KPA's monthly update is now available. our June featured articles are:
- Court of Appeal Finds Green Water Drop on Bottled Water in not Greenwashing, by Roxanna Tabatabaeepour
- Class Actions after ATT Mobility v Concepcion, by Robert Drexler
- What Will the California Supreme Court’s Decision in Brinker Mean for the Future of Meal and Rest Break Cases?, by Launa Adolph
In a previous article for the KPA newsletter, I wrote about the Third District’s decision in Kirby v. Immoos Fire Protection, Inc., 186 Cal. App. 4th 1361 (2010) and its implications on plaintiffs including meal and rest break claims in misclassification cases. Today, the California Supreme Court granted review of the Kirby decision.
In Kirby, the court upheld a fee award in favor of an employer who successfully defended a rest period claim, concluding that meal and rest period claims were governed by Labor Code section 218.5’s two-way fee shifting provisions, rather than the one-way fee shifting of Section 1194.
As Matt Bailey discussed in a post today on the Bailey Dailey, this holding poses a significant issue, as two-way fee shifting would severely chill private enforcement of an employee’s statutory right to recover meal and rest period premium wages. The thrust of the argument in opposition to the court’s ruling in Kirby is that Section 226.7 premium wages should be governed by Section 1194, not only because Section 226.7 proscribes a statutorily mandated wage, but also because the California Supreme Court concluded in Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007) that meal and rest break premium pay is itself a form of overtime compensation.
According to the California Supreme Court’s website, the issues on review are as follows:
(1) Does Labor Code section 1194 apply to a cause of action alleging meal and rest period violations (Lab. Code, 226.7) or may attorney's fees be awarded under Labor Code section 218.5, (2) Is our analysis affected by whether the claims for meal and rest periods are brought alone or are accompanied by claims for minimum wage and overtime?
In January 1999 Merck began their Vioxx Gastrointestinal Outcomes Research (VIGOR) study which compared Vioxx to naproxen, which is the active ingredient in some brand name pain relievers. At the conclusion of the study it was not only apparent that there was a lower incidence of gastrointestinal events in patients being treated with Vioxx , but more significantly there was a higher risk of cardiovascular events in those same patients. On March 27, 2000 Merck issued a public statement explaining those results:
Among patients treated with Vioxx, there was significantly reduced incidence of serious gastrointestinal events compared to patients treated with naproxen…………In addition, significantly few thromboembolic events were observed in patients taking naproxen in this GI outcomes study, which is consistent with naproxen’s ability to block platelet aggregation. This effect on these events had not been observed previously in any clinical studies for naproxen. Vioxx, like all COX-2 selective medicines, does not block platelet aggregation and therefore would not be expected to have similar effects.
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Three reasons why you should read the November KPA Newsletter:
1. It is the best place to learn about the latest developments in plaintiff litigation.
2. KPA attorney's Becki Kammerling, Nancy Gardner and Roxanna Tabatabaeepour are this month's featured authors.
3. See what other top attorneys across the state are reading!
Subscribe to the KPA Newsletter by going here!
Check out the KPA October 2009 Newsletter which includes articles by associates Katie McSweeney, Abi Gnanadesigan and Deborah Khantamour.
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