Lilly Ledbetter Fair Pay Restoration Act

President Barack Obama signed the Lilly Ledbetter Fair Pay Restoration Act into law on January 29, 2009. This new law reduces the affect of the statute of limitations in wage discrimination cases and significantly increases the class of protected employees. The new law is likely to result in a greater number of discrimination claims against employers.

The Ledbetter Act prohibits discrimination against all of the protected categories under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act. These protected categories include race, color, religion, national origin, age, and disability. The Ledbetter Act establishes that each discriminatory paycheck is considered a new act of discrimination, which resets the 180-day statutory limit to file a discrimination claim. It also limits the ability of employees to recover back pay for no more than two years before they raise the discrimination claim. The law creates an incentive for employers to correct any continuing discriminatory pay practices. Employers will no longer be able to rely on keeping discriminatory pay initially hidden as a way to avoid liability.

The Ledbetter Act was inspired by Lilly Ledbetter, who worked for Goodyear in Gadsden, Alabama for 19 years, and is now retired. Ledbetter filed a complaint with the United States Equal Opportunity Employment Commission (EEOC) in March 1998. She alleged that men at her Goodyear plant, who performed similar work, were paid 15 to 40 percent more than she was paid. Employment records supported Ledbetter’s claim and she demonstrated that she was being paid $6,000 less than men doing identical work. This group of employees included those who were the lowest paid in their job category.

The EEOC and a jury ruled in Ledbetter’s favor, and she was awarded $360,000 in back pay. However, the United States Court of Appeals for the Eleventh Circuit later rejected Ledbetter’s claim. The court chose to limit her lawsuit to discrimination, which may have happened in the six-months prior to her complaint with the EEOC. A three-judge panel also dismissed the pay discrimination allegations during that 180-day time period. Then, in a 5-4 ruling, the United States Supreme Court ruled in favor of Goodyear in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007). The court concluded that Ledbetter had only a 180-day window in which to make her initial claim. The Ledbetter Act, thus, overrides this Supreme Court ruling.

Changes in Minimum Wage Requirements Nationwide

Eleven states have increased the minimum wage for employers subject to state wage and hour laws since January 1, 2009.

• Arizona - Minimum wage increase to $7.25 per hour
• Colorado - Minimum wage increase to $7.28 per hour; Tipped employees must be paid at least $4.26 an hour, with tips and wages totaling at least $7.28 an hour
• Connecticut - Minimum wage increase to $8.00 per hour
• Florida - Minimum wage increase to $7.21 per hour; Tipped employees must be paid a direct wage equal to the minimum wage of $7.21 minus $3.02 (the tip credit under the federal Fair Labor Standards Act), or $4.19 per hour
• Missouri - Minimum wage increase to $7.05 per hour*; Tipped employees must be paid by their employer at least 50% of the minimum wage rate and tips plus cash wages must equal at least $7.05 per hour
• Montana - Minimum wage increase to $6.90 per hour* (Employers are prohibited from using tips to reach the minimum wage owed the employee)
• New Mexico - Minimum wage increase to $7.50 per hour
• Oregon - Minimum wage increase to $8.40 per hour
• Vermont - Minimum wage increase to $8.06 per hour; Tipped employees must be paid at least $3.91 per hour, and cash wages plus tips must equal at least $8.06 per hour (Employer must make up the difference if the wage falls short of the minimum wage)
• Washington - Minimum wage increase to $8.55 per hour (Employers are prohibited from using tips to reach the minimum wage owed the employee)
  *Note: On July 24, 2009, when the federal minimum wage increases to $7.25, employers must pay the higher federal minimum wage.

The current Federal Minimum wage is $6.55 per hour and will increase to $7.25 per hour as of July 24, 2009. Among individual states, the United States Department of Labor Wage and Hour Division indicates that, Washington has the largest minimum wage of $8.55 per hour and Kansas has the lowest minimum wage of $2.65 per hour (as of January 1, 2009). Meanwhile, Alabama, Louisiana, Mississippi, South Carolina, and Tennessee do not currently have state mandated minimum wage requirements.

Thanks for reading our blog. The National Justice Coalition is made up of Plaintiffs Attorneys in the United States who have been recognized by Best Lawyers in America, Super Lawyers and who have received the top rating of Martindale Hubbell, the leading directory of lawyers in America.

If you have a comment or question, please feel free to reply to this posting, or send us an e-mail. Keep in mind that your comments will not be confidential. If you believe your employer has violated the law with regard to state or federal wage and hour requirements, please feel free to contact us at the National Justice Coalition regarding your legal matter.

Structural Collapse

The United States Department of Labor, Occupational Safety & Health Administration defines a structural collapse as occurring when an internal load bearing structural element fails, resulting in a building collapsing either into itself or outward. A structure can collapse for a variety of reasons, with faulty construction or design being major causes. Earthquakes, fire and weather can also contribute to a structural collapse, although in those instances construction flaws could represent the underlying cause of a collapse.

The owners of buildings, dams, bridges, stadiums, or other structures have an incentive to prevent structural collapse to avoid liability. In general, property owners have a duty to keep their property safe. Builders also have a duty to construct safe buildings that conform to existing building codes and rules, such as the extensive earthquake preparedness building codes in California or building codes in Florida designed to face hurricanes.

Causes of Structural Collapse

Bridges represent a regularly used structure susceptible to structural collapse. According to a study by the American Society of Civil Engineers’ (ASCE), of the 500 bridge failures that occurred in the United States between 1989 and 2000, more than 20% of all failures were attributed to defects in design, detailing, construction, material, and/or maintenance. ASCE also reported that in 2003 more than a quarter of all United States bridges were "structurally deficient or functionally obsolete." For example, ASCE determined that 17% of Illinois bridges in Illinois were also found to be "structurally deficient or functionally obsolete." Based on these statistics, the threat of a bridge collapse remains an unfortunate, but real, possibility.

Similarly, the Dam Safety Coalition (DSC) indicates that there are more than 3,500 dams which states report as having deficiencies that leave them susceptible to failure. The DSC also notes that a few states have large numbers of unsafe dams, including Pennsylvania, New Jersey, and New Hampshire.

Overall, any structure, big or small, runs the risk of a structural collapse because of the multitude of stresses that any structure undergoes on a regular basis. The following are common reasons for a structural collapse:

• Faulty construction
• Poor design
• Foundation failure
• Structural defect
• Safety deficiency
• Extraordinary loads which a foundation was not designed to support
• Inadequate pier design or construction
• Poor workmanship

Examples of Structural Collapse

Structural collapse can affect some of the following common structures:

• Porch
• Deck
• Stairway
• Balcony
• Ceiling
• Walls
• Bridges
• Dams
• Skyscrapers
• Overpasses

Regardless of the type of structural collapse, however, this event can be very costly to the victims and survivors affected by such an incident. In addition, a structural collapse also can be very financially costly to parties that are found liable for a collapse.

For example, the January 17, 1994 Northridge Earthquake in the Los Angeles area caused extensive property loss but because of California building code regulations, less than 60 people died in the quake overall. However, 16 of the fatalities occurred all in the Northridge Meadows Apartment Building because of structural collapse, according to the Consortium for Universities for Research in Earthquake Engineering.

A major structural collapse occurred in Minneapolis, Minnesota, when the I-35 Mississippi River Bridge collapsed in 2007. According to State of Minnesota, a panel in St. Paul, Minnesota, is currently deciding how to divide $36.6 million among the 179 victims who have submitted claims. In comparison, a dam collapse at Silver Lake Dam in Michigan in 2003 resulted in more than $100 million in damages, according to the DSC.

While high profile structural collapses receive a great deal of attention, smaller structural collapses occur on more regular basis. In Los Angeles, an apartment building recently collapsed. Its owner had been convicted of health and safety violations the previous year. The Los Angeles Times reports that the collapse is still under investigation, although the building’s age and construction are considered as possible causes.

Thanks for reading our blog. The National Justice Coalition is made up of Plaintiffs Attorneys in the United States who have been recognized by Best Lawyers in America, Super Lawyers and who have received the top rating of Martindale Hubbell, the leading directory of lawyers in America.

If you have a comment or question, please feel free to reply to this posting, or send us an e-mail. Keep in mind that your comments will not be confidential. If you are a victim or a loved one has been a victim of a structural collapse, please feel free to contact us at the National Justice Coalition to find a qualified lawyer in your area.

Developing Law Affects Whistleblowers

Fourth Circuit Ruling on Whistleblowers May be Considered by the U.S. Supreme Court

The United States Court of Appeals for the Fourth Circuit, in a June 9, 2008 decision allowed a whistleblower to bring fraud claims. These claims were raised on behalf of the federal government, using the False Claims Act (FCA). The Fourth Circuit allowed the claims to go forward (by remanding the case to the lower court), despite any possible limits that the FCA could place on the claims. The FCA specifically prohibits whistleblower lawsuits based on allegations that have been publicized by federal government documents, such as in administrative audits, reports, hearings or investigations. The Fourth Circuit determined that the public disclosure jurisdictional bar that the FCA places on claims only applies to federal government documents. The Fourth Circuit chose not to apply the same bar to comparable state public documents.

In this case, two North Carolina Counties, Graham and Cherokee County, are alleged to have fraudulently sought federal money for storm cleanup. The counties were alleged to have sought bids improperly. Allegations were also raised that the work performed for the counties did not meet county contract regulations. The whistleblower in this case was a secretary for Graham County, Karen Wilson, who had concerns with the conduct of some officials in the counties.

The United States Supreme Court, as reported by the Boston Globe, has shown interest considering the appeal of this decision. The Supreme Court has requested Department of Justice advice on the case. A decision by the Supreme Court could set new limits on whistleblower lawsuits against drug makers, biotechnology companies, and other businesses who engage in business with the government. For example, if the Supreme Court decided not to allow an FCA claim based on information only contained in state public documents, there could be a reduction in FCA claims.

For a broader view of the prevalence of FCA claims, the United States Department of Justice, Civil Division in the Commercial Litigation Branch - that focuses on Civil Fraud - maintains statistics on FCA claims. In 2008, fraud cases resulted in more than $1 billion in settlements and judgments, with a majority arising from claims in the area of health and human services. From those settlements and judgments, individual parties bringing claims on behalf of the government received more than $190 million under the FCA. A ruling by the Supreme Court on this case could change the number of claims and the amount awarded under the FCA.

Fourth Circuit Issues Another Ruling That Affects Whistleblowers

In a December 3, 2008 decision, the Fourth Circuit determined that whistleblowers need to be specific in their allegations of fraud, to be protected from retaliation. This decision affirmed an administrative law appeal decision affecting a corporate whistleblower. The Fourth Circuit based this ruling on Sarbanes-Oxley (SOX). The United States Department of Labor, Occupational Safety and Health Administration, under the Whistle Blower Program, provides the SOX section, Sarbanes-Oxley Act, 18 U.S.C. § 1514A that the Fourth Circuit used to render its decision.

In the case, a labor relations manager for the Airline Pilots Association (union), Stacey Platone, observed that Atlantic Coast Airlines (ACA) was not billing the union for flight-loss time. ACA was effectively paying its pilots during times in which the pilots were attending union meetings, not flying. After raising the issue with her supervisor, Platone was fired.

An administrative law judge, prior to the Fourth Circuit’s review of the case, determined that the Platone had a reasonable basis for believing the company was engaging in fraud. The judge also determined that the company knew of this concern prior to firing Platone. The Department of Labor's Administrative Review Board (ARB), however, overturned the decision. The ARB found that Platone had not specifically informed the company that she had a belief that ACA had a scheme to provide improper payments to union officials. With its decision, the Fourth Circuit has now approved the ARB’s decision.

This ruling could make the process of raising an allegation of fraud more difficult for a whistleblower. An individual may not always have enough information to specifically raise a fraud claim, before an employer acts to end the whistleblower’s employment or take any other action against the employee. It is unclear how far reaching this Fourth Circuit decision could be. The U.S. Supreme Court has not ruled on this case.

Thanks for reading our blog. The National Justice Coalition is made up of Plaintiffs Attorneys in the United States who have been recognized by Best Lawyers in America, Super Lawyers and who have received the top rating of Martindale Hubbell, the leading directory of lawyers in America.

If have a comment or question, please feel free to reply to this posting, or send us an e-mail. Keep in mind that your comments will not be confidential. If you are considering or have already alleged misconduct on the part of an employer or company, and fear or have already experienced punishment as a whistleblower, please feel free to contact the whistleblower attorneys at the National Justice Coalition regarding your legal matter.

Predatory lending affecting federal mortgage program

Predatory lending involves abusive lending practices that leave borrowers financially vulnerable. Predatory lenders often convince borrowers to agree to various lending terms that have no benefit to the borrower, such as:

• Excessive fees
• Abusive prepayment penalties
• Unnecessary loan products
• Mandatory arbitration
• “Steering and Coercing”: convincing borrowers to take on sub-prime mortgages when the borrower could qualify for a traditional mortgage
• “Loan flipping”: a borrower refinances a loan without any net benefit to the borrower
  

These questionable lending practices take place in different lending arenas, such as pay day loans, overdraft loans, credit card loans, car title loans, refund anticipation loans, and mortgage lending. The predatory lending industry has often focused its efforts on low income home owners and other financially vulnerable groups.

Predatory lending is now expanding its affect on the mortgage market. The United States Department of Housing and Urban Development (HUD) revealed in an assessment, that the Federal Housing Administration (FHA) lacks the resources to protect consumers from predatory lenders. The increasing quantity of lender and brokers looking to be covered by FHA makes this a pressing issue.

FHA is the world’s largest government insurer of mortgages. The agency provides mortgage insurance on single and multifamily homes by FHA approved lenders throughout the United States. Generally, loans insured by FHA must meet certain requirements to qualify for the FHA insurance. When loans are covered by FHA, lenders bear a reduced level of risk because FHA pays the lender if a borrower defaults on his or her loan.

With the lending market undergoing upheaval, lenders in greater numbers are seeking the protection that FHA offers against borrower default. As evidence of FHA’s increasing involvement in the home mortgage market, there has been a 525% increase in the number of FHA lender approvals between 2006 and 2008. This raises the current total of FHA appraisers to 3,300. With this increase in lender approvals, FHA is also now serving metropolitan areas that FHA had not served previously.

Even with FHA experiencing unprecedented lender interest, the HUD report reveals that FHA currently has insufficient staffing and lacks appropriate technology. Moreover, the report also notes that FHA also does not have the legal authority needed to determine whether the lenders attempting to participate in the issuance of FHA loans should qualify.

One FHA flaw that HUD discusses in its report is FHA’s appraiser roster. HUD reveals that the FHA roster of appraisers includes 3,480 appraisers with expired licenses and 199 appraisers that had been state sanctioned.

FHA’s lender approval process also has major limitations. It currently uses a random, manual review process for reviewing loans. Under the existing process, FHA only reviews about five percent of all loans it insures. Otherwise, the agency relies on other information, such as high delinquency rates or early default rates, to determine which lenders need an extensive review. The approval process requires improvement to ensure that only quality lenders are able to lend through FHA. HUD suggests providing FHA with the resources to use pre-screening computer software to improve the lender review process.

The HUD report provides one example of the shortcomings in FHA’s current lender approval system. HUD approved an Arizona corporation as an FHA lender in 1996. This corporation had its license suspended by the State of Arizona and it filed for bankruptcy, after a series of Real Estate Settlement Procedures Act (RESPA) violations. Even after these changes, a principal owner and manager of the original corporation reconstituted the business under a different name, using the same location for the business. HUD approved of this re-named corporation to originate and process FHA loans in 2008.

Laws to limit predatory lending are very slowly entering federal and state law, as evidenced by the information that the Center for Responsible Lending provides on nationwide legislation and policy. As a result, the need for FHA to improve its lender approval policies and quality controls remains vital for consumer protection against predatory lenders. HUD does provide state specific information on reporting predatory lending to the appropriate authorities on its website.

Thanks for reading our blog. The National Justice Coalition is made up of Plaintiffs Attorneys in the United States who have been recognized by Best Lawyers in America, Super Lawyers and who have received the top rating of Martindale Hubbell, the leading directory of lawyers in America.

If you have a comment or question, please feel free to reply to this posting, or send us an e-mail. Keep in mind that your comments will not be confidential. If you are a victim or think you are victim of predatory lending, please feel free to contact us at the National Justice Coalition regarding your legal matter.