Courts open Pandora’s Box in applying the Ledbetter Fair Pay Act

Today I am going to get technical and talk about statutory interpretation. Bear with me, though, because how some courts are incorrectly interpreting the Ledbetter Fair Pay Act has crucial implications for businesses

Michael Fox at Jottings by an Employer’s Lawyer highlights the following key passage in the Ledbetter Act:

For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or 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.

Plaintiffs are arguing that the phrase “or other practice” covers the full panoply of employment decisions, such as promotions and demotions, and not just pay-setting decisions or policies. At least two courts have bought this argument:

• Bush v. Orange County Corrections Dept., (M.D. Fla. 2/2/09), which held that plaintiffs could timely challenge demotions, which resulted in reductions in pay, that occurred 16 years before earlier than their EEOC charges.

• Gilmore v. Macy’s Retail Holdings, (D.N.J. 2/4/09), which held that the Ledbetter Act applies to a discriminatory promotion that would have been to a higher paying job.

Applying the Ledbetter Act to cases such as Bush and Gilmore, which  involved long-ago promotions and demotions, is misplaced. For “or other practice” to have the expansive meaning given by the Bush and Gilmore courts, a comma is missing. Because there is no comma between “decision” and “or other practice,” “or other practice” modifies “compensation.” Thus, the more reasoned interpretation of this provision of the Ledbetter Act is that the Act covers a discriminatory compensation decision or other discriminatory compensation practice. A promotions or demotion is a personnel decision, not a compensation decision or practice.

The overly broad interpretation applied by the Bush and Gilmore courts goes well beyond the issue in the Ledbetter decision that the Ledbetter Act intended to overturn. Every employment decision, whether a hiring, promotion, demotion, or termination, has some effect on compensation. The Ledbetter Act cannot be so broad as to cover any and every personnel decision. This broad of a reading of the statute will eliminate virtually every statute of limitations in federal discrimination claims, providing employees with an unlimited amount of time to file any discrimination claim. If the Ledbetter Act means what Bush and Gilmore say it means, the Ledbetter Act could prove to be devastating for employers.

No Ohio court has yet to apply the Ledbetter Act. Ultimately, the meaning of “or other practice” will be up to the courts of appeals and the Supreme Court. Nevertheless, it is important for employers to realize that only two weeks into its life, at least two courts have broadly applied the Ledbetter Act to cover much more than the Ledbetter decision it overturned.

White House comes out against Ledbetter Fair Pay Act

It's been nearly a year since the Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co., which held that the statute of limitations for a pay discrimination claim under Title VII begins to run when the pay-setting decision is made, and not when the employee learns of the discrimination. The Ledbetter decision set of a reactionary wave in Congress. Less than 2 months after Ledbetter, the House passed the Lilly Ledbetter Fair Pay Act of 2007, which would amend Title VII, the ADEA, the ADA, and the Rehabilitation Act such that a discriminatory compensation decision occurs each time compensation is paid per that decision. In other words, each receipt of a paycheck would start a new statute of limitations running, regardless of when the actual discriminatory decision was made or implemented.

While the Senate mulls the Lilly Ledbetter Fair Pay Act, the White House has publicly come out against it. From CNN:

The White House said it supports anti-discrimination laws, but that statutes of limitations are crucial in fact-intensive cases. A prompt assertion of discrimination is critical for both employers and employees, the White House said.

"This legislation does not appear to be based on evidence that the current statute of limitations principles have caused any systemic prejudice to the interests of employees, but it is reasonable to expect the bill's vastly expanded statute of limitations would exacerbate the existing heavy burden on the courts by encouraging the filing of stale claims."

I've been on record opposing the Ledbetter Fair Pay Act. It would create a floating statute of limitations for pay discrimination claims, potentially granting all employees the right to sue in perpetuity. Statutes of limitations serve several important purposes, including promoting certainty. Businesses need to know that they will reach a point in time when decisions cannot be challenged in court. Moreover, the more time that elapses between a decision and a lawsuit, memories fade and evidence becomes stale, making it more difficult for a company to rebut the claim. Lilly Ledbetter, for example, sued for a decision nearly 20 years hence. Who at Goodyear still has any knowledge about that decision?

U.S. Supreme Court limits pay discrimination claims

Today, the United States Supreme Court, in Ledbetter v. Goodyear Tire & Rubber Co., ruled in a 5-4 decision that in cases alleging discrimination in pay, the federal statute of limitations begins to run when the pay-setting decision is made. Thereafter, an aggrieved employee has only 180 days or 300 days (depending on the particular state) in which to file an EEOC charge, or forever be time barred from challenging the discriminatory pay setting decision under federal law.

In Ledbetter, Lilly Ledbetter, an 19-year Goodyear employee, alleged that Goodyear had discriminatorily denied her raises throughout her tenure, because of her sex and in violation of Title VII. She filed her EEOC charge well in excess of 180 days past the last denial of a raise. Ledbetter did not claim that the relevant Goodyear decision makers acted with discriminatory intent either when they issued her checks during the EEOC charging period or when they denied her a raise in 1998. Instead, she claimed that her charge (and therefore her lawsuit) was timely because each paycheck she received with the allegedly discriminatory pay rate was, in and of itself, an act of discrimination for purposes of challenging the long-ago decisions. Thus, each paycheck was unlawful because each would have been larger if she had been evaluated in a nondiscriminatory manner prior to the EEOC charging period and during her entire tenure. Thus, according to Ledbetter, her 1998 rate of pay was unlawful because it carried forward the effects of the prior 18 years of uncharged discriminatory pay decisions. The District Court agreed with her and permitted her claim to proceed to a jury, which awarded her more than $3 million in back pay, compensatory, and punitive damages.

The Supreme Court, however, overturned that decision, and in doing so diverged with the vast majority of the appellate courts that have looked at this issue. Writing for the majority, Justice Alito opined that “current effects alone cannot breathe life into prior, uncharged discrimination.... Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.” According to the Court, its narrow reading of the statute of limitations "reflects Congress’s strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation."

Ohio is a deferral jurisdiction, so employees in this State have 300 days to file EEOC charges of discrimination. This case has important implications under federal employment discrimination law, because a charge of discrimination is a prerequisite for the filing of any lawsuit under Title VII. I question, however, the overall effect this decision will have on companies that do business in Ohio. Under Ohio law, an employee can bypass the Ohio Civil Rights Commission and the EEOC and simply institute a private cause of action under Ohio Revised Code 4112.99 for all acts of discrimination. Such lawsuits have an astounding 6 year statute of limitations for all forms of discrimination, except age discrimination, which has a 6 month statute. This statute of limitations and the lack of any administrative exhaustion is one of the few areas where Ohio law differs from its federal counterpart. Until the Ohio legislature closes this anomaly, local businesses will probably not feel much effect from Ledbetter.

Are we overreacting to Ledbetter?

Today's New York Times reports on current efforts by Senate Democrats to introduce equal pay legislation in light of the Supreme Court's ruling in Ledbetter v. Goodyear Tire & Rubber Co. Recall that in May the Supreme Court ruled 5 to 4 against Lilly Ledbetter, who discovered, after working at Goodyear for nearly 20 years, that her male co-workers had been receiving higher salaries. The Justices started her 180-day statute of limitations upon alleged discriminatory pay decision, time barring her suit.

In light of Ledbetter, the House last month introduced and passed the Lilly Ledbetter Fair Pay Act, which would allow pay discrimination claims to be filed within 180 days of the issuance of a discriminatory paycheck. It seeks to amend Title VII, the ADEA, the ADA, and the Rehabilitation Act to specify that for a claim of compensation discrimination because of race, color, religion, sex, national origin, age, or disability, the discriminatory pay act does not occur, and the statute of limitations does not begin to run, until "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." In other words, the aggrieved employees would have, depending on the state, 180 or 300 days from the receipt of each alleged discriminatory paycheck to file a charge with the EEOC to challenge the pay decision as discriminatory. According to the New York Times article, Senators Edward Kennedy, Hillary Clinton, Barack Obama, and others intend to introduce similar legislation in the Senate.

If this legislation becomes law (which is doubtful while Bush is still President), pay discrimination claims would have a floating statute of limitations, potentially granting all employees the right to sue in perpetuity. Statutes of limitations serve several important purposes, including promoting certainty, in that a company needs to know that it will reach a point in time when a decision cannot be challenged in court, and recency, in that at some point in time employees leave companies, memories of events fade, and evidence becomes stale. Lilly Ledbetter, for example, sued for a decision nearly 20 years hence. Who at Goodyear still has any knowledge about that decision? Senator Kennedy is quoted as saying, “The rules for filing equal-pay claims should reflect basic fairness.” Fairness, however, works both ways, for the employer and the employee. Granting a perpetual statute of limitations fosters a perceived fairness for one at the expense of the other.

Note the effective date of the Ledbetter bill

From PointofLaw.com, on the effective date of the Ledbetter Fair Pay Act:

SEC. 6. EFFECTIVE DATE.

This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973, that are pending on or after that date.

May 28th? The Supreme Court issued its Ledbetter ruling on May 29, 2007, so Lilly Ledbetter's suit was still pending then. So does she get another shot at her lawsuit?

It looks like the Ledbetter bill will completely wipe away the Supreme Court’s Ledbetter decision, as if it never even happened. President Obama has promised to sign this bill into law on Thursday, January 29.

Ledbetter passes Senate – President’s signature is next

It’s looking like the Lilly Ledbetter Fair Pay Act will be the first piece of legislation President Obama will sign into law. The Washington Post reports that yesterday it passed the Senate by a vote of 61-36. The Washington Post goes on to quote Lilly Ledbetter, who said that she had spoken to the President following the Senate vote, and that “he has assured me that he will see me in the White House, hopefully in just a few days.”

For more the Ledbetter Act and its implications for employers, see Ledbetter Fair Pay Act likely to be first employment legislation of the Obama Presidency and Are we overreacting to Ledbetter?

Ledbetter Fair Pay Act likely to be first employment legislation of the Obama Presidency

According to Monday’s New York Times, Congressional Democrats are looking to fast-track the Lilly Ledbetter Fair Pay Act. This should not come as any surprise, given Ms. Ledbetter’s prominent speaking position at last summer’s Democratic convention.

Recall that in Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court ruled that in pay discrimination cases the federal statute of limitations begins to run when the pay-setting decision is made:

Current effects alone cannot breathe life into prior, uncharged discrimination.... Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.

According to the Court, its narrow reading of the statute of limitations “reflects Congress’s strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.” Or, at least prior Congresses, as this Congress will certainly pass the Ledbetter Fair Pay Act.

This law will provide that a new and separate violation occurs each time a person receives a paycheck resulting from “a discriminatory compensation decision.” Thus, each paycheck that reflects an alleged discriminatory pay decision will start a new and distinct limitations period. 

Businesses should brace themselves for longer statutes of limitations for pay discrimination claims. Once the Fair Pay Act becomes law, it will be more difficult for companies to know at what point in time a pay decision can no longer be challenged. This law’s Congressional supporters have spoken of the need for fairness. Fairness, however, works both ways, both for employees and employers. A perpetual statute of limitations for pay discrimination claims fosters a perceived fairness for the former at the expense of the latter.

What would President Obama look like to employers?

Yesterday, Senator Barack Obama gave some insight into employment policy in his administration. RealClearPolitics has his words from a speech given in Albuquerque. The highlights:

• He will push for the passage of the Lilly Ledbetter Fair Pay Restoration Act, which will overturn Ledbetter v. Goodyear Tire & Rubber. Recall that Ledbetter held that the statute of limitations for a pay discrimination claim under Title VII begins to run when the pay-setting decision is made, and not when the employee learns of the discrimination. The Ledbetter Fair Pay Act would start the statute of limitations when the employee learns of the pay discrimination. In my view, this law would create a floating statute of limitations for pay discrimination claims, which severely undermines the important aspect of certainty that statutes of limitations provide for businesses.

• To assist working parents, he would expand the Child and Dependent Care tax credit to 50%.

• He would expand the FMLA to cover employers as small as 25 employees, to permit leave for the care of elderly parents, to allow parents 24 hours of annual leave to join school activities with their kids, and to cover employees who are victims of domestic violence or sexual assault.

• Finally, he would require employers to provide all workers with seven paid sick days a year.

It's clear from Senator Obama's words that family responsibility will be a driving force in his administration:

As the son of a single mother, I also don't accept an America that makes women choose between their kids and their careers. It's not acceptable that women are denied jobs or promotions because they've got kids at home. It's not acceptable that forty percent of working women don't have a single paid sick day. That's wrong for working parents, it's wrong for America's children, and it's not who we are as a country.

It's hard to argue against greater family leave benefits on a national scale (The Ohio Healthy Families Act is an entirely different story). As I've said before, this country lags behind most of the civilized world, and even some of the third world, in family leave benefits. Until we solve this problem legislatively, aggressive plaintiffs will continue to push for judicial solutions - such as the $2.1 million verdict against Kohl's Department Stores in Cuyahoga County last year.

Top 10 Labor & Employment Law Stories of 2009: Numbers 6 and 5

6. The U.S. Supreme Court’s Pro-Employee decisions. 2009 brought us two important pro-employee Supreme Court decisions. In Crawford v. Metropolitan Gov’t of Nashville, the Court held that Title VII’s anti-retaliation provision covers employees who answer questions during employers’ internal investigations. In Ricci v. DeStefano, the court found that disparate treatment of non-minorities trumps a disparate impact on minorities.

5. The Ledbetter Fair Pay Act. A mere 9 days after his inauguration, President Obama made the Ledbetter Fair Pay Act the first piece of legislation he signed into law. The Ledbetter Act reversed the Supreme Court’s eponymous decision, which had held that in Title VII pay discrimination cases the statute of limitations begins to run when the pay-setting decision is made. This law provides that a new and separate violation occurs each time a person receives a paycheck resulting from “a discriminatory compensation decision.” Thus, each paycheck that reflects an alleged discriminatory pay decision will start a new and distinct limitations period. Unfortunately for employers, courts have been applying this law broadly by extending statutes of limitations for all sorts of employment decisions – promotions and demotions, for example.

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Big changes in the political winds?

I've written a lot since starting this blog about the various bills introduced in the House and Senate to amend Title VII and other employment law statutes. Indeed, one of my very first posts asked whether federal legislation would bring us new protected classes. Following my lead, the National Law Journal has nicely summarized the assorted employment law reforms Congress has introduced this session:

• Ledbetter Fair Pay Act: reverses the Ledbetter decision by setting forth that each discriminatory paycheck is a discrete act of discrimination for purposes of triggering Title VII's statue of limitations.
• American with Disabilities Restoration Act: amends the definition of "disability" to undo a decade of Supreme Court precedent.
• Employment Non-Discrimination Act: adds protections for sexual orientation and gender identity to Title VII.
• Genetic Information Non-Discrimination Act: prohibits employment decisions based on genetic information.
• Civil Rights Tax Relief Act: eliminates taxation of non-economic damages received by employment plaintiffs.
• Equal Remedies Act: removes Title VII's caps on compensatory and punitive damages.
• Arbitration Fairness Act: invalidates pre-dispute arbitration agreements requiring arbitration of employment disputes.

Some of these reforms, namely ending the loophole that allows companies to invidiously discriminate on the basis of sexual orientation, are long overdue. Others, such as the ADA Restoration Act, the Equal Remedies Act, and Ledbetter Fair Pay Act, will have far greater and more onerous consequences for employers. Because the Democrats don't have enough votes to overturn a Presidential veto, most of these bills currently are nothing more than political rhetoric. If, however, a Democrat wins the White House, 2009 will be a very interesting year, as companies should expect sweeping changes to federal employment laws, the likes of which have not been seen for more than a decade.

The failure of the Paycheck Fairness Act ends the golden age of employment law

The Democrats swept into office in January 2009 with promises of paradigm-shifting labor and employment law reforms: card check union recognition, Title VII coverage for sexual orientation and gender identity, expanded FMLA coverage, the end of arbitration agreements, and paid sick leave are but a few of the campaign issues on which the Democrats won the the White House and substantial majorities in both halves of Congress.

Yesterday, the Senate failed to vote to close debate on the Paycheck Fairness Act. That vote, coupled with the incoming Republican majority in the House, means that we likely have seen the end of any significant employment law reforms by the Obama administration’s first (only?) term. The scorecard is stunning. The lone significant employment law legislation to become law under Obama’s watch is the Lilly Ledbetter Fair Pay Act, which, in and of itself, is not all that significant. It affects the timeliness of discrimination claims, and potentially exposes businesses to more lawsuits. Yet, if you ranked the various pieces of legislation discussed and debated over the last two years, Ledbetter would rank pretty low in terms of societal impact.

In comparison, President Bush passed three key pieces of employment legislation during his last year in office: the FMLA military leave amendments, the ADA amendments, and the Genetic Information Nondiscrimination Act. The significance of these three laws will be felt for years to come.

In early 2009, I joined the chorus of employment lawyers who believed that President Obama would change the landscape of labor and employment law. No one ever likes to be wrong. For the sake of American businesses, many of which are still trying to climb out of the worse recession in 80 years, I have never been so happy to have been off the mark.

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Do you know? EEOC reports record charge filings for 2010

The EEOC recently published its fiscal year 2010 FY 2010 Performance and Accountability Report. Given the state of the economy, its findings are not all that surprising. The EEOC reported a record number of discrimination charge filings, 99,922, its highest total in the agency’s 45-year history. What is surprising, however, is what the EEOC is doing with all these charges—it’s closing files.

Despite the record number of filings, the EEOC resolved 104,999 charges, leaving it with an inventory of 86,338 at the end of its fiscal year. While that number seems high, it’s less than a 1% increase from the end of FY 2009. By way of contrast, the EEOC’s pending inventory increased nearly 16% from FY 2008 to FY 2009. In other words, the EEOC is resolving cases—whether by mediation and settlement, litigation, or dismissals and right to sue letters.

Here’s what the EEOC has to say about the cause of this record number of filings:

This surge in charge receipts is due in part to the expanded statutory authorities that EEOC has been given with the ADA Amendments Act (ADAAA) of 2008; the Genetic Information Nondiscrimination Act (GINA) of 2008; and the Lilly Ledbetter Fair Pay Act of 2009 (the Ledbetter Act). We also attribute the rise in charge receipts to EEOC becoming more accessible, making charge filing easier and providing better, more responsive customer service. Our internal Intake Information Group expanded the agency’s availability by phone and e-mail. Additionally, in the last four years, the EEOC has concentrated on revamping its charge intake services, expanding walk-in hours, and issuing a plain language brochure to assist potential charging parties in understanding their rights and the EEOC charge process. Individuals can now contact the agency by phone, by mail, by e-mail, by going to the EEOC website, or by visiting EEOC field offices.

These record filings have resulted in record recoveries. In FY 2010, the EEOC secured more than $319.3 million for more than 18,898 people through administrative enforcement activities—mediation, settlements, conciliations, and withdrawals with benefits. This figure represents the highest level of monetary relief ever obtained by the Commission, and a $25.2 million increase from FY 2009. Of this record recovery, $85 million came from the resolution of 285 lawsuits brought by the EEOC.

What does all this mean for employers? The EEOC is no longer an agency where charges go to die. Employers can expect more thorough investigations, quicker resolutions, and more aggressive enforcement. If you are charged with discrimination with the EEOC, you should take it seriously; the EEOC is.

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WIRTW #145 (the bad legislation edition)

Earlier this week, I urged you, my readers, to take a stand against the Paycheck Fairness Act by calling or emailing your Senators and expressing your opposition to this bill. The following bloggers share my concerns (albeit some more than others):

• Read This Before You Decide on Paycheck Fairness Act – from Stephanie Thomas’s The Proactive Employer

• One last push for the misnamed Paycheck Fairness Act – from Carter Wood at PointOfLaw Forum

• Paycheck Fairness Act Poised for Passage – from Ann Bares at Compensation Force

• Paycheck Fairness Act: You Decide Is This Necessary? – from Michael Haberman’s HR Observations

• Labor Secretary and Lilly Ledbetter Push for Paycheck Fairness Act – from Shopfloor.org

• A Late Addition to the Roster: Paycheck Fairness Act Finally Appears in the Senate – from Employment Class Action Blog

• Fair Pay Isn’t Always Equal Pay – from Christina Hoff Sommers at the New York Times

• Unfair “Paycheck Fairness Act” shafts workers with dangerous jobs; equal pay for unequal work – from Hans Bader at DC SCOTUS Examiner

• “Wage Discrimination Touches Everyone,” Says Lilly Ledbetter – from BLR

Here’s the rest of what I read this week:

Discrimination

• Italian-Americans choose the wrong causes – from Rob Schwartz’s Fairness Matters

• Dissecting the EEOC’s Position on Criminal Background Checks – from employeescreenIQ Blog

• Muslims Report Rising Discrimination at Work – from Steven Greenhouse at the New York Times

• McDonnell Douglas Bites the Dust in Tennessee – from Michael Fox’s Jottings By An Employer’s Lawyer

• Many Types of Evidence Help Prove a Discrimination Case – from Tom Crane’s San Antonio Employment Law Blog

• Tenth Circuit Decides Important Age Discrimination Case – from Today’s Workplace

• Should Employers Try More Cases Before Juries? – from Patrick Smith’s Iowa Employment Law Blog

• The Internet - The Next Frontier for the ADA: Will Your Website Comply? – from Pennsylvania Labor and Employment Blog

• Harassment complaints: Don’t let your corrective action be the tree falling in the woods – from Sindy Warren at the Warren & Hays Employment Law Blog

• Caution: Improper Harassment Investigations Can Result in a Hostile Work Environment Claim – from Wyatt Employment Law Report

• Employee Sues, Settles, Gets Rehired – from Workplace Prof Blog

• Plaintiff failed to show that Facebook pics supported hostile workplace claim – from Evan Brown’s Internet Cases

Wage & Hour

• The FMLA Connection (in Connecticut) to Organ Donors and How Employers Can Help – from Dan Schwartz’s Connecticut Employment Law Blog

• Tougher regulations and penalties when employing minors – from Employment Law Bits

• OSHA’s Applicability to NFL – from The Word on Employment Law with John Phillips

• NDAA 2011 to Amend USERRA to Permit 2 Weeks of Annual Leave for Family of Deployed Members of the Uniformed Service – from The FMLA Blog

• Seventh Circuit Clarifies Overtime Damages For Misclassified Employees – from Wage and Hour Laws Blog

• Failure to Follow Employer’s Leave Procedures Dooms FMLA Claim – from FMLA Insights

• Congress Proposes Additional Independent Contractor Legislation: “The Fair Playing Field Act” Receives Strong Support From White House – from Hunton Employment & Labor Law Perspectives™

Employee Relations

• B is for Bully – from Victoria Pynchon’s Settle It Now Negotiation Blog

• Why You’re More Likely Than Ever to be Held Hostage Over That Office Romance – from Kris Dunn’s The HR Capitalist

• Employee privacy: Audit uncovers on-the-job sexting – from Stephen Meyer’s HR Cafe

• Superbug Reminds Employers to Get a Pandemic Policy – from Delaware Employment Law Blog

• They Know Who You (and your employees) Are! – from Philip Miles’s Lawffice Space

Trade Secrets and Non-Compete Agreements

• Eight Reasons Small Businesses Should Use Non-Compete Agreements – from Trade Secrets & Non-Compete Blog

• Noncompete Agreements: Stopping Former Employee From Soliciting May Not Protect Business – from Rush Nigut’s Rush on Business

• Protecting your business from an employee departure - the IT response – from Rob Radcliff’s Smooth Transitions

• Why Should I Be Concerned If Only One of My Sales Managers has Signed the Company Noncompete/Confidentiality Agreement? – from Trade Secret / Noncompete Blog

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WIRTW #64

It’s been a very busy week. We had the first employment law Supreme Court decision and the first new employment law of the new year. And, we had a lot to read from a lot of excellent bloggers.

The ChamberPost refers to the Ledbetter Fair Pay Act as a scam.

Human Rights in the Workplace discusses the legal risks associated with social networking in the workplace.

The Connecticut Employment Law Blog gives insight on President Obama’s choices to run the EEOC and the NLRB.

George’s Employment Blawg provides a thorough analysis of the Employee Free Choice Act.

What's New in Employment Law? spots a huge faux pas by Starbucks’s CEO. As a PR move, he cut his own salary from $1.2 million to $10,000 annually, lowering his pay below the threshold to qualify as an exempt employee.

Bob Sutton coins the phrase Asshole Collar, bosses with a white collar and colored shirt.

The Ohio Labor Lawyers provide some insight on what to do when a union business agent shows up with signed authorization cards.

Where Great Workplaces Start give some examples of alternatives to layoffs, such as wage reductions or reduced work schedules.

The HR Capitalist shows everyone what a strip club’s employee handbook looks like.

Gruntled Employees gives a grammar lesson on the difference between to lay off (a verb), layoff (a noun), laid-off (an adjective).

World of Work reports on the 10th Circuit’s dismissal of a WARN Act case.

The Evil HR Lady on email etiquette.

LawMemo Employment Law Blog discusses a case that could potentially come before the Supreme Court, on the issue of what qualifies as a mixed-motive discrimination case.

On.point presents the story of a dismissal of a sex discrimination lawsuit brought by a transsexual.

Workplace Privacy Counsel points out that under GINA, one could be held liable for the disclosure of genetic information even if it was made inadvertently.

WIRTW #155 (the two-drink-maximum edition)

I was not the only one this week commenting on the legal risks of office holiday parties:

• The Office Holiday Party - Alcohol-Induced Stupidity Can Lead to Serious Sexual Harassment Claims – from Daniel Schwartz’s Connecticut Employment Law Blog

• How To Avoid Holiday Party Pitfalls (and Liability) – from World of Work

• Your Career: Surviving the office holiday party – from msnbc.com

• Time to Get Your “Drink On” at the Office Holiday Party! – from Fistful of Talent

• Behave at Office Holiday Parties – from Lawyerist

If you’re planning on voting for me at the ABA’s Blawg 100, please do so before you indulge too much at your office party and forget to vote at all.

Here’s the rest of what I read this week:

Discrimination

• The FMLA, the ADA and retaliation – from Michael Maslanka’s Work Matters

• 3d Circuit: Untimely Failure-to-Promote Claim Is Not Saved by Ledbetter Fair Pay Act – from Molly DiBianca’s Delaware Employment Law Blog

• Supreme Court May Clarify Use Of “Me Too” Evidence Of Employment Discrimination – from Hunton Employment & Labor Law Perspectives™

• A Room with a View – The Costly Consequences of Ignoring a Small Request for Accommodation – from Wyatt Employment Law Report

• Employers and the newly expanded ADA – from Overlawyered

• Record Gender Discrimination Class Action Settlement And Fee Award Given Final Approval – from Workplace Class Action Litigation

• I’m Harassed By Your Affairs With Others: A New Legal Threat Emerges (Gender Plus)... – from Kris Dunn, The HR Capitalist

• Lawsuit Alleges Hiring Discrimination Due to Credit Background Checks – from employeescreenIQ Blog

• 10 Tips For Avoiding GINA Violations – from Workplace Privacy Counsel

• Disparate Impact Suit - Credit Checks – from Michael Fox’s Jottings By An Employer’s Lawyer

• Documentation is Key to Surviving OFCCP Audit – from New York Labor and Employment Law Report

• BIG LIES: “The check's in the mail,” and “I can fire you for a good, bad, or no reason” – from Employment and Labor Insider

• Job Descriptions and the ADA: Are Those ‘Essential Functions’ Really Essential? – from Case In Point

• Combining Romance and Work, Can Lead to Demotion or Even Termination From Employment – from Minnesota Labor & Employment Law Blog

Wage & Hour

• Wal-Mart Stores v. Dukes: Will SCOTUS grant certiorari? – from LawMemo Employment Law Blog

• Workplace Flexibility and the Military – from Workplace Prof Blog

• Verizon FMLA settlement may exceed $6 million – from The FMLA Blog

• Steeped-Up Independent Contractor Enforcement Initiatives Coming Down The Pike Full Steam – from Wage & Hour - Development & Highlights

• ESPN Zone Closure Prompts Lawsuit by Laid Off Workers – from Maryland Employment Law Developments

• You Be The Judge: Did the boss or the worker close FMLA door? – from HR Cafe

• Leon Rodriguez to Be Nominated for the Top Job at the Wage and Hour Division – from Wage & Hour Counsel

DOL/ABA Partnership

• The DOL’s Holiday Gift for the Plaintiff’s Bar – from FMLA Insights

• DOL/ABA Lawyer-Referral Program Threatens More FLSA Litigation – from Wage and Hour Laws Blog

• USDOL + ABA = Trouble? – from HR Observations

• DOL-Private Bar Collaboration for Workers with Employment Complaints – from EFCA & Labor Law Reform Blog

• The DOL’s Lawyer Referral Arrangement with ABA Not Likely to Help Employers or Employees – from Iowa Employment Law Blog

• White House Task Force Announces DOL-ABA Partnership to Facilitate Wage and Hour Challenges – from Washington D.C. Employment Law Update

Social Networking & Technology

• When the iPad Is the Only Computer Your Employees Need—or Want – from BusinessWeek

• When It Comes To Smartphones, Employers Better Watch Out – from Workplace Diva

• Blackberries, iPhones and Androids: Do SmartPhones Belong in Meetings? – from Suzanne Lucas, “The Evil HR Lady,” writing at bNet

• “Cyber Monday”: Myth Or Must-Day For Online Shopping? – from NPR

• Managing the Workplace in the Age of Social Media – from CPEhr

• How Grinchy Should Employers Be About Online Shopping? – from Manpower Employment Blawg

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

EEOC proposed significant pay equality changes to EEO-1

If your company has 100 or more employees, you should be very familiar with the federal government’s EEO-1 survey. The EEOC requires that you annually complete and file this form, which requests demographic on your employees, broken down by protected classes and job categories.

Last Friday, the White House made a game changing announcement about the information it proposes you submit in your EEO-1 filings.

Preparing for the golden age of labor and employment law

As an employment lawyer, my practice has a lot of different aspects. I’m a counselor, helping clients tame workplace issues before they become problems. I’m a drafter, writing employee handbooks, policies, contracts, and forms. I’m an investigator, questioning employees involved in harassment and other complaints. I’m a trainer, guiding workforces, managers, and supervisors through the alphabet soup that makes up our labor and employment laws. I’m a negotiator, trying to amicably resolve employee disputes before they become fights. And, I’m a litigator and  trial lawyer, navigating companies through our state and federal courts and administrative agencies.

All these roles will be tested over the next several years. A liberal Congress, a Democrat President, and the worst economic downturn in 80 years have combined to create a world of problems for our nation’s struggling employers. The Ledbetter Fair Pay Act has already increased pay discrimination liability, and myriad layoffs have heightened the risk for age and other discrimination lawsuits. If Congress has its way, over the next several years the Employee Free Choice Act will make it significantly easier for unions to organize and bargain favorable first contracts, the FMLA will be expanded to cover smaller employers, and paid sick leave will become a reality. For these reasons, we may be at the dawning of the golden age of labor and employment law.

In light of all of these changes, it is critical that businesses not be caught unprepared. According to April 8th’s Wall Street Journal, “U.S. businesses, fearful of rising union influence and a crackdown by the Obama administration on workplace practices, are scrambling for legal advice and training.” Luckily for my readers, KJK is offering some of this advice and training for free. On May 13, my colleagues and I will present How to Stay Union Free in a Union-Friendly World, a free seminar on how to best position your non-union business to stay that way. Feel free to contact me for more information, or if you would like to attend.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #132

Although earlier this week I touched on Rent-A-Center v. Jackson, I did not discuss it in-depth. Thankfully, there are a lot of bloggers who did:

• Breaking: U.S. Supreme Court Affirms Arbitration Provisions in Employment Disputes; What It Means for Employers – from Dan Schwartz’s Connecticut Employment Law Blog

• The Potential Impact of Today’s Supreme Court's 5-4 Decision on Arbitrability – from Michael Fox’s Jottings By An Employer’s Lawyer

• SCOTUS Addresses Arbitrability Determination – from Philip Miles’s Lawffice Space

• New SCOTUS Arbitration Opinion: Both Boring & Important – from Tim Eavenson’s Current Employment

• Supreme Court Rules in Favor of Employer on Arbitration Agreements – from Tom Crane’s San Antonio Employment Law Blog

• Supreme Court Expands Enforcement of Arbitration Clauses Calling for The Arbitrator To Decide Arbitrability Issues – from Wyatt Employment Law Report

• Victory for Business in Rent-A-Center West v. Jackson – from Sarah Cole at the ADR Prof Blog

• Supreme Court: Arbitrator, Not Court, Decides Whether Arbitration Agreement is Unconscionable – from the Workplace Prof Blog

• New rule for deciding validity of agreements to arbitrate arbitration – from SCOTUS Blog

• SCOTUS: Arbitrator, not court, decides whether arbitration agreement is unconscionable (5-4) – from LawMemo

Here’s the rest of what I read this week:

Wage & Hour

• Counting Sheep Over Ledbetter – from Stephanie Thomas at Compensation Cafe

• A Wage/Hour Story Told in Million-Dollar Lawsuits and Wage and Hour Simple? I Don't Think So – from HR Daily Advisor

• Minimum Wage — HR Song of the Week – from The Word on Employment Law with John Phillips

• Senate Committee Holds Hearing on Worker Misclassification – from Washington D.C. Employment Law Update

• Sales Representatives’ Overtime Lawsuits Continue To Result In Conflicting Decisions – from Hunton Employment & Labor Perspectives™

Discrimination

• Gay worker bullied and harassed at Las Vegas Walmart: What’s next, “always low prices” on pink triangles? – from David Yamada’s Minding the Workplace

• The ADA and your EAP – from Sindy Warren at the Warren & Hays Employment Law Blog

• Can Social Recruiting Lead to Discrimination and Equal Opportunity Issues? – from Newton Software Blog

Competition & Technology

• Can Social Media Violate a Non-compete Clause? – from Lawyerist

• To Get Injunctive Relief, Be Able to Prove Specific Irreparable Harm – from Trading Secrets

• Email Rules - Beyond Foul Language – from Rob Radcliff’s Smooth Transitions

• Watch Out for Metadata – from Ken Adams’s AdamsDrafting

Miscellaneous

• Trends in Employment Background Screening – from Nick Fishman at employeescreenIQ Blog

• “Winning” Workplace Arguments is Really Just Consensus Building – from Victoria Pynchon’s Settle It Now Negotiation Blog

• Why and how to choose caddies and local counsel – from Michael’s Maslanka’s Work Matters

• Strategic Use of Swearing in the Workplace – from Bob Sutton

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Bill Proposes Elimination of Damages Caps

On the heels of the passage of the Lilly Ledbetter Fair Pay Act, Congress continues to try to tinker with the federal employment discrimination laws. Senator Edward Kennedy has introduced legislation that would eliminate the caps on the amount of non-economic compensatory damages and punitive damages plaintiffs can recover in employment discrimination cases under Title VII and the ADA -- the Equal Remedies Act of 2007. Senator Kennedy bases this legislation on the inequities in available damages between race and national origin discrimination and all other forms of discrimination prohibited by Title VII and the ADA (sex, religion, disability, etc.). Employees suing under Title VII or the ADA are capped in the amount of damages they can recover, while employees suing under 42 U.S.C. 1981, which only prohibits race and national origin discrimination, has no such limits. Of course, the Senator could just propose capping damages under Section 1981. As with most of the other pro-employee legislation currently pending in Congress, there is little chance of President Bush actually signing the Equal Remedies Act into law. January 2009, however, is not that far off.

WIRTW #46

With Ohio's Healthy Families Act officially dead, attention turns to legislation on the federal level. It is safe to say that if Barack Obama is elected President, employment law in this country will see its biggest transformation since perhaps 1964. On the horizon are landmark pieces of legislation, including the federal Healthy Families Act, the Employee Free Choice Act, the ADA Restoration Act, the Civil Rights Act of 2008, and the Lilly Ledbetter Fair Pay Act. The ABA Journal Daily News and Human Resource Executive Online have the details.

Work Matters, a blog I recently discovered, has an interesting take on race in the workplace.

The Business of Management points out that it is generally a bad idea to notify employees about a lay off via email.

The Delaware Employment Law Blog reports on the 10 best excuses for being late to work.

The Evil HR Lady gives some tips on how to handle an employee who frequently skips out of work because of headaches.

The Labor and Employment Law blog lists 8 steps employers should take to comply with HIPAA.

Fair Labor Standards Act Law talks about Kimoto v. McDonald's Corp., in which a California federal court refused to certify a wage and hour class action.

Finally, Workplace Prof Blog gives its opinion on a 3rd Circuit case which held that a Spanish-speaking employee could be bound by an arbitration agreement written in English.