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
FLSA
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
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
NELA Amicus Brief: Tyson Foods Inc. v. Bouaphakeo (U.S. Supreme Court)
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
NELA Amicus Brief: Monroe v. FTS USA (6th Circuit)
On July 2, 2015, NELA filed an amicus brief in support of the plaintiff-appellees in Monroe v. FTS USA, LLC, No. 14-6063 (6th Cir.). This case asks the court to affirm a jury’s verdict that FTS’s company-wide policy requiring its cable technicians to work overtime hours without compensation violated the Fair Labor Standards Act (FLSA). The brief was written by NELA member Laura L. Ho and William C. Jhaveri-Weeks of Goldstein, Borgen, Dardarian & Ho in Oakland, California. NELA members Rachhana T. Srey and Paul J. Lukas of Nichols Kaster, PLLC in Minneapolis, Minnesota served as counsel at the trial level where they obtained $3.8 million in damages in this collective action.
Defendant-employer FTS USA “provides engineering services, cable installation, maintenance, splicing, sweep, certification, balancing, disconnect and customer service to the evolving cable television industry” and operates out of nearly 30 markets. A group of cable technicians working for the company alleged that “they worked an average of over 13 hours of unrecorded time each week without being paid for it” in violation of the FLSA. Based on trial testimony from many of these technicians, and other employees, a jury found that “FTS was liable under the FLSA for its … Read More
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
NELA Amicus Brief: Marzuq v. Cadete Enterprises (1st Circuit)
On October 29, 2014, NELA joined the National Employment Law Project (NELP) and other organizations to request leave to submit an amicus brief in support of plaintiffs-appellants in Marzuq v. Cadete Enterprises (d/b/a Dunkin’ Donuts), No. 14-1744, pending in the U.S. Court of Appeals for the First Circuit. The issues in this case fall within NELA’s amicus priority of confronting wage theft and compensable time violations. Plaintiffs are represented by NELA member Shannon Liss-Riordan, Lichten & Liss-Riordan, P.C. (Boston, MA). The amicus brief was drafted by NELA member Peter Winebrake, Winebrake & Santillo, L.L.C. (Dresher, PA), and Anthony Mischel of NELP.
Plaintiffs, former managers at Dunkin’ Donuts stores, are seeking overtime wages under the Fair Labor Standards Act. Managers are expected to work 48 hours per week and often work more than 60 hours. Conversely, hourly employees are prohibited from working extra hours. The issue is whether the managers, who spend most of their work day performing the same work as the hourly employees, including serving customers, were misclassified as exempt employees and entitled to overtime pay. As is common in the fast food industry, the managers did not earn much more than the hourly employees.
Defendants moved for summary … Read More
NELA Amicus Brief: Integrity Staffing Solutions, Inc. v. Busk (U.S. Supreme Court)
On August 11, 2014, NELA filed an amicus brief in support of Respondents in the U.S. Supreme Court in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, a Fair Labor Standards Act (FLSA) case. NELA members Mark R. Thierman and Eric Schnapper represent Respondents Jesse Busk and Laurie Castor and others similarly situated. The question presented is whether the time employees spend in security screenings is compensable under the FLSA, as amended by the Portal-to-Portal Act of 1947. The issues raised in this case fall squarely within NELA’s current amicus priorities of challenging wage theft and compensable time violations.
Respondents Busk and Castro were Amazon.com warehouse workers employed by Petitioner Integrity Staffing Solutions, Inc. They seek back pay, overtime, and double damages under the FLSA for time spent in security screenings after the end of their work shifts. After clocking out, these workers had to submit to a mandatory and rigorous anti-theft screening process similar to that found at airport security check points. They were required to remove all belongings from their person, such as wallets, keys and belts, and then pass through metal detectors before being allowed to leave the facility. It was not unusual to have to … Read More
NELA Amicus Brief: Wang v. The Hearst Corporation (2nd Circuit)
On March 3, 2014, NELA joined the National Employment Law Project (NELP), the Economic Policy Institute, the Writers Guild of America East, Ross Perlin and Professor David Yamada in submitting an amicus curiae brief in the U.S. Court of Appeals for the Second Circuit in support of plaintiff Xuedan Wang and similarly situated unpaid interns who were not compensated for their hours worked at The Hearst Corporation in violation of the Fair Labor Standards Act and New York state law. NELA members Adam Klein and Rachel Bien of Outten & Golden LLP represent the plaintiff and potential class. The issues raised by this case fit squarely within NELA’s amicus priorities of protecting workers’ wages and opposing wage theft.
The Hearst Corporation is one of the largest publishers of monthly magazines in the United States. Since 2008, Hearst has sought to reduce overhead and costs by eliminating paid positions and, at some magazines, directing that unpaid interns be hired. Hearst engaged over 3,000 interns from 2007 to 2013. Many of the interns worked more than 40 hours per week and Hearst did not dispute that some of the duties performed by the interns had been and were now being done by … Read More
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
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
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
