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NELA Amicus Briefs

NELA Amicus Brief: Owen v. Bristol Care, Inc. (8th Cir.)

Aug 01, 2012 2:19 PM

On July 30, 2012, NELA, its public interest organization, The Employee Rights Advocacy Institute For Law & Policy, and the National Employment Law Project (NELP), filed an amicus brief urging affirmance of a district court’s rejection of a collective action ban in an arbitration agreement.

Our brief supports the district court opinion and argues that a prohibition on collective action, as a policy matter, conflicts with the broad remedial goals of the FLSA and prevents employees from vindicating their statutory rights. Depriving employees of their rights to seek redress for wage and hour violations by prohibiting collective action in any forum undermines the wage floor and the policies of the FLSA, and rewards unfair competition by employers engaging in wage theft. We also submit that many employees will not pursue individual cases because (1) the small value of their claims will not support litigation, (2) they simply will not know that their rights are being violated absent FLSA collective action notice, and (3) their fear of retaliation will deter them from stepping forward on an individual basis.

In addition, our amicus brief contends that the district court’s decision is supported by the independent legal ground that a collective action prohibition imposed as a condition of employment is unenforceable under the National Labor Relations Act (NLRA) and the Norris LaGuardia Act, as recently held by the National Labor Relations Board in D.R. Horton. The NLRA and the Norris LaGuardia Act prohibit employer interference with employees’ exercise of concerted activity for mutual aid or protection. The pursuit of a collective action is protected concerted activity and Bristol Care Inc.’s collective action ban interferes with such activity by forbidding it. Thus, the trial court’s rejection of the collective action ban was correct on the independent legal ground that the court lacked power to enforce this unlawful provision.

Brief Writer: Douglas L. Micko

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