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
Amicus Briefs
AARP NELA Amicus Brief – Mt. Lemmon Fire District v. Guido & Rankin
On July 12, 2018, NELA was pleased to join our colleagues at AARP and AARP Foundation Litigation on an amicus brief in support of the Respondents John Guido and Dennis Rankin in Mt. Lemmon Fire District v. Guido & Rankin, pending currently in the U.S. Supreme Court. This case concerns whether the Age Discrimination in Employment Act (ADEA) applies to state and local government entities with fewer than twenty employees. The brief makes a number of compelling arguments in favor of upholding the Ninth Circuit Court of Appeals ruling that the ADEA covers the entities in question. First, settled principles of statutory construction that have been reaffirmed many times by the U.S. Supreme Court support the conclusion that the employer in question is covered by the ADEA. Second, the brief draws on a number of previous decisions in which the Court declined to apply interpretations from cases arising under Title VII of the Civil Rights Act to the ADEA, where there were key differences in the texts, contexts, and histories of the respective statutes. Finally, the brief does well to point out that the Petitioners’ arguments regarding the potential threats that ADEA enforcement would pose to the financial survival … Read More
NWLC NELA Amicus Brief_Parker v. Reema Consulting_4th Cir_053018
On Wednesday, May 30, 2018, NELA was proud to join with a coalition of women’s, employee, and civil rights groups led by the National Women’s Law Center (NWLC) in filing an amicus brief in support of the Plaintiff-Appellant Evangeline Parker in Parker v. Reema Consulting Services, Inc., pending currently in the U.S. Court of Appeals for the Fourth Circuit. In the course of rising in the ranks while working at the defendant firm, the Plaintiff was subjected to a false and repugnant rumor that her professional advancement was due to her having a sexual relationship with a male manager. The rumor’s spreading resulted in Ms. Parker facing harassment and discrimination, and when she tried to stop the rumor and complained about the harassment she was facing, the company retaliated against her and ultimately terminated her employment. The district court relied on a number of inappropriate grounds in dismissing her claims, including erroneously holding that the type of rumor to which she was subjected could not support a claim for gender discrimination because it could be made about either a male or female employee. The amicus brief marshals a wide array of legal and social science evidence in demonstrating that … Read More
NELA AARP Amicus Brief – In re Anthem & Express Scripts ERISa Litigation
On May 2, 2018, NELA was pleased to join with AARP and AARP Foundation Litigation in filing an amicus brief on behalf of the plaintiffs/appellants in the U.S. Court of Appeals for the Second Circuit in In re Express Scripts Inc. & Anthem, Inc. ERISA Litigation. The Employee Retirement Income Security Act (ERISA) contains a broad, functional definition of who qualifies as a “fiduciary,” to ensure that employee benefit plans are managed prudently and loyally on behalf of their participants. This appeal concerns whether the district court erred by dismissing the plaintiffs’ claims that the defendant Anthem, Inc. and a third-party with whom it contracted to provide the pharmacy benefit services to the plan (ESI), were both fiduciaries under ERISA. The brief argues that based on 1) the policies and objectives underlying ERISA; 2) the functional authority granted to Anthem under the terms of the plan; and 3) the discretion exercised by ESI under its agreement with Anthem, both companies were fiduciaries under ERISA. The brief was drafted by Karen L. Handorf of Cohen Milstein Sellers & Toll, PLLC, with assistance from Mary Ellen Signorille of AARP Foundation Litigation (both Washington, DC).… Read More
NWLC NELA Amicus Brief_Jock, et al. v. Sterling Jewelers (2d Cir.)_031418
On Wednesday, March 14, 2018, NELA joined the National Women’s Law Center (NWLC) and a group of over two dozen women’s, employee, and civil rights organizations in supporting the Plaintiff-Appellants in their appeal in Jock, et al. v. Sterling Jewelers, pending currently in the U.S. Court of Appeals for the Second Circuit. This long-running case involves a challenge to systemic sex discrimination in pay and promotion opportunities under Title VII of the Civil Rights Act and the Equal Pay Act. After being moved from court into arbitration, the plaintiffs in this case argued successfully to the arbitrator that they are entitled to proceed as a class. The defendant convinced the district court to reverse the arbitrator’s decision to certify the class, and the plaintiffs have appealed. Among other important arguments, the amicus brief highlights how essential class actions are to efficiently and effectively addressing pervasive workplace abuses, while also protecting class members from the retaliation they are far too likely to face if forced to proceed individually. The brief was drafted by our colleagues at the NWLC and NELA member Carolyn Wheeler from Katz, Marshall & Banks, LLP (Washington, DC).… Read More
NELA AARP Amicus Brief – Reagan-Diaz v. Sessions (D.C. Cir.)
Sharon Reagan-Diaz v. Jeff Sessions in the United States Court of Appeals for the District of Columbia.… Read More
LCCHR NWLC NELA Amicus Brief_Janus v. AFSCME, et al._011918 (U.S. Supreme Court)
On January 19, 2018, NELA joined a coalition of over 80 civil and workers’ rights groups in filing an amicus brief on behalf of the Respondents in Janus v. AFSCME, et al., pending currently in the U.S. Supreme Court. This case involves a challenge to “Fair Share” rules, which require non-union employees to pay a modest sum to a union who represents other workers in the same bargaining unit, in exchange for the numerous resources those unions expend on behalf of union and non-union workers alike. The brief brings to the Court’s attention the primary role that public sector professions have played in providing equal employment opportunity and economic empowerment for members of some of the most vulnerable, disenfranchised people in America. Further, it highlights the importance of “Fair Share” fees in allowing public sector unions to continue to provide essential benefits and protections for both union and non-union workers. The brief was drafted by our colleagues at The Leadership Conference on Civil and Human Rights and the National Women’s Law Center, with assistance from colleagues at Jenner & Block LLP and the Supreme Court and Appellate Clinic at the University of Chicago Law School.… Read More
ACLU CWLL NELA Amicus Brief_Legg v. Ulster County_2d Cir_011118
On January 11, 2018, NELA joined a coalition of civil rights and gender equity groups in signing an amicus brief filed by the ACLU Women’s Rights Project (WRP) and the Center for WorkLife Law (CWLL) in Legg et al. v. Ulster County (2d Cir.). This case concerns the appropriate interpretation and application of the Pregnancy Discrimination Act (PDA) in the wake of the U.S. Supreme Court’s decision in Young v. UPS (2015), as applied in a case alleging that a particular policy has a disparate impact on pregnant employees (in this case, corrections officers). In arguing that the ruling of the district court should be reversed, the amicus brief highlights the central purpose of the PDA, as reaffirmed in Young, which is to assure that employers do not disadvantage pregnant workers as compared to their non-pregnant peers. Specifically, the brief challenges the lower court’s holding requiring the plaintiff not only to demonstrate that the light duty policy in question had a disparate impact on pregnant workers, but also to further prove that all or most pregnant officers will require light duty to continue working. As the brief ably demonstrates, this ruling turns the applicable disparate impact analysis on its … Read More
NELA Amicus Brief: Encino Motorcars, LLC v. Navarro, et al. (U.S. Supreme Court)
On Thursday, December 7, 2017, NELA filed an amicus brief in the U.S. Supreme Court on behalf of the Respondents in Encino Motorcars, LLC v. Navarro, et al. At issue in this case is whether automobile dealership Service Advisors are exempt from the overtime protections in the Fair Labor Standards Act (FLSA). This is the second time in as many years that the High Court has reviewed this case, and NELA is proud once again to support the efforts of these employees to ensure that they receive full compensation, including overtime pay, for all of the hours they work. NELA’s amicus brief argues persuasively that a plain reading of the text of the FLSA supports the Respondents’ contention that they are not exempt from the statute’s overtime protections. In addition, the brief marshals a compelling array of sources in demonstrating that the broader remedial purposes of the FLSA also support the Respondents’ position. The brief was drafted by NELA member Jamie Golden Sypulski (Law Office of Jamie Golden Sypulski, Chicago, IL).… Read More
Brotherston, et al. v. Putnam Investments, et al. (1st Cir. ERISA)
On November 8, 2017, NELA joined our colleagues at AARP in filing an amicus brief on behalf of the Plaintiff-Appellants in Brotherston, et al. v. Putnam Investments, et al., pending currently in the U.S. Court of Appeals for the First Circuit. The district court’s decision in this case incorrectly found that the defendant had prudently selected and monitored the investment options—which included its own proprietary funds—in its 401(k) plan. In providing important historical context regarding the development and enactment of the Employee Retirement Income Security Act (ERISA), the amicus brief demonstrates the need for ERISA’s rules governing the responsibilities of retirement plan trustees to be carefully and rigorously enforced. The need for retirement plan administrators to demonstrate the highest levels of prudence, loyalty, and care is of particular importance in the case of defined contribution retirement plans, such as 401(k) plans, as even relatively small additional fees or losses due to risky investments can have a large impact on the amount of savings available to plan beneficiaries upon retirement. The amicus brief was drafted by NELA member Mary Ellen Signorille (AARP Foundation Litigation, Washington, DC) with input from NELA ERISA expert Jeffrey Lewis (Keller Rohrback, LLP, Oakland, CA).… Read More
NELA Amicus Brief: Nesbitt v. FCNH, et al. (10th Cir.)
On October 4, 2017, NELA and a group of Business & Economics Law Professors filed an amicus brief in U.S. Court of Appeals for the Tenth Circuit, on behalf of Plaintiff-Appellant Rhonda Nesbitt and a putative class of her fellow massage therapy students, in Nesbitt v. FCNH, et al. This appeal involves unpaid massage therapy students who performed clinical massages for paying clients at the defendants’ for-profit massage therapy schools. The amicus brief draws on a range of interdisciplinary sources in arguing that under the appropriate interpretation of the Fair Labor Standards Act, Ms. Nesbitt and her fellow students were entitled to compensation for the work they performed. Among a number of important points made in the brief, it urges the court to draw a key distinction between “interns” hired by a company as trainees and “students” at for-profit schools who are required as a condition of their training to provide unpaid labor from which their school receives revenue. NELA is grateful for the efforts of Professor Scott A. Moss (University of Colorado Law School) and NELA member Hunter A. Swain (King & Greisen, LLP, Denver, CO), who drafted the brief on behalf of NELA and the group of law … Read More
