On March 11, 2020, NELA and The Institute jointly filed an amicus brief with the U.S. Supreme Court in St. James School v. Biel (consolidated with Our Lady Of Guadalupe School v. Morrissey-Berru (19-348 & 19-267)) urging the court to strike a delicate balance between religious organizations’ First Amendment rights and the right for workers to be free from discrimination in the workplace. Both Biel and Morrissey-Berru arose after teachers at Catholic schools filed suit alleging discrimination when their contracts were not renewed. Both schools argued that the teachers were “ministers” as they served important religious functions in the course of their employment, and decisions surrounding their employment were therefore exempt from anti-discrimination statutes. The 9th Circuit disagreed with this assessment, upholding the Hosanna-Tabor totality-of-the-circumstances test. The brief asks the Court to uphold this current test, which requires lower courts to engage in a fact-intensive examination of four factors (the employee’s formal title; the substance reflected in that title; the individual’s own use of that title; and the important religious functions the individual performed for the religious organization) when determining if an employee is a “minister.” NELA’s brief argues that the current totality-of-the-circumstances test has proven a workable standard, … Read More
Amicus Briefs
Heimbach v. Amazon, Supreme Court of Philadelphia
On March 6, 2020, NELA joined our Western and Eastern Pennsylvania Affiliates, AFL-CIO, National Employment Law Project, SEIU, UFCWIU, Justice At Work, and Towards Justice in filing an amicus brief in the Supreme Court of Pennsylvania on behalf of the Appellants in Heimbach v. Amazon (No. 43 EAP 2019). Appellants are a class of men and women who engage daily in grueling work in Amazon’s Pennsylvania warehouses. At the end of each day, workers are required to use their personal, unpaid time to undergo Amazon’s mandated security screenings before they can leave the premises. This brief asks the Supreme Court of Pennsylvania to confirm that Pennsylvania’s Minimum Wage Act (“PMWA”) is more protective than the Fair Labor Standards Act (“FLSA”), the current federal floor for workplace protections, therefore ensuring that Amazon pays their workers for required screenings completed onsite. Amazon and its numerous staffing agencies have argued that they may rely solely on federal workplace laws, including the FLSA and Portal-To-Portal Act (PPA), in calculating labor costs and imposing its labor compensation practices. Additionally, Amazon asks the court to import the de minimis doctrine, which allows employers to avoid paying workers for “infrequent and insignificant periods of time beyond … Read More
National Women’s Law Center v. OMB
NELA, The Institute, and over twenty other worker and gender justice organizations signed on to an amicus brief filed on October 25, 2019, by the ACLU Women’s Rights Project with the United States Court of Appeals for the District of Columbia Circuit in the case of National Women’s Law Center v. Office of Management and Budget (No. 1:17-cv-02458-TSC). Oral argument in the case is set for Friday, January 24.
The EEO-1 Report is a compliance survey mandated by federal statute and regulation that requires large private employers and federal contractors above a certain number of employees to submit employment pay data to the EEOC every three years. Covered employers report on the race, gender, ethnicity, and job categories represented in their workforce.
In 2016 under the Obama administration, the EEO-1 was amended to require that covered employers also would have to provide compensation data on those same groups. The amended rule was finalized after two rounds of public comment. NELA, and many others submitted comments in support of the proposed changes to the rule and the amended rule requiring the added data became final and was scheduled to take effect in March 2018. The purpose of the amendment was to … Read More
DHS v. Regents of University of California, U.S. Supreme Court
On October 1, The Lawyers’ Committee For Civil Rights Under Law filed an amicus brief in the United States Supreme Court in the case of DHS v. Regents of the University of California. NELA and The Institute signed on to this brief, along with the Anti-Defamation League, the Leadership Conference on Civil and Human Rights, and other civil and immigrants’ rights organizations. The amicus brief argues that the Department of Homeland Security (“DHS”) failed to consider serious reliance interests engendered by the Deferred Action for Childhood Arrivals (“DACA”) program prior to terminating the program, in violation of the Administrative Procedures Act (“APA”). It describes the various vital roles that DACA recipients play in the economic and social structure of the United States – roles that were given no consideration by DHS when they made the decision to roll back the program. DACA recipients serve in the United States military, pay to attend public and private educational institutions, and pay taxes. Of vital interest to NELA, DACA recipients are both employers and vital members of the United States workforce. DHS failed to consider the interests of those who rely, economically or otherwise, on DACA recipients, thus violating the APA. We
Babb v. Wilkie, U.S. Supreme Court
On September 25, AARP and AARP Foundation filed an amicus brief with the United States Supreme Court in the case of Babb v. Wilkie (No. 18-882). NELA and The Institute joined the Leadership Conference on Civil and Human Rights and the National Women’s Law Center in signing on to this brief, which addresses the standard for federal sector employees to prove age discrimination in violation of the ADEA. Dr. Noris Babb was employed by the U.S. Veterans Affairs Department. She filed suit against the VA, asserting that the VA made various decisions regarding her employment that violated the Age Discrimination in Employment Act (“ADEA”). The ADEA’s text governing federal employees, 29 U.S.C. § 633a(a), requires that decisions “shall be made free from any discrimination based on age,” in contrast to the ADEA’s private- and non-federal public-sector provision, which simply bars discrimination “because of” age. A U.S District Court dismissed Babb’s ADEA case, which was affirmed by the Eleventh Circuit, ruling that federal sector employees must show that age considerations were a “but-for” cause and not just a “motivating factor” in employment decisions. In its brief, AARP argues that the Eleventh Circuit’s interpretation of 633a(a) ignores the broad language of the
Amicus Brief: Bostock v. Clayton County, Georgia
On July 3, 2019 the National Employment Lawyers Association (NELA) and The Employee Rights Advocacy Institute for Law & Policy (The NELA Institute) joined the Impact Fund in filing an amicus brief in the United States Supreme Court (S.C. 17-1618, 17-1623, 18-107) in support of LGBTQ workers. Impact Fund, NELA, and The NELA Institute filed this brief in support of the Petitioners in Bostock v. Clayton County, Georgia and Altitude Express, Inc. v. Zarda, and Respondent in R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., addressing not only the pervasive workplace discrimination LGBTQ workers face, but more importantly the lack of clarity that exists in applying workplace protection laws to those who are discriminated against on the basis of sexual orientation or gender identity.
The amicus brief, written by Impact Fund’s Lindsay Nako and David Nahmias, working in close collaboration with NELA members, focuses on the circuit split in the treatment of discrimination on the basis of sexual orientation. This is further confused by the existing consensus among the circuits regarding discrimination based on transgender status. As the brief notes, “The three decisions under review underscore the unpredictability in the law for LGBT people. Faced with similar … Read More
NELA Amicus Brief: Frappied, et al v. Affinity Gaming Black Hawk, LLC (10th Cir.)
On June 6, 2019 NELA and The NELA Institute filed an amicus brief in the United States Court of Appeals for the 10th Circuit (10th Cir. Case No. 0:19-cv-01063). NELA and The NELA Institute filed this brief in support of the Plaintiffs, challenging the district court decision that the Plaintiffs, older female employees fired by management while younger women and older men remained, failed to state a claim under Title VII. The district court ruled in contradiction to longstanding jurisprudence, both in the Supreme Court and the circuits, who have long held that discrimination on the basis of sex plus an additional factor (“sex plus”) is discrimination on the basis of sex under Title VII.
The amicus brief, written by NELA member Darold Killmer (CO) and Liana Orshan (CO), argues that the district court not only ignored the legal precedent of “sex plus” claims, but also failed to recognize the sociological impact that the intersection of sex and age have on older female workers. Contrary to the district court’s contention that the Plaintiffs failed to state a claim of sex discrimination because all women were not affected, courts regularly recognize “sex plus” claims as evidence of discrimination on the basis … Read More
NELA Amicus Brief: Fort Bend County, Texas v Davis (U.S. Supreme Court)
On April 3, 2019, NELA and The NELA Institute jointly filed an amicus brief with the U.S. Supreme Court, urging the Court to rule that Title VII’s administrative-exhaustion requirement is a waivable claim-processing rule and not a jurisdictional prerequisite to suit. This case arose after employee Lois M. Davis filed an internal complaint alleging sexual harassment and assault by an individual in her department, who was investigated and eventually resigned. Soon thereafter, her supervisor, a friend of the alleged harasser, retaliated against Ms. Davis. When he required her to work on a Sunday—a time she had requested off for religious observance—she declined and was fired. Prior to her termination, Ms. Davis filed an official charge with the Texas Workforce Commission, a state agency with a work-sharing agreement with the EEOC, alleging sexual harassment and retaliation. After being fired, Ms. Davis amended her intake questionnaire, but not her charging document, to include religious discrimination.
Ms. Davis proceeded to take all her claims to court and went all the way through the summary judgment phase, including her appeal to the 5th Circuit (which she won) and Fort Bend County’s petition for cert. (which the Supreme Court denied). It was only then, some … Read More
NELA Amicus Brief: Heimbach v. Amazon (Supreme Court of Pennsylvania)
On March 6, 2020, NELA joined our Western and Eastern Pennsylvania Affiliates, AFL-CIO, National Employment Law Project, SEIU, UFCWIU, Justice At Work, and Towards Justice in filing an amicus brief in the Supreme Court of Pennsylvania on behalf of the Appellants in Heimbach v. Amazon (No. 43 EAP 2019). Appellants are a class of men and women who engage daily in grueling work in Amazon’s Pennsylvania warehouses. At the end of each day, workers are required to use their personal, unpaid time to undergo Amazon’s mandated security screenings before they can leave the premises. This brief asks the Supreme Court of Pennsylvania to confirm that Pennsylvania’s Minimum Wage Act (“PMWA”) is more protective than the Fair Labor Standards Act (“FLSA”), the current federal floor for workplace protections, therefore ensuring that Amazon pays their workers for required screenings completed onsite. Amazon and its numerous staffing agencies have argued that they may rely solely on federal workplace laws, including the FLSA and Portal-To-Portal Act (PPA), in calculating labor costs and imposing its labor compensation practices. Additionally, Amazon asks the court to import the de minimis doctrine, which allows employers to avoid paying workers for “infrequent and insignificant periods of time beyond … Read More
CO-PELA NDRN NELA Amicus Brief – Exby-Stolly v Bd of Commissioners (10th Cir)
Laurie Exby-Stolley, Plaintiff – Appellant, v. Board of County Commissioners, Weld County, CO… Read More
NELA Impact Fund Amicus Brief_Acosta v. Austin Electrical Servs. (9th Cir.)
On Tuesday, October 23, 2018, NELA joined a coalition of civil and employee rights organizations in filing an amicus brief in support of the Plaintiff-Appellees in Acosta v. Austin Electrical Services, pending currently in the U.S. Ninth Circuit Court of Appeals. This case concerns the defendant-employer using an ostensibly neutral workplace audit as a pretense to deploy inappropriate, misleading, and potentially coercive tactics towards workers participating in an ongoing collective action against the company. When the district court justifiably enjoined the employer from continuing its campaign against the workers, the company sought appellate review. The amicus brief highlights the broad discretion afforded to district courts to ensure defendants do not sabotage employees’ efforts to vindicate their rights. The brief also summarizes the various forms of underhanded methods that far too often are deployed to chill employee participation and undermine the enforcement of workplace laws, and emphasizes the important role district courts can play in managing cases in ways that protect vulnerable litigants from abusive behavior. The brief was drafted by NELA members Bryan Schwartz (Oakland, CA), Lindsay Nako (Berkeley, CA), Matthew Helland (Oakland, CA), and Adam Hansen (Minneapolis, MN).… Read More
NELP IBT EPI NELA Amicus Brief – New Prime, Inc. v. Oliveira (U.S. Supreme Court)
On July 25, 2018, NELA joined the Economic Policy Institute and the International Brotherhood of Teamsters in supporting an amicus brief authored by the National Employment Law Project (NELP) in New Prime, Inc. v. Oliveira, pending currently in the U.S. Supreme Court. The case concerns whether the Federal Arbitration Act’s (FAA) exemption of “contracts of employment” from its coverage applies to clauses purporting to treat workers as independent contractors, and whether the resolution of that question may properly be delegated to an arbitrator. In addition to arguing that the contract at issue in this case should be exempt under the plain language of the FAA, the amicus brief adds essential context by detailing the independent contractor misclassification problems endemic in the trucking industry and the abuses of workers they engender, in addition to the detrimental effects they have on other employers, state budget and tax coffers, and on employers’ economic incentives to misclassify more drivers. The brief was authored by NELA member Catherine K. Ruckelshaus and Ceilidh Gao of NELP.… Read More
