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Class and Collective Actions

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

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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

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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

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NELA Amicus Brief: Braun v. Wal-Mart (Penn. S.Ct.)

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

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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: Teed v. Thomas & Betts Power Solutions (7th Circuit)

On November 15, 2012, NELA filed an amicus brief in the Seventh Circuit Court of Appeals in support of the plaintiffs in Teed v. Thomas & Betts Power Solutions. In this case, NELA filed in support of the plaintiffs’ efforts to preserve a favorable district court ruling on successor liability under the Fair Labor Standards Act (FLSA). Our brief was drafted by David E. Schlesinger and James H. Kaster of Nichols Kaster, PLLP (Minneapolis, MN).

The plaintiffs in this case filed suit against JT Packard & Associates for violations of the FLSA, seeking overtime pay. After the district court conditionally certified the case as a collective action, the defendants sought to stay or dismiss the proceedings because the company had entered receivership proceedings. The company was eventually purchased by Thomas & Betts, which, as part of that purchase, signed an agreement that included reference to an order asserting that the plaintiffs “intend to pursue both lawsuits under a theory of successor liability against defendant’s buyer.” I approving the sale, the state court in Wisconsin affirmed that Thomas & Betts was on notice of the plaintiffs’ claims, but did not by virtue of purchasing JT Packard’s assets automatically become … Read More

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NELA Amicus Brief: Genesis Healthcare Corp. v. Symczyk (U.S. Supreme Court)

On October 26th, NELA, joined by AARP, The National Employment Law Project, The Legal Aid Society, the California Rural Legal Assistance Foundation, the DC Employment Justice Center, filed an amicus brief in support of the Respondent, Laura Symczyk, in Genesis Healthcare Corp. v. Symczyk, currently pending in the United States Supreme Court. Our brief was drafted by Richard J. (Rex) Burch (Houston, TX), with assistance from J. Derek Braziel (Dallas, TX) and Douglas M. Werman (Chicago, IL).

Our brief discusses the importance of collective actions in remedying violations of our wage and hour laws. The brief points out that wage theft continues to be a serious problem for many American workers, particularly those employed in relatively low-wage positions. In order to attract legal representation and avoid retaliation, low-wage workers must be allowed to band together and collectively challenge unlawful wage policies and practices. Allowing employers to “pick off” individual plaintiffs before other aggrieved workers are allowed to join a case would permit a wide range of unlawful behavior to proceed unchecked. Moreover, an adverse ruling in this case could affect the other statutes that use the FLSA’s collective action procedures, such as the Age Discrimination in Employment Act and the … 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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NELA Amicus Brief: Owen v. Bristol Care, Inc. (8th Circuit)

On July 30, 2012, NELA, its public interest organization, The Employee Rights Advocacy Institute For Law & Policy, and the National Employment Law Project (NELP), filed an amicus brief urging affirmance of a district court’s rejection of a collective action ban in an arbitration agreement.

Our brief supports the district court opinion and argues that a prohibition on collective action, as a policy matter, conflicts with the broad remedial goals of the FLSA and prevents employees from vindicating their statutory rights. Depriving employees of their rights to seek redress for wage and hour violations by prohibiting collective action in any forum undermines the wage floor and the policies of the FLSA, and rewards unfair competition by employers engaging in wage theft. We also submit that many employees will not pursue individual cases because (1) the small value of their claims will not support litigation, (2) they simply will not know that their rights are being violated absent FLSA collective action notice, and (3) their fear of retaliation will deter them from stepping forward on an individual basis.

In addition, our amicus brief contends that the district court’s decision is supported by the independent legal ground that a collective action prohibition … Read More

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NELA Amicus: Parisi/Chen-Oster v. Goldman Sachs (2d Circuit)

NELA, along with a broad coalition of employee rights and civil rights organizations, including the Asian American Justice Center, the Lawyers’ Committee for Civil Rights Under Law, the NAACP Legal Defense and Education Fund, the National Employment Law Project, the National Partnership for Women & Families, the National Women’s Law Center, The Employee Rights Advocacy Institute For Law & Policy, Women Employed, and 9to5, National Association of Working Women, filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to affirm the district court’s refusal to enforce an arbitration agreement containing a class action ban in an employment discrimination case involving Title VII pattern-or-practice discrimination claims. Amici agree with the district court’s holding that pattern-or-practice claims are distinct from individual disparate treatment claims and that arbitration agreements therefore are unenforceable if they preclude plaintiffs from vindicating pattern-or-practice claims. Our brief also contends that vindication of pattern-or-practice claims is vital to achievement of Title VII’s purpose and is largely infeasible on an individual basis due to limitations on the scope of discovery in bilateral adjudications, the substantial costs of proving a pattern-or-practice claim, and limitations on the scope of injunctive relief. Our brief serves to highlight the … Read More

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NELA Amicus: Sutherland v. Ernst & Young (2d Circuit)

On May 18, 2012, NELA, its public interest organization, The Employee Rights Advocacy Institute For Law & Policy, and the National Employment Law Project (NELP), filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to affirm the district court’s rejection of a collective action ban in an arbitration agreement. In this case, Judge Kimba Wood of the Southern District of New York held that Ernst & Young’s prohibition of class and collective actions precludes employees from effectively vindicating their statutory rights under the Fair Labor Standards Act (FLSA). This is the second case involving collective action bans in the FLSA context in which NELA, The Institute and NELP have filed an amicus brief before the Second Circuit in as many months.

Our amicus brief highlights the important national public policies that support the availability of collective actions under FLSA. We argue that depriving workers of their ability to enforce their rights fully to be paid minimum wage and overtime pay by prohibiting collective actions in any forum undermines the wage protection policies of the FLSA, rewards unfair competition by encouraging employers to engage in wage theft, and violates the public policy Congress sought to implement … Read More

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NELA Amicus Brief: Raniere v. Citigroup (2d Circuit)

NELA, The Employee Rights Advocacy Institute For Law & Policy, and the National Employment Law Project (NELP), filed an amicus brief urging the U.S. Court of Appeals for the Second Circuit to affirm the district court’s rejection of a collective action ban in an arbitration agreement. In this case, Judge Sweet of the Southern District of New York held that Citigroup’s prohibition of class and collective actions runs contrary to the purposes of the Fair Labor Standards Act (FLSA) and is therefore unenforceable. The plaintiffs and amici agree with the district court’s holding and also contend that a collective action prohibition would preclude opt-in plaintiffs with small value claims from vindicating their statutory rights to overtime pay under the FLSA.

Our brief argues that the district court’s decision is supported by the independent legal grounds that a collective action prohibition imposed as a condition of employment is unenforceable under the National Labor Relations Act (NLRA) and the Norris LaGuardia Act, as recently held by the National Labor Relations Board in In re D.R. Horton, 357 NLRB No. 184 (2012). The NLRA and the Norris LaGuardia Act prohibit employer interference with employees’ exercise of concerted activity for mutual aid or … Read More

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