Hong v. Haiku @ WP Inc.

582 F.Supp.3d 117

Yingcai HONG, on his own behalf and on behalf of others similarly situated, Plaintiff,

v.HAIKU @ WP INC. d/b/a Haiku Asian Bistro White Plains; JP White Plains, Inc. d/b/a Haiku Asian Bistro White Plains; and Soonwah Lee a/k/a Michael Lee, Defendants.

No. 19 Civ. 5018 (NSR)

United States District Court, S.D. New York.

Signed January 28, 2022

Aaron B. Schweitzer, Leanghour Lim, John Troy, Troy Law, PLLC, Flushing, NY, for Plaintiff.

Lewis Steven Goldberg, Goldberg & Weinberger LLP, Redding, CT, Joshua Sam Beldner, Tilton Beldner LLP, Uniondale, NY, Stuart Alan Weinberger, Goldberg & Weinberger, LLP, New York, NY, for Defendants JP White Plains, Inc., Haiku @ WP, Inc., Soonwah Lee.

OPINION AND ORDER

NELSON S. ROMÁN, United States District Judge:

Plaintiff Yingcai Hong, a former deliveryman, brought this putative collective and class action against Haiku @ WP Inc. and JP White Plains, Inc., and their owner, Soonwah Lee (collectively, "Defendants"), alleging wage violations under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 190 et seq. , and New York Labor Law ("NYLL"), N.Y. Lab. Law §§ 190 et seq. , §§ 650 et seq. Presently pending before the Court is Plaintiff's Motion for Conditional Class Certification (ECF No. 46), seeking an order conditionally certifying a collective class of similarly-situated employees, directing Defendants to produce identifying, contact and other information from these potential plaintiffs, and a court-authorized Notice of Lawsuit and Consent to Join Lawsuit Form to send to these potential plaintiffs. For the following reasons, the Court GRANTS IN PART, DENIES IN PART Plaintiff's motion.

BACKGROUND

The Court draws the facts below from the Amended Complaint (ECF No. 28) and Plaintiff's affidavit in support of the instant motion (Hong Aff., ECF No. 47-4).

I. Plaintiff's Employment with Defendants

Defendants operate a restaurant known as Haiku Asian Bistro ("Haiku") located in White Plains, New York. (Am. Compl. ¶¶ 8, 11, 21, 32–33.) Haiku employs between 20 and 30 people. (Hong Aff. ¶ 4.) During the relevant time period, Plaintiff recalls that Haiku employed approximately 3-5 delivery persons, 8-9 sushi bar workers, 5 waiters, 5 cooks, 3 fry wok workers, and 2 cashiers/recipients. (Id. ¶ 32.)

Plaintiff alleges that from about November 2015 to August 2016, and again from February 2017 to May 20, 2018, Defendants employed him as a deliveryman at Haiku. (Am. Compl. ¶¶ 7, 34.) Until December 2017, Plaintiff worked an average of 58.5 hours per week (id. ¶¶ 38–40) and Defendants paid him $7.50 per hour (id. ¶ 46.) From January 2018 to May 2018, he worked an average of 50.5 hours per week (id. ¶¶ 41–43) and Defendants paid him $9.15 per hour (id. ¶ 47).

Plaintiff also alleges that throughout his employment, he had to work through his hour-and-a-half "break" two days per week and did not have a fixed time for lunch or dinner. (Id. ¶¶ 39, 42, 44). During his employment, $10 per week was deducted in cash tips, $20-$25 per week was deducted as a meal credit, and $24 per week was deducted for transportation. (Id. ¶ 50.) Plaintiff's meals did not include any tea, coffee, milk, or juice. (Id. ¶ 52.) Defendants never informed him of his hourly pay rate or any tip deductions toward the minimum wage. (Id. ¶ 48.) Finally, Plaintiff did not receive a weekly pay statement, or notice of the deductions to his tips, transportation, or meals. (Id. ¶¶ 53–54.)

Each workday, Plaintiff drove an average of two miles each way to deliver about 25 customer orders, totaling approximately 100 miles per workday. (Id. ¶¶ 58–59.) On average, two or three orders per day were outside the 4.5-mile delivery radius, and for making such deliveries, he earned an extra $3 in tips. (Id. ¶¶ 60–61.) Plaintiff was "required to bear the cost of the purchase of a motor vehicle, and the costs of gasoline," and alleges that he was not reimbursed for the cost of gasoline or vehicle maintenance. (Id. ¶¶ 57, 62.) Further, for a period of five months, Plaintiff served as the transportation van driver and Defendants compensated him $5 for forty to sixty minutes of non-tipped work. (Id. ¶ 51.)

As a result of the foregoing, Plaintiff alleges that Defendants paid him less than the federal minimum wage for the first 40 hours per week and less than the required 1.5 times the federal minimum wage for each hour worked beyond 40 hours per week. (Id. ¶ 55.) Since the New York minimum wage was higher than the federal minimum wage for all relevant periods, his pay was also below the New York minimum wage at all relevant times. (Id. ¶ 56.)

II. Plaintiff's Allegations About Other Potential Plaintiffs

Plaintiff asserts that he is aware of other delivery drivers who worked under similar circumstances as he did, including: Lao Gao (Hong Aff., ¶¶ 34–44), Lao Meng (id. ¶¶ 45–55), Lin Ding (id. ¶¶ 56–66), Qiang Lang (id. ¶¶ 67–77), Jiao (id. ¶¶ 78–88), and Qiu (id. ¶¶ 89–98). Plaintiff claims that each of these workers worked more than 40 hours per week, received $7.50 per hour plus tips initially, and $9.15 per hour plus tips thereafter. (Id. ¶¶ 34–44, 45–55, 56–66, 67–77, 78–88, 89–98.) He claims that each of these workers had similar "improper deductions" made against their pay for meals, tips, and transportation costs. (Id. ) Plaintiff claims to be aware of these facts after observing the manager handing them their pay each week on a check along with a salary chart at the same time. (Id. ) He further claims that each of these workers also received a meal like his, which did not include tea, coffee, milk, or juice. (Id. )

Plaintiff also asserts that he is aware of other employees—not delivery drivers—who he claims worked under similar circumstances, including: Ah Biao, a waiter (id. ¶¶ 99–103), Lisa, a waitress (id. ¶¶ 104–08), another unidentified waitress (id. ¶¶ 109–13), Danny, a driver (id. ¶¶ 114–18), Ah Liang, a sushi chef (id. ¶¶ 119–23), Ah Ling, a cashier/recipient (id. ¶¶ 124–28), another unidentified Malaysian cashier/recipient (id. ¶¶ 129–32), two unidentified Spanish-speaking kitchen workers who are father and son (id. ¶¶ 133–37), and another pair of unidentified Cantonese kitchen workers who are also father and son (id. ¶¶ 138–42). He claims that each of these workers also worked more than 40 hours per week. (Id. ¶¶ 99–103, 104–08, 109–13, 114–18, 119–23, 124–28, 129–32, 133–37, 138–42.) He finally claims to be aware of these facts because he drove these employees "to and back from the restaurant, and [he] saw [their] starting and ending time every workday." (Id. )

III. Procedural History

Plaintiff filed this action on May 31, 2019. (ECF No. 1.) The Court granted him leave to file an Amended Complaint and Defendants leave to move to dismiss the Amended Complaint. (Minute Entry dated Feb. 6, 2020.) Plaintiff filed an Amended Complaint on February 27, 2020 asserting thirteen causes of action, including: (I) meal transportation credit violation under 29 U.S.C. § 203(m) and 29 C.F.R. § 531.3 ; (II) illegal tip retention under 29 U.S.C. § 203(m) and (t) ; (III) meal credit violation under NYCRR; (IV) illegal tip retention under NYLL § 146-2.18 and 2.20; (V) failure to pay minimum wage and unpaid wages under 29 U.S.C. § 206 ; (VI) failure to pay minimum wage and unpaid wages under NYLL; (VII) failure to pay overtime in violation of 29 U.S.C. § 207(a) ; (VIII) failure to pay overtime in violation of NYLL; (IX) failure to provide meal periods in violation of NYLL; (X) failure to keep records in violation of NYCRR § 14602.1; (XI) failure to provide time of hire wage notice in violation of NYLL § 195-1(a); (XII) failure to provide wage statements in violation of NYLL § 195-1(d); and (XIII) failure to pay delivery experts working on the road standard mileage reimbursement rate published by the Internal Revenue Service. (ECF No. 28.)

On June 3, 2020, Defendants moved to dismiss Plaintiff's Amended Complaint for lack of standing, and, alternatively, for failure to state a plausible claim. (ECF No. 33.) On March 31, 2021, the Court granted in part, denied in part Defendants’ motion. (ECF No. 38.). Specifically, while the Court dismissed the claims asserted against certain corporate and individual defendants because Plaintiff failed to sufficiently allege that they had any nexus to or control over his employment, it also denied the motion in all other respects. (Id.) Defendants subsequently filed their answer on May 5, 2021. (ECF No. 41.)

On May 19, 2021, Plaintiff asked leave from the Court to file the instant motion, which the Court granted and then set a briefing schedule. (ECF Nos. 42, 43.) The parties filed their respective briefing on August 20, 2020: Plaintiff filed the instant motion (ECF No. 46), his attorney's declaration with accompanying exhibits (ECF No. 47), a memorandum in support (Mot., ECF No. 48); Defendants filed their response in opposition (Resp. in Opp'n, ECF No. 49) and their attorney's declaration with accompanying exhibits (ECF No. 50); and finally, Plaintiff filed his reply (Reply, ECF No. 51).

DISCUSSION

By his motion, Plaintiff argues that conditional certification is appropriate because he has made the required showing that other individuals employed by Defendants are similarly situated. (Mot. at 16–22.) He further requests the Court to issue an order expediting notice and disclosure of contact information, as well authorizing his proposed notice of pendency and consent joint form to be disseminated by mail, email, text message, or social media groups, among other means, to all members of the collective in English, Chinese, and Spanish. (Id. at 22–29.) Plaintiff finally asks the Court to equitably toll the statute of limitations to protect the claims of the potential members of the FLSA collective against Defendants. (Id. at 29–30.)

In opposition, Defendants contend that Plaintiff has failed to show that the employees he seeks to represent were victims of a "common plan or policy" that violated the FLSA within the...