UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2023

(Submitted: February 23, 2024 Decided: September 11, 2024)

Docket No. 23-229

HYUNHUY NAM, Plaintiff-Appellee,

v.

PERMANENT MISSION OF THE REPUBLIC OF KOREA TO THE UNITED NATIONS, Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: LIVINGSTON, Chief Judge, and WESLEY and CHIN, Circuit Judges.

Appeal from an opinion and order of the United States District Court for the Southern District of New York (Rochon, J.), holding, on summary judgment, that wage-and-hour and employment discrimination claims against a foreign state's mission to the United Nations brought by a former chauffeur were not barred by the Foreign Sovereign Immunities Act because the chauffeur's employment fell within the "commercial activity" exception to sovereign immunity.

VACATED AND REMANDED.

Yongjin Bae, Hang & Associates, PLLC, Flushing, NY, for Plaintiff-Appellee.

Joshua S. Lim, Nicholas J. DuBois, Sean Kwak, Kim, Cho & Lim, LLC, Palisades Park, NJ, Joseph Barbiere, Cole Schotz, P.C., Hackensack, NJ, and Eric S. Latzer, Cole Schotz P.C., New York, NY, for Defendant-Appellant.

CHIN, Circuit Judge:

In this case, plaintiff-appellee Hyunhuy Nam alleges that his rights under federal, state, and city wage-and-hour and anti-discrimination laws were violated by defendant-appellant Permanent Mission of the Republic of Korea to the United Nations (the "Mission"). Nam was formerly employed by the Mission as a chauffeur, and the principal issue presented on appeal is whether the district

2 court (Rochon, J.) erred by holding, on summary judgment, that the Mission was not protected by the Foreign Sovereign Immunities Act (the "FSIA"), 28 U.S.C. § 1602 et seq., because Nam's employment fell within the "commercial activity" exception to sovereign immunity.

For the reasons that follow, we vacate the district court's decision and remand for further proceedings.

BACKGROUND

I. The Facts 1

In June 2016, Nam, a citizen of the Republic of Korea and permanent resident of the United States, began his job as a chauffeur with the Mission, South Korea's foreign consulate located in Manhattan. He found the job through an online job advertisement that the Mission posted on a website called "Hey Korean." App'x at 563. The website allows parties -- whether private or otherwise -- to post job openings. Nam was interviewed and hired by the

1We construe the evidence in the light most favorable to the Mission. As discussed further below, the parties filed cross-motions for summary judgment and the district court denied the Mission's motion and granted Nam's cross-motion, awarding Nam damages and interest. Accordingly, the Mission was the non-moving party on Nam's cross-motion. See pages 21-23 infra. Certain facts alleged by Nam with respect to the merits, and apparently not contested by the Mission for purposes of this appeal, are also set forth below.

3 Minister at the time as well as "the person who was in charge at the time." Id. at 339-40. Nam became the assigned driver for four different Ministers at the Mi