United States District Court, D. New Hampshire
K. JOHNSTONE, Magistrate Judge.
plaintiff Ying Gui Chen, proceeding pro se, has brought suit
against C&R Rock, Inc. ("C&R Rock"), Johnny Zeng,
Mark Zeng, and Jin Huang (collectively
"defendants") alleging they violated the Fair Labor
Standards Act of 1938 ("FLSA"), 29 U.S.C. Â§ 201 et
seq., and New Hampshire Revised Statutes Annotated
("RSA") Â§Â§ 275, 279, when they failed to compensate
him for all hours worked and overtime wages.
court held a one-day bench trial on February 24, 2016. Chen
testified on his own behalf. Huang testified for the
defendants. After considering the trial testimony and the
record evidence, the court concludes that C&R Rock and Huang
are liable to Chen for violations of the FLSA and RSA in the
amount of $16, 930.76. Pursuant to Federal Rule of Civil
Procedure 52(a), the court's findings of fact and rulings
of law are set forth below.
Rock, a corporation based in New Hampshire, does business as
a restaurant under the name Peking Tokyo of Lebanon
("Restaurant"). Tr. 50:5-18; Defs.' Ex. B, doc.
no. 88. On average, the Restaurant's sales total between
$70, 000 and $80, 000 each month. Tr. 93:4-10.
Huang is the sole owner of C&R Rock. Id .;
Defs.' Ex. A. Johnny Zeng, Huang's husband, works for
C&R Rock as an assistant manager. Tr. 49:6-9, 60:9-15. Mark
Zeng, Johnny Zeng's uncle, has never been an owner,
director, or employee of C&R Rock. Tr. 55:17-56:12, 56:20-21.
testified that her responsibilities at the Restaurant include
creating the employees' schedules, managing orders, and
preparing payroll. Tr. 60:16-24. Huang testified that she
understood "labor law" and employees would speak
with her if they "had any issues." Tr. 61:5-9,
91:19-23. Huang testified that she and her husband, Johnny
Zeng, preform "prep work" for the Restaurant at
night after it has closed or before it opens in the morning.
plaintiff, Ying Gui Chen, began working at the Restaurant on
September 28, 2009. Tr. 69:2-8; Defs.' Ex. D. On October
2, 2009, Chen and Huang signed an employment agreement.
Defs.' Ex. H. The agreement stated that Chen would be
paid $8.00 an hour as a cook for 20 to 40 hours of work per
week. Id . The agreement also stated that Chen, as
an employee, had "the duty to report any wage statement
errors to the Employer within two (2) weeks of the affected
wage statement (including wrong regular working hour,
overtime, overtime pay and pay rate), otherwise the right to
dispute is waived." Id.
Chen's employment agreement stated that he would be paid
$8.00 an hour, he was paid $7.50 from September 28, 2009, to
November 29, 2009. Defs.' Ex. E, at 1-5. Huang explained
that Chen's pay of $7.50 was "the training
rate." Tr. 75:2-14. Beginning on November 30, Chen pay
was increased to $8.00 an hour. Defs.' Ex. I, at 5.
stopped working at the Restaurant in June 2010. Tr. 68:18-2;
Defs.' Ex. D. Soon after, Chen moved to St. Louis,
Missouri to work at another restaurant. Tr. 23:6-24:18. Chen
returned to work at the defendants' Restaurant on January
23, 2012. Tr. 76:17-24. There is no evidence of an employment
agreement during this second period of employment. Chen
worked at the Restaurant until the first week of May 2013.
Tr. 9:10-13, 87:7-10.
trial, Chen testified that he worked 67 hours each week while
employed by the Restaurant. Tr. 10:7-9, 19:11. The chart
below summarizes the hours Chen stated he worked at the
Restaurant each week:
Tuesday Wednesday Thursday Friday Saturday Sunday 10:30 10:30
10:30 10:30 10:30 11:30 a.m. a.m. a.m. a.m. a.m. a.m. - Off -
- - - - 9:30 9:30 9:30 10:30 10:30 9:30 p.m. p.m. p.m. p.m.
alleged hours worked by Chen mirror the hours the restaurant
was open; the only difference being that Chen testified that
he started working 30 minutes before the restaurant opened in
order to complete food preparation. Tr. 33:8-12. Chen never
testified that he performed any work after the Restaurant was
closed for the night.
trial, the defendants presented pay stubs (Defendants'
Exhibits E and G) and work schedules (Defendants'
Exhibits D and F) to refute Chen's claim of hours worked.
The pay stubs note how many hours Chen worked each week and
match the hours Chen was scheduled to work in a particular
week. Defs.' Ex. D, E, F, and G. Most weeks, the
Restaurant's generated work schedule shows that Chen was
scheduled to work either 32 or 40 hours. Id .
According to these schedules, Chen was never scheduled to
work before or after the Restaurant was open. Defs.' Ex.
D and F.
if not all, of Chen's scheduled work days at the
Restaurant were set into two shifts, with Chen scheduled to
work 3 to 4 hours, followed by at least a 90 minute break,
and then returning to work another 4 to 5 hours. Defs.'
Ex. D and F. During trial, the court asked Huang what Chen
normally did during the extended break in his schedule. Huang
answered that Chen would take a walk or go back and rest in a
dormitory located across the street from the Restaurant. Tr.
98:8-18. Huang also testified that, during
Chen's entire employment at the Restaurant, he was never
required to work beyond the designated hours set in his work
schedule. Tr. 98:19-22.
court also asked Huang if the Restaurant had any records that
showed the actual hours an employee worked, in place of the
schedule generated before an employee's shift. Tr.
96:5-14. Huang answered that the Restaurant does use a
computer time card, however, she testified that "most of
[the] employees... don't want to use the computer... and
like [Chen], he [does not] know how to use the
computer...." Tr. 96:15-22.
Liability under the FLSA and State Law
state a valid FLSA claim, the plaintiff must show by a
preponderance of the evidence that: (1) he was employed by
the defendants; (2) his work involved interstate activity;
and (3) he performed work for which he was under-compensated.
Pruell v. Caritas Christi, 678 F.3d 10, 12 (1st Cir.
the first element, it is uncontested that the plaintiff, for
some period of time, was employed by C&R Rock. The parties
disagree, however, as to the second and third elements of the
plaintiff's FLSA claim.
satisfy the second element of his FLSA claim, the plaintiff
must demonstrate that his work at the Restaurant involved
interstate activity. Pruell, 678 F.3d at 12. This
may be shown by proving that the employer
(i) has employees engaged in commerce or in the production of
goods for commerce, or... has employees handling, selling, or
otherwise working on goods or materials that have been moved
in or produced for commerce by any person; and (ii) is an
enterprise whose annual gross volume ["AGV"] of
sales made or business done is not less than $500, 000....
Martinez v. Petrenko, 792 F.3d 173, 175 (1st Cir.
2015) (quoting 29 U.S.C. Â§ 203(s)(1)(A)).
restaurant with over $500, 000 in annual sales satisfies this
statutory definition." Cordova v. D & D Rest., Inc., No.
14 CIV. 8789 CS LMS, 2015 WL 6681099, at *3 (S.D.N.Y. Oct.
29, 2015); see also Fermin v. Las Delicias Peruanas
Rest., Inc., 93 F.Supp. 3d 19, 33 (E.D.N.Y. 2015)
(finding that "it is reasonable to infer that the myriad
goods necessary to operate a... restaurant with an eat-in
dining area and over $500, 000.00 in annual sales do not
exclusively come from [instate]. As a restaurant, it is
reasonable to infer that [it] requires a wide variety of
materials to operate, for example, foodstuffs, kitchen
utensils, cooking vessels, cleaning supplies, paper products,
furniture, and more. It is also reasonable to infer that some
of these materials moved or were produced in interstate
it is uncontested that defendant C&R Rock owns the
Restaurant. Further, Huang, the owner of C&R Rock, testified
that the restaurant averages between $70, 000 and $80, 000 in
sales every month. Therefore, because the plaintiff has shown
that the restaurant averages over $500, 000 in annual sales,
he has satisfied the second element of his FLSA claim.
Evidence of Inadequate Compensation
covered under the FLSA are currently guaranteed a minimum
wage of $7.25 for each hour worked. 29 U.S.C. Â§ 206(a). When
an employee works beyond 40 hours in one week, the FLSA
requires that he or she be compensated "at a rate not
less than one and one-half times the regular rate at which he
is employed." 29 U.S.C. Â§ 207. New Hampshire law mirrors
the federal wage and overtime requirements. See RSA Â§ 279:21.
a plaintiff normally "has the burden of proving that he
performed work for which he was not properly compensated,
" when an employer has "inaccurate or
inadequate" records, the plaintiff "has carried out
his burden if he proves that he has in fact performed work
for which he was improperly compensated and if he produces
sufficient evidence to show the amount and extent of that
work as a matter of just and reasonable inference."
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
687 (1946). In this scenario, the plaintiff's burden is
minimal. Sec'y of Labor v. DeSisto, 929 F.2d
789, 792 (1st Cir. 1991). Indeed, "[s]ufficient evidence
may be established by recollection alone." Soli ...