Labor & Employment Law Daily Wrap Up, WAGE-HOUR—CLASS ACTIONS—S.D.N.Y.: Employee denied certification of class action alleging restaurant made illegal wage deductions, (Feb 19, 2025)

By Ronald Miller, J.D.

While the employee marshalled evidence that meal credits were taken from certain employees, the question was whether the employees had meal credits taken improperly.

A restaurant employee was not entitled to class certification of FLSA and NYLL claims alleging that the employer illegally deducted wages from employees’ meal and transportation program, which allegedly drove their wages below the statutory minimum, ruled a federal district court in New York. The employee provided the court with nothing to determine that other employees suffered from the same improper wage deductions that he alleged. Accordingly, the employee failed to establish numerosity, commonality, and typicality with respect to non-managerial and non-exempt employees. Similarly, with respect to a putative driver class, the employee offered no evidence that would allow the court to determine that drivers were subject to a common policy that was used to deny them proper wages (Hong v. JP White Plains, Inc. dba Haiku Asian Bistro White Plains, No. 7:19-CV-05018 (NSR) (S.D.N.Y. Feb. 14, 2025)).

Meal program. The employee worked as a delivery driver for the employer, an Asian Bistro restaurant, from November 2015 to August 2016 and then again from February 2017 to May 2018. According to the employee, the employer operated a meal program, which entitled employees to a meal during their break in exchange for deductions of their wages. However, the employee claimed that the employer regularly required him to work through his break and still deducted wages for a meal break.

The employee also alleged that the employer used an automatic timer that clocked employees’ hours. This timer automatically deducted breaktime from the employees’ timesheets but did not account for whether the employee actually took his or her break during the shift. Allegedly, there was no way for employees to override the automatic timer and they had to self-report their breaks, or lack thereof, to the employer to correct their timesheets.

Transportation program. The employee further alleged that the employer operated a transportation program that similarly deducted employee wages in exchange for travel to the restaurant in the company car. According to the employee, he had wages deducted as part of this program even though he was asked to continue working while using the transportation program.

Class claims. On May 31, 2018, the employee filed his initial complaint. That complaint was amended on February 27, 2020. After the court dismissed certain defendants, the employee moved for conditional certification on August 20, 2021. On January 28, 2022, the court issued an opinion conditionally certifying a class comprising drivers but denying certification for all non-managerial employees.

On June 12, 2024, the employee filed a motion to certify a class comprising all non-managerial and non-exempt employees who were employed or are currently employed by the employer during the six years immediately preceding the initiation of this action. Specifically, the employee sought certification of his FLSA and NYLL claims regarding the employer’s alleged meal and transportation credit violations.

Meal breaks. The employee sought to certify the proposed class pursuant to Fed. R. Civ. P. 23. In support of his position, the employee argued that “defendants failed to accurately keep track of whether plaintiff and other workers that were involved in the meal break program actually in fact took their meal break.” As the employee counted it, there are 131 non-drivers who had wages deducted as part of the employer’s meal program from 2016 until 2023. He also tallied 44 drivers who had wages deducted as part of the employer’s meal program during the three-year collective period. Further, the employee argued that 75 percent of the employer’s workforce opted into the transportation program. On this basis, the employee urged that he satisfied the numerosity, commonality, and typicality requirements of Rule 23.

Non-managerial class. However, the court disagreed. The employee sought to certify a class of all non-managerial and non-exempt employees from the employer’s restaurant. While the employee marshalled evidence that meal credits were taken from certain of employees, the question was whether the employees had meal credits taken improperly. The employee offered no proof of that activity. It did not follow that, because meal credits were taken from other employees, and because the employee may have had improper deductions, this was a common policy of unlawful labor practices.

Moreover, the employer’s failure to keep better records also did not provide proof of improper deductions. Just because deductions were automatic did not mean that they were improper or went uncorrected as the employee claimed. If the deductions did, in fact, go uncorrected, it was the employee’s burden to come forward with evidence to demonstrate that. He failed to do so. Thus, the court was not provided with sufficient proof that there was a common policy of unlawful labor practices or that a sufficient number of employees were subject to the same treatment as the employee alleged.

The employee’s claims related to the employer’s transportation program fared no better. It did not follow that, because 25-30 percent of the employer’s workforce lived locally, the balance of the workforce opted into the transportation program. It also did not follow that, even if 75 percent did opt in, they also suffered from improper deductions. Because the employee provided the court with nothing to determine that other employees suffered from the same improper wage deductions that he alleged, he failed to establish numerosity, commonality, and typicality with respect to the non-managerial and non-exempt employees.

Driver class. Similarly, the employee offered no evidence that would allow the court to determine that drivers were subject to a common policy that was used to deny them proper wages. The employee only proved that the employer offered a meal program and transportation program of which employees availed themselves. The mere fact that there was a meal and transportation program that deducted wages automatically did not provide evidence that those deductions were denying employees their proper wages. Accordingly, the employee did not establish commonality and typicality with respect to the drivers.

Further, only four drivers opted into the class, as well as the employee, bringing the total count of drivers who alleged improper deductions to five. Accordingly, the employee failed to establish numerosity with respect to the drivers.

The case is No. 7:19-CV-05018 (NSR).

Judge: Román, N.

Attorneys: Aaron B. Schweitzer (Troy Law) for Yingcai Hong. Lewis Goldberg (Law Offices of Lewis Goldberg) for JP White Plains, Inc. dba Haiku Asian Bistro White Plains.

Companies: JP White Plains, Inc.; Haiku Asian Bistro White Plains

Cases: WageHour ClassActions MinimumWage WorkingTime NewYorkNews