As a general rule, the law lacks a sense of humor. Because of that substantial absence of levity, it is up to us to find amusement in unexpected places. Sometimes a court authors a witty opinion that is entertaining as a form of sharp commentary. Other times, the humor is relegated to commentary on current legal news. But that doesn't exhaust our options. Today, in Kirby, et al. v. Immoos Fire Protection, Inc. (April 20, 2012), the California Supreme Court demonstrated that humor exists in the law when a case outcome is contrary to all expectations. When asked to decide whether the plaintiff alone, or any prevailling party, is entitled to attorney's fees for alleged violations of Labor Code § 226.7, the Court chose Answer C, none of the above.
The plaintiffs brought a wage & hour class action. Certification was denied. The plaintiffs dismissed the case with prejudice. Defendant Immoos moved for fees as the prevailing party on claims for meal and rest break violations. Plaintiffs argued that, because section 226.7 claims require payment of wages for the violation of the statute in a manner that is tantamount to a minimum wage obligation, the one-way fee-shifting statute applicable to section 1194 applies. Defendant Immoos argued that the action was for the "non-payment of wages," thereby brining the action within the two-way fee provision of section 218.5. Breaking its task down, the Supreme Court said:
In resolving the case before us, we must initially ask whether a section 226.7 claim is a claim for which attorney's fees could be awarded to a prevailing employee under section 1194. If so, then IFP may not be awarded fees under section 218.5 even though it prevailed on the rest period claim in this case. If not, then we must separately examine whether section 218.5 authorizes a fee award to IFP on plaintiffs' section 226.7 claim.
Slip op., at 6. The Court immediately rejected the argument that any statutory or administrative compensation requirement is a "legal minimum wage." Instead, the Court supplied a common sense reading to the meaning of section 1194, finding that it created a minimum hourly rate of pay, and not a one-way fee shifting provision for every form of statutory or administrative compensation. Based on this construction, the Court concluded that section 226.7 claim is not a claim for which attorney's fees could be awarded to a prevailing employee under section 1194.
Nonpayment of wages is not the gravamen of a section 226.7 violation. Instead, subdivision (a) of section 226.7 defines a legal violation solely by reference to an employer's obligation to provide meal and rest breaks. (See § 226.7, subd. (a) [“No employer shall require any employee to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commision.”].) The “additional hour of pay” provided for in subdivision (b) is the legal remedy for a violation of subdivision (a), but whether or not it has been paid is irrelevant to whether section 226.7 was violated. In other words, section 226.7 does not give employers a lawful choice between providing either meal and rest breaks or an additional hour of pay. An employer's failure to provide an additional hour of pay does not form part of a section 226.7 violation, and an employer's provision of an additional hour of pay does not excuse a section 226.7 violation. The failure to provide required meal and rest breaks is what triggers a violation of section 226.7. Accordingly, a section 226.7 claim is not an action brought for nonpayment of wages; it is an action brought for non-provision of meal or rest breaks.
Slip op., at 13-14. Thus, since section 226.7 is not an action for nonpayment of wages, section 218.5 does not apply either. The Court followed with this observation:
It is no answer to say that a section 226.7 claim is properly characterized as an action brought for (i.e., on account of) nonpayment of wages because if a defendant employer had provided the additional hour of pay remedy, presumably the plaintiff would not have brought the action at all. Such a characterization is a departure from the way we conventionally distinguish between the legal basis for a lawsuit and the remedy sought. Consider a typical lawsuit that alleges unlawful injury and seeks compensatory damages. We may say that the suit is an action brought for violation of some legal duty. But we do not say that the suit is an action brought for nonpayment of damages — even though the action would not have been brought had the defendant paid the damages for the plaintiff's injury.
Slip op., at 14. So that's that. No fees for prevailing party under section 226.7 for either side.
Meanwhile, note again this little morsel: "In other words, section 226.7 does not give employers a lawful choice between providing either meal and rest breaks or an additional hour of pay." Oops. Even if the employer pays the money, it isn't excused from the violation. But, since attorney's fees aren't available directly, the chances of an action for injunctive relief are diminished. That leaves 1021.5 or other fee-shifting bases, which are far from guaranteed.