Recent BOLI Final Orders

 

 

This page contains descriptions of and links to all BOLI Final Orders issued since January 1, 2014, listed in chronological order of issuance.
 
 
In the Matter of Oak Harbor Freight Lines, Inc. (January 15, 2014), Case No. 66-12.  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.  NOTECite this case as 33 BOLI Orders 1 (2014).
 
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.  NOTECite this case as 33 BOLI Orders 40 (2014). 
  
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:  Cite this case as 33 BOLI Orders 53 (2014).
 
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.  NOTECite this case as 33 BOLI Orders 60 (2014).
 
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.  NOTECite this case as 33 BOLI Orders 68 (2014).
 

In the Matter of Hard Rock Concrete, Inc. and Rocky Evans (April 10, 2014), Case No. 39-13, appeal pending.  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. NOTECite this case as 33 BOLI Orders 77 (2014).

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.  NOTECite this case as 33 BOLI Orders 111 (2014).

In the Matter of Maltby Biocontrol, Inc. dba Biotactics, Howard Maltby, Louis M. Bassett, Sr., and James Bassett (April 22, 2014), Case Nos. 31-13 & 34-13.  The Agency alleged in its Formal Charges that (1) Respondent Maltby Biocontrol, Inc. ("MBI") subjected six Guatemalan and Hispanic employees, including Erix Guevara and Robinson Calderon, to a hostile working environment in violation of ORS 659A.030(1)(b) because of their race and national origin through the actions of James Bassett, a coworker; (2) MBI, through Respondent Howard Maltby, discharged Guevara based on his cooperation with a law enforcement agency in a criminal investigation and his race/national origin in violation of ORS 659A.230(1) and ORS 659A.030(1)(a); and (3) Respondents Howard Maltby, James Bassett, and Louis Bassett, Sr., individually aided and abetted Respondent MBI in the commission of the alleged unlawful practices and were jointly and severally liable for the practices. The forum held that: (1) MBI was not liable for James Bassett’s racial epithets and other harassment on the job that occurred before August 2010 because MBI took immediate and appropriate corrective action upon learning of Bassett’s behavior; (2) MBI was liable for J. Bassett’s participation in a physical assault on Guevara and Calderon in January 2011 and for the subsequent hostile work environment experienced by Guevara and Calderon because MBI failed to take immediate and appropriate corrective action; (3) James Bassett and Howard Maltby were individually liable as aiders and abettors for MBI’s violation of ORS 659A.030(1)(b); (4) MBI discharged Guevara based on his national origin and his cooperation in a criminal investigation being conducted by the Klamath County Sheriff; and (5) Howard Maltby was liable as an aider and abettor for MBI’s discharge of Guevara. The forum awarded $100,000 each in damages to Guevara and Calderon for their physical, emotional and mental suffering.  NOTECite this case as 33 BOLI Orders 121 (2014).

In the Matter of Northwest Housing Alternatives (April 28, 2014), Case No. 05-14.  Requester Northwest Housing Alternatives, Inc., a non-profit corporation, planned to redevelop its Milwaukie, Oregon campus to replace the buildings that provide affordable housing, office space, and a homeless shelter. Upon Requester’s request for a determination, the Commissioner determined that the proposed redevelopment was a single “project” under the prevailing wage laws and that it should not be divided into separate projects and that prevailing wages must be paid to the workers on the entire redevelopment.  NOTECite this case as 33 BOLI Orders 165 (2014).

In the Matter of Farwest Hatchery LLC (May 2, 2014), Case Nos. 31-14 & 37-14Two wage claimants worked for Respondent and were not paid their earned wages.  After filing their wage claims, one claimant’s wages were paid in full and the other wage claimant’s wages were paid in part from BOLI’s Wage Security Fund (“WSF”).  The Agency moved for and was granted summary judgment as to the remaining wages owed by Respondent, the wages paid out from the WSF, and the 25 percent WSF penalty sought by the Agency.  The forum found that Respondent’s failure to pay the wages was willful and assessed penalty wages.  The forum also ordered Respondent to pay a 25 percent penalty on the wages paid to each claimant from the WSF.  NOTECite this case as 33 BOLI Orders 176 (2014).

In the Matter of Hey Beautiful Enterprises, Ltd. (May 9, 2014), Case Nos. 16-14 and 19-14 (Amended Final Order).  Respondent employed four wage claimants in 2012 and 2013 in Oregon at the agreed wage rates of $9.00 and $11.00 per hour.  All four performed work on clients and also performed other work at Respondent’s direction, for Respondent’s benefit.  Three claimants were only paid for part of their work and the fourth claimant was paid nothing.  Respondent asserted it had paid the claimants in full based on employment contracts in which they agreed to be paid only for work performed on clients.  The forum rejected this defense and ordered Respondent to pay claimants a total of $5,828.57 in unpaid, due, and owing wages.  Respondent’s failure to pay the wages was willful, and Respondent was ordered to pay claimants a total of $9,120.00 in ORS 652.150 penalty wages.  Based on Respondent's failure to pay at least the minimum wage to all four claimants and overtime wages to two of the claimants, Respondent was also ordered to pay claimants a total of $6,456.00 in ORS 653.055(1)(b) civil penalties.  NOTECite this case as 33 BOLI Orders 189 (2014).

In the Matter of Grant and Leslie Hamilton dba MacGregors (May 9, 2014), Case No. 26-14.  Respondents failed to pay wages to six Claimants they employed and continued to fail to pay the wages after they were served with notice of the non-payment.  The Agency ultimately paid $3,698.33 in unpaid wages from the Wage Security Fund ("WSF").  Respondents were held liable for 30 days of penalty wages at the daily rate earned by each Claimant in an 8-hour day and were ordered to pay $13,392.00 in penalty wages.  Respondents were also ordered to pay the WSF $3,698.33, the amount of unpaid wages paid out from the WSF, along with a 25% penalty of $923.83.  NOTECite this case as 33 BOLI Orders 209 (2014).

In the Matter of Multnomah County Sheriff's Office (May 19, 2014), Case No. 01-14, appeal pending.  Complainant, who qualified as a disabled veteran under Oregon’s Veterans’ Preference Law, ORS 408.225 through 408.237, was one of three applicants, all sergeants with Respondent’s office, who applied for a promotion to Law Enforcement Lieutenant.  Complainant was not hired. Respondent did not comply with the Law in that it failed to devise and apply methods to give special consideration in the hiring decision to veterans and disabled veterans. Damages for emotional distress were awarded in the amount of $50,000, and Respondent was ordered to comply with the law and train its staff.  NOTECite this case as 33 BOLI Orders 220 (2014).

In the Matter of Charlene Anderson dba Domestic Rescue (June 27, 2014), Case No. 41-14.  Respondent, who operated a house-cleaning business, employed Claimant as a house cleaner.  During the weeks at issue, Respondent failed to pay Claimant any of the wages owing to her. Claimant terminated her employment. Notice was sent to the Respondent, who did not dispute that she owed wages, but did object to the hourly rate claimed, which the Agency proved was $10 per hour. Claimant was not paid for 38 hours worked and is owed $380 in unpaid, due and owing wages. The failure to pay Claimant her wages due and owing at the time of termination was willful and Respondent was ordered to pay Claimant $2,400 in penalty wages.  NOTECite this case as 33 BOLI Orders 253 (2014).

In the Matter of CSRT LLC and Robert Sabo (August 28, 2014), Case No. 38-14.  Respondent CSRT employed Claimant from November 15, 2012, through May 15, 2013, at the agreed rate of $20 per hour. Claimant earned a total of $10,400.00 and was paid nothing for her work. Respondents CSRT and Robert P. Sabo were ordered to pay Claimant $10,400.00 in unpaid, due and owing wages. CSRT and Sabo, as a successor in interest to CSRT, willfully failed to pay these wages and were ordered to pay Claimant $4,800.00 in ORS 652.150 penalty wages.  NOTE Cite this case as 33 BOLI Orders 263 (2014).
 
In the Matter of Kara Johnson dba Duck Stop Market (November 6, 2014), Case No. 30-14.  Complainant, an individual with multiple disabilities who has been prescribed a service dog and uses service dogs to mitigate her disabilities, was not allowed to shop in Respondent’s convenience store in April 2013 while accompanied by her service dogs.  Respondent violated ORS 659A.142(4).  The forum awarded Complainant $60,000 in damages for physical, emotional, and mental suffering.  Cite this case as 34 BOLI Orders 2 (2014).