A Publication of the Virginia Police Legal Advisors Committee
Time Limits Explained for Gender Discrimination in Pay
In a much criticized decision, the United States Supreme Court clarified when the time period begins to run for purposes of filing a pay discrimination claim. In Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. ___ (No. 05-1074, 5/29/07), Ms. Ledbetter, a long-time female employee, sued her employer for gender discrimination in pay. Goodyear had a pay for performance system wherein raises were based upon performance evaluations. Ms. Ledbetter alleged that, in the past, her performance evaluations were poor because of gender discrimination. It was her position that each paycheck was less because of the effects of this discrimination; thus, the receipt of each paycheck started a new 180 day statutory EEOC filing time period. (Note that the time period in Virginia is 300 days.) The United States Supreme Court disagreed with Ms. Ledbetter and found her suit untimely. The Court found that a subsequent nondiscriminatory act does not trigger a new time period even if the nondiscriminatory act entails adverse effects resulting from past discrimination. The Court also noted that Ms. Ledbetter did not claim that the past discriminatory decisions were not communicated to her.
Congress is considering legislation to overturn this decision. The House of Representatives passed the Lilly Ledbetter Fair Pay Act in July 2007. It is likely that the Senate will consider similar legislation when it is back in session.
Releases for FMLA Claims May Not be Valid
Suppose you have an employee that may have a claim under the Family and Medical Leave Act (“FMLA”). The employee is leaving your employment, and you agree to pay an amount in severance in exchange for a general release of claims by the employee. The employee signs an agreement purporting to be a full release and waiver of all claims. According to a new Fourth Circuit Court of Appeals decision, the employee can still sue you under the FMLA.
In Taylor v. Progress Energy, Inc., No. 04-1525 (4th Cir., 7/20/07), the Court ruled that an employee, who had signed a full release and waived all claims arising from her employment, could bring a FMLA lawsuit despite the release. The employee had been absent from work for health reasons covered by the FMLA. Her productivity suffered, and this lack of productivity was reflected in her performance evaluations. The employer reviewed performance evaluations in making decisions when it underwent a reduction in force. Ms. Taylor was subject to the reduction in force and was paid $12,000 in exchange for her release. The Fourth Circuit Court of Appeals noted that the FMLA regulations, 29 CFR § 825.220(d), state that “[e]mployees cannot waive, nor may employers induce employees to waive, their rights under the FMLA.” The Department of Labor urged that this regulation only applied to prospective [future] rights and not retrospective [past] rights. The Court disagreed and held that the regulation barred the release of retrospective and prospective rights and barred the release of substantive and procedural claims. In other words, the regulation bars the release of any claim under the FMLA unless the release is approved by the Department of Labor or a court.
If you are negotiating a release from an employee who may have a claim under the FMLA, you should seek legal advice.