NELA

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5th Circuit

Harris v. FedEx

On July 21, NELA and the National Institute for Workers’ Rights, along with the Texas Employment Lawyers Association (TELA), filed an amicus brief in the 5th Circuit on behalf of the appellee in Harris v. FedEx. This case is FedEx’s appeal of a significant verdict against it under Section 1981 for retaliating against Ms. Harris when she complained about racial discrimination at work. Harris’ verdict was obtained by NELA members Brian P. Sanford and Elizabeth (B.B.) Sanford (The Sanford Firm, TX).

The amicus brief focused on FedEx’s claim that the court should have enforced the contractually-shortened statute of limitations contained in FedEx’s standard job application, which says that any claim needs to be brought within six months. Our brief argued that it was unreasonable to shorten Section 1981’s statute of limitations from four years, as specified in the statute, to just six months. In making this argument, we pointed both to Texas’ public policy interests in keeping access to courts generally and on contract claims specifically, and also explained that the practicalities of litigation and finding counsel meant that six months was far too short a time for prospective plaintiffs like Harris. Many thanks to NELA/TELA member Walt … Read More

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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

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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: University of Texas Southwest Medical Center v. Nassar (Supreme Court)

Summary of NELA’s Amicus Brief:

  • The Supreme Court has repeatedly recognized that to effectively enforce Title VII’s substantive protections, Title VII’s antiretaliation provision must be broadly interpreted to ensure unfettered access to statutory remedial mechanisms.
  • The Court should reaffirm that while unlawful retaliation must prompt an employment decision, it need not be the sole factor.
  •  It is a workplace reality that adverse employment decisions can have multiple causes, and that Title VII is violated if an illegitimate motive plays a meaningful role in the ultimate decision made. Congress explicitly recognized that employment decisions involve multiple motives, but a discriminatory “motivating factor” should never be tolerated and must be purged from the employment process.
  • When the language of Title VII after the 1991 amendments is read in context with the Court’s broad protection of the right to be free from workplace retaliation and the legislative history of the Civil Rights Act of 1991, a fair reading compels the conclusion that the law is violated if an illegitimate motive is a “motivating factor” in an adverse employment decision.
  • Having different standards for proving intentional discrimination under the same statute would only create confusion for the parties, the trial courts, and the jury.
… Read More
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NELA Amicus Brief: In re Wells Fargo Wage & Hour Employment Practices Litigation (5th Circuit)

On December 20, 2012, NELA filed an amicus brief in the Fifth Circuit Court of Appeals in support of a group of Home Mortgage Consultants (HMC) who alleged they were misclassified by their employer and therefore unlawfully denied overtime payments in violation of the Fair Labor Standards Act (FLSA). This case is a part of a multi-district litigation that could involve as many as 15,000 HMCs nationwide.

After the district court judge granted conditional certification of the collective action – thereby allowing for notice to be sent to potential opt-in plaintiffs – the defendants petitioned the Fifth Circuit for a writ of mandamus. In their meandering petition, the defendants challenged not only the district court’s decision on conditional certification in this case, but also the two-step process for certifying collective actions that is currently used in every federal circuit. The defendants allege that the two-step conditional certification procedure currently used in collective actions arising under the FLSA, Age Discrimination in Employment Act (ADEA), and Equal Protection Act (EPA) is inconsistent with the Federal Rules of Civil Procedure (FRCP) and that such actions should be governed by Rule 23 of the FRCP as interpreted recently by the U.S. Supreme Court in … Read More

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NELA Amicus Brief: D.R. Horton v. National Labor Relations Board (5th Circuit)

On September 11, 2012, NELA and its associated educational and charitable organization, The Employee Rights Advocacy Institute For Law & Policy, joined with two dozen workers’ rights organizations to file an amicus brief in support of the National Labor Relations Board (Board) in D.R. Horton v. National Labor Relations Board, currently pending before the Fifth Circuit Court of Appeals. NELA’s brief urges the Fifth Circuit to affirm the earlier ruling of the Board in D.R. Horton and Michael Cuda, 357 NLRB No. 184 (2012).

The brief argues that requiring workers, as a condition of employment, to waive their rights to bring class, collective, joint, or representative actions in any forum violates those workers’ rights under sections 7 and 8(a)(1) of the National Labor Relations Act (NLRA). The brief discusses the well-settled principle that workers have a substantive right under the NLRA to use the judicial forum to achieve more favorable terms or conditions of employment. In addition, the brief points out that the availability of class actions not only makes vindicating the claims of low-wage workers cost-effective, but also provides an additional layer of protection against retaliation.

The brief further argues that the Board’s conclusions about the NLRA … Read More

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