Employment law issues were among the first measures considered by the 111th Congress in the New Year.  Specifically, on Friday, January 9, 2009, the House of Representatives passed two bills aimed at ensuring equal pay for equal work: the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act. While these bills must still pass the Senate and be approved by the President, President-Elect Obama has previously voiced his support of the measures.

Lilly Ledbetter Fair Pay Act: Rep. George Miller YouTube Video

https://www.youtube.com/watch?v=k0gjg-W8U9w

Lilly Ledbetter Fair Pay Act
Notably, the Lilly Ledbetter Fair Pay Act would reverse the 2007 Supreme Court ruling that now makes it difficult for victims of discrimination to pursue claims.  The bill clarifies that every paycheck or other compensation resulting from an earlier discriminatory pay decision constitutes a violation of the Civil Rights Act.  As long as workers file their charges within the statutorily prescribed limitations period (i.e., within 300 days, in Texas, of a discriminatory paycheck), their charges would be considered timely.

This bill seeks to restore employee rights to challenge pay discrimination and provide a narrow fix to reverse the Ledbetter and restore prior law.

The Supreme Court’s decision in Ledbetter restricted the rights of employees to challenge unlawful pay discrimination.  As the law currently stands, if an employee does not file a claim within 180 (300 in Texas) days of her employer’s decision to pay her less, she is barred forever from challenging the discriminatory paychecks that follow.  Before Ledbetter, every discriminatory paycheck was a new violation that restarted the clock for filing a claim.  The House bill passed Friday would restore that rule.

Under the bill, every paycheck or other compensation resulting, in whole or in part, from an earlier discriminatory pay decision or other practice would constitute a violation of Title VII, which guards against discrimination on the basis of race, sex, color, national origin, and religion.

In other words, each discriminatory paycheck would restart the clock for filing a charge. As long as workers file their charges within 180 days (or 300 days in jurisdictions like Texas) of a discriminatory paycheck, their charges will be considered timely.

Since the Ledbetter decision can impact pay discrimination claims under other statutes, the bill ensures that these simple reforms extend to the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act to provide the same protections for victims of age and disability discrimination.

President-Elect Obama’s support of the measure is well-documented and if passed in the Senate, the bill will likely be signed into law in 2009.

Paycheck Fairness Act
The Paycheck Fairness Act seeks to help close the gender wage gap by strengthening the Equal Pay Act and close so-called loopholes against alleged discriminatory pay.  According to the U.S. Census Bureau, women only make 78 cents for every dollar earned by a man.

Some of the realities of The Paycheck Fairness Act are as follows:

  • Requires employers seeking to justify unequal pay to bear the burden of proving that such actions are job-related and consistent with a business necessity.
  • Prohibits employers from retaliating against employees who share salary information with their co-workers.
  • Puts gender-based discrimination sanctions on equal footing with other forms of wage discrimination – such as race, disability or age – by allowing women to sue for compensatory and punitive damages.
  • Requires the Department of Labor to enhance outreach and training efforts to work with employers in order to eliminate pay disparities.
  • Requires the Department of Labor to continue to collect and disseminate wage information based on gender.
  • Creates a new grant program to help strengthen the negotiation skills of girls and women.

We’ll see what the future has in store, but rest assured, if these early measures are any indication, 2009 will be interesting times for employers.

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