Zhang v. Sabrina USA Inc.

Background

Yu Zhang sued Sabrina USA Inc., Qin Lan Inc., and Ai Lan Chen under the Fair Labor Standards Act (FLSA) and New York Labor Law. He alleged that he worked as a busboy at the defendants’ restaurant from May 25, 2016, through June 25, 2016. According to his allegations, he worked 68 hours per week, received a daily flat wage of $25, did not receive tips or overtime compensation, and did not receive proper wage statements in Chinese.

Zhang moved for conditional certification under 29 U.S.C. § 216(b). Conditional certification is the initial process by which a court may authorize notice to potential plaintiffs who may be similarly situated and may choose to join an FLSA lawsuit. At this stage, the plaintiff generally must make only a modest factual showing that the plaintiff and other employees were victims of a common policy or plan violating the law.

Evidence and Analysis

The defendants consistently maintained that Zhang had never worked at their restaurant. The restaurant’s owner and manager attended Zhang’s deposition and stated that they had never seen him there. A restaurant employee also declared that she had worked there since its opening, had never seen Zhang, and that the restaurant had not employed a busboy other than a Spanish-speaking friend who helped during holidays.

The court held an evidentiary hearing because of concerns about possible false testimony. It identified significant discrepancies concerning whether Zhang had worked at the restaurant, whether the restaurant was named “Yumi Sushi” and served sushi, whether he had been a full-time busboy, whether he received tips, and how many and what types of employees worked there. The court recognized that some inconsistencies might result from faulty memory, but it found that the disputes about central facts could not be treated merely as minor memory errors.

The court also found that Zhang repeatedly added or changed facts after defendants identified problems in his testimony. It declined to credit either of his two affidavits because his testimony raised questions about whether he understood their contents and whether the affidavits contained intentional falsehoods. Without those affidavits, the court found no evidence supporting Zhang’s claim that other employees were similarly situated.

The court added that even if it assumed the conditional-certification affidavit was accurate, the affidavit still did not meet the required standard. Zhang did not identify the employees with whom he supposedly discussed pay, describe the conversations, or explain when or where they occurred. His statement that he learned through “chatting and nodding” that other employees were not paid overtime was therefore an unsupported and conclusory assertion. The court also noted that Zhang claimed to be the only busboy, so he could not rely solely on sharing a job title with other potential plaintiffs to show a common policy.

Ruling

Judge Ona T. Wang denied Zhang’s motion for conditional certification in its entirety and directed the Clerk of Court to close the motion docket entry, ECF 29. The opinion did not conditionally certify a collective action or authorize notice to potential opt-in plaintiffs.