Submitted February 11, 2015.
111114861. Multnomah County Circuit Court. David F. Rees, Judge.
James W. Moller argued the cause and filed the briefs for appellant.
Steven C. Burke argued the cause for respondent. With him on the brief was Case & Dusterhoff, LLP.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.
[272 Or.App. 88] FLYNN, J.
Plaintiff, Navroop Dosanjh, brought a wage claim against defendant, Namaste Indian Restaurant, which brought a counterclaim for conversion. A jury returned verdicts for defendant on both the claim and counterclaim, and plaintiff appeals from the judgment. We reject without written discussion plaintiff's assignments of error to the trial court's denial of her motion for a directed verdict and motion for a judgment notwithstanding the verdict on the conversion counterclaim. We address plaintiff's assignment of error to the trial court's failure to give two of plaintiff's requested jury instructions pertinent to the wage claim. We conclude that plaintiff preserved at least one of her instructional challenges and that the trial court erred when it refused to give that instruction. Because we also conclude that the error substantially affected plaintiff's rights, we reverse and remand for a new trial on the wage claim
Plaintiff began work for defendant on November 20, 2009. At that time, the restaurant was co-owned by her husband and Harjinder Chand, who is now the sole owner. Plaintiff performed a variety of hostess and waitress duties at the restaurant. Plaintiff presented evidence that she worked more than 70 hours per week from November 2009 through March 2010 and then about 60 hours per week until August 2010. After taking several months off, plaintiff returned to work in December 2010, from which point she was paid by checks reflecting an hourly wage of $15.63. Plaintiff stopped working in April 2011. She claimed defendant did not pay her wages for 2,673 hours that she worked from November 2009 through August 2010.
At some point, business disputes arose between the co-owners, and, in November 2010, one attempt to resolve the disputes resulted in a check on the restaurant account being made out to plaintiff for the amount of $22,453.20. Plaintiff testified that the check followed a request that she write down the hours she worked from November 2009 through August 2010. Plaintiff presented evidence that there was never enough money in defendant's bank account to cover the check,
and it is undisputed she never cashed the check. The parties disputed the significance of the check; [272 Or.App. 89] defendant claims the check was part of a larger attempt to resolve disputes between the co-owners and not meant to be wages for plaintiff, while plaintiff claims the check represents an admission that she was owed wages. Regardless, there is no dispute that the check was written to plaintiff and signed by Chand.
Defendant argued that it did not owe plaintiff wages because her husband had paid her for that work, " under the table." Defendant also filed a counterclaim for conversion and presented evidence that plaintiff and her husband both misappropriated cash from the restaurant. Chand testified that he estimated plaintiff misappropriated " ...