• In August 2016, plaintiff sued defendants. The complaint alleged defendants regularly failed to give plaintiff her full uninterrupted rest periods, and that defendants wrongfully terminated plaintiff in retaliation for her making internal complaints that defendants violated wage and hour laws and food safety laws.
  • The trial court awarded plaintiff over $280,000 in attorneys’ fees, even though the only wage and hour claims alleged and litigated were for rest break and meal period violations, and claims for penalties based on those violations.
  • The Labor Code mandates an award of reasonable attorney fees to the prevailing party in any action brought for the nonpayment of wages, if any party requests attorney fees at the initiation of the action. (Lab. Code, § 218.5, subd. (a).) But an action brought for failure to provide rest breaks or meal periods (§ 226.7) is not “an ‘action brought for the nonpayment of wages’” within the meaning of section 218.5. (Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1255 (Kirby); Id. at p. 1259 [“the Legislature intended section 226.7 claims to be governed by the default American rule that each side must cover its own attorney’s fees”].)
  • On this appeal, the Betancourt judgment was reversed to the extent it awards attorney fees to plaintiff, and the cause was remanded for entry of a new and different judgment denying recovery of attorney fees.



Missed Rest or Meal breaks alone cannot form the Basis for Recovery of Attorneys’ Fees

California Labor Code Section 218.5 requires an award for attorneys’ fees “[i]n any action brought for the nonpayment of wages,” if requested at the initiation of the suit. The Court of Appeal (Second Appellate District, Division Eight) in Betancourt v. OS Restaurant Services, LLC, et al. (Cal. Ct. App., Apr. 30, 2020, No. B293625) 2020 WL 2122642 (“Betancourt”) solidified that actions for failure to provide meal periods or rest breaks are not actions for non-payment of wages within the meaning of Labor Code § 218.5 and therefore attorney’s fees are not recoverable when prevailing on those claims.

In Betancourt, Plaintiff Raquel Betancourt (“Plaintiff”) alleged that she was entitled to recover unpaid premium wages for rest break violations, penalties, costs, waiting time penalties, and attorney’s fees based on her whistleblower retaliation and wrongful termination claims for allegedly reporting rest break and food safety violations. The trial court answered the question of whether meal or rest break violations were claims for “non-payment of wages” within the meaning of Labor Code section 218.5 by simply stating that the Plaintiff’s claims were “premised” on timekeeping and payroll schemes and ruled that she was entitled to attorneys’ fees.

The Court of Appeal however relied on Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244 (“Kirby”) and it’s progeny and reversed the trial court’s decision. It held that just because the remedy for nonprovision of meal or rest breaks is an additional hour of pay — a “premium wage”— this does not make the meal or rest break lawsuit one for non-payment of wages.  The Court of Appeal further held that Plaintiff cannot recover penalties for waiting time and wage statement violations based on her claims for failure to provide meal or rest breaks because those penalties are strictly derivative of suits for unpaid wages. (See also Ling v. P.F. Chang’s China Bistro, Inc. (2016) 245 Cal.App.4th 1242, 1261; Naranjo v. Spectrum Securities Services, Inc. (2019) 40 Cal.App.5th 444, 474).

It goes without saying that employee-plaintiffs will have to think twice about bringing claims solely for meal and rest break violations if recovery of attorneys’ fees is unavailable.

By Katya Zavala, May 28, 2020

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