“For $2-an-Hour Restaurant Deliverymen, a $4.6 Million Judgment” – New York Times
By STEVEN GREENHOUSE
A federal judge has awarded $4.6 million in back pay and damages to 36 delivery workers at two Saigon Grill restaurants in Manhattan, finding blatant and systematic violations of minimum-wage and overtime laws.
In a decision dated Monday and released on Tuesday, Magistrate Judge Michael H. Dolinger of United States District Court in Manhattan found violations of federal and state wage laws in awarding up to $328,000 to some of the deliverymen. On issue after issue, Judge Dolinger ruled against Saigon Grill and its owners, Simon and Michelle Nget, saying they paid $520 a month to many deliverymen who worked more than 260 hours each month. This meant their pay came to less than $2 an hour, far less than the federal and state minimum wage.
“I’m very, very happy about this decision,” one deliveryman, Yu Guan Ke, said in a telephone interview. He said he would use the money to help buy health insurance for his family. “It was worth the fight because we were treated badly for so long,” he added. “I never imagined we would receive so much money.” The restaurants are on Amsterdam Avenue at 90th Street and University Place at 12th Street. But the case also involved deliveries made for a Saigon Grill on Second Avenue at 88th Street that closed in July 2006.
The deliverymen, all immigrants from Fujian Province in China, testified that they were required to work 11 to 13 hours a day, usually six days a week. But their employers testified that the deliverymen had to work only at peak delivery times: 11:30 a.m. to 2:30 p.m., and 5:30 to 9:30 p.m.
Responding to the owners’ assertions, Judge Dolinger wrote, “This testimony is manifestly false.” He pointed to a work schedule the plaintiffs made available showing that the deliverymen were assigned to work far more hours than the owners claimed.
On Tuesday, a receptionist for S. Michael Weisberg, the lawyer for Saigon Grill and its owners, said, “He has no comment at this time.”
Judge Dolinger found that the company had often illegally deducted pay — from $20 to $200 — when deliverymen committed infractions like letting the restaurant door slam on their way out or failing to log in a delivery. The case covered wage violations from 1999 to 2007.
The judge concluded that Saigon Grill should pay not just back wages but also damages because the owners, he said, had so blithely ignored the law.
“At a minimum, Simon Nget and Michelle Nget showed no regard whatsoever for legal requirements in connection with their wage policies,” Judge Dolinger wrote.
He also found that the company had illegally retaliated against 23 delivery workers by firing them when they notified their employers of their intention to file a wage complaint. But the judge has not yet decided on a judgment on that issue.
Judge Dolinger also ruled that the company had improperly made the deliverymen buy and maintain the bicycles and motorbikes they used to make deliveries, concluding that Saigon Grill should have paid for those as required tools of the trade.
Kenneth Kimerling, legal director for the Asian American Legal Defense and Education Fund, said, “This is a tremendous victory, one that should warn every employer in this city that violations of the wage-and-hour law can lead to large amounts awarded against them.”
The fund represented the deliverymen along with the law firm of Davis Polk & Wardwell, working pro bono.
The restaurant could in theory pay the workers a special tip wage, several dollars an hour lower than the state minimum wage, now $7.15 an hour. But the judge ruled that Saigon Grill was required to pay the full minimum wage in this case because the owners had not satisfied a requirement for paying the lower tip wage: explaining to the workers that they planned to do so.
Josephine Lee, an organizer with Justice Will Be Served, an advocacy group for immigrant workers, said that as a result of the Saigon Grill case, “many restaurants have already started to pay their deliverymen much better.”
Last February, a judge with the National Labor Relations Board ruled that Saigon Grill had illegally fired 28 deliverymen 11 months earlier and should reinstate them. That judge found that the firings were in retaliation for the workers’ plans to file the wage lawsuit.
Ms. Lee said seven of the workers have been reinstated thus far.
[This article can also be read here: https://www.nytimes.com/2008/10/22/nyregion/22saigon.html]