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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. 

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More than a year ago, in May 2013, NELA and AARP jointly submitted an amicus curiae brief in support of Richard G. Tatum, plaintiff-appellant, in Tatum v. RJR Pension Investment Committee, No. 13-1360, pending in the U.S. Court of Appeals for the Fourth Circuit. This was Mr. Tatum’s second trip to the Fourth Circuit in this case. The issue on appeal now was whether defendants breached their fiduciary duty to the R.J. Reynolds 401(k) retirement savings plan by forcing the liquidation of two investment funds on an arbitrary timeline without adequate investigation or analysis causing a substantial loss in violation of the Employee Retirement Income Security Act (ERISA).

After Mr. Tatum obtained reversal of a motion to dismiss from the Fourth Circuit, the Middle District of North Carolina certified a class of participants in its entirety, declining to exclude those who signed severance agreements purportedly releasing claims. Following a four-week bench trial, the court held that the fiduciaries of the 401(k) plan breached their duty of procedural prudence by engaging in only a cursory examination of the timing of the sale thus failing to investigate or analyze their divestiture decision appropriately. At the time of the forced liquidation, the stock of formerly affiliated companies in the funds had declined precipitously in value, but was widely expected to rise and investment analysts were increasingly recommending that it be held or purchased. The court next held that defendants avoided liability because a reasonable and prudent fiduciary could have made the same decision after performing a proper investigation.
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On July 21, 2014, NELA filed a motion for leave and submitted a proposed amicus curiae brief in Turner v. Inzer, Case No. 14-11357, pending in the U.S. Court of Appeals for the Eleventh Circuit. Defendant Inzer refused to consent to the filing of the amicus brief. The major issues on appeal are whether: (1) attorneys' fees were properly awarded to defendant under Christianburg Garment Co. v. EEOC and Sullivan v. Sch. Bd. Of Pinellas Cty.; and (2) attorneys' fees were calculated properly pursuant to Fox v. Vice. Counsel for plaintiff Turner is NELA member Lisa Lambert, Of Counsel, Law Office of Marie A. Mattox, P.A., Tallahassee, FL, www.mattoxlaw.com.

Plaintiff Cynthia Turner brought claims for wrongful termination and retaliation under state and federal whistleblower statutes and Title VII. Summary judgment was granted for defendant on all claims. The court held that plaintiff did not meet the first prong of the whistleblower retaliation claim and failed to make out a prima facie case under Title VII. Plaintiff appealed and the Eleventh Circuit affirmed per curiam.
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On July 21, 2014, NELA and AARP submitted an amicus curiae brief in Gabriel v. Alaska Electrical Pension Fund, No. 12-35458, pending in the U.S. Court of Appeals for the Ninth Circuit, in support of plaintiff Gregory R. Gabriel’s petition for rehearing en banc. This case involves whether remedies under the Employee Retirement Income Security Act (ERISA) are available when a pension plan represents that a plan participant is eligible for benefits, pays those benefits for several years, and thereafter discontinues them. The Ninth Circuit panel opinion, authored by Judge Sandra S. Ikuta and joined by Chief Judge Alex Kozinski, limited the scope of equitable remedies, creating a split with every other circuit court that has reviewed this issue, as Judge Marsha L. Berzon noted in her dissenting opinion.

Plaintiff-Appellant Gregory R. Gabriel received eleven years of service credit from Defendant-Appellee Alaska Electric Pension Fund, which vested him under its pension plan. Gabriel was advised that he would receive monthly pension benefits of $1,236. He subsequently retired and began receiving benefits. Several years later, the Fund terminated the benefits, and threatened to seek reimbursement for the benefits paid, because it determined that Gabriel should have received credit for only eight instead of eleven years, and thus was ineligible to participate in the pension plan. Gabriel filed suit, alleging breach of fiduciary duty, misrepresentation, and estoppel.
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A Tour de Force: Draconian Proposed Changes To The Federal Rules Of Civil Procedure Withdrawn

Congratulations—we marshaled our resources well and were successful! Our collective voices challenging the proposed changes to the Federal Rules of Civil Procedure were heard by the Advisory Committee on Civil Rules and resulted in significant changes to the original proposals. This is precisely how the rulemaking process should work.

As you know, the Judicial Conference of the United States proposed to change the Federal Rules of Civil Procedure to limit discovery significantly with the result that plaintiffs in federal court actions, including your clients, would be deprived of access to essential information. The proposed rules sought to reduce the presumptive number of depositions to five from ten, each deposition to one day of six hours instead of seven hours, the presumptive number of interrogatories to 15 from 25, and to create a presumptive limit of 25 requests for admission where none previously existed.

Two additional proposed rules regarding proportionality and spoliation also would have affected plaintiffs’ ability to obtain discovery of evidence asymetrically in employers’ hands and make it harder to obtain a remedy for destruction of evidence.

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Tags/Keywords:
Topic : Discovery  Keyword : Federal Rules  Admin : Legislative Public Policy

NELA Blows The Whistle On General Mills -- Efforts Responsible For Significant Progress In Movement To End Forced Arbitration

 

As many of you are aware, there has been a trifecta of bad corporate behavior toward employees and consumers. The Oakland Raiders’ motion to compel arbitration in the case Lacy T. v. Oakland Raiders provided a national platform to educate America’s workers on what is happening to their employment and civil rights as a result of forced arbitration. NELA led the charge on that as we worked with Lacy T.’s counsel, sending her attorneys’ and NELA’s statements to hundreds of major media outlets. This produced a flurry of social media activity and many excellent news articles, including the ones in the LA Times and ESPN online, with more expected as the case progresses.

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Topic : Forced Arbitration  Admin : Legislative Public Policy

The Oakland Raiderettes are among the millions of workers across America who
are compelled by their employers to give up their rights to go to court and a trial by jury because of forced arbitration clauses. Read NELA's statement to find out how the Raiderettes' case and the Oakland Raiders' response impacts you as an employee, and as an consumer, and what you can do about it.

NELA's Statement On The
The Oakland Raiders’ Motion To Compel Arbitration In
Lacy T. v. The Oakland Raiders

(Washington, DC) – On Friday, March 14, 2014, a significant development occurred in the case of Lacy T. v. The Oakland Raiders, a class action filed in California state court by the team’s employee cheerleaders, known as the Raiderettes, alleging violations of California’s wage and hour laws and other statutes.

"The Raiders are using their unequal power against these women to enforce a dubious forced arbitration provision that would strip them of their right to have their day in court," said Terisa E. Chaw, Executive Director of the National Employment Lawyers Association (NELA). "Rather than have a judge or jury hear the women’s claims in a court of law, they are being required to present their dispute to Roger Goodell, the Commissioner of the National Football League."

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Tags/Keywords:
Topic : Forced Arbitration  Statutes : AFA  Admin : News Release

The following Guest Blog was written by Daniel B. Kohrman, NELA's Vice President of Public Policy.

The Fall 2013 Term of the U.S. Supreme Court began Monday with an age discrimination case, with broad implications for civil rights enforcement under the Fourteenth Amendment to the Constitution.  A lively argument left questions as to whether the Justices had chosen the right case to begin their year.  In fact, many justices expressed skepticism about whether Madigan v. Levin, No. 12-872, was properly before them.

Madigan v. Levin is a challenge to a 7th Circuit ruling, 692 F.3d 607, upholding the right of Harvey Levin, a former senior member of the Illinois Attorney General’s Office, to contest his termination, allegedly based on his age, under the Age Discrimination Employment Act (ADEA), the Equal Protection Clause of the Fourteenth Amendment, and Section 1983 of the Civil Rights Act. 

The petitioner, Illinois Attorney General Lisa Madigan, argued that the ADEA is the exclusive remedy for age discrimination claims.  She asserted that federal anti-discrimination statutes, including the ADEA, are so comprehensive as to demonstrate Congress’ intent to preclude a parallel anti-discrimination claim under the Constitution,  and therefore that the ADEA displaced any competing, constitutional claim for age discrimination under the Constitution or § 1983. 

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Topic : Age Discrimination  Statutes : ADEA  Federal Appellate Courts : US Supreme Court

NELA and the Government Accountability Project (GAP) joined together in an amicus brief to support two whistleblowers who reported allegedly wrongful accounting and fee practices for certain Fidelity mutual funds in Lawson v. FMR LLC (Case No. 12-3), currently pending on the merits before the U.S. Supreme Court. After reporting these allegedly fraudulent activities, both were retaliated against for having blown the whistle. After the plaintiffs filed whistleblower complaints with the Department of Labor and then brought suit in federal court, the defendant sought to dismiss their claims on the grounds that employees of contractors or subcontractors are not protected by Section 1514a of the Sarbanes-Oxley Act (SOX). This issue is now before the Supreme Court after the First Circuit found that these employees were not protected by SOX.
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Following the unanimous Advisory Committee recommendation that the Duke Subcommittee's proposed discovery rule amendments package be approved for publication, the Standing Committee voted to adopt the Advisory Committee's recommendation at its meeting in early June. The proposed amendments were published for public comment on August 15, 2013. As expected, the comment period will remain open for six months (i.e., until February 15, 2014). Public hearings will be held during this public comment period. Three hearings will be held around the country, including one Washington, DC on November 7, 2013; a second in Phoenix, AZ on January 9, 2014; and a third in Dallas, TX on February 7, 2014. Ideally, members should aim to submit their comments by October 1, 2013 in advance of the first hearing. All comments submitted to the Advisory Committee earlier this year will be docketed on the

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On July 14, 2013, NELA joined AARP in filing an amicus brief supporting Carl Summers, a contract statistician with Altarum Institute Corp. who sustained serious injury to both legs in an October 2011 accident, in his appeal to the U.S. Court of Appeals for the Fourth Circuit. Mr. Summers was terminated in December 2011 while recuperating from these injuries despite properly requesting an accommodation under the federal disability laws. Amici address several aspects of disability law not analyzed with clarity or precision by the district court, including the significance of enactment of the ADA Amendments Act of 2008 (ADAAA) as well as the issuance of revised regulations by the U.S. Equal Employment Opportunity Commission (EEOC) regarding the status of non-permanent medical conditions. In particular, the district court failed to analyze properly whether Summers was “substantially limited” in a “major life activity,” and whether Altarum “failed” to “reasonably” accommodate his injuries. 

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By Katy Skaggs, The Institute’s Summer 2013 Employee Rights Advocacy Fellow

July 30, 2013

In the wake of a series of tragic mass deaths in Bangladesh’s ready-made garment factories, public outcry prompted two international trade unions, IndustriALL Global Union and UNI Global Union, to take action by engaging major retail brands to negotiate a contractual agreement. The Accord on Fire and Building Safety in Bangladesh (Safety Accord) is intended to make factories safer for garment workers in Bangladesh. The initial deadline for retailers to sign the Safety Accord was May 15, 2013 and an

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NELA joined AARP in filing amicus curiae briefs in two important cases supporting employees with claims under the Employee Retirement Income Security Act (ERISA) in the U.S. Supreme Court and the U.S. Court of Appeals for the Fourth Circuit.

Heimseshoff v. Hartford Life & Accident Insurance Co. and Wal-Mart Stores, Inc. (Case No. 12-729), pending before the U.S. Supreme Court, 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 from her employee benefit plan. The lower courts dismissed her case as time-barred by the three-year statute of limitations period established in the benefit plan policy, a holding that meant her claim accrued before she had received the adverse determination of her appeal through the plan’s mandatory claims procedures. If the Court were to adopt Hartford’s application of the plan’s statute of limitations for judicial review, this would result in the statute of limitations running before the employee has even had the opportunity to exhaust the plan’s mandatory claims procedures.

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Submitted by Patrick Callahan, NELA's 2013 Peggy Browning Fellow

When President Kennedy signed the
Equal Pay Act of 1963 (EPA), he envisioned the law as a first step toward ensuring a level playing field for women in the workforce. As we celebrate the 50th anniversary of this landmark legislation, it is important to evaluate its effectiveness in preventing wage discrimination based on gender. In 1963, women workers made just 59 cents for every dollar earned by their male counterparts. Today, women workers earn 77 cents for every dollar taken home by male workers, a figure that is

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Tags/Keywords:
Topic : Discrimination  Admin : Legislative Public Policy

Guest Blog by Barry D. Roseman for Colorado PELA



Colorado PELA presents the third installment of Countdown to Denver:

 

SELECTED MUSICAL EVENTS IN AND NEAR DENVER

DURING THE 2013 NELA ANNUAL CONVENTION


New Event Update:

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Guest Blog by Diane S. King for Colorado PELA



Dear NELA members - We hope to see you in Denver at the NELA Convention!  To encourage you to join us, we will be sending weekly information about various fun activities in Denver and around Colorado.  The second in our series is oriented towards activities outside Denver. – Diane King

NORTH OF DENVER

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Guest Blog by Diane S. King for Colorado PELA

We hope to see you in Denver at the NELA Annual Convention!  To encourage you to join us, we will be sharing information about various fun activities in Denver and around Colorado.  The first in our series is oriented towards activities for children.  – Diane King



COOL ACTIVITIES FOR KIDS

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Guest Blog by Diane S. King for Colorado PELA



The Plaintiff Employment Lawyers Association (PELA) invites you to Denver for NELA's Annual Convention.  We are thrilled that NELA is holding its 2013 Annual Convention in Denver.

PELA is a statewide organization of more than 140 attorneys who represent workers in discrimination, harassment, retaliation, whistleblower, and other employment matters.  PELA members benefit from an active listserv and monthly CLEs, in addition to an annual retreat.  Our 4 officers, 12-person board, and members are dedicated to ensuring a high level of representation for employees in Colorado and work with the community and legislature to protect employee rights.
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Between April 29–May 3, 2013 the Executive Board, Membership Committee, and staff of the National Employment Lawyers Association are holding our Annual Phone-A-Thon: Connect & Inform. Help the NELA family grow by picking up your phone to connect with colleagues to inform them about the benefits of membership in NELA. Download your Phone-A-Thon Tool Kit at www.nela.org/join.

New Members Join NELA At Half Price!
Recruit a new member to NELA at the Regular Membership Level and they will get a 50% discount off their membership dues and a complimentary 6 month listing in our public “Find-A-Lawyer” Directory, an exclusive member benefit at www.nela.org.

And your name will be entered in a drawing for one of the following fabulous prizes!
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On April 23, 2013, NELA filed an amicus brief with the U.S. Court of Appeals for the Sixth Circuit in Howe v. City of Akron, in which Akron firefighters alleged race and age discrimination claims involving promotions. In 2008, a jury found for the firefighters and awarded them $1,891,000 in damages. After lengthy post-trial motion practice, the trial court granted the City of Akron a new trial on the damages award in late 2010. Shortly before the new trial in July 2011, the judge declared the damages issue would be decided in a bench trial rather than before a jury because plaintiffs had waived their right to a jury trial on that issue. He also ordered the City to promote the 19 of the 23 plaintiffs still employed by the City (cutting off their front pay claims), and reduced the back pay period by approximately two years to the date the promotions list at issue had expired. Pursuant to the judge’s orders, plaintiffs’ counsel recomputed the firefighters’ damages, and filed a proposed exhibit with the new calculations, which used a different method to compute the damages than during the original trial. On the last day of the bench trial, the judge struck the calculations exhibit, and sanctioned plaintiffs’ counsel for engaging in a “bait and switch” on their theory of damages. The judge ordered plaintiffs’ counsel to show cause why they should not be sanctioned and defense counsel to submit billing records for

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