Oregon Still Considering Ways to Increase Minimum Wage

Debate continues regarding Oregon’s minimum wage rates
Currently, Oregon’s minimum wage rate is $9.25. BOLI. The Oregon Bureau of Labor and Industries is required to adjust minimum wage based upon specific criteria. Therefore, each year, with some exceptions, the minimum wage increases. Minimum Wage Page. New proposals are suggesting a faster increase and allowing local governments to increase the minimum wage in their cities/counties. Oregonian. This means that minimum wage could be higher in cities than rural counties. Currently, Portland cannot consider having a $15 minimum wage like Seattle. However, if this recent proposal goes through, Portland and other cities/counties would have that option. If you would like to see the minimum wage increase in your area, start paying attention to those representing your interests in Salem.

Google By David Schuck

What happens if your employer is stealing your tips

Tips – Who is entitled to the tips and what does the law classify tips to be
The status of tips under the law is far more complex than it should be. We all have an understanding what tips are. We provide tips to our servers regularly. Most consumers believe that the tips we provide to the worker remain with that worker. However, this is often not the case.

From a federal perspective, tips are property of the employee to which the tip is provided. Oddly enough, federal wage law allows employers to reduce wages which would otherwise be due as minimum wage under the FLSA. That means that the employer need not pay all minimum wages under the FLSA minimum wage laws because the employee receives tips. Despite the fact that the tips are the sole property of the employee, federal law also allows management to force employees to be in tip pools. How it can be the sole property of the employee and still be subject to the mandatory control of the employer, your guess is as good as anyone else’s. The tip pools are also limiting on the employer. Only regularly tipped employees can participate in the tip pools. However, in a fairly recent case, the Ninth Circuit Court of Appeals held that so long as a tip credit was not being taken, the rules regarding who can share in a tip pool are not covered. This is especially important in states like Oregon which forbid tip credits.

Side effect of Oregon’s failure to allow employers a tip credit against minimum wage
Oregon law is different than federal law in that it does not allow a tip credit. Because an employer cannot escape liability for minimum wages in Oregon by taking a tip credit, and because the federal case states that the tip pool requirements do not control where no tip credit is taken, Oregon’s law gets more confusing.

No case in Oregon has ruled on whether a tip is classified as a wage for purposes of wage and hour laws. However, some tax and employment department statutes consider a tip a wage for purposes of those laws. For instance, there are rules regarding payment of tips and taxing tips on the paycheck stubs. Apparently, the government is less concerned with whether the employee actually receives their tips than they are in ensuring that the taxes due on the tips are paid by someone. (unemployment taxes and income taxes).

The effect that this confusion has had to employees
Employers have begun to use tips, not only to offset minimum wages, but to simply add to their bottom line. I have seen multiple cases where 100% of the tip goes to the owner of the restaurant. Or where the credit card tips never get paid to the employee. I have also seen situations that there is no accounting for the tips such that the employee cannot tell what they were due in tips and thus have no way to ascertain whether they have received all their tips. The creativity of the ways the employer are stealing tips from employees varies by employer. As a consumer I am appalled, if tips are to be used to pay the restaurant, the server should so state so that the customer knows what they are actually being charged. I personally would not tip if it was known to me that the tip was going to the restaurant and not the server.

As an employee, what can you do if management steals your tips
Just as the business owners are finding unique ways to steal tips, the employee must find ways to get them back. As examples, the employee could file a wage claim asserting that tips were wages. While this is against federal law, it provides many options if won in state laws. The employee could recover penalty wages. The employee could also assert the deductions of tips were unlawful and thus entitled to damages. In the right case, where the employer fails to comply with other wage laws, the tip could be combined with that claim reducing risk of the litigation. Alternatively, the employee could file claims for conversion (theft of tips). Under the right circumstances, an employee may be able to file the tip conversion case such that their attorney fees would be paid.

Google By David Schuck

Employers Can Use Time Clocks to Steal Your Wages

Modern Time Clocks are Computers and Can Be Programmed to Steal Your Wages
Employers have used time clocks for many years to track hours worked and calculate wages due employees. Older time (punch) clocks used paper time cards. The employee placed their time card into the employer’s time clock stamping a date and time on the employee time card. The employer then used the times recorded on the employee time card to calculate the wages due the employee. Now, most time clocks have transition from punch cards to an electronic time clock. What some may not realize is that the electronic time clocks often have sophisticated computers operating in the background. This allows your managers to go in and manually change the time you start or stop work without your knowledge. It also allows the employer to program the time clock to automatically discard specific time from all employees. For instance, if you are scheduled to work at 10am, but your work it already busy, the employer could ask you to start early. The electronic time clock could be programmed to ignore any time worked before you were scheduled to start. This is true regardless of whether your manager told to start your shift early.

By altering your punch-in and punch-out times electronically, the number of hours you are paid is reduced to a number that is lower than the hours you actually worked. Obviously, this causes you to earn less money on your paycheck. Usually, these alterations, whether manually performed by your manager or programmed into the time system, are fairly small. On first blush, you might believe, what is five minutes. However, when you realize that you mist 5-20 minutes per week, and you have already worked 25 weeks, you realize that you are due almost a full day’s wage. Then if you figure out how many employees the employer has, you can see why this is so profitable. For instance, in the same example, with 100 employees, you are looking at 100 days of free work. Even at minimum wage, the employer in this situation likely saves over $6,000. The more employees they have and the more they take at any one time, the more the employer can save.

Employees subject to such wage theft are likely due the unpaid wages, plus a civil penalty, and if the employment has ended penalty wages. These penalties can exceed several thousand dollars each. Always track the time you work and the time shown on your paycheck stub to determine whether you were paid for all the time you worked. If your boss is stealing your wages and refusing to pay them, call the wage and hour lawyers at Schuck Law at (360) 566-9243 for a free consultation, or visit our website at the Oregon Wage Claim page.

Independent Contractor vs. Employee – News & Why Do We Care

What Is an Independent Contractor?
An independent contractor is someone who runs his or her own business. There has been a trend where more companies are tying to save money by calling people who work for them independent contractors. The benefits to the employer is that they do not have to pay employer taxes, social security, worker’s compensation insurance, vacation, paid time off, sick pay, health benefits, or retirement. The more potential employees covered, the greater the savings to the employer. Companies avoid the employment relationship in several ways. For instance, the can hire employees through temporary employers or simply sign independent contractor agreements directly with the employer.

Recent Cases Highlight this Issue
In Portland, Oregon, a local barber shop called the Modern Man classified its barbers as independent contractors. When the barbers were not being paid they got on the news because they picketed the barber shop. Oregon Live Article. In response to this action, Brad Avakian, the Commissioner of the Oregon Bureau of Labor & Industries, posted the following:

Barbers at Modern Man can contact our agency with claims — we’ll investigate and determine whether they should be classified as employees, not independent contractors.

Posted by Brad Avakian on Wednesday, June 3, 2015

The purpose of determining whether the barbers were independent contractors was to provide better protection to the workers under Oregon’s Wage & Hour laws. This is because Oregon’s wage and hour laws provide employees with the right to sue for their unpaid wages, overtime wages, minimum wages, deducted wages, etc. They also allow the employee to recover their attorney fees. So there are a host of very powerful laws to protect the worker once they are classified as employees. In addition, severe penalties can be levied against the employer and for the employee where the employer fails to pay all wages as required by Oregon law.

In federal court, the Ninth Circuit found that FedEx misclassified its delivery drivers as independent contractors in both Oregon and California. The point is that these types of misclassifications are everywhere. It is not just the small time shops, like Modern Man that make the mistake. Instead, large sophisticated companies like FedEx, and every size company in-between, make this mistake. Sometimes client fear larger companies, thinking that they have powerful attorneys on their side, but obviously large companies can perform unlawful actions as easily as the small ones.

How to determine if you are an Independent Contractor or employee
To determine whether a person is properly classified as an employee or as an independent contractor is complex. Both state and federal wage and hour law use a version of the “economic realities” test to determine whether a person could be classified as an independent contractor. Technical Assistance. The economic realities test essentially looks to determine whether and to what degree the worker is economically dependent upon the putative employer. The best way to determine if you are misclassified as an independent contractor is to call Schuck Law at (360) 566-9243 because the test gets significantly more complex as you attempt to apply facts to it. Independent Contractor page.

Google By David Schuck

What can I do, my employer will not pay my final paycheck (Oregon)

Final Paycheck Laws and Penalty Wages in Oregon
Oregon wage and hour law sets very specific time lines when all wages are due. Late Pay Page. While there are a few minor exceptions regarding when final paychecks (wages) are due, they rarely apply. ORS 652.140. Oregon wage and hour law sets the following basic time lines for payment of all final wages/paychecks: (1) When an employer discharges an employee or when employment is terminated by mutual agreement, the final paycheck, including all wages earned and unpaid, become due 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, the final paycheck, including all wages earned and unpaid at the time you quit, 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. (3) When the employee quits and has not given 48 hours’ notice, the final paycheck, including all wages earned and unpaid, become due within five days, excluding Saturdays, Sundays and holidays.

You are Likely Due Penalty Wages if Your Final Paycheck was Late
Where the employer fails to timely pay all final wages at separation from employment (termination or quit), generally the employee can recover the wages, plus penalty wages. By all wages, the law means everything. For instance, if the employer makes an unlawful deduction during employment, those wages still remain due and must be timely paid at the end of employment. Deduction Page. Also where the employer does not pay for all hours worked, like an off-the-clock situation. Hours Worked. In such situations, the employer did not pay all wages in the final paycheck. Penalty wages are duce only where the failure to pay was willful, but willful does not carry a common meaning. Willful for penalty wages generally means that the employer is free to determine what it will pay, and chooses to pay the final paycheck when it did and in the amount it did. Penalty wages for a late final paycheck are calculated by multiplying the regular hourly rate (could be salary or commissions reduced to hourly rate) for 8 hours per day until paid. There is a maximum of 30 days for the penalty. Thus an employee earning $15 per hour could be due up to $3,600 in penalty wages if his employer failed to pay final wages for 30 days. Under the right circumstances, other damages or penalties could be assessed under either federal or state wage and hour laws. Such as where the employer fails to pay overtime wages, or minimum wages.

Costs and attorney fees
In most situations where the employee wins their case proving that the employer did not timely pay their final paycheck timely, or that the final paycheck did not include all wages, attorney fees and costs are awarded in addition to the amounts owing the employee under Oregon wage and hour law. This makes it possible for the wage and hour attorneys at Schuck Law to take wage claims on a contingent basis essentially being paid to win the wage claim lawsuit for the employee and have the employer pay the fees and costs.

Google By David Schuck

2015 Increase to the Oregon Minimum Wage Rate

2015 Increase to the Oregon Minimum Wage Rate
Starting January 1, 2015, the Oregon minimum wage rate will increase to $9.25 per hour. If your hourly rate of pay after January 1, 2015 is less than $9.25 per hour, you likely have a minimum wage claim. While it may seem trivial that your employer did not pay the extra fifteen cents per hour, it is not. Oregon minimum wage law entitles you to a minimum wage civil penalty where an employer pays less than the minimum wage. This means that you could receive up to $2,220 for a civil penalty in addition to the unpaid minimum wages. Further, should your employment end, and your employer did not pay these minimum wages, you may be entitled to penalty wages of up to $2,220. These penalty wages may be in addition to your minimum wage civil penalty. Further, Oregon minimum wage law allows employees to recover their costs and attorney fees allowing some attorneys, like those at Schuck Law, LLC, to take minimum wages claim cases on a contingency fee basis, essentially being paid by your employer to win your wage claim case. For more information on class action wage claims click Class Action. For more information on Oregon minimum wage claims click Minimum Wage.

Google By David Schuck

You May Have A Class Action Minimum Wage Claim

You May Have A Class Action Minimum Wage Claim
If you worked for an employer who employs many minimum wage workers, and it failed to pay 50 or more other employees their minimum wage, you should consider the benefits of filing a class action. Some of the more common reasons my clients have given for choosing to represent their co-workers in class actions have been that they feel more comfortable seeking recovery for all who were injured because there is strength in numbers, and they have a genuine concern for their fellow employees. There are other potential benefits to bringing a class action case and helping your co-workers. If you feel you have a minimum wage claim and would like to discuss the possibility and benefits of bringing that case either individually, or as a representative in a class action lawsuit, we will discuss your case with you free of charge and without obligation to proceed.

If your employment has ended and your employer did not pay all your minimum wages, you may be entitled to penalty wages of up to $2,148.00. The penalty wages provided under Oregon law may be in addition to your minimum wage civil penalty set out above. Further, Oregon minimum wage laws allow employees to recover their attorney fees from the employer. This allows the attorneys at Schuck Law, LLC to take minimum wage class action cases on a contingency fee basis, essentially being paid by your employer to win your case.

Google By David Schuck

Class Action Wage Claim Attorneys.

Class Action Wage Claim Attorneys
The lawyers at Schuck Law, LLC focus their law practice on wage claim lawsuits. Our lawyers regularly prosecute Oregon minimum wage claim lawsuits.  In addition, our attorneys regularly prosecute Oregon unpaid wages lawsuits, Oregon overtime pay lawsuits, and Oregon wrongful deduction lawsuits.  Our attorneys are also experienced in prosecuting minimum wage class action lawsuits as well as other class action wage claim lawsuits. In addition to the claims for damages outlined above, an employee may also sue to recover their costs, disbursements, and attorney fees incurred in prosecution of the minimum wage claim lawsuit. This allows the attorneys at Schuck Law, LLC to take most minimum wage and other wage claim lawsuits on a contingency fee basis. This means, with minor exceptions that are within your control, that our attorneys only get paid their attorney fees if they recover wages, penalties, penalty wages, or other damages for you.

Google By David Schuck