Attorney’s Fees and Costs in OT Cases in Texas

A claimant that prevails in an overtime case is legally entitled to reasonable attorney’s fees and costs paid for under the Fair Labor Standards Act (“FLSA”). The most common issues that arise when attorney’s fees are disputed under the FLSA are (1) what fees are considered reasonable and (2) how to calculate attorney’s fees. A recent case out of the Western District of Texas addressed these issues. 

The plaintiff in West v. Zedric’s LLC, No. SA-19-CV-00556-FB (W.D. Tex. Dec. 3, 2019) filed a collective action against the defendants for violations of unpaid overtime under the FLSA. The plaintiff, who was a salaried cook for the defendants, stated that the defendants failed to pay him overtime at a rate of time and a half for all hours worked over 40 in a given work week. The defendants sent plaintiff an offer of judgment of $3,500 plus an award of attorney fees and costs. The plaintiff accepted the defendants’ offer of judgment, but the parties reached an impasse on the amount of attorney’s fees and costs. 

The plaintiff filed a motion for attorney fees and costs seeking $9,495 in fees and $571.03 in costs. The defendants filed their response in opposition to the plaintiff’s motion and argued that the requested fees were excessive and requested that the court reduce the hourly rates and numbers by 60%. A week later, the plaintiff filed his response with an updated billing chart showing an increase in attorney fees to $11,425. The motion was referred to the magistrate judge where a report and recommendation was issued. 

Under the FLSA, the court must award reasonable attorney’s fees to the prevailing party. See 29 U.S.C. § 216(b) (“The court in [an FLSA case] shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”); Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 799 & n.7 (5th Cir. 2006). Courts may use the lodestar method to calculate an appropriate fee award under the FLSA by multiplying the number of hours reasonably spent on the case by an appropriate hourly rate in the community for such work. Saizan, 448 F.3d at 799. A plaintiff seeking attorney’s fees is “charged with the burden of showing the reasonableness of the hours billed” and also that he or she “exercised billing judgment.” Id. Reasonable hourly rates are determined based on prevailing rates for attorneys of similar skill and experience in the relevant market, or city where the district court sits. McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011). The Court has discretion to decrease or enhance the amount based on the relative weights of certain factors. Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

Here, the plaintiff claimed that his attorneys worked 32.7 hours at a rate of $500 an hour for the senior attorney and fees ranging from $350 to $225 for associates. The court agreed with the defendants and stated that the rates claimed by the plaintiff greatly exceeded rates that have been deemed reasonable in the San Antonio community. The State Bar of Texas periodically produces a report called the Attorney Hourly Fact Sheet (“Rate Report”), which details the median hourly rates for Texas attorneys, broken down by city, specialty, firm size, and years of practice. The current version of the Rate Report is for the year 2015, which lists a median rate of $258 for labor and employment attorneys practicing in the San Antonio area. These median rates are the starting point for evaluating the reasonableness of a requested rate but must be adjusted to account for other factors, including the nature and complexity of the litigation, the billing attorneys’ specific credentials, and the size of the billing attorneys’ firm.

The court concluded that $325 is a reasonable rate for the senior attorney given his credentials, the non-complexity of the case, and the analysis of the San Antonio market. For the associates, the court stated that nothing indicates that the associates had any experience as lead counsel in any FLSA case nor do the associates have enough experience to justify an upward departure from the Rate Report median hourly rate of $258 for attorneys of their respective experience in the San Antonio market. Therefore, the court reduced the hourly rate of the associates to $258. 

With regards to the number of hours billed, the court found multiple time entries that were excessive, non-compensable, and/or vague. Clerical work is not recoverable even if the work is done by an attorney. See Black v. SettlePou, P.C., No. 3:10-CV-1418-K, 2014 WL 3534991, at *6 (N.D. Tex. July 17, 2014). Time that is duplicative or redundant should be excluded from an award of attorney’s fees. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The court said that duplicative billing of the attorneys led to a reduction in fees. Based on the foregoing, the court calculated the attorney fees to equal $5,912.76.

With regards to costs, pursuant to 28 U.S.C. § 1920, a judge or clerk of any court of the United States may tax as costs the following: (1) fees of the clerk and marshal; (2) fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) fees and disbursements for printing and witnesses; (4) fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) docket fees under 28 U.S.C. § 1923; and (6) compensation of court-appointed experts and interpreters, and salaries, fees, expenses, and costs of special interpretation services under 28 U.S.C. § 1828. Id.

The plaintiff sought $170 for two private process servers for the service of the summons but the court said that “because private process server fees are not specifically enumerated in § 1920, which encompasses only fees paid to the United States Marshal for service of process, and because there was nothing exceptional about the parties or the nature of this case, the Court [found] the private process server fees are not properly taxable as costs.” Honestech, Inc., 725 F. Supp. 2d at 585. Thus, the court reduced the requested serve fees to $130, which resulted in a total of $531 in costs. The magistrate recommended that the District Court grant in part the plaintiff’s motion for attorney’s fees and award fees in the amount of $5,912.76 and costs in the amount of $531.03. 

This case is an example of how courts in Texas will assess attorney fees and costs that are recoverable against the defendant. If you have questions regarding your unpaid overtime, consider speaking with an attorney today. Josh Borsellino is a Texas attorney that understands the laws surrounding the FLSA. He offers free consultations and can be reached at 817.908.9861 or 432.242.7118. 

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