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NELA Files Comments With DOL Supporting Minimum Wage Increase For Federal Workers

Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor

Re: RIN 1235-AA41, Comments in Response to Proposed Rulemaking: Increasing the Minimum Wage for Federal Contractors

To Whom It May Concern:

The National Employment Lawyers Association (“NELA”) is submitting these comments regarding the U.S. Department of Labor’s Notice of Proposed Rulemaking (“NPRM”) on the increased minimum wage for federal contractors.

NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. Our mission is to advance employee rights and serve lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have faced illegal treatment in the workplace. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of federal civil rights and worker protection laws and comments on relevant Notices of Proposed Rulemaking. NELA also engages in legislative advocacy on behalf of workers throughout the United States. Many NELA members represent workers … Read More

NELA Comments On DOL Tip Regulations Under The Fair Labor Standards Act: Partial Withdrawal

Amy DeBisschop
Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor

Comments on Regulatory Information Number (RIN) 1235-AA21: Tip Regulations under the Fair Labor Standards Act: Partial Withdrawal

Dear Ms. DeBisschop:

The National Employment Lawyers Association (NELA) supports the above-referenced Department of Labor (“Department” or “DOL”) proposed rulemaking, which clarifies that an employer may only take a tip credit when tipped employees perform work that produces tips or a non-substantial amount of work that directly supports tip-producing work, and defines “substantial amount of time” as more than 20 percent of all hours worked during the employee’s workweek or exceeding 30 continuous minutes.

NELA has an important interest in the Department’s proposal.  NELA is the largest professional membership organization in the country comprised of attorneys who represent workers in labor, employment, and civil rights disputes.  Founded in 1985, NELA advances employee rights and serves lawyers who advocate for equality and justice in the American workplace.  NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have been treated illegally in the workplace.  NELA members represent thousands of workers from around … Read More

Oracle America Inc. v. U.S. Department Of Labor, U.S. District Court for the District of Columbia

On April 4, 2020, NELA signed on to an amicus brief drafted by Equal Rights Advocates, in collaboration with their law firm partner Wilkinson Walsh and former Department of Labor (DOL) and EEOC officials Patricia Shiu, Patrick Patterson, and Stuart Ishimaru, in support of the interveners seeking dismissal in Oracle America Inc. v. U.S. Department Of Labor (D.D.C. 1:19-cv-3574).  Oracle, a tech giant and government contractor, filed suit against the Department of Labor and its Office of Federal Contract Compliance Programs (OFCCP) in November 2019, shortly after OFCCP launched a $400 million race and gender discrimination suit against Oracle. Oracle argues that OFCCP does not have legal authority to enforce civil rights laws – an argument that would hamper OFCCP’s important enforcement abilities and allow federal contractors to discriminate without repercussion. As the brief notes, “Oracle’s challenge ignores decades of precedent confirming that OFCCP acts well within its regulatory authority when it employs those measures necessary to enforce contractor compliance.” Over 4 million workers in the United States work for federal contractors, and OFCCP’s regulatory practices and enforcement ability ensure that the government is not doing business with employers who discriminate against workers. NELA is grateful to Equal Rights Advocates

… Read More
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NELA Impact Fund Amicus Brief_Acosta v. Austin Electrical Servs. (9th Cir.)

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

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NELA Amicus Brief: Palmer v. Canadian National Railway & Illinois Central Railroad Company (ARB)

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

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NELA Amicus Brief: Encino Motors, LLC v. Navarro (U.S. Supreme Court)

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

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NELA Amicus Brief: Lockheed Martin v. Department of Labor & Andrea Brown (10th Circuit)

Before the U.S. Court of Appeals for the Tenth Circuit in Lockheed Martin, Corp. v. Department of Labor & Andrea Brown (Case No. 11-9542), NELA filed an amicus brief on September 7, 2011, focused on two issues of law: 1) whether mail fraud, wire fraud, bank fraud, securities fraud, or violations of any Securities & Exchange Commission (SEC) rules are limited to fraud against shareholders, and 2) whether a whistleblower must recite the relevant statute and prove up all of its elements in order to enjoy certain legal protections. Our brief proposes that the answer to both questions is no.

Author: Michael T. Anderson (Murphy Anderson, PLLC)… Read More

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