2009 Pending and Passed Legislation Affecting Employees

2009- Lilly Ledbetter Act, Pub. L. No. 111-2: PASSED

In 2007 the United States Supreme Court overturned longstanding case law by holding that the plaintiff, Lilly Ledbetter, was foreclosed from suing for discriminatory practices that were reflected each time she received a paycheck from the discriminating employer. The Court ruled that the statute of limitations was not triggered with each act of receiving a discriminatory paycheck, but rather, when the original act (e.g., failure to promote, or paying a lower wage) occurred. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). This contradicted long-existing precedent.

As it has done several times in the past, Congress stepped in with a bi-partisan bill, the "Ledbetter Act," which passed both houses of Congress and was signed into law on January 29, 2009 by President Barack Obama. This was due in no small part to the tireless efforts of employee advocates, such as the National Employment Lawyers Association, and many other groups. The new law (part of "Title VII," 42 U.S.C. 2000-e, et seq.), overrides the Supreme Court’s Ruling in Ledbetter.

The new law resets the statute of limitations for filing a wage claim each time an employee receives a paycheck, benefits, or "other compensation," allowing an employee to sue for alleged discrimination based on when s/he is impacted rather than when the discriminatory decision actually occurred. The reasoning is that the act of discriminatory pay clearly perpetuates the discrimination. The law also applies not only to gender, but also race, age, national origin, religion, and disability. It applies retroactively to May 27, 2007.

The Act prohibits discriminatory compensation employment decisions as well as "other practices" that affect compensation. The Act is broadly worded to include arguably include the full gamut of entitlements that an employer's discriminatory decision could impact, including health benefits, paid leave, bonuses, stock options, and pension payments, though the Act clarifies that it will not allow employees to rely on post-retirement pension payments to stretch the limitations period beyond the end of the employment relationship. Specifically, the Act is not intended to "change current law treatment of when pension distributions are considered paid." So, it maintains the existing rule that "pension distributions are considered paid upon entering retirement and not upon the issuance of each annuity check." See H.R. Rep. No. 110-237, at 18 (2007), citing Florida v. Long, 487 U.S. 223, 239 (1988); Maki v. Allete, Inc., 383 F.3d 740, 744 (8th Cir. 2004).

Finally, the Act does not prevent an employer from asserting that an employee's claim is time-barred under the equitable doctrines of waiver, estoppel, or laches (i.e., waiting too long to assert one’s rights). 155 Cong. Rec. S754 (daily ed. Jan. 22, 2009) (statement of Senator Mikulski).

2009 – ARBITRATION FAIRNESS ACT – Pending

In early February 2009, the bi-partisan bill of the Arbitration Fairness Act was introduced. If passed, the bill would eliminate or greatly reduce mandatory arbitration in a variety of settings, including employment, which robs employees and consumers of their legal rights to a court and/or a jury, and instead relegates them to the world of arbitrators hired and generally paid by the defending business. This, too, if passed, would overrule current Supreme Court precedent. For more information on the Act, please see www.nela.org and for information about how unfairly mandatory arbitration can be, please see "Articles," "Binding Mandatory Arbitration": the Return to 'Master' and 'Servant'"