Friday, January 30, 2009

A taste of what's to come?

President Obama did not disappoint his supporters with his first enacted legislation, the Lilly Ledbetter Fair Pay Act. You may recall that Ms. Ledbetter filed an EEOC charge of discrimination alleging unfair pay practices against her then-employer, Goodyear Tire & Rubber. She alleged that she had been paid less than her male counterparts for performing essentially the same work. Her case made it to the United States Supreme Court, which ruled that Ms. Ledbetter's unfair pay claims were all time-barred except those which arose 180 days prior to her filing of her charge of discrimination (180 days is the time period for filing in Alabama).

As you have probably guessed, the Ledbetter Fair Pay Act changes all of that. Retroactive to May 28, 2007, the law now allows for the statute of limitations period to begin again each time wages, benefits or other compensation is paid and is the result of a discriminatory decision or practice. In other words, the tolling period for unfair pay practice claims may now run the entire length of the employment relationship. Granted, the law only allows for recovery for the two years prior to the discriminatory practice, but it means that decisions (and the decisionmakers) from many, many years prior may be called into question, leaving employers with the task of recreating the environment at that time in its efforts to defend its pay practices.

Consideration will also need to be given to recordkeeping practices. It does not appear that the Act will change the payroll record requirements as set out in the Fair Labor Standards Act, but employers may be well-served to revisit their retention policies considering how far back they may be expected to go in defense of an unfair pay claim.

Undoubtedly, there is more to come. Stay tuned!

Sunday, January 18, 2009

I need to take some time off. . .

As a human resource executive, you've heard these words before. And if you're covered by the Family and Medical Leave Act, you undoubtedly listen to the request with a heightened awareness for whether the requested leave will be potentially FMLA-qualifying.

The Final Rule for the FMLA as amended by the National Defense Authorization Act, became effective January 16, 2009. The Rule provides additional explanation and examples for the new type of leave (covered servicemember leave) and new basis for leave (call to duty leave) available under the FMLA. The Rule also provides definitions for the "qualifying exigency" mentioned in the FMLA as amended.

The entire new Rule will be of interest to HR executives, and you are encouraged to talk with your counsel about how the Rule impacts your present practice and policy for FMLA leave. Of note for purposes of this entry, though, is the explanatory section in the Final Rule addressing "qualifying exigency" (where leave requested is for a call to duty).

Many of you have been trained to recognize the key words and situations where FMLA may be applicable. You will want to add the qualifying exigency situations to that knowledge bank, as situations which were previously chalked up to personal leave may now find themselves as FMLA-qualifying when the situation arises due to a call to duty of the employee's spouse, son, daughter or parent.

For example, the Final Rule discusses several scenarios of "military events and related activities" that now entitle an eligible employee to take call to duty leave. These include family support and informational briefings, to arrange and tend to childcare and school activities (including parent-teacher conferences), enrollment in a new school or day care, to attend counseling sessions with the covered servicemember, to make legal and financial arrangements in preparation for the servicemember's deployment, and to take time off when the covered servicemember is granted a brief leave from the deployment.

It is important to also note that the "qualifying exigency" section includes a catch-all provision allowing leave "[t]o address other events which arise out of the covered military member's active duty or call to active duty." This catch-all provision will only apply in situations where the employer and employee agree that the "other events" are related to the covered servicemember's call to duty/active duty and agree to the timing and duration of the leave.

A good rule of thumb is to always ask whether the employee who needs time off has a covered servicemember that is a spouse, parent or child. If that is the case, pick up the phone and talk with your attorney about whether the reason for the leave might be FMLA-qualifying.