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The immigration status of workers accusing clothing manufacturer Donna Karan International Inc. of maintaining sweatshop conditions will not be turned over to the company as requested because of the possibility of intimidation, a U.S. District judge for the Southern District of New York has ruled. Rejecting a discovery request made by lawyers for the clothes maker in a dispute over unpaid wages at Manhattan garment factories, Senior Judge Whitman Knapp said the immigration status of plaintiffs in the case is not relevant and posed a danger of intimidation that “would inhibit plaintiffs in pursuing their rights.” However, Knapp said in Liu v. Donna Karan International, 00 Civ. 4221, that the company could renew its request for the information if it appears at a later date to be “more relevant than harmful.” Name plaintiff Zen Liu and several other workers filed the case as a putative class action, alleging that Donna Karan and the couple Calvin Chen and Winnie Young Chen violated the federal Fair Labor Standards Act, 29 U.S.C. � 216(b) and the New York Minimum Act (New York Labor Law � 650). Liu and his fellow workers alleged that the Chens, in their operation of two factories in Manhattan, failed to pay employees the minimum wage and failed to pay overtime wages, even though many workers toiled seven days a week for between 8 and 12 hours a day. The complaint alleges that the Jen Chu Factory on Eighth Avenue required workers to punch a time clock, but on payday, the employees received less money and “were asked to sign a slip of paper that falsely reflected the total number of hours they worked each week.” And after an investigator with the New York Department of Labor visited the factory in 1998, the Chens began maintaining two sets of time clock records, the complaint alleges. Lawyers for Donna Karan sought to dismiss the complaint in 2000, arguing that Donna Karan could not be considered a “joint employer” with the Chens under the Fair Labor Standards Act. But attorneys for the workers had charged that, between 1992 and 1996, 100 percent of the clothes made at the Jen Chu Factory were Donna Karan garments, and the factory’s production as late as 1999 was 60 percent Donna Karan. They also charged that Donna Karan “completely dominated” the relationship with the Chens and the Jen Chu Factory, setting production requirements that made it impossible for the workers to be paid the minimum wage or overtime. JOINT EMPLOYER Judge Knapp denied the motion to dismiss, finding that the totality of the circumstances rendered the company a joint employer under the act. In his ruling on the discovery request, Knapp said Donna Karan argued that the discovery request for the immigration status of the plaintiff workers was supported by the recent U.S. Supreme Court case Hoffman Plastic Compounds Inc. v. National Labor Relations Board, (2002). The Hoffman Court found that an award of backpay to an illegal alien for years of work “not performed” ran afoul of the policies embodied in the Immigration Reform and Control Act of 1986. But Knapp said it is not clear that the Hoffman holding applies to the case before him. “Courts have distinguished between awards of post-termination back pay for work not actually performed and awards of unpaid wages pursuant to the Fair Labor Standards Act,” he said. “In fact, courts addressing the issue of whether defendants should be allowed to discover plaintiff-workers’ immigration status in cases seeking unpaid wages brought under the FLSA have found such information to be undiscoverable.” And contrary to a suggestion by Donna Karan, Knapp said there remained a danger of intimidation “even if the parties were to enter into a confidentiality agreement restricting the disclosure of such discovery. …” Representing the plaintiffs were attorneys Kenneth Kimerling and Stanley Marc with the Asian American Legal Defense and Education Fund, as well as Adam T. Klein and Scott Moss of New York’s Outten & Golden. Bettina B. Plevin of New York-based Proskauer Rose represented Donna Karan. The other defendants were represented by Chi-Yuan Hwang and J. John Courtney.

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