The number of Fair Labor Standards Act (“FLSA”) wage & hour lawsuits in Florida was still the "hot ticket" in 2015. Many of my defense clients do not understand why their current and past employees file a wage and hour lawsuit - beside the obvious, they want money. Some of the lawsuits are filed because the employer really does owe the employee back wages – it happens. However, many “marginal” lawsuits are filed because of attorney’s fees. Yes, attorney fees.
The FLSA and the Florida Minimum Wage Act (“FMWA”) both have provisions for attorney’s fees for the prevailing plaintiff. Not the prevailing party, which would include the defendant/employer, but the prevailing plaintiff. This means that should the employee win, the employee gets his attorney’s fees paid by the employer. The attorney’s fees (and costs) can sometimes be more than what the employee estimated he was owed at the beginning of the lawsuit. This is the “meal” attorneys are looking to get fed. That is why it makes sense to get out early even if the case is marginal, or commit to seeing the matter through trial.
There is a little bit of a twist though. The FMWA, which started as Florida Constitutional Amendment (Art. X Sec. 24) mirrors the FLSA on the issue of “prevailing plaintiff” attorney’s fees. However, the Florida legislators changed the language of the Amendment to “prevailing party,” which would allow an employer who wins (or prevails) to collect attorney’s fees from the employee. But, how many minimum wage employees would an employer expect to be able to pay a 200-hour attorney’s fee bill? The employer might get a “judgment” but the chances of recovering attorney’s fees from an employee are not very likely.
Many employers believe the FLSA and the FMWA are unfair because they do not allow an employer to recover attorney fees if they should prevail. However, the laws were written to protect hourly wage employees who most likely will not have the resources to hire an attorney to prosecute their case. I dislike the idea of just paying an employee on a marginal claim. But, I dislike having to suggest the same thing to my client after he has paid me for 75 hours and now has to pay the employee and his attorney.
We represent employers and employees in wage and hour litigation throughout the state of Florida. Call us for a free consultation.