New Court Decision Says Employers Cannot Recover Attorney’s Fees from workers in Rest or Meal Break Lawsuits

Alert number: 
May 7, 2012


Having recently decided how often employees are entitled to rest and meal breaks in a work day in Brinker Restaurant Corp., et al. v. Superior Court (April 12, 2012), the California Supreme Court, on April 30 issued another important ruling in Kirby v. Immoos Fire Protection, Inc., and re-emphasized that rest and meal period protections exist to protect the health and safety of workers.

The Court held that employers cannot recover attorney’s fees from workers who go to court to enforce rest and meal break protections and lose (and employees cannot seek payment of their attorney’s fees from the employer if they win). In other words, in these types of cases each party bears their own attorney’s fees.

New California Supreme Court Decision

The American Rule, which requires all parties to bear their own fees is generally applicable unless a statute or specific agreement among the parties provides for fee shifting to the prevailing party. The Court in its decision upheld the American Rule as to meal and rest break claims, clarifying two sections of the Labor Code that seemed to be in conflict on this point.

This is a very important ruling for low-wage workers because as the Court noted, they are the “likeliest to suffer [rest and meal period] violations.” Had the Court required workers to pay attorney’s fees to employers for rest and meal break claims which were not successful it would have had a chilling effect on enforcement of these important protections by deterring many low-wage workers from asserting these claims pursuant to Labor Code section 226.7.


Ms. Y files a lawsuit directly in superior court alleging only meal and rest break violations. Although she wins her meal break claim, she loses her rest break claim. The employer cannot recover any of its attorney’s fees, even though it “successfully defended” the rest break claim. Additionally, even though Ms. Y won her meal break claim, she cannot recover any fees from her employer.

Guidance for Workers

If California workers face rest or meal break violations, they are entitled to “premium pay” for working through their breaks: one hour of pay for each day a meal break was missed, and an additional one hour of pay for each day a rest break was missed. If workers bring a lawsuit against their employer in court and lose, they will not be required to pay their employer’s attorney’s fees (nor will they be able to claim fees). The Kirby decision does not affect workers who file and win their claim with the Division of Labor Standards Enforcement (Labor Commissioner), and whose employer subsequently appeals the decision to court.


If you have been denied adequate access to meal or rest breaks by your employer, you can contact your local offices of the California Labor and Workforce Development Agency (LWDA) or the Division of Labor Standards Enforcement. Those offices are listed on the LWDA and DLSE websites.


You can find free information about worker’s rights on our website. If you have additional questions, please contact our Workers’ Right Clinic at 415-864-8208 or toll-free at 866-864-8208.

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