The National Employment Lawyers Association, or NELA, does a ton of great work advocating for workplace rights. One of my first interviews for this blog was with Roberta Steele, Program Director at the organization, about how forced arbitration prevents American workers from enforcing their rights. As the Legislative & Public Policy Director for NELA, Laura Flegel works to advance workers’ rights in Congress, and I took advantage of the congressional recess in August to talk with her about NELA’s legislative priorities.
Kate
You’ve been with NELA for about a year now – how is it going?
Laura
I love the job, and I love having a job where my focus is to make things better for working people. I enjoy working closely with NELA members, who are a terrific group of lawyers who have dedicated their careers to improving conditions for American workers.
Kate
What are the issues you have been focusing on recently?
Laura
NELA continues to advocate against forced arbitration, as you know. We’re trying to educate people about the issue. It affects all of us. We have all entered into a consumer or employment contract that takes away our ability to enforce our rights but the way this works, we weren’t informed about what we had “agreed” to when we signed some papers or simply clicked “I Agree” on a computer screen. Most people have no idea this is happening to them until they have a problem they want to take to court.
Kate
Absolutely. I think about if suddenly discrimination at work was no longer illegal, people would understand how that affects their rights, but it is much harder to articulate and appreciate the fact that forced arbitration in many ways has the same effect.
Blogger’s Note: For more information on forced arbitration, check out my previous posts here and here.
I know NELA also advocates for laws that tax settlements fairly – can you talk about that?
Laura
The Civil Justice Tax Fairness Act is a proposed law with bipartisan support. This law would address the excessive and unfair tax treatment of settlements in workplace cases. Right now, all settlement awards in employment cases are taxed, unlike settlements of other cases, even if they are not to settle claims of unpaid wages. Additionally, where settlements of unpaid wages are involved, the employee is taxed in the year she got the money. That employee then has to pay taxes as if she were working for wages equal to the settlement amount, even though usually, that settlement is the resolution of multiple years of unpaid wages.
Kate
Can you talk about NELA’s advocacy in judicial nominations?
Laura
We are trying to deal with the fact that Republicans in the Senate are obstructing judicial nominations. While this is also not a headline-grabbing issue, the Senate’s refusal to confirm judicial nominations leaves vacancies in our courts that can have a real effect on the enforcement of civil rights.
Kate
What do you mean when you say that Senators are obstructing judicial nominations?
Laura
The Constitution requires the Senate to confirm federal judges following the President’s nomination. By tradition, Senators from each state develop a process for reviewing candidates and recommending them to the White House prior to the President’s nomination.
After the President nominates candidates, the Senate Judiciary Committee holds a hearing on one or more nominees and then votes on the confirmation. However, the Republican leaders of that Committee have slowed this process to barely a trickle. The extent of the problem is unprecedented.
Kate
How many vacancies are there?
Laura
At this point there are 68 vacancies between District Courts and Appeals Courts alone. Several more judges have announced their upcoming retirements, so the number of vacancies will only grow if the Senate Judiciary Committee continues to stall confirmations.
Kate
Can you explain the practical effects of judicial vacancies and why this is an important issue for NELA?
Laura
If you’re in a jurisdiction where there is a judicial vacancy in the federal court, and one judge is doing the work normally done by two, cases will move more slowly on the docket. This means your case may have to sit for years before it is heard. This delay will have a real effect on your ability to enforce your workplace rights.
If, for example, you were sexually harassed at work, you will need certain types of evidence to prove your case. You may be relying on including testimony from other workers who witnessed the harassment or who suffered the same treatment. It is important that these workers are available to testify at your trial and important that they still remember what they observed or experienced. If your trial does not happen for years because of a judicial vacancy, it will be more difficult for you to prove your case. The passage of time alone can turn a strong case into one that is weak or cannot be proven at all.
Kate
I also think the passage of time makes litigation more expensive – and it is often easier for big business to shoulder those costs than it is for individual workers.
Can you talk about NELA’s efforts to address the judicial vacancies?
Laura
NELA is working with a broad civil rights coalition on the issue of stalled judicial confirmations. This past summer, NELA strongly urged NELA members to visit their Senators in their state offices during the Senate recess to demand that their Senators take action to get judicial confirmations moving. It is the collective responsibility of the Senate to move on this, and both Republicans and Democrats should be speaking out and putting pressure on the Republican leadership to put an end to this nonsense. Stalling judicial confirmations hurts everyone.
Kate
Is there anything else NELA is doing in terms of judicial nominations?
Laura
When we’re not having to fight simply to get judges confirmed, we do a lot of work to advance professional diversity in the judiciary.
Kate
Can you talk about what you mean by professional diversity and why it is important?
Laura
Historically, people selected as judges come from the same professional backgrounds. Many judges worked as criminal prosecutors, corporate lawyers, state court judges, and law professors. There are very few judges who worked on behalf of civil rights. These lawyers will generally bring a body of experiences and different points of view to the bench.
Even assuming a given judge is not ideologically opposed to anti-discrimination laws, if she has spent her career defending employers in lawsuits against employees, she may approach discrimination cases with a different perspective than those who have spent their careers representing workers in these cases. We like to see judges on the bench reflecting the diversity of the profession.
Kate
Are there any other issues that have been keeping you busy?
Laura
I’ve been very excited about one development: the Department of Labor proposed regulations that would make it more difficult for employers to avoid paying overtime to employees who work more than 40 hours a week. Many employees at restaurants, retail stores, and in offices end up having to work maybe 50 or 60 hours a week, but are considered what is called an “exempt employee.” That means they are treated as part of the group of employees who are not eligible for overtime pay, no matter how many hours they work. The law was set up so that some employees are intended to be exempt from overtime protections – certain kinds of supervisors and executives who earn a salary above a minimum threshold – for example. The thinking was that employees at higher levels get benefits – monetary and other fringe benefits – and generally have more ability to control the hours they work.
Kate
What would the Department of Labor’s regulations do?
Laura
Right now, the salary threshold over which supervisory employees are not eligible for overtime is $23,660. The Department of Labor’s regulations would increase this salary threshold to $50,404. The threshold has not been updated in years. The threshold that was in place during the Nixon administration, adjusted for inflation, was about $56,000.
Fewer and fewer workers are getting paid overtime. We think that denying that worker overtime pay is wage theft.
Kate
This threshold exists only for supervisory or executive employees, but my understanding is that employers have broadly defined supervisors to exempt large swaths of people Congress did not intend to be exempt from overtime laws – is that right?
Laura
That’s right, and the law has not adapted to acknowledge the realities. For example, a shift supervisor at McDonalds may be called a “supervisor” and thus is not entitled to overtime protections. But she’s really doesn’t have the freedom and control over her job in the way that Congress intended that supervisors and executives exempt from the overtime law would get. So she has to work overtime. It is not optional, but she is not being compensated for it.
Kate
What is NELA doing about this?
Laura
We’re part of a broad coalition of workers’ rights advocates working to make sure there is strong support for this rule change. We generated a high volume of comments in support of the proposed regulations and will continue to work in coalition to help the Department of Labor garner political support to make these changes.
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Big business has mobilized support against the regulations, and NELA and the many other groups with which we are working in coalition are working hard together to ensure that these positive changes are finalized.