Labor and Employment

Costs and Attorney's Fees under the FLSA

The Fair Labor Standards Act (FLSA) sets minimum wage, overtime pay, recordkeeping and youth employment standards for employment subject to its provisions. Unless exempt, covered employees must be paid at least the minimum wage and not less than one and one-half times their regular rates of pay for overtime hours worked.

A variety of remedies may be available to aggrieved employees who prove violations of the FLSA in private lawsuits. Reasonable attorney's fees and costs are among such remedies. Under the FLSA, a prevailing or winning plaintiff's attorney automatically is entitled to attorney's fees from the defendant. The FLSA does not define the term "reasonable attorney's fees"; the amount of the award lies within the court's discretion. Such an award is not changed on appeal unless it is clearly excessive or insufficient.

Calculating Reasonable Attorney's Fee

To calculate a reasonable attorney's fee, the court typically multiplies the number of hours worked by a reasonable hourly rate. This product, commonly referred to as the "lodestar," should be calculated for hours spent on successful claims. The degree of a party's overall success is critical in determining the reasonableness of a fee award.

The lodestar figure may be adjusted upward or downward based on the following factors:

  • The time and labor required for prosecution of the claim
  • The novelty and difficulty of the issues presented
  • The skill required to perform the legal services properly
  • The preclusion of other employment by the attorney because of acceptance of the case
  • The customary fee for such services
  • The contingent nature of the fee, where applicable
  • The amount involved or the results obtained
  • The experience, reputation and ability of the attorney
  • The undesirability of the case
  • The awards obtained in other cases of a similar nature

Fee Enhancements

Fee enhancements are appropriate only in rare and exceptional circumstances and must be supported by specific evidence and detailed findings related to the complexity of issues and results obtained.

Contingency Fee Basis

Many FLSA lawyers will take FLSA cases on some variation of a "contingency fee." This usually means that the employees pay no legal fees unless and until they win the case, and then fees are based on a percentage of the amount recovered. However, employees may be responsible for court costs, such as filing fees, stenographic transcription fees and so forth. These may, or may not, be "fronted" by the attorneys, but employees are ultimately responsible for paying (or reimbursing) these expenses. Court costs are paid by the loser, so employees are responsible for these expenses only if they lose the case. Individual arrangements with particular lawyers may vary.

Questions for Your Attorney

  • Are employees obligated to pay the employer's legal fees if they lose the case?
  • How do employees pay their FLSA lawyers?
  • What actual financial costs or risks are there for me to bring an FLSA case?
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