One piece of legislation that Barack Obama passed that has serious detrimental effects on business is the Lilly Ledbetter Fair Pay Act of 2009. Some background. There is a 180 day clock to bring a discrimination lawsuit for failure to pay a person equally based on being a member of a protected class. The idea of this clock is prevent evidence from going stale – if a plaintiff waits years or decades, the defendant’s key witnesses may age or disappear, making it difficult to mount a defense. Moreover, the law has an interest in making sure claims are promptly adjudicated so that parties can move about their lives; if there is uncertainty about possible legal exposure due to ancient actions, businesses will be hesitant to invest for the future (especially if the evidence needed to defend themselves has gone missing in the interim).
Well, Obama changed the law so that instead of having to bring a lawsuit within 180 days after the alleged discrimination occurred, now a plaintiff can bring a lawsuit decades after the fact if he/she receives compensation/benefits from such discrimination. Here’s how it would work. Say your friend works for a company in 2010. In 2015, she feels she was denied a promotion due to her race/gender/religion/other protected class. But she doesn’t do anything, and as a result accrues less money for retirement then she would otherwise have accrued. In 2016, she gets the promotion, but still has a smaller pension than otherwise. She stays with the company until 2070, when she retires and starts collecting a monthly pension from the employer which is slightly smaller than it would have been had she received the promotion in 2015 instead of 2016. In 2075 she brings a lawsuit for the alleged discrimination that occurred in 2015. She can do this in spite of the 180 day clock because every time she receives a pension check, a new “episode” of discrimination occurs under the Lilly Ledbetter Fair Pay Act.
This monstrosity has obvious implications for liability exposure for businesses – namely, they can never be sure that an ancient claim isn’t going to spring up and bite them. Its bad policy, and it is another example of how Obama’s decisions have hurt the American Economy. Also guess what – Michael Bennet voted for this monstrosity.
So when you see Michael Bennet say that Ken Buck is too extreme for Colorado, think about the Lilly Ledbetter Fair Pay Act. Think about the stubbornly high unemployment we still have despite hundreds of billions in wasted stimulus dollars. And think about how Michael Bennet voted to let employers get sued decades after the fact, when all evidence to defend themselves will have disappeared, on possibly frivolous grounds.
1) This is not legal advice – I could be wrong, and I am not your attorney
2) I am not your attorney. If you rely on this, that is your problem, not mine, as I could be wrong.
3) See 1&2
About the author (updated in July 2012): Elliot Fladen is an attorney practicing law in Colorado Springs, Colorado
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