424 F.Supp.3d 253
D. Conn.2020Background
- Plaintiffs Gui Zhen Zhu and Rong Jiao Yin sued Matsu Corp. (d/b/a Matsu), Matsu Grill Co. LLC (d/b/a Matsuri), and two individual owners alleging willful violations of the FLSA and Connecticut Minimum Wage Act by paying below minimum wage and withholding overtime.
- Zhu and Yin submitted affidavits describing long workweeks (often >40 hours; Zhu alleges ~72 hours/wk), flat monthly/biweekly pay, lack of wage notices, and conversations with other kitchen and wait staff who reported similar treatment.
- Plaintiffs moved for conditional certification of an FLSA collective, court-facilitated notice (in English, Chinese, Spanish), production of contact information for potential opt-ins, a 90-day opt-in period, and tolling of the statute of limitations during the opt-in period.
- The court applied the Second Circuit two-step collective-action framework and the low "modest factual showing" standard for conditional certification, accepting hearsay and drawing inferences for plaintiffs at this stage.
- The court conditionally certified the collective for all current and former non-exempt employees employed from February 2, 2015 to the date of the Order; ordered defendants to produce employee contact data in Excel within 15 days; required a revised notice and consent form; approved posting and mailing of notice; set a 60-day opt-in period; reserved ruling on equitable tolling until after the opt-in period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conditional certification is warranted | Zhu and Yin say their affidavits show a common unlawful policy of underpayment and withheld overtime affecting similarly situated employees | Defendants argue plaintiffs’ allegations are conclusory, hearsay, and employees have different jobs/pay so not similarly situated | Granted: plaintiffs met the low "modest factual showing"; affidavits and hearsay suffice at this stage; differences in job duties do not defeat certification if a common unlawful policy is alleged |
| Proper notice period (limitations look‑back) | Plaintiffs seek notice to employees from Feb. 2, 2015 (three years before filing) because they allege willfulness and equitable tolling may apply | Defendants contend broader notice risks solicitation of time‑barred claims because opt‑in tolling requires individual consent | Granted: court used three‑year look‑back to the date of the Order (Feb. 2, 2015 to present) to avoid premature merits/timeliness rulings; timeliness challenges may be addressed later |
| Where consent forms should be returned (Clerk vs. plaintiffs’ counsel) | Plaintiffs want consents returned to plaintiffs’ counsel (more efficient and helpful for potential opt‑ins) and notice will state right to separate counsel | Defendants prefer Clerk to avoid implicit discouragement of independent counsel | Granted: consent forms may be returned to plaintiffs’ counsel because the notice informs opt‑ins of the right to retain separate counsel and court administrative burden favors counsel receipt |
| Length of opt‑in period | Plaintiffs requested 90 days | Defendants argued 90 days is excessive; 60 days is typical | Denied as to 90 days: court ordered a 60‑day opt‑in period but will entertain untimely opt‑ins for good cause |
| Production of contact information | Plaintiffs requested names, addresses, phones, emails, dates of employment in Excel for all non‑exempt employees since Feb. 2, 2015 | Defendants opposed or objected generally | Granted: defendants ordered to produce the requested data in Excel within 15 days |
| Request to toll statute of limitations during opt‑in period | Plaintiffs sought 90‑day tolling to protect opt‑ins whose claims might otherwise lapse while opting in | Defendants opposed; court must find extraordinary circumstances for equitable tolling | Denied (deferred): request to toll was reserved/denied as premature; individual equitable‑tolling claims may be asserted after opt‑in period |
Key Cases Cited
- Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) (two‑step FLSA collective certification framework and court‑facilitated notice authority)
- Hoffmann‑La Roche Inc. v. Sperling, 493 U.S. 165 (U.S. 1989) (courts may facilitate notice to potential collective members)
- Aros v. United Rentals, Inc., 269 F.R.D. 176 (D. Conn. 2010) (applying collective certification standards in D. Conn.)
- Kuebel v. Black & Decker Inc., 643 F.3d 352 (2d Cir. 2011) (willfulness triggers three‑year FLSA limitations period)
- Jeong Woo Kim v. 511 E. 5th St., LLC, 985 F. Supp. 2d 439 (S.D.N.Y. 2013) (courts draw inferences for plaintiffs and may rely on hearsay at conditional stage)
- Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317 (S.D.N.Y. 2007) (permitting an inclusive notice period to avoid premature merits/timeliness rulings)
- Whitehorn v. Wolfgang's Steakhouse, Inc., 767 F. Supp. 2d 445 (S.D.N.Y. 2011) (opt‑in consents do not relate back; tolling issues reserved for later)
- Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357 (S.D.N.Y. 2007) (notice procedures and deferring individualized exemptions/inquiries until later)