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Letters to the Editor – 7/25/11

The Daily Record’s July 19, 2011 article regarding a settlement awarding attorney’s fees in a case involving a tavern owner’s failure to properly pay low-wage restaurant employees was misleading and largely one-sided. More disturbing, an earlier, April 24 article contained similar misconceptions.

Combined, these articles miss the point of both the Fair Labor Standards Act (FLSA) and the role of attorney’s fees in protecting vulnerable workers from illegal wage theft.  Contrary to the suggestions made in the two articles, the tavern owner profiled clearly violated his employees’ FLSA rights, and the attorney fees provisions of that statute are essential to ensuring that even low-wage workers with relatively small claims can enforce their rights.

Thus, rather than lament the plight of the employer who violated the law and cast aspersions on the attorney who sought to ensure that the workers were paid, we should vigilantly enforce the bedrock minimum protections provided by the FLSA and appreciate the importance of attorney’s fees in vindicating the rights of the most vulnerable.

It should come as no surprise that the attorneys’ fees in cases involving low-wage workers are often significantly higher than the workers’ recovery. Low-wage workers tend to have small claims by virtue of their limited incomes.

Indeed, these workers often have trouble finding counsel willing to pursue their claims because attorneys, particularly solo practitioners or small firm attorneys, cannot afford to take cases on contingency where the potential recovery is so limited. It is precisely this lack of access to justice that the attorneys’ fees provisions of the FLSA and other fee-shifting statutes were designed to address.

Paying attorneys a reasonable hourly rate for a reasonable number of hours worked promotes FLSA enforcement by increasing the likeliood that victims of wage theft will be able to obtain competent legal counsel. After all, despite the vast difference in dollar amounts at issue, it could take as long to draft a complaint, engage in discovery, or conduct a trial for a low-wage worker as for a highly-paid CEO.

For that reason, Maryland state courts have repeatedly noted that proportionality between the client’s recovery and the attorney’s fee due plays no role in the determination of attorneys’ fee awards.  Friolo v. Frankel, 373 Md. 501, 528 (2003); Stevenson v. Branch Banking & Trust Corp., 159 Md. App. 620, 665 (2004).

As the Maryland Court of Appeals has recognized, basing attorneys’ fees on proportionality would “frustrate the very purpose of the statute” by precluding low-wage workers and all workers with small monetary claims from enforcing their statutory rights. Friolo. at 528.

Sally Dworak-Fisher, Attorney

Workplace Justice Project

Public Justice Center, Inc.