Hours

ORS 652.200
Attorney fee in action for wages


(1)

In any action for the collection of any order, check, memorandum or other instrument of indebtedness referred to in ORS 652.110 (Method of paying employees), if it is shown that the order, check, memorandum or other instrument of indebtedness was not paid for a period of 48 hours, excluding Saturdays, Sundays and holidays, after presentation and demand for the payment thereof, the court shall, upon entering judgment for the plaintiff, include in the judgment, in addition to the costs and disbursements otherwise prescribed by statute, a reasonable sum for attorney fees at trial and on appeal for prosecuting the action, unless it appears that the employee has willfully violated the contract of employment.

(2)

In any action for the collection of wages, if it is shown that the wages were not paid for a period of 48 hours, excluding Saturdays, Sundays and holidays, after the wages became due and payable, the court shall, upon entering judgment for the plaintiff, include in the judgment, in addition to the costs and disbursements otherwise prescribed by statute, a reasonable sum for attorney fees at trial and on appeal for prosecuting the action, unless it appears that the employee has willfully violated the contract of employment or unless the court finds that the plaintiff’s attorney unreasonably failed to give written notice of the wage claim to the employer before filing the action. [Amended by 1957 c.242 §2; 1981 c.897 §86; 2001 c.279 §1; 2007 c.546 §2]

Notes of Decisions

"Wages," as used in this section, includes commissions on sales. Hekker v. Sabre Constr. Co., 265 Or 552, 510 P2d 347 (1973)

Where bank took control of company's operations to protect its interests as creditor, company department manager's claim against bank for unpaid vacation and severance benefits was "action for collection of wages." Chvatal v. United States National Bank of Oregon, 285 Or 11, 589 P2d 726 (1979)

In action for collection of wages, this section does not provide for attorney fees on appeal. Richards v. Watrous, 287 Or 345, 599 P2d 460 (1979)

Where plaintiff was awarded attorney fees under this section, it was proper for trial court to offset defendant's counterclaim against attorney fee award. Schulstad v. Hudson Oil Co., 55 Or App 323, 637 P2d 1334 (1981), Sup Ct review denied

Attorney fees recoverable under this section are costs, not part of plaintiff's substantive claim, and thus are not included in the jurisdictional amount for the purpose of determining whether the district court has exclusive jurisdiction. Springer v. Bowen, Lee & Co., 60 Or App 60, 652 P2d 863 (1982)

Where employe violated employment contract but employer acquiesced in the violation by continuing the employment after its discovery, employer was liable for attorney fees. Garvin v. Timber Cutters, Inc., 61 Or App 497, 658 P2d 1164 (1983)

Corporate officer and shareholder who is also corporate employe may recover attorney fees. Wyss v. Inskeep, 73 Or App 661, 699 P2d 1161 (1985), Sup Ct review denied

Statute does not deny equal protection to defendant by permitting award of attorney fees to prevailing plaintiffs only. Kling v. Exxon, 74 Or App 399, 703 P2d 1021 (1985)

Though term "wages" in this section is not defined by statute, courts have broadly construed term to mean any compensation for employe's services. Kantor v. Boise Cascade Corp., 75 Or App 698, 708 P2d 356 (1985), Sup Ct review denied

Legislature did not provide that damages recovered for employer's breach of employment contract were wages within meaning of this section entitling employe to statutory attorney fees. Bruce v. S. M. Motor Co., 81 Or App 227, 724 P2d 911 (1986)

Where plaintiff was awarded damages for defendant's breach of contract, he was not entitled to attorney fees because damages for breach of contract are not wages. Swartout v. Precision Castparts Corp., 83 Or App 203, 730 P2d 1270 (1986)

Where trial court could not properly find that breaches of contract of employment were not "willful" where breaches actually caused or would have justified employee's termination, employee is not entitled to attorney fees in wage claim. Greenwood Forest Products, Inc. v. Sapp, 98 Or App 276, 779 P2d 180 (1989)

Where statute allows award of fees to successful party, attorney fees may be taken into account for purposes of determining whether or not amount in controversy satisfies jurisdictional requirements. Hendrickson v. Xerox Corp., 751 F Supp 175 (D. Or 1990)

"Wages" includes penalty wage provided for under ORS 652.150. Wyatt v. Body Imaging, P.C., 163 Or App 526, 989 P2d 36 (1999), Sup Ct review denied

In action for collection of wages, written notice of wage claim must include name of plaintiff or plaintiffs. Belknap v. U.S. Bank National Association, 235 Or App 658, 234 P3d 1041 (2010), Sup Ct review denied

§§ 652.110 to 652.405

Notes of Decisions

Where employer was charged with criminal violation of Massachusetts payment of wages statute for failing to pay discharged employees for their unused vacation time, employer's policy of paying discharged employees for unused vacation time was not "employee welfare benefits plan" under section 3 (1) of Employee Retirement Income Security Act of 1974 (ERISA) and criminal action to enforce that policy is therefore not foreclosed by section 514 (a) of ERISA. Massachusetts v. Morash, 490 U.S. 107, 109 S. Ct. 1668, 104 L.Ed 98 (1989)

It is unnecessary to imply private right of action for employee against secured creditor in possession under ORS 652.310 to 652.405 when to do so would render provisions of ORS 652.110 to 652.250 superfluous. Stout v. Citicorp Industrial Credit, Inc., 102 Or App 637, 796 P2d 373 (1990), Sup Ct review denied


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Jun. 26, 2021