Jeong Woo Kim v. 511 E. 5th Street, LLC

985 F. Supp. 2d 439, 2013 WL 6283587, 2013 U.S. Dist. LEXIS 172334
CourtDistrict Court, S.D. New York
DecidedDecember 3, 2013
DocketNo. 12 Civ. 8096(FM)
StatusPublished
Cited by63 cases

This text of 985 F. Supp. 2d 439 (Jeong Woo Kim v. 511 E. 5th Street, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jeong Woo Kim v. 511 E. 5th Street, LLC, 985 F. Supp. 2d 439, 2013 WL 6283587, 2013 U.S. Dist. LEXIS 172334 (S.D.N.Y. 2013).

Opinion

MEMORANDUM DECISION AND ORDER

FRANK MAAS, United States Magistrate Judge.

Plaintiff Jeong Woo Kim (“Kim”) brings this putative collective action on behalf of [443]*443himself and other similarly-situated persons, seeking to recover unpaid minimum wages and overtime compensation pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and the New York Labor Law (“NYLL”), N.Y. Lab. Law § 190 et seq. (ECF No. 1).

Kim has moved for: (1) conditional certification of a collective action pursuant to 29 U.S.C. § 216(b); (2) production of the names and personal information of all potential opt-in plaintiffs; (3) court-facilitated notice of the action to all potential opt-in plaintiffs; and (4) authorization to post a proposed notice of the action in the defendants’ restaurant. (ECF No. 27 (“Pl.’s Mot.”)). For the reasons set forth below, Kim’s motion is granted in part and denied in part.

I. Factual Background

Defendants 511 E. 5th Street, LLC, d/b/a Goat Town, Nicholas Morgenstern, and Joel Hough (collectively, the “Defendants”) operate a restaurant in Manhattan known as “Goat Town.” 1 (See ECF Ño. 28 (PL’s Mem. of Law (“PL’s Mem.”)) at 2). In early 2012, Kim responded to a job listing posted by the Defendants, expressing his interest in a sous chef position at Goat Town. According to the Defendants, the restaurant was unable to offer Kim a full-time position due to his immigration status, but offered him a “consulting role,” pursuant to which he would assist the head chef (the “Chef’). Kim accepted, and began working for the Defendants on April 9, 2012. {See ECF No. 35 (Decl. of Nicholas Morgenstern (“Morgenstern”), dated July 12, 2013 (“Morgenstern Decl.”)), at 8).

The Defendants allege that, in this role, Kim was a manager exempt from the FLSA’s minimum wage and overtime provisions. {See id. ¶¶ 7-8). According to Morgenstern, the managing member of 511 E. 5th Street, LLC, the Defendants explained the position’s managerial duties to Kim at the start of his employment. Those duties allegedly included supervising other kitchen staff members, providing input for hiring and firing decisions, and ordering and receiving inventory. {Id.).

For his part, Kim contends that he spent the majority of his time performing non-managerial tasks such as cleaning the restaurant, washing dishes, and preparing food alongside other kitchen staff members. {See ECF No. 29 (Decl. of Jeong Woo Kim, dated May 28, 2013 (“Kim Deck”)), ¶ 3). Kim further maintains that he did not have authority to hire or fire staff members, and was never asked to provide input regarding such decisions. {Id.). Kim argues that because his actual job duties did not involve any managerial tasks, he was not exempt from the FLSA minimum wage and overtime provisions. (ECF No. 38 (“PL’s Reply Mem.”) at 3-4).

The two sides also dispute whether Kim typically worked overtime. Kim alleges that he regularly worked 14 hours per day, at least 5 days per week, for a total of at least 70 hours per week. (Kim Decl. ¶ 2). The Defendants, on the other hand, maintain that Kim “likely worked the usual hours of the cooks and Chef — about 8 hours a day between 3 p.m. and 11 p.m.” (Morgenstern Decl. ¶ 9). Although the Defendants do not indicate how many days per week Kim allegedly worked, both sides agree that he was paid on a salaried, rather than an hourly, basis and consequently did not receive overtime pay. According to the Defendants’ payroll records, Kim was paid a fixed amount of $550 per week [444]*444for the first twelve weeks of his employment, and $400 per week thereafter. (See EOF No. 34 (Decl. of Kevin Sean O’Donoghue, dated July 12, 2013 (“O’Donoghue Deck”)) Ex. 3). Kim received his weekly salary in cash. (See id.).

Although the parties agree that Kim was paid a fixed weekly salary, they disagree as to the method by which other Goat Town employees were paid. According to the Defendants, all employees other than Kim and the Chef were paid on an hourly basis and “receive[d] overtime at one and one-half their regular rate for all hours worked over 40 hours a week.” (Morgenstern Deck ¶ 5) (parentheses omitted). Kim alleges, however, that all kitchen staff members were compensated on a salaried, rather than an hourly, basis and therefore did not receive overtime pay. Kim bases this assertion on the frequent complaints that he heard from other kitchen staff members who had been denied overtime pay and were not being compensated on an hourly basis. (Kim Deck ¶ 4). Kim also avers that he “observed” tipped employees receiving less than the minimum wage even though he never observed them “receiving tip credit notice” from the Defendants. (Id. ¶ 5). According to Kim, the tipped employees spent twenty percent or more of their time engaging in such “non-tipped” activities as cleaning the restaurant. (Id.).

Citing his personal observations and conversations with two of his kitchen coworkers — “Dimitri” and “Geraldo”- — Kim alleges that he and other Goat Town employees were victims of a common compensation policy that violated the FLSA. (Ph’s Mem. at 9).2 Kim also has submitted the declaration of Su Jin Jeon (“Jeon”), a former Goat Town kitchen intern, in support of his claims. (ECF No. 30 (Deck of Su Jin Jeon, dated June 10, 2013 (“Jeon Deck”))). Based on these submissions, Kim asks that the Court conditionally certify this matter as a collective action so that he may pursue claims on behalf of both himself and other similarly-situated Goat Town employees.

II. Legal Standard

A. FLSA Generally

The FLSA establishes a minimum hourly wage that employers must pay their employees and requires employers to pay overtime wages, at a rate of one and one-half times an employee’s normal hourly rate, for any hours worked in excess of 40 hours in a single week. 29 U.S.C. §§ 206, 207. These requirements, however, are subject to several exemptions.

The Second Circuit has held that, “because the FLSA is a remedial act, its exemptions ... are to be narrowly construed.” Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir.1991). Moreover, because the FLSA’s exemptions are affirmative defenses to minimum wage and overtime claims, an “employer bears the burden of proving that its employees fall within an exempted category of the Act.” Id.

In this case, the Defendants rely on the FLSA exemption applicable to an “employee employed in a bona fide executive ... capacity.” 29 U.S.C. § 213(a)(1). This executive exemption applies to any employee:

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985 F. Supp. 2d 439, 2013 WL 6283587, 2013 U.S. Dist. LEXIS 172334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jeong-woo-kim-v-511-e-5th-street-llc-nysd-2013.