Equal pay issues: ghosts of performance appraisals past may haunt employers.

• Author: Cummings, Judith
• Position: HR MATTERS

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Kelly has been working for Queeny's Auto Supply for 12 ears. She's worked her way up to a management position--one of six regional managers. She is the only woman regional manager and she had somewhat of a rocky start as a manager. In 2004, after she was selected as manager, she got pregnant and took a pregnancy-related leave. The general manager rated her very low in that year's performance review because of her leave. As a result, she did not receive an annual base-pay increase that year. The last three years, she has gotten an increase, but due to the one year without an increase her pay remains almost 5 percent lower than her male colleagues who became managers at the same time.

What can Kelly do about the situation? Should Queeny's Auto Supply be concerned about decisions made more than four years ago?

NEW LAW

Until Jan. 29, 2009, Kelly was out of luck if she wanted to take legal action against Queeny's Auto Supply. For many years there has been a federal Equal Pay Act that prohibits discrimination in pay, but taking legal action under the Act requires prompt filing of a charge with the Equal Employment Opportunity Commission. However, Queeny's Auto Supply and other employers are discovering that performance management. and pay decisions going back several years are now potential sources of legal action due to the enactment of the Lilly Ledbetter Fair Pay Act in January 2009. The law amends the Equal Pay Act and gives Kelly and others a new statute of limitations for their complaints with every paycheck they receive after the pay decision was made. Even though the original pay decision was made in 2004, Kelly can now make a complaint based on the impact of the decision on her paychecks in 2009.

Kelly did not find out until 2008 that she was making less than her male colleagues. When she talked to an attorney, she found out that it would likely have been considered discriminatory for her employer to use her pregnancy leave back in 2004 to adversely affect her performance rating and subsequent pay decision. However, her lawyer told her she couldn't file an equal-pay complaint under the federal law because it had been more than 180 days since the alleged discriminatory performance appraisal and pay decision. She had missed the statute of limitations even though she did not know it was possible discrimination or that male managers were making more as a result.

Now the law has changed. If Kelly received a paycheck on...