On March 13, 2024, NELA joined the Western Pennsylvania Employment Lawyers Association and NELA-Eastern Pennsylvania in an amicus brief in support of the worker in Moses v. U.S. Steel (3rd Circuit). The brief addressed the numerous errors made by the lower court in granting summary judgment to U.S. Steel. Mr. Moses sued U.S. Steel, alleging race discrimination under 42 U.S.C. § 1981 and the Pennsylvania Human Relations Act, 43 Pa. Stat. § 955(a). The district court ignored both circuit and Supreme Court precedent, requiring that Mr. Moses show “pretext plus” in order to survive summary judgment. Additionally, the district court rationed evidence between the prima facie case stage and the pretext stage and relied on the testimony of another employee who felt that he personally had never been the victim of race discrimination by U.S. Steel. The brief points out not only the long-recognized evidentiary burden that plaintiffs alleging race discrimination must overcome, but the numerous controlling cases that require only evidence of a prima facie case and evidence of pretext in order to survive summary judgment. We are grateful to NELA Board Member Christine Elzer, Elzer Law Firm, LLC (Pittsburgh, PA) for drafting this important brief.… Read More
Stanley v. City of Sanford, Florida
On March 9, NELA, joined by NELP, filed an amicus brief with the Supreme Court in support of a grant of certiorari in Stanley v. City of Sanford, Florida. Karyn Stanley served for 20 years as a firefighter in Sanford, Florida, until taking disability retirement at the age of 47 due to Parkinsons Disease. Ms. Stanley sued, alleging that the city’s policy change (which ended her post-employment health benefits) discriminated against her on the basis of her disability under Title I of the Americans with Disabilities Act (ADA). The lower court dismissed, and the 11th Circuit affirmed, holding that “a former employee who does not hold or desire to hold an employment position cannot sue over discriminatory post-employment benefits.” This holding is in clear contradiction to the jurisprudence in other circuits.
In supporting a grant of cert, the brief argues that “this case is ideal for addressing the issue because the question presented is narrow: the Court need only address whether former employees can sue under Title I of the ADA.” Post-retirement benefits are hugely important for workers when making decisions about their employment, and workers with disabilities must have clarity on when they can rely on the important … Read More
Recommitting to diversity, equity, and inclusion
In the wake of lawsuits and threats of lawsuits against Major League Baseball, Fortune 100 companies, and law firms over their diversity, equity, and inclusion programs, NELA reiterates its commitment to those essential values. Diversity, equity, and inclusion are part of NELA’s core values and essential to the achievement of our mission. When applied in unison, diversity, equity, and inclusion create meaningful representation and involvement of persons with varied backgrounds, experiences, identities, and abilities in every aspect of NELA’s work, each with the opportunity to make robust contributions to the organization without discriminatory barriers. NELA champions the culture of participation and equal opportunity that is woven into the fabric of our mission and vision for workers and workplaces nationwide.
NELA encourages its members to continue to do the hard work of advancing workers’ rights and fostering diverse, equitable, and inclusive workplaces, including their own. NELA is working with a consultant to help make its own policies and practices more inclusive and equitable and is in the process of revamping its election process and the application to run for the board of directors. Maintaining its organizational commitment to DEI, NELA will continue this work to ensure best practices and to continually … Read More
Comments on the EEOC’s Proposed Enforcement Guidance for Harassment
Charlotte A. Burrows, Chair
U.S. Equal Employment Opportunity Commission
Washington, DC 20507
Submitted via regulations.gov
RE: RIN 3046–ZA02, Proposed Enforcement Guidance on Harassment in the Workplace
Dear Chair Burrows:
The National Employment Lawyers Association (“NELA”) submits these comments in support of the Equal Employment Opportunity Commission’s (“EEOC”) Proposed Enforcement Guidance on Harassment in the Workplace (“Proposed Guidance”).[1]
As an organization that aspires to a future in which all workers are treated with dignity and respect; workplaces are equitable, diverse, and inclusive; and the well-being of workers is a priority in business practices, we are committed to reducing all forms of discrimination, in the workforce, including harassment. NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, harassment, discrimination, wage and hour, and civil rights disputes. 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 in both the public and private sector, including those facing harassment in the workplace. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts … Read More
Comments Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees
Submitted via www.regulations.gov
Re: National Employment Lawyers Association’s Comments
Regarding RIN 1235-AA39 – Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees
Dear Ms. DeBisschop:
This letter provides the Department of Labor (DOL) with the collective comments of more than 1,500 members of the National Employment Lawyers Association (NELA) and its 69 affiliates concerning the proposed changes to the regulations applicable to executive, administrative, and professional employees (“the EAP exemption”) 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 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 in both the public and private sector, including employer violations of federal wage and hour laws. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of … Read More
Comments Concerning the Office of Personnel Management (OPM)’s Proposed Rule Upholding Civil Service Protections and Merit System Principles
Submitted via www.regulations.gov
Timothy Curry
Deputy Associate Director, Accountability and Workforce Relations
U.S. Office of Personnel Management
Re: Proposed Rule; RIN 3206-AO56; 88 Fed.Reg. 63,862-63,885 (September 18, 2023)
Dear Deputy Associate Director Curry:
The National Employment Lawyers Association (NELA) respectfully submits the following comments concerning the Office of Personnel Management (OPM)’s Proposed Rule with Request for Comments, as published in the Federal Register at 88 Fed.Reg. 63,862-63,885 (September 18, 2023).
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 in both the public and private sector. 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 … Read More
A Win for Workers: Karla Gilbride Confirmed as General Counsel to the EEOC
NELA celebrates the confirmation of Karla Gilbride as the Equal Employment Opportunity Commission’s (EEOC) General Counsel. Ms. Gilbride’s breadth of experience makes her well qualified to coordinate regional and field office litigation to maximize enforcement of federal employment anti-discrimination laws in harmony with the broader strategy of the agency.
The EEOC is the first defense for workers seeking justice when they have experienced discrimination, harassment, or other illegal treatment at their place of employment. In her hearing before the Senate HELP Committee, Ms. Gilbride’s responses demonstrated her deep knowledge of the issues for which the EEOC has responsibility and her strong commitment to the mission of the agency. For over 15 years, she has represented workers across industries, from migrant farmworkers to women in the finance industry to prison employees. She has represented many different clients, from many walks of life, but her mission has remained constant: to enforce workers’ rights to safe and equitable working conditions under the law.
Karla’s experience includes acting as Co-Director of Public Justice’s Access to Justice Project and serving as NELA’s Vice President of Public Policy. A NELA member since 2015, she has been instrumental in our efforts to end forced arbitration in employment … Read More
Comments in Support of the EEOC’s Proposed Rule on Regulations to Implement the Pregnant Workers Fairness Act
Raymond Windmiller
Executive Officer
Executive Secretariat
Submitted via regulations.gov
RE: RIN 3046–AB30, Regulations to Implement the Pregnant Workers Fairness Act
Dear Mr. Windmiller:
The National Employment Lawyers Association (“NELA”) submits these comments in support of the Equal Employment Opportunity Commission’s (“EEOC” or “Commission”) Notice of Proposed Rulemaking (“NPRM”), RIN 3046–AB30, Regulations To Implement the Pregnant Workers Fairness Act, published in the Federal Register on August 11, 2023.1
As an organization dedicated to advancing the rights of workers, we are committed to ensuring no worker has to choose between their job and their health or a healthy pregnancy.
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 … Read More
Shipton v. Baltimore Gas and Electric
On September 25, NELA, the Institute, and A Better Balance jointly filed an amicus brief with the Fourth Circuit in the matter of Shipton v. BGE (No. 23-1360) urging the court to reject the “honest belief” defense in FMLA interference cases. The plaintiff in the case, Michael Shipton, was ostensibly terminated for misuse of FMLA leave, but his employer did not engage with any of the steps prescribed in the FMLA for dealing with concerns about fraud. Now the company has argued that they should not be liable for their actions because they had an “honest belief” that he had misused his FMLA leave when they terminated him. This claim cuts against the plain language of the FMLA, which only authorizes consideration of employer motivation for the purposes of determining liquidated damages. Although some courts have endorsed the use of the “honest belief” defense in FMLA retaliation cases, the Fourth Circuit has never sanctioned the defense, and should decline to do so now. NELA would like to thank Erika Jacobsen White of Joseph, Greenwald & Laake, P.A. and NELA President Carla Brown of Charlson Bredehoft Cohen Brown & Nadelhaft PC for their work on drafting and filing the brief.… Read More
Comments on OPM Proposed Rule on Recruitment and Selection Through Competitive Examination, and Employment in the Excepted Service
Submitted via www.regulations.gov
Kimberly A. Holden
Deputy Associate Director for Talent Acquisition, Classification, and Veterans Programs
U.S. Office of Personnel Management
Re: Proposed Rule with Request for Comments; RIN 3206-AN80; 88 Fed.Reg. 47059-47068 (July 21, 2023)
Dear Deputy Associate Director Holden:
The National Employment Lawyers Association (NELA) respectfully submits the following comments concerning the Office of Personnel Management’s (OPM) Proposed Rule with Request for Comments, as published in the Federal Register at 88 Fed.Reg. 88 Fed.Reg. 47059-47068 (July 21, 2023).
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 in both the public and private sector. 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 … Read More
Muldrow v. City of St. Louis
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 More
