Minnesota's Employment Fee-Shifting Statutes Mostly Run One Direction — and Rule 68 Shifts Costs and Disbursements, Not the Other Side's Attorney Fees

The starting point is that each side pays its own lawyer

Everything on this page is a departure from one background rule, and the Supreme Court stated it in a Title VII fee case in 1978:

It is the general rule in the United States that in the absence of legislation providing otherwise, litigants must pay their own attorney’s fees.

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 415 (1978). Losing a lawsuit does not, by itself, make you liable for the other side’s legal bill. Something else has to do that — a statute, a contract, a rule, or a sanction — and each of those has its own text and its own trigger.

Seven fee provisions, and five of them name the direction

The employment statutes that shift fees are not drafted alike, and the differences decide who can recover.

Minn. Stat. § 363A.33, subd. 7 — the Human Rights Act:

In any action or proceeding brought pursuant to this section the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs.

Discretionary, and the noun is “party.” The text does not on its face limit the award to an employee. (The same subdivision is quoted for a different purpose on what the Human Rights Act can award and on arbitration clauses.)

Minn. Stat. § 181.935(a) — the Whistleblower Act:

In addition to any remedies otherwise provided by law, an employee injured by a violation of section 181.932 may bring a civil action to recover any and all damages recoverable at law, together with costs and disbursements, including reasonable attorney’s fees, and may receive such injunctive and other equitable relief as determined by the court.

The recovery is defined as belonging to “an employee injured by a violation.” The paragraph provides no corresponding recovery to an employer. What the underlying statute protects is on the whistleblower page.

Minn. Stat. § 177.27, subd. 10 — wage, hour, and overtime claims:

In any action brought pursuant to subdivision 8, the court shall order an employer who is found to have committed a violation or violations of sections 177.21 to 177.44 or 181.165 to pay to the employee or employees reasonable costs, disbursements, witness fees, and attorney fees.

This one is mandatory — “shall order” — it runs from employer to employee by its terms, and it separately names witness fees alongside costs, disbursements, and attorney fees. The wage rules it enforces are on breaks and overtime and the wage theft notice.

Minn. Stat. § 176.82, subd. 1 — retaliation for seeking workers’ compensation benefits — folds fees into the damages themselves. A person who discharges, threatens to discharge, or intentionally obstructs an employee seeking benefits

is liable in a civil action for damages incurred by the employee including any diminution in workers’ compensation benefits caused by a violation of this section including costs and reasonable attorney fees, and for punitive damages not to exceed three times the amount of any compensation benefit to which the employee is entitled.

The claim is described on workers’ comp retaliation.

Minn. Stat. § 268B.09, subd. 8(d) — Minnesota paid leave:

The court in an action under this section must, in addition to any judgment awarded to the plaintiff or plaintiffs, allow reasonable attorney fees, reasonable expert witness fees, and other costs of the action to be paid by the defendant.

Mandatory, one direction, and it names expert witness fees. The Revisor’s note on § 268B.09 records that subdivisions 5 to 8 as added by Laws 2023, chapter 59, article 1, section 18, are effective January 1, 2026. The program itself is on Minnesota paid leave.

42 U.S.C. § 2000e-5(k) — Title VII:

In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.

Discretionary, “prevailing party,” and expert fees are inside the fee by amendment.

29 U.S.C. § 216(b) — the Fair Labor Standards Act, in relevant part:

The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.

Mandatory, and the payer is named.

Now test the negative against each text. Five of the seven — §§ 181.935(a), 177.27, subd. 10, 176.82, subd. 1, 268B.09, subd. 8(d), and 29 U.S.C. § 216(b) — identify the recipient as the employee or the payer as the defendant, and none of the five provides an award to an employer. Two — § 363A.33, subd. 7, and 42 U.S.C. § 2000e-5(k) — say “prevailing party” and are symmetrical on their face.

For the federal one, Christiansburg decided what that symmetry means. The Court rejected both the employer’s position that a prevailing defendant should recover as a matter of course and the Commission’s position that bad faith is required:

In sum, a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.

Christiansburg, 434 U.S. at 421. And at 422, addressing the plaintiff’s exposure directly:

a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.

The Court’s stated reason for refusing to work backward from the verdict is worth reading in the original: “This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success.” Id. at 422. Minnesota’s § 363A.33, subd. 7, is written in the same “prevailing party” shape, and the Minnesota Supreme Court adopted the Christiansburg standard for it in 1986. In Sigurdson v. Isanti County, 386 N.W.2d 715 (Minn. 1986), a trial court had awarded a county $3,600 in fees against an employee who lost her discrimination claim, under the predecessor provision Minn. Stat. § 363.14, subd. 3 (1984). The supreme court described the Title VII provision Christiansburg construed as one “which is virtually identical to section 363.14, subd. 3,” Sigurdson, 386 N.W.2d at 722, wrote that “Policy reasons support adoption of the federal standard for awarding attorney fees in cases brought under the Minnesota Human Rights Act,” id., and held at 723:

We hold, therefore, that a trial court may, in its discretion, award attorney fees to a prevailing defendant, pursuant to section 363.14, subd. 3, only upon a finding that the employee’s action was frivolous, unreasonable, or without foundation, or was brought in bad faith.

The reasons it gave overlap with Christiansburg’s, and it added one of its own. “An obvious reason for enactment of subdivision 3 of section 363.14 was to encourage victims of discrimination to bring suit, particularly where the relief sought is not a large money judgment, and to make legal counsel available in these cases,” and “Making awards of attorney fees equally available to prevailing defendants would likely produce the reverse of the intended effect.” Sigurdson, 386 N.W.2d at 722. The court added that “the typically substantial difference in resources between plaintiffs and defendants in employment discrimination cases supports the conclusion that awards of attorney fees should not be available to prevailing defendants on the same basis as to prevailing plaintiffs.” Id. at 722–23.

Sigurdson construed the predecessor section, which it quotes in the same operative words the current subdivision 7 uses, and this page cites no later Minnesota decision revisiting it.

“Costs” is a statutory term, and the number is smaller than it sounds

Minnesota separates costs from disbursements, and only the second is a real accounting of what was spent.

Minn. Stat. § 549.02, subd. 1, sets costs in district court as fixed sums:

To plaintiff: (1) Upon a judgment in the plaintiff’s favor of $100 or more in an action for the recovery of money only, $200. (2) In all other actions, including an action by a public employee for wrongfully denied or withheld employment benefits or rights, except as otherwise specially provided, $200.

To defendant: Upon discontinuance or dismissal or when judgment is rendered in the defendant’s favor on the merits, $200.

To the prevailing party: $5.50 for the cost of filing a satisfaction of the judgment.

Subdivision 2 adds “additional costs in the amount of $300” to the prevailing party on a judgment on the merits in the court of appeals or supreme court. Those are the figures § 549.02 sets, and the section leaves room for others: clause (2) carries its own qualifier, “except as otherwise specially provided.”

Disbursements are the other half. Minn. Stat. § 549.04, subd. 1:

In every action in a district court, the prevailing party, including any public employee who prevails in an action for wrongfully denied or withheld employment benefits or rights, shall be allowed reasonable disbursements paid or incurred, including fees and mileage paid for service of process by the sheriff or by a private person.

The subdivision states one example — service-of-process fees and mileage — and otherwise says “reasonable disbursements paid or incurred.” It does not enumerate the rest, and this page does not enumerate it either.

Minn. R. Civ. P. 54.04 supplies the procedure and sends the entitlement back to the statutes. Section (a) is one sentence: “Costs and disbursements shall be allowed as provided by law.” Section (b) requires a party seeking them to “serve and file a detailed application for taxation of costs and disbursements with the court administrator, substantially in the form as published by the state court administrator,” signed under oath or under the penalty-of-perjury declaration of Minn. Stat. § 358.116, “not later than 45 days after entry of a final judgment as to the party seeking costs and disbursements.” Section (c) gives any other party seven days after service to object. Under section (e), where the court administrator taxed the costs, a party aggrieved by that action may serve and file a notice of appeal to a district court judge “not later than seven days after the court administrator serves notice of taxation on all parties.”

Rule 68 is the provision that attaches a price to turning down an offer

Minn. R. Civ. P. 68 is not a loser-pays rule. It compares the judgment to an offer, and it does not care which side technically prevailed.

The mechanics first. Under Rule 68.01(a), any party may serve a written offer “at any time more than 14 days before the trial begins.” Rule 68.01(b) is a trap for the careless drafter and a protection for the recipient: “An offer does not have the consequences provided in Rules 68.02 and 68.03 unless it expressly refers to Rule 68.” Rule 68.01(c) makes an offer a “damages-only” offer by default — one that “does not include then-accrued applicable prejudgment interest, costs and disbursements, or applicable attorney fees” — unless it expressly says it is a “total-obligation” offer, in which case under 68.01(d) the stated number includes all of those. Rule 68.02(a) gives 14 days to accept, during which “the offer is irrevocable,” and 68.02(d) deems an unaccepted offer withdrawn at the end of that period.

The consequence is in Rule 68.03(b)(1):

If the offeror is a defendant, and the defendant-offeror prevails or the relief awarded to the plaintiff-offeree is less favorable than the offer, the plaintiff-offeree must pay the defendant-offeror’s costs and disbursements incurred in the defense of the action after service of the offer, and the plaintiff-offeree shall not recover its costs and disbursements incurred after service of the offer, provided that applicable attorney fees available to the plaintiff-offeree shall not be affected by this provision.

Three things happen and one does not. The plaintiff pays the defendant’s post-offer costs and disbursements; the plaintiff loses its own post-offer costs and disbursements; and the plaintiff’s statutory attorney fees are expressly left alone.

The rule runs the other way too. Rule 68.03(b)(2):

If the offeror is a plaintiff, and the relief awarded is less favorable to the defendant-offeree than the offer, the defendant-offeree must pay, in addition to the costs and disbursements to which the plaintiff-offeror is entitled under Rule 54.04, an amount equal to the plaintiff-offeror’s costs and disbursements incurred after service of the offer. Applicable attorney fees available to the plaintiff-offeror shall not be affected by this provision.

And there is a release valve. Under Rule 68.03(b)(3), if the court “determines that the obligations imposed under this rule as a result of a party’s failure to accept an offer would impose undue hardship or otherwise be inequitable, the court may reduce the amount of the obligations to eliminate the undue hardship or inequity.”

Rule 68.04(a) closes the question the rule is most often assumed to answer:

“Applicable attorney fees” for purposes of Rule 68 means any attorney fees to which a party is entitled by statute, common law, or contract for one or more of the claims resolved by an offer made under the rule. Nothing in this rule shall be construed to create a right to attorney fees not provided for under the applicable substantive law.

One evidentiary point: under Rule 68.03(a), “[e]vidence of an unaccepted offer is not admissible, except in a proceeding to determine costs and disbursements.” The jury does not hear about it.

Sanctions are the other route to a fee award, and the trigger is the filing, not the outcome

Minn. Stat. § 549.211 operates on what an attorney or an unrepresented party represented by presenting a paper, not on how the case came out. Under subd. 2, presenting a pleading, motion, or other paper certifies that “it is not being presented for any improper purpose”; that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law”; that factual contentions “have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery”; and that denials are warranted on the evidence.

The procedure has a built-in escape hatch. Under subd. 4(a), a sanctions motion “must be made separately from other motions or requests,” and it “may not be filed with or presented to the court unless, within 21 days after service of the motion, or another period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Withdraw inside 21 days and the motion never reaches the judge.

The sanction itself is bounded. Under subd. 5(a), it “must be limited to what is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated,” and a fee award is available only “if imposed on motion and warranted for effective deterrence,” covering “some or all of the reasonable attorney fees and other expenses incurred as a direct result of the violation.” Subdivision 5(b) adds that monetary sanctions “may not be awarded against a represented party for a violation of subdivision 2, clause (2)” — the clause about legal contentions — so a client who relied on counsel’s legal theory is not the one who pays for it.

A contingent fee is a written instrument, and the rule lists what has to be in it

Minn. R. Prof. Conduct 1.5(c):

A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

Four requirements are worth separating out, because a percentage on a signature line satisfies none of them by itself. The agreement has to state the percentage or percentages “in the event of settlement, trial or appeal” — the rule contemplates that they may differ by stage. It has to state which expenses come out of the recovery. It has to say whether those expenses are deducted before or after the fee is calculated, which changes the arithmetic. And it has to “clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.”

Rule 1.5(a) applies the reasonableness standard to all of it — “[a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses” — and lists eight factors, the last of which is “whether the fee is fixed or contingent.” Rule 1.5(b) requires that “[t]he scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate,” and that “[a]ny changes in the basis or rate of the fee or expenses shall also be communicated to the client.”

Who fronts the litigation expenses is governed by a different rule. Minn. R. Prof. Conduct 1.8(e) starts with a prohibition and then carves out of it. The stem and the first three of its four exceptions:

A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter;

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client;

(3) a lawyer may guarantee a loan reasonably needed to enable the client to withstand delay in litigation that would otherwise put substantial pressure on the client to settle a case because of financial hardship rather than on the merits, provided the client remains ultimately liable for repayment of the loan without regard to the outcome of the litigation and, further provided, that no promise of such financial assistance was made to the client by the lawyer, or by another in the lawyer’s behalf, prior to the employment of that lawyer by that client; and

Paragraph (e)(1) is permission twice over: a lawyer may advance the costs, and repayment may be made contingent on the outcome. Neither is required by the rule, which is why Rule 1.5(c) requires the agreement to say which arrangement the client actually has. Paragraph (e)(3) covers a third-party loan rather than the lawyer’s own money, and it attaches two conditions: the client stays “ultimately liable for repayment of the loan without regard to the outcome of the litigation,” and no such assistance may have been promised before the lawyer was retained.

Currency

The Revisor currently publishes the 2025 edition of Minnesota Statutes. The History line was read on every section this page cites: § 363A.33 ends “2024 c 105 s 16-19”; § 181.935 shows only “1987 c 76 s 5; 2007 c 135 art 3 s 17”; § 177.27 ends “1Sp2025 c 6 art 5 s 6”; § 176.82 shows only “1975 c 359 s 21,23; 1995 c 231 art 1 s 30”; § 268B.09 shows “2023 c 59 art 1 s 18; 2024 c 127 art 73 s 25-27”; § 549.02 ends “1Sp2005 c 4 art 8 s 78”; § 549.04 ends “1Sp2005 c 4 art 8 s 79”; § 549.211 shows only “1997 c 213 art 1 s 1”; and § 358.116, which Rule 54.04(b) names and this page does not quote, shows “2014 c 204 s 3; 2017 c 95 art 2 s 8; 2018 c 176 art 2 s 3.”

The Revisor’s table of Minnesota Statutes affected by session laws was queried one exact section at a time for each of those nine. No record from the 2026 Regular Session was returned for any of them. Four of the results are worth stating at the subdivision level, because a section-level answer would hide them: none of the six records returned for § 363A.33 touches subdivision 7; the single 2025 record on § 177.27 is to subdivision 5, and the most recent action on subdivision 10 is 2023 c 53 art 10 s 5; subdivision 8 of § 268B.09 carries no amendment record at all; and the only record on § 549.02 is the 2005 addition of subdivision 3, which this page does not cite. The Revisor’s note that subdivisions 5 to 8 of § 268B.09 took effect January 1, 2026, is stated above where that paragraph is quoted.

The court rules carry their own effective-date lines, and they were read: Minn. R. Civ. P. 54.04 is followed by “(Amended effective July 1, 2010; amended effective July 1, 2015.)”; Rules 68.01 and 68.02 by “(Added effective July 1, 2008; amended effective January 1, 2020.)”; and Rules 68.03 and 68.04 by “(Added effective July 1, 2008.)” This page states no effective date for either rule and makes no claim about how either was amended.

The Rules of Professional Conduct were taken from the Lawyers Professional Responsibility Board’s consolidated file dated July 1, 2026, and checked against the Revisor’s court-rules pages for the same two rules. Rule 1.5(c) is identical in both. The two renderings punctuate the list in Rule 1.8(e) differently; the blockquote above follows the Revisor, which is the page this article links.

The federal sections were retrieved from Cornell’s Legal Information Institute on September 8, 2026. The parenthetical “(including expert fees)” in 42 U.S.C. § 2000e-5(k) was inserted by Pub. L. 102-166, § 113(b), in 1991. The most recent amendment note on 29 U.S.C. § 216(b) is from 2022 — Pub. L. 117-328, substituting “section 215(a)(3) or 218d” for “section 215(a)(3)” wherever it appears — and it does not reach the fee sentence quoted here.

Christiansburg was read in full from the Caselaw Access Project’s archive of volume 434 of the United States Reports. It has not been run through a citator, and this page reports it for what it held on the day it was decided.

What this page does not do

It describes machinery. It does not say what any particular representation costs, what any lawyer charges, or what arrangement any reader would be offered — those are terms of an agreement that does not exist yet, and Rule 1.5(b) and (c) are the rules that govern how they get written down when it does. Whether a fee-shifting statute reaches a particular claim, whether a Rule 68 offer was drafted so as to carry the rule’s consequences, and what a court would tax as reasonable disbursements are questions about your documents and your case, and answering them is not what this page does.