No Attorney Fees on Claims for Failure to Provide Rest Breaks and Meal Periods

The Second Appellate District reversed a judgment  and remanded. The court held that the Labor Code does not entitle a prevailing plaintiff to attorney fees on claims for failure to provide rest breaks or meal periods.

Raquel Betancourt sued former employers OS Restaurant Services, LLC and Bloomin' Brands, Inc. for retaliation, wrongful termination, and failure to provide rest breaks or meal periods. Betancourt also sought penalties, costs and attorney fees under Labor Code §226 for failing to include rest break premiums on her itemized wage statements, and waiting time penalties under §§201 through 203 for failure to pay all wages upon termination, "including…unpaid premium wages in lieu of rest periods." The prayer for relief specifically requested attorney fees under §§218.5 and 226. The parties settled, with defendants agreeing to pay Betancourt $15,375 in full settlement of all wage-related claims.

The trial court awarded Betancourt $280,794 in attorney fees under Labor Code §218.5.
The court of appeal reversed the award of fees, holding that Betancourt's claims for failure to provide rest breaks or meal periods were not claims "brought for the nonpayment of wages" within the meaning of §218.5. Section 218.5 mandates an attorney fee award "in any action brought for the nonpayment of wages," if requested at the initiation of the action. An action for failure to provide meal or rest breaks is not an action for nonpayment of wages. The remedy for failure to provide meal or rest breaks is an additional hour of pay---often described in the case law as "premium wages"---but that does not turn a lawsuit for violation of meal or rest breaks into a lawsuit for nonpayment of wages. Further, because actions for failure to provide meal or rest periods do not entitle employees to pursue derivative penalties under §203 for waiting time or under §226 for wage statement violations, Betancourt was also not entitled to recover attorney fees based on those claims.

Betancourt v. O. S. Restaurant Services; May 22, 2020