Court Holds That Statutory Attorney Fees May Be Waived in Arbitration

In Schiferle v. Capital Fence Co., Inc., 2017 NY Slip Op 07059 (App. Div. 4th Dept. Oct. 6, 2017), the court held that “a wage claimant may, in certain circumstances, validly waive their statutory right to attorney’s fees under [Labor Law §] 198.” The court held that those circumstances were present here.

From the decision:

Plaintiff … elected to bargain away his right to attorney’s fees in exchange for the simplicity, informality, and reduced expense of arbitration, together with an opportunity to request attorney’s fees at the arbitrator’s discretion. [*6]He might now regret that bargain, but it was his to make. He was not coerced into waiving his rights by the exigencies of his situation, nor did he labor under a power imbalance that made negotiation an exercise in futility. Having voluntarily exchanged his statutory right to attorney’s fees for the expeditious and informal procedures of arbitration, plaintiff cannot avail himself of those expedited procedures and then run to court to recover the very thing that he tendered in exchange for those expedited procedures. Plaintiff, in short, cannot have his cake and eat it too.