What Ledbetter Has Wrought

Posted 11:34 AM by Michael Fox

The key section of the Act provides as follows:

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.

The reason for highlighting the phrase “other practice” is because plaintiffs are already successfully arguing that the Act reaches all types of employment decisions that affect pay beyond a simple decision on wages, including demotions and promotions.

And to further make his point, here are two cases he has found in the first week after the bill was signed:

Bush v. Orange County Corrections Dept., No. 6:07-cv-588-Orl, 2009 WL 248230 (M.D. Fla. Feb. 02, 2009) at *2. The court held that plaintiffs could timely challenge demotions, which resulted in reductions in pay, that occurred 16 years before plaintiffs filed their EEOC charges. The Court noted the irony of the timing of the Act’s passage: “Thus, while [defendant’s] untimeliness argument was valid prior to last week, with the passage of the Act Plaintiffs' Title VII claims are no longer administratively barred.”

Gilmore v. Macy’s Retail Holdings, No. 06-3020 (D.N.J. Feb. 4, 2009). The Court held that the Ledbetter Fair Pay Act applies to an allegedly discriminatory promotion decision, where the promotion would have been to a higher paying job.

Fasten your seat belts.

Update 2.12.09: I noticed the ABA Journal has picked this up, and also it is running at least for now on the front page of law.com, so a higher number of hits today than usual. In light of that, I should make clear that some loose wording on my part has actually not made clear what actually happened in the two cited cases.

Rather than plaintiffs making the arguments, in both cases the issue was raised by the Court on its own initiative. In both cases, it ultimately didn't matter as the Court ruled on the merits in favor of the employer, still the import of the Ledbetter Act seemed clear to these two judges.

Ross Runkel, who always provides a voice of reason thinks the rationale is wrong (and my concern premature) and explains why in, Ledbetter Act apply to demotions and promotions? I hope Ross is right, but even if he is, it points out one of the dangers of any legislation. Until it is sorted out, it makes things unclear as to what the law is, which always leads to more litigation and more cost. I do not know of any way to avoid that with a new piece of legislation, but that cost is certainly one that should be factored in when considering the alleged benefit of any legislation.

2nd Update 2.12.09: Jeff Siegel of Boston's Morgan, Brown & Joy who represented Macy's in the New Jersey case was kind enough to offer more insight, as well as a gentle correction, about that case:

I represented Macy's in the Gilmore matter in which the Court, sua sponte, applied Ledbetter, and argued the Ledbetter application before Judge Simandle. Your analysis is slightly mistaken - the Court did not rely on the promotion decision (which was disposed of at summary judgment). Rather, the Court found a bonus plan that had been in place was subject to the Ledbetter amendments. Notably, one of the bigger issues concerned whether emotional distress damages would be available, and what period the jury should consider when deciding to award (or not award) such damages based on conduct outside of the 300 day filing period. After considering the issue, the Court agreed that emotional distress would only be available back to the limits of the 300 days (or, in our case, the NJLAD) and not further. The jury returned a defense verdict, finding no discrimination occurred, so these issues will not be flushed out further.

Labels: discrimination

Comments:

The AT&T employees' brief is disconcerting. It cites a lot of legislative history suggesting your broad interpretation of the LLFPA is correct, and Prof. Runkel's narrow reading is not.

# posted by  Anonymous : 5:37 PM

 

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Professor Runkel Thinks Solis Is a Goner

Posted 8:38 PM by Michael Fox

Ross Runkel, a long time blogger and law professor has made his Prediction: Taxes will scuttle Solis nomination for Labor Secretary. I still think she will be confirmed, but I am much less sure of that than I was in January when I was making speeches around the state about what's going on in Washington. Then I was predicting that there was no question but that she would be confirmed.

For the record, Ross thinks it would be bad if she is dropped.

Labels: political

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The Current Status of the Restatement of Employment Law

Posted 7:41 PM by Michael Fox

A post by Richard Bales on a recent conference at Hastings College of law on the Proposed Restatement of Employment Law is not particularly encouraging about how it is going. This would be the Third Restatement of Employment Law and is being done (as are all Restatements) under the auspices of the American Law Institute. There are a large number of scholars, practitioners and a few judges (including Texas Supreme Court Justice Scott Brister) involved in the effort, see the list here.

The Restatement has had a rocky road, with the 2nd draft being opposed by 66 labor and employment law professors. See an earlier post at Workplace Prof Blog by Paul Secunda, ALI and the Pending Restatement of Employment Law. Although presented for a vote to the membership meeting at the May 2008 session, after the protest the ALI reported that "there was insufficient time to discuss the entire draft and no final vote on the draft was taken."

One of the organizers of the Conference on the 3rd draft was The Labor Law Group, a group I had never heard of. It turns out that it is a group of labor and employment law professors. The initial purpose when it was formed in 1946 was "the development of better books and materials for the instruction of law students on labor law." It's not clear from the website what the criteria for joining is, so not sure if it is oriented around a particular view of the law or some other principle.

That might be helpful in evaluating Richard's report of the view of the Restatement drafts as discussed at the conference, which certainly doesn't sound very positive:

Two themes quickly emerged. First, substantively, there are parts of the proposed Restatement -- especially in the Comments -- that slant heavily toward employers, though there are parts of the proposed Restatement as well that are on the progressive side. Second, the scholarship behind the proposed Restatement is extraordinarily sloppy -- cases are mis-cited, facts are wrong, holdings are wrong, and cases do not support the propositions for which they are cited. For this reason alone, ALI should put a hold on the proposed Restatement until it can be cleaned up. The proposed Restatement, if passed in its present form, would be an embarrassment to the American Law Institute and would call into questions generally its commitment to accurate scholarship.

To me the second point, which not having read the drafts, I have no opinion on, is the more important. As to the first, I have to chuckle somewhat seeing the two view points characterized as "employer" vs. "progressive." Not sure what that means exactly, but fairly certain that "employer oriented" is not viewed as a positive.

It doesn't appear that this is a restatement that is soon to be issued because the ALI's page on the project concludes that "This project is likely to last several more years before completion."

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Comments:

Thank you for letting me know the employment law and rights. It is quite helpful.

# posted by  Katie : 12:03 AM

 

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Thursday, February 05, 2009

Because It's Where the Money Is

Posted 11:09 AM by Michael Fox

Although it has never been my intent for this to be a politically focused blog, if you are a relatively new reader, you might not know that. While I certainly don't intend to ignore the rest of the labor and employment world, the fact is that much of what could be most important for employers in the long term is going to be happening in Washington during this session of Congress.

I feel basically like Willie Sutton who famously responded to a question by the FBI as to why he robbed banks by saying "because that's where the money is." For the foreseeable future, if you are focusing on the world of labor and employment law, Washington D.C. is where the money is.

If you share that feeling you should check out a seminar sponsored by a number of large trade associations and my firm, Ogletree Deakins, The New Administration and New Congress: Guaranteed Changes for Labor and Employment Law which will be held in DC on February 26-27. You can check out the agenda and the impressive list of speakers, including elected officials and Congressional staffers here. The trade groups co-sponsoring the seminar are:

U.S. Chamber of Commerce
The Business Roundtable
National Association of Manufacturers
National Federation of Independent Business
Associated General Contractors of America
American Hotel and Lodging Association
American Bakers Association
National Association of Waterfront Employers
National Roofing Contractors Association
Associated Builders and Contractors
Retail Industry Leaders Association
International Franchise Association
National Retail Federation
National Council of Chain Restaurants
Utility Line Clearance Coalition
Food Marketing Institute
Printing Industries of America

I am on a panel at the end of the first day, so if you should join us be sure to come by and introduce yourself.

Labels: political

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EFCA Introduction "Soon", Solis Committee Vote Today

Posted 10:44 AM by Michael Fox

Representative George Miller did not introduce the EFCA yesterday, but promised to do so "soon." For a good history of how the bill fared last Congress and some background on the coming fight, see The Hill's story, Dems to introduce controversial card check bill 'soon'.

Secretary of Labor Designate Hilda Solis finally gets a committee vote today. Her nomination has been stalled by an unnamed Republican Senator. Although the consensus still seems to be that she will be confirmed, there has been some question about her role with American Rights at Work, a labor advocacy group which has been lobbying for the EFCA. Representative Solis has been a board member and treasurer of the group.

The problem arises because it engages in lobbying activities and it is illegal for a sitting member of Congress to lobby. Apparently the House rules allow a member to be on the board of a non-profit that lobbies, as long as they don't take part. The fact that she is Treasurer of the organization makes it a little more complicated, but maybe not enough. Mark Ambinder of the Atlantic has a fairly concise description of the issue here.

One reason this may not be enough to derail her nomination is that unlike the tax problems of potential cabinet members that have come to light, there is a lot more "transparency," to use one of the new buzzwords as her membership on the Board of the the organization has been well known.

Update, 03:41 PM: No vote today. USA Today stories about tax liens on her husband's business are the latest. See Solis Vote Postponed After Husband's Tax Liens Revealed at TPM.

Labels: political

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Tuesday, February 03, 2009

EFCA Petitions To Be Delivered and So Is Scholar's Critique

Posted 3:25 PM by Michael Fox

More than 1.5 million petitions seeking passage of the EFCA will be delivered to members of Congress tomorrow, Rally Tomorrow for Employee Free Choice. It is also expected that the bill will be formally introduced into the House of Representatives.

One interesting aspect to note, will it have fewer sponsors than it did in the last session of Congress? Last time there were 230; given the union push and more Democrats in the House you would expect there would be more this time.

The difference? The business community has now focused on the reality of the legislation and so another voice is being heard. Perhaps more importantly, it is not as free a vote as before. As long as Bush was in the White House, there was little danger that the EFCA in any form would become law. That has changed and so a vote for it is one that the Representative may have to own up to in the future.

Even so, it won't change the outcome in the House, it will pass and possibly even in the near future. The real battle is in the Senate and the same rule, no more "free" votes, will be even more applicable there.

And to add grist to the fight, Richard Epstein, a University of Chicago law professor has just issued his The Case Against the Employee Free Choice Act. (pdf) It was sponsored in part by industry sources, from the introduction:

Finally, I have received financial support from the Alliance to Save Main Street Jobs (which is comprised of the HR Policy Association (the leader of the Alliance), the Retail Industry Leaders Association, the Real Estate Roundtable, the American Hotel and Lodging Association, the U.S. Chamber of Commerce, the International Council of Shopping Centers and the Associated Builders and Contractors).

so it will no doubt be panned for that point alone. Frankly, it is going to be hard to find many who write on this topic that don't have some dog in the hunt, so it would be nice to see his points argued on the merits.

Labels: political

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