985 F. Supp. 2d 439
S.D.N.Y.2013Background
- Plaintiff Jeong Woo Kim worked at Goat Town (Manhattan restaurant) from April 2012 as a paid weekly-salaried "consulting" sous chef; payroll shows fixed weekly cash payments and no overtime pay.
- Kim alleges he worked ~70 hours/week performing non-managerial kitchen tasks (cleaning, dishwashing, food prep) and that other kitchen staff were paid similarly (salaried and denied overtime). He submitted his declaration and one corroborating declaration from a former kitchen intern (Jeon).
- Defendants (511 E. 5th Street, LLC; Morgenstern; Hough) contend Kim was an exempt manager or an independent contractor and that other employees were hourly and properly paid overtime; they submitted declarations and payroll records to that effect.
- Kim moved for: (1) conditional certification of an FLSA collective action under 29 U.S.C. § 216(b) for similarly situated employees; (2) production of potential opt-in plaintiffs’ contact info; (3) court-facilitated notice (including posting at the restaurant).
- The court applied the two-step collective-certification standard (modest factual showing at the conditional stage) and declined to resolve factual disputes or weigh competing declarations at this preliminary stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kim made the needed "modest factual showing" to conditionally certify a collective action | Kim says he and other kitchen staff were paid a fixed salary, worked overtime, and were denied overtime pay; he submitted his and Jeon’s declarations | Defendants argue Kim was an exempt manager or independent contractor and point to declarations and payroll records showing hourly pay for other employees | Granted as to kitchen staff: Kim’s two declarations suffice at the preliminary stage; defendants’ contrary evidence cannot defeat conditional certification now |
| Whether proposed collective should include non-kitchen employees (porters, servers, bartenders, etc.) | Kim sought certification for all non-exempt Goat Town employees | Defendants say proposed class mixes exempt and non-exempt employees and involves differing duties and legal issues | Denied for non-kitchen staff: no adequate factual nexus; conditional certification limited to kitchen staff over past three years |
| Scope and timing of disclosure of potential opt-in plaintiffs’ contact info | Kim requested names, titles, pay, employment dates, addresses, emails, phone numbers for past six years | Defendants did not contest but argued limits tied to statute of limitations might apply | Granted in part: defendants must produce contact info for kitchen staff employed on or after Nov. 7, 2009 (three-year FLSA limit) within 14 days |
| Court-facilitated notice and posting at workplace | Kim requested court-approved notice, consent form, and permission to post notice/consent forms at Goat Town | Defendants did not oppose posting; some proposed notice modifications needed because class was narrowed | Granted for kitchen staff: court-facilitated notice approved; parties to confer and submit agreed notice (or competing drafts) within 14 days; posting at workplace allowed |
Key Cases Cited
- Martin v. Malcolm Pirnie, Inc., 949 F.2d 611 (2d Cir. 1991) (FLSA exemptions are affirmative defenses and construed narrowly)
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (two-step conditional certification framework for FLSA collective actions)
- Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165 (U.S. 1989) (courts may facilitate notice to potential opt-ins and should supervise notice content)
- Sbarro, Inc., 982 F. Supp. 249 (S.D.N.Y. 1997) (plaintiff must make modest factual showing that potential opt-ins were victims of common policy)
- Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357 (S.D.N.Y. 2007) (preliminary certification stage limits—courts should not resolve merits or credibility)
- Brock v. Superior Care, Inc., 840 F.2d 1054 (2d Cir. 1988) (factors for determining employee vs. independent contractor status)