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Zhuo v. JIA Xing 39Th Inc.

United States District Court, S.D. New York

April 1, 2015

QING TIAN ZHUO, on behalf of himself, FLSA Collective Plaintiffs and the Class, Plaintiff,


SIDNEY H. STEIN, District Judge.

Plaintiff Qing Tian Zhuo brings this action on behalf of himself and other current and former tipped employees of defendants, alleging various wage and hour violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. and New York Labor Law ("NYLL"), Art. 6 §§ 190 et seq. and Art. 19 §§ 650 et seq. Currently before the Court is plaintiff's motion for conditional certification of his FLSA collective action claims pursuant to 29 U.S.C. § 216(b). Because plaintiff has made the required factual showing that he and potential opt-in plaintiffs were the subjects of a common policy or plan that violated the law, plaintiff's motion is granted.


Qing Tian Zhuo has brought this action against the corporate owners and individual officers of four Szechuan Gourmet restaurants in New York.[1] Plaintiff, a former delivery person at defendants' Szechuan Gourmet restaurant located at 1395 Second Avenue in Manhattan, alleges violations of the FLSA minimum wage, overtime, and tip credit provisions. (Compl. ¶¶ 40-52, Dkt. No. 2.)

Plaintiff alleges the following facts: During his six months of employment from October 2012 through April 2013, plaintiff, a tipped employee, [2] worked 11 hours per day, six or seven days per week, for a fixed daily salary of $40 per day, or roughly $3.64 per hour. (Compl. ¶¶ 23-24.) Plaintiff did not receive overtime for any hours worked in excess of forty in a work week. ( Id. ¶¶ 29-30, 33.) Defendants paid plaintiff biweekly in cash and never furnished any wage statements. ( Id. ¶¶ 25, 38.) Defendants also failed to provide notice that they were taking a tip credit for each payment period.[3] ( Id. ¶¶ 26, 31-32.)

Plaintiff brings his FLSA claims on behalf of himself and other similarly-situated tipped employees who worked at any of the four Szechuan Gourmet restaurants during the past three years. ( Id. ¶¶ 12-14.) He alleges that the Szechuan Gourmet restaurants operate as a single integrated enterprise, with common ownership, joint advertising, a general manager, and freely-interchangeable staff. ( Id. ¶ 9.) He claims that defendants applied the same wage and hour policies to the tipped employees at all four locations. ( Id. ¶¶ 12-14, 25-33, 38.)

Defendants deny plaintiff's allegations and oppose the conditional certification of the FLSA collective action. They maintain that the four Szechuan Gourmet restaurants are "separate entities" which are "unaffiliated" and that there is no common policy or practice applied by defendants to employees at the four restaurants. (Defs.' Mem. of Law in Opp'n to Pl.'s Mot. for Conditional Collective Certification at 4-6, Dkt. No. 38.) As a result, defendants contend that plaintiff is not similarly situated to the employees of the three restaurants where he did not work and therefore conditional certification would be improper. ( Id. at 6-7.)


The FLSA "was created to eliminate low wages and long hours as well as to free commerce from the interferences arising from production of goods under conditions that were detrimental to the health and well being of workers." Fasanelli v. Heartland Brewery, Inc., 516 F.Supp.2d 317, 320 (S.D.N.Y. 2007) (internal quotation marks omitted). Accordingly, the FLSA "regulates minimum wages and overtime wages paid by employers engaged in interstate commerce." Id.

Pursuant to Article 16(b) of the FLSA, employees may sue on behalf of themselves and "other employees similarly situated." 29 U.S.C. § 216(b). In Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010), the U.S. Court of Appeals for the Second Circuit endorsed the two-step approach to certification widely used by the district courts. "The first step involves the court making an initial determination to send notice to potential opt-in plaintiffs who may be similarly situated' to the named plaintiffs with respect to whether a FLSA violation has occurred." Id. at 555. During the second step, the court evaluates "whether a so-called collective action' may go forward by determining whether the plaintiffs who have opted in are in fact similarly situated' to the named plaintiffs. The action may be de-certified' if the record reveals that they are not, and the opt-in plaintiffs' claims may be dismissed without prejudice." Id.

"Neither the FLSA nor its accompanying regulations define the term similarly situated.'" Fasanelli, 516 F.Supp.2d at 321. Bearing in mind the remedial purposes of the statute, the named plaintiff, at the first stage, must simply "make a modest factual showing' that [he] and potential optin plaintiffs together were victims of a common policy or plan that violated the law.'... The modest factual showing' cannot be satisfied simply by unsupported assertions'... but it should remain a low standard of proof because the purpose of this first stage is merely to determine whether similarly situated' plaintiffs do in fact exist." Myers, 624 F.3d at 555 (citations omitted); see also Fasanelli, 516 F.Supp.2d at 321 (calling the burden "minimal" and noting that the plaintiff need only show a "factual nexus" between his claims and the claims of those who have chosen to opt in).

Because the court is assessing the plaintiff's claims at the start of discovery, the court "need not evaluate the merits of plaintiff['s] claims in order to determine that a definable group of similarly situated' plaintiffs... exist[s]." Hoffman v. Sbarra, Inc., 982 F.Supp. 249, 262 (S.D.N.Y. 1997); see also Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 368 (S.D.N.Y. 2007) ("At this procedural stage, the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations."). The conditional certification standard is "considerably more liberal than class certification under Rule 23" and does not require a showing of numerosity, typicality, commonality, or representativeness. Lynch, 491 F.Supp.2d at 369.

Courts throughout this district "have endorsed the sending of notice early in the [FLSA] proceeding, as a means of facilitating the FLSA's broad remedial purpose and promoting efficient case management." Hoffman, 982 F.Supp. at 262. Once the plaintiff sends court-approved notice to the potential collective members, the potential plaintiffs may "elect to opt-in ...

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