This is Utah SHRM Legal-mail no. 2009-2 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM). This update is best viewed in a HTML format. Please reply with your name and "UNSUBSCRIBE" in the subject field if you no longer wish to receive this message.

Federal Legislative Action Alert

YOUR ASSISTANCE IS NEEDED!  Last week, the newly-sworn in U.S. House of Representatives passed the so-called Paycheck Fairness Act by a 256-163 vote and the Ledbetter Fair Pay Act by a 247-171 vote.  Now the U.S. Senate may rush to vote on both the Ledbetter Fair Pay Act and the Paycheck Fairness Act this week!

Despite the good intentions of these bills to address wage discrimination, SHRM has opposed both bills because they would restrict HR professionals’ management of legitimate pay systems and expose employers to unprecedented liability.

Thank you to thousands of you who wrote letters to the House of Representatives last week.  Please use our prewritten letters below to contact your TWO U.S. senators and share your views on these bills today!

Background

Ledbetter Fair Pay Act (H.R. 11) – The Ledbetter legislation is a congressional response to the U.S. Supreme Court’s May 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co.  In that case, the Court held that the 300-day time limit for filing a charge Title VII of the Civil Rights Act starts after the alleged unlawful employment action, and does not re-start a new upon receipt of each successive paycheck.

The Ledbetter Fair Pay Act would effectively eliminate the uniform statue of limitations on pay discrimination claims.  Instead, the time clock for filing such a charge with the EEOC would restart each time an employee receives a paycheck.  The bill would also re-start the time clock when a retiree receives an annuity check from an employer, and would thus keep employers liable to a discrimination claim potentially decades after an alleged act of misconduct.  The legislation would amend the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act.

Paycheck Fairness Act (H.R. 12) – The Paycheck Fairness Act would amend the Equal Pay Act of 1963, which requires that jobs requiring comparable functions, skills, effort and responsibility in similar working conditions must compensate equally.  Some stakeholders contend that the Equal Pay Act is not sufficient to remedy wage discrimination.  While wage differentials remains an important workplace issue, debate continues over whether the differential is attributable to discrimination or the result of legitimate pay practices such as education, skill, experience, or tenure.

The Paycheck Fairness Act would limit an employer’s ability to justify paying different salaries to workers based in different locations with different costs of living.  Second, the bill would lift the caps on compensatory or punitive damages for which employers would be liable, in addition to current liability for back pay.  These damage penalties would apply to even unintentional pay disparities.

SHRM’s Position

SHRM adamantly opposes discrimination based on gender and believes any intentional misconduct against an employee should be promptly addressed and resolved.  We also recognize that some court decisions have narrowed the scope of pay discrimination protections.  As a result, we believe that it is appropriate and necessary for Congress to re-examine pay discrimination laws to determine if changes may be needed to restore protection under the law.  However, SHRM opposes any efforts to eliminate the statute of limitations for filing claims or to prohibit legitimate employer pay practices.

SHRM opposes the following provisions of the Paycheck Fairness Act:

Ø    Promotes class action lawsuits against employers—The Paycheck Fairness Act would require employees to “opt-out” of a gender discrimination class action, rather than the current law requirement that employees must give their written consent to join a class action.  By automatically including all employees as part of a class, the bill would dramatically increase the number of plaintiffs in class actions.

Ø    Exposes employers to unlimited damages—The Paycheck bill would create unlimited punitive damage awards for which employers would be liable, in addition to current liability for back pay.  The potential for such penalties would likely compel employers to settle more wage discrimination claims, even in cases where no discrimination occurred.

Ø    Restricts legitimate pay practices—The Paycheck bill would make it significantly more difficult for an HR professional to use legitimate factors, such as education, training, or experience, as a component of an organization’s pay system.  Moreover, the legislation may altogether prohibit an employer’s use of local market rates and prior salary history in setting compensation.

SHRM opposes the following provisions of the Ledbetter Fair Pay Act:

    * Fundamentally changes statute of limitations—By making the time clock start over upon the issuance of each successive paycheck or retirement benefit, the Ledbetter bill would allow individuals to bring discrimination claims years or even decades after an alleged act of discrimination occurred.  Employers would be liable for previous management decisions for which there may be no available witnesses or records.

    * Expands plaintiff field—The Ledbetter bill would allow not just an employee who was discriminated against, but other individuals who were “affected” by an act of pay discrimination to file claims.  The legislation may allow family members, including spouses and children, and potentially others to become plaintiffs in suits over an employee’s pay—even after the employee was deceased.

Action Needed

We have prepared TWO separate letters for you to send to both of your U.S. senators in Washington today!  To write your elected official using HRVoice, follow these steps:

1)   Log onto HR Voice by clicking HERE and enter your member number and last name.

2)   Under the heading “Take Immediate Action on these Hot Issues,” click on:

·        “OPPOSE the Ledbetter Fair Pay Act” and

·        “OPPOSE the Paycheck Fairness Act”

3)   Feel free to personalize your letters by including specific information about the organization you work for, your experiences in the workplace, and why this legislation would negatively impact your organization.  Just place your cursor on the text of the letter where you would like to edit.

Note:  Since the 111th Congress convened on January 6, there is a possibility that newly-elected officials have not been assigned e-mail addresses as yet.  Should this be the case with your elected officials, please check back in a day or so to see if their e-mail address has been activated.  SHRM apologizes for this inconvenience.

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Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com
     Jones Waldo
Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

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