Alaska Employment Law

Does federal law prevent a prevailing employer from recovering attorney fees against an employee who files under a ”little Title VII” law?  The 9th Circuit says Yes, if the state law is at least as employee-protective as Title VII. 

A violation of the federal ADA constitutes a violation of the CDPA [California Disabled Persons Act]. See, e.g., Cal. Civ. Code §§ 54(c), 54.1(d), 54.2(b). Therefore, to the extent that California’s Section 55 mandates the imposition of fees on a losing plaintiff who brought both a nonfrivolous ADA action and a parallel action under Section 55, an award of attorney’s fees under Section 55 would be inconsistent with the ADA, which would bar imposition of fees on the plaintiff. In such a case, the proof required to show a violation of the CDPA and of the ADA is identical. In that circumstance, it is impossible to distinguish the fees necessary to defend against the CDPA claim from those expended in defense against the ADA claim, so that a grant of fees on the California cause of action is necessarily a grant of fees as to the ADA claim. As federal law does not allow the grant of fees to defendants for non-frivolous ADA actions, we must conclude that preemption principles preclude the imposition of fees on a plaintiff for bringing nonfrivolous claims under state law that parallel claims also filed pursuant to the federal law.  See Cal. Fed. Sav. [Ass’n v. Guerra, 479 U.W. 272, 280-81 (1987)].

Hubbard v. SoBreck, LLC, 2008 WL _______ (9th Cir. June 27, 2008) 

Application in Alaska: A related issue was before the Alaska Supreme Court in Moody-Herrera v. State, 967 P.2d 79 (Alaska 1998).  There, the losing Title 18 plaintiff argued that the Court should recognize an exception to Rule 82 and immunize losing Human Rights Act plaintiffs from adverse fee awards.  The Court rejected that argument. 

Because the Alaska Human Rights Act is at least as employee-protective as Title VII and the ADA, the 9th Circuit’s opinion in this morning’s case would protect a losing plaintiff in Moody-Herrera’s situation, though on pre-emption, not Rule 82 grounds.