2015 ORS 652.200¹
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 (Penalty wage for failure to pay wages on termination of employment). 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

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 (Definitions of employer and employee) to 652.405 (Disposition of wages collected by commissioner when payment cannot be made to person entitled thereto) when to do so would render pro­vi­sions of ORS 652.110 (Method of paying employees) to 652.250 (Public employee's wages as affected by absence to engage in search or rescue operation) superfluous. Stout v. Citicorp Industrial Credit, Inc., 102 Or App 637, 796 P2d 373 (1990), Sup Ct review denied


1 Legislative Counsel Committee, CHAPTER 652—Hours; Wages; Wage Claims; Records, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors652.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 652, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano652.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.