Private Enforcement of the Kansas Wage Payment Act

Abstract

The argument of this article is that there should be greater private enforcement of the KWPA, and that this goal can be achieved by amending the KWPA to include an attorney fee shifting provision that awards prevailing plaintiffs their reasonable attorney fee. A fee shift is necessary for three reasons. First, without a fee shift, deserving employees are unfairly barred from enforcing their wage payment claims in court. Second, an attorney fee shift is necessary to give meaning to the rights granted by the KWPA, which are rendered hollow by the lack of enforcement under the present system. And third, deputizing individual employees to enforce the KWPA privately would not only improve enforcement, but would do so at the expense of the violators of the law rather than the expense of the State of Kansas.

This article proceeds in four parts. In Part II, we discuss the history and public policy underlying the KWPA and briefly explain the operation of the law, including the administrative enforcement mechanism. In Part III, we synthesize the literature on the rationales for and effects on litigation of attorney fee shifts. We pay particular attention to the private attorney general doctrine, developed by the United States Supreme Court in connection with the Civil Rights Act and adopted by Kansas courts in various contexts. In Part IV, we set forth the types of fee shifts found in the wage payment and collection statutes of other states as part of a survey of all fifty states and the District of Columbia. Part IV shows that Kansas is in a small minority as a state with a comprehensive wage payment and collection law without an attorney fee shift. Part V sets forth our argument for why, in light of the purpose and public policy of the KWPA, as well as the theoretical and practical reasons for attorney fee shifts, the KWPA should be amended to include an attorney fee provision. In Part V, we propose specific language for the attorney fee shift. We conclude in Part VI.