Employee Rights Briefing
May 2019
NELA & The NELA Institute Jointly File U.S. Supreme Court Amicus Brief In Fort Bend County, Texas v. Davis
On April 3, 2019, The NELA Institute and NELA jointly filed an amicus brief with the U.S. Supreme Court urging the Court to rule that Title VII’s administrative-exhaustion requirement is a waivable claim-processing rule and not a jurisdictional prerequisite to suit. This case arose after employee Lois M. Davis filed an internal complaint alleging sexual harassment and assault by an individual in her department, who was investigated and eventually resigned. Soon thereafter, her supervisor, a friend of the alleged harasser, retaliated against Ms. Davis. When he required her to work on a Sunday—a time she had requested off for religious observance—she declined and was fired. Prior to being let go, Ms. Davis filed an official charge with the Texas Workforce Commission, a state agency with a work-sharing agreement with the EEOC, alleging sexual harassment and retaliation. After being fired, Ms. Davis amended her intake questionnaire, but not her charging document, to include religious discrimination.

Ms. Davis proceeded to take all her claims to court and went all the way through the summary judgment phase, including her appeal to the 5 th Circuit (which she won) and Fort Bend County’s petition for cert. (which the Supreme Court denied). It was only then, some five years after the litigation began, that the county asserted for the first time that Davis had failed to exhaust her administrative remedies by failing to reference religious discrimination on the correct state agency form. In our amicus brief, NELA and The NELA Institute argued, inter alia, that because filing a charge with the EEOC is complicated and most employees who file are laypersons who will file their charges without the assistance of counsel, a more flexible approach to administrative exhaustion is not only justified, but necessary to serve the public interest of effectively eliminating discrimination in the workplace.

The brief was drafted by NELA member Michael L. Foreman of the Penn State Law Civil Rights Appellate Clinic. Oral arguments in the case were heard on April 22 and a ruling is expected to be issued no later than June 2019.
In The News
In rapid succession, the U.S. Department of Labor (DOL) recently issued three Notices of Proposed Rulemaking (NPRM) to modify the Fair Labor Standards Act (FLSA). On March 22, it announced a proposed regulation to revise the so-called “overtime rule” to increase the salary threshold for qualifying employees to $35,308. This is $12,168 less than the increase enacted during the Obama Administration that was enjoined prior to going into effect in 2016 . The public will have until May 21 to submit comments after its publication in the Federal Register.

On March 29, the DOL published an NPRM to narrow the types of compensation that may be considered in calculating a worker’s regular rate of pay under FLSA , a factor that is critical for establishing the wage rate for earned overtime. Public comments may be submitted in the Federal Register through May 28.

Finally, on April 9, the DOL issued its new NPRM on joint employer status under the FLSA . Among other things, the proposal would require an entity to maintain direct control over a worker in order to be classified as a joint employer. The public has until June 10 to submit comments in the Federal Register. 
On April 1, Democratic New Mexico Gov. Michelle Lujan Grisham signed legislation blocking local governments from passing “right-to work” ordinances designed to weaken unions.
The U.S. Senate Judiciary Committee held a hearing on April 2 entitled “ Arbitration in America.” Vox’s Alexia Fernandez Campbell optimistically explained “ Democrats Want To Ban Mandatory Arbitration. Senate Republicans Are Listening.” On April 23, the Center For Justice & Democracy at New York Law School published a new fact sheet on forced arbitration clauses and class action waivers. Sue Berkowitz, Director of South Carolina Appleseed Legal Justice Center, published an op-ed in The State on April 24 encouraging congress to support Lindsey Graham’s efforts to ban forced arbitration
On April 1, economists Doruk Cengiz and Arindrajit Dube of University of Massachusetts Amhurst, Attila Lindner of the University College London, and Ben Zipperer of the Economic Policy Institute released a new study on “ The Effect of Minimum Wages on Low-Wage Jobs” which found, inter alia, that increases in the minimum wage do not lead to a measurable decrease in the number of available low-wage employment positions.
On April 5, Arizona became the first state to recognize out-of-state job licenses—a move that will make it easier for new residents moving from another state to obtain employment in occupations subject to state licensing regulations. 
More than a year and a half after being nominated by President Trump, on April 10 the U.S. Senate confirmed Cheryl Stanton to serve as the head of the DOL Wage and Hour Division
On April 11, Governing Magazine shared the 10 jobs disappearing the fastest in America, and shared the theory that automation was behind their decline.
National Public Radio contributor Mitchell Hartman, on April 18, revealed staggering new U.S. Bureau of Labor Statistics data in his report, “ African Americans’ Wages Nearly Stagnant Over Decade.”
On April 24, the Economic Policy Institute published a new report on the state of teacher pay in America which found, among other things, that the teacher weekly wage penalty hit 21.4 percent in 2018, a record high.
After the U.S. Supreme Court granted certiorari  in a set of cases concerning sexual orientation and gender identity discrimination in the workplace, former EEOC Commissioner Jenny Yang offered her informed opinion on April 26 in The Washington Post piece , Does the law protect the LGBTQ community from discrimination? It should be an easy answer.”
On April 29, the DOL Wage and Hour Division issued a new opinion letter concluding that workers in the gig economy are independent contractors, not employees.
Workers Rights By The Numbers
The percentage increase in internal reporting of sexual harassment in the workplace from 2017 to 2018.
( Navex Global )  

How many times more Disney’s CEO was paid in 2018 than its lowest wage employees. ( Washington Post
How many fewer charges were filed with the EEOC in FY 2018 compared to FY 2017. ( EEOC Enforcement and Litigation Statistics )

In The Courts
The U.S. Supreme Court heard oral arguments on April 16 in Parker Drilling Management Services, Ltd. v. Newton, a case concerning whether state labor law, including state wage and hour requirements, applies to offshore oil rigs under the Outer Continental Shelf Lands Act.
On April 22, the U.S. Supreme Court granted certiorari in two cases asking whether federal employment discrimination laws apply to LGBT employees. In Bostock v. Clayton County, Georgia , which was consolidated with Altitude Express Inc. v. Zarda , the Court will decide whether discrimination “because of sex” includes discrimination based on sexual orientation within the meaning of Title VII of the Civil Rights Act of 1964. In R.G. & G.R. Harris Funeral Homes v. EEOC , the Court will decide whether discrimination against transgender people based either on their status as transgender or sex stereotyping is barred under Title VII.
On April 24, the U.S. Supreme Court ruled in Lamps Plus, Inc. v. Varela that, among other things an arbitration provision must expressly allow for class arbitration in order for the procedure to be available to parties bound by such an agreement.
The Employee Rights Briefing is a monthly newsletter designed to help keep you up-to-date on breaking news and emerging trends impacting America's workers. From the growth of forced arbitration of employment disputes, to employee misclassification, to stories of wage theft and workplace discrimination, the Employee Rights Briefing reports on employment law and policy developments from the federal government to state legislatures to the courtroom and everywhere in between. Our goal is to provide you with a digestible snapshot of the events shaping employment law and policy, so that you can be kept abreast of the most important issues facing today's workers.
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