been drugged and raped by her co-workers while employed in Iraq by KBR, the contractor and former Halliburton subsidiary. Read it. And then try to defend the outcome. Here’s the url:

http://www.latimes.com/news/opinion/sunday/commentary/la-oe-garrity3mar03,0,5040973.story

The sad piece is that the judge felt compelled to order arbitration because the contract signed by the woman purported to require arbitration of her claims for sexual harassment and sexual assault. This after the woman was held in isolation in a freight container and after medical evidence obtained by a doctor mysteriously disappeared.

I suppose it’s naive to hope for a Popeye moment (”That’s all I cans stand, ’cause I can’t stands no more”) from a federal judge. But still, that thin hope springs, even for those of us horribly jaundiced by the day to day in the trenches. When the judge couldn’t go so far as to say, “Enough,” in this case, it sent a message to all the corporate interests that push form contract clauses. All bets are officially off when you can “waive” your right to a jury trial in a rape case.

You’ve signed them too, I imagine, as they’re buried in that credit card offer, cable circular, or the employment agreement that you signed. What’s horrifying is that they offer no choices to employees and consumers. You want the job? You surrender your rights. End of story.

If this one isn’t extreme enough for a court to refuse arbitration, we’re in for a hell of a lot of hurt before we get this thing turned around.

David F. Sugerman

The United States Equal Employment Opportunity Commission (EEOC) filed suit in federal court in Portland on behalf of several female employees who claim to have been sexually harassed at Fred Meyer’s Oregon City store. Here is the url to the news report: http://www.msnbc.msn.com/id/23358954

According to news reports, the EEOC claims that Fred Meyer managers sexually harassed several female employees and then retaliated against the employees when they complained.

I suppose some might be critical that the government agency that is supposed to enforce discrimination laws filed suit. But speaking as someone who represents employees, it’s refreshing to see that the EEOC is enforcing employment discrimination laws.

David F. Sugerman