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
On September 7, 2022, NELA joined NELP in filing an amicus brief in the 2nd Circuit case Bille, et al v. Coverall North America, Inc. This brief addresses the serious harms of forcing arbitration on low-wage workers and urges the 2nd Circuit to ensure that workers can return to court in the event that unscrupulous employers attempt to exploit the arbitration system. In this case, employer Coverall attempted to bypass earlier commitments to cover the costs of arbitration and when the arbitration was closed because of default, contested the district court decision to lift the stay on litigation. As the brief concludes, “Although the district court went farther than it should have in trying to preserve arbitration in this case, it reached the right result–Coverall waived its right to arbitrate by abusing the system, and when its insistence on forcing Reeves to pay led to AAA closing the case, arbitration was ‘had.’ ” NELA is grateful to Richard J. Burch, Brucker Burch PLLC (TX) and NELA Member Michael Scimone, Outten & Golden (NY) for taking the lead on the brief, and Michael T. Anderson, Murphy Anderson PLLC (MA) and Catherine K. Ruckelshaus (NELP) for their invaluable support.… Read More
On March 9, 2022, NELA joined our Affiliate, California Employment Lawyers Association (CELA), and the National Employment Law Project (NELP) to file an amicus brief in support of the Respondent in Viking River Cruises Inc. v. Moriana. This case addresses the issue of whether the Federal Arbitration Act (FAA) requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under the California Private Attorneys General Act (PAGA). Our brief argues that PAGA is not an end-run around arbitration and because the FAA was never intended to preempt the states’ law enforcement functions or their authority to determine how to structure their law enforcement authority, the Court should affirm the denial of Petitioner’s motion to compel arbitration. We are extremely grateful to Rachel M. Bien and Monique Olivier (Olivier Schreiber & Chao LLP, CA) who drafted the brief and the team at NELP for their editing support.… Read More
On March 1, 2022, NELA filed an amicus brief in support of the Respondent in Southwest Airlines Co. v. Saxon. This case addresses the very important issue of whether workers who load or unload goods from vehicles that travel in interstate commerce, but do not physically transport such goods themselves, are interstate “transportation workers” exempt from the Federal Arbitration Act. NELA filed in support of Latrice Saxon, a ramp worker for Southwest Airlines facing mandatory arbitration of her employment claims. The brief examined the text of the Federal Arbitration Act’s exemption for transportation workers and argues that Ms. Saxon’s job duties place her, and those similarly situated, within the exemption. The brief also notes that recognizing Ms. Saxon’s class fulfills the legislative purpose of the FAA, and the 7th Circuit’s analysis properly applies earlier supreme court jurisprudence surrounding this issue. We are extremely grateful to NELA Amicus Advisory Council Co-Chair Michael Foreman and his Penn State University Civil Rights Appellate Advocacy Clinic for drafting this brief.… Read More
Yesterday, the Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (S. 2342). The bill gives survivors the chance to have their case heard in a court of law, rather than being forced into arbitration, away from public view. NELA and its public education and advocacy organization, the National Institute for Workers’ Rights (formerly the Employee Rights Advocacy Institute For Law & Policy), have worked for over a decade to end forced arbitration in the workplace. In 2009, the Institute coined the term “forced arbitration” following the release of significant public opinion research. Recently, NELA members from across the country lobbied for the end of this unjust practice during our 2021 Virtual Lobby Day. We look forward to the President’s signature on this historic piece of legislation.
NELA applauds the Senate for coming together in a unified and bipartisan fashion to support an issue that affects every segment of the workforce. We celebrate today’s victory, but this is not the end of our call to action. No worker, whether their claim relates to sexual harassment, stolen wages, or illegal discrimination based on race, disability, LGBTQ+ status, gender, or other reasons, should be denied the … Read More
The Ending Forced Arbitration Of Sexual Assault and Sexual Harassment Act of 2021 (H.R. 4445) passed with bipartisan support yesterday, 335–97. NELA has been working for two decades to end forced arbitration, the pernicious employer practice of barring workers from pursuing justice in open court. The “Me Too” movement exposed aspects of the terrible harm done by forced arbitration clauses, which shield employers from accountability for sexual assault and sexual harassment in the workplace, enabling this conduct to continue unabated. Yesterday’s House vote is a victory in the fight to end forced arbitration. We applaud the House on this bipartisan vote.
NELA urges the Senate to pass this bill. But this is not the end of our call to action. More is needed. No worker—whether their claim relates to sexual harassment, stolen wages, or illegal harassment based on race, disability, LGBTQ+ status, or other reasons, should be denied the right to pursue justice in a court of law, in the full light of day. We call on both the House and Senate to pass the Forced Arbitration Injustice Repeal Act (FAIR Act S. 505/H.R. 963) which would broadly prohibit forced arbitration of workplace and consumer disputes.… Read More
Submitted Testimony of Laura M. Flegel, National Employment Lawyers Association and The Employee Rights Advocacy Institute For Law & Policy Legislative & Public Policy Director to the Subcommittee on Antitrust, Commercial, and Administrative Law Committee on the Judiciary United States House of Representatives on Justice Restored: Ending Forced Arbitration and Protecting Fundamental Rights
- Introduction Founded in 1985, the National Employment Lawyers Association (NELA) is the largest bar association in the country focused solely on empowering workers’ rights attorneys. NELA and its 69 circuit, state, and local affiliates have a combined membership of over 4,000 attorneys who are committed to protecting the rights of workers in employment, wage and hour, labor, and civil rights disputes. For more than two decades, NELA has called on Congress to end the insidious corporate practice of forcing workers and consumers to address disputes in secret, one-sided arbitration proceedings because the evidence demonstrates that forced arbitration is harmful to workers.Founded in 2008, The Employee Rights Advocacy Institute For Law & Policy (“The Institute”) is the related charitable public interest organization of NELA. The Institute advances workers’ rights through research, thought leadership, and education for policymakers, advocates, and the public. Since its inception, The Institute has studied
(Washington, DC) – The National Employment Lawyers Association (NELA) and The Employee Rights Advocacy Institute For Law & Policy (The Institute) applaud Representative Hank Johnson (D-GA) for introducing the Forced Arbitration Injustice Repeal Act (FAIR Act), which will end the insidious corporate practice of forcing workers and consumers to give up their rights by mandating them to address disputes in secret, one-sided arbitration proceedings.
The FAIR Act will open the courthouse doors and restore workers’ access to America’s civil justice system. Among other things, the FAIR Act will make it unlawful for employers to impose arbitration on workers, unless the worker knowingly and voluntarily agrees to arbitration after a dispute arises or pursuant to a collective bargaining agreement. Over 60 million working people in the U.S. are now subject to forced arbitration clauses which were designed to keep them from enforcing their legal rights.
“The unjust practice of forcing workers into arbitration must finally be dismantled,” Jeffrey A. Mittman, NELA Executive Director, said. “It strips vulnerable workers of the right to enforce laws that were designed to protect them when they are victims of illegal treatment in the workplace. Forced arbitration favors employers and coerces workers into losing either their … Read More
BY ELECTRONIC MAIL
Mr. Christopher Poole
Chief Executive Officer, JAMS
5 Park Plaza Suite 400
Irvine, CA 92614
Re: Accountability for Racism at JAMS
Dear Mr. Poole:
The National Employment Lawyers Association (“NELA”) and its related charitable organization, The Employee Rights Advocacy Institute For Law & Policy (“The Institute”) write to express deep concern about the racist views that were circulated by and then defended as a piece worthy of discussion by former Judge Richard Neville, who was until recently a JAMS neutral. NELA and our 69 circuit, state, and local Affiliates, comprising over 4,000 members across the country, are following your response with interest. We note, the communications only came to light as the result of a public filing, NRA v. JAMS.
The writing that Neville circulated, which he sent out by email using a signature block identifying him as a JAMS neutral, has rightly been described as “abhorrent” and “indecent.” We further agree that it is shocking that a former member of the judiciary would disseminate such material and, when called on it, defend it as being worthy of discussion or consideration, without any direct rejection of the content. It is beyond credible debate that the content … Read More
For Immediate Release
Contact: Andrea Hansen
Arbitrator’s dissemination of racist content exposes the threat of concealed prejudice among “neutrals”
Washington, D.C. – September 8, 2020 – The National Employment Lawyers Association (NELA), the nation’s largest legal association whose members exclusively or primarily represent workers, and its related charitable arm The Employee Rights Advocacy Institute For Law & Policy, are urging JAMS, a private dispute resolution provider, to conduct a full assessment of all discrimination cases overseen by Judge Richard Neville. Neville recently distributed via email to 39 recipients a racist essay contending the inferiority of Black Americans. He has since left JAMS.
As a JAMS neutral (arbitrator), Neville decided case outcomes, including employment discrimination cases, many of which are before JAMS instead of a court due to forced arbitration clauses imposed by employers on their employees. Now his neutrality on previous cases, particularly those related to discrimination or involving people of color, must be called into question due to his legitimizing of discriminatory beliefs. Neville’s willingness to share racist rhetoric with colleagues, including another JAMS neutral, under his JAMS email signature also raises concerns about whether the culture at the organization ignores or harbors racism.
While NELA and … Read More
Unilaterally rolled out by EEOC Chair, “pilot” projects hinder employee rights in discrimination cases
For Immediate Release
Contact: Andrea Hansen
Washington, D.C. – August 17, 2020 – The National Employment Lawyers Association (NELA), the nation’s largest legal association whose members exclusively or primarily represent workers, today urged EEOC Chair Janet Dhillon to discontinue two pilot programs that limit the rights of those who suffer from workplace discrimination, such as sexual harassment or race discrimination.
The impacted programs – conciliation and mediation – are forms of dispute resolution intended to encourage settlement rather than litigation. Despite the EEOC’s mission to prevent and remedy unlawful employment discrimination, the proposed changes favor employers by limiting investigation, potentially hiding systemic discrimination on the part of a particular employer or industry, and weakening the employee’s ability to obtain relief from the discrimination and fair monetary damages.
While labeled “pilot” projects, with respect to the conciliation program the modifications were implemented nationwide, a departure from typical EEOC protocol. The pilots were executed unilaterally by Dhillon, without input from the other EEOC commissioners on the bipartisan commission. With respect to the changes in the mediation program, there is no plan to increase the number of … Read More
Contact: Terry O’Neill
NELA & THE NELA Institute Issue Joint Statement Praising Google’s Move To End Forced Arbitration For Workers
Statement Of NELA Executive Director Terry O’Neill
WASHINGTON, DC — The National Employment Lawyers Association (NELA) and The Employee Rights Advocacy Institute For Law & Policy (The NELA Institute) strongly commends Google employees for their hard-fought, successful campaign to end forced arbitration in their workplace. We also praise Google for being responsive to their workers and committing to end its practice of forcing its employees to privately arbitrate employment disputes.
In response to the news, NELA & NELA Institute Executive Director Terry O’Neill stated, “With this announcement, Google has shown leadership in voluntarily ending a practice that is inherently unfair and serves only to obscure workplace wrongdoing. Unfortunately, this skewed system remains the standard practice among most of America’s top companies. We urge other industry leaders to follow suit by retracting their forced arbitration employment policies straightaway.
Moreover, given the demonstrable harm forced arbitration causes to individuals, we call on Congress to take direct action to reopen the courthouse doors for all workers and consumers by immediately passing legislation to end forced arbitration … Read More