United States District Court, N.D. California, San Francisco Division
FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING SECOND BENCH TRIAL
NATHANAEL M. COUSINS, Magistrate Judge.
In this suit by restaurant employees against their former employer, Shanghai Gourmet, and its owners Xu Liang Shen and Bo Juan Liu, the employees seek damages for Shanghai Gourmet's failure to pay overtime wages as required by federal and state law.
This case has been tried twice and the parties have been unable to resolve their dispute by settlement. After the first trial, the district court entered judgment for defendants on all claims. On appeal, the Ninth Circuit Court of Appeals affirmed the judgment in part, reversed in part, and remanded for further proceedings. This order sets forth findings of fact and conclusions of law after the second bench trial and requests additional briefing.
The operative complaint is the First Amended Complaint. Dkt. No. 35. Plaintiffs' claims are for: (1) violation of California Labor Code § 510 and § 1194 for non-payment of overtime; (2) violation of the federal Fair Labor Standards Act (FLSA) for non-payment of overtime; (3) failure to provide meal and rest periods in violation of California Labor Code § 226.7; (4) "waiting time" penalties for failure to pay wages due at time of termination under California Labor Code § 203; (5) restitution of unpaid wages in violation of the California Unfair Trade Practices Act, Business and Professions Code § 17203; and (6) fraudulent conveyance under California Civil Code § 3439.04 and § 3439.05. Dkt. No. 35.
The case was first tried before Magistrate Judge James Larson in 2010. After the first bench trial, Judge Larson entered judgment in favor of defendants, finding "for Defendants as to all causes of action by all Plaintiffs." Dkt. No. 104 at 2. Specifically, Judge Larson found that "even if Plaintiffs Wang and Yang had worked 12-hour days six days a week during their employment with Defendants, they were fairly compensated for all regular time and overtime under the federal Fair Labor Standards Act and the California Labor Code." Id. The Court also found that plaintiff Fu "agreed to an hourly wage and a minimum monthly guarantee and was paid according to the terms he agreed to, with no violation of either state or federal wage and hours laws." Id.
On appeal, the Ninth Circuit affirmed in part, reversed in part, and remanded. Dkt. No. 113. The Ninth Circuit affirmed Judge Larson's interpretation of California's meal period requirement. Id. at 7. But the Ninth Circuit found that Judge Larson misapplied the burden shifting analysis of Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), and erroneously relied on Wang's and Yang's pay stubs to determine their rates of pay and how many hours they worked. Dkt. No. 113 at 3-5. The Ninth Circuit remanded for this Court to determine: (1) the overtime pay due to Wang and Yang under FLSA; (2) the overtime pay due to Wang and Yang under California law; and (3) the appropriate compensation due to Fu for the time period between August 2003 and August 2004. Id. at 3-7.
The Ninth Circuit ordered this Court to establish the overtime pay due under the FLSA for Wang and Yang by determining their regular rates of pay by dividing their weekly salaries including the value of room and board provided to them, by the total number of hours that they worked each week. Id. at 3. As to plaintiffs' California overtime claims, the Ninth Circuit ordered this Court to divide Wang's and Yang's weekly salaries by forty hours to calculate their regular rates of pay under California law, and then to reassess their unpaid overtime on the basis of these hourly rates. Id. at 4.
This Court held a second two-day bench trial on December 10 and 11, 2012. A certified Mandarin interpreter was present during all phases of the trial. During the second trial, plaintiffs Wang and Yang testified that they regularly worked at Shanghai Gourmet six days per week and twelve hours per day without receiving overtime pay. Defendants, through testimony from owner Shen, argued that plaintiffs generally worked six days per week but for eight hours per day and that each plaintiff was paid a monthly minimum that covered any overtime worked. Defendants further asserted that pay stubs provided as evidence to the Court correctly demonstrated the hourly wage paid to each plaintiff and the number of hours worked.
On balance, the Court finds that plaintiffs worked some overtime hours for which they were not properly compensated, but that each plaintiff's testimony was inconsistent about the number of hours he worked. Specifically, each plaintiff's testimony differed between the first and second trials as to time of meal periods, breaks allowed during the day, the hours of restaurant operation, and plaintiffs' arrival and departure times from the restaurant.
On the other hand, the Court does not find the testimony of defendant Shen, owner of Shanghai Gourmet, to be entirely credible. In particular, the Court does not find believable Shen's continued assertions that accurate accounting of his employees' time was recorded on their pay stubs.
With this background, the Court makes the following findings of fact and conclusions of law under Federal Rule of Civil Procedure 52.
II. FINDINGS OF FACT
A. Plaintiff Wang's Work Schedule
Plaintiff Wang worked for Shanghai Gourmet from April 2000 through July 2006. Tr. 17:19, 19:23-25, 51:12-14, Dkt. Nos. 151, 152. Wang testified that he worked at the Walnut Creek Shanghai Gourmet restaurant from April through May 2000 and then in the Richmond Shanghai Gourmet restaurant until July 2006. Tr. 17:19-23.
1. Weekly Work Schedule
Wang testified that he worked six days per week, with one day off (Monday for Walnut Creek; Tuesday for Richmond). Tr. 17:24-18:1, 19:21.
2. Daily Schedule
Wang testified that on four days per week (Monday/Tuesday, Wednesday, Thursday, Sunday) he arrived at work at 10:00 a.m. and worked until 10:00 p.m. Tr. 18:2-12. On Fridays and Saturdays, he testified that he worked from 10:00 a.m. until 10:30 p.m. Tr. 18:1-8.
Wang testified that at the Richmond restaurant he would arrive at work at 10:00 a.m. and, though the restaurant would close at 9:30 p.m., he would not leave until 10:00 p.m. Tr. 18:17-21. Wang stated that he would have his breakfast around 10:15 a.m. Tr. 40:20-22. He also testified that he would eat breakfast at the restaurant for about 10 minutes and then would continue to work. Tr. 24:15-25. Wang testified that customers started arriving at the restaurant at 11:00 a.m. Tr. 24:2-4. Wang testified that lunch for employees was provided from 2:30 p.m. to 3:00 p.m. each day and that he would complete his meal in 10 to 15 minutes. Tr. 25:17-25, 44:14-17. Wang testified that unlike some of the other workers at the restaurant, he was required to work between 3:00 p.m. and 5:00 p.m. because he was the only "ingredient person." Tr. 45:12-22. This contradicts his prior trial testimony in which he stated "From 3:00 to 5:00 there was one hour or two hours that was my own time. I could go out whatever I want, but I didn't." Tr. 46:17-19. Wang further testified that on Monday through Thursday he worked from 5:00 p.m. to 9:30 p.m. at which time he would eat dinner at the restaurant. Tr. 30:16-22. Wang testified that he would eat his dinner in 10 to 15 minutes and then he would continue to work until he left the restaurant at 10:00 p.m. Tr. 31:3-15.
Wang testified that on Fridays and Saturdays, he would arrive at work at 10:00 a.m. and, because the restaurant closed at 10:00 p.m. those days, he would not leave until 10:30 p.m. Tr. 31:18-19, 56:10-12. On Fridays and Saturdays, Wang would not eat dinner until 10:00 p.m. and would leave the restaurant at 10:30 p.m. Tr. 31:16-23. Wang did not work on the days when the restaurant was closed. Tr. 18:20-21.
Wang's testimony was contradicted by Shen's testimony and a business card stating the hours of the Richmond restaurant as 11:00 a.m. to 9:30 p.m. daily. Tr. 56:7, trial Ex. D. Defendant Shen further testified that employees at the Richmond restaurant were required to arrive at work at 11:00 a.m. Tr. 165:23-25. Shen did not know the exact time Wang or Yang arrived at work but made clear to all employees that business hours began at 11:00 a.m. and that employees could come at 10:30 a.m. "to have breakfast on their own time." Tr. 167:11-17.
Shen testified that employees at the Walnut Creek restaurant were required to arrive at work at 11:30 a.m., the time the restaurant opened, but could arrive early at 11:00 a.m. to eat breakfast. Tr. 168:13-14.
3. Position and Pay
When he was first hired by defendants in April 2000, Wang worked as a dishwasher, making $1, 300 per month. Tr. 22:12-16, 33:15. Wang's salary was increased to $1, 500 per month in May 2000. Tr. 160:25-161:6, 161:24-162:1. As of July 2003, upon receiving his immigration status, Wang worked as an "ingredient person" and started making $2, 300 per month. Tr. 22:16-17, 58:4-5, 67:22-24.
Wang lived in a dormitory provided by defendants from his start date in 2000 through August 2003. During that time, Wang paid no rent and was provided meals and transportation to and from work. Tr. 23:1-6, 23:9-20. The parties stipulated that the value of this room and board was $1, 100 per month. Tr. 139:21-140:18. Wang lived in defendants' quarters until approximately August 2003; at that time he obtained his own housing and car, which he drove to work. First Trial Tr. 7/20/2010, at 147:15-22, Dkt. No. 98.
B. Plaintiff Yang's Work Schedule
Plaintiff Yang worked at the Richmond Shanghai Gourmet restaurant from September 2000 through March 2005. Tr. 134:8-9, 134:13-14, 139:7-9, Dkt. No. 152. Yang took ten months off from work commencing in November 2000, then returned. Tr. 134:22-135:1.
1. Weekly Work Schedule
Yang testified he worked six days per week from 10:00 a.m. to 10:00 p.m. at the Richmond ...