Migis v. AutoZone, Inc.

To impose civil penalties under ORS 652.150, the finder of fact must make a finding that the failure to pay wages was willful. Preservation of arguments is determined by general principles of preservation rather than the requirements of ORCP 59H.

AutoZone appealed judgment of civil penalties, raising many arguments. In particular, AutoZone challenged a civil penalty award as error without a jury’s finding of willfulness. Migis argued that AutoZone, by failing to properly object to the jury instructions, failed to preserve this argument under ORCP 59H. Under ORS 652.150, if an employer “willfully fails to pay any wages or compensation of any employee whose employment ceases,” courts may impose civil penalties. “Preservation…is tested by…principles generally rather than by the requirements of ORCP 59H.” Dosanjh v. Namaste Indian Restaurant, LLC, 272 Or. App 87, 90 (2015). The Court held that AutoZone did not fail to preserve its willfulness argument, as, regardless of ORCP 59H, the record clearly indicated that the court and Migis were aware of AutoZone’s position on the instructions. The Court further held that because ORS 652.150(1) requires that an employer willfully failed to pay wages for the statute to apply, the trial court erred because a jury’s finding that AutoZone failed to pay wages did not impute willful failure to pay. Reversed and remanded regarding penalties under ORS 652.150; otherwise affirmed.