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The Retail Employer

 July 2007

U.S. Supreme Court Protects Employers from Stale Pay Discrimination Claims

by David E. Nagle

In a major victory for the employer community, the U.S. Supreme Court’s May 29, 2007 decision in Ledbetter v. Goodyear (No.05-1074) provides critical protection to employers against stale discrimination claims based on events long past.

Title VII sets reasonable and appropriate deadlines for bringing discrimination claims (180 days after the alleged discrimination to file with the EEOC, and 300 days after the alleged discrimination to file with a state agency). The Court held that for pay discrimination claims, as for other kinds of discrimination claims, the deadline for filing the claim is measured from the date of the allegedly discriminatory pay decision, consistent with the specific statutory requirements of Title VII. In this case, negative performance evaluations many years earlier had limited the employee’s pay raises at those times. Lily Ledbetter could not show that the employer had made any discriminatory decision within the charge-filing period, but relied on the fact that her paycheck continued to be lower because of earlier evaluations.

The Court relied upon both the statute, and on prior rulings that the time allowed for asserting a discrimination claim is not extended by the fact that the employee continues to feel the effects of a past employment decision. The Court’s opinion limits dramatically a prior decision on deadlines for bringing pay claims, and squarely rejects the argument that each new paycheck re-starts the time for challenging an employee's prior pay history.  The Court emphasized the importance of enforcing charge-filing deadlines to protect employers from the unfairness of having to reconstruct and defend events long after they had occurred.

Note: There are efforts underway in Congress to modify the federal discrimination statutes in order to reverse the effect of this decision.  The administration has said that the President will veto such legislation.

David E. Nagle conducts seminars for members of the Retail Merchants Association, and has been retained by the Association to assist members through the Labor Law Information Program. David has advised and represented Virginia employers with respect to legal issues in the workplace for 25 years. Recently is with Jackson Lewis LLP, a firm with over 400 employment lawyers in 29 cities across the country. He may be reached at (804) 648-4077, or by email at nagled@jacksonlewis.com.

Calls requesting information on the Labor Law Information Program should be directed to Preston Perrin with the Retail Merchants Association at 804-662-5500.

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Communicate with Employees to Equip Them for Success

One of the primary skills for any worker is communication. Whether you are managing a team of accountants, working directly with customers or supervising in a factory, it’s essential from the top of the ladder to the bottom. However, many people today don’t communicate effectively on the job – including managers. Many employers assume that workers should come to them for direction or instructions rather than being proactive and approaching their employees. But, the truth is that employers and supervisors who take the extra effort to communicate with each of their employees will come out ahead. Here are five vital communication tips you can use in your workplace today.

  • Offer clear guidance from the get- go. One of the most important communication tools between employers and employees is the job description. Make sure whenever you hire new employees that their job description is clear, accurate and goals-driven. Making sure your employees are equipped with proper directions in the form of a clear job description will ensure they get to the right destination of achieving their goals.
  • Assume people won’t ask for help. As a manager, employer or supervisor, one of your key responsibilities is the success of those who report to you. But you can’t force people to come to you for help. You can only control your effort in communicating. If you see an employee struggling to figure something out, be proactive and offer help. As the manager, you will be held accountable for their performance – whether by your boss, your customers or your market share. Take the time to offer your assistance to employees, and you’ll see it’s worth the effort.
  • Conduct regular performance reviews. Performance reviews are a vital communication tool for any employer. Though it’s a formal process, reviews are designed to equip you to address positive and negative aspects of an employee’s performance. It may be difficult to bring up areas where employees need improvement in the regular course of the workday, but a formal review is the perfect time to communicate any areas that need help. They’re also a great time to reward top employees for great performance.
  • Check in regularly. Set a time for regular updates with each employee beyond the annual review. Experts recommend scheduling a regular meeting ranging from once a week to once a month, based on what each employee needs and feels comfortable with. This can be an informal 15 minute conversation in which the employee asks for feedback, advice or direction. Make sure that this time is all about your employee and not devoted to your own agenda. You can always call a staff meeting to talk about your ideas and projects. Employees need a time of their own to communicate with their bosses as a way to establish trust.
  • Understand generational differences. You may manage people older than you or younger than you, but chances are, everyone in your workplace isn’t in the same generation. The four generations currently in the workforce include: Traditionalists, Baby Boomers, Generation Xers and Millennials. Members of each of these generations have different communications preferences, and you may need to tailor your efforts, timing and approach to suit the specific needs of each generation.

Focusing on communicating with each of your employees is a vital part of ensuring that you are an indispensable part of their success. People who know their boss cares about them because they communicate effectively and regularly will be more productive, loyal and engaged in their work. 

This article is reprinted with permission of www.ExpressPersonnel.com. Contact Mr. Lars Nordin at Lars.Nordin@ExpressPersonnel.com if you would like to be added to their distribution list.

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Uncomfortable Doing Interviews?

Interviewing seems so complex with many legal do’s and don’ts that often seem to be in conflict with your objective—to get the facts. Two simple rules always helped me.

  1. Always prepare open-ended questions ahead of time.
  2. Understand “Past behavior is the biggest key to predicting future behavior.”

Questions:

Open-ended questions are questions that cannot be answered with yes or no answers. Yes and No answers tell you little or nothing about the candidate. Prepare questions that make the candidate tell you about themselves. Open-ended questions take the pressure off the interviewer and put it on the candidate..

Some examples are:

    • Tell me about a time when . . .
    • Help me understand why . . .
    • Tell me more about . . .

In a good interview the candidate should do most of the talking. If you find yourself “selling” them the position rather than probing their background you are missing key information that can guide your interview questions for maximum effect.

Past Performance:

Past performance is one of the key elements in your hiring decision. I found this old adage to be true, “Past behavior is the best predictor of future behavior.” You do not have to rely on your intuition. Candidates will tell you how they behaved if you are prepared, listen and ask follow up questions.

Initial interviews present your best opportunity to get insights into future employees.

This article is reprinted with permission of Mike Dunleavey, mikedunleavey@iib.ws, Executive Associate - Business Support Center - Retail Merchants Association.

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