Chen v. Matsu Fusion Restaurant Inc

Background

Guangfu Chen and Peizheng Fan brought claims under the Fair Labor Standards Act (FLSA), the federal wage-and-hour law, and the New York Labor Law. They sought unpaid minimum wages and overtime pay from Matsu Fusion Restaurant Inc., doing business as Matsu Japanese Fusion; J & J Asian Bistro Inc., also doing business as Matsu Japanese Fusion; and Yi Chang Chen. The plaintiffs moved for conditional certification of an FLSA collective action and for approval of a notice to potential participants.

Conditional certification

The court granted the motion for conditional certification. At this preliminary stage, plaintiffs had to make only a modest factual showing that they and potential participants were affected by a common policy or plan that violated the law. The court found that Chen and Fan made that showing through the materials they submitted. It stated that the defendants’ contrary arguments largely concerned the merits and credibility of the plaintiffs’ claims, matters the court would not decide on this motion.

The conditionally certified collective consists of all current and former non-managerial tipped and non-tipped employees employed at the defendants’ restaurant at any time from December 30, 2016, through the date of the notice.

Orders concerning notice and participant information

The court ordered the defendants, within 21 days, to provide a Microsoft Excel spreadsheet listing each collective member’s first and last name, known mailing addresses, known telephone numbers, known email addresses, employment location or locations, employment dates, and positions.

The defendants were not required to provide Social Security numbers initially. If a notice was returned as undeliverable, the defendants were required to provide that individual’s Social Security number to the plaintiffs’ counsel for the limited purpose of finding a new mailing address. Plaintiffs’ counsel was required to keep those numbers, destroy all copies after the address search, and certify to the court within 14 days after the opt-in period ended that the required procedures had been followed and the data destroyed.

The court approved the plaintiffs’ proposed Notice and Consent Form, with two changes: Mei Fong Chan’s name had to be removed as a defendant, and the opt-in period had to be reduced from 90 days to 60 days. The plaintiffs were required to send the notice by first-class mail and email within 10 days after receiving the defendants’ contact information. They also had to send reminder notices during the period to collective members who had not submitted consent forms. Potential participants could submit consent forms until 60 days after the first notice was mailed.

The defendants were required to post the notice, in all relevant languages, in a conspicuous non-public location at their place of business throughout the opt-in period. Plaintiffs’ counsel was required to promptly file redacted copies of received consent forms.

Equitable tolling and disposition

The court denied the plaintiffs’ request for equitable tolling for all potential opt-in plaintiffs in advance. It explained that whether a particular participant qualifies for equitable tolling must be decided based on evidence rather than assumptions about diligence.

Judge Jesse M. Furman granted the plaintiffs’ motion for conditional certification and approved the notice procedures, while declining to decide the wage claims’ ultimate merits. The Clerk of Court was directed to terminate Docket No. 31.