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On August 3, 2016, NELA, joined by the Truckers Justice Center, Teamsters for a Democratic Union, and General Drivers, Warehousemen & Helpers Local No. 89, filed an amicus brief with the U.S. Department of Labor’s Administrative Review Board (ARB) in support of whistleblower complainant Kenneth Palmer in Palmer v. Canadian National Railway/Illinois Central Railroad Company . A unique burden-shifting framework applies to a number of statutes enacted to protect workplace whistleblowers. In cases arising under these laws, a complainant has the burden to demonstrate by a preponderance of the evidence that his actual or perceived protected activity...
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On behalf of the 1,200-member strong California Employment Lawyers Association (CELA), we welcome you to the City of Angels for #NE LA 16 ! When the Roll Call Of The States begins, you can be sure that CELA’s shout-out will resonate throughout the room. While we know that many are drawn to the Golden State because of our California sun, CELA has been working for thirty years to ensure that the climate for California workers is equally hospitable. We look forward to welcoming you. CELA is a statewide organization of more than 1,200 attorneys who represent workers in discrimination, harassment, retaliation, whistleblower, wage and hour, and other employment...
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The 2016 NELA Convention is coming to California, in Downtown Los Angeles, June 22–25 . The NELA Convention brings together the best and brightest employment law minds from across the United States. The NELA Convention provides a broad view of the employment law perspective, allowing practitioners from across the country to share the innovative techniques they apply to achieve success, despite often being in plaintiff unfriendly venues. Their innovations are our opportunities. Moreover, a number of the best attorneys from the California Employment Lawyers Association (CELA) will be speaking or giving trial presentations as part of the California track—speakers...
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Dear NELA Members: The Civil Jury Project at the New York University School of Law currently is studying the causes and consequences of the pronounced decline in civil jury trials in both state and federal courts. As part of that effort, they have developed a survey that they would like NELA members to complete, and we have agreed to forward their request to the NELA membership. Please note the time-sensitive nature of the request, as the survey will remain open only through the end of May. A brief description of what The Civil Jury Project hopes to accomplish, and a link to the survey, is reproduced below in italics. Please feel free to respond...
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On April 6, 2016, NELA and the National Employment Law Project filed an amicus brief in support of the Respondents in Encino Motors, LLC v. Navarro (Case No. 15-415), currently pending in the U.S. Supreme Court. The five plaintiffs in this case were, or are, service advisors at a Mercedes-Benz dealership in California. Their responsibilities included greeting customers, recording their complaints, drafting service estimates, and suggesting work to be performed. While they regularly worked more than forty hours per week, they did not receive overtime pay and, in 2012, filed suit in federal district court alleging violations of the Flair Labor Standards...
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On April 5, 2016, NELA was joined by our colleagues from the National Disability Rights Network (NDRN) in filing an amicus brief in the U.S. Court of Appeals for the Tenth Circuit, in support of the Plaintiff-Appellant Kristin Punt in Punt v. Kelly Services & GE Controls Solutions . Kristin Punt was fired from her job almost immediately after she was diagnosed with breast cancer. As is true for most people during the first days or weeks after receiving a cancer diagnosis, the extent of her cancer and what her treatment would entail were uncertain. When Ms. Punt made an accommodation request to her employer by e-mail on December 5, 2011, she knew...
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On March 11, 2016, NELA joined the Equal Justice Society, Justice at Work, the American Civil Liberties Union of Massachusetts, and the Charles Hamilton Houston Institute for Race and Justice in filing an amicus brief in support of the Plaintiff-Appellants in Jones v. City of Boston , currently pending in the U.S. Court of Appeals for the First Circuit. The Jones plaintiffs challenged a drug test administered by the Boston Police Department from 1999 through 2006, as discriminatory against African-American officers. The “hair test” at issue attempts to determine whether a person has used cocaine by testing the amount of cocaine and cocaine metabolites...
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The NELA HQ Blog is pleased to publish the following post drafted by NELA member Andrew J. Perlmutter from Passman & Kaplan in Washington, D.C. On February 8, 2016, NELA filed an amicus brief in Abernathy v. Department of the Army, MSPB Docket No. DC-1221-14-0364-W-1, pending before the Merit Systems Protection Board (MSPB). NELA’s amicus brief was filed in response to the MSPB’s invitation for public amicus participation, published in the Federal Register at 81 Fed. Reg. 2,913-2,914 (January 19, 2016). The appellant was a government contractor who blew the whistle in 2012 on violations of law, rule or regulation to...
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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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