NY Food Delivery Drivers Paid Below Minimum Wage, Plaintiff Claims

Food deliverers for a Manhattan restaurant claim they were paid below minimum wage due to time spent doing uncompensated work.

These current and former delivery personnel for Lychee House Chinese Restaurant are now plaintiffs in an employee rights class action lawsuit in a federal court in New York.

Lead plaintiff Yong Jie Li filed this claim in March 2015, alleging that Lychee House had willfully and intentionally shorted its delivery workers on overtime pay, paid them below minimum wage, and failed to compensate them properly for untipped work.

Li alleges delivery workers were expected to work 50 or more hours per week, only some of which time was spent doing work that earned them tips. He claims the workers spent about two hours of each workday doing untipped work like working on delivery paperwork or packaging orders.

Side Work Put Deliverer’s Pay Below Minimum Wage, Plaintiff Claims

At the same time, Li says these workers were never given notice that they were being paid below minimum wage. He argues that since this untipped work took up at least 20 percent of the workers’ time on the job, they were not eligible to be paid at the lower tip-earning wage.

Li also alleged Lychee House failed to pay its employees “spread of hour” wages, a type of premium compensation that employers in some industries have to pay for shifts longer than 10 hours.

These actions violate the federal Fair Labor Standards Act and the New York Labor Law, according to Li’s employee rights class action lawsuit.

In his statement before the jury, Li’s attorney also called the restaurant’s own record keeping into question, saying that the worker’s pay did not add up to what their time clock records said it should be.

Counsel for Lychee House told the jury these delivery workers were given notice of the legal minimum wage with a sign posted on a wall in the restaurant. He said these deliverers were experienced tip-earning employees who understood the terms of their compensation.

The restaurant’s attorney also says that the “side work” in question is part of the deliverers’ jobs, regardless of whether it is performed during or outside of the time the workers spend earning tips. He also claims Lychee House paid the workers for every hour of work they reported.

Li and the plaintiff class are seeking an award of back regular wages, unpaid overtime and liquidated damages, plus interest and attorneys’ fees.

U.S. District Judge Valerie Caproni granted preliminary certification for the plaintiff class in July 2015. The class consists of all current and former delivery workers who worked for Lychee House between July 13, 2012 and the present and who may not have been paid the wages they were entitled to.

Judge Caproni also ordered Lychee House to post a notice of the pending employee rights class action lawsuit and a Consent to Sue form in a conspicuous place in the restaurant to put other employees on notice about the claim. The restaurant was also required to provide the plaintiffs with names of all delivery workers who had worked at the restaurant from July 2012 through July 2015.

The Wage and Hour Class Action Lawsuit is Li v. Lychee House Inc. et al., Case No. 1:15-cv-01646, in the U.S. District Court for the Southern District of New York.

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