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!