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NELA President’s Reflections on Black History Month

As we come to the close of Black History Month, it is important to reflect upon and recognize both the singular achievements of, and the unique and central role played by Black people in our nation’s cultural, intellectual, political, and legal history. At NELA, we should take this opportunity to do the same for our incredible colleagues. Today, I honor one such colleague very close to my own heart—Carla Brown, NELA’s first Black woman president. Carla is a force, a fearless leader, and seriously fun. There are few people I have ever met who are as thoughtful as Carla. I often say, that while many of us find ourselves playing checkers, Carla is always playing chess. I have been so honored to serve on the NELA Executive Board with her and to count her not only as a trusted colleague but, most importantly, as a valued friend.

Carla’s professional achievements speak for themselves. She is a partner at Charlson Bredehoft Cohen Brown & Nadelhaft, P.C. in Reston, Virgina. She regularly and successfully tries cases in Virgina, Washington D.C., and Maryland with outstanding results, for which she has been widely recognized. She has been featured as one of Virginia’s Go To … Read More

Ames v. Ohio Department of Youth Services

On December 16, 2024, NELA filed an amicus brief with the U.S. Supreme Court in Ames v. Ohio Department of Youth Services. The question presented is whether, to survive summary judgment, employees of so-called “majority” groups must show “background circumstances” that the employer discriminates against the majority as an additional element of their prima facie case under McDonnell Douglas Corp. v. Green. Under the authorship of renowned Supreme Court practitioner Eric Schnapper, NELA took the opportunity to remind the Court that all workers, and not just majority workers, can be harmed by lower courts’ overly rigid application of the McDonnell Douglas at the summary judgment stage. NELA urged the Court to hold that while McDonnell Douglas can be a useful tool in some cases and that plaintiffs have the right to proceed under that framework if they so choose, employees do not need to establish a prima facie case at all to survive summary judgment. Rather, the question at summary judgment should be, as it is in all cases, whether there is a genuine issue of material fact that could allow a reasonable jury to find in the plaintiff’s favor. In crafting this brief, NELA weighed many competing interests, … Read More

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Chicago Attorney M. Nieves Bolaños Elected President Of The National Employment Lawyers Association

Bolaños is the first Latina to serve as board president of 39-year-old organization

Concord, Calif. – July 26, 2024 – The Board of the National Employment Lawyers Association (NELA), the nation’s largest bar association whose members exclusively or primarily represent workers, has elected its officers for 2024-2025. The NELA Board is composed of 24 member attorneys from around the country. M. Nieves Bolaños, the first Latina to serve as NELA’s president, assumes the role from Carla D. Brown, the first Black woman leader of the organization. This transition represents a significant milestone for NELA, highlighting the importance of diverse representation in leadership roles within the organization and the legal community as a whole.

NELA Board:

President
M. Nieves Bolaños
Hawks Quindel, SC, Chicago, IL

First Vice President
Ben Lebsack
Lowrey Parady Lebsack, LLC, Denver, CO

Vice President of Diversity, Equity, Inclusion & Accessibility
Bryce W. Ashby
Donati Law, PLLC, Memphis, TN

Vice President of Affiliate Relations
Deborah H. Karpatkin
Law Office of Deborah H. Karpatkin, New York, NY

Immediate Past President
Carla D. Brown
Charlson Bredehoft Cohen Brown & Nadelhaft, P.C., Reston, VA

Secretary
Summer H. Murshid
Hawks Quindel, SC, Milwaukee WI

Treasurer
Christopher Houk
Houk Law Firm, PLLC, Tempe, … Read More

Kenneth Moses v. United States Steel Corp.

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

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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

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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

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

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

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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

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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

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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

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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