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
Class and Collective Actions
On Tuesday, October 23, 2018, NELA joined a coalition of civil and employee rights organizations in filing an amicus brief in support of the Plaintiff-Appellees in Acosta v. Austin Electrical Services, pending currently in the U.S. Ninth Circuit Court of Appeals. This case concerns the defendant-employer using an ostensibly neutral workplace audit as a pretense to deploy inappropriate, misleading, and potentially coercive tactics towards workers participating in an ongoing collective action against the company. When the district court justifiably enjoined the employer from continuing its campaign against the workers, the company sought appellate review. The amicus brief highlights the broad discretion afforded to district courts to ensure defendants do not sabotage employees’ efforts to vindicate their rights. The brief also summarizes the various forms of underhanded methods that far too often are deployed to chill employee participation and undermine the enforcement of workplace laws, and emphasizes the important role district courts can play in managing cases in ways that protect vulnerable litigants from abusive behavior. The brief was drafted by NELA members Bryan Schwartz (Oakland, CA), Lindsay Nako (Berkeley, CA), Matthew Helland (Oakland, CA), and Adam Hansen (Minneapolis, MN).… Read More
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
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 April 6, 2016, NELA and the National Employment Law Project filed an amicus brief in the U.S. Supreme Court in support of the Respondents in Encino Motors, LLC v. Navarro (Case No. 15-415), currently pending in the U.S. Supreme Court.
Our amicus brief is focused tightly on addressing the issue of statutory construction, both as a means of fleshing out the discussion of the issue in the Respondents’ merits brief and to counter the arguments made in an amicus brief filed in this case on behalf of the Petitioners by the U.S. Chamber of Commerce. The brief argues that 1) the Court can affirm the Ninth Circuit’s decision without resort to the FLSA’s “narrow construction” rule, because other canons of statutory construction (i.e., Expressio Unius Est Exclusio Alterius and Reddendo Singula Singulis) support the conclusion that service advisors are not covered by the relevant FLSA exemption, and 2) if the Court decides to reach the issue, the “narrow construction” canon is a well-settled method of interpreting the scope of FLSA exemptions and also supports affirming the Ninth Circuit’s ruling.
Our amicus brief was drafted by NELA member Jamie G. Sypulski (Law Office of Jamie Golden Sypulski in Chicago, … Read More
On March 11, 2016, NELA joined the Equal Justice Society, Justice at Work, the American Civil Liberties Union of Massachusetts, and the Charles Hamilton Houston Institute for Race and Justice in filing an amicus brief in support of the Plaintiff-Appellants in Jones v. City of Boston, currently pending in the U.S. Court of Appeals for the First Circuit.
The amicus brief provides the court with important historical context regarding the development of the law governing disparate impact, and its importance to addressing systemic discrimination in professions, like law enforcement, with deeply-imbedded cultures of exclusion that would otherwise be practically impossible to remedy.
After providing that background, the brief turns to the problems raised by the manner in which the district court evaluated both “business necessity” and “availability of a less-discriminatory alternative” in the context of resolving a motion for summary judgment. As the brief argues, the district court applied a “watered-down” version of the business necessity requirement to the Department and a heightened version of the less discriminatory alternative standard to the plaintiffs. This is particularly problematic at the summary judgment stage, because doing so necessitated drawing a number of inferences against the plaintiffs, weighing the evidence inappropriately, and … Read More
On September 29, 2015, NELA filed an amicus brief jointly with AARP, Interfaith Worker Justice, and the National Employment Law Project (NELP) in support of respondents in Tyson Foods Inc. v. Bouaphakeo, No. 14-1146, pending in the U.S. Supreme Court. This case concerns certification of state law class action wage and hour claims under Federal Rule of Civil Procedure 23, collective action claims under the Fair Labor Standards Act, and the use of representative evidence. The brief was drafted by NELA member Seth R. Lesser, Klafter Olsen & Lesser LLP, Rye Brook, NY.
Employees at a Tyson meat-processing facility brought Fair Labor Standards Act (FLSA) and Iowa Wage Payment Collection Law (IWPCL) claims seeking compensation for time spent walking to their worksites and donning and doffing protective equipment. Tyson did not keep records of the hours employees worked. The district court certified the FLSA claims as a collective action and the IWPCL claims as a class action under FRCP 23(b)(3), finding the FLSA and IWPCL claims substantively the same and subject to the same proof.
At trial, plaintiffs introduced average donning, doffing, and walking times calculated from 744 employee observations and applied this evidence to class members individually using … Read More
On August 31, 2015, NELA, joined by the National Employment Law Project (NELP), filed an amicus brief, in support of the respondent in Campbell-Ewald Co. v. Gomez, No. 14-857, pending in the U.S. Supreme Court on appeal from the U.S. Court of Appeals for the Ninth Circuit. This case concerns whether a rejected offer of judgment made under Federal Rule of Civil Procedure 68 moots plaintiff’s individual and class claims before class certification. Although this is a consumer action, the Court’s ruling will apply to cases brought to enforce employment rights. The amicus brief was drafted by NELA member Adam W. Hansen, Nichols Kaster, PLLP, Minneapolis, MN.
Plaintiff Jose Gomez filed a class action under the Telephone Consumer Protection Act (TCPA) against a national marketing company retained by the U.S. Navy to send recruiting text messages. Text messages were sent to plaintiff and 100,000 others. The TCPA provides statutory damages for unauthorized messages in the amount of $500 per violation. Defendant tendered a Rule 68 offer of judgment to plaintiff to fully satisfy his individual claims prior to certification of a class, which Plaintiff did not accept. Defendant then moved to dismiss for lack of jurisdiction, arguing that the … Read More
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
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
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
On January 22, 2013, NELA joined the United Food and Commercial Workers International Union (UFCW), American Federation of State, County, and Municipal Employees (AFSCME), and Service Employees International Union (SEIU) as amici curiae in support of a class of workers seeking to recover paid rest breaks and payment owed for off the clock work from their employer, Wal-Mart Stores, Inc. (Wal-Mart). Amici ask the Pennsylvania Supreme Court to affirm the lower court’s decision upholding the jury verdict in favor of thousands of Wal-Mart employees in Pennsylvania who were unlawfully denied rest breaks and consistently subjected to other wage and hour violations. See Braun v. Wal-Mart Stores, Inc., 24 A.3d 875 (Pa. Super. Ct. 2011).
Amici specifically address issues that are of paramount importance to workers and working families, including ensuring that (1) workers may continue to introduce their employers’ business records as admissible evidence to prove their claims and damages, (2) employers will not be rewarded for failing to keep accurate employment records, (3) workers and all other parties may continue to use statistical evidence to prove liability and damages in class actions, and (4) workers can still rely upon the Commonwealth’s express public policy against the waiver of … Read More