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
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
On October 26, 2015, NELA joined the Metropolitan Washington Employment Lawyers Association (MWELA) in filing an amicus brief in the U.S. Court of Appeals for the Fourth Circuit in support of the Plaintiff-Appellant in Sharif v. United Airlines, Inc.
Drawing on an extensive line of cases from the U.S. Supreme Court and Courts of Appeals, the amicus brief systematically dismantles the legal and practical reasoning underlying the so-called “honest belief” defense. To accept a defendant’s professed “honest belief” that the reasons for taking an adverse action against an employee are correct, when presented with evidence that the asserted reasons are unworthy of credence, requires the court to draw a series of inferences regarding the weight of that evidence and the credibility of those presenting it, in favor of the non-moving party. This is forbidden at summary judgment, as recently re-affirmed by the U.S Supreme Court in Tolan v. Cotton, 134 S. Ct. 1861 (2014). Further, the brief thoroughly demonstrates that the application of the “honest belief” defense is incompatible with the longstanding rules courts have used to determine whether a defendant’s proffered non-discriminatory reasons are in fact a pretext for unlawful behavior.
The brief was drafted by Stephen … Read More
On March 3, 2014, NELA filed an amicus curiae brief in Travers v. Cellco Partnership d/b/a Verizon Wireless in the U.S. Court of Appeals for the Sixth Circuit in support of plaintiff Patricia Travers who was wrongfully terminated in violation of the ADA and in retaliation for taking FMLA leave. The court in the Middle District of Tennessee granted Cellco’s motion for summary judgment on Travers’ disability claim for two reasons. First, it found insufficient evidence that Travers was “regarded as” having a disability because Travers did not show that she was regarded as unable to do her job or as being substantially limited in performing the tasks of her job. Second, the court found insufficient evidence that the alleged misconduct was pretext. The definition of disability under the ADAAA is one of NELA’s current amicus priorities.
Travers had been terminated immediately upon her return to work after taking approved medical leave, allegedly for waiving mail in rebates for customers. Verizon’s FMLA leave is handled by third party administrator, MetLife. In order for an employee to not be penalized for taking medical leave, it must be designated as FMLA after the employee has gone through a cumbersome qualification process. Any … Read More
On February 25, 2014, NELA filed an amicus curiae brief in the U.S. Court of Appeals for the Fourth Circuit in support of plaintiff DeMasters who was wrongfully terminated in retaliation for using established internal complaint mechanisms to notify Carilion Clinic about the sexual harassment of a co-worker by a supervisor. The court in the Western District of Virginia granted Carilion’s Rule 12(b)(6) motion to dismiss, holding that DeMasters failed to state a plausible claim of retaliation under Title VII because he did not produce sufficient facts to establish that he engaged in a protected activity. The circumstances surrounding DeMasters’ termination were egregious. DeMasters worked as an Employee Assistance Program (EAP) counselor for Carilion Clinic for more than five years. In October 2008, DeMasters reported to Carilion’s human resources department that another employee, John Doe, had confided to DeMasters that Doe was being subjected to harassment. This was well before Doe filed an EEOC charge and subsequent lawsuit. In August 2011, shortly after Doe’s lawsuit was settled, DeMasters was questioned by Carilion managers about his involvement with Doe in 2008. DeMasters was asked why he had not taken the “pro-employer side” concerning Doe’s complaints. DeMasters also was told that he … Read More
NELA and the Government Accountability Project argue in this amicus brief that the remedial nature of the Sarbanes-Oxley Act (SOX) calls for broad and inclusive application, which is necessary to prevent a crisis in the mutual fund industry, such as the one that occurred in the banking sector in 2008. An interpretation of “employee” that limits coverage to employees of public companies would undermine SOX’s basic purpose. Publicly traded companies increasingly use a variety of contractual relationships to separate functions into organizations focused on those functions. These employees are in a position to expose corporate fraud. In the context of the mutual fund industry, all the employees would be without whistleblower protection under Section 806.
We further argue that an interpretation of the term “employee” to cover employees of private contractors and subcontractors is consistent with the plain text of the statute, the legislative history, the remedial purpose, and Department of Labor procedural regulations and policy implementing Section 806. A contrary interpretation would leave a significant number of employees unprotected.
Authors: R. Scott Oswald and Kellee Boulais Kruse (The Employment Law Group, Washington, DC), Richard R. Renner (Kalijarvi, Chuzi, Newman & Fitch, P.C., Washington, DC), Michael T. Anderson (Murphy Anderson … Read More
Summary of NELA’s Amicus Brief:
- The Supreme Court has repeatedly recognized that to effectively enforce Title VII’s substantive protections, Title VII’s antiretaliation provision must be broadly interpreted to ensure unfettered access to statutory remedial mechanisms.
- The Court should reaffirm that while unlawful retaliation must prompt an employment decision, it need not be the sole factor.
- It is a workplace reality that adverse employment decisions can have multiple causes, and that Title VII is violated if an illegitimate motive plays a meaningful role in the ultimate decision made. Congress explicitly recognized that employment decisions involve multiple motives, but a discriminatory “motivating factor” should never be tolerated and must be purged from the employment process.
- When the language of Title VII after the 1991 amendments is read in context with the Court’s broad protection of the right to be free from workplace retaliation and the legislative history of the Civil Rights Act of 1991, a fair reading compels the conclusion that the law is violated if an illegitimate motive is a “motivating factor” in an adverse employment decision.
- Having different standards for proving intentional discrimination under the same statute would only create confusion for the parties, the trial courts, and the jury.