Nam v. Permanent Mission of the Republic of Korea to the United Nations

Background

Hyunhuy Nam sued the Permanent Mission of the Republic of Korea to the United Nations, Hyun Cho, Jinho Jo, and Daeyong Chung. Nam alleged violations of the Fair Labor Standards Act, New York Labor Law, the New York State Human Rights Law, and the New York City Human Rights Law. His claims concerned alleged unpaid overtime and other wages, wage-notice and wage-statement violations, age discrimination, and a hostile work environment.

Nam alleged that he was hired in 2016 and worked as a chauffeur for the Permanent Mission and its staff. He stated that his official title was Chauffeur/Administrative Assistant but that he worked only as a chauffeur or driver. He also alleged that the defendants underpaid him and pressured him to retire when he reached age 60. Nam signed a settlement agreement on September 1, 2020, that barred him from raising civil and criminal claims concerning termination of the employment relationship as of June 30, 2021. His employment ended on that date.

Defendants’ Motion

The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which addresses subject-matter jurisdiction, arguing that the Vienna Convention on Diplomatic Relations and the Foreign Sovereign Immunities Act protected them from suit. In the alternative, they moved under Rule 12(b)(6), which addresses whether a complaint states a legally sufficient claim, arguing that the settlement agreement released Nam’s employment claims.

Individual Defendants’ Immunity

The court held that Cho, Jo, and Chung were diplomatic agents because they served as Ambassador, Counselor, and Minister of the Permanent Mission. The court explained that diplomatic agents receive broad immunity from civil jurisdiction, subject to limited exceptions. Nam did not argue that an exception applied and therefore did not meet his burden of proving an exception by a preponderance of the evidence.

The court concluded that the individual defendants were entitled to diplomatic immunity and dismissed them from the action.

Permanent Mission and Sovereign Immunity

The court denied dismissal of the claims against the Permanent Mission. Under the Foreign Sovereign Immunities Act, a foreign state is generally immune from U.S. court jurisdiction unless an exception applies. The court applied the commercial-activity exception, which can remove immunity when a foreign state engages in commercial activity in the United States with substantial U.S. contact.

The court ruled that hiring, employing, and terminating a chauffeur are activities that private parties can perform and are not powers unique to sovereign governments. Because Nam alleged that he worked only as a chauffeur, the court found that his work was not a quintessentially governmental function. The court also found substantial contact with the United States because the alleged hiring, employment, and termination occurred over approximately five years in New York and New Jersey.

The court declined to follow earlier Southern District of New York decisions that treated similar chauffeur work as governmental. It found those decisions inconsistent with later Second Circuit reasoning requiring courts to focus on the outward form of the activity—here, employing a driver—rather than the foreign government’s purpose in doing so.

Settlement Agreement

The court denied the alternative Rule 12(b)(6) motion. It read the settlement agreement as barring only claims concerning termination of the employment relationship as of June 30, 2021. Nam’s claims concerned conduct during employment, including wages, hours, and an alleged hostile work environment. Because Nam did not assert a wrongful-termination claim or another claim concerning the events of June 30, the court held that the agreement did not preclude the claims at issue.

Disposition

The court granted in part and denied in part the defendants’ motion to dismiss. It dismissed Cho, Jo, and Chung from the action and denied the motion to dismiss the claims against the Permanent Mission. The court stated that the ruling resolved docket number 24 and noted that a case-management conference would be held on April 15, 2022.