On December 7, NELA joined Public Justice and six other civil rights organizations in filing an amicus brief in support of workers seeking to remove claims from arbitration under the 2021 Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Act). The brief stems from a suit filed by former employees of Everyrealm, alleging sexual harassment, disability discrimination, racial discrimination, and pay inequity. Defendants argued that only the sexual harassment claims were exempt from arbitration. The brief examines the plain language of the statute, arguing that “(I)n sum, the text and legislative history of the Act could not be clearer that, when a lawsuit “relates to” a “sexual assault dispute,” the entire “case” cannot be forced into arbitration. And the practical realities of workplace discrimination and litigation underscore why Congress made that choice. Therefore, to the extent the Court finds that Mr. Johnson’s and Ms. Yost’s cases each relate to a sexual harassment dispute, their claims cannot be separated, and the entire cases must be litigated in court if they elect to do so.” We are grateful to NELA members Shelby Leighton and Karla Gilbride at Public Justice for drafting the brief. … Read More
Amicus Briefs
Boyer v. United States
On September 30, NELA signed on to the National Women’s Law Center amicus brief in Boyer v. United States, in the United States Court of Appeals for the Federal Circuit. The lawsuit was brought under the Equal Pay Act by Dr. Leslie Boyer, a clinical pharmacist at the Department of Veterans Affairs (VA) who was paid less than her male colleague for the same job, even though she had seven years more experience. The VA admitted that they paid Dr. Boyer less because it was based on her salary history. The amicus brief explains that relying on salary history is not a legitimate justification for unequal pay, as it merely perpetuates systemic underpayment of women – particularly women of color. We are grateful to NWLC for the opportunity to sign on to this important brief.… Read More
Muldrow v. City of St. Louis
On September 30, NELA filed an amicus brief in Muldrow v. City of St. Louis, urging the Supreme Court to grant the petition for cert in this appeal from the 8th Circuit. In this case, Petitioner asks the Court to resolve the question of whether non-economic harms (including granting or denying lateral transfers) constitute discrimination in “terms, conditions, or privileges of employment” under the text of Title VII. NELA’s brief argues that the 8th Circuit’s atextual standard creates an impermissible barrier to the adjudication of meritorious discrimination claims and the Court should reject the economic tangible harm requirements. The brief also explains the current social science research which illustrates that non-economic aspects of the terms, conditions or privileges of employment are as critical to employees as wages and salaries. NELA is grateful to NELA Members Carolyn L. Wheeler, Katz Banks Kumin LLP (DC) and Stephen B. Pershing, Pershing Law PLLC (DC) for drafting this brief.… Read More
Bille, et al v. Coverall North America, Inc.
On September 7, 2022, NELA joined NELP in filing an amicus brief in the 2nd Circuit case Bille, et al v. Coverall North America, Inc. This brief addresses the serious harms of forcing arbitration on low-wage workers and urges the 2nd Circuit to ensure that workers can return to court in the event that unscrupulous employers attempt to exploit the arbitration system. In this case, employer Coverall attempted to bypass earlier commitments to cover the costs of arbitration and when the arbitration was closed because of default, contested the district court decision to lift the stay on litigation. As the brief concludes, “Although the district court went farther than it should have in trying to preserve arbitration in this case, it reached the right result–Coverall waived its right to arbitrate by abusing the system, and when its insistence on forcing Reeves to pay led to AAA closing the case, arbitration was ‘had.’ ” NELA is grateful to Richard J. Burch, Brucker Burch PLLC (TX) and NELA Member Michael Scimone, Outten & Golden (NY) for taking the lead on the brief, and Michael T. Anderson, Murphy Anderson PLLC (MA) and Catherine K. Ruckelshaus (NELP) for their invaluable support.… Read More
Holder v. A&L Homecare
On June 29, 2022, NELA filed an amicus brief in Holder v. A&L Homecare (22-3101), urging the 6th Circuit to maintain a 2-step FLSA certification process. This case addresses A&L Homecare’s attempt to avoid an FLSA collective action by arguing in favor of the much more restrictive process adopted in the 5th Circuit Swales decision. The brief addressed the history of collective actions and why courts across the country (including in the 6th Circuit) have rejected Swales. As the brief states, “It is often said that experience is the best teacher. Experience shows that the two-step method is a reliable tool for handling FLSA collective actions. As virtually every Circuit Court has done, this Court should affirm its use.” NELA is grateful to NELA Members Clif Alexander and Lauren Braddy, Anderson Alexander PLLC (TX), Richard Burch, Brucker Burch PLLC (TX), NELA Member Sarah Schalman-Bergen and Olena Savytska, Lichten & Liss-Riordan, P.C. (MA) for drafting the amicus brief.… Read More
Viking River Cruises Inc. v. Moriana
On March 9, 2022, NELA joined our Affiliate, California Employment Lawyers Association (CELA), and the National Employment Law Project (NELP) to file an amicus brief in support of the Respondent in Viking River Cruises Inc. v. Moriana. This case addresses the issue of whether the Federal Arbitration Act (FAA) requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under the California Private Attorneys General Act (PAGA). Our brief argues that PAGA is not an end-run around arbitration and because the FAA was never intended to preempt the states’ law enforcement functions or their authority to determine how to structure their law enforcement authority, the Court should affirm the denial of Petitioner’s motion to compel arbitration. We are extremely grateful to Rachel M. Bien and Monique Olivier (Olivier Schreiber & Chao LLP, CA) who drafted the brief and the team at NELP for their editing support.… Read More
Southwest Airlines Co. v. Saxon
On March 1, 2022, NELA filed an amicus brief in support of the Respondent in Southwest Airlines Co. v. Saxon. This case addresses the very important issue of whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods themselves, are interstate “transportation workers” exempt from the Federal Arbitration Act. NELA filed in support of Latrice Saxon, a ramp worker for Southwest Airlines facing mandatory arbitration of her employment claims. The brief examined the text of the Federal Arbitration Act’s exemption for transportation workers and argues that Ms. Saxon’s job duties place her, and those similarly situated, within the exemption. The brief also notes that recognizing Ms. Saxon’s class fulfills the legislative purpose of the FAA, and the 7th Circuit’s analysis properly applies earlier supreme court jurisprudence surrounding this issue. We are extremely grateful to NELA Amicus Advisory Council Co-Chair Michael Foreman and his Penn State University Civil Rights Appellate Advocacy Clinic for drafting this brief.… Read More
The Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, IATSE
On January 28, NELA filed an amicus brief in the NLRB case The Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, IATSE. This case addresses whether the Board should reconsider its standard for determining the independent contractor status of workers. The brief examines the many ways in which NLRB definitions, standards and tests affect various antitrust, trademark, and tort laws. As the brief concludes, “Employers should not be allowed to assert “entrepreneurial freedom” where that argument would imply an antitrust violation, or “naked licensing” of its trademark. Nor should employers be allowed to assert independent contractor status where that claim would be rejected in common-law courts in tort cases.” We are grateful to our drafters Michael T. Anderson, Adam C. Breihan, Mark Hanna and Roseann R. Romano (Murphy Anderson, PLLC) and Shannon Liss-Riordan and Zachary L. Rubin (Lichten & Liss-Riordan, P.C.) for drafting this important brief.… Read More
Burrell v. Lackawanna Recycling Center, Inc.
On January 11, NELA signed on to the National Employment Law Project’s amicus brief in the 3rd Circuit case Burrell v. Lackawanna Recycling Center. This case concerns three former civil detainees of Lackawanna County, Pennsylvania who filed a proposed class action complaint alleging that the County, the private company that owns and operates the Lackawanna County Recycling Center, and other private and public defendants forced hundreds of child support debtors to work at the Recycling Center for $5.00 per day in unsafe conditions in violation of the Fair Labor Standards Act (FLSA). The amicus brief discusses the history of prison labor and its connection to American slavery. Additionally, the brief highlights the unique breadth of the FLSA’s coverage of employees, how courts have interpreted the FLSA’s definitions, the policy purposes behind the FLSA, and why the district court’s standard fails to uphold those policies. We are grateful to NELP and NELA member Rachel Bien, Olivier Schreiber & Chao LLP (CA) for the opportunity to sign on to this important brief.… Read More
In Re: OSHA Rule On COVID-19 Vaccination and Testing
On November 30, NELA filed an amicus brief in the 6th Circuit case In Re: OSHA Rule On COVID-19 Vaccination and Testing, 86 Fed. Reg. 61,402 (21-7000). Petitioners in this case aim to stay the recent OSHA regulation that requires companies with over 100 employees to impose vaccination or testing requirements in response to the COVID-19 pandemic. NELA’s brief highlights the tension created by regulatory requirements that ensure safe working conditions while limiting individual worker choice. Courts have long upheld that the benefits of regulations governing health and safety in the workplace outweigh the cost to worker choice; if Petitioners’ theory is adopted, the brief argues, the gates will open to challenge this line of jurisprudence. Additionally, the brief addresses the right of vaccinated workers to refuse unsafe working conditions were the vaccine mandate stayed.
NELA is joined on this brief by the Jobs With Justice Education Fund and we are grateful to NELA member Adam C. Breihan and NELA Board Member Mark Hanna, and their Murphy Anderson, PLLC colleagues Michael T. Anderson and Arlus J. Stephens for drafting this important brief.
Morgan v. United States Soccer Federation
On July 30, NELA and 63 other organizations signed on to the National Women’s Law Center amicus brief in the 9th Circuit case Morgan v. United States Soccer Federation. This high-profile case concerns the pay disparity between the US men’s and women’s soccer teams. Amici submit this brief to provide additional context regarding the broader struggle for women’s pay equity and to highlight significant errors in the district court’s decision. The gender wage gap harms hundreds of millions of women in the United States and is persistent across every segment of the labor market, including professional sports, where women receive fewer resources, less support, and far less pay. The district court’s erroneous interpretation of the EPA and Title VII-and its endorsement of the blatant pay disparities here-threatens to perpetuate unequal pay and thus, gender discrimination. We are grateful to NWLC for the opportunity to sign on to this important brief.… Read More
Hamrick v. Partsfleet, LLC
On July 20, NELA signed on to an amicus brief filed by the National Employment Law Project in the Eleventh Circuit case of Hamrick v. Partsfleet, LLC. The brief, filed in support of a petition for en banc review, challenges a ruling that drivers who do not cross state lines are not engaged in interstate commerce, and are therefore not protected by the Federal Arbitration Act. Hamrick and his fellow drivers were misclassified as independent contractors and denied overtime, and compelled into arbitration. The brief argues that where delivery drivers deliver goods that have been transported between states, those workers are protected under the Federal Arbitration Act. We are grateful to NELP and NELA member Shannon Liss-Riordan, Lichten & Liss-Riordan PC (MA) for drafting this brief.… Read More
