The California Supreme Court heard oral arguments a few days ago in Kirby v. Immoos Fire Protection, Inc. Kirby claimed, among other things, that his employer did not provide rest periods, and therefore was liable for the one-hour of pay for each violation.
Kirby did not prevail on this claim. The employer moved for attorneys' fees under Labor Code section 218.5. This section states that the court shall award attorneys' fees to the prevailing party in any action alleging non-payment of wages. Employer contended that the one-hour premium is considered a wage; therefore, it was entitled to fees from Kirby.
Kirby argued that the lawsuit was governed by section 1194 of the Labor Code which awards attorneys' fees to the employee (but not the employer) if the lawsuit related to claims for minimum wages or overtime.
The Court of Appeal sided with the employer, awarding $50,000 in attorneys' fees.
Now the matter is in the Supreme Court. Let's hope the court upholds the Court of Appeal decision. It's just not fair that an employee can obtain attorneys' fees if (s)he wins, but the employer cannot. The better rule is that articulated by the Court of Appeal. I suspect that employees might think harder before filing a lawsuit for unpaid wages if (s)he knew (s)he might end up paying the employer's legal fees.
What is good for the goose is good for the gander. Let's hope we can report to you in a few weeks that the Supreme Court agrees. Such a ruling could stem the tide of claims for meal and rest period violations.