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President Obama Signs Ledbetter Fair Pay Act Making it Easier For Pay Discrimination Victims To Sue

Overview of The Lilly Ledbetter Fair Pay Act of 2009 and Pay Discrimination

Victims of discriminatory unequal pay can who were previously unable to sue due to the expiration of time can now sue under the newly enacted Ledbetter Fair Pay Act signed. The new law allows victims of unequal pay 180 days from the date of receiving the last unequal paycheck to bring a complaint. In some instances, victims may have up to 300 days to bring the complaint.

The Ledbetter Act is significant because it reverses a 2007 U.S. Supreme Court ruling that victims of unequal pay must commence their complaint within 180 days of the employer’s discriminatory decision that resulted in the unequal pay. That Supreme Court ruling was harshly criticized because employees rarely know the date that employers make pay decision. Furthermore, victims of pay discrimination may not realize that their counterparts are paid more until after discovering it through their employer’s records or other employees receiving higher pay. Since pay and salary information are typically confidential, most employees do not discover the wage disparity until well after the 180 day period had already expired. Once that period expired, victims were left without remedy even if the discriminatory pay continued to the present and into the future.

Under the new Ledbetter Act, each unequal paycheck restarts the 180-day complaint filing deadline. As such, victims of pay discrimination now have 180 days from the date of the most recent discriminatory paycheck to sue regardless of when the discriminatory pay decision was made.

Ledbetter Fair Pay Act - Information For Employees
Those employees that previously could not sue because they did not learn of the discriminatory pay until after 180 days of the decision can sue now within 180 days of getting a paycheck reflecting the unequal pay. It no longer matters when the employer made the actual discriminatory pay decision which had been the focus of prior law. This assures employees that they may recover backpay for underpaid wages once they learn of the discriminatory pay and receive a paycheck that reflects such. However, employees who are no longer employed by the discriminating employer for more than 180 days may not benefit from the law because they would likely not have a last discriminatory paycheck issued within 180 days. Such employees should consult an attorney to determine whether the 300-day deadline applies to them.

Ledbetter Fair Pay Act - Information For Employers
Employers should thoroughly review their compensation policies and adjust them as appropriate. Since the Ledbetter Act permits employees to sue even where the pay decision was made several years ago possibly by different management, employers should conduct a careful review of the present compensation paid to employees in the same position to accurately account for any disparities and ensure that such is justified by objective factors as well as employee experience and performance data.

Furthermore, a statistical analysis would assist in determining that no class of employees tend to receive lower wages than others in the same position. An employee may need to adjust the compensation of employees in certain classes who tend to be paid less than others in the same positions. While these steps may not prevent discrimination charges from past pay decisions, an immediate adjustment in pay will prevent possible future complaints or charges given that employees have to complain within 180 or 300 days.
pdf [Review The Entire Lilly Ledbetter Act of 2009 Signed by President Obama January 29, 2009].

 

Immigration Prosecution-Employer Sentenced To 8 Mos for Employing Illegal Aliens

A Kentucky restaurant owner was sentenced to eight months in federal prison after pleading guilty to knowingly employing illegal aliens. He was previously the subject of an investigation conducted by U.S. Immigration and Customs Enforcement (ICE).

The restaurant owner plead guilty to knowingly employing at least 10 illegal aliens at his restaurant between November 2006 and November 2007 for commercial advantage and financial gain. He was also sentenced to serve three years of supervised release following his release from prison.

pdf [Review The ICE Memorandum About the Employer Jail Sentence].

 

PERM Labor Certification-DOL Issues New FAQs on Recruitment, Application, Filing Process

PERM Labor Certification FAQs - A January 9, 2009 publication by the U.S. Department of Labor (DOL) addresses Frequently Asked Questions about the PERM Labor Certification process. The lengthy publication, addresses all aspects of PERM registration and filings and deals specifically with the following topics among others:

  •  Employer Registration
  • Recruitment and Advertising Requirements 
  • Electronic Filing of ETA Form 9089
  • Department of Labor Contact Information 
  • Notice of Filing and Attestations
  • Prevailing Wage Determinations
  • Experience and Foreign Language Requirements
  • Recruitment Process for College and University Teachers
  • Substitution and Revocations

    Review the Entire U.S. DOL FAQs on the PERM Labor Certification Process http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#effdate1

Harassment And Discrimination Lawsuits May be Filed in Illinois State Courts Effective January 1, 2009

In the past, employees with charges of discrimination before the EEOC and Illinois Department of Human Rights only had two forums where they could bring a lawsuit – Federal Court or the Illinois Human Rights Commission. Now, individuals who have filed a charge of discrimination at the Illinois Department of Human Rights (IDHR) also have the option of filing a lawsuit in Illinois State Court. This will affect those filing lawsuits of sexual harassment, racial harassment, age discrimination as well as other forms of discrimination and harassment.

Who Can File State Court Lawsuit of Harassment or Discrimination

To be eligible to file an employment discrimination or harassment case in Illinois State Courts, a charge of discrimination or harassment must have been filed with the Illinois Department of Human Rights (IDHR) after January 1, 2008. One can then elect to file a complaint in State Court under the following circumstances:

  • The Illinois Department of Human Rights issues a finding of substantial evidence and one elects not to have the Department file a complaint with the Human Rights Commission.
  • The Illinois Department of Human Rights issues a finding of lack of substantial evidence.
  • The Illinois Department of Human Rights fails to issue a finding within 365 days of the charge being filed (or longer if an extension was signed by both parties).

Differences Between State Courts And Human Rights Commission

Unlike the Illinois Human Rights Commission, State Court allows a case to be heard and decided by a jury of your peers. At the Human Rights Commission it is up to an Administrative Law Judge to determine the outcome of particular case, including, the amount of damages that should be awarded. In State Court, however, this role may be undertaken by a Jury. This creates the possibility of larger awards in State Court than the Human Rights Commission. However, the discovery process is more extensive in State Court and the cost of prosecuting a claim in State Court may be higher than proceeding at the Human Rights Commission.

 

Disability/Handicap Discrimination - Expanded ADA Coverage Effective January 1, 2009

Recent amendments to the American with Disabilities Act that take effect January 1, 2009, were enacted to overturn erroneous Supreme Court decisions that had eroded the protections for people with disabilities under the ADA and reject the strict interpretation of a definition of a person with a disability. These amendments expand the coverage of the ADA such that more individuals with a disability will be afforded the Act’s protections.

History of ADA Amendments Act of 2008:

On September 25, 2008, the President signed the "ADA Amendments Act of 2008" (Public Law 110-325) into law to amend the Americans with Disabilities Act of 1990. The Act was introduced to combat four recent Supreme Court Opinions that had narrowed the coverage of the ADA to such an extent that individuals with epilepsy, muscular dystrophy, cancer, diabetes, and cerebral palsy were being denied the protections of the ADA. This narrow interpretation of the ADA lead to 97% of Plaintiff’s with ADA employment discrimination claims losing at trial in 2004. Congress realized that individuals for whom the ADA was originally designed to protect were being denied protection from employment discrimination and passed the ADA Amendement Act of 2008 to correct the problem.

Expanded Coverage of ADA under ADA Amendments Act of 2008:

The Act makes it clear that when determining whether or not an individual has a disability covered by the ADA, courts should interpret the definition of a disability to provide broad coverage consistent with the purposes of the Act to protect anyone who faces discrimination on the basis of disability.

The Amendments prohibit courts from considering mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability. For example, before the Amendments, a court could reject an individual’s claim if he was able to take medication or used device that reduced the impairment of his disability.

The Amendments state that impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

The Amendments also state that an impairment that limits one major life activity need not limit other major life activities in order to be a disability.

The Amendments clarify that the ADA covers people who experience discrimination based on a perception of impairment regardless of whether the individual has a disability.

The Amendments provides that reasonable accommodations are only required for individuals who can demonstrate they have an impairment that substantially limits a major life activity, or a record of such impairment. Accommodations need not be provided to an individual who is only "regarded as" having an impairment.

Effects of the Amendments:

The ADA Amendments Act of 2008 will provide more individuals who suffer from a disability the protections of the ADA. Individuals who were previously denied protection against employment discrimination who either have certain types of disabilities, who are able to take advantage of assistive technology to better quality of lives, and those whose conditions are in remission, can take full advantage of the protections of the ADA if their employer subjects them to discrimination on the basis of their disability.

 

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