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The U.S. Supreme Court issued a decision on April 29, 2015 in Mach Mining, LLC v. EEOC regarding whether any judicial review of the Equal Employment Opportunity Commission’s (EEOC) conciliation efforts under Title VII is appropriate, resolving a circuit split.  In a unanimous opinion authored by Justice Elena Kagan, it held that “a court may review whether the EEOC satisfied its statutory obligation to attempt conciliation before filing suit.” Recognizing, however, “the abundant discretion the law gives the EEOC to decide the kind and extent of [conciliation] discussions appropriate in any given case,” the Court provided for a narrow scope of judicial review. NELA joined an amicus brief in support of the EEOC authored by NELA members Michael L. Foreman, Director of the Civil Rights Appellate Clinic at Penn State's Dickinson School of Law, and Jocelyn D. Larkin and Robert L. Schug of the Impact Fund.

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The U.S. Department of Labor’s Administrative Review Board (ARB), sitting en banc, issued a 3-2 decision in favor of Complainant Robert Powers on March 20, 2015 in the case of Powers v. Union Pacific Railroad Company, ARB Case No. 13-034, ALJ Case No. 2010-FRS-030, holding that a lower burden of proof applied to employee claims brought under corporate whistleblower statutes. Mr. Powers was represented at the hearing on January 14, 2015 by NELA member Stephen M. Kohn of Kohn, Kohn & Colapinto, LLP (Washington, DC). NELA joined the National Whistleblowers Legal Defense and Education Fund, Truckers Justice Center, and Teamsters for a Democratic Union in filing an amicus brief in support of Mr. Powers. NELA member Jason M. Zuckerman of Zuckerman Law (Washington, DC), who authored the brief also appeared at the hearing. Not surprisingly, the U.S. Chamber of Commerce, joined by American Truckers Associations, Inc., submitted an amicus brief endorsing higher burdens of proof for whistleblowers. The U.S. Solicitor of Labor, taking an unanticipated position, argued against the whistleblower. Mr. Kohn characterized the decision as “

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BY: PATRICIA CHEN

EMPLOYEE RIGHTS ADVOCACY LAW STUDENT FELLOW,

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION AND

THE EMPLOYEE RIGHTS ADVOCACY INSTITUTE FOR LAW & POLICY

 

On March 9, 2015, NELA joined Disability Rights North Carolina and the National Disability Rights Network to file an amicus brief in support of plaintiff-appellant Whitney Stephenson in the case of

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In 2008 Samantha Elauf applied for a job at her local Abercrombie & Fitch clothing store in Tulsa, Oklahoma. During her interview Elauf, who is a practicing Muslim, wore a hijab or headscarf. Though her headscarf was clearly visible to the hiring manager who interviewed her, Elauf was never asked if she needed a religious accommodation as provided for by law. This is despite the fact that there is a company policy prohibiting the wearing of headwear by “models”—the in-house name for what are essentially sales associates, the position to which Elauf applied.

 

Though she initially received a high score from her interviewer, Elauf was denied the job after the hiring manager spoke with a district manager who said that the headwear was against company policy. After being denied the position, the Equal Employment Opportunity Commission (EEOC) filed a suit on her behalf alleging that Elauf was not hired as a result of her religion in a violation of Title VII of the Civil Rights Act of 1964 and subsequent amendments. While the EEOC prevailed on summary judgment and at trial on damages, the Tenth Circuit Court of Appeals reversed and held that because Elauf never explicitly informed her potential employer that she needed a religious accommodation, Abercrombie & Fitch was not liable for violating the statute. On February 25, the United States Supreme Court will hear oral arguments on this case,

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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 in

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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 the district court to enter summary judgment in favor of Abercrombie on remand. In a 93-page opinion, containing a strong dissent, the majority held that summary judgment should be granted for defendant because the applicant neither informed Abercrombie that she wore her hijab for religious reasons nor needed an accommodation because that practice conflicted with its clothing policy. The hiring manager assumed the applicant was Muslim and wore a hijab for that reason. The applicant was never made aware of any conflict between Abercrombie’s clothing policy and wearing a hijab. The district court decision is reported at 798 F. Supp.2d 1272; the opinion of the court of appeals is at 731 F.3d 1106.

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By Clark L. Taylor

Paul H. Tobias Attorney Fellow

The Employee Rights Advocacy Institute For Law & Policy

 

In a unanimous opinion authored by Justice Clarence Thomas, the United States Supreme Court held that warehouse workers filling amazon.com orders, do not have to be paid for time spent waiting for and passing through a rigorous security screening prior to exiting the workplace. In Integrity Staffing Solutions, Inc. v. Busk

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The following Guest Blog was written by Richard R. Renner, a member of NELA's Executive Board.

Pleading standards are important. A judge’s decision about whether a complaint is adequate can make the difference between winning or losing a case.

Lawyers have been in a tizzy about a pair of Supreme Court decisions, Twombly and Iqbal, in which the Supreme Court allowed cases to be dismissed merely because the plaintiffs could not be specific enough about their claims to make their cases “plausible.” These decisions protected Bell Atlantic from an anti-trust claim, and former Attorney General Ashcroft from liability for the prison beating of Javad Iqbal shortly after the 9/11 attacks.

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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.

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On Wednesday, October 8, 2014, I attended the oral arguments at the U.S. Supreme Court in the case of Integrity Staffing Solutions, Inc. v. Busk. The issue before the Court is whether employees should be paid for time spent waiting and completing an elaborate security screening used for inventory control (or anti-theft) purposes after clocking out at the end of a shift. Workers at Amazon.com warehouses, employed by Integrity Staffing Solutions, are required to undergo a mandatory search of their body and belongings before being permitted to exit the facility. The search, which is similar to that conducted at airports, required employees to empty their pockets, have their bags searched, and walk through a metal detector. Long lines often formed at the screening stations, requiring workers to wait up to 25 minutes before they could leave the premises. The workers are represented by Mark R. Thierman, Thierman Law Firm, P.C., Reno, Nevada, and Professor Eric Schnapper, University of Washington School of Law, Seattle, Washington.

Counsel for Integrity Staffing Solutions, Paul D. Clement, Bancroft PLLC, characterized the wait time as simply a “logical part of the egress process” that did not merit compensation. He argued that the Portal-to-Portal Act of 1947, which amended the Fair Labor Standards Act, requires the screening to be an “integral and indispensable” component of the workers’ “principal activities” in order to mandate compensation under the law. Clement repeatedly asserted that the screenings were in no way “integral and indispensable” to the work the employees performed. He compared the screening to checking out at the end of the workday—an activity for which employees are not compensated.

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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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Tags/Keywords:
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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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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Tags/Keywords:
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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