Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Last Friday was a busy day in Alabama for employment issues.  Perhaps the calendar was off by a day: it should have been Friday the 13th, not Friday the 12th. 

First, the Birmingham News reported that a federal jury in Birmingham, after a 3 week trial, returned a verdict in the amount of $2.7 million against U.S. Security Associates, Inc, a security guard firm based in Georgia.    According to the article, Jamie Marks sued USSA alleging sexual harassment when a district manager repeatedly propositioned her for sex and inappropriately touched her.   Robert Gordon, writing for the Birmingham News, noted that "One occasion, Hargrove masturbated in front of Marks the lawsuit said."  Marks complained, but was ignored, in part, because Hargrove was having an affair with Mark's immediate supervisor, who witnessed the exposure, but lied during the company's investigation.  Interestingly, Hargrove remains employed with USSA. 

Practice pointer.  Once again, let me say that it is important to have policies and procedures in place, and to follow them!!!  The jury found, as evidenced by the high verdict, serious violations of the law by the supervisor, and the failure of the company to properly investigate and remedy the situation: the supervisor is still employed.

On January 28th, I wrote a blog entry dealing with violence in the workplace.  Tragedy struck in Alabama Friday when a female professor at the University of Alabama in Huntsville, who was just denied tenure, pulled a gun and killed 3 faculty members and wounded 2 faculty members and a staff member.  The accused shooter is a 42 year old Harvard graduate, the mother of 4, married to a geneticist and researcher who also works at UAH, and apparantly accidently shot and killed her brother in 1986.  The shooter and her husband were taken into custody.  In watching the news reports, one student interviewed said that you hear about these situations around the country, but you never expect it to happen to you.  Unfortunately, as we are again reminded, violence in the workplace does strike close to home.  My firm, Sirote & Permutt, is holding a seminar this coming Wednesday, February 17 addressing violence in the workplace,  If you are interested in attending, you can view the invitation here and make reservations to attend.  The seminar will take place in Birmingham, but will be broadcast to our Huntsville and Mobile offices. 

Practice pointer.  Violence in the workplace is a constant threat, and must be dealt with seriously.  It strikes close to home, and is unpredictable.  Companies must prepare for these situations by having the appropriate policies and procedures in place, training the entire workforce, and be forever vigilant to guard against it. 

Last November, I gave a presentation at our year end seminar addressing the H1N1 flu and pandemics in the workplace.  According to the Center for Disease Control and Prevention, in an announcement made Friday, approximately 57 million Americans have contracted H1N1 since April, 2009.  This is about 18 % of the U.S. population.  Almost 12,000 have died, and about 260,000 have been hospitalized.  Although the experts predicted otherwise, adults between 18 and 64 have been hit the hardest, accounting for 58% of the infections and hospitalizations and 76% of the deaths.

Practice pointer.   Although the H1N1 pandemic may be over, other pandemics will hit in the future.  When is unknown.  In order to keep businesses operating during a pandemic, companies must be prepared with the appropriate plan to cover for absent employees, sick employees and perhaps the interruption of normal life (quarantines, disruption of the food supply, school closings, etc.)  Now is the time to prepare by formulating proper procedures and implementing them with the workforce.

This past week, I was invited to speak to the Talladega County Bar Association and gave a presentation on Social Media, including the impact of social media in the workplace.  Interestingly, one of the cases I often refer to in my presentations is a case out of North Carolina where a volunteer fireman was discharged for conduct unbecoming a fireman because his social media site made reference to him and his wife practicing the Wicca religion, and that his wife was bisexual.  One of the attorneys in Talledega has a very similar situation, where an ex spouse allegedly posted on a social networking site that the other ex spouse practiced the Wicca religion and was bisexual.  No, I can't make these things up.  It is important to have a social media/networking policy in the workplace to protect the company, it's employees and to safeguard confidential and proprietary information.

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On February 5, the 11th Circuit decided the case of Robinson v. Tyson Foods.  Robinson worked for Tyson Foods, and resigned in September, 2005 by a letter of resignation stating, in part, that she was subjected to "harassment, racial abuse and intimidation."  In October, 2006, she brought a civil suit against Tyson under Title VII, and claimed compensatory, punitive and liquidated damages.  In April, 2002, Robinson voluntarily dismissed her Chapter 13 bankruptcy cased because she could not make her payments, and filed a second Chapter 13 proceeding.  The plan was confirmed in May, 2002, and the judge ordered, in part, that "the property of the estate shall not vest in the Debtor until a discharge is granted under Section 1328 or the case is dismissed".  In May, 2007, one of Robinson's debtors moved to dismiss the bankruptcy plan because her payments were delinquent.  Before a hearing on the motion, she became current on her payments. In July, 2007, her bankruptcy plan was completed, she repaid all her debts, and she received a full discharge from Bankruptcy.

Tyson took her deposition in September, 2007, and learned that she had not disclosed her suit against Tyson in the bankruptcy court.  Tyson also learned that her husband died in 1997, and she had a workers' compensation claim against her husbands employer when she declared bankruptcy in April, 2002.  That lawsuit was not disclosed either.  The 11th Circuit upheld the trial courts decision dismissing Robinson's claim against Tyson, under the theory of judicial estoppel, which is designed to "prevent a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by the party in a previous preceding".  Since full and honest disclosure in a bankruptcy proceeding is "critical" to the effective functioning of the system, and a debtor has a statutory duty to disclose all assets, or potential assets to the bankruptcy court, and Robinson failed to do so, she was prohibited from pursuing her claim against Tyson.

Practice pointer.  This decision reinforces the need for individuals to be completely open and honest when they file for bankruptcy.  If they fail to disclose an asset, or potential asset, such as a law suit, it may bar them from pursuing those claims not disclosed to the bankruptcy court.  This logic also applies in many unemployment compensation appeals, where claimants' change the reason for termination from what they originally listed on their claim for unemployment, (for example, lack of work)  to a claim under Title VII (for example, sexual harassment).

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In Corbitt et al. v. Home Depot USA Inc., the 11th Circuit Court of Appeals reversed, in part, the District Court for the Southern District of Alabama's decision dismissing claims for sexual harassment and retaliation in violation of Title VII.  Corbitt and Raya were store managers for the Home Depot in Mobile and Pensacola.  They claimed that the regional human resources manager, Lenny Cavaluzzi, sexually harassed both of them for a period of 9 months.  Cavaluzzi allegedly had multiple personal telephone conversations with the plaintiffs, massaged their necks and shoulders at a corporate meeting, played with their hair and hugged them on numerous occasions.  Plaintiff's complained to various supervisors, but the conduct did not stop.  The conduct only stopped after a supervisor used a Home Depot hotline to report Cavaluzzi.  Both plaintiff's were fired a less than a month later. The trial court granted summary judgment in favor of Home Depot on all claims that were made by the plaintiffs.  In affirming summary on plaintiff's claim for harassment, the Court, in distinguishing sexual harassment from flirtation, held that "Flirtation is part of ordinary socializing in the workplace and should not be mistaken for discriminatory conditions of employment".  The Court reversed the lower courts finding that Home Depot did not retaliate against them by firing them, holding that sufficient evidence was presented that Cavaluzzi and another supervisor influenced the investigation in a way to have the plaintiff's terminated. The Court rejected any suggestion that the fact that the touchings were same-sex made them somehow more severe

Practice pointer.  Same sex harassment (as well as female on male harassment) occurs in the workplace and must be treated as seriously as traditional male on female harassment allegations.  Investigations must be done in a prompt, thorough and complete manner, and appropriate disciplinary actions taken.  As society continues to evolve, I anticipate more of these cases to reach the courts. 

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The case of Ricci v. Destafano continues to make the news.  I have reported on this case in several blog entries, and the most recent activity involves the white and Hispanic firefighters filing papers to pursue their claim for back pay, interest and attorney fees.  This case started in 2003 when the city refused to promote the 14 white and Hispanic firefighters: even though the test they took was race neutral, the city felt the results discriminated against black firefighters since none of the black firefighters who took the test scored high enough to get promoted.  The Supreme Court, in June, ruled in favor of the white and Hispanic plaintiffs, finding that New Haven violated their civil rights by disregarding the test results.  Recently, the plaintiffs received their promotions, and the black firefighters filed suit claiming they were discriminated against.  Now, the attorney for the plaintiffs is pursuing claims for back pay, interest and attorney fees.  According to theAP, Karen Torre, the attorney for the plaintiffs, they were subject to "the humiliation and economic hardship of prolonged career stagnancy in a rancorous atmosphere fostered by raw racial divides."  I will continue to keep you posted as this case progresses. 

Also in the news, President Obama signed into law the 2009-2010 spending bill for the Department of Defense, which includes a provision prohibiting most military contractors from enforcing mandatory arbitration provisions in their employment contracts.  The provision prohibiting arbitration came about as the result of a female employer of a defense contractor, working in Iraq, who claimed she had been raped by co-workers, and the employer attempted to enforce the arbitration provision in her employment contract.  In 6 months, this restriction will also apply to subcontractors. 

Finally, on the overtime front, the New York Times  reported this week that a lawsuit filed on behalf of 27 Mexican farm workers in Mississippi for overtime has been settled.  The employees were working under the federal H-2 Visa program, and claimed they were not paid for hours worked in excess of 40 hours a week.  The amount of the settlement was not disclosed.

I hope all of you have a Joyous Holiday Season and a Happy New Year. 

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A number of issues continue to arise in the employment context.  I expect you will be seeing more of these in 2010.  They include the following:

Overtime.  A California court preliminarily approved a $12.8 million settlement involving 650 potential class members claiming overtime.  According to Law.com, Lynn Farris ""who is lead counsel in a similar case against FedEx Ground in the Northern District of Indiana, said companies considering whether to classify people as independent contractors "are likely to take this settlement as further indication that that's a risky business choice."" 

City of New Haven.  I have previously written about the City of New Haven fire department case, Ricci v. Destafano.  The City of New Haven has promoted the 10 firefighters (white and Hispanic)based on a 2003 test and the Supreme Court's decision.  Now, an attorney for New Haven's black firefighters is quoted by the AP  as saying that "the fight is not over because the black firefighters were not heard."  I cannot even imagine the amount of legal fees incurred in taking the case to the Supreme Court and now it will have to be fought all over again by the city.

Jury Duty.  Since I just received my own notice to appear for jury service the first week in January, I found the following case interesting.  In Florida, a supervisor for a security guard company was awarded $150,000 by a jury who found that she was wrongfully terminated after serving on a jury, not being paid $400 for the first 3 days she missed from work(pursuant to county law) and the judge gave the plaintiff a copy of the law protecting jurors and a letter vouching for her jury service.  The jury awarded $30,000 for lost wages emotional distress and $120,000 in punitive damages.

Cool website.  Ebosswatch.com has published it's Worst Bosses of 2009 list.  Included on the list is Mike Swindle, who, while working at Hyundai Motor Manufacturing Company in Montgomery, was found to have harassed a female subordinate, resulting in a verdict in excess of $5 million.  I wrote about this case in my blog on May 4, 2009.

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In June, the United States Supreme Court released a 5-4 opinion in the Ricci v. DeStefano case,  finding that the City of New Haven discriminated against white and Hispanic firefighters who claimed that they would have been promoted if the City of New Haven had not invalidated the test results because no black candidates scored high enough to be promoted.  I wrote in detail on this decision on June 29.

Yesterday, a black firefighter sued New Haven over the same promotion exam taken in 2003 that was the basis of the Ricci decision. Michael Brisco, who has been with the New Haven fire department for 10 years, alleged that he was discriminated against, based on race, because the test improperly gave more weight to the written part of the test than the oral section.  He further alleged that the test had a disparate impact on African-Americans since the scoring method was weighted 60 percent on the written portion, and 40 percent on the oral portion.  Brisco alleged that he ranked first out of the 77 candidates who took the test on the oral portion, but was only ranked 24th overall due to the fact that more weight was given to the written portion of the test.

Practice Pointer.  It will be interesting to follow this case as it winds through he courts over the next several years.  The City of New Haven just completed a case that went all the way to the Supreme Court, and paid untold thousands of dollars in attorney's fees, obtained a Supreme Court decision, and gets sued again over the same test that was given 6 years ago.  Sometimes, justice is not swift.

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It appears as if the EEOC is taking a more active role in filing lawsuits against employers in the name of the EEOC.  Over the last several weeks, the EEOC has filed at least  9 lawsuits in Alabama against various employers.  These lawsuits include alleged violations of the ADA against  two different employers when employees were terminated after the employers learned the employees were HIV positive, allegations that the Age Discrimination in Employment Act was violated when the employer failed to promote a 50 year old employee and hired a younger, less qualified individual, allegations that an employee was terminated because she was pregnant, and allegations that a racially hostile work environment existed because black employees were subjected to the use of the "N" word and the display of a noose in the workplace.  This trend appears to be occurring around the country, with notable cases being filed by the EEOC against Pace Airlines, which operated Hooters Air on behalf of an Asian flight attendant who was fired after complaining that only white workers were being promoted, and a case against a Chicago area automobile dealer alleging that female employees were called obscene epithets and female customers were call "dingbats".

Based on the timing of these lawsuits, it is difficult to determine if this will be a long term trend based on a change in EEOC philosophy, or if it was a last minute rush to file the suits before the end of the fiscal year, which ended September 30, 2009.  Is it possible the EEOC has quotas for the number of lawsuits it files?

The EEOC also recently announced a record $6.2 million settlement of a nationwide class action lawsuit against Sears over the firing of disabled workers.  According to Law.com, Sears fired numerous employees who took leave for work related injuries and that Sears "routinely declined to make accommodations to bring back employees who had taken workers' compensation leave or to offer them a brief extension of their leave to make it possible for them to return later". 

In other EEOC news, the Wall Street Journal today reports that there is a large increase in retaliation claims being filed by employees against employers.  For the fiscal year ending September 30, 2008, retaliation claims rose 23% to 32,690, more than a third of all claims filed with the EEOC.  Although many of the retaliation claims are filed together with underlying discrimination claims, as I often point out during speeches, an employer can be guilty of retaliation even if cleared of the underlying claim of discrimination. 

Practice Pointer.  As evidenced by the types of claims alleged in the lawsuits filed by the EEOC, it appears as if all types of discrimination may be occurring in the workplace.  It is a good time, as we get to the end of the calender year, for companies to review their policies and procedures, make sure that their work force, including supervisors, receives training on the companie's anti-discrimination policies, and that  HR continues to monitor the workplace to avoid claims of discrimination. 

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This morning, the U.S. Supreme Court, in a 93 page 5-4 opinion, reversed the lower courts' decision in the case of Ricci v. DeStefano.  I previously wrote about this case on February 3 and April 22.  In Ricci, the white and Hispanic plaintiffs claimed that they would have been promoted if the city of New Haven Conn. did not invalidate the test results because no black candidates scored high enough to be promoted.  Justice Kennedy delivered the opinion for the Court, finding that the city's actions violated Title VII.

Initially, Justice Kennedy addressed the burden shifting provisions of Title VII: once a plaintiff establishes a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is job related for the position in question and consistent with business necessity.  If the employer meets that burden, the plaintiff may still prevail by demonstrating that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer's legitimate needs.  The Court found that the City's actions, not validating the test scores because the higher scoring candidates were white and Hispanic,  violated Title VII's disparate treatment prohibition. Without some other justification, the express, race-based decision making is prohibited by Title VII.  The Court decided the question of whether the purpose to avoid disparate impact liability excuses what otherwise would be prohibited disparate treatment discrimination.    The Court found that fear of litigation alone cannot justify the city's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.  Finally, the Court concluded that If, after it certifies the test results, the city faces a disparate impact suit, then in light of this decision, the city can avoid disparate impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability.

Practice Pointers. 

1.  President Obama's nomination to the Supreme Court, Sonia Sotomayor, was on the 2nd Circuit panel which affirmed the district court's summary judgment in favor of the city which was reversed by the Supreme Court.  This decision will provide some ammunition for her critics.

2.  This opinion will be the starting point for employers who are worried about disparate impact claims.  Unfortunately, it may not provide all the answers, since each case will need to be decided on its own merits.

3.  Since the Court decided the case on Title VII grounds, and not on the Equal Protection Clause (which was also raised in this case), it is likely that this decision will apply to private employers as well as public employers.

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Today, in Gross v. FBL Financial Services, Inc., the United States Supreme Court, in a 5-4 opinion, issued an opinion distinguishing the Age Discrimination in Employment Act (ADEA) from Title VII, finding that the text of the ADEA does not authorize a mixed-motives age discrimination claim.  The facts of the case are as follows:  Gross began working for FBL in 1971, and in 2001 he was a claims administration director.  In 2003, at the age of 54, he was reassigned to the position of claims project coordinator.  Many of Gross' job responsibilities were transferred to a newly created position: claims administration manager, which was filled by a female in her early 40's, who had previously been supervised by Gross.  Although the two positions paid the same, Gross believed he was demoted because of the reallocation of his former job responsibilities.  Gross filed a lawsuit alleging a violation of the ADEA, and at trial, introduced evidence suggesting that his reassignment was based at least in part on his age.  FBL alleged that the job reassignment was part of a corporate restructuring and that Gross' new position was better suited to his skills.  Gross was awarded $46,945 at trial, and the 8th Circuit reversed and remanded based FBL's challenge of the jury instructions given at trial, that the jury "must return a verdict for Gross if he proved , by a preponderance of the evidence, that FBL "demoted him to claims project coordinator' and that his 'age was a motivating factor' in FBL's decision to demote him".  The jury was also instructed that they must find for FBL "if it has been proved by the preponderance of the evidence that FBL would have demoted Gross regardless of his age". 

Justice Thomas, writing for the majority,  found that the burden of persuasion does not shift to the party defending an alleged mixed-motives discrimination claim brought under the ADEA.  Justice Thomas further found that the ADEA is materially different with respect to the relevant burden of persuasion from Title VII, and as such, Title VII decisions do not control the construction of the ADEA.  Finally, the text of the ADEA does not authorize a mixed-motives age discrimination claim.

Practice Pointer.  This decision is favorable to employers in the ADEA context.  This interpretation will make it more difficult for plaintiff's to successfully prosecute ADEA claims.  It is important to remember that Alabama has it's own age discrimination statute, and that this opinion should also apply to cases pending in state court since the statute basically adopts federal law. 

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On Monday, May 18, the US Supreme Court issued another employment related opinion, this time dealing with the calculation of retirement benefits based on pre-Pregnancy Discrimination Act policies.  In AT&T Corp. v. Hulteen (US Supreme Court 5/18/09) Justice Souter, in a 7-2 vote, delivered the opinion finding that AT&T's pension benefits, which were calculated in part under an accrual rule that was applied only pre-PDA, and gave less retirement credit for pregnancy than for medical leave generally did not necessarily violate the PDA.  When the PDA became effective in 1978, AT&T changed it's policy to allow the same service credit for pregnancy as for other medical leaves of absence, but did not make the change retroactive, resulting in four employees suing AT&T because their pregnancy leaves resulted in smaller pensions.  The Court found that since Congress did not apply the PDA retroactively, AT&T did not have to make it retroactive either.  If the plaintiff's position had beeen upheld by the Court, it would have created a tremendous burden on companies to re-calculate pensions for women leaving the workforce now and in the near future, who were subject to pension rules similar to AT&T. 

Practice Pointer.  From time to time, courts need to address changes in the law that took place decades ago.  It is important that companies review and revise their record keeping policies and procedures to comply with all applicable state and federal laws.  Even when in compliance, records may be inadvertently destroyed that are needed later on.

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Tammy Edwards was awarded 5.79 million dollars by a jury in Federal Court in Montgomery for sexual harrassment, negligent supervision, and retaliation.  The Birmingham News reported late Friday, the jury  awarded $795,000 in compensatory damages, $5 million in punitive damages against Hyundai, and $10,000 against a supervisor, Mike Swindle, who was sued in his individual capacity.   The facts of the case involve Swindle propositioning Edwards for oral sex, sex, and threatened to blow her husband's head off.  Swindle also blocked her was in the hall, bumped against her with his hands behind his back, hugged her and pulled her hair by grabbing her pony tail.  Edwards complained to one supervisor, who took no action although he admitted he knew that Swindle's behavior was often objectionable.  She also complained to another supervisor, who laughed it off and said that Swindle will tell you "stuff you don't want to hear".  For a more detailed explanation of the causes of action and the facts of the case, you can read Judge Thompson's order denying Hyundai's Motion For Summary Judgment dated March 27, 2009. 

This is a textbook case on what can and often does go wrong in the work place.  Edwards missed her sexual harassment training because she was out sick  There was no signed receipt showing that Edward's received the 47 page, single spaced policy manual.  Swindle was transferred to another position, but his physical location was actually closer to Edwards then before he was transferred.  Swindle continues to work at Hyundai.

Practice Pointer.  It is essential that all complaints of harassing behavior be treated seriously, a proper investigation take place, and the appropriate remedial measures be implemented.  For an interesting perspective on how the general public views these type of cases, I would highly recommned that you read the Birmingham News article and the comments from the readers. 

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On February 3, in The Perfect Storm, Part 2, I posted the following:

I anticipate the courts, especially the District Courts, will be busy in 2009 and 2010.  They will be busy looking at the ADAAA, the new FMLA regulations and other new laws that may be passed by Congress.  The Supreme Court, which has already decided two employment related cases so far this year, has agreed to hear oral argument in the case of Ricci v. DeStefano, which deals with a reverse discrimination claim and whether a municipality can decline to certify results of a civil service exam that would make disproportionately more white applicants eligible for promotion than minority applicants.  The white and Hispanic plaintiffs claim they would have been promoted if the city did not invalidate the test results because no black candidate scored high enough to be promoted.  The Supreme Court will decide the following question: 

Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination

On April 22, the Supreme Court heard oral argument in this case.  Interestingly, at Law.com, Marica Coyle's article begins:  "The elements of a perfect storm for employers coalesce in the U.S. Supreme Court this week in a major job bias case asking what employers legally may do when a decison to avoid discrimination against one group of employees may mean discrimination against another group".  Cumberland School of Law Professor Marcia McCormick was quoted in the article as saying "I would feel very torn in advising an employer right now...As a practical matter, it seems employers can't win no matter what they do here".  Professor McCormick went on to say that Ricci's position Is "unworkable", and "If recognizing race at all is discrimination, there is nothing an employer can do because anything it does is discrimination.  Even surveying its own work force as to who is white, who is African-American, would become the roots of a discrimination claim."

This case has received widespread coverage in numerous publicaitons, including  the New York Times, the Washington Post, Law.com, and  the  Chicago Tribune.  It will be interesting to see how the Supreme Court resolves this issue: I anticipate that it will be a sharply divided court, with at least one dissenting opinion.

Practice Pointer.  As we continue to move through the coming months, keep an eye out for new court decisions, new laws, and new guidelines concerning various employment related laws. 

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Johnny Hawkins, a black male employee, who worked for Alabama Aviation Industries (formerly known as PEMCO) for 25 years, was awarded a $500,000 jury verdict based on gender and race discrimination.  Hawkins, who was working as a sheet metal mechanic, was abandoned by a female worker who was supposed to be watching over him for safety purposes.  According to Hawkins' attorney, the female co-worker violated OSHA regulations because she went to lunch while Hawkins was left unattended in a confined space.  After this happened, Hawkins grabbed the female co-worker by the shoulder to get her attention and to tell her that she left him unattended.  She was not disciplined at all for abandoning Hawkins.  Other white male workers, according to trial testimony, received little or no discipline for for touching or harassing females.  For a more detailed account, see the article in the Birmingham News. 

Practice Pointer.  All employees must be treated consistently to avoid the appearance of discrimination based on gender, race or other prohibited factors.  When disciplinary action is taken, especially termination, it is important to conduct a proper investigation and document the reasons for the disciplinary action. 

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The Lilly Ledbetter Fair Pay Act of 2009, the passage of which was one of President Obama's main priorities, appears  ready to be signed into law.  President Obama is scheduled to sign the Act tomorrow morning, January 29, 2009.  The Act, which will amend Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act, will re-start the applicable statue of limitations each time a pay check or other benefits are paid for claims involving discrimination on compensation.  The law overturns the 2007 Supreme Court decision in Ledbetter v. Goodyear, arising out of Alabama.  In my opinion, the most important language of the Act is as follows:

"For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

The act purports to apply retroactively as set forth by Congress:  "This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation...that are pending on or after that date."

Lily Ledbetter, who campaigned for President Obama, is quoted in the Birmingham News as follows:   "I will be treated like a second-class citizen by that corporation for the rest of my life," she said, noting that her retirement benefits reflect her lower pay. "But I have the satisfaction of getting this law changed back so that other people can still file."

Practice Pointer.  Now is the time for employers to review their pay polices and pay structure to make sure that there is no discrimination in pay under Title VII, ADEA, ADA and the Rehabilitation Act.  Employers should consider reviewing their pay practices from May 28, 2007, the effective date of this new law, forward.

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