a:\newslw.96 [4]Alan Lee MitchellStephen De'ak202001-06-22T21:33:00Z2006-07-01T22:27:00Z2006-07-01T22:27:00Z111376482 5415760411.8026 Scott Hookland LLPConsider . . .VOL. 10, ISSUE 3 July, 2001Law OfficesSCOTT HOOKLAND LLP9185 SW BURNHAM ST. POST OFFICE BOX 23414TIGARD, OR 97223 TIGARD, OR 97281(503) 620-4540 -- (800) 334-8986 -- FAX: (503) 620-4315www.furrer-scott.comA PERSONAL NOTE FROM MICHAEL J. SCOTTAs of July 1, 2001 the name of the firm will change to Scott Hookland LLP.This change is significant in two respects: First, it notes Pat Furrer’s departure from the firm. Second, it recognizes Doug Hookland’s significant contributions to the firm.In 1981, Pat saw fit to give me an interview and to hire me as a law clerk. I have always been grateful to Pat for believing in me and giving me the opportunity to support Laurie in the first years of our marriage and to start my legal career. Over the past years, Pat continually afforded me the opportunities to do what I thought was right in managing the firm. He has my continued personal and professional thanks.Pat will continue his practice independently at 9900 SW Wilshire, Suite 100, Portland, Oregon 97225, telephone no. (503) 296-1390. And, while I am reflective on this change, I look forward to Pat’s enduring wisdom in the years ahead as we continue not as partners but as friends.I am also confident that Pat will continue to serve your legal needs in practice areas such as wills, estates and trusts where this firm does not generally practice.Doug, in turn, left a big firm downtown over a decade ago, and was the catalyst for expanding the firm’s practice into Washington. His hard work and commitment to the profession and the firm developed a regional expertise and recognition in construction law and creditor’s rights. While Doug and Lisa’s family has grown to three young daughters, his client-base has flourished to include regional and national construction supply companies. He has earned recognition in the firm’s new name.Doug, Tom, Alan, Doug Gallagher, Aaron and I, as well as the firm’s professional staff, thank Pat for his guidance and we look forward to serving your construction and design law needs in the years ahead. MikeDO YOU REALLY KNOW WHAT’S IN YOUR CONTRACT?Even when you read the contract terms in the document you are signing, you may not have read all the terms to which you have just agreed. This can occur if the document includes an incorporation by reference clause.There is at least one important reason why you should become familiar with these clauses and their legal impact: You may be bound by terms you have never seen.One example of these clauses is what is known as a “flow down” clause. A flow down clause is typically found in subcontracts (provided by the general) and states that the subcontractor agrees to be bound by the terms of the contract between the general contractor and the owner. What if the contract between the general contractor and the owner includes terms to which you do not agree? In many instances, you may still be bound by those terms if you agreed to a flow down clause.A different example of an incorporation by reference clause is found in the AIA standard form contracts. As you may know, these standard form contracts usually incorporate the A201 General Conditions. It normally does not matter that you may never have seen the A201 General Conditions when you signed your contract. You still may be bound by those terms.An example of a subcontract that includes both a flow down and incorporation of other terms is the AIA B141 standard form subcontract. If you are considering signing one of these agreements, you should think carefully whether you would agree to the incorporation by reference clauses.OSHA REPORTING CHANGES?Recent proposed rules may create changes in the reporting requirements under the Occupational Safety and Health Act.The federal proposed rules were published in January of 2001. President Bush placed the rules temporarily on hold and the rules may not be finalized until late this summer or fall.Oregon OSHA plans to heavily publicize the rules when they are finalized. Watch your mail and newspaper for these notices.For most employers, the changes will merely be changes in the forms used for reporting. The existing “200” form will be a “300” form and the “101” summary form will be a “301” summary form. The summary form will now be a separate page from the reporting form.For a few employers (but probably not construction companies), the changes may be greater. One proposal is to remove certain employers from the recordkeeping and reporting requirements altogether (for example, certain medical offices). Another possible change is to change the threshold for the requirements from employers with more than ten employees at any time during the year to employers with more than twenty employees at any time during the year.There was an initial proposal to require general contractors to keep OSHA records for all of their subcontractors on a project. It appears that the final proposed OSHA rule, however, did not include this change.Again, these changes are proposed changes only. Once they go into effect, Oregon OSHA will widely publicize the new rules.UNPAID WAGES UPDATEPreviously (July, 1999), this newsletter discussed Oregon’s law requiring employers to “immediately” pay all unpaid wages upon either termination or quitting of an employee. A recent case highlights that the burden is on the employer to make sure the employee receives these wages.In Wales v. Walt Stallcup Enterprises, 167 Or App 212 (2000), the plaintiff worked at defendant’s Wendy’s restaurant. When plaintiff quit, she told the store manager to mail her the final paycheck. The trial court found that the manager did not hear this request and, therefore, did not mail the paycheck. The employee picked up the check about three weeks later.The Oregon Court of Appeals held that the employer was liable for penalty wages and attorney fees because the burden is on the employer to pay the wages, not for the employee to ask for them. In another case, the court noted that the employee’s failure to pick up her final check did not waive her right to immediate payment.These cases illustrate that it is up to the employer to make sure that employees receive their final wage checks immediately. It appears that Oregon courts do not look favorably on an employer’s excuses why the final wages were not timely paid.FIRM NEWS:MICHAEL J. SCOTT and ALAN L. MITCHELL presented a May 16, 2001 half-day seminar on Oregon construction lien and bond issues for the Eugene chapter of the National Electrical Contractors Association. MIKE and ALAN will present another half-day seminar on July 13, 2001 for NECA on Oregon credit and collection issues.DOUGLAS R. HOOKLAND and ALAN L. MITCHELL will speak at an August 30, 2000 seminar in Portland for Lorman Business Seminars entitled “Oregon Credit and Collection Issues.” If you would like a brochure about the seminar, please contact Shari M. Persen at Scott Hookland LLP.This newsletter is published quarterly by the law firm of Scott Hookland LLP for the benefit of its clients and friends and is intended to inform them about legal matters of interest. While this information is meant to be current, we do not promise or guarantee that the information is correct, complete or up-to-date. This information is not intended to and should not be considered to provide legal advice or create an attorney-client relationship. No action should be undertaken in reliance hereon without professional legal counsel.Alan L. Mitchell, Editor