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Court Finds Defendants Failed to Provide Proper Employment Notices to Employees in Chinese.

English to Chinese document translation services are often required in employment litigation.  In Zhang v. Zhang, the plaintiffs filed a complaint against their employer alleging violations of the Fair Labor Standards Act and violations of New York state law. Before the matter went to trial, the parties were ordered to provide the court with a list of the exhibits that the court had ruled it would admit at trial. The parties did so without issue. Before the close of evidence, the court ordered the parties to provide the court with copies of the exhibits used at trial to give to the jury to use during deliberations. The court had previously ordered that it would not admit into evidence any of the deposition transcripts of witnesses who testified at trial. Despite this ruling, plaintiffs’ counsel gave the courtroom deputy two binders, one of which contained the deposition transcripts that had not been entered into evidence at trial. This binder of unadmitted deposition transcripts was then sent to the jury room.

After deliberating, the jury returned a verdict in favor of the plaintiffs on both of their claims. The jury also answered special interrogatories which the court then used to calculate their damages. The binder of deposition transcripts was discovered by the court after the jury had been discharged. The jury had apparently highlighted certain portions of the transcripts and written notes on them during deliberations.
Hearing is Held on Counsel’s Trial Conduct

Following the discovery of the deposition transcripts in the jury room, the court ordered plaintiffs’ counsel to show cause why he should not be sanctioned for violating the court’s order and for failing to appear at a scheduled hearing. At the hearing, plaintiffs’ counsel informed the court that he had given the courtroom deputy the binder by mistake and that his mind was focused on closing arguments at the time.

Defendants Move for Sanctions and a New Trial

After the order to show cause hearing, the defendants filed a motion to set aside the verdict in whole or in part because the jury had considered deposition transcripts that were not in evidence during its deliberations.

Court Agrees to Set Aside Part of the Verdict

In its ruling, the court held that it would be improper to set aside the jury’s verdict entirely but agreed that a portion of the verdict relating to the issue of the defendant’s status as the Chinese-speaking plaintiff’s employer should be re-tried.

The court explained that the material issues in dispute were the defendant’s employer status, the number of hours each plaintiff worked, whether the defendants were entitled to the “tip credit” under the FLSA and state law, and other employment-related issues. The only issues that the jury decided against the defendants on were whether the defendants were entitled to the “tip credit” under New York law and the defendant’s employer status; all other issues were decided in defendants’ favor. Thus, the court found that a new trial was not necessary on the issues in which the jury found in the defendants’ favor because the jury’s consideration of the unadmitted transcripts was harmless error.

Although the jury found in the plaintiffs’ favor on the issue of whether the defendants were entitled to the “tip credit’ under New York law, the court also refused to order a new trial on this issue. The court explained that in order to prevail on this claim under state law, a defendant must prove four elements, including whether the defendant informed the plaintiff in writing in English and in the employee’s primary language- Mandarin Chinese– before the start of employment. The law also required the notice to provide very specific information and required the employee acknowledge receipt of the document in writing. In this case, the plaintiffs spoke Mandarin. However, it was undisputed that the defendants did not provide any such notices to the plaintiffs in Chinese, which resulted in a finding of liability against the defendants. Because the Mandarin-speaking plaintiffs prevailed on this issue, the court held that the jury’s consideration of the deposition transcripts was also harmless error.

The court did hold that a new trial was necessary on the issue of the defendant’s status as an employer. The court found that the information contained in the deposition transcripts was prejudicial to the issue in dispute regarding whether the defendant was the plaintiffs’ employer. The court explained that the deposition transcripts showed inconsistencies between trial testimony and the witnesses deposition testimony, which could have undermined their credibility in the eyes of the jury.

Court Sanctions Defense Attorney for Trial Conduct

The court also granted the defendants’ motion for sanctions against the plaintiffs’ attorney. The court held that at the pre-trial conference the court specifically informed counsel that the deposition transcripts would not be pre-admitted into evidence. Nevertheless, the court held that it could not determine that plaintiffs’ counsel deliberately violated the court’s order. Instead, the court found that plaintiffs’ counsel acted irresponsibly and recklessly. However, because the attorney’s conduct disrupted and delayed the proceedings and required the court to issue a new trial, the court found it appropriate to impose sanctions against the plaintiffs’ attorney.

The case is Zhang v. Zhang, Court No. 15 Civ. 4013, decided on April 17, 2018 by the United States District Court for the Southern District of New York.

Contact our translators and interpreters for attorneys to obtain legal translation of employment notices from English to Simplified Chinese, Korean, Spanish, Russian, Traditional Chinese, Vietnamese, French, Polish, Romanian, Czech, and other languages.

**This legal blog article should not be construed as legal advice. You should always consult an attorney regarding your specific legal needs.

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