Du v. Dingxiang Inc

Background

Mei Rong Du brought claims under the Fair Labor Standards Act (FLSA) and New York law on behalf of herself and other similarly situated workers. She alleged that Dingxiang Inc. doing business as Birds of a Feather, Café China Group LLC doing business as China Blue, Shanzha Inc. doing business as Café China, and the individual defendants violated minimum-wage and overtime requirements. She also asserted New York claims concerning spread-of-hours pay and wage notices.

Du worked as a dim sum chef at Birds of a Feather. She alleged that she worked more than 40 hours per week, received a flat monthly wage, was not paid overtime, and did not receive weekly wage statements in Chinese. She supported her request with an affidavit describing seven other kitchen or pastry workers whom she said worked long hours and received flat monthly wages.

Du asked the court to conditionally certify an FLSA collective covering non-managerial, non-exempt employees of all three corporate defendants from December 30, 2016, forward. She also sought employee contact information, approval of a proposed notice and consent form, permission to send notice through several methods and in English and Chinese, a 90-day opt-in period, and temporary suspension of the statute of limitations for potential opt-in plaintiffs.

Legal standard

At the conditional-certification stage, an FLSA plaintiff must make a modest factual showing that she and potential opt-in plaintiffs were victims of a common policy or plan that violated the law. The court does not decide the ultimate merits, resolve substantial factual disputes, or make credibility determinations at this stage. Later, after discovery, the court may decide whether the opt-in plaintiffs are actually similarly situated and may decertify the collective if they are not.

For workers at multiple locations or businesses, the plaintiff must provide facts supporting an inference that a common policy existed across the locations and that the businesses operated as a single integrated enterprise. Common ownership alone was not enough on the record before the court.

Conditional certification

The court found that Du's affidavit barely satisfied the modest showing required for a collective limited to kitchen and pastry workers at Birds of a Feather. Her affidavit described conversations and observations concerning seven other kitchen or pastry workers, including their work schedules and flat monthly compensation. The court held that these details allowed it to infer that the workers may have experienced similar FLSA violations.

The court rejected a broader group covering waiters, bussers, delivery workers, or other employees outside the kitchen and pastry departments. Du had not identified a specific non-kitchen employee or provided details showing that those workers were subject to the same practices.

The court also rejected extending the collective to Café China and China Blue. Although Du alleged common ownership and some movement of employees between restaurants, she did not provide sufficient factual detail about common management, integrated operations, interchangeable employees or supplies, or the hours and wages at the other restaurants. The court therefore limited the collective to Kitchen and Pastry Workers employed at Birds of a Feather on or after December 30, 2016.

Employee information and notice

The court ordered the defendants to produce, by January 15, 2021, a spreadsheet containing the names, last known mailing addresses, telephone numbers, email addresses, WhatsApp, WeChat, or Facebook usernames, dates of employment, and positions of all Kitchen and Pastry Workers employed at Birds of a Feather on or after December 30, 2016.

The parties were ordered to meet and confer and submit a revised notice and consent form for approval. The notice had to be limited to the conditionally certified group, explain that the court had not decided the merits, and clarify that any attorney-fee award requested by Du's counsel would be reviewed and approved by the court only if found fair and reasonable. The court permitted the notice to be sent in English and Chinese by mail, email, text message, and social-media chat, posted on plaintiff's counsel's website, and displayed in a conspicuous location convenient to the covered workers at Birds of a Feather. The court also permitted a halfway-period reminder by mail and email.

The court did not require defendants to include the notice in employees' pay envelopes because that method could suggest that the notice came from the employer or that completing it was required. The court allowed a 90-day opt-in period, despite the usual 60-day period, because defendants did not object and the requested period was not specifically opposed.

Equitable tolling and disposition

Du also sought equitable tolling, meaning a temporary suspension of the statute of limitations, for potential opt-in plaintiffs during the notice period. The court found that request premature and concluded that the record did not present the rare and exceptional circumstances needed for tolling at that stage. The court's ruling left open a later application by individual plaintiffs if the facts later justified tolling.

Judge Barbara Moses's order states that the motion for conditional collective certification was granted in part. Certification was granted only for Kitchen and Pastry Workers employed at Birds of a Feather on or after December 30, 2016. The court also ordered production of the specified information and submission of a revised notice and consent form. The order directed the Clerk to close the motion.