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President Obama Signs Ledbetter Fair Pay Act Making it Easier For Pay Discrimination Victims To Sue

Overview of The Lilly Ledbetter Fair Pay Act of 2009 and Pay Discrimination
Victims of discriminatory unequal pay can who were previously unable to sue due to the expiration of time can now sue under the newly enacted Ledbetter Fair Pay Act. The new law allows victims of unequal pay 180 days from the date of receiving the last unequal paycheck to bring a complaint. In some instances, victims may have up to 300 days to bring the complaint.

The Ledbetter Act is significant because it reverses a 2007 U.S. Supreme Court ruling that victims of unequal pay must commence their complaint within 180 days of the employer’s discriminatory decision that resulted in the unequal pay. That Supreme Court ruling was harshly criticized because employees rarely know the date that employers make a pay decision. Furthermore, victims of pay discrimination may not realize that their counterparts are paid more until after discovering it through their employer’s records or other employees receiving higher pay. Since pay and salary information are typically confidential, most employees do not discover the wage disparity until well after the 180 day period had already expired. Once that period expired, victims were left without remedy even if the discriminatory pay continued to the present and into the future.

Under the new Ledbetter Act, each unequal paycheck restarts the 180-day complaint filing deadline. As such, victims of pay discrimination now have 180 days from the date of the most recent discriminatory paycheck to sue regardless of when the discriminatory pay decision was made.

Ledbetter Fair Pay Act - Information For Employees
Those employees that previously could not sue because they did not learn of the discriminatory pay until after 180 days of the decision can sue now within 180 days of getting a paycheck reflecting the unequal pay. It no longer matters when the employer made the actual discriminatory pay decision which had been the focus of prior law. This assures employees that they may recover backpay for underpaid wages once they learn of the discriminatory pay and receive a paycheck that reflects such. However, employees who are no longer employed by the discriminating employer for more than 180 days may not benefit from the law because they would likely not have a last discriminatory paycheck issued within 180 days. Such employees should consult an attorney to determine whether the 300-day deadline applies to them.

 pdf Review The Entire Lilly Ledbetter Act of 2009 Signed by President Obama January 29, 2009

 

Ledbetter Fair Pay Act - Information For Employers
Employers should thoroughly review their compensation policies and adjust them as appropriate. Since the Ledbetter Act permits employees to sue even where the pay decision was made several years ago possibly by different management, employers should conduct a careful review of the present compensation paid to employees in the same position to accurately account for any disparities and ensure that such is justified by objective factors as well as employee experience and performance data. Furthermore, a statistical analysis would assist in determining that no class of employees tend to receive lower wages than others in the same position. An employee may need to adjust the compensation of employees in certain classes who tend to be paid less than others in the same positions. While these steps may not prevent discrimination charges from past pay decisions, an immediate adjustment in pay will prevent possible future complaints or charges given that employees have to complain within 180 or 300 days.


pdf Review The Entire Lilly Ledbetter Act of 2009 Signed by President Obama January 29, 2009

 

NON COMPETE OVERVIEW

NON-COMPETE AGREEMENTS AND RESTRICTIVE COVENANTS

OVERVIEW
Non compete agreements (non-competes) are made using different methods. Sometimes, it is contained in an employment handbook that an employee is required to sign separately. Other employers draft a separate contract or include it in an employment agreement or contract.

The overall goal of the non-compete agreement is to prevent an employee or ex-employee from using an employer's confidential information for his or her personal benefit or for the benefit of a subsequent employer. These contracts also prohibit an employee or ex-employee from competing against his present or former employer. Non-competes are designed to protect only employers' confidential business information and only for the period necessary to do so.   

EMPLOYER'S LEGITIMATE BUSINESS INTERESTS
Non compete agreements can only protect employer's legitimate business interests. An employer has an interest in limiting or preventing an employee from taking advantage of the relationships or information learned as a result of his or her employment to compete against the employer. An employer also has the right to protect its customer lists so that a departing employee does not contact them on his or her own behalf, or on behalf of a new employer.To ensure that only protectible information is restricted, employers should consider only certain employees as candidates for non-compete agreements those that have access to protectible information. Such employees may include those in research and development; sales staff; engineers and others engaged in design and drafting work; customer relations employees; employees involved in advertisements, product promotion and customer service; and accounting and finance department staff. Employee such as cleaning staff, janitors, and others who have no access to confidential information may not necessarily need to be covered, depending on the nature of the employer's business.

ENFORCEMENT OF NON-COMPETE AGREEMENT
In general, courts look view non-competes unfavorably because they tend to deny or limit the ability of workers to earn a living or compete in general. However, courts will enforce them when the terms are reasonable; limited in duration and geographical scope; narrowly tailored to only protect information that is sensitive, limited to confidential information that the employer has a legitimate interest in protecting. In deciding this, courts also try to balance the employee's right to compete and earn a living against the employer's need to protect its business interests. Courts also consider whether the employer provided something to the employee in exchange for signing the non-compete. Overall, non-competes that are reasonable and narrowly tailored to protect only legitimate interests of an employer are enforced by the courts. Those non-competes that are viewed as oppressive, unfair or overly restrictive to an employee are not upheld unless the compensation given to the employee in return justifies such restriction.
    
BREAKING/BREACHING  A NON-COMPETE AGREEMENT
A breach of or failure to comply with the terms of a non-compete agreement can result in a lawsuit that can be costly to defend. Sometimes, an employee finds that he cannot get another job or be employed in an industry at all as a result of a non-compete clause that he or she signed without much thought. Even though courts can strike down the terms of an unreasonable non-compete agreement, the cost of bringing or defending such lawsuits are high. Where an employee needs relief from the terms of a non-compete, it is advisable to retain an attorney to seek a possible resolution of the non-compete with the employer. In other words, an attorney can attempt to find a settlement or other resolution that may permit the employee to be relieved in part or in full from the obligations of the non-compete. If an agreement is reached ahead of time, an expensive lawsuit will likely be prevented and the employee may accept a new job without the fear of a lawsuit against him or her and the new employer.

MANDATORY ARBITRATION/BINDING MEDIATION OF NON COMPETE AGREEMENTS
To eliminate the high cost of litigating non-compete agreements, some employers include a clause that requires that any breach, conflict or problems with the agreement be submitted to binding mediation or mandatory arbitration. This significantly reduces the cost of litigating the agreements and sometimes results in a quicker resolution. With arbitration or mediation, the parties select an acceptable individual or entity who will review the position of each side and come up with a decision that will bind the parties without going to a court. The mediators are typically retired judges, attorneys or business consultants who are familiar with the law and employer's industry.

Our experienced firm attorneys are available to consult with individuals and corporations in matters relating to restrictive covenants and non compete agreements.

EMPLOYEE vs. INDEPENDENT CONTRACTOR

CLASSIFYING EMPLOYEE (W-2) vs. INDEPENDENT CONTRACTOR STATUS (1099)

Determining whether a worker is an employee (W-2) or independent contractor (1099 employee) can be complicated. The complexity is compounded because different laws and agencies apply varying tests to make this determination. For example, the IRS and Illinois Department of Employment Security rely on differing factors to determine who is an independent contractor vs. employee. Similarly, Title VII of the Civil Rights Act applies a standard that is different from both. Other laws also choose different or a combination of the same factors.

It is important to note that the contract signed between the employer and employee does not control this determination. In many cases, the law and governmental agency will disregard the contract and focuses on the elements of the relationship between the two parties. The determination generally focuses on control and the economic realities of the relationship between the worker and employer. The more control the employer has over the worker or the economic relationship, the more likely it is that the worker will be deemed an employee instead of an independent contractor. The following is a list of factors that are weighed in making this determination. These factors are analyzed jointly in an attempt to reach a conclusion whether the worker is in fact an independent contractor or employee.

FACTORS USED TO DETERMINE INDEPENDENT CONTRACTOR STATUS

  •   Type of employer's business
  •   Employer's right to control the details of the work
  •   The extent of training given by employer to worker
  •   Employer's right to supervise employee
  •   Method of compensation (hourly vs. by project)
  •   Skill level required
  •   Length of arrangement (permanency)
  •   Whether worker is employed by more than one employer
  •   Whether worker's work is part of the employer's normal business
  •   The extent of the worker's investment in the tools and equipment used
  •   Whether employer or worker provides the tools and work equipment
  •   The intention of the parties
  •   Any written agreements between the parties
  •   Whether employer provides worker any benefits
  •   The extent to which the worker has unreimbursed expenses
  •   Level of risk taken by worker

Classifying a worker incorrectly can have significant financial consequences under the law and with governmental agencies. Sometimes, fines, penalties and taxes are imposed as a result of improper classifications which often involve multiple workers. Given the complexity of the laws in this area, the differing legal definitions, and the possible financial exposure, it is important to consult an experienced employment attorney to provide guidance in this area. Our employment attorneys are experienced in matters of analyzing employment status and can assist businesses in this regard.

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