Brief Summary of Zheng
v. Liberty Apparel New Decision Against Summary Judgment:
(United States District Court,S.D. New York.
Ling Nan ZHENG, et al., Plaintiffs, v. LIBERTYAPPAREL COMPANY,
INC., Albert Nigri, Hagai Laniado, Defendants.
No. 99 Civ. 9033(RJS). May 30, 2008.)
On May 30th, 2008, Judge Richard Sullivan issued a court decision
rejecting manufacturer Liberty Apparel's attempt to dismiss the
case. The judge stated in his decision there is no need to prove
the manufacturer had direct control of its contractors. It was
possible the manufacturer could still be considered a joint employer
based on the six-factors of the "economic realities"
test stated in the appeal decision. In addition, the judge can
consider other factors that seem relevant to determining the "economic
reality" of the relationship between the manufacturer and
the workers. But for now, according to the test, workers have
a right to sue.
Three of the six factors did not support the workers'
claim, but weighed less heavily than the other factors:
" The workplace and equipment used was not Liberty's own.
" The contractor could shift its business to other manufacturers.
" The manufacturer could shift its business to other contractors.
Three factors that carry more weight actually came
out in favor of the workers:
" Did the workers perform a line-job that was integral to
production? Possibly, because:
1. The garment work was considered unskilled work that anyone
could do
2. The job they performed was essential to producing Liberty's
garments
3. It could have been done "in house" by Liberty
4. Workers were supervised and instructed by Liberty
* The judge also noted there has been a long custom
in the garment industry of using subcontracting for purposes other
than economic reasons. He cited workers' 2 expert witnesses, a
U.S. Department of Labor investigator, and a university professor
of history. Both provided research and evidence that, historically
the main reason manufacturers use subcontracted factories is not
economic, but to avoid liability for labor violations and to escape
responsibility for wages and working conditions.
" Did the manufacturer supervise the workers,
and have "effective control" over workers? Possibly,
because Liberty representatives:
1. Visited the factory 2-4 days a week, up to 3 hours a day
2. Inspected individual garments for mistakes
3. Instructed workers on correcting mistakes
4. Pushed workers to work harder and faster
5. Promised workers that, if they finished a certain number of
garments, the Liberty Apparel representatives would bring the
workers' pay to them.
" Did workers work "exclusively or predominately"
for Liberty?
According to workers' records and testimony, they did 70-75% of
their work for Liberty. Defendants say it was only 10-15%, but
they presented no supporting evidence. Therefore, it is possible
for a jury to find workers worked predominately for Liberty.
The judge also decided that the workers have a valid
claim for New York State labor law violations. Unlike federal
law, New York State law does not require the manufacturer be considered
a joint employer in order to be liable. As long as the manufacturer
knew or should have known the contractors were violating the law,
it is responsible. Because Liberty contracted with the contractors,
closely supervised the workers, and were told by the workers many
times that they weren't being paid, the workers can sue under
State law.
The judge also decided that the workers can sue
Liberty Apparel owners Albert Nigri and Hagai Laniado and hold
them individually responsible.
Therefore, the case will go to trial on October
27th, 2008.
BOYCOTT LIBERTY APPAREL!
