Chen v. Lilis 200 West 57th Corp.

Background

Chang Yan Chen, a deliveryman, sued his former employers and their owners and operators under the Fair Labor Standards Act (FLSA) and the New York Labor Law. He alleged that defendants did not pay him the promised hourly rate, did not pay him for all hours worked, did not pay overtime at one-and-a-half times his regular rate, and did not pay required spread-of-hours pay under New York law. He also alleged that deliverymen were asked to provide at least two Social Security numbers and were paid under multiple names.

Chen worked for Lili’s 57 and Lilli and Loo between July 2014 and June 2019. He moved under section 216(b) of the FLSA for conditional certification of a collective action involving other non-exempt employees who allegedly were not fully paid or did not receive overtime pay. The opinion states that his New Jersey wage-law claims had previously been dismissed. The court did not consider employees of Baumgart’s Café because that company had already been dismissed as a defendant after the court found that Chen had not adequately alleged that it was an enterprise or joint employer with the other restaurants.

Legal standard

The court explained that FLSA collective certification in the Second Circuit uses a two-step process. At the initial notice stage, the plaintiff must make a modest factual showing that other employees may be similarly situated—meaning they may have been affected by a common policy or plan that violated the law. The court does not decide at this stage whether an actual wage violation occurred. Later, after a more developed record, the court may determine whether the workers who joined are in fact similarly situated and whether they were all subject to an illegal wage practice.

Rulings

The motion for conditional certification was granted in part. The court found that Chen’s affidavit, together with affidavits from two former Lili’s 57 deliverymen submitted in a prior related proceeding, barely supplied enough evidence to conditionally certify a collective of deliverymen. The evidence included allegations about shared schedules, payment timing, tip pools, compensation discussions, underpayment, unpaid hours, unpaid overtime, and requests for multiple Social Security numbers.

The conditionally certified collective covered deliverymen who worked at Lili’s 57 at any time after August 15, 2016, and deliverymen who worked at Lilli and Loo at any time after May 13, 2019. The court noted that claims against Lilli and Loo arising before May 13, 2019, had been discharged under that company’s confirmed Chapter 11 bankruptcy plan.

The court declined to include other non-exempt employees, such as waitstaff, chefs, and kitchen staff. Chen had limited or unreliable information about their pay and did not show that they were paid in the same manner as deliverymen or were subject to the same alleged wage practices. The court also found that generalized allegations were not enough to certify a collective covering all non-exempt employees.

The application for discovery of potential plaintiffs’ contact information was granted in part. Defendants were ordered to provide Chen’s counsel with names, addresses, email addresses, telephone numbers, and employment dates for potential collective members within a reasonable time. The court did not resolve all objections to the scope or timing of that production and instead ordered the parties to meet and confer.

Notice and case-management orders

The court required the proposed notice to be limited to qualifying deliverymen at the two restaurants and to remove references to Baumgart’s Café. The notice also had to make clear that potential opt-in plaintiffs could retain counsel other than Chen’s counsel. The court overruled objections to including information about protection from retaliation and the irrelevance of immigration status to eligibility. It sustained defendants’ objection to posting the notice at the restaurants and denied defendants’ request that consent forms be returned to the Clerk rather than Chen’s counsel. The parties had to submit a revised proposed notice and a letter identifying remaining disagreements by February 10, 2021.