Chapter 652

 

      652.010 to 652.080

 

LAW REVIEW CITATIONS: 51 OLR 44 (1971)

 

      652.020

 

ATTY. GEN. OPINIONS: Conditions under which steel mill employes may work 12-hour workday, (1981) Vol 42, p 72

 

      652.080

 

NOTES OF DECISIONS

 

      Where firefighter union negotiated collective bargaining agreement with city for firefighters pursuant to Public Employees Collective Bargaining Act and agreement specified overtime calculations for firefighters, agreement did not supersede overtime calculations required under this section. IAFF, Local 3564 v. City of Grants Pass, 262 Or App 657, 326 P3d 1214 (2014)

 

      652.110 to 652.405

 

NOTES OF DECISIONS

 

      Where employer was charged with criminal violation of Massachusetts payment of wages statute for failing to pay discharged employees for their unused vacation time, employer’s policy of paying discharged employees for unused vacation time was not “employee welfare benefits plan” under section 3 (1) of Employee Retirement Income Security Act of 1974 (ERISA) and criminal action to enforce that policy is therefore not foreclosed by section 514 (a) of ERISA. Massachusetts v. Morash, 490 U.S. 107, 109 S. Ct. 1668, 104 L.Ed 98 (1989)

 

      It is unnecessary to imply private right of action for employee against secured creditor in possession under ORS 652.310 to 652.405 when to do so would render provisions of ORS 652.110 to 652.250 superfluous. Stout v. Citicorp Industrial Credit, Inc., 102 Or App 637, 796 P2d 373 (1990), Sup Ct review denied

 

      652.140

 

NOTES OF DECISIONS

 

      Where employment contract between defendant and plaintiff did not contain condition for payment of wages, this section did not permit an employer to withhold wages for any work employer determined was inadequately performed. Schulstad v. Hudson Oil Co., 55 Or App 323, 637 P2d 1334 (1981), Sup Ct review denied

 

      Where wages were withheld from employes pursuant to wage reduction agreement on condition they would be repaid when market conditions improved to allow payback from profits, withheld wages were not “due and payable” on termination of employment when market conditions, at that time, had not improved as required by condition. State ex rel Roberts v. Duco-Lam, Inc., 72 Or App 473, 696 P2d 561 (1985), Sup Ct review denied

 

      Where overtime work was not authorized by employer, plaintiff could not claim overtime wages. Leonard v. Arrow-Tualatin, Inc., 76 Or App 120, 708 P2d 630 (1985)

 

      Where employe was discharged from employment, wages were due and payable on date of discharge and fact that employe did not pick them up immediately did not waive right to them on demand. Emery v. Portland Typewriter & Office Machine, 86 Or App 635, 740 P2d 218 (1987)

 

      Employment Relations Board’s jurisdiction over wage claims arising from public employees’ arbitration award was primary, even if not exclusive, and issues of whether arbitration award was final and binding and whether employer refused or failed to comply with any provision of it were issues for board in first instance, so although not entirely without jurisdiction over dispute, circuit court should have abated claims until Employment Relations Board issued order for circuit court to enforce. Tracy v. Lane County, 305 Or 378, 752 P2d 300 (1988)

 

      Employer remedy for misconduct of employee must be by separate action for damages, not offset against wages due. Miller v. C.C. Meisel Co., Inc., 183 Or App 148, 51 P3d 650 (2002)

 

      Collective bargaining agreement “otherwise provides” for payment of wages upon termination of employment only if agreement affirmatively provides different wage payment requirement applicable to employee’s termination. Smoldt v. Henkels & McCoy, Inc., 334 Or 507, 53 P3d 443 (2002)

 

      Where sale of business results in termination of employment under seller, notwithstanding that individual continues in employment under purchaser, sale imposes duty to accelerate payment of wages other than wages specifically exempted by this section from acceleration. Wilson v. Smurfit Newsprint Corp., 197 Or App 648, 107 P3d 61 (2005), Sup Ct review denied

 

      Where decedent, who was employee of defendant company, died in truck accident while on job, decedent did not “quit” as used in this section because term implies intentional and voluntary act of leaving employment. Loucks v. Beaver Valley’s Back Yard Garden Products, 274 Or App 732, 362 P3d 277 (2015)

 

      652.150

 

NOTES OF DECISIONS

 

      Employer “willfully” fails to pay wages or compensation if employer is aware of and intends action, whether or not acting with malice or in bad faith. Sabin v. Willamette-W. Corp., 276 Or 1083, 557 P2d 1344 (1976)

 

      Notwithstanding employe’s initial waiver of immediate payment of severance pay, employer became liable for penalty for nonpayment upon refusal of employe’s subsequent demands for immediate payment. Crofoot v. Columbia-Willamette Air Pollution Authority, 31 Or App 903, 571 P2d 1266 (1977)

 

      Computation of wage penalty for piecework roofing employes by determining hourly wage and assuming 8-hour day to compute employe’s daily wage was proper under this section, in absence of evidence that roofers would not ordinarily work 8-hour day. Braddock v. Capfer, 284 Or 237, 586 P2d 340 (1978)

 

      Where trial court found defendant intentionally did not pay plaintiff although it had ability to do so, defendant’s action was “willful” within meaning of this section. Schulstad v. Hudson Oil Co., 55 Or App 323, 637 P2d 1334 (1981), Sup Ct review denied

 

      Although evidence showed that defendant had difficulty in processing payment for all plaintiff’s wages on her last day of work, it supported finding that defendant’s delay was “willful” within meaning of this section. Putnam v. Department of Justice, 58 Or App 111, 647 P2d 949 (1982)

 

      Where plaintiffs instituted action to collect their commissions on the date the commissions were due, the due date and date of commencement of the action were the same and no penalty was assessable under this section. Reed v. Curry-Kropp-Cates, Inc., 61 Or App 520, 658 P2d 531 (1983)

 

      Corporate officer and shareholder who is also corporate employe may recover penalty wages under this section. Wyss v. Inskeep, 73 Or App 661, 699 P2d 1161 (1985), Sup Ct review denied

 

      Term “willfully” as it appears in this section means that employer knew what it was doing, intended to do it, and was free agent; showing of good faith does not preclude finding of willful failure to pay. Kling v. Exxon, 74 Or App 399, 703 P2d 1021 (1985)

 

      Plaintiff was entitled to civil penalty under this section where defendant’s nonpayment of wages was willful and intentional, regardless of whether refusal to pay was based on misunderstanding. Wells v. Carson, 78 Or App 536, 717 P2d 640 (1986)

 

      State is “employer” within meaning of this section. Pope v. Judicial Dept., 79 Or App 732, 721 P2d 462 (1986)

 

      Where employer, after discharge of employe, failed to pay all wages owing as required by ORS 652.140, because employe retained certain of employer’s equipment, failure was “willful” and employe was entitled to penalty wages under this section. Emery v. Portland Typewriter & Office Machine, 86 Or App 635, 740 P2d 218 (1987)

 

      Where parties to contract were domiciled and contracted in Oregon, contractor was licensed in Oregon and only relevant event that took place outside state was performance of labor, Oregon statute governing contracts between forestry contractors and workers is applicable to action for unpaid wages. Perez v. Coast to Coast Reforestation Corp., 100 Or App 115, 785 P2d 365 (1990)

 

      Voluntary overpayment at time of termination does not act as credit against penalty for unpaid wages unless overpayment reflects intent to satisfy wage-claim obligations. Stanich v. Precision Body and Paint, Inc., 151 Or App 446, 950 P2d 328 (1997)

 

      Failure to pay wages may be done “willfully,” notwithstanding subjective good-faith belief that wages are not due. Vento v. Versatile Logic Systems Corp., 167 Or App 272, 3 P3d 176 (2000)

 

      Untimely payment of wages to terminated employee does not automatically also constitute failure to pay minimum wage. Hurger v. Hyatt Lake Resort, Inc., 170 Or App 320, 13 P3d 123 (2000), Sup Ct review denied

 

      Penalty for failure to pay wages continues to accrue on nonwork days. Richardson v. Sunset Science Park Credit Union, 268 F3d 654 (9th Cir. 2001)

 

      Where employer failed to pay overtime wages, subsequent termination of employment did not provide basis for additional claim based on nonpayment of same wages at termination. Mathis v. Housing Authority of Umatilla County, 242 F. Supp. 2d 777 (D. Or. 2002)

 

      Award of penalty under this section and award of liquidated damages under federal Fair Labor Standards Act does not provide double recovery, although amount of prejudgment interest is subject to reduction for liquidated damages. Mathis v. Housing Authority of Umatilla County, 242 F. Supp. 2d 777 (D. Or. 2002)

 

      Where same action is violation of Oregon law and federal Fair Labor Standards Act, claimant may recover penalty under this section or federal Act, whichever is greater. Mathis v. Housing Authority of Umatilla County, 242 F. Supp. 2d 777 (D. Or. 2002)

 

      Penalty for failure to pay wages and compensation of “employee whose employment ceases” applies for all amounts earned and unpaid, not just amount owed for final pay period. Salinas v. One Stop Detail, 194 Or App 457, 95 P3d 745 (2004), Sup Ct review denied

 

      Employer “willfully” fails to pay wages only if employer has, or reasonably should have, full knowledge of payment obligation, but consciously and voluntarily decides not to fulfill obligation. Wilson v. Smurfit Newsprint Corp., 197 Or App 648, 107 P3d 61 (2005), Sup Ct review denied

 

      Where employer makes unlawful deduction in violation of ORS 652.610 and fails to remedy unlawful deduction within statutory deadline for payment of wages under ORS 652.140, employer is subject to paying both penalty under ORS 652.615 for unlawful deduction and under this section for untimely payment of wages. Wilson v. Smurfit Newsprint Corp., 197 Or App 648, 107 P3d 61 (2005), Sup Ct review denied

 

      Interest at rate set in ORS 82.010 begins accruing on penalty wages 30 days after willful nonpayment occurs. Wilson v. Smurfit Newsprint Corp., 197 Or App 648, 107 P3d 61 (2005), Sup Ct review denied

 

      Penalty wage claim for work on public contract is not claim for labor that may be recovered from surety bond. North Marion School District #15 v. Acstar Insurance Co., 205 Or App 484, 136 P3d 42 (2006), aff’d 343 Or 305, 169 P3d 1224 (2007)

 

      Employer who does not timely pay employee’s earned wages becomes liable for single penalty, and magnitude of penalty depends on duration of employer’s failure to pay. Russell v. U.S. Bank National Association, 246 Or App 74, 265 P3d 1 (2011)

 

      “Wages” does not include post-judgment interest. Young v. State of Oregon, 246 Or App 115, 265 P3d 32 (2011), Sup Ct review denied

 

      652.160

 

NOTES OF DECISIONS

 

      Requirement to pay wages conceded by employer to be due does not shelter employer from penalty for failure to pay disputed wages. Schulstad v. Hudson Oil Co., 55 Or App 323, 637 P2d 1334 (1981), Sup Ct review denied

 

      Wages “conceded” by employer are wages that employer assents to owing employee. Cheeseman v. Jackson & Perkins Wholesale, Inc., 224 Or App 9, 197 P3d 527 (2008)

 

      652.190

 

NOTES OF DECISIONS

 

      Any wage payments due to decedent’s spouse or children must be made as specified by ORS 652.120. Loucks v. Beaver Valley’s Back Yard Garden Products, 274 Or App 732, 362 P3d 277 (2015)

 

      652.200

 

NOTES OF DECISIONS

 

      “Wages,” as used in this section, includes commissions on sales. Hekker v. Sabre Constr. Co., 265 Or 552, 510 P2d 347 (1973)

 

      Where bank took control of company’s operations to protect its interests as creditor, company department manager’s claim against bank for unpaid vacation and severance benefits was “action for collection of wages.” Chvatal v. United States National Bank of Oregon, 285 Or 11, 589 P2d 726 (1979)

 

      In action for collection of wages, this section does not provide for attorney fees on appeal. Richards v. Watrous, 287 Or 345, 599 P2d 460 (1979)

 

      Where plaintiff was awarded attorney fees under this section, it was proper for trial court to offset defendant’s counterclaim against attorney fee award. Schulstad v. Hudson Oil Co., 55 Or App 323, 637 P2d 1334 (1981), Sup Ct review denied

 

      Attorney fees recoverable under this section are costs, not part of plaintiff’s substantive claim, and thus are not included in the jurisdictional amount for the purpose of determining whether the district court has exclusive jurisdiction. Springer v. Bowen, Lee & Co., 60 Or App 60, 652 P2d 863 (1982)

 

      Where employe violated employment contract but employer acquiesced in the violation by continuing the employment after its discovery, employer was liable for attorney fees. Garvin v. Timber Cutters, Inc., 61 Or App 497, 658 P2d 1164 (1983)

 

      Corporate officer and shareholder who is also corporate employe may recover attorney fees. Wyss v. Inskeep, 73 Or App 661, 699 P2d 1161 (1985), Sup Ct review denied

 

      Statute does not deny equal protection to defendant by permitting award of attorney fees to prevailing plaintiffs only. Kling v. Exxon, 74 Or App 399, 703 P2d 1021 (1985)

 

      Though term “wages” in this section is not defined by statute, courts have broadly construed term to mean any compensation for employe’s services. Kantor v. Boise Cascade Corp., 75 Or App 698, 708 P2d 356 (1985), Sup Ct review denied

 

      Legislature did not provide that damages recovered for employer’s breach of employment contract were wages within meaning of this section entitling employe to statutory attorney fees. Bruce v. S. M. Motor Co., 81 Or App 227, 724 P2d 911 (1986)

 

      Where plaintiff was awarded damages for defendant’s breach of contract, he was not entitled to attorney fees because damages for breach of contract are not wages. Swartout v. Precision Castparts Corp., 83 Or App 203, 730 P2d 1270 (1986)

 

      Where trial court could not properly find that breaches of contract of employment were not “willful” where breaches actually caused or would have justified employee’s termination, employee is not entitled to attorney fees in wage claim. Greenwood Forest Products, Inc. v. Sapp, 98 Or App 276, 779 P2d 180 (1989)

 

      Where statute allows award of fees to successful party, attorney fees may be taken into account for purposes of determining whether or not amount in controversy satisfies jurisdictional requirements. Hendrickson v. Xerox Corp., 751 F Supp 175 (D. Or 1990)

 

      “Wages” includes penalty wage provided for under ORS 652.150. Wyatt v. Body Imaging, P.C., 163 Or App 526, 989 P2d 36 (1999), Sup Ct review denied

 

      In action for collection of wages, written notice of wage claim must include name of plaintiff or plaintiffs. Belknap v. U.S. Bank National Association, 235 Or App 658, 234 P3d 1041 (2010), Sup Ct review denied

 

      652.210

 

NOTES OF DECISIONS

 

      Plaintiff was not employee where corporation did not agree to pay plaintiff fixed rate and both agreed to share profits and losses. Thompson v. Bolliger, Hampton & Tarlow, 118 Or App 700, 849 P2d 526 (1993), Sup Ct review denied

 

      652.220

 

NOTES OF DECISIONS

 

      Action on behalf of alleged class of employes of defendant telephone company alleging sex discrimination in wage rates and retaliatory acts after administrative discrimination complaints were filed raised issues of statutory construction more appropriately resolved by state courts. Forsberg v. Pacific Northwest Bell Telephone Co., 623 F Supp 117 (1985)

 

      To make prima facie case that wages were paid at rate less than rate paid to opposite sex, plaintiffs had to show merely that they were performing work comparable to that of male teachers and were paid less than male teachers and did not have burden of proving pay differential was based on sex. Smith v. Bull Run School District No. 45, 80 Or App 226, 722 P2d 27 (1986), Sup Ct review denied

 

LAW REVIEW CITATIONS: 20 WLR 261 (1984)

 

      652.310 to 652.410

ATTY. GEN. OPINIONS: Validity of 10-hour day, 40-hour week without overtime in public employment, (1972) Vol 35, p 1083

 

      652.310

 

NOTES OF DECISIONS

 

      Entity that conducts essentially same business as predecessor is successor and is liable for wage claims against predecessor business. Blachana, LLC v. Bureau of Labor and Industries, 354 Or 676, 318 P3d 735 (2014)

 

      Where plaintiff remained on state payroll while on leave from state after assuming full-time duties as president of union and union reimbursed state for state’s payments to plaintiff, state was paying plaintiff for rendering personal services to union and state was not plaintiff’s employer under this section. Dinicola v. State of Oregon, 280 Or App 488, 382 P3d 547 (2016), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Construing “labor directly employed” by county to include employes generally, (1972) Vol 35, p 1083

 

      652.320

 

NOTES OF DECISIONS

 

      Where plaintiff remained on state payroll while on leave from state after assuming full-time duties as president of union and union reimbursed state for state’s payments to plaintiff, state was paying plaintiff for rendering personal services to union and state was not plaintiff’s employer under ORS 652.310; therefore, plaintiff did not make wage claim, as defined by this section, against plaintiff’s employer for personal services rendered to plaintiff’s employer when plaintiff initiated wage-claim action against state for unpaid overtime wages plaintiff accrued while rendering personal services to union. Dinicola v. State of Oregon, 280 Or App 488, 382 P3d 547 (2016), Sup Ct review denied

 

      652.335

 

NOTES OF DECISIONS

 

      Placement of name on enterprise liquor license does not establish that person is operator of enterprise. State ex rel Nilsen v. Hemstreet, 7 Or App 474, 491 P2d 1185 (1971)

 

      652.340

 

NOTES OF DECISIONS

 

      “Doing business” within meaning of this section means doing business as employer. State ex rel Nilsen v. Hayes, 20 Or App 135, 530 P2d 1264 (1975)

 

      652.355

 

NOTES OF DECISIONS

 

      Action on behalf of alleged class of employes of defendant telephone company alleging sex discrimination in wage rates and retaliatory acts after administrative discrimination complaints were filed raised issues of statutory construction more appropriately resolved by state courts. Forsberg v. Pacific Northwest Bell Telephone Co., 623 F Supp 117 (1985)

 

      Discharge or discrimination because claimant files wage claim does not require employer intent to retaliate against claimant. Brown v. American Property Management Corp., 167 Or App 53, 1 P3d 1051 (2000)

 

      “Actual damages” resulting from discrimination or discharge includes noneconomic damages. Brown v. American Property Management Corp., 167 Or App 53, 1 P3d 1051 (2000)

 

      Request for wage increase for future work is not “wage claim.” Perri v. Certified Languages International, LLC, 187 Or App 76, 66 P3d 531 (2003)

 

      Where plaintiff remained on state payroll while on leave from state after assuming full-time duties as president of union and union reimbursed state for state’s payments to plaintiff, state was paying plaintiff for rendering personal services to union and state was not plaintiff’s employer under ORS 652.310; therefore, plaintiff did not make wage claim, as defined by ORS 652.320, against plaintiff’s employer for personal services rendered to plaintiff’s employer when plaintiff initiated wage-claim action against state for unpaid overtime wages plaintiff accrued while rendering personal services to union and, accordingly, plaintiff did not allege facts indicating state discriminated against plaintiff for filing wage claim for purposes of this section. Dinicola v. State of Oregon, 280 Or App 488, 382 P3d 547 (2016), Sup Ct review denied

 

      As used in this section, “wage claim” means demand or request that employee has against employer for compensation due and owing for employee’s personal services; thus, where employee complained to supervisors about inadequate wages, employee’s complaints qualified for protection under this section. Brunozzi v. Cable Communications Inc., 851 F3d 990 (9th Cir. 2017)

 

      652.360

 

NOTES OF DECISIONS

 

      Wage reduction agreements entered into between employer and employes were not intended to exempt employer from “any provision of or liability or penalty imposed” by either payment of wages statutes or wage claim enforcement statutes. State ex rel Roberts v. Duco-Lam, Inc., 72 Or App 473, 696 P2d 561 (1985), Sup Ct review denied

 

      Employer is not barred from asserting affirmative defense such as accord and satisfaction, waiver or estoppel where renegotiated or substituted employment agreement does not release employer from statutory right or obligation under wage payment statutes. Erickson v. American Golf Corp., 194 Or App 672, 96 P3d 843 (2004)

 

      652.570

 

NOTES OF DECISIONS

 

      This section does not apply to sale or transfer that forecloses security interest created before 90-day period. State ex rel Roberts v. Far West Federal Bank, 100 Or App 231, 785 P2d 798 (1990), Sup Ct review denied

 

      652.610

 

NOTES OF DECISIONS

 

      Illegal deduction of wages may be addressed either as regular wage claim under ORS 652.120 or 652.140 or by specific claim of illegal deduction under ORS 652.615. Allen v. County of Jackson, 169 Or App 116, 7 P3d 739 (2000)

 

      For purposes of determining whether withholding, deduction or diversion has occurred, “employee’s wages” includes total pecuniary compensation due employee for services. Allen v. County of Jackson County, 191 Or App 185, 82 P3d 628 (2003), aff’d 340 Or 146, 129 P3d 694 (2006)

 

      Where employer makes unlawful deduction and fails to remedy unlawful deduction within statutory deadline for payment of wages under ORS 652.140, employer is subject to paying both penalty under ORS 652.615 for unlawful deduction and under ORS 652.150 for untimely payment of wages. Wilson v. Smurfit Newsprint Corp., 197 Or App 648, 107 P3d 61 (2005), Sup Ct review denied

 

      652.615

 

NOTES OF DECISIONS

 

      Statutory minimum penalty applies where no actual damages result from wage deductions. Richardson v. Sunset Science Park Credit Union, 268 F3d 654 (9th Cir. 2001)

 

      Where unauthorized payroll deduction was for purpose of recouping overpayment under employee benefit plan, cause of action was not preempted by federal Employee Retirement Income Security Act. Albin v. Qwest Communications Corp., 194 F. Supp. 2d 1138 (D. Or. 2002)