Factual Issues Preclude Summary Judgment in Overtime Case

In Xiong Chen v. Weiqi Zhang, the Eastern District of New York recently denied both parties’ motions for summary judgment.

Plaintiff worked as a waiter for Andy’s Restaurant in Brooklyn and made $150 per week before tips.  There were no records detailing plaintiff’s employment, his weekly work schedule, the hours he worked, or the money he earned (including tips).

He sued under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL), alleging that defendant failed to pay him overtime and the “spread of hours” premium for each day he worked over 10 hours.

First, the court held that summary judgment was improper in light of “disputes over every material fact related to the FLSA and NYLL overtime premium claims and the spread of hours premium claim under the NYLL”.  

Specifically, these disputes concerned:

  • which years plaintiff actually worked for Andy’s,
  • how many days per week he worked,
  • how many hours per day he worked,
  • whether he was given breaks during his shifts, and
  • how much he actually received in tips for weekday lunches, weekday dinners, weekend lunches, and weekend dinners.

Additionally, it was unclear “whether Chen’s weekend half-day was the lunch or the dinner shift, and whether it varied from one week to the next.”

Second, the court held that fact issues existed as to whether chef (and named defendant) Bai Qiang Su was plaintiff’s “employer” under the FLSA and NYLL. It rejected defendant’s reliance on a stock certificate that did not show Su’s name, reasoning that “[a] thin record that merely demonstrates nonownership does not foreclose the possibility that Su is an ’employer.'”

Finally, the court rejected defendant’s argument that, based on plaintiff’s deposition testimony, plaintiff earned more than the required minimum. Defendants failed to draw “all justifiable inferences” in plaintiff’s favor, which (in the context of an FLSA analysis) “means using the lowest of Chen’s estimates of the hours and days he worked, and the wages and tips he earned.”