Who pays the Attorney?
It seems only right that when you take someone to court, that they should have to pay your attorney’s fees when you win, right? Well, in most cases, the answer is actually no. America is quite different from most other countries because in most cases, each party has to pay their own attorney whether they win or lose. It’s called the American Rule. But, there are certain instances that are exceptions to the American Rule. Some of these exceptions come because a contract between the parties calls for the prevailing party to be entitled to attorneys’ fees, but even more come because a statute authorizes the prevailing party to shift their attorneys’ fees onto the losing party.
Washington has one of these statutes which provides: “In any action in which any person is successful in recovering judgment for wages or salary owed to him or her, reasonable attorney's fees, in an amount to be determined by the court, shall be assessed against said employer or former employer....” RCW 49.48.030. That would make it seem like any time a lawsuit is filed against an employer or a former employer, that the employee’s fees would be paid by the employer because wages and salary are at the heart of employment lawsuits. However, the reality is far more nuanced than that.
On the one hand, the statute is universally acknowledged to be read liberally, which means courts apply the terms “any action” and “any person” broadly. Courts have even been held that attorneys’ fees should be shifted under the statute “whenever a judgment is obtained for any type of compensation due by reason of employment.” Bates v. City of Richland, 112 Wn. App. 919, 940, 51 P.3d 816 (Div. 3 2002). But on the other hand, a greater number of Washington courts have taken the view that this attorneys’ fee statute is applicable where the defendant (employer) owed or would have owed hourly wages or salary to the plaintiff (employee). This includes cases of wage theft, breach of employment contracts, wrongful termination, and constructive discharge. But it does not include cases of negligence, interference with a business expectancy, or cases with less defined damages. The bright line is the ability to point to specific times that were or would have been worked, specific wages or salary that should have or would have been owing to the employee, and proving the employer’s liability for failing to pay. If the judge or jury only award lost income, but do not specifically identify that lost income as being wages that should have or would have been paid by the employer, the court will not award attorneys’ fees.
The bottom line is that an employer might be responsible for paying for their employee’s attorneys’ fees, but only in very specific circumstances where the employee can prove that they would have been entitled to actual wages if it weren’t for the employer’s bad deeds.