Employment: Class certified in barbershop overtime suit

Where a barber shop employee suing for unpaid overtime moved for conditional collective certification, his motion was granted. There was a single business, managed at two locations by the same managers and employees were subject to largely the same compensation structures and work hours.

Background

Jianxin Li brought this action against Chung LLC and Stanley Chung alleging violations of the provisions of the Fair Labor Standards Act, or FLSA, the Virginia Minimum Wage Act and the 2020 amendments to the Virginia Wage Payment Act. Li now seeks conditional certification of the FLSA collective action. The motion seeks certification of a collective “of all barbers and hairdressers who worked at Chung’s Barber Shop’s Charlottesville location and/or its Henrico location between April 23, 2021 and the date this motion is granted.”

Timeliness

Defendants’ sole argument against Li’s motion is that it is untimely and therefore unfairly prejudicial. Defendants cite three district court cases for the proposition that motions for collective certification must be filed well before the end of discovery, unless sufficient cause is shown.

True, Li did not file his motion for conditional certification until nearly one year after filing his complaint, which he styled as a collective action, and with only six weeks remaining in the discovery period. But Li has not done so in violation of any discovery or scheduling deadline set by the court.

Defendants “ha[ve] not directed the Court to any authority that requires the plaintiff to move for conditional class certification early in the case or suggests that the plaintiff has missed some type of hard deadline.” In the absence of such authority, the court finds that, although “ideally, [Li] would have requested conditional class certification much earlier in this litigation,” there is no reason Li should be barred from pursuing a collective action based solely on this delay.

Merits

Li’s proposed class consists of employees of a single business, managed at two locations by the same managers, subject to largely the same compensation structures and work hours imposed by defendants. Li, through his sworn affidavit and the affidavit of Man Xiu Xiong, has sufficiently made the “relatively modest factual showing” required of a plaintiff at this stage. Finding such, the court will grant Li’s motion for conditional collective certification.

Notice

Li asks that he be permitted to disseminate notice by mail, email and text message to potential plaintiffs. He also asks that the court order defendants to post a copy of the notice on their premises throughout the opt-in period. Defendants do not oppose these requests. The court will also allow Li to utilize a website to collect electronic signatures of consent forms, provided that it be submitted to the court prior to dissemination for approval.

The court will grant Li’s request for an order directing defendants to provide his counsel with the full names, current or last known physical addresses, dates and location of employment and email addresses for current and former employees fitting the description of the conditionally certified class. The court will also order disclosure of alternate names or nicknames used by the employees at work.

The court will order disclosure of mobile telephone numbers only to facilitate dissemination of notice by text message. The court will not order disclosure of potential plaintiffs’ positions/titles or gender, as that information does not appear relevant to distribution of the proposed notice.

Li asks the court for a 90-day notice period, while defendants request a period of no more than 30 days, noting even that brief period will require the court to extend the discovery deadline in this case. Because Li’s proposed class is quite small, and to aid in the timely adjudication of this case, the court will permit a 30-day opt-in period for potential plaintiffs. Because the notice period is only 30y days, the court believes a reminder notice is “unnecessary” and “potentially improper.”

Li is directed to submit the edited notice, examples of the notice as it will be sent via mail, email and text message and the URL leading to the electronic consent form for court approval prior to dissemination of notice by his counsel. Additionally, he may have the proposed notices translated into the appropriate Chinese language for putative class members.

Plaintiff’s motion for conditional collective certification granted.

Li v. Chung LLC, Case No. 3:24-cv-25, May 5, 2025. WDVA at Charlottesville (Yoon). VLW 025-3-189. 19 pp.