In Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 (May 29, 2007), the United States Supreme Court held that Title VII's statute of limitations for filing a discrimination charge with the Equal Employment Opportunity Commission begins to run when a discriminatory pay decision is made and communicated to the employee; it does not restart each time a subsequent paycheck is issued. The decision essentially prevents employees from claiming discrimination in their pay due to decisions made years before.
However, in response to the ruling, the U.S. House passed the "Ledbetter Fair Pay Act of 2007," seeking to overturn the Ledbetter decision and allowing employees to file discrimination claims years after a compensation decision was made. In addition, this legislation not only covers wages, but also vacation benefits, pensions and all other forms of employee compensation, in addition to broadening employees' rights to file compensation discrimination claims under other anti-discrimination laws as well.
While it is likely the original Ledbetter ruling will stand at least for the remainder of this Congress (due to threats of a Presidential veto if the Senate bill passes), this is, nevertheless, an important reminder for construction industry employers to, among other things: put in place neutral performance evaluation systems, train employees conducting performance evaluations, and communicate with employees about the basis for all compensation decisions. Taking such proactive steps will avoid employee discontent over pay differences and minimize the likelihood of pay discrimination claims.
Pro-Union Bills In Congress
Two bills are pending in Congress which, if they become law, could have a significant impact on construction-industry employers.
First, the U.S. House of Representatives has passed the Employee Free Choice Act, which proposes sweeping changes to the National Labor Relations Act's (NLRA) long-standing rules on union organizing campaigns and collective bargaining. The bill would: (1) require employers to recognize and bargain with unions based only on a "card check," rather than a supervised secret ballot election; (2) dramatically alter the collective bargaining process by requiring that a third-party arbitrator be given the power to impose contract terms upon an employer where the employer and union fail to reach agreement on an initial contract; and (3) substantially increase penalties imposed on employers for labor law violations during union campaigns.
Second, in 2006 the National Labor Relations Board (NLRB) issued a series of decisions clarifying who is a supervisor under the National Labor Relations Act (NLRA). The designation of "supervisor" is important because they are generally excluded from NLRA protection. A bill pending in Congress, the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act, would overturn the NLRB's decisions and narrow the statutory definition of "supervisor." This and other changes to the NLRA proposed in the bill would promote unionization and reduce the number of excluded supervisors.
Taken together, should these bills become law they will make it easier for unions to organize workers at non-union construction companies and increase the number of workers entitled to unionize. They would also strengthen the hand of unions in initial collective bargaining negotiations. Industry employers should consider how these bills could impact their businesses, and notify their Congressional representatives of their position on them.
In conclusion, construction company leaders need to keep abreast of this evolving legal landscape impacting the employer-employee relationship. Taking steps to ensure your company is in compliance with applicable laws and regulations will minimize the potential for employment-related lawsuits. Familiarity with the potential effects of proposed legislation will also help you adapt to the ever-changing legal environment and ensure the long-term health of your business.
George A. Voegele, Jr., a member of the labor & employment practice group at Cozen O'Connor (one of the 100 largest law firms in the United States), has represented the construction industry in diverse matters, ranging from defending wage/hour and discrimination claims to handling administrative proceedings to conducting labor arbitrations and union prevention campaigns. Voegele can be reached at email@example.com