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
Amicus Briefs
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 MoreBrotherston, 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 MoreNELA 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
NELA Amicus Brief: Williams v. Tarrant Cty. College District (5th Cir.)
NELA Amicus Brief: In re Koeck (D.C. Court of Appeals Board of Professional Responsibility)
NELA Amicus Brief: Gloucester Cty. School Board v. G.G. (U.S. Supreme Court)
NELA Amicus Brief: Forced Arbitration Joint Action Ban Cases (U.S. Supreme Court)
NELA was proud to join with our colleagues at the National Employment Law Project and ten labor unions in filing an amicus brief in the U.S. Supreme Court on Wednesday, August 16, 2017, in support of the National Labor Relations Board and employees in three consolidated cases addressing the validity of class, collective, and joint action bans in forced arbitration clauses in employment agreements. Specifically, the cases turn on whether the National Labor Relations Act (NLRA) and Norris-LaGuardia Act (NLGA) make it unlawful for an employer to prohibit its employees from filing legal claims on a joint, class, collective or other group action basis. The brief provides important context regarding the enactment of the NLRA and NLGA in demonstrating that the right to engage in “concerted activities for the purpose of . . . mutual aid or protection” contained in those statutes includes pursuing joint, class, and/or collective litigation. As such, forced arbitration clauses that prohibit employees from engaging in such activities in any forum, as a condition of employment, are invalid and unenforceable. The amicus brief was drafted by NELA member Michael Rubin and Eric P. Brown (both from Altshuler Berzon LLP, San Francisco, CA), with substantial input from … Read More
NELA Amicus Brief: Luke v. CPlace Forest Park SNF, LLC (5th Cir.)
On January 26, 2017, NELA joined the ACLU Women’s Rights Project and approximately two dozen other civil rights and public interest groups in filing an amicus brief in the U.S. Court of Appeals for the Fifth Circuit on behalf of the Plaintiff-Appellant in Luke v. CPlace Forest Park SNF, LLC. This case involves an appeal of a decision granting summary judgment against Eryon Luke, who was denied an accommodation of her lifting restriction during her pregnancy.
The brief argues that the district court made a number of errors in applying the standards established by the U.S. Supreme Court’s 2015 decision in Young v. United Parcel Service, Inc., and concluded that Ms. Luke had not presented a prima facie case of pregnancy discrimination, which Young held should not be an “onerous” standard. Given that only a handful of federal courts–including just two Courts of Appeals–have issued decisions interpreting Young, and given the disparate outcomes in those cases, it is critical to achieve appellate rulings that read Young’s liability standards expansively.
The brief was drafted by NELA member Gillian Thomas of the ACLU Women’s Rights Project, along with colleagues from the ACLU of Louisiana, A Better Balance, and … Read More
NELA Amicus Brief: Wang et al. v. Hearst Corp. (2d Cir.)
On January 13, 2017, NELA joined a coalition of groups led by the National Employment Law Project (NELP) in filing an amicus brief in the U.S. Court of Appeals for the Second Circuit on behalf of the Plaintiff-Appellants in Wang et al. v. Hearst Corp. This case involves the appeal of a district court’s grant of summary judgment to the Hearst Corporation by concluding that no reasonable jury could find that the unpaid intern plaintiffs are employees doing work meriting payment of minimum wages under the Fair Labor Standards Act (FLSA), as interpreted by an earlier Second Circuit case, Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015).
The brief argues that concerns regarding of the dangers of alternative working arrangements (including rampant use of unpaid interns) have further crystalized in the period since Glatt was briefed. Against that backdrop, the Hearst case presents the opportunity to clarify to district courts that Glatt did not alter the well-settled principle that exemptions to the FLSA should be applied narrowly; that the FLSA must be interpreted liberally; and that, in the summary judgment context, given how fact intensive the inquiry into economic realities necessarily is, disputed issues of … Read More
NELA Amicus Brief: Advocate Healthcare ERISA Church Plan Cases (U.S. Supreme Court)
NELA Amicus Brief: Palmer v. Canadian National Railway & Illinois Central Railroad Company (ARB)
On August 3, 2016, NELA, joined by the Truckers Justice Center, Teamsters for a Democratic Union, and General Drivers, Warehousemen & Helpers Local No. 89, filed an amicus brief with the U.S. Department of Labor’s Administrative Review Board (ARB) in support of whistleblower complainant Kenneth Palmer in Palmer v. Canadian National Railway/Illinois Central Railroad Company.
In its order setting Palmer for en banc review, the ARB requested supplemental briefs from the parties and interested amici curiae addressing two questions: 1) In deciding, after an evidentiary hearing, if a complainant has proven by a preponderance of the evidence that his protected activity was a “contributing factor” in the adverse action taken against him, is the Administrative Law Judge (ALJ) required to disregard the evidence, if any, the respondent offers to show that the protected activity did not contribute to the adverse action? 2) If the ALJ is not required to discard all such evidence, are there any limitations on the types of evidence the ALJ may consider?
The amicus brief argues that the plain meaning of the applicable statutory text, the legislative history surrounding the adoption of the text, and the text’s purpose as part of a broader regulatory scheme … Read More