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On January 19, 2016 NELA joined the National Employment Law Project, the National Association of Consumer Advocates, the National Consumer Law Center, and Towards Justice in filing an amicus brief in support of the plaintiff-appellees in Mohamed/Gillette v. Uber . The plaintiffs in this case represent a class of current and former Uber drivers who have alleged that Uber’s background check policies violate the federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Report Agencies Act (CICRAA), and have challenged Uber’s misclassification of its drivers as independent contractors under the California Private Attorneys General...
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On October 28, 2015, NELA joined with AARP to file an amicus brief in the U.S. Court of Appeals for the Fifth Circuit on behalf of the Plaintiff-Appellants in Whitley v. BP, P.L.C. Under § 1104 of the Employee Retirement Income Security Act (ERISA), the fiduciary of an employee benefit plan must exercise his or her duties “solely in the interest of the participants and beneficiaries” of the plan, and “with the care, skill, prudence, and diligence” of a prudent person under the then-prevailing circumstances. The Defendants in Whitley are a group of individuals and entities associated with BP who acted as fiduciaries for a number of benefit...
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On October 26, 2015, NELA joined the Metropolitan Washington Employment Lawyers Association (MWELA) in filing an amicus brief in the U.S. Court of Appeals for the Fourth Circuit in support of the Plaintiff-Appellant in Sharif v. United Airlines, Inc. Mr. Sharif, who worked as a Service Director for United Airlines, suffered from anxiety as a result of being imprisoned and tortured by Iranian police during the Islamic Revolution in 1979. To manage his anxiety, Mr. Sharif requested, and was granted, intermittent leave under the Family and Medical Leave Act (FMLA). Under the arrangement, Mr. Sharif was allowed to take leave once a month for one to...
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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)...
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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,...
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On August 10, 2015, the U.S. Court of Appeals for the Fourth Circuit issued a unanimous opinion in favor of the plaintiff J. Neil DeMasters in DeMasters v. Carilion Clinic, Inc. , No. 13-2278. DeMasters worked for Carilion, a large healthcare organization, and alleged that “he was terminated for engaging in protected activity, including opposing an unlawful employment practice, in violation of Title VII of the Civil Rights Act of 1964.” Judge Cheryl Ann Krause wrote for the court, which held that the district court erred in (1) examining DeMasters’ conduct as a series of discrete incidents rather than as part of a continuous course of oppositional conduct...
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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,...
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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...
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By Joseph Dalia Employee Rights Advocacy Law Student Fellow The Employee Rights Advocacy Institute For Law & Policy In an 8-1 decision written by Justice Antonin Scalia, the U.S. Supreme Court on June 1, 2015 held in EEOC v. Abercrombie & Fitch Stores, Inc . that under Title VII “the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” In a significant victory for workers, the opinion clarified that an employer need not have actual knowledge of an applicant’s or employee’s...
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NELA joined AARP to file amicus briefs in support of the plaintiffs-appellees in Kaplan v. Saint Peter’s Healthcare System , No. 14-8125 (3d Cir.), and Stapleton v. Advocate Health Care Network , No. 15-1368 (7th Cir.). These cases challenge the claimed religious exemption from the Employee Retirement Income Security Act’s (ERISA) requirements by two large health care organizations. The amicus brief in Kaplan was filed on May 11, 2015 and the Stapleton brief was filed on May 13, 2015. The a micus briefs were drafted by NELA members Mary Ellen Signorille of AARP Foundation Litigation, Washington, DC and Ronald Dean, Pacific Palisades, CA. Both...
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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”...
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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...
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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...
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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 Stephenson v. Pfizer, Inc. , Case No. 14-2079, pending in the U.S. Court of Appeals for the Fourth Circuit. The issue on appeal is whether the district court erred in interpreting the language of the Americans with Disabilities...
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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...
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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...
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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...
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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 , the Court decided that the employees’ time was not compensable under the Fair Labor Standards Act of 1938 (“FLSA”). Justice Sonia Sotomayor wrote a concurring opinion, which Justice Elena Kagan joined,...
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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...
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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...
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