On November 8, 2017, NELA joined our colleagues at AARP in filing an amicus brief on behalf of the Plaintiff-Appellants in Brotherston, et al. v. Putnam Investments, et al., pending currently in the U.S. Court of Appeals for the First Circuit. The district court’s decision in this case incorrectly found that the defendant had prudently selected and monitored the investment options—which included its own proprietary funds—in its 401(k) plan. In providing important historical context regarding the development and enactment of the Employee Retirement Income Security Act (ERISA), the amicus brief demonstrates the need for ERISA’s rules governing the responsibilities of retirement plan trustees to be carefully and rigorously enforced. The need for retirement plan administrators to demonstrate the highest levels of prudence, loyalty, and care is of particular importance in the case of defined contribution retirement plans, such as 401(k) plans, as even relatively small additional fees or losses due to risky investments can have a large impact on the amount of savings available to plan beneficiaries upon retirement. The amicus brief was drafted by NELA member Mary Ellen Signorille (AARP Foundation Litigation, Washington, DC) with input from NELA ERISA expert Jeffrey Lewis (Keller Rohrback, LLP, Oakland, CA).… Read More
On October 4, 2017, NELA and a group of Business & Economics Law Professors filed an amicus brief in U.S. Court of Appeals for the Tenth Circuit, on behalf of Plaintiff-Appellant Rhonda Nesbitt and a putative class of her fellow massage therapy students, in Nesbitt v. FCNH, et al. This appeal involves unpaid massage therapy students who performed clinical massages for paying clients at the defendants’ for-profit massage therapy schools. The amicus brief draws on a range of interdisciplinary sources in arguing that under the appropriate interpretation of the Fair Labor Standards Act, Ms. Nesbitt and her fellow students were entitled to compensation for the work they performed. Among a number of important points made in the brief, it urges the court to draw a key distinction between “interns” hired by a company as trainees and “students” at for-profit schools who are required as a condition of their training to provide unpaid labor from which their school receives revenue. NELA is grateful for the efforts of Professor Scott A. Moss (University of Colorado Law School) and NELA member Hunter A. Swain (King & Greisen, LLP, Denver, CO), who drafted the brief on behalf of NELA and the group of law … Read More
NELA was proud to join with our colleagues at the National Employment Law Project and ten labor unions in filing an amicus brief in the U.S. Supreme Court on Wednesday, August 16, 2017, in support of the National Labor Relations Board and employees in three consolidated cases addressing the validity of class, collective, and joint action bans in forced arbitration clauses in employment agreements. Specifically, the cases turn on whether the National Labor Relations Act (NLRA) and Norris-LaGuardia Act (NLGA) make it unlawful for an employer to prohibit its employees from filing legal claims on a joint, class, collective or other group action basis. The brief provides important context regarding the enactment of the NLRA and NLGA in demonstrating that the right to engage in “concerted activities for the purpose of . . . mutual aid or protection” contained in those statutes includes pursuing joint, class, and/or collective litigation. As such, forced arbitration clauses that prohibit employees from engaging in such activities in any forum, as a condition of employment, are invalid and unenforceable. The amicus brief was drafted by NELA member Michael Rubin and Eric P. Brown (both from Altshuler Berzon LLP, San Francisco, CA), with substantial input from … Read More
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
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
On August 3, 2016, NELA, joined by the Truckers Justice Center, Teamsters for a Democratic Union, and General Drivers, Warehousemen & Helpers Local No. 89, filed an amicus brief with the U.S. Department of Labor’s Administrative Review Board (ARB) in support of whistleblower complainant Kenneth Palmer in Palmer v. Canadian National Railway/Illinois Central Railroad Company.
In its order setting Palmer for en banc review, the ARB requested supplemental briefs from the parties and interested amici curiae addressing two questions: 1) In deciding, after an evidentiary hearing, if a complainant has proven by a preponderance of the evidence that his protected activity was a “contributing factor” in the adverse action taken against him, is the Administrative Law Judge (ALJ) required to disregard the evidence, if any, the respondent offers to show that the protected activity did not contribute to the adverse action? 2) If the ALJ is not required to discard all such evidence, are there any limitations on the types of evidence the ALJ may consider?
The amicus brief argues that the plain meaning of the applicable statutory text, the legislative history surrounding the adoption of the text, and the text’s purpose as part of a broader regulatory scheme … Read More
On April 5, 2016, NELA was joined by our colleagues from the National Disability Rights Network (NDRN) in filing an amicus brief in the U.S. Court of Appeals for the Tenth Circuit, in support of the Plaintiff-Appellant Kristin Punt in Punt v. Kelly Services & GE Solutions Controls.
The district court granted summary judgment against the Plaintiff regarding her failure to accommodate claim, based on an out-of-context interpretation of Cisneros v. Wilson (10th Cir. 2000), regarding whether her request for medical leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) was “indefinite.” Specifically, the district court erred by: 1) finding that the Plaintiff’s accommodation request amounted to a request for indefinite leave, and was thus unreasonable as a matter of law, because she could not specify how long her impairment would last, and therefore guarantee that she would not need additional future leave; 2) imposing no obligation on the Defendant to engage in the ADA’s interactive process; and 3) focusing on her cancer’s duration rather than on its workplace impact.
Our amicus brief makes three arguments:
1) It describes the extent to which the facts of this case are clearly distinguishable from the peculiar facts of … Read More
On February 8, 2016, NELA filed an amicus brief in Abernathy v. Department of the Army, MSPB Docket No. DC-1221-14-0364-W-1, pending before the Merit Systems Protection Board (MSPB). NELA’s amicus brief was filed in response to the MSPB’s invitation for public amicus participation, published in the Federal Register at 81 Fed. Reg. 2,913-2,914 (January 19, 2016).
In its Federal Register notice, the MSPB had requested public input concerning whether both the protected activity and the reprisal had to occur while the victim was an employee or applicant for WPA coverage to apply. The MSPB also sought comments comparing the WPA’s coverage to coverage under USERRA, and whether or not WPA coverage of federal contractors would negatively impact coverage under certain other federal contractor whistleblower protection statutes.
The amicus brief was drafted by Alan R. Kabat of Bernabei & Kabat (Washington, DC); Andrew J. Perlmutter of Passman & Kaplan (Washington, DC); Kathryn S. Piscitelli of Kathryn S. Piscitelli, Attorney at Law (Orlando, FL) and Richard R. Renner of Kalijarvi, Chuzi, Newman & Fitch (Washington, DC). Matthew C. Koski, NELA Program Director (Oakland, CA), provided a detailed review of the draft amicus brief, which was also reviewed by Susan E. Jewell of … Read More
On January 19, 2016 NELA joined the National Employment Law Project, the National Association of Consumer Advocates, the National Consumer Law Center, and Towards Justice in filing an amicus brief in support of the Plaintiff-Appellees in Mohamed/Gillette v. Uber.
Our amicus brief makes three key arguments in support of the drivers. First, the brief points out that the provisions of the forced arbitration clauses at issue related to the sharing of fees and costs would make arbitration prohibitively expensive for the drivers, thus preventing them from effectively vindicating their rights under federal law. Second, the brief argues that the forced arbitration provisions are both procedurally and substantively unconscionable under California law, and cannot be saved through the inclusion of an opt-out mechanism that few drivers would understand and most would be unlikely to utilize. Third, the brief identifies the serious problems that would arise if the court adopted the defendants’ proposed rule regarding the severability of unlawful terms in arbitration agreements. Under such a rule, employers would have little incentive to refrain from including unconscionable terms in arbitration agreements, knowing that courts would merely sever the offending terms and enforce the arbitration agreement anyway.
The amicus brief was drafted … Read More