01 | 30 | 2009    Posted By Weintraub Firm

Congress and President Obama Trump the Supreme Court: Ledbetter Fair Pay Act Signed Into Law

In his first significant act as President in the labor and employment arena, President Obama effectively overturned the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. by signing the Lilly Ledbetter Fair Pay Act ("Ledbetter Act") into law this Thursday. The main thrust of the Ledbetter Act is that it “resets” the statute of limitations for wage claims based on discrimination each time an employee receives a paycheck affected by the alleged discriminatory practice.


Background
 

Lilly Ledbetter worked for her employer, Goodyear, for 19 years. She accused Goodyear of gender discrimination under Title VII on the grounds that, throughout her almost 20 career, she was consistently paid less than male employees who were similarly situated. The Supreme Court found that Ledbetter’s Title VII action was time-barred; holding that the statute of limitations starts running under Title VII when the employer makes the original discriminatory pay decision. The Court rejected Ledbetter’s argument that her claim was “refreshed” each time she received a paycheck affected by Goodyear’s discrimination.

The Ledbetter Act

The Ledbetter Act “resets” the statute of limitations for wage claims based on discrimination (in any form recognized by federal law) each time an employee receives a paycheck affected by the alleged discriminatory practice. Moreover, the Act defines “unlawful employment practices” broadly to encompass any practice that affects an employee’s compensation.

Bottom Line

Given the speed of which this new administration was able to push through this fairly substantial legislation, employers should anticipate continued robust efforts from Washington to further bolster employee protections in the coming months.

What Steps Should Employers Take?

While it will likely take some time for the courts to interpret the new law and provide guidance for employers to take steps to avoid litigation, there are a few initial steps employers should consider taking now:
 

  • Examine compensation policies to ensure they do not discriminate on the basis of a protected class or protected activity.
  • Work with employment counsel to structure and conduct a self-audit of compensation practices and discuss best practices for retention and destruction of compensation records.
  • Train supervisors and managers regarding proper and improper considerations when making discretionary compensation decisions.

 

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01 | 14 | 2009    Posted By Weintraub Firm

California 'Baby' WARN Act may Surface During Recession

The recent economic lull has lead to increased layoffs across different industries. Employers may be required to give advance notice to affected employees and certain government entities. There are Federal and State laws which discuss the issue of notice owed to employees before large layoffs. The Federal law is known as the Worker Adjustment and Retraining Notification or 'WARN' Act. California's version of the WARN act (AB 2957, the 'baby' WARN Act) contains additional provisions employers should be aware of. The baby WARN Act applies to "mass layoffs", "terminations" and "relocations" at "covered" establishments. There are no regulations interpreting the California version which makes it difficult to understand.

Under California's baby WARN Act, employer is a "covered" if it has employed 75 or more persons within the preceding 12 month period. It is unclear whether this means 75 total people over the course of a year or 75 at any one point during the year. Second employer is a "covered" if there have been any "mass layoffs," "terminations," or "relocations" at a covered establishment. The terms are defined below: 

  • Mass layoffs: layoffs of 50 or more employees within a 30-day time period at a covered establishment.
    • Only applies to employees who have been employed for more than 6 month 
  • Terminations: the cessation or substantial cessation of industrial or commercial operations in a covered establishment
    • If the employer is classified as a covered establishment it does not matter how many employees are employed at the time of termination-notice is still required prior to termination 
  • Relocations: the removal of all or substantially all of the industrial or commercial operations in a covered establishment to a different location 100 miles or more away
    • Removal to a new location within a short distance may not be classified as relocation but may be considered a termination which would require notice.

Notice Requirements


Covered Employers must provide at least 60 days' notice to affected employees. Employers also have to provide notice to the California Employment Development Department, the local workforce investment board and the chief elected official of each city and county government within which the termination, relocation or mass layoff occurs.
 
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01 | 14 | 2009    Posted By Weintraub Firm

Ineffective OWBPA Waiver in a RIF: Peterson v. Seagate

Nineteen former employees who signed releases after being terminated in a RIF and who did not file EEOC charges may proceed in joining the class bringing ADA claims against their former employer. The plaintiffs alleged the waivers were invalid under the Older Workers Benefit Protection Act (“OWBPA”) because they misrepresented the number of employees selected for termination, failed to accurately list those selected for termination, were not written in a manner reasonably calculated to be understood by the average employee, and did not disclose the criterion used to select employees for termination. The plaintiffs also claimed they were not given the requisite 45 days to decide whether to sign. If the plaintiffs’ allegations were true, the waivers would be invalid; therefore the court denied the employer’s motion to dismiss based on valid waivers. The fact that nineteen employees did not file claims with the EEOC also was not a bar. Those employees may properly “piggyback” on the timely filed charges of two other plaintiffs who alleged classwide discrimination. Such charges gave sufficient notice to the employer of the classwide discrimination claims alleged in the complaint.

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01 | 14 | 2009    Posted By Weintraub Firm

The Changing Face of the NLRB

Traditional labor law in this country has essentially been a non-issue over the past decade. Today unions represent 12% of all American workers (7.4% in the private sector), down from a high of 35% in 1955. However, thanks to the recent dramatic shifts in Washington, this trend may soon be changing. Labor law in the private sector is governed, in large part, by the National Labor Relations Act (“NLRA”). The NLRA guarantees the right of employees to organize and to bargain collectively with their employers, and to engage in other protected concerted activity with or without a union, or to refrain from all such activity. The National Labor Relations Board (“NLRB”) is is an independent federal agency created by Congress to administer the NLRA. The NLRB, which normally has five sitting members, currently has only two current members. The Democrats have refused to confirm any of President Bush’s appointees, hoping that a Democrat presidential victory will lead to more favorable appointments. As such, President-elect Obama, who is openly pro-labor, will be called upon to appoint three members immediately, and will be able to influence significantly the Board’s agenda and decision making. The new Board is likely to revisit and overturn a number of important rulings. More importantly, the Board will play an important role in interpreting any new legislation that Congress might pass amending the NLRA, including the Employee Free Choice Act.

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01 | 14 | 2009    Posted By Weintraub Firm

ADA Amendments Act

On September 25, 2008, the ADA Amendments Act of 2008 was signed into law by President Bush. It becomes effective January 1, 2009. This new law is designed to undo several Supreme Court decisions and thereby broaden the number of individuals who can seek protection under the Americans with Disabilities Act (ADA). The amendments include the following highlights:

a. Employers must assess whether an individual is disabled without considering corrective measures, i.e. medical supplies or equipment (except for glasses or contacts); use of assistive technology; auxiliary aids or services; and learned behavioral or adaptive neurological modifications.

b. An impairment that is episodic or in remission constitutes a disability if it would substantially limit a major life activity while active.

c. An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

d. The list of "major life activities" is expanded to include, but is not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working; as well as “major bodily functions” such as the function of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

e. The "regarded as disabled" standard is lowered to prohibit an action prohibited under the ADA because of an actual or perceived physical or mental impairment, whether or not such impairment is perceived to limit, or actually limits, a major life activity. The “regarded as disabled” standard does not apply to impairments that are transitory and minor. A “transitory” impairment is one with an actual or expected duration of 6 months or less.

f. Employers may not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the employer, is known to be related to the position and is consistent with business necessity.

Because the ADA Amendment Act brings the ADA more in line with California’s disability laws under the Fair Employment and Housing Act (FEHA), California employers can expect to experience few changes in their administration of disability accommodation policies. Employers should continue to comply with the requirements of FEHA.
 

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