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The first bill signed by the new administration seeks to expand a person's ability to bring an "unfair pay" claim. Unfortunately, the Lilly Ledbetter Fair Pay Act of 2009 raises many potentially troubling questions, which may take years of judicial interpretation to straighten out.

The Act itself was specifically meant to legislatively overturn the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear. The effect of the Ledbetter holding was that the statute of limitations for filing an unfair pay claim began to run when the pay decision was initially made. That is, each time the employee received a paycheck did not begin the running of a new limitation period.

Now, under the new law set forth by the Ledbetter Act, each time an employee receives an unfair paycheck, the time to file a discrimination claim is renewed by another statute of limitations period - either 180 or 300 days depending on where the employee first filed their charge, thus potentially expanding the time to file a claim against an employer indefinitely. The law also has retroactive effect, applying to all pay discrimination claims filed on or after May 28, 2007.

Even more problematic is the new, ambiguous language in the new amendments to Title VII. These amendments now read:

"(3)(A) For the purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual 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."

"(3)(B)... liability may accrue and an aggrieved person may obtain relief... including recovery of back pay for up to two years preceding the filing of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge."

The phrase "or other practice" is not defined. The amendment is so broadly worded that conceivably almost any conduct which has an effect on compensation decisions may form the basis of a Title VII claim.

Long story short, this is a new law that will raise a lot of questions and problems before the courts define its application. In the meantime, California employers should be even more cautious about variations in pay rates and scales at the workplace. Differences in pay amongst employees should be examined carefully to make sure there is not even a suggestion that a difference in pay is based on gender, race, age, or disability.