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Bill would prevent employers from recovering attorney fees in wage disputes

Oregon lawmakers are considering a bills changing the rules for wage disputes.

EO MEDIA GROUP - Oregon lawmakers are considering a bill that would prevent employers from recovering legal fees when they prevail in wage disputes, and would allow claimants to file liens against their employer's property before winning judgment.SALEM — Oregon employers would be stripped of the ability to recoup attorney fees if they win a wage and hour lawsuit under a proposed bill before state lawmakers, while another would allow claimants to file liens on their employer's property before winning a judgment.

Only employees who file and win such cases would be entitled to attorney fees under House Bill 2169, which is being considered by the House Committee on Business and Labor.

Currently, either workers or employers can recover such costs if they win legal disputes over wage and hour claims.

Proponents of HB 2169 argue the current system effectively prevents workers from filing lawsuits when employers have paid less than the minimum wage or made improper wage deductions.

"It serves as a real deterrent for low-asset households to proceed with legitimate claims," said Michael Dale, executive director of the Northwest Workers' Justice Project, during a Feb. 13 committee hearing.

Judges would still retain the right to penalize plaintiffs and their lawyers for cases that are deemed frivolous, Dale said. "I think it balances out."

Attorneys who represent workers in labor disputes said their clients are typically unwilling to risk paying tens of thousands of dollars in attorney fees over disputes involving several hundred dollars in wages.

"It guarantees bankruptcy for the individual," said attorney David Schuck.

Opponents of HB 2169 argue the law should remain impartial as to who can recoup attorney fees in wage and hour lawsuits.

"We don't think Oregon law should stack the deck against one side or the other," said Anthony Smith, state director for the National Federation of Independent Business.

Tim Bernasek, an attorney representing the Oregon Farm Bureau, said judges ultimately decide whether such awards are appropriate, so workers don't necessarily have to pay the opposing side's attorney fees when they lose a dispute.

The prospect of being liable for attorney fees has a "sobering effect" on both parties in such disputes, Bernasek said. "It's important to keep that balance."

Representatives of Oregon's business community testified they were also troubled by other proposals aimed at strengthening the position of workers in litigation against employers.

"Wage theft is already illegal and none of the bills before you make it any more illegal," said Betsy Earls, vice president of Associated Oregon Industries.

Under House Bill 2180, workers who file a complaint over unpaid wages can file a lien against their employer's property.

Supporters of HB 2180 say the change is necessary because companies can transfer assets or change their names, preventing employees from collecting unpaid wages even when they've won court judgments.

Opponents of the bill question its fairness, since a lien can impede the ability to sell property, hurt a company's creditworthiness and otherwise disrupt business transactions, even if the wage claim is unfounded.

"The due process concerns are significant," said Bernasek.

Similarly, under House Bill 2181, if a worker is fired within 90 days of filing a wage claim, the employer faces the "rebuttable presumption" that the termination was intended as retaliation.

According to proponents, this revision levels the playing field.

"Proving retaliation is very difficult," said Dale. "You have to get in someone's head based on something they did in the past."

Critics of HB 2181 argue it's just as difficult for employers to prove they were not retaliating against workers.

"You're telling me I'm guilty until I prove I'm innocent," said Smith.