Park v. Hanpool, Inc.

Background

Andre Park, Celeste Vargas, Alfredo Larios Salvador, and Wilmer Adolfo Larios Salvador sued Hanpool, Inc., Gam Mee Ok, Inc., and Hyung K. Choi under the Fair Labor Standards Act (FLSA) and New York Labor Law. The defendants operate Korean restaurants in Manhattan and New Jersey under the trade name “Gammeeok.” Park and Vargas worked as servers, while Alfredo Larios Salvador and Wilmer Adolfo Larios Salvador worked as bussers at the Manhattan location.

The plaintiffs alleged that the defendants failed to provide proper tip-credit notices, required workers to share tips with a manager and other non-tipped employees, failed to pay weekly wages, and failed to pay certain required premiums. They also alleged that some tipped workers spent more than 20 percent of their shifts doing non-tipped work. The plaintiffs sought conditional certification of a collective action covering all non-managerial employees employed by the defendants from December 29, 2020, to the present.

Legal standard

At the first, or notice, stage of an FLSA collective action, plaintiffs must make a modest factual showing that they and potential additional plaintiffs may be similarly situated—that is, that they may have been affected by a common unlawful policy or plan. The court does not decide at this stage whether an actual legal violation occurred. At a later stage, after the record is more developed, the court may determine whether the people who joined the case are in fact similarly situated and may remove them from the collective if they are not.

Ruling on the proposed collective

The court granted the motion for collective certification in part. It conditionally certified a collective of non-managerial employees who worked at Gammeeok’s Manhattan location at any time on or after December 29, 2020. The court denied the motion as to all non-managerial employees who worked at the New Jersey location.

The court rejected the plaintiffs’ argument that the two restaurants should be treated as one integrated business for FLSA purposes. Although Hyung K. Choi had an ownership interest in both restaurants and served as an executive of both companies, the restaurants operated through separate corporate entities, maintained separate bank accounts, filed separate tax returns, used different accountants, and used supplies separately. The defendants also stated that the restaurants did not have uniform policies and that each location’s managers handled hiring, firing, and pay schedules. The plaintiffs did not submit a declaration from a New Jersey employee or other evidence describing employment policies at that location.

For the Manhattan employees, the court found that the plaintiffs barely met the low evidentiary standard, including as to non-tipped, back-of-the-house workers. The plaintiffs’ declarations described tip and wage problems and conversations with other workers. Vargas identified four non-managerial workers, including a chef, dishwasher, and line cook, who reportedly said their paychecks did not include payment for all hours worked. The court concluded that these statements were enough at the notice stage to support a collective covering servers, bussers, and non-tipped back-of-the-house staff.

Notice and related procedures

The court required the notice to reach only employees who worked at the Manhattan location on or after December 29, 2020. Defendants must provide plaintiffs’ counsel with names, addresses, email addresses, and telephone numbers for potential collective members within 20 days of the order. Defendants do not have to provide Social Security numbers. The information may be supplied in Microsoft Excel or another reasonably usable format.

The court approved notice by U.S. mail, email, text message, KakaoTalk, and WhatsApp. It also ordered defendants to post the notice and consent form at the Manhattan restaurant. The court denied the requested 90-day opt-in period by limiting it to 60 days and approved a reminder notice at the 30-day midpoint of that period, rather than 45 days after the initial notice.

The court granted the plaintiffs’ request for equitable tolling, meaning a temporary pause in the limitations period, from June 14, 2024, when they filed the certification motion, through the date of the order. The court declined to extend that pause throughout the opt-in period because the plaintiffs had not shown extraordinary circumstances justifying additional tolling. The proposed notice had to be modified to comply with the order, and the parties were directed to confer about any remaining objections to its form or distribution.