Chang v. CK Tours, Inc
- Paul Crotty
- 1:18-cv-06174
- U.S. District Court · Southern District of New York
- 14
In Chang v. CK Tours, Judge Crotty granted summary judgment on FLSA overtime claims but denied summary judgment on NYLL overtime and employer status.
The four named casino bus tour-guide plaintiffs and other similarly situated workers covered by the action; CK Tours, Inc., Win Li Tours, Inc., Skyliner Travel & Tour Bus Corp., Hyon-Sak Kim, and Joanna Lau.
What happened
Chang v. CK Tours, Inc. is a class and collective action by casino bus tour guides who alleged that the defendants failed to pay required minimum and overtime wages under federal and New York law.
The defendants sought partial summary judgment, asking the court to reject the plaintiffs’ overtime claims and all claims against Skyliner Travel & Tour Bus Corp. and Hyon-Sak Kim. They argued that the federal motor-carrier exception applied and that Skyliner and Kim were not the plaintiffs’ employers.
Judge Paul A. Crotty granted summary judgment on the plaintiffs’ federal overtime claims, denied summary judgment on their New York overtime claims, and denied summary judgment on whether Skyliner and Kim were their employers. The court found that the plaintiffs’ bus-related duties affected transportation safety, but that New York law still required overtime pay at one and one-half times the minimum wage and that factual disputes remained about Skyliner’s and Kim’s employer status.
The detailed version
- Chang v. CK Tours, Inc · No. 1:18-cv-06174
- Paul Crotty
- Apr. 8, 2021
Background
Xuguang Chang, Jun Ning, Haitao Wang, and Chuan Hui Wang sued CK Tours, Inc., Win Li Tours, Inc., Skyliner Travel & Tour Bus Corp., Hyon-Sak Kim, and Joanna Lau under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL). They alleged, among other things, that the defendants failed to pay minimum and overtime wages while they worked as casino bus tour guides. The plaintiffs brought the case as an FLSA collective action and a Rule 23(b)(3) class action.
The plaintiffs accompanied passengers on trips between New York and Foxwoods Resorts Casino in Connecticut. Their duties included supervising passengers, managing problems involving intoxicated passengers, arranging replacement buses after breakdowns, giving navigation advice to drivers, and sometimes clearing snow from the departure area. The defendants moved for partial summary judgment, which asks the court to rule that no genuine dispute of important fact requires a trial, on the plaintiffs’ overtime claims and on all claims against Skyliner and Kim.
FLSA Overtime Claims
The FLSA generally requires overtime pay at one and one-half times an employee’s regular rate for work exceeding 40 hours in a week. The defendants relied on the motor-carrier exemption, which excludes certain employees involved in interstate motor-carrier operations from that overtime requirement.
The court held that the defendants met both requirements for applying the exemption. First, the court found that the defendants were motor carriers because CK Tours and Win Li Tours provided interstate transportation and casino-tour services, while Skyliner and Kim supplied buses and drivers. Second, the court held that the plaintiffs’ duties affected the safety of interstate vehicle operations. The court emphasized the actual nature of the plaintiffs’ work rather than their job title or the amount of time spent on safety-related duties. It concluded that supervising passengers, handling bus breakdowns, advising the driver about navigation, and clearing snow from the departure area were safety-related activities.
The court therefore granted summary judgment on the plaintiffs’ FLSA overtime wage claims.
NYLL Overtime Claims
The defendants also sought summary judgment on the plaintiffs’ NYLL overtime claims. The court explained that New York’s overtime regulation incorporates the FLSA’s motor-carrier exemption but, under the Second Circuit’s decision in Hayward v. IBI Armored Services, Inc., employees exempt from FLSA overtime may still be entitled under the NYLL to overtime compensation at one and one-half times the minimum wage.
Because the court found that the plaintiffs were exempt from FLSA overtime but could still qualify for NYLL overtime compensation, it denied summary judgment on the plaintiffs’ NYLL overtime wage claims.
Claims Against Skyliner and Kim
The defendants argued that Skyliner and Kim were not the plaintiffs’ employers and therefore could not be liable under the FLSA or NYLL. The court applied the FLSA’s economic-realities test, which examines the total circumstances and focuses on whether an alleged employer had power to control the workers. Relevant factors include the power to hire or fire, control over schedules and working conditions, authority over pay, and maintenance of employment records.
The defendants relied on affidavits from Kim and Lau stating that Kim and Skyliner were separate from CK Tours and Win Li Tours and that Lau controlled the plaintiffs’ employment. The plaintiffs offered contrary evidence, including assertions that Kim and Skyliner received ticket proceeds, paid salaries and expense reimbursements, provided bonuses and meals, controlled bookkeeping, and that Kim presented himself as the leader of CK Tours and Win Li Tours at business events and meetings.
The court held that this conflicting evidence created genuine disputes of material fact about whether Skyliner and Kim were the plaintiffs’ employers. It therefore denied summary judgment on the issue of whether Skyliner and Kim were employers under the FLSA and NYLL. The court directed the clerk to terminate the motion at ECF 81 and scheduled a telephone conference to discuss next steps.
Read the full 14-page opinion on CourtListener, the free public archive maintained by the Free Law Project.