Progress Report in the Young Case

Effective 5-26-2001

Court Rules on Late Extensions and

Compensatory Time Issues

1. The Court allowed all late claims to be received and processed as long as a plaintiff contacted this office or OSRL by the 1^st of May. However, the claim questionnaire must be filled out and be received by OSRL by the end of June.

The Court made it clear in its ruling that this was a hard deadline and no excuses will be accepted. Under class action rules, the Court has unfettered discretion in this area and the ruling is very favorable to the plaintiffs who missed the normal deadlines.

Our office will be contacting those plaintiffs whose questionnaires have not yet been received by OSRL and urging them to ensure that their questionnaires are now timely received. In addition, we have a number of questionnaires that were so incomplete that OSRL couldn’t process them. We will take the time to try to contact all of those plaintiffs to get their questionnaires completed and to OSRL before the end of June.

2. The Court ruled that all plaintiffs who received compensatory time on a one for one basis are entitled to be paid for the remaining half time but at the “half time FLSA rate.”

This ruling was better than I predicted. For a detailed explanation of the Court’s order on the FLSA “half time” rate, please see my progress report dated 10-24-2000. Also, see page 39 of the claims questionnaire.

The State had argued that the straight time comp time that plaintiffs had received already exceeded the FLSA half time rate so that nothing was due to them. However, the Court ruled, that under the statute, since compensatory time, if granted, must be at time and one half, the State did owe the remaining half time.

Many plaintiffs who received compensatory time are aware that our office has been working with them to ensure that we reach an agreement with the State as to the number of hours to which a plaintiff is entitled. For those for whom we are unable to reach agreement with the State, the claim will proceed to arbitration just as any other case. A few of those claims are pending arbitration. However, for most plaintiffs there has been agreement as to the number of compensatory time hours to which the plaintiff is entitled compensation. Up until this Court ruling, there has been no effort by either side to cost the dollar value of those hours.

The State has 30 days after the Judge’s order is signed, which will probably be sometime around June 1, to decide whether to appeal this decision. That decision will probably be made by the State in committee and may not be conveyed to me much before the 30 day deadline, so it will be a month before we know whether the State will pay claims at the half time rate with payments to be made over the next several months, or whether the State will appeal the Court’s ruling and not pay any of these claims at the present time. If the latter is the case, we still need to reduce those claims to judgment and then the State will appeal those judgments. That will take some time to accomplish.

I received a phone call from one plaintiff whose sole claim was for the remaining half time under compensatory time who informed me that in essence, she had already spent the money from this case. I urge plaintiffs not to do that. In the best case scenario, it will be months before your claims are reduced to judgments and paid. A likely scenario is that the State will appeal this ruling and final payment could be years away when the appellate process had concluded.

3. Oral argument took place in the Court of Appeals on May 22 as to whether elected officials are also employees, and therefore should have been included in this case.

Previously the Court had ruled that elected officials are not employees and could not be included in this class action lawsuit. The only exception was for District Attorneys because the State had conceded that they were employees.

That ruling was made early on in the case, and an interlocutory appeal was undertaken. That appeal was argued in front of the Court of Appeals panel that was specially selected to ensure that no judge on the panel had been an elected official in the relevant 26-month time period from 1995 to 1997. That panel included a present judge, the Honorable Walter Wollheim, and retired former presiding Supreme Court Justices Berkeley Lent and Edwin Peterson. Both of them are very distinguished judges and it was an honor to have oral argument in front of them. All judges asked both attorneys questions concerning each side’s legal position. Because there is no Oregon case directly on point, it is very difficult to predict the outcome of this issue. A decision could be issued by the Court in a few months or could be as long as a year away, although it is my best guess, given the retired judges who sat on this panel, that the decision will be within the next six months.

Sincerely,

The Law Office of John Hoag, P.C.

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