On September 6, NELA, joined by the National Women’s Law Center and the NAACP Legal Defense Fund, filed an amicus brief in the U.S. Supreme Court in Muldrow v. City of St. Louis. The brief argues that the 8th Circuit erred when finding that a police sergeant’s job transfer did not constitute gender discrimination. The brief also argues that this interpretation contradicts the congressional intent of the federal law and does not comport with the text of the statute. Highlighting the importance of non-economic aspects of a job, the brief contends that adverse actions of this type can also run afoul of the Court’s ruling in Brown v. Board of Education. NELA member Carolyn Wheeler, Katz Banks Kumin, LLP (DC) states “The issue here is a straightforward question of statutory construction. The statute prohibits discrimination on the basis of sex, race, national origin, or religion in the terms, conditions, or privileges of employment without any qualifying adjectives about a degree of harm the discrimination must cause. The discriminatory decision is what is unlawful and plaintiffs should be able to pursue such claims without the burden of proving the decision caused some level of “material” harm, which courts usually … Read More
Rodgers-Rouzier v. American Queen Steamboat Operating Company
On September 5, NELA filed an amicus brief in the 7th Circuit, supporting workers who had their FLSA claims dismissed in Rodgers-Rouzier v. American Queen Steamboat Operating Company. This case hinged on whether opt-in plaintiffs were in fact party plaintiffs and when the statute of limitations begins tolling for these plaintiffs. The brief highlights that requiring anything beyond written consent forms for a plaintiff to be classified as a “party plaintiff” would create a circuit split, putting the seventh circuit directly in contradiction with a number of other circuits and Supreme Court jurisprudence. Additionally, the brief notes that “the language of the FLSA, this Circuit’s caselaw, and the purpose of FLSA collective actions all support a rule that the statute of limitations for opt-in plaintiffs in an FLSA collective action is tolled on the date they file their written consent and become a party plaintiff to the action.” NELA is grateful to NELA Board Member Summer H. Murshid, Martha Burke and Connor Clegg, Hawks Quindel, S.C. (WI) and Clif Alexander and Lauren E. Braddy, Anderson Alexander, PLLC (TX) for drafting this important brief.
… Read MoreProfessionalism as a Racial Construct
Nieves Bolaños very kindly introduced me last month as NELA’s new Vice President of Diversity, Equity, and Inclusion. I am also a co-chair of NELA’s Ethics and Sanctions Committee and Colorado Bar’s ethics committee. The rules of professional conduct and other legal and social norms purport to define “professionalism.” Smarter people than me, like Leah Goodridge and Shannon Cumberbatch, have explored how concepts of professionalism are shaped by and perpetuate racism and other oppressive ideologies.
You should read their essays:
Leah Goodridge, Professionalism as a Racial Construct, UCLA Law Review (Mar. 29, 2022): https://www.uclalawreview.org/professionalism-as-a-racial-construct/
Shannon Cumberbatch, When Your Identity Is Inherently “Unprofessional”: Navigating Rules of Professional Appearance Rooted in Cisheteronormative Whiteness as Black Women and Gender Non-Conforming Professionals, 34 J.C.R. & Econ. Dev. 81 (2021): https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=1904&context=jcred
Leah Goodridge notes that “The basis of professionalism as a racial construct is the belief that the racial hierarchy which produces the phenomenon will remain the same and that practitioners will adapt to it rather than challenge it.” And she asks that we discuss, in our workplaces and in NELA and other organizations, “How does professionalism as a racial construct manifest at this institution?” This question will be a focus
… Read More Harris v. FedEx
On July 21, NELA and the National Institute for Workers’ Rights, along with the Texas Employment Lawyers Association (TELA), filed an amicus brief in the 5th Circuit on behalf of the appellee in Harris v. FedEx. This case is FedEx’s appeal of a significant verdict against it under Section 1981 for retaliating against Ms. Harris when she complained about racial discrimination at work. Harris’ verdict was obtained by NELA members Brian P. Sanford and Elizabeth (B.B.) Sanford (The Sanford Firm, TX).
The amicus brief focused on FedEx’s claim that the court should have enforced the contractually-shortened statute of limitations contained in FedEx’s standard job application, which says that any claim needs to be brought within six months. Our brief argued that it was unreasonable to shorten Section 1981’s statute of limitations from four years, as specified in the statute, to just six months. In making this argument, we pointed both to Texas’ public policy interests in keeping access to courts generally and on contract claims specifically, and also explained that the practicalities of litigation and finding counsel meant that six months was far too short a time for prospective plaintiffs like Harris. Many thanks to NELA/TELA member Walt … Read More
Strengthening Workers’ Rights: Kalpana Kotagal Confirmed as EEOC Commissioner
NELA celebrates the confirmation of Kalpana Kotagal as the newest commissioner of the Equal Employment Opportunity Commission (EEOC). Ms. Kotagal’s extensive record of fairness and justice will strengthen the EEOC as it continues its mission to protect workers from discrimination.
Ms. Kotagal has extensive litigation experience handling cases on behalf of employees under a range of federal civil rights and employment discrimination statutes, including Title VII of the Civil Rights Act, the Pregnancy Discrimination Act (PDA), the Equal Pay Act, the Rehabilitation Act, the Fair Labor Standards Act (FLSA), the Family Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA). Her lifetime commitment to civil rights and equal justice as well as her creativity and leadership, will benefit the workers across the country.
“Kalpana has been an inspirational champion for workers’ rights,” said NELA Executive Director Jeffrey Mittman, “and her long-awaited confirmation is a well-deserved recognition of her efforts. We congratulate Kalpana and look forward to working with her and the full complement of EEOC Commissioners to continue pursuing equity for those suffering injustices in the workplace, and clarify the rights and responsibilities of workers and employers alike.”
Ms. Kotagal is a partner in Cohen Milstein’s Civil Rights … Read More
Murray v. UBS Securities, LLC
On July 5, NELA joined the Anti-Fraud Coalition and Better Markets as amici in Murray v. UBS Securities, LLC, urging the U.S. Supreme Court to fully ensure safeguards against whistleblower retaliation. Petitioner Murray was fired after refusing to engage in illegal reporting and brought a case for unlawful retaliation under the Sarbanes-Oxley Act of 2002. Although Murray won at trial, the Second Circuit vacated the jury’s verdict, holding that to prove retaliation, Murray was required to show that UBS acted with retaliatory intent or discriminatory animus prompted by the whistleblowing activity.
Our amicus brief argues that the Second Circuit erred in its holding, which conflicts with both the plain language of the statute and the policy considerations behind the statute. The statute, which expressly provides that one alleging retaliation need only show that her protected activity was a ‘contributing factor’ in an adverse employment action, at which point the burden shifts to the employer to demonstrate, if possible, that it would have taken the adverse action even absent the protected behavior. Additionally, the congressional intent behind the statute was to ensure robust protections for whistleblowers. As the brief states, “The Second Circuit’s opinion below imposes an elevated burden on … Read More
Thomas v. JSTC
On May 26, NELA and Public Justice jointly filed an amicus brief in the Eleventh Circuit matter of Thomas v. JSTC (No. 22-14191), encouraging the court to distinguish the appropriate standard of review for approval of opt-in FLSA settlements from Rule 23 class action settlements. In this case, the lower court approved every aspect of a proposed settlement except separately negotiated payments to the named plaintiffs in exchange for a general release, on the grounds that such payments constituted inappropriate service awards under precedent set in a Rule 23 opt-out class action case. Although courts retain substantial discretion as to whether or not to approve a FLSA settlement, the amicus brief argues that the public policy rationales behind scrutinizing service awards in a Rule 23 class action are inapt for collective action payments. Where members have opted in, payments will not come out of the common fund, and the plaintiffs sign broader releases than the collective members, separate contractual payments to plaintiffs should not be scrutinized as if they are class action service awards. NELA would like to thank Shelby Leighton at Public Justice, and our NELA drafting team: Clif Alexander and Lauren Braddy of Anderson Alexander, PLLC(TX); Carl Fitz … Read More
NELA Urges Vote On Nomination of Julie Su As Labor Secretary
Dear Majority Leader Schumer:
The National Employment Lawyers’ Association (NELA) and the National Institute for Workers’ Rights strongly urge a vote on President Biden’s Labor Secretary nominee Julie Su next week.
NELA members advocate for equality and justice for workers across the country every day, and we work closely with the Department of Labor to enforce the laws that protect the rights of workers. In our experience, both workers and employers benefit from clear leadership and direction from the agencies that enforce the laws governing the workplace.
Julie Su is an excellent, well-qualified choice to continue the work that she has helped guide and shape as Deputy Secretary under Labor Secretary Marty Walsh. Her leadership and track record at DOL is critical in protecting workers’ rights and leveling the playing field for employers who follow the rules. Ensuring continuity in leadership is important to a number of key issues facing the nation and its workforce, including improving access to the quality jobs created as part of the recent federal investments in the Infrastructure Investment and Jobs Act, CHIPS Act, and Inflation Reduction Act.
The time is now to vote on her nomination, and we very much hope that the Senate … Read More
Director of Advocacy
Duties akin to Legislative Director, Policy Director, or Chief Lobbyist / Director of Government Affairs
Compensation: Annual Salary of $90,000 to 100,000 per year, depending on experience.
Generous Benefits Package including: 100% Employer-Sponsored Medical, Vision & Dental Insurance; Federal Holidays, Personal, Sick and Family/Medical Leave, Employer Pension Contribution and Employer Sponsored 401K.
Application Process: Please submit a cover letter explaining your interest in and qualifications for the position along with a résumé in PDF format and writing sample to jmittman@nelahq.org. Please indicate “Advocacy Director” as subject line.
- Applications accepted on a rolling basis.
- Plan for a 45-minute introductory phone conversation and if selected a 90-minute Zoom interview with the internal hiring team.
- Finalists will create a presentation for a combined staff and Board team that demonstrates the ability to think strategically and communicate effectively about workers’ rights issues.
Application Deadline: Open Until Filled
If you are seeking to build and transform an exciting legislative, public policy and advocacy program elevating the voice of the largest association of workers’ rights attorneys, NELA and the Institute seek a Director of Advocacy (“DA” or the “Director”) to lead the organizations’ government affairs work. Building on a track record of wins … Read More
NELA Comment on FTC’s Notice of Proposed Rulemaking, entitled, “Non-Compete Clause Rule.”
Dear Chair Khan:
The National Employment Lawyers Association (NELA) and the National Institute for Workers’ Rights (“Institute”) submits these comments in support of the Federal Trade Commission’s Notice of Proposed Rulemaking, entitled, “Non-Compete Clause Rule.”
NELA is a national professional membership organization of and for lawyers who represent employees in all aspects of employment law. The largest organization of its kind in the country, NELA, together with its 69 circuit, state, and local affiliates, has more than 4000 members nationwide who variously represent employees in discrimination, whistleblower, wage and hour, health and safety, and contract disputes and who advise employees, partners, and independent contractors on employment-related agreements. NELA’s mission is to serve lawyers who represent employees, advance employee rights, and advocate for equality and justice in the workplace. NELA has filed numerous amici curiae briefs before the United States Supreme Court and other federal appellate courts on a wide range of employment law issues as well as comments on relevant Notices of Proposed Rulemaking. The mission of the National Institute for Workers’ Rights is to advance workers’ rights through research, thought leadership, and education for policymakers, advocates, and the public. As the nation’s employee rights advocacy think tank, the Institute … Read More
Diversity on the Bench: “It All Matters”
As you can read on our website page, diversity, equity, and inclusion are core values of the National Employment Lawyers Association. Those values are essential to the achievement of NELA’s mission, which includes empowering workers’ rights attorneys by promoting a fair judiciary. In other words, NELA is committed to the principle that the playing field for its members, and their clients, is “level” only if the group of people who have the authority to decide on the merits of their claims – the judiciary – is, taken as a whole, “fair.”
And to be “fair,” the judiciary must reflect the diversity of the population of citizens that it serves. The Brennan Center for Justice put it aptly in an article titled, What Research Shows About the Importance of Supreme Court Diversity: “Ensuring demographic and experiential diversity on the bench is not just an appropriate component of judicial selection, it is necessary.” As the article points out, this is true for a number of reasons.
First, because the judiciary is a vital public institution, it is critical for it to have the trust and confidence of the public that it serves, and “a diverse judiciary helps instill trust in the … Read More
Women’s History Month
March is Women’s History Month. Yet this March, for the first time in 50 years, those who are pregnant, in many parts of this country, have been stripped of their Constitutionally protected right to make the personal health decision to have an abortion. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that the 14th Amendment’s guarantee of liberty does not extend to having an abortion. Further, while those who may become pregnant are overwhelmingly women, the Court further concluded that a ban on abortion does not implicate the Equal Protection Clause. In reaching these conclusions, the Supreme Court used a primarily white, male gaze for its interpretation of what rights are “deeply rooted in this nation’s history and tradition.”
Sadly, the Court is correct that this country’s history and traditions have not protected the liberty or equality of marginalized people. Infamous decisions such as Dred Scott v. Sandford (1857), The Civil Rights Cases (1883), and Plessy v. Ferguson (1896) all enshrined an apartheid system that resulted in violence and economic subjugation of primarily Black people, while decisions like Minor v. Happersett (1875) ensured that women would not be allowed to participate in the political process until … Read More
