Under California law, it is the general principal that each side pays its own attorney’s fees. However, many laws specifically entitle the “prevailing party” to recover reasonable attorney’s fees from the losing party. Other provisions of the Labor Code provide that the “prevailing party” may recover its reasonable attorney’s fee. The recovery of attorney’s fees by Plaintiffs in employment law cases is one of the motivating reasons that so many “wage and hour” lawsuits are filed.
For Example:
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Labor Code Section 218.5, provides that the “prevailing party” can recover attorney’s fees in any action brought “for the nonpayment of wages.”
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Labor Code Section 1994, provides that the “prevailing employee” should be awarded attorney’s fee in an action for any unpaid minimum wage or overtime compensation.
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Labor Code Section 218.5, which provides for the recovery of attorney’s fees in an action for the non payment of wages, but does not apply to actions for the recovery of minimum wages or for overtime premium pay.
The question recently addressed by the California Supreme Court was whether a prevailing employer can use Section 218.5 to recover its attorney’s fees in cases where there is an allegation of the denial of meal or rest breaks. The answer is NO. (Kirby v. Immoos Fire Protection, Inc.)
The Court ruled that a claim for the “penalty” payment for the denial of a meal or rest break is not a claim for “the non-payment of wages” but is instead a claim for the denial of the meal and rest breaks penalty (even though that penalty has been deemed to be a “wage”).
The Good News (finally):
Neither a prevailing plaintiff nor a prevailing defendant in a claim for denied meal or rest breaks is entitled to attorney’s fees for winning the case.
The Court undertook an extensive analysis of the various Labor Code Sections which are in conflict as to the attorney’s fees provision and ultimately ruled that neither party may recover their attorney’s fees in a claim for missed meal or rest breaks under Labor Code Section 218.5.
However, attorney’s fees may still be recovered by a “prevailing employee” if the claim includes a claim under the Private Attorney General Act (known as PAGA) where an employee takes on the lawsuit on behalf of all “aggrieved” individuals.