Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 1 of 43
`
`Paula A. Barran, OSB No. 803974
`pbarran@barran.com
`Richard C. Hunt, OSB No. 680770
`rhunt@barran.com
`Barran Liebman LLP
`601 SW Second Avenue, Suite 2300
`Portland, Oregon 97204-3159
`Telephone: (503) 228-0500
`Facsimile No.: (503) 274-1212
`Attorneys for Plaintiffs
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`Portland Division
`
`
`
`
`
`Case No.
`
`
`COMPLAINT
`
`
`LEGACY HEALTH; LEGACY GOOD
`SAMARITAN HOSPITAL AND MEDICAL
`CENTER; LEGACY MOUNT HOOD
`MEDICAL CENTER; LEGACY MERIDIAN
`PARK HOSPITAL dba LEGACY MERIDIAN
`PARK MEDICAL CENTER; and LEGACY
`EMANUEL HOSPITAL & HEALTH CENTER
`dba LEGACY EMANUEL MEDICAL
`CENTER,
`
`
`
`
`
`STATE OF OREGON; OREGON BUREAU
`OF LABOR AND INDUSTRIES; VAL
`HOYLE, in her official capacity as
`Commissioner of the Oregon Bureau of Labor
`and Industries; and DUKE SHEPARD, in his
`official capacity as Deputy Commissioner of the
`Oregon Bureau of Labor and Industries,
`
`
`
`
`
`Plaintiffs Legacy Health; Legacy Good Samaritan Hospital and Medical Center; Legacy
`
`Mount Hood Medical Center; Legacy Meridian Park Hospital dba Legacy Meridian Park Medical
`
`
`
`
`
`Plaintiffs,
`
`v.
`
`(Declaratory judgment re state action
`including preemption; deprivation of civil
`rights in violation of 43 USC § 1983)
`
`
`
`Defendants.
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`Page 1 – COMPLAINT
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`BARRAN LIEBMAN LLP
`601 SW SECOND AVENUE, SUITE 2300
`PORTLAND, OR 97204-3159
`PHONE (503) 228-0500 FAX (503) 274-1212
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 2 of 43
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`Center; and Legacy Emanuel Hospital & Health Center dba Legacy Emanuel Medical Center
`(collectively “Plaintiffs”), by and through the undersigned counsel, bring this action against the
`State of Oregon; the Oregon Bureau of Labor and Industries (“BOLI”), Labor Commissioner Val
`Hoyle, and Deputy Labor Commissioner Duke Shepard (collectively “Defendants”) and allege as
`follows.
`
`I. NATURE OF ACTION
`Plaintiffs’ first claim for relief (count one), seeks a declaratory judgment declaring
`1.
`that OAR 839-020-00501 is invalid because the regulation is subject to the jurisdiction of the
`National Labor Relations Act (“NLRA”), as amended, 29 USC §§ 151-169, and therefore preempted
`by the NLRA. OAR 839-020-0050(2)(d) imposes onerous and restrictive provisions requiring that
`meal periods be taken during a narrow two-hour period. However, OAR 839-020-0050(7) provides
`that rules regarding meal periods and rest periods may be avoided by unionized employers and their
`union employees by the terms of a collective bargaining agreement (“CBA”).
`Plaintiffs’ count two of their first claim for relief, seeks a declaratory judgment that
`2.
`OAR 839-020-0050 requiring that meals be taken at specific times is invalid for failure to follow
`applicable rule making requirements.
`Plaintiffs’ count three of their first claim seeks a declaratory judgment that OAR
`3.
`839-020-0050 requiring timing of meals exceeds the relevant statutory authority.
`Plaintiffs’ count four of their first claim seeks a declaratory judgment that OAR
`4.
`839-020-0050 is invalid because it conflicts with clearly stated rules governing the practice of
`nursing.
`5.
`
`Plaintiffs also bring a second claim for violation of 43 U.S.C. § 1983.
`
`/ / /
`
`
`1 Plaintiffs have filed a related Petition for Judicial Review of Agency Rule OAR 839-020-0050
`with the Oregon Court of Appeals.
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`BARRAN LIEBMAN LLP
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`PORTLAND, OR 97204-3159
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 3 of 43
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`Count one of Plaintiffs’ Section 1983 claim asserts that Deputy Commissioner Duke
`6.
`Shepard and Commissioner Val Hoyle violated Section 1983 because Shepard, while acting under
`color of state law, retaliated against Plaintiffs and their employees when the employees sought to
`exercise of their First Amendment rights when they petitioned Hoyle and Shepard regarding their
`concerns over meal time rules and how they might go about seeking a change of those rules and
`Shepard provided incomplete or erroneous information which caused employees to understand that
`they needed to unionize in order to be allowed to avoid the rule which they considered impractical,
`onerous, contrary to their health, and contrary to proper nursing practices.
`Count two of Plaintiffs’ Section 1983 claim asserts that OAR 839-020-0050 violates
`7.
`the Equal Protection Clause of the United States Constitution.
`II. JURISDICTION
`This Court has jurisdiction under 28 U.S.C. § 1331, as this matter arises under the
`8.
`constitution and laws of the United States, including the First and Fourteenth Amendments to the
`U.S. Constitution and the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169 and
`42 U.S.C. § 1983. This action arises under the supremacy clause of the United States Constitution
`(Article VI, Clause 2) and the NLRA. This Court has authority under 28 U.S.C. §§ 2201 and 2202
`to grant declaratory relief and other relief, including injunctive relief, pursuant to Rule 65 of the
`Federal Rules of Civil Procedure.
`This Court has supplemental jurisdiction over Plaintiffs’ state law claims pursuant to
`9.
`28 U.S.C. § 1367 because those claims form part of the same case or controversy.
`III. VENUE
`Venue is proper under 28 U.S.C. § 1391 because a substantial part of the events
`10.
`giving rise to the claim occurred in this judicial district.
`/ / /
`/ / /
`/ / /
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`BARRAN LIEBMAN LLP
`601 SW SECOND AVENUE, SUITE 2300
`PORTLAND, OR 97204-3159
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 4 of 43
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`IV. PARTIES
`Plaintiff Legacy Good Samaritan Hospital and Medical Center (“Good Samaritan
`11.
`Hospital”) is an active domestic nonprofit corporation with its principal place of business at
`1015 NW 22nd Avenue, Portland, Oregon 97210.
`Plaintiff Legacy Mount Hood Medical Center (“Mount Hood Medical Center”) is an
`12.
`active domestic nonprofit corporation with its principal place of business at 24800 SE Stark,
`Gresham, Oregon 97030.
`Plaintiff Legacy Meridian Park Hospital dba Meridian Park Medical Center
`13.
`(“Meridian Park Hospital”) is an active domestic nonprofit corporation with its principal place of
`business at 19300 SW 65th, Tualatin, Oregon 97062.
`Plaintiff Legacy Emanuel Hospital & Health Center dba Legacy Emanuel Medical
`14.
`Center (“Emanuel Hospital”) is an active domestic nonprofit corporation with its principal place of
`business at 2801 N. Gantenbein Avenue, Portland, Oregon 97227.
`Defendant State of Oregon is one of 50 states of the United States.
`15.
`16.
`Defendant Oregon Bureau of Labor and Industries (“BOLI” or “Agency”) is an
`agency of the State of Oregon.
`Defendant Val Hoyle (“BOLI Commissioner Hoyle”), who is sued in her official
`17.
`capacity as Commissioner of the Oregon Bureau of Labor and Industries, is an individual residing
`in Oregon.
`Defendant Duke Shepard (“BOLI Deputy Commissioner Shepard”), who is sued in
`18.
`his official capacity as Deputy Commissioner of the Oregon Bureau of Labor and Industries, is an
`individual residing in Oregon.
`/ / /
`/ / /
`/ / /
`/ / /
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`BARRAN LIEBMAN LLP
`601 SW SECOND AVENUE, SUITE 2300
`PORTLAND, OR 97204-3159
`PHONE (503) 228-0500 FAX (503) 274-1212
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 5 of 43
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`V. GENERAL FACTUAL ALLEGATIONS
`Oregon statute and BOLI regulations governing meal periods and breaks and civil penalties.
`ORS 653.261
`ORS 653.261(1)(a)(3) provides that the BOLI Commissioner may adopt rules
`19.
`prescribing minimum conditions of employment, including minimum meal periods and rest periods
`“in any occupation as may be necessary for the preservation of the health of employees.” But the
`rules adopted by the Commissioner regarding meal periods and breaks do not apply to “nurses who
`provide acute care in hospital settings if the provisions of collective bargaining agreements entered
`into by the nurses prescribe rules concerning meal periods and rest periods.” And ORS
`653.261(4)(a)(b) provides that employees who serve food or beverages may, subject to conditions,
`agree to waive taking a meal period. ORS 653.261(1)(a), (3), (4)(a), (b), and (d) provide in relevant
`part:
`
`(1)(a) The Commissioner of the Bureau of Labor and Industries may adopt
`rules prescribing such minimum conditions of employment, excluding minimum
`wages, in any occupation as may be necessary for the preservation of the health of
`employees. The rules may include, but are not limited to, minimum meal periods and
`rest periods, and maximum hours of work, but not less than eight hours per day or
`40 hours per workweek; * * *
`(3) Rules adopted by the commissioner pursuant to subsection (1) of this
`section regarding meal periods and rest periods do not apply to nurses who provide
`acute care in hospital settings if provisions of collective bargaining agreements
`entered into by the nurses prescribe rules concerning meal periods and rest periods.
`(4)(a) The commissioner shall adopt rules regarding meal periods for
`employees who serve food or beverages, receive tips and report the tips to the
`employer.
`(b) In rules adopted by the commissioner under paragraph (a) of this
`subsection, the commissioner shall permit an employee to waive a meal period. * * *
`* * * * *
`(d) Civil penalties authorized by this subsection shall be imposed in the
`
`manner provided in ORS 183.745. All sums collected as penalties under this
`subsection shall be applied and paid over as provided in ORS 653.256 (4).
`
`/ / /
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`BARRAN LIEBMAN LLP
`601 SW SECOND AVENUE, SUITE 2300
`PORTLAND, OR 97204-3159
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 6 of 43
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`ORS 653.256(4) provides that all sums collected shall first be applied toward reimbursement of
`costs incurred in determining the violations, conducting hearings, and collecting penalties and then
`the remainder, if any, of sums collected shall be paid over to the Department of State Lands for the
`benefit of the Common School Fund and thereafter the remainder, if any, shall be paid to the
`Department of Human Services for the benefit of the Breastfeeding Mother Friendly Employer
`Project.
`OAR 839-020-0050
`Pursuant to this authorization, BOLI has adopted minimum meal periods and rest
`20.
`periods “for the preservation of the health of employees” which are set forth in OAR
`839-020-0050(2)(a), (b), (c) and Appendix A. However, the rules adopted by BOLI are not confined
`to prescribing minimum meal periods and rest periods but also impose onerous restrictions and
`limitations regarding the times when meal periods may be taken. In addition, the BOLI rules state
`that the provisions of OAR 839-020-0050(7) regarding meal periods and rest periods may be
`modified by unionized employers if the provisions of the CBA entered into by those unionized
`employees specifically prescribe rules concerning meal periods and rest periods. Also, BOLI
`provisions at OAR 839-020-0050(8) provide that employees who are employed to serve food and
`beverages may waive meal periods if certain conditions are met. OAR 839-020-0050 states in part:
`(1) The purpose of this rule is to prescribe minimum meal periods and rest periods
`for the preservation of the health of employees.
`(2)(a) Except as otherwise provided in this rule, every employer shall provide to each
`employee, for each work period of not less than six or more than eight hours, a meal
`period of not less than 30 continuous minutes during which the employee is relieved
`of all duties.
`(b) Except as otherwise provided in this rule, if an employee is not relieved of all
`duties for 30 continuous minutes during the meal period, the employer must pay the
`employee for the entire 30-minute meal period.
`(c) An employer is not required to provide a meal period to an employee for a work
`period of less than six hours. When an employee’s work period is more than eight
`hours, the employer shall provide the employee the number of meal periods listed in
`Appendix A of this rule.
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`BARRAN LIEBMAN LLP
`601 SW SECOND AVENUE, SUITE 2300
`PORTLAND, OR 97204-3159
`PHONE (503) 228-0500 FAX (503) 274-1212
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 7 of 43
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`(d) Timing of the meal period: If the work period is seven hours or less, the meal
`period is to be taken after the conclusion of the second hour worked and completed
`prior to the commencement of the fifth hour worked. If the work period is more than
`seven hours, the meal period is to be taken after the conclusion of the third hour
`worked and completed prior to the commencement of the sixth hour worked.
`* * * * *
`(7) The provisions of this rule regarding meal periods and rest periods may be
`modified by the terms of a collective bargaining agreement if the provisions of the
`collective bargaining agreement entered into by the employees specifically prescribe
`rules concerning meal periods and rest periods.
`(8)(a) Pursuant to the provisions of ORS 653.261(5), if an employer agrees, an
`employee may waive a meal period if all of the following conditions are met:
`(A) The employee is employed to serve food or beverages, receives tips, and reports
`the tips to the employee’s employer;
`[The section allowing food and beverage servers to waive meal periods if the
`employer agrees sets forth ten conditions that must be met in order for the waiver to
`be effective (OAR 839-020-0050(8)(a)(A)-(J)).]
`
`
`Restraints on when meal periods may be taken present obstacles for Plaintiff hospitals but not
`unionized hospitals.
`
`A majority of the affected employees who work for the Plaintiff hospitals are nurses
`21.
`and clinical employees and nearly all of those employees work 12-hour shifts.
`OAR 839-020-0050(2)(d) provides that employees at Plaintiff hospitals working
`22.
`12-hour shifts must take a meal break in the two-hour window of time after the completion of the
`third hour worked and completed prior to the commencement of the sixth hour worked.
`Since all employees of Plaintiff hospitals working 12-hour shifts cannot take their
`23.
`meal break at the same time, this means that many of the employees working a 12-hour shift must
`take their meal break immediately or shortly after the conclusion of their third hour on the job.
`Because shifts start early in the work day, some employees are forced to take a meal break in
`mid-morning at a time that is unhealthy for them, inconvenient for them, uncomfortable for them,
`and at times leads to physical discomfort and hunger during the remaining eight or more hours of
`their shift. As a result, Plaintiffs’ employees working 12-hour shifts are deprived of the right to take
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`BARRAN LIEBMAN LLP
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`PORTLAND, OR 97204-3159
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 8 of 43
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`a meal break midway through their 12-hour shifts and must work the remainder of their shift (eight
`hours or more) with no meal break.
`The directive establishing the timing of the meal period appears to have been based
`24.
`upon a calculation which assumes all workers work an eight hour shift and are thereby able to take
`a meal period roughly in the middle of their work day. The regulation as written and applied to
`Plaintiff hospitals, however, requires workers scheduled for a 12-hour or more shift to take a meal
`period early in their shift, which has an adverse effect on the employees in the latter part of their
`work day.
`Employees working for unionized hospitals who perform virtually identical work to
`25.
`that performed by the nurses and clinical employees at Plaintiff hospitals are permitted by the rule
`adopted by the Commissioner of Labor to avoid the strict time frame when meal periods must be
`taken set forth in OAR 839-020-0050(2)(d) provided that the employers have recognized a union
`and adopted a CBA which specifically prescribes rules concerning meal periods and rest periods
`(OAR 839-020-0050(7)).
`The stated reason for the meal and break requirements of OAR 839-020-0050(1) is
`26.
`the “preservation of the health of employees.” However, the requirements regarding the timing of
`meal periods are not necessary for the safety and health of employees because unionized employees
`and unionized employers may, under a CBA, modify when meals are to be taken without any
`regulatory oversight. OAR 839-020-0050(7). That includes employers covered by CBAs who
`operate the same kinds of hospitals and healthcare facilities as operated by Plaintiff hospitals. Thus,
`the Agency treats its regulations as necessary only when a healthcare employer has not bargained
`with a union. In addition, the “preservation of health” rationale is of no significance with respect to
`food and beverage servers who have the option under certain conditions to waive meal periods.
`The rule of OAR 839-020-0050(2)(d) requiring a narrow period of time when
`27.
`employees working shifts of 12 hours or more take meal breaks imposes severe operational
`restrictions on Plaintiffs’ day-to-day employment of employees necessary for Plaintiff hospitals to
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 9 of 43
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`carry out their public and/or charitable purposes, interfere with licensure obligations of nurses,
`contribute to employee fatigue and discomfort, increase operational expenses, cause confusion for
`employees who regularly work for Plaintiffs, and expose Plaintiff hospitals to large and excessive
`penalties in spite of good-faith efforts to comply with the unworkable restrictions. Such restrictions
`are not imposed on similar hospitals and healthcare institutions whose operations are distinguished
`only by their having employees working under CBAs.
`Plaintiffs are unaware of any data, and the Bureau of Labor and Industries has neither
`28.
`provided nor cited to any such data, that other hospitals and healthcare facilities who are exempted
`from the meal period timing restrictions because their employees work under CBAs have in any
`way suffered any adverse health consequences.
`The “preservation of health” rationale set forth in ORS 653.261(1)(a) and
`29.
`OAR 839-020-0050(1) applies only to non-union employers without CBAs. Otherwise, strict BOLI
`regulations regarding the timing of when meal periods are to be taken would apply to employees of
`all employers, not just non-union employers who are not parties to CBAs.
`Scheduling meal periods under the current BOLI rules assumes that employees
`30.
`operate eight hour shifts and that employees working those shifts are to take their meal breaks
`midway through that eight hour period. The rules regarding timing of meals are not designed for
`healthcare or for employees working 12-hour shifts or longer which is common in the healthcare
`industry. Also, every time Plaintiff hospitals swap professionals or break caregiver continuity there
`is an enhanced risk for patients.
`In light of a nationwide shortage of nursing professionals and other healthcare
`31.
`workers, healthcare employees are burdened by meal period timing requirements more than if they
`worked in a non-healthcare industry. Nurses are governed by the Oregon Nurse Practice Act (ORS
`Chapter 678) and the Administrative Rules of the Oregon State Board of Nursing (OAR Chapter
`851). ORS 678.150 authorizes the Oregon Board of Nursing to exercise general supervision over
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`BARRAN LIEBMAN LLP
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 10 of 43
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`the practice of nursing. Notwithstanding BOLI meal and break rules, nurses are forbidden from
`leaving a patient when to do so would jeopardize the patient’s safety and health.
`ORS 441.168 specifically provides:
`32.
`A registered nurse at a hospital may not place a patient at risk of harm by leaving a
`patient care assignment during an agreed upon shift or an agreed upon extended shift
`without authorization from the appropriate supervisory personnel.
`
`Registered nurses are carefully regulated as to the standard of nursing. (OAR
`33.
`851-045-0070.) Nurses must make medical judgments as to whether or not it is safe for a nurse to
`leave a patient, and nurses can be subject to the imposition of civil penalties or disciplinary sanctions
`up to and including loss of their license if they walk away from patient care responsibilities. OAR
`851-045-0100(1). OAR 839-020-0050(2)(d) requires nurses working in non-union hospitals to take
`their meal break during a two-hour period; failure of the nurse to take the meal break during that
`narrow time period subjects non-union employers to a $1,000 penalty per infraction.
`A hospital must provide nursing service on a 24/7 basis. OAR 333-510-0030(1).
`34.
`35.
`Emergency Department nurses (who are the sole focus of BOLI in its Notices of
`Intent to Assess Civil Penalties (NOIs) directed at Plaintiff Meridian Park Hospital and Plaintiff
`Mount Hood Medical Center) present the hospitals with special challenges. Emergency
`Departments are often faced with the admission of patients who require immediate and uninterrupted
`attention and/or a team of nurses. Such is the case when a patient is suicidal, is a stroke patient, or
`is at risk of a serious and permanent medical condition and/or death.
`Similarly, registered nurses at the Family Birth Center at Plaintiff Good Samaritan
`36.
`Hospital, who are the principal focus of BOLI’s NOIs directed at Good Samaritan Hospital, also
`face many challenges that do not permit them to leave their patients. For example, during a
`resuscitation of a baby, four registered nurses trained in neonatal resuscitation procedures need to
`be on hand during the procedure.
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 11 of 43
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`Healthcare practitioners are not fungible and a position typically must be staffed
`37.
`during a worker’s meal break. A licensed healthcare practitioner may not fill in for another in an
`area for which he or she has not had the proper training. So, for example, an Emergency Room
`employee cannot fill in to provide breaks for an employee in Family Birthing or vice versa. An
`Operator cannot be replaced by an employee who does not have proficiency in “coding” (coded
`messages announced to alert staff to on-site emergencies). These are unlike the sorts of positions
`for which breaks and meals can be accommodated with signage (“back in 30 minutes”) or the
`shutdown of an assembly line (when everyone can take a break at the same time). Instead, Plaintiffs’
`healthcare practitioners frequently work in highly skilled operations without readily available
`replacement employees in jobs that cannot be left vacant.
`BOLI’s escalating multi-million dollar penalties.
`ORS 653.356(1) provides in part:
`38.
`653.256 Civil penalty for general employment statute or rule violations. (1) In
`addition to any other penalty provided by law, the Commissioner of the Bureau of
`Labor and Industries may assess a civil penalty not to exceed $1,000 against any
`person that willfully violates ORS * * * 653.261 * * *
`
`
`
`On April 16, 2019, BOLI served Plaintiffs Good Samaritan Hospital, Mount Hood
`39.
`Medical Center, and Meridian Park Hospital with Amended Notices of Intent to Assess Penalties.
`BOLI’s Amended NOIs against the three Plaintiff hospitals sought to assess, without exception, a
`$1,000 penalty for each of the alleged 5,156 violations for a total of $5,156,000. The alleged
`violations were principally “violations” of taking a meal period outside the narrow window
`permitted by the Agency regulations. Not a single assessed penalty was less than the maximum
`amount of $1,000 regardless of the mitigating circumstances and regardless of whether a meal period
`was a few minutes outside the narrow window.
`A consolidated case proceeding of the NOIs was scheduled to commence on
`40.
`October 14, 2019.
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 12 of 43
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`The Agency’s former administrative prosecutor engaged in prosecutorial misconduct
`41.
`by serving illegal subpoenas compelling witnesses to meet with her in advance of the hearing to
`discuss their testimony. The misconduct of the former administrative prosecutor in issuing the
`illegal subpoenas is imputed to everyone at BOLI, including the Commissioner of Labor.
`Plaintiff hospitals filed a motion to dismiss the cases based upon this prosecutorial
`42.
`misconduct.
`BOLI sought to avoid the consequences of the hospitals’ motion by withdrawing the
`43.
`NOIs without prejudice and cancelling the October 14, 2019 hearing. The purpose of BOLI’s
`procedural tactic was to engage the hospitals in mediation but, failing mediation, to reassert the
`penalty demands and enlarge the scope and penalty demand.
`The parties engaged in a period of mediation but on December 20, 2021, BOLI sent
`44.
`a written notice withdrawing from mediation.
`The following day, December 21, 2021, BOLI served new NOIs to seek penalties
`45.
`against Good Samaritan Hospital, Mount Hood Medical Center, and Meridian Park Hospital, but
`the penalties sought were greater than had previously been sought by BOLI. In addition, on
`December 21, 2021, BOLI served NOIs on Emanuel Hospital. The total penalties sought by BOLI
`against the four hospitals is $8,727,000, which is approximately $3.5 million more than the penalties
`sought by BOLI prior to mediation.
`The NOIs of December 21, 2021, are limited to just a few departments – the
`46.
`Emergency Departments at Meridian Park Hospital and Mount Hood Medical Center, the Patient
`Access and Operating Departments and the Women’s Services 5W Labor and Delivery Department
`at Good Samaritan Hospital, and the Staffing Office at Emanuel Hospital. These departments
`present special challenges because nurses cannot abandon patients in Emergency Departments and
`the Labor and Delivery Department to take breaks if doing so would put patients at risk and result
`in the nurses violating ORS 441.168.
`/ / /
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`BARRAN LIEBMAN LLP
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 13 of 43
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`If BOLI were to issue additional NOIs seeking penalties with regard to other
`47.
`departments within the Plaintiff hospitals, were to seek penalties for other time periods including
`2019, 2020, and 2021, and were to name other Legacy Health institutions and hospitals, then the
`amount of penalties would conservatively be in the tens of millions of dollars and perhaps in excess
`of $100 million and could force Legacy Health into a financially unsustainable operation and require
`the reduction of essential services, an increase in the cost of healthcare which would be passed on
`to patients, and would be destructive to Legacy Health’s ability to provide charity care, all at a time
`when it is providing vital health services in the midst of a public health emergency under the
`constraints imposed by a dangerous pandemic.
`BOLI’s excessive fines selectively targeting Legacy but not directed at unionized
`48.
`hospitals are discriminatory and violate federal law.
`BOLI Commissioner Hoyle, in proposing the $1,000 penalty for each separate
`49.
`violation, has failed to follow BOLI regulations. Hoyle was required to make an individual
`assessment and consider not only aggravating circumstances but also mitigating circumstances
`when assessing the amount of civil penalty for an alleged violation. OAR 839-020-1020 sets forth
`criteria for determining civil penalties and specifically requires that “the commissioner shall
`consider all mitigating circumstances presented by the employer for the purpose of reducing the
`amount of the civil penalty to be assessed.” OAR 839-020-1020 states:
`(1) The commissioner may consider the following mitigating and aggravating
`circumstances when determining the amount of any civil penalty to be assessed and
`cite those the commissioner finds to be appropriate:
`
`
`(a) The history of the employer in taking all necessary measures to prevent or
`correct violations of statutes or rules;
`
`(b) Prior violations, if any, of statutes or rules;
`
`(c) The magnitude and seriousness of the violation;
`
`(d) Whether the employer knew or should have known of the violation;
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`Page 13 – COMPLAINT
`01073012.7
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`BARRAN LIEBMAN LLP
`601 SW SECOND AVENUE, SUITE 2300
`PORTLAND, OR 97204-3159
`PHONE (503) 228-0500 FAX (503) 274-1212
`
`
`
`

`

`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 14 of 43
`Case 3:22-cv-00573-HZ Documenti
`Filed 04/18/22 Page 14 of 43
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`Case 3:22-cv-00573-HZ Document 1 Filed 04/18/22 Page 15 of 43
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`State Lands for the benefit of the Common School Fund and, if any remaining funds exist, they are
`to be paid to the Department of Human Services. ORS 653.256(4)(a), (b), and (c) provides:
`(4)(a) All sums collected as penalties under this section shall be first applied
`toward reimbursement of costs incurred in determining the violations, conducting
`hearings under this section and addressing and collecting the penalties.
`(b) The remainder, if any, of the sums collected as penalties under subsection
`(1) of this section shall be paid over by the commissioner to the Department of State
`Lands for the benefit of the Common School Fund of this state. The department shall
`issue a receipt for the money to the commissioner.
`(c) The remainder, if any, of the sums collected as penalties under subsection
`(2) of this section shall be paid over by the commissioner to the Department of
`Human Services for the benefit of the Breastfeeding Mother Friendly Employer
`Project. The department shall issue a receipt for the moneys to the commissioner.
`
`BOLI has collected large penalties from employers alleged to have violated Oregon
`55.
`statutes, including a penalty of $276,680 that was assessed against Plaintiff Emanuel Hospital in
`Case No. 29-17 and a penalty of $85,000 that was assessed against Legacy Silverton Hospital of
`$85,000 in Case No. 66-17. The penalties that were assessed against Emanuel Hospital and
`Silverton Hospital were collected without the necessity of BOLI conducting a hearing. BOLI has
`been unable to establish that excess sums collected as penalties from Plaintiff Emanuel Hospital,
`Legacy Silverton Hospital, and other employers has been timely paid over to other state agencies or
`the statutorily approved recipients. Plaintiffs are informed and believe and therefore allege that over
`time BOLI has collected significant sums as penalties from employers and has retained those sums
`without complying with the requirements of ORS 653.256(4) directing that the remainder of sums
`collected as penalties after administrative costs and costs of conducting a hearing shall be paid to
`the Department of State Lands for the benefit of the Common School Fund and any remaining funds
`would be paid over to the Department of Human Services. In the alternative, BOLI has failed to
`institute and maintain processes to account for the funds collected and the disposition of such funds.
`Plaintiffs have made a number of public records requests regarding BOLI’s retention
`56.
`of funds. Based upon incomplete responses to those public records requests, it is believed that over
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`Page 15 – COMPLAINT
`01073012.7
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`
`BARRAN LIEBMAN LLP
`601 SW SECOND AVENUE, SUITE 2300
`PORTLAND, OR 97204-3159
`PHONE (503) 228-0500 FAX (503) 274-1212
`
`
`
`

`

`Case 3:22-cv-00573-H