Johnny R. JOHNSON, Plaintiff-Respondent,
O'MALLEY BROTHERS CORPORATION, Defendant-Appellant.
and submitted February 23, 2016
County Circuit Court 140201508; Edward J. Jones, Judge.
C. DeWeese argued the cause for appellant. With him on the
brief was Andrew C. DeWeese, P.A.
E. Yunker argued the cause for respondent. With him on the
brief were Conrad E. Yunker, P.C., Gary Abbott Parks, and
Northwest WageLaw LLC.
Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog,
Summary: In this wage-claim case, plaintiff sued defendant
for failing to pay wages that it owed him and for withholding
wages from his paycheck without the signed authorization
required by law. The trial court transferred the case to
court-annexed arbitration. The arbitrator found for plaintiff
on both claims and awarded $16, 866 in attorney fees based on
ORS 652.200(2) and ORS 652.615. Defendant fled exceptions to
the attorney fee award with the trial court, which upheld the
award. Defendant now appeals the trial court's order.
Held: The Court of Appeals ultimately rejected
defendant's contention that plaintiff was not entitled to
attorney fees under ORS 652.200(2) on the unpaid wage claim.
However, the Court of Appeals concluded that the arbitrator
abused his discretion in awarding attorney fees based on ORS
652.615 on plaintiff's unlawful withholding claim. The
Court of Appeals therefore reversed and remanded to the trial
court with instructions that the court calculate the
appropriate fee in light of the factors in ORS 20.075.
of attorney fees reversed and remanded; otherwise affrmed.
Or.App. 805] DEHOOG, J.
wage-claim case, defendant appeals the trial court's
award of attorney fees under ORS 652.200(2) and ORS 652.615.
Plaintiff was a commercial truck driver who sued defendant,
his former employer, for failing to pay wages that it owed
plaintiff, and for withholding a small sum from his paycheck,
albeit with his consent. The trial court transferred
plaintiff's case to court-annexed arbitration, and the
arbitrator found for plaintiff in small part on his unpaid
wage claim, as well as on his unlawful withholding claim.
Based on that limited success, the arbitrator awarded
plaintiff attorney fees in the amount of $16, 866.00.
Defendant did not challenge the arbitrator's substantive
rulings, but did file exceptions to the attorney fee award
with the trial court, as authorized by ORS 36.425(6)
(allowing for review limited to the amount of an
arbitrator's attorney fee award or the legal grounds for
granting or denying an award).
trial court upheld the arbitrator's fee award, concluding
that the arbitrator had not abused his discretion. Defendant
now appeals the resulting judgment and contends that the
trial court erred for six distinct reasons. We discuss the
merits of only two of defendant's arguments-his third and
fourth-ultimately rejecting defendant's contention that
plaintiff was not entitled to attorney fees on the unpaid
wage claim because his attorney "unreasonably failed to
give written notice" of those claims prior to filing the
action, ORS 652.200(2), but agreeing with defendant that the
arbitrator abused his discretion in awarding plaintiff
attorney fees on his unlawful withholding claim. See
ORS 652.615. As for the remaining contentions, we discuss
defendant's first argument, that the trial court
improperly reviewed the arbitrator's decision for an
abuse of discretion, only insofar as it implicates
our standard of review. We summarily reject
defendant's second argument for much the same reason as
its third. Finally, in light of our decision that the trial
court abused its discretion, we reverse the attorney fee
award and remand to the trial court with instructions to
address the [285 Or.App. 806] issues raised by
defendant's sixth and final argument on
begin with an overview of the salient facts and procedural
history of this case, taken from the limited record provided
to us on appeal. Plaintiff worked briefly for defendant as a
commercial truck driver in August and September 2013.
Following the termination of his employment, in November
2013, plaintiff sent defendant a "Notice of Non-Payment
of Wages." The notice stated that plaintiff was
"not certain of all claims" that he had against
defendant, because he did not have "access to all the
documents and information in the possession, custody or
control of [defendant]"; that he "reserve[d] the
right to assert other claims and different amounts"; and
that his notice was intended to put defendant "on notice
of all * * * claims whether specified * * * or not."
Plaintiff indicated that defendant had not paid him the
Unpaid regular wages earned consisting of:
Hours paid at the wrong rate: 84 x $1.00
Unpaid pre-shift hours worked
Unpaid post-shift hours worked:
Unpaid wages deducted unlawfully
TOTAL UNPAID EARNINGS:
Liquidated damages for unlawful withholding: $ 200.00
Unpaid premium pay for hours worked over 40 in a work week:
16.0 @ $7.00
8.0 @ $7.50
9.5 @ $7.50
9.5 @ $7.50
Liquidated damages for failure to pay premium pay: $ 314.50
Continuation wages for failure to pay all
wages upon termination:
$ 3, 600.00
$ 4, 924.95"
[285 Or.App. 807] (Boldface in original; footnote omitted.)
In December 2013, plaintiff's attorney sent defendant a
"Notice of Wage Claim, " which did not provide any
further details regarding the claims plaintiff intended to
assert against defendant, but which enclosed and incorporated
the first notice by reference. The attorney's notice
repeated the assertion that plaintiff reserved the right to
bring additional claims.
declined to pay the sums demanded by plaintiff. In its
exceptions to plaintiff's fee request, defendant
explained that it had reviewed plaintiff's personnel file
after receiving plaintiff's written notice and concluded
that his wage and unlawful withholding claims were
filed an action against defendant in February 2014. The
allegations of the complaint tracked the claims described in
plaintiffs prelitigation notice of nonpayment. Specifically,
in his first claim for relief (the wage claim), plaintiff
alleged all of the amounts listed in his notice of
nonpayment, including $126.95 that he claimed had been
unlawfully deducted from his paycheck to pay a traffic fine.
In his second claim for relief (the unlawful withholding
claim), plaintiff sought, under ORS 652.615, statutory
liquidated damages of $200.00 arising solely out of his claim
that the $126.95 deduction was unlawful. In connection with the
wage claim, the complaint alleged that "[p]
laintiff's attorney gave written notice of the claims in
this matter to defendant before filing the action."
Consistent with his prelitigation notice, plaintiff alleged
damages and penalties totaling $4, 924.95. In its answer,
defendant denied that plaintiff was entitled to any unpaid
wages or penalties and denied that plaintiff had given
defendant notice of his claims.
deposed defendant's representative on July 9, 2014, three
weeks before the scheduled arbitration hearing. Two days
after the deposition, defendant mailed plaintiff a check in
the amount of $975.59, purporting to represent 37.15 hours of
work at $14.00 per hour, less applicable state and federal
withholdings, as well as a [285 Or.App. 808]
"miscellaneous]" sum in the amount of
According to defendant, it sent the check to plaintiff in an
attempt to pay him wages that it first learned that it owed
him at the July 9 deposition. Plaintiff did not accept that
payment. Instead, on July 28, plaintiff amended the complaint
to allege that he had worked 24.95 hours in August 2013 for
which he had not been paid (the August wages), as well as
additional premium pay claims corresponding to the newly
added August wages.
noted, the trial court referred the action to court-annexed
arbitration, see ORS 36.400(2), and an arbitrator
heard the matter on July 30, 2014. Following the hearing, the
arbitrator issued a written opinion separately addressing
each of plaintiff's claims. The arbitrator denied most of
plaintiff's wage claim, but awarded him $349.30 (24.95
hours at $14.00 per hour) for the August wages that had come
to light at defendant's deposition and that plaintiff had
first alleged in the amended complaint. On plaintiff's
unlawful withholding claim, in which he alleged that
defendant had unlawfully deducted $126.95 from his wages to
pay a traffic fine on his behalf, the arbitrator found for
plaintiff after concluding that the withholding was, in fact,
unlawful, because defendant made the deduction without first
obtaining plaintiff's written authorization. See
ORS 652.6lO(3)(b). On that claim, the arbitrator awarded
plaintiff liquidated damages of $200.00 in accordance with
ORS [285 Or.App. 809] 652.615. Finally, after finding against
plaintiff on all of his remaining claims and allegations, the
arbitrator determined that defendant had not acted willfully
in failing to pay plaintiff any of the amounts that it owed
him, because defendant's "actions amounted to a
combination of unintentional miscalculation, innocent error
or lack of information, and/or were performed under a good
faith belief that the wages were not due." Therefore,
the arbitrator declined to award continuation wages as a
penalty under ORS 652.150(1).
the arbitrator's rulings on the merits, plaintiff sought
$33, 732.00 in attorney fees under two statutory provisions:
ORS 652.200(2), which, with certain exceptions that we will
discuss, provides for a mandatory attorney fee award to a
plaintiff who prevails on a wage claim; and ORS 652.615,
which authorizes an award of attorney fees to a party who
prevails on an unlawful withholding claim.
arbitrator considered defendant's written exceptions to
that request before concluding that a "full award of the
attorney fees sought [wa] s not reasonable in light of the
amount involved in the controversy and the results
obtained." Instead, "[a]fter considering all of the
factors in ORS 20.075 and applying them to the evidence, "
[285 Or.App. 810] the arbitrator awarded plaintiff half of
his requested fees, or $16, 866.00. Defendant again filed
written exceptions to that award, this time with the trial
court under ORS 36.425(6), which, as noted, allows for