Welcome to the Summer/Fall 2015 edition of Vision + Action: Inside The Institute, published quarterly by the National Employment Lawyers Association (NELA) and The Employee Rights Advocacy Institute For Law & Policy (The Institute). The Institute was established in 2008 as NELA's public interest organization to share NELA's mission and broaden our reach. The Institute furthers employee rights through innovative legal strategies, policy development, grassroots advocacy, and public education. The Institute protects workers' access to the courts and promotes employee rights by influencing the broad, macro conversations that shape employment law.

In This Issue:  
"A1Uber's Attempt To Silence Its Drivers May Have Just Backfired," By Paul H. Tobias Attorney Fellow Clark Taylor
Ending forced arbitration of employment disputes is The Institute's top public policy priority. Toward that end, The Institute is engaging in a public education campaign to raise awareness about how forced arbitration threatens the role of the courts as a means for workers to redress their rights when employers violate the law by denying them access to America's civil justice system. Forced arbitration lacks public accountability and transparency, and thus shields employers from responsibility when they break the law. Clark Taylor, The Institute's Paul H. Tobias Attorney Fellow, writes frequently on legal developments related to this issue.

In August, Clark Taylor, The Institute's 2015-- 2016 Paul H. Tobias Attorney Fellow, wrote an article about Uber's imposition of forced arbitration on its drivers for In These Times, a magazine covering the labor movement and the struggles of workers to obtain safe, healthy, and just workplaces. The article focuses on the decision by U.S. District Judge Edward M. Chen in San Francisco holding that Uber's forced arbitration clause was unconscionable and thus unenforceable. In discussing employers' growing reliance on forced arbitration, Clark states that forced arbitration denies workers their day in court and is a "sham system of justice."
A2The Institute Submits Comments On Implementing President Obama's Fair Pay And Safe Workplaces Executive Order
On August 26, 2015, The Institute and NELA submitted comments on the Department of Labor's (DOL) proposed guidance and the proposed rule to amend the Federal Acquisition Regulation (FAR) to implement President Barack Obama's Executive Order 13673, "Fair Pay and Safe Workplaces." 

Our comments focus on Section 6 of the Executive Order which requires companies with federal contracts of $1 million or more to permit their workers to resolve claims for discrimination under Title VII of the Civil Rights Act of 1964 and tort claims related to sexual assault or harassment in court instead of by forced arbitration. The Institute and NELA have long been combating the ubiquitous employer practice of imposing forced arbitration on workers as a condition of getting or keeping a job.
 
Vision + Action:
About The Institute
The mission of The Employee Rights Advocacy Institute For Law & Policy (The Institute) is to advocate for employee rights by advancing equality and justice in the American workplace.
 
Established in February 2008 as the related charitable public interest organization of the National Employment Lawyers Association (NELA), The Institute seeks to create a future in which workers will be paid at least a living wage in an environment free of discrimination, harassment, retaliation, and capricious employment decisions; employers will fulfill their promises to provide retirement, health, and other benefits; workers' safety and livelihood will not be compromised for the sake of corporate profits and interests; and individuals will have effective legal representation to enforce their rights to a fair and just workplace, adequate remedies, and a right to trial by jury.
 
In accomplishing our mission, The Institute utilizes a multi-disciplinary approach in combination with innovative legal strategies, policy development, grassroots advocacy, and public education. We protect workers' access to the courts and promote employee rights by influencing the broad, macro conversations that shape employment law.
 
We invite you to join us as we strive to guarantee that America's promise of equal justice under law is a reality for all workers.

Contact Us:
The Employee Rights Advocacy Institute For Law & Policy
2201 Broadway
Suite 402
Oakland, CA 94612
Tel: (415) 296-7629
Fax: (866) 593-7521
www.employeerightsadvocacy.org 

A3The Institute Receives Three Cy Pres Awards

We are pleased to announce that The Institute recently received cy pres awards in three cases vindicating workers' claims under federal and state wage and hour laws, including one brought by Nichols Kaster, PLLP. "The Institute serves an important public function in advocating for equality and justice in the American workplace, and is a deserving recipient of these cy pres funds," said NELA member Matt Helland (CA) in the firm's letter to The Institute. The contribution was made possible from a cy pres fund established in a class and collective action that Nichols Kaster settled in la te 2007 involving violations under the Fair Labor Standards Act (FLSA) and California law. The firm represented loan officers who were employed by First NLC Financial Services and were not provided overtime compensation, accurate itemized wage statements, and rest breaks and meal periods. (Stanfield, et al. v. First NLC Financial Services (N.D. CA)). This is the second cy pres distribution to The Institute from the First NLC litigation, and the fifth case in which Nichols Kaster has designated The Institute for a cy pres award.
 
The Institute and the workers we reach have benefitted from a cy pres designation by NELA member Suzanne Garrow of Heisler, Feldman, McCormick & Garrow, PC (MA ) in Isiaho v. Key Program, a federal wage and hour class and collective action. This is the second cy pres award that Suzanne has designated to The Institute. In 2007, we directed the $25,000 cy pres award in Wise et al. v. Patriot Resorts, a 200 member class and collective action Suzanne brought under Massachusetts law and the FLSA, to The Employee Rights Advocacy Scholarship Program.
 
The Institute received a second payment from the cy pres fund in Bauer v. Kings Seafood Company, LLC, a wage and hour class action initiated in California state court by NELA member Thomas D. Rutledge of the Law Office of Thomas Rutledge (CA) and Kevin F. Woodall of Woodall Law Offices (CA). Filed in 2011, the lawsuit alleged that the class of restaurant employees in the chain-of-service did not receive all the gratuities left by customers and that the defendant-employer retained the class members' gratuities or provided them to employees who were not in the chain-of-service.
 
If you are interested in designating The Institute as a cy pres recipient, please contact Leah A. Hofkin, Director of Development (Tel: (415) 289-7629; Email: lhofkin@employeerightsadvocacy.org).

A4Meet The Visionaries Of Employee Rights---- David Sanford & Sanford Heisler Kimpel, LLP: Serving The Public Interest By Keeping The Courthouse Doors Open To Employees

"Meet The Visionaries Of Employee Rights" is a regular feature of Vision + Action: Inside The Institute. We are fortunate to have a loyal and growing network of individuals, law firms, foundations, and others who generously provide The Institute with resources that enable us to pursue our mission. "Meet The Visionaries Of Employee Rights" is an opportunity to express our gratitude to our dedicated donors and introduce you to some of our visionaries of employee rights.
 
For David Sanford, Chairman and Co-Founder of Sanford Heisler Kimpel LLP, the seeds for a lifetime devoted to pursuing justice for individuals were planted at an early age. He vividly recalls questioning his mother and father about a sign he saw on a New Jersey beach when he was six years old. The sign read: "No Blacks. No Jews. No Dogs." His parents not only told him that the sign was wrong but that the correct thing to do was to disregard it as an act of civil disobedience.
 
Today, as the leader of one of the country's largest law firms specializing in plaintiffs' employment law, David believes in the power of our civil justice system to fight discrimination and guarantee civil and workplace rights. He explains: "I take pride in the fact that our firm is committed to doing the work we are doing. It makes a difference to people's lives, and it is important to the social and political fabric of our nation. If we didn't take the cases we do, individuals would not have their rights redressed. If we do not vindicate violations of civil rights through our court system, it will lead to those violations being addressed in other ways, such as civil disobedience and protests that may not be as productive."
 
David and his colleagues at Sanford Heisler have a great deal of which to be proud. The firm has an outstanding record of success for its clients. In 2010, for example, the firm, with David as lead counsel, secured the largest jury award in an employment discrimination case, Velez, et al., v. Novartis Pharmaceuticals Corp., winning more than $250 million for 7,000 female sales representatives. The Institute was honored to have been a cy pres beneficiary as part of the settlement of the case . In another case in which David was lead counsel, Sanford Heisler attained a $99 million wage and hour recovery , also against Novartis, on behalf of pharmaceutical representatives. The firm also represented a whistleblower in a $120 million qui tam case against Omnicare . (A qui tam lawsuit may be brought under the federal False Claims Act on behalf of the government by a private person with evidence of fraud in a federal program or contract .)
 
The firm's commitment to social justice extends to its philanthropic decisions. "We are always looking to donate to organizations that share our mission," David says, adding that this includes designating deserving organizations, especially employee rights groups, which do good work as cy pres beneficiaries in settlement agreements.
  Sanford Logo
By supporting The Institute, Sanford Heisler is furthering efforts to end forced arbitration in the workplace, including through legislation. There is no doubt that David shares our conviction in the importance of America's civil justice system in protecting and defending the rights of individuals in the workplace. He sees forced arbitration as "one of the worst aspects" of the already challenging legal landscape for employees. "The odds are stacked" against workers, he notes, especially "when the defendants [employers] choose the forum," as they do in forced arbitration. "To have forced arbitration be a part of our legal system for people to vindicate their rights is insane."
 
Sanford Heisler Kimpel, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, and San Diego. The firm's attorneys have attended the nation's top law schools, clerked for judges throughout the United States, and amassed extensive experience litigating cases that have earned over $1 billion for its clients. Sanford Heisler Kimpel, LLP specializes in representing plaintiffs with claims involving employment discrimination, wage and hour violations, predatory lending, whistleblowing, False Claims Acts (qui tam ), financial elder abuse, 401(k) (ERISA) matters, actions brought under Dodd Frank, SEC whistleblower matters, and other claims. The firm also has achieved great results in representing executives, attorneys, and managers in contract and employment disputes throughout the United States.
 
Chairman and Co-Founder David Sanford received his law degree from Stanford Law School in 1995. He has represented CEOs, CFOs, and COOs, as well as non-managerial, hourly employees throughout the United States. David has served as lead counsel in more than 50 class actions and numerous qui tam fraud cases nationwide and has represented over 50 General Counsels and attorneys (in house and outside counsel) in contract disputes, employment matters, and severance packages. He has been recognized as a leading litigation and trial attorney by numerous publications. Before founding his firm in 2004, David opened and was the managing partner of the Washington, D.C. office of a civil rights firm from 1998 through 2003. He served as a law clerk for the Honorable Gladys Kessler of the United States District Court for the District of Columbia. Before law school, David was a professor of philosophy at Williams College, and taught at the University of North Carolina at Chapel Hill and Oberlin College.
A5A Solid Investment In The Future Of Employee Rights: Supporting The Paul H. Tobias Attorney Fellowship Program
By Patricia A. Barasch, Institute President & Terisa E. Chaw, Executive Director
As we launch our search for The Institute's fourth Paul H. Tobias (PHT) Attorney Fellow, Institute President Patricia A. Barasch and Executive Director Terisa E. Chaw reflect on the contributions our PHT Fellows have made over the last five years. The PHT Attorney Fellowship Program is at the heart of The Institute's work, and we are extremely grateful to the many dedicated individuals, law firms, and others whose generous support of the Program are helping to ensure the future of employee rights advocacy.
 
The PHT Attorney Fellowship Program has played a significant role in fulfilling the promise of The Institute since our first PHT Fellow was appointed in 2010. Indeed, much of The Institute's success is directly attributable to the Program, which has fueled The Institute's important work to keep the courthouse doors open to workers.
 
The Institute's first PHT Fellow Matt Koski launched the National Litigation Strategy Project, which focused on helping workers and their lawyers to overcome summary judgment, a procedural device that prevents workers from having their case go to trial and heard by a jury. Matt worked with the Federal Judicial Center on a summary judgment survey that was administered to NELA members in April 2010. He also published three papers for the " Summary Judgment Toolkit " addressing the problem doctrines of stray remarks, adverse credibility inferences, and comparator evidence. The Toolkit papers continue to be widely used by NELA members and other employee rights advocates. In addition, Matt compiled The Institute's Top 10 Tips To Make Your Case "Summary Judgment Proof" and planned The Institute's first academic symposium, Trial By Jury Or Trial By Motion? Summary Judgment, Iqbal, And Employment Discrimination, which was held at New York Law School in the Spring of 2012.
 
PHT2 Our second PHT Fellow Carmen Comsti devoted her time to The Institute's work on forced arbitration and to raising awareness about this pernicious employer practice. Carmen's major project was planning The Institute's second symposium, Forced Arbitration In The Workplace: A Symposium, in collaboration with the Berkeley Journal of Employment and Labor Law (BJELL). The symposium was held at the University of California, Berkeley School of Law (Boalt Hall) in the Winter of 2014. It brought together a diverse range of experts on forced arbitration, including practitioners, law professors, social science researchers, and government agencies to engage in a thoughtful dialogue about forced arbitration of workplace disputes. Articles prepared for the symposium were published in 35 Berkeley J. Emp. & Lab. L. (2015) and includes Carmen's law review article,   A Metamorphosis: How Forced Arbitration Arrived In The Workplace . Carmen also began researching and writing the initial draft of Taking "Forced" Out Of Arbitration: How Forced Arbitration Denies Justice To America's Workers , the public education publication that The Institute recently received a grant from the Public Welfare Foundation to produce. In addition, she was the primary author of a memorandum requested by Rep. Hank Johnson (D-GA), sponsor of the Arbitration Fairness Act of 2013, on forced arbitration in the workplace. Many of the talking points in Carmen's memo have been used by Rep. Johnson in his public comments.
 
PHT3 Clark Taylor, The Institute's third PHT Fellow, has been leading our efforts to expand The Institute's presence on social media and the Web. He is responsible for implementing many of The Institute's components for its "Strategic Public Education Campaign To End Forced Arbitration Of Employment Disputes," and will complete Taking "Forced" Out Of Arbitration . We were thrilled when Clark's article on " Uber's Attempt To Silence Its Drivers May Have Just Backfired " was published in the August 19, 2015 issue of In These Times. Clark was the primary author of The Institute/NELA's comments implementing President Obama's Fair Pay and Safe Workplaces Executive Order which, among other things, renders employers who choose to require forced arbitration of workplace disputes ineligible to bid on federal government contracts of $1 million or more. Clark also has been busy collecting data on employers that impose forced arbitration on their workers, building The Institute's body of publications, and laying the groundwork for The Institute's third academic symposium in 2017. Please stay tuned for more information about these exciting developments.
 
We invite you to consider joining us in making a tax-deductible contribution to The PHT Fellowship Program. You may   donate online or contact Leah A. Hofkin, Director of Development (Tel: (415) 296-7629; Email: lhofkin@employeerightsavocacy.org).
The Employee Rights Advocacy Institute For Law & Policy
2201 Broadway, Suite 402
Oakland, CA 94612
(415) 296-7629