Summit RWP Inc., v. Hallin

In ORS 652.150(1)(a), the word “shall” indicates a lack of discretion to order a lesser award amount.

Defendant appealed judgments following a civil bench trial for breach of contract and counterclaim for failure to timely pay wages. Defendant raised six assignments of error; all but the third and fourth were rejected. In his third assignment of error, Defendant contended that the court erred in awarding a statutory penalty under ORS 652.150 by calculating it based on his fourth-quarter bonus nonpayment and then reducing it for making a “wild guess” as an estimate in his demand.  Defendant argued that ORS 652.150 provides no grounds for trial court to exercise discretion in modifying the penalty. The Court reasoned that the word “shall” in ORS 652.150(1)(a) indicates a lack of discretion to order a lesser amount, and held that trial court erred in reducing the award amount. Friends of Columbia Gorge v. Columbia River (SO55915), 346 Or 415, 426-27, 212 P3d 1243 (2009). In his fourth assignment of error, Defendant asserted that trial court erred when it refused to grant attorney fees under ORS 652.200(2), despite his successful underlying wage claim. Defendant argued that trial court misinterpreted ORS 652.200(2) by assessing the reasonableness of the notice itself rather than if Defendant unreasonably failed to give notice. The Court found that a misestimated amount does not constitute an unreasonable failure to prove timely notice under  ORS 652.200(2). REVERSED and REMANDED.