The Second Circuit Court of Appeals recently ruled that expert witness fees are not recoverable under the Fair Labor Standards Act (FLSA). In Gortat v. Capala Brothers, Inc., No. 14-3304-cv (July 29, 2015), the Second Circuit ruled in a class action case filed by five former employees who sought unpaid wages and overtime compensation. In May of 2013, a jury found for the workers. In pertinent part, the district court ordered the employer to reimburse the workers for more than $10,000 that they had spent to retain an accounting expert used during trial.

On appeal, the Second Circuit noted that the Supreme Court of the United States has established that a district court may not award reimbursement of expert fees unless the applicable statute explicitly provides for such awards. The court found that “29 U.S.C. § 216(b) of the FLSA does not expressly address awards reimbursing prevailing plaintiffs for expert fees.” Instead, the court found, the text of the FLSA only addresses awards of reasonable attorneys’ fees to prevailing plaintiffs to be paid by the defendant.

Accordingly, the Second Circuit vacated the district court’s award of costs reimbursing the plaintiffs’ expert fees pursuant to the FLSA. The court further remanded the case to the district court for the limited purpose of determining whether the New York Labor Law authorized an award of such expert fees. The Second Circuit thus joins the Seventh, Tenth, and Eleventh Circuits, which have held that the FLSA does not explicitly authorize courts to award reimbursement for expert fees, and thus does not permit a court to award such fees given the lack of a statutory mandate.

As a result of the decision, employers in the Second Circuit that defend FLSA class actions currently will not be required to bear the costs of plaintiffs’ expert fees, which may modestly decrease employers’ exposure to such suits. We will continue to monitor the case on remand and will report on whether the district court rules that expert fee awards are recoverable under the New York Labor Law.

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