OREGON: Owners and managers can be personally liable

The Oregon Court of Appeals recently ruled that a person making decisions on behalf of a business entity employer can be held personally liable for aiding, abetting, or inciting a violation of Oregon’s discrimination statutes. Two restaurant servers filed a class-action lawsuit alleging that their employer’s tip-pooling arrangement violated Oregon law. The employees alleged that they were fired in retaliation for objecting to the tip policy and contacting the Oregon Bureau of Labor and Industries (BOLI) about the legality of the policy.

The employees sued not only their employer (a limited liability company), but also the restaurant owner and general manager individually, alleging that they aided and abetted the business entity in its violations of Oregon law. The owner and manager together developed and implemented the tip-pooling policy and made the decision to terminate the employees. An Oregon statute (ORS 659A.030(1)(g)) makes it unlawful for “any person” to “aid, abet, incite, compel or coerce” employment practices that are unlawful under ORS chapter 659A. One such prohibition in that chapter is retaliation against an employee for opposing an unlawful practice.

The Oregon Court of Appeals ruled that the legislature broadly intended to hold individuals liable if they direct a business-entity employer’s unlawful conduct. It doesn’t matter whether a decision maker was acting in their personal capacity, or on behalf of the employer. If a person made a decision that enabled the violation, they may be held personally liable under Oregon law (Allison v. Dolich, Or App, Sept. 2022).

Tips: Wage and hour law is complex, and violations can be incredibly costly, both to the organization and individual decision makers who may become entangled in a lawsuit. These restaurant servers filed separate federal and state lawsuits back in June 2014, and here we are, more than eight years later, with multiple court decisions in the rear-view mirror, more still left to come (unless the case settles), and presumably astronomical attorney fees. Ensure that all decision makers within your organization know the basic protections afforded employees under both federal and state law and who to engage – immediately – if they have questions about wage and hour law, policies, procedures, or enforcement. Employees have a right to discuss their wages, hours, or other terms of employment, and are protected from retaliation for doing so. Managers should be trained to avoid unlawful retaliation, so they don’t find themselves making a hasty employment decision that backfires. If you have specific questions about wage and hour compliance, contact your Vigilant Law Group employment attorney.