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New Washington Supreme Court “Innocent Misrepresentation” Overpayment Case

Ewing, Sarah_160x222The Washington Supreme Court issued a new case addressing whether the Department has authority to issue an overpayment order and an order modifying claimant’s compensation rate based on claimant’s innocent misrepresentation. Claimant was injured at work. He needed assistance to complete the SIF-2 and because of a language barrier and claimant coming in and out of consciousness, the SIF-2 stated claimant was married and had a dependent child at the time of injury. The listed persons were actually his sister and niece. The Department issued several wage orders, each basing the wage calculation on claimant having a spouse at the time of injury. Claimant was awarded a pension and when he filled out the pension paperwork, he indicated he was… Continue reading

Proposed clarifications to Oregon Sick Leave rules

rebecca_watkinsActing on employer requests, BOLI has proposed additions and amendments to its rules about state sick leave. The proposed changes address the definition of “employee” and “employer”, the calculation of rate of pay for employees working on a piece-rate or commission basis, the responsibilities of joint employers (temporary or PEO situations), and undue hardships. The proposed rules can be viewed at http://www.oregon.gov/boli/Pages/legal/H_Notices.aspx . BOLI will accept comments on the proposed rules through September 26, 2016. Comments may be emailed to paloma.sparks@state.or.us or Marcia.L.Ohlemiller@state.or.us or mailed to Marcia Ohlemiller c/o BOLI, 800 NE Oregon St. #1045, Portland OR 97232. If you have any questions regarding the proposed clarifications or other employment law related questions, please contact me at rwatkins@sbhlegal.com

“Concerted Action Waiver” violates the NLRA

Ewing, Sarah_160x222Are you aware that as an employer you can violate the National Labor Relations Act (NLRA) whether your employees are unionized or not? A recent case from the Ninth Circuit affirms employers violate the NLRA when policies or agreements prohibit concerted activity. In Morris v. Ernst & Young, LLP, Ernst & Young, an accounting firm, conditioned employment upon signing an arbitration agreement where employees agreed not to join with other employees in bringing legal claims against the company. Specifically, employees were required to (1) pursue legal claims against Ernst & Young exclusively through arbitration, and (2) arbitrate only as individuals and in “separate proceedings.” Employees Stephen Morris and Kelly McDaniel filed a class action for overtime. Ernst & Young argued… Continue reading

Oregon WCD Proposes Rule Changes

Anderson, Kevin_webThe WCD is seeking input on three topics before the end of August. Proposed rules would be drafted and discussed at a public meeting in the fall. Any input now helps the WCD draft clearer and more helpful rules, or avoid drafting rules if there is a statutory conflict of if the rules would be unnecessary. Medical Care: The WCD plans to move forward with a change to the 801 form requiring two new acknowledgements, one by the worker and one by the employer. The specific language is still being drafted and will be discussed in the fall, but the language will require the employer to inform claimant of his/her right to choose a medical provider and that the employer… Continue reading

LHWCA Quarterly Caselaw Summary

Cole, Norm -Reg ColorThe Board and courts seem to have taken time off for vacation during the last several months. The volume of new LHWCA cases is relatively low for this quarter. In SSA Terminals & Homeport Insurance Co. v. Carrion and Director OWCP, 2016 WL 2731593 (9th Cir., 13-72929, 5/11/16), the court agreed a cumulative trauma claim filed in 2008 based on employment ending in 2002 was timely because claimant had no knowledge his employment contributed to his disability until receipt of an IME report discussing cumulative trauma. Claimant injured his knee in 1987 when working for Matson. When he returned to work SSA became his employer, and his knee continued to hurt. He retired in 2002. … Continue reading

Attorney Fee Proposals

Anderson, Kevin_webThe Workers’ Compensation Board is moving forward with several changes in attorney fee rules. Formal rules will be drafted and reviewed at a public hearing this fall. The board welcomes any input, comments, or concerns with these rules. These rules will not be effective until after the public hearing. If an ALJ awards additional PPD, claimant’s attorney is entitled to a fee up to 25% of the increased compensation, but no more than $4,600. The board is proposing to remove the cap and award a “reasonable attorney fee.” See OAR 438-015-0040(1). If the board, on review, awards additional PPD, claimant’s attorney is entitled to a fee up to 25% of the increased compensation, but no more than $6,000. The board… Continue reading

Department of Labor increases penalties under LHWCA

Vaniman-Megan_160-x-222The Department of Labor issued an interim final rule increasing penalties assessed by the Office of Workers’ Compensation Programs under the LHWCA. The new rules increase penalties for: Failure to file first report of injury or filing a false statement or misrepresentation in first report increased from maximum of $11,000 to $22,587 Failure to report termination of payments increase from $110 to $275 Discrimination against employees who claim compensation increase from the current minimum of $1,100 to a minimum of $2,259 and increase from the current maximum of $5,500 to a maximum of $$1,293 A copy of the interim final rules can be found here. An interim final rule goes into effect as soon as it is published but… Continue reading

New OSHA Rules Address Post-Accident Drug Testing, Retaliation Claims, and Electronic Injury/Illness Reporting

stephen verotskyRecently, the Occupational Safety and Health Administration (OSHA) finalized new rules regarding recordkeeping/reporting and discrimination as it relates to drug testing employees following an injury. 81 Fed. Reg 29624. The new anti-discrimination/retaliation rule goes into effect on August 10, 2016. There is a longer phase-in period for electronic submission of injury data. The rule, adopted by federal OSHA, also applies to employers located in State Plan states, such as Oregon and Washington. Electronic Submission Injury and Illness Data The rule does not change the types of injuries or illnesses employers are already required to record. Covered employers already maintain records of their workplace injuries and illnesses. However, the majority of this data is not shared outside the… Continue reading


lee ann loweEffective Friday July 1, 2016 the annual cost of living adjustments (COLA) will take effect for the benefit period of July 1, 2016 through June 30, 2017. Washington’s statewide average wage increased from $54,829.00 in 2014 to $56,273.00 in 2015, an increase factor of 1.0263364278. As usual, there will be no COLA increase for dates of injury on or after July 1, 2011 until the second July after the date of injury, unless the time loss rate is set at the minimum or maximum rate, in which case the increase to the new minimum or maximum rate will apply. Effective July 1, 2016 the new maximum monthly time loss rate for dates of injury on or after July 1, 2016… Continue reading

Minimum wage increases on July 1st.

The minimum wage increases for Oregon employers this Friday. For the first time, Oregon will have three different minimum wage levels depending on the region where employees work. Please use this chart to determine how much minimum wage is increasing for your employees this week: Region 1 Everyone not in Region 2 or Region 3 $9.75 Region 2 Portland metro urban growth boundary (generally Multnomah, Washington, Clackamas counties) Unsure? Check your address at: http://www.oregonmetro.gov/library/urban-growth-boundary/lookup $9.75 Region 3 Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa, Wheeler $9.50 If your employees work more than “incidental” time in multiple regions, you have the option of paying the higher rate for all hours or… Continue reading
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