The Pension Protection Act Blog

It took just 8 days for the ERISA-related litigation over the Lilly Ledbetter Fair Pay Act of 2009 to begin. When President Obama signed the Lilly Ledbetter Act into law on January 29, 2009, it was heralded among the non-ERISA community as creating a new world of equal pay for equal work. Among the ERISA-related community, it was heralded as an asteroid the size of Texas headed directly at the plan universe.

This is because: (1) one of the major components of defined contribution and defined benefits plans is compensation; (2) one of the major components of defined benefit and cash balance plan litigation is the Age Discrimination in Employment Act of 1967 (ADEA); and (3) the Lilly Ledbetter Act amended Section 7(d) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 626(d)) by adding Section 7(d)(3), which states:

“(3) For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this Act, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.”

On February 6, 2009, eight days after Ledbetter became law, Wayne Tomlinson, the plan participant who brought a lawsuit against El Paso and the El Paso Pension Plan over the conversion of the El Paso Pension plan from a defined benefit plan to a cash balance plan, filed a motion to alter or amend the court’s decision granting summary judgment to El Paso and the El Paso Pension Plan. Specifically, Mr. Tomlinson is asking the court to alter or amend its decision of January 21, 2009, which held that his charge of age discrimination was untimely based on the U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). Since the Lilly Ledbetter Act was designed to rectify that Supreme Court decision, Mr. Tomlinson is asking the U.S. District Court for the District of Colorado to reconsider the decision in his case.

Charlie Sullivan, a professor at Seton Hall Law School, has written a good analysis of whether Ledbetter is retrospective or prospective. (hat tip to Prof. Richard Bales of the Workplace Prof Blog)
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