Cao v. ABC Corp.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------X

YU WEI CAO and YU CONG WEI, individually

and on behalf of all other employees

similarly situated,

Plaintiffs,

MEMORANDUM, DECISION, &

-against- ORDER AFTER BENCH TRIAL

15-CV-0266(JS)(ARL)

MIYAMA, INC., doing business as Ruby

Sushi; W ASIAN CUISINE INC., doing

business as Ruby Sushi; RUBY ASIAN

CUISINE, INC., doing business as Ruby

Sushi; XI CHEN; MU JIN CHEN; and MING

HANG WANG,

Defendants.

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APPEARANCES

For Plaintiffs: Keli Liu, Esq.

Jian Hang, Esq.

William M. Brown, Esq.

Hang & Associates, PLLC

136-20 38th Avenue, Suite 10G

Flushing, New York 11354

For Defendants

W Asian Cuisine Inc.,

Ruby Asian Cuisine,

Inc., Xi Chen, and

Ming Hang Wang: Ricardo R. Morel, Esq.

Law Office of Ricardo Morel

39-15 Main Street, Suite 318

Flushing, New York 11354

Miyama, Inc. and

Mu Jin Chen: No appearances.

SEYBERT, District Judge:

Plaintiffs Yu Wei Cao (“Cao”) and Yu Cong Wei (“Wei”)

commenced this action against defendants Miyama, Inc., doing

business as Ruby Sushi (“Miyama”); W Asian Cuisine Inc., doing

business as Ruby Sushi (“W Asian Cuisine”); Ruby Asian Cuisine,

Inc., doing business as Ruby Sushi (“Ruby Asian Cuisine”); Xi Chen;

Mu Jin Chen; and Ming Hang Wang (“Wang,” and collectively,

“Defendants”) seeking to recover unpaid overtime wages and other

damages arising from Defendants’ alleged violations of the Fair

Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”), and the

New York Labor Law, N.Y. Labor Law §§ 1, et seq. (“NYLL”). (See

generally Am. Compl., D.E. 53.) This Court held a bench trial on

January 4, 2019. (See generally Trial Tr. (“Tr.”), D.E. 84-1, at

2-39.) 1 This Memorandum, Decision, and Order contains the findings

of fact and conclusions of law required by Federal Rule of Civil

Procedure 52(a)(1).

FINDINGS OF FACT

Based on the evidence presented, the Court makes the

following findings of fact. They are drawn from witnesses’

1 Cao did not appear for trial, his claims were not discussed at

trial, and Plaintiffs’ counsel have represented that they have

been unable to contact him. (Dec. 2018 Letter, D.E. 74.)

Additionally, Mu Jin Chen and Miyama have not appeared in this

action, and Wei did not testify that he ever worked for Mu Jin

Chen or Miyama. (See Tr.) Accordingly, Cao’s claims against

all Defendants and Wei’s claims against Miyama and Mu Jin Chen

are DISMISSED WITH PREJUDICE.

testimony at trial, the parties’ trial exhibits, and the undisputed

facts submitted by the parties in the Joint Pretrial Order (“JPTO,”

D.E. 68.)2

I. Defendants

Xi Chen owned and operated Ruby Asian Cuisine, (JPTO

§ VII.3), through which she ran the restaurant Ruby Asian Fusion

and Sushi Bar (“Ruby Asian Fusion”) located in Woodbury, New York,

(Tr. 57:25-58:5). Ruby Asian Fusion went out of business on

October 31, 2018. (Tr. 58:6-12.)

Wang owns and operates W Asian Cuisine, (JPTO § VII.5),

through which he runs the restaurant Ruby Sushi located in

Plainview, New York, (Tr. 40:22-41:3). Wang purchased the

restaurant from Mu Jin Chen and his company, Miyama, in 2008.

(Tr. 46:21-47:14; 54:3-15.)

Wang and Xi Chen are husband and wife. (Tr. 58:23-25.)

IIT. Wei’s Work at the Restaurants

Wei worked for Xi Chen’s restaurant, Ruby Asian Fusion

in Woodbury, from August 15, 2016 Lo December 20, 2016.

(Tr. 37:18-38:1; Tr. 60:22-61:8; see also Tr. 6:4-11.)

2 On October 25, 2018, the Proposed Joint Pretrial Order was

approved for filing by Magistrate Judge Arlene R. Lindsay. (See

Minute Entry, D.E. 69.)

3 Wang first testified that he did not buy his restaurant from Mu

Jin Chen, (Tr. 47:12-14), but later testified that he did,

(Tr. 49:10-15, 54:12-18).

The parties dispute whether Wei also worked one day per

week at Wang’s restaurant, Ruby Sushi in Plainview, during that

time. Wei testified that he worked at Ruby Sushi every Tuesday

between August 15 and December 20, 2016. (Tr. 6:12-24, 16:22-

17:2, 37:18-38:9.) Xi Chen insisted that he did not, (Tr. 60:18-

61:17), and Wang suggested the same, (see Tr. 42:13-43:23), though

defense counsel never asked Wang whether Wei worked there, (see

Tr. 40:22-55:25).

The Court credits Wei’s testimony regarding his work at

Ruby Sushi. When asked during cross-examination whether Wang’s

restaurant in Plainview said “W Asian Cuisine” on the outside,

Wei--without hesitation--testified, “I rarely entered through the

front. I always mostly [sic] entered through the back. In the

back it just says Ruby Sushi.” (Tr. 36:10-14.) This testimony

struck the Court as unrehearsed and truthful.

In contrast, the Court did not find Xi Chen’s testimony

on this point to be credible. First, on one occasion, she

specified the restaurant at which Wei was working: “Sometimes

when [Wei] was working at my Woodbury restaurant . . . he [would]

leave early.” (Tr. 93:9-14.) This suggests that Wei sometimes

worked at the Woodbury restaurant and sometimes worked at the

Plainview restaurant.

Second, a prior sworn statement Xi Chen submitted to the

Court undermines her testimony that Wei never worked at Ruby Sushi.

At trial, she testified that she calculated Wei’s hours based on

the hours her restaurant was open, and she concluded that he could

not have worked more than fifty (50) hours per week. (Tr. 101:12-

23, 103:17-22.) And according to Xi Chen, the restaurant was open

for a total of fifty-eight and one-half (58.5) hours per week.4

Thus, according to Xi Chen, Wei worked up to fifty of the fifty-

eight and one-half hours the restaurant was open per week, or every

day the restaurant was open except for only one of the eight-and-

one-half-hour days between Monday and Thursday. This accords with

Wei’s testimony that he worked for a total of five and one-half

days per week, with Sunday being the half day. (Tr. 9:25-10:4.)

However, Xi Chen’s prior sworn statement to the Court provides

that her “[w]orkers are off two (2) days a week. So they only

work 4 1/2 days.” (Xi Chen Aff., D.E. 49, ¶ 8.)

The Court sees three possible explanations for this

contradiction: (1) Xi Chen’s trial testimony suggesting that Wei

worked five and one-half days per week was incorrect; (2) the

4 Xi Chen testified that Ruby Asian Fusion was open between 11:30

am and 3:00 pm and between 4:30 pm and 9:30 pm on Mondays,

Tuesdays, Wednesdays, and Thursdays, (Tr. 95:20-22); between

11:30 am and 3:00 pm and between 4:30 pm and 10:30 pm on

Fridays, (Tr. 95:12-19; Ruby Asian Fusion Menu, Pl. Ex. 4, D.E.

79-4); between 4:30 pm and 9:30 pm on Sundays, (Tr. 67:15-20);

and though she did not testify to the restaurant’s hours on

Saturdays, she claimed that the menu otherwise correctly

reported the hours, which on Saturdays were between 12:30 pm and

10:30 pm, (Tr. 95:1-4; Ruby Asian Fusion Menu). These hours

total fifty-eight and one-half per week.

statement in her affidavit that employees worked only four and

one-half days per week was incorrect; or (3) she accurately

affirmed that employees worked at Ruby Asian Fusion only four and

one-half days per week, she accurately suggested in her testimony

that Wei worked five and one-half days per week, and she falsely

denied that Wei worked one of his five and one-half days per week

at Ruby Sushi in Plainview. Considering Wei’s credible testimony,

the third explanation is most plausible.

Finally, the Court did not find Wang to be a credible

witness. Testifying about another issue, he stated that he learned

of the existence of Miyama in 2014. (Tr. 46:18-47:8.)

Additionally, in 2017, he submitted an affidavit to the Court

providing that he did not “know who Mu Jin Chen is.” (Wang Aff.,

Pl. Ex. 10, D.E. 79-10, ¶ 6(e); see Tr. 48:17-49:1.) However,

when pressed at trial, he testified that he had met Mu Jin Chen in

2008. (Tr. 48:24-49:18.) He testified further that he bought Mu

Jin Chen’s restaurant, Miyama, in 2008, (Tr. 54:3-15), but claimed

that he only learned Mu Jin Chen’s name during an unrelated lawsuit

in 2014, (see Tr. 46:21-47:8, 48:21-49:1, 54:8-11). According to

Wang, he “didn’t need to know” Mu Jin Chen’s name when they

negotiated and completed the sale of the restaurant in 2008, so he

did not learn the name at that time. (Tr. 49:10-15, 54:8-18.) In

summary, according to Wang, in 2008, he bought a restaurant--the

name of which he did not know--from a man whom he had met but whose

name he did not know; in 2014, he learned the names of the

restaurant and the man (Miyama and Mu Jin Chen, respectively); and

in 2017, he affirmed to the Court that he did not “know who Mu Jin

Chen is.” This testimony both strains belief and contradicts

itself. As a result, the Court does not credit Wang’s testimony

regarding his relationship with Wei and whether Wei worked at Ruby

Sushi.

Accordingly, the Court finds that Wei worked four and

one-half days per week at Ruby Asian Fusion in Woodbury and one

day per week at Ruby Sushi in Plainview.

ITI. Wei’s Hours

Wei testified that he worked fifty-four hours per week.

(Tr. 9:19-24, 19:8-10.) Xi Chen testified that he worked no more

than fifty hours per week, (Tr. 101:12-23), though she admitted

that she estimated his hours based on the restaurant’s schedule

and that she did not keep records of the hours he worked,

(Tr. 75:13-76:20).

“Where an employer fails to maintain adequate or

accurate records of its employees’ hours, the employee need only

‘oroduce[ ] sufficient evidence to show the amount and extent of

[his or her] work as a matter of just and reasonable inference.’”

Pineda v. Frisolino, Inc., No. 15-CV-3774, 2017 WL 3835882, at *3

(S.D.N.Y. Aug. 29, 2017) (quoting Anderson v. Mt. Clemens Pottery

Co., 328 U.S. 680, 687, 66 S. Ct. 1187, 1192, 90 L. Ed. 1187

(1946)) (alterations in original). This is not a high burden and

may be met by the employee’s estimates of the hours he worked.

Id. “The burden then shifts to the employer to come forward with

evidence of the precise amount of work performed or with evidence

to negative the reasonableness of the inference to be drawn from

the employee’s evidence.” Id. (quoting Anderson, 328 U.S. at 687-

88, 66 S. Ct. at 1192).

Applying this framework, the Court concludes that Wei

worked from 11:00 am to 3:00 pm and from 4:30 pm to 9:30 pm three

days per week between Mondays and Thursdays (with one day off);

from 11:00 am to 3:00 pm and 4:30 pm to 10:30 pm on Fridays; from

12:00 pm to 10:30 pm on Saturdays; and from 4:00 pm to 9:30 pm on

Sundays, for a total of fifty-three hours per week. While the

Court credits Wei’s testimony about his hours, it also credits Xi

Chen’s testimony regarding the hours that Ruby Asian Fusion

operated. (Tr. 67:15-20, 95:1-22.) They largely accord with the

hours listed on restaurant’s menu, (Ruby Asian Fusion Menu), and

her explanation regarding her later-than-scheduled openings on

Sundays rang true, (Tr. 95:5-11). However, her testimony that Wei

began working at the same time the restaurant opened for business

was not credible, since the Court finds it unlikely that kitchen

workers like Wei, (Tr. 15:13-22), would be expected to begin work

at the same time the restaurant opened. Wei’s testimony reflects

a more likely scenario, that employees began working a half hour

before the restaurant opened. (Tr. 9:19-24, 19:8-10; see Ruby

Asian Fusion Menu.)

IV. Wei’s Pay

Each week, Wei was paid $700 in cash for his work. (Tr.

18:1-8; Tr. 63:17-21.) He was never given weekly payroll wage

statements, (Tr. 18:21-19:3; Tr. 73:19-25, 100:6-8), or a wage

notice upon hiring (or thereafter), (Tr. 15:23-16:5, 19:18-21;

Tr. 99:9-14).

Xi Chen testified that she determined Wei’s rate of pay.

(Tr. 64:1-20.) According to Xi Chen, she came up with the rate of

$700 per week after asking friends who also own restaurants how

much they pay their employees. (Tr. 78:2-20.) She testified that

after talking to her friends about an acceptable rate of pay, she

obtained additional information about minimum wage and overtime

compensation from unspecified websites and “the news.”

(Tr. 78:23-79:18.) She also testified that she sometimes

determined salaries based on information from employment agencies.

(Tr. 78:6-8.)

Vv. Wei’s Employers

As discussed above, the Court credits Wei’s testimony

that he worked at both Ruby Sushi and Ruby Asian Fusion. The

parties disagree as to whether Xi Chen or Wang was responsible for

Wei’s employment at the restaurants.

First, the parties dispute whether Xi Chen or Wang hired

Wei and how she or he did so. According to Wei, he learned from

a job post on a website that a Long Island restaurant was searching

for a kitchen chef. (Tr. 6:25-7:21.) The post did not identify

the name or address of the restaurant, giving only a phone number.

(Tr. 7:22-8:2.) He called the restaurant, and the “male boss,”

whom Wei later learned was Wang, answered the phone. (Tr. 8:12-

9:3, 14:14-19.) Wei and Wang discussed Wei’s schedule and salary.

(Tr. 9:9-10:4.)

According to Wang, he did not hire Wei or speak with him

by phone, and he only knows Wei because he sometimes saw him at

his wife’s restaurant. (Tr. 42:10-43:23.)

According to Xi Chen, Wang did not hire Wei; Xi Chen

hired him after finding him through a Flushing, New York employment

agency called When Hua. (Tr. 61:18-20, 62:3-13, 72:11-13, 76:21-

22.) She discovered the agency in a newspaper and called it,

though she could not remember the names of any employees with whom

she spoke. (Tr. 77:3-15.) Later, however, Xi Chen testified that

Wei “came to our store [and] asked for work.” (Tr. 79:8-9.) This

appears to contradict her testimony that an agency connected them

and to corroborate Wei’s testimony that he called the restaurant

in response to a job posting.

Based on the parties’ demeanors at trial and the fact

that Wei, overall, was a more credible witness, the Court accepts

Wei’s testimony on this point. Thus, the Court finds that Wang

hired Wei and dictated his schedule and salary.

Second, the parties dispute who controlled the

conditions of Wei’s employment. According to Wei, on his first

day of work, he met with Wang to discuss his job responsibilities.

(Tr. 14:20-15:22.) Wang told Wei that he would be working at both

restaurants, with his Tuesdays spent at Ruby Sushi in Plainview

and the other four and one-half workdays spent at Ruby Asian Fusion

in Woodbury. (Tr. 16:6-17:2.) Wei believed Wang “manage[d] both

locations.” (Tr. 25:16-24.) Wang spent most of his time at Ruby

Asian Fusion in Woodbury (nominally, Xi Chen’s restaurant), and

only some time at Ruby Sushi in Plainview (nominally, Wang’s

restaurant). (Tr. 24:7-15, 38:10-15.) Wang paid him $700 in cash

once per week for his work at both restaurants. (Tr. 17:22-18:10.)

While Wei insisted during direct examination that no one except

Wang paid him his weekly wages, (Tr. 18:17-18), he admitted during

cross-examination that Xi Chen sometimes paid him, (Tr. 23:25-

24:1). Curiously, he did not mention Xi Chen at all during direct

examination, though he acknowledged on cross-examination that she

was one of his bosses, she sometimes told him “what to do,” and

she operated one of the restaurants when Wang was at the other.

(Tr. 23:12-24:6, 26:4-11.) Wang terminated Wei’s employment with

both restaurants. (Tr. 19:22-20:15.)

Wang denied managing Ruby Asian Fusion, paying Wei, and

firing Wei. (Tr. 41:22-42:9, 43:18-23.)

According to Xi Chen, she came to an agreement with Wei

about what he would be paid each week, and she paid his salary.

(Tr. 61:21-22, 63:12-18.) She fired him because he “play[ed] with

his phone during his work hours. He ma[de] a lot of mistakes when

delivering all the meals. Sometimes he was in a daze and we did

not know what he was thinking about.” (Tr. 67:2-8.)

While Wei’s initial refusal to acknowledge that he

sometimes worked for and was paid by Xi Chin undermined his

credibility, the Court otherwise accepts his testimony regarding

his employment. His testimony on other points came across as

spontaneous and truthful, and his account of his employment at

Ruby Sushi and Ruby Asian Fusion accords with the Court’s other

factual findings. Thus, based upon the relevant testimony and

credibility of the witnesses, the Court finds that Wang was largely

responsible for managing Wei’s work and paying him, though Xi Chen

had the authority to--and sometimes did--perform those tasks.

Additionally, the Court finds that Wang fired Wei.

VI. Facts Regarding the Relationship Between Ruby Asian Fusion

and Ruby Sushi

The Court notes several facts that reflect a close

relationship between Ruby Asian Fusion and Ruby Sushi. First, the

Ruby Asian Fusion menu and the Ruby Sushi menu are highly similar

12

in their layout, available dishes, prices, available discounts,

hours (for example, each has separate lines for the periods during

which each restaurant is closed in the afternoon from Monday

through Friday), and overall design. (Compare Ruby Asian Fusion

Menu with Ruby Sushi Menu, Pl. Ex. 5, D.E. 79-5.) Moreover, each

lists “Copyright 2012 Ruby Restaurant. All Rights Reserved.” on

the bottom of its last page, and each includes what seems to be

the same image of a menu item on its last page, though the image

is larger on Ruby Sushi’s menu. On cross-examination, counsel

asked Xi Chen about the fact that “both menus on the first page

offer 15 percent of[f] first online order,” and she responded,

“[n]owadays a lot of restaurants do that. What’s the problem?”

(Tr. 84:10-14.) Xi Chen testified that she hired “a printing place

in Flushing,” New York to design her menu. (Tr. 82:14-83:1.) She

testified further that she thought Wang used the same printing

company for his restaurant’s menu. (Tr. 83:2-5.) Xi Chen’s

defensiveness when confronted with similarities between the menus

led the Court to believe that the restaurants were more intimately

involved than Xi Chen and Wang represented.

Second, the same stylized font is used for “Ruby” in

“Ruby Asian Fusion” on the restaurant’s awning, (Ruby Asian Fusion

Awning, Pl. Ex. 3, D.E. 79-3), and for “Ruby” in “Ruby Sushi” on

the Ruby Sushi menu, (Ruby Sushi Menu). When asked about this

fact on cross-examination, Xi Chen responded, “[y]es, we found the

same design company, that’s why the fonts are the same. What’s

the problem with that?” (Tr. 98:6-10.) Again, Xi Chen’s

defensiveness caused the Court to conclude that the restaurants

were more closely connected than she and Wang testified.

Third, Xi Chen testified that Wang gave her advice when

she opened the restaurant, and that “sometimes [they] will talk

about” the restaurant, such as “how to bring up the business and

where to buy fish and the fish would be more fresh.” (Tr. 80:15-

22.)

Fourth, when discussing the operation of her restaurant

and aspects of Wei’s employment, Xi Chen used the pronoun “we”

instead of “I.” For instance, when asked about what measures she

took to ensure that she paid Wei correct overtime wages, she

responded, “[w]e just gave him money, nothing else.” (Tr. 92:22-

93:14.) When discussing menu changes, she testified, “[s]ometimes

there is some kind of change, but we didn’t, like, change it

immediately. So we’ll post the new hours in front of her [sic]

store.” (Tr. 102:20-25.) She also used “we” when discussing the

basis for arriving at Wei’s rate of pay, (Tr. 78:4-10, 79:3-7),

when discussing her hiring of employees through an agency,

(Tr. 99:15-22), and when discussing the need to close Ruby Asian

Fusion, (Tr. 58:13-18). Considering the above, the Court

concludes that Xi Chen’s use of “we” when discussing the operation

of her restaurant suggests that she and someone else--her husband-

-operated her restaurant jointly.

Fifth, Xi Chen testified that with the help of an

attorney, she prepared and filed all the paperwork necessary to

incorporate her restaurant. (Tr. 80:23-81:6.) She acknowledged

that the addresses listed for service of process with the New York

State Department of State for W Asian Cuisine (which operates as

Ruby Sushi) and Ruby Asian Cuisine (which operates as Ruby Asian

Fusion) are the same--76-70 47th Avenue, Elmhurst, New York, 11373.

(W Asian Cuisine NYS DOS Entry, Pl. Ex. 7, D.E. 79-7; Ruby Asian

Cuisine NYS DOS Entry, Pl. Ex. 8, D.E. 79-8.) Xi Chen explained

that the address “is [her] house residential address. ...

Because we live together so it’s the same address.” (Tr. 81:19-

82:3.)

CONCLUSIONS OF LAW

Wei asserts claims for (1) unpaid overtime wages under

the FLSA and NYLL, (2) spread-of-hours pay under the NYLL,

(3) Defendants’ failure to provide a wage notice under the NYLL,

and (4) Defendants’ failure to provide wage statements under the

NYLL. (See JPTO § VI.; Wei Post-Trial Br., D.E. 84, at ECF pp. 4-

10.)

I. Unpaid Overtime Wages

“The FLSA specifies that an employer must pay employees

who work in excess of forty hours during a workweek for the excess

15

hours ‘at a rate not less than one and one-half times the regular

rate at which he is employed,’” and the NYLL requires the same.

Frisolino, 2017 WL 3835882, at *10 (quoting 29 U.S.C. §$ 207(a) (1))

(citing 12 N.Y.C.R.R. § 142-2.2); see 12 N.Y.C.R.R. § 146-1.4. To

recover unpaid overtime, Wei must establish that he “was the

defendant’s employee, that h[is] work involved inte[r]state

activity, and that [ ]he worked hours for which [ ]Jhe did not

receive . . . overtime wages.”° Pineda v. Tokana Cafe Bar

Restorant Inc., No. 16-CV-1155, 2017 WL 1194242, at *2 (S.D.N.Y.

Mar. 30, 2017) (citations omitted).

A. Wei’s Employers

“The FLSA broadly defines ‘employer’ as ‘any person

acting directly or indirectly in the interest of an employer in

relation to an employee,’ and likewise ‘defines the verb “employ”

expansively to mean “suffer or permit to work.”’” Frisolino, 2017

WL 3835882, at *7 (quoting Nationwide Mut. Ins. Co. v. Darden, 503

U.S. 318, 326, 112 S. Ct. 1344, 1350, 117 L. Ed. 2d 581 (1992)).

Each of a plaintiff’s employers “is jointly and severally liable

for all back wages and liquidated damages.” Id. (quoting Moon v.

Kwon, 248 F. Supp. 2d 201, 234 (S.D.N.Y. 2002)).

° Courts analyze FLSA and NYLL wage and hour claims in the same

way, “except that the NYLL does not require plaintiffs to show a

nexus with interstate commerce or a minimum amount of annual

sales.” Tokana, 2017 WL 1194242, at *2 n.2 (citing Alvarez v.

Michael Anthony George Const. Corp., 15 F. Supp. 3d 285, 291

(E.D.N.Y. 2014)).

16

Even though Wei was listed as an employee of only Ruby

Asian Cuisine, (Ruby Asian Cuisine Payroll, Defs. Ex. C, D.E. 81,

at ECF p. 12), Wei argues that both W Asian Cuisine (Ruby Sushi)

and Ruby Asian Cuisine (Ruby Asian Fusion) are liable for overtime-

wage violations because they operated as a “single integrated

enterprise.” (Wei Post-Trial Br. at ECF pp. 6-7.) Under this

theory of liability, “‘where two nominally separate entities’--

such as ‘separate corporations under common ownership and

management’--‘are actually part of a single integrated

enterprise,’ employees ‘may impose liability for certain

violations of employment law not only on the[ir] nominal employer

but also on another entity comprising part of the single integrated

employer.’” Draskovic v. Oneota Assocs., LLC, No. 17-CV-5085,

2019 WL 783033, at *6 (E.D.N.Y. Feb. 21, 2019) (alteration in

original) (quoting Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d

193, 198 (2d Cir. 2005)). While the “Second Circuit has not

expressly ruled on the question” of whether this doctrine should

be applied in FLSA cases, “district courts in this circuit have

regularly applied the doctrine in this context.” Id. (citations

omitted). Thus, the Court applies the doctrine here.

Under the single-integrated-employer standard, “‘courts

consider (1) interrelation of operations, (2) centralized control

of labor relations, (3) common management, and (4) common

ownership or financial control.’” Id. (quoting Juarez v. 449

Rest., Inc., 29 F. Supp. 3d 363, 367 (S.D.N.Y. 2014)). “With

respect to restaurants in particular, ‘facts that go to the

existence of a single, integrated enterprise include common décor,

name, menu and marketing; the use of the same employees at multiple

locations; the transfer of items between restaurants; use of the

same central payroll office, common storage space and leases; and

the distribution of common employee guidelines and procedures

across different businesses.’” Marin v. APU Foods Corp., No. 17-

CV-3224, 2018 WL 1462236, at *2 (E.D.N.Y. Feb. 26, 2018) (quoting

Khereed v. W. 112th St. Rest. Grp. LLC, No. 15-CV-1363, 2016 WL

590233, at *4 (S.D.N.Y. Feb. 11, 2016)), R&R adopted, 2018 WL

1459488 (E.D.N.Y. Mar. 23, 2018).

The Court concludes that Wang and Xi Chen operated Ruby

Sushi and Ruby Asian Fusion as a single, integrated enterprise.

To the first three factors of the single-integrated-enterprise

standard, Wang’s and Xi Chen’s restaurants had interrelated

operations, centralized control of labor relations, and common

management. Wang and Chen each shared management authority over

both restaurants, with one of them managing one restaurant while

the second managed the other restaurant. Additionally, they shared

at least one employee: Pursuant to Wang’s instructions, Wei worked

at both restaurants, spending four and one-half days per week in

the kitchen of Ruby Asian Fusion and one day per week performing

the same duties in the kitchen of Ruby Sushi. Wei was paid a

single amount of money for his work at both restaurants; sometimes

Wang paid him, and sometimes Xi Chen paid him. Similarly,

sometimes Wang supervised his work, and sometimes Xi Chen “t[old]

[him] what to do.” (Tr. 23:23-24.) When Wang fired Wei, Wei

stopped working at both restaurants. (Tr. 20:2-15.) The Court

also notes the menus’ marked similarities in style, layout, and

content; the “15% OFF for First Online Order” offer on each menu;

the restaurants’ shared use of “Ruby”; the distinctive font that

both restaurants used for “Ruby”; and Xi Chen’s defensive reaction

to questions regarding those similarities. Finally, the Court

notes Xi Chen’s persistent use of “we” when referring to her

restaurant’s operations, which as discussed above, leads the Court

to conclude that she operated the restaurants jointly with Wang.

Regarding the fourth factor of the single-integrated-

enterprise standard--the restaurants’ joint ownership or financial

control--on paper, Wang owned Ruby Sushi and Xi Chen owned Ruby

Asian Fusion. However, Wang and Xi Chen are married to each other,

each of their restaurants served the same type of food, they

discussed with each other “how to bring up the business” and where

to buy ingredients, and they each listed their shared residence as

their respective restaurant’s address for service of process.

Further, even though Xi Chen was listed as the owner of Ruby Asian

Fusion in Woodbury, (see JPTO §§ VII.3-4), Wang spent more of his

time at Ruby Asian Fusion in Woodbury than he did at “his”

restaurant, Ruby Sushi in Plainview, (Tr. 24:7-15). These facts

reflect the couple’s shared ownership or financial control of the

restaurants.

Additionally, the Court finds that Wang and Xi Chen were

each an “employer” of Wei. In deciding whether an individual

defendant is an “employer,” “[t]he Second Circuit has instructed

district courts to look to ‘whether the alleged employer possessed

the power to control the workers in question, with an eye to the

“economic reality” presented by the facts of each case.’”

Draskovic, 2019 WL 783033, at *7 (E.D.N.Y. Feb. 21, 2019) (quoting

Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999)).

Under the formal-control test, “the relevant factors include

‘whether the alleged employer (1) had the power to hire and fire

the employees, (2) supervised and controlled employee work

schedules or conditions of employment, (3) determined the rate and

method of payment, and (4) maintained employment records.’”

Frisolino, 2017 WL 3835882, at *7 (quoting RSR, 172 F.3d at 139).

“That said, ‘[n]o one of the four factors standing alone is

dispositive. Instead, the “economic reality” test encompasses the

totality of circumstances. . . .’” Draskovic, 2019 WL 783033, at

*7 (alterations in original) (quoting RSR, 172 F.3d at 139)).

As discussed, Wang hired Wei, fired him, and set his

schedule. At times, he paid Wei’s wages and supervised his work.

Moreover, according to the joint stipulations of fact from the

parties’ JPTO, he “manages and makes all business decisions” on

behalf of Ruby Sushi, “including but not limited to the amount in

salary the employee will receive, and the number of hours employees

will work.” (JPTO § VII. 5 & 6). Accordingly, Wang was Wei’s

“employer” under the formal-control test.

Additionally, at times, Xi Chen paid Wei and supervised

his work. She managed one restaurant while Wang managed the other.

Further, the parties stipulated that Xi Chen “manage[d] and ma[de]

all business decisions” on behalf of Ruby Asian Fusion, “including

but not limited to the amount in salary the employee will receive,

and the number of hours employees will work.” (JPTO § VII. 3 & 4).

Xi Chen also testified to deciding what wage Wei should be paid,

tracking employees’ hours (though she did not keep records of those

hours), and firing Wei. While the Court did not credit her

testimony that she fired Wei, the Court has no reason to doubt

that she had the power to do so. Considering these facts, the

Court finds that Xi Chen was also Wei’s “employer” under the

formal-control test.

In sum, the Court finds that under the FLSA and NYLL,

Ruby Asian Cuisine (Ruby Asian Fusion) and W Asian Cuisine (Ruby

Sushi) were a single, integrated enterprise that employed Wei and

that Xi Chen and Wang were each an employer of Wei.

B. FLSA’s Interstate Commerce Requirement

Having found that Ruby Sushi and Ruby Asian Cuisine were

a single, integrated enterprise that, along with Wang and Xi Chen,

employed Wei, the Court turns to whether Wei’s employment is

covered by the FLSA. The FLSA’s overtime requirements “provide

coverage to those ‘employees who .. . [are] engaged in commerce

or in the production of goods for commerce, or [are] employed in

an enterprise engaged in commerce or in the production of goods

for commerce.’” Thompson v. Hyun Suk Park, No. 18-CV-0006, 2019

WL 1299194, at *4 (E.D.N.Y. Mar. 5, 2019) (quoting Shim v.

Millennium Grpo., No. 08-CV-4022, 2009 WL 211367, at *2 (E.D.N.Y.

Jan. 28, 2009)}), R&R adopted, 2019 WL 1298563 (E.D.N.Y. Mar. 20,

2019) (alterations in original). Wei argues that he is covered

under the second category, which is commonly known as “enterprise”

coverage. See id. “To establish enterprise coverage, the

plaintiff must demonstrate that he was employed by an enterprise

which is defined under the FLSA as one wherein ‘(1) employees

engaged in commerce or in the production of goods for commerce, or

employees handled, sold, or otherwise worked on goods or materials

that have been moved in or produced for commerce by any person,

and (2) [that] has no less than $500,000 in annual gross volume of

sales made or business done.’” Id. (quoting Locke v. St.

Augustine’s Episcopal Church, 690 F. Supp. 2d 77, 84 (E.D.N.Y.

2010)) (alteration in original).

22

The parties have stipulated to the first factor, (JPTO

§ VII.2), but they dispute whether Wei can satisfy the second.

Ruby Asian Fusion’s 2016 tax return reflects gross revenues of

$418,989. (Ruby Asian Fusion 2016 Tax Return, Def. Ex. D, D.E.

81-1.) Defendants argue that since Ruby Asian Fusion--which they

aver was the only restaurant at which Wei worked--did not earn

$500,000 in annual gross sales during Wei’s employment, there is

no enterprise coverage under the FLSA. (Defs. Post-Trial Br.,

D.E. 87, at 7-8.) Wei argues that because Ruby Sushi and Ruby

Asian Fusion were a single, integrated enterprise, the Court should

aggregate their gross annual revenues, which almost certainly

would exceed the $500,000 threshold and satisfy the second

enterprise-coverage requirement. (Wei Post-Trial Br. at 6-7.)

There is no indication of Ruby Sushi’s gross annual sales during

the time Wei was employed.

As discussed above, the Court finds that Ruby Asian

Fusion and Ruby Sushi were two restaurant locations that made up

a single, integrated enterprise--that is, they were a single

employer for FLSA purposes. It follows that their gross annual

sales may be combined to determine whether they satisfy the

$500,000 enterprise-coverage threshold. See Draskovic, 2019 WL

783033, at *7 (aggregating employees of defendant corporations

that formed a single, integrated enterprise and finding them to be

a “large employer” under the NYLL for minimum wage purposes).

Though there is no evidence of Ruby Sushi’s revenues in 2016--when

Defendants employed Wei--Ruby Asian Fusion’s revenues that year

totaled $418,989, or $81,011 less than the $500,000 threshold.

(Ruby Asian Fusion 2016 Tax Return.) Given that Ruby Sushi had

been open years longer and was more financially healthy than Ruby

Asian Fusion, which Xi Chen testified has since closed, it 1s more

likely than not that Ruby Sushi earned more than the $81,011

shortfall during 2016. Thus, Wei has satisfied the second element

of enterprise coverage and the FLSA applied to his employment with

Defendants.®

Cc. Overtime Hours

The FLSA and regulations issued pursuant to the NYLL

both require that “an employer must pay employees who work in

excess of forty hours during a workweek for the excess hours ‘at

a rate not less than one and one-half times the regular rate at

which he is employed.’” Frisolino, 2017 WL 3835882, at *10

(quoting 29 U.S.C. § 207(a) (1)) (citing 12 N.Y.C.R.R. § 142-2.2).

“*To establish liability under the FLSA on a claim for unpaid

6S Even if Wei were unable to satisfy the threshold, the result

would remain the same: The Court would exercise supplemental

jurisdiction over Wei’s state law claims and reach the same

results under New York law. Salustio v. 106 Columbia Deli

Corp., 264 F. Supp. 3d 540, 550-53 (S.D.N.Y. 2017) (holding

after bench trial that failure to satisfy $500,000 enterprise-

coverage threshold did not divest court of subject matter

jurisdiction, dismissing FLSA claims for failure to meet

threshold, and exercising supplemental jurisdiction over NYLL

claims).

24

overtime, a plaintiff must prove that he performed work for which

he was not properly compensated, and that the employer had actual

or constructive knowledge of that work.’” Id. (quoting Kuebel v.

Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011).

Based on the Court’s findings of fact, Defendants

violated the FLSA and NYLL by failing to pay overtime wages to

Wei. Wei received a fixed salary of $700 per week for his fifty-

three hours of work, and there was no testimony or evidence that

the parties had ever discussed Wei’s hourly or overtime rates of

pay or how his compensation would be calculated. Thus, he was not

paid one and one-half times his regular rate of pay for hours

worked over forty each week.

The Court turns to calculating damages. The first step

of this calculation is to determine Wei’s regular rate of pay.

“Under the FLSA, the ‘regular hourly rate of pay of an employee is

determined by dividing his total remuneration for employment

(except statutory exclusions) in any workweek by the total number

of hours actually worked . . . .’” Frisolino, 2017 WL 3835882, at

*10 (quoting 29 C.F.R. § 788.109). Under the NYLL, the regular

rate is calculated “by dividing the employee’s total weekly

earnings, not including exclusions from the regular rate, by the

lesser of 40 hours or the actual number of hours worked by that

employee during the work week.” 12 N.Y.C.R.R. § 146-3.5 (emphasis

added). “In actions to recover unpaid minimum wages and overtime

pay under both the FLSA and the NYLL, Plaintiffs may recover under

whichever statute provides the greater relief.” Frisolino, 2017

WL 3835882, at *11 (citations omitted). Here, the NYLL allows for

the greater recovery because Wei’s regular rate of pay will be

determined by dividing his weekly wage by forty hours, rather than

by the fifty-three hours he agreed to work each week. Thus, the

Court calculates damages pursuant to the NYLL.

As discussed, the Court finds that Wei was paid $700 per

week for each of his fifty-three-hour workweeks between August 15,

2016 and December 20, 2016 (eighteen weeks and one day, or 18.14

weeks). Wei’s regular rate of pay under the NYLL is $700/40 hours,

or $17.50 per hour. His overtime rate of pay is 1.5 x $17.50 per

hour, or $26.25 per hour. Including an overtime premium, his

proper weekly wage was $17.50 x 40 for the first forty hours--

$700--plus $26.25 x 13 for his thirteen overtime hours--$341.25--

for a total of $1,041.25 per week. Therefore, the amount of

damages for unpaid overtime wages is $341.25 for each week Wei

worked, or $341.25 x 18.14, for a total of $6,190.28.

D. Liquidated Damages

“Under the FLSA, a plaintiff is presumptively entitled

to ‘liquidated damages equal in amount to actual damages,’ unless

‘the employer shows that, despite its failure to pay appropriate

wages, it acted in subjective “good faith” with objectively

“reasonable grounds” for believing that its acts or omissions did

26

not violate the FLSA.’” Draskovic, 2019 WL 783033, at *13 (quoting

Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 150 (2d

Cir. 2008)). “‘[G]ood faith’” . . . “‘requires that an employer

first take active steps to ascertain the dictates of the FLSA, and

then move to comply with them.’” Id. (quoting Reich v. S. New

Eng. Telecomms. Corp., 121 F.3d 58, 71 (2d Cir. 1997)). “As a

result, the employer’s ‘burden is a difficult one, with double

damages being the norm and single damages the exception.’” Id.

(quoting RSR, 172 F.3d at 142).

“NYLL also provides for liquidated damages ‘unless the

employer proves a good faith basis for believing that its

underpayment of wages was in compliance with the law.’” Valle v.

Gordon Chen’s Kitchen LLC, 254 F. Supp. 3d 665, 678 (S.D.N.Y. 2017)

(quoting N.Y. Lab. L. § 198(1-a)). The FLSA’s and the NYLL’s

liquidated damages standards mirror each other and “cover the same

ground.” See Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018).

Here, Defendants are liable for liquidated damages

because they have not presented a good-faith basis or “reasonable

grounds for their belief that they were not in violation” of the

overtime-wage requirements. See Valle, 254 F. Supp. 3d at 678.

Xi Chen testified to her efforts to pay proper wages, which

consisted of talking to her friends who own restaurants about what

wages they paid their employees and reading unspecified websites

and “the news” about minimum wage and overtime requirements.

(Tr. 78:1-79:18.) These actions do not demonstrate a good-faith

basis or a reasonable ground for belief that she acted according

to the law. Moreover, Defendants’ failure to provide a wage notice

or wage statements describing Wei’s regular and overtime rates of

pay and their failure to keep records of hours worked supports the

Court’s finding that Defendants did not have a good-faith basis or

reasonable ground for their belief that they were complying with

labor laws.

Because “the NYLL and FLSA [do] not allow[ ] duplicative

liquidated damages for the same course of conduct,” Wei is due

only one award of liquidated damages for unpaid overtime wages.

See Rana, 887 F.3d at 123. The NYLL allows for an award of

prejudgment interest in addition to liquidated damages, N.Y. Lab.

L. § 198(1-a), but the FLSA does not, Frisolino, 2017 WL 3835882,

at *13. Given that fact and that “Plaintiffs may recover under

whichever statute provides the greater relief,” id. at *11

(citations omitted), and considering that the Court has awarded

Wei unpaid overtime wages under the NYLL, the Court awards Wei

liquidated damages under the NYLL in the amount of $6,190.28, one-

hundred percent of his unpaid overtime wages. See Rana, 887 F.3d

at 123 (“The defendants did not argue the point, and pursued a

position of all or nothing; so, to be prudent, the plaintiff should

receive the larger of the two liquidated damages awards,” which is

available under the NYLL.)

Spread-of-Hours Pay

Wei is also entitled to spread-of-hours pay. “New York

law requires, separate from any .. . overtime award, that ‘an

employee whose workday is longer than ten hours must receive one

hour’s pay at the basic minimum hourly wage rate.’” Valle, 254 F.

Supp. 3d at 675 (quoting Galeana v. Lemongrass on Broadway Corp.,

120 F. Supp. 3d 306, 319 (S.D.N.Y. 2014)); see 12 N.Y.C.R.R. § 146-

1.6. Here, as discussed, Wei’s workday exceeded ten hours five

days per week during his time working for Defendants. (See supra

Findings of Fact § III.) Based on his schedule, the Court

calculates that Wei’s workday exceeded ten hours ninety-one times

during his tenure. The minimum wage rate during Wei’s employment

in 2016 was $9.00 per hour. N.Y. Lab. L. § 652(1); (JPTO § VII,

Stip. of Law 4.) Thus, Wei is awarded spread-of-hours pay

calculated by multiplying the number of days his workday exceeded

ten hours by the applicable minimum wage rate--91 x $9.00--which

totals $819.00.

Additionally, as discussed above, the NYLL provides for

liquidated damages for a violation unless the employer can show

that it had a good-faith basis for its belief that it complied

with the law. Defendants have not established a basis for any

belief that they were not required to make spread-of-hours

payments. See Valle, 254 F. Supp. 3d at 278. Therefore, Wei is

29

awarded liquidated damages in an amount equal to his unpaid spread-

of-hours pay, $819.00.

III. Wage Notice and Wage Statement Violations

Under New York law, at the time of hiring, employers

must provide employees with a wage notice. N.Y. Lab. L.

$ 195(1) (a). If an employee is not provided with this notice

within ten business days of his first day of work, he “may

recover . . . damages of fifty dollars for each work day that the

violations occurred or continue to occur, but not to exceed a total

of five thousand dollars.” N.Y. Lab. L. § 198(1-b). Defendants

never provided Wei with a wage notice. Based on Wei’s schedule

and dates of employment, the Court calculates that Wei worked 110

days. He is awarded the statutory maximum of $5,000 for

Defendants’ failure to provide him with a wage notice.

Additionally, under New York Labor Law § 195(3), an

employer must “furnish each employee with a statement with every

payment of wages” that lists, among other things, “the dates of

work covered by that payment of wages; . . . rate or rates of pay

and basis thereof . . .; gross wages; . . . and net wages.” N.Y.

Lab. L. § 195(3). Failure to provide wage statements to an

employee allows him to recover “damages of two hundred fifty

dollars for each work day that the violations occurred or continue

to occur, but not to exceed a total of five thousand dollars.”

N.Y. Lab. L. § 198(1-d). While “[t]he statute states that the

30

plaintiff is entitled to $ 250 per ‘work day’ in which the

violation occurs ..., it is obvious that the intent of the

statute was to only count work days on which wages are actually

paid, and not to count work days in between pay periods.” Haifeng

Xie v. Sakura Kai I Inc., No. 17-CV-7509, 2019 WL 1568756, at *9

n.8 (E.D.N.Y. Apr. 11, 2019) (citations omitted); see Draskovic,

2019 WL 783033, at *16 (calculating damages based on number of pay

periods). Defendants never provided Wei with a wage statement.

Since he was paid weekly, Wei is awarded $250 per week for each of

the nineteen pay periods he worked, for a total of $4,750.

IV. Prejudgment Interest

Under New York law, prejudgment interest--in addition to

liquidated damages--may be awarded on a plaintiff’s unpaid wages.

N.Y. Lab. L. § 198(1-a). “‘*Courts applying the NYLL in wage-and-

hour cases often choose the midpoint of the plaintiff’s employment’

in computing prejudgment interest.” Sakura Kai I Inc., 2019 WL

1568756, at *l1l; see N.Y. C.P.L.R. SOO1(b). The prejudgment

interest rate is 9% per annum. N.Y. C.P.L.R. 5004; see Sakura Kai

IT Inc., 2019 WL 1568756, at *11.

As discussed, Wei worked from August 15, 2016 to

December 20, 2016, so the Court selects the midpoint date of

October 17, 2016 from which to calculate prejudgment interest.

Thus, the Court awards prejudgment interest of nine percent per

year running from October 17, 2016 through the date of entry of

31

judgment on the principal amount of $7,009.28, consisting of

$6,190.28 in unpaid overtime wages and $819.00 in unpaid spread-

of-hours pay.

V. Post-Judgment Interest

“Post-jJudgment interest is mandatory on awards in civil

cases.” Frisolino, 2017 WL 3835882, at *13 (quoting Schipani v.

McLeod, 541 F.3d 158, 165 (2d Cir. 2008)). Therefore, Wel is

awarded post-judgment interest calculated pursuant to 28 U.S.C.

§ 1961.

VI. Attorneys’ Fees and Costs

Wei requests leave to file a motion for attorneys’ fees.

(Wei Post-Trial Br. at 10.) His request is GRANTED, and his motion

shall be filed within fourteen (14) days of the date of entry of

judgment.

CONCLUSION

For the foregoing reasons, Cao’s claims against all

Defendants and Wei’s claims against Mu Jin Chen and Miyama, Inc.

are DISMISSED WITH PREJUDICE.

Xi Chen, Ming Hang Wang, W Asian Cuisine Inc., and Ruby

Asian Cuisine Inc. are jointly and severally liable to Wei for the

following amounts:

=

32

Wage Notice $5,000.00

Wage Statements $4,750.00

Pre-Judgment Interest of 9% per Year To be calculated by Clerk

Running from October 17, 2016 Through of the Court

Date of Entry of Judgment on Principal

Balance of $7,069.46

Total $23,768.56 + Interest

The Clerk of the Court is respectfully directed to

calculate the amount of prejudgment interest as of the date of

entry of judgment and enter judgment accordingly.

Wei shall file a motion for attorneys’ fees within

fourteen (14) days of the date of entry of judgment; Defendants’

opposition shall be filed within fourteen (14) days thereafter;

and Wei’s reply, if any, shall be filed within seven (7) days after

the filing of Defendants’ opposition.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: September 10 , 2019

Central Islip, New York