How We Use Amicus Briefs to Shape the Law That Impacts Workers

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The Office of the Solicitor’s amicus program has long ensured that the U.S. Department of Labor can help shape the law on issues that impact workers and the department’s mission. The department administers and enforces more than 180 laws covering approximately 150 million workers in 10 million workplaces. But private enforcement plays a vital role in the effective enforcement of many federal worker protection laws, and it can implicate key department interests. Under the Biden-Harris administration, to date, the Solicitor’s Office has filed more than three dozen amicus briefs in a variety of forums, including the U.S. Supreme Court, almost every federal court of appeals, federal district courts, administrative tribunals and the National Labor Relations Board.

While the Solicitor’s Office has addressed a wide range of issues in its amicus briefs, we have sought to further the administration and Labor Department's priority of ensuring that the most marginalized have access to remedies and legal protections. For example, the Solicitor’s Office has weighed in on several retaliation cases, including submitting an amicus brief advocating for more stringent retaliation protections for miners in Thomas v. CalPortland Company. In that case, we urged the Federal Mine Safety and Health Review Commission to apply a longstanding test developed under the Mine Act instead of the narrower, less protective version the Ninth Circuit applies to cases. And in Uronis v. Cabot Oil & Gas Corp., when an employer refused to hire the plaintiff applicant because they were about to testify and join a Fair Labor Standards Act collective action, the Solicitor’s Office supported the plaintiff worker’s retaliation case. We argued before the Third Circuit Court of Appeals that the lower court erred in concluding that the anti-discrimination provision of the FSLA did not apply. 

To support workers’ access to remedies, the Solicitor’s Office filed amicus briefs to ensure that workers who have paid for supplemental life insurance benefits through an employer plan can access those benefits. Through briefs filed in Skelton v. Reliance Standard Life Insurance Co. in the Eighth Circuit and Shields v. United of Omaha Life Insurance Co. in the First Circuit, the Solicitor’s Office argued that insurers must collect premiums from workers only when coverage is actually in force, and so the workers were entitled to coverage despite the fact that the insurer did not establish evidence of insurability.

At the request of a district judge in the Eastern District of Pennsylvania overseeing a private FLSA case, Alcantara et al. v. Duran Landscaping Inc., the Solicitor’s Office submitted a letter brief concerning when parties may settle private FLSA lawsuits. Concerned with workers’ ability to access the FLSA’s protections, the Solicitor’s Office argued that FLSA rights cannot be waived or compromised without supervision by the Labor Department or approval by a court in non-collective lawsuits between private parties. And we submitted an amicus brief to the National Labor Relations Board in the Ralph’s Grocery Company and Terri Brown case to inform the board of the harm that confidentiality provisions in arbitration agreements pose for effective enforcement of worker protection laws under the Labor Department's jurisdiction.

In addition, we routinely consider submitting an amicus brief in cases involving the department’s interpretation of its own regulations. For example, the Solicitor’s Office filed an amicus brief before the U.S. Supreme Court on the important question of how to interpret the department’s overtime regulations. The case, Helix Energy Solutions Group Inc., et al. v. Hewitt, presents the question of whether an employee paid on a daily-rate basis is exempt under the FLSA from overtime pay. The Solicitor’s Office brief argues that when it comes to highly compensated daily-rate employees like the plaintiff in the case, employers must provide a weekly pay guarantee for workers to be exempt from overtime pay. A weekly pay guarantee provides critical financial stability for workers, whether they are highly compensated or not.

For a full list of the Solicitor’s Office amicus participation since January 2021, visit the Office of the Solicitor Brief Bank here. Private litigants, advocates and other stakeholders may a request amicus participation using our new dedicated email address: Requests should aim to allow ample time for the Solicitor’s Office to consider participation and potentially prepare a brief in coordination with the Department of Justice.

Seema Nanda is the Solicitor of Labor.