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 MoreForced Arbitration
Viking River Cruises Inc. v. Moriana
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 MoreSouthwest Airlines Co. v. Saxon
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 MoreA Victory for Workers—Bill Ending Forced Arbitration of Sexual Assault and Sexual Harassment Claims is Sent to President for Signing
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
NELA Applauds Passage of Forced Arbitration Bill (H.R. 4445)
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 MoreThe National Employment Lawyers Association Calls On JAMS To Examine Past Cases For Bias
For Immediate Release
Contact: Andrea Hansen
509.306.1867
ahansen@flyingcrow.com
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
The National Employment Lawyers Association Denounces Changes To EEOC Dispute Resolution Programs
Unilaterally rolled out by EEOC Chair, “pilot” projects hinder employee rights in discrimination cases
For Immediate Release
Contact: Andrea Hansen
509.306.1867
ahansen@flyingcrow.com
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
Pambakian v. Blatt, 9th Circuit
On July 6, 2020, NELA and The Institute joined National Women’s Law Center and 45 other organizations in filing an amicus brief in Pambakian v. Blatt in the 9th Circuit. The amicus brief highlights the inherent problems surrounding forced arbitration, which denies workers access to justice and results in fewer claims, lower chances of recovery for plaintiffs, and lower recovery amounts. Even more importantly for workers who have experienced sexual harassment in the workplace, arbitration requires secrecy from all parties, preventing survivors from speaking about their experiences and allowing corporations to protect abusers on their payroll. We are deeply grateful to National Women’s Law Center for leading the charge on this brief.
… Read MoreNELP IBT EPI NELA Amicus Brief – New Prime, Inc. v. Oliveira (U.S. Supreme Court)
On July 25, 2018, NELA joined the Economic Policy Institute and the International Brotherhood of Teamsters in supporting an amicus brief authored by the National Employment Law Project (NELP) in New Prime, Inc. v. Oliveira, pending currently in the U.S. Supreme Court. The case concerns whether the Federal Arbitration Act’s (FAA) exemption of “contracts of employment” from its coverage applies to clauses purporting to treat workers as independent contractors, and whether the resolution of that question may properly be delegated to an arbitrator. In addition to arguing that the contract at issue in this case should be exempt under the plain language of the FAA, the amicus brief adds essential context by detailing the independent contractor misclassification problems endemic in the trucking industry and the abuses of workers they engender, in addition to the detrimental effects they have on other employers, state budget and tax coffers, and on employers’ economic incentives to misclassify more drivers. The brief was authored by NELA member Catherine K. Ruckelshaus and Ceilidh Gao of NELP.
… Read MoreNWLC NELA Amicus Brief_Jock, et al. v. Sterling Jewelers (2d Cir.)_031418
On Wednesday, March 14, 2018, NELA joined the National Women’s Law Center (NWLC) and a group of over two dozen women’s, employee, and civil rights organizations in supporting the Plaintiff-Appellants in their appeal in Jock, et al. v. Sterling Jewelers, pending currently in the U.S. Court of Appeals for the Second Circuit. This long-running case involves a challenge to systemic sex discrimination in pay and promotion opportunities under Title VII of the Civil Rights Act and the Equal Pay Act. After being moved from court into arbitration, the plaintiffs in this case argued successfully to the arbitrator that they are entitled to proceed as a class. The defendant convinced the district court to reverse the arbitrator’s decision to certify the class, and the plaintiffs have appealed. Among other important arguments, the amicus brief highlights how essential class actions are to efficiently and effectively addressing pervasive workplace abuses, while also protecting class members from the retaliation they are far too likely to face if forced to proceed individually. The brief was drafted by our colleagues at the NWLC and NELA member Carolyn Wheeler from Katz, Marshall & Banks, LLP (Washington, DC).
… Read MoreNELA Amicus Brief: Forced Arbitration Joint Action Ban Cases (U.S. Supreme Court)
NELA was proud to join with our colleagues at the National Employment Law Project and ten labor unions in filing an amicus brief in the U.S. Supreme Court on Wednesday, August 16, 2017, in support of the National Labor Relations Board and employees in three consolidated cases addressing the validity of class, collective, and joint action bans in forced arbitration clauses in employment agreements. Specifically, the cases turn on whether the National Labor Relations Act (NLRA) and Norris-LaGuardia Act (NLGA) make it unlawful for an employer to prohibit its employees from filing legal claims on a joint, class, collective or other group action basis. The brief provides important context regarding the enactment of the NLRA and NLGA in demonstrating that the right to engage in “concerted activities for the purpose of . . . mutual aid or protection” contained in those statutes includes pursuing joint, class, and/or collective litigation. As such, forced arbitration clauses that prohibit employees from engaging in such activities in any forum, as a condition of employment, are invalid and unenforceable. The amicus brief was drafted by NELA member Michael Rubin and Eric P. Brown (both from Altshuler Berzon LLP, San Francisco, CA), with substantial input from … Read More
NELA Amicus Brief: Mohamed/Gillette v. Uber (9th Cir.)
On January 19, 2016 NELA joined the National Employment Law Project, the National Association of Consumer Advocates, the National Consumer Law Center, and Towards Justice in filing an amicus brief in support of the Plaintiff-Appellees in Mohamed/Gillette v. Uber.
Our amicus brief makes three key arguments in support of the drivers. First, the brief points out that the provisions of the forced arbitration clauses at issue related to the sharing of fees and costs would make arbitration prohibitively expensive for the drivers, thus preventing them from effectively vindicating their rights under federal law. Second, the brief argues that the forced arbitration provisions are both procedurally and substantively unconscionable under California law, and cannot be saved through the inclusion of an opt-out mechanism that few drivers would understand and most would be unlikely to utilize. Third, the brief identifies the serious problems that would arise if the court adopted the defendants’ proposed rule regarding the severability of unlawful terms in arbitration agreements. Under such a rule, employers would have little incentive to refrain from including unconscionable terms in arbitration agreements, knowing that courts would merely sever the offending terms and enforce the arbitration agreement anyway.
The amicus brief was drafted … Read More
