Prevailing parties in meal and rest break actions not entitled to recover attorney’s fees (kirby v. immoos fire protection, inc.)

English: Seal of the Supreme Court of California

In Kirby v. Immoos Fire Protection, Inc.1 ― issued on the heels of the long-awaited Brinker decision2 ― the California Supreme Court unanimously held that a prevailing party in a Mobile Lawsuitsmeal and rest break action is not entitled to recover attorney’s fees.  

Procedural background. The plaintiffs ― former employees of Immoos Fire Protection, Inc. ― sued Immoos, alleging six causes of action for violations of various provisions of the Labor Code3 (including penalties for missed rest periods under section 226.7) and for statutory unfair competition. After the plaintiffs’ motion for class certification was denied, they dismissed their lawsuit with prejudice. Immoos then moved for its attorney’s fees under section 218.5, a two-way fee-shifting statute requiring that attorney’s fees be awarded to the prevailing party “[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.” The trial court granted the motion as to the rest period claims and two other causes of action. The Third Appellate District affirmed the award as to the rest period claims only. The California Supreme Court reversed the fee award on the rest period claims, holding that neither section 1194 nor section 218.5 authorizes an attorney’s fee award to a prevailing party in a section 226.7 action.  

Section 1194 does not cover meal and rest period claims. Section 1194 is a one-way fee-shifting statute that authorizes an award of attorney’s fees to employees who prevail on minimum wage or overtime claims. After evaluating section 1194’s plain language and legislative history, and the language of related statutes, the court rejected the plaintiffs’ argument that “the required payment for missed meal or rest periods is tantamount to a statutorily prescribed minimum wage,” and held that section 1194 does not authorize an award of attorney’s fees to employees who prevail on a section 226.7 claim.

Section 226.7 claims are not “brought for the nonpayment of wages” within the meaning of section 218.5. Having concluded that section 1194’s one-way fee-shifting provision does not cover section 226.7 claims, the court then considered whether section 226.7 claims are “action[s] brought for the nonpayment of wages” within the meaning of section 218.5. The court analyzed the plain language, context, and legislative history of sections 218.5 and 226.7 and determined they are not. Section 226.7 is not aimed at protecting or providing wages, the court reasoned. Rather, when an employee sues for penalties under section 226.7, the basis for the lawsuit is the employer’s nonprovision of statutorily required rest breaks or meal breaks, not the employer’s nonpayment of wages. The court harmonized its interpretation of section 218.5 with its decision in Murphy v. Kenneth Cole Productions, Inc.,4 which held that the remedy of “one additional hour of pay at the employee’s regular rate” for violations of section 226.7 is a wage for purposes of determining the applicable statute of limitations. The court explained that an action “brought for the nonpayment of wages” is more accurately described as “an action brought on account of nonpayment of wages” ― “[t]he words ‘nonpayment of wages’ in section 218.5 refer to an alleged legal violation, not a desired remedy.” Section 226.7 claims are brought on account of the nonprovision of meal or rest breaks.  

The court further noted that “the most plausible inference to be drawn from [the legislative history of sections 218.5 and 226.7] is that the Legislature intended section 226.7 claims to be governed by the default American rule that each side must cover its own attorney’s fees.”  

Takeaways. Although Kirby resulted in the reversal of an attorney’s fee award to an employer defendant, the decision nevertheless has positive implications for employers because it makes clear to plaintiffs bringing meal and rest period actions that even if they prevail, neither section 1194 nor section 218.5 will afford them an avenue for recovering their attorney’s fees.

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