Legal Question in Employment Law in Oregon

Re: Ex-Employer withholding final pay, need to sue

Your options are to (1) pursue through the Oregon Bureau of Labor and Industries (BOLI) wage and hour division; (2) file in small claims without legal representation; or (3) retain an attorney to file in Circuit Court after making a demand. Using an attorney probably is by far your best option.

BOLI will not pursue a penalty claim, thereby limiting your recovery to unpaid wages (including vacation), so you lose out on penalty wages. In a small claims action, you will not be entitled to attorney fees, and you risk the defendant's moving the case to circuit court to be represented by an attorney, placing you at a distinct disadvantage or need to retain an attorney at that point.

Retaining an attorney at the outset is best because he or she can ensure you have satisfied the statutory requirements for recovering the full penalty to which you are entitled. Although the cost to file the complaint in court (if the matter does not settle before filing) is $189, but many attorneys will advance that expense for you, subject to repayment later. With attorney representation, you have a right to attorney fees if you win, and an attorney, unlike BOLI, will pursue your penalty wages. Attorneys fees generally are between one-third if the case settles any time before filing a complaint, such as at the demand stage and 40% after the court filing.

Quite often, the attorney fee award is more than the percentage, such that the client recovers 100% of the unpaid wages and penalty, effectively paying nothing for attorneys fees. Review any retainer agreement carefully before signing it.