Posted on May 13th, 2009 by Randy Enochs | No Comments »
Filed under: ., Discrimination, Employee Benefits, HR Issues | 
The Equal Employment Opportunity Commission recently opined that “an employer violated the Americans with Disabilities Act when it required employees to undertake a health risk assessment (“HRA”) as a condition of participating in the employer’s group health plan.” The case the EEOC based its informal opinion letter on involved a county that had implemented an HRA which included answering a short health-related questionnaire, taking a blood pressure test, and providing blood for use in a blood panel screen. Employees declining to participate in the program (and members of their families) were ineligible for coverage under the employer’s self-funded health plan.
The EEOC, in forming their opinion, distinguished between disability-related inquiries and medical examinations that are job-related and consistent with business necessity and voluntary wellness programs:
[O]nce employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. The EEOC determined that requiring all employees to take this HRA that includes disability-related inquiries and medical examinations as a prerequisite for obtaining group health coverage does not appear to be job-related and consistent with business necessity, and therefore it would violate the ADA. …
A wellness program is considered voluntary only if employees are not required to participate and are not penalized for non-participation. With regard to the HRA, an employee’s decision not to participate resulted in the loss of the opportunity to obtain health coverage through the employer’s plan. Thus, even if the HRA could be considered part of such a wellness program, the program would not be voluntary because individuals who do not participate in the assessment are denied a benefit (i.e., they are penalized for non-participation).
Posted on January 29th, 2009 by Tim Eavenson | 1 Comment »
Filed under: ., Discrimination, HR Issues, Politics |
This morning, President Obama signed the Lilly Ledbetter Fair Pay Act into law. It was the first bill Obama has signed since taking office.
Joining him at the signing ceremony were, among others, House Speaker Nancy Pelosi, First Lady Michelle Obama, and Lilly Ledbetter herself, who is seen on the video receiving the signatory pen.
The law is intended to reverse the Supreme Court decision, also bearing Ledbetter’s name, that plaintiffs in discrimination cases must bring their claims within 180 days from the initial discriminatory act. Under the newly-signed revision, claimants have 180 days since the most recent discriminatory act. This difference means that employees like Ledbetter, who worked for years without knowing she was being paid unequally, have 180 days from their last paycheck to file suit.
A couple of important notes about the Ledbetter Act:
- It is not limited to gender discrimination. The law changes the filing limitations in all major antidiscrimination statutes, including the Americans with Disabilities and Age Discrimination in Employment Acts.
- It doesn’t change the amount a plaintiff can recover. That is still limited under most statutes to damages dating 2-years back from the date the claimant files a charge.
- The law is designed to be retroactive, applying to cases initiated anytime on or after May 28, 2007 (the day before the Supreme Court’s decision). What this means for the cases that have been dismissed in the interim, or for Ledbetter herself, in unclear. (Some have suggested that she wins nunc pro tunc. I’m not so sure.) Expect this point to be litigated agressively and soon.
Posted on January 28th, 2009 by Tim Eavenson | No Comments »
Filed under: ., Discrimination, HR Issues, Politics |
[More coverage: President Obama Signs Ledbetter Fair Pay Act]
Yesterday, the House voted 250-177 to send the Lilly Ledbetter Fair Pay Act to the President’s desk. According to the San Francisco Chronicle, President Obama has indicated he will sign the bill tomorrow, making it the first major legislation approved under his tenure.
Named for the Plaintiff in a Supreme Court case the law effectively overturns, The Ledbetter Act alters the major discrimination laws – Title VII, the ADA, ADEA and the Rehabilitation Act – to make clear that each unequal paycheck an employee receives is a new discriminatory act, effectively continuing the statute of limitations for as long as the person is employed or receiving benefits from the company.
The Court had interpreted the original Act’s language, that the statute of limitations started at the time of “the alleged unlawful employment practice,” to mean that an employee had to bring a claim within 180 days of the initial decision to provide them unequal pay. Which meant Ledbetter, who was tipped off to her unequal pay at 70, months before retirement, was years too late to bring a valid claim.
Congress’s vote fell mainly along party lines; this was a statute that President Bush had vowed to veto had he seen it last year.
Republicans are concerned that the change will lead to stale lawsuits that are hard, if not impossible, to defend. Management-side attorneys are warning their clients that employee records that used to be cleared for shredding will now have to be stored indefinitely.
Proponents of the bill, including most Democrats, women’s-rights groups and organized labor, say the Ledbetter Act will finally provide the right statutory protection to level the playing field with regard to pay. The view was succinctly summed up by Senator Barabara McKulski of Maryland (the bill’s chief sponsor in the Senate) in the N.Y. Times:
“If you don’t want to be sued, don’t discriminate.”
This early passage of such a controversial bill is heralding a wave of legislation that’s likely to come throughout the year. Democrats have been holding onto similar bills until a more favorable climate arose for their passage, and have clearly found it in the new President and their increased power in both Houses of Congress.
The bulk effect of these changes may be a shift of power under U.S. labor and employment law away from business and into the hands of employees and their labor representatives.
