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As an incentive to encourage attorneys to represent employees/plaintiffs, Oregon鈥檚 statutes generally require the court to award a prevailing plaintiff/ employee reasonable attorney fees incurred in prosecuting claims against employers.

Some statutes limit the possibility of an award of attorney fees solely to the plaintiff/ employee. See ORS 652.200: The court 鈥渟hall鈥� award attorney fees to a prevailing plaintiff/employee.

Other statutes, theoretically, permit an award of attorneys fees to a prevailing defendant/ employer. See ORS 652.230: The court 鈥渕ay鈥� award reasonable attorney fees incurred by a prevailing defendant/employer but only 鈥渋f the court determines that the plaintiff had no objectively reasonable basis for asserting a claim.鈥� The harsh reality is that prevailing employers never obtain an attorney fee award.

Well, make that almost never.

In Rogers v. RGIS LLP earlier this year, the Court of Appeals upheld an attorney fee award to a prevailing employer. The employee in the case brought claims against her former employer for alleged unpaid overtime wages, unpaid wages for rest and meal breaks, unpaid minimum wages, and late payment of final wages. At trial, the employee prevailed only on her claims for unpaid wages and the late payment of those wages, and she obtained a judgment of $2,630. The court awarded only $880 in attorney fees to the plaintiff (approximately one-third of the plaintiff鈥檚 damages) under ORS 652.200.

The employer successfully defended the employee鈥檚 other claims, for unpaid overtime, rest and meal breaks, and minimum wages under ORS 653. The employer then sought attorney fees as the prevailing party, pursuant to ORS 653.055(4), which states: 鈥淭he court may award reasonable attorney fees to the prevailing party in any action brought by an employee under this section.鈥� The court found that the employer had 鈥減revailed on all ORS chapter 653 claims鈥� and awarded $180,854.09 in attorney fees.

The plaintiff appealed, arguing she had 鈥減revailed鈥� in the case, so the employer was not entitled to fees. The Court of Appeals disagreed, holding that under ORS 20.077, 鈥渁ttorney fees are to be awarded on a claim-by-claim basis.鈥� Because the employee brought multiple statutory claims, and those statutory claims provided for attorney fees to the prevailing party, the trial court properly determined the prevailing party on each separate claim.

So, what can employers learn from this case? Employers should not count on the trial court to award any discretionary attorney fees when defending against employee claims. But employers also should not abandon all hope.

Jeff Brecht聽is an attorney with the Portland law firm of Sussman Shank LLP and is a member of its litigation and labor and employment law groups.聽Contact him at 503-227-1111 or [email protected].