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Wage Hour

Comments Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees

Submitted via www.regulations.gov

Re:      National Employment Lawyers Association’s Comments

Regarding RIN 1235-AA39 – Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees

Dear Ms. DeBisschop:

This letter provides the Department of Labor (DOL) with the collective comments of more than 1,500 members of the National Employment Lawyers Association (NELA) and its 69 affiliates concerning the proposed changes to the regulations applicable to executive, administrative, and professional employees (“the EAP exemption”) under the Fair Labor Standards Act (FLSA).

NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. Our mission is to advance worker’s rights and serve lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have faced illegal treatment in the workplace in both the public and private sector, including employer violations of federal wage and hour laws. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of … Read More

NELA Practice Group Meeting: Wage & Hour

Join your colleagues from around the country for our Practice Group meetings. NELA’s Practice Groups provide opportunities for members in specific practice areas to network, seek advice, and discuss issues of mutual concern. Meetings are open to any NELA member with an interest in the subject matter area. There is no charge to attend.

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NELA Comments On DOL Tip Regulations Under The Fair Labor Standards Act: Partial Withdrawal

Amy DeBisschop
Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor

Comments on Regulatory Information Number (RIN) 1235-AA21: Tip Regulations under the Fair Labor Standards Act: Partial Withdrawal

Dear Ms. DeBisschop:

The National Employment Lawyers Association (NELA) supports the above-referenced Department of Labor (“Department” or “DOL”) proposed rulemaking, which clarifies that an employer may only take a tip credit when tipped employees perform work that produces tips or a non-substantial amount of work that directly supports tip-producing work, and defines “substantial amount of time” as more than 20 percent of all hours worked during the employee’s workweek or exceeding 30 continuous minutes.

NELA has an important interest in the Department’s proposal.  NELA is the largest professional membership organization in the country comprised of attorneys who represent workers in labor, employment, and civil rights disputes.  Founded in 1985, NELA advances employee rights and serves lawyers who advocate for equality and justice in the American workplace.  NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have been treated illegally in the workplace.  NELA members represent thousands of workers from around … Read More

NELP IBT EPI NELA Amicus Brief – New Prime, Inc. v. Oliveira (U.S. Supreme Court)

On July 25, 2018, NELA joined the Economic Policy Institute and the International Brotherhood of Teamsters in supporting an amicus brief authored by the National Employment Law Project (NELP) in New Prime, Inc. v. Oliveira, pending currently in the U.S. Supreme Court. The case concerns whether the Federal Arbitration Act’s (FAA) exemption of “contracts of employment” from its coverage applies to clauses purporting to treat workers as independent contractors, and whether the resolution of that question may properly be delegated to an arbitrator. In addition to arguing that the contract at issue in this case should be exempt under the plain language of the FAA, the amicus brief adds essential context by detailing the independent contractor misclassification problems endemic in the trucking industry and the abuses of workers they engender, in addition to the detrimental effects they have on other employers, state budget and tax coffers, and on employers’ economic incentives to misclassify more drivers. The brief was authored by NELA member Catherine K. Ruckelshaus and Ceilidh Gao of NELP.… Read More

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NELA Amicus Brief: Nesbitt v. FCNH, et al. (10th Cir.)

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

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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

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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

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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

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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

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NELA Amicus Brief: In Jacob v. Duane Reade, Inc. (2nd Circuit)

On April 22, 2014, NELA joined the Impact Fund and 24 other nonprofit organizations that advocate for workers’ rights, including the Legal Aid Society, LatinoJustice PRLDEF, the Legal Aid Society-Employment Law Center, the National Employment Law Project and Public Justice, in submitting an amicus curiae brief in the U.S. Court of Appeals for the Second Circuit in support of plaintiffs Mani Jacob and Lesleena Mars and similarly situated assistant managers at Duane Reade drugstores. NELA members Adam T. Klein and Molly Brooks of Outten & Golden LLP represent the plaintiffs and putative class. The issues raised in this amicus brief fall within NELA’s current amicus priority of class action preservation, i.e., “minimizing the impact of recent adverse decisions limiting the use of class and collective action mechanisms to vindicate workplace rights, especially in wage and hour cases.”

Jacob and Mars alleged that they and 746 current and former assistant store managers were misclassified as exempt employees by Duane Reade and not paid overtime in violation of the Fair Labor Standards Act and New York Labor Law. The U.S. District Court for the Southern District of New York certified a state law class under Rule 23(b)(3), concluding that substantial evidence showed … Read More

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NELA Amicus Brief: Roach v. T. L. Cannon Corp. (2nd Circuit)

In Roach v. T. L. Cannon Corp., the district court denied class certification of a putative class of employees of an Applebee’s restaurant chain who were denied wages to which they were entitled under federal and New York law based upon the U.S. Supreme Court’s recent decision in Comcast v. Behrend, 133 S. Ct. 1426, 185 L. Ed. 2d 515 (2013). The court denied class certification holding that the damages calculations of individual class members would be “highly individualized,” and thus could not meet the “predominance” prong of Rule 23(b)(3).

NELA’s amicus brief in the U.S. Court of Appeals for the Second Circuit challenges the district court’s reading of Comcast because it upends long standing and widespread principles of black letter law by imposing a new requirement that class certification depends on the existence of class wide theory as to both liability and damages. We argue that by applying Comcast in this fashion, the district court effectively transformed the wage and hour laws on this matter, adopted an erroneous reading of Comcast, and established a sweeping rule that, if accepted, would fundamentally alter the contours of class litigation under Rule 23(b)(3). Our brief addressed the significant implications … Read More

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