Issue Is Under Review by California Supreme Court in UPS Wage and Hour Cases (McGann).
In our February 26, 2011 post, we discussed United Parcel Service Wage and Hour Cases (McGann), 192 Cal.App.4th 1425, where the Second District, Division 8 decided that a prevailing defendant employer is not entitled to recover attorney’s fees under Labor Code section 218.5 for successful defense of plaintiffs’ claims for alleged failure to pay meal and rest break premiums under Labor Code section 226.7. The California Supreme Court granted review of UPS (McGann) on May 11, 2011, S191908.
Now, in the unpublished decision of United Parcel Service Wage and Hour Cases (Salcido), Case No. B227556 (2d Dist., Div. 8 Sept. 26, 2011) (unpublished), the same division reached the same conclusion. This is must reading for practitioners involved in the state supreme court briefing, because the appellate court does both statutory, legislative history, and case law analysis in coming to its end result. The bottom line was this: “Construing the entire statutory scheme with a view toward protecting employees, as we must, we again find that a claim for remedial compensation under section 226.7 does not trigger the reciprocal fee recovery provisions of section 218.5.” (Slip Opn., p. 8.)
Justice Grimes wrote the opinion on behalf of a 3-0 panel.