Thomas E. Perez v. Legend of Asia, LLC et al

Filing 46

ORDER granting 45 Plaintiff's motion for consent judgment. Signed on 9/11/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
R. ALEXANDER ACOSTA,
Plaintiff,
v.
LEGEND OF ASIA, LLC et al.,
Defendants.

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No. 4:16-CV-00549-DGK

ORDER GRANTING PLAINTIFF’S MOTION FOR CONSENT JUDGMENT
Plaintiff R. Alexander Acosta, Secretary of Labor, United States Department of Labor
(the “Secretary”), filed suit against Legend of Asia, LLC (“Legend of Asia”), its owner, Tong
Lin, and her husband, Yu Min Xiao for violations of the minimum wage, overtime, and
recordkeeping provisions of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq.
Now before the Court is Plaintiff’s Motion for Consent Judgment (Doc. 45) against
Legend of Asia and Yu Min Xiao. Legend of Asia and Yu Min Xiao consent to this motion.
Accordingly, the motion is GRANTED and the Court rules as follows:
This Judgment encompasses the time period of September 3, 2012, through July 31, 2015,
at Legend of Asia, LLC, 1853 SW 7 Hwy, Blue Springs, Missouri, 64014.
Defendants Legend of Asia, LLC, and Yu Min Xiao, individually (“Defendants”), their
officers, agents, servants, employees, and those persons in active concert or participation with
them who receive actual notice of this Judgment, are hereby permanently enjoined and restrained
from violating the provisions of 29 U.S.C. §§ 215(a)(2) and 215(a)(5) of the FLSA, including in
any of the following manners:

1.

Defendants shall not, contrary to 29 U.S.C. §§ 206(a)(1) and 215(a)(2), fail to pay to their
employees engaged in commerce or in the production of goods for commerce or
employed in their enterprise engaged in commerce or in the production of goods for
commerce, wages at rates not less than $7.25 per hour, or any rate subsequently made
applicable by amendment to the FLSA.
2. Defendants shall not, contrary to 29 U.S.C. §§ 207 and 215(a)(2), employ any of their
employees in commerce or in the production of goods for commerce, or in its enterprise
engaged in commerce or in the production of goods for commerce, for workweeks longer
than 40 hours without compensating such employee for his or her employment in excess
of 40 hours per workweek at a rate not less than one and one half times the regular rate at
which he or she is employed.
3. Defendants shall not, contrary to sections 29 U.S.C. §§ 211(c) and 215(a)(5) of the
FLSA, fail to make, keep and preserve adequate and accurate records of their employees,
and of the wages, hours and other conditions and practices of employment maintained by
it as prescribed by the regulations issued, and from time to time amended, pursuant to
§ 211(c) of the FLSA and 29 C.F.R. § 516. Defendants shall make such records available
at all reasonable times to representatives of the Secretary.
4. Defendants shall not classify any employee as exempt from the minimum wage and/or
overtime requirements of the FLSA unless that employee is employed in a bona fide
executive, administrative, professional, or outside sales position under 29 U.S.C.
§ 213(a)(1), and as such terms are defined and delimited by the regulations of the
Secretary, and unless that employee satisfies the salary level and other requirements to
meet one of the exemptions. Defendants shall seek compliance assistance from the Wage

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and Hour Division of the United States Department of Labor (“Wage and Hour”) prior to
classifying any employee as an exempt employee.
5. Defendants shall provide to each employee a statement or other record containing the
hours worked by the employee each workday (for purposes of this paragraph, a
“workday” is any fixed period of 24 consecutive hours). Defendants shall include on
each such statement or record the telephone number at which to contact Wage and Hour
(1-866-487-9243), and a statement, in English as well as any other language that is the
primary language of any employee, that such telephone number may be used to make
confidential and anonymous complaints about hours worked, wages paid, or other
conditions of employment.
6. Where Defendants employ employees who qualify as “tipped employees,” as defined by
29 U.S.C. § 203(t), Defendants shall provide written notice to employees of their intent to
use the employee’s tips as a credit against Defendants’ minimum wage obligations. The
written notice shall contain the information required by the Secretary’s regulation at 29
C.F.R. § 531.59(b). Defendants acknowledge that if they fail to provide such notice, the
tip credit may not be claimed, notwithstanding any potential economic harm to the
employees.
7. Where Defendants pay employees wages in the form of “board, lodging, or other
facilities,” as these terms are used in 29 U.S.C. § 203(m), Defendants shall provide
written notice to employees of their intent to use the board, lodging, or other facilities as
a credit against Defendants’ minimum wage and/or overtime obligations. Defendants
shall keep and preserve records substantiating the actual costs to Defendants to furnish
such board, lodging, or other facilities to the employees.

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8.

Defendants shall make, keep and preserve payroll or other records containing:
a.

A symbol, letter or other notation that identifies each employee whose wages are
determined and paid in part by board, lodging, or other facilities; and

b.

The amount per hour the employee is paid in the form of board, lodging, or other
facilities.

9.

Defendants shall ensure former employees receive their final paychecks following
employment termination or discharge.

Defendants shall maintain documentation

demonstrating all reasonable, good faith efforts made by Defendants to locate and
forward final paychecks to former employees.
10.

Defendants shall maintain a computerized time-keeping system that enables Defendants
to accurately record when employees start and stop their work each day. This system
shall be put in place at all restaurant locations owned in whole or in part by any of the
Defendants. This system shall be put in place within ninety (90) days from entry of this
Judgment and Defendants shall provide adequate training to their employees on use of
the system. Defendants shall not permit any employee to work prior to clocking in or
after clocking out.

11.

Defendants shall have a third party, approved by the Wage and Hour, audit the
Defendants’ time and payroll recordkeeping practices for compliance with the FLSA once
within the first two weeks beginning six months after entry of this Judgment. Defendants
shall require the third-party auditor to prepare a written report that contains the auditor’s
findings on FLSA compliance and any suggestions for improving compliance.
Defendants shall make such reports available to Wage and Hour representatives upon
request. If the third-party auditor is an attorney, Defendants and the attorney shall sign an

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agreement proclaiming that the audit reports are not subject to the attorney-client
privilege.
12.

Defendants shall provide to all current employees and managers training on the
provisions of the FLSA, including but not limited to, the minimum wage, overtime and
recordkeeping provisions, and employee rights provisions.

This training shall be

provided during working hours at company expense with no charge to the employee.
This training shall be provided by a competent third party, approved by Wage and Hour,
and shall be completed within ninety (90) days from entry of this Judgment.
13.

Within ten (10) business days of their employment, Defendants shall provide to all new
employees and managers training on the provisions of the FLSA, including but not
limited to, the minimum wage, overtime and recordkeeping provisions, and employee
rights provisions.

14.

Within ten (10) business days of the date of entry of this Judgment, Defendants shall
provide each of their current employees with a copy of the “Notice to All Employees,”
attached as Exhibit B, which provides guidance regarding employees’ rights, including
protection from retaliation, under the FLSA. Defendants shall provide a copy of this
Notice to all newly hired employees on or before the date the employee begins
performing work for them. If the primary language of any employee is Spanish or
Chinese, Defendants shall ensure that the Notice is properly translated into that
employee’s language within ten (10) business days.

15.

Within ten (10) business days of the date of entry of this Judgment, Defendants shall post
the “Notice to All Employees,” attached as Exhibit B, in prominent locations at all
Defendants’ restaurants.

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16.

Within ten (10) business days of entry of this Judgment, Defendants shall post United
States Department of Labor-approved posters regarding the minimum wage and overtime
provisions of the FLSA, as well as the Employee Polygraph Protection Act, in a
prominent location at all of their restaurants located in Missouri. Copies of said posters
are

currently

available

for

download

and

printing

at:

https://www.dol.gov/WHD/resources/posters.htm.
17.

Defendants shall certify that they have complied with paragraphs 4 through 17, above, by
providing to Wage and Hour, Attention: District Director-Kansas City District Office, a
letter or letters indicating that each task has been completed and the date completion
occurred. This certification shall be provided within thirty (30) days of each task being
completed.

18.

Defendants shall not do anything to intimidate their employees into recording fewer
hours than the employees actually worked, and shall instruct and encourage their
employees to keep accurate accountings of their time, including hours worked in excess
of forty (40) hours per week.

19.

Defendants and their officers and agents shall not request, solicit, suggest, or coerce,
directly or indirectly, any current or former employee to return or to offer to return to the
Defendants or to someone else for the Defendants, any money, whether in the form of
cash, check, or any other form, previously due or to become due in the future to said
employee under the provisions of this Consent Judgment or the FLSA; nor shall
Defendants accept, or retrieve from any employee, either directly or indirectly, any
money, whether in the form of cash, check, or any other form, heretofore or hereafter
paid to said employee under the provisions of this Judgment or the FLSA; nor shall

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Defendants discharge or in any other manner discriminate against, nor solicit or
encourage anyone else to discriminate against any such employee because such employee
has received or retained money due to him from Defendants under the provisions of this
Judgment or the FLSA; nor shall Defendants raise an employee’s immigration status as a
defense to the payment of back wages in any suit alleging such retaliation.
20.

Judgment is hereby entered, pursuant to 29 U.S.C. § 216, in favor of the Secretary and
against Defendants Legend of Asia, LLC and Yu Min Xiao, jointly and severally, in the
total amount of $150,000, which includes $75,000 in unpaid minimum wage and
overtime compensation due the employees identified in attached Exhibit A, plus an
additional equal amount of $75,000 as statutorily authorized liquidated damages due to
said employees.

21.

Defendants shall make payment in two installments: the first installment in the amount of
$75,000 is due within one hundred-twenty (120) days after the entry of this Judgment; the
second installment of $75,000 is due one (1) year thereafter. All payments shall be
delivered to the United States Department of Labor, Wage and Hour Division, P.O. Box
2638, Chicago, Illinois 60690-2638, in the form of a certified or cashier’s check made
payable to “Wage and Hour – Labor.” Defendants shall furnish with the check referenced
in paragraph 20 above, a statement showing the following information:
a.

Legend of Asia, LLC’s federal ID number;

b.

The name, Social Security number, last known address, last known telephone
number, and last known e-mail address of each person listed in Exhibit A.

22.

Upon receipt of full payment from Defendants, the Secretary’s counsel shall file with the
Court a certificate of payment and representatives of the Secretary shall distribute such

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amounts, less appropriate deductions for federal income withholding taxes and the
employee’s share of the Social Security tax (“F.I.C.A.”), to the employees or their
representative as their interests may appear, in accordance with the provisions of 29
U.S.C. § 216(c). Defendants remain responsible for the employers’ share of F.I.C.A.
arising from or related to the back wages distributed by the Secretary.
23.

Any funds not distributed within a period of three (3) years from the date of this
Judgment because of inability to locate the proper persons or because of such person’s
refusal to accept the sums sought to be distributed, shall be deposited into the Treasury of
the United States.

24.

Within one hundred-twenty (120) days of the date of the Judgment, Defendants shall pay
an FLSA Civil Money Penalty in the amount of $10,000 to the Secretary. Defendant
shall deliver to the attention of Ricky Robinson, at U.S. Department of Labor – Wage and
Hour Division, 400 State Avenue, Suite 1010, Kansas City, KS 66101-2414, a certified
check or a cashier’s check made payable to “Wage and Hour Division – Labor” in the
amount of $10,000.

25.

Failure by Defendants to make complete payment as required by the terms of this
Judgment shall cause any remaining balance to become immediately due and payable by
Defendants.

26.

Any unpaid balance is a debt owing to the United States and is subject to the Debt
Collection Act of 1982 (Public Law 97-365) and the Debt Collection Improvement Act of
1996, 31 U.S.C. §§ 3701-3719.

27.

Nothing in this Judgment affects the rights of any current or former employees with
respect to any claimed violations of the FLSA for time periods or locations other than

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those identified in this Judgment, and, notwithstanding anything to the contrary above,
nothing in this Judgment shall be deemed an admission on the part of Defendants to
claims raised by employees for violations of the FLSA in this litigation. Further, nothing
in this Judgment precludes the Secretary from enforcing violations of the FLSA against
Defendants that occurred at times or locations other than those identified in this
Judgment, and nothing in this Judgment shall prevent Defendants from asserting their
defenses to such violations.
28.

Each party shall bear their own costs, fees and other expenses incurred by such party in
connection with any stage of this proceeding.
IT IS SO ORDERED.

DATE: September 11, 2017

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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Exhibit A
EMPLOYEES
Carlos Aguilera Espinosa
Danilo Hernandez Flores
Gustavo Ramirez
Jerrson Pineda
Jose Gustavo Medrano
Marvin Zuniga
Olman Flores
Oscar Javier Rivas
Ruben Borjas
Samuel Rivas
Santo Rodrigo Alvarez Mardiaga
Santos Bernardo Diaz Carrasco
Boa Zhen Yang
Ting Song Zhou
Yan Xu
Ling Jin Zhu
Chang Fe Ye

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Exhibit B
NOTICE TO ALL EMPLOYEES
Legend of Asia, LLC has agreed to ensure that all employees are paid properly under the
Fair Labor Standards Act (“FLSA”). The FLSA requires that all employees must be paid
minimum wage for all hours worked, as well as overtime wages for hours worked over 40 in a
workweek.

The FLSA also provides that all employees are protected from retaliation or

discrimination. This means that no one from Legend of Asia, including Tong Lin and Yu Min
Xiao, can terminate you, threaten to terminate you, reduce your work or your pay, or in any way
retaliate or discriminate against you because you have spoken to anyone at the U.S. Department
of Labor or in any way tried to enforce your rights under the FLSA.
You may contact the U.S. Department of Labor if you have any question about your
employment situation and your rights to lawful wages and to be free from retaliation. If you
think you are not being paid in accordance with the law, you can call the U.S. Department of
Labor, Wage and Hour Division, at 913-551-5721 or 1-866-4-USWAGE (1-866-487-9243).
You also have rights under Missouri state law and you may contact the Missouri
Department of Labor and Industrial Relations, at 573-751-3403, for any questions you may have
about those rights.

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