Many wage-hour/overtime actions are brought against restaurants; this is, and has been for some time, a disturbing pattern. Coupled with this trend is the fact that it seems that this industry has certain “customs” on paying workers that give plaintiffs a seeming leg up in these actions. So, it warms my heart when these suits are dismissed for lack of credible evidence and an appellate court affirms that dismissal. The Second Circuit has just done this in cases involving suits brought by employees of Chinese restaurants who were claiming minimum wage and overtime violations. The cases are entitled Li et al. v. Chinatown Take-Out Inc. and Wang v. Happy Hot Hunan Restaurant Inc., and issued from the Second Circuit Court of Appeals.

In the first case, the Second Circuit affirmed that Chinatown Take-Out Inc. did not fail to pay the named plaintiffs their proper wages under the FLSA and New York law, as well as affirming that their hours were correct, as determined by the lower court. In the Happy Hot Hunan case, the Circuit Court affirmed the lower court’s finding that the plaintiff was exempt.

In the Chinatown Take Out case, the plaintiffs argued that the trial court was wrong when it found that they did not work on Jewish holidays and also did not work later than 8PM, while they claimed they worked until 10PM. The Second Circuit concluded that the lower court was correct in crediting the testimony of the restaurant witnesses, as opposed to the memories of the workers. As the court simply, but emphatically stated, “plaintiffs’ testimony did not sufficiently show the amount and extent of their claimed work.”

The Second Circuit affirmed the lower court’s finding that Mr. Wang was exempt and therefore not owed any overtime by the Happy Hot Hunan Restaurant. The Court stated that “the district court concluded that Wang was an exempt employee based on testimony offered during a three-day bench trial. On appeal, Wang primarily challenges the district court’s fact finding and credibility determinations. Nothing Wang points to, however, demonstrates that the district court committed clear error in its fact finding.”

The Takeaway

I am a management side advocate and defense attorney, but I do not want to see restaurant workers or lower wage workers be taken advantage of or not paid properly for all hours worked,. However, when employees seize upon alleged customs in this industry to try to manufacture outlandish claims of hours worked that in no way comport with reality and are defeated, that is as big a victory for “Justice” as when underpaid workers receive their proper wages in a suit. Plaintiff-side lawyers also, many times, seek to prosecute these cases with one eye towards (maybe) securing wages for their clients but with another (bigger) eye on their own fees.

Maybe, the pendulum is swinging back the other way…