Chen v. Asian Terrace Restaurant, Inc.
1:19-cv-07313-BMC
| E.D.N.Y | Jul 17, 2020Background
- Plaintiff worked as a "fry wok" at two of three defendant-owned Asian restaurants in 2017 and 2019 and sues under the FLSA and NYLL seeking to represent a collective of non‑managerial employees since January 9, 2017.
- Plaintiff alleges he worked ~66–67 hours/week but was paid a flat $700/week and received no overtime or spread‑of‑hours pay.
- Plaintiff describes shared employer transportation and coworker conversations by which he learned that other employees (chefs, waitresses, dishwasher, receptionist, packer, deliveryman) also worked long weeks and were paid flat weekly rates.
- Plaintiff moved for conditional certification under 29 U.S.C. § 216(b), equitable tolling (90 days), production of employee contact information, and approval of a proposed notice/opt‑in form.
- Court applied the Second Circuit two‑step FLSA collective framework, granted conditional certification (with limits), denied equitable tolling, ordered production of contact info within 21 days, approved broad notice methods and a 90‑day opt‑in period, and denied reminder notices.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conditional certification of a collective (all non‑managerial employees since 1/9/2017) | Plaintiff says his affidavit and observed coworker statements show a common unlawful payroll policy (flat weekly pay; no OT). | Defendants contend the affidavit lacks the factual specificity required and that employees with different jobs are not similarly situated. | Granted: modest/showing met; affidavit and shared ownership/ supervision support inference of a common policy across locations. |
| Equitable tolling of FLSA limitations for opt‑ins (90 days) | Plaintiff seeks 90‑day tolling to protect potential opt‑ins whose limitations run while notice is circulated. | Defendants oppose; argue no extraordinary circumstances warrant tolling. | Denied: equitable tolling not justified—plaintiff did not show rare/extraordinary circumstances or diligence. |
| Production and timing for employee contact information | Plaintiff requests detailed contact fields and expedited production. | Defendants do not object to producing info but request more time (45 days). | Ordered production in 21 days (Excel file with requested contact fields). |
| Notice methods, opt‑in period length, and reminders | Plaintiff seeks court‑approved notice by mail, e‑mail, text, social apps, posting, 90‑day opt‑in, reminder notice, multi‑language forms, and exclusion of defendants' counsel info. | Defendants argue only first‑class mail and shorter opt‑in (60 days); oppose posting and electronic methods. | Approved multi‑method notice (mail, e‑mail, text, WhatsApp/WeChat, posting, counsel website), 90‑day opt‑in allowed given COVID and travel concerns; reminder notice denied; multilingual form and exclusion of defendants' attorney info permitted. |
Key Cases Cited
- Hoffmann‑La Roche Inc. v. Sperling, 493 U.S. 165 (1989) (courts may facilitate notice to potential collective plaintiffs)
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (two‑step FLSA collective certification framework)
- Puglisi v. TD Bank, N.A., 998 F. Supp. 2d 95 (E.D.N.Y. 2014) (conditional certification's sole immediate effect is court‑approved notice)
- McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438 (S.D.N.Y. 2012) (initial stage uses a lenient evidentiary standard)
- Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54 (E.D.N.Y. 2011) (hearsay may support conditional certification)
- Pace v. DiGuglielmo, 544 U.S. 408 (2005) (equitable tolling requires diligence and extraordinary circumstances)
- A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135 (2d Cir. 2011) (equitable tolling is rare and exceptional)
- Warren v. Garvin, 219 F.3d 111 (2d Cir. 2000) (equitable tolling applied case‑by‑case)