State labor official criticizes U.S. Supreme Court decision
State Labor Commissioner Brad Avakian says a recent U.S. Supreme Court decision related to arbitration will prove troublesome to businesses, not just workers.
"That was an absurd decision," Avakian said Monday, May 21.
Avakian's reference was to a 5-4 decision, which the Supreme Court issued Monday in three consolidated cases, that allow businesses to use arbitration clauses in employment contracts to bar workers from joining class-action lawsuits over workplace issues.
Under arbitration, a third party settles the dispute — and there is usually no alternative resolution.
The decision affects an estimated 25 million employment contracts.
"Arbitration agreements limit people's ability to go to court if they want a jury trial," Avakian said. "That was a strike against workers."
The court ruled in a 2011 case that businesses can invoke arbitration clauses to bar consumers from filing class-action suits.
But in two of the three cases brought to the high court — all of them arguing that workers were underpaid — federal appeals courts ruled in favor of allowing class-action suits on wages and working conditions. One appeals court, however, did not — and the conflicting rulings prompted the high court to act.
Now individual workers will have to file separate lawsuits.
"For employees, class-action suits do not put all the burden of financing or supporting a case on one individual who might be going after a giant corporation," Avakian said. "It balances the power by letting employees join together and carry the burden."
Avakian, who is wrapping up a decade as the elected commissioner of the Oregon Bureau of Labor and Industries, said the decision also has consequences for businesses.
"For businesses that might have had to defend themselves against one class-action suit — and now may have to defend themselves against 200 individual cases — this decision made no sense," he said.
"The courts rely on class-action cases in order to resolve disputes that might affect a large number of people, so that they do not end up with 200 lawsuits that they have to process."
Avakian spoke in a short interview after a talk at the Washington County Public Affairs Forum.
Avakian, now 57, was a civil rights lawyer and Democratic state senator from Beaverton when then-Gov. Ted Kulongoski named him in spring 2008 to succeed Dan Gardner, who resigned to take a job in Washington, D.C.
Avakian was elected to a full term in the nonpartisan position in 2008, re-elected to a two-year term in 2012, and was unopposed for another four-year term in 2014. The 2011 Legislature created the short term so that the office would again be up for election in the same cycle as the governor.
Avakian lost a bid in 2011 for the Democratic nomination for the 1st District congressional seat now held by Suzanne Bonamici of Beaverton. He was the Democratic nominee for secretary of state in 2016 but lost to Republican Dennis Richardson.
Avakian chose not to seek re-election this year. Val Hoyle of Eugene, a former Democratic state representative and House majority leader, won a majority in the May 15 primary and will succeed Avakian on Jan. 7.
Elected or appointed?
There have been periodic attempts to make the 115-year-old office appointive — most recently in 1995, when the Legislature made it nonpartisan — but lawmakers have not done so.
Avakian said based on his experience, he opposes any such change in the bureau's status.
"We are an agency that exists to protect Oregonians from anybody or any entity," he said during his talk.
"You do not want the person who has to go after government officials or agencies appointed by an official that he or she oversees. It would create a conflict of interest that would be untenable.
"It would lead to people not getting the same kind of surety they should have from an independent investigation and prosecution against their own government when they need it."
Cases for independence
Avakian described two instances where his bureau's independence, aside from legislative approval of the budget, was critical.
In 2010, the bureau sued John Minnis and the Department of Public Safety Standards and Training — the agency that runs the state's public safety academy in Salem — on behalf of a female employee who alleged sexual harassment by Minnis.
Minnis, a former Portland police officer and state legislator from Wood Village, resigned under pressure in 2009 after an incident in which the woman accused him of making unwanted sexual advances and taking advantage of her alcoholism in an attempt to engage her in sexual conduct.
Minnis was not charged with a crime in the incident, which occurred in California.
The complaint was settled in 2010 when the state paid the woman $450,000, short of the $2 million sought by the bureau. The state had lawyers on both sides of the case; the Department of Justice represented the public safety training agency.
In late 2015, Southern Oregon University agreed to pay $2.5 million to 325 workers who said they had not been paid the higher prevailing wage that applies to nonresidential public works projects. The bureau enforces Oregon's prevailing-wage law, which dates back to 1959, and is modeled on the federal Davis-Bacon Act of 1931.
The seven public universities are no longer a single state agency, but they are public institutions.