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 MoreBlog
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
NELA Comments on Proposed Amendment to Federal Rules of Evidence
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
Gender Pronouns and Other Gendered Terms
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
Pregnant Workers Gain Critical Protections As Omnibus Spending Package Goes To White House
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
NELA Comments in Support of DOL Notice of Proposed Rulemaking on Independent Contractors
Amy DeBisschop
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).
Introduction
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
Do You Unknowingly Use Ableist Language?
NELA recently adopted a new Acceptable Use Policy governing the use of the NELA Exchange resources, like the Open Forum. One goal in adopting that new policy was to foster a more inclusive and welcoming environment on The NELA Exchange. Part of the new policy prohibits the use of slurs or epithets in posts, including in quotations and attachments. Members can share resources and cases quoting slurs and epithets off the Open Forum via direct emails. But because reading and hearing those slurs upsets, harms, and offends people, NELA chose to prohibit using those slurs and epithets on The Exchange.
Many of those slurs and epithets are obvious, some call them by their first letters. Those words can be shocking to hear. The community agrees that several words are slurs and epithets that should not be used. We recognize or feel the harm those words can cause and do not use them.
But other words that hurt people lurk in the open. Many of us use them frequently. Pejorative terms for disabilities, particularly related to mental health, come up almost daily on the Open Forum, often negatively to express disagreement with opposing counsel’s position or a judge’s ruling.
A Fair Judiciary Includes All Court Personnel, Law Clerks Included
As the end of summer is bringing new classes of law clerks to federal judicial chambers across the country, NELA’s Diversity, Equity & Inclusion (DEI) Committee is looking with renewed focus to the processes by which these much-sought-after positions are awarded. In particular, the Committee has been monitoring the case of Crystal Clanton, current clerk to Judge Corey Maze (N.D. Ala.) and soon-to-be clerk to Judge William Pryor (11th Circuit). As was reported in a 2017 New Yorker article, Ms. Clanton purportedly sent a colleague a text saying, “I hate Black people,” among other allegedly racist comments, while working as the conservative student group Turning Point USA’s national field director. Ms. Clanton has stated she does not recall making the statements.
The U.S. Judicial Conference’s Committee on Judicial Conduct and Disability has re-opened an inquiry into the judges’ respective hiring of Ms. Clanton, after the 2nd Circuit Judicial Council decided in January of this year to uphold the decision of Chief 2nd Circuit Judge Debra Ann Livingston that there was insufficient evidence of misconduct in Ms. Clanton’s hiring by either judge. The continued concerns surrounding Ms. Clanton’s hiring stem in large part from the fact that no transparent policies … Read More
National Employment Lawyers Association’s Department of Labor Proposals for First 100 Days
Biden-Harris Department of Labor Review Team
Chris Lu, Team Lead
Submitted electronically to Patricia Smith
Dear DOL Agency Review Team:
The National Employment Lawyers Association (NELA) welcomes the opportunity to share our recommendations for concrete steps that can be taken in the first 100 days under new leadership at the White House and Department of Labor (DOL). If implemented, these changes would advance the work of building an economy 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.
NELA is the largest professional membership organization in the country comprised solely of lawyers who represent workers asserting employment, wage and hour, labor, and civil rights protections. NELA advocates for workers’ rights and serves 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 helping those who have suffered unlawful treatment in the workplace to use private law enforcement to vindicate their rights.
NELA members and staff have identified the following six areas, set forth below in which there is an immediate need … Read More
NELA Comment On Proposed Rule: Update of Commission’s Conciliation Procedures
VIA Electronic Submission
Bernadette B. Wilson
Executive Officer, Executive Secretariat
U.S. Equal Employment Opportunity Commission
131 M Street NE
Washington, DC 20507
Re: Comment on Proposed Rule: Update of Commission’s Conciliation Procedures, 85 Fed. Reg. 64,079, RIN 3046–AB19
To Whom It May Concern:
The National Employment Lawyers Association (“NELA”) respectfully submits the following comments in response to the Equal Employment Opportunity Commission’s (“EEOC”) Notice of Proposed Rulemaking, Update of Commission’s Conciliation Procedures (the “NPRM”).
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. NELA advances employee rights and serves 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 been illegally treated 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 on relevant NPRMs of Proposed Rulemaking (NPRMs). A substantial number of NELA members’ clients are charging parties at … Read More
