THE KVK PRESPECTIVE
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
If you’re facing issues at your workplace, your future could be at stake. The attorneys at Katchko, Vitiello & Karikomi, PC have the knowledge and experience to protect your legal employment rights. Reach us today.