Category Archives: Fair pay

What’s up with the Lily Ledbetter Fair Pay Act?

Official 2007 portrait of U.S.
Image via Wikipedia

Yesterday, the Senate passed a version of the Lily Ledbetter Fair Pay Act (61 Yeas to 36 Nays), which would change employment discrimination law to state that it is unlawful to adopt a discriminatory compensation decision or practice; to subject an employee to a discriminatory compensation practice or decision; or to pay an employee under a discriminatory compensation decision or practice.

A key provision of the Act is that each discriminatory payment would be unlawful.  That provision is key because it is meant to remedy the U.S. Supreme Court‘s decision that each discriminatory payment is not unlawful – instead, an employee would have to file a claim against his or her employer within 180 days after the very first discriminatory payment or else that claim would be barred.  With that decision, the U.S. Supreme Court made fair pay claims extremely difficult to file on time.

How did your Senator vote?

On January 9, the House had passed a slightly different version of the Lily Ledbetter Fair Pay Act (those vote results are here).  Since the House and Senate versions are different, the House will have to re-visit the issue. President Obama has said that he supports the legislation.

Some of the earlier House debate helps to explain the issues raised by the U.S. Supreme Court decision.  Here’s what Rep. Rush D. Holt of New Jersey, a supporter and co-sponsor of the bill, had to say about it:

According to Justice Samuel Alito, who wrote the flawed decision, when Ms. Ledbetter failed to file a discrimination case within the statutorily provided 180 days from the initial decision to pay her less than her male colleagues, she was barred from filing a complaint and no relief was available.  Despite documenting the sex based evaluation system Goodyear managers used, Lilly Ledbetter was denied justice and the rights afforded to her under the Civil Rights Act.

Justice Alito’s opinion runs contrary to decades of civil rights law, and the Lilly Ledbetter Fair Act would restore the law as it was prior to the Court’s ill considered decision.  This bill would make it clear that when it comes to discriminatory pay, the protections of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Rehabilitation Act extend not only to these discriminatory pay decisions and practices but to every paycheck that results from those pay decisions and practices.

The nut of the opposition appears to be, hey, we don’t like discrimination either and it’s too bad the statute of limitations ran out, but we don’t want you to help people sue employers.  Here’s Rep. Todd Tiahrt of Kansas opposing the bill:

Pay discrimination is not a partisan issue. Pay discrimination strikes at the heart of the American Dream. For more than 40 years, the 1963 Equal Pay Act and Title VII of the 1964 Civil Rights Act has made it illegal for employers to determine an employee’s pay scale based on his or her gender. I wholeheartedly agree and support these laws. Every American should be able to work hard, and make a living for his or her family. We can not tolerate gender discrimination in the workplace.

This legislation, however, is about bad politics rather than good policy. H.R. 11 was supposedly written to remedy a sad situation for one person–Lilly Ledbetter. She was apparently paid significantly less than her counterparts at Goodyear Tire Company during her tenure there. Decades later Ms. Ledbetter filed a claim of discrimination. Taking her claim through the courts, the U.S. Supreme Court ruled on May 29, 2007 that the statute of limitations had unfortunately run out.

Fact is, pay discrimination is not just a “sad situation for one person”.  The gender wage gap is a pervasive problem requiring an effective remedy. And wage gaps based on discriminatory factors other than gender must also be addressed. To pretend that employers don’t ever try to pay someone less just because of their gender, race, national origin, etc., or that it’s a rare occurrence, is to deny reality.

Despite the fact that those who oppose the Lily Ledbetter Fair Pay Act want everyone to believe that the Act would open the floodgates of litigation against poor, defenseless employers, this is just not the case – wage claims are still difficult to identify and to prove.  And if an employer wants to avoid being on the wrong side of litigation, it should adopt sensible, fair policies that largely involve treating employees with basic respect. Prematurely killing off a potentially effective remedy to unlawful discrimination is not the answer.

Reblog this post [with Zemanta]

Leave a comment

Filed under Employment discrimination, Fair pay

Act in favor of fair pay

Interested in the issue of fair pay for women but don’t know what to do?  Sign the petition over at the “Out of the Way of Fair Pay” campaign, the result of a collaboration between I Am Progress (part of the Center for American Progress Action Fund) and MomsRising.org.

The petition, which will be sent to the U.S. Chamber of Commerce, is in support of the Lily Ledbetter Fair Pay Act and the Paycheck Fairness Act, both of which the Chamber opposes.

Here’s the link to the petition: Out of the Way of Fair Pay

Reblog this post [with Zemanta]

Leave a comment

Filed under Employment discrimination, Fair pay

Restaurant employers, this is how serious some employment violations can get

Andrew Cuomo
Image via Wikipedia

Today, the New York Times reports about the arrests of the two owners of the Saigon Grill in New York City. New York Attorney General Andrew M. Cuomo announced the arrests yesterday.

New York’s AG’s office is bringing a staggering number of criminal charges – over 400, according to the New York Times – against the two, who are a husband-and-wife couple.

A judge had already ordered the restaurant to pay its workers $4.6 million as part of a prior civil suit for violations of wage-and-hour laws, the New York Times reports.

These new criminal charges are related to the subject of the civil suit – the restaurant’s mistreatment of its workers. Each of the two is charged with 151 counts of falsifying business records, 46 counts of offering a false instrument for filing, and 45 counts of tampering with physical evidence. These counts come from the allegation that the couple provided the New York Department of Labor with fake payroll records during its investigation of minimum wage violations.

And then there are the counts for failure to pay wages, failure to keep records, and receipt of kickback wages. These counts stem from the couple’s alleged failure to pay minimum wages for 4 years to employees who were working 70 to 80 hours per week.

The AG’s office also alleges that the couple threatened to end delivery service at its restaurants after some of its delivery workers decided to file the civil suit mentioned earlier, leading to charges of witness tampering, coercion, and retaliation.

Finally, the AG’s office complains that the restaurant owners paid some employees off the books and failed to report their employment to New York State‘s unemployment insurance fund. The AG’s office states that the owners failed to report the employment of 65 employees, effectively cheating the New York State unemployment insurance fund and tax funds.

It’ll be interesting to follow this case through trial and see what happens. Restaurant employers, beware.

Reblog this post [with Zemanta]

Leave a comment

Filed under Fair pay, unemployment

How the lack of fair pay affects us all

Floating money

Are you paid fairly?

A 2007 U.S. Supreme Court case that you may have heard of, Ledbetter v. Goodyear, says that a person claiming pay discrimination must file their EEOC discrimination claim within 180 days after receiving their first discriminatory paycheck. The case has been widely criticized – see, for example: The American Prospect and Pundit Mom.

The issue of fair pay arose in the current presidential campaign – see Huffington Post and Newsday. Criticism of McCain’s position can be found at MOMocrats and Jezebel. A bill was introduced to remedy the problem the U.S. Supreme Court created: HR 2831. The bill’s lack of progress was reported on in the Washington Post. And there was a speech by Lily Ledbetter herself at the Democratic National Convention.

Now there is an interesting installment from the academic world (also blogged about at Women’s Studies Liblog). A recent article in the Harvard Civil Rights-Civil Liberties Law Review by Tristin K. Green entitled, “Insular Individualism: Employment Discrimination Law After Ledbetter v. Goodyear,” explores the idea that the Ledbetter case is part of “the belief that discrimination can be reduced to the action of an individual decisionmaker (or group of decisionmakers) isolated from the work environment and the employer.”

Prof. Green’s argument is that the Ledbetter case is leading a trend toward stiffer evidentiary requirements for employees in employment discrimination cases. There will be less evidence that employees are allowed to use to show discrimination, and vicarious liability for employers will be whittled away.

Part of the larger point of the article is that the attempted Congressional remedy of HR 2831 will not be enough to protect against further erosion of employee rights because its scope is too narrow. Litigants should emphasize the role of the larger organization in setting the stage for discrimination to counter the argument that the discrimination is only the responsibility of one or more errant individuals who are somehow not acting as part of the workplace. Prof. Green’s argument goes beyond the scope of equal pay, reaching all areas of employment discrimination law. It is worth exploring.

1 Comment

Filed under Fair pay