United States District Court, S.D. New York
SHANFA LI and GUIMING SHAO, on behalf of themselves and others similarly situated, Plaintiff,
CHINATOWN TAKE-OUT INC., d/b/a/ China Town Take Out; and YECHIEL MEITELES, Defendants.
OPINION AND ORDER
C. McCARTHY UNITED STATES MAGISTRATE JUDGE
September 29, 2016, Shanfa Li and Guiming Shao (the
“Plaintiffs”) brought this action under the Fair
Labor Standards Act (“FLSA”) and New York Labor
Laws against Chinatown Take-Out Inc. and Yechiel Meiteles
(the “Defendants”) in the Northern District of
New York. (Docket No. 1). On October 5, 2016, the case was
transferred to the Southern District. (Docket No. 4).
Plaintiffs allege that the Defendants failed to pay the
applicable minimum wage and overtime compensation for hours
worked in excess of forty hours per week. (Docket No. 1 at
1-2). Presently before the Court is Plaintiffs' motion
for (1) conditional certification as a collective action
under 29 U.S.C. § 216(b); (2) approval of Plaintiffs
proposed notice and consent form; (3) tolling of the FLSA
statute of limitations; and (4) production by Defendants of
contact information for all of Defendants' “former
non-managerial employees.” (Docket No. 41 at 1-2).
Defendants opposed the motion on September 11, 2017, (Docket
No. 44), and Plaintiffs filed their reply on September 15,
2017, (Docket No. 46). For the reasons that follow,
Plaintiffs' motion is denied without prejudice.
CHINATOWN TAKE-OUT INC. d/b/a/ Chinatown Take-Out
(“Chinatown”) is a New York corporate entity
located in Wesley Hills, New York. (Compl. at ¶ 9).
Defendant Yechiel Meiteles is the owner and operator of China
Town Take Out. (Id. at ¶¶ 13-15).
Shanfa Li (“Li”) asserts that he was employed as
a “miscellaneous worker” at Chinatown from August
25, 2015 to August 31, 2016. (Pls.' Br. at 2). He
maintains that his work included “cleaning the floors
and tables, washing dishes, stirring and cutting in the
kitchen, and whatever else [he] was instructed to do.”
(Li. Aff. at ¶ 3). While at Chinatown, Li
alleges that he worked eleven hours each day from Sunday
through Thursday and three hours on Friday, totaling
fifty-eight hours each week. (Id. at ¶¶ 7,
8). He also alleges that he was never given a fixed meal
break for lunch or dinner. (Id. at ¶ 9).
According to Li, he was told that he would be paid $650 each
week; however, he was “frequently paid every other week
or paid less” than what he was owed. (Id. at
¶ 10). In total, he alleges that he was paid $5500 less
than what he was promised and never received overtime or
spread of hours' wages. (Id. at ¶¶ 11,
13). Finally, Li asserts that he never received notice of his
wages in either English or Mandarin, his native language, and
was never informed of his hourly rate. (Id. at
¶¶ 12, 14).
Guiming Shao (“Shao”) alleges that he worked as a
fry wok at Chinatown from November 2008 until November 3,
2016. (Shao Aff. at ¶ 3). While employed at Chinatown,
Shao asserts that he worked the same hours as Plaintiff Li
(totaling fifty-eight hours each week). (Id. at
¶¶ 7-9). He maintains that he took approximately
twenty to thirty minutes each day as a break for meals.
(Id. at ¶ 11). Shao alleges that he was paid
$3000 each month in three $1000 installments, usually in
cash. (Id. at ¶¶ 12, 13). However, he also
states that he would sign for his pay two times a year, but
“did not understand the contents of the
documents” because “they were exclusively in
English.” (Id. at ¶ 18). Like Li, Shao
asserts that he was never told his hourly rate, that he never
received a wage notice in English or Mandarin, his native
language, and that he never received overtime or spread of
hours' wages. (Id. at ¶¶ 14-17).
other similarly situated employees, Li alleges that he knows
other employees were underpaid because he had
“conversations about pay with one of the previous
bosses” who “did not tell [him] what other
employees made, but said that he had received complaints from
other people as well.” (Li. Aff. at ¶ 15).
seek to conditionally certify a collective that includes all
non-managerial employees who worked for Defendants dating
back to April 15, 2012. (Pls. Br. at 9-10). Defendants,
however, argue that that Plaintiffs inappropriately seek to
expand the scope of this action based on “vague and
wholly conclusory” allegations. (Defs.
at 4). As such, Defendants maintain that Plaintiffs have
failed to meet their burden of demonstrating that they are
similarly situated to the potential opt-in plaintiffs.
Conditional Collective Action Certification Standard
the FLSA, a plaintiff may seek certification to proceed as a
collective action, thus providing other “similarly
situated” employees the opportunity to join the
litigation. 29 U.S.C. § 216(b); see also Benavides
v. Serenity Spa NY Inc., 166 F.Supp.3d 474, 478
(S.D.N.Y. 2016). Courts in the Second Circuit employ a
two-step certification process for an FLSA collective action.
See, e.g., Johnson v. Carlo Lizza & Sons
Paving, Inc., 160 F.Supp.3d 605, 610 (S.D.N.Y.
2016). The first step, which is presently at issue, is
commonly referred to as conditional certification. See
Morris v. Lettire Const. Corp., 896 F.Supp.2d 265, 269
(S.D.N.Y. 2012). During this stage, “the court mak[es]
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.” Myers v. Hertz Corp., 624 F.3d 537,
555 (2d Cir. 2010). Plaintiffs bear the burden of making a
“modest factual showing” that the named
plaintiffs and the potential opt-in plaintiffs
“together were victims of a common policy or plan that
violated the law.” Id. (quoting Hoffman v.
Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y. 1997)
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.” Id. (citations
and internal quotation marks omitted); Johnson, 160
F.Supp.3d at 610 (explaining that the low standard is
appropriate because conditional certification is merely a
useful case management tool to facilitate notice to potential
class members). “Nevertheless, while a plaintiff's
burden of proof is low, it is not non-existent [and]
certification is not automatic.” Sanchez v. JMP
Ventures, L.L.C., No. 13 Civ. 7264(KBF), 2014 WL 465542,
at *1 (S.D.N.Y. Jan. 27, 2014) (internal quotation marks
omitted). Plaintiffs must offer “substantial
allegations” demonstrating a “factual
nexus” between themselves and the potential opt-in
plaintiffs. Diaz v. S & H Bondi's Dep't
Store, No. 10 Civ. 7676(PGG), 2012 WL 137460, at *3
(S.D.N.Y. Jan. 18, 2012) (internal quotation marks omitted).
Plaintiffs may rely on their own pleadings, affidavits, and
declarations, as well as the affidavits of other potential
class members to meet their burden. See Warman v. Am.
Nat'l Standards Inst., 193 F.Supp.3d 318, 323
(S.D.N.Y. 2016). Importantly, the court will not weigh the
merits of the plaintiffs' underlying claims, resolve
factual disputes, or evaluate credibility during this stage.
See Morris, 896 F.Supp.2d at 269.
the second stage, “the district court will, on a fuller
record, determine 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.” Myers,
624 F.3d at 555. If the record reveals that the opt-in
plaintiffs are not “similarly situated” to the
named plaintiffs, Defendants may move for decertification and
the opt-in plaintiffs' claims may be dismissed without
prejudice. See id.
. . . a conditional certification motion is made after some,
but not all, discovery has occurred, it remains an open
question whether some kind of ‘intermediate
scrutiny' should apply.” Korenblum v.
Citigroup, Inc., 195 F.Supp.3d 475, 480-82 (S.D.N.Y.
2016) (finding a “modest plus” standard
appropriate because review “may properly grow more
exacting as discovery proceeds”). In general, district
courts in this Circuit decline to apply increased scrutiny
until discovery closes in full. See Id. at 481
(collecting cases). Here, discovery closed in full on January
31, 2018, (see December 18, 2017 Minute ...