Portland labor lawyers have filed an aggressive and potentially precedent-setting class-action lawsuit against a Portland baked goods manufacturer, alleging the company overworked its production line employeesâmany of whom are vulnerable immigrants and refugees with limited English skills, they saidâand bilked them out of overtime pay.
The suitÂâwhich seeks both daily and weekly overtime pay for workersâis unheard of in Oregon, and could have a major impact on the manufacturing industry in the state. For now, though, itâs focused on one Gresham business: Portland Specialty Baking (PSB).
About 175 production line workers at the plant mass-produce baked goods for outlets like Starbucks, Walmart, and Jamba Juice under the âFranzâ and âRichâsâ labels.
Seven named plaintiffs, along with other current and former employees that the suit is aimed at compensating and protecting, âare hard workers, and many of them come to this country from difficult circumstances, seeking to start to start new lives,â said Corinna Spencer-Scheurich, an attorney and deputy director of the Northwest Workersâ Justice Project (NWJP), which filed the complaint. âThe lawsuit is seeking to assure these Oregonians have fair working conditions and pay.â
PSBâs no stranger to complaints. The company was fined $28,125 last year by the Oregon Occupational Safety and Health Administration for a number of âwillfulâ safety violations after a workerâs hand was crushed in a dough-mixing machine. Late last year, an employee not involved with the current lawsuit filed a complaint with the state alleging issues with pay and the lack of breaks. And the company was accused of union-busting earlier this year, when a complaint with the National Labor Relations Board alleged it threatened to fire workers and close the plant if a union formed, the Northwest Labor Press reported.
In this case, employees say PSB routinely violates overtime pay laws, regularly forces workers to work more than 13 hours a day, and illegally pressures them not to take sick leave.
âWe always knew it was illegal but just no one would stand up,â employee Jose Ignacio Mazahua Reyes told the Mercury via a translator. Reyes is a 63-year-old Mexican immigrant, and a plaintiff in the suit, whoâs worked at PSB for nine years. He works on his feet during his shifts, which are regularly scheduled for eight hours. But when time comes to clock out, he says, his boss will often tell him he needs to stay longerâwithout paying the overtime rate heâs owed.
âItâs very sad because I finished my schedule and Iâm ready to go, and itâs sad we have to do a lot more work,â Reyes said. âHow is it that we have more work? When did you ask me to do it? When did I agree to it?â
The potentially precedent-setting aspect of the suit concerns whether a manufacturing company needs to pay both daily time-and-a-half overtime when an employee works more than 10 hours in a day, as well as overtime for when the same employee works more than 40 hours in the same week.
PSB argues everything has been above board. Scott Seidman, a lawyer for Tonkon Torp representing the company, says the bakery calculates both the workerâs daily and weekly overtime and pays the higher of the two, which the Oregon Bureau of Labor and Industries (BOLI) suggests.
âThereâs nothing in the statute that says Iâve got to pay you double or triple time. Oregon doesnât have any double-time or triple-time law, and thatâs the main dispute,â Seidman says. âIf they are right about how overtime works, then every manufacturing employer who has been following the Oregon Bureau of Labor and Industriesâ guidance and has been relying on it for many years presumably must be all liableâ for paying both daily and weekly overtime.
Spencer-Scheurich says manufacturing companies are, in fact, liable for both amounts.
âWe think that the BOLI FAQ [or âfrequently asked questionsâ document] on the issue is simply wrong,â she says. âA FAQ is not a law or regulation and it even contains a disclaimer about how it is not legal advice or an agency order.â
Spencer-Scheurich argues daily and weekly overtime laws âare two separate statutory schemes. Nothing in either statute says that PSB gets out of paying both. It would undermine the purpose of the daily overtime statute if an employer could get out of paying daily overtime just by making you work more than 40 hours in a week, or vice versa.â
And BOLI, despite a long-held position that manufacturers should pay one type of overtime wage or the other, concedes the legal argument is unheard in Oregon, and may actually be correct.
âWe absolutely see the legal position thatâs being takenâthe laws themselves donât actually say that you look at both and compare them and pay them the highestâ said BOLI Deputy Labor Commissioner Christie Hammond. âWeâre not aware that anybody has ever pursued this theory before.â
Read the lawsuit below, or click here to view it in a separate window: