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Kwee Ling Tan v. Mr. Pi‟S Sushi

December 15, 2010


The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.



I. Introduction

Shao Zhen Chen, incorrectly sued as Shao Jian Chen and also known as Jeanette Chen ("Chen"), is one of three defendants in the within matter, a suit brought by plaintiff Kwee Ling Tan ("Tan") to recover unpaid wages, overtime compensation, and damages under the federal Fair Labor Standards Act ("FLSA") and New Jersey‟s Wage and Hour and labor laws. Chen has moved for partial summary judgment on the grounds that she was not Tan‟s employer as that term is defined by the FLSA.

Chen is married to another defendant in this case, Pei Yan Fang ("Fang"), also known as Mr. Pi. (Chen Reply Certif. ¶ 1.) Fang is the sole owner of the third defendant, Mr. Pi‟s Sushi, Inc., which does business as Mr. Pi‟s Japanese Restaurant ("Mr. Pi‟s") in Metuchen, N.J. (Fang Certif. ¶¶ 1--2.) From April 8, 2003 until January 4, 2009, Tan worked as a waitress at Mr. Pi‟s (Tan Aff. ¶ 1.), and she claims that during the majority of that time, the defendants paid her only $100 per week and did not pay her overtime, even though she worked, on average, 10 to 11 hours each day, six days a week (Am. Compl. ¶¶ 1, 30--35, 37--38). Tan also claims that the defendants improperly retained tips that she and the rest of the wait staff had earned. (Id. ¶¶ 42--50.) Her first amended complaint requests relief on four claims: (1) that the defendants willfully refused to pay her a minimum wage and overtime pay and willfully failed to keep employment records, in violation of the FLSA; (2) that the defendants intentionally refused to pay her a minimum wage and overtime pay and intentionally failed to keep employment records, in violation of the New Jersey Wage and Hour Law; (3) that the defendants willfully diverted tips and wages due to her, in violation of New Jersey labor law; and (4) that the defendants retaliated against her for filing this lawsuit by threatening her. (Am. Compl. ¶¶ 70--88.)

Chen argues that she is not a proper defendant in this action because she was not Tan‟s employer. She moved for partial summary judgment, seeking to dismiss the wage, overtime, and tips claims, but not the retaliation claim. [D.E. 55.]

II. Summary Judgment Standard

Under Fed. R. Civ. P. 56(c), summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party bears the burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, the party opposing summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A court considering a motion for summary judgment must "resolve conflicting evidence in favor of the non-movant," refrain from engaging in credibility determinations, and "draw all reasonable inferences in favor of the non-movant." Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 267 (3d Cir. 2010) (quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir.1994)). Summary judgment will be granted if the evidence is such that no reasonable jury could find in favor of the nonmoving party. Anderson, 477 U.S. at 249.

III. Discussion

The FLSA has a liberal, remedial purpose, Maldonado v. Lucca, 629 F. Supp. 483, 487 (D.N.J. 1986), and therefore, the term "employer" is interpreted broadly. Reich v. Chez Robert, Inc., 821 F. Supp. 967, 985 (D.N.J. 1993), vacated and remanded on other grounds, 28 F.3d 401 (3d Cir. 1994). The Act states that an employer "includes any person acting directly or indirectly in the interest of an employer in relation to an employee," 29 U.S.C. §203(d); in keeping with this expansive definition, the consensus among courts is that the determination of whether a person is an employer cannot be limited to technical concepts, but must be viewed in accordance with economic realities. See, e.g., Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961); Reich v. Gateway Press, Inc. 13 F.3d 685, 695 n.12 (3d Cir. 1994) ("This court and others have often applied an "economic reality‟ test when interpreting the FLSA."); U.S. Dep't of Labor v. Cole Enters., 62 F.3d 775, 778 (6th Cir. 1995); Maldonado, 629 F. Supp. at 487. Indeed, the definition is "sufficiently broad to encompass an individual who, though lacking a possessory interest in the "employer‟ corporation, effectively dominates its administration or otherwise acts, or has the power to act, on behalf of the corporation vis-a-vis its employees." Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190, 194-95 (5th Cir.). Furthermore, for purposes of the FLSA, an employee may have more than one employer.

Maldonado, 629 F. Supp. at 487; Reich v. PTC Career Inst., 1994 U.S. Dist. LEXIS 8503, 3-4 (E.D. Pa. June 24, 1994) (citing Falk v. Brennan, 414 U.S. 190, 195 (1973)).

A final determination depends on the totality of the circumstances, Maldonado, 629 F. Supp. at 487 (citing Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947)), including consideration of, among others, the following factors: "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." Bonnette v. Cal. Health and Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983). Because of the fact-intensive nature of the inquiry, an employer determination can rarely be made on summary judgment. Barfield v. New York City Health and Hosps. Corp., 537 F.3d 132, 144 (2d Cir. 2008). Indeed, "[w]hether a person or corporation is an employer or joint employer is essentially a question of fact." Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 329 (D.N.J. 2005) (quoting ...

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