On June 29, 2022, NELA filed an amicus brief in Holder v. A&L Homecare (22-3101), urging the 6th Circuit to maintain a 2-step FLSA certification process. This case addresses A&L Homecare’s attempt to avoid an FLSA collective action by arguing in favor of the much more restrictive process adopted in the 5th Circuit Swales decision. The brief addressed the history of collective actions and why courts across the country (including in the 6th Circuit) have rejected Swales. As the brief states, “It is often said that experience is the best teacher. Experience shows that the two-step method is a reliable tool for handling FLSA collective actions. As virtually every Circuit Court has done, this Court should affirm its use.” NELA is grateful to NELA Members Clif Alexander and Lauren Braddy, Anderson Alexander PLLC (TX), Richard Burch, Brucker Burch PLLC (TX), NELA Member Sarah Schalman-Bergen and Olena Savytska, Lichten & Liss-Riordan, P.C. (MA) for drafting the amicus brief.… Read More
6th Circuit
In Re: OSHA Rule On COVID-19 Vaccination and Testing
On November 30, NELA filed an amicus brief in the 6th Circuit case In Re: OSHA Rule On COVID-19 Vaccination and Testing, 86 Fed. Reg. 61,402 (21-7000). Petitioners in this case aim to stay the recent OSHA regulation that requires companies with over 100 employees to impose vaccination or testing requirements in response to the COVID-19 pandemic. NELA’s brief highlights the tension created by regulatory requirements that ensure safe working conditions while limiting individual worker choice. Courts have long upheld that the benefits of regulations governing health and safety in the workplace outweigh the cost to worker choice; if Petitioners’ theory is adopted, the brief argues, the gates will open to challenge this line of jurisprudence. Additionally, the brief addresses the right of vaccinated workers to refuse unsafe working conditions were the vaccine mandate stayed.
NELA is joined on this brief by the Jobs With Justice Education Fund and we are grateful to NELA member Adam C. Breihan and NELA Board Member Mark Hanna, and their Murphy Anderson, PLLC colleagues Michael T. Anderson and Arlus J. Stephens for drafting this important brief.
Pelcha v. MW Bancorp
On February 11, NELA joined AARP in a 6th Circuit amicus brief in Pelcha v. MW Bancorp (17-497). The amicus brief was drafted in support of a petition for en banc review, asking the full 6th Circuit to weigh in on the issue of causation standards in ADEA cases. In Pelcha, the 6th Circuit concluded that the correct standard in ADEA cases was that of Gross, and not Bostock. This interpretation is incorrect and would deal a huge blow to older workers making ADEA claims. As the brief argues, “If ‘but for’ does not mean ‘sole cause’ under Title VII, it cannot mean “sole cause” under the ADEA for the simple reason that the plain text of the causation language in Title VII and the ADEA are identical.” We are grateful to NELA Board Member Dara S. Smith, NELA members Daniel B. Kohrman and Laurie A. McCann, and their AARP team for drafting the brief.… Read More
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
NELA Amicus Brief: Rochow v. Life Insurance Co. of North America (6th Circuit)
On May 2, 2014, NELA joined AARP in submitting an amicus curiae brief in Rochow v. Life Insurance Co. of North America, No. 12-2074, pending before the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, in support of plaintiff the Estate of Daniel Rochow. John J. Cooper of the Cooper Law Firm in Troy, Michigan, and Erik W. Scharf of the Scharf Appellate Group in Miami, Florida, represent the plaintiff. This case concerns the scope of equitable remedies available under ERISA § 502(a)(3), particularly whether defendant must disgorge profits gained from wrongfully retained benefits upon a finding of breach of fiduciary duty.
Plaintiff Daniel Rochow was insured under Life Insurance Co. of North America’s (LINA) disability plan. In 2001, Rochow began experiencing short-term memory loss, was demoted from President to sales executive and shortly thereafter terminated. A few months later, Rochow was diagnosed with a rare virus that causes brain trauma. LINA denied Rochow’s application for long-term disability benefits. After three administrative appeals, Rochow filed suit, challenging the denial of benefits and alleging breach of fiduciary duties. The district court held that LINA’s denial was arbitrary and capricious, and awarded Rochow benefits. On appeal, the … Read More
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
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
