Employers' Ability To Collect Attorney's Fees In Wage Cases Restricted by New Bill

On August 26, 2013, California Governor Jerry Brown signed Senate Bill 462 into law, making it harder for employers to obtain attorney’s fees in certain employment wage claim cases.

Prior to the passage of SB 462, section 218.5 of the California Labor Code required a court in any action brought for the nonpayment of wages, fringe benefits, or health and welfare pension fund contributions, to award reasonable attorney’s fees and costs to the prevailing party who requests such fees and costs at the outset of the case, regardless of whether the prevailing party was the employer or the employee.

SB 462 changed that, providing instead that an employer cannot obtain attorney’s fees under section 218.5 just by prevailing – it must also establish that the employee brought the court action “in bad faith.” By contrast, an employee can still obtain attorney’s fees and costs where he or she prevails, without having to prove “bad faith.”

The bill is a response to the California Supreme Court’s decision in Kirby v. Immoos Fire Protection, Inc. which, while denying section 218.5 attorney’s fees in the case before it, affirmed that section 218.5 “awards fees to the prevailing party whether it is the employee or the employer; it is a two-way fee-shifting provision.” Following the Court’s issuance of that opinion, plaintiffs’ attorneys have been seeking to change fee shifting provisions of section 218.5, claiming that a two-way fee-shifting provision has a chilling effect on contractual wage claims.

Opponents of the measure, as reported in the official senate records on the bill, point out that section 218.5 has been in place since 1986, that Kirby merely reaffirmed its clear language, and that the bill will “incentivize further meritless wage and hour litigation.”

What does the law mean for employers? First, it is important to note that while SB 462 raises the bar for employers to obtain attorney’s fees where they prevail in such cases, this law does not apply to minimum wage or overtime claims. Another provision of the Labor Code, section 1194, already provides for just a one-way fee-shifting provision, providing attorney’s fees to employees who are successful in proving their overtime and minimum wage claims, but not corresponding attorney’s fees to successful employers.

In other words, the Labor Code, which is already quite lopsided in favor of employees seeking attorney’s fees, has just become more lopsided.

The meaning of the law’s “bad faith” provision is also far from certain. Until subsequent litigation settles the matter, we can only be guided by cases that have sought to define “bad faith” in similar contexts.

For example, in Gemini Aluminum Corp v. Cal. Custom Shapes the Court dealt with a statute awarding attorney’s fees to successful defendants in claims under the Uniform Trade Secrets Act, which provides such fees if a claim of misappropriation is made “in bad faith” – a term which, as in the present case, was not defined by the statute. The court ruled that “bad faith” requires objective “speciousness” of the plaintiff’s claim together with subjective bad faith in bringing or maintaining the claim.

If such a standard is adopted in the context of section 218.5, it might have the unexpected consequence of increasing the prevalence of discovery aimed at the subjective intentions of the plaintiff employee, which might conceivably justify more extensive inquiries into the employee’s personal life and circumstances. This is perhaps one small silver lining employers and employment defense attorneys can take away from what is, on the whole, a win for the plaintiff’s bar.

To discuss SB 462, or other aspects of wage and hour law, please contact the author.

Originally posted to Barger & Wolen's Employment Law Observer.

Trial Court Abuses Its Discretion by Forcing Insurer to Bear the Cost of Giving Notice to Putative Class Members

In In re Insurance Installment Fee Cases, 2012 DJDAR 16696 (2012), the California Court of Appeal for the Fourth Appellate District decided an important class action cost recovery issue. The case arose in the insurance context.

A class action was filed against State Farm (“State Farm”) by a class representative. The representative pursued discovery seeking access to the class members’ personal and payment information, designed to identify which insureds might be eligible as plaintiffs in the class.  State Farm objected to the discovery requests. The plaintiff filed motions to compel the requested documents and the parties agreed to refer the dispute to a discovery referee. The discovery referee overruled State Farm’s objections. State Farm filed written objections to the referee’s recommendation which were subsequently overruled by the trial judge. The trial court also ordered State Farm to pay for and to mail out the notices regarding the discovery propounded by the plaintiffs. The merits of the litigation were subsequently decided in favor of State Farm.

State Farm filed a memorandum of costs after prevailing at the trial court level. In the cost memorandum State Farm sought to recover the $713,463 it incurred in sending out the notices to putative class members. The plaintiffs filed a motion to tax those costs. The trial court granted the motion to tax costs in its entirety.

The court of appeal reversed the trial court’s decision in part, and concluded the trial judge abused his discretion in taxing the costs relating to the mailing of the notices to putative class members. 

The court of appeal noted that certain cost items may be awarded in the trial court’s discretion if they are “reasonably necessary to the conduct of the litigation.” CCP § 1033.5(c)(2) and Seever v. Copley Press, 141 Cal. App. 4th 1550, 1558 (2006). 

However, when a party demands discovery involving significant “special attendant costs” beyond those typically involved in responding to routine discovery, the demanding party should bear those costs if the party is not successful in prevailing in the litigation. 

In reversing the trial court’s decision, the court of appeal reasoned that the costs State Farm incurred in providing the notice were “special attendant” costs beyond those involved in responding to routine discovery.

Originally posted to Barger & Wolen's Litigation Management & Attorney Fee Analysis blog.