Aleman v. Airtouch Cellular: On Remand, Court Rules on Attorney Fees In Split Shift and Reporting Time Class Action

In Aleman v. AirTouch Cellular (2011) 202 Cal.App.4th 117 (discussed here) the Court of Appeal affirmed an order granting summary judgment to an employer in a putative class action, issuing three holdings of note:

First, an employer does not have to pay its employees “reporting time pay” for attending meetings at work when the meetings are scheduled, and the employees work at least half the scheduled time, even if the scheduled time is less than four hours.

Second, an employer does not owe its employees “split shift” compensation if, when they work split shifts, they earned more than the minimum wages required by the wage order.

Third, the employer could not recover its attorney fees because the claims arose under Labor Code section 1194, the one-way fee-shifting statute for minimum wage and overtime claims, rather than section 218.5, which allows either party to recover its fees when it succeeds in an action for the nonpayment of wages.

In March, 2012, the California Supreme Court granted review in Aleman pending its decision in Kirby v. Immoos Fire Protection, Inc. The Court issued its Kirby  decision in April (discussed here) and transferred Aleman back to the Court of Appeal for reconsideration.

The Court of Appeal issued its new decision last week. Aleman v. AirTouch Cellular (9/20/12) --- Cal.App.4th ---. The Court again held that the plaintiffs could not recover reporting time pay (slip op. at 9-16) or split shift compensation (slip op. at 16-19).

The Court reversed its earlier decision on attorney fees in part. It began by reviewing Kirby, which held that Labor Code section 226.7 claims for missed meal and rest periods are not subject to Labor Code section 1194 because they are not minimum wage claim, nor are they subject to section 218.5 because they are claims for failure to provide meal and rest periods, not claims for nonpayment of wages.

Applying this logic, the Aleman Court held: (1) a split shift claim is a claim for minimum wages and is subject to section 1194 (slip op. at 25-26); but (2) a reporting time pay claim is not a minimum wage claim, and is subject to section 218.5, rather than section 1194 (slip op. at 26-27). The Court remanded to the trial court to award the defendant only such fees as were attributable to the reporting time claims.

The opinion is available here.