On January 28, NELA filed an amicus brief in the NLRB case The Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Local 798, IATSE. This case addresses whether the Board should reconsider its standard for determining the independent contractor status of workers. The brief examines the many ways in which NLRB definitions, standards and tests affect various antitrust, trademark, and tort laws. As the brief concludes, “Employers should not be allowed to assert “entrepreneurial freedom” where that argument would imply an antitrust violation, or “naked licensing” of its trademark. Nor should employers be allowed to assert independent contractor status where that claim would be rejected in common-law courts in tort cases.” We are grateful to our drafters Michael T. Anderson, Adam C. Breihan, Mark Hanna and Roseann R. Romano (Murphy Anderson, PLLC) and Shannon Liss-Riordan and Zachary L. Rubin (Lichten & Liss-Riordan, P.C.) for drafting this important brief.… Read More
NELA Amicus Brief: Forced Arbitration Joint Action Ban Cases (U.S. Supreme Court)
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
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
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
NELA Amicus Brief: D.R. Horton, Inc. & Michael Cuda (NLRB)
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