Opinion
No. 14 -cv-813 (CM)
10-07-2014
GUO QING WANG, Plaintiff, v. H.B. RESTAURANT GROUP, INC. d/b/a HUNAN BALCONY, and JENNY WU, Defendants.
MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR CONDITIONAL COLLECTIVE CERTIFICATION AND FACILITATION OF NOTICE
:
On February 10, 2014, Plaintiff Guo Qing Wang, brought a collective action against Defendants, H.B. Restaurant Group, Inc. d/b/a Hunan Balcony ("Hunan Balcony") and Jenny Wu ("Wu") alleging failure to compensate Plaintiff overtime wages for work performed in excess of forty hours in a workweek and failure to compensate Plaintiff the federal minimum wage pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §201 et seq., and the New York Labor Law ("NYLL"), and also for failure to provide Plaintiff with a notice and/or statement of Plaintiff's rate of pay and allowance, if any, at the time of hiring pursuant to NYLL §195(1).
On May 23, 2014, Plaintiff filed this motion seeking (1) conditional collective action certification, (2) court-authorized notice pursuant to section 216(b) of the FLSA, (3) an order directing Defendants to produce current and former employees of Hunan Balcony who worked as a chef or kitchen worker within the last three years, and (4) an order directing Defendants to post court-authorized notice in a conspicuous location within Hunan Balcony. Defendants oppose the conditional certification of the collective action.
Plaintiff does not currently seek class certification of his state law claims under Federal Rules of Civil Procedure Rule 23. --------
For the following reasons, Plaintiff's motion is granted.
BACKGROUND
Defendant H.B. Restaurant Group, Inc. is a New York corporation with a principal executive office in New York. Hunan Balcony is a restaurant owned by Defendant H.B. Restaurant Group. Defendant Wu is an owner and manager of Hunan Balcony at the time Plaintiff was employed at Hunan Balcony. Compl. ¶¶ 9-11.
Plaintiff was employed by Defendants as a chef at Hunan Balcony from November 2011 to December 2013. Plaintiff alleged that when he was hired, Defendants never gave him a notice containing the rate or rates of his pay, whether he was to be paid by hour, shift, or salary, whether he will have any allowances, what the regular pay day would be, or any of the Defendants' information. Id. ¶ 34.
Plaintiff also alleged that during his employment at Hunan Balcony, he was paid "about $2,500 to $2,600 per month, about $14.42 to $15 per hour." Id. ¶ 35. Plaintiff asserted that he worked sixty-six hours each work week, which consisted of working eleven hours per day, Monday through Sunday, with either Tuesday or Wednesday off. Id. ¶¶ 35-36. Additionally, Plaintiff alleged that he was frequently not allowed to take his full thirty minute uninterrupted lunch break during his shift. Id. ¶ 37.
Plaintiff alleged that Defendants would require him to work long days and weekends which would exceed forty hours per week. Id. ¶ 46. Plaintiff further alleged that even though he worked sixty-six hours a week, Defendant "willfully failed to pay" him overtime on the hours he worked in excess of the forty hours per week. Id. ¶ 41.
Plaintiff also claims that Defendants failed to post a notice explaining the minimum wage and overtime pay rights in their principal place of business during the course of Plaintiff's employment at Hunan Balcony. Id. ¶ 48.
Plaintiff moved for conditional certification of the collective class and Defendant opposes the motion.
DISCUSSION
I. Certification of a Conditional Collective Action Pursuant to the FLSA §216(b)
1. Introduction
The FLSA requires employers to compensate their employees "not less than one and one-half times the regular rate at which [the employee] is employed" for each hour worked in excess of forty hours per workweek, 29 U.S.C. §207(a)(1), and to compensate their employees at least the federal minimum wage, 29 U.S.C. §206(b). FLSA §216(b) creates a private right of action for employees to recover any unpaid overtime or unpaid minimum wage if their employers violate FLSA §§206 or 207. §216(b) also provides employees with the option of bringing a collective action against their employer:
An action ... may be maintained against an employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.29 U.S.C. §216(b). Collective actions were created to promote the "efficient adjudication of similar claims, so 'similarly situated' employees, whose claims are often small and not likely to be brought on an individual basis, may join together and pool their resources to prosecute their claims." Lynch v. United States Auto. Ass'n, 491 F. Supp. 2d 357, 367 (S.D.N.Y. 2007) (citing Hoffmann-La Roche Inc.v. Sperling, 493 U.S. 165 (1989)). Unlike Federal Rules of Civil Procedure Rule 23 class actions, FLSA collective actions require similarly situated employees to affirmatively opt-in and be bound by any judgment. Myers v. Hertz Corp, 624 F.3d 537, 542 (2d Cir. 2010).
There are three essential features of a collective action bought under FLSA section 216(b). First, an employee must "opt-in," which means the employee must consent in writing to be included in the action and the consent must be filed in court. Second, "the statute of limitations runs on each employee's claim until his individual consent form is filed with the court." Third, courts may order notice to be sent to potential similarly situated employees "to inform them of the opportunity to opt-in the case." Lynch, 491 F. Supp. 2d at 367.
2. The Second Circuit's Two-step Process for Certifying a Collective Action
The Second Circuit has identified a two-stage process for deciding whether certification is proper. See, Myers, 624 F.3d at 554-54; Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 660 (S.D.N.Y. 2013); Lynch, 491 F. Supp. 2d at 367-68. In the first stage, the court looks at the pleadings and affidavits filed with the court to determine if plaintiff satisfies "the minimal burden of showing that the similarly situated requirement is met." Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (citing Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005)); see also, Myers, 624 F.3d at 555; Hamadou, 915 F. Supp. 2d at 660. If the court finds that the plaintiff has shown that the potential opt-in employees are similarly situated, the court will conditionally certify the collective action, send notice to the potential class members, and extend the potential class members the opportunity to opt-in to the collective action. See, Hamadou, 915 F. Supp. 2d at 660; Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 367 (S.D.N.Y. 2007).
The second stage occurs after discovery. The court examines the record and "undertakes a more stringent factual determination as to whether members of the class are, in fact, similarly situated." Lynch, 491 F. Supp. 2d at 368; see also, McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438, 442 (S.D.N.Y. 2012). If the court determines that the class members and the named plaintiff are not similarly situated, then the court may "de-certify the class and dismiss the claims of the opt-in plaintiffs without prejudice." Lynch, 491 F. Supp. 2d at 368 (citing Iglesias-Mendoza, 239 F.R.D. at 367).
Because Plaintiff's motion is for conditional certification of the collective action, the Court only needs to determine if plaintiff and potential class members are similarly situated on a preliminarily basis.
3. Standard for Conditional Collective Action Certification
The FLSA does not define the term "similarly situated." Iglesias-Mendoza, 239 F.R.D. at 367. However, courts have held the plaintiff's "burden for demonstrating that potential plaintiffs are similarly situated is very low at the [initial] stage." Lynch, 491 F. Supp. 3d at 368. This low burden serves the "broad remedial purpose of the FLSA." Hamadou, 915 F. Supp. 2d at 661 (quoting Raniere v. Citigroup, 827 F. Supp. 2d 294, 319 (S.D.N.Y. 2011) rev'd and remanded on other grounds, 533 F. App'x. 11 (2d Cir. 2013)).
In order to adequately show that potential class members are similarly situated in the first stage, plaintiffs only needs to make "a modest factual showing ... to demonstrate that ... the potential [class members and the plaintiff] together were victims of a common policy or plan that violated the law." Iglesias-Mendoza, 239 F.R.D. at 367-68 (quoting Realite v. Ark Rest. Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998)); see also, Hamadou, 915 F. Supp. 2d at 661; Indergit v. Rite Aid Corp., No. 08 Civ. 9361(PGG), 2010 WL 2465488 at *3 (S.D.N.Y. June 16, 2010). "Plaintiffs can meet this burden by relying on their own pleadings, affidavits, declarations, or the affidavits and declarations of other potential class members." Hamadou, 915 F. Supp. 2d at 661.
At the initial stage, courts do "not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations." Lynch, 491 F. Supp. 2d at 368. See also, Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 262 (S.D.N.Y. 1997); Shajan v. Barolo, Ltd., No. 10 Civ. 1385(CM), 2010 WL 2218095 at *1 (S.D.N.Y. June 2, 2010). In fact, courts do not weigh the merits of the underlying claims to determine whether potential members are similarly situated. Lynch, 491 F. Supp. 2d at 368; see also, Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005).
Most significantly, the standards for class certification under Federal Rules of Civil Procedure Rule 23 do not apply to FLSA collective actions. Lynch, 491 F. Supp. 2d at 369. Therefore, in order to certify a collective action under the FLSA, Plaintiff does not need to show numerosity, typicality, community, or adequacy of representation. Id.; Iglesias-Mendoza, 239 F.R.D. at 369.
4. Plaintiff has met the similarly situated requirement for conditional certification of a collective action
Plaintiff seeks a conditional certification of a collective action on behalf of similarly situated employees who served as chefs or kitchen workers at Hunan Balcony. Courts have routinely certified conditional collective actions based on the plaintiff's affidavit declaring they have personal knowledge that other coworkers were subjected to similar employer practices. See, Iglesias-Mendoza, 239 F.R.D. at 368; Sanchez v. Gansevoort Mgmt Grp., Inc., No. 12 Civ. 75 (KBF), 2013 WL 208909 at *1 (S.D.N.Y. Jan. 10, 2013); Hernandez v. Bare Burger Dio Inc., No. 12 Civ. 7794(RWS), 2013 WL 3199292 at *3 (S.D.N.Y. June 25, 2013); Khamsiri v. George & Frank's Japanese Noodle Rest. Inc., No. 12 Civ. 265(PAE), 2012 WL 1981507 at *1 (S.D.N.Y. June 1, 2012); Harhash v. Infinity W. Shoes, Inc., No. 10 Civ. 8285(DAB), 2011 WL 4001072 at *3-4 (S.D.N.Y. Aug. 25, 2011).
Here, Plaintiff asserts that he was required to work sixty-six hours a week and was denied overtime wages. Wang Decl. at ¶ 2-4. Plaintiff also declares he has personal knowledge from his observations and his conversations with his coworkers that he and his "coworkers in the kitchen" were victims of Defendant's practices of not compensating its kitchen staff overtime wages for every hour they worked in excess of forty hours. Wang Decl. at ¶ 9. Therefore, Plaintiff has satisfied the low burden that he is similarly situated with the proposed class members.
Ignoring the applicable case law, Defendants tried to defeat Plaintiff's motion for conditional certification of a collective action by asserting that Plaintiff's declaration is riddled with false statements and by submitting their own evidence that all employees were paid according to the law. Irwin, Affrim. Opp. ¶ 1, 3. However, at this initial stage, the Court does not resolve these sorts of factual disputes. Pippins v. KPMG LLP, No. 11 Civ. 0377(CM(JLC), 2012 WL 19379 at *12 (S.D.N.Y. Jan. 3, 2012). "[I]f [P]laintiff's allegations are sufficient on their face to support conditional certification, ... Defendant may not defeat the Plaintiff's motion by presenting conflicting factual assertions." Jeong Woo Kim v. 511 E. 5th St., LLC, 985 F. Supp. 2d 439, 449 (S.D.N.Y. 2013).
Plaintiff's motion for conditional certification of a collective action is GRANTED.
II. Plaintiff's Collective Action is Appropriate for Court Facilitated Notice
Even though FLSA §216(b) does not expressly mention court-authorized notice for potential similarly situated employees, it is "well settled that district courts have the power to authorize an FLSA plaintiff to send such notice." Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101, 103-04 (S.D.N.Y. 2003) (internal citations and quotations omitted); see also, Hoffman, 982 F. Supp. at 261 ("District courts have the discretionary power to authorize the sending of notice to potential class members in a collective action brought pursuant to §216(b) of FLSA."); Hoffman-La Roche Inc., 493 U.S. at 174; Morales v. Plantworks, Inc., No. 05 Civ. 2349(DC), 2006 WL 278514 at *2 (S.D.N.Y. Feb. 2,2006). "[C]ourts have endorsed the sending of notice early in the proceeding, as a means of facilitating the FLSA's broad remedial purpose and promoting efficient case management." Hoffman, 982 F. Supp. at 262. The threshold question before authorizing notice is "whether [P]laintiff [has] demonstrated that potential class members are similarly situated." Id. at 261. Therefore, since the Court has already held that Plaintiff satisfied his burden of showing that he is similarly situated with potential class members, Plaintiff's request for notice is authorized.
1. Class Definition
The statute of limitations for FLSA claims is two-years, unless the violations are willful, in which case, the statute of limitations is extended to three years. See 29 U.S.C. §255(a). "Where willfulness is disputed, the court applies the three-year statute of limitations for purposes of certifying a representative action." Iglesias-Mendoza, 239 F.R.D. at 369. Here, Plaintiff alleges that Defendants willfully failed to pay him overtime wages. Compl. ¶ 41. Therefore, the Court will apply the three-year statute of limitations.
Additionally, Plaintiff alleges only that he has personal knowledge that chefs and kitchen worker were subjected to the similar practices by the Defendant. Thus, the Court will certify the collective class for chefs and kitchen workers of Hunan Balcony.
The Court authorizes Plaintiff's requested class definition for all chefs and kitchen workers who worked at Hunan Balcony from February 2011 to the present that believe they were denied their overtime wages.
2. Form of Proposed Notice
Under Section 3, the opt-in period for the action will be 60 days from the date of the Notice. Otherwise, the proposed Notice is approved in its entirety.
III. Production of Covered Employees
Plaintiff requests the contact information of all Defendant's covered employees, including their Social Security numbers.
"Courts within [the Second Circuit] routinely grant plaintiff's motions to compel production of the names and addresses of potentially similarly situated employees...." Anglada v. Linens 'N Things, Inc., No. 06 Civ. 12901(CM)(LMS), 2007 WL 1552511 at *7 (S.D.N.Y. Apr. 26, 2007), report and recommendation adopted (May 22, 2007). Additionally, "the request to compel production of social security numbers is within the Court's sound discretion." Whitehorn v. Wolfgang's Steakhouse, Inc., 767 F. Supp. 2d 445, 448 (S.D.N.Y. 2011) (citing Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir. 2004).
Thus, the Court orders Defendant to produce a computer readable list of all chefs and kitchen workers who were employed by Defendants at any point within the three years prior to the filing of the Complaint. The list shall include the potential class member's name, last known mailing address, alternate address (if any), all known telephone numbers, and dates of employment, as well as the last four digits of the individual's Social Security number.
Prior to Defendant's production of the above information, Plaintiff and Plaintiff's counsel must file with the court a sworn statement indicating that they will maintain the Social Security information in confidence, to be used only in connection with this lawsuit. See Shajan, 2010 WL 2218095 at *1. The statement must state that the numbers will be maintained by counsel alone (no outside consultants) and used solely to perform skip trace for notices returned as undeliverable; that all copies of the numbers, including any program or other document created using the numbers, will be destroyed once the skip trace analysis is completed; and that counsel will certify, in writing, that the terms of this Order have been adhered to once the destruction of this data is complete. IV. Posting of Notice in Defendant's Restaurant, Hunan Balcony
Plaintiff requests that Defendants post the Notice, along with the consent forms, in a conspicuous location in Defendant's Restaurant, Hunan Balcony.
"Courts routinely approve requests to post notice on employee bulletin boards and in other common areas, even where potential members will also be notified by mail." Whitehorn,767 F. Supp. 2d at 449. "Posting notice in the workplace maximizes potential plaintiffs' opportunities to be informed of the pendency of the litigation and consider whether to opt in." Mendoza v. Ashiya Sushi 5, Inc., No. 12 Civ. 8629(KPF), 2013 WL 5211839 at *9 (S.D.N.Y. Sept. 16, 2013). Accordingly, Defendant is ordered to post the Notice and the consent forms in a common, non-public employee space of Hunan Balcony, where the Notice and the consent forms will be easily visible to chefs and kitchen workers. The Notice needs to be translated into whatever Chinese dialect is comprehensible to chefs and kitchen workers. Plaintiff's counsel will select the appropriate language; Defendant bears the cost of translation. CONCLUSION
For the foregoing reasons, the court GRANTS Plaintiff's motion for conditional class certification and authorizes that notice be sent to potential class members in the form authorized by the court pursuant to section 216(b) of the FLSA. Defendants are ordered to provide Plaintiff with the contact information detailed above for all potential collective action class members who have worked in the positions of chef or kitchen workers at Hunan Balcony for three years from the date of this decision, upon compliance by Plaintiff's counsel with the conditions set forth in this opinion. Defendants are also ordered to post the authorized Notice along with opt-in forms in a conspicuous place within Hunan Balcony.
The Clerk of the Court is directed to remove Docket No. 11 from the Court's list of pending motions. Dated: October 7, 2014
/s/_________
U.S.D.J. BY ECF TO ALL COUNSEL