Having just finished up a jury trial where the plaintiff won a wrongful termination claim and was awarded lost wages and compensatory damages, the timing seems right to discuss attorney fees under Ohio law in employment cases. Under Ohio law, attorneys who take on cases where an employee was wrongfully terminated must first prove the discrimination, harassment and/or retaliation. If they are successful in doing so, in order to have a chance at being paid for their work without taking some percentage of the employee’s award of lost wages and compensatory damages, they must prove separately and by a higher standard of proof that the employer not only discriminated, harassed and/or retaliated, but that it did so maliciously and should be made to pay a punitive damages award. Only after the attorney proves that punitive damages are appropriate, is there an opportunity to be paid for the legal work under Ohio law, but there is still no guarantee.
The problem with this scheme is that it operates as a huge disincentive to take on cases for minimum wage or other low wage workers. An attorney could win trial after trial for minimum wage workers and not be able to pay the bills to keep the law firm going. Low wage workers are the ones who are most vulnerable to wrongful conduct on the part of their employers. Most plaintiff’s employment attorneys want to devote time to help these low wage workers. Ohio says don’t.