Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wang v. Shun Lee Palace Restaurant, Inc.

United States District Court, S.D. New York

June 28, 2018

CHENG XIA WANG, CHUNIN ZHANG, JUN QING ZHAO, BAO GUO ZHANG, ZE JUN ZHANG, GUOYI WANG, TONG WEI WU, and ZHI QIANG LU, On Behalf of Themselves and Others Similarly Situated, Plaintiffs,
v.
SHUN LEE PALACE RESTAURANT, INC., d/b/a SHUN LEE PALACE, T&W RESTAURANT, INC. d/b/a SHUN LEE WEST, JOHN HWANG, MICHAEL TONG, BIN HU, and WILLIAM HWANG, Defendants

          Kibum Byun John Troy Troy Law, PLLC Flushing, New York Counsel for Plaintiffs

          A Michael Weber Eli Zev Freedberg Huan Xiong Kevin K. Yam Maayan Deker Littler Mendelson, P.C. New York, New York Counsel for Defendants

          OPINION & ORDER

          VERNON S. BRODERICK, UNITED STATES DISTRICT JUDGE.

         Plaintiffs Cheng Xia Wang, Chunlin Zhang, Jun Qing Zhao, Bao Guo Zhang, Ze Jun Zhang, Guoyi Wang, Tong Wei Wu, and Zhi Qiang Lu (the “Named Plaintiffs”) commenced the instant action pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL”), NY Lab. Law § 650 et seq, against Defendants Shun Lee Palace Restaurant, Inc. (“Shun Lee Palace”), T&W Restaurant, Inc. (“Shun Lee West”), John Hwang, Michael Tong, Bin Hu, and William Hwang (the “Individual Defendants, ” and collectively with Shun Lee Palace and Shun Lee West, “Defendants”). Before me is Named Plaintiffs' motion seeking an order: (1) granting conditional certification of their FLSA claim as a collective action pursuant 29 U.S.C. § 216(b); (2) requiring Defendants to turn over contact information for potential members of the collective; (3) approving their notice and consent forms and ordering that the notice and consent be posted in Shun Lee Palace and Shun Lee West; and (4) authorizing equitable tolling of the statute of limitations for potential members pending the expiration of the opt-in period. Because I find that the Named Plaintiffs have met their modest burden of demonstrating that potential collective members are similarly situated only with respect to the delivery persons and waitstaff at Shun Lee Palace and Shun Lee West, I grant in part and deny in part the Named Plaintiffs' motion for conditional collective certification.

         L Background[1]

         Shun Lee Palace and Shun Lee West are both domestic businesses, specifically restaurants, organized under the laws of New York with principal addresses at 155 East 55th Street, New York, New York 10022 and 43 West 65th Street, New York, New York 10023, respectively. (See Compl. ¶¶ 15, 18.)[2] The businesses are owned and controlled by Tong, Hu, and John and William Hwang. (Id. ¶ 21.)

         The Named Plaintiffs are current or past employees of either Shun Lee Palace or Shun Lee West. (See Id. ¶¶ 31, 53, 70, 88, 103, 122, 136, 150.) Cheng Xia Wang, Chunlin Zhang, Bao Guo Zhang, Guoyi Wang, and Zhi Qiang Lu are former delivery persons for Shun Lee Palace-Cheng Xia Wang worked there from 2008 to 2014, Chunlin Zhang worked there from 2006 to 2013, Bao Guo Zhang worked there from 2011 to 2012, Guoyi Wang worked there from 2008 to 2009 and again from 2010 to 2011, and Zhi Quiang Lu worked there in 2012. (See Id. ¶¶ 31, 53, 88, 122, 150.) Jun Qing Zhao and Ze Jun Zhang are current employees of Shun Lee Palace who have been working as delivery persons there since 2008. (Id. ¶¶ 70, 103.) Tong Wei Wu worked as a delivery person at Shun Lee West from 2009 to 2014, (id. ¶ 136), and Zhi Qiang Lu worked as a delivery person for Shun Lee West from 2014 to 2016 after working at Shun Lee Palace in 2012, (id. ¶¶ 150-51). Quek Yeow Yap, the only non-delivery person who provided an affidavit, has been a waiter at Shun Lee Palace from 1998 to 2002, from 2006 to 2008, and from 2011 to the present day.[3] (See Yap Aff. ¶ 2.) The Individual Defendants controlled the businesses and managed the Named Plaintiffs. (See Compl. ¶¶ 22-30.)

         The Named Plaintiffs were paid on an hourly basis and should have been compensated one-and-a-half times their hourly pay rate for any overtime in excess of forty hours per workweek as required by the FLSA, as they were non-exempt employees. (See Id. ¶¶ 46, 63, 81, 97, 117, 131, 144, 163.) Cheng Xia Wang, Chunlin Zhang, Jun Qing Zhao, Ze Jun Zhang, and Guoyi Wang allege that they were regularly required to work overtime-typically between sixty and seventy hours per week-without overtime pay. (See Id. ¶¶ 33-45, 55-58, 72-75, 104-12, 123-26; see also Wang Aff. ¶ 18.)[4] Yap alleges that he was regularly required to work between forty and fifty hours per week without overtime pay. (Yap Aff. ¶¶ 4-15, 20.) Zhi Qiang Lu also alleges that he was required to work between forty and forty-five hours per week without overtime pay and without breaks while he was working at Shun Lee Palace. (See Compl. ¶¶ 153-55; see also Lu Aff. 2, ¶¶ 1-2.)[5] Cheng Xia Wang, Chunlin Zhang, Jun Qing Zhao, Bao Guo Zhang, Ze Jun Zhang, and Guoyi Wang state that they frequently stayed approximately thirty minutes to one hour after their regular hours and were not provided with breaks. (See, e.g., Compl. ¶¶ 39-40, 56-57, 73-74, 91-92, 105-06, 124-25.)

         The Named Plaintiffs also allege that Defendants failed to compensate them and other delivery persons, as well as non-managerial employees in general, at the minimum wage as required under the FLSA. (See Pls.' Mem. 5; Wang Aff. ¶¶ 13-14, 18; Wu Aff. ¶ 7; Lu Aff. ¶ 5; Yap Aff. ¶¶ 15-17.)[6] They further allege that Defendants failed to inform the Named Plaintiffs and other non-managerial employees of their hourly pay rates, provide information as to tip deductions towards the minimum wage, or keep records of their overtime. (See Pls.' Mem. 5-6; see also Wang Aff. ¶¶ 16-20; Wu Aff. ¶¶ 8, 10-12; Lu Aff. ¶¶ 7-8; Yap Aff. ¶¶ 18-20.) Additionally, the Named Plaintiffs were required to purchase, use, and maintain a delivery vehicle without compensation for its purchase, repair, or maintenance. (See Compl. ¶¶ 47-51, 64-69, 82-87, 98-102, 118-21, 132-35, 145-49, 164-70.)

         II. Procedural History

         The Named Plaintiffs filed their complaint (the “Complaint”) against Defendants for violations of FLSA and the NYLL on February 3, 2017. (Doc. 1.) Defendants filed their answer on April 21, 2017. (Doc. 21.) Between February 3, 2017 and December 19, 2017, twenty-four parties filed consents to become a party plaintiff under the FLSA[7] (See Docs. 4-11, 13, 28-31, 32-39, 48, 51, 52.) On February 8, 2018, the Named Plaintiffs filed their motion to conditionally certify the class, along with a memorandum of law, a declaration, and affidavits in support of the motion. (Docs. 58-59.) On March 22, 2018, Defendants filed their memorandum of law and declarations in opposition to the motion. (Docs. 71-76.) The Named Plaintiffs filed their reply memorandum on April 5, 2018. (Doc. 77.)

         III. Legal Standard

         Under the FLSA, employees may pursue collective actions to recover unpaid wages where the employees are “similarly situated” and give consent to become a party in a writing filed with the court. See 29 U.S.C. § 216(b). A district court may implement § 216(b) by “facilitating notice to potential plaintiffs of the pendency of the action and of their opportunity to opt-in as represented plaintiffs.” Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010) (internal quotation marks omitted). The court may also direct a defendant employer to disclose the names and addresses of potential class members. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169-70 (1989).

         In the Second Circuit there is a two-step certification process for opt-in collective actions under the FLSA. Myers, 624 F.3d at 554-55. At the first stage, the district court must make “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. In order to achieve conditional certification, plaintiffs must make only a “‘modest factual showing' that they and potential opt-in plaintiffs ‘together were victims of a common policy or plan that violated the law.'” Id. (quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y. 1997)). At this stage, the key element is that a plaintiff is able to demonstrate that employees were subject to a shared unlawful policy. See Korenblum v. Citigroup, Inc.,195 F.Supp.3d 475, 479 (S.D.N.Y. 2016). “Plaintiffs may satisfy this requirement by relying on their own pleadings, affidavits, declarations, or the affidavits and declarations of other potential class members.” Hallissey v. Am. Online, Inc., No. 99-CIV-3785 (KTD), 2008 WL 465112, at *1 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.