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Fu v. Hunan of Morris Food Inc.

United States District Court, Third Circuit

November 6, 2013

MIN FU, on behalf of himself and all others similarly situated, Plaintiff,

Bin Xue, LAW OFFICES OF BENJAMIN B. XUE, P.C., New York, NY, Attorney for Plaintiff,

Gregory J. Skiff, TARTER KRINSKY & DROGIN LLP, New York, NY, Attorney for Defendants.



This case arises out of the alleged unpaid overtime and minimum wages due to Plaintiff Min Fu, who worked as a waiter for Defendants Hunan of Morris Food Inc., d/b/a/Hunan Restaurant ("Hunan" or "Hunan Restaurant"), and its President Catherine Wen and Vice President Ping Wen (collectively, "Defendants"). The matter comes before the Court pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), to dismiss the Amended Complaint in its entirety. For the reasons set forth below, the motion is denied.


Mr. Fu worked as a waiter for Defendants for over six years, from in or around October 2006 to June 2012. During this time, Mr. Fu alleges that he was not paid proper minimum wages and overtime wages. Mr. Fu is an immigrant from China with a minimum understanding of the English language. During the course of his employment, Mr. Fu performed various work duties for Defendants, including taking food and drink orders, serving food and drinks, cleaning tables, refilling condiments and sauces, preparing food, sweeping floors, and cleaning bathrooms.

At all times relevant to this litigation, Mr. Fu regularly worked between 50 to 60 hours per week. Prior to March 2010, Mr. Fu regularly worked 66 hours per week, and allegedly was improperly paid on a salary basis approximately $400 per month, and was not paid at a rate of 1.5 times the regular hourly wage for overtime when he worked over forty hours a week. Since about August 2010 to June 2012, Mr. Fu was paid an hourly wage of $1.88 an hour, which is less than minimum wage. Mr. Fu contends that Defendants improperly deducted meal and lodging cost against Mr. Fu's already meager cash wage, and that the lodging afforded was an illegal rooming house. Mr. Fu asserts that his actual work hours are not reflected by the time records, if any, that Defendants maintain because Defendants demanded that Mr. Fu clock out but continue to work.

Mr. Fu contends that Defendants failed to inform employees of FLSA wage provisions, including the manner in which the wage for a tipped employee is determined, or the right to receive the minimum wage and overtime rate of one-and-a-half their regular rate. During the course of Mr. Fu's employment, Defendants did not maintain a display containing notices of employees' right to receive the minimum wage and overtime payment in the workplace. Additionally, Mr. Fu takes issue with Defendants' failure to keep full and accurate records of Plaintiff's hours and wages as they are required by the Fair Labor Standards Act ("FLSA") and New Jersey Wage and Hour Law. See 29 U.S.C. 211(c); N.J.S.A. 34:11-56(a)(22). Last, Defendants required that Mr. Fu and other waiters purchase their own uniforms, and never reimbursed them for the costs. Over his course of employment, Mr. Fu had to purchase multiple uniforms at his own costs and expense.

On August 27, 2010, Mr. Fu signed a document entitled "Employee Wage Rate (Regular and Overtime)/Salary Acknowledgment" ("Wage Rate Acknowledgement"), which is written in both English and Chinese. The Wage Rate Acknowledgment establishes that Mr. Fu received a regularly hourly rate of $7.25 and an overtime rate of $10.88. Additionally, Mr. Fu acknowledged and agreed to use a time-clock to record hours worked at the beginning and end of his work shift, and in the beginning and end of his meal breaks for breakfast, lunch, and dinner. The employer is to take a tip allowance in the amount of $5.12 per hour, and a meal allowance in the amount of $0.25 per hour from his regular rate of pay, for three meals a day. Mr. Fu also received lodging from his employer, and the employer was to take a lodging credit in the amount of $35 per week from his gross weekly pay. Last, Mr. Fu acknowledged "that the Employer has posted at a conspicuous place in the restaurant the U.S. Department of Labor and N.J. Department of Labor notices concerning my rights to receive minimum wage and overtime. I have reviewed the information contained in these notices and am aware of my rights described therein." (See Catherine Wen Cert., Ex. C.)

A two-year investigation by the Department of Labor (DOL) of Hunan Restaurant resulted in the DOL's production of a "Receipt for Payment of Lost or Denied Wages, Employment Benefits or Other Compensation" ("DOL Release" or "Release"). On October 4, 2010, Ms. Wen produced the Release to Mr. Fu and he signed it. The propriety of this Release is the issue before the Court today. The Release indicates that Mr. Fu would receive a settlement in the amount of $2, 976.50 in gross wages (net wages of $1, 876.04) due for the period through April 16, 2010. It is undisputed that Mr. Fu received this payment. However, the parties argue over whether mutual assent existed to waive Defendants' liability.

Mr. Fu contests the validity of the Release, and submits that the document provided to him was "blank" and was presented to him "as a piece of routine paperwork" which Ms. Wen "demanded" that he sign. (Am. Compl. ¶ 76.) Ms. Wen did not translate, read, or explain the contents of the Release. (Id. ¶ 77.) Mr. Fu did not understand that he was waiving and releasing his claims against the employer by signing the Release. (Id. ¶ 78.) Moreover, Chinese writing found on the Release was not written by Mr. Fu, and was not inscribed on the document when Mr. Fu signed it. (Id. ¶ 79.) This hand-written notation in Chinese reads "I fully understand the entire content of this document." (See Certification of Min Fu, Dec. 26, 2012, Ex. B.) Mr. Fu explains that he did not "authorize nor witness the inscription of the Chinese texts." (Id. at ¶ 9.) "When my employer asked me to sign documents, I just did as I was told, because I feared that if I were to refuse I would be fired." (Id. at ¶ 11.) In support of his claim that the Release was improperly gained, Mr. Fu argues that the monies due to him for unpaid wages over the two year period of the investigation should have been approximately $49, 000.00, a stark contrast from the $2, 976.50 he received. (Opp. Br. at 6.)

On September 19, 2012, Mr. Fu filed a Complaint which was amended on December 21, 2012 and sets out claims for minimum and overtime wages under the Fair Labor Standards Act and New Jersey Wage and Hour Law; a request for declaration that the Release is a product of fraud and misrepresentation, and therefore should be deemed void and invalid; and a finding that the statute of limitations should be equitably tolled. Moreover, Mr. Fu brings the FLSA claims pursuant to 29 U.S.C. 216(b), and seeks relief on a collective basis for all individuals who have been employees of Defendants within three years of the date of the complaint. Thus, Mr. Fu seeks compensatory damages for unpaid minimum and overtime back wages, liquidated damages, pre and post judgment interest, reasonable attorneys' fees, and for such relief as the Court deems proper.

The instant motion before the Court is based on Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, and Fed.R.Civ.P. ...

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