Tung v. Banzai Steakhouse Inc.

Background

Tzu-Hsiang Tung sued Banzai Steakhouse Inc. and Karl Shao under the Fair Labor Standards Act (FLSA) and New York Labor Law. Tung alleged that he worked as a waiter from April 14, 2022, through June 1, 2022; was paid a flat daily rate below minimum wage; was not paid overtime for hours over 40 per week; did not receive uninterrupted meal breaks; did not receive proper pay stubs; and was required to share tips with kitchen employees. He also stated that other identified wait staff reported being paid flat amounts regardless of hours worked and did not receive additional overtime pay.

Tung moved for conditional certification under 29 U.S.C. § 216(b). At this first stage of an FLSA collective action, the court applies a lenient standard and asks whether the plaintiff has made a modest factual showing that he and potential participants were subject to a common policy or plan that allegedly violated the law. Conditional certification allows the court to facilitate notice to potential participants, who may choose whether to join the case. It does not decide the ultimate merits of the wage claims.

Defendants’ Position

Defendants argued that the proposed collective was not similarly situated. They submitted time sheets that they said showed Tung and other workers were paid based on hours worked, that some employees worked fewer than 40 hours, and that Tung received meal breaks and did not work more than 40 hours. Defendants also disputed Tung’s account of kitchen employees receiving tips and argued that chefs at hibachi restaurants may interact with customers and receive tips directly.

Conditional Certification

The court held that Tung provided sufficient factual detail to support conditional certification. He identified other wait staff by name and described specific conversations and observations concerning alleged underpayment, lack of overtime, and tip diversion. The court stated that Defendants’ competing evidence, factual disputes, and challenges to the credibility of Tung’s declarations were merits issues that could not defeat the motion at this stage.

The court therefore granted Tung’s Motion for Conditional Collective Certification and conditionally certified the proposed collective action under Section 216(b). The ruling was preliminary and did not determine whether the alleged FLSA violations occurred.

Notice

The court approved the proposed lawsuit notice, consent-to-join form, email and text messages, and reminder notice, subject to one change: the lawsuit notice had to state that potential opt-in plaintiffs may consult or retain their own counsel. The court approved distributing the notices by mail, email, and text, and allowed a Chinese-language translation. The court also approved a three-year notice period.

The court granted Tung’s request for Defendants to provide a computer-readable file containing the full names, last known mailing and email addresses, telephone numbers, work locations, and dates of employment of potential opt-in plaintiffs who were wait staff employees at Banzai Steakhouse.

Equitable Tolling and Disposition

The court granted Tung’s request for equitable tolling for the period from December 8, 2022, when the motion was fully briefed, through September 8, 2023, the date of the Opinion and Order. Equitable tolling pauses the running of a filing deadline when the court finds that fairness requires it. The court found that the delay in deciding the motion was sufficiently extraordinary to justify tolling during that period.

The court stated that it would hold a conference on October 2, 2023, at 11:30 a.m., and directed the Clerk of Court to terminate the pending motion. The Opinion and Order did not resolve the ultimate FLSA or New York Labor Law claims.