A recent The Recorder story, “Justice Grapple with Attorney Fee Awards in Rest Break Suit,” reports that after wading into the latest wage-and-hour suit, the state Supreme Court sounded wary of allowing the winning side to recover attorney fees in suits over missed breaks.  In Kirby v. Immoos Fire Protection, a Sacramento Superior Court judge awarded fees to the defendant after the plaintiffs failed to win class certification and dropped the suit over rest breaks against Immoos Fire Protection.  The Third District upheld the award.

The plaintiffs argued in court Tuesday that rest breaks suits like the one they brought should be governed by the Labor Code Section 1194, which concerns suits for overtime and minimum wage violations and only allows plaintiffs to recover attorney fees.  Mark Peters, a partner at plaintiffs firm Duckworth, Peters, Lebowitz, Olivier LLP in San Francisco, said the court might end up “splitting the baby” by ruling that payments for lost benefits like meal and rest breaks aren’t wages and therefore neither party is eligible for fees under the labor codes at issue in Immoos.

George Abele, a Los Angeles-based Paul Hasting partner arguing for amicus California Employment Law Council, said payments for lost breaks should fall under a miscellaneous category of “all other wages,” governed by Section 218.5, which awards fees to the prevailing party.  Defense attorneys opened with a dramatic appeal to the court.  Robert Rediger of Sacramento’s Rediger, McHugh & Owensby, who represents Immoos, told justices that treating lost breaks as wages would open wage-and-hour suits up to “gamesmanship” by plaintiffs attorneys seeking to “insulate” themselves against defense fee awards.