Gui Zhen Zhu v. Matsu Corp, 3:18-cv-203 (CSH)

424 F.Supp.3d 253

GUI ZHEN ZHU, and Rong Jiao Yin, on their own behalf and on behalf of others similarly situated, Plaintiffs,

v.MATSU CORP d/b/a Matsu; and Matsu Grill Co. LLC, d/b/a Matsuri and; Kimming Marty Cheng, and Ziqiao Cao a/k/a Michael Cao, Defendants.

3:18-cv-203 (CSH)

United States District Court, D. Connecticut.

Signed January 2, 2020

Gary Edward Phelan, Mitchell & Sheahan, P.C., Stratford, CT, John Troy, Troy Law, PLLC, Flushing, NY, for Plaintiffs.

Anne Casey LeVasseur, Wilson Elser Moskowitz Edelman & Dicker LLP, Stamford, CT, Benjamin B. Xue, Xue & Associates, P.C., Glen Cove, NY, Kevin J. Lennon, Lennon, Murphy, Caulfield & Phillips, LLC, Southport, CT, for Defendants.

RULING ON PLAINTIFFS' MOTION TO CONDITIONALLY CERTIFY A COLLECTIVE ACTION UNDER SECTION 216(b) OF THE FLSA

HAIGHT, Senior District Judge:

Plaintiffs Gui Zhen Zhu ("Zhu") and Rong Jiao Yin ("Yin") bring this action on behalf of themselves and others similarly situated against Defendants Matsu Corp., d/b/a Matsu; Matsu Grill Co. LLC, d/b/a Matsuri; Kimming Marty Cheng; and Ziqiao Cao, a/k/a Michael Cao (collectively "Defendants") for alleged violations of the minimum wage and overtime pay provisions of the Federal Labor Standards Act ("FLSA") and the Connecticut Minimum Wage Act ("CMWA").

Plaintiffs now move for: (1) conditional certification of an FLSA collective action pursuant to 29 U.S.C. § 216(b) (" Section 216(b)"); and (2) class action certification under Federal Rule of Civil Procedure 23 for Plaintiffs' CMWA claims. This Ruling resolves Plaintiffs' motion to conditionally certify an FLSA collective action.

I. BACKGROUND

Plaintiffs Zhu and Yin allege that Defendants, owners of two restaurants in Westport and Darien, Connecticut,¹ violated the minimum wage and overtime pay provisions of the FLSA and CMWA by willfully underpaying their employees. On February 2, 2018, Plaintiffs filed a complaint in this action seeking to recover from Defendants unpaid minimum wages and unpaid overtime compensation, among other damages. See Doc. 1 ("Compl."), at ¶ 4. Citing their personal observations and conversations with other employees, Zhu and Yin assert that Defendants engaged "in a pattern and practice of failing to pay [their] employees ... minimum wage" and "overtime compensation," and "refused to record" the hours worked by Plaintiffs and similarly situated employees—including the hours worked "in excess of forty hours each week." See id. at ¶¶ 2, 3; Doc. 34–4 ("Zhu Aff."), at ¶¶ 21–105; Doc. 34-5 ("Yin Aff."), at ¶¶ 19–63.

Plaintiffs move to conditionally certify a collective action in this suit pursuant to Section 216(b) of the FLSA. They submit a proposed Notice of Pendency and Consent to Sue Form ("Consent Form") for the Court's approval.² See Docs. 33, 34. In support of their motion for conditional certification, Plaintiffs include affidavits by Zhu and Yin containing the factual accounts summarized below.

A. Zhu's Allegations

Zhu was employed as a packer at Matsu, one of Defendants' restaurants, from about November 1, 2012 to February 29, 2016. Zhu's Aff., at ¶ 3. As a packer, Zhu was required to pack the food that would be delivered to customers. Id. , at ¶ 4. Zhu alleges that from on or about January 1, 2012 to on or about December 31, 2014 she worked the following schedule at the restaurant (id. , at ¶ 9):

a. From 10:40 to 22:00 for 11 hours 20 minutes a day with a one-hour lunch break on Tuesday, Wednesday, Thursday, and Sunday;

b. From 10:40 to 23:00 for 12 hours and 20 minutes a day with a one-hour lunch break on Friday;

c. From 11:40 to 23:00 for 11 hours and 20 minutes a day with a one-hour lunch break on Saturday;

d. Zhu had Monday off.

Then, from on or about January 1, 2015 to on or about February 29, 2016, Zhu worked the following schedule (id. , at ¶ 10):

a. From 10:40 to 22:00 for 11 hours 20 minutes a day with a one-hour lunch break on Monday through Thursday;

b. From 10:40 to 23:00 for 12 hours and 20 minutes a day with a one-hour lunch break on Friday;

c. From 11:40 to 23:00 for 11 hours and 20 minutes a day with a one-hour lunch break on Saturday;

d. Zhu had Sundays' off.

In addition to her usual working schedule, as summarized above, Zhu was allegedly required to come in to work two or three times a week for an extra one or two hours in the morning when the restaurant was preparing for the "big orders." Id. , at ¶ 12. As a result, on average, Zhu contends that she worked approximately "seventy-two (72) hours per week" in total and had no vacation or holiday time. Id. , at ¶¶ 13, 14. Although Zhu was allocated a one-hour lunch break on the days she worked, Zhu alleges that the break would be "cut short" if a delivery order required packing. Id. , at ¶ 15. Zhu was never given a dinner break. Id. , at ¶ 16.

Zhu states that during her employment with Defendants she was paid a flat compensation of $2,000 a month in two installments. Id. , at ¶ 17. The first installment of $1,000 was allegedly paid in cash in the middle of each month, while the second installment of $1,000 was paid by check at the end of each month. Id. Zhu contends that she was not paid overtime compensation for any hours worked in excess of 10 hours a day. Id. , at ¶ 18. Zhu also states that she has "never seen a notification, either in the form of poster notices or other means regarding overtime [pay] and wages" as required by the FLSA and CMWA. See id. , at ¶ 19.

Citing her personal observations and conversations with other employees, Zhu contends that it was Defendants' "policy" to pay their employees less than the minimum wage and little to no overtime compensation. See id. , at ¶ 69. For example, Zhu alleges that Dingding ("Ding"), one of the kitchen employees whom she befriended, had to frequently work overtime without receiving overtime compensation for all hours worked. See id. , at ¶ 25. Zhu alleges that, at least one day a week, Ding "would sleep overnight" at the restaurant "with package paper as a blanket" and wake up at 4:00 am the next day to start preparing for the big orders. Id. , at ¶¶ 28, 29. On such days, Ding would work until the end of his usual shift and resume his regular working hours the next day without being given any time off. Id. , at ¶ 29. Zhu alleges that Ding told her that he regularly worked about 74 hours a week and was paid "a little more than three thousand dollars ($3,000) a month." See id. , at ¶¶ 30–33. Although Ding was paid some overtime compensation, Zhu contends that Ding did not receive overtime pay for all the hours he worked in excess of 40 hours a week. See id. , at ¶¶ 31, 34.

Zhu alleges that other kitchen employees—Da Jiang, Sunny and Chef Song—complained to her about working similar hours as Ding and being similarly undercompensated. See id. , at ¶¶ 39–42, 49–58, 59–68. According to Zhu, Da Jiang, Sunny, and Chef Song had to sleep at the restaurant overnight at least one day a week when the restaurant had big orders without receiving overtime pay for all hours worked in excess of 40 hours a week. See id. at ¶¶ 47; 58; 66.

Zhu further contends that three waitresses, Rebecca, Tina and Anna, and one waiter, Andy, all of whom worked at the restaurant during Zhu's employment, were similarly undercompensated. Zhu alleges that Rebecca, Tina, Anna, and Andy were paid a base salary of $1000 dollars a month and would receive around $50–$100 in tips a day. See id. , at ¶ 76, 84, 91, 97. Zhu alleges that these employees were required to share a portion of their tips with other non-tipped employees and were paid less than the minimum wage in total compensation, even with tips included. See Zhu's Aff., at ¶¶ 72–79. Zhu contends that Rebecca, Tina, Anna, and Andy were paid less than the minimum wage and that, although they worked more than 40 hours a week, they did not receive any overtime compensation for any hours worked in excess of 40 hours a week. See id. , at ¶¶ 79, 86, 93, 99. Zhu states that she learned this information from the conversation she had with Rebecca, Tina, and Anna. See id. , at ¶¶ 75, 83, 90.

Based on these accounts, Zhu alleges that "it is Defendants' policy to not pay employees at least the minimum wage for each hour worked including not paying the employees at time and a half rate for their overtime hours," and that Defendants "exploited" Zhu and the other employees. Id. , at ¶ 69; 106.

B. Yin's Allegations :

Yin alleges that she was employed by Defendants as a waitress from about July 1, 2014 to November 30, 2015. Yin's Aff., at ¶ 3. Yin contends that, at all relevant times, she worked the following schedule (id. , at ¶¶ 9, 11):

a. From 11:00 to 21:30 on Sunday, Monday, Wednesday and Thursday for 10 hours and 30 minutes a day, with a one-hour break;

b. From 11:00 to 22:00 on Friday for 11 hours a day, with a one-hour break;

c. From 15:00 to 21:30 or 22:00 for 6 hours and 30 minutes or 7 hours "either on a Saturday or a Sunday";

d. Yin had Tuesday off.

Yin alleges that, in total, she worked "about fifty-nine (59) hours a week," and was paid a flat compensation of about $200 on a biweekly basis. Id. , at ¶¶ 12, 13. Yin states that she "was not given any paystubs for all the wages [she] received or any other documents about her wage." Id. , at ¶ 14. Yin alleges that she "was never required to punch in and out" while she was employed by Defendants and that she was paid less than the minimum wage and did not receive overtime compensation "for all the hours worked more than the regular hours." See id. , at ¶¶ 15, 16. Yin also states that she has "never seen a notification, either in the form of poster notices or other means regarding overtime [pay] and wages" as required by the FLSA and CMWA. See id. , at ¶ 17.

Yin alleges that, to her knowledge, it is Defendants' policy to pay employees less than the minimum wage, and that "it is Defendants' policy to not pay at time and a half rate for all the hours worked [in excess of] ten hours a day or forty hours a week." Id. , at ¶¶ 20, 21. Specifically, Yin alleges that sh...