United States District Court, N.D. California, San Francisco Division
ORDER GRANTING IN PART AND DISMISSING IN PART
DEFENDANT'S MOTION TO DISMISS Re: ECF No. 39
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
4. a claim under California Labor Code §§ 510,
1194, 1198, and IWC Wage Order No. 4 § 3 for failure to
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
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. It also moved to dismiss because the
alleged violations occurred outside of the relevant statute
of limitations. 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.
Mendoza worked as an operations manager at a Bank of American
branch in California, from September 2015 to January
2017. 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.
plaintiff's shifts averaged eight to nine hours, which
entitled him to a meal period of at least thirty minutes and
a rest period. 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. 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. 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
. . . .
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.
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
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
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.