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|Owner and manager can be
aiding and abetting wage violations
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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