Colorado Wage Claims – attorney fees

Posted by: Jul 10, 2014By Brian Stutheit

In a decision announced July 2014 the Colorado Court of Appeals held that a prevailing employee (one who wins her wage claim) is presumptively entitled to attorney fees from the employer as part of the wage award under the Colorado Wage Claim Act (CWCA). The case is Lester v. The Career Building Academy. The Court said the goal of the CWCA is “to make the plaintiff whole.” A winning employee cannot be made whole unless he or she gets attorney fees.

An employer that wins a wage claim lawsuit might also get attorney fees awarded, but that is not as certain as an award for a winning employee. Before a winning employer gets attorney fees, the court is supposed to consider ten factors. Those factors are: (1) the scope and history of the litigation; (2) the ability of the employee to pay an award of fees; (3) the relative hardship to the employee of an award of fees; (3) the ability of the employer to absorb the fees it incurred; (5) whether an award of fees will deter others from acting in similar circumstances; (6) the relative merits of the parties’ respective positions in the litigation; (7) whether the employee’s claim was frivolous, unreasonable, or groundless; (8) whether the employee acted in bad faith; (9) whether the unsuccessful claim was based on a good faith attempt to resolve a significant legal question under the CWCA; and (10) the significance of the claim under the CWCA.

Unlike a prevailing employer, a prevailing employee is presumed to be entitled to attorney fees under the CWCA. The employer must prove why the employee should not get attorney fees. Though the presumption is supposed to be difficult to rebut, the losing employer may do so by showing that “special circumstances would render an award of attorney fees unjust.” Special circumstances, though unlikely to exist, may arise when an employee brings a suit for purposes of delay, or in bad faith; or seeks to harass, embarrass, or abuse another party or the court. Conversely, special circumstances do not exist simply because the defendant is shown to have acted in good faith, the employer is the government, the employer is non-profit, or the plaintiff is capable of paying for his or her own attorney fees due to his or her financial resources.