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CapitalPress.com
February 10, 2017
Oregon
Attorney: Workers’ comp retaliation lawsuits on the rise
New problems flaring up in field of farm labor, agricultural attorney says
By MATEUSZ PERKOWSKI
Capital Press
SALEM — Farmers are
increasingly facing accusa-
tions of retaliating against
employees who request
workers’ compensation af-
ter being hurt on the job,
according to an agricultural
attorney.
Workers’ compensation
— an insurance program
for employees who are hurt
on the job — traditional-
ly hasn’t been a source of
farm labor litigation, said
Tim Bernasek, an attorney
who heads the Dunn Carney
law firm’s natural resources
team.
In the past 18 months,
though, Bernasek said he’s
encountered several law-
suits and threats of lawsuits
against Oregon farm em-
ployers for alleged retali-
ation against workers who
file workers’ compensation
claims.
Retaliation is an unlaw-
ful employment practice for
which employees can seek
financial damages, he said
during Dunn Carney’s 2017
Ag Summit in Salem, Ore.,
on Jan. 20.
It’s implausible that farm-
ers have suddenly colluded
to discriminate against these
employees, but it’s unclear
exactly why workers’ com-
pensation has just recently
caused problems, Bernasek
said.
Allegations of retali-
ation have been made by
employees who were receiv-
ing workers’ compensation
when they were fired for
cause or who stopped show-
ing up for work, he said.
Even employees who
have quit made retaliation
claims, arguing that work
conditions had grown so in-
sufferable that they’d been
“constructively discharged,”
he said.
Such cases aren’t easy to
deal with, since they involve
“he said-she said” interpre-
tations of events, Bernasek
said.
“Be very careful when
you terminate them, and I’d
advise seeking legal advice
before doing so,” he said of
employees receiving work-
ers’ compensation.
The U.S. Department of
Labor has also been increas-
ingly watchful for poten-
tial violations involving the
transportation of workers,
Jobs recovery lags in some rural areas of state
By MATEUSZ PERKOWSKI
Capital Press
SALEM — Oregon now
has more jobs than before the
“great recession” but some
rural areas are still lagging
behind, according to the state
economist.
After the financial crisis
a decade ago, Oregon lost
roughly 8 percent of its jobs,
said Mark McMullen, the state
economist.
Since then, the state has
not only regained all those
lost jobs but also increased the
overall number by 6.5 percent
from the pre-recession peak,
he said during a Feb. 6 hearing
before the House Committee
on Economic Development
and Trade.
However, McMullen said
those gains haven’t been felt
equally by all regions of the
state.
The Portland metropolitan
area has seen the strongest
recovery, with the number
of jobs now 9 percent higher
than before the recession.
There are now 7.5 percent
more jobs in the Columbia
Gorge, 6.8 percent more jobs
in Central Oregon and 3.3
percent more jobs in the Wil-
lamette Valley.
Jobs in Southern Oregon
contracted by roughly 12 per-
cent during the recession but
the region now has 0.3 per-
cent more jobs than before the
crisis.
Northeast Oregon and the
North Coast haven’t yet fully
recovered, but the number of
Mark McMullen
jobs is less than a half-percent
lower than before the reces-
sion.
Southeast Oregon still has
4.7 percent fewer jobs than the
pre-recession peak, while the
South Coast has 6.1 percent
fewer jobs. The regions have
seen worse times, though —
both have recovered roughly
half the jobs they lost during
the recession.
Some counties are still
seriously reeling from the
downturn. Gilliam County has
recovered only 10 percent of
the jobs it lost during the reces-
sion, while Crook and Grant
counties have recovered fewer
than 30 percent.
The good news is that
nearly 100 percent of Oregon
counties are now gaining jobs
rather than losing them, Mc-
Mullen said.
The lone exception —
Morrow County — is actual-
ly an economic success story,
but has recently lost some jobs
because of the completion of
major construction projects, he
said.
Oregon now has about 2
unemployed people per job
opening, down from 11 peo-
ple per open position in late
2009.
In terms of income, the top
20 percent of Oregon house-
holds are now making 6.7
percent more money than they
were a decade ago, adjusted for
inflation, he said. Inflation-ad-
justed incomes are about 1 per-
cent lower among the middle
20 percent of households and 7
percent lower among the bot-
tom 20 percent.
Oregon is the 12th most
trade-dependent state in the
U.S., he said. Computer and
electronic equipment lead the
way in exports, followed by
heavy manufactured products
such as metal and machinery,
then agricultural goods and
forestry products.
China is the major destina-
tion for Oregon exports, fol-
lowed by Canada, Malaysia,
Japan and South Korea.
Exports from Oregon are
now facing a headwind due to
the high value of the U.S. dol-
lar compared to other curren-
cies, which makes our prod-
ucts more expensive in foreign
markets.
“It hasn’t been this strong
since 2000,” McMullen said.
“It’s putting downward pres-
sure on the demand for our
exports.”
Bernasek said. “It’s flaring
up all of the sudden.”
Technically, farmworkers
who charge their co-workers
for rides to the job site must
be licensed as labor contrac-
tors and follow other regula-
tions under the Migrant and
Seasonal Agricultural Work-
er Protection Act, he said.
Since the DOL isn’t like-
ly to enforce the law against
farmworkers, the agency has
been seeking to hold grow-
ers responsible for violations
of the rules, he said.
Farmers can free them-
selves of liability under an
exemption for workers par-
ticipating in car pools, but
they must not allow super-
visors to act as the drivers,
he said.
“Their activities are im-
puted onto you for Depart-
Mateusz Perkowski/Capital Press
Tim Bernasek, agricultural attorney at the Dunn Carney law firm.
ment of Labor purposes,”
Bernasek said.
Workers should also sign
a disclosure stating that the
farm provides no transpor-
tation to or from job sites,
though sufficient parking
will be available, he said.
Oregon lawmakers consider
stronger invasive mussel defenses
Quagga and zebra
mussels can block
irrigation intakes,
disrupt ecosystems
By MATEUSZ PERKOWSKI
Capital Press
SALEM — Oregon law-
makers are considering
whether to strengthen the
state’s defenses against in-
vasive aquatic mussels that
threaten both irrigation sys-
tems and ecosystems.
The House Agriculture and
Natural Resources Commit-
tee has introduced legislation
creating a new penalty for
people who refuse to subject
their boats to inspection for
quagga and zebra mussels
at checkpoints, among other
measures.
The mussels threaten to
clog irrigation intakes and
disrupt habitats for native fish
species.
Currently, drivers hauling
boats who don’t stop at check
points can be ticketed for traf-
fic violations. The stations
are located at common entry
points for watercraft along
Oregon’s borders.
Under House Bill 2321,
drivers who are pulled over
by police within five miles of
failing to stop at a checkpoint
can be charged with a misde-
Quagga mussel
This non-
native
freshwater
mussel
poses a
0.8 inches
major
(Actual size)
threat to
U.S. waterways as an
invasive species. It’s similar
in appearance to its more
infamous cousin, the zebra
mussel.
Binomial name: Dreissena
rostriformis
Appearance: Shell is striped,
being more pale toward the end
of the hinge
Diet: Filter feeder
Life span: 3-5 years
Origin: Dnieper River drainage
of Ukraine
First observed: 1989 in Lake
Erie near Port Colborne, Ontario
Sources: www.wikipedia.org; USGS
Capital Press graphic
meanor if they refuse to return
for inspection.
If convicted, the crime
would be punishable by up
to 30 days in jail and a fine of
$1,250.
The legislation would also
eliminate a current exemp-
tion under which operators
of non-motorized watercraft
under 10 feet in length, such
as kayaks, don’t have to buy
Aquatic Invasive Species Per-
mits, which cost $5 a year.
Money collected from sell-
ing such permits is used to
control invasive aquatic spe-
cies.
Under HB 2321, boats
would have to be drained of
all water before leaving a
river or lake, with operators
facing a penalty of $30 for
non-motorized watercraft and
$50 for motorized watercraft
if they don’t comply with the
requirement.
Between 2010 and 2016,
the number of boats inspect-
ed for invasive mussels has
grown from fewer than 3,000
to more than 16,000 per year,
said Scott Brewen, director
of the Oregon Marine Board,
during a Feb. 2 committee
hearing.
While compliance with the
check points has improved in
recent years, about 18 percent
of boaters still didn’t stop for
inspections in 2016, spurring
the idea for HB 2321, he said.
Rep. Sherrie Sprenger,
R-Scio, said she sympa-
thized with the intent of the
bill but was concerned about
the potential for boaters to be
charged with a misdemeanor,
the same class of crime as
some thefts and assaults.
Rep. Brian Clem, D-Sa-
lem, said he wasn’t thrilled
about eliminating the permit
exemption for non-motorized
watercraft under 10 feet in
length, but he said the points
would be further debated in
the future.
Rancher ‘harvests’ rainwater for use when needed
By BRETT TALLMAN
For the Capital Press
SHERIDAN, Ore. —
When Leo Krick built a rain-
water harvest system in 2009,
he had little to go on.
“It was hard to figure out,”
Krick said. “When we did it
there wasn’t a lot out there.”
Krick and his wife run a
36-head cow-calf operation
on their 209-acre Cherryhill
Ranch near Sheridan, Ore.
The retired Portland fire-
fighter did most of the plumb-
ing himself. All told, the
system cost about $3,500,
75 percent of which was cov-
ered by a grant from the Ore-
gon Watershed Enhancement
Board and secured through the
Yamhill Soil and Water Con-
servation District. Now, rain-
water provides all the winter
water needs for their animals.
Theoretically, the roof of
Krick’s barn, at 84-by-84 feet,
could generate 187,000 gal-
lons of water in a typical year
in Western Oregon.
“Obviously, we don’t cap-
ture all that,” he said, “but we
catch what we can use and it’s
been great.”
Krick’s system, set at the
northeast corner of his barn, is
made up of four 2,500-gallon
tanks plumbed to stock tanks
inside the barn. Thanks to a
little summer rain, those tanks
have had water in them year-
round for the last two years.
“It doesn’t take that long
to fill it,” Krick said. “Most
years all four tanks are full by
the end of October. If it’s a wet
fall, it’s full by the end of Sep-
tember.”
Though they’ve never had
well problems at Cherryhill
Ranch, Krick said a rainwater
collection system made sense
for their operation.
“We’re off the grid that
way,” he said, “and by not put-
ting any additional strain on
groundwater we’re doing right
by the environment.”
Though rainwater harvest
is nothing new, it’s getting a lot
of attention in Oregon because
landowners don’t need a water
right to collect it.
“Once it hits the ground it’s
the belongs to the state of Or-
egon,” Michael Crabtree said.
“But it is legal to collect it off
an impervious surface like a
roof.”
Crabtree, a senior con-
servation technician with the
Yamhill Soil and Water Con-
servation District, helps inter-
ested landowners find grants
for rainwater collection sys-
tems and even helps design
and install them.
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