law – Daily Journal of Commerce

Portland law firm adds shareholder, changes name

91��Ƶ Staff — Tue, 11 Apr 2023 23:57:27 +0000

From left, Jonathan Barg, Cody Hoesly and Jonathan Singer are the renamed firm’s three shareholders. (Maggie Kirkland/courtesy of Barg Singer Hoesly PC)

A boutique law firm known for its work on commercial real estate transactions and development has added litigator Cody Hoesly as a shareholder and adopted a new name: Barg Singer Hoesly PC.

Hoesly has 15 years of experience handling complex civil litigation – business and real estate disputes, actions involving financial institutions, and investors’ claims of wrongdoing – in both trial and appellate courts. He has received recognition from both U.S. News – Best Lawyers and Super Lawyers | Thomson Reuters.

Barg Singer Hoesly, based in downtown Portland, also includes shareholders Jonathan Barg and Jonathan Singer. Over more than 30 years, the firm has helped investors, developers, small businesses, Fortune 500 companies, and other clients navigate real estate transactions and development projects.

“This feels like a natural fit,” Barg said of the addition of Hoesly to create a “one-stop shop for real estate law in Portland.”

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Julie Su and you: possible impacts of new Labor Department head | OP-ED

Stephen Scott — Thu, 06 Apr 2023 16:59:45 +0000

Stephen Scott

On March 14, 2023, President Biden formally submitted to the Senate his nomination of Julie Su to be the next Labor Department secretary. While this news may have flown under the radar for many employers in Oregon given the recent snow issues and banking news, it is a significant development that requires planning. Failure to plan could have drastic consequences.

As an analogy, I will rely on my own experience during the recent snowstorm. Since I had run to work, I had to get an Uber ride home. My wife insisted that I should get one immediately because it was snowing in Northeast Portland. Shockingly, I listened and got a ride partially home. Unfortunately, the Uber driver was unable to continue about a mile from my house. I got out and sent a photo of myself trekking home to a Fantasy Premier League group chat with members who live in Lake Oswego. They mocked me and asked for a selfie with me holding a newspaper (sadly I did not have my 91��Ƶ with me) because there was no snow where they were working. I insisted that the photo was taken moments ago. Their failure to listen and plan resulted in a multi-hour commute home.

The head of the Labor Department wields tremendous influence over the nation’s workplace policy. To stave off companies’ frustrations related to national employment law changes, here is a proper heads-up on four areas of law that may be impacted by Julie Su.

Wage and hour

Employers have been anticipating a new federal overtime rule from the Labor Department for some time – and we can expect Secretary Su to continue working to make this happen. Under Su’s leadership, the DOL will likely try to increase the salary threshold from the current rate of $684 a week to somewhere around $900-$1,000 a week.

Workplace safety

We can expect two major developments under Secretary Su in the coming months: OSHA will release a COVID-specific rule to address the virus in health care settings, and the agency will issue a broader infectious disease regulation that will apply to all workplaces. Health care employers will be required to tackle a great deal of compliance work in terms of preventive care and responses to outbreaks, while all employers will need to stay up to speed on workplace safety for the foreseeable future.

Moreover, expect OSHA to ramp up workplace inspections under Su’s leadership, particularly since the agency recently cast a wider net to include even more workplaces in its enhanced safety inspection program known as the “Severe Violator Enforcement Program” (SVEP). Compliance is more important than ever given OSHA’s increased penalties and its plan to allow union leaders to accompany safety inspectors when they walk through a workplace – even if it’s a nonunionized environment.

Joint employment

Former Secretary Marty Walsh saw to it that the Trump-era joint employer rule that made it harder for employees to prove joint employment for the purposes of wage litigation was scrapped very early in his tenure, and a federal court put the final nail in that coffin in 2021. We have expected the agency to follow up and develop a replacement rule that brings the standard squarely back into Obama-era territory. To date, that hasn’t happened, but we expect things to get a kick start under Su’s tenure.

We expect to see the new rule, which should be issued sometime in 2023, place organizations engaged in multi-participant arrangements – such as outside-party management, joint ventures, staffing services, employee leasing, temporary help, subcontracting, certain kinds of “job sharing,” and dedicated vendors or suppliers – directly in the agency’s crosshairs. The DOL will aim to put as many of them as possible on the hook for any alleged wage and hour violations filed under federal law.

Pay equity and affirmative action

President Biden called Secretary Su a “champion of workers,” and we expect her to focus on pay equity and transparency for women, low-wage earners, and underrepresented groups. Notably, Su co-founded California’s Pay Equity Task Force while Jerry Brown was governor. The task force was formed to focus on compliance after the state’s Fair Pay Act took effect.

Although we anticipate pay equity activity to take place primarily at the state level, we can expect Secretary Su to implement strategies to try to close the pay gap at the national level. Employers can expect more investigations into pay disparities, as well as enforcement actions against federal contractors. Additionally, we can expect federal contractors to continue seeing a focus on diversity, equity, and inclusion from the Office of Federal Contract Compliance Programs.

Secretary Su may also advocate for the Equal Employment Opportunity Commission to reinstitute the federal EEO-1 “Component 2” reports that briefly required employers to collect and turn over pay data and hours worked information to the government. While there are lots of rumors about a revived EEO-1 Component 2 requirement, nothing concrete has developed – yet.

Conclusion

Reach out to your attorney if you have any questions related to the impacts Julie Su may have on how your company does business. It is better to believe the warnings and follow the recommendations than be stuck in a multi-hour commute like my buddy who refused to believe a photo of snow was real without the photo including that day’s 91��Ƶ.

Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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Fine distinctions: OSHA set to raise penalties

Garrett Andrews — Thu, 14 Jul 2016 22:15:02 +0000

(Illustration by Stewart Cole)

The federal Occupational Safety and Health Administration is raising its penalties for the first time in 25 years. It’s one of a number of major changes ahead for employers, and with it comes talk of legal challenges.

Some legal observers are warning the new higher maximums could be applied retroactively, which would to questions of due process and ex post facto. This likely wouldn’t happen in Oregon, but as more and more firms are extending their reach beyond their home state, it has people here talking about a new standard for due process.

But it’s unlikely to happen in this state, according to Aaron Corvin, spokesman for Oregon OSHA. The new maximums will become effective only after the Legislature approves them in its next session, he said. The agency will not apply the penalties retroactively, he said.

That’s because Oregon is one of 22 states with an OSHA-approved “state plan,” meaning its safety and health laws are the purview of a state-run agency rather than the federal program. Guiding each of these state plans is the phrase “at least as effective” – a mandate that all their policies and programs at least meet federal OSHA requirements. Oregon will adjust penalties upward, but won’t begin applying the new rates until after state lawmakers give their approval, Corvin said.

Contained in the Bipartisan Budget Act of 2015 is a requirement for some federal agencies to adjust their civil penalty rates based on inflation. Backers felt it was important for regulatory fines to remain a credible deterrent to bad behavior. OSHA most recently increased its penalties in 1990.

Across the country, in states without state plans, OSHA’s penalties will increase by 78 percent when they become effective Aug. 1. Fines for “serious” violations will rise from $7,000 to $12,471. Fines for “repeat” and “willful” violations will jump from $70,000 to $124,709.

Here in Oregon, this won’t happen any earlier than January 2017, when the Legislature next meets. The specifics of the bill aren’t yet known, said Corvin.

“And it’s also worth noting that we’re not going to go back and apply new maximums to citations that already have been issued,” Corvin said.

Laws that forbid actions someone has already taken are known as ex post facto laws and in the U.S. are forbidden by the Constitution. Former Oregon supreme and appellate court justice W. Michael “Mick” Gillette said it’s important to consider that Congress’ motivation in passing the increases was to ensure that violations of safety rules don’t become cheaper and cheaper.

“If something is already a violation of the law and the only question is what consequence in money flows from it, that doesn’t carry with it quite the same concern,” he said. “And because these raises are based on inflation, it seems to me what Congress is really saying (is) we don’t (want) to punish anybody any more in real dollars than they would have been punished before.”

The promise of due process – that a person’s life, liberty and property cannot be taken without due process of law – appears in the constitution in the Fifth Amendment and is later echoed in the 14th. Americans are entitled to certain procedures and warnings before a fine is imposed. The country’s founders weren’t thinking about this problem at all, according to Gillette.

“The concept of what due process of law was was in no sense settled,” he said. “It may have been settled in each of the minds of the men – and it was all men – who voted in favor of the two different amendments, but if you’d have sat them down in a room and quizzed them, they wouldn’t have all agreed with respect to how due process actually played out.”

Unlike most states, Oregon doesn’t have a due process clause in its constitution. It takes its signals from the federal clause. Gillette was on the supreme and appellate courts for many due process-related cases, but they tended to be around the subject and not on it. This prevented each court from making a ringing positive statement with regard to what due process required in Oregon.

States have different laws regarding safety, and firms would be wise to internalize those of whatever they work in, because ignorance of the law is no excuse, said Elaine Fischer, spokeswoman for the Washington Department of Labor and Industries.

“When it comes to safety, they have to follow our rules when they work in our state,” she said.

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2015 Newsmakers: Miller Nash Graham & Dunn LLP

Stephanie Basalyga — Fri, 27 Feb 2015 00:11:36 +0000

Dennis Rawlinson, left, and Kieran Curley (Sam Tenney/91��Ƶ)

With a 140-year history in Portland, Miller Nash was used to being one of the five largest law firms in Portland. But Seattle was a different story.

“To serve one, and then more of our clients, we opened an office in Seattle,” Dennis Rawlinson, Miller Nash’s chairman, said. “We had gotten a specific size (there), but we weren’t a player.”

That changed last year when Miller Nash, which was ranked as Seattle’s 39th largest firm, joined forces with Graham & Dunn, a 100-year-old Seattle firm that wanted to rise from its position as the 15th largest firm in that city.

As a result of the merger, the new firm of Miller Nash Graham & Dunn – with a combined total of 160 attorneys – laid claimed to the spot as the eighth largest firm in Seattle.

The prestige that comes with being a top-tier firm wasn’t the only reason joining forces appealed to both Miller Nash and Graham & Dunn, however.

“We have complementary cultures,” Rawlinson said. “That’s harder to find than you might think. … I think both firms realized there was an opportunity to take very homogeneous cultures and blend them into one of the largest in the market.”

Both firms also have solid expertise in similar practice areas, including banking and litigation. That combined expertise has created a firm that Rawlinson believes is unmatched in Portland and Seattle.

“No other law firm can claim that depth of experience (in those areas),” he said.

At the time the merger was announced, Rawlinson said the firm attorneys based in Portland would continue to work out of Miller Nash’s office. The Seattle-based attorneys would all work out of Graham & Dunn’s space in a building on Pier 70 in the city’s waterfront area. With its picture windows in each office and its houseboat-like feel, the space is perfect for a growing law firm looking toward the future.

“In a sense, we’re kind of doing what (the law firm) Perkins Coie did when it moved to the Brewery Blocks,” Rawlinson said. “We’re trying to shed this stuffy perception of old law firms that have been around for 130 or 140 years.”

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Ogletree Deakins adds Lorne Dauenhauer

Joel Slaughter — Tue, 27 Jan 2015 00:21:32 +0000

LAW

Ogletree, Deakins, Nash, Smoak & Stewart PC (Ogletree Deakins), has added Lorne Dauenhauer as a shareholder in its Portland office. He previously was a Lane Powell shareholder and led its employee benefits practice group. Dauenhauer has more than two decades of employee benefits experience, including nine years as an actuarial consultant and more than 12 years practicing employee benefits law. He focuses a large portion of his practice on qualified and non-qualified retirement plans. He also regularly handles a range of other employee benefits and executive compensation matters.