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Paycheck Fairness Act Introduced
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February 2019

Special Announcements

Legislative News

Administrative News

Executive Nominations

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Special Announcements

The Government Shutdown Ends, But The Harm To Workers Continues

The federal government shutdown ended at the close of January, a stunning 35 long days after it began. Media attention to the shutdown has all but disappeared, but in addition to the 800,000 affected federal workers, there were an estimated four million government contractors who have not received and will not get any back pay. Workers such as taxicab drivers, restaurant and snack shop owners, and others were also affected.
 
We know very little about how any of these workers are faring since the shutdown ended. What we do know is a high percentage of U.S. workers live paycheck-to-paycheck and the loss of 35 days of pay creates serious hardship. The shutdown was an attempt on the part of President Trump, facilitated by Senate Majority Leader Mitch McConnell (R-KY) to gain leverage to get Congress to authorize funding for a wall along the U.S./Mexico border. We oppose in the strongest terms, the racism and xenophobia that fueled, and continue to drive the rhetoric about the wall. We stand by our conversation that using the livelihoods and well-being of working people and their children and families as a bargaining chip is indefensible. 
 
NELA continues to stand with every worker affected by this shutdown, including our NELA members. If your NELA membership lapsed in January, please let us know if we can help. NELA is committed to our community of employee rights advocates and wants to ensure you stay connected. You have supported us. Let us support you. Contact Maria Rapier, mrapier@nelahq.org, or call us at (415) 296-7629.
 
We need to continue to raise our voices on behalf of working people. If you haven’t been involved, now is a great time to participate in NELA’s advocacy efforts through our Legislative Action Team (LAT). If you are not already a member of the LAT, sign up at www.nela.org/LAT.

Welcome NELA DC Public Policy Fellow Mesgana Afessa!

Although I want to officially and publicly welcome Mesgana Afessa in this edition of On The Hill, this is a very belated welcome. Mesgana joined us back in September 2018—in the thick of our work on the #StopKavanaugh campaign and is now an experienced Public Policy Fellow here.
 
Mesgana comes from Philadelphia, Pennsylvania and is a freshman at American University, where she is majoring in Political Science. She was in the Mentorship Program at AU in the fall of 2018 and fortunately for me, decided to continue to work with us as a volunteer in her second semester. She has been invaluable to our efforts in DC as a writer and researcher for On The Hill; she serves as a point person on judicial nominations—tracking the multitude of judicial nominees we have been monitoring since the beginning of the Trump administration, and she also handles many other assignments that are integral to NELA’s work in DC. Mesgana is also a pleasure to have as a colleague. Thank you, Mesgana!

Legislative News

The newly configured Democratic House of Representatives is wasting no time introducing and reintroducing bills to advance and protect workers’ rights. Bills related to the two priorities set out in NELA’s recently completed strategic plan—ending forced arbitration and addressing workplace harassment—are likely to be introduced in the coming month or two. Below is a listing of bills that NELA has supported in the past and that have been reintroduced in the 116th Congress.

Raise The Wage Act

On January 19, 2019, the Raise the Wage Act (S. 150/H.R. 582) was introduced in the Senate by Senator Bernie Sanders (I-VT) and Representative Bobby Scott (D-VA) in the House. NELA joins a broad coalition of workers’ and civil rights advocates in support of this bill. If passed, this much-needed bill would:
  • Raise the federal minimum wage to $8.55 this year and increase it over the next five years until it reaches $15 an hour in 2024, as well as adjusting the minimum wage each year after 2024 to keep pace with growth in the typical worker’s wages;
  • Phase out the subminimum wage for tipped workers, which has been frozen at a meager $2.13 since 1991;
  • Sunset the ability of employers to pay people with disabilities a subminimum wage; and
  • Phase out the subminimum wage for workers under the age of 20.

Paycheck Fairness Act

On January 30, the 10-year anniversary of the Lilly Ledbetter Fair Pay Act, the Paycheck Fairness Act (PFA, S. 270/H.R. 7) was reintroduced in the Senate by Senator Patty Murray (D-WA) and by Representative Rosa DeLauro (D-CT) in the House. The reintroduction of this bill offers a glimpse of the significance of the blue wave, as the bill was reintroduced with the support of every Democrat in the House and Senate.

If passed, the PFA would update and strengthen the Equal Pay Act of 1963 and establish enhanced protections against pay discrimination. Among other provisions, it would prohibit employers from relying on salary history to set pay when hiring and guarantee women could receive the same remedies for sex-based pay discrimination as are available for race or national origin-based discrimination. The bill also tackles the important issue of protection and promotion of pay transparency by protecting workers from retaliation for discussing or disclosing their wages. Stay tuned for updates on this important legislation.

Fairness For Farm Workers Act

On February 7, 2019, the Fairness For Farm Workers Act of 2019 was introduced in the Senate by Senator Kamala Harris (D-CA) and Representative Raúl Grijalva (D-AZ) in the House. The bill amends the Fair Labor Standards Act (FLSA) to include coverage of agricultural workers in its overtime protections.
 
Since passage of the FLSA in 1938, agricultural workers have been excluded from its minimum wage and overtime protections. Today, farm workers’ annual wages average just $15,000-$17,499. Farm labor is physically demanding, and workers often endure harsh conditions and work long hours. Many agricultural workers are immigrants, and almost one third of agricultural workers are female. Thus, if passed, this law would provide important protections for some of the nation’s most vulnerable workers.
 
NELA is proud to join a large coalition of civil, workers, women’s and immigrant rights advocates in support of this long overdue bill. As of this writing there is no bill number available.

Protecting Older Workers Against Discrimination Act

On February 14, 2019, Ranking Member of the Special Committee on Aging Senator Bob Casey (D-PA), and Senators Chuck Grassley (R-IA), Patrick Leahy (D-VT) and Susan Collins (R-ME) reintroduced the bipartisan Protecting Older Workers Against Discrimination Act (POWADA). This bipartisan bill would restore the causation standards for claims under the Age Discrimination in Employment Act (ADEA). POWADA would make clear that employees have the choice of challenging discrimination either by showing that it was a motivating factor, or by proving but-for causation. NELA joins a broad group of civil and workers’ rights advocates in support of this bill. As of this writing there is no bill number available.

Administrative News

NELA Submits Comments To Department Of Education On Title IX Regulations’ Effect On Title VII Litigation & Urging That The NPRM Be Withdrawn

On November 29, 2018 a Department of Education (DOE) Notice of Proposed Rulemaking (NPRM) was published, RIN 1870-AA14, Docket ID ED-2018-OCR-0064—proposing sweeping changes that, if finalized, would narrow the definition of sexual harassment, and discourage reporting of such conduct in educational institutions covered by Title IX.
 
Many of our coalition allies commented on the extremely adverse effects of the proposed rulemaking on students who face harassment in educational institutions covered by Title IX. If implemented, these changes would ignore the far-reaching harmful impact of sexual violence in schools; they would make it harder for students to report abuse; they would allow—and in some cases require—schools to ignore reports when they are made; and they would unfairly tilt the investigation process in favor of named harassers to the detriment of survivors.
 
NELA submitted comments to address a  particular concern related to employment. Although the primary focus of the regulations, as articulated in the NPRM, is on harassment of students, particularly student-on-student harassment, the regulations would also apply to sexual harassment of employees, which, in almost all cases, involves situations of harassment of one employee by another employee. Title IX applies to employees of educational institutions as well as to students at those institutions. There are more than eight million employees in primary and secondary schools, and more than four million employees at institutions of higher education.

In relation to employees, the NPRM would make it more difficult for employees of such institutions to address sexual harassment that they encounter on the job. The NPRM, written to address the problem of harassment of students, makes little sense with regard to the problem of harassment of employees, and in a number of instances, conflicts with the standards established to address sexual harassment under Title VII.

NELA’s comments focus on these issues and NELA urges that the NPRM be withdrawn. We extend our thanks to Professor Eric Schnapper, Professor of Law, University of Washington School of Law, for drafting NELA’s comments.

Executive Nominations

Judicial Nominations

As of this writing there are 121 federal judicial vacancies. After almost 25 months in office, 85 of President Trump’s federal judicial nominees have been confirmed; two to the U.S. Supreme Court, 30 in Circuit Courts, and 53 in District Courts.

In January, President Trump re-nominated 51 judicial nominees who had not been confirmed at the end of the 115th Congress. Many, if not most of these nominees are active members of the right-wing Federalist Society and have records that document a litany of concerns such as hostility toward civil rights, troubling records on workers’ rights and/or an apparent lack of impartiality in any dispute between a corporation and an individual; receiving a rating of not-qualified by the ABA; and in the case of a number of nominees, opposition of one or both of their home state senators. A look at the group of nominees in the aggregate also reveals a stark lack of diversity.

On February 7, the Senate Judiciary Committee (SJC) convened an executive meeting at which they jammed through and approved over 40 judicial nominees at once. The mark up of such a large number of nominees, along with other practices that have become routine on the part of the Republican leadership—including advancing nominees over the objection of their home-state senator(s); scheduling hearings in which many nominees are examined at a single hearing; and even conducting several hearings while the Senate was in recess—should be of concern to everyone regardless of one’s view of any particular nominee. This is court-packing. It is not an effort to ensure a fair and thoughtful process of nominating and confirming qualified, impartial and diverse judges to the federal judiciary.

NELA Opposes Nominee Neomi Rao For Seat On The DC Circuit

On February 3, NELA submitted a letter to the Senate Judiciary Committee opposing Neomi Rao. Ms. Rao was nominated to replace now-Justice Brett Kavanaugh on the DC Circuit. Our review of Ms. Rao’s record revealed a range of concerns. Ms. Rao has no experience as a trial attorney or as an appellate attorney, and therefore lacks the basic legal experience relevant to a lifetime federal judicial appointment.
 
Her writings and actions as an attorney demonstrate opposition to recognition of gay marriage. In her position as head of the Office of Information and Regulatory Affairs (OIRA) her office has taken steps to block regulations under Title IX that would provide standards for how schools respond to incidents of sexual harassment and regulatory guidance for addressing sexual harassment in the workplace.
 
In addition to her troubling attitude toward federal protections against discrimination, Ms. Rao also believes that the Constitution grants broad power to the President to interpret the law, while advocating a narrow construction of the Supreme Court’s interpretive powers. Neomi Rao’s record strongly suggests that if confirmed to what is arguably the nation’s most powerful Circuit Court, she would not act with the fairness and impartiality on which working people depend.

Recent Nominations

Nominees who were formally opposed by NELA in the 115th Congress are bolded and marked with asterisks** below.
  • Bridget S. Bade—U.S. Court of Appeals for the Ninth Circuit
  • Paul B. Matey—U.S. Court of Appeals for the Third Circuit
  • Eric D. Miller—U.S. Court of Appeals for the Ninth Circuit
  • **Eric E. Murphy—U.S. Court of Appeals for the Sixth Circuit
  • **Chad A. Readler—U.S. Court of Appeals for the Sixth Circuit
  • Allison Jones Rushing—U.S. Court of Appeals for the Fourth Circuit
  • Rossie David Alston Jr.—U.S. District Court for the Eastern District of Virginia
  • Roy Kalman Altman—U.S. District Court for the Southern District of Florida
  • Raul M. Arias-Marxuach—U.S. District Court for the District of Puerto Rico
  • Thomas P. Barber—U.S. District Court for the Middle District of Florida
  • J. Campbell Barker—U.S. District Court for the Eastern District of Texas
  • Pamela A. Barker—U.S. District Court for the Northern District of Ohio
  • Kenneth D. Bell—U.S. District Court for the Western District of North Carolina
  • Wendy Williams Berger—U.S. District Court for the Middle District of Florida
  • Jean-Paul Boulee—U.S. District Court for the Northern District of Georgia
  • Holly A. Brady—U.S. District Court for the Northern District of Indiana
  • Andrew Lynn Brasher—U.S. District Court for the Middle District of Alabama
  • Brian C. Buescher—U.S District Court for the District of Nebraska
  • James David Cain Jr.—U.S. District Court for the Western District of Louisiana
  • Stephen R. Clark Sr.—U.S. District Court for the Eastern District of Missouri
  • Clifton L. Corker—U.S. District Court for the Eastern District of Tennessee
  • Daniel Desmond Domenico—U.S. District Court for the District of Colorado
  • Karin J. Immergut—U.S. District Court for the District of Oregon
  • **Matthew J. Kacsmaryk—U.S. District Court for the Northern District of Texas
  • Damon Ray Leichty—U.S. District Court for the Northern District of Indiana
  • Corey Landon Maze—U.S. District Court for the Northern District of Alabama
  • David Steven Morales—U.S. District Court for the Southern District of Texas
  • Sarah Daggett Morrison—U.S. District Court for the Southern District of Ohio
  • Carl J. Nichols—U.S. District Court for the District of Columbia
  • Howard C. Nielson Jr.—U.S. District Court for the District of Utah
  • J. Nicholas Ranjan—U.S. District Court for the Western District of Pennsylvania
  • Rodolfo Armando Ruiz II—U.S. District Court for the Southern District of Florida
  • Rodney Smith—U.S. District Court for the Southern District of Florida
  • Michael J. Truncale—U.S. District Court for the Eastern District of Texas
  • **Wendy Vitter—U.S. District Court for the Eastern District of Louisiana
  • T. Kent Wetherell II—U.S. District Court for the Northern District of Florida
  • Allen Cothrel Winsor—U.S. District Court for the Northern District of Florida
  • Joshua Wolson—U.S. District Court for the Eastern District of Pennsylvania
  • Patrick R. Wyrick—U.S. District Court for the Western District of Oklahoma
  • John Milton Younge—U.S. District Court for the Eastern District of Pennsylvania
I look forward to working with you in 2019! If you are not already a member, I sincerely hope you will get involved in NELA’s advocacy efforts through our Legislative Action Team (LAT). In 2019, we will continue our efforts to ensure a fair, independent judiciary, as well as fighting for legislation to advance and protect employee rights. 
Warm regards,  
 
Laura M. Flegel
Legislative & Public Policy Director
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