There is a new federal minimum wage and with it comes a new minimum wage poster. All employers subject to the FLSA must display the poster. Fortunately, you need not go out and buy one. The Department of Labor has been kind enough to produce a printer-ready file of the required poster that you can download straight from their website.
You can get the poster here.
Legislation has been introduced in the U.S. House in response to the U.S. Supreme Court’s recent Ledbetter decision that said victims of pay discrimination lose their right to sue 180 days after the company’s initial pay decision is made, even if the employee does not learn of the discriminatory treatment for years.
Rep. George Miller is sponsoring the Lilly Ledbetter Fair Pay Act, which would expand the time in which a plaintiff has a legal right to sue for back pay.
The court last month ruled in a 5-4 decision that Ledbetter, according to existing statutes, had to have filed her claim within 180 days of the first evidence of discrimination — essentially the first paycheck in which she earned less than her male peers. Ledbetter didn’t learn of her pay differential until years later.
The bill proposed by Miller would give workers the right to file claims within 180 days of the issuance of any discriminatory paycheck.
Ross Runkle of Ross’ Employment Law Blog argues that the case was rightly decided for the reasons set forth in the majority’s opinion.
Paul Secunda, of Workplace Prof Blog, begs to differ, outlining his argument that the decision was wrongly decided here.
Interestingly, the two appear to agree on the relevant question: Whether, under existing precedent [the Morgan case], is pay discrimination a discrete act like a termination or failure to promote or is it more like a cumulative series of individual events like hostile work environment sexual harassment? If the former, cases like Ricks and Evans apply, and you can’t depend on stale claims to give life to connected, but not independently discriminatory, claims. If the latter, you only need one event to occur in the relevant time period, and if each discriminatorily-infected pay check is seen as constituting such an event, the claim may be still timely even though many of the pay decisions and paychecks fall outside the statutory period.
Ross Runkle responds that Secunda and Justice Ginsburg’s decent focus too much on the practical concern that it is unlikely a plaintiff will become aware that she is being discriminated against with regard to pay during the relatively short 180-day limitations period. He argues that this fact, which he allows may indeed be true, is not relevant to the analysis.
Their discussion highlights the importance of how an appellate question such as this is initially characterized. The majority characterized the case as a “pay setting” issue rather than simply a “pay” issue. By framing the issues in this way, the majority’s answer seems only natural. But is that the correct way to set the issue? The discussion will certainly continue.
Recent Comments