Bryan Schwartz Law, P.C. Represents California Employment Lawyers Association to California Supreme Court

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Bryan Schwartz Law, P.C. Represents California Employment Lawyers Association to California Supreme Court

Bryan Schwartz Law, P.C. Represents California Employment Lawyers Association to California Supreme Court

Amicus Brief Argues for Reversal of Kirby, et al. v. Immoos Fire Protection, Inc., Shifting Burden of Defendants’ Attorneys Fees to Plaintiffs in Unsuccessful Meal-Rest Period Premium Litigation

Bryan Schwartz Law, P.C. submitted to the California Supreme Court on July 11, 2011, as amicus curiae on behalf of the California Employment Lawyers Association, an organization of approximately 1,000 attorneys representing workers throughout California in wage and hour, discrimination, whistleblower, and other types of cases.

The brief argues that the decision of the Court of Appeal in Kirby, et al. v. Immoos Fire Protection, Inc., 113 Cal.Rptr. 370 (2010), review granted November 17, 2010 (Case Number S185827) (“Kirby“), would destroy workers’ ability to sue to recover unpaid meal and rest period premiums, when employers steal time from them during their breaks.

Kirby disregarded the extensive Supreme Court jurisprudence requiring construction of the California Labor Code in the most protective manner to employees that is possible, based on a reasonable interpretation of the language of the statutes. In reversing, the Supreme Court should hold that Kirby erred in reading California Labor Code section 218.5, which provides for two-way fee-shifting in cases other than those encompassed in California Labor Code section 1194, to apply to meal and rest period premium cases under California Labor Code sections 226.7 and 512 and the Wage Orders of the Industrial Welfare Commission.

Specifically, California Labor Code section 1194 allows only one-way fee-shifting – i.e., that an employer found to violate the law must pay the attorneys’ fees of the person who brought the claim, but the opposite is not true. California Labor Code section 1194 includes claims for overtime and for “the legal minimum wage.” In Murphy v. Kenneth Cole (2007) 40 Cal.4th 1094, 1109-1110, the California Supreme Court found that the meal and rest period premiums required under Section 226.7, etc.(an additional hour of pay at an employee’s regular rate) are wages. Thus, they are the legal minimum wage that an employer must pay whenever an employee misses breaks, and Section 1194 is applicable.

The decision also erred in reading section 218.5’s preclusion of two-way attorneys’ fees shifting in “any action” seeking compensation under section 1194 to be limited only to the cause of action alleging overtime and “legal minimum wage” claims, instead of the whole civil action. Since meal/rest claims are generally brought together with overtime and other minimum wage violation claims, it only makes sense for “any action” in section 218.5 to refer to the whole case. Otherwise, it is unclear what will happen when someone loses a case in which a worker says that he/she missed meal periods, and as a result, had unpaid overtime as well – i.e., worked through lunch periods, so actually worked 8.5 hours a day, instead of the maximum 8 regular hours, but never got paid overtime for the extra half hour.

Employees should not be forced to pay their employers’ attorneys’ fees every time their cases to enforce the law do not succeed. Simply put – neither they, nor their lawyers, could afford the risk, and as such, the consequence of Kirby would be to kill litigation seeking to enforce the meal and rest period premium laws of California. With the government enforcement agencies seriously understaffed, private enforcement is the only way to give employees a fighting chance of enforcing their rights to either receive meal and rest periods in California workplaces or be paid premiums by their employers.

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