Lolley

The issue we decide is whether the superior court may assess attorney fees against an employer who unsuccessfully appeals an administrative order to pay wages if the employee cannot afford counsel and is represented without charge by the Labor Commissioner. The Court of Appeal held that attorney fees could not be awarded in such circumstances, because an indigent employee who is represented by the Labor Commissioner has not “incurred” attorney fees within the meaning of Labor Code section 98.2, subdivision (c). We disagree and reverse the judgment of the Court of Appeal.

I

In April 1998, Chris Lolley filed a claim before the Labor Commissioner against his former employer Shawn Campbell, doing business as Tri-County Builders Supply, to recover unpaid overtime wages and penalties. (§ 203.) Following an administrative hearing, at which Lolley represented himself and Campbell appeared through counsel, the hearing officer awarded Lolley a total of $27,216.14 in unpaid overtime wages, penalties, and interest.

Campbell filed a notice of appeal requesting that the cause be set for a hearing de novo in the superior court. (§ 98.2.) At Lolley’s request, the Labor Commissioner…