Delaware Employers & Smoking Employees--Part 1

Posted by Molly DiBiancaOn April 25, 2008In: Off-Duty Conduct

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Smoking breakSmoking Breaks

YCST Partner William W. Bowser posted earlier about the controversy over employees who smoke at Whirlpool, where 38 employees have been suspended after caught smoking. We often get questions from Delaware employers about what they can and cannot do to respond to the various effects of employees who smoke.

In this series of posts, we'll address some of the most common questions Delaware businesses have about smokers' rights.


Smoking Breaks

The most often asked question is whether an employer has to facilitate a smoker's habit by giving smoking breaks. The answer is no. There is no state or federal law that requires smoking breaks.

Delaware employers must, however, provide most employees with a meal break of at least 30 consecutive minutes if the employee is scheduled to work seven-and-one-half or more hours per day. Meal breaks must be given sometime after the first two hours of work and before the last two hours of work in a workday. Of course, smokers could use this meal break to smoke.

If an employer chooses to allow its employees to take smoking breaks, it probably has to pay them for the time. According to an opinion letter issued by the Wage and Hour Division of the U.S. Department of Labor, short smoke breaks are to be included in the calculation of an employee's "hours worked." Specifically, smoke breaks of 3-4 minutes at a time, the total of which do not exceed 15 minutes a day, may not be excluded from "hours worked" under the Fair Labor Standards Act.

Thus, the ability to smoke during work hours is largely under an employer's control. Smoking breaks aren't required; but, if they are allowed, the employees must be compensated for that time.

Other posts on Smoking in the Workplace:

Whirlpool of Excitement About Employees Who Smoke

A Whirlpool of Excitement about Rights of Employees Who Smoke

Posted by William W. BowserOn April 25, 2008In: Off-Duty Conduct

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No Smoking for Whirlpool Employees

Employers who charge higher health premiums to employees who smoker has been a heated issue for several years. The trend first took the national spotlight in 2003 when Weyco, Inc. stopped hiring smokers and gave current employees 1 year to quit [smoking] or be fired.

The issue of charging smokers more for health care has flared up again this week when it was reported that Whirlpool has suspended 38 smokers who claimed they were non-smokers to get a lower health care premium. According to press reports, the workers were seen smoking or chewing tobacco at the company's smoking huts even though they signed paperwork claiming they did not use tobacco.


Whirlpool charges smokers an additional $500 per year in health premiums. According to a 2007 survey of employer-sponsored health plans by consulting firm Mercer, 16 percent of large employers vary employee premiums based on smoking status. Among small and midsize employers, 5 percent vary premiums.

Whirlpool, like most employers, uses an honor system requesting employees to honestly fill out paperwork regarding their smoking status. It remains to be seen as this case will lead to mandatory nicotine testing as at least one article has suggested.

Our friend, John Phillips at The Word on Employment Law, also has a timely post about this news called, Smoke 'Em If You Got 'Em?

Equal Pay: Fair Pay Restoration Act Voted Down in Senate

Posted by Teresa A. CheekOn April 24, 2008In: Equal Pay, Legislative Update

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equal-pay.jpg

The Lilly Ledbetter Fair Pay Act was proposed as a measure to increase the length of time in which employees could file claims for unequal pay based on discrimination. Currently, under Title VII of the Civil Rights Act of 1964, employees have up to 300 days to file a claim from the date of the discriminatory act. Under the Equal Pay Act, claims of pay discrimination based on gender can be filed up to two years after the discriminatory act.

The Lilly Ledbetter proposal generated signficant debate. Opponents saw the bill as preventing employers from closing the door on equal-pay claims because employees would no longer have a hard and fast deadline for filing claims. Advocates saw the bill as a safeguard to ensure that those who were subject to unequal pay but who had no way of learning of the discrimination would not lose their claims on a technicality.

Senate Republicans killed the bill in a 56-42 vote on Wednesday, April 23. Senator John McCain, who stated that he opposed the bill but favors fair pay for women, was campaigning in New Orleans, so he was not present for the vote. Senators Barack Obama and Hillary Clinton both voted in favor of the bill.

Delaware Courts Ranked 1st by U.S. Chamber of Commerce

Posted by Scott A. HoltOn April 24, 2008In: Delaware Specific

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Lawsuit Climate REport 2007
Delaware has been ranked first among all fifty states in the quality and fairness of its litigation environment, according to an annual study titled "Lawsuit Climate" published by the U.S. Chamber of Commerce's Institute for Legal Reform. Delaware has been awarded this honor for six straight years.

The survey polled approximately 1000 corporate attorneys at the nation's largest employers and took into consideration factors such as judge competence and impartiality, jury fairness, quality of attorneys, and timeliness for trial. Along with Delaware, Nebraska, Maine, Indiana and Utah were ranked in the top-five. Rounding out the bottom five were Louisiana, Mississippi, Alabama, Illinois and West Virginia.

Delaware Courts Named Best in the Country: Democracy at Work

Posted by Sheldon N. SandlerOn April 24, 2008In: Delaware Specific

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Delaware State SealDelaware's state courts have been named the best in the country for tort and contract litigation. This is the sixth consecutive year the First State has been awarded this honor. In our experience, the same result holds true for employment litigation.

Not surprisingly, Delaware and the other four states that ranked highest, Nebraska, Maine, Indiana and Utah, appoint their judges, and the three states that ranked at the bottom, West Virginia, Louisiana and Mississippi, all elect their judges.

So maybe democracy isn't what its cracked up to be?
Or maybe it's a bit more complicated.

Unlike the other branches of government, the courts are not supposed to simply reflect the will of the people. Judges are required to apply the law, whether "the people" like it or not. And that's where it gets messy for elected judges. As we can easily glean from what goes on in our neighboring state of Pennsylvania, judges have to spend large sums of money to get elected, and they get most of that money from interested constituencies like trial lawyers and unions. So when a large donor, in the form of an attorney as advocate, or a union as litigant, appears before the judge, . . .

. . . Will the judge "bite the hand that feeds him?"
Human nature has the answer.


That is not to say that Delaware and other states that appoint judges do so free of politics. But the politician in Delaware who appoint the judges, Delaware's governor, has for many years recognized that Delaware stands to gain from maintaining its preeminent position as a quality court system, and governors of both parties have made a point of appointing capable jurists rather than political hacks. What that means is that all parties in a lawsuit get a fair shake based on the merits of the case, rather than money talking to tip the scales in favor of the largest contributors.

And that is how a real democracy should work.

Bullying Can Be Physical . . . But Torture?

Posted by Molly DiBiancaOn April 24, 2008In: Jerks at Work, Newsworthy, Workplace Violence

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Team-building or torture? A sales rep in Provo, Utah has filed suit over what appears to be an extreme case of workplace bullying. The young man claims, and his employer doesn't particularly deny, that he was waterboarded by his supervisor as part of a "team-building exercise." He claims that he volunteered when his boss asked for participants for a "new motivational exercise." But the 26-year-old says that he had no idea that the "exercise" would involve his supervisor pouring water out of a gallon jug over his nose and mouth, while his coworkers held him down. The last time the team had done an exercise outside, it was an egg toss.

His supervisor remarked immediately afterwards, "You saw how hard Chad fought for air right there. I want you to go back inside and fight that hard to make sales."

It seems that the supervisor truly believed that causing your reports to feel the near-death experience of forced drowning is actually a motivational tool. The employee has filed suit for assault and battery, intentional infliction of emotional distress, and wrongful termination.

Another of the supervisor's "motivational tools" was to remove all chairs, forcing employees to stand for the entire shift. This was his response to a day without sales. He kept a "motivational 2 x 4" wooden "paddle" on his desk on stand-by.

Normally, this is where we would provide sage advice on preventative measures, "be proactive with an anti-bullying policy," and reparative tactics, such as follow-up training for all employees. This case, though, is so extreme those normal reactions seem inappropriate. Instead, my recommendation is to to take a very close look at the supervisors in your workplace. Keep your eyes open for physically aggressive behavior, even if it's couched as "positive reinforcement."

This will definitely be a case to keep our eyes on.

Trade Secret Litigation Rises as Economy Tanks

Posted by Scott A. HoltOn April 22, 2008In: Newsworthy

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Recession seems imminent, leading to layoffs and downturn in business. But the looming recession also means more activity in other areas. Employment360 cites experts who believe the current recession will increase the amount of intellectual property legal work, including enforcement of noncompetition and nondisclosure agreements. The view is that companies are more likely to pursue former employees who violate their noncompete and confidentiality agreements during economic downturns as companies increase efforts to protect their assets.

For employers, now is the time to be reviewing what measures you need to institute to protect their business interests. Key employees should have enforceable noncompete and confidentiality agreements in place to prevent them from posing a threat should they leave employment. To better ensure enforcement of the agreements, multi-state employers also should include a requirement that the case be litigated in a state that enforces these types of agreements. Some states such as California will not enforce noncompete agreements, while other states such as Georgia, Texas and Illinois are reluctant to uphold the agreements in their entirety. Delaware continues to be a favorite forum for enforcement of noncompete and confidentiality agreements because of its business friendly environment and accessibility to the courts.

Employers also must implement proper screening measures to make certain that new hires are not subject to noncompete agreements that will ensnare them in trade secret litigation. All applicants should be asked whether they had confidentiality or noncompete agreements with their former employer so that preventative steps can be taken before they commence employment.

Pregnancy Discrimination FAQ

Posted by Adria B. MartinelliOn April 22, 2008In: Disabilities (ADA), Family Medical Leave, Pregnancy (Title VII)

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Pregnant Defense Minister
Pregnant Spanish Defense Minister Carme Chacon reviews troops in Madrid

* * * *
Pregnancy discrimination is making international headlines. Our friend and fellow Employers Counsel Network editor, John Phillips, posted an interesting article today on his blog, titled, "Questions About Pregnancy," regarding pregnancy discrimination and Spain's pregnant defense minister.

He poses some interesting questions about balancing an employer's interests versus those of a pregnant woman in the workplace.

See my earlier post, "More Than Hollywood Noticing Baby Bump" regarding the alarming increase in pregnancy discrimination claims.

What exactly are your obligations to a pregnant employee?

Under the Pregnancy Discrimination Act (PDA), you're prohibited from treating pregnant employees differently than other employees with temporary restrictions. For example, if a pregnant employee is restricted from lifting more than 20 pounds during her last trimester, you must treat her the same as a male employee who suffered a back injury and was temporarily unable to lift the same amount.

The PDA does not require you to make special accommodations like the Americans with Disabilities Act does. It only requires you to treat pregnant employees the same as you would treat nonpregnant employees with temporary restrictions.

What can you do to avoid violating the PDA?

Here are some basic guidelines:

• Don't discuss an applicant's pregnancy with her at the employment interview or base your hiring decisions on her pregnancy or absences that may be caused by pregnancy.

• When an employee informs you that she's pregnant, congratulate her. Don't start interrogating her about the leave she will need or make any other comments about how her pregnancy might affect her job.

• Provide optional alternative jobs if the pregnant employee's current position could be harmful to her fetus. Be aware, however, that the decision to change duties is hers, not yours.

• If a pregnant employee is unable to perform her job or requests light duty, treat her like you would any other employee in a similar situation.

• If you take any performance-related disciplinary actions during an employee's pregnancy or maternity leave, do so cautiously! Make sure to document your actions, providing legitimate non-discriminatory reasons for the action.

Of course, dealing with pregnant employees may implicate other employment laws, including the Americans with Disabilities Act, and the Family and Medical Leave Act. I will be presenting When FMLA and Pregnancy Leave Collide: How to Avoid Costly Discrimination Claims in Las Vegas and Nashville, TN at the upcoming Advanced Employment Issues Symposium. Click here for more details about the Symposiums.

Earth Day: A Green Workplace

Posted by William W. BowserOn April 22, 2008In: Going Green

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Employers, today is Earth Day. It would be hard not to notice. It seems that every media outlet is “going green.” NBC, for example has an entire website on the topic of environmental friendly options. The latest issue of Time magazine cover reads, "How to Win the War on Global Warming."

While the green movement has certainly taken center stage in the popular press, has your workplace started to change? Are you or your coworkers stuck in a “why bother” mood? I suggest that you read Michael Pollan’s article, which asks the same question, "Why Bother?" Pollan's article was featured in this past Sunday’s New York Time magazine, which, by the way, was titled, "The Green Issue." Pollan tries to answer just that question. In the article, he addresses why we should all look for and make small changes, even if the environmental problems facing us and our planet seem so incredibly large. He argues, among other things, that one of the best reasons for each of us to change is that we will influence others to make similar changes which together can truly make a difference.

In honor of Earth Day, I added a small gizmo on my shower which cuts off the water when it gets warm. The device, called Evolve, was needed to combat my family’s habit of starting the shower running and then leaving the bathroom, allowing gallons of water to go wasted down the drain. I know that there are other ways to address the situation, including simply putting our hand under the water, but this approach will prevent me from becoming the shower police.

While this is just the latest effort I have taken at home, I still remain, as I have said before, a “paler shade of green” at work. Earth Day has gotten me thinking as to how to get changes started in the office. While I can replace my Styrofoam cup with a ceramic one, how can I get others to go along? Well according to Pollan, they might just do it because I did it.

That sounds ok but there must be more, right? Another way might be to get co-workers to start brainstorming on ideas to green up our workplace. I am very impressed by the list developed by the Employees of the State of Kentucky with their list of Earth Day Suggestions for Office Workers.

I would appreciate your ideas.

Delaware Earth Day Events: Employers, Make Earth Day Events Team Events

Posted by Molly DiBiancaOn April 22, 2008In: Delaware Specific, Going Green

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Make Earth Day a Team Event

Delaware employers, you can celebrate Earth Day today by passing along the following list of State-wide activities to your employees. Or, for the innovative employer, why not turn one of the many environmentally friendly activities into a (voluntary) corporate outing. It's a great opportunity for a little team building and a chance to feel good about giving back. Plus, it's a beautiful day in the First State today, so get outside while you can!

Here in Delaware, Delaware State Parks, along with the Department of Natural Resources and Environmental Control (DENREC) will celebrate Earth Day 2008 with events throughout Delaware. Residents of the First State can do their part to help conserve Delaware's precious resources by participating in any one of the nearly 20 activities happening across the State this week. There are events in New Castle County at Bellevue State Park in Wilmington, Brandywine Creek State Park, also in Wilmington, and White Clary Creek State Park in Newark, as well as at the Brandywine Zoo. Kent Count and Sussex County have events at Cape Henlopen State Park in Lewes, Delaware, Delaware Seashore State Park in Rehoboth Beach and Killens Pond in Felton.

Another helpful resources for Delaware employers looking to "go green" is the Environmental Protection Agency's (EPA) website, which has a page for Earth Day At Work. The EPA identifies workplace-specific suggestions for being more engery efficient, managing electronic equipment replacement, and other tips to help protect the environment.

Will Delaware Go For Family Leave? New Jersey Is the First in the Tri-State

Posted by Teresa A. CheekOn April 21, 2008In: Family Medical Leave, Leaves of Absence, Purely Legal

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Family and Medical Leave has hit New Jersey employers. The N.J. Senate passed legislation that would make the Garden State only the third state (after California and Washington) with state-sponsored paid family and medical leave. Governor Corzine said he intends to sign the bill, so employers should start preparing now.

The New Jersey Division of Civil Rights, the state agency charged with enforcing the bill, has posted a helpful Q&A on the NJ FMLA on its website.

The criteria for employee coverage will be the same as for coverage under the state’s unemployment compensation law. Employers are covered if they are covered under the New Jersey Temporary Disability Benefits law, that is, if they have one or more employees who earned at least $1,000 in the current or preceding calendar year. Employees will be entitled to benefits in the amount of two-thirds of their weekly pay, up to $524 per week, for up to six weeks in any 12-month period.

Benefits are payable for time off taken to care for a seriously ill family member, or in connection with childbirth or adoption. Benefits will be funded by an additional tax on employees of about $.48 per employee per week, beginning on January 1, 2009. Benefits will begin to be available on July 1, 2009.

The law does not include any job restoration guarantees, and provides that employers with fewer than 50 employees (who are not covered by the federal FMLA) will not be liable to a discharged employee.

Federal Contractors Must List Job Openings: OFCCP Issues Final Rule

Posted by Teresa A. CheekOn April 21, 2008In: Diversity

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The Office of Federal Contract Compliance Programs (OFCCP) issued a final rule on mandatory job listing by federal contracts. The rule is equired by the Vietnam Era Veterans' Readjustment Assistance Act,* (“VEVRAA”) and the Jobs for Veterans Act of 2002 (“JVA”). Federal contractors are required to list almost all job openings with “the state workforce agency job bank where the opening occurs or with the local employment service delivery system where the opening occurs.” The exceptions to this rule include openings for executive and top management positions, positions that are to be filled internally, and positions that will last three days or less.

You can read the new rule and the OFCCP’s discussion of the rationale for the rule, titled, "Nondiscrimination and Affirmative Action Obligations of Contractors and Subcontractors Regarding Protected Veterans" in the Federal Register.


*38 U.S.C. 4212

Race Discrimination Class Action Denied by Third Circuit Court of Appeals

Posted by Maribeth L. MinellaOn April 20, 2008In: Cases of Note, Disabilities (ADA), Purely Legal, Race (Title VII)

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The Third Circuit, which governs Delaware, New Jersey, and Pennsylvania, applied a strict interpretation of Rule 23(f) and affirmed dismissal of a class action against Johnson & Johnson. The case, Gutierrez v. Johnson & Johnson, was filed by African-American and Hispanic former J&J employees alleging race discrimination--8,600 employees in all.

The federal District Court in New Jersey declined to certify the group as a class. Notably, the court found that the group had failed to identify any J&J policy that was discriminatory. The court also cited the diversity and size of the group as factors weighing against class certification.

Now, hang in there, this is where it starts to get complicated.

The potential class could have filed an appeal with the Third Circuit after the District Court issued its decision denying certification. But, instead, they wanted to file a motion for reconsideration. J&J agreed to an extension of time for the employee to file their motion. The court granted the requested extension but eventually denied the motion for reconsideration, upholding its denial of class status.

The employee-petitioners sought permission tofile an interlocutory appeal with the Third Circuit. The petition was filed within ten days of the District Court’s denial of their motion for reconsideration but 125 days after the original decision denying class certification.

A petition to appeal must be filed within 10 days. When a motion for reconsideration is timely filed, though, the 10 day-clock stops running until the motion is decided. Here, the employee-petitioners filed their motion within the deadline set by the District Court's scheduling order. That was not enough for the Third Circuit. Instead, the court found that the 10-day requirement was mandatory--within 10 days of the decision denying class certification, the party has 10, and only 10, days within which to file an appeal.

The fact that the motion for reconsideration was timely for purposes of the District Court’s scheduling order did not matter. According to the Third Circuit, much to Johnson & Johnson's relief, Rule 23(f) of the Federal Rules of Civil Procedure is strict and mandatory.

Glass Ceilings Aren't Broken With Anger: Study Shows Angry Women Lose Respect at Work

Posted by Molly DiBiancaOn April 20, 2008In: Jerks at Work, Women In (and Out of) the Workplace

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Women don't win by playing the anger card, according to a new study from Yale University psychologist Victoria Brescoll.

Brescoll and Eric Uhlmann at Northwestern University recently completed three separate studies to explore a phenomenon that is all-too-familiar to many women in leadership positions: Anger is not a pretty thing. The studies conclude that men who get angry are accepted and even rewarded but women who lose their temper are perceived to be less competent.

The studies, published in the March issue of Psychological Science, provide women with recommendations for navigating emotional hazards of the workplace. Brescoll says it pays to stay emotionally neutral and, if you can't, at least explain what ticked you off in the first place.

One method employed by the studies was to show both men and women scenes of men and women (actually actors) who were ostensibly applying for a job. The study participants were then asked to rate the applicants on (1) how much responsibility they should be given; (2) their perceived competence; (3) whether they should be hired; and (4) how much they should get paid.

Male and female participants reached the same conclusions:

Angry men deserved more status, a higher salary, and were expected to be better at the job than angry women.

The study participants provided the same responses regardless of the type of job for which the candidate was applying. Executive- and entry-level candidates were ranked equally.

Emotions, however, had a much greater impact. When the actor-applicants expressed anger, the men were selected as the preferred candidates. And when the actors expressed sadness, the bias seemed to lessen, and women applicants were ranked equally to men in status and competence. Emotions did not have any impact on the participant's opinions about salary--in both scenarios, the viewers awarded male applicants a higher salary.

A final study showed another way bias against female anger could be mitigated. When women actors explained why they were angry, observers tended to cut them more slack. Men, on the other hand, could actually be hurt when they explained why they were angry - perhaps, says the Yale psychologist, because observers tend to see this as a sign of weakness.

The study seems to lend some credence to the saying, "Kill 'em with kindness."

The Wrong Way to Break Through the Glass Ceiling: Study Says Women Can't Afford to Be Angry

Posted by Molly DiBiancaOn April 20, 2008In: Jerks at Work, Women In (and Out of) the Workplace

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Women

Yale psychologist Victoria Brescoll and Eric Uhlmann at Northwestern University recently completed three separate studies to explore a phenomenon that is all-too-familiar to many women in leadership positions: Anger is not a pretty thing. The studies conclude that men who get angry are accepted and even rewarded but women who lose their temper are perceived to be less competent.

The studies, published in the March issue of Psychological Science, provide women with recommendations for navigating emotional hazards of the workplace. Brescoll says it pays to stay emotionally neutral and, if you can't, at least explain what ticked you off in the first place.

One method employed by the studies was to show both men and women scenes of men and women (actually actors) who were ostensibly applying for a job. The study participants were then asked to rate the applicants on (1) how much responsibility they should be given; (2) their perceived competence; (3) whether they should be hired; and (4) how much they should get paid.

Male and female participants reached the same conclusions:

Angry men deserved more status, a higher salary, and were expected to be better at the job than angry women.

The study participants provided the same responses regardless of the type of job for which the candidate was applying. Executive- and entry-level candidates were ranked equally.

Emotions, however, had a much greater impact. When the actor-applicants expressed anger, the men were selected as the preferred candidates. And when the actors expressed sadness, the bias seemed to lessen, and women applicants were ranked equally to men in status and competence. Emotions did not have any impact on the participant's opinions about salary--in both scenarios, the viewers awarded male applicants a higher salary.

A final study showed another way bias against female anger could be mitigated. When women actors explained why they were angry, observers tended to cut them more slack. Men, on the other hand, could actually be hurt when they explained why they were angry - perhaps, says the Yale psychologist, because observers tend to see this as a sign of weakness.

The study seems to lend some credence to the saying, "Kill 'em with kindness."