I was recently intrigued by a question in a marketing piece from one of the major carriers for employment practices liability: “Who is Lilly Ledbetter and how is she helping you sell EPLI?”
Amid the ever-changing legal, economic and social landscape that affects employee-employer relations, numerous articles describe the number of charges filed with the Equal Employment Opportunity Commission, average costs of defense, trends in the types of allegations and by whom, etc. But the Lilly Ledbetter case seemed to put a personal spin on the ever-ongoing issue. So I picked up the telephone and called her in Jacksonville, Ala.
To reiterate, Ms. Ledbetter worked as a supervisor for Goodyear Tire from 1979 until 1998, at which time she took early retirement upon Goodyear’s closing of its Gadsen, Ala., location. As many corporations required, she had originally signed an agreement not to discuss salary issues with fellow employees. Just before retirement, however, someone anonymously gave her information that compared her salary with salaries of three male co-workers.
Ensuing developments revealed that at retirement she was earning $3,727 monthly compared to 15 male co-workers who earned between $4,286 and $5,236 each month.
In November 1998, she sued, claiming pay discrimination under Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963.
During our telephone conversation, Ms. Ledbetter pointed out the issues that prompted her suits go beyond a monthly salary differential into other areas such as lower pay for overtime, amount of money contributed to a 401(k) plan, Social Security, one’s company retirement plan and often the impact felt on other family members for clothing, food, quality education, care for elderly parents and so forth.
In the ensuing court cases, Lilly Ledbetter won her case in district court and was awarded $3 million (later reduced to $300,000). But as anticipated, Goodyear appealed and the Court of Appeals for the Eleventh Circuit overturned the lower court ruling. The United States Supreme Court eventually ruled in favor of Goodyear as well.
At issue in the ruling was the 180-day statute of limitations applicable “after the alleged unlawful employment practice occurred”—in this case discrimination as respects compensation based on gender. Ms. Ledbetter had claimed that each check issued is an act of discrimination; the court held no evidence of intended discrimination existed in the issuance of compensation.
Authors of the minority opinion felt, in part, that compensation amounts are nearly always confidential—not available for comparison among employees, difficult to determine, occur in small increments over long periods of time, concluding that the 180-day statute should not apply in the Ledbetter case.
Enter the Lilly Ledbetter Fair Pay Restoration Act of 2009, which among other things restarts the statute of limitations with each check issued on a discriminatory basis. The impact of this legislation is sure to be felt for years to come.
While many may be tempted to say “Hooray for Lilly Ledbetter,” a further concern is the degree to which small and midsize business owners are aware of the above example and other such changes in local, state or federal laws enhancing the rights of their employees within the legal system. (The same issues apply with nonprofit entities.)
And while many corporations are astutely aware of the changing legal landscape, one suspects that most are not.
More than ever, there is a need to promote the purchase of EPLI for an employer’s protection. It could be the most important insurance purchase a business owner makes today.
Even though employers are many times over more conscientious and thoughtful than in the past when it comes to employee policies such as gender and diversity issues, sexual harassment, and various forms of discrimination, they should also realize that:
• Employees also are increasingly aware of their rights under the law.
• Even when an employee’s case might seem to be groundless and without merit, lawsuits can be quite expensive and time-consuming for smaller business owners.
When agents and brokers take the time to explain the risks and coverages of EPLI, they are very likely to bind the policy.
More and more, carriers are expanding the availability of this class of business. So far, the ever-increasing number of has seemingly not deterred the market.
Most major carriers can provide examples of prior claims and the amounts paid for either defense, settlement or both within their marketing material. Or they can provide equally important examples where the employer won his or her case but still had a large legal bill.
Such material can be a real asset in getting an insured’s attention. The key is to approach a client with enough examples so that he or she can say, “Hey, that might happen to me!”
If feasible, remind a client that uncovered employment claims can financially damage a firm—especially if several employees are involved—and such financial situations can make future operations difficult at best. And if possible, have the client’s human-resources representative present during the sales call, as HR people are advocates of EPLI.
As in the case of Lilly Ledbetter, employment law is continually evolving. What appears a non-issue today might not be tomorrow.
A final word to any and all prospects for EPLI coverage—consider the form being purchased. In particular, beware of purchasing solely on premium. For example, it pays to see if the carrier offers a helpline for employment issues. This service can be invaluable in navigating the legal minefield of employment relations.
Finally, while a major corporation may in a given instance use delaying tactics within the court system or may have the resources to mask a bad public-relations issue, these options usually aren’t available for the midsize- or small-business owner should an EPLI issue strike.
And now back to Lilly Ledbetter.
At age 72, she travels throughout the United States, giving talks to various groups about her battle with Goodyear at their expense. (She cannot afford to travel on her own). In an interesting twist of events, she continues to make today’s employees ever more aware of their rights under today’s employment law.