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Sanchez v. New York Kimchi Catering, Corp.

United States District Court, S.D. New York

June 28, 2017

WALTER NEIRA SANCHEZ, Plaintiff,
v.
NEW YORK KIMCHI CATERING, CORP., et al., Defendants.

          OPINION AND ORDER

          LORNA G. SCHOFIELD, District Judge:

         Plaintiff Walter Neira Sanchez brings this action under the Fair Labor Standards Acts (“FLSA”) and the New York Labor Law (“NYLL”) against his alleged former employers, Defendants New York Kimchi Catering, Corp., Gum Gang Inc. (“Gum Gang”), Un Cha Kim and Sandra Yoo. He moves for class certification on his claims arising under NYLL pursuant to Federal Rule of Civil Procedure 23 (“Rule 23”). For the following reasons, his motion is granted in part and denied in part.

         I. BACKGROUND

         A. The Parties

          Defendant Yoo owns Defendant Gum Gang, which operates a restaurant called “New York Kimchi” in Manhattan. Defendant Kim has been the bookkeeper, payroll clerk and office manager of Gum Gang's restaurant since February 2015. Defendant New York Kimchi Catering, Corp. occupied the restaurant premises before Gum Gang opened around March 2014. Defendant Kim attests that Gum Gang and New York Kimchi Catering, Corp. are unrelated entities.

         According to Plaintiff, between February 2014 and November 2014, he worked as a “delivery person at Defendants' ‘New York Kimchi' restaurant and catering, event planning, and food delivery service.” According to Defendant Kim, Gum Gang has no record that Plaintiff “worked for Gum Gang Inc. or worked at the ‘New York Kimchi' restaurant.”

         B. Defendants' Alleged Wage and Hours Policies

          Plaintiff attests that “[b]ased on [his] personal observations and conversations with other employees, all other non-managerial employees employed by Defendants at New York Kimchi were subject to similar wage and hour policies, including, but not limited” to eight individuals who were also delivery persons and another individual who was a cook. Plaintiff does not specify whom he observed, what positions they held, or to whom he spoke. As to the nine individuals, he does not attest that he spoke with them and identifies seven by first name only.

         With respect to the Defendants' alleged policies, Plaintiff avers that all non-managerial employees, including Plaintiff:

. were paid a “straight-time regular hourly rate” rather than the one and one-half rate for overtime hours, i.e., hours worked in excess of 40 hours per workweek;
. never received the “spread of hours” premium when their workdays exceeded 10 hours;
. never received any written wage and hour notice at the time of hiring informing them of their rates of pay or other requirements under New York law; and
. never received a wage statement with each payment of wages.

         Plaintiff also attests that he was a tipped employee and his hourly rate of pay was $5.00. For tipped employees, including Plaintiff, he attests:

. they were paid at hourly rates that were at all times below the prevailing minimum wage;
. they never received any notices that Defendants were taking a tip credit;
. they spent at least 2 hours per day or 20 percent of their time performing non-tipped activities;
. the tips they received were retained by Defendants at catering events, and they received only nominal tip amounts, regardless of the actual amount in tips they earned; and
. Defendants retained approximately 60 percent of the tips earned by tipped employees on each customer order paid for by credit card.

         The other evidence Plaintiff adduces comes solely from a wage and hour lawsuit that Plaintiff's counsel brought against Defendants and settled in May 2016, Burgos v. New York Kimchi Catering, Corp., No. 15 Civ. 1971 (S.D.N.Y. May 6, 2016) (“Burgos litigation”).[1] That evidence includes three pages of timesheets from two of the plaintiffs in the previous action who, like Plaintiff, were delivery persons and two paystubs from one of those individuals. It also includes the deposition transcripts of Defendant Kim and Mohammad Aveek, who worked as a delivery person for several months until he became manager in February 2015.

         C. ...


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