Cheng v. Via Quadronno LLC

Background

Chunyung Cheng and Shiguang Chen sued Via Quadronno LLC, Via Quadronno 88 Street, Antica Bottega del Vino, “John” Lab a/k/a KC Lam, Yong “Doe,” and John Doe and Jane Doe. Cheng and Chen said they worked as chefs at the defendants’ restaurants and worked more than 40 hours per week without receiving overtime pay at one and one-half times their regular rates. They also alleged that they were paid, at different times, flat hourly, weekly, or monthly rates, and that the defendants did not provide written notices describing their employment terms when they were hired.

The plaintiffs moved under Section 216(b) of the Fair Labor Standards Act (FLSA) for conditional certification of a collective action. They supported the motion with declarations describing their own work and the hours and positions of other employees, including waiters, dishwashers, runners, busboys, hostesses, cashiers, bartenders, and basement workers.

Conditional certification

The court applied the first step of the two-step FLSA collective-action process. At this stage, plaintiffs must make a modest factual showing that they and potential opt-in plaintiffs were victims of a common unlawful policy or plan. The court emphasized that this standard is low, although unsupported or conclusory assertions are not enough. A later stage, after discovery, would determine whether employees who join are actually similarly situated; the collective could later be decertified if the fuller record did not support proceeding together.

The court described the question as close but concluded that Cheng and Chen met the required standard. They alleged that they worked overtime, were paid flat rates for all hours worked, including overtime, and worked in the kitchen. They also identified other employees who worked overtime. The court found it reasonable to infer that employees who worked more than 40 hours per week may have been subject to the same pay practices. The presence of two named plaintiffs making substantially similar allegations further supported conditional certification.

The court therefore granted the plaintiffs’ motion for Section 216(b) notice, subject to the modifications described in the opinion. This ruling authorized notice and an opportunity for potentially similarly situated employees to opt into the federal overtime claims; it did not decide the merits of the wage claims.

Equitable tolling

The plaintiffs asked the court to extend the FLSA limitations period for the time their conditional-certification motion was pending. The court did not grant that request. It explained that filing an FLSA action or a motion for conditional certification, by itself, does not stop the limitations period. The plaintiffs had not shown the individualized diligence and extraordinary circumstances needed for equitable tolling.

Contact information and notice procedures

The plaintiffs requested contact and employment information for current and former non-exempt, non-managerial employees employed by the defendants from October 23, 2017, through the date of the order. The court held that defendants must provide information relevant to delivering notice to potential opt-in plaintiffs. It struck the requested requirements for a unique numerical identifier, sex, position title, pay period, start date, and end date, and ordered production of the remaining requested information.

The court permitted plaintiffs to post a short form of the notice on social-media groups aimed at English-, Chinese-, and Spanish-speaking immigrant workers, but required the parties to discuss the content and submit a letter identifying any unresolved disputes. The court granted defendants’ request to excuse physical posting at restaurant locations that had permanently closed.

Notice language and joining period

The court granted defendants’ request to remove references to minimum-wage violations from the proposed notice. The notice was to state that defendants were represented by Phillips Nizer LLP and that potential plaintiffs should not contact defense counsel directly. The court denied defendants’ requests for additional notice changes concerning separate counsel for nonparticipants and the FLSA limitations period, finding those changes unnecessary and redundant. It granted the request to remove language stating that depositions would be scheduled “at your convenience.”

The plaintiffs requested 90 days for potential members to join the federal collective action. The court denied that request, finding that plaintiffs had not shown that a longer period was necessary. The opinion discusses a 60-day period as the usual period in the district.

Disposition

The court granted the plaintiffs’ motion for Section 216(b) notice subject to the stated modifications. The Clerk of Court was directed to close the motion docket entry. The order did not determine whether the plaintiffs or any potential opt-in plaintiffs were owed wages or whether the defendants violated the FLSA.