At the moment it’s unclear if Senate Majority Leader Harry Reid (D-NV) will bring the Paycheck Fairness Act up in the Senate before Congress adjourns for the mid-term elections. What is clear is the Administration’s strong support for the legislation that will do little to address actual instances of illegal discrimination. What’s even clearer is that the legislation will not help manufacturers create jobs.

On Tuesday, Labor Secretary Hilda Solis and Lilly Ledbetter, the plaintiff in the Ledbetter Supreme Court decisions and political activist who has lobbied for the legislation named in her honor, hosted what was billed as a Department of Labor webcast. Usually Labor Department webcasts are a forum for the public to ask questions of senior Department officials on key issues like the Department’s budget requests and regulatory agenda. Tuesday’s event was much different. This “webcast” was a streaming video feed of a discussion by the Secretary and Ms. Ledbetter on their support for the Paycheck Fairness Act. There were several participants in the audience, assumingly there upon the invitation of the Department. Our invitation must have been lost in the mail. It appeared that most in the room were supporters of the legislation who tossed softball questions to the Secretary.

If I were in the room there would’ve been many questions that I would’ve liked to ask, such as:

1. Ms. Secretary – you expressed the need to gather more data about the alleged pay gap, however it appears as though the Department of Labor has removed an important analysis of pay equity issues as the Obama Administration transitioned into effect. Wouldn’t it be helpful for the Department to analyze existing research it commissioned?
2. Ms. Secretary – the Administration continues claim that women’s wages only constitute 77 percent of men’s wages. However your Department recently published updated data that shows that the pay gap is narrowing. Why do you continue to use outdated information?
3. Ms. Ledbetter- You claim that the Paycheck Fairness would allow employees to freely discuss their paychecks. However isn’t this employee right already protected in the National Labor Relations Act as one of many “protected concerted activities”?
4. Ms. Secretary – Data from the EEOC shows that 95 percent of discrimination claims against employers do not have grounds. Even though most of these claims are meritless employers still need defend themselves against these costly allegations. Are you concerned that passage of the Paycheck Fairness Act may encourage more suits to be filed against employers that may not have merit?

In his Cincinnati speech today, President Obama told the labor crowd “I support EFCA,” actually using the acronym, in order “to level the playing field.” One way to ensure not being quoted verbatim: Use acronyms that mean nothing to most people.

He quickly moved on to touting his signing of the Lilly Ledbetter Fair Pay Act, which opens the floodgates to old, impossible-defend employment discrimination lawsuits against businesses. That’s not the way he described it, though.

In Pittsburgh, Vice President Joe Biden today said the Employment Free Choice Act will pass. He didn’t say what version of the legislation he meant.

President Obama’s first bill-signing ceremony was a celebratory affair with Ms. Ledbetter and top Congressional Democrats on hand. No point in reciting our arguments about why the new law will invite speculative litigation and discourage the hiring of new employees — it’s a done deal.

Save for one point: We see that the American Association for Justice, the national trial lawyers lobby, issued a statement from its president, Les Weisbrod, today, “Ledbetter Act Delivers Justice for Working Americans, Says AAJ.” It’s boilerplate.

Today marks the end of a long road for Lilly Ledbetter and the beginning of justice being served for countless workers who have been victims of pay discrimination. For too long big business has tried to sweep pay discrimination under the rug and justify unethical corporate practices as necessary to bolster the economy. Today’s victory shows that corporations will be held accountable for their actions and that even ordinary citizens can get justice when taking on the most powerful interests. In one stroke of a pen, the Obama administration has strengthened the role of the civil justice system and restored legal protections for all working Americans.

AAJ has been remarkably silent on the bill, we suspect because the trial lawyers did not want to provide any ammunition to opponents who argued that the legislation would really benefit litigators more than employees. But with the bill signed, they can now speak freely and take credit. Smart politics, really.

Also, we’re still waiting for a reporter to ask Ms. Ledbetter if she intends to reopen the litigation. The law’s effective date was clearly written to allow her to revive her legal claims against Goodyear Tire & Rubber.

The President’s statement upon the bill-signing ceremony is here. Washington Post story, “Obama Signs First Piece of Legislation.” For more background, see this post or just search for Ledbetter on the blog.

Even with the passage of the Ledbetter Fair Pay Act as the first major piece of legislation this session, some activists and editorialists are saying Congress needs to do even more to “further strengthen current laws against gender-based wage discrimination.” That’s the description the New York Times used in an editorial, but it’s a misrepresentation of what the so-called Paycheck Fairness Act would do. In addition to allowing unlimited punitive and compensatory damages under the Equal Pay Act, the bill would fundamentally the change the ways business are able to make basic business decisions.

The Washington Post highlights this point:

…the new bill allows employers to defend against lawsuits by proving that pay disparities between men and women were based on “bona fide” factors, such as experience or education, and that these factors are tied to business necessities. Fair enough. But the bill also says that this defense “shall not apply” when the employee “demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.” But what if the employer has refused because it has concluded that the alternative is, indeed, more costly or less efficient? What if the employee and employer disagree on what the “business purpose” is or should be?

Diana Furchgott-Roth of the Hudson Institute also examines another aspect of the Paycheck Fairness Act: By changing existing rules concerning collective actions filed under the Equal Pay Act, the legislation would make it significantly easier for plaintiffs’ attorneys to file class action suits.

Also, it would encourage class actions by requiring workers who do not want to participate to opt out, rather than opt in, a radical change from conventional law and practice.  Employers would have to collect data on the race, sex, and wage of all workers and give it to the Equal Employment Opportunity Commission.

House Majority Leader Steny Hoyer has released the floor schedule for next week, the first week of the 111th Congress. There are usual things you expect at the start of a new session: The House convenes at Tuesday noon, adopts a rules package, and on Thursday holds a joint session to count the Electoral College ballots.

Legislation has also been scheduled, a bill to improve transparency of presidential library donations and presidential records. And…

H.R. ___ – Lilly Ledbetter Fair Pay Act (Rep. George Miller (CA) – Education and Labor) (Subject to a Rule)

H.R. ___ – Paycheck Fairness Act (Rep. DeLauro – Education and Labor) (Subject to a Rule)

These are two bills pushed hard by organized labor and other core constituencies of the liberal wing of the Democratic Party, opposed equally fervently by business, and they’re the first substantive legislative items out of the box? We’re not sure what the message is, but it sure seems like a message is being sent.

In its previous form, the Ledbetter legislation would eliminate statutes of limitations in employment discrimination lawsuits, inviting a flood of expensive lawsuits against employers (and discouraging prompt reporting of violations, as well). It was H.R. 2381 in the 110th Congress and passed the House, 225-199, in July 2007.

The Paycheck Fairness Act — H.R. 1338 in the 110th Congress — is targeted at gender discrimination, but offers another open invitation to sue business owners and operators on thin grounds. Here are the provisions of the bill the NAM opposed in the 110th session, as summarized in the NAM’s Key Vote letter:

• Eliminate current caps on punitive and compensatory damages in claims made under the Equal Pay Act;
• Expose employers to unlimited punitive and compensatory damage awards when unintentional pay disparities have occurred;
• Eliminate key employer defenses for pay disparities;
• Prohibit employers from disciplining or discharging employees for publicly disclosing sensitive wage information; and,
• Mandate new federal government “guidelines” about the relative worth of different types of jobs.

H.R. 1338 passed the House in July 2008 by a vote of 247-178.

The fact that the Ledbetter and Paycheck bills both passed the House and died in the Senate last session suggests their early consideration may be as much a message to the new, bigger Democratic Senate majority as anything else. The House majority says to the Senate, in effect, “We did our work last time, we’re doing it again, and you better get going.”

As for being a message, a shot across the bow to business, well, let’s just wait and see. Heck, it’s not as if the Majority Leader scheduled the Employee Free Choice Act.

How jarring to see Katie Couric dredge up the “pay gap” canard in her interview with Republican vice presidential candidate Sarah Palin. Couric makes $15 million a year! Pretty good salary for a TV news personality who poses talking points from the labor/grievance caucus instead of coming up with her own informed questions.

That said, Couric’s line of inquiry is useful, more in depth about an employment issue than we’ve seen. Couric should have identifed the bill’s namesake, Lilly Ledbetter, who spoke at the Democratic convention and is now campaigning for Senator Obama’s presidential campaign, but still, a topic worth exploring.

From the CBS transcript:

Couric: The Ledbetter act sort of lengthens the time a woman can sue her company if she’s not getting equal pay for equal work. Why should a fear of lawsuits trump a woman’s ability to do something about the fact that women make 77 cents for every dollar a man makes. And that’s today.

No, that’s not today, and that’s not the case. That premise repeats the usual invidious statistical sophistry used to justify all sorts of government laws, rules and programs. It has been debunked time and time again, as Couric surely knows.

As this testimony from Hudson Institute economist Diana Furchtgott-Roth notes, again:

Just comparing men and women who work 40 hours weekly, without accounting for differences in jobs, training, or time in the labor force, yields a ratio of 88 percent.These wage ratios are computed from aggregate government data and do not take into account differences in education, job title and responsibility, regional labor markets, work experience, occupation, and time in the workforce. When economic studies include these major determinants of income, rather than simple averages of all men and women’s salaries, the pay gap shrinks even more.

A report by Jody Feder and Linda Levine of the Congressional Research Service entitled “Pay Equity Legislation in the 110th Congress,” declared that “Although these disparities between seemingly comparable men and women sometimes are taken as proof of sex-based wage inequities, the data have not been adjusted to reflect gender differences in all characteristics that can legitimately affect relative wages (e.g. college major or uninterrupted years of employment).”

And the Ledbetter act doesn’t not “sort of lengthen” the time you can sue, as Couric claims. It eliminates all statutes of limitations in certain employment suits. You could sue 30 years after the alleged incident under the proposed law, long after the alleged offenders have died or otherwise moved on.

Couric introduced the topic with this “gotcha” question: “Where do you stand on the Ledbetter Fair Pay Act?” How many people who aren’t members of Congress, their staff, or inside the Beltway types would get the reference? Palin did:

Palin: I’m absolutely for equal pay for equal work. The Ledbetter pay act – it was gonna turn into a boon for trial lawyers who, I believe, could have taken advantage of women who were many, many years ago who would allege some kind of discrimination. Thankfully, there are laws on the books, there have been since 1963, that no woman could be discriminated against in the workplace in terms of anything, but especially in terms of pay. So, thankfully we have the laws on the books and they better be enforced.

As a statement of principle, that’s a good one: Don’t discriminate, enforce the law.

And don’t write laws that turn into boons for trial lawyers.

For more, see these posts.

The Senate Judiciary Committee this morning held a hearing, “Barriers to Justice: Examining Equal Pay for Equal Work,” featuring Lilly Ledbetter, now an active campaigner in person and TV ads for Senator Barack Obama’s presidential campaign.

Passage of any Ledbetter-endorsed legislation is now far-fetched this session of Congress, if only for timing, so today’s hearing was a partisan exercise. But as is custom, at least one witness was given a chance to present contrary points of view; in today’s case it was  Lawrence Lorber of Proskauer Rose. In his testimony, Lorber addressed H.R. 1338, the Paycheck Fairness Act, recent employment law cases before the Supreme Court, and the harm that class-action lawsuits cause in employment law.

For more on today’s hearing and Ledbetter litigation/legislation, see these posts at Point of Law:

• The Senate Judiciary hearing on Ledbetter, fair pay
• One last Ledbetter appearance in Congress

From the Chicago Sun-Times:

On Wednesday, Michelle Obama and Lilly Ledbetter, a leader in the battle of equal pay for equal work, take part in a roundtable in Richmond, Va. and headline a Virginia Women for Obama voter registration rally.

Here in Washington during Jeopary last night, the Obama campaign ran an anti-McCain ad, criticizing the Republican presidential candidate for supposedly opposing equal pay for woman.

Along with Ledbetter’s speech at the Democratic National Convention, these developments suggest that the Senate would hold another vote on legislation prompted by the Supreme Court ruling, Ledbetter v. Goodyear Tire & Rubber Co. The bill, H.R. 2831, failed to gain cloture in the Senate in April on a vote of 56-42. 

But indications we’re getting from Capitol Hill is that time is simply running out. Senate Majority Leader Reid just said on the Senate floor that there will be a vote on tax extenders, and then there’s energy legislation that must be debated. Advocates of Ledbetter may have to settle for punctuating their argument “UNFAIR” with a period, not an exclamation mark.

As we’ve written before, H.R. 2831 is a horrible bill that has little to do with fairness. The legislation would throw employment law into chaos, removing all statutes of limitations for discrimination lawsuits and allowing legal claims not just by the person who is charging discrimination but by people “affected” by the supposed discrimination. The bill would be a boon to trial lawyers, but disastrous to employers who could be sued 20, even 30 years after the alleged acts of discrimination took place.

If time runs out for another politically motivated vote on the bill? That would be fair.

More…

UPDATE (3:30 p.m.): The Senate Judiciary today announced a committee hearing for next Tuesday, September 23, “Barriers to Justice: Examining Equal Pay for Equal Work.” Sole witness so far? Lilly Ledbetter.

Lilly Ledbetter, the woman who took her employment discrimination case to the U.S. Supreme Court before finally losing, spoke at the Democratic convention in Denver last night. It was a standard convention speech — short, a statement of grievance followed by advocacy of legislation and praise for the candidacy of Sen. Obama. The remarks are here, and CQ Politics notes how other speakers cited her case. 

You can’t expect policy dissection in 90 seconds, and we’ll also just point to yesterday’s post, which lays out the anti-competitive, litigation-encouraging results of legislation that claims to fix Ledbetter v. Goodyear.

Oh, yes, we’ll also take credit for getting the convention to fix the misspelling of Ledbetter’s first name on the convention agenda. Yesterday, the incorrect Lily. Today, correctly, Lilly. Still wrong here, though. More…

Top union officials are on today’s Democratic convention schedule in Denver as well as people who have complaints about employers, the economy and unfairness. The day has been given the theme, “Renewing America’s Promise,” but we’d guess grievances will predominate.

Especially prominent, scheduled right before the keynote address from Virginia Senate candidate Mark Warner:

Lily Ledbetter
Her actions against Goodyear Tire led to the passage of the Fair Pay Restoration Act

Her first name is actually spelled Lilly, and the bill has only passed the House. But accuracy is less important than narrative at big political events.

In any case, it’s important to know that the legislation proposed to rectify the pay discrimination that Ms. Ledbetter alleged would remove ALL statutes of limitations in workplace discrimination complaints. Twenty years after the fact? You could still sue, even if all the other witnesses were dead. (The House passed H.R. 2831, the Ledbetter Fair Pay Act, by a 225-199 vote on July 31, 2007, but it was stopped in the Senate on the failure to invoke cloture.)

This “solution” actually increases the possibility of employment discrimination, in that there would be an incentive to NOT report complaints, to not bring problems to the attention of the bosses.

We’ve got a lengthier post on the topic at Point of Law.com, and employment lawyer Daniel Schwartz examines the related Fair Pay Act at Overlawyered.com.  We imagine the claims, complaints and supposed solutions will flow freely tonight, so at least we can offer some corrective facts.

More…

• Supreme Court ruling, Ledbetter v. Goodyear Tire & Rubber Co.
• NAM Key Vote letter to Senate.April 22, 2008
• Business Coalition letter to Senate,
• NAM MANUFAct
• AFL-CIO commentary upon introduction of House bill