Flores de Vega v. Oregon Employment Department
Class Action Lawsuit
General Information
Oregon Law Center has reached a settlement in a class action lawsuit challenging the Oregon Employment Department’s (“OED”) long delays in making final decisions about claims for unemployment benefits.
Oregon Law Center represents 14 courageous Oregonians who decided to sue because the agency was taking an unreasonably long time to pay out unemployment benefits or issue official benefit denials, and because OED did not make unemployment benefits accessible to people who don’t speak English. The lawsuit is called Flores de Vega v. Oregon Employment Department and it was filed in Multnomah County Circuit Court. When the suit was filed, most of our clients had been waiting for months and months for their unemployment checks. The Court agreed that the case should be a class action—a lawsuit intended to address harm to a large group of people, not only the named plaintiffs—because tens of thousands of Oregonians had been waiting months for benefits, just like the petitioners.
The settlement, which received final court approval on March 16, 2021, requires OED to speed up making decisions about unemployment benefit claims and make it easier for people with limited English proficiency to apply for unemployment benefits. It also increases transparency and accountability of the agency. Individual class members do not get any money from this settlement, other than unemployment benefits they are eligible for.
See the Frequently Asked Questions below for more information about the case and the settlement agreement.
Frequently Asked Questions (FAQs):
Flores de Vega v. Oregon Employment Department
This lawsuit was filed on behalf of Oregon claimants who have been waiting too long for a final decision (payment or denial) on their applications for unemployment benefits since the beginning of the COVID-19 emergency. The lawsuit is a class action, which means the lawsuit is designed to help not just the named petitioners but also the many thousands of Oregonians who are still waiting for a final decision on their claims for unemployment benefits.
Anyone who meets the definition of a “class member” is covered by the settlement in this lawsuit.
You are a member of the class in this lawsuit if:
- You applied for or attempted to apply for Oregon unemployment benefits after March 1, 2020;
- You have been waiting more than 4 weeks for either payment or a formal denial of payment for any week of benefits other than the waiting week; and
- You are still waiting now.
The petitioners are 14 Oregonians who lost their jobs during or just before the COVID-19 emergency. Some applied for regular unemployment insurance benefits, which existed before the emergency. Others applied for new COVID-19 unemployment benefits, such as PUA and PEUC. Most waited many months without a decision on their claims.
The petitioners filed this lawsuit under the Oregon Administrative Procedure Act (“APA”), the law that governs state agencies like the Oregon Employment Department. One provision of the APA gives Oregon courts the power to order an agency to act when it has “unreasonably delayed” making a decision or taking action. Petitioners allege that waiting many months for benefits or an unemployment benefits decision is an “unreasonable delay” under the APA.
Under the settlement, OED agrees to
- By March 1, meet federal timeliness standards for paying benefits when they are due and, by April 1, meet federal timeliness standards for adjudicating (deciding) disputes about eligibility.
- Process initial applications for UI and PUA more quickly.
- By March 1, completely work through the “adjudication backlog.” This means that all claims waiting for adjudication in mid-January will resolved (paid or denied) by March 1.
- Address long wait times for people whose benefits have started and stopped, but who don’t need adjudication.
- Make regular, public reports on their progress for items 1-4 above.
- Make online and paper/PDF applications for benefits available in languages other than English.
- Allow eligible Limited English Proficient (“LEP”) individuals who couldn’t apply for unemployment benefits because of language barriers ask for benefits back to the date they lost work to the extent the law allows.
- Improve phone access for LEP individuals and create a plan to address language barriers for people applying for benefits.
Although class members who are eligible for benefits may get paid more quickly, no class member will receive any additional money as part of the settlement. Oregon Law Center is not receiving any attorney’s fees as part of the settlement.
OED is not admitting liability as part of this settlement, but has agreed to take the steps above, which it believes are in the interest of all Oregonians.
If OED violates the agreement, Oregon Law Center attorneys can ask the settlement judge to take action to ensure that OED lives up to its promises. Under certain circumstances—for example, if there is a large increase in new claims, a natural disaster, or another event that substantially interferes with OED’s ability to make prompt decisions—OED’s obligations are “paused” for 90 days.
The settlement agreement will end after OED has met its obligation for 6 months in a row, has met its obligations for 9 months total, or after 18 months have passed. However, if the settlement isn’t completed in 18 months and OED has had too many “pauses”, the settlement agreement could be extended.
You are already a member of the class covered by the lawsuit if you have been waiting at least 4 weeks for payment or a decision on at least one week of unemployment benefits. This means that if you have been waiting 4 weeks or longer, you are automatically included in the class, and so you are already covered by the lawsuit.
The court held a settlement fairness hearing on March 16, 2021 and issued an order giving the settlement final approval that same day. This means that the case is now in a monitoring and enforcement phase. Each month, OED reports to Oregon Law Center about whether it has satisfied the requirements of the settlement. For example, OED gives Oregon Law Center written reports about whether, in the previous month, it met federal timeliness standards for issuing first payments on new claims and resolving disputes about eligibility. OED reports to Oregon Law Center about changes to its system to increase access for applicants with Limited English Proficiency. For example, OED has committed to making its online application for Regular Unemployment benefits available in Spanish as well as English. The reports OED provides to Oregon Law Center are available to the public on OED’s website at https://www.oregon.gov/employ/agency/pages/ui-reports.aspx.
If OED violates the agreement, Oregon Law Center attorneys can go back to court to ask the settlement judge to take action to ensure that OED lives up to its promises.
Before the fairness hearing, several class members wrote to Oregon Law Center to object to the settlement. These class members did not think the settlement was fair because OED does not have to pay any money damages or penalties under the agreement.
Oregon Law Center understands these class members’ frustration and agrees that the long waits for unemployment benefits caused serious harm to many thousands of Oregonians. Before filing and throughout the litigation, Oregon Law Center attorneys thoroughly researched available claims, and reluctantly concluded that petitioners and the class were unlikely to succeed in a suit for money damages or penalties. Based on advice from Oregon Law Center, the petitioners concluded that the type of policy changes OED agreed to make in the settlement agreement were better than no changes, even though these changes do not compensate class members for all the harm they suffered. You can read more about why Oregon Law Center believes this imperfect solution is nevertheless a fair settlement of the class members’ claims in the “Settlement” documents at the bottom of this webpage.
No. Unfortunately, there is no potential for money damages in this case. However, the goal of the case is for all eligible claimants to get their benefits faster.
They are posted here on this website. See summaries and links to the actual documents filed in this case below.
Original Complaint
This is the complaint that started the lawsuit. Thirteen people filed the complaint against the Oregon Employment Department and David Gerstenfeld (the Acting Director of the Oregon Employment Department). It contains three claims:
- The Oregon Employment Department took too long to pay benefits or give a final decision.
- The Oregon Employment Department violated people’s rights because they are not paying benefits. They are also not sending a final denial letter that people could use to challenge the decision at a hearing.
- The Oregon Employment Department did not do enough to make the unemployment benefits information available to people who do not speak English. Essentially, the people named in the complaint asked the Court to order the Oregon Employment Department make decisions faster and to take action to improve language access.
[Oregon Law Center]
Amended Complaint
Before the Oregon Employment Department answered our original complaint, Oregon Law Center, on behalf of the people named and on behalf of other people in a similar situation, filed an Amended Complaint. The Amended Complaint also included a few more people—known as Petitioners. The claims are the same as in the original complaint but the Amended Complaint includes allegations that the problems that the original petitioners were experiencing, such as long delays, were happening to many, many people. Oregon Law Center asked for an order from the Court that would apply to everyone who was experiencing the same or similar problems. The Amended Petition included information to show that the Oregon Employment Department’s actions or inactions affected many people in Oregon.
[Oregon Law Center]
Motion for Class Certification
Oregon Law Center, on behalf of the people named in the complaint and those in similar situations, filed a motion for class certification. This means that any relief, such as a court order or a settlement, applies not just to the people named in the complaint but also to everyone who falls into the definition of the class. In this case, the class is defined as:
All individuals who have been partially or totally unemployed between March 1, 2020, and the present; have applied or attempted to apply for unemployment benefits distributed by the Oregon Employment Department; and have been waiting longer than four weeks since applying or attempting to apply without receiving either payment, or a denial, for at least one week of benefits other than the initial waiting week.
You can read our motion for class certification, OED’s response, our reply, and the court’s order certifying a class below.
[Oregon Law Center]
[State of Oregon]
[Oregon Law Center]
The State’s Motion to Dismiss:
The Oregon Employment Department moved to dismiss the entire lawsuit. Their reasons why the lawsuit should be dismissed included that the lawsuit was “moot,” meaning that the court could not provide any additional relief because they had paid benefits to all the petitioners. Oregon Law Center argued that the Court could allow the case to move forward under an Oregon law that applies when the government is doing something illegal that is “capable of repetition, yet evading review.” The Judge denied the Oregon Employment Department’s motion to dismiss.
You can read OED’s motion to dismiss, our response, OED’s reply, and the court’s order denying the motion to dismiss below.
[State of Oregon]
[Oregon Law Center]
[State of Oregon]
Summary Judgment:
Both the petitioners and the Oregon Employment Department filed motions for summary judgment. This means that both OLC and OED asked the court to decide it is clear, even without a trial, that their clients would win the case. At the summary judgment stage, each party gets to show the Court the evidence they would present at trial.
Days before the summary judgment hearing, Oregon Law Center, the Oregon Employment Department, and their clients agreed to postpone the hearing to work out a settlement. Because the Court has approved the settlement agreement, there will not be a summary judgment decision in this case.
You can read our motion for summary judgment, OED’s motion for summary judgment, and the rest of the summary judgment briefs below.
[Oregon Law Center]
[State of Oregon]
[Oregon Law Center]
[State of Oregon]
Settlement:
The parties reached a settlement agreement in this case, and the Court gave that settlement final approval on March 16, 2021.
The March settlement left one important question open for negotiation: what to do about people who were approved for and started receiving benefits, only to have those benefits later stop for weeks or months, often with no notice or explanation. Through the settlement, OED promised to create a report showing how many of these “start and stop” claimants had their benefits stop for 4 weeks or longer, and to work with the plaintiffs to develop a plan to resolve those claimants’ problems.
OED produced the promised report on April 13, 2021, revealing that between 45,000 and 60,000 Oregonians had a claim “in suspense” for longer than 4 weeks – meaning that they had been waiting a month or longer without benefits. The parties then reached an agreement with timelines for when OED would resolve (pay or deny) the claims of these tens of thousands of people. OED agreed to resolve 50% of these “start and stop” claims by the end of June 2021; 90% by the end of August 2021; and 100% by the end of October 2021.
Thanks to the settlement agreement, OED produces monthly reports on the “start and stop” problem. You can view those reports, as well as all other reports OED must issue under the settlement, on the reports section of OED’s website. Scroll down to the second section, titled “Settlement Reports.” The “start and stop” reports are titled “UI Claims in Suspense Monitoring” reports.
You can read the settlement agreement, the parties’ motion for preliminary approval, the Court’s preliminary order of approval, the parties’ motion for final approval (including class members’ written objections to the settlement), the Court’s final order of approval, the first “claims in suspense” list report from April 2020, and the parties’ supplemental settlement agreement regarding the “start and stop” claimants below.
