In the wake of the seminal Brinker Restaurant Corp.v. Superior Court (2012) 53 Cal. 4th 1004, the Kirby case, a true jewel for the defense bar, has slipped by virtually unnoticed. This case, another gift from our local Supreme Court to the defense bar and to industry, has the potential to be just as deadly to actions for wage and hour violations as its more celebrated sibling. In short, the ruling in Kirby is that a Plaintiff who sues for meal and rest break violations under Labor Code Section 226.7 is not entitled to attorneys fees under any statute. The legislative purpose in awarding attorneys fees to a victorious Plaintiff suing for overtime is to make it economically viable to punish small violations that would uneconomical without the incentive of attorneys fees.
Labor Code Section 1194 expressly provides that a prevailing Plaintiff in an action for unpaid overtime is entitled to reasonable attorneys fees. Thus, a worker who has been ripped off for $2,000 in unpaid overtime may be able to persuade a lawyer to take his or her case, knowing that the fee award if Plaintiff wins will compensate him or her for the time expended, thereby deterring illegal behavior. One would logically think that the same statute would apply to unpaid meal and rest periods; violations that go hand in hand with overtime violations. The legislative principle is identical, the problem widespread, and the damages usually smaller than in an overtime case. The court labored hard in Kirby to find a reason why Section 1194 should not apply to meal and rest period violations. The reasoning is unsound and unpersuasive. The fact is, as Brinker illustrates very clearly, the California courts are legislating away compensation for meal and rest period violations.
This court though not only held fees unavailable under Labor Code Section 1194, it went further to deny fees to Plaintiff under any statute, including Labor Code Section 218.5. That section provides that in an action for unpaid wages except overtime, the prevailing party, be it Defendant or Plaintiff, may recover reasonable attorneys fees. Determined to shut off oxygen to suits for meal and break violations, the court held that each side bears their own fees, win, lose ,or draw. This is very bad news for the Plaintiff bar: attorneys will, we predict, only rarely take on a meal or break violation case. For now, such cases are effectively dead unless they are an adjunct to a case whose main focus is another legal theory.
The judiciary seems to have taken on the role of protector of business. The economy may be playing a role, along with political pressure to make California a “business friendly” state…….like Texas. The fact is that at the end of the day it is the little guy who pays. We are determined to fight even harder for your rights through the legal and political process. If we at Ainley Law can help you, we will. You can count on it.