14 February 2009
Security clearances and the initial stages.
William H. Henderson, Security Clearance Manual: How To Reduce The Time It Takes To Get Your Government Clearance, Last Post Pub., 2007, an excellent starting point for the uninformed.
31 January 2009
Ledbetter -- Equal Pay Issues
Lilly Ledbetter Fair Pay Act of 2009 (Enrolled as Agreed to or Passed by Both House and Senate)
S.181, One Hundred Eleventh Congress
An Act:
To amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.
This Act may be cited as the `Lilly Ledbetter Fair Pay Act of 2009'.
EFFECTIVE DATE: This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973, that are pending on or after that date.
Thus statutorily retroactive to certain past claims.
S.181, One Hundred Eleventh Congress
An Act:
To amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.
This Act may be cited as the `Lilly Ledbetter Fair Pay Act of 2009'.
EFFECTIVE DATE: This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621 et seq.), title I and section 503 of the Americans with Disabilities Act of 1990, and sections 501 and 504 of the Rehabilitation Act of 1973, that are pending on or after that date.
Thus statutorily retroactive to certain past claims.
29 January 2009
USERRA
The Department of Justice today filed a lawsuit on behalf of Suzanne L. Halverson, an Army National Guard member, against Grand Forks County, N.D., alleging violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which prohibits employers from discriminating against service-members because of their past, current or future military service obligations.
Ledbetter - Is Law
On May 29, 2007 the U.S. Supreme Court held in a 5-4 decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc. that a plaintiff must file an EEOC charge within the statutory time period after an alleged discriminatory pay decision is made and communicated to the employee. The charge would be considered untimely if the discriminatory acts occurred outside of the charging period even if the result was continuing unequal pay in later pay checks.
Congress now has passed law to amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.
The Act may be cited as the `Lilly Ledbetter Fair Pay Act of 2009'.
Congress found that “the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.
And that the limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended.
With regard to any charge of discrimination under any law, nothing in this Act is intended to preclude or limit an aggrieved person's right to introduce evidence of an unlawful employment practice that has occurred outside the time for filing a charge of discrimination.
Congress also specified that : “Nothing in this Act is intended to change current law treatment of when pension distributions are considered paid."
To achieve its stated purposes, Congress then amended Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(e) and wrote that in addition to any relief authorized by 42 U.S.C. 1981a, liability may accrue and an aggrieved person may obtain relief as provided in the amended statute including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.
This timeliness provision is significant, will impact numerous cases of discrimination, and specifically addresses the impact of the Supreme Court’s holding in Ledbetter. By amending also 42 U.S.C. 2000e-16 and 29 U.S.C. 633a, Congress further applied the Ledbetter Act to federal employee complaints of discrimination in compensation.
More details from the Act are at http://federal-employment.net at the Ledbetter Act 2009 link.
Bill Aramony at billcfr@earthlink.net
This comment is NOT legal advice. It is discussion and general impressions for educational purposes. See an attorney for legal advice.
Congress now has passed law to amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.
The Act may be cited as the `Lilly Ledbetter Fair Pay Act of 2009'.
Congress found that “the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.
And that the limitation imposed by the Court on the filing of discriminatory compensation claims ignores the reality of wage discrimination and is at odds with the robust application of the civil rights laws that Congress intended.
With regard to any charge of discrimination under any law, nothing in this Act is intended to preclude or limit an aggrieved person's right to introduce evidence of an unlawful employment practice that has occurred outside the time for filing a charge of discrimination.
Congress also specified that : “Nothing in this Act is intended to change current law treatment of when pension distributions are considered paid."
To achieve its stated purposes, Congress then amended Section 706(e) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5(e) and wrote that in addition to any relief authorized by 42 U.S.C. 1981a, liability may accrue and an aggrieved person may obtain relief as provided in the amended statute including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.
This timeliness provision is significant, will impact numerous cases of discrimination, and specifically addresses the impact of the Supreme Court’s holding in Ledbetter. By amending also 42 U.S.C. 2000e-16 and 29 U.S.C. 633a, Congress further applied the Ledbetter Act to federal employee complaints of discrimination in compensation.
More details from the Act are at http://federal-employment.net at the Ledbetter Act 2009 link.
Bill Aramony at billcfr@earthlink.net
This comment is NOT legal advice. It is discussion and general impressions for educational purposes. See an attorney for legal advice.
Equal Pay for Equal Work
SCOTUSBlog reports the following (and it's one of many).
Clearly the act applies to current employees receiving a current paycheck. But, what if you've just discovered the issue, you've retired, and your retirement check is based on your former employment? Is there an argument that your retired pay check should reflect equal pay?
Rewriting a law to overcome a narrowing by the Supreme Court, Congress on Wednesday finished passage of a bill that will make it illegal each time an employer writes a paycheck that gives some workers less than others, because of race, sex, disability, religion or national origin. The so-called “Lilly Ledbetter Fair Pay Act of 2009″ has been assured of approval by President Obama, and, when signed into law, will apply to bias claims that were in court as of May 28, 2007, or after that date. The text of the new law, Senate bill 181, in final form, can be found here.So now the questions begin.
Clearly the act applies to current employees receiving a current paycheck. But, what if you've just discovered the issue, you've retired, and your retirement check is based on your former employment? Is there an argument that your retired pay check should reflect equal pay?
25 January 2009
Military Member & Clearance Investigations
Are you Active Duty and meeting with a security clearance investigator? Got some current or past misconduct in your life? What are your rights under Article 31, UCMJ, 10 U.S. Code § 831, when being "investigated?" Not what you think perhaps -- read United States v. Payne, 47 M.J. 37 (C.A.A.F. 1997).
In this case the service-member-appellant had been accused of rape. Appellant did not confess and also rejected a polygraph on the advice of counsel. Eventually the charges were dropped and he was allowed to go to his new duty assignment. Once at his new assignment he submitted an application to revalidate his security clearance. During the interview process with a DIS (civilian) investigator the prior rape allegation was discussed and a polygraph offered. Appellant agreed to submit to a polygraph. Prior to the pretest the DIS agent advised appellant of his rights under Article 31, UCMJ, and also, strangely because it was non-custodial, of a right to counsel. There was some discussion about appellant's "former" attorney but no contact or request for counsel was made. Ultimately, the appellant failed the polygraph and confessed to the prior rape allegation.
The following points flow from this case.
1. Under the circumstances this was not a criminal investigation or interview.
2. The DIS agents were not subject to the Code.
3. Mil. R. Evid. 305(e) was not violated.
The following lesson can be taken from this case.
1. Remember that when seeking a security clearance anything you say might end up being reported to law enforcement.
2. This is an important point because one of the reasons a security clearance can be denied is failure to cooperate in a security clearance investigation.
3. You are between Scylla and Charybdis (a rock and a hard place).
The following actions should be taken in a situation like this.
1. Stop the interview.
2. Tell the interviewer you'd like to seek legal advice and get back to him/her.
3. Talk to a lawyer knowledgeable in security clearance matters and the UCMJ.
4. You won't be denied a clearance just because you want to speak to a lawyer. And you can have a lawyer present (as we have done in cases).
In this case the service-member-appellant had been accused of rape. Appellant did not confess and also rejected a polygraph on the advice of counsel. Eventually the charges were dropped and he was allowed to go to his new duty assignment. Once at his new assignment he submitted an application to revalidate his security clearance. During the interview process with a DIS (civilian) investigator the prior rape allegation was discussed and a polygraph offered. Appellant agreed to submit to a polygraph. Prior to the pretest the DIS agent advised appellant of his rights under Article 31, UCMJ, and also, strangely because it was non-custodial, of a right to counsel. There was some discussion about appellant's "former" attorney but no contact or request for counsel was made. Ultimately, the appellant failed the polygraph and confessed to the prior rape allegation.
The following points flow from this case.
1. Under the circumstances this was not a criminal investigation or interview.
2. The DIS agents were not subject to the Code.
3. Mil. R. Evid. 305(e) was not violated.
The following lesson can be taken from this case.
1. Remember that when seeking a security clearance anything you say might end up being reported to law enforcement.
2. This is an important point because one of the reasons a security clearance can be denied is failure to cooperate in a security clearance investigation.
3. You are between Scylla and Charybdis (a rock and a hard place).
The following actions should be taken in a situation like this.
1. Stop the interview.
2. Tell the interviewer you'd like to seek legal advice and get back to him/her.
3. Talk to a lawyer knowledgeable in security clearance matters and the UCMJ.
4. You won't be denied a clearance just because you want to speak to a lawyer. And you can have a lawyer present (as we have done in cases).
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