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Owner and manager can be liable for
aiding and abetting wage violations

Allison v. Dolich (Oregon Ct App 09/14/2022)
Sent to Custom Alerts™ subscribers on 09/15/2022

Former restaurant servers brought various claims against the restaurants they worked for, the owner, and the general manager, alleging the imposition of unlawful tip pooling.

The key question was whether, in a claim for violations under ORS chapter 659A against an LLC employer, the LLC’s member and owner or chief executive may be liable for aiding or abetting the LLC’s violations. The Oregon Court of Appeals answered that in the affirmative.

The statute provides:

It is an unlawful employment practice: *** (g) For any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter or to attempt to do so.

The court had previously held that “[a]nyone qualifying as a ‘person’ under ORS 659A.001(9) may be an aider or abettor of an unlawful employment practice in a way that subjects them to liability under ORS 659A.030(1)(g)”.

The remaining question was whether the individual defendants in this case can be said to have aided or abetted the unlawful acts of the LLCs. It was undisputed that here, the owner and the general manager "directed the LLCs to act in ways that resulted in violations of ORS chapter 659A by developing and implementing the tip-pooling policy and carrying out plaintiffs’ terminations when they objected." The court said:

We think that the legislature’s intention was that the persons directing the business-entity employer’s unlawful conduct can be held individually liable under ORS 659A.030(l)(g). The trial court’s reasoning is inconsistent with that construction. We conclude that, whether the individual defendants were acting in their personal capacities or on behalf of the LLCs, they were “persons” who assisted the LLCs by making the decisions that enabled the violations. The trial court therefore erred in determining that the individual defendants could not be found liable for aiding or abetting the LLCs under ORS 659A.030(1)(g) and in granting summary judgment to the individual defendants.

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