Employment Law Update

Michael Patrick O’Brien
February 11, 2009 | COMMENTS

President Barack Obama has signed into law the Lilly Ledbetter Fair Pay Act, which expands the limitations period for bringing equal pay claims. The new law overturns a United States Supreme Court ruling that held a discrimination claim must be brought within 300 days of when a person allegedly is paid in a discriminatory way for the first time. With the new law in place, a new claim is possible after each new paycheck that allegedly violates the law and a prevailing plaintiff can go back and collect up to two years of pay. The new law also applies to a "person" affected by a discriminatory pay practice, thus possibly allowing non-employees (such as spouses of deceased employees) to bring claims.

The law applies retroactively to May 28, 2007. In January of 2009, the new United States House of Representatives passed the Paycheck Fairness Act (HR 12), which requires employers to provide a legitimate reason explaining payment of different salaries to men and women doing the same job. Because the Paycheck Fairness Act also seems likely to become law, employers must take steps now to try to minimize the risk of gender pay discrimination claims. One article from a national employment law firm offers this great (and free) advice:  (1) audit current pay practices to ensure you have good business reasons for pay disparities and that there are not pay disparities that appear to be based on gender; (2) develop specific, measurable guidelines for compensation decisions and apply them uniformly; (3) review pay decisions so managers do not have unfettered discretion; (4) preserve pay records for longer periods so you can prove the basis for your pay decisions; (5) train employees on your policies; and (6) periodically analyze pay data to determine if disparities exist based on gender or other protected classes and if so, eliminate them.

E-Verify Federal Contractor Rules Delayed, Again

The United States Department of Justice (DOJ) has delayed, again, the effective date of new rules requiring procurement federal contractors to use the federal E-Verify verification system for employees. DOJ says the regulations will now take effect on May 21, 2009, rather than on January 15, 2009 or February 20, 2009 (an earlier revised deadline). National SHRM, the Chamber of Commerce and other business groups have filed a lawsuit seeking to rescind the rule, thus resulting in the delay.

I-9 Form to Be Revised

The Department of Homeland Security has revised the I-9 form. Employees must use the new form beginning April 3, 2009 unless the Obama administration changes it during a pending review. The current edition of the form (dated "06/05/2007") will no longer be valid and its use will subject an employer to civil penalties. The new rule requires that unexpired documents be provided by employees and revises the list of acceptable documents for identification and employment authorization purposes. You can see the proposed new form here. and the government has promised to release a new handbook for using the new form.

Union Membership Increasing

The Washington Post reports that the percentage of American workers in unions has increased at a statistically significant rate for the first time in twenty-five years. In 2008, 12.4% of workers belonged to unions as opposed to 12.1% in 2007. Some 16.1% of workers now belong to unions in the United States. Union organizers hope to further increase their numbers with the passage of the Employee Free Choice Act (EFCA). The EFCA, now pending in Congress, would allow workers to form a union by signing authorization cards, rather than through a secret ballot election.

Independent Contractors in Focus

Congress is said to be considering legislation to enhance the Internal Revenue Service's ability to enforce rules on employee/independent contractor classifications. Meanwhile, a recent legal update article from national SHRM indicates litigation is increasing over misclassified workers. States seem to be interested in such classifications because misclassified workers may be a source of untapped tax revenue. If you have independent contractors, you should verify you know what IRS factors allow for a legitimate classification (see here) and consider having the agreement in a writing that actually and honestly reflects the factors used to establish independent contractor status.

The Employment Law Update is a legal and legislative update service sent out about twice a month to various members of the Utah League of Credit Unions HR Council. The author, Utah law attorney Michael Patrick O'Brien, is also the Legal and Legislative Director for Utah SHRM (Society for Human Resource Management). These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship. Contact O'Brien at 801-534-7315 or mobrien@joneswaldo.com or visit www.joneswaldo.com. Reprinted with permission.