Employers have been accustomed to recovering attorneys’ fees when they prevail in wage and hour claims brought under California Labor Code section 218.5. That provision required a court in any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, to award reasonable attorneys’ fees and costs to the prevailing party if any party to the action requests attorneys’ fees and costs upon the initiation of the action.

Then along came the case of Kirby v. Immoss Fire Protection, Inc., where a trial court awarded attorneys’ fees to an employer who prevailed in a wage case alleging, among other things, meal and rest break violations.  The employer’s fee award was affirmed by the California Court of Appeal.

The California Supreme Court, however, reversed the decision and held that Labor Code section 218.5 does not apply to meal and rest break claims, reasoning that these claims are not claims alleging “non-payment of wages.”  The Court’s ruling left open the possibility that a prevailing employer could recover attorneys’ fees in certain other types of wage-related actions. But that was not the final word on the matter.

The California Legislature introduced Senate Bill (SB) 462 to amend Labor Code section 218.5. As of August 26, 2013, a prevailing employer may only recover attorney’s fees if a trial court finds that the employee brought the wage action in bad faith.

As a result of this amendment, a Labor Code that was already slanted in favor of employees seeking attorneys’ fees became even more slanted in favor of employees. There is no longer any realistic opportunity to recover fees against an unsuccessful plaintiff in a case alleging unpaid wages.

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