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Friday, March 5, 2021
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Opinion
Editor & Publisher
Managing Editor
Joe Beach
Carl Sampson
opinions@capitalpress.com | CapitalPress.com/opinion
Our View
These bills would launch litigation Armageddon
D
emocrats in Oregon and
Washington are proposing
legislation that would allow
workers and other private parties to
sue employers in the name of the
state for wage and safety violations.
Stand clear, if these measures pass,
lest you be run down by the trial bar
rushing to the courthouse.
Such actions, known as qui tam
complaints, have a long history
stretching back to English common
law. Qui tam is shorthand for a much
longer Latin phrase that translates to
“he who sues in this matter for the
king as well as for himself.”
In a qui tam suit, a private party
sues on behalf of the government
in exchange for a share of any
settlement.
In the United States the concept
dates to the Civil War, at time when
fraud was common but government
oversight was not. That led to the
False Claims Act, which encouraged
individuals with knowledge of fraud
on the part of government contractors
to take the matter to court.
The False Claims Act attempted to
check rampant corruption at a time
when there wasn’t an extensive net-
work of government investigators
and prosecutors. The backers of these
bills suggest that neither of their
respective states maintain a robust
regulatory enforcement apparatus.
“Passing these laws is import-
ant. And it’s even more important to
make sure they’re enforced. Our state
agencies do work hard and their staff
are extremely dedicated, but they
cannot be everywhere at once,” Rep.
Barbara Smith-Warner, a Portland
Democrat, said.
They are not everywhere, but they
are responsive to complaints filed by
aggrieved workers.
A key component to both House
Bill 2005 in Oregon and House Bill
1076 in Washington are provisions
that would cut the state in on any
money recovered in the case.
That would prove a boon to state
coffers without any effort or expense
on the part of regulators — a “pos-
itive” outcome, according to one of
the Oregon measure’s supporters. It
would also be a boon to the trial bar,
which would be incentivized to file
even marginal cases in the hopes the
potential expense of protracted lit-
igation would prove more expen-
Ag is fighting for survival
in Washington state
Our View
S
Oregon Capital Insider
The Oregon State Capitol.
Employment Department
covers its backside
hen Gov. Kate Brown took office in
2015 amid the scandals that brought
down her predecessor, John Kitzhaber,
she promised that her administration would be
transparent.
The definition of transparency has been squishy
ever since. So, we weren’t surprised last week
when the acting director of the Oregon Employ-
ment Department declined to tell reporters how
much the state has paid out in fraudulent claims
during the pandemic.
David Gerstenfeld said putting a number on it
could trigger a wave of attempted thefts that could
W
drain the state’s unemployment funds.
That horse is out of the barn. The U.S. Justice
Department estimates criminals using stolen per-
sonal information have made off with $63 billion
nationwide since March. An audit in Washington
state found $600 million was lost to fraud in the
Evergreen State.
Putting a figure on Oregon’s losses would likely
only trigger justifiable outrage for thousands of
unemployed Oregonians who waited months for
benefit checks while the department allegedly vet-
ted their claims.
CYA — the abbreviation for keeping embarrass-
ing information secret.
Cultivating a farm state of mind about mental health
F
or farmers and ranchers, stress
is a way of life. We depend
on many factors that are
out of our control, like weather,
commodity prices, availabil-
ity of labor, trade markets, and a
lot more. With the impacts of the
COVID-19 pandemic, our stress
levels have gone even higher and
in many cases are reaching the
breaking point.
A new survey from the Ameri-
can Farm Bureau found that more
than half of rural adults and farm-
ers/farmworkers say they are per-
sonally experiencing more mental
health challenges than they were
a year ago. Two in three farm-
ers/farmworkers say the COVID-
19 pandemic has impacted their
mental health, and two in three
have experienced feeling nervous,
anxious, or on edge during the
pandemic.
The percentage of farmers/farm-
workers who say social isolation
impacts farmers’ mental health
increased 22% since April 2019, a
significant finding given the long
hours many farmers work alone.
This should be a wake-up call
for everyone in the agriculture
community, and we should all be
GUEST
VIEW
Cory
Stengel
doing our part to help.
As part of Agricultural Safety
Awareness Week (Feb. 28-March
6), Oregon Farm Bureau encour-
ages everyone to learn to recog-
nize the warning signs of chronic
stress, engage in conversations,
and lend a helping hand.
When loved ones, neighbors,
or others we care about are expe-
riencing mental health challenges,
they may not even realize it, so it’s
important to look for signs that they
may be at risk. These include things
like changes in routines or social
activities, decline in appearance
of the farm or the care of domes-
tic animals, increase in farm acci-
dents, increase in illnesses or other
chronic conditions, or decreased
interest in activities or events.
If you see any of these signs, it’s
time to show you care.
It may feel like it’s out of your
comfort zone, but there are sim-
sive to defendants than paying out
settlements.
Are these bills about winning jus-
tice for injured workers or deputiz-
ing private parties to use the courts
to extort payments from employers?
Two birds with one stone, or one out-
come being the accidental outcome
of the other?
We agree with Washington State
Dairy Federation labor analyst Scott
Dilley that this is a “categorically bad
idea.”
“We already have agencies and
regulations and processes set up for
investigations and enforcement,” he
said.
These bills would lead to litigation
Armageddon, and make the business
climate in Oregon and Washington
even worse than it is now.
ple ways to start a conversation.
Remind them of something they’ve
said about what’s concerning them,
and express interest.
Acknowledge what they’re
going through. Share a habit you’ve
seen change. And if you’re con-
cerned, don’t wait for them to ask
for help. Offer to help connect
them to the many resources that are
available for support.
What matters most is show-
ing genuine care and empathy, and
listening.
It’s time we all took a stand to
help those around us who may be
experiencing the effects of chronic
stress. Visit the Farm State of Mind
website at farmstateofmind.org for
more information about the warn-
ing signs of stress, tips for helping
someone in emotional pain, ways to
start a conversation, crisis hotlines,
treatment locators, and additional
resources for managing stress,
anxiety or depression.
If we all do our part to help, we
can strengthen our rural and farm-
ing communities and shine a ray of
hope on those we care about.
Cory Stengel chairs the Oregon
Farm Bureau Health and Safety
Committee.
ome moments lend
themselves to hyper-
bole. That amaz-
ing fishing trip from seven
years ago; the winning free
throw at a high school bas-
ketball game; the marriage
proposal when time stood
still.
Or 2020, when Wash-
ington agriculture was
fighting for its life after
a court ruling forced the
dairy sector to begin pay-
ing time-and-a-half and
left the specter of retro-
active pay lingering in
the background like an
unwanted flu just before
vacation.
In our state, we are
waging a war about how
best to determine what
“just” compensation
looks like in the wake of
the Martinez-Cuevas v.
DeRuyter Brothers Dairy
court decision of Novem-
ber 2020. The dairy sec-
tor has its answer from
the courts: dairy produc-
ers must pay time-and-a-
half for any hours worked
after 40. The rest of the
agricultural community
will have to wait and see
what comes of the legisla-
tive session to determine
how to move forward on
the question of what con-
stitutes a “work-week” in
agriculture.
The ruling, however,
left open the possibility of
payment of more wages
for past work. To be clear,
the plaintiffs in the case
were paid in full for their
work. Any “back pay”
would be applying the cur-
rent law — time-and-a-
half rules — to work done
in the past. Specifically, it
would be imposing a retro-
active punishment against
the DeRuyter Brothers
Dairy for following the
law at the time.
A bill in Olympia, SSB
5172, would make farmers
pay again for work done
three years ago, with 12%
annual interest added on as
a punishment. Any funds
that could not be distrib-
uted to former employ-
ees by employers would
be placed in an escrow
account for six years
while the Washington
State Department of Labor
and Industries attempted
to locate the individu-
als involved in the claims.
This is not a fix.
The original language
of SSB 5172 — “the legis-
lature intends to limit the
retroactive effect of court
decisions concerning over-
time wage claims by delin-
eating factors that estab-
lish inequitable results.
When considering whether
to award retroactive pay in
a cause of action seeking
overtime pay … the court
is prohibited from mak-
ing such an award when
the award would create a
substantially inequitable
result” — acted as a pro-
GUEST
VIEW
Pam
Lewison
tective mechanism for all
overtime exempt employ-
ers; effectively banning
lawsuits seeking retroac-
tive payments. That is a
fix. A fix for all overtime
exempt employers, not just
agricultural employers,
because it wouldn’t pun-
ish employers for follow-
ing the law.
As lawsuits pile up —
more than 30 at last count
— the rest of the agri-
cultural community must
entertain the very real pos-
sibility of paying time-
and-a-half just as the dairy
sector is doing now.
The prospect of retroac-
tive pay creates an urgent
existential crisis for the
dairy sector in Washing-
ton state. Conservative esti-
mates for the economic
effect on the industry sug-
gest it would cost our dairy
producers $120 million
should nothing be done to
stop this egregious injustice.
There is no more sym-
biotic relationship than
the one between agricul-
tural employers and their
employees. It is based
upon both parties work-
ing in harmony. Without
farmworkers, farms would
cease to be the cost-effec-
tive, efficient marvels they
are in today’s economy.
Without farms, farmwork-
ers would cease to find
themselves with reliable
work at wages well above
the state’s minimum wage.
Odd-numbered years
are 105-day legislative
marathons in Washington
state. The long session is
the saving grace for agri-
culture this time around.
There is still time to nego-
tiate, still time to make our
voices and stories heard.
It is not the natural habit
of farmers to discuss their
business with the pub-
lic. That is, in part, what
got us into this mess in the
first place. But it is abso-
lutely essential that we put
our habits aside and fight
for our employees and our
businesses by telling the
truth about what we do.
Farmers and ranchers
and their employees are a
family, a community, and
in this moment, when we
need each other the most,
we must make our voices
heard and tell our individ-
ual and collective stories
to anyone who will listen.
Pam Lewison is a
fourth-generation farmer
in Eastern Washington and
the ag research director for
the Washington Policy Cen-
ter. You can read more of
her work and more about
SSB 5172 at washington-
policy.org.