Raquel Betancourt worked at Fleming’s Steakhouse & Wine Bar on Olympic Boulevard in Los Angeles.as a server from 2008 through 2015. OS Restaurant Services, LLC and Bloomin’ Brands, Inc., were the owners or operators of the facility.
In August 2016, Betancourt filed a civil action alleging her employer regularly failed to give her full uninterrupted rest periods, and that they wrongfully terminated her in retaliation for her making internal complaints that the employer violated wage and hour laws and food safety laws.
She also alleged she was entitled to recover unpaid premium wages under section 226.7 for the rest break violations; penalties, costs and attorney fees under section 226 for failing to include rest break premiums on her itemized wage statements; and waiting time penalties under sections 201 through 203 for failure to pay all wages on termination, “including, without limitation, unpaid premium wages in lieu of rest periods.”
On October 13, 2017. the parties agreed to a settlement and Defendants agreed to pay plaintiff $15,375 in full settlement of her claims for failure to provide meal and rest periods under section 226.7, failure to provide accurate itemized wage statements under section 226, failure to pay all wages upon termination under sections 201 through 203, and “any and all wage-and-hour-related causes of action that were or could have been asserted in the complaint.” Plaintiff agreed to dismiss with prejudice and without any payment her claims for retaliation and wrongful termination. The parties agreed plaintiff could later file a motion for attorney fees incurred only on her wage and hour claims, “consistent with applicable law.”
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).)
After substantial litigation over the award of attorney fees and costs, the trial court entered judgment on August 31, 2018, in the principal sum of $15,375 payable to Bentancourt as agreed, plus attorney fees of $280,794 and costs of $8,671.95.
In May 2020, the California Court of Appeal reversed the award of attorneys’ fees citing the 2012 California Supreme Court decision in Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1255, which concluded that 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.
While this decision was pending appeal, the Supreme Court held otherwise in the case of Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93. The California Supreme Court concluded that “extra pay for missed breaks constitutes ‘wages’ that must be reported on statutorily required wage statements during employment (Lab. Code, § 226) and paid within statutory deadlines when an employee leaves the job.
The Supreme Court therefore transferred this Bentancourt case back to the Court of Appeal with directions to reconsider its prior opinion in light of Naranjo. Accordingly, the Court of Appeal issued a new published opinion in Bentancourt v OS Restaurant Services, LLC – B293625A (September 2022) which affirmed the award of attorney fees.
“Here, plaintiff’s complaint sought penalties, costs and attorney fees under section 226 for failing to include rest break premiums on her itemized wage statements; and waiting time penalties under sections 201 through 203 for failure to pay all wages on termination. These were claims for nonpayment of wages. Under section 218.5, the court must award the prevailing party reasonable attorney fees and costs “[i]n any action brought for the nonpayment of wages,” if any party requested fees and costs at the beginning of the action.”