President to Sign Ledbetter Fair Pay Act Today

No doubt emblematic of his entire time in office, President Barack Obama will sign his first piece of legislation today--a labor law that overturns a Bush-era Supreme Court decision.

Lilly Ledbetter, who was the subject of that Supreme Court ruling, will be there when Obama inks the Lilly Ledbetter Fair Pay Act into law.

The legislation reverses the court's decision in the Ledbetter case that the 180-day statute of limitations on pay discrimination cases starts ticking when the initial decision is made to pay unfairly. The Fair Pay Act amends the 1964 Civil Rights Act and mandates that the statute starts ticking again every time a paycheck is issued to the victim.

(Pay discrimination is defined as an employee's being paid less for the substantially same job and same set of job responsibilities, figuring in length of service, etc., based on age, race, gender and factors besides experience.)

Opponents fear that this will just open up the spigot for lawyers to march an endless stream of employees into court and win two years of backwardly adjusted pay.

They're probably right.

N.B.: Catch this, the law is worded to "take effect as if enacted on May 28, 2007." This is curious for a couple of reasons. First, I believe there's a Constitutional ban on ex post facto laws (backdated laws), and this date is one day before the Supreme Court heard the Ledbetter case. Evidently, it's been so written to enable Lilly to go back to the Supreme Court and reopen her case. If so, I hope the court rules that the start date is unconstitutional.

Lilly Ledbetter Gets Her Revenge on Top Court

I'm not sure how the Lilly Ledbetter Fair Pay Act, which zoomed through the Senate last night and is now on its way to the House for reconciliation, will benefit the law's namesake, but it sure must be sweet to pull one over the head of Supreme Court justices. Five of the latter ruled in 2007 that Ms. Ledbetter's claim for pay discrimination against Goodyear, though just, was filed beyond the statute of limitations and thus invalid.

Her friends in the Democratic party rushed to her aid with the aforementioned bill. It never got out of the Senate the past two years when the place had more Republicans and the bill faced a sure Bushian swat-back, but the times they are a-changin'. Now the Dems are within one vote of being filibuster proof, and indeed for this bill they invoked cloture (ending any filibuster) by the comfortable margin of 61-36. (Maine's Olympia Snowe, for one, is a Republican in name only.)

The eponymous law now mandates that the statute of limitations (180 or 300 days, depending) begins anew each time a paycheck is issued or, ambiguously, "when an individual is affected by application of a discriminatory compensation decision."

Though Ms. Ledbetter is now retired and not receiving paychecks, depending on how a judge might interpret "affected by," she could well be back in court looking for her lost wages (men in similar positions were paid more, basically). Goodyear should just write a check and end all the publicity that led to this new law in the first place, but we'll see.

Lilly Ledbetter and her legislation are now poised to enrich trial lawyers throughout the country (they being one of the two biggest donors, along with organized labor, to the Democrats and Barack Obama in the last election), while sending businesses into a funk and whetting the legal appetites of many a female employee. (One blog post I read predicted that this would lead to companies' hiring only, or mainly, men. Not sure that would cut it legally, though.)

So, to borrow an old Klingon saying, "Revenge is a dish best served with the force of law."

(Employers, I've found a convenient source for mastering all the discrimination and other laws and regulations you face. Get a copy of Personnel Concepts' Equal Employment Opportunity Compliance Program.)

Law of Unintended Consequences: Fair Pay Acts

I just read an interesting analysis of--and commentary on--the two fair pay laws now sailing through Congress: The Paycheck Fairness Act and the Lilly Ledbetter Fair Pay Act.

Maggie Thurber on her ThurbersThoughts blog, after discussing and analyzing the two measures, concludes that they may well put women at a competitive disadvantage because employers might conclude that it's legally safer just to hire men.

Someone then posted a comment that, if employers just want to hire women to pay them less than men, then why hire men in the first place? Just hire women. S/he's got a point--there's no law enabling men to sue if women are being paid more for the same work.

Anyway, Ms. Thurber is a radio talk show host, I believe, as well as being a attorney by education. I thought she did an excellent job in deconstructing the consequences, intended and unintended, of these two laws, which in my opinion will end up gumming up working conditions and landing employers in court much too frequently in battles Congress has set them up to lose.