California employees of Bank of America (BofA), one of the
nation’s largest employers, have joined forces with colleagues from across the
country to sue the bank for violations of the Fair Labor Standards Act (FLSA)
and similar laws in California and other states. The lawsuit is a strong
reminder for employers that there’s a lot more to complying with wage and hour
laws than just paying nonexempt workers minimum wage and overtime.
Bank Employees Allege Multiple Violations
The lawsuit alleges that BofA requires nonexempt employees to
work during unpaid breaks; doesn’t provide meal and rest breaks; and doesn’t
pay terminated employees in a timely way for earned wages and accrued vacation
time. How can you avoid similar charges from your employees?
Rest Break Requirements
In California, employers generally must authorize and permit
nonexempt employees to take a rest period that is—to the extent
practicable—taken in the middle of each work period. The rest period is
counted as time worked and must be compensated. The length of the rest is based
on the total hours worked daily but should be at least 10 consecutive minutes
for each 4-hour work period, or major fraction thereof (anything more than 2
hours is considered a “major fraction” of 4). Because employees are paid for
this time, you can require them to remain on the premises, but you must also
provide appropriate resting areas during work hours, separate from the toilet
Employers can stagger the rest periods for workers in certain
on-site occupations in the construction, drilling, logging, and mining
industries to avoid disruption of work flow and maintain continuous operations.
They can also schedule rest periods to coincide with breaks in the flow of work
in the course of the workday. And the rest periods for these employees can be
skipped in limited circumstances when the disruption of continuous operations
would jeopardize the product or process of work—but the employer must
make up the missed rest period within the same workday or pay the employee for
the missed 10 minutes at the regular rate of pay within the same pay period.
Meal Break Requirements
You must also provide employees with at least a 30-minute
meal break when they work more than 5 hours. The meal period is considered “on
duty” and compensable at the regular pay rate unless the employee is relieved
of all duty and can leave the premises.
On-duty meal periods are allowed only when the nature of the
work prevents a worker from being relieved of all duty and when the employer and employee have agreed in
writing to an on-the-job meal period. An agreement is not permissible unless
the employee would be prevented from being relieved of all duty based on the
necessary job duties. Examples include solo workers in a coffee kiosk or
all-night convenience store and a security guard stationed alone at a remote
Final Payments to Terminated Employees
Under California law, an employee without a written
employment contract for a defined period of time who gives at least 72 hours’
prior notice, and quits on the day given in the notice, must be paid all of his
or her wages at the time of quitting. When such an employee quits without 72
hours’ prior notice, you must pay him or her all of his wages within 72 hours
of quitting. The employee may request that the final wage payment be mailed to
a designated address; the date of mailing will be considered the payment date.
Because earned vacation time is considered wages, you must also pay the employee at his or
her final pay rate for all earned, accrued, and unused vacation days in the
final paycheck—unless otherwise stipulated by a collective bargaining
agreement. Vacation time cannot be forfeited, regardless of the reason for
Under California law, the required rest period is defined as
a “net” 10 minutes, meaning it begins when the employee reaches an area away
from the work area and appropriate for rest.