# Cao v. ABC Corp.

> District Court, E.D. New York · September 10, 2019

URL: https://www.frixlaw.com/law-library/cases/10302978

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 10, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10302978

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.
---------------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10302978. Public record. Not legal advice.