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Nielsen v. Employment Department

Court of Appeals of Oregon

May 29, 2014

LINDA L. NIELSEN, Petitioner,
v.
EMPLOYMENT DEPARTMENT and WESTWIND LANDSCAPE SUPPLY, Respondents

Argued and Submitted January 8, 2014

Employment Appeals Board. 12AB0123.

Tyler J. Volm argued the cause for petitioner. With him on the briefs were William A. Drew and Elliott, Ostrander & Preston, P.C.

Tiffany Keast, Assistant Attorney General, argued the cause for respondent Employment Department. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

No appearance for respondent Westwind Landscape Supply.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 708

[263 Or.App. 275] TOOKEY, J.

Claimant seeks review of an order of the Employment Appeals Board that denied her unemployment insurance benefits on the ground that she voluntarily left work without good cause. See ORS 657.176(2)(c); [1] see also OAR 471-030-0038(4).[2] We write to address only one of claimant's arguments--that the board erred when it adopted an administrative law judge's (ALJ) order concluding that claimant, who left work in part because she was required to work overtime without receiving overtime pay, failed to pursue reasonable alternatives and failed to establish good cause for quitting when she failed to complain to employer about her unpaid wages or file a complaint with the Bureau of Labor and Industries (BOLI).[3] We conclude that claimant voluntarily left work with good cause. Accordingly, we reverse and remand.

The relevant facts are not in dispute, and we state those facts " consistently with the board's findings and the record that supports those findings." Aguilar v. Employment Dept., 258 Or.App. 453, 454, 310 P.3d 706 (2013). We review the board's order " for substantial evidence and errors of law, and to determine whether its analysis comports with substantial reason." Campbell v. Employment Dept., 256 Or.App. 682, 683, 303 P.3d 957 (2013) (internal brackets and quotation marks omitted).

[263 Or.App. 276] Claimant worked as an office manager for Westwind Landscape Supply for approximately one year. During the course of her employment, claimant faced the " ongoing problem" of underpayment--that is, her employer [4] " required her to work overtime without receiving overtime pay." Specifically, claimant was " working more than 38 hours, but [employer] was only paying [her] for 38 hours" for " at least an entire year[.]" Claimant was not " the only one" who was underpaid. Other people who worked for employer

" would put in their overtime and [employer would] only pay them for a certain amount of hours. And he'd say, 'Well, I know you

Page 709

were sitting on the side of the road having lunch, and I know you were probably doing this.' You know, and I--'I don't believe you were really * * * ...

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