NELA, along with a broad coalition of employee rights and civil rights organizations, including the Asian American Justice Center, the Lawyers’ Committee for Civil Rights Under Law, the NAACP Legal Defense and Education Fund, the National Employment Law Project, the National Partnership for Women & Families, the National Women’s Law Center, The Employee Rights Advocacy Institute For Law & Policy, Women Employed, and 9to5, National Association of Working Women, filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to affirm the district court’s refusal to enforce an arbitration agreement containing a class action ban in an employment discrimination case involving Title VII pattern-or-practice discrimination claims. Amici agree with the district court’s holding that pattern-or-practice claims are distinct from individual disparate treatment claims and that arbitration agreements therefore are unenforceable if they preclude plaintiffs from vindicating pattern-or-practice claims. Our brief also contends that vindication of pattern-or-practice claims is vital to achievement of Title VII’s purpose and is largely infeasible on an individual basis due to limitations on the scope of discovery in bilateral adjudications, the substantial costs of proving a pattern-or-practice claim, and limitations on the scope of injunctive relief. Our brief serves to highlight the … Read More
Amicus Briefs
NELA Amicus Brief: Escriba v. Foster Poultry Farms (9th Circuit)
The National Employment Lawyers Association joined the National Partnership for Women & Families, A Better Balance, California Women’s Law Center, Equal Rights Advocates, National Women’s Law Center, and 9to5, National Association of Working Women, on an amicus brief filed on June 13, 2012, before the U.S. Court of Appeals for the Ninth Circuit in Escriba v. Foster Poultry Farms.
Our amicus brief highlights the Family and Medical Leave Act’s central intent to provide meaningful access to job-protected leave in order to prevent workers from losing their jobs when they need to care for a family member with a serious illness. The brief also highlights the regulations requiring employers to provide notice of FMLA rights. Finally, the brief offers data about workers’ lack of familiarity with the FMLA to underscore the critical need for employers to fulfill their legal obligations to provide proper notice of those rights.
Author: National Partnership for Women & Families… Read More
NELA Amicus: Sutherland v. Ernst & Young (2d Circuit)
On May 18, 2012, NELA, its public interest organization, The Employee Rights Advocacy Institute For Law & Policy, and the National Employment Law Project (NELP), filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to affirm the district court’s rejection of a collective action ban in an arbitration agreement. In this case, Judge Kimba Wood of the Southern District of New York held that Ernst & Young’s prohibition of class and collective actions precludes employees from effectively vindicating their statutory rights under the Fair Labor Standards Act (FLSA). This is the second case involving collective action bans in the FLSA context in which NELA, The Institute and NELP have filed an amicus brief before the Second Circuit in as many months.
Our amicus brief highlights the important national public policies that support the availability of collective actions under FLSA. We argue that depriving workers of their ability to enforce their rights fully to be paid minimum wage and overtime pay by prohibiting collective actions in any forum undermines the wage protection policies of the FLSA, rewards unfair competition by encouraging employers to engage in wage theft, and violates the public policy Congress sought to implement … Read More
NELA Amicus Brief: Raniere v. Citigroup (2d Circuit)
NELA, The Employee Rights Advocacy Institute For Law & Policy, and the National Employment Law Project (NELP), filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to affirm the district court’s rejection of a collective action ban in an arbitration agreement. In this case, Judge Sweet of the Southern District of New York held that Citigroup’s prohibition of class and collective actions runs contrary to the purposes of the Fair Labor Standards Act (FLSA) and is therefore unenforceable. The plaintiffs and amici agree with the district court’s holding and also contend that a collective action prohibition would preclude opt-in plaintiffs with small value claims from vindicating their statutory rights to overtime pay under the FLSA.
Our brief argues that the district court’s decision is supported by the independent legal grounds that a collective action prohibition imposed as a condition of employment is unenforceable under the National Labor Relations Act (NLRA) and the Norris LaGuardia Act, as recently held by the National Labor Relations Board in In re D.R. Horton, 357 NLRB No. 184 (2012). The NLRA and the Norris LaGuardia Act prohibit employer interference with employees’ exercise of concerted activity for mutual aid or … Read More
NELA Amicus Brief: Kilgore v. KeyBank (9th Circuit)
NELA, The Employee Rights Advocacy Institute For Law & Policy (The Institute), and the California Employment Lawyers Association (CELA), filed an amicus brief urging the U.S. Court of Appeals for the Ninth Circuit to grant the plaintiffs’ petition for rehearing en banc in Kilgore v. KeyBank, Case No. 09-16703. In this case, where the plaintiffs are seeking only a public injunction to prohibit the defendant from continuing to break state law, a panel of the Ninth Circuit held that an arbitration clause must be enforced even when it would have the effect of preventing consumers from pursuing their rights under a state consumer protection statute. The panel held that while the Federal Arbitration Act (FAA) would block the enforcement of an arbitration clause that strips individuals of federal statutory rights, state statutory rights can be swept away by any form contract. The plaintiffs and amici contend that such a ruling contravenes U.S. and California Supreme Court precedent. Moreover, the Ninth Circuit’s mistaken assertion that the FAA protects only federal and not state statutory rights threatens to allow employers (and other defendants) to force their employees into arbitration agreements that undercut unwaivable state statutory protections.
Our brief argues that the … Read More
NELA Amicus Brief: Christopher v. SmithKline Beecham (U.S. Supreme Court)
NELA and the National Employment Law Project joined together as amicus curiae to urge the U.S. Supreme Court in Christopher v. SmithKline Beecham (Case No. 11-204) to endorse the right of pharmaceutical sales representatives (PSRs) to be classified as non-exempt employees. The petitioner-plaintiffs are two among approximately 90,000 PSRs employed within the American pharmaceutical industry who visit physicians’ offices and encourage physicians to prescribe their employer’s products to their patients. Plaintiffs filed suit under the Fair Labor Standards Act (FLSA) seeking overtime pay on behalf of a nationwide class of PSRs employed by respondent-defendant SmithKline Beecham, Corp., d/b/a GlaxoSmithKline. Numerous similar suits have been filed throughout the country by PSRs performing identical business functions for various pharmaceutical companies. Defendant’s motion for summary judgment was granted on the basis that PSRs are outside salespersons who are exempt under the FLSA.
In line with our successful brief in In re Novartis Pharmaceutical Litigation, where the Second Circuit reached the contrary conclusion to the Ninth Circuit in Christopher, NELA’s brief argues that requiring outside sales people to make actual sales is central to the purpose of the exemption; that to ignore the actual sales requirement would draw the courts in an … Read More
NELA Amicus Brief: Ponce v. Billington (DC Circuit)
On December 28, 2011, NELA, along with AARP and the Metropolitan Washington Employment Lawyers Association, urged the U.S. Court of Appeals for the District of Columbia to reject a district court decision requiring the plaintiff (a federal employee) to prove that discrimination was the “sole reason” for his non-selection. In Ponce v. Billington, plaintiff Jorge Ponce, a male, Hispanic, Cuban-American, alleged that in 2006 he was not selected for a senior position with the Library of Congress, a federal agency, because of sex, race, and national origin discrimination in violation of Title VII. After a four-day trial, the district court instructed the jury that it could find in favor of the plaintiff only if he proved that discrimination was the “sole reason” for the challenged employment decision. So instructed, the jury found against Ponce. In its order denying Ponce’s motion for a new trial, the district court explained that it had “determined that this matter was pleaded as a single-motive discrimination claim” and instructed “accordingly,” holding that Ginger v. District of Columbia, 527 F.3d 1340 (D.C. Cir. 2008), compelled this jury instruction.
NELA’s amicus brief argued that while there is some variation in wording among statutes and different … Read More
NELA Amicus Brief: Coleman v. Maryland Court of Appeals (U.S. Supreme Court)
On September 27, 2011, NELA and ten other organizations joined an amicus brief, written by the National Partnership For Women & Families, in the U.S. Supreme Court case of Coleman v. Maryland Court of Appeals (Case No. 10-1016). The question presented in Coleman is “whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.” The petitioner, Daniel Coleman, was an employee of the Maryland state court system until his termination after requesting leave due to a serious medical condition. The Fourth Circuit dismissed his FMLA claim, concluding that the state of Maryland was immune from suit, because Congress did not validly abrogate states’ Eleventh Amendment immunity with respect to the FMLA’s self-care provision.
The amicus brief argues that Congress validly abrogated state sovereign immunity for self-care claims in response to unconstitutional sex discrimination. In particular, we highlight the Congress’ intent in adopting the FMLA self-care provision to address discrimination against women of child-bearing age by providing leave for pregnancy-related disability and recovery from childbirth. The brief also explains that the FMLA ultimately provided self-care leave on a gender-neutral basis to avoid establishing special rights to leave for women, … Read More
NELA Amicus Brief: Lockheed Martin v. Department of Labor & Andrea Brown (10th Circuit)
Before the U.S. Court of Appeals for the Tenth Circuit in Lockheed Martin, Corp. v. Department of Labor & Andrea Brown (Case No. 11-9542), NELA filed an amicus brief on September 7, 2011, focused on two issues of law: 1) whether mail fraud, wire fraud, bank fraud, securities fraud, or violations of any Securities & Exchange Commission (SEC) rules are limited to fraud against shareholders, and 2) whether a whistleblower must recite the relevant statute and prove up all of its elements in order to enjoy certain legal protections. Our brief proposes that the answer to both questions is no.
Author: Michael T. Anderson (Murphy Anderson, PLLC)… Read More
NELA Amicus Brief: Knepper v. Rite-Aid (3rd Circuit)
NELA, joined by the Comite de Apoyo a los Trabajadores Agricolas, Cornell Law School Labor Law Clinic, Friends of Farmworkers, JUNTOS/Casa de los Soles, National Employment Law Project, National Lawyers Guild Labor and Employment Committee, and Working Hands Legal Clinic, filed an amicus brief in the Third Circuit related cases of Knepper v. Rite-Aid (Case No. 11-1684) and Fisher v. Rite-Aid (Case No. 11-1685). Plaintiffs were employed as an Assistant Store Manager and allege that defendant missclassified them as exempt and failed to pay overtime in violation of state law and the FLSA. The district court dismissed both cases holding that their state class action claims were inherently incompatible with FLSA collective actions.
NELA’s brief argued that: 1) hybrid FLSA/state law class action cases are necessary to protect the rights of workers because violations of federal and state wage and hour laws are rampant and government enforcement is inadequate; 2) workers are authorized to bring FLSA/state law class action cases in federal court under the federal jurisdiction statutes and the Federal Rules of Civil Procedure; 3) the FLSA does not preempt state law or the federal jurisdiction statutes; and 4) Congress adopted the FLSA’s opt-in procedure before the ascendance of … Read More
NELA Amicus Brief: Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, et al. (U.S. Supreme Court)
On August 9, 2011, NELA filed an amicus brief in support of the respondents in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, et al. (Case No. 10-553). The issue in this case is whether the First Amendment’s so-called “ministerial exception” bars a claim that a parochial school teacher was dismissed in retaliation for stating that she was going to assert her rights under the Americans with Disabilities Act (ADA). In this case, Cheryl Perich was terminated from her teaching position after returning from medical leave. Though she primarily taught secular classes, Perich devoted approximately forty-five minutes of the seven hour school day to religious activities. When she attempted to return to work, the school prevented her from doing so and she told the school she planned to sue for discrimination. Perich was then sent a letter stating that she had “damaged, beyond repair” her working relationship with Hosanna-Tabor by “threatening to take legal action.” Approximately, one month later she was fired. The U.S. Equal Employment Opportunity Commission (EEOC) decided to take her case to court in late 2007 and Perich intervened in early 2008. The district court granted summary judgment in favor of Hosanna-Tabor, dismissing the claim on the … Read More
NELA Amicus Brief: D.R. Horton, Inc. & Michael Cuda (NLRB)
The National Labor Relations Board (NLRB or Board) in a case against D.R. Horton, Inc. (Case No. 12-CA-25764) is poised to decide the question of whether an employer’s contractual ban on class and collective actions violates workers’ rights to engage in concerted activities under Section 7 of the National Labor Relations Act (NLRA) and constitutes an unfair labor practice. Section 7 of the NLRA provides that employees have the right “to engage in… concerted activities for the purposes of… mutual aid and protection.” 29 U.S.C. § 157. The NLRB, which has primary jurisdiction over enforcement of the NLRA, has recognized that by filing a class or collective action on behalf of similarly situated co-workers, an employee is engaging in protected activity under Section 7. If an employer’s policy unduly interferes with its employees’ Section 7 rights, that policy constitutes an unfair labor practice in violation of Section 8(a)(1) of the NLRA. 29 U.S.C. § 158(a)(1). This case arises out of unfair labor practice charges filed by Michael Cuda, an employee of a company engaged in the business of building and selling homes nationwide known as D. R. Horton, Inc. As a matter of company policy, D.R. Horton required each new … Read More
