Ke v. J R Sushi 2 Inc

Background

Yi Mei Ke sued JR Sushi 2 Inc., Famous Sichuan New York Inc., and several individual defendants under the Fair Labor Standards Act (FLSA) and the New York Labor Law. She alleged that the defendants failed to pay required minimum wages and overtime, and also violated New York requirements concerning spread-of-hours pay, wage notices, and wage statements. Ke sought to represent herself and other similarly situated employees.

Ke worked at JR Sushi as a kitchen helper and cook from January 6, 2017, through August 10, 2019. She alleged that she worked long hours, was paid a flat monthly amount in cash, did not receive fixed meal breaks, and was not told that her compensation included overtime pay. She identified other workers at JR Sushi and Famous Sichuan whom she said worked long hours and were paid flat weekly or monthly amounts. Ke also alleged that the two restaurants shared ownership, management, employees, supplies, and work assignments.

The motion addressed only conditional certification of an FLSA collective action and related notice procedures. At this preliminary stage, the court did not weigh the ultimate merits of the wage claims, resolve factual conflicts, or decide witness credibility. The Famous Sichuan Defendants also had a pending motion for summary judgment arguing that they were not Ke's FLSA employers; the order directed the parties to discuss that motion at a later conference but did not decide it.

Conditional Certification

Under 29 U.S.C. § 216(b), employees may bring an FLSA action for themselves and other employees who are similarly situated. At the first stage of the process, a 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. If that showing is made, the court may authorize notice to potential plaintiffs. A later stage, generally after discovery, determines whether the people who joined are actually similarly situated.

The court held that Ke met this modest burden for JR Sushi. Her sworn statements described her own hours and pay and included information about coworkers in different positions, including kitchen staff, sushi chefs, waitresses, packers, and delivery drivers. The court found that her descriptions of conversations, observations of pay slips, and other information were enough at this preliminary stage to support an inference that other JR Sushi workers were subject to the same minimum-wage and overtime practices.

The court also extended the collective to Famous Sichuan. Ke provided information that Ruifeng Yang allegedly had ownership or control connected to both restaurants, that employees worked at both locations, that workers and supplies moved between them, and that employees at both restaurants were allegedly paid under similar flat-wage arrangements. Conflicting declarations from defendants created factual disputes, but the court held that those disputes should not be resolved during conditional certification.

Scope of the Certified Group

The court conditionally certified a collective consisting of all non-managerial, non-exempt individuals employed at JR Sushi and/or Famous Sichuan on or after August 6, 2016. The three-year period was based on Ke's allegation that the FLSA violations were willful. The court stated that the time period and whether individual workers were timely could be revisited later.

Information and Notice

The court ordered defendants to provide, by February 5, 2021, a spreadsheet, in Excel format if possible, listing the names, last known mailing addresses, last known telephone numbers, last known email addresses, last known WhatsApp, WeChat, and/or Facebook usernames, dates of employment, and positions of all covered current and former workers.

The parties were ordered to meet and confer and submit a revised notice and consent form for court approval. The notice could be distributed in English and Chinese by mail, email, text message, personalized social-media messages, and plaintiff's counsel's website. Defendants had to display the notice in a conspicuous location convenient to employees at both restaurants. Plaintiff's counsel could also send a reminder by mail and email approximately halfway through the notice period.

The court set the opt-in period at 60 days rather than the requested 90 days. It declined to require defendants to put the notice in employees' pay envelopes, reasoning that this could suggest that the notice came from the employer or that completing it was required. It also declined to authorize a short-form notice on public social-media groups because that would be too broad for the relatively small group of workers involved.

The revised notice had to explain that the court would review any request by plaintiff's counsel for attorney fees and costs and would approve such an award only if it found the request fair and reasonable. It also had to explain how costs would be handled if plaintiffs lost. The consent forms could be returned to plaintiff's counsel because the notice stated that potential opt-in plaintiffs could choose their own attorneys.

Equitable Tolling and Disposition

Ke requested equitable tolling, which would pause the statute of limitations for potential opt-in plaintiffs during the notice period. The court denied that request without prejudice, finding it premature and concluding that the record did not presently show the rare and exceptional circumstances required for tolling. The court therefore left open the possibility of a later application by individual plaintiffs if circumstances warranted.

The court's order states that Ke's motion for conditional collective certification was GRANTED as to the defined group. The court also ordered production of the worker information and submission of a revised notice. The requested notice procedures were granted or modified as described above, while the pay-envelope and public-social-media requests were rejected and equitable tolling was denied without prejudice.