Qiu v. Shanghai Cuisine, Inc.

Background

Ting Qui Qui, Jian Wei Deng, Yu Bo Su, Zhaobang Bai, and Shaohong Zeng brought a proposed collective action under the Fair Labor Standards Act (FLSA) against Shanghai Cuisine, Inc.; R & M Century, Inc.; John Doe Corporation; Jonathan Ho; Na Sun; Jijie Hong; Wing Jing Lau; Josephine Feng; and Chenwen Ho. The complaint alleges unpaid wages and unpaid overtime under the FLSA, as well as violations of New York Labor Law.

The named plaintiffs held kitchen, waiting, and other positions. They alleged that the defendants did not pay them for all hours worked or pay overtime. The motion before the court was the plaintiffs’ unopposed request for conditional certification of an FLSA collective action, production of information about potential members, permission to send notice, a requirement that the defendants post the notice, and a 90-day pause of the statute of limitations during the opt-in period.

Conditional Certification

At the first, or notice, stage of an FLSA collective action, the court applies a relatively lenient standard. The plaintiffs must make a modest factual showing that they and potential opt-in plaintiffs were victims of a common policy or plan that violated the law. The court does not decide factual disputes, resolve ultimate merits issues, or make credibility determinations at this stage. A later review may determine that the opt-in plaintiffs are not similarly situated and may lead to de-certification.

The court found that the plaintiffs had made the required showing. Although the proposed group included both tipped and non-tipped workers and was broad, the defendants did not oppose certification. The court therefore conditionally certified a collective consisting of non-exempt, non-managerial employees who worked for the defendants from July 10, 2015, to the present, within 21 days after entry of the order. The court rejected the plaintiffs’ proposed earlier start date of June 17, 2015, because the action was filed on July 10, 2018, and the FLSA’s limitations period for willful violations is three years.

Employee Information and Notice

The court granted the request for information about the qualifying potential collective members. The defendants were directed to provide the requested contact information by November 22, 2019, including names, last known mailing addresses, telephone numbers, email addresses, and dates of employment. The opinion also refers to requested information such as social-media or messaging identifiers and work location and position.

The court approved the proposed notice subject to specified revisions. The revisions included changing the eligibility date to July 10, 2015; correcting typographical errors; moving a paragraph about separate counsel; adding the Clerk of Court’s address; and revising the consent form so recipients could indicate whether they wished to be represented by the plaintiffs’ counsel or retain separate counsel. After approval of the revised notice and consent forms, the plaintiffs would be authorized to distribute the notice. Within seven days after approval, the defendants were directed to post the approved notice in all relevant languages in a conspicuous and unobstructed location likely to be seen by current employees during the opt-in period.

Statute of Limitations

The court denied the plaintiffs’ request to pause the statute of limitations for 90 days through the end of the opt-in period. The court stated that this type of equitable tolling is appropriate only in rare and exceptional circumstances where a plaintiff was prevented in an extraordinary way from exercising legal rights. It found that the case did not currently present such circumstances.

Disposition

The court granted in part and denied in part the plaintiffs’ motion. It conditionally certified the limited FLSA collective, ordered production of contact information, approved a revised notice process, and directed workplace posting after approval. It denied the request to toll the applicable statute of limitations. The ruling addressed the preliminary collective-action process and did not decide whether the alleged wage violations occurred.