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 January 19, 2016 NELA joined the National Employment Law Project, the National Association of Consumer Advocates, the National Consumer Law Center, and Towards Justice in filing an amicus brief in support of the Plaintiff-Appellees in Mohamed/Gillette v. Uber.
Our amicus brief makes three key arguments in support of the drivers. First, the brief points out that the provisions of the forced arbitration clauses at issue related to the sharing of fees and costs would make arbitration prohibitively expensive for the drivers, thus preventing them from effectively vindicating their rights under federal law. Second, the brief argues that the forced arbitration provisions are both procedurally and substantively unconscionable under California law, and cannot be saved through the inclusion of an opt-out mechanism that few drivers would understand and most would be unlikely to utilize. Third, the brief identifies the serious problems that would arise if the court adopted the defendants’ proposed rule regarding the severability of unlawful terms in arbitration agreements. Under such a rule, employers would have little incentive to refrain from including unconscionable terms in arbitration agreements, knowing that courts would merely sever the offending terms and enforce the arbitration agreement anyway.
The amicus brief was drafted … Read More
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
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
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
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
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
NELA, The Employee Rights Advocacy Institute For Law & Policy (The Institute), and the California Employment Lawyers Association (CELA), filed an amicus brief urging the U.S. Court of Appeals for the Ninth Circuit to grant the plaintiffs’ petition for rehearing en banc in Kilgore v. KeyBank, Case No. 09-16703. In this case, where the plaintiffs are seeking only a public injunction to prohibit the defendant from continuing to break state law, a panel of the Ninth Circuit held that an arbitration clause must be enforced even when it would have the effect of preventing consumers from pursuing their rights under a state consumer protection statute. The panel held that while the Federal Arbitration Act (FAA) would block the enforcement of an arbitration clause that strips individuals of federal statutory rights, state statutory rights can be swept away by any form contract. The plaintiffs and amici contend that such a ruling contravenes U.S. and California Supreme Court precedent. Moreover, the Ninth Circuit’s mistaken assertion that the FAA protects only federal and not state statutory rights threatens to allow employers (and other defendants) to force their employees into arbitration agreements that undercut unwaivable state statutory protections.
Our brief argues that the … Read More
The National Labor Relations Board (NLRB or Board) in a case against D.R. Horton, Inc. (Case No. 12-CA-25764) is poised to decide the question of whether an employer’s contractual ban on class and collective actions violates workers’ rights to engage in concerted activities under Section 7 of the National Labor Relations Act (NLRA) and constitutes an unfair labor practice. Section 7 of the NLRA provides that employees have the right “to engage in… concerted activities for the purposes of… mutual aid and protection.” 29 U.S.C. § 157. The NLRB, which has primary jurisdiction over enforcement of the NLRA, has recognized that by filing a class or collective action on behalf of similarly situated co-workers, an employee is engaging in protected activity under Section 7. If an employer’s policy unduly interferes with its employees’ Section 7 rights, that policy constitutes an unfair labor practice in violation of Section 8(a)(1) of the NLRA. 29 U.S.C. § 158(a)(1). This case arises out of unfair labor practice charges filed by Michael Cuda, an employee of a company engaged in the business of building and selling homes nationwide known as D. R. Horton, Inc. As a matter of company policy, D.R. Horton required each new … Read More