Victor Kisch
Victor Kisch is a member of Stoel Rives LLP and chair of the Labor and Employment group, which includes approximately 40 attorneys in six states (Oregon, Washington, Idaho, Utah, California and Alaska). Victor represents management and employers only, and he has specialized exclusively in labor and employment law for 23 years. He has handled over 75 trials, including trials before juries, judges, arbitrators, administrative judges and hearing officers. His practice focuses on wage and hour class actions and defending claims of discrimination, harassment, and wrongful discharge. He also maintains an active practice in the area of trade secrets and in traditional labor law matters. Victor is one of five Oregon employment attorneys elected as a Fellow in the College of Labor and Employment Lawyers; in 2008-2009, he is ranked in the first tier of Oregon Labor and Employment attorneys by Chambers USA (2009) and for several years, he has been listed in Best Lawyers in America and “AV” rated by Martindale-Hubbell. Victor is admitted to practice in Oregon, Washington and California.
Recovery of Attorney Fees for the Employer in Oregon Wage and Hour Cases
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A recent Oregon Court of Appeals case, Rogers v. RGIS, LLP, presents an opportunity for employers. In Rogers, the court awarded an employer a whopping $180,854.09 in attorney fees. The plaintiff brought one lawsuit but several wage and hour claims (overtime, minimum wage, late payment of final wages, unpaid wages for rest and meal breaks).
The court found the plaintiff prevailed on a few claims, but the employer prevailed on most. As a result the employer was awarded six figures and the plaintiff was awarded only $880 to cover fees.
This case is saying that a prevailing party may recover fees, which relate to each separate wage claim. For example, if the plaintiff brings five separate wage claims and the employer prevails on four, the employer will (in the court’s discretion) get to recover its fees to defend against the four claims upon which it prevailed.
If you’re sued under Oregon wage and hour laws, you should seek fees under ORS 20.077 and 653.055(4). You can also use the potential for recovering fees as leverage before a lawsuit is filed. Will this logic be extended to other employment claims, such as discrimination and retaliation claims?
Union Civil Wars and EFCA
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The NY Times recently ran a story about internal union squabbles, which are hindering organized labor from achieving its political goals. The high profile dispute is between the Service Employees International Union (SEIU) and the National Union of Healthcare Workers (NUHW).
The NUHW broke off from the SEIU and is now trying to take over several bargaining units formerly represented by the SEIU. The dispute is complex, but seems to boil down to a power struggle between the two leaders (Andrew Stern at the SEIU and Sal Roselli with NUHW). Hanging in the balance is over 2 million union members.
What does this mean for employers? If you’re non-union, this could be a good or a bad thing. It could be bad if you have to deal with a 3-way race, where your employees vote for the SEIU, NUHW or no union. If that's the case, you can expect the campaign to be active and aggressive with plenty of unfair labor practice charges. On the other hand, employee-voters could get turned off by the two unions attacking each other and decide not to support either.
What does this mean for the Employee Free Choice Act (EFCA - the card check bill)? If key unions can’t work together, the labor movement may have difficulty getting an effective EFCA passed.
Al Franken and EFCA
After months of litigation, Al Franken has been declared the winner of the Senate race in Minnesota. He will be the 60th Democrat in the Senate, which could enable the Democrats to override a filibuster in the Senate.
So the question becomes where does Senator Franken stand on the Employee Free Choice Act (EFCA)? Just as a reminder, this is the bill, which gives unions the right to organize by showing that a majority of employees signed cards and it basically does away with secret ballot elections.
Here is Senator Franken's answer:
Ouch. He doesn't sugarcoat it, does he? Senator Franken is a big supporter of EFCA. So, what does this mean? It makes it more likely that Democrats will push the original bill forward in the Senate or will not compromise (too much) on the original terms. Stay tuned. The EFCA drama is likely to play out in 2009.
