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Final Order
Hearings Unit: Final Order
 
In the Matter of
NORMA AMEZOLA, dba TAQUERIA EL REY
Final Order of
Commissioner Jack Roberts
Issued April 23, 1999.

Case Number 22-99

SYNOPSIS
FINDINGS OF FACT-Procedural
FINDINGS OF FACT-The Merits
ULTIMATE FINDINGS OF FACT
CONCLUSIONS OF LAW
OPINION
ORDER

 
SYNOPSIS
 
Respondent operated a restaurant and employed Claimant as a cook. Respondent failed to pay Claimant all the wages due upon termination, in violation of ORS 653.025(2) (minimum wages), OAR 839-020-0030(1) (overtime wages), and ORS 652.140. Respondent´s failure to pay the wages was willful, and the Commissioner ordered Respondent to pay civil penalty wages. ORS 652.140, 652.150, 653.025(2), 653.045, 653.055(1), 653.261(1), and OAR 839-20-030(1).
_______________
 
The above-entitled contested case came on regularly for hearing before Erika L. Hadlock, designated as Administrative Law Judge ("ALJ") by Jack Roberts, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held on February 18, 1999, in the conference room of the Oregon Bureau of Labor and Industries, 3865 N.E. Wolverine Street, Salem, Oregon.
 
The Bureau of Labor and Industries (the Agency) was represented by Linda Lohr, an employee of the Agency. Rocio Ramirez Cruz (Claimant) was present throughout the hearing and was not represented by counsel. Respondent Norma Amezola was present throughout the hearing and represented herself.
 
The Agency called two witnesses: Claimant and Gerhard Taeubel, a compliance specialist with the Wage and Hour Division of the Agency. Respondent called herself, Salvador Amezola, Connie Jo Bacon, and Claimant as witnesses.
 
The ALJ received into evidence Administrative Exhibits X-1 to X-11, Agency Exhibits A-1 to A-14 (submitted with the Agency´s case summary), and Agency Exhibits A-15 and A-16 (offered at hearing). The ALJ did not receive into evidence any documentary exhibits from Respondent, but did enter into the record as offers of proof two documents marked R-1 and R-2. The evidentiary record closed on February 18, 1999.
 
Having fully considered the entire record in this matter, I, Jack Roberts, Commissioner of the Bureau of Labor and Industries, hereby make the following Findings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusions of Law, Opinion, and Order.
 
FINDINGS OF FACT -- PROCEDURAL
 
1) On or about July 6, 1998, Claimant filed a wage claim with the Agency. She alleged that Respondent employed her and failed to pay wages earned and due to her.
 
2) When she filed the wage claim, Claimant assigned to the Commissioner of Labor, in trust for Claimant, all wages due from Respondent.
 
3) Claimant brought her wage claim within the statute of limitations.
 
4) On September 14, 1998, the Agency served on Respondent an Order of Determination based upon the wage claim filed by Claimant and the Agency´s investigation. The Order of Determination alleged that Respondent owed a total of $5637.75 in unpaid wages and $1562.40 in civil penalty wages, plus interest, and required that, within 20 days, Respondent either pay these sums in trust to the Agency, request an administrative hearing and submit an answer to the charges, or demand a trial in a court of law.
 
5) On or about October 1, 1998, Respondent filed an answer to the Order of Determination in which she denied that she owed Claimant any amount of unpaid wages. Respondent later requested a contested case hearing.
 
6) On December 22, 1998, the Agency requested a hearing in this matter. On January 5, 1999, the Hearings Unit issued a Notice of Hearing to Respondent, the Agency, and the Claimant stating the time and place of the hearing. Together with the Notice of Hearing, the forum sent a document entitled "Summary of Contested Case Rights and Procedures" containing the information required by ORS 183.413, and a copy of the forum´s contested case hearings rules, OAR 839-050-0000 to 839-050-0440.
 
7) On January 29, 1999, ALJ McCullough issued an interim order notifying the participants that the case would be reassigned to ALJ Hadlock. The same day, ALJ McCullough issued a case summary order requiring the Agency and Respondent each to submit a list of witnesses to be called, copies of documents or other physical evidence to be introduced, a statement of any agreed or stipulated facts, and, by the Agency only, any damage calculations. The ALJ ordered the participants to submit case summaries by February 9, 1999, and notified them of the possible sanctions for failure to comply with the case summary order.
 
8) The Agency submitted a timely case summary with attached exhibits. Respondent did not submit any case summary to the hearings unit. On February 10, 1999, Respondent verbally told case presenter Lohr that she planned to call Salvador Amezola and Jim Bacon as witnesses. On February 16, 1999, Respondent mailed a letter to Lohr that included a list of three potential witnesses (Jim Bacon, Sandra Romero, Salvador Amezola), but did not send a copy of that document to the hearings unit or the ALJ. Lohr received that letter the day before hearing. The ALJ treated Respondent´s letter to Lohr as a belated case summary and received a copy of it into evidence as Exhibit X-11.
 
9) The ALJ granted the Agency´s February 5, 1999, request that a Spanish interpreter be available during the hearing for the benefit of Claimant. Robert Mogle, a certified translator, was present throughout the hearing and, under oath or affirmation, translated the proceedings in their entirety.
 
10) At the start of the hearing, Respondent said she had reviewed the "Notice of Contested Case Rights and Procedures" and had no questions about it.
 
11) Pursuant to ORS 183.415(7), the ALJ explained the issues involved in the hearing, the matters to be proved or disproved, and the procedures governing the conduct of the hearing. The ALJ also explained most of the procedural matters identified in ORS 183.413(2), all of which had been addressed in the materials received by Respondent prior to hearing.
 
12) Toward the close of the hearing, Respondent offered as evidence the written statements of two individuals, which were marked R-1 and R-2 for identification. Respondent stated that R-2 was a letter from Connie Jo Bacon that provided essentially the same information that Bacon had given in her testimony. The ALJ excluded the proffered exhibit as unduly repetitious. The ALJ excluded the written statement of Sandra Romero, marked as R-1, because it had not been submitted with a timely case summary, it was not attached to Respondent´s late case summary, and Respondent had not identified Sandra Romero as a potential witness in her February 10, 1998 conversation with case presenter Lohr. The Agency had no notice that Respondent intended to rely on any sort of statement from Romero until it received Respondent´s belated case summary the day before hearing. Respondent did not offer a satisfactory reason for having failed to timely identify Romero either as a witness or as the author of a written statement to be offered into evidence. Furthermore, from the offer of proof, the ALJ concluded that she would not violate her duty to conduct a full and fair inquiry by excluding the proffered exhibit.
 
13) After presenting the Agency´s rebuttal case, case presenter Lohr made a verbal closing argument. The ALJ granted Respondent´s request to submit a written closing argument and the forum received that timely filed document on March 2, 1999. The forum gave the Agency the opportunity to file a written rebuttal argument if it wished; the Agency did not submit such a document.
 
14) On March 25, 1999, the ALJ issued a proposed order that notified the participants that they were entitled to file exceptions to the proposed order within ten days of its issuance. The Hearings Unit received no exceptions.

FINDINGS OF FACT -- The Merits
 
1) During all material times, Respondent, a person, did business as Taqueria El Rey, a sole proprietorship located in Woodburn, Oregon, and employed one or more persons to work at that business. For some time, Respondent´s business operated only out of a trailer; Respondent later opened a restaurant in a permanent building and also continued selling food from the trailer. Both the restaurant and the trailer operated under the name Taqueria El Rey.
 
2) Beginning in August 1996, Respondent employed Claimant to work as a cook for Taqueria El Rey. Claimant worked every day of the week except Wednesday, the day the business was closed. Claimant worked at least 8 hours per day, and frequently worked overtime. Claimant´s starting hourly wage was $5.50. At some time prior to January 1998, her wage was raised to $6.00 per hour.
 
3) When Claimant first became Respondent´s employee, she worked in the trailer; she later worked in the restaurant. Respondent´s brother, Salvador Amezola, also worked in the restaurant kitchen during the time Claimant worked there. A woman named Lucero Mendoza worked for Respondent as a waitress and cashier during March and April 1998.
 
4) Respondent did not create or maintain records of the number of hours Claimant or her other employees worked. Claimant kept a list of the hours she worked and showed that document to Respondent at the end of each two-week pay period. Respondent relied on Claimant´s records to determine the wages she had earned. Respondent paid Claimant in cash and made no deductions.
 
5) Beginning in January 1998, Respondent told Claimant she could not afford to pay her wages and promised she would pay Claimant in one lump sum after she sold her trailer. From January 16, 1998, through May 29, 1998, Claimant continued working for Respondent but received no pay for her labor, although she asked for her wages each payday. During this time, Claimant worked a total of 865.75 hours, 147.75 of which were hours worked in excess of 40 per week. May 29, 1998, was Claimant´s last day of work; the record does not establish whether Claimant quit or was fired.
 
6) On May 29, 1998, Claimant asked Respondent for her wages; Respondent stated that she did not have money with which to pay Claimant. Respondent never paid Claimant any wages for the hours she worked from January 16, 1998, through May 29, 1998.
 
7) Respondent still was operating her restaurant at the time of the February 1999 hearing, but planned to close it shortly thereafter. During the time the restaurant remained open, Respondent purchased food to sell to customers and timely paid the associated bills. For example, Respondent paid cash to her produce supplier each time produce was delivered.
 
8) Agency investigator Taeubel was assigned to investigate Claimant´s wage claim. During his investigation, Taeubel spoke with Lucero Mendoza and Carmen Navarrete and memorialized those conversations. Mendoza and Navarrete also submitted letters on behalf of Claimant. Mendoza, who had been employed by Respondent, told Taeubel that Claimant worked for Respondent until about May 1998 and had not received her wages. The forum finds this statement credible because Mendoza also stated that Respondent had paid Mendoza the wages she was due; because Respondent did not maintain records, Mendoza could easily have lied about this had she wanted to. Navarrete told Taeubel that she had provided child care services for Claimant, who worked all day for Respondent until about the end of May 1998. Navarrete also went to eat at the restaurant and saw Claimant working there. The forum finds Navarrete´s statements credible because they comport with the credible statements of Mendoza, and because of Navarrete´s unchallenged statement that she was a friend of Respondent as well as a friend of Claimant. The forum has relied on Mendoza´s and Navarrete´s statements as corroboration of Claimant´s testimony.
 
9) The forum observed Claimant carefully throughout the hearing and found her testimony generally to be credible. She gave straightforward answers to questions and did not go out of her way to portray Respondent in a bad light. For example, Claimant readily acknowledged that Respondent had paid her in full for all the hours she worked from August 1996 until January 16, 1998. In addition, Claimant´s testimony was corroborated by the statements of Mendoza and Navarrete. The forum has relied heavily on Claimant´s testimony in making its findings of fact. The forum has given no weight to Claimant´s testimony that Respondent promised to pay her more than $6.00 per hour at some point after January 1998 because Claimant did not identify the specific time at which she purportedly was given the raise. On this point, however, Claimant´s testimony was merely too vague, not untrustworthy.
 
10) Respondent´s testimony was less credible than Claimant´s. Respondent testified that she calculated Claimant´s pay by assuming Claimant worked 7 or 8 hours per day, six days per week. The forum finds this testimony less credible than Claimant´s explanation that she kept track of her own hours and showed those records to Respondent on each payday. The forum disbelieves Respondent´s testimony that Claimant only worked part-time starting in January 1998 because Claimant´s credible testimony to the contrary is corroborated by the statements of Mendoza and Navarrete. The forum also finds incredible Respondent´s testimony regarding the date on which she claims Claimant stopped working altogether -- March 16, 1998. Respondent said she determined that Claimant quit on that day because that was the same day Respondent´s child had stayed late after school, a date that was marked on Respondent´s calendar. Respondent did not, however, provide this calendar to Taeubel or produce it at hearing. The forum has not given any weight to Respondent´s testimony where it conflicted with other credible evidence in the record.
 
1) The testimony of Salvador Amezola, Respondent´s brother, generally appeared credible. Amezola´s memory of dates, however, was extremely vague and his testimony regarding the length and extent of Claimant´s employment by Respondent was of little use to the forum.
 
12) Connie Jo Bacon, who has supplied produce to Respondent for several years, testified that she never saw anybody working in the restaurant other than Respondent and Salvador Amezola. The forum has given this testimony no weight for two reasons. First, Bacon spent only a few minutes at the restaurant each week. Second, Bacon´s statement that she never saw Claimant working at the restaurant demonstrates either a lack of credibility or a remarkable lack of observation, given Respondent´s acknowledgment that Claimant worked for her full-time until January 1998 and her testimony that Claimant continued working part-time for two months after that. In other respects, Bacon´s testimony was credible.
 
13) From January through May 1998, the minimum wage in Oregon was $6.00 per hour and that also was the rate at which Respondent agreed to pay Claimant.
 
14) Pursuant to ORS Chapter 653 (Minimum Wages), OAR 839-020-0030 (Payment of Overtime Wages) and Agency policy, the Agency calculated Claimant´s total earnings to be $5637.75. Those calculations, which comport with the forum´s, reflect the hours recorded on Claimant´s original records.
 
15) The Agency calculated penalty wages of $1562.40. The forum reached the same result, in accordance with ORS 652.150, OAR 839-001-0470, and Agency policy, as follows: $5637.75 (total wages earned) divided by 865.75 (total hours worked) equals an average hourly rate of $6.51. This figure is multiplied by 8 (hours per day) and then by 30 (the maximum number of days for which civil penalty wages continue to accrue) for a total of $1562.40. According to Agency policy, this figure is rounded off to $1562.00, the amount this forum hereby awards Claimant as penalty wages.
 
16) Respondent alleged in her answer and at hearing an affirmative defense of financial inability to pay the wages due at the time they accrued. The forum finds that Respondent failed to meet her burden of proving this affirmative defense, as she remained financially able to operate her business for at least nine months after the termination of Claimant´s employment.
 
ULTIMATE FINDINGS OF FACT
 
1) At all material times, Respondent was a person doing business as Taqueria El Rey in the state of Oregon, and engaged the personal services of one or more employees in the operation of that business.
 
2) Respondent employed Claimant from August 1996 through May 29, 1998. During that time, Respondent suffered or permitted Claimant to render personal services to her.
 
3) The state minimum wage during 1998 was $6.00 per hour and that is the rate at which Respondent agreed to pay Claimant.
 
4) From January 16, 1998, through May 29, 1998, Claimant worked 865.75 hours for Respondent, 147.75 of which were hours worked in excess of 40 per week. Claimant earned $5637.75 in wages during that period of time. Respondent paid Claimant none of those wages and owes her $5637.75 in earned and unpaid compensation.
 
5) Respondent willfully failed to pay Claimant the $5637.75 in earned, due, and payable wages. Respondent has not paid Claimant the wages owed and more than 30 days have elapsed from the due date of those wages.
 
6) Civil penalty wages, computed in accordance with ORS 652.150, OAR 839-001-0470, and Agency policy, equal $1562.00.
7) Respondent did not meet her burden of proving financial inability to pay Claimant´s wages at the time they accrued.
 
CONCLUSIONS OF LAW
 
1) ORS 653.010 provides, in pertinent part:
"(3) ´Employ´ includes to suffer or permit to work;"
"(4) ´Employer´ means any person who employs another person."
ORS 652.310 provides, in pertinent part:
 
"(1) ´Employer´ means any person who in this state, directly or through an agent, engages personal services of one or more employees."
 
"(2) ´Employee´ means any individual who otherwise than as copartner of the employer or as an independent contractor renders personal services wholly or partly in this state to an employer who pays or agrees to pay such individual at a fixed rate, based on the time spent in the performance of such services or on the number of operations accomplished, or quantity produced or handled."
At all material times, Respondent was an employer and Claimant was an employee subject to the provisions of ORS 652.110 to 652.200, 652.310 to 652.414, and 653.010 to 653.261.
 
2) The Commissioner of the Bureau of Labor and Industries has jurisdiction over the subject matter and the Respondent herein. ORS 652.310 to 652.414.
 
3) ORS 653.025 requires that, except in circumstances not relevant here:
"for each hour of work time that the employee is gainfully employed, no employer shall employ or agree to employ any employee at wages computed at a rate lower than:

 
"(2) For calendar year 1998, $6.00."
Oregon law required Respondent to pay Claimant at a fixed rate of at least $6.00 per hour. Respondent failed to pay Claimant the minimum wage rate of $6.00 for each hour of work time, in violation of ORS 653.025(2).
 
4) ORS 653.261(1) provides:
"The Commissioner of the Bureau of Labor and Industries may issue rules prescribing such minimum conditions of employment, excluding minimum wages, in any occupation as may be necessary for the preservation of the health of employees. Such rules may include, but are not limited to, minimum meal periods and rest periods, and maximum hours of work, but not less than eight hours per day or 40 hours per week; however, after 40 hours of work in one week overtime may be paid, but in no case at a rate higher than one and one-half times the regular rate of pay of such employees when computed without benefit of commissions, overrides, spiffs and similar benefits."
 
OAR 839-020-0030(1) provides that, except in circumstances not relevant here:
 
"all work performed in excess of forty (40) hours per week must be paid for at the rate of not less than one and one-half times the regular rate of pay when computed without benefit of commissions, overrides, spiffs, bonuses, tips or similar benefits pursuant to ORS 653.261(1)."
 
Oregon law required Respondent to pay Claimant one and one-half times her regular hourly rate, in this case the minimum wage of $6.00, for all hours worked in excess of 40 hours in a week. Respondent failed to pay Claimant at the overtime rate, in violation of OAR 839-020-0030(1).
 
6) ORS 652.140 provides, in pertinent part:
 
"(1) Whenever an employer discharges an employee or where such employment is terminated by mutual agreement, all wages earned and unpaid at the time of such discharge or termination shall become due and payable not later than the end of the first business day after the discharge or termination.

"(2) When an employee who does not have a contract for a definite period quits employment, all wages earned and unpaid at the time of quitting become due and payable immediately if the employee has given to the employer not less than 48 hours´ notice, excluding Saturdays, Sundays and holidays, of intention to quit employment. If notice is not given to the employer, the wages shall be due and payable within five days, excluding Saturdays, Sundays and holidays, after the employee has quit, or at the next regularly scheduled payday after the employee has quit, whichever event first occurs."
Claimant´s credible testimony proves that May 29, 1998, was her last day of work, but the record does not establish whether Claimant quit or was fired. Even assuming, however, that Claimant quit without notice to Respondent, her wages would have been due on June 5, 1998. Respondent violated ORS 652.140(1) by failing to pay Claimant all wages earned and unpaid by that date.
 
8) ORS 652.150 provides:
"If an employer willfully fails to pay any wages or compensation of any employee whose employment ceases, as provided in ORS 652.140 and 652.145, then, as a penalty for such nonpayment, the wages or compensation of such employee shall continue from the due date thereof at the same hourly rate for eight hours per day until paid or until action therefor is commenced; provided, that in no case shall such wages or compensation continue for more than 30 days from the due date; and provided further, the employer may avoid liability for the penalty by showing financial inability to pay the wages or compensation at the time they accrued."
 
OAR 839-001-0470 provides:
 
"(1) When an employer willfully fails to pay all or part of the wages due and payable to the employee upon termination of employment within the time specified in OAR 839-001-0420, 839-001-0430 and 839-001-0440, the employer shall be subject to the following penalty:
"(a) The wages of the employee shall continue from the date the wages were due and payable until the date the wages are paid or until a legal action is commenced, whichever occurs first;
 
"(b) The rate at which the employee´s wages shall continue shall be the employee´s hourly rate of pay times eight (8) hours for each day the wages are unpaid;
 
"(c) Even if the wages are unpaid for more than 30 days, the maximum penalty shall be no greater than the employee´s hourly rate of pay times 8 hours per day times 30 days.
 
"(2) The wages of an employee that are computed at a rate other than an hourly rate shall be reduced to an hourly rate for penalty computation purposes by dividing the total wages earned while employed or the total wages earned in the last 30 days of employment, whichever is less, by the total number of hours worked during the corresponding time period."
Respondent is liable for a civil penalty under ORS 652.150 for willfully failing to pay all wages or compensation to Claimant when due as provided in ORS 652.140.
 
9) Under the facts and circumstances of this record, and according to the law applicable to this matter, the Commissioner of the Bureau of Labor and Industries has the authority to order Respondent to pay Claimant her earned, unpaid, due, and payable wages and the civil penalty wages, plus interest on both sums until paid. ORS 652.332.
 
OPINION
Minimum Wage and Overtime

ORS 653.025(2) prohibited employers, during 1998, from paying their employees at a rate less than $6.00 for each hour of work time. OAR 839-020-0030 provides that all work performed in excess of 40 hours per week must be paid for at the rate of not less than one and one-half the regular rate of pay. Respondent was legally obliged to pay Claimant at least $6.00 per hour worked plus one and one-half times that wage for all hours worked in excess of 40 hours in a week.
  Work Time
 
This forum has ruled repeatedly that, pursuant to ORS 653.045, it is the employer´s duty to maintain an accurate record of an employee´s time worked. See, e.g., In the Matter of Diran Barber, 16 BOLI 190, 196-97 (1997) (citing Anderson v. Mt. Clemens Pottery Co., 328 US 680 (1946)); In the Matter of Tina Davidson, 16 BOLI 141, 148 (1997). Where the forum concludes that an employee was employed and was improperly compensated, it becomes the employer´s burden to produce all appropriate records to prove the precise amounts involved. In the Matter of Diran Barber, 16 BOLI at 196. Where the employer produces no records, the Commissioner may rely on the evidence produced by the Agency " ´to show the amount and extent of [the employee´s] work as a matter of just and reasonable inference,´ and ´may then award damages to the employee, even though the result be only approximate.´ " Id. (quoting Mt. Clemens Pottery Co., 328 US at 687-688).
Here, Respondent kept no records of the days or hours that Claimant worked. The forum has accepted Claimant´s credible testimony that she kept her own records of the hours she worked for Respondent and showed those records to Respondent at the end of each pay period so Respondent could calculate her pay. The forum does not believe Respondent´s contrary testimony that she calculated the wages she owed Claimant purely by relying on her own memory of the hours Claimant had worked. Because Respondent did not maintain legally required records of the hours Claimant worked, and because Claimant´s testimony on this point was credible, the forum relies on the evidence produced by the Agency. That evidence establishes that Claimant worked a total of 865.75 hours from January 16, 1998, through May 29, 1998, 147.75 hours of which were overtime hours. At an hourly rate of $6.00 for straight time and $9.00 for overtime, Claimant earned $5637.75.
 
ORS 653.055(1) provides, in part, that "[a]ny employer who pays an employee less than the wages to which the employee is entitled under ORS 653.010 to 653.261 is liable to the employee affected: (a) For the full amount of the wages, less any amount actually paid to the employee by the employer." The forum has accepted Claimant´s credible testimony that Respondent did not pay her any of the wages she earned during the relevant time period. Respondent therefore owes Claimant unpaid wages in the amount of $5637.75.
  Penalty Wages
 
Awarding penalty wages turns on the issue of willfulness. Willfulness does not imply or require blame, malice, wrong, perversion, or moral delinquency. Rather, a respondent commits an act or omission "willfully" if the respondent acts (or fails to act) intentionally, as a free agent, and with knowledge of what is being done or not done. Sabin v. Willamette Western Corp., 276 Or 1083, 557 P2d 1344 (1976). Respondent, as an employer, had a duty to know the amount of wages due her employee. McGinnis v. Keen, 189 Or 445, 221 P2d 907 (1950); In the Matter of Jack Coke, 3 BOLI 238, 242 (1983). Here, the evidence established that Respondent voluntarily, intelligently, and as a free agent failed to pay Claimant any of the wages she earned from January 16, 1998, through May 29, 1998. Respondent acted willfully and is liable for penalty wages.
 
As this forum previously has explained, penalty wages are calculated in accordance with the relevant laws and Agency policy as follows:
 
"´Total earned during the wage claim period divided by the total number of hours worked during the wage claim period, multiplied by eight hours, multiplied by 30 days.´ Statement of Agency Policy, July 23, 1996."
In the Matter of Mark Johnson, 15 BOLI 139, 143 (1996). Using that formula and rounding to the nearest dollar, Respondent owes Claimant $1560.00 in penalty wages. See factual finding 16, supra.
Respondent raised the affirmative defense that she was financially unable to pay Claimant´s wages at the time they accrued. The evidence, however, is to the contrary. Respondent was operating her business at the time she failed to pay Claimant´s wages and still was operating that business at the time of the February 1999 hearing, although she planned to close it soon thereafter. Bacon, who supplied produce to Respondent, testified credibly that Respondent always paid cash for the produce when it was delivered. Where a respondent continues to operate a business, and in doing so chooses to pay certain debts and obligations in preference to an employee´s wages, there is no financial inability to pay. In the Matter of Country Auction, 5 BOLI 256, 265 (1986). Respondent did not meet her burden of proving that she could not have paid Claimant the wages due her at the time they accrued. Consequently, Respondent cannot escape liability for penalty wages.
 
ORDER
 
NOW, THEREFORE, as authorized by ORS 652.332, and as payment of the unpaid wages and penalty wages she owes as a result of her violations of ORS 653.025(2), ORS 652.140, and OAR 839-020-0030(1), the Commissioner of the Bureau of Labor and Industries hereby orders Norma Amezola, dba Taqueria El Rey, to deliver to the Fiscal Services Office of the Bureau of Labor and Industries, 800 NE Oregon Street, Portland, Oregon 97232-2162, the following:
 
A certified check payable to the Bureau of Labor and Industries IN TRUST FOR Rocio Ramirez Cruz in the amount of SEVEN THOUSAND ONE HUNDRED NINETY-NINE DOLLARS AND SEVENTY FIVE CENTS ($7199.75), less appropriate lawful deductions, representing $5637.75 in gross earned, unpaid, due, and payable wages, and $1562.00 in penalty wages; plus interest at the legal rate on the sum of $5637.75 from June 6, 1998, until paid and interest at the legal rate on the sum of $1562.00 from July 6, 1998, until paid.