On September 7, 2022, NELA joined NELP in filing an amicus brief in the 2nd Circuit case Bille, et al v. Coverall North America, Inc. This brief addresses the serious harms of forcing arbitration on low-wage workers and urges the 2nd Circuit to ensure that workers can return to court in the event that unscrupulous employers attempt to exploit the arbitration system. In this case, employer Coverall attempted to bypass earlier commitments to cover the costs of arbitration and when the arbitration was closed because of default, contested the district court decision to lift the stay on litigation. As the brief concludes, “Although the district court went farther than it should have in trying to preserve arbitration in this case, it reached the right result–Coverall waived its right to arbitrate by abusing the system, and when its insistence on forcing Reeves to pay led to AAA closing the case, arbitration was ‘had.’ ” NELA is grateful to Richard J. Burch, Brucker Burch PLLC (TX) and NELA Member Michael Scimone, Outten & Golden (NY) for taking the lead on the brief, and Michael T. Anderson, Murphy Anderson PLLC (MA) and Catherine K. Ruckelshaus (NELP) for their invaluable support.… Read More
2nd Circuit
NELA Statement on the Confirmation of Myrna Perez to the Second Circuit Court of Appeals
Contact: Andrea Hansen, ahansen@flyingcrow.com, (509) 306-1867
The National Employment Lawyers Association (NELA) celebrates today’s U.S. Senate vote confirming Judge Myrna Pérez to the Second Circuit Court of Appeals. Pérez is one of only two Latinx judges serving on the Second Circuit, which serves a diverse region with a large Latinx community. She is also the first Latina to serve on the Second Circuit since Justice Sonia Sotomayor was appointed to the Supreme Court. Latinx Americans make up only eight percent of active federal judges in the nation.
Pérez’s extensive experience as a litigator and legal academic makes her eminently qualified to serve on the Second Circuit. Her deep expertise in voting rights and election law is critically important. Ensuring that the federal bench includes more attorneys whose careers have been devoted to advancing civil and individual rights is vital to our democracy.
NELA has long advocated for and spoken out about the importance of experiential diversity on the bench. Research shows that judges with corporate or prosecutorial backgrounds are far more likely to rule against workers. Demographic and professional diversity within the federal judiciary is essential to ensure that workers have a fair shot at justice.
NELA is … Read More
NELA Strongly Support The Nomination Of Myrna Pérez To The U.S. Court Of Appeals For The Second Circuit
United States Senate Committee on the Judiciary
Dear Chairman Durbin, Ranking Member Grassley, and Committee Members:
On behalf of the National Employment Lawyers Association (NELA), and its 4,000 circuit, state, and local affiliate members across the country, we write to express our organization’s strong support for the nomination of Myrna Pérez to serve as a judge on the United States Court of Appeals for the Second Circuit.
NELA is the largest professional membership organization in the country comprised of lawyers who represent workers in labor, employment, and civil rights disputes. Founded in 1985, NELA advances employee rights and serves lawyers who advocate for equality and justice in the American workplace. Our members litigate daily in every federal district and circuit, affording NELA a unique perspective on how employment cases play out on the ground and an accurate understanding of the profound impact of the judiciary on the daily lives and the rights of working people.
The working people of our nation need and deserve judges who will protect the rights of all Americans and our democracy. The ballot box is a critical place where working people have a voice. Ms. Pérez has devoted her career to the principle at the … 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
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: 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: 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
NELA Amicus Brief: In Jacob v. Duane Reade, Inc. (2nd Circuit)
On April 22, 2014, NELA joined the Impact Fund and 24 other nonprofit organizations that advocate for workers’ rights, including the Legal Aid Society, LatinoJustice PRLDEF, the Legal Aid Society-Employment Law Center, the National Employment Law Project and Public Justice, in submitting an amicus curiae brief in the U.S. Court of Appeals for the Second Circuit in support of plaintiffs Mani Jacob and Lesleena Mars and similarly situated assistant managers at Duane Reade drugstores. NELA members Adam T. Klein and Molly Brooks of Outten & Golden LLP represent the plaintiffs and putative class. The issues raised in this amicus brief fall within NELA’s current amicus priority of class action preservation, i.e., “minimizing the impact of recent adverse decisions limiting the use of class and collective action mechanisms to vindicate workplace rights, especially in wage and hour cases.”
Jacob and Mars alleged that they and 746 current and former assistant store managers were misclassified as exempt employees by Duane Reade and not paid overtime in violation of the Fair Labor Standards Act and New York Labor Law. The U.S. District Court for the Southern District of New York certified a state law class under Rule 23(b)(3), concluding that substantial evidence showed … Read More
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
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
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
