On January 31, 2023, NELA signed on to an amicus brief filed by the Metropolitan Washington Employment Lawyers Association (MWELA), asking the Federal Circuit to hear Avalos v. United States en banc. Eleazar Avalos’ attorneys pushed for en banc review on behalf of the plaintiffs, federal employees who were denied compensatory damages for delayed payment of wages during the government shutdown of 2018–2019. The brief argues that the panel majority erred in carving out an extra-textual exception to the FLSA to relieve the government of liability when it failed to timely pay its employees due to a lack of appropriated funds. The brief argues that the Anti-Deficiency Act (ADA) does not exempt the government from paying liquidated damages under the FLSA. NELA is grateful to MWELA and NELA members Mark Hanna, Murphy Anderson PLLC (DC), Omar V. Melehy, Melehy Law (MD), and Alan R. Kabat, Bernabei & Kabat, PLLC (DC) for asking NELA to join their excellent brief.
… Read MoreFLSA
Holder v. A&L Homecare
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 MoreBurrell v. Lackawanna Recycling Center, Inc.
On January 11, NELA signed on to the National Employment Law Project’s amicus brief in the 3rd Circuit case Burrell v. Lackawanna Recycling Center. This case concerns three former civil detainees of Lackawanna County, Pennsylvania who filed a proposed class action complaint alleging that the County, the private company that owns and operates the Lackawanna County Recycling Center, and other private and public defendants forced hundreds of child support debtors to work at the Recycling Center for $5.00 per day in unsafe conditions in violation of the Fair Labor Standards Act (FLSA). The amicus brief discusses the history of prison labor and its connection to American slavery. Additionally, the brief highlights the unique breadth of the FLSA’s coverage of employees, how courts have interpreted the FLSA’s definitions, the policy purposes behind the FLSA, and why the district court’s standard fails to uphold those policies. We are grateful to NELP and NELA member Rachel Bien, Olivier Schreiber & Chao LLP (CA) for the opportunity to sign on to this important brief.
… Read MoreNELA 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
NELA Comments On Proposed Withdrawal Of DOL Independent Contractor Rule
Amy DeBisschop
Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue NW
Washington, D.C. 20210
NELA Comments on RIN 1235-AA34: Independent Contractor Status Under the Fair Labor Standards Act; Withdrawal
Dear Ms. DeBisschop:
The National Employment Lawyers Association (“NELA”) submits these comments on the Department of Labor’s (“Department” or “DOL”) Request for Comment on Withdrawal of RIN 1235-AA34; Fed. Reg. Vol. 86, 14027 (March 12, 2021), following publication of a final Independent Contractor Rule (“Rule”) and delay of the effective date of the Rule.[1]
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 … Read More
NELA Comments On Independent Contractor Status Under the Fair Labor Standards Act, Delay of Effective Date (RIN 1235-AA34)
Submitted via: federalregister.gov
Amy DeBisschop
Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor, Room S-3502
200 Constitution Avenue NW
Washington, D.C. 20210
Comments on RIN 1235-AA34: Independent Contractor Status Under the Fair Labor Standards Act, Delay of Effective Date
Dear Ms. DeBisschop:
The National Employment Lawyers Association (NELA) submits these comments on the Department of Labor’s (“Department” or “DOL”) Request for Comment on Delay of the Effective Date of RIN 1235-AA34; Fed. Reg. Vol. 86, 8326. (February 5, 2021)
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 … Read More
NELA Comments On Proposed Delay Of Effective Date Of Tip Regulations (RIN 1235-AA21)
Amy DeBisschop
Division of Regulations, Legislation, and Interpretation
Wage & Hour Division, U.S. Department of Labor
Room S-3502
200 Constitution Avenue NW
Washington, D.C. 20210
Re: National Employment Lawyers Association (NELA) Comments on Proposed Delay of Effective Date of Tip Regulations, Regulatory Information Number (RIN) 1235-AA21
The National Employment Lawyers Association (NELA) submits these comments in favor of the Department of Labor’s (“Department” or “DOL”) February 5th Delay of the Effective Date of Tip Regulations until April 30, 2021, to permit the Department to reconsider the factual, policy, and legal issues raised by the Rule. RIN 1235-AA21; 86 Fed. Reg. 8325. (“Tip Rule”)
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 the country in wage theft cases in every state and circuit, which … Read More
NELA Amicus Brief: Heimbach v. Amazon (Supreme Court of Pennsylvania)
On March 6, 2020, NELA joined our Western and Eastern Pennsylvania Affiliates, AFL-CIO, National Employment Law Project, SEIU, UFCWIU, Justice At Work, and Towards Justice in filing an amicus brief in the Supreme Court of Pennsylvania on behalf of the Appellants in Heimbach v. Amazon (No. 43 EAP 2019). Appellants are a class of men and women who engage daily in grueling work in Amazon’s Pennsylvania warehouses. At the end of each day, workers are required to use their personal, unpaid time to undergo Amazon’s mandated security screenings before they can leave the premises. This brief asks the Supreme Court of Pennsylvania to confirm that Pennsylvania’s Minimum Wage Act (“PMWA”) is more protective than the Fair Labor Standards Act (“FLSA”), the current federal floor for workplace protections, therefore ensuring that Amazon pays their workers for required screenings completed onsite. Amazon and its numerous staffing agencies have argued that they may rely solely on federal workplace laws, including the FLSA and Portal-To-Portal Act (PPA), in calculating labor costs and imposing its labor compensation practices. Additionally, Amazon asks the court to import the de minimis doctrine, which allows employers to avoid paying workers for “infrequent and insignificant periods of time beyond … Read More
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 MoreNELA Amicus Brief: Encino Motorcars, LLC v. Navarro, et al. (U.S. Supreme Court)
On Thursday, December 7, 2017, NELA filed an amicus brief in the U.S. Supreme Court on behalf of the Respondents in Encino Motorcars, LLC v. Navarro, et al. At issue in this case is whether automobile dealership Service Advisors are exempt from the overtime protections in the Fair Labor Standards Act (FLSA). This is the second time in as many years that the High Court has reviewed this case, and NELA is proud once again to support the efforts of these employees to ensure that they receive full compensation, including overtime pay, for all of the hours they work. NELA’s amicus brief argues persuasively that a plain reading of the text of the FLSA supports the Respondents’ contention that they are not exempt from the statute’s overtime protections. In addition, the brief marshals a compelling array of sources in demonstrating that the broader remedial purposes of the FLSA also support the Respondents’ position. The brief was drafted by NELA member Jamie Golden Sypulski (Law Office of Jamie Golden Sypulski, Chicago, IL).
… Read MoreNELA Amicus Brief: Nesbitt v. FCNH, et al. (10th Cir.)
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 Amicus Brief: Wang et al. v. Hearst Corp. (2d Cir.)
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
