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Mendoza v. Bank of America Corp.

United States District Court, N.D. California, San Francisco Division

August 30, 2019

MIGUEL MENDOZA, Plaintiff,
v.
BANK OF AMERICA CORPORATION, Defendant.

          ORDER GRANTING IN PART AND DISMISSING IN PART DEFENDANT'S MOTION TO DISMISS Re: ECF No. 39

          LAUREL BEELER, Judge.

         INTRODUCTION

         Plaintiff Miguel Mendoza brings this putative class action for wage-and-hour violations against his former employer Bank of America Corporation. Mr. Mendoza brings seven claims:

1. a claim under California Labor Code §§ 512, 226.7, and Industrial Welfare Commission Wage Order No. 4 § 11 for failure to provide compliant meal breaks;
2. a claim under California Labor Code §§ 226.7, 512, and IWC Wage Order No. 4 § 12 for failure to provide adequate rest breaks;
3. a claim under California Labor Code §§ 1194, 1197, and IWC Wage Order No. 4 § 4 for failure to pay minimum wage;
4. a claim under California Labor Code §§ 510, 1194, 1198, and IWC Wage Order No. 4 § 3 for failure to pay overtime;
5. a claim under California Labor Code § 203 for failure to pay all wages due upon discharge;
6. a claim under California Labor Code § 2802 for failure to reimburse for business expenses; and
7. a claim under California's Unfair Competition Law (“UCL”), Business and Professions Code § 17200) based on his minimum wage, overtime, meal-break, and rest-period claims.

         Bank of America moves to dismiss claims one through seven on the grounds that Mr. Mendoza does not actually plead any instances when he was deprived of minimum wage or overtime pay, or where he requested, and was denied, reimbursement for business expenses.[1] It also moved to dismiss because the alleged violations occurred outside of the relevant statute of limitations.[2] The court grants Bank of America's motion, dismisses claims one through five, and denies the motion to dismiss for claims six and seven. The court grants Mr. Mendoza leave to amend.

         STATEMENT[3]

         Mr. Mendoza worked as an operations manager at a Bank of American branch in California, from September 2015 to January 2017.[4] Mr. Mendoza alleges:

. . . . Bank of America's systematic course of uniform payroll policies and practices [ ] violate the California Labor Code, Industrial Welfare Commission [ ] Wage Order No. 4, California Code of Regulations, and California Business and Professions Code section 17200. Specifically, Bank of America intentionally and wrongfully requires its operations managers to remain on duty for meal and rest periods by requiring them to remain on the premises, and often fails to provide its operations managers with an otherwise off duty, uninterrupted, 30-minute meal period within the first five hours of their shifts, an uninterrupted 10-minute rest period for every four hours (or major fraction thereof) of work, and fails to pay employees the resulting vested one additional hour of pay at the employees' regular rate of compensation for each workday that the meal or rest period was not provided.
. . . .
. . . . Plaintiff and the Class were not relieved of all duty during their meal periods and were, therefore, forced to remain “on duty.” Further, no on-the-job meal period was agreed to in writing. Plaintiff and the Class were therefore entitled to be, but were not, paid at their regular rate of pay for all “on duty” meal periods. Thus, Plaintiff and Class are due compensation for all hours worked during their meal periods, including minimum wages and overtime wages owed.
. . . .
. . . . Plaintiff and the Class were required to remain in the bank during their meal (and rest) periods, therefore, the meal periods should have been paid, but were not paid. A compliant, timely meal period was not provided. Wages for all hours worked during their meal periods, including all minimum wages and overtime wages, are, therefore, due.[5]

         The plaintiff's shifts averaged eight to nine hours, which entitled him to a meal period of at least thirty minutes and a rest period.[6] The plaintiff alleges that he and members of the purported class were not permitted to take breaks, uninterrupted meals, or rest periods because they remained on call and/or were required to remain on the premises unless they secured a written agreement authorizing on-the-job paid meals or rest periods.[7] He alleges that he and the putative class “regularly worked more than eight hours a day and/or 40 hours in a workweek in that they were required to work during their meal periods and were not compensated for such hours worked.[8] The plaintiff alleges that:

For example, Plaintiff's managers told him that he is a manager, and that he is to take his breaks and lunch on the bank premises in order to provide assistance to other bank employees and to complete his work duties, or words to that effect. As a result, Plaintiff's meal periods were interrupted because Defendants expected Plaintiff to perform various duties, including, but not limited to, the following: overrides/approvals; perform dual control; review teller transactions; provide his keys/combinations for employees to access negotiables, safe deposit boxes, and other similar items that required keys/combinations; and to respond to customer inquiries, among other duties.
On or about December 17, 2015, Plaintiff contacted Defendants' Human Resources (“HR”) department and notified HR that his meal periods were interrupted.
Therefore, Defendants were aware that Plaintiff was experiencing interrupted meal periods as a result of being required to stay on the premises. Defendants' HR department told Plaintiff that they would get back to him regarding his inquiry about interrupted meal periods. However, Plaintiff did not hear back from Defendants. Further, neither Defendants' HR department nor Plaintiff's managers paid Plaintiff one additional hour of pay at his regular rate of compensation for each workday when Defendant failed to provide him with an uninterrupted meal period, despite Defendant's knowledge of these meal period violations.
. . . .
Plaintiff complained to Defendants that he was not relieved of his work duties during his meal and rest periods because he did not have coverage during his breaks. For example, in or around the end of December 2015 or beginning of January 2016, and thus within his first few months of employment, when one of Plaintiff's managers was off work for a few weeks, Plaintiff did not receive legally-compliant meal periods (in that they were interrupted, were not at least 30-minutes in length, and/or were missed). Plaintiff contacted his district manager to ask for coverage, and explained to his district manager that he was not receiving uninterrupted meal periods that were at least 30-minutes in length. Plaintiff's district manager essentially dismissed Plaintiff's concerns, stating that every branch had issues with lack of coverage, or words to that effect. Plaintiff's district manager also said that every branch is low staffed, or words to that effect. Thereafter, Plaintiff consistently did not have relief to take duty-free meal and rest periods.
. . . .
. . . . Plaintiff is informed and believes that Defendants had a pattern and practice of understaffing their branches in order to encourage customers to migrate towards digital banking features instead of performing transactions face-to-face in the branches. During the manager conference calls, branch managers raised concerns about understaffing. However, district managers were not receptive to such concerns, generally responding that “this is the staff that you get, ” and “this is the way Bank of America is moving, ” or words to that effect. Therefore, Defendants failed and refused to take any steps to address complaints about understaffing and lack of coverage. Consequentially, Plaintiff and the Class continued to not receive compliant meal and rest periods.[9]

         The plaintiff's employment with Bank of America ended on or around January 2017, and he alleges that because Bank of America owed him wages due to the paid meal and rest period violations above, he was not paid all his wages upon discharge.[10]

         The plaintiff alleges that he was not reimbursed for business expenses based on the following facts:

Defendant required Plaintiff and members of the Class to use their personal cellular phones both during and outside of their work shifts in order to communicate with other Bank of America employees. In particular, Defendant instructed Plaintiff and members of the Class to use their personal cellular phones during work hours in order to communicate with their managers regarding status updates, emergencies, and/or any other work-related purposes, such as communicating with employees regarding scheduling or answering questions that Plaintiff's managers and/or other employees had.
For example, in or around end of 2015 or beginning or 2016, Plaintiff's managers were trying to contact Plaintiff on his personal cellular phone because employees needed access to his key and to his code in order to access the bank vault. When Plaintiff was unable to respond immediately, Plaintiff's manager became upset at Plaintiff, questioning him with regards to his whereabouts and why he was unable to answer. As a result, Plaintiff was caused to reasonably believe that he had no choice but to keep his personal cellular phone on his person during all of his work hours and to respond to text messages and phone calls received from other Bank of American employees.
. . . . [m]anagers would communicate with Plaintiff and the Class on their [cellphones] regarding work-related items [such as] scheduling, status updates, pending documentation, pending training, and approving timesheets for employees, among other items.
On one occasion, on or about November 27, 2016, Plaintiff notified his manager that he was not feeling well and would be taking a sick day. Not only did Plaintiff's manager express her discontentment at Plaintiff taking a sick day, but Plaintiff's manager continued text messaging Plaintiff about work. For example, Plaintiff's manager told Plaintiff that the branch was “understaffed, ” or words to that effect. Plaintiff's manager also said that “you will have to be here for the meeting. No. exceptions, ” or words to that effect. Plaintiff's manager also texted Plaintiff that day, inquiring about the location of a cash box, even though Plaintiff told his manager that he was not feeling well. Plaintiff shared screen shots of these text messages with Bank of America's HR department.
. . . . Bank of America never reimbursed Plaintiff and the Class for the use of their personal cellular phone and/or data usage[.][11]

         Mr. Mendoza does not specify when he received less than minimum wage, worked more than 40 hours a week without receiving overtime pay, or was not afforded full uninterrupted meal breaks or rest periods.

         STANDARD ...


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