U.S. Supreme Court
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: Campbell-Ewald Co. v. Gomez (10th Circuit)
On August 31, 2015, NELA, joined by the National Employment Law Project (NELP), filed an amicus brief, in support of the respondent in Campbell-Ewald Co. v. Gomez, No. 14-857, pending in the U.S. Supreme Court on appeal from the U.S. Court of Appeals for the Ninth Circuit. This case concerns whether a rejected offer of judgment made under Federal Rule of Civil Procedure 68 moots plaintiff’s individual and class claims before class certification. Although this is a consumer action, the Court’s ruling will apply to cases brought to enforce employment rights. The amicus brief was drafted by NELA member Adam W. Hansen, Nichols Kaster, PLLP, Minneapolis, MN.
Plaintiff Jose Gomez filed a class action under the Telephone Consumer Protection Act (TCPA) against a national marketing company retained by the U.S. Navy to send recruiting text messages. Text messages were sent to plaintiff and 100,000 others. The TCPA provides statutory damages for unauthorized messages in the amount of $500 per violation. Defendant tendered a Rule 68 offer of judgment to plaintiff to fully satisfy his individual claims prior to certification of a class, which Plaintiff did not accept. Defendant then moved to dismiss for lack of jurisdiction, arguing that the … Read More
NELA Amicus Brief: Green V. Brennan (U.S. Supreme Court)
On July 13, 2015, NELA filed an amicus brief in support of petitioner in Green v. Brennan, No. 14-613, pending in the U.S. Supreme Court on appeal from the U.S. Court of Appeals for the Tenth Circuit. This case concerns the timeliness of an EEO complaint alleging constructive discharge under Title VII.
Petitioner Marvin Green, while postmaster for Englewood, Colorado, applied in 2008 for a promotion, which he did not get. Believing he was subjected to race discrimination because the successful candidate had less experience and did not submit an application, Green contacted a Postal Service EEO counselor and asked to have his concerns investigated. Thereafter, relations with his supervisors soured. In 2009, he twice went to Postal Service EEO counselors complaining about retaliation. In November 2009, while his claims were under investigation, Green was summoned by his superiors to an “investigative interview,” which was held on December 11, 2009 and attended by agents from the Postal Service’s Office of the Inspector General. There, Green was accused of mismanagement and “intentionally delaying the mail,” which is a crime. He was put on Emergency Placement in Off-Duty Status without pay. After several days of negotiations in which his union participated, … Read More
NELA Amicus Brief: Powers v. Union Pacific RR Co. (ARB)
On December 17, 2014, NELA joined the National Whistleblowers Legal Defense and Education Fund, Truckers Justice Center and Teamsters for a Democratic Union to file an amicus brief in support of Complainant Robert Powers in the case of Powers v. Union Pacific RR Co., Case No. 13-034, pending before the Administrative Review Board (ARB) of the U.S. Department of Labor. The ARB is reviewing this appeal en banc and invited submission of amicus briefs from interested entities. This case presents the pure legal issue of whether the majority opinion in an earlier case before the ARB, Fordham v. Fannie Mae, articulated the correct contributing factor causation standard for retaliation claims brought under certain whistleblower statutes. See Fordham v. Fannie Mae, ARB Case No. 12-061, ALJ Case No. 2010-SOX-051 (October 9, 2014).
The amicus brief argued that the Fordham opinion faithfully follows the plain language of the statute, the legislative history behind it, and the treatment that the ARB and federal courts have given to the family of AIR 21 retaliation statutes, which protect employees of air carriers (including contractors and subcontractors) who report violations. Proof of retaliation under AIR21 is different from that under Title VII’s burden-shifting scheme established … Read More
NELA Amicus Brief: EEOC V. Abercrombie & Fitch Stores, Inc. (U.S. Supreme Court)
On December 10, 2014, NELA joined the General Conference of the Seventh-day Adventists and other religious and civil rights organizations to file an amicus brief supporting Petitioner EEOC in the case of EEOC v. Abercrombie & Fitch Stores, Inc., Case No. 14-86, pending in the U.S. Supreme Court. The question presented is whether an employer can be liable under the religious accommodation provision of Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee. This case provides the Supreme Court with the opportunity to clarify the knowledge and notice requirements for religious accommodations under Title VII.
At the district court, the EEOC was granted summary judgment on its claims that Abercrombie violated Title VII by failing to provide a religious accommodation to a female applicant who wore a hijab or head scarf to an interview and declining to hire her. After a trial limited to damages, a jury awarded $20,000 in compensation. The U.S. Court of Appeals for the Tenth Circuit reversed, instructing … Read More
NELA Amicus Brief: Mach Mining, LLC v. EEOC (U.S. Supreme Court)
On November 4, 2014, NELA joined the Impact Fund, AARP and other organizations to file an amicus brief in support of respondent EEOC in the case of Mach Mining, LLC v. EEOC, Case No. 13-1019, pending in the U.S. Supreme Court. The question presented in this case is: Whether and to what extent may a court enforce the Equal Employment Opportunity Commission’s duty under 42 U.S.C. § 2000e-5(b), (f)(1) to conciliate discrimination claims before filing suit. The amicus brief was drafted by NELA Amicus Advisory Council Co-Chair Michael L. Foreman and the Civil Rights Appellate Clinic at the Pennsylvania State University’s Dickinson School of Law, which he directs, and NELA members Jocelyn Larkin and Robert Schug at the Impact Fund.
The case arose in 2008 when a rejected female applicant for a mining position filed a charge of discrimination with the EEOC, alleging that Mach Mining, which had never hired a woman for this position, refused to hire her based on her gender. After conducting an investigation, the EEOC found reasonable cause to believe Mach Mining had discriminated against a class of women who applied for mining-related jobs, and invited it to conciliate. From late 2010 to late 2011, … 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: Graves v. Deutsche Bank Securities, Inc. (U.S. Supreme Court)
On July 28, 2014, NELA filed an amicus brief in support of a petition for certiorari in the U.S. Supreme Court in Graves v. Deutsche Bank Securities, Inc., No. 13-1546. The petition was filed by NELA members Richard T. Seymour and Eric Schnapper on behalf of petitioner Daniel B. Graves. The issue in this age discrimination case is whether courts should grant summary judgment by relying on inferences that excuse all but the most egregious evidence of discrimination. NELA scrutinizes requests for amicus briefs at the petition stage closely. One was warranted here because this issue falls squarely within NELA’s current amicus priorities of combatting summary judgment abuse and challenging judicially created doctrines that erect barriers to jury trial access to plaintiffs alleging employment discrimination.
Plaintiff Graves held the positions of both director and managing director at defendant Deutsche Bank with responsibility for maintaining relationships with major corporate clients. Graves complained that some of his accounts being were re-assigned to younger bankers with the effect of significantly decreasing his annual bonus. He was terminated days before the bonuses were scheduled to be paid. Graves testified that his supervisor said that the dismissal was not performance based, but motivated because … Read More
NELA Amicus Brief: Lawson v. FMR LLC (U.S. Supreme Court)
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
NELA Amicus Brief: Heimeshoff v. Hartford Life & Accident Insurance Co. and Wal-Mart Stores, Inc. (U.S.Supreme Court)
Heimseshoff v. Hartford Life & Accident Insurance Co. and Wal-Mart Stores, Inc. (Case No. 12-729) involves the question of when a statute of limitations should accrue under ERISA for judicial review of an adverse disability benefit determination. In this case, the plaintiff brought suit to obtain long-term disability benefits to which she was entitled under the employee benefit plan. The lower courts, however, dismissed her cases time-barred by the three-year statute of limitations period set out in the benefit plan policy. If the Court were to adopt Hartford’s reading, the plan’s statute of limitation for judicial review of such adverse determinations would run before the employee even knew that his or her claim had accrued.
NELA and AARP’s amici brief argues that despite the Court’s decision last term in U.S. Airways v. McCutcheon, 569 U. S. ____ (2013), holding that clear plan terms are enforceable, here an implied term must be read into the long-term disability ERISA plan at issue in order to make the plan term surrounding the limitations period workable. In particular, amici urge the Court to allow for equitable tolling of the contractual limitations period during the time a claimant is unable to bring suit because … Read More
