Best Ohio Employment Discrimination Lawyer Reply: Can I make my employer pay my attorneys' fees? What can I do if I don’t have the money to pay an attorney to sue my job for wrongful termination? Why should I have to pay to file a race discrimination lawsuit against my former employer?
Let’s start with the basics. Most employment law lawyers will charge an hourly fee to represent employees in employment discrimination, sexual harassment, wrongful termination, or wage and hour claims. These employment attorneys will then require these recently fired employees to hand over part of their savings as a retainer that the attorney will hold in their trust account and bill against. Some attorneys are even worse, they will take a contingent fee on top of an hourly rate. Most employment lawyers will actually charge a significant fee just to meet with them. We just heard that one Cleveland employment lawyer is charging a whopping $1,200 initial consultation fee no matter if she takes the case or not! Most fired employees that have been subjected to harassment and discrimination by their boss or manager think this is outrageous. We agree.
At The Spitz Law Firm, the initial consultation is free, no matter what. After that, if we take the case, our attorneys will get paid on a contingency fee basis – that means we only get paid if you get paid. Our clients don’t have to worry about us padding the bill or taking extra depositions just to squeeze more money out of our clients – even if you end up getting nothing.
Even though our attorneys wait to get our fees until a settlement or recovery on a verdict, many of our clients still wonder why they have to pay their own fees instead of having their employer pay them. In this regard, many of the wrongfully terminated employees who come to see our employment discrimination attorneys are surprised to learn that, as great as their case may be, they are not automatically entitled to an award of attorney fees if they win their case against their former employer. As good as our employment law attorneys are at obtaining great settlements and verdicts for our clients, there is nothing they can do to force an employer to pay these fees in most cases, especially as part of a settlement. This means that the client will end up paying their own attorneys fees out of the settlement. This sounds unfair! But, what happens if your pipes burst in your kitchen? It isn’t your fault, but you still have to pay the plumber.
That said, there are a few cases in which a prevailing plaintiff is entitled to attorney’s fees. These cases include claims arising out of violations of the Family and Medical Leave Act (“FMLA“) violations of the Fair Labor Standards Act (“FLSA“), Workers’ Compensation retaliation, and Whistleblower retaliation claims. Likewise, certain statutes allow a court to award attorney’s fees at its discretion, such as age discrimination under the Age Discrimination in Employment Act (“ADEA“), disability discrimination under the Americans with Disabilities Act (“ADA“), and Title VII of the Civil Rights Act of 1964, which makes it unlawful for employers to discriminate against employees based on their race/color, religion, gender/sex, and national origin. While the fee-shifting statutes of the FMLA, FLSA, and Workers’ Compensation Statutes make the payment of attorneys’ fees mandatory upon a verdict for the employee, the award of attorneys’ fees under Title VII, the ADEA, and the ADA is discretionary. Discretionary means that each court gets to decide whether to award fees on a case by case basis.
On the flip side, many employers think that they should get their attorneys’ fees paid for if they prevail. However, only in extremely rare cases, can an employer obtain attorneys’ fees against an employee who brings frivolous claims. This is more than just losing; the employer must show that the claims were “frivolous, unreasonable or without foundation.” This is a hard burden.
Why all the fuss about attorneys’ fees? This can add up to a lot of money. For example, the United States District Court, District of Nebraska, recently awarded a plaintiff in an employment discrimination case $132,198.80 in attorneys’ fees! In Tramp v. Associated Underwriters, Inc., Tramp, a former employee of Associated Underwriters filed a charge with the Equal Employment Opportunity Commission (“EEOC“) against her former employer based on age and disability. After Tramp received her right to sue letter, she engaged Weis as her attorney. In her complaint she alleged harassment, retaliation, and termination based on age, race, disability, and sex.
Associated Underwriters moved for summary judgment, but attorney Weis did not follow the local rules and lost. Tramp appealed, and the Eighth Circuit Court of Appeals reversed and remanded – i.e. they sent it back to the trial court for a do-over. Tramp won on her ADEA retaliation claim, and the jury awarded her $128,680.78 in damages. Because the jury determined that Associated Underwriters’ conduct was willful, the court awarded Tramp attorneys’ fees. However, the court did not just take the attorney’s bill and pay it. Instead, when it comes to awarding attorneys’ fees the court looks at several factors:
“The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate,” although a district court has discretion to adjust the fee to account for other considerations, such as the nature of the results obtained. “[T]he fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.”
Miller v. Dugan, 764 F.3d 826, 830–31 (8th Cir.2014) (internal citations omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 & 437 (1983)).
In Tramp’s case, the court adjusted Weis’ hours downward for several reasons. First, the appeal and second trial preparation were caused by Weis not following the Court’s local rules in responding to a motion for summary judgment. Also, Weis’ hours were reduced to reflect the proportion of time devoted to claims on which Tramp did not prevail. Finally, Weis hours were reduced to eliminate any time the attorney billed for clerical functions. After all of that, the trial court held: “Tramp’s attorney achieved an excellent result on his client’s behalf, and she should be awarded an attorney’s fee in the amount of $132,198.80, as well as costs in the amount of $6,522.12.” But, wait you say, the attorney fees are more than the underlying award against the employer on the age discrimination claim! Yes, attorneys fees can be much more than the actual award.
But, there is more. Don’t forget that the employer had to spend on its own employment lawyers. Per defense attorney John Hyman’s Ohio Employer’s Law Blog, he estimated that it costs employers a lot to defend the case:
The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000. If an employer loses summary judgment (which, much more often than not, is the case), the employer can expect to spend a total of $175,000 to $250,000 to take a case to a jury verdict at trial.
A representative study of 446 closed claims reported by small-to-medium-sized enterprises (SMEs) with fewer than 500 employees showed that 19% of employment charges resulted in defense and settlement costs averaging a total of $125,000.
Going back to Tramp, let’s remember that the case not only went to trial, but also went through a costly appeal. Therefore, it is safe to assume an employer’s defense cost at least at the $250,000 mark. Adding that to the costs and fees awarded to the employee’s lawyers, and the employer got hit with a $388,720.92 tab to pay both sets of lawyers to try and avoid $132,198.80 in damages, which it had to pay anyway. Had the case settled, the employer probably would have avoided paying for a very large percentage of attorneys fees.
If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at (216) 291-4744. The Spitz Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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