OPINION

GARR KING, District Judge

This case arises out of plaintiffs' employment with defendant Wal-Mart Stores, Inc. ("Wal-Mart"). Before the court are defendant's Renewed Motion for Judgment as a Matter of Law (#756) and plaintiffs' Motion Regarding Penalties and Interest for 74 of the 82 Plaintiffs Whom the Jury Found to Have Worked Off-The-Clock (#746). For the following reasons, I deny defendant's motion and I grant plaintiffs' motion in part.

FACTUAL AND PROCEDURAL BACKGROUND

Carolyn Thiebes and Betty Alderson brought this action on behalf of themselves and other current and former hourly Wal-Mart associates, alleging that Wal-Mart "suffered or permitted" its employees to work off-the-clock without pay in a variety of ways in Oregon in violation of the Fair Labor Standards Act ("FLSA") and state law.

Through various rulings before and during 2002, I denied plaintiffs' requests for class certification but allowed plaintiffs' FLSA claims to proceed as a collective action with an opt-in procedure for additional claimants. I accepted supplemental jurisdiction over certain state statutory wage and hour claims, but I dismissed others and dismissed plaintiffs' common law claims. Plaintiffs' claims were narrowed to include only those claims involving their work experiences in eighteen Wal-Mart stores in Oregon: Bend, Coos Bay, Dallas, Eugene, Grants Pass, Hermiston, Hood River, Klamath Falls, La Grande, Lebanon, McMinnville, Medford, North Salem, Ontario, Pendleton, Portland, South Salem, and Woodburn. The scope of plaintiffs' claims was further narrowed to the time period of 1994 through 1999.

In November 2002, with more than 400 plaintiffs having opted into the case, I decided to bifurcate the case for separate trials on liability and damages. I ruled that plaintiffs would be allowed to present "representative" testimony regarding Wal-Mart's alleged pattern or practice of suffering or permitting off-the-clock work.

In December 2002, after a three-week trial and four days of deliberations, a jury returned a verdict finding that Wal-Mart engaged in a pattern or practice of suffering or permitting its employees to work off-the-clock without compensation in eighteen Wal-Mart stores in Oregon in each of the years 1994 through 1999. The jury also found that Wal-Mart acted willfully with respect to the pattern or practice.

During the year that followed, the parties filed and I ruled on numerous post-trial motions, and the parties prepared for the second trial on damages. Individual plaintiffs were asked to complete and return "claim forms" to be used as a means to assess the basis for their claims and the number of hours they alleged to have worked. After claim forms were returned and various motions to dismiss individual plaintiffs were granted, 134 claimants remained in the case at the start of the second trial. Through additional motions and rulings, a total of 108 plaintiffs' claims ultimately went to the jury.

The first jury having determined that Wal-Mart had the requisite actual or constructive knowledge of off-the-clock work in its Oregon stores, a second jury was impaneled in January 2004 to determine the underlying facts necessary for damages awards. The second jury was asked to determine whether each individual plaintiff worked unpaid hours off-the-clock, and if so, how many unpaid hours each plaintiff worked off-the-clock for each workweek worked. After a full week of deliberations, the second jury returned 108 verdict forms with findings regarding the number of hours worked off-the-clock by each plaintiff. The jury's findings varied from plaintiff to plaintiff, ranging from specific workweek-by-workweek findings regarding hours worked off-the-clock, to finding that a number of plaintiffs performed no off-the-clock work. A total of 83 plaintiffs received an hourly award from the jury.

DISCUSSION

I. Wal-Mart's Renewed Motion for Judgment as a Matter of Law

Wal-Mart moves for judgment as a matter of law, contending that the 2002 and 2004 juries lacked sufficient evidence to find in plaintiffs' favor.

In a jury trial, a party may request that the court grant judgment as a matter of law in its favor on an issue when there is "no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Fed.R.Civ.P. 50(a)(1). If the court denies a motion for judgment as a matter of law made at the close of evidence, the party may renew that motion after a verdict is returned. Fed.R.Civ.P. 50(b).

A motion for judgment as a matter of law must be denied, and a jury's verdict must be upheld, if the verdict is supported by substantial evidence. Johnson v. Paradise Valley Unified School District, 251 F.3d 1222, 1227 (9th Cir. 2001). "Substantial evidence is evidence adequate to support the jury's conclusion, even if it is also possible to draw a contrary conclusion from the same evidence." Id. The court must draw all reasonable inferences in favor of the nonmoving party. Id. The court may not substitute its view of the evidence for the jury's, may not make credibility determinations, and may not weigh the evidence.Id.

To the extent Wal-Mart's motion is based on the reasons it has raised in prior motions and renewed motions for judgment as a matter of law, this motion is denied for the reasons I have previously stated. I will address the specific issues Wal-Mart raises as new and additional reasons to grant judgment as a matter of law in its favor, though most of these reasons have been previously raised and rejected by the court as well.

A. Specificity and Adequacy of Plaintiffs' Proof

In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), the Supreme Court ruled that where an employer fails to keep proper or accurate records, an employee may prove the "amount and extent" of hours suffered by the employer "as a matter of just and reasonable inference." The burden then shifts to the employer to rebut the number of hours worked by presenting specific evidence disproving those hours. Id. at 687.

Throughout this litigation, Wal-Mart has objected to my decision to allow plaintiffs to prove the number of hours they worked under the "just and reasonable inference" standard set forth in Mt. Clemens. Because Wal-Mart believes plaintiffs did not prove record-keeping violations, plaintiffs are not entitled to the burden-shifting procedures set forth in Mt. Clemens. To the extent that Wal-Mart believes Mt. Clemens requires plaintiffs to first have prevailed on a claim for record-keeping violations, I reject this argument, as I have before.

Wal-Mart nonetheless maintains that it has shown the detailed hourly employment records it keeps, and therefore plaintiffs should not have been given the benefit of the Mt. Clemens standard of proof. Because Wal-Mart does not believe plaintiffs should have been able to prove their hours by a just and reasonable inference, it argues that their proof fell well short of what was needed to prevail under the plaintiffs' traditional burden. Finally, Wal-Mart argues that even if plaintiffs were properly allowed to meet their burden by proving the amount of off-the-clock work by just and reasonable inference, plaintiffs fell short of meeting even this more relaxed standard. According to Wal-Mart, all of the plaintiffs provided "`guesses' or `guesstimates' of unpaid hours worked without being able to provide any foundation for those estimates." Wal-Mart Memo. at 9. In Wal-Mart's view, the estimates were also "applied with broad brushstrokes to each and every week worked within a monthly, yearly, or even career-long period of time." Id.

There is no question that Wal-Mart's evidence showed detailed records generated from Wal-Mart's timekeeping system. I disagree with Wal-Mart, however, that this evidence directs the conclusion that these timekeeping systems accurately reflect all of the hours worked by plaintiffs. The very theory of plaintiffs' case is that they were not paid for all of the hours they actually worked because they were not reflected on their time records. Plaintiffs testified that, for example, they were told to "clock out" and continue working or their supervisors, and even some of the claimants in this lawsuit, actually edited or deleted hours from the system. Wal-Mart believes that by allowing plaintiffs to have the benefit of the Mt. Clemens relaxed standard of proof simply because this is an "off-the-clock" case, I am allowing the exception to swallow the rule. On the other hand, if the production of timekeeping system-generated records from an entity like Wal-Mart were always sufficient, no plaintiffs could ever have a claim under the Mt. Clemens standards for any off-the-clock work. In this case, I believe there was sufficient evidence that Wal-Mart's records were incomplete or inaccurate to meet the Mt. Clemens standards.

With respect to the specificity of plaintiffs' testimony regarding the number of hours worked, I find that the evidence was less than perfect but sufficient. With 110 plaintiffs testifying in the second trial, the testimony certainly varied from plaintiff to plaintiff. Thus, I reject Wal-Mart's characterization that all of the plaintiffs could provide nothing more than guesstimates. However, as I expressed several times in both trials, I believe plaintiffs put on a skinny case. The question, though, is not whether Wal-Mart or the court would have come to different conclusions as to certain plaintiffs' credibility or awards. The question is whether the evidence was sufficient to support the jury's findings. Although most plaintiffs were unable to testify as to the exact dates, hours and minutes they allegedly worked off-the-clock, most were able to make approximations tied to specific time periods. This was sufficient to submit to the jury with the instruction that plaintiffs were entitled to prove the amount and extent of hours suffered by the employer "as a matter of just and reasonable inference." Compared to the number of hours sought by the plaintiffs, the jury returned a somewhat minimal award, which I submit in many cases accurately reflects the testimony received.

B. Deposition Testimony

A total of 27 plaintiffs testified at the 2004 trial by way of deposition testimony. Of the 27 plaintiffs who testified by way of deposition, 22 were awarded hours by the jury.

Wal-Mart argues that none of the depositions of those 22 plaintiffs contained sufficient detail to prove plaintiffs' claims as the sole evidence in support thereof. Upon request, Wal-Mart produced for the court the trial transcript of the 22 depositions. I have carefully reviewed the transcripts and I agree with Wal-Mart that this testimony could be considered even less specific than the live testimony given by many of the plaintiffs. However, each of the 22 individuals gave at least some basis for the jury's award — whether that was a percentage of shifts on which they believed they worked off-the-clock, or an approximation of the number of times it happened and for how long — that combined with the other evidence regarding each plaintiff's period of employment, could have allowed the jury to find as it did. Again, the jury's finding for most individuals was in the range of one to only a few hours of total work off-the-clock, which may reflect the jury's determination that these individuals did not meet their burden as to other hours claimed. Although Wal-Mart argues that the fact that the depositions were read into the record means the jury was unable to assess any given plaintiff/deponent's credibility, I note that Wal-Mart was given the opportunity to cross-examine this small sub-set of plaintiffs via telephone during trial, and with few exceptions it chose not to. I believe this is a close call, but drawing all inferences in favor of plaintiffs, I will uphold the jury's verdicts as to the 22 individuals at issue.

C. Causation

Wal-Mart also argues it is entitled to judgment in its favor as a matter of law because plaintiffs failed to establish that each of the individual 83 plaintiffs whom the jury awarded hours was subject to the willful pattern or practice found to exist in the stores at issue. Wal-Mart believes that plaintiffs needed to affirmatively prove that any alleged off-the-clock work was caused by or performed because of the willful pattern or practice found to exist.

Although Wal-Mart repeats this point, no one disputes that each plaintiff was required to prove that Wal-Mart suffered the work at issue. The question is the method for proving it. Of the 83 plaintiffs who received hourly awards from the 2004 jury, 55 plaintiffs testified for the first time in the 2004 proceedings. Wal-Mart notes that under my prior ruling that the 2002 verdict was binding on all plaintiffs, even those who had not testified in the 2002 trial, those 55 plaintiffs relied upon the evidence presented in the 2002 trial to provide an evidentiary foundation for their claims. According to Wal-Mart, this means that they did not present any evidence as to whether Wal-Mart suffered or permitted them to work off-the-clock in the 2004 trial. Wal-Mart then questions the validity of the second jury's findings. Wal-Mart's causation arguments, therefore, go back to its objections to my decisions to bifurcate the case, allow representative testimony, and allow plaintiffs to prove a pattern or practice of violations.

All of these decisions were well-supported by case law, and the first jury was given detailed instructions based on these cases. Of the twenty-four instructions the first jury was given, the following four are worth highlighting. First, the jury was carefully instructed on how to determine if Wal-Mart suffered or permitted the work at issue. Jury Instruction No. 16 provided:

Plaintiffs must prove that they were "employed" for the off-the-clock work alleged. "Employed" in the context of this case has a special meaning. In this context, "employed" means that defendant "suffered" or "permitted" plaintiffs to work the hours for which plaintiffs claim they were not paid.

The words "suffer" or "permit" mean "with the knowledge of the employer." For purposes of that knowledge in this case, an "employer" is defined as any person acting directly or indirectly in the interest of Wal-Mart with Wal-Mart's knowledge and consent. Individuals of sufficient supervisory and managerial authority must possess that knowledge. For the knowledge of a supervisor to be imputed to the company, that supervisor must be at a sufficiently high level in the hierarchy of a company or must be charged with substantial responsibility for relaying employee complaints to management. Knowledge by salaried assistant managers or managers who possess supervisory authority over individual plaintiffs may be imputed to Wal-Mart. Knowledge by hourly department managers will not be imputed to Wal-Mart unless such persons had specific and official duties to act as a conduit to upper level management for complaints about work conditions, or unless such persons were primarily responsible for employees' failing to report all hours worked.

The jury was then further instructed on how to determine if Wal-Mart had actual or constructive knowledge of the work at issue. Instruction No. 17 provided:

An employer must compensate its employees for unauthorized work that, even if prohibited, is performed with the actual or constructive knowledge of the employer. In determining whether Wal-Mart had constructive knowledge you should consider all of the evidence, including:

(1) whether the employer was in a position to see the employees work;

(2) whether there was too much work performed for the regular working hours allotted;

(3) whether there were repeated and numerous occasions of extra work being performed;

(4) whether there was a pattern or practice of employer acquiescence to the work;

(5) any other facts from which knowledge can be inferred.

An employer is not required to pay for time worked when the employer truly did not know, and had no reason to know, that the work was being performed.

The jury was also instructed on the role of representative testimony. Instruction No. 18 provided:

To establish Wal-Mart's knowledge of the alleged off-the-clock work, plaintiffs have put on testimony alleged to be representative of all of the plaintiffs in this case, to establish a pattern or practice of violations. In determining whether evidence of testifying plaintiffs is fairly representative, you should decide whether their experiences also happened to non-testifying plaintiffs. You should also decide if the witnesses that testified had the opportunity or ability to observe non-testifying plaintiffs and you should consider what the testifying witnesses observed.

You may consider such factors as the nature of the work involved, the working conditions, the relationships between employees and managers, and the detail and credibility of the testimony. While no exact number or percentage of the plaintiffs is required to testify, plaintiffs must present a sufficient number of representatives, which, when considered together with all of the other evidence presented in this case, establishes a pattern or practice.

Finally, the jury was instructed on the meaning of "pattern or practice." Instruction No. 19 provided:

In order for you to find a pattern or practice of violations, you must find that the alleged conduct involved widespread violations in the eighteen Wal-Mart stores at issue in the state of Oregon, during the relevant time period. A pattern is a regular mainly unvarying way of acting or doing. A practice is a frequent or usual action. Events which are isolated, sporadic or infrequent do not comprise a pattern or practice.

It is plaintiffs' burden to prove that the alleged violations occurred and that such violations were widespread. If you find that plaintiffs' evidence supports a reasonable inference that the alleged violations were widespread, you must consider whether Wal-Mart has rebutted that inference by producing evidence tending to negate the conclusion that any such violations occurred on a widespread basis. You must find that plaintiffs' evidence supports an inference that any such violations at issue occurred on a widespread basis and that Wal-Mart has failed to rebut that inference, in order to find that a pattern or practice is established.

These instructions taken together support the validity of the first jury's findings and show that no additional element of "causation" is needed to support the second jury's individual findings regarding the number of hours worked. The first jury returned its verdict after having been properly instructed regarding the appropriate level of management needed to impute knowledge to Wal-Mart, factors to consider in determining whether Wal-Mart had constructive knowledge, and how to determine if the testimony was representative. The jury determined that there was a pattern or practice of suffering or permitting off-the-clock work in the eighteen stores at issue during the relevant time period. This conclusion was supported by the evidence adduced at the first trial. To hold now that plaintiffs failed in their burden of proof in the second trial because each one of the plaintiffs did not show that the pattern or practice found "caused" his or her off-the-clock work would render the first trial meaningless. And to hold that such an element is necessary for proving FLSA violations in a collective action would result in few, if any, cases in which representative testimony could be used or an employer's knowledge shown by a pattern or practice. I deny Wal-Mart's motion for judgment as a matter of law based on a failure to prove causation.

II. Plaintiffs' Motion Regarding Penalties

Plaintiffs seek statutory penalties under Oregon wage and hour law based on the 2004 jury's finding that 83 out of the 108 claimants performed off-the-clock work while employed at Wal-Mart between 1994 and 1999. As discussed below, there are three main issues raised by plaintiffs' motion: 1) the applicable penalties for failure to pay wages upon termination, 2) the applicable penalties for failure to pay overtime, and 3) pre-judgment interest.

A. Termination Penalties

1. Plaintiffs Who Left On or Before December 31, 1999

Of the 83 plaintiffs at issue, 62 left Wal-Mart on or before December 31, 1999, and are therefore eligible pursuant to ORS 652.150 for a penalty based on Wal-Mart's failure to timely pay wages upon termination, in violation of ORS 652.140. Although Wal-Mart had originally taken the position that the amended 2002 ORS provision applies, which imposes notice requirements on the plaintiffs, Wal-Mart now concedes that the older version of the statute applies. Therefore, Wal-Mart concedes that the 62 claimants who left Wal-Mart's employ on or before December 31, 1999, are eligible for penalties. Under the statute, and as both parties appear to agree, penalty damages are capped at 30 days' wages.

Plaintiffs advance, and Wal-Mart does not oppose, the approach that where the jury failed to award specific hours in specific workweeks attached to the verdict forms (i.e., the hours awarded were "Other or Additional Hours"), the lowest applicable wage rate should apply. Additionally, where the jury found that a plaintiff performed off-the-clock work during both the combined federal and state law time period and the separate state law time period, and awarded those hours in the "Other or Additional Hours" category, the hours should be divided equally and the lowest wage rate in each of the relevant time periods should be used.

The only area of disagreement is what wage rate should be used in calculating any penalty awarded pursuant to ORS 652.150. Plaintiffs argue that the applicable wage rate is the employee's rate at the time of his or her termination. Wal-Mart argues that the wage rate to be used in the penalty calculation is the employee's hourly rate at the time the employee earned the wages.

The statute provides that "if an employer willfully fails to pay any wages or compensation of any employee whose employment ceases, . . . as a penalty for such non-payment, the wages or compensation of such employee shall continue from the due date thereof at the same hourly rate. . . ." ORS 652.150(1). The statute goes on to provide that "in no case shall such wages or compensation continue for more than 30 days from the due date."Id. It is this latter provision that I find supports plaintiffs' interpretation of the statute. The legislature's reference to "30 days from the due date" suggests that the due date is the date of termination. Therefore, the earlier requirement that the wages continue "from the due date thereof at the same hourly rate" means the hourly rate at the time of termination. If the legislature had intended the due date to refer to the date on which the wages were earned, this would suggest a penalty is in order for each time a plaintiff worked off-the-clock without pay throughout his or her employment, which is certainly not the theory Wal-Mart advances. The statute is by no means clear as it relates to off-the-clock work, but I find the best interpretation is that the rate each employee earned at the time of his or her termination must be used for the penalty calculation.

2. Plaintiffs Who Left After December 31, 1999

Plaintiffs seek termination penalties for a sub-set of ten claimants who were employed by Wal-Mart after December 31, 1999, but who left Wal-Mart's employ prior to filing a consent to join form. Wal-Mart argues that because the jury verdicts and the finding of willfulness in this case were limited to the time period of 1994 to 1999, Wal-Mart cannot be held liable for conduct that occurred after 1999, therefore it cannot be liable for termination penalties after 1999.

ORS 652.140 requires employers to pay "[a]ll wages earned and unpaid at the time of discharge or termination" within the time period specified in the statute. As note above, ORS 652.150 provides a penalty only "[i]f an employer willfully fails to pay any wages or compensation of any employee whose employment ceases, as provided in ORS 652.140. . . ." According to Wal-Mart, willfulness for purposes of ORS 652.150 refers to whether an employer willfully fails to pay wages when they become due upon an employee's termination. Wal-Mart notes that the court decided to limit the time period at issue to the years 1994 through 1999, as reflected in the 2002 jury's verdict. Because no willfulness finding exists for any time period during which these ten plaintiffs' employment actually ceased, Wal-Mart argues it cannot be liable for termination penalties for these individuals.

Plaintiffs argue that a plain reading of the statute does not require the willfulness to be temporally tied to the cessation of employment. Plaintiffs argue that ORS 652.150 merely uses its reference to ORS 652.140 to define the class of employees who might become entitled to a penalty. Thus, it states that a penalty will be owed whenever "an employer wilfully fails to pay," then it defines the class of protected employees as those "whose employment ceases." Plaintiffs argue that when read together the two jury verdicts conclude that these ten plaintiffs were not paid for all of their work and that Wal-Mart willfully failed to pay them for that work. It is these same wages, first earned from 1994 through 1999, that Wal-Mart failed to pay upon termination. According to plaintiffs, it would be illogical to conclude that a willful failure to pay wages when they first became due in 1998 or 1999, could still somehow end in a non-willful failure to pay when the employment terminated in a later year.

I agree with plaintiffs' interpretation of the statute and find that the willfulness requirement refers to the failure to pay and is not tied with the cessation of employment. I further note that in limiting the scope of the jury's findings for purposes of the verdict form, I was not addressing the issue that is presently before me. I conclude that the ten plaintiffs who left after December 31, 1999, are entitled to penalties.

B. Overtime Penalties

Plaintiffs seek penalties for plaintiffs for whom the jury found that Wal-Mart had not paid overtime in a given week within the state statute of limitations. ORS 653.261 requires employers to pay employees overtime wage rates of one and one-half times the regular rate of pay for hours worked in excess of 40 in a given workweek. ORS 653.055 provides in pertinent part that any employer who pays an employee less than the wages to which the employee is entitled under ORS 653.261 is liable for civil penalties provided in ORS 652.150.

The parties disagree on several issues related to this category of penalties. First, Wal-Mart argues that plaintiffs have not pleaded or otherwise stated a claim for overtime penalties under state law. Claim two of the pre-trial order ("PTO") states: "Wal-Mart has failed to pay for all of the time worked by Plaintiffs, including time-and-one-half for hours in excess of forty per week, in violation of Oregon statutory and regulatory law." PTO at 5. Although the claim alleges violations of the overtime laws, because it does not make reference to penalties for failure to pay overtime, Wal-Mart contends plaintiffs cannot now seek the penalties.

In response, plaintiffs note that the prayer for relief in their complaint requests civil penalties for violation of state laws, and they contend that the PTO at least implicitly raises a claim for penalties for this particular violation. Plaintiffs note that claim two in the PTO does not request any specific relief. Thus, plaintiffs believe that Wal-Mart cannot seriously contend that it did not understand plaintiffs were seeking some relief. Plaintiffs also note that Wal-Mart's defenses in the PTO include defenses on the issue of willfulness. Plaintiffs contend this shows the understanding that plaintiffs were seeking these penalties, as wilfulness would not otherwise be relevant. I conclude that plaintiffs have properly pleaded a request for overtime penalties.

The second area of disagreement between the parties relates to the statute of limitations. Of the plaintiffs for whom the jury found unpaid overtime hours, certain plaintiffs' claims would not be within the applicable two year statute of limitations. Plaintiffs contend that they are nevertheless entitled to overtime penalties because the statute of limitations was tolled from the time the suit was filed as a proposed class (June 30, 1998) to the time class certification was denied (December 1, 1999). See American Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974) (putative class members were permitted to intervene after class certification was denied; for purposes of statute of limitations, the Court excluded the time between when the case was filed and when certification was denied). If that time is excluded in this case, plaintiffs contend these plaintiffs fall within the applicable time period and are entitled to penalties for failure to pay overtime.

Wal-Mart argues that under the law of the case doctrine, the statute of limitations should not be tolled for these individuals. Wal-Mart relies on my 2002 pre-trial ruling that the 6-year statute of limitations for the straight time claims in this action will be measured from the date of filing of the consent to join form. I made the ruling prior to the first trial because of the case law establishing that the consent to join form was the appropriate measuring date for statute of limitations purposes. See e.g., Songu-Mbriwa v. Davis Memorial Goodwill Indus., 144 F.R.D. 1,2 (D.D.C. 1992). I acknowledge the pre-trial conference record excerpt cited by Wal-Mart wherein I stated that the consent to join form would be the statute of limitations date "for all claims." However, the statue of limitations issue as it related to excluding the tolling period for state law claims for which plaintiffs sought class certification was not directly before me at the time. To the extent that I made statements suggesting a broader ruling, I reverse my prior conclusion, as I believe this is the proper and fair result. Under American Pipe, I will toll the statute of limitations for the state law claims and exclude the time period between when the case was filed and when the motion for class certification was denied. Thus, those plaintiffs who would not otherwise be included will have claims for overtime penalties.

Finally, Wal-Mart argues that plaintiffs should not be allowed overtime penalties in addition to termination penalties because it would amount to double recovery. Plaintiffs rely on Cornier v. Paul Tulacz, 176 Or. App. 245 (2001), to support the conclusion that both penalties should be recovered. At issue inCornier were both the failure to pay overtime wages and the failure to pay accrued vacation time when the employee's employment ended. The Oregon Court of Appeals held that the plaintiff in that case was entitled to two penalties. When this issue came before me in another case, I rejected the plaintiffs' argument, which was similar to the argument plaintiffs advance in this case. I reasoned as follows:

Here, plaintiffs were fully paid at termination except for the disputed overtime wages. There was no separate component of their wages withheld, as in Cornier. There was only one type of employer misconduct. Consequently, I conclude that plaintiffs are only entitled to a single state statutory penalty.

Plaintiffs contend that recovering both penalties does not amount to double recovery for the same conduct. In this case, certain plaintiffs at issue were not paid overtime and also were not paid some straight time after the termination of the employment relationship. For all of these individuals, plaintiffs contend these were separate weeks and distinct violations — the failure to pay overtime during a given week gives rise to an overtime penalty, and the failure to make non-overtime payments upon termination gives rise to the termination penalty.

The facts of this case are slightly different than the facts of the Chaloupka case cited above. In Chaloupka, the only kind of wages withheld were the overtime wages; whereas in this case, the failure to pay overtime and the failure to pay straight time are arguably distinct issues. I believe plaintiffs raise good arguments on this point, but ultimately, I reach the same conclusion I reached in Chaloupka.

In Cornier, the Oregon Court of Appeals focused in part on when the alleged violation occurred:

[T]his case does not present an instance of double penalties for the same conduct, and we do not address that issue, because here the violation that occurred during employment was underpayment for overtime, while the violation at termination was nonpayment for accrued vacation. Plaintiff has asserted separate violations for separate acts of her employer.

Based on the above rulings, I ask the parties to attempt to resolve any remaining disputes as to which plaintiffs are entitled to overtime penalties. The parties shall submit their positions to the court if they cannot reach agreement.

C. Pre-Judgment Interest

Plaintiffs seek pre-judgment interest on the penalties at issue. Plaintiffs assert that their right to interest is derived from two sources. First, ORS 82.010(1)(a) provides: "(1)The rate of interest for the following transactions, if the parties have not otherwise agreed to a rate of interest, is nine percent per annum and is payable on: (a) All moneys after they become due. . . ." Second, ORS 652.120 provides: "(1) Every employer shall establish and maintain a regular payday, at which date all employees shall be paid the wages due and owing to them." Plaintiffs contend that the first ORS provision establishes that interest must be paid on all moneys after they become due, and the second statute establishes that each of the claimant's payments became due on their regular paydays.

Wal-Mart argues that pre-judgment interest is not applicable because the penalty provision at issue here, ORS 652.150, makes no reference to pre-judgment interest. Additionally, Wal-Mart cites Oregon cases that note that ORS 82.010(1)(a) is typically applicable only to breach of contract claims. Plaintiffs correctly note that other Oregon cases, including Thomas v. Senior and Disabled Services Div., 319 Or. 520, 524-29 (1994), allow interest in the context of a statutory, non-contract claim, where the statute in question did not explicitly authorize interest. Therefore, I reject Wal-Mart's arguments that the interest cannot be awarded because this is not a contract dispute or because the statute at issue does not explicitly provide for interest.

Wal-Mart also relies on Haret v. State Acc. Ins. Fund Corp., 72 Or. App. 668 (1985), which held that ORS 82.010 did not apply to the Oregon workers' compensation statute. I find the case to be distinguishable. In contrast to the Oregon Court of Appeals' reasoning that "the Workers Compensation Law is a complete statement of the parties' rights and obligations," Id. at 674, the wage and hour statutory provisions at issue here do not require claims to first be processed exclusively within an administrative agency, nor do they provide the only remedy for the employer for overpayment. Additionally, although not binding on the court, I find persuasive the numerous Oregon Bureau of Labor and Industries' findings in which the Commissioner ordered employers to pay interest on all unpaid and earned wages including penalties. I conclude that plaintiffs are entitled to pre-judgment interest on all penalty wages. I direct the parties to confer regarding the calculation of the pre-judgment interest and inform the court if they cannot reach agreement.

CONCLUSION

For the foregoing reasons, plaintiffs' Motion Regarding Penalties and Interest for 74 of the 82 Plaintiffs Whom the Jury Found to Have Worked Off-The-Clock (#746) is granted in part and defendant's Renewed Motion for Judgment as a Matter of Law (#756) is denied.