Labor Law Guy

Dems Launch Effort Toward Pay Parity

Posted in Random Musings by laborlawguy on January 8, 2009

House Speaker Nancy Pelosi, D.-Calif., indicated today that two labor bills are being put on the fast track for passage. Both deal with ensuring women are paid the same as men for doing the same jobs, all other factors being equal.

The Lilly Ledbetter Fair Pay Act is named for a litigant who lost her case for fair pay in 2007. The Supreme Court, though agreeing Ms. Ledbetter was probably discriminated against, offered what labor advocates called a too-narrow definition of the statute of limitations for filing a discrimination charge. The court determined that the statute began ticking once the decision had been made to pay her less than her male counterparts, while her lawyers argued that the statute remained open so long as the discriminatory wages were being paid.

So, the eponymous Lilly Ledbetter Fair Pay Act simply proclaims that the statue of limitations begins anew on each payday so long as the unequal pay is still taking place. This, of course, could open up employers to many new EEOC filings and legal actions.

The conjoining Paycheck Fairness Act, co-sponsored by Hillary Clinton when it was introduced, also redefines provisions of the Equal Pay Act of 1963. Under the earlier act, employers could avoid liability if they could show that the uneqal pay was based on factors other than sex.

The Paycheck Fairness Act raises the bar on that other-than-sex defense by demanding the mitigating factors be shown to be job-related or serving a legitimate business interest.

Needless to say, but the upshot of these two measures would be to open up the administrative and legal process in fair pay claims and make it easier for filers to prevail over employers.

I personally doubt that the Republicans can muster a filibuster on either of these bills, first because they have no margin for error and second because they’re no doubt saving their ammunition for the Employee Free Choice Act (EFCA), which they call the card-check bill.

More on EFCA as it moves along the legislative process.

Meanwhile, if you’re an employer, you may want to delve into both the Employee Communication and Compliance Handbook and the Employee Handbook and Personnel Policies Manual from Personnel Concepts to avoid unwanted legal hassles.

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