Who pays the lawyer in a California employment case?

Cost is one of the first worries for someone who has lost a job or been underpaid. In employment cases, California law often shifts attorney fees to the employer. This page explains the main fee rules and what a fee agreement with your own lawyer must say. It does not quote any fee: each arrangement depends on the case. For an overview of employee rights, see our employment law page.

How do attorney fees work in an employment case, step by step?

1. The consultation. You describe what happened, and the lawyer explains which claims may apply and how fees would work for them.
2. The written agreement. A contingency agreement must be in writing and signed by both of you, and you receive a signed copy when it is made (Business and Professions Code section 6147(a)).
3. Costs. The agreement must say how case costs and expenses affect the fee and your recovery (section 6147(a)(2)).
4. The fee request in the case. For many wage claims, fees are available only if a party asks for them when the case starts (Labor Code section 218.5).
5. A fee award, if the employee wins. Depending on the statute, the court must or may order the employer to pay the employee's reasonable attorney fees and costs.
6. The end of the case. The fee is paid as the agreement provides, so ask early how a fee award against the employer fits into it.

Which laws make the employer pay my attorney fees?

Two details matter. First, for wage claims other than minimum wage and overtime, section 218.5 only applies if a party requests fees at the start of the case, and it does not apply to claims already covered by section 1194. Second, under FEHA the award is in the court's discretion, and the protection for employees applies even if the employee turned down a settlement offer under Code of Civil Procedure section 998, as section 12965(c)(6) says expressly.

Our overview of wage violation penalties in California shows the other amounts an employer can owe on top of back pay.

Do I pay a lawyer to file a Labor Commissioner wage claim?

A worker can file a wage claim with the Labor Commissioner directly, following the steps on the office's How to File a Wage Claim page. If the employer appeals an award to the superior court and does not reduce it to zero, section 98.2(c) requires the court to make the employer pay the employee's reasonable attorney fees and costs on the appeal. Our comparison of a Labor Commissioner wage claim and a lawsuit explains when each route makes sense. Workers in the Glendale area can read how a claim moves through the Labor Commissioner's Los Angeles-area offices, including the free representation the office may offer a low-income worker when an employer appeals.

Could I have to pay the employer's fees if I lose?

In most employment claims the risk is limited, but it is not zero. Under FEHA, a winning employer can recover its fees and costs only if the court finds the case was frivolous, unreasonable or groundless when it was filed, or that the employee kept litigating after it clearly became so (Gov. Code 12965(c)(6)). For wage claims covered by section 218.5, an employer that wins recovers fees only if the court finds the employee sued in bad faith. The rule in section 98.2(c) cuts both ways, though: it applies to whichever party appeals a Labor Commissioner decision and loses. An employee who appeals is treated as successful if the court awards any amount above zero, but an employee who appeals and recovers nothing can be charged the employer's reasonable fees and costs on the appeal. That is worth weighing before appealing a decision you disagree with.

A similar limit applies to a Labor Commissioner retaliation complaint. If the Labor Commissioner finds no violation, it may direct the complainant to pay reasonable attorney fees for any hearing only if it finds the complaint was frivolous, unreasonable, groundless and brought in bad faith (Labor Code section 98.7(d)(1)). If it finds a violation, its order can include the employee's reasonable attorney fees for that hearing (section 98.7(c)(1)).

What is a contingency fee, and what must the agreement say?

Many employment cases are handled on a contingency basis, which means the attorney fee comes out of a recovery rather than from money paid up front. California's Business and Professions Code section 6147 sets the rules for those agreements. The contract must be in writing, signed by both lawyer and client, with a signed copy given to the client when it is made, and it must state:

• the contingency fee rate the client and attorney agreed on;
• how case costs and expenses will affect the fee and the client's recovery;
• to what extent, if any, the client could have to pay the attorney for related matters the agreement does not cover;
• for most claims, that the fee is not set by law but is negotiable between attorney and client.

If a contingency agreement does not comply, section 6147(b) makes it voidable at the client's option, and the attorney is then entitled to a reasonable fee. Ask how any fees the court orders the employer to pay will be handled under your agreement, so there are no surprises at the end.

Other arrangements, such as hourly or flat fees, fall under Business and Professions Code section 6148. When the total expense to the client is reasonably expected to pass the threshold in that section, the contract must be in writing and must state the basis of compensation, the general nature of the services and each side's responsibilities. Bills must clearly state their basis, and the client can ask for one.

What changes the answer?

Who pays depends less on the size of the case than on the statute behind each claim and on the choices made along the way.

Which wages are unpaid

Minimum wage and overtime claims carry one-way fees for the employee under section 1194. Other wage claims fall under section 218.5, which needs a request at the start and protects the employee unless the suit was in bad faith. Our page on how overtime is calculated in California helps sort which kind of claim you have.

Whether the claim is about discrimination or retaliation

FEHA fee awards are discretionary under section 12965(c)(6), and they come after the Civil Rights Department step; our guide to filing a Civil Rights Department complaint explains it. Whistleblower claims have their own fee provision in section 1102.5(j), described on our page about what a California whistleblower has to prove.

Whether a settlement offer was rejected

Section 12965(c)(6) says a FEHA employee who loses is not charged the employer's fees and costs under Code of Civil Procedure section 998 unless the frivolous-case standard is met. That express protection is written into the FEHA section; ask how any offer interacts with the fee rules for your other claims.

Whether the dispute is about a noncompete

An employee who prevails against an employer that tries to enforce a void noncompete recovers reasonable attorney fees and costs under section 16600.5(e). Our page on whether a noncompete is enforceable in California covers the rule.

Whether your agreement complies

A contingency agreement that leaves out a required term is voidable at the client's option under section 6147(b), and an agreement covered by section 6148 is voidable under section 6148(c). In either case the attorney is entitled to a reasonable fee.

A worked example

For example, imagine a hypothetical delivery driver in Glendale who believes he is owed unpaid overtime and was never reimbursed for using his own phone for work. He worries that a lawyer will cost more than the wages at stake.

The overtime claim falls under section 1194, so if he wins in court, the employer pays his reasonable attorney fees and costs, and the employer cannot shift its own fees to him under that section. The expense claim falls under section 2802, where attorney fees spent enforcing the right count as part of what is owed. Before signing a contingency agreement, he checks that it states the rate, how costs are handled, and that the fee is negotiable, and he asks how any fee award would be treated. None of this tells him whether he will win; it tells him how the fee rules work if he does.

Common mistakes about attorney fees

• Assuming a small claim is not worth pursuing. Several statutes above make the employer pay a winning employee's fees, which changes the math for a modest claim.
• Signing an agreement without a copy. Section 6147(a) requires a signed duplicate for the client at the time it is made.
• Not asking how a fee award is handled. The agreement should make clear how fees the employer pays relate to the contingency fee.
• Appealing a Labor Commissioner decision without weighing section 98.2(c). An appealing employee who recovers nothing can owe the employer's fees on the appeal.
• Forgetting the request at the start. Under section 218.5, fees for many wage claims depend on asking for them when the case begins.

What to do this week

1. List each claim you think you have: overtime, other wages, pay stubs, expenses, discrimination or retaliation.
2. Find the fee rule for each one in the table above.
3. Gather pay records; our page on getting your personnel file and payroll records explains how to request them.
4. Write down your questions about fees, costs and fee awards before the consultation.
5. Read any proposed agreement for the terms section 6147 requires, and keep a signed copy.

Frequently asked questions

Is the contingency percentage set by law?

For most employment claims, no. Section 6147(a)(4) requires the agreement to state that the fee is not set by law and is negotiable between attorney and client.

Do expert witness fees count in a FEHA case?

They can. Section 12965(c)(6) lets the court award a prevailing party reasonable attorney fees and costs, including expert witness fees, subject to the stricter standard for employers.

What if my lawyer never gave me a written agreement?

A contingency or other covered agreement that does not comply is voidable at the client's option under section 6147(b) or 6148(c), and the attorney is then entitled to a reasonable fee rather than the contract fee.

Can I get a bill showing how fees and costs were calculated?

For agreements under section 6148, bills must state the amount, rate or other basis for fees and identify costs, and the attorney must provide a bill on request within the time that section sets.

Does the employer pay my fees if I win at the Labor Commissioner?

In the Labor Commissioner's process, the fee rules on this page come into play on an appeal under section 98.2(c) and in retaliation determinations under section 98.7(c)(1). A worker can also file a wage claim without a lawyer.

How can Glendale Law help?

Many employment statutes allow a prevailing employee to recover attorney fees from the employer. We are happy to explain how fees would work in your specific situation during a consultation. Our article on questions to ask before hiring an attorney can help you prepare. Call (818) 244-9000 or request a consultation.