On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act of 2009. The Fair Pay Act amends Title VII of the Civil Rights Act and the Age Discrimination in Employment Act so that an "unlawful employment practice" occurs not only when a discriminatory compensation decision is initially made or a discriminatory pay practice is first implemented, but also each time an employee receives a paycheck resulting from a "discriminatory compensation decision."

The Fair Pay Act is significant for employers because it extends the time during which an employee may initiate claims based on allegedly discriminatory pay practices. Although the act does not extend the 180-day time period within which an employee must file a charge of discrimination based on a pay practice, under the new law, every paycheck could start a new 180-day filing period.

The Fair Pay Act reverses the U.S. Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. In that case, Ledbetter sued Goodyear for sex-based pay discrimination. The Court did not deny that Ledbetter had suffered discrimination, but it ruled against her because her claim did not satisfy the Title VII requirement that a discrimination claim be filed within 180 days of the "alleged unlawful employment practice." The Court rejected Ledbetter’s argument that each paycheck was a new and separate "unlawful employment practice" for purposes of this 180-day deadline. Instead, the Court decided that Goodyear’s initial decision to pay Ledbetter less than it paid men performing similar work was the "alleged unlawful employment practice," and Ledbetter’s failure to file a discrimination claim within 180 days of that decision barred her claim.

The U.S. Chamber of Commerce and other opponents of the Ledbetter Fair Pay Act contend that the act will cause an explosion of litigation against employers and make it possible for claims to be filed decades after alleged discriminatory acts occurred. It remains to be seen how much additional litigation will result from the new law, however, since the Fair Pay Act does not change either the requirement that a plaintiff prove there was discrimination or the current law limiting awards of back pay to two years. 

The New Form I-9
Another employment law change from the president’s administration is a White House directive requiring pending federal regulations to be put on hold until they can be reviewed. One such regulation is a requirement that employers begin using a new Form I-9.

As part of the new-hire process, employers are required to complete an Employment Eligibility Verification for every employee, known as a Form I-9, to verify eligibility or authorization for employment under U.S. immigration laws. The U.S. Citizenship and Immigration Services (USCIS) has developed a new Form I-9 and has proposed new regulations governing the types of acceptable identity and employment authorization documents employees may present to complete the new form.

As part of the White House’s directive delaying implementation of pending federal regulations, the USCIS recently announced a 60-day delay in implementing the new Form I-9 and its proposed regulations. The new form is now scheduled to be implemented on April 3, 2009. Employers should continue using the old Form I-9 until April 3, 2009, or until there is additional notice regarding the new form.