*1 February Argued October and submitted affirmed Robin BUTTERFIELD Transue, D. Lynnda and Appellants, v. OREGON,

STATE OF Respondent. (Control)) (97C12556; CA A101431 QUILLIN, David Belcher, Assums, Lawrence Garold Grammar, Brooke, Clark, James Roger Richard Rader, Griffith, McDonald, Glen Terry Glen Reinecke, Salter, Simpson, Mike Carl James Sitton, Stern, Ken Terry Springer, Randle Walker, Amela, Wingfield, Art Richard Robert Blanchard, Colon, Dennis Robert Belsky, Nancy Edwards, Eastman, Karen Virginia Ellis, Hall, Cynthia Eisenmeyer, Alice Lavon Jarvill, Martinak, Oakes, Jr., Ernest Randy Robert Stone, Suwol, Thames, Harvey Judith C. L. David

Roger Wagner, Young, Appellants, GREGG, Patrick Reister, Sr., Daryl Mike Ross and Plaintiffs, OREGON, STATE OF Respondent. A102209) (98C-11963; CA (Cases Consolidated)

987 P2d 569 *2 argued John the cause and filed Hoag the briefs for appellants. Williams,

Mary General, H. argued Assistant Solicitor cause for her on brief respondent. Hardy With were General, Myers, Attorney Reynolds, and Michael D. Solicitor General. Edmonds, Deits, Presiding

Before and Chief Judge, Judge,* Armstrong, Judge. J.

EDMONDS, P. J.,

Armstrong, dissenting.

* Deits, J., Warren, J., C. vice P. retired.

EDMONDS, P. J.

Plaintiffs from appeal judgment dismissing their against actions the State alleging a violation of the (FLSA). Fair Labor Standards Act The trial court held that it did not jurisdiction have because of the State of sov- Oregon’s ereign and because immunity plaintiffs did not give timely notice of their claims under the Oregon Tort Claims Act (OTCA). We review for errors of law and affirm.

Plaintiffs these brought actions to recover overtime compensation they claim is owed to them under FLSA.1 As salaried state employees, the state plain treated exempt tiffs as from FLSA requirements overtime at all material They times.2 now claim according Depart ment of Labor regulations, the state was required them overtime. See Auer v. generally Robbins, 519 US (1997). 117 S Ct L Ed 2d 79 some Initially, had their brought claims in the United States District Court. Those claims were dismissed for lack of jurisdiction, State, Stuhr v. No. CIV 95- (D 6118TC, 1996 1996), WL 888187 Or Quillin sub nom aff'd (9th Oregon, 1997), 127 F3d 1136 Cir in accordance with the United States Supreme Court’s decision in Seminole Florida, Tribe Florida v. 517 US 116 S Ct L134 (1996). Thereafter, Ed 2d 252 these brought actions in the Marion Circuit County Court.3 an ORCP 47 motion 216(b) (1998) provides, part: § 29 USC “Any employer [establishing who violates the of section 206 wage requirements! [establishing minimum or section 207 maximum hours compensation requirements! employee and overtime shall be liable to the employees unpaid wages, affected in the amount of their minimum or their be, unpaid compensation, may equal overtime as the case in an additional * * * liquidated damages. liability pre- amount as An action to recover the preceding may against any scribed in either of the sentences be maintained employer (including public agency) any compe- Federal or State court of jurisdiction by any employees tent one or more for and in behalf of himself or similarly employees themselves and other situated.” (1998) exemptions require 29 USC section 213 contains a number of from the *4 ment, paid employees of section that overtime be when work over 40 hours in a work week. groups employees are two There different of state involved in this consoli appeal: represented employees unrepresented management dated union employees. Lynda plaintiffs Robin Butterfield and Transue are union and the other had that plaintiffs argued the state summary judgment, for OTCA, the their claims under notice of give timely failed to a tort claim 30.300, bring to required as through ORS 30.260 sum- turn, partial moved for the state. In against The trial liability. of the state’s on the issue mary judgment in dismissed the claims motion and state’s granted court entirety jurisdiction. their for lack of notice they timely gave

Plaintiffs do not contend Instead, they FLSA claims.4 the OTCA their regarding under FLSA claim for a required that such notice is not argue that the state’s sov first assert They in state court. brought when it enacted Congress was ereign immunity abrogated by to with Therefore, do not have they the FLSA. in the briefs were filed of the OTCA. After notice case, rejected argument Court Supreme this Maine, 2240, 144 L Ed 2d 636 Alden v. 527 US S Ct from immunity pri that “the States retain holding courts, immunity beyond the con vate suit their own I As a legislation.” to Article gressional power abrogate result, can sue a in state court under state from immunity FLSA if the state has waived its to only .Alden, S at suit 119 Ct 2267. Constitution, IV,

Article section law, “[provision may by general be made provides State, originating as to all liabilities bringing against suit this Constitu after, at the time of the existing adoption or law by general The OTCA waiver represents partial tion[.]” Portland, 308 Or immunity. of the state’s Hale v. Port of separate plaintiffs. parties sought cases appellants to have their are nonunion cases, purposes resolving jurisdictional issue raised in both consolidated for trial court ordered consolidation. and the provides, part: ORS 30.275 “(1) public body arising any an offi- act omission of a or No action from or cer, scope agent public body employee within the of ORS 30.260 of a given required by this notice of claim is as 30.300 shall be maintained unless section. “(2) following applicable period of given Notice of claim shall be within the days, person time, period, exceeding during including which the not not minority, injury injured give or because of the notice because of the is unable incompetency incapacity: or other

“(a) injury. death, year alleged wrongful loss or within one after For “(b) claims, injury.” days alleged loss or all within 180 after For other *5 (1989). 516-17, 783 P2d 506 If a FLSA claim is a “tort” for purposes comply OTCA,5 then must with the requirements advantage notice ofthe act to take ofthe state’s partial immunity. give Here, waiver of did not timely require notice oftheir claims under ORS 30.275. “The given timely ment that notice be is a substantive condition precedent recovery Oregon to under the Tort Claims Act deprives plaintiff right satisfied, if not claim. Urban Renewal a to make a Agency Lackey, 35, 40, v. 275 Or (1976).”Tyree Tyree, App 317, 320, 840 P2d 657 v. 116 Or P2d (1993). (1992), appli rev den 315 Or 644 If the OTCAis plaintiffs’ by actions, cable to the actions are barred ORS 30.275. argue inapplicable

Plaintiffs that pay the OTCA is duty employ- because state’s overtime arises out of ment and that the contracts definition of “tort” under ORS 30.260(8) arising quasi- excludes duties from contract or argument acknowledge contract. Plaintiffs’ fails to relevant legal case law that characterizes the breaches of duties aris- ing purposes from statute as “torts” of the OTCA. agency sought Renewal, Urban a state rent from the defen- had building agency previously dants on a con- damages, alleg- demned. The defendants counterclaimed for ing regulations, agency duty that, under federal had a obtaining replacement assist in them location and that the agency regulations. agency had failed to with the ground demurred to the counterclaim on the that it did not allege required by notice as OTCA. The trial court granted Supreme demurrer, review, and on Court holding purposes affirmed, that the breach was a tort for the OTCA: said, reason, good really

“It has been and with that no satisfactory yet gen- definition of a tort has been found. aAs rule, however, any legal duty eral in resulting breach of a contract, than damages, by other those duties created is a tort, by whether that the common duty imposed law or Also, view, Gray statute. our and as held in v. Hammond 30.260(8) duty imposed by legal ORS defines “tort” as “the breach that is law, duty arising quasi-contract, other than a from contract or the breach of which injury provides specific person persons results in to a for which the law a civil damages protective remedy.” of action for or for a al, Co., 232 P 233 P 234 P Lumber et (1925): “ ‘When statutes are enacted which undertake to rights a standard of conduct for declare establish any protection, their acts or omissions violation of statute, enjoyment of destroy such which such ” * * rights, may legal wrongs treated as or torts: *.’ be (footnote omitted). Renewal, Urban 275 Or at 38 Tri-Met, Also, 500, 506, 870 P2d Griffin rejected Lawyers the court Trial Asso- ciation’s amicus that an argument unlawful to Urban was not a tort under the OTCA. practice Citing 659.425(1) Renewal, held imposes the court that ORS on an *6 a not to employer duty discharge individual based on and that that physical impairment duty legal duty is “a law, imposed by duty other than a from contract or arising quasi-contract” within the of the Griffin, meaning OTCA. Or at 506-07. Lamb, Fullerton v.

Finally, 655, 163 P2d (1946), P2d 63 the sued plaintiff to recover overtime penalties and under the FLSA. The defendant demurred on the of the Laws ground chapter Oregon operated to bar the action because the action had not been within the brought by statute of limitations expressed 177 Or at 659-60. Because chapter. there was no applicable limitations, federal statute of the court looked to available statutes of limitations under law. the enact Oregon Before ment by the action would have been chapter governed 1-204(1) OCLA a limitation of six based (prescribing years § 1-204(2) contract), on or express implied or OCLA (prescrib § a ing six-year liability statute, limitation for created other by forfeiture), than for a or OCLA penalty (prescribing or 1-205 § Id. at 661- a three-year limitation on actions for penalties). 62. Under was his chapter plaintiff required bring most, action three within months or at the six months after the effective date of the statute. At issue on was the appeal of the constitutionality chapter light substantive issue, by deciding the FLSA.6 In the court rights granted by Chapter with held the court because it conflicted 265 was unconstitutional Fullerton, at the substantive of the FLSA. Or 685. * * “[w]e

said, view, *, an action are inclined to the that this is liability by upon upon statute rather than a created one liability, express implied.” Fullerton, contract or 177 Or at 661. ques light foregoing cases, of the we turn to the plaintiffs’ in “tort” as con

tion of whether templated by actions are founded language OTCA, or in contract and statutory exempt provisions. question The is one of from its Oregon Legislature. interpretation the intent of the language Supreme Court case of the OTCA and the supply inquiry. interpreting it the initial focus for our See law (1984). Clevenger, 234, 244, 683 P2d 1360 Has State FLSA, stat the state consented to be sued under ute, federal requirements compliance with the OTCAnotice without relationships at do include when the issue not rely? duty depends on on which The answer language gives apparent what rise to the claim. It is from the interpreting applicable them statutes and the case law by rights are on or duties created statutes that claims based to be treated as “tort” claims for purposes of the OTCA. On provision, hand, the then if a claim is based on a contractual other exemption applies. Here, we conclude because by duty by imposed relied on not employment relationships terms of their with the state but legislature plaintiffs’ law, federal would have intended subject actions to considered as founded tort and to the be provisions. OTCAnotice contrary. says: It

The dissent to the believes *7 law, the Fair Labor Standards “As a matter of federal (FSLA) contracts, regulates employment the terms of Act Despite act are claims on a contract. and claims under the statute, a federal that federal construction of a tort. Oregon that in a claim under the FLSA is concludes * * * * * * in fact contractual Because this action is nature, the state has consented to be under ORS 30.320 App sued.” 163 Or at 238. prove First, much. the federal

The dissent’s contentions too opin- opinions federal court circuit court and the three lower application refers, of ions, to which the dissent all involve what and the determination as to state statutes oflimitations

235 state statute particular applied.7 They should be do not sup- that there is an port concept overriding of fed- principle eral that supremacy prevents states from for them- deciding selves whether a FLSA claim is a contractual or a tort claim particular fact, under a state In statutory scheme. dem- they that legal onstrate characterization of a FLSA action is a to be question decided under state law. Clearly, Oregon courts when construing a statute passed Oregon Leg- islature are not bound by lower federal court characteriza- tions the state regarding statutes. addition, law, under a Oregon may tort action

arise from a contractual relationship when it is based on a duty is of the independent specific terms of the contract. Co., v. The Georgetown Realty 97, 106, Home Ins. 831 (1992). Here, P2d 7 do not contend they are entitled to overtime under the terms of their employment contracts. They rely solely on the rights given to them under a statute, FLSA, that is of independent their relationship.

The of the FLSA relationship to plaintiffs’ employ- ment relationships similar to the relationship between the employment contract in issue and a statute in Maddox v. (1982). 25, Clac. Co. Sch. Dist. 27, No. 643 P2d 1253 There the issue was whether probationary teacher, a school whose contract was expressly subject the laws of the State of prohibited termination of of pro- bationary will, teachers at could a claim for breach bring of contract when termination was not elsewhere dealt with in his contract. The court ruled: 7 through 11821, Ohio, subject Sections 11819 of the General Code of are the (6th 1943). opinion Broutin, 628, in Northwestern Yeast Co. v. 133 F2d Cir (4th Black, 1947), The court in Roland Electrical Co. v. 163 F2d Cir cert * * * (1948), begins by saying, necessary den US 854 its discussion “it is * * * upon wage governed by decide whether the suit is § based contracts Art. Maryland Code, upon or is based the Fair Labor Standards Act to such * * * specialty provided by extent that it must be considered a suit on a Art. § (ED Maryland Bros., Supp Code.” The issue in Fletcher v. Grinnell 64 F 1946) Mich was whether FLSA claim survived after the death under Michigan Corporation, Supp statutes. In Keen v. Mid-Continent Petroleum F58 (ND 915, 917 1945), provides Iowa the court that “where a observed federal statute * * * limitation, Congress prescribed any period for a has not the valid applicable applied.” Cunning state statutes of limitations are to be court (WD Weyerhaeuser Co., 1943), Supp

ham v. Timber 52 F Wash focused on Washington statute of limitations. *8 “Those parties interests of the by which exist virtue of (e.g.,

the contract compensation) may protected by be con tract remedies. Plaintiffs freedom from improper termina tion, however, does not arise from contract. That inter by est exists of virtue the statute. His remedies also by exist virtue of the statute. only The contract acknowledges that term) provisions (e.g., its ‘subject to,’ are among other things, the provision termination of [the statute]. No addi remedy tional contract to enforce the statute is cre ‘subject provision.” ated to’ 293 Or at 33.

The dissent argues that the FLSA has become part of the contracts between the plaintiffs. However, state and when Oregon statutes part contract, become of the terms of a it is because of the intention of the Oregon Legislature. For instance, the legislature certain requires statutory require- See, ments to be expressed insurance policies. e.g., ORS ch 742. No such statute or evidence of legislative intent exists here. Insofar as the concerned, record before us is the provi- sions of the OTCA were enacted and operate independently from the provision of the FLSA.

Also, rights granted by statutes could become con- tractual terms because the performance of an employee is tendered in consideration instance, of a statutory right. For in Oregon State Police Assn. v. State Oregon, Officers’ of Or (1996), 918 P2d 765 public employees, and unions representing public employees, challenged lawfulness of constitutional amendments the state retirement affecting In system. whether a deciding contract relationship between the public employees and the state included statutory pen- sion rights, court reviewed its holdings v. Crawford Ass’n, Teachers’ Ret. Fund (1940), 99 P2d 729 Harryman Dist., Roseburg 631, 634, Fire Or 420 P2d (1966), and Taylor Bd., v. Mult. Sher. Ret. Dep. 445, 452, 510 P2d 339 among others. The court sum- marized those cases as “that recognizing [state retire- system] ment is an offer for a unilateral contract which can be accepted by the tender of part performance by the at employee.” Or 371. Crawford, teacher sought compel payment

an annuity upon retirement under a that required statute school districts to make deductions from teachers’ salaries teachers retirement fund association. The provide issue on was appeal plaintiff was whether entitled to annuity after the had its bylaws association modified subse- to her quent require retirement an increased amount contribution level that not plaintiff did meet. Ruling *9 favor, the the court said: plaintiffs “We do not provided consider annuities under the plan teachers’ retirement fund as in nature of pensions sovereignty, or bounties which a beneficent acting at its will, teacher, may change by continuing or abolish. The in making fund, has, the service and contributions to in effect, State, accepted through the offer of the its govern- agencies, mental pay annuity upon to retirement at a * * * age. [dealing] rights certain We are with of an employee to payment annuity of an for provided under the terms of the a part statue which became of the con- tract.” at 87. Taylor,

In the court held that a providing statute for retire- ment benefits can an offer for a unilateral represent contract by to work continuing requisite for the nec- period for essary retirement, had employee accepted that offer through his part performance. 265 Or at 452. in Accordingly, Harryman, the court held that an allowance for accumulated sick leave under the policy district’s was of the part plaintiffs employment contract because he was induced to accept employment, part, because of the policy. at 634-35. benefits, Unlike retirement the overtime provisions of the FLSA do not constitute a offer on the of part unilateral the state of Oregon plaintiffs that accept through could part performance. As salaried did employees, plaintiffs accept not by FLSA benefits performing employment under their agree- Moreover, ments. do not that argue they were to accept understanding induced based on employment they would overtime receive or worked compensation longer hours because of an understanding they would receive overtime Plaintiffs’ interests under compensation. the FLSA arise virtue of the federal statute and its only by regulations, scheme that regulatory independent terms of each employment between state relationship and its employees. summary, depends plaintiffs’ action on the state’s noncompliance

duty the FLSA. Their overtime under requirements is fatal to their action the OTCA notice with purposes 30.275, their action is consid- for of ORS because then contract. That character- as founded tort rather ered duty legal arises out of a the state’s ization occurs because employment duty imposed federal law and not out is not a situation where contracts themselves. This allege employment they to enter into have been induced relationships provisions the FLSA'br that its ofthe because bargained-for part consideration are of a Consequently, plaintiffs exchange performance. their requirements required OTCAnotice with the were bring action. in order to their

Affirmed. dissenting. J., ARMSTRONG, law, the Fair Labor Standards offederal As a matter (FLSA) regulates contracts, and terms of Act Despite that claims on a contract. under the act are claims *10 majority statute, the con- of a federal federal construction Oregon FLSA is a tort. It in a claim under the that cludes unpaid plaintiffs’ overtime on claims for therefore dismisses ground with the notice failed to the requirements (OTCA). Act The the Tort Claims of misunderstanding majority’s the of arise from conclusions applicable the cases. Because federal law and state wrong nature, in in fact contractual and this action is sued. The has consented to be 30.320 the state under ORS dismissing case, I dis- and erred in trial court therefore affirming majority’s decision. in action sent from the majority’s Contrary conclusion, FLSA does to the statutory liability; regulates the terms rather it create a not of major by imposing employment two It does so contracts. wages employers: pay requirements to minimum and on requirements pay pay premium Each of those for overtime.1 employer employment regulates between the the contract 206(a) provides employee. 29 USC section and the Equal Pay portions 29 USC Act of the FLSA. See I not need to consider do 206(d). “[e]very shall to each of his employer pay employees [covered] * * * wages [minimum] [.]” at the rates 29 USC sec- following 207(a)(1) that, tion with various “no provides exceptions, * * * shall of his for a work- employer employ any employees forty week than hours unless such longer employee receives compensation for his of time and a half for the employment” overtime. Every employment relationship agree- includes an ment to for the employee employee’s services. Those provisions of the FLSA establish the minimum terms for that part employment contract. FLSA affects thereby of an scope employer’s duties under its contracts with its As so employees. regulated, those duties continue to arise from the employment contract and do not fall into the defini- 30.260(8). tion of “tort” ORS

That is precisely how the federal courts describe the FLSA. Northwestern effect of the Broutin, Yeast Co. v. (6th F2d 1943), Cir the issue was whether the plaintiff in rem had obtained quasi jurisdiction over the defendant Ohio on an FLSA claim and by attaching garnishing defendant’s property that state. The relevant Ohio statute limited such provisional process to claims that arose on a con- tract. The court held jurisdiction that there was because claim arose on clearly a contract. It out that pointed FLSA is on the premised existence of con- tract and that even recovery the double under allowed services, USC section 216 is compensation for not a penalty. claim “[T]he for overtime compensation is founded and upon Northwestern, is coexistent with the contract.” 133 F2d at 630. The court pointed decisions, out under the federal “the statutory contained in the obligation Fair Labor Stan- dards Act is read into and becomes a part every employ- ment contract between an employer employee subject Act.” Id. at 631. terms (4th Black,

In Roland Electrical Co. v. 163 F2d 417 cert den 333 US 854 1947), Cir the issue was which *11 statute Maryland of limitations to an action for over- applied FLSA, time due under the the three-year period for an action on a contract twelve-year period or the for an action on a specialty, which included actions based on a statute. The Fourth Circuit concluded that actions under the FLSA are actions on contracts:

240

“They parties on the contracts between the which depend employer employee, of and and relationship arose out of the by the fact that the changed character is not their basic by have been modified employment terms of provi- think that the Labor Standards Act. We of the Fair wages, minimum the Act reference to overtime sions of with read into and liquidated damages and are compensation every subject contract that is part employment a of become liability employer of Act. The to the terms for working which the stat- wages agreements due under federal 163 F2d at compels employer employee and to make.” ute added). (emphasis 426 English favorably quoted that the effect decision The court wage employment statutory con- is that the of a minimum “ by striking were, reconstructed out be, tract ‘is to as it ought wages, be, than it and rate of inserting where it is lower wages proper in accordance with the rate of ” (quoting Reeve, TLR Gutsell v. 52 58 Id. at 427 statute.’ (1935)). uniformly followed those The federal district courts gov- holding limitations that contract statutes of decisions e.g., Bros., F See, Fletcher v. Grinnell 64 FLSA actions. erned Supp (ED 1946); Petro- 778, Corporation, Mich Keen v. Mid-Continent 1945). (ND leum, Supp F Iowa Supp Weyerhaeuser Cunningham Co., F Timber (WD 1943), Washington proper held that the the court Wash period contract, for an FLSA claim was that a limitations liability It founded on statute. rather than that for a obliga- pointed turned on whether out that the decision employ- read into the FLSA created must be tions that the plaintiff It and the defendant. ment contract between Washington emphasized law, that, under both federal making form a at the time of a contract statutes in existence they incorporated part it so ofthe contract and become language part FLSA, which Thus, are of its terms. the oral con- some time before had existed for tract, Cunningham, part that contract. considered must be Supp 52 F at 656.2 the federal court had to decide in each of these cases notes that them, however, any suggestion was there of a statute. In none of

the effect state adopted meaning that which different from had for “contract” the state

241 longer The federal courts no need to consider those adoption issues because of the tions for FLSA actions in USC principles of a federal statute of limita- 1947, the Portal to Portal Act of 29 255(a). They questioned § have, however, never occasionally involved and still refer to them. See College, Continental Co. v. Cas. Anne Arundel Com. 867 F2d (4th 1989) (citing 800, 803-04 Cir Roland Electrical Co. for principle equal pay obligations, that the defendant’s 29 USC 206(d), implied quasi-contractual § could be deemed to be obligations). wage The rule that the minimum and overtime employment of the FLSA are contracts, read into appears thus, to be settled federal law. That in itself shows legal duty that an FLSA claim is not “the breach of a that is imposed by duty arising law, other than a from contract or quasi-contract” and, thus, is not a “tort” under the OTCA. 30.260(8).3 ORS if

Even the federal law is not sufficient to determine Oregon the nature of a federal statute, law is itself consistent with the and, cases that I have own, discussed on its leads to Oregon, the same result. In as in courts, the federal it is well applicable part established that the law of the land becomes every eg., Corp., Ltd. See, contract. OceanA. & G. v.Albina (1927); Wks., M.I. 122 615, 617, Or P 260 229 Northwest App Gardens, Natural Gas Co. v. Inc., Chase 249, 260, 146 Or (1997), App 370, 933 P2d 586, on recons 147 Or P2d 778 (1999). grounds rev’d on 487, other 328 Or 982 P2d In App Blizzard v. State Farm Co, Automobile 56, 61, Ins. 86 Or (1987), 738 P2d rev den 304 Or 149 we took that approach required companies with a statute that insurance coverage policy to offer underinsured motorist to their company holders. We the concluded when a failed to offer coverage, appropriate remedy was to read the cover age company policy. that the should have offered into the English terms, court’s we “reconstructed” the contract generally applies jurisdictions. in majority common-law I do not understand the to argue given idiosyncratic that in the meaning. OTCA has the term some applicable Oregon every state, Thus the federal cases are as inas other with the possible exception of Louisiana. Lamm, 941 (1946), dictum Fullerton v. 163 P2d does not court, considering any cases, affect that merely conclusion. The without relevant suggested a holding, tentative conclusion that had no effect on its as the relevant years statute of limitations was six in either case. company required

inserting that the statute the terms right give the insured a on the insur offer. The effect was statutory contract, a breach of a not a tort action for ance duty. precisely what the federal courts hold is the That is employee has with the FLSA: the result of a failure to contract with the terms to recover on the required it to include. that the statute which the relies are not rele- The cases on of a contract Urban this issue. There was no issue vant to Lackey, Agency P2d 657 Renewal relationship between the no contractual because there was parties. *13 plaintiff question had a statu- was whether the The tory duty arose from the con- to the defendant that Supreme property. Court defendant’s demnation of the any consider whether the administra- did not have reason to contract. In read into the nonexistent tive rules should be (1994), ques- Tri-Met, Or 870 P2d 808 318 Griffin employment practice was a was whether an unlawful tion tort. relationship Although in that there was a contractual nothing the terms ofthe con- case, the statute modified about Rather, created an to it. the statute tract or added new terms apply duty independent there could, fact, even when that in a refusal to hire. Both all, at such as was no contract FLSA, unlike the which in those cases are statutes at issue very contract, terms of affects the heart of an requiring compensation, those terms with that statutory mínimums.5 policies notes, requires majority chapter con that insurance ORS As provides that ORS 742.038 It could also have noted certain minimum terms. tain complied policy if it with noncomplying will be construed as is not invalid but that a but its happens, contract remains in force the insurance the statute. When that requires. 742.038 to An action that relies on ORS that the statute terms are those contract, policy on a not on a stat is an action the terms of an insurance establish (1987), Co., App P2d 1007 rev v. Western Home Ins. ute. See Hansen (1988) designation (construing as 742.038 under its former ORS den 305 Or 576 743.059). why the result when believes that that is It not clear ORS when Con Legislature provides the result is different for it but that

gress provides for it. (1982), 27, 643 P2d 1253 No. v. Clac. Co. Sch. Dist. Maddox par recognized compensation expressly is an interest Supreme Court Thus, my posi consistent with Maddox is virtue of the contract. ties that exists compensation rather than regulates the contract modifies tion that statute claim, to be statute that creates a the court’s view of a unlike creates a new the majority notes, Maine,

As after Alden v. 526 US 2240, 144 S Ct L Ed 2d 636 plaintiffs’ ability this bring action on whether the state has waived depends its to suit. immunity contract, Because the claim is based on a tort, not a failure to notice plaintiffs’ give within the period the OTCA requires is irrelevant to that question. Rather, 30.320, the issue is whether ORS which provides actions state against agencies on contracts made within their is a authority, claims, waiver of immunity for these which are based on employment contracts modified to comply with the requirements of the FLSA. I see no reason to distinguish such claims from any other contract claim and would therefore hold that the state has immunity waived its from suit on them. Because the majority otherwise, holds and because of the potential consequences of its claims, decision on other I dissent. *14 improper termination, subject

free from appear that does not otherwise in the majority contract. support my position. The other cases that the discusses tend to holding does not things consider the effect of its on such anas employee’s rights law, wage through under the state minimum ORS 653.005 ORS 653.261, wage payment statutes, see, e.g., 652.120; or under the ORS ORS 652.140. could, however, Its conclusions have serious effect on the enforcement of those portions public policy protecting essential of the state’s workers.