Issue is KIrby/UPS Labor Code sections 218.5 and 1194 Interplay.
Two cases--Kirby v. Immoos Fire Protection, Inc. and United Parcel Service Wage & Hour Cases (McGann)--are currently pending before the California Supreme Court. They discuss the issue of whether a prevailing employer may be awarded attorney’s fees under Labor Code section 218.5 (which allows fees to a prevailing party in wage/hour/benefit disputes) when the plaintiff joins in a single complaint a claim under Labor Code section 1194 (overtime compensation fee shifting provision which is unilateral only in favor of employee) as well as other causes of action (one arguably outside section 1194). Kirby said no complete bar to employers obtaining fees as to meal/rest period losing claims, while UPS agreed there was no complete bar but held that missed meal/rest claims do not trigger the reciprocal section 218.5 fee recovery provisions.
In our September 28, 2011 post, we discussed UPS Wage & Hour Cases (Salicido), an unpublished Second District decision that followed the lead of McGann notwithstanding supreme court review.
Now, the First District, Divsion 3 in Zelasko-Barrett v. Brayton-Purcell, LLP, Case No. 131601 (1st Dist., Div. 3 Oct. 24, 2011) (unpublished) chimed in, finding section 1194 is not a complete bar to an award of fees in an action that includes both nonpayment of overtime wages under section 1194 and any other claims. However, it reversed a $120,000 fee award in favor of employer and against employee because employee’s various claims rested on the theory that he was not exempt such that each claim was primarily based on the wrongful withholding of overtime compensation. (Accord, Lopez v. U.P.S., 2010 U.S. Dist. LEXIS 136352 at *4 (N.D.Cal. 2010).)