Hong v. JP White Plains, Inc.

Background

Yingcai Hong, a former deliveryman, brought a proposed collective and class action against Haiku @ WP Inc., JP White Plains, Inc., and Soonwah Lee. He alleged that Defendants violated the Fair Labor Standards Act (FLSA) and New York Labor Law by failing to pay minimum wages and overtime, taking improper deductions for tips, meals, and transportation, failing to provide required meal periods and wage information, and failing to reimburse delivery-related vehicle expenses.

Hong moved for conditional certification of an FLSA collective. At this initial stage, a plaintiff must make a modest factual showing that the plaintiff and potential participants were subject to a common policy or plan that violated the law. The court does not decide the ultimate merits, resolve factual disputes, or determine whether the workers will ultimately prevail.

Conditional Certification

The court found that Hong provided enough detail to show that he and other delivery drivers were similarly situated, at least preliminarily. He identified six other delivery drivers and alleged that they worked more than 40 hours, received the same hourly rates of $7.50 and $9.15, and experienced similar deductions for tips, meals, and transportation. The court held that these allegations were sufficient at the conditional-certification stage, without deciding whether the alleged deductions actually violated the FLSA.

The court reached a different conclusion for the other non-managerial employees, including waiters and waitresses, sushi chefs, cashiers or recipients, and kitchen workers. Hong alleged that these workers worked overtime, but the court found that this alone did not show that they worked under similar conditions or suffered the same wage violations.

The court therefore granted in part and denied in part the motion. It conditionally certified a collective limited to employees who held the position of delivery driver at Haiku in White Plains, New York, and denied conditional certification for the other non-managerial employees.

Limitations Period and Equitable Tolling

Hong requested notice covering three years before the complaint was filed, based on his allegations that the FLSA violations were willful. He also requested equitable tolling, which would pause the limitations period for potential participants for 90 days because of the delay in deciding the motion.

The court permitted notice to be sent to delivery drivers employed by Defendants at Haiku during the three years before May 31, 2019, the complaint’s filing date. The court explained that the three-year period was being used because willfulness was disputed and because the limitations questions could be considered later for individual participants. The court denied Hong’s request for equitable tolling at that time, concluding that it was unclear whether potential participants would be harmed by a delay in notice.

Information and Notice

The court ordered Defendants to provide, by February 11, 2022, an Excel spreadsheet, if possible, listing the names, last known mailing addresses, telephone numbers, email addresses, WhatsApp, WeChat, or Facebook usernames, dates of employment, and positions of all delivery drivers employed at Haiku in White Plains on or after May 31, 2016.

The court approved a 60-day opt-in period rather than Hong’s requested 90 days. It allowed reminder notices by mail and email halfway through that period. The notice could be distributed by mail, email, text message, and social-media chat directed specifically to potential participants, and it could be posted at Defendants’ physical location. The notice was to be provided in English and Chinese.

The court did not authorize posting the notice on public social-media groups or Plaintiff’s counsel’s website. It also rejected requests to use QR codes, Defendants’ logo, or Defendants’ pay envelopes. The revised notice had to explain that any attorney-fee award would be reviewed by the court for fairness and reasonableness and had to address how costs would be handled if judgment were entered against the plaintiffs. The consent form could be sent to either Plaintiff’s counsel or the Clerk of Court.

Disposition

Judge Nelson S. Roman granted in part and denied in part Plaintiff’s motion for class certification. The court granted the motion as to conditional certification of delivery drivers employed at Haiku in White Plains on or after May 31, 2016, denied it as to the other non-managerial employees, denied equitable tolling at that time, ordered production of the delivery-driver information, and required the parties to submit a revised notice and consent form for approval by February 18, 2022.