Pregnancy leave case respondents say Ledbetter law on their side

February 12, 2009

Respondents in a case involving pregnancy leave credit currently pending at the Supreme Court say the newly-enacted Lilly Ledbetter Fair Pay Act bolsters their case.

AT&T Corp. v. Hulteen, which was argued in December, stems from a suit filed by AT&T employees claiming that the company violated Title VII by failing to include time taken off for pregnancy leave in their pension calculations. The pregnancy leave in question took place before the passage of the Pregnancy Discrimination Act of 1978, but the employer’s calculation of the pension benefits took place after the law was enacted.

Ultimately an en bacn panel of the 9th Circuit ruled in favor of the employees, saying the Act applied on the date the pension calculations were made, and AT&T sought and was granted certiorari.

In the supplemental brief filed today, the employees say the new statute clarifies legislative intent that acts based on past biased employment decisions are prohibited. It goes further to say the principle is even clearer in the context of pension determinations.

“Indeed, the link between AT&T’s discriminatory seniority practices and reduced compensation is even more direct than the connection between a performance evaluation and a pay raise decision,” the supplemental brief states. “An employer ordinarily takes performance reviews into account as one of many factors in making what is often a highly discretionary decision on pay. Under AT&T’s pension formula, however, every day of uncredited leave automatically results in a reduction in the worker’s pension.”



Friday morning docket: Depressing news edition

February 6, 2009

blsToday, the Bureau of Labor Statistics reported that in January, more jobs were cut than in any one-month period since 1974. The news comes as the president and congressional lawmakers continue to try hash out their differences over an economic stimulus package. The Supreme Court continues its summer recess, which gives Justice Ruth Bader Ginsburg some extra recovery time after yesterday’s pancreatic cancer surgery.


Ginsburg surgery reignites rumor mill: As Ginsburg recovers, speculation is swirling over whether President Barack Obama may be faced with the task of selecting a U.S. Supreme Court justice early in his tenure. (Lawyers USA)

Another taxing issue: A Senate panel postponed a vote on President Obama’s nomination of Representative Hilda L. Solis as labor secretary, after questions were raised about tax liens against her husband’s business. (AP)

Do not pass Go, Do not collect $200: Sen. Patrick Leahy wants food producers responsible for widespread, deadly outbreaks of disease should go to jail. (AP).

O’Connor back on the job: Retirement, schmretirement. Retired Supreme Court Justice Sandra Day O’Connor was on a panel of judges hearing oral argument in three cases pending before the 5th U.S. Circuit Court of Appeals at Tulane Law School Tuesday. (The New Orleans Times-Picayune)

scalia1Nino the Bully? CBS legal analyst Andrew Cohen thinks Justice Antonin Scalia, who this week derided a college student for asking him a “nasty, impolite question,” should stop being such a bully. (CBS News)

Supporters cheer Obama’s first law

January 29, 2009

ledbetterPresident Barack Obama signed his first bill into law this morning, enacting the Lilly Ledbetter Fair Pay Act, which will restart the statute of limitations for unequal pay employment bias claims with the issuance of every disproportionately low paycheck.  The law overturns the 2007 U.S. Supreme Court decision Ledbetter v. Goodyear Tire and Rubber Co.

Ledbetter, the tire plant manager who brought the suit leading to the Supreme Court ruling, was with Obama today for the bill signing, as a was a bevy of officials that included House Speaker Nancy Pelosi, Senate Majority Leader Harry Reid, and Secretary of State Hillary Clinton, who was among the bill co-sponsors last senate session, as was Obama.

“It is fitting that with the very first bill I sign – the Lilly Ledbetter Fair Pay Restoration Act – we are upholding one of this nation’s first principles: that we are all created equal and each deserve a chance to pursue our own version of happiness,” Obama said.

Obama’s comments were interrupted a number of times by applause from those in attendance. And supporters wasted no time lauding the new law. [More after the jump]

Read the rest of this entry »

Senator to Microsoft: lay off foreign workers first

January 29, 2009

Sen. Chuck Grassley has something to say to Microsoft about the way the company plans to implement its recently-announced layoffs: Axe the foreign employees first to save more Americans’ jobs.

But such a plan might violate anti-discrimination laws, some legal experts say.

grassleyGrassley, who has often decried the of the use of “special occupation” H-1B visa program in the tech industry, sent a letter to Microsoft last week after the company announced it would eliminate 5,000 jobs over the next 18 months.

Noting that last year Microsoft executives went to Capitol Hill to urge for an increase of H-1B visas, Grassley urged the company to prioritize American employees.

“H-1B and other work visa programs were never intended to replace qualified American workers,” Grassley’s letter stated.  “Certainly, these work visa programs were never intended to allow a company to retain foreign guest workers rather than similarly qualified American workers, when that company cuts jobs during an economic downturn.

“It is imperative that in implementing its layoff plan, Microsoft ensures that American workers have priority in keeping their jobs over foreign workers on visa programs….Microsoft has a moral obligation to protect these American workers by putting them first during these difficult economic times,” Grassley continued.

Grassley went on to ask the company which types of positions were being eliminated, how many are held by American workers and which are filled by foreign guest workers, and how many guest workers will remain after the reduction in force is completed.

But Cletus Weber, partner at the immigration law firm Peng & Weber, told The Seattle Times that targeting H-1B visa holders might be a legally risky move for Microsoft.

“I know of no immigration law that would require Microsoft or any other U.S. company to lay off its lawfully employed foreign workers first,” Weber told the paper. “To the contrary, I believe arbitrarily laying off lawfully employed foreign workers first would subject these companies to potential legal liability under federal anti-discrimination laws.”


Supreme decisions: employee retaliation, police pat downs, ERISA and more

January 26, 2009

ussc1It’s been a busy day at the U.S. Supreme Court, as the justices handed down six decisions and granted certiorari in three cases.

In the opinion in Crawford v. Nashville and Davidson County, the justices held that Title VII protects employees from retaliation for speaking out about discrimination, whether on her own initiative, or in answering questions during an employer’s internal investigation. See more here on that case from Lawyers USA.

In Van de Kamp v. Goldstein, the Court held that Police are protected by absolute immunity from being sued over the adequacy of supervision, training, and information-system management systems. The Defendant claimed the inadequate system prevented his defense from being given information about deals cut by informant witnesses.

In Arizona v. Johnson, The Court ruled that a pat down of a car passenger during a traffic stop did not violate the Fourth Amendment.

In a case that will have divorce attorneys everywhere paying special attention, the Court ruled in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan that a waiver in a divorce decree is not sufficient to divest interest in a pension plan under ERISA.

The court also ruled on anti-dumping laws’ application to uranium dumping services in U.S. v. Eurodif, and issued a per curiam sentencing guidelines opinion in Nelson v. U.S.

But wait, there’s more:

The court agreed to add three cases to its docket, taking up: Maryland v. Shatzer , which asks whether police can resume questioning of a suspect two years after the suspect asked for a lawyer without running afoul of Miranda; Mohawk Industries v. Carpenter, considering whether a company must give a former employee information they had argued was protected by attorney-client privilege; and McDaniel v. Brown, which considers whether evidence presented during federal habeas review of a sexual assault conviction was clearly insufficient.

More on these cases on Lawyers USA‘s website.

Move over ‘Joe the Plumber’ – here comes ‘Lilly the Tire Manager’

January 6, 2009

ledbetterA Supreme Court precedent may soon become history, and the move involves the Democrats’ answer to “Joe the Plumber.”

Her name is Lilly Ledbetter, and since the May 2007 Supreme Court decision that the statute of limitations for her disparate pay claims under Title VII was not restarted with each unequal paycheck she was issued, she has become a legal folk hero for Democrats seeking to reverse the ruling.

That may happen soon, according to The New York Times, which reports that a bill overturning Ledbetter v. Goodyear Tire & Rubber Co. may be among the first to get Barack Obama’s signature after he takes office.

“Obama said he would see me in the White House when he signs the bill,” Ledbetter, a former manager at a Alabama Goodyear tire plant, told the Times in an interview.

Democrats want to move quickly on the legislation, which stalled in the last Congress after facing a surefire veto threat from President George W. Bush. Since the Supreme Court’s ruling, courts around the country have been throwing out discrimination claims involving litigants who claimed, as Ledbetter did, that they were unaware of the unequal pay until after the statutory period to file suit had passed. Some of those courts actually reversed themselves, stopping claims that would have otherwise gone forward.

Last September, at a Senate Judiciary Committee hearing on the issue, Chairman Patrick Leahy said overturning the ruling was necessary to allow courts to protect citizens’ civil rights. “Our courts are an essential mechanism to enforce the civil rights laws that Congress has passed – laws that protect women, the elderly, minorities, and the disabled,” Leahy said. “Those laws are reduced to hollow words on a page if judges issue rulings like the one rendered by the Supreme Court in Lilly Ledbetter’s case.”

See past coverage for the Ledbetter case and its effect here from Lawyers USA. (Sub. Req’d)

Monday status conference: In with the new

January 5, 2009

capitolfrontIt’s 2009, and the newest members of the House and Senate get to work this week as the 111th Congress begins its session. Meanwhile, Washington is abuzz with the arrival of President-elect Barack Obama and his family into town. And the Supreme Court justices are set to meet Friday, and orders, opinions and oral arguments will follow next week. Meanwhile:

Tax cuts uncertain: President-elect Barack Obama is looking to pack nearly $300 billion in tax cuts for workers and businesses in his economic stimulus plan. But winning over congressional lawmakers, who are concerned about excess government spending, may not be an easy task. (NYT)

Help for the jobless? Meanwhile, Obama and Democratic congressional lawmakers are pushing to expand government-assisted health care insurance and unemployment compensation in the economic plan. (NYT)

Hello kettle, I am Pot: Embattled Illinois Gov. Rod Blagojevich accused Senate Majority Leader Harry Reid of conflict-of-interest issues, claiming that the lawmaker called the governor in December to discuss the Senate seat vacated by Obama. (AP)

Empty seats in the House: Illinois is not the only state with unresolved election issues as the new Congress convenes. (WaPo)

Occupational hazards? Current and former career officials at OSHA say that during the Bush administration, political appointees ordered the withdrawal of dozens of workplace health regulations, slow-rolled others, and altered the reach of its warnings and rules in response to industry pressure. (WaPo)