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The Fair Pay Act significantly changes the statute of limitations (time to sue) for pay-discrimination claimants.



legal updates

December 2009




By Christopher W. Olmsted

Lilly Ledbetter Fair Pay Act

In a move that could lead to a significant increase in employment litigation, on January 29th President Obama signed the Lilly Ledbetter Fair Pay Act of 2009 into law. Notably, it was the first act that he signed into law upon taking office. The Act negates a 2007 U.S. Supreme Court decision relating to the statute of limitations (deadline to sue) for pay discrimination claims. The case was titled Ledbetter v. Goodyear Tire & Rubber Co., Inc.

The Fair Pay Act significantly changes the statute of limitations (time to sue) for pay-discrimination claimants. The old rule was that the statute of limitations began at the time the alleged pay decision was made. If a company discriminated against a woman by denying her a pay increase, for example, she would have to sue at the time of the denied increase. The new law provides that the time limit re-starts each time a paycheck is issued. Thus, an employee can sue for an alleged discriminatory pay decision made many years ago, assuming that the employee still suffers a disparate pay differential.

At the latest, employees will still have to file a charge with the EEOC within 180 days of termination.

The key provision is fairly simple. Section (3)(A) of the Act states:

“For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation … 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 permits employees to recover up to two years in back pay. This means that although an employee can sue in connection with a pay decision made many years ago, damages are limited to the difference in pay during the two years before the lawsuit.

The Act extends the time to sue not only for instances of sex discrimination, but also other Title VII categories, including race, color, religion and national origin. The Act also amends the ADA and the ADEA so that the same rule applies to disability discrimination and age discrimination claims.

Read more about the Lilly Ledbetter Fair Pay Act.


The Genetic Information Nondiscrimination Act (“GINA”) became effective on November 21, 2009. Generally, this federal law prohibits employers from acquiring or using genetic information about its employees, with certain exceptions.

Genetic information includes, for example, information about an individual’s genetic tests, genetic tests of a family member, and family medical history. (Note: family medical history is commonly gathered by medical providers and therefore any medical information maintained by employers may well include “genetic information.”) Genetic information does not include information about the sex or age of an individual or the individual’s family members, or information that an individual currently has a disease or disorder. Genetic information also does not include tests for alcohol or drug use.

New GINA Poster

The law requires an employer to post notices describing the Federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability and, as of this month, genetic information.

The EEOC has revised its “Equal Opportunity is the Law” poster. This new version reflects current federal employment discrimination law (including the Americans with Disabilities Act Amendments Act of 2008). The poster was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The revised poster also includes updates from the Department of Labor.

Employers can either download and post the poster, or download a new version of the whole poster. The poster is available at this link.

The EEOC has published a “Q&A” relating to the new law. The publication can be found at this link.

Related Articles:

GINA Becomes Effective November 2009

EEOC’s Proposed GINA Regulations Limit ADA Inquiries

FMLA Military Leave

In October 2009, the FMLA Military Leave law was amended when President Obama signed the National Defense Authorization Act for Fiscal Year 2010. By way of background, military leave was added to the FMLA on January 28, 2008, when President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA).

The 2008 NDAA amended the FMLA in two ways. First, it allows an employee to take up to 26 workweeks of leave to care for certain family members in the military who suffer a serious injury or illness in the line of duty (“Military Caregiver Leave”).

Second, the NDAA permits an employee to take up to 12 weeks of FMLA leave for "any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation." The family member must be a member of the National Guard or Reserves (not regular military).

The October 2009 amendment expands Military Caregiver Leave by allowing family members of veterans to take leave. The veteran must have been injured in the line of duty, and the medical treatment must be received within five years of serving in the military.

The amendment also expands the definition of serious “injury or illness” for purposes of Military Caregiver Leave. The definition now includes the aggravation of existing or pre-existing injuries. Therefore an employee may take up to 26 weeks of leave to care for a service member who has a pre-existing injury or illness which was aggravated in the line of duty.

The October 2009 amendment also expands qualified exigency leave. Under the 2008 law, the service member had to be in the reserves; regular military was excluded. That exclusion has been removed. The law now allows family members of all covered active duty service members to take exigency leave.

Related articles:

FMLA Amended to Include Military Family Leave

FMLA Update: Department of Labor Publishes “Qualified Exigency” Military Leave Form

Request our Complimentary Military Leave Checklist

As a benefit to our firm clients and our subscribers who are company executives, managers and in-house corporate HR professionals, we offer a complimentary FMLA/CFRA checklist and Military Leave checklist.
The checklist will assist you in determining whether your company is covered by the law and whether the employee is eligible for leave.
Please email Chris Olmsted at cwo@barkerolmsted.com for your complimentary copy.

Federal Minimum Wage Increase

The federal minimum wage increased to $7.25 per hour effective July 24, 2009. Though the change is of concern to employers in other states, California’s minimum wage is currently $8.00 per hour. The federal increase is of no consequence to most California employers.

This 10.7% increase affects 30 states where minimum wage is at or below the prior federal level.

Aside from California, there are 18 other states not affected by the federal increase because they currently have minimum wages at or above $7.25 per hour. A few states have minimum wages higher than California: Oregon ($8.40), Vermont ($8.06) and Washington ($8.55). Connecticut, Illinois, Massachusetts match California’s $8.00 minimum.

A new minimum wage poster from the U.S. Department of Labor is available for free download on its website. Follow this link for the poster.

California employers should post the federal minimum wage despite the fact that the state’s minimum is higher.


Employers’ obligations under COBRA have been significantly increased by the American Recovery and Reinvestment Act of 2009 (ARRA). ARRA is commonly known as the economic stimulus legislation recently passed by Congress and signed by President Obama.

ARRA entitles employees involuntarily terminated between September 1, 2008 and December 31, 2009 to continue health care coverage through COBRA by paying only 35 percent of their premiums for up to nine months. The remaining 65% is paid by employers, who may deduct the cost from federal payroll taxes. Employers must immediately comply with the law by providing notice to eligible individuals, collecting 35% of the premiums from the employees, paying 65%, and filing quarterly tax returns claiming a credit for the 65% subsidized amount.

The premium subsidy is currently set to expire on December 31, 2009, meaning that employees terminated after that date will not be eligible for the subsidy. However, Congress is currently considering legislation that would increase the subsidy from 65 percent to 75 percent and extend it from nine to 15 months.

Related Articles:

COBRA Subsidy Update: IRS Clarifies Law; Also: Model Notice Forms Available; Cal-COBRA Employers Get a Break

COBRA Obligations Expanded; Economic Stimulus Bill Adds Premium Subsidy

Download entire December 2009 Legal Update in PDF format.

This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.

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