On December 2, 2008 the Environmental Protection Agency and the U.S. Army Corps of Engineers issued revised joint guidance for making jurisdictional determinations for wetlands and waters under Section 404 of the Clean Water Act ("CWA"). While the goal of the EPA in issuing this new guidance is to correct issues that arose under the original guidance, it is our belief that this goal will not be met.

The need for guidance arose after the Supreme Court’s splintered decision in Rapanos v. United States. Rather than settling on a single standard for determining CWA jurisdiction, the sharply-divided Court proposed two vastly different tests. These competing tests have caused significant problems for developers, landowners and environmental interests in an area such as ours with the potential for large scale wetlands concerns because one still does not know when a CWA permit is needed.

In hopes of alleviating the growing confusion from Rapanos, the EPA and the Army Corps of Engineers issued joint guidance for interpreting the opinion when making jurisdictional determinations under the CWA. However, the 13 page and somewhat vague guidance from the EPA only confused the process even more.

The revised guidance reexamines the definition of "Traditional Navigable Waters." The new language indicates that navigable waters are those used or susceptible to being used for commercial navigation. This means that even a lake or pond on private land completely removed from all other bodies of water can now be subject to federal regulation if the owner used the lake for a water skiing or bass fishing tournament! Additionally, the term "adjacent wetlands" is intended to be clarified. In determining if land is an adjacent wetland, the agencies explain that species such as frogs moving between a wetland and jurisdictional water would support an implied ecological interconnection, while migratory species such as birds traveling between the two would not. Confusing and indefinite to say the least.

While few are satisfied with the new guidance, landowners should be aware that environmental groups and others are pressuring the new administration to withdraw the agencies’ guidance. Should this happen, the EPA and the Corps of Engineers will be back at square one and will begin the formal rule-making process, hence additionally delaying the issuance of Section 404 permits.

Please do not hesitate to contact us to further discuss how this issue will affect you.

ISSUE: The Lilly Ledbetter Fair Pay Act of 2009 may affect small business owners and local employers by allowing lawsuits alleging discrimination to be filed years or even decades after the alleged discriminatory action occurred.

BACKGROUND: President Barack Obama signed his first Act into law on January 29, 2009, the Lilly Ledbetter Fair Pay Act of 2009.  The Act states that the 180-day statute of limitations for pay discrimination resets with each new discriminatory paycheck and was enacted in response to Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, a United States Supreme Court decision,  in which the Court ruled that Ledbetter should have filed her suit within 180 days of the date that Goodyear first paid her less than her peers.

Lilly Ledbetter was a supervisor at a Goodyear Tire plant in Gadsden, Alabama, from 1979 until her retirement in 1998. For most of those years, she worked as an area manager, a position largely occupied by men over time her pay slipped in comparison to the pay of male area managers with equal or less seniority.The Ledbetter Fair Pay Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and modified the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973.  Opponents contended it would encourage lawsuits and argued that employees could delay filing their claims in the hope of reaping bigger rewards. The Act was passed by a narrow margin, and many believed that the Act should have stated that the 180-day statute begins to run from the date of the discovery of the discrimination by the employee.  As the Act resets the six month statute of limitations clock with each new paycheck, employers and small business owners may face additional liability for discriminatory decisions that may have taken place years ago. Employers may be forced to defend cases where plaintiffs present evidence of a present wage gap, allegations of long-ago discrimination, and a story connecting the two. As wage differences between employees performing similar functions are common, a flood of cases alleging past discrimination resulting in present disparity.

WHAT SHOULD YOU DO:

As in Ms. Ledbetter's case, often times the alleged discriminatory decision may have taken place decades ago and supporting documentation may have been purged in the standard course of business. Different treatment, such as pay disparities, may be easy to prove even after much time has lapsed, because the kinds of facts at issue are often documented and, indeed, are rarely in dispute. More contentious, however, is the defendant's discriminatory intent, which Title VII requires in addition to proof of disparate treatment. The evidence proving intent can be subtle.

In some cases, plaintiffs may wait for evidence favorable to the defense to disappear or be discarded, for memories to fade and witnesses to move on, before bringing claims. Particularly under laws that allow damages for continuing violations or punitive damages, plaintiffs may have an incentive to keep quiet about violations. These factors pose a records keeping problem, and our recommendation for best practices is to keep personnel records and wage information, including reasons for each wage determination,  for as long as an employee remains with the employer and for at least one year following such employment. 

We would also suggest a complete review of your gender, ethnic and racial pay equity and job segregation and either approve specific solutions to eliminate gaps or document and be prepared to defend the justification for such gaps.

Please contact Rushing & Guice, P.L.L.C. for advice in preparing for your pay equity review and for additional suggestions on attempting to avoid liability for fair pay issues.