OTLA Trial Lawyer Winter 2022

49 Trial Lawyer • Winter 2022 to note that simply completing the information packet is not considered filing a claim and will not preserve the statute of limitations. The complaint must be signed and filed with BOLI to preserve the statute. Once her claim is received, BOLI will investigate, which could take several months. More often than not, BOLI’s investigation will be minimal before finding no “substantial evidence” and issue her a right-to-sue letter with a 90-day statute of limitations and send her out into the universe to fend for herself. Oregon does not require a person to exhaust administrative remedies, i.e., file with BOLI before being allowed to file in the state court. This is different than the federal courts that require a right-tosue letter from the Equal Employment Opportunity Commission (EEOC) as a prerequisite to filing in federal court. BOLI has a work-sharing agreement with EEOC and depending on the facts, one or the other agency will investigate and both agencies will then issue a right-tosue letter, sometimes months apart. Filing a claim with BOLI has some advantages and some disadvantages. The advantages are if the harassed employee is still employed, it creates an additional statutory protection for her that may deter the employer from terminating her, at least not without great consequences to the employer. It also allows for some limited discovery during BOLI’s investigation, which could include some interview notes and access to the other side’s position statement. However, BOLI is understaffed and often only interviews the claimant and not anyone else before issuing a right-to-sue letter. A right-tosue letter is BOLI’s way of saying goodbye, we can’t help you. Go find an attorney to file a case in court. The disadvantage of filing with BOLI is that most often they only take a statement from the employee and no one else. Also, once BOLI issues a right-to-sue letter, the claimant will only have 90-days from the date of the letter to file a lawsuit before she is barred from filing. Once BOLI closes its files and issues a rightto-sue letter, the claimant has the right to request the investigative records. Those should include all the interview notes and more importantly the employer’s/respondent’s position statement. It should be noted it takes BOLI months to provide the requested documents. Negotiate severance Finally, she can hire an attorney to negotiate a severance agreement while she is still employed as this will give the attorney more leverage. Severance negotiations are great tools to allow an employee to leave with some compensation, often with a lay-off designation which will allow unemployment benefits and enter into a mutual nondisparagement agreement to help the employee secure another position without fear of a bad reference. Severance agreements may not result in the highest payouts but are a good alternative for an employee who cannot withstand the stress of litigation or simply wishes to move on without feeling defeated. Nearly 30 years of experience in this field has taught me the best way to deal with this type of situation is to politely and directly address the bad behavior, or report it to management and document it in an email, and let the chips fall where they may. Young, inexperienced women are so much stronger than they are led to believe. Once they learn to stand up for themselves, nothing stands in their way of greatness. The sooner your daughter learns this lesson, the sooner she will step into her power and take charge of her destiny while kicking men like Dr. Man Child into the gutter where they belong. Clooten: What have I learned? There are different perspectives, even among employment attorneys. Some would advise the young woman to seek other employment, as she stated she wants to do in the letter. My primary practice areas are personal injury, family law and estate planning. While a lot of my cases are personal injury, most of my hours are filled doing family law and estate planning work. The public generally believes attorneys are expensive and inaccessible. This perception is not entirely unfair. To combat this, I offer $50 consults for family law. It’s not exactly pro bono, but it’s significantly more affordable to lower income individuals than charging by the hour. And frankly, I view the “Ask a Lawyer” column as an extension of this affordable advice. Answering questions outside of my wheelhouse is complicated but rewarding. I would not necessarily change how I answered my original column question. It was an important issue to tackle, especially for a local paper. I’m aware I practice in a small community, and it is ultimately the client who decides what to do. The letter-writer specifically says she wants to quit and she does not want to confront her employer/harasser. If that’s her final decision, I respect it. In a sense, my column Q & A may be the only substantial interaction many folks have with an attorney. I believe it’s important to give back when possible. But, reading Shahri’s complete answer is humbling, in a good way. More information for the public arms themwith power, and I need to remember that in my public writing. Blaine Clooten is a trial attorney specializing in personal injury, family law and estate planning. Clooten owns and operates Clooten Law with his wife, M. Nicole Clooten. Clooten Law has offices in Hermiston and Pendleton and receives mail at P.O. 1832, Pendleton, OR, 97801. Clooten can be reached at 541-667-7993 or clootenlaw@gmail.com. Mitra Shahri is an employment attorney and founder of the CLE series, Laughter At Law™. Her office is at 1500 SW First Ave., Ste. 800, Portland, OR 97201. She can be reached at mitra@unlawfultermination. com or 503-936-6127.