Employee Rights Briefing

April 2019

The NELA Institute and the National Employment Lawyers Association (NELA) are thrilled to welcome Ashley Westby as our new Program Manager. Ashley is a Colorado native, and the daughter of two blue collar workers who taught her the importance of employee rights. Ashley received her B.A. in Political Science from the George Washington University, and her J.D. from American University, Washington College of Law. Over the past 10 years, Ashley has worked with the Federal Aviation Administration, Labor and Employment Law division, and as a Project Manager for the Department of Health and Human Services. Upon joining NELA and The NELA Institute, Ashley shared, “I am thrilled to join NELA and pursue a career in a field I am passionate about. Having seen firsthand the legal disparities between employees and employers, I am excited to work with these organizations to provide education, advocacy, and support to members championing employee rights across the country.” In her free time, Ashley supervises volunteers for IMAlive.org, an online chat-based crisis intervention service, and belly dances. 

As part of its commitment to cultivate the next generation of employee rights advocates, NELA and The NELA Institute are accepting applications for the Paul H. Tobias Attorney Fellowship Program for 2019-2021. The Fellowship is named after the founder and first Executive Director of NELA and offers a new lawyer who embodies Paul’s spirit the opportunity to work on cutting-edge projects that will advance the cause of workers’ rights. Applications will be accepted until May 1, 2019. Please visit The Institute's website for more details.

Terri Gerstein published an article in Slate Magazine on March 1 entitled, “ Forced Arbitration Is Unjust and Deeply Unpopular. Can Congress End It?”

The Internal Revenue Service clarified that victims of sexual harassment in the workplace do not have to pay taxes on damages received after coming forward to expose the perpetrators in court.

On March 14, economist and New York Times columnist Paul Krugman averred, “ Don’t Blame Robots For Low Wages.”

The Department of Labor (DOL) Wage and Hour Division (WHD), on March 14, issued a new opinion letter asserting, among other things, that employers must start calculating workers’ 12 weeks of Family Medical Leave Act (FMLA) leave from the time they learn an absence qualifies for federal protection, and cannot let workers take paid sick time before tapping into their allotment of federally protected unpaid leave.

On March 15, Economic Policy Institute Senior Economist Elise Gould relayed why higher returns on education can’t explain growing wage inequality.

In what could be a game-changing decision affecting workers forced into arbitration, on March 21, National Labor Relations Board (NLRB) Administrative Law Judge Keltner W. Locke ruled that that an employer violates the National Labor Relations Act when “ it impose[s] a clause requiring employees to keep information about arbitration confidential.”

On March 22, the DOL published a Notice of Proposed Rulemaking (NPRM) in the Federal Register to raise the salary threshold for eligible workers under the Fair Labor Standards Act’s (FLSA) overtime rule from $23,660 to $35,308 per year—over $12,000 less than the increase the DOL issued through formal rulemaking during the Obama Administration but then refused to support once President Trump took office. The public will have until May 21, 2019 to submit comments.

On March 25, Kentucky Governor Mark Bevin signed a bill codifying an employers’ right to force its workers into arbitration as a condition of employment.

The DOL, on March 28, announced a proposed rule to amend the FLSA to articulate that employers may exclude certain compensation from an employee’s regular rate of pay for the purposes of calculating overtime compensation , and also makes additional clarifications about other forms of compensation, including payment for meal periods, “call back” pay, and others. The public will have until May 28, 2019 to submit comments.

Workers Rights By The Numbers

6%

The wage gap between black workers and their white counterparts grew from 10.2% in the year 2000 to 16.2% in 2018.

 ( Economic Policy Institute ) 

1 in 9

Number of U.S. workers who are paid wages that leave them in poverty, even when working full-time and year-round. ( U.S. House Committee On Education & Labor )

34%

Percentage of U.S. adults engaged in gig work in the year 2015.

 ( Penn Today )

On February 4, in National Association of African American-Owned Media v. Charter Communications, Inc., the U.S. Court of Appeals for the Ninth Circuit rejected but-for causation in certain race discrimination cases, finding that “mixed-motive claims are cognizable” under the statute. The opinion provided, “Even if racial animus was not the but-for cause of a defendant’s refusal to contract, a plaintiff can still prevail if she demonstrates that discriminatory intent was a factor in that decision such that she was denied the same right as a white citizen.” 

On February 27, in Lampley v. Missouri Commission on Human Rights, the Missouri State Supreme Court ruled that a gay man may bring a claim under the state’s human rights statute for employment discrimination on the basis of sexual stereotyping.