In Earley v. Superior Court (2000) 79 Cal.App.4th 1420, the Court resolved an apparent conflict between the attorney fees provisions of Labor Code sections 1194 and 218.5. In that case, both sections 1194 and 218.5 potentially applied to determine the recovery of attorney fees in an action seeking overtime compensation, but established different attorney fees rules. Section 218.5 awarded fees to the prevailing party, while section 1194 awarded fees to the employee. The Court discussed the potential conflict between the code sections, and concluded that the Legislature intend-ed that section 1194 alone applies to civil actions seeking to recover unpaid overtime compensation, even though such claims could be construed as seeking payment of wages under section 218.5. The Court explained in Earley: "The only reasonable interpretation which would avoid nullification of section 1194 would be one which bars employers from relying on section 218.5 to recover fees in any action for minimum wages or overtime com-pensation. Section 218.5 would still be available for an action brought to recover nonpayment of contractually agreed-upon or bargained-for 'wages ....'. Such a harmonization of these two sections is fully justified. An employee's right to wages and overtime compensation clearly have different sources. Straight-time wages ... are a matter of private contract between the employer and employee. Entitlement to overtime compensation, on the other hand, is mandated by statute and is based on an important public policy." ( Earley, 79 Cal.App.4th at p. 1430.) After reviewing the strong public policy in enforcing violations of overtime compensation laws, we concluded that section 1194 alone applies to attorney fees in overtime compensation claims. ( Earley, at pp. 1430-1431.) In Earley v. Superior Court (2000) petitioners had brought a class action to recover unpaid overtime com-pensation. (Earley, supra, 79 Cal.App.4th at p. 1423.) They objected to an order requiring petitioners to notify absent class members that they might be liable for attorney fees and costs if their claim was unsuccessful. (Id. at pp. 1423-1424.) To decide the appeal, the appellate court had to determine, among other things, if section 1194 alone gov-erns whether attorney fees can be awarded in the defendant's favor, or if section 218.5 also applied, such that the two statutes should be read together to allow the prevailing party to recover attorney fees. (Earley, at p. 1426.) The court ruled that only section 1194 applied to the petitioner's cause of action for unpaid overtime, in light of legislative history, the distinct legislative source of the right to overtime compensation, and the fact that the Legislature specifically provided that only plaintiffs should recover attorney fees in overtime cases. (Earley, at pp. 1429-1431.) The court concluded: "The only reasonable interpretation which would avoid nullification of section 1194 would be one which bars employers from relying on section 218.5 to recover fees in any action for minimum wages or overtime com-pensation. Section 218.5 would still be available for an action brought to recover nonpayment of contractually agreed-upon or bargained-for 'wages, fringe benefits, or health and welfare or pension fund contributions.' Footnote omitted." (Earley, at p. 1430.) In Earley v. Superior Court (2000), the petitioners were seeking to recover unpaid overtime compensation. (Earley, supra, 79 Cal.App.4th at p. 1423.) At the appellate court, the petitioners sought review of a trial court order made during part of the class certi-fication process, which required a notice be sent to absent class members giving them the option to opt out of the class action. (Ibid.) The petitioners questioned whether it was proper to include, in the notice, a warning that absent class mem-bers might be responsible for the defendant's attorney's fees and costs if the petitioners' suit was unsuc-cessful. (Id. at pp. 1423-1424.) In order to resolve the matter, the appellate court considered whether the Labor Code allowed for a prevail-ing employer to recover attorney's fees in a suit for overtime compensation. (Id. at p. 1424.) The petitioners argued section 1194 was a specific statute that allowed for attorney's fees to be awarded only to a prevailing employee--not an employer. (Earley, supra, 79 Cal.App.4th at p. 1426.) The petitioners asserted Labor Code section 218.5, a more general statute than section 1194, should not be applied, because the specific provisions of section 1194 were controlling. (Earley, at p. 1426.) The Earley court described Labor Code section 218.5 as entitling "the prevailing party, in any action for 'wages,' to a mandatory award of costs and attorney's fees if, ... any party requests costs and fees at the start of the case." (Earley, at p. 1427.) The Earley court examined the legislative histories of Labor Code sections 218.5 and 1194. (Earley, supra, 79 Cal.App.4th at pp. 1427-1429.) Based on that history, the appellate court concluded the Legislature intended to give special treatment to claims for unpaid overtime compensation when it enacted section 1194. (Earley, at p. 1428.) Additionally, the appellate court noted that one-way fee shifting provisions tend to serve specific public policies, which would be vitiated if the fee awards were reciprocal. (Id. at p. 1429.) Based upon the foregoing, the appellate court held that section 1194 "should be recognized as the sole statutory authority for the award of attorney's fees upon the successful prosecution" of employees' overtime claims. (Earley, at p. 1429.) The appellate court went on to conclude that absent class members could not be held liable for a prevailing employer's attorney's fees and costs. (Earley, supra, 79 Cal.App.4th at p. 1431.) The appellate court explained absent class members are almost never liable for fees or costs, and "are not subject to coercive or punitive remedies." (Ibid.) The appellate court noted placing all of the cost risk on the named plaintiffs might have a chilling effect on overtime compensation lawsuits; however, the court believed that risk may be outweighed by the potential recovery. (Id. at pp. 1431, 1433.) The Court noted the potential conflict between the bilateral fee provision of Labor Code section 218.5 and the one-way fee-shifting provision of section 1194, because recovery of overtime and minimum wage com-pensation pursuant to section 1194 could also come within the more general category of an "action for non-payment of wages" to which section 218.5 would apply. The Earley court held that in light of the clear public policy underlying the unilateral fee-shifting provision of section 1194, to encourage and enable employees to enforce California's minimum wage and overtime laws, "the only reasonable interpretation which would avoid nullification of section 1194 would be one which bars employers from relying on section 218.5 to recover fees in any action for minimum wages or overtime com-pensation." (Earley, at p. 1430.) The court further noted that "to the extent that there is any irreconcilable conflict between these two sections, section 1194, as the later-enacted and more specific statute, would supersede section 218.5 as a matter of statutory construction." (Id. at p. 1430, fn. 9.) The Earley court noted that section 218.5 would still apply to an action brought to recover nonpayment of contractually agreed-upon or bargained-for "wages, fringe benefits, or health and welfare or pension fund contributions." (Earley, supra, 79 Cal.App.4th at p.1430.) Section 1194 would not preclude a fee award under section 218.5 with respect to claims for contractual wages. Yet, defendant did not seek apportionment of fees on this theory, and instead asked only that the court apportion fees attributable to the 2677 claims and the alter ego allegations. Defendants also did not challenge interveners' assertion that the total nonpayment of wages necessarily was a claim pursuant to sec-tion 1194 for overtime and minimum wages. The Court noted the potential conflict between the code sections, and concluded the Legislature intended that Labor Code section 1194 alone applies to recovery of attorney fees for overtime compensation claims, even though such claims could be construed as seeking payment of wages under section 218.5. In a well-reasoned decision, the court explained that the only reasonable interpretation of the Legislature's one-way fee shifting rule in section 1194 "would be one which bars employers from relying on section 218.5 to recover fees in any action for minimum wages or overtime compensation. Section 218.5 would still be available for an action brought to recover nonpayment of contractually agreed-upon or bargained for 'wages . . . .' Such a harmonization of these two sections is fully justified. An employee's right to wages and overtime compensation clearly have different sources. Straight-time wages . . . are a matter of private contract between the employer and employee. Entitlement to overtime compensa-tion, on the other hand, is mandated by statute and is based on an important public policy. . . . 'California courts have long recognized that wage and hour laws "concern not only health and welfare of the workers themselves, but also the public health and general welfare." . . . There can be no doubt that the one-way fee-shifting rule in section 1194 was meant to 'encourage injured parties to seek redress--and thus simulta-neously enforce the minimum wage and overtime laws--in situations where they otherwise would not find it economical to sue.' To allow employers to invoke section 218.5 in an overtime case would defeat that legis-lative intent and create a chilling effect on workers who have had their statutory rights violated. Such a result would undermine statutorily-established public policy. That policy can only be properly enforced by a recognition that section 1194 alone applies to overtime compensation claims." (Earley v. Superior Court, supra, 79 Cal.App.4th at p. 1430.) The Court explained that "absent class members may be 'parties' for certain purposes, but for other purpos-es they are not." (Id. at p. 1434, fn. 11.) What is clear, however, is that absent class members in a postcertification class--those who have received notice and elected not to appear or opt out--are not "parties litigant." In such a situation, the court has made a finding that the named plaintiff can adequately represent the absent class members, and the absent class members, by declining to intervene or opt out, have impliedly consented to be represented by the named plaintiff. "A class action is a representative action in which the class representatives assume a fiduciary re-sponsibility to prosecute the action on behalf of the absent parties. The representative parties not only make the decision to bring the case in the first place, but even after class certification and notice, they are the ones responsible for trying the case, appearing in court, and working with class counsel on behalf of absent members." (79 Cal.App.4th at p. 1434.)