Awarding Attorney Fees in Employment Cases

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 What is an Employee?

According to the Fair Labor Standards Act (FLSA) and the Internal Revenue Code (IRC), there are several different ways to classify employees. Federal laws divide employees into two main categories of employment, employees and independent contractors.

Examples of the different types of employment which a worker’s job may be classified as may include:

  • Full time or part time employment;
  • Seasonal or temporary employment;
  • Independent contractors;
  • Freelancers;
  • Consultants; and
  • Temporary workers. It is important to note that this type of employment differs from that of a worker who is considered to be a temporary employee.

It is important for both the employer and the employee to know which type of employer that the worker falls under. The employee will receive different benefits and have different rights based on their employment type. It may also affect the tasks the employer will be legally obligated to do, such as withholding taxes.

What is an Employment Lawsuit?

Employment law is a term used to describe a range of legal issues which arise in connection with employees, employers, and safety conditions in a workplace. For example, certain employment laws may apply to a case which involves employment discrimination while others may be used to provide guidance when drafting company policies or employee handbooks.

The main purpose of employment laws is to protect all individuals who are part of the workplace. This may includes steps such as:

  • Establishing protections for employees in disputes against colleagues, employers, or a company;
  • Ensuring that a business does not discriminate against prospective job candidates or current employees during employment processes, such as:
    • Interviewing;
    • Hiring;
    • Promoting; and
    • Termination;
  • Granting certain rights to individuals who are self-employed and considered as independent contractors;
  • Ensuring that volunteers and interns do not suffer from sexual harassment, discrimination, or retaliation in the workplace; and
  • Many other topics which may affect employment rights.

It is important to note that employment laws can vary widely by jurisdiction. Therefore, rights which one state may protect may not be available as protection under the laws of another state. It is also important to note that some issues may be governed by both state and federal employment laws, such as pregnancy leave.

There are issues which may arise within many subcategories of employment law, some of which may lead to a lawsuit. An employment lawsuit is a type of lawsuit that often involves employment discrimination on the basis of certain characteristics, such as:

  • Race;
  • Religion;
  • Gender;
  • National origin;
  • Age;
  • Sex; or
  • Disability.

Pursuant to the employment discrimination law Title VII of the Civil Rights Act of 1964, known as Title VII, it is illegal for employers to discriminate against currently employees or prospective job candidates on the basis of the characteristics listed above.

If an employer makes a decision regarding the hiring, firing, or promoting of an employee based on one of those protected traits, then the employee may have a claim for employment discrimination. There are also circumstances in which a prospective job candidate may bring a discriminaiton lawsuit against an employer that discriminates in their job description stating that they will only hire persons with certain characteristics.

What are Attorney’s Fees?

In the United States, the default rule regarding attorney’s fees is that each party to a lawsuit pays their own attorney’s fees. This is referred to as the American rule on attorney fees. This is because, in many other countries, the losing party pays the winning party’s attorney’s fees.

There are, however, some exceptions to this rule. For example, a state statute which applies to a case may state another rule regarding attorney’s fees. In addition, if the parties to a lawsuit previously entered into a contract which specified another rule for the payment of attorney’s fees, that contract will prevail.

There are state and federal statutes which may override the default American rule. These statutes are typically intended to further the interests of justice when it comes to attorney’s fees. For example, a plaintiff can often recover their attorney’s fees in malpractice cases.

Employment lawyers can handle numerous legal issues related to employment, which may include:

What Laws Govern Awarding Attorney’s Fees?

Federal legislation which addresses employment law includes:

These laws include provisions which are known as fee shifting provisions that award attorney’s fees to the individual who was discriminated against. Pursuant to these statutes, winning attorneys are dubbed private attorney generals who are charged with enforcing the rights of the public.

Are There any Restrictions on the Award of Fees?

The Supreme Court has held that winning employees are not entitled to attorney’s fees without obtaining a final judgment on the matter. The reasoning behind this practice is that public policy encourages employers to voluntarily change their practices without fear of penalty.

In an employment case in state court, an award of attorney’s fees depends on state statutes. The general rule is that attorney’s fees cannot be awarded absent statutory authority.

State hearings officers and human rights referees may or may not be granted the authority for awarding attorney’s fees in employment discrimination statutes, depending on the law of the state. If the statute does not address the issue, it is up to the court to interpret the statute.

How are Fees Calculated?

Once a court determines that an award of attorney’s fees is appropriate, the calculation of the actual amount depends on several factors, including:

  • The time, labor, and skill of the attorney;
  • The novelty or difficulty of the issues in the case;
  • The giving up of other work; and
  • The usual fees for employment cases.

The fees for an employment lawyer vary greatly and depend on many factors which are related to the circumstances of the case, the skills of the lawyer, and the location. There are three types of fee schedules attorneys will use when billing for their services, including:

  • Hourly rates;
  • Contingency fees; and
  • Flat fees.

It is common for attorneys to charge an hourly rate for handling employment cases. The average hourly cost for a lawyer’s services is $100 to $400 per hour. It is important to note, however, that some attorneys may charge as much as $1,000 per hour.

The type of representation is a large factor in the cost of the attorney. The more complicated the case, the more likely the cost will rise. This also applies if a simple matter is complicated by an aggravating factor or circumstance.

It is important to be aware that there are other costs which may be associated with employment lawsuits, especially for an employer. If the employer is does not prevail in their case, they may be required to pay:

  • Their attorney’s fees;
  • The employee’s attorney’s fees; and
  • A settlement amount to the employee.

The amount that is awarded to an employee may increase if they file their case in federal court.

Should I Contact an Attorney for an Employment Case?

It is important to have the assistance of an contract attorney for any employment issues you may be facing. Your attorney can evaluate your situation, determine whether an award of attorney’s fees is permitted, and assist you in obtaining those fees.


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