582 F.Supp.3d 117
S.D.N.Y.2022Background
- Plaintiff Yingcai Hong, a former delivery driver at Haiku Asian Bistro (White Plains), sued under the FLSA and NYLL alleging unpaid minimum wages/overtime and unlawful deductions for tips, meals, and transportation.
- Hong says he worked ~50–58 hours/week, received low flat hourly rates ($7.50 then $9.15), bore vehicle costs, and observed similar practices affecting several named co-workers.
- Plaintiff sought conditional certification of an FLSA collective, disclosure of contact information for potential opt-ins, authorization of a court-approved notice (English/Chinese/Spanish), a 90‑day opt-in period, and equitable tolling.
- Defendants opposed, arguing Hong’s evidence was conclusory, that many alleged practices predated the limitations period, and that the proposed collective was overbroad.
- The court conditionally certified only the group of delivery drivers (employed on or after May 31, 2016), permitted a three‑year look‑back for notice, denied equitable tolling, ordered production of driver contact info (including common social‑media usernames), approved notice methods (mail, email, text, targeted social‑media/chat, posting at workplace) with modifications, and set a 60‑day opt‑in period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conditional certification (are there similarly situated employees?) | Hong: his affidavit and observations show a common policy affecting delivery drivers and other staff. | Defendants: assertions are conclusory and insufficient; evidence concerns periods outside the limitations window. | Court: granted conditionally for delivery drivers only—Hong met the modest factual showing for drivers but not for non‑driver employees. |
| Scope of collective (drivers vs. non‑managerial employees) | Hong: seeks collective covering delivery drivers plus waitstaff, chefs, cashiers, kitchen workers. | Defendants: non‑drivers are not shown to be subject to same policies; overbroad. | Court: denied certification for non‑managerial categories due to conclusory allegations; limited to delivery drivers. |
| Limitations period, willfulness, and equitable tolling | Hong: alleged willfulness justifies a three‑year look‑back; requests 90‑day equitable tolling due to delay. | Defendants: willfulness not pleaded sufficiently (post‑Whiteside); oppose tolling or want two‑year look‑back. | Court: used three‑year look‑back for notice (willfulness disputed); denied equitable tolling now; leave to challenge timeliness of individual opt‑ins later. |
| Production of potential opt‑in contact info and notice content/methods | Hong: requests Excel with names, addresses, phones, emails, WhatsApp/WeChat/Facebook usernames, dates/positions; 90‑day notice in English/Chinese/Spanish; multi‑channel distribution and reminders. | Defendants: seek revisions (include defense counsel contact, fee info disclosure, 60‑day opt‑in, no posting/social media). | Court: ordered production for delivery drivers (on/after May 31, 2016) including social‑media usernames; required notice revisions (disclose counsel fee process but not exact fee %, allow reminders); approved mail/email/text/targeted chat and workplace posting; denied public social‑media posting, QR codes, employer pay‑envelope insert, and posting on plaintiff counsel website; set 60‑day opt‑in. |
Key Cases Cited
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (endorsing two‑step collective‑action conditional certification framework)
- Hoffmann‑La Roche Inc. v. Sperling, 493 U.S. 165 (U.S. 1989) (courts may authorize notice to potential opt‑in plaintiffs)
- Whiteside v. Hover‑Davis, Inc., 995 F.3d 315 (2d Cir. 2021) (pleading standard for alleging willfulness under the FLSA)
- Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199 (2d Cir. 2015) (court oversight of FLSA settlement and fee approval)
- Fisher v. SD Prot. Inc., 948 F.3d 593 (2d Cir. 2020) (fee‑approval principles in FLSA context)
- Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317 (S.D.N.Y. 2007) (permissive use of three‑year period for conditional certification when willfulness disputed)