On March 6, 2023, NELA and the Institute jointly filed an amicus brief with the U.S. Supreme Court in Groff v. DeJoy (22-174), urging the court to strike a delicate balance for workers while reevaluating the current standard for providing religious accommodations as set forth in Hardison. The brief recognizes the need for clarification of the current Hardison de minimis standard, which was written in a context where undue hardship was not yet part of Title VII. NELA and the Institute argue that the court should revise the standard to require employers to show actual harm and reiterate the appropriate standard for summary judgment adjudication—two hurdles which are often difficult to overcome for religious employees seeking to receive reasonable accommodations for sincerely held religious beliefs. Additionally, the brief advocates for an undue hardship burden which takes into account the impact of accommodations on other employees, aiming to protect workers from discrimination by employers or colleagues under the guise of religious accommodations. NELA is deeply grateful to Professor Michael L. Foreman and the Penn State Law Civil Rights Appellate Clinic, who served as principal drafters of the brief, with editing support from NELA’s Amicus Advisory Council, NELA Program Director Ashley … Read More
Advisory Committee on Evidence Rules
Administrative Office of the United States Courts
Re: Request for Comments on Proposed Amendments to Federal Rules and Forms (August 15, 2022)
Dear Members of the Advisory Committee on Evidence Rules,
The National Employment Lawyers Association (NELA) respectfully submits the following comments in response to the Proposed Amendments to Federal Rules and Forms. NELA opposes the proposed FRE 611(d). NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. Our mission is to advance worker’s rights and serve lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of more than 4,000 attorneys who are committed to working on behalf of those who have faced illegal treatment in the workplace. NELA members litigate in every state and every circuit in the United States and collectively have substantial trial experience. This body of experience forms the basis for these comments as well as other comments we have made on proposed changes to the Federal Rules of Evidence.
The following comment is the submission of the National Employment … Read More
On February 1, 2023, NELA, joined by the National Employment Law Project (NELP), filed an amicus brief on behalf of the Appellant in Fitzgerald v. Roncalli High School, Inc. (7th Cir.), urging the court to maintain the totality-of-the-circumstances test established in Hosanna-Tabor when determining if an employee is a “minister” in a religious organization. Michelle Fitzgerald, a guidance counselor at a Catholic high school, was fired after Roncalli administrators learned she was married to a woman. The district court relied solely on one factor, Fitzgerald’s employment contract when finding that she was a “minister” and therefore unable to avail herself of the protections of Title VII. NELA’s brief argues that the current totality-of-the-circumstances test has proven a workable standard, that properly balances religious freedom and workers’ right to be free from discrimination. The brief further points out the large numbers of workers who would potentially be open to discrimination in the workplace should the court adopt the one-factor test from the district court decision. NELA is deeply grateful to Professor Michael L. Foreman and the Penn State Law Civil Rights Appellate Clinic, who drafted the brief.… Read More
On January 31, 2023, NELA signed on to an amicus brief filed by the Metropolitan Washington Employment Lawyers Association (MWELA), asking the Federal Circuit to hear Avalos v. United States en banc. Eleazar Avalos’ attorneys pushed for en banc review on behalf of the plaintiffs, federal employees who were denied compensatory damages for delayed payment of wages during the government shutdown of 2018–2019. The brief argues that the panel majority erred in carving out an extra-textual exception to the FLSA to relieve the government of liability when it failed to timely pay its employees due to a lack of appropriated funds. The brief argues that the Anti-Deficiency Act (ADA) does not exempt the government from paying liquidated damages under the FLSA. NELA is grateful to MWELA and NELA members Mark Hanna, Murphy Anderson PLLC (DC), Omar V. Melehy, Melehy Law (MD), and Alan R. Kabat, Bernabei & Kabat, PLLC (DC) for asking NELA to join their excellent brief.… Read More
November’s DEI spotlight focused on the harm we can unthinkingly cause with ableist language and some suggestions on more inclusive alternatives we can add to our vocabularies. Another area in which old habits are similarly hard to break, and where it’s easy to underestimate the harm we can unintentionally cause others, is in our use of gender pronouns and other gendered terms.
One way to surface how ubiquitous gendered language is in everyday speech and writing is to monitor your own speech or the speech of those you’re talking to for just five minutes and count the number of gender pronouns, or other gendered terms like “guys,” “sir,” and “ma’am” that crop up. (You can practice the same exercise by counting the number of gendered terms and pronouns in an email or other paragraph of written text.) Now pause at each of these occurrences to recognize that an assumption is being made—either an assumption that gender is binary and that everyone is either a “he” or a “she,” a “man” or a “woman”; or an assumption that knowing a person’s name or what they look like enables us to determine what gender they identify with, if any. That’s an awful … Read More
In a show of strong bipartisan support (73-24), the Senate voted on Thursday to include the Pregnant Workers Fairness Act (PWFA) in the Senate version of the 2023 financial omnibus bill. Today, the House passed the bill and it is now on the way to the White House, clearing the act’s path to law after a 10-year fight. The National Employment Lawyers Association praises the success of this critical piece of legislation that positively impacts pregnant workers in all industries across the nation. NELA members were a key component of the coalition that led this battle, and we are thankful both for your efforts and dedication to workers’ rights.
This is a remarkable end-of-year accomplishment for all those who have fought for the PWFA’s passage. Pregnant workers across the country, particularly those in low-income jobs and in the service industries, have faced heartbreaking challenges when requesting accommodations in the name of their health—many forced into unsafe working conditions, reduced pay, unpaid leave, or termination. Our members have seen firsthand the devastation pregnancy discrimination inflicts on pregnant workers and their families, and your advocacy and support has brought about real, tangible change.
No worker should have to choose between risking their … Read More
Division of Regulations, Legislation, and Interpretation
Wage and Hour Division
U.S. Department of Labor
Comments on RIN 1235-AA43: Employee or Independent Contractor Classification under the Fair Labor Standards Act
Dear Ms. DeBisnaomischop:
The National Employment Lawyers Association (NELA) submits these comments in support of the U.S. Department of Labor’s (DOL’s) Notice of Proposed Rulemaking (the Proposed Rule) on the status of independent contractors under the Fair Labor Standards Act (FLSA).
NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. Our mission is to advance employee rights and serve lawyers who advocate for equality and justice. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts, as well as comments on relevant Notices of Proposed Rulemaking. Our members are the lawyers who represent workers who are misclassified as independent contractors, and consequently deprived of the most basic protections of the FLSA and other employment and civil rights laws. Thus, NELA has both an interest in, and … Read More
On December 7, NELA joined Public Justice and six other civil rights organizations in filing an amicus brief in support of workers seeking to remove claims from arbitration under the 2021 Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Act). The brief stems from a suit filed by former employees of Everyrealm, alleging sexual harassment, disability discrimination, racial discrimination, and pay inequity. Defendants argued that only the sexual harassment claims were exempt from arbitration. The brief examines the plain language of the statute, arguing that “(I)n sum, the text and legislative history of the Act could not be clearer that, when a lawsuit “relates to” a “sexual assault dispute,” the entire “case” cannot be forced into arbitration. And the practical realities of workplace discrimination and litigation underscore why Congress made that choice. Therefore, to the extent the Court finds that Mr. Johnson’s and Ms. Yost’s cases each relate to a sexual harassment dispute, their claims cannot be separated, and the entire cases must be litigated in court if they elect to do so.” We are grateful to NELA members Shelby Leighton and Karla Gilbride at Public Justice for drafting the brief.… Read More
Re: Notice of Proposed Rulemaking; RIN 3046-AB23; 87 Fed.Reg. 58469-58471 (September 27, 2022)
Dear Ms. Kahn:
The National Employment Lawyers Association (NELA) respectfully submits the following comments concerning the Equal Employment Opportunity Commission’s Notice of Proposed Rulemaking, as published in the Federal Register at 87 Fed.Reg. 58469-58471 (September 27, 2022).
NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. Our mission is to advance worker’s rights and serve lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have faced illegal treatment in the workplace. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of federal civil rights and worker protection laws and comments regularly on relevant proposed rules. NELA also engages in legislative advocacy on behalf of workers throughout the United States. A substantial number of NELA members’ clients are federal employees with discrimination complaints. NELA, therefore, has an interest in regulations … Read More
On September 30, NELA signed on to the National Women’s Law Center amicus brief in Boyer v. United States, in the United States Court of Appeals for the Federal Circuit. The lawsuit was brought under the Equal Pay Act by Dr. Leslie Boyer, a clinical pharmacist at the Department of Veterans Affairs (VA) who was paid less than her male colleague for the same job, even though she had seven years more experience. The VA admitted that they paid Dr. Boyer less because it was based on her salary history. The amicus brief explains that relying on salary history is not a legitimate justification for unequal pay, as it merely perpetuates systemic underpayment of women – particularly women of color. We are grateful to NWLC for the opportunity to sign on to this important brief.… Read More
On September 30, NELA filed an amicus brief in Muldrow v. City of St. Louis, urging the Supreme Court to grant the petition for cert in this appeal from the 8th Circuit. In this case, Petitioner asks the Court to resolve the question of whether non-economic harms (including granting or denying lateral transfers) constitute discrimination in “terms, conditions, or privileges of employment” under the text of Title VII. NELA’s brief argues that the 8th Circuit’s atextual standard creates an impermissible barrier to the adjudication of meritorious discrimination claims and the Court should reject the economic tangible harm requirements. The brief also explains the current social science research which illustrates that non-economic aspects of the terms, conditions or privileges of employment are as critical to employees as wages and salaries. NELA is grateful to NELA Members Carolyn L. Wheeler, Katz Banks Kumin LLP (DC) and Stephen B. Pershing, Pershing Law PLLC (DC) for drafting this brief.… Read More