http://www.nytimes.com/2008/10/22/nyregion/22saigon.html
The New York Times
October 22, 2008
For $2-an-Hour Restaurant Deliverymen, a $4.6 Million Judgment
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.