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Worker Misclassification

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

Hamrick v. Partsfleet, LLC

On July 20, NELA signed on to an amicus brief filed by the National Employment Law Project in the Eleventh Circuit case of Hamrick v. Partsfleet, LLC. The brief, filed in support of a petition for en banc review, challenges a ruling that drivers who do not cross state lines are not engaged in interstate commerce, and are therefore not protected by the Federal Arbitration Act.  Hamrick and his fellow drivers were misclassified as independent contractors and denied overtime, and compelled into arbitration. The brief argues that where delivery drivers deliver goods that have been transported between states, those workers are protected under the Federal Arbitration Act. We are grateful to NELP and NELA member Shannon Liss-Riordan, Lichten & Liss-Riordan PC (MA) for drafting this brief.… Read More

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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: Saleem v. Corporate Transportation Group (2nd Circuit)

On April 28, 2015, NELA joined the National Employment Law Project (NELP), the Legal Aid Society of New York, Urban Justice Center, and Make the Road New York (MRNY) to file an amicus brief in support of plaintiffs-appellants Mazhar Saleem and more than 200 opt-in plaintiffs and others similarly situated in the case of Saleem v. Corporate Transp. Group, Ltd., Case No. 12-CV-8450, pending in the U.S. Court of Appeals for the Second Circuit. The issue on appeal is whether the district court erred in granting summary judgment to defendants and holding that the plaintiffs, drivers for defendants’ black car transportation business, were “independent contractors” instead of “employees” and thus not covered by the Fair Labor Standards Act (FLSA). The district court found for the defendants in spite of the “ample evidence in the record showing Plaintiffs meet the broad definition of ’employee’ under the FLSA as defined in settled Second Circuit law.” Amici urged the Second Circuit to reverse the district court’s decision and remand to allow a jury to decide the question of the drivers’ employment status under the FLSA.

Misclassification of workers as independent contractors rather than as employees has serious social and economic implications—and is … Read More

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NELA Amicus Brief: In re Wells Fargo Wage & Hour Employment Practices Litigation (5th Circuit)

On December 20, 2012, NELA filed an amicus brief in the Fifth Circuit Court of Appeals in support of a group of Home Mortgage Consultants (HMC) who alleged they were misclassified by their employer and therefore unlawfully denied overtime payments in violation of the Fair Labor Standards Act (FLSA). This case is a part of a multi-district litigation that could involve as many as 15,000 HMCs nationwide.

After the district court judge granted conditional certification of the collective action – thereby allowing for notice to be sent to potential opt-in plaintiffs – the defendants petitioned the Fifth Circuit for a writ of mandamus. In their meandering petition, the defendants challenged not only the district court’s decision on conditional certification in this case, but also the two-step process for certifying collective actions that is currently used in every federal circuit. The defendants allege that the two-step conditional certification procedure currently used in collective actions arising under the FLSA, Age Discrimination in Employment Act (ADEA), and Equal Protection Act (EPA) is inconsistent with the Federal Rules of Civil Procedure (FRCP) and that such actions should be governed by Rule 23 of the FRCP as interpreted recently by the U.S. Supreme Court in … Read More

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NELA Amicus Brief: Scantland v. Knight Enterprises, Inc. (11th Circuit)

On August 10, 2012, NELA joined Interfaith Worker Justice, the Southern Poverty Law Center, and the National Employment Law Project (NELP) as amicus curiae in Scantland v. Knight Enterprises, Inc. (Case No. 12-12614), pending before the U.S. Court of Appeals for the Eleventh Circuit, urging reversal of a grant of summary judgment in this FLSA independent contractor misclassification case. Scantland involves over 180 cable installation technicians of Knight Enterprises, Inc. (“Knight”), a cable installation company, who are seeking to recover unpaid wages and overtime pay under the FLSA. None of the workers received overtime for work performed over 40 hours per week as required by the FLSA. In granting summary judgment, the district court held that the cable installation technicians were not employees of Knight, but were instead independent contractors who are exempt from the protections of the FLSA.

Focusing on the statutory language and historical underpinnings of the FLSA, specifically the breadth of the definition of “employ” under the statute, our brief urges the Eleventh Circuit to apply the FLSA consistent with its history. In addition, we advance strong public policy reasons that support a broad application of the FLSA, especially in this era of increasing abuse of the … Read More

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NELA Amicus Brief: Christopher v. SmithKline Beecham (U.S. Supreme Court)

NELA and the National Employment Law Project joined together as amicus curiae to urge the U.S. Supreme Court in Christopher v. SmithKline Beecham (Case No. 11-204) to endorse the right of pharmaceutical sales representatives (PSRs) to be classified as non-exempt employees. The petitioner-plaintiffs are two among approximately 90,000 PSRs employed within the American pharmaceutical industry who visit physicians’ offices and encourage physicians to prescribe their employer’s products to their patients. Plaintiffs filed suit under the Fair Labor Standards Act (FLSA) seeking overtime pay on behalf of a nationwide class of PSRs employed by respondent-defendant SmithKline Beecham, Corp., d/b/a GlaxoSmithKline. Numerous similar suits have been filed throughout the country by PSRs performing identical business functions for various pharmaceutical companies. Defendant’s motion for summary judgment was granted on the basis that PSRs are outside salespersons who are exempt under the FLSA.

In line with our successful brief in In re Novartis Pharmaceutical Litigation, where the Second Circuit reached the contrary conclusion to the Ninth Circuit in Christopher, NELA’s brief argues that requiring outside sales people to make actual sales is central to the purpose of the exemption; that to ignore the actual sales requirement would draw the courts in an … Read More

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