Liu et al v. Rong-Shing, Inc. et al

Filing 29

OPINION re: 22 MOTION for Conditional Certification of a FLSA Collective Action filed by Xi Zhong Xian, Guo He Li, Li Zu Chen, Xue Qiao Zheng, Daniel Gui Fang Man, Xi Lin, Wei Chen, Jian Xing Weng, Chao Zu Lin, Wen Long Liu. The court (1) condition ally certifies this action as a collective action pursuant to § 216(b) of the FLSA, (2) authorizes the issuance of plaintiffs' proposed notice to all potential members of the collective action (3) and orders defendants to provide contact information for all persons employed by defendants since September 21, 2009. This order resolves item number 22 on the docket. (Signed by Judge Thomas P. Griesa on 3/26/2014) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

WENG LONG LIU ET. AL.
Plaintiffs,

12 Civ. 7136

v.
OPINION
RONG SHING, INC.,
Defendant.

Plaintiffs, a group of service employees, bring this civil action under the
Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). Plaintiffs
have filed suit on behalf of themselves and all service employees who worked
for defendants, owners of Suzie’s Finest Chinese Cuisine (“Suzie’s Finest”).
Plaintiffs allege that defendants failed to pay proper minimum wages, overtime
premiums, and spread-hours premiums. Plaintiffs seek to recover their unpaid
wages.
In the present, unopposed motion, plaintiffs request that the court
(1) conditionally certify this action as a collective action pursuant to 29 U.S.C.
§ 216(b) of the FLSA, (2) authorize the issuance of plaintiffs’ proposed notice to

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all potential class members and (3) order defendants to provide contact
information for all persons employed by defendants since September 21, 2009.
The court should grant plaintiffs’ motion in its entirety.
Background
The following facts are drawn from the complaint and assumed to be true
for purposes of the motion.
Plaintiffs were service employees at “Suzie’s Finest,” a restaurant located
in the West Village neighborhood of New York City. Defendants owned and
operated the restaurant. Plaintiffs worked as waiters, kitchen staff, and
delivery persons. The restaurant is no longer operational.
During the course of their employment, plaintiffs were paid on a monthly
basis. Plaintiffs did not receive hourly wages and regularly worked over 65
hours a week. They were not paid the minimum wage for all hours worked and
were not paid the proper overtime premiums. Additionally, defendants did not
pay plaintiffs the spread-hours premium, which amounts to an extra hour’s
pay at the basic minimum wage during each day that an individual plaintiff
worked over ten hours. Defendants did not keep records of plaintiffs’ work
hours.
Originally, two plaintiffs—Weng Long Liu and Jian Xing Weng—filed suit
against defendants. Since the filing of the complaint, eight more former
employees joined this action by filing consents to sue under 29 U.S.C. § 216.

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These additional plaintiffs also allege that Suzie’s Finest failed to pay proper
minimum wages, overtime wages, and spread-hours premiums.
Plaintiffs have personal knowledge, based on conversations that they
have had with co-workers, that all service employees at Suzie’s Finest were
subject to the same unlawful employment practices.
Discussion
Class Certification
In order to satisfy the standard for conditional class certification
pursuant to § 216(b) of the FLSA, plaintiffs must make a modest factual
showing that they were victims of a common policy or plan that violated the
law. See Amendola v. Bristol-Myers Squibb Co., 558 F. Supp. 2d 459, 467
(S.D.N.Y. 2008). Plaintiffs may meet this lenient standard by offering
allegations of a factual nexus between them and their employer’s alleged FLSA
violations. See Diaz v. S & H Bondi’s Dept. Store, No. 10 Civ. 7676 (PGG),
2012 WL 137460, at *3 (S.D.N.Y. Jan. 18, 2012). Plaintiffs may satisfy their
minimal burden by relying on their own pleadings and affidavits, or the
affidavits of other potential class members. Id.
In reviewing plaintiffs’ request for conditional class certification, the
court need not evaluate the underlying merits of plaintiffs’ claims. See Indergit
v. Rite Aid Corp., Nos. 08 Civ. 9361 (PGG), 08 Civ. 11364 (PGG), 2010 WL
2465488, at *4 (S.D.N.Y. Jun. 16, 2010). Plaintiffs’ burden is minimal because
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the determination that the parties are similarly situated is merely a preliminary
one, and that determination may be modified or reversed after discovery. Id.
(citing Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006)).
Plaintiffs have met the lenient standard for conditional class certification
set forth in § 216(b) of the FLSA. Through their pleadings and affidavits,
plaintiffs have made a sufficient factual showing that they were victims of a
common policy or plan that violated the FLSA. Namely, plaintiffs have
demonstrated that defendants failed to provide the service employees at Suzie’s
Finest with minimum wage payments, overtime payments, and spread-hours
payments.
Accordingly, the court conditionally certifies plaintiffs as a class under
§ 216(b) of the FLSA.
Notice to former employees
After conditionally certifying a group of FLSA plaintiffs, a court has
discretion to implement § 216(b) by facilitating notice to potential plaintiffs of
the pendency of the action and of their opportunity to join the litigation as
represented class members. See Myers v. Hertz Corp., 624 F. 3d 537, 554 (2d
Cir. 2010). Notice serves the legitimate goal of avoiding a multiplicity of
duplicative suits and sets cutoff dates to expedite the disposition of the action.
See Fernandez v. Wells Fargo Bank N.A., Nos. 12 Civ. 7193 (PKC), 12 Civ. 7194
(PKC), 2013 WL 4540521, at *16 (S.D.N.Y. Aug. 28, 2013).
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Moreover, by

allowing for the provision of notice early in the litigation, courts help facilitate
the FLSA’s broad remedial purpose. See Hoffmann v. Sbarro, Inc., 982 F.Supp.
249, 262 (S.D.N.Y. 1997).
Plaintiffs have submitted a proposed notice to the court. Plaintiffs
request that the court authorize the notice and allow plaintiffs to send the
notice to all waiters, delivery persons, and kitchen workers employed by
defendants since September 21, 2009. The notice provides the following
description of the litigation:
The Class Representatives allege that Suzie’s Finest Chinese Cuisine did
not pay its employees for all hours worked, including overtime, did not
pay an additional hour’s pay at the minimum wage for each day during
which employees worked more than 10 hours, and did not keep accurate
records of hours worked and wages paid. The lawsuit seeks money owed
in back wages, additional damages known as ‘liquidated damages,’
interest, attorneys’ fees, and costs.
The notice advises all potential plaintiffs that they may join the current
lawsuit against Suzie’s Finest and that if they elect to join the litigation, then
they must fill out a consent form, which is included in the notice mailing, and
send the completed form to plaintiffs’ counsel. The notice also advises
potential plaintiffs that in the event that they elect not to join the litigation,
they will not be bound by any judgment or settlement in the case.
The court approves the proposed notice.
Notice Period

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Under the FLSA, there is a three-year statute of limitations to remedy
willful violations of the statute. 29 U.S.C § 255(a). Thus, courts allow the
representative class members to send notice of the litigation to potential
plaintiffs employed by the defendants within either three-years of the date of
the order granting conditional class certification or of the mailing of the notice.
See Chhab v. Darden Restaurants, Inc., No. 11 Civ. 8345 (NRB) 2013 WL
5308004, at *15 (S.D.N.Y. Sept. 20, 2013). However, courts will often allow for
equitable tolling of the statute of limitations and permit notice to be keyed to
the three-year period prior to the filing of the complaint, rather than to the
three-year period prior to the order granting conditional certification or to the
mailing of the notice. See Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 410
(S.D.N.Y. 2012). This decision to toll the statute of limitations is made with the
understanding that challenges to the timeliness of individual plaintiff’s action
may be entertained at a later date. Id.
In this case, plaintiffs request that the court toll the statute of limitations
and allow the notice period to be keyed to the three-year period prior to the
filing of their complaint. Plaintiffs filed their complaint on September 21, 2012
and, thus, request that the court allow for court-authorized notice to be
provided to all former employees at Suzie’s Finest who worked at the
restaurant since September 21, 2009.

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The court allows for the equitable tolling of the statute of limitations and
permits plaintiffs to provide notice to employees who worked at defendants’
restaurant at any time since September 21, 2009.
Disclosure of employee information
Finally, plaintiffs seek expedited disclosure by defendants of the names,
last known addresses, mailing addresses, alternate addresses, email addresses,
telephone numbers, dates of employment, and social security numbers of all
potential plaintiffs to the collective action so that plaintiffs may send them the
proposed notice and consent form. Numerous courts have found that
discovery of such information is appropriate. See e.g. Darden Restaurants, Inc.,
2013 WL 5308004, at *17 (citing Raniere v. Citigroup Inc., 827 F. Supp. 2d
294, 327 (S.D.N.Y. 2011)).
The court therefore directs defendants to produce the names, dates of
employment, last known addresses, phone numbers, and email addresses of all
potential plaintiffs who have worked at Suzie’s Finest since September 21,
2009 to plaintiffs’ counsel by April 18, 2014.
Additionally, after plaintiffs have received the requested information from
defendants, the notice and consent form shall require potential plaintiffs to
consent to join the collective action within 60 days of the notice mailing date.
See Darden Restaurants, Inc., 2013 WL 5308004, at *16. Most courts in this
district have found that in a FLSA collective action, a 60-day period for
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potential plaintiffs to join the litigation is sufficient. Id., (citing Diaz v. S & H
Bondi's Department Store, No. 10 Civ. 7676 (PGG), 2012 WL 137460, at *8
(S.D.N.Y. Jan. 18, 2012). If a potential plaintiff does not complete and send to
plaintiffs' counsel the consent form during the 60-day period, then the
potential plaintiff will not be a member of the collective action. All potential
class members who do not join the collective action will not be bound by any
judgment in this case and will retain all rights against Suzie's Finest.

Conclusion
The court (1) conditionally certifies this action as a collective action
pursuant to § 216(b) of the FLSA, (2) authorizes the issuance of plaintiffs'
proposed notice to all potential members of the collective action (3) and orders
defendants to provide contact information for all persons employed by
defendants since September 21, 2009.
This order resolves item number 22 on the docket.
SO ORDERED.
Dated: New York, New York
March 26, 2014

Thomas P. Griesa
United States District Judge
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