NELA

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Amicus Briefs

Amicus Briefs

Whitley v. BP: NELA AARP Amicus Brief (5th Circuit)

For nearly two decades, some courts presumed that it was prudent to invest a retirement plan’s assets in an Employer Stock Option Plan (ESOP), i.e., a benefit plan invested in the employer’s own company stock. Recently, however, the U.S. Supreme Court decided in Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459 (2014), that there is no statutory basis for excluding fiduciaries of ESOPs from ERISA’s generally applicable duty of prudence. After discarding the “presumption of prudence” for ESOPs, the Court addressed pleading standards in such cases, holding that in order to plead that a fiduciary violated his or her duty of prudence, a plaintiff must “plausibly allege[] that a prudent fiduciary in the defendant’s position could not have concluded” that stopping purchases of the employer’s stock “would do more harm than good” to the retirement fund in question.

After Dudenhoeffer was decided, the Whitley Defendants argued that the Plaintiffs’ claims must be dismissed unless the Plaintiffs could plausibly allege—and subsequently prove—that no prudent fiduciary could have concluded that stopping purchases of BP stock would have caused more harm than good to the underlying fund. In sum, the Defendants’ proposed standard would force the Plaintiffs to undertake the practically … Read More

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NELA Amicus Brief: Sharif v. United Airlines (4th Circuit)

On October 26, 2015, NELA joined the Metropolitan Washington Employment Lawyers Association (MWELA) in filing an amicus brief in the U.S. Court of Appeals for the Fourth Circuit in support of the Plaintiff-Appellant in Sharif v. United Airlines, Inc.

Drawing on an extensive line of cases from the U.S. Supreme Court and Courts of Appeals, the amicus brief systematically dismantles the legal and practical reasoning underlying the so-called “honest belief” defense. To accept a defendant’s professed “honest belief” that the reasons for taking an adverse action against an employee are correct, when presented with evidence that the asserted reasons are unworthy of credence, requires the court to draw a series of inferences regarding the weight of that evidence and the credibility of those presenting it, in favor of the non-moving party. This is forbidden at summary judgment, as recently re-affirmed by the U.S Supreme Court in Tolan v. Cotton, 134 S. Ct. 1861 (2014). Further, the brief thoroughly demonstrates that the application of the “honest belief” defense is incompatible with the longstanding rules courts have used to determine whether a defendant’s proffered non-discriminatory reasons are in fact a pretext for unlawful behavior.

The brief was drafted by Stephen … Read More

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NELA Amicus Brief: Carcaño v. McCrory (4th Circuit)

On October 25, 2016 NELA joined a coalition of groups led by Bay Area Lawyers for Individual Freedom (BALIF) and the Impact Fund in signing onto an amicus brief in Carcaño v. McCrory, currently pending in U.S. Court of Appeals for the Fourth Circuit. This case involves a challenge to a portion of North Carolina’s notorious “HB-2” law that would prevent transgender persons from using public restrooms in line with their gender identity, if that identity does not match the gender on their birth certificate. The plaintiffs in this case sought a preliminary injunction against enforcement of the provision as applied to all transgender persons who reside in or visit North Carolina. The district court, however, chose only to enjoin enforcement of the law against the plaintiffs.

The amicus brief was drafted by NELA member Lindsay Nako and Lynnette Miner (Impact Fund, Berkeley, CA), and the amicus sign-on outreach was coordinated by NELA member Julie Wilensky (Disability Rights California, Oakland, CA), on behalf of BALIF.… Read More

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NELA Amicus Brief: Tyson Foods Inc. v. Bouaphakeo (U.S. Supreme Court)

On September 29, 2015, NELA filed an amicus brief jointly with AARP, Interfaith Worker Justice, and the National Employment Law Project (NELP) in support of respondents in Tyson Foods Inc. v. Bouaphakeo, No. 14-1146, pending in the U.S. Supreme Court. This case concerns certification of state law class action wage and hour claims under Federal Rule of Civil Procedure 23, collective action claims under the Fair Labor Standards Act, and the use of representative evidence. The brief was drafted by NELA member Seth R. Lesser, Klafter Olsen & Lesser LLP, Rye Brook, NY.

Employees at a Tyson meat-processing facility brought Fair Labor Standards Act (FLSA) and Iowa Wage Payment Collection Law (IWPCL) claims seeking compensation for time spent walking to their worksites and donning and doffing protective equipment. Tyson did not keep records of the hours employees worked. The district court certified the FLSA claims as a collective action and the IWPCL claims as a class action under FRCP 23(b)(3), finding the FLSA and IWPCL claims substantively the same and subject to the same proof.

At trial, plaintiffs introduced average donning, doffing, and walking times calculated from 744 employee observations and applied this evidence to class members individually using … Read More

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NELA Amicus Brief: Campbell-Ewald Co. v. Gomez (10th Circuit)

On August 31, 2015, NELA, joined by the National Employment Law Project (NELP), filed an amicus brief, in support of the respondent in Campbell-Ewald Co. v. Gomez, No. 14-857, pending in the U.S. Supreme Court on appeal from the U.S. Court of Appeals for the Ninth Circuit. This case concerns whether a rejected offer of judgment made under Federal Rule of Civil Procedure 68 moots plaintiff’s individual and class claims before class certification. Although this is a consumer action, the Court’s ruling will apply to cases brought to enforce employment rights. The amicus brief was drafted by NELA member Adam W. Hansen, Nichols Kaster, PLLP, Minneapolis, MN.

Plaintiff Jose Gomez filed a class action under the Telephone Consumer Protection Act (TCPA) against a national marketing company retained by the U.S. Navy to send recruiting text messages. Text messages were sent to plaintiff and 100,000 others. The TCPA provides statutory damages for unauthorized messages in the amount of $500 per violation. Defendant tendered a Rule 68 offer of judgment to plaintiff to fully satisfy his individual claims prior to certification of a class, which Plaintiff did not accept. Defendant then moved to dismiss for lack of jurisdiction, arguing that the … Read More

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NELA Amicus Brief: Green V. Brennan (U.S. Supreme Court)

On July 13, 2015, NELA filed an amicus brief in support of petitioner in Green v. Brennan, No. 14-613, pending in the U.S. Supreme Court on appeal from the U.S. Court of Appeals for the Tenth Circuit. This case concerns the timeliness of an EEO complaint alleging constructive discharge under Title VII.

Petitioner Marvin Green, while postmaster for Englewood, Colorado, applied in 2008 for a promotion, which he did not get. Believing he was subjected to race discrimination because the successful candidate had less experience and did not submit an application, Green contacted a Postal Service EEO counselor and asked to have his concerns investigated. Thereafter, relations with his supervisors soured. In 2009, he twice went to Postal Service EEO counselors complaining about retaliation. In November 2009, while his claims were under investigation, Green was summoned by his superiors to an “investigative interview,” which was held on December 11, 2009 and attended by agents from the Postal Service’s Office of the Inspector General. There, Green was accused of mismanagement and “intentionally delaying the mail,” which is a crime. He was put on Emergency Placement in Off-Duty Status without pay. After several days of negotiations in which his union participated, … Read More

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NELA Amicus Brief: Monroe v. FTS USA (6th Circuit)

On July 2, 2015, NELA filed an amicus brief in support of the plaintiff-appellees in Monroe v. FTS USA, LLC, No. 14-6063 (6th Cir.). This case asks the court to affirm a jury’s verdict that FTS’s company-wide policy requiring its cable technicians to work overtime hours without compensation violated the Fair Labor Standards Act (FLSA). The brief was written by NELA member Laura L. Ho and William C. Jhaveri-Weeks of Goldstein, Borgen, Dardarian & Ho in Oakland, California. NELA members Rachhana T. Srey and Paul J. Lukas of Nichols Kaster, PLLC in Minneapolis, Minnesota served as counsel at the trial level where they obtained $3.8 million in damages in this collective action.

Defendant-employer FTS USA “provides engineering services, cable installation, maintenance, splicing, sweep, certification, balancing, disconnect and customer service to the evolving cable television industry” and operates out of nearly 30 markets. A group of cable technicians working for the company alleged that “they worked an average of over 13 hours of unrecorded time each week without being paid for it” in violation of the FLSA. Based on trial testimony from many of these technicians, and other employees, a jury found that “FTS was liable under the FLSA for its … Read More

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NELA Amicus Briefs: Kaplan v. Saint Peter’s Healthcare System (3rd Circuit), and Stapleton v. Advocate Health Care Network (7th Circuit)

NELA joined AARP to file amicus briefs in support of the plaintiffs-appellees in Kaplan v. Saint Peter’s Healthcare System, No. 14-8125 (3d Cir.), and Stapleton v. Advocate Health Care Network, No. 15-1368 (7th Cir.). These cases challenge the claimed religious exemption from the Employee Retirement Income Security Act’s (ERISA) requirements by two large health care organizations. The amicus brief in Kaplan was filed on May 11, 2015 and the Stapleton brief was filed on May 13, 2015. The amicus briefs were drafted by NELA members Mary Ellen Signorille of AARP Foundation Litigation, Washington, DC and Ronald Dean, Pacific Palisades, CA.

Both cases were bought as putative class actions on behalf of participants and beneficiaries of the defendants-appellants’ retirement plans, alleging that the plans are improperly maintained as exempt church plans under ERISA, 29 U.S.C. § 1001 et seq. Both organizations are large well-funded employers. Saint Peter’s Healthcare System (SPHS) is a non-profit healthcare corporation headquartered in New Brunswick, New Jersey with over 2,800 employees. In 1974, SPHS established its retirement plan, which is a non-contributory defined benefit pension plan and, for over thirty years, operated it as an ERISA plan. In 2006, during the nationwide economic downturn, SPHS … Read More

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NELA Amicus Brief: Saleem v. Corporate Transportation Group (2nd Circuit)

On April 28, 2015, NELA joined the National Employment Law Project (NELP), the Legal Aid Society of New York, Urban Justice Center, and Make the Road New York (MRNY) to file an amicus brief in support of plaintiffs-appellants Mazhar Saleem and more than 200 opt-in plaintiffs and others similarly situated in the case of Saleem v. Corporate Transp. Group, Ltd., Case No. 12-CV-8450, pending in the U.S. Court of Appeals for the Second Circuit. The issue on appeal is whether the district court erred in granting summary judgment to defendants and holding that the plaintiffs, drivers for defendants’ black car transportation business, were “independent contractors” instead of “employees” and thus not covered by the Fair Labor Standards Act (FLSA). The district court found for the defendants in spite of the “ample evidence in the record showing Plaintiffs meet the broad definition of ’employee’ under the FLSA as defined in settled Second Circuit law.” Amici urged the Second Circuit to reverse the district court’s decision and remand to allow a jury to decide the question of the drivers’ employment status under the FLSA.

Misclassification of workers as independent contractors rather than as employees has serious social and economic implications—and is … Read More

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NELA Amicus Brief: Stephenson v. Pfizer, Inc. (4th Circuit)

On March 9, 2015, NELA joined Disability Rights North Carolina and the National Disability Rights Network to file an amicus brief in support of plaintiff-appellant Whitney Stephenson in the case of Stephenson v. Pfizer, Inc., Case No. 14-2079, pending in the U.S. Court of Appeals for the Fourth Circuit. The issue on appeal is whether the district court erred in interpreting the language of the Americans with Disabilities Act (ADA) regarding the nature of the essential functions of the job and the scope of reasonable accommodations as set forth in the statute.

Plaintiff-appellant Whitney Stephenson has worked for Pfizer, Inc. as a pharmaceutical sales representative since 1984. As a pharmaceutical sales representative, Stephenson was required to meet with approximately eight to ten physicians per day to sell them Pfizer products, which meant that she spent up to ninety percent of her time traveling between various physicians’ offices in the Winston-Salem, North Carolina area. In October 2008, Stephenson was diagnosed with a disorder which caused a significant loss of vision in her left eye and the same condition affected her right eye in 2011. By October of that year she was legally blind and unable to drive safely. Stephenson had … Read More

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NELA Amicus Brief: Powers v. Union Pacific RR Co. (ARB)

On December 17, 2014, NELA joined the National Whistleblowers Legal Defense and Education Fund, Truckers Justice Center and Teamsters for a Democratic Union to file an amicus brief in support of Complainant Robert Powers in the case of Powers v. Union Pacific RR Co., Case No. 13-034, pending before the Administrative Review Board (ARB) of the U.S. Department of Labor. The ARB is reviewing this appeal en banc and invited submission of amicus briefs from interested entities. This case presents the pure legal issue of whether the majority opinion in an earlier case before the ARB, Fordham v. Fannie Mae, articulated the correct contributing factor causation standard for retaliation claims brought under certain whistleblower statutes. See Fordham v. Fannie Mae, ARB Case No. 12-061, ALJ Case No. 2010-SOX-051 (October 9, 2014).

The amicus brief argued that the Fordham opinion faithfully follows the plain language of the statute, the legislative history behind it, and the treatment that the ARB and federal courts have given to the family of AIR 21 retaliation statutes, which protect employees of air carriers (including contractors and subcontractors) who report violations. Proof of retaliation under AIR21 is different from that under Title VII’s burden-shifting scheme established … Read More

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NELA Amicus Brief: EEOC V. Abercrombie & Fitch Stores, Inc. (U.S. Supreme Court)

On December 10, 2014, NELA joined the General Conference of the Seventh-day Adventists and other religious and civil rights organizations to file an amicus brief supporting Petitioner EEOC in the case of EEOC v. Abercrombie & Fitch Stores, Inc., Case No. 14-86, pending in the U.S. Supreme Court. The question presented is whether an employer can be liable under the religious accommodation provision of Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee. This case provides the Supreme Court with the opportunity to clarify the knowledge and notice requirements for religious accommodations under Title VII.

At the district court, the EEOC was granted summary judgment on its claims that Abercrombie violated Title VII by failing to provide a religious accommodation to a female applicant who wore a hijab or head scarf to an interview and declining to hire her. After a trial limited to damages, a jury awarded $20,000 in compensation. The U.S. Court of Appeals for the Tenth Circuit reversed, instructing … Read More

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