The Lilly Ledbetter Fair Pay Act of 2009 eliminates the 180-day statute of limitations for filing an equal pay claim, and clarifies that a discriminatory compensation decision occurs each time a discriminatory paycheck is issued.

Some common sense steps will allow you to avoid discriminatory compensation violations by ensuring fairness of compensation levels and adequacy of documentation.

Recommended Practices for Avoiding Discriminatory Pay Liability Under Ledbetter Act

To protect themselves under the Ledbetter Fair Pay Act, employers should:

1. Ensure you have policies and procedures for documenting the reasons for all compensation decisions.
2. Retain documents and data supporting all pay decisions indefinitely. You never know when an equal pay claim may arise, and now they can be based on events long ago, beyond the scope of staff members’ knowledge or memories.
3. Conduct periodic self-audits to make sure you can explain differences in pay between employees, and make any necessary adjustments.
4. Review past compensation decisions to determine if discriminatory decision-making has occurred, and correct any resulting inequities in current compensation levels.
5. When hiring new employees, analyze the compensation packages of all current employees in the same position, to make sure the candidate does not receive a significantly better package just to get him or her in the door.
6. Keep in mind that discriminatory performance reviews may also be actionable under the Act, because performance reviews are often the basis for compensation decisions.

With such changes to recordkeeping systems and periodic compensation reviews, employers can eliminate any discriminatory pay disparities in the workplace and reduce liability under the Ledbetter Act.

On October 28, 2009, President Obama signed the National Defense Authorization Act for Fiscal Year 2010, which includes the “Supporting Military Families Act of 2009.” This Act contains several amendments to the FMLA’s military leave provisions, and these amendments took effect immediately upon signing.

Photo credit: US Army

FMLA Changes for Employer to Implement Immediately

The new FMLA amendments, effective October 28, 2009:

1. Extend qualifying exigency leave to family members of service members in the regular Armed Forces, not just the National Guard or Reserves, as previously provided.
2. Eliminate the requirement that qualifying exigency leave must be in support of a contingency operation. Now, for members of the regular Armed Forces, covered active duty means duty during any deployment to a foreign country. For members of the Reserves, covered active duty means duty during deployment to a foreign country under a call or order to active duty.
3. Extend military caregiver leave to family members of veterans who were members of the Armed Forces (including the National Guard or Reserves) at any time within five years preceding the medical treatment, recuperation, or therapy necessitating the leave.
4. Revise the definition of “serious injury or illness” for military caregiver leave to include an injury or illness that existed before the beginning of the member’s active duty and was aggravated by service in the line of duty on active duty, whether. manifested before or after the member became a veteran.

Regulations regarding these amendments, as well as new FMLA forms incorporating these changes, will be coming soon. Because these rules are already in effect, employers must immediately revise their FMLA policies and procedures and employee handbooks to comply with these changes.

The federal Genetic Information Nondiscrimination Act (“GINA”) takes effect on November 21, 2009. GINA is a congressional response to scientific and medical advances, including advances in the ability to test DNA in ways that can reveal predisposition to disease or disability, among other personal information. Here is a brief summary of what employers need to know and do immediately about GINA.

Prohibition of Discrimination Based on Genetic Information

Under Title II of GINA, an individual’s genetic information is now among the characteristics protected by federal employment discrimination laws, along with race, sex, age, etc.

Genetic information is defined as information about:

• genetic tests of an individual;
• genetic tests of the individual’s family members;
• manifestation of a disease or disorder in the individual’s family members.

Genetic information does not include:

• information about any noticeable disease or symptoms of an individual that has been diagnosed, is symptomatic, or is being treated;
• information about the sex or age of an individual or the individual’s family member; or
• results of drug or alcohol tests.

GINA prohibits employer use of genetic information in hiring, firing, promotion, compensation, termination, or other terms and conditions of employment. It further prohibits use of such information to limit, segregate, or classify employees, or to deprive individuals of opportunities.

Limitations on Obtaining Genetic Information

Employers may not request or purchase genetic information about an employee or an employee’s family member (with limited exceptions). Employers also may not obtain such information, including family medical history, from job applicants, including during a post-offer medical examination and history. These prohibitions also apply when obtaining information during the ADA interactive process of seeking reasonable accommodation for employee.

Confidentiality

Any genetic information an employer may have must be treated as confidential medical information and stored in separate medical files.

Posting Requirement

As with many other employment laws, GINA includes a posting requirement in order to provide accurate information to applicants and employees.

The EEOC currently provides two options http://www1.eeoc.gov/employers/poster.cfm for meeting this requirement with free downloads:

1. a supplement to the existing “EEO is the law” poster; and
2. an amended “EEO is the law” poster.

Additionally, a number of companies provide commercial employment poster services, advantages of which may include that they combine state and federal posting requirements and that they provide larger, laminated posters and automatic updates, by subscription, for any required changes.

Health Insurance Requirements

Title I of GINA prohibits the use of genetic information by group or individual health insurers in setting eligibility or premium or contribution amounts. It does not, however, prohibit underwriting based on the individual’s current health status, and does not mandate coverage for any particular tests or treatments.

GINA also prohibits health insurers from requesting or requiring individuals to submit to genetic tests, but does not prevent treating physicians from requesting such tests.

Employees’ Rights and Remedies

Individuals have the same rights and remedies for violations of GINA as for violations of Title VII. These include reinstatement, hiring, promotion, back pay, injunctive relief, monetary and non-monetary damages (including compensatory and punitive damages), and attorneys’ fees and costs.

Employers Must Act Now

Regulations supporting GINA will be issued soon. In the meantime, employers must prepare for GINA immediately by:

• revising post-offer medical exams and histories to comply with GINA;
• reviewing policies and procedures to make sure genetic information is not otherwise sought; and
• posting the new EEOC poster or supplement.