Kirby v. Immoos Fire Protection, Inc.

(2012) 53 Cal.4th 1244

The § 226.7 premium is a wage, not a penalty. It cannot be recovered as a PAGA penalty. This distinction alone can reduce inflated demands by 30–50%. The foundation of every recoverability analysis.

Holding

The § 226.7 action is brought for the nonprovision of meal and rest periods, not for the nonpayment of wages. Labor Code § 218.5's fee-shifting provision does not apply. Neither prevailing employees nor prevailing employers can recover fees in standalone § 226.7 actions. The premium itself is a 'wage' (per Murphy v. Kenneth Cole Productions), but the legal violation triggering the remedy is the failure to provide breaks.

Impact on Defense Practice

The foundational authority for stripping non-recoverable categories from PAGA exposure calculations. If the § 226.7 premium is a wage, it is not recoverable as a PAGA penalty — only the default penalty under § 2699(f)(2) applies. This distinction alone can reduce theoretical exposure by 30-50%. Note: Naranjo (2022) clarified that premiums are 'wages' for waiting time and wage statement purposes — unpaid premiums at separation trigger § 203 penalties.

Defense Strategy

Challenge any plaintiff PAGA calculation that includes § 226.7 premium amounts as penalties. The correct PAGA exposure for meal/rest violations is the default $100/$200 penalty per employee per pay period, not the premium amount. Strip non-recoverable categories systematically using the ZB, N.A. framework. The Recoverability Checker tool on this site automates this analysis.

This analysis is for informational purposes only. Case law is current as of Q1 2026.