Court

Democrats in Oregon and Washington are proposing legislation that would allow workers and other private parties to sue employers in the name of the state for wage and safety violations.

Stand clear, if these measures pass, lest you be run down by the trial bar rushing to the courthouse.

Such actions, known as qui tam complaints, have a long history stretching back to English common law. Qui tam is shorthand for a much longer Latin phrase that translates to “he who sues in this matter for the king as well as for himself.”

In a qui tam suit, a private party sues on behalf of the government in exchange for a share of any settlement.

In the United States the concept dates to the Civil War, at time when fraud was common but government oversight was not. That led to the False Claims Act, which encouraged individuals with knowledge of fraud on the part of government contractors to take the matter to court.

The False Claims Act attempted to check rampant corruption at a time when there wasn’t an extensive network of government investigators and prosecutors. The backers of these bills suggest that neither of their respective states maintain a robust regulatory enforcement apparatus.

“Passing these laws is important. And it’s even more important to make sure they’re enforced. Our state agencies do work hard and their staff are extremely dedicated, but they cannot be everywhere at once,” Rep. Barbara Smith-Warner, a Portland Democrat, said.

They are not everywhere, but they are responsive to complaints filed by aggrieved workers.

A key component to both House Bill 2005 in Oregon and House Bill 1076 in Washington are provisions that would cut the state in on any money recovered in the case.

That would prove a boon to state coffers without any effort or expense on the part of regulators — a “positive” outcome, according to one of the Oregon measure’s supporters. It would also be a boon to the trial bar, which would be incentivized to file even marginal cases in the hopes the potential expense of protracted litigation would prove more expensive to defendants than paying out settlements.

Are these bills about winning justice for injured workers or deputizing private parties to use the courts to extort payments from employers? Two birds with one stone, or one outcome being the accidental outcome of the other?

We agree with Washington State Dairy Federation labor analyst Scott Dilley that this is a “categorically bad idea.”

“We already have agencies and regulations and processes set up for investigations and enforcement,” he said.

These bills would lead to litigation Armageddon, and make the business climate in Oregon and Washington even worse than it is now.

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