Li v. 6688 Corp. et al

Filing 22

OPINION: Plaintiffs motion to conditionally certify a collective action is granted. Although the court grants approval of the plaintiffs proposed notice and opt-in forms, the language must be modified to reflect more neutral and accurate descriptions. Plaintiffs request for defendants to provide an Excel list of all tipped employees who were employed by defendants in the past six years is also granted. (Signed by Judge Thomas P. Griesa on 9/27/2013) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
SHI YONG LI, et al., on behalf of
:
themselves, FLSA Collective Plaintiffs and :
the Class,
:
:
:
Plaintiffs,
:
– against –
:
:
6688 CORP. d/b/a SAMMY’S NOODLE
:
:
SHOP & GRILL and CINDY H,C, WU,
:
Defendants.
:
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12 Civ. 6401 (TPG)
OPINION

Plaintiffs, Shi Yong Li, joined by Ying Qing Qiu, bring this
action against defendants 6688 Corp. d/b/a Sammy’s Noodle Shop &
Grill (“6688 Corp.”) and Cindy H.C. Wu, for violations of the Fair Labor
Standards Act, (“FLSA”) 29 U.S.C. §§ 201 et. seq. and New York Labor
Law (“NYLL”). Plaintiffs move to conditionally certify a collective action
under 29 U.S.C. § 216(b). The proposed collective action would include
all non-exempt persons employed by defendants in any tipped position
on or after the date that is six years before the filing of the complaint in
this case as defined herein (“FLSA Collective Plaintiffs.”)
For the following reasons, plaintiffs’ motion is granted. The
plaintiffs’ proposed notice and opt-in forms are approved; however, they
must be revised as discussed below. Plaintiffs’ request that defendants

produce an Excel list of all tipped employees who were employed by
defendants in the past six years is also granted.
The Complaint
Plaintiffs allege that defendants willfully violated their rights by
failing to pay them proper minimum wages for hours worked.
Additionally, plaintiffs allege that defendants were not entitled to take
any tip credits under the FLSA. Specifically, plaintiffs allege that
defendants failed to properly provide notice to all tipped employees that
defendants were taking a tip credit, caused tipped employees to engage
at least 20% of their working hours in non-tipped activities and failed to
pay tipped employees the proper overtime.
Plaintiffs’ further allege they are and have been similarly situated,
have had substantially similar job requirements and pay provisions, and
are and have been subject to defendants’ decisions, policies, and
practices in violation of state and federal law. Plaintiffs allege that
defendants’ actions resulted in a willful failure and refusal to pay
plaintiffs the proper minimum wage and overtime premium at the rate of
one and one half times the regular rate of work in excess of 40 hours per
workweek. Plaintiffs’ allege also allege that there are more than 40
members of the class.
Conditional Certification
The Legal Standard

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There is a two step test process for actions to be conditionally
certified. See Cunningham 754 F. Supp.2d 638, 644 (S.D.N.Y. 2010).
First, the court uses a "relatively lenient evidentiary standard to
determine whether a collective action is appropriate." For actions to be
conditionally certified, the court need only conclude that there may be
other, similarly situated workers. Although plaintiffs are required to
make a “modest” factual showing that rises above unsupported
allegations, the standard of proof remains low. At this procedural stage,
“the court does not resolve factual disputes, decide substantive issues
going to the ultimate merits, or make credibility determinations."
Cunningham v. Elec. Data Sys. Corp., 754 F. Supp. 2d 638, 644
(S.D.N.Y. 2010). Typically this evidentiary burden may be satisfied by
credible witness affidavits, including affidavits by plaintiffs. See Lee v.
ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006).
Plaintiffs need not defend against arguments that individualized
inquiries may predominate or that an FLSA exemption covers plaintiffs at
this stage. The court’s first task is only to conclude whether there may be
other similarly situated workers.
Once the potential class members are identified, the court will, on
a fuller record, determine whether a collective action may go forward by
determining whether the plaintiffs who have opted in are in fact similarly
situated to the named plaintiffs. If not, the court may de-certify the class.
Discussion

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To satisfy this first step, plaintiffs rely upon the allegations in the
complaint, Shi Yong Li’s declaration, and Ying Qing Qiu’s declaration
that defendants’ decisions, policies, and practices violated FLSA and
NYLL requirements. Although the complaint’s allegations, standing
alone, are insufficient to meet this burden, the complaint and plaintiffs’
declarations, together, are sufficient. Plaintiffs have made a “modest
factual showing” that they, and the potential opt-in plaintiffs, were
victims of common policies and plans that violated the law.
For example, plaintiffs state in their declarations that, at all times
during their employment, they were tipped employees and that
approximately 40 other employees were not properly paid. Plaintiffs state
that they witnessed “other tipped employees do work that was the same
or similar” to that done by themselves. Plaintiffs also state that they were
not paid the statutory minimum and that they personally observed “that
it is defendants’ policy to pay below the statutory minimum wage rate to
all tipped employees.”
Plaintiffs specifically allege that they were paid an hourly rate up to
$5.40 per hour at the date of their respective terminations and other
tipped employees were similarly compensated. Plaintiffs state that they
were not properly paid overtime at the rate of time-and-one-half for every
hour they worked over forty hours in a workweek and that they observed
other employees also frequently worked over 40 hours per week and were
also not properly paid overtime.

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Plaintiffs allegedly were never paid a “spread of hours premium,”
even when their workday exceeded ten hours. Plaintiffs state that
defendants failed to properly notify all tipped employees that defendants
were taking a tip credit and did not provide notice of the tip credit to
other tipped employees. Plaintiffs state that they, and others similarly
situated, were required to spend at least 20% of their time daily in “nontipped related activities.”
Plaintiffs also state that defendants failed to provide proper wage
statements. The wage statements provided failed to accurately indicate
the amount of time actually worked by tipped employees. Plaintiffs state
that “although there was a scheduled daily break from 3pm to 6pm, all
employees were required to be ‘on call’ and to make deliveries or serve
customers in addition to side work such as cleaning and other
preparation work.”
Plaintiffs state that they were required to provide their own bicycles
or motorbikes for delivery and were not compensated by the defendant
for any maintenance incurred. Plaintiffs state that “on occasion, when
defendants’ restaurant was overstaffed, tipped employees would be sent
home without call-in pay.” Plaintiffs allege that defendants claimed a
meal credit for both tipped employees and kitchen workers. However,
employees were not provided the proper meal period. Finally, plaintiffs
allege that defendants calculated overtime rates for tipped employees by
“simply multiplying their hourly rate by 1.5 times.”

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Defendants contend that because plaintiffs were tipped employees,
their claims in the lawsuit are particularly situated to their positions as
delivery workers. Defendants also contend that the restaurant did not
employee runners or bussers, and that plaintiffs’ claims do not apply to
waiters. Defendant Wu states that she did calculate plaintiffs’ overtime
rate incorrectly, but contends it was a good faith mistake. However,
defendants state that waiters were paid an overtime rate equal to the full
minimum wage times 1.5, less the applicable tip credit. Defendants also
contend that waiters were never requested to deliver food, never received
three hour breaks and did not have dedicated breaks within the
restaurant. Defendants also contend that waiters do not have claims
similar to the plaintiffs concerning bicycle or motorbike maintenance.
These contentions, however, are not enough to negate the
allegations that plaintiffs are similarly situated. For employees to be
similarly situated, it is not necessary that they have the same job
responsibilities. Rather, they must have the same “job requirements ...
on which the criteria for many FLSA exemptions are based.” See Myers,
624 F.3d at 555. Additionally, defendants state that the restaurant did
not employ runners or bussers. Even if this were so, it would have no
effect on the conditional class certification.

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Ancillary Requests
Defendants oppose plaintiffs’ ancillary request to approve the form
of their notice to potential class members. Defendants argue that the
materials are misleading. The court agrees.
The notice states that “the firm is handling the lawsuit on a
‘contingency fee’ basis, which means that you do not have to pay any
attorneys’ fees or expenses for this lawsuit.” It then states: “if you want
your own attorney to represent you in this lawsuit, however, you will be
responsible for paying that attorney’s fees and expenses.” Defendants
properly request the use of the “more neutral and accurate” language
approved by Judge Baer. See Agudelo v. E & D LLC, 12 CV 0960 (HB),
2012 U.S. Dist. LEXIS 160510 (S.D.N.Y. Nov. 5, 2012).
Plaintiffs’ ancillary request for defendants to produce “an Excel list
of all tipped employees who were employed by Defendants at any point in
the six years prior to the entry of the Order” is reasonable.
Conclusion
Plaintiffs’ motion to conditionally certify a collective action is
granted. Although the court grants approval of the plaintiffs’ proposed
notice and opt-in forms, the language must be modified to reflect more
neutral and accurate descriptions. Plaintiffs’ request for defendants to
provide an Excel list of all tipped employees who were employed by
defendants in the past six years is also granted.

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Dated: New York, New York
September 27, 2011

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thomas P. Griesa
United States District Judge

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USDCSDNY
·i)OCUMENT
ELECfRONICALLY mED
DOC #:

DATE FILED: f/J,1./f? DJJ

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