Gao v. A Canaan Sushi Inc.

Background

Shiqiang Gao sued A Canaan Sushi, Inc., Jia Zhuang Wang, and “Jane” Wang under the Fair Labor Standards Act (FLSA) and New York Labor Law. He alleged unpaid minimum wages, overtime compensation, spread-of-hours pay, and other wage violations. Gao stated that he worked as a deliveryman at A Canaan Sushi from about February 25 through August 15, 2016, worked long hours six days per week, and received a flat cash payment of $1,000 per month.

Gao moved for conditional certification under 29 U.S.C. § 216(b). Conditional certification is an early-stage procedure that permits notice to potential workers who may choose to join an FLSA collective action. He also requested employee information, approval and distribution of a proposed notice, possible alternative publication at the defendants’ expense, and equitable tolling, which would pause the limitations period for potential opt-in plaintiffs.

The court held an evidentiary hearing because the parties submitted conflicting affidavits from Jianshe Guo, a former deliveryman involved in a prior related proceeding. Neither party produced Guo as a witness. The court noted concerns about the affidavits but stated that the issue was not before it and evaluated Gao’s declaration independently.

Conditional Certification

At the first stage of FLSA collective certification, a plaintiff must make a modest factual showing that the plaintiff and other workers were victims of a common policy or plan that violated the law. The court does not resolve factual disputes, decide the ultimate merits, or make credibility determinations at this stage.

The court held that Gao’s declaration was sufficient even without relying on Guo’s declarations. Gao identified six other deliverymen and described their hours and pay. He also identified two waitresses and provided information about their pay and hours. Based on this evidence, the court conditionally certified a collective consisting of delivery workers and wait staff.

The court denied certification for kitchen staff and other restaurant employees because Gao did not provide factual information about their pay, hours, or whether they received required tip-credit notices. The court therefore limited the collective to delivery workers and wait staff.

Notice and Employee Information

The court allowed notice to cover delivery workers and wait staff employed by the defendants at A Canaan Sushi from July 17, 2015, through the present. It required the proposed notice to include defense counsel’s contact information, omit a reference to New York Labor Law claims to avoid confusion about the FLSA collective action, and identify Magistrate Judge Ona T. Wang—not “Magistrate Judge George B. Daniels”—as the judge who approved the notice. The notice was to be translated into Chinese and Thai.

The parties were directed to meet and confer about the notice. Gao was ordered to file a revised notice by December 17, 2019, and the defendants could file objections by December 20, 2019.

The court granted Gao’s requests to distribute the notice by mail, email, text message, and social media and to post copies at the restaurant during the opt-in period. The defendants were required to post the notice in English, Chinese, and Thai.

The court also ordered the defendants to provide, by January 7, 2020, contact and employment information for delivery workers and wait staff employed at A Canaan Sushi at any time since July 17, 2015. The information included names, last known addresses, telephone numbers, email addresses, certain social-media usernames, work location, employment dates, and job titles.

Alternative Publication and Equitable Tolling

The court denied as premature Gao’s request to require the defendants to pay for an abbreviated notice if notices were returned as undeliverable or if the defendants failed to provide the requested employee information.

The court also denied Gao’s request for equitable tolling at that time. It found that Gao had not identified an extraordinary circumstance preventing timely filing and had not presented a time-barred potential opt-in plaintiff. The court rejected the general assertion that unnecessary delays commonly occur in FLSA cases as insufficient.

Disposition

Judge Ona T. Wang granted Gao’s motion for conditional certification in part and denied it in part. The court closed the motion docket entry, required a revised notice, limited the conditionally certified collective to delivery workers and wait staff, ordered production of information about those workers, denied the alternative-publication request as premature, and denied equitable tolling.