Recent BOLI Final Orders

 

 

This page contains BOLI Final Orders issued since January 1, 2014, that are published in 2014 BOLI Orders.  Orders previously appearing on this page that were issued in 2012 or 2013 can now be found in the 32 BOLI Orders.
 
 
In the Matter of Oak Harbor Freight Lines, Inc. (January 15, 2014), Case No. 66-12, appeal pending.  The Agency's Formal Charges alleged that Respondent violated OFLA by requiring that Complainant provide a medical note to verify that each of his absences from work was related to his OFLA qualifying condition and constructively denying him intermittent OFLA leave to which he was entitled by disciplining him for absences and tardies that were due to his serious health condition. The Formal Charges also alleged that Respondent violated Oregon's employment disability laws by failing to reasonably accommodate Complainant's disability, by failing to initiate an interactive process with Complainant related to his disability, and by utilizing standards, criteria or methods of administration that had the effect of discriminating on the basis of disability. The forum found that Respondent engaged in one unlawful employment practice by failing to reasonably accommodate Complainant's disability on one occasion. However, the forum did not award damages because there was no evidence that Complainant lost any pay, incurred any out-of-pocket expenses, or suffered any emotional, mental, and physical suffering that was attributable to Respondent's unlawful employment practice. Although Respondent’s practice of requiring Complainant to provide a "medical note" for each OFLA-related absence did not violate the OFLA with respect to Complainant because Complainant’s OFLA-related absences fit within the exceptions in OAR 839-009-0260(9), the forum noted that this practice would violate the OFLA if no exceptions applied.  (NOTE:  This Final Order appears in 2014 BOLI Orders beginning on page 1.)
 
In the Matter of High Mountain Plumbing Company and Diane Marie Cina, individually (March 4, 2014), Case No. 40-13 (Amended Final Order)
.  Respondent High Mountain Plumbing Company (“HMPC”) failed to pay the prevailing wage rate to four workers on a public works and filed nine inaccurate certified payroll reports related to that work.  HMPC’s failure to pay the prevailing wage rate to one worker was intentional and Respondent Cina, HMPC’s corporate president, was responsible for that failure.  The Commissioner assessed $4,000 in civil penalties against HMPC for its failure to pay the prevailing wage rate and $6,000 in civil penalty against HMPC for its defective certified payroll reports.  The Commissioner also placed HMPC and Cina on the list of ineligibles to received public works contracts for three years.  (NOTE:  This Amended Final Order appears in 2014 BOLI Orders beginning on page 40.) 
  
In the Matter of Giants, Inc., George T. Comalli, Hollywood Fitness, LLC, and Hollywood Fitness Center, LLC (March 19, 2014), Case No. 23-14.  A wage claimant worked for Respondents from September 5, 2012, through January 15, 2013, earning $6,804, and was only paid $3,178.  The forum awarded the claimant $3,626 in unpaid wages.  The forum found that Respondents’ failure to pay claimant was willful and awarded claimant $2,160 in penalty wages.  (NOTE:  This Final Order appears in 2014 BOLI Orders beginning on page 53.)
 
In the Matter of Aaron Alexander dba Currinsville Deli (March 19, 2014), Case No. 12-14.  A wage claimant worked straight time and overtime hours for Respondent from January 23, 2012, through March 27, 2012, earning $4,906.25, and was paid nothing for her work.  The forum awarded the claimant $4,906.25 in unpaid wages.  The forum found that Respondent’s failure to pay claimant was willful and awarded claimant $2,400.00 in penalty wages.  The forum also awarded civil penalties of $2,400.00 to claimant based on Respondent's failure to pay her overtime wages.  (NOTE:  This Final Order appears in 2014 BOLI Orders beginning on page 60.)
 
In the Matter of Diamond Concrete, Inc. and Eric James O'Malley and Marnie Leanne O'Malley (April 3, 2014), Case No. 58-12.  Respondent Diamond Concrete, Inc. employed workers on seven separate public works projects. It intentionally failed to pay prevailing wages to 17 workers on four of the projects, and it filed inaccurate and/or incomplete certified payroll statements on 122 different occasions. It failed to keep records and make them available to the Agency upon its request, and it failed to post the prevailing wage rate on each of the seven projects. Individual Respondent Eric James O’Malley was the president of the corporate respondent and the person responsible for payment of prevailing wages. Respondents Diamond Concrete, Inc. and Eric James O’Malley are placed on the List of Ineligibles for a period of three years. ORS 279C.860; OAR 839-025-0085. Civil penalties are assessed against the corporation as follows: $16,388.53 for failing to pay the prevailing wages; $122,000.00 for filing inaccurate or incomplete certified payroll; $1000.00 for failing to keep records and make them available; and $7,000.00 for failing to post the prevailing wage rates.  (NOTE: This Final Order appears in 2014 BOLI Orders begining on page 68.)
 

In the Matter of Hard Rock Concrete, Inc. and Rocky Evans (April 10, 2014), Case No. 39-13.  Respondent Hard Rock Concrete, Inc. was a sub-contractor installing concrete slabs, curbs, and sidewalks in 2011 in a public works project at the Hillside Elementary School in Jackson County. Respondent Rocky Evans was Respondent Hard Rock’s president, and was responsible for its actions. Respondent Hard Rock failed to pay prevailing wages, sometimes intentionally, to seven of its employees on the project. Unpaid wages were ultimately paid to the workers by the general contractor. Respondent Hard Rock submitted 22 inaccurate certified payroll reports. Civil penalties were imposed on Respondent Hard Rock totaling $13,600. Respondent Hard Rock and Respondent Rocky Evans were placed on the list of contractors ineligible to receive contracts for public works for three years. (NOTE: This Final Order appears in 2014 BOLI Orders begining on page 77.)

In the Matter of Zoom Contracting, LLC dba Zoom Garage Door (April 16, 2014), Case No. 52-13.  A business operating under the name Zoom Garage Door was a subcontractor on a public works contract. The records of the Oregon Secretary of State listed it as an assumed business name of Respondent Zoom Contracting, LLC. In fact, the business had been purchased by an individual not named as a respondent. It was owned by that individual at the time the subcontract was entered into and performed, and at the time the wage claimants were hired and performed their work. Registration of an assumed business name by a limited liability company is not sufficient to establish liability for prevailing wage and other wage-related violations when the business, prior to and at the time of the violations, had been sold to a third-party, the wage claimants believed the third-party to be the owner of the business, and the Respondent had no relationship with, and was entirely unaware of the employment of the wage claimants and the existence of the public works project. The Commissioner has jurisdiction over the allegations under ORS 279C.865, ORS 279C.840, ORS 279C.845, ORS 279C.836, and ORS 653.045, but there is no liability as to the Respondent.  (NOTE: This Final Order appears in 2014 BOLI Orders begining on page 111.)