California Supreme Court Grants Review in Kirby v. Immoos Fire Protection

In a previous article , I wrote about the Third District’s decision in Kirby v. Immoos Fire Protection, Inc., 186 Cal. App. 4th 1361 (2010) and its implications on plaintiffs including meal and rest break claims in misclassification cases.  Today, the California Supreme Court granted review of the Kirby decision.

In Kirby, the court upheld a fee award in favor of an employer who successfully defended a rest period claim, concluding that meal and rest period claims were governed by Labor Code section 218.5’s two-way fee shifting provisions, rather than the one-way fee shifting of Section 1194.

As Matt Bailey discussed in a post today on the Bailey Dailey, this holding poses a significant issue, as two-way fee shifting would severely chill private enforcement of an employee’s statutory right to recover meal and rest period premium wages. The thrust of the argument in opposition to the court’s ruling in Kirby is that Section 226.7 premium wages should be governed by Section 1194, not only because Section 226.7 proscribes a statutorily mandated wage, but also because the California Supreme Court concluded in Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007) that meal and rest break premium pay is itself a form of overtime compensation.

According to the California Supreme Court’s website, the issues on review are as follows:

(1) Does Labor Code section 1194 apply to a cause of action alleging meal and rest period violations (Lab. Code, 226.7) or may attorney’s fees be awarded under Labor Code section 218.5, (2) Is our analysis affected by whether the claims for meal and rest periods are brought alone or are accompanied by claims for minimum wage and overtime?