Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

• the employer adopts a discriminatory compensation decision or other discriminatory practice affecting compensation;
• the charging party becomes subject to a discriminatory compensation decision or other discriminatory practice affecting compensation; or
• the charging party’s compensation is affected by application of a discriminatory compensation decision or other discriminatory practice, including each time wages, benefits, or other compensation is paid, resulting in whole or part from such discriminatory decision or practice.

This section also explains that although these time frames apply to all forms of compensation, including the payment of pension benefits, the Ledbetter Act was not intended to change the method for calculating when pension distributions are considered paid. Therefore, if an individual intends to file a discrimination claim based on pension benefits, the Compliance Manual advises the claimant to file a charge within 180/300 days of retirement, as pension benefits are considered paid “upon entering retirement and not upon issuance of each annuity check.”

This new section provides the following example of an actionable claim:

After working for the Respondent for nearly 10 years as a production supervisor, CP learns she is being paid less than the other four production supervisors in her department, who are all men. Immediately after learning about the pay discrepancy, CP files an EEOC charge alleging sex-based wage discrimination in violation of Title VII. The investigation shows that CP generally received lower pay raises than her male counterparts as the result of lower performance ratings, which CP alleges to have been discriminatory. Although these performance ratings and related pay raises all occurred more than 300 days before CP filed her charge, they affected her pay within the filing period. Therefore, CP’s pay discrimination charge is timely.

The Ledbetter Act is retroactive to May 28, 2007, and applies to all claims of compensation discrimination pending on or after that date.
 

The House on January 9 passed an identical bill (H.R. 11) by a margin of 247-171, although this version was combined with the Paycheck Fairness Act (H.R. 12) when it was sent to the Senate for consideration. H.R. 12 would weaken an employer’s affirmative defense in a wage discrimination lawsuit and provide for compensatory and punitive damages, essentially lifting the damages cap for such claims. The Senate decided to consider each measure separately, most likely to ensure that President Obama would have at least one employment-related bill to sign within a month of his taking office.

The Lilly Ledbetter Act effectively eliminates the statute of limitations in wage discrimination cases by resetting the time limit for filing suit every time a claimant receives a paycheck or other form of compensation whose amount stems from an alleged act of discrimination. This bill applies to all claims of compensation discrimination under Title VII, the Age Discrimination in Employment Act, Title I and Section 503 of the Americans with Disabilities Act, and Sections 501 and 504 of the Rehabilitation Act. In addition, this legislation would apply retroactively to May 28, 2007, the day before the U.S. Supreme Court decided in Ledbetter v. Goodyear Tire & Rubber Co. that applying this “paycheck rule” was incorrect. The bill also entitles a plaintiff to recover back pay for up to two years preceding the filing of the charge.

From a logistical standpoint, this bill poses severe problems for employers attempting to gather evidence to defend against wage discrimination lawsuits for events/decisions that occurred years before the wage claim is made. Many current employers will be the unwitting beneficiaries of claims stemming from decisions made by those who no longer work for the company. If this bill is signed into law – which is almost a certainty – anticipate a dramatic increase in wage discrimination claims.
 

Labor/Management Relations

President Obama named Wilma Liebman to Chair the National Labor Relations Board.  Also in labor news, President Obama’s ambitious labor agenda is conspicuously absent from the new White House website.

Workplace Flexibility

The Family Fairness Act of 2009 (H.R. 389) was introduced in the House, a bill that would eliminate the requirement that employees must have worked at least 1,250 hours within the previous 12-month period to be eligible to receive FMLA benefits.

Workplace Safety

The Mine Safety and Health Administration (MSHA) and the National Institute for Occupational Safety and Health (NIOSH) issued a proposed rule regarding the criteria for manufacturing continuous personal dust monitors (CPDMs). These devices monitor continuously and in real-time a miner’s coal dust exposure, and would be used in place of coal mine dust personal sampler units (CMDPSUs).

The Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking regarding potential changes to the Respiratory Standard. OSHA also issued an advance notice of proposed rulemaking regarding its desire to develop a diacetyl standard.

The bill effectively overrules the U.S. Supreme Court case Ledbetter v. Goodyear Tire & Rubber Co., which rejected the argument that the statute of limitations for filing a wage discrimination claim is reset every time the employee receives a paycheck or other compensation that was initially based on a discriminatory act or decision. The Ledbetter Act, among other things, amends Section 706(e) of the Civil Rights Act of 1964 by deeming that an unlawful employment practice occurs when (a) a discriminatory compensation decision or other practice is adopted; (b) an individual becomes subject to a discriminatory compensation decision or other practice; or (c) when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

Liability accrues and an aggrieved plaintiff may recover back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.

This bill would take effect as if it was enacted on May 28, 2007 – the day before the Supreme Court’s Ledbetter decision – and apply to all claims of compensation discrimination under Title VII, the Age Discrimination in Employment Act, and Title I and Section 503 of the Americans with Disabilities Act, and Sections 501 and 504 of the Rehabilitation Act. This bill is less expansive than the version passed by the House (H.R. 11), which incorporated provisions of the Paycheck Fairness Act (H.R. 12), a bill that, among other things, would limit an employer’s affirmative defense in wage discrimination cases and allow for the award of potentially unlimited compensatory and punitive damages.

The practical result of this bill for employers is that wage discrimination claims will dramatically increase and such claims may be exceedingly difficult to defend against. As written, this bill enables an employee or former employee to allege that an act of discrimination affecting compensation occurred years earlier – perhaps when the current supervisor, CEO, or other decision-maker was not even in the company’s employ. Most of the criticism surrounding this bill focused on the fact that the statute of limitations would be left open-ended, encouraging litigation of discriminatory compensation claims. According to Senate Minority Leader Mitch McConnell (R-Ky), "[t]his bill is about effectively eliminating the statute of limitations on pay discrimination."

A number of amendments to this bill were either tabled or rejected during consideration. The Senate handily dismissed by a vote of 40-55 an amendment in the nature of a substitute (SA 25) introduced by Sen. Kay Bailey Hutchinson (R-Tex.). This amendment would have applied a “known or should have known” standard when enforcing the statute of limitations. In other words, the applicable 180- or 300-day statute of limitations would have started when a litigant had or would have been expected to have had a reasonable suspicion that discrimination had occurred. Additionally, this amendment would have precluded allegations of unlawful employment practices relating to the provision of a pension or pension benefits. Under the current version of S. 181, an unlawful employment practice occurs when, among other things, an individual is “affected” by the application of a discriminatory compensation decision or other practice.

Sen. Arlen Specter (R-Pa.) submitted an amendment (SA 26) that would have permitted an employer to assert a defense based on waiver of right, estoppel, or the doctrine of laches. He also offered an amendment (SA 27) that would have eliminated the clause “or other practices” in the section defining what constitutes an unlawful employment practice under the act, thus limiting the application of the bill to discriminatory payroll decisions, as opposed to things such as negative performance evaluations.

Sen. Mike Enzi (R-Wyo.) submitted two amendments to the act (SA 28 and SA 29) which would have clarified standing and restored the Supreme Court’s interpretation of the statute of limitations for most types of employment discrimination.

Sen. Johnny Isakson (R-Ga) sought to change the effective date of the act from a retroactive date of May 28, 2007, to the actual day of enactment.

Sen. Jim DeMint (R-SC) attempted to include a number of right-to-work provisions in the bill. Similarly, Sen. David Vitter (R-La) sought to include provisions attempting to prevent the government from adopting union-only rules for contractor companies.

None of these amendments made their way into the final bill.
 

Discrimination in the Workplace/Employee Wage and Hour Law

The Senate voted to invoke cloture on the Lilly Ledbetter Fair Pay Act (S. 181), limiting debate on this wage discrimination bill and paving the way for its almost certain passage and presidential signature.

Immigration

A new bill introduced in the House, the Illegal Immigration Enforcement and Social Security Act of 2009 (H.R. 98) would significantly increase fines and jail time for employers who knowingly hire illegal aliens or fail to verify their employment eligibility using a new procedure outlined in the bill.

Workplace Flexibility

The new regulations governing the Family and Medical Leave Act (FMLA) went into effect Friday, January 16.