Another Employer Victory in California: Attorney's Fees for Meal and Rest Period Claims Not Recoverable in California

On the heels of its long-awaited decision in Brinker v. Superior Court (Hohnbaum), No. S166350, the California Supreme Court this week issued another important wage and hour decision that favors employers. In Kirby v. Immoos Fire Protection, Inc. (Liu), No. S185827, the court ruled that neither employees nor employers can recover attorney's fees as prevailing parties on claims for meal and rest period violations. This is a key victory for California employers that routinely are subject to “one-way” statutes requiring them to pay attorneys’ fees to prevailing plaintiffs, but rarely, if ever, permitting employers to obtain such fees when they prevail. 

Kirby’s Key Points:

  • Neither California Labor Code Section 1194 (on minimum wage and overtime) nor Section 218.5 (on nonpayment of wages, fringe benefits, and health/welfare or pension fund contributions) authorizes attorney's fees to a party that prevails on a meal or rest break claim. 
  • “The most plausible inference to be drawn from [the legislative] history is that the Legislature intended section 226.7 [meal and rest break] claims to be governed by the default American rule that each side must cover its own attorney’s fees.”  

What Kirby Means for Employers:

  • Look for a possible, if not probable, decrease in lawsuits claiming meal and rest period violations.
  • Brace for the possibility that the California Legislature will respond to Kirby by implementing a fee-shifting provision to permit attorney's fees for violations of Section 226.7 claims.
  • Make sure to provide all non-exempt employees with 30-minute, unpaid, off-duty meal periods, as well as 10 minutes of rest for every four hours of work or major fraction (meaning two or more hours) – breaks that are uninterrupted and relieve employees of all work tasks.
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