Updated on April 19th, 2023
An attorney’s fees are often greater than the settlement amount for the actual grievance. If an employee wins their case, the employer will often have to pay for the employee’s attorney fees.
When are attorney’s fees recoverable in wage and hour cases? If a defendant wins their case, can they recover fees?
Under the Labor Code, claims for non-payment of wages or overtime premiums will be assessed on a case by case basis as to whether attorney’s fees are to be covered. An employee can only recover attorney’s fees if they win the case. An employer can only recover attorney’s fees if the claim was made in bad faith.
An employee’s attorney’s fees cannot be covered in a missed meal or rest break claim.
For meal or rest break claims, neither party can claim attorney’s fees. The court has determined that the “injury” is a failure to provide breaks rather than a failure to provide a wage or premium pay; therefore, attorney’s fees cannot be claimed.
An employee cannot recover attorney’s fees just because they won waiting time penalties
Waiting time penalties are penalties and not wages. Therefore, employees cannot claim attorney’s fees as this is a penalty rather than a failure to pay wages. The court will not award attorney’s fees to either party. Attorney’s fees can only be claimed as a result of an action for wages.
Which party is entitled to attorney’s fees if the verdict is a split decision and the employee does not win all of their claims?
If neither party wins a “complete victory” for all their claims, the court has the discretion to decide if a particular party prevailed enough to justify attorney’s fees being awarded. In some cases, neither party may have prevailed enough to justify an award of attorney’s fees. The court must consider the difference between the rewarded relief and the value of the claims and their litigation objectives.
The Employee’s attorney’s fees may be recovered to reimburse their expenses.
Under Labor Code section 2802, employers must reimburse all necessary losses or expenditures the employee incurs as a direct result of their job. This covers personal cellphone expenses, mileage, and out-of-pocket expenses. Attorney’s fees the employee incurs by enforcing their rights under employment law can be considered under this code.
Brad Nakase, Attorney
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