447 F.Supp.3d 89
S.D.N.Y.2020Background
- Plaintiffs Qiang Lu and Yongbing Qi, former delivery drivers for Matsu Sushi (owned by Purple Sushi Inc.), sued under the FLSA and NYLL for unpaid minimum wages, unpaid overtime, and related NYLL violations.
- Plaintiffs submitted sparse sworn affidavits alleging long workweeks (~59–62 hours) and low flat monthly pay ($700–$1,300), and that delivery workers’ meal breaks were often interrupted.
- Plaintiffs moved for conditional certification of an FLSA collective (opt-in notice) for all non-managerial employees for the three years before filing, plus production of contact information (including social media) and equitable tolling.
- Defendants opposed broad certification, arguing the affidavits show only delivery-person claims; they also challenged the scope/methods for notice and tolling.
- The Court conditionally certified a collective limited to delivery persons employed between June 27, 2016 and the present; certification as to other non-managerial employees was denied without prejudice.
- The Court ordered production of putative collective members’ contact information (names, last known addresses, phone numbers, emails, and WhatsApp/WeChat/Facebook where applicable), authorized multi-channel notice (mail, email, text, social media, counsel website), set a 60-day opt-in period, and denied equitable tolling for the collective.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to conditionally certify a collective under 29 U.S.C. § 216(b) | Lu/Qi: modest factual showing via affidavits that delivery workers (and other non-managerial staff) were victims of a common pay policy | Defs: affidavits are inconsistent and only support delivery-person claims; broader certification unwarranted | Granted limited certification for delivery persons only; denied certification for other non-managerial employees without prejudice |
| Temporal scope of notice (statute of limitations) | Plaintiffs alleged willful violations; request 3-year lookback | Defendants did not dispute 3-year period | 3-year period (to June 27, 2016) adopted for notice |
| Production of contact information, including social media | Plaintiffs: require names, addresses, phones, emails, and social media (WhatsApp/WeChat/Facebook) in Excel to effect notice | Defs: overly intrusive; argued mail sufficient | Ordered production of names, last known mailing addresses, phone numbers, emails, and social media identifiers as applicable |
| Methods and scope of notice (posting, channels) | Plaintiffs: multi-language notice via mail, email, text, social media, posting at restaurant, counsel website; reminder midway | Defs: restrict to first-class mail; oppose posting at workplace | Allowed notice via mail, email, text, social media, and counsel website; posting at restaurant denied; reminder notice allowed |
| Length of opt-in period | Plaintiffs: 90 days | Defendants: 30 days | Opt-in period set at 60 days |
| Equitable tolling for collective members | Plaintiffs: request tolling of statute while notice period runs | Defs: oppose broad tolling | Denied classwide equitable tolling; court left open individualized tolling issues if raised later |
Key Cases Cited
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (endorses two-stage collective-certification process and describes modest notice-stage burden)
- Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165 (U.S. 1989) (district courts may facilitate notice to potential collective members)
- Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357 (S.D.N.Y. 2007) (articulates low burden for notice-stage certification)
- Guillen v. Marshalls of MA, Inc., 750 F. Supp. 2d 469 (S.D.N.Y. 2010) (example of denial of conditional certification at notice stage)
- Hamadou v. Hess Corp., 915 F. Supp. 2d 651 (S.D.N.Y. 2013) (discusses sufficiency of declarations and individualized tolling/timeliness issues)
- Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317 (S.D.N.Y. 2007) (limits on production of contact information and balancing privacy/interests)