State ex rel. Stevenson v. Youth Adventures

600 P.2d 880, 42 Or. App. 263, 1979 Ore. App. LEXIS 3256

• Court: Court of Appeals of Oregon
• Decided: September 24, 1979
• Docket: No. A7711-16006, CA 12688
• Status: Published

Opinions

SCHWAB, C. J.

The plaintiff Labor Commissioner brought this action as assignee of two former employes of the defendant employer alleging the failure of the employer to pay its assignor-employes required overtime wages. A jury returned a verdict in favor of the employer. The defendant moved for an award of attorney fees. The Labor Commissioner argued that there was no statutory authority for such fees. The trial court awarded defendant attorney fees. The Labor Commissioner appeals only on that issue. We conclude the defendant is not statutorily entitled to attorney fees.

The relevant statutes are complicated. ORS ch 652 governs claims for unpaid agreed wages. ORS ch 653 governs claims for unpaid minimum and overtime wages. In addition to authorizing an aggrieved employe to sue his employer, both ORS ch 652 and ch 653 authorize the Labor Commissioner to assert claims on behalf of aggrieved employes.

As to agreed wage claims, ORS 652.330(l)(b) provides:

"(1) The commissioner shall enforce ORS 652.310 to 652.405 and to that end he may:

« # * * ifc

"(b) Take assignments, in trust, of wage claims or judgments thereon, liens and other instruments of security for payment of wages for the assigning employes, spouse, parent or legal guardian, having a right to the wages of such employe. All such assignments shall run to the commissioner and his successor in office. The commissioner may sue employers on wage claims and other persons or property liable for any payment thereof thus assigned with the benefits and subject to existing laws applying to actions by employes for collection of wages. He is entitled to recover, in addition to other costs, such sum as the court or judge may adjudge reasonable as attorney’s fees. He may join in a single proceeding and in one cause of action any number of wage claims against the same employer. If the commissioner does not prevail in such action, he shall pay all costs and disbursements from the Bureau of Labor Account.”

This statute provides for an award of attorney fees to the Labor Commissioner if he prevails; it does not provide for an award of attorney fees to the defendant-employer if it prevails.

As to minimum/overtime wage claims, prior to the adoption of Oregon Laws 1977, ch 513, ORS 653.055(3) provided:

"The Labor Commissioner has the same powers and duties in connection with a wage claim based on ORS 653.010 to 653.261 [the minimum/overtime wage statutes] as he has under ORS 652.310 to 652.445 [the agreed-wage statutes].”

This statute did not define the procedures for the Labor Commissioner to assert minimum/overtime claims; it just said the procedure to assert them was the same as the procedure to assert agreed-wage claims. Then, as now, ORS 652.330(l)(b), governing agreed-wage claims, only authorized payment of a prevailing defendant’s "costs and disbursements.” So before 1977 there was no distinction between minimum/overtime wage claims and agreed-wage claims. A prevailing defendant was not entitled to attorney fees in either situation.

Oregon Laws 1977, ch 513, amended ORS 653.055(3) by adding the emphasized language:

"(3) The Labor Commissioner has the same powers and duties in connection with a wage claim based on ORS 653.010 to 653.261 as he has under ORS 652.310 to 652.445[.] and in addition he may, without the necessity of assignments of wage claims from employes, initiate suits against employers to enjoin future failures to pay required minimum wages or overtime pay and to require the payment of minimum wages and overtime pay due employes but not paid as of the time of the filing of suit. The Labor Commissioner is entitled to recover, in addition to other costs, such sum as the court or judge may adjudge reasonable as attorney fees. He may join in a single proceeding and in one cause of suit any number of wage claims against the same employer. If the commissioner does not prevail in such action, he shall pay all costs, disbursements and such sum as the court or judge may adjudge reasonable as attorney fees from the Bureau of Labor Account. "(Emphasis supplied.)

The question is: What is the "such action” referred to in the last sentence in which a prevailing defendant is entitled to attorney fees?

Defendant contends that "such action” refers to all of ORS 653.055(3), that is, that a prevailing defendant is entitled to attorney fees in all cases brought by the Labor Commissioner for minimum or overtime wages. The Labor Commissioner contends that "such actions” refers to the new proceeding created by Oregon Laws 1977, ch 513, that is, suits for equitable relief and actions for minimum/overtime wages brought without assignments from the affected employes.

Neither suggested construction is wholly rational. The defendant would have us hold that a prevailing defendant-employer: (1) is entitled to attorney fees when the Labor Commissioner asserts a claim for minimum/overtime wages; but (2) is not entitled to attorney fees when the Labor Commissioner asserts a claim for agreed wages. The Labor Commissioner’s position would result in a prevailing defendant-employer: (1) being allowed attorney fees if the Commissioner sued for minimum/overtime without assignments from the affected employes; but (2) not being allowed attorney fees if the Commissioner sued for minimum/overtime wages with assignments from the affected employes. Either approach results in at least somewhat discordant treatment of fundamentally similar situations.

While the language of the 1977 amendment is certainly not free from doubt, we conclude that it is more likely that when this language was before the legislature in bill form the reference to attorney fees for a prevailing defendant "in such action” was understood to mean the new causes of action created by the 1977 amendment: proceedings for injunctive relief and to recover minimum/overtime wages without assignments from the affected employes. The amendment thus did not change the pre-1977 law to the effect that a prevailing defendant was not entitled to attorney fees in either minimum/overtime wage cases or agreed wage cases in which the Labor Commissioner sued as assignee of the affected employes.

In this case, the Labor Commissioner sued as assignee of the affected employes. Therefore, defendant was not entitled to attorney fees.

Reversed and remanded.