Ye v. 2953 Broadway LLC

Background

Xing Ye, Jia Wang Lin, Hongyi Lin, Lian Yan Chen, Yong Zhou Wang, and other plaintiffs brought claims under the Fair Labor Standards Act (FLSA) and New York Labor Law against 2953 Broadway Inc. doing business as Vine Sushi and Cho Kam Sze, also known as Tommy Sze. The plaintiffs alleged violations involving minimum wages, overtime pay, New York’s extra-hours premium, meal breaks, recordkeeping, and required notices.

The plaintiffs moved for conditional certification under 29 U.S.C. § 216(b). Conditional certification is an early-stage decision allowing notice to be sent to workers who may be similarly situated and giving them an opportunity to join the case. It does not finally decide whether the defendants violated the law. The plaintiffs also sought employment and contact information for potential participants, authorization to send them notice, and a 90-day pause in the FLSA limitations period.

Evidence and legal standard

The five affidavits submitted with the motion described delivery workers who allegedly worked roughly 65 to 80 hours per week, received flat weekly or daily pay, did not receive overtime or New York’s extra-hours premium, and in some cases were required to pay for bicycles, batteries, motorcycles, or fuel without reimbursement. Two affidavits also described the hours and pay of waiters and chefs, but did not provide enough detail about how the plaintiffs knew those workers’ employment information.

At the first stage of the FLSA collective-action process, plaintiffs must make a modest factual showing that they and potential participants were affected by a common policy or plan that violated the law. The court does not decide factual disputes, credibility, or the ultimate merits at this stage.

Rulings

The court granted conditional certification for a collective action covering delivery workers employed by the defendants. It denied conditional certification for the broader group of all non-managerial employees because the plaintiffs had not provided enough factual detail concerning the waiters and chefs.

The court also determined that some equitable tolling was warranted. Equitable tolling pauses a legal deadline when fairness requires it. The court tolled the limitations period for FLSA claims from October 26, 2018—the date Ye filed the initial certification motion—until the future date when the court approves the notice form and enters an order governing the notice process.

The court did not find paragraph 15 of the plaintiffs’ proposed notice order objectionable. It explained that the paragraph merely preserved the plaintiffs’ ability to ask for relief if notice problems arose and did not itself impose liability on the defendants. The parties were directed to submit a revised proposed notice and notice order, and the clerk was directed to close the pending motion. Senior United States District Judge Loretta A. Preska entered the order.