California Labor &
Employment Law Blog
Feb 24, 2011

Court Says No Attorneys’ Fees for Prevailing Employer in Wage Case

Topics: Court Decisions, Wage & Hour Issues

This week a California court held that an employer prevailing in a wage and hour case is not entitled to recover its attorneys' fees under Labor Code section 218.5, notwithstanding the fact that section 218.5 expressly provides that the prevailing party is entitled to recover such fees. In McGann v. UPS, the plaintiff sued for alleged unpaid overtime, missed meal and rest period pay, and non-compliant wage statements. The employer prevailed on summary judgment on all claims except the overtime claim, which went to trial. At trial, the employer prevailed on that claim as well. Following trial, the employer requested an award of attorneys' fees for the amounts incurred in defense of all claims except the overtime claim. The employer conceded that fees were not recoverable on the overtime claim because overtime claims are governed by Labor Code section 1194, which only allows for recovery of attorneys' fees by a prevailing employee (not by a prevailing employer). The employer, however, argued that the remaining non-overtime claims were governed by Labor Code section 218.5, which on its face provides for the recovery of attorneys' fees by "the prevailing party" (regardless of whether the prevailing party is the employee or the employer).

The court rejected the employer's request for an award of attorneys' fees, holding that because the plaintiff alleged an overtime claim, the entire action was governed by section 1194's unilateral fee-shifting provision and that section 218.5 simply did not apply. Moral of the story? Employees should always allege a frivolous overtime claim in any wage-related lawsuit.

Employers may recall a recent decision this past year upholding an award of attorneys' fees for the employer under section 218.5 after the employer prevailed in a meal and rest breakcase. That decision, Kirby v. Immoos, is currently before the California Supreme Court. (Our prior post on the Kirby case is here.) The Kirby decision should provideclear (and hopefully better) guidance on this issue for California employers.

About CDF

For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

> visit primary site

About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
> Contact   > Full Bio   Call 916.361.0991

Carothers DiSante & Freudenberger LLP © 2020

About CDF What We Do Contact Us Attorney Advertising Disclaimer Privacy Policy Cookie Policy