No. 127, Docket No. 20415.

158 F.2d 944 (1947)


Circuit Court of Appeals, Second Circuit.

January 16, 1947.

Attorney(s) appearing for the Case

William S. Tyson and Morton Liftin, both of Washington, D. C., Irving Rozen, of New York City, George M. Szabad and Helen Grundstein, both of Washington, D. C., for plaintiff-appellee.

Davis, Polk, Wardwell, Sunderland & Kiendl, of New York City (William H. Timbers, Rufus D. McDonald, and Cleveland C. Cory, all of New York City, of counsel), for defendant-appellant.

Before L. HAND, CHASE and FRANK, Circuit Judges.

FRANK, Circuit Judge.

The principal issue in this appeal is whether the trial court correctly classified the outside tailors as defendant's employees within the meaning of the Act which contains the following definitions:

"(d) `Employer' includes any person acting directly or indirectly in the interest of an employer in relation to an employee * * *

"(e) `Employee' includes any individual employed by an employer * * *

"(g) `Employ' includes to suffer or permit to work."

Homeworkers have been held to be employees within these definitions. Guiseppi v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921; Walling v. American Needlecrafts, 6 Cir., 139 F.2d 60; indeed defendant admits that the homeworkers it employs come within the protection of the Act. We see no valid distinction between homeworkers and outside tailors; their work and their conditions of employment (except as to location) are identical. Defendant argues that the outside tailors must be excluded because they are free from supervision, are at liberty to work or not as they choose, and may work for other employers if they wish. But all these arguments, applicable equally to homeworkers, have already been considered and rejected. The fact that the outside tailors may, and sometimes do, work for more than one employer creates no problem except as it affects the payment of overtime wages. Only if an employee works more than 40 hours a week for a particular employer is the latter required to pay overtime. Absent collusion between employers, a tailor could conceivably work 80 hours a week without being entitled to overtime pay, if he divided his time equally between two employers. That the outside tailors receive a regular stipend to cover the expense of maintaining a shop, so that the defendant thus, in effect, pays the rent for the premises on which the work is done, does not indicate that the outside tailors are not his employees, but rather that they are.2

We find no difficulty in classifying as employees those of the outside tailors who employ others to do various incidental jobs, such as sweeping and pressing. As the tailors themselves perform the task for which they are paid, it cannot reasonably be argued that, because they delegate some of the minor chores, they are transformed into independent contractors. Nor do we find any merit in defendant's contention that we must exclude from the classification of "employee" those tailors who share their shops with other tailors — partners or business associates, as they have been variously called. As New York State law3 prohibits homework in the clothing industry, these tailors must maintain shops outside their homes. Their status as employees is not altered merely because they find it more desirable or convenient to share the use of a shop and the cost of its maintenance with another tailor similarly situated.

With respect to the tailor, Stigliani, who employs an apprentice to help him with the actual tailoring, defendant poses a problem which may be stated thus: Does a tailor, who would otherwise clearly be classified as an employee, lose his employee status because he himself employs a single helper? To state the problem is, in effect, to dispose of it. We are here dealing with a remedial statute whose declared purpose is to eradicate the evils attendant upon low wages, long hours, and sub-standard labor conditions. United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, 132 A. L.R. 1430; Missel v. Overnight Motor Transportation Co., 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682. Drawing the line between employees and independent contractors cannot be done mechanically; it calls for rational judgment as the facts vary, but that need not terrify us. (Chitty, J., said that "courts of justice ought not to be puzzled by such old scholastic questions as to where a horse's tail begins and where it ceases. You are obliged to say, `This is a horse's tail' at some time.")4 We think that the mere fact of hiring a single helper clearly does not suffice to put a tailor on the independent-contractor side of the line. For that fact does not relieve that tailor from exposure "to the evils the statute was designed to eradicate"4a nor make less appropriate the remedies the statute affords.

We do not think that Goldberg, who employs some 14 other tailors in his shop, does come within the scope of the injunction, which relates only to "employees." Whether or not he personally performs any of the actual tailoring work is not decisive, for it seems to us that a man who employs 14 men to do the work that he has contracted to do cannot reasonably be classified as anything but an independent contractor. Appellant claims that there are others in the same position as Goldberg. However, there is no finding to that effect, and the record is extremely fragmentary on this point. If there actually are others, then they too are independent contractors, and of course the injunction does not apply to them.

Defendant contends that the injunction order errs because it includes within its scope the defendant's obligations to the employees of those tailors who themselves come within it. But that issue is not before us, since the order does not mention those sub-employees, and since plaintiff advises us that he has no intention of ever asserting that it relates to them.

Defendant, relying on United States v. Andolschek, 2 Cir., 142 F.2d 503, and United States v. Beekman, 2 Cir., 155 F.2d 580, 584, alleges error in the exclusion of the Margolin statement. We agree that the doctrine of those cases applies in civil as well as in criminal cases. And, no doubt, the statement might have been relevant, with respect to Margolin's credibility. But the error was harmless, since the facts to which he testified, so far as relevant, were not in dispute. The experienced trial judge unquestionably ignored Margolin's testimony that he considered himself an employee; for, as his status constituted an issue for the judge's decision, Margolin's opinion was of no moment.

The exclusion of the statement concerning Twyeffort's previous record was not error. While the question of general good faith in compliance with the Act is relevant where the violations have ceased before the Administrator begins an action, it has no bearing on the issuance of an injunction where the violations have continued up to the commencement of the suit, and where the employer still asserts that the Act does not apply. See Walling v. Youngerman-Reynolds Hardwood Co., Inc., 325 U.S. 419, 65 S.Ct. 1242, 89 L.Ed. 1705; cf. Walling v. Helmerich & Payne, 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29.



2. See Walling v. American Needlecrafts, 6 Cir., 139 F.2d 60, 64.
3. By order of the Industrial Commissioner, pursuant to New York Labor Law, Consol.Laws, c. 31, Art. 13, §§ 350, 351.
4. Lavery v. Pursell, 1888, 39 Ch.D. 508, 514.
4a. N. L. R. B. v. Hearst Publications, 322 U.S. 111, 127, 64 S.Ct. 851, 88 L.Ed. 1170.


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