NELA

Empowering Workers' Rights Attorneys

Amicus Briefs

Amicus Briefs

NELA Amicus Brief: Wang v. The Hearst Corporation (2nd Circuit)

On March 3, 2014, NELA joined the National Employment Law Project (NELP), the Economic Policy Institute, the Writers Guild of America East, Ross Perlin and Professor David Yamada in submitting an amicus curiae brief in the U.S. Court of Appeals for the Second Circuit in support of plaintiff Xuedan Wang and similarly situated unpaid interns who were not compensated for their hours worked at The Hearst Corporation in violation of the Fair Labor Standards Act and New York state law. NELA members Adam Klein and Rachel Bien of Outten & Golden LLP represent the plaintiff and potential class. The issues raised by this case fit squarely within NELA’s amicus priorities of protecting workers’ wages and opposing wage theft.

The Hearst Corporation is one of the largest publishers of monthly magazines in the United States. Since 2008, Hearst has sought to reduce overhead and costs by eliminating paid positions and, at some magazines, directing that unpaid interns be hired. Hearst engaged over 3,000 interns from 2007 to 2013. Many of the interns worked more than 40 hours per week and Hearst did not dispute that some of the duties performed by the interns had been and were now being done by … Read More

DOWNLOAD

NELA Amicus Brief: Travers v. Cellco Partnership d/b/a Verizon Wireless (6th Circuit)

On March 3, 2014, NELA filed an amicus curiae brief in Travers v. Cellco Partnership d/b/a Verizon Wireless in the U.S. Court of Appeals for the Sixth Circuit in support of plaintiff Patricia Travers who was wrongfully terminated in violation of the ADA and in retaliation for taking FMLA leave. The court in the Middle District of Tennessee granted Cellco’s motion for summary judgment on Travers’ disability claim for two reasons. First, it found insufficient evidence that Travers was “regarded as” having a disability because Travers did not show that she was regarded as unable to do her job or as being substantially limited in performing the tasks of her job. Second, the court found insufficient evidence that the alleged misconduct was pretext. The definition of disability under the ADAAA is one of NELA’s current amicus priorities.

Travers had been terminated immediately upon her return to work after taking approved medical leave, allegedly for waiving mail in rebates for customers. Verizon’s FMLA leave is handled by third party administrator, MetLife. In order for an employee to not be penalized for taking medical leave, it must be designated as FMLA after the employee has gone through a cumbersome qualification process. Any … Read More

DOWNLOAD

NELA Amicus Brief: DeMasters v. Carilion Clinic (4th Circuit)

On February 25, 2014, NELA filed an amicus curiae brief in the U.S. Court of Appeals for the Fourth Circuit in support of plaintiff DeMasters who was wrongfully terminated in retaliation for using established internal complaint mechanisms to notify Carilion Clinic about the sexual harassment of a co-worker by a supervisor. The court in the Western District of Virginia granted Carilion’s Rule 12(b)(6) motion to dismiss, holding that DeMasters failed to state a plausible claim of retaliation under Title VII because he did not produce sufficient facts to establish that he engaged in a protected activity. The circumstances surrounding DeMasters’ termination were egregious. DeMasters worked as an Employee Assistance Program (EAP) counselor for Carilion Clinic for more than five years. In October 2008, DeMasters reported to Carilion’s human resources department that another employee, John Doe, had confided to DeMasters that Doe was being subjected to harassment. This was well before Doe filed an EEOC charge and subsequent lawsuit. In August 2011, shortly after Doe’s lawsuit was settled, DeMasters was questioned by Carilion managers about his involvement with Doe in 2008. DeMasters was asked why he had not taken the “pro-employer side” concerning Doe’s complaints. DeMasters also was told that he … Read More

DOWNLOAD

NELA Amicus Brief: Roach v. T. L. Cannon Corp. (2nd Circuit)

In Roach v. T. L. Cannon Corp., the district court denied class certification of a putative class of employees of an Applebee’s restaurant chain who were denied wages to which they were entitled under federal and New York law based upon the U.S. Supreme Court’s recent decision in Comcast v. Behrend, 133 S. Ct. 1426, 185 L. Ed. 2d 515 (2013). The court denied class certification holding that the damages calculations of individual class members would be “highly individualized,” and thus could not meet the “predominance” prong of Rule 23(b)(3).

NELA’s amicus brief in the U.S. Court of Appeals for the Second Circuit challenges the district court’s reading of Comcast because it upends long standing and widespread principles of black letter law by imposing a new requirement that class certification depends on the existence of class wide theory as to both liability and damages. We argue that by applying Comcast in this fashion, the district court effectively transformed the wage and hour laws on this matter, adopted an erroneous reading of Comcast, and established a sweeping rule that, if accepted, would fundamentally alter the contours of class litigation under Rule 23(b)(3). Our brief addressed the significant implications … Read More

DOWNLOAD

NELA Amicus Brief: EEOC v. Abercrombie & Fitch Stores, Inc. (10th Circuit)

NELA filed an amicus brief in EEOC v. Abercrombie & Fitch Stores, Inc. in support of the U.S. Equal Employment Opportunity Commission’s petition for rehearing en banc before the U.S. Court of Appeals for the Tenth Circuit, in which the panel reversed a grant of summary judgment to the EEOC in this religious accommodation case, and granted summary judgment in favor of Abercrombie & Fitch. In a 93-page opinion, containing a strong dissent, the majority dismissed the plaintiff’s religious accommodation claim because she never informed Abercrombie that she wore her hijab for religious reasons and needed an accommodation for that practice due to a conflict between the practice and Abercrombie’s clothing policy. The assistant manager who interviewed the plaintiff, however, assumed she was a Muslim and wore a hijab for that reason. The plaintiff was never made aware of Abercrombie’s clothing policy, and thus was unaware of any conflict between that policy and wearing a hijab. The EEOC’s petition focuses on the Tenth Circuit’s creation of a rigid prima facie case requirement in this case, which is contrary to Tenth Circuit and U.S. Supreme Court precedent. Its brief also addressed the court’s requirement that the individual must be the source … Read More

DOWNLOAD

NELA Amicus Brief: Hithon v. Tyson Foods, Inc. (11th Circuit)

NELA Vice President Alicia K. Haynes and NELA members Kenneth D. Haynes and Eric Schnapper have litigated the famous Ash and Hithon v. Tyson Foods case since December 1996. Their clients prevailed through two successful jury trials, endured three appeals to the U.S. Court of Appeals for the Eleventh Circuit (in the 2011 appeal, they prevailed with a reversal in part en banc), and made new law with the landmark decision in Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). On March 19, 2013, the trial court refused to award attorney’s fees for their work as reflected in their fee petition, slashed their hours by 80% across the board, and awarded just $281,103.25, or 14% of the $1,981,678.00 originally sought. NELA’s amicus brief urges the Eleventh Circuit to vacate the fee determination and remand for a more detailed explanation of the fee reductions. The brief asks the court to keep an eye on the goal of encouraging competent attorneys to accept civil rights cases. The brief notes that failure to encourage competent attorneys to take contingent cases will lead to an increase in the number of claimants who proceed pro se. NELA extends its gratitude to NELA … Read More

DOWNLOAD

NELA Amicus Brief: Lawson v. FMR LLC (U.S. Supreme Court)

NELA and the Government Accountability Project argue in this amicus brief that the remedial nature of the Sarbanes-Oxley Act (SOX) calls for broad and inclusive application, which is necessary to prevent a crisis in the mutual fund industry, such as the one that occurred in the banking sector in 2008. An interpretation of “employee” that limits coverage to employees of public companies would undermine SOX’s basic purpose. Publicly traded companies increasingly use a variety of contractual relationships to separate functions into organizations focused on those functions. These employees are in a position to expose corporate fraud. In the context of the mutual fund industry, all the employees would be without whistleblower protection under Section 806.

We further argue that an interpretation of the term “employee” to cover employees of private contractors and subcontractors is consistent with the plain text of the statute, the legislative history, the remedial purpose, and Department of Labor procedural regulations and policy implementing Section 806. A contrary interpretation would leave a significant number of employees unprotected.

Authors: R. Scott Oswald and Kellee Boulais Kruse (The Employment Law Group, Washington, DC), Richard R. Renner (Kalijarvi, Chuzi, Newman & Fitch, P.C., Washington, DC), Michael T. Anderson (Murphy Anderson … Read More

DOWNLOAD

NELA Amicus Brief: Adams v. Festival Fun Parks (2nd Circuit)

NELA was joined by The Arc of the Unites States, the National Disability Rights Network, The Office of Protection and Advocacy for Persons with Disabilities, and Disability Rights Vermont on an amicus brief in this case to ensure that the U.S. Court of Appeals for the Second Circuit had a full understanding of the ADA Amendments Act’s (ADAAA) changes to the disability analysis and, when applying those changes, of the inherent nature of intellectual disability. Both are issues of first impression for the Second Circuit and both analyses were badly botched by the district court. Author: Brian East

… Read More
DOWNLOAD

NELA Amicus Brief: Summers v. Altarum Institute Corp. (4th Circuit)

On July 14, 2013, NELA joined AARP in filing an amicus brief supporting Carl Summers, a contract statistician with Altarum Institute Corp. who sustained serious injury to both legs in 2011 accident, in his appeal to the U.S. Court of Appeals for the Fourth Circuit. Mr. Summers was terminated while recuperating from these injuries despite properly requesting an accommodation under the federal disability laws. Amici address several aspects of disability law not analyzed with clarity or precision by the district court, including the significance of enactment of the ADA Amendments Act of 2008 (ADAAA) as well as the issuance of revised regulations by the U.S. Equal Employment Opportunity Commission (EEOC) regarding the status of non-permanent medical conditions. In particular, the district court failed to properly analyze whether Summers was “substantially limited” in a “major life activity,” and whether Altarum “failed” to “reasonably” accommodate his injuries.

Authors: Daniel B. Kohrman, Brian East

… Read More
DOWNLOAD

NELA Amicus Brief: Tatum v. RJ Reynolds (RJR) (4th Circuit)

In the Fourth Circuit case, Tatum v. RJ Reynolds Investment Committee, et al. (Case No. 13-1360), after RJR Nabisco Holdings Inc. spun off defendants R.J. Reynolds Tobacco Co. and R.J. Reynolds Tobacco Holdings Inc. in 1999, Nabisco stock was sold and removed from the pension plan. The plaintiffs argue that defendants hoped this sale and removal decision would make raise the Nabisco stock’s value by distancing it from litigation against the tobacco companies. The district court found that the plan had breached its fiduciary duties of procedural prudence by removing and selling the stock without a proper investigation, but then found that because a hypothetical prudent fiduciary “could” have taken this same action, the plan was absolved of liability—this was a far more lenient standard than the “would” have taken standard that plaintiffs urged the court to use. Our amici brief argues that the protections afforded by ERISA are of vital concern to workers of all ages and to retirees, as the quality of workers’ lives in retirement depends heavily on their eligibility for, and the amount of, their retirement and welfare benefits. In order to provide participants’ retirement security, we advocate that ERISA must be construed to actually protect … Read More

DOWNLOAD

NELA Amicus Brief: Heimeshoff v. Hartford Life & Accident Insurance Co. and Wal-Mart Stores, Inc. (U.S.Supreme Court)

Heimseshoff v. Hartford Life & Accident Insurance Co. and Wal-Mart Stores, Inc. (Case No. 12-729) involves the question of when a statute of limitations should accrue under ERISA for judicial review of an adverse disability benefit determination. In this case, the plaintiff brought suit to obtain long-term disability benefits to which she was entitled under the employee benefit plan. The lower courts, however, dismissed her cases time-barred by the three-year statute of limitations period set out in the benefit plan policy. If the Court were to adopt Hartford’s reading, the plan’s statute of limitation for judicial review of such adverse determinations would run before the employee even knew that his or her claim had accrued.

NELA and AARP’s amici brief argues that despite the Court’s decision last term in U.S. Airways v. McCutcheon, 569 U. S. ____ (2013), holding that clear plan terms are enforceable, here an implied term must be read into the long-term disability ERISA plan at issue in order to make the plan term surrounding the limitations period workable. In particular, amici urge the Court to allow for equitable tolling of the contractual limitations period during the time a claimant is unable to bring suit because … Read More

DOWNLOAD

NELA Amicus Brief: Howe v. Akron (6th Circuit)

NELA’s amicus brief joins with the plaintiffs and their counsel in urging the Sixth Circuit to adopt the majority view of Circuits around the country that court-initiated sanctions under section 1927 requires a finding of bad faith by the trial court. No such finding was made in this case. Different panels of the Sixth Circuit have applied varying standards concerning section 1927 sanctions. Nevertheless, even using the lowest standard applied by certain panels of the Sixth Circuit (which requires only “something more than negligence or incompetence”), plaintiffs counsel’s conduct would not have warranted sanctions. Counsel, instead, undertook the natural and proper steps of complying with a change in the court’s orders. NELA’s amicus also argues that imposition of this sanction has an undue chilling effect on civil rights advocacy, violates due process, and raises a concern about the unusually high incidence of controversial sanctions imposed by this particular trial court judge.

Brief writers: Richard R. Renner; Bennet D. Zurofsky

… Read More
DOWNLOAD