Shi v. TL & CG Inc.

Background

Yuefeng Shi, a former deliveryman for corporate Defendant TL & CG Inc. doing business as Han Sushi, sued the corporate Defendant and individual Defendants Guoyong Chen, Guoquing Chen, Jian Xiang Yang, and Yi Nen Chen. He alleged violations of the Fair Labor Standards Act (FLSA) and New York Labor Law. The alleged violations included failure to pay minimum wage and overtime for work exceeding 40 hours per week, failure to reimburse work-related expenses, and failure to provide a wage notice at hiring.

Shi moved for conditional certification of an FLSA collective action. Conditional certification at this stage is a preliminary case-management step that allows notice to potential workers who may choose to join the case; it does not decide whether the alleged wage violations occurred. Shi sought to include all current and former non-managerial employees employed from September 12, 2016, through the present.

Conditional Certification

The court applied the preliminary “modest factual showing” standard. Under that standard, Shi had to provide some evidence that other workers were affected by a common policy or plan that violated the FLSA. The court did not resolve factual disputes, decide the ultimate merits, or determine witness credibility at this stage.

The court held that Shi met this standard for deliverymen. Shi stated that he worked alongside two other deliverymen who, like him, were paid a flat rate and allegedly were not paid required overtime. The court found that these assertions supported an inference that other deliverymen worked similar shifts for comparable pay and may have experienced the same FLSA violations.

The court declined to extend certification to other job categories. Shi’s statements about servers and other workers were not detailed enough, and he did not provide sufficient information about the pay or working conditions of several other proposed collective members. The court therefore found no adequate basis to infer a common unlawful policy covering all non-managerial employees.

The court granted conditional certification as to deliverymen employed by Defendants within three years from the date of notice through the present. It denied certification as to all other employees. The court explained that the three-year period would be measured from the date of notice rather than from the date the complaint was filed.

Notice and Disclosure

The court approved a revised notice subject to changes. The notice had to state that the collective included deliverymen, not all current and former non-exempt employees. It also had to identify the named Defendants correctly and state that potential claimants had 60 days, rather than 90 days, to mail their consent forms.

The court ordered Defendants to provide Plaintiff’s counsel, within 14 days, the names, addresses, telephone numbers, email addresses, and employment dates of potential collective members covered by the order. If Defendants possessed other contact information, including WhatsApp, WeChat, or Facebook usernames, they also had to produce it.

The court granted Shi’s request for notices in Chinese and English. It authorized distribution by email and text message, and allowed distribution through social-media messages when Defendants could provide the relevant usernames. The court also granted permission to send a reminder notice halfway through the notice period.

The court denied Shi’s request to publish the full notice on his counsel’s website because he provided no evidence that potential collective members were likely to visit that website. The court did not order general posting of the notice in the restaurant. Instead, Defendants were ordered to provide the notice to every delivery person currently working there, and Shi could renew his request for restaurant posting.

The court denied Shi’s request for a 90-day opt-in period and found that 60 days was sufficient. It also denied his request to automatically suspend the statute of limitations for 90 days. The court noted that the limitations period would already be equitably extended by 60 days for delays caused by the COVID-19 pandemic and would consider individual requests for additional tolling based on a particularized showing.

Disposition

The court granted in part Shi’s motion for conditional certification of an FLSA collective action. It authorized notice to all deliverymen employed by Defendants within three years plus 60 days before the date of notice through the present. Shi was ordered to file a revised proposed notice within seven days of the order. The ruling was preliminary and did not determine the merits of the wage claims.