Delaware Employment Law Blog

Many Delaware residents experienced their first earthquake today. From Virginia to New York, floors were trembling and windows were shaking. The employees in my high-rise office building in Wilmington, Delaware reacted to the experience quite differently: some sat planted in our chairs stunned, later wandering into the hallways to see if anyone else felt the odd sensations, some immediately sought to flee the building, and others were convinced we were in mortal danger and upset the building was not evacuated. How, as an HR professional, do you advise your management to handle these crises—whether fleeting, or one that results in a more drastic impact?

Develop a communication and contingency plan

The key to handling crises, whether natural or man-made, is to have a Crisis Management and Disaster Preparedness Plan in place before the disaster strikes. Disorganization and a lack of well-thought-out emergency procedures pose almost as great a risk to employee safety in a time of crisis as the underlying catastrophic event itself. As a result, you should consider distributing to your employees a clearly articulated and easy-to-understand communication and contingency plan. At a minimum, your policy should explain what your employees should do and where they should go in the event of an emergency. For example, it should provide information about how they're to exit the facility if there's a fire or another type of disaster.

In addition, you should periodically practice evacuation drills and provide emergency contingency training to familiarize your employees with the proper procedures after an emergency occurs. You should also consider things like which equipment needs to be turned off when an emergency strikes, what your backup power sources are, where first-aid supplies will be kept, and how to communicate instructions to your employees or customers while an emergency is unfolding.

Every employer must keep a list of vital contacts. You should have complete contact information for your employees and corporate officers. A good contact list should also include local and federal emergency telephone numbers, including contact information for the Delaware Emergency Management Agency (whose phone number is (302) 659-DEMA).

On the business side, you should also keep telephone numbers and physical and e-mail addresses for major clients, suppliers, contractors, financial institutions, insurance agents, radio stations and newspapers, and any other individuals or businesses you might need to notify after a crisis occurs. Keep your contact list stored off-site so it's available if your main facility is inaccessible.

In addition, consider setting up a place on your website where employees can log in to indicate they are safe. If internet access is unavailable, the old-fashioned "phone tree" that assigns your employees to contact teams can by put into place. Employees on each contact team will be responsible for communicating with other employees on the team after an emergency. That makes locating employees and confirming their safety a far easier task than having no system at all. Another alternative is designating an off-site location employees can call to get information after a disaster or to notify your company and their family and friends that they're OK.

Include in your contingency plan a timeline of tasks to be accomplished. Your list should include things that must be accomplished before disaster strikes (if you have advance warning, like when a hurricane is predicted) and what must be done afterward.

Protect your records

Most of you can't really imagine how much you depend on the documents, forms, employee records, customer and contact lists, and accounting information you've developed over the years you've been in business. To reduce your losses, you must have adequate backups of all your company's important records, computer data, vendor and customer lists, and other information that is essential to your operations.

Make sure your backups are updated frequently and stored in an off-site location specially constructed for data and record storage. You can have all the backups in the world, but they won't do you any good if they're five years old or if they're stored in your office building when it burns to the ground.

Identify emergency business facilities

In the case of emergencies that disable your facilities for a significant amount of time, you may want to consider alternate facilities you might use to operate if a disaster hits your business. Look for facilities that will rent office or warehouse space for short terms, or consider using your employees' homes if your business can be conducted through telecommuting. Of course, you'll have to have a communication plan in place before disaster strikes so your employees and customers will know you're still operating.

Make provisions for employees' wages, benefits

Employers aren't required to pay hourly nonexempt employees for time away from work because of a workplace disaster. Nevertheless, those employees may be eligible for certain pay benefits, including unemployment compensation. You should be cognizant that under the Fair Labor Standards Act, salaried exempt employees must be paid their full salary for any workweek in which they perform any amount of work — regardless of how many days or hours they actually work. If they aren't, you risk having them lose their exemption.

If you're like most employers, some of the most important benefits you provide your employees are health, disability, and life insurance. If any of your employees or their beneficiaries are injured or killed during a disaster, those benefits may be their (and their families') only lifeline of hope. Consequently, make sure you provide whatever help they or their families need to file their health insurance or workers' compensation claims. Injured employees may also need help filing claims under your short-term or long-term disability policies.

Here are some helpful things you can do:
• Let your employees know about pertinent deadlines. Be sure to provide them with the correct forms promptly and help them fill out the paperwork if necessary.

• If an employee's injuries prevent her from filing a claim, contact her spouse or another family member to advise her which benefits are available.

• If an employee is temporarily or permanently disabled, work with her to determine whether there's a reasonable accommodation that will allow her to return to work.
Address employee leave

Keep in mind the proper application of your company's leave policies — and the various laws that protect employees who are injured or whose family members are injured. Take care to apply your sick, personal, vacation, paid time off, and bereavement leave policies uniformly and with compassion.

Injuries sustained during a disaster may qualify someone to take leave under the Family and Medical Leave Act to care for himself or a family member. If an employee needs to take a leave of absence for nonmedical reasons, check your policies and let him know what his options are. Even if you don't usually allow nonmedical leaves of absence, storm cleanup may be an extenuating circumstance that will allow you to grant leave now. Just remember to treat all employees fairly when doling out leave.
Prepare for emotional component

Finally, the stress of a disaster takes a tremendous toll on everyone, both physically and emotionally. If you're prepared to target the fears and concerns of your workforce, you'll be better prepared to recover from a disaster. Managers should have plans to address those concerns and understand that people respond differently during crises. You must accept the fact that performance and productivity will drop, and some employees may have increased absences and difficulty concentrating on their work.

Contact your employee assistance program (EAP) provider for counseling information for stressed workers and their families. Alert your provider that employees will be contacting it. Remind employees about the EAP, and provide them with its phone number.

Bottom line

It appears that the earthquake felt in Delaware did not harm anyone or significantly impact businesses, but it’s a good reminder of what you need in place in case it had. Planning for the unthinkable is the smart thing to do from a business standpoint. Because every business is unique, employers are well advised to consult with employment counsel to help develop a disaster-preparedness and crisis-management policy best suited to your needs.

Last night, Governor Markell signed Delaware's civil union bill into law. The new law will go  into effect on January 1, 2012. 

See our prior posts regarding how the new law will affect Delaware employers:

Civil Unions: Federal Tax and Benefit Implications

Same-Sex Civil Unions Recognized in Delaware

Delaware Legislature Considers Same-Sex Civil Unions

The Delaware House of Representatives voted yesterday in favor of Senate Bill 30, a bill that would create same-sex civil unions in Delaware, and recognize civil unions performed in other states. The bill also changes all sections of the Delaware Code where marriage is mentioned, by requiring that the word “marriage” be read to mean “marriage or civil union.” 

Senate Bill 30 was approved by the Delaware Senate on April 7, and Governor Markell has already declared that he will sign the bill into law “as soon as a suitable time and place are arranged.” The law will take effect on January 1, 2012.

The new law raises several questions for employers.  For example, the law cannot, and does not, alter federal non-recognition of civil unions. So how will the new law impact employers?

Right to Employment Benefits

As we have previously indicated, the most significant impact of Senate Bill 30 is likely to be on employment benefits. When the law takes effect, employers will be required to provide partners in a civil union with the same benefits that they provide to partners in a marriage. The Act would not cover those currently not protected by the Delaware Discrimination in Employment Act (DDEA): (a) employers with less than 4 employees; or (b) religious corporations with respect to discrimination based on sexual orientation

Equality of Benefits

Employers should also be aware that equality of benefits is a two-way street. Many employers previously offered employment benefits to unmarried same-sex partners, but not to unmarried heterosexual partners. Now that same-sex couples have access to civil unions that are substantively identical to marriage, employers may be open to claims of reverse discrimination if they continue to offer benefits to same-sex partners who have not entered into a civil union, but do not offer the same benefits to unmarried heterosexual partners.

Employers should also be careful to impose the same requirements for receipt of benefits upon same sex civil union partners as they do upon married partners. While it is perfectly acceptable to ask an employee to verify his or her marital status before extending benefits, the same requests should be made of both same-sex and heterosexual partners. If you do not require a copy of a marriage certificate to establish benefits, you should not require a copy of a civil union certificate.

Discrimination Protection

As we have previously reported, the DDEA already protects Delaware employees from discrimination on the basis of sexual orientation. Keep in mind that homosexual individuals who may not have previously chosen to disclose that fact may, as a result of the new law, disclose that information so that their partner may enjoy benefits. Therefore, employers may possibly have knowledge of an employee’s protected class they might not otherwise have had – and should proceed cautiously with any adverse employment actions, particularly ones that may follow closely on the heels of such disclosure.

This post was authored by Adria B. Martinelli and Lauren Moak.  Adria will be speaking about the implications of Delaware's Civil Union and Equality Act of 2011 at our upcoming Annual Employment Law Seminar on May 11, 2011. 

I reported last week that the Delaware Senate was considering a bill that would recognize civil unions.  The Wilmington News Journal reports that the State Senate voted to approve the Civil Union and Equality Act of 2011 yesterday.  The House is expected to vote on the legislation on Thursday, April 15, so stay tuned. 

Delaware's General Assembly will consider a new bill that would permit civil unions for same-sex couples. The Civil Union and Equality Act of 2011 was introduced by Sen. Sokola & Sorenson and Reps. George & Schooley. 

A civil union would be parallel, but not equal to, marriage – which would remain reserved for heterosexual couples. Parties to a civil union will bear the same responsibilities and enjoy the same rights and protections, to the extent possible, as exist for married spouses.

The Act removes the criminal penalties under Delaware law for marrying a same-sex spouse in another jurisdiction, and recognizes those marriages as well as similar legal relationships entered into outside of Delaware as civil unions, not as marriages. For example, if a same-sex couple gets married in Vermont and moves to Delaware, their Vermont marriage would be recognized as a civil union in Delaware, not as a marriage

The Act cannot, and does not, alter federal non-recognition of civil unions.

If passed, what will this mean for Delaware employers?

First, employers generally will be required to make whatever employee benefits that are offered to a married spouse available to a spouse in a civil union.  The Act would not cover those currently not protected by Delaware’s discriminations laws: (a) employers with less than 4 employees, or (b) religious corporations with respect to discrimination based on sexual orientation.

Second, private employers offering health and retirement benefits that are subject to ERISA — a federal law — may not be required to offer such benefits to a spouse in a civil union.  This is because the federal Defense of Marriage Act (“DOMA”) defines “marriage” as only between a man and a woman, and a “spouse” as only a person of the opposite sex, for purposes of federal law, and ERISA preempts inconsistent state law. However, the present commitment to enforce DOMA remains an open question.

On February 23, 2011, Attorney General Eric Holder announced that the Justice Department would cease legal defense of the Act's Section 3 at the direction of President Barack Obama, who had reached a conclusion that Section 3 was unconstitutional. However, Congress may defend the law in court in place of the administration, and on March 4, 2011, Speaker of the House John Boehner announced he was taking steps to defend Section 3 in place of the Department of Justice. Given the uncertain state of current law, employers will need to stay tuned as to the current position of the administration if or when Delaware’s bill passes to best assess how to handle the conflicts between state and federal law on this issue.

Third, employers who currently offer benefits for same-sex partners will want to consider changing its policy so that benefits are only offered for same-sex partners who have entered into a civil union. This is because if you offer benefits only to homosexual partners who have not entered into a civil union, but do not offer those same benefits to unmarried heterosexual partners, you face potential exposure to a sexual orientation discrimination lawsuit under Delaware law.

It has come to our attention recently that many wellness programs are not in compliance with the Genetic Information Nondiscrimination Act (GINA) regulations, which went into effect in January of this year. Group insurers and employers must construct such programs carefully to ensure that they don’t run afoul of GINA’s prohibitions.

GINA prohibits the request of genetic information (which includes family medical history) by employers or group health insurers, but includes an exception for voluntary wellness programs under certain conditions. Health risk assessment (HRA) questionnaires are often included as part of a wellness program solicit genetic information, and often seek information that would be considered genetic information under GINA, e.g., "Does your family have any history of cancer, heart disease, or other illness?" Following passage of the law, it was not entirely clear what constituted “voluntary” versus “involuntary” wellness programs, and whether or not monetary incentives offered for participation rendered the program involuntary. The regulations issued in late November 2010 and now in effect addressed this question specifically.

Employers and insurers will not be in violation of GINA if they are not required to provide genetic information nor penalized for refusing to do so. For example, if employees are offered $100 to complete a health risk assessment with questions about genetic information, employees should be told that answering the genetic questions is voluntary, and that the $100 will be paid whether or not these questions are answered. The same goes if completion of the HRA makes the employee eligible for a raffle with prizes.

If, for example, a workplace wellness program requires employees to fill out HRAs, and the HRA contains common questions requesting family medical information, or even broad questions such as "Are there any other health matters that you would like to discuss?" the insurer and the employer could, under certain circumstances, be in violation of GINA.

Employers and insurers can work around these GINA prohibitions to create an effective wellness program. The most straightforward approach is to have no rewards offered in connection with completion of the HRA (assuming the HRA contains genetics or family-history related questions).

Another method of getting around the prohibition on pre-enrollment HRAs with genetic or family history questions—and one suggested by the regulations—is to create a two-part HRA. The first part would be stripped of any questions related to the person's genetics or family history, and given out before health plan enrollment and may have a reward attached. There would be no reward conditioned on completion of the second part of the HRA, which may contain questions about family medical history.

In order to truly strip the HRA of questions relating to genetics, vague questions such as "Is there anything else relevant to your health that you would like us to know or discuss with you?" should be followed up with these instructions, provided in the regulations:

In answering this question, you should not include any genetic information. That is, please do not include any family medical history or any information related to genetic testing, genetic services, genetic counseling, or genetic diseases for which you believe you may be at risk.

Reversing a long-held position, the IRS announced yesterday that breast pumps and other lactation supplies are now deductible.  Employees can now use pre-tax funds from their flexible spending accounts and health savings accounts for these supplies. The ruling is effective immediately and can be used on 2010 returns.

In conjunction with the FLSA amendment, which was went into effect in March of 2010, this ruling signals that policymakers are finally coming to appreciate the health benefits of breastmilk for newborns, that medical professionals have long touted.

Breast pumps and related supplies can run as high as $1,000 in the baby’s first year. The fact that employers are now required to accommodate lactation breaks of reasonable length, combined with the change in IRS policy is likely to have a measurable effect on the number of mothers returning to work who opt for the benefits of breastmilk.

See also:

Court Ruling on Breastfeeding at Work Brings a Downpour of Criticism

New Guidance on Law Requiring Breaks for Nursing Mothers

Today is my daughter’s 7th Birthday. She got out of bed early and excited. She gave extra special attention to the clothes she picked out, and triple-checked her pony-tail was just so. Walking into school with her birthday cupcakes, she bounced with each step. As we approached her first-grade classroom, her teacher exclaimed “the birthday girl is here!” and her classmates shouted out in unison “Happy Birthday Gianna!” and proceeded to embrace her in a group hug. She was grinning from ear to ear the entire time, because she felt special.

Watching the morning unfold for my daughter got me thinking about birthdays and feeling special. There are not many opportunities in our adult lives where we feel like a 7-year old on her birthday. A lot of press has been given lately to what is viewed as “excess” in some public employment positions. Indeed, in these tough times, the public does not- and probably shouldn’t - have much tolerance for such perks. One public agency in New Jersey was recently assailed for, among other things, giving employees their birthdays off (or a bonus if they worked on their birthday). The horror! Birthdays off??

WAY back in 2007, in pre-recession time, employers devoted considerable time and energy to how to recruit and retain talented employees. In today’s economy, where most employees are just grateful to have a job, this topic is much more rarely discussed. But it costs money to hire and train new employees in any economy, and when the economy starts to turn, employees who feel under-appreciated will seize the first opportunity to take their talents to another employer who, for whatever reason, holds the promise of a happier place.

Layoffs and cut-backs have resulted in rock-bottom employee morale at many workplaces. There are a number of things that employers can do to boost morale, of varying costs. Maybe, just maybe, making employees feel special one day a year by giving them their birthday off is not such a bad idea after all!

The Third Circuit Court of Appeals (which covers Delaware) recently issued a reassuring decision for employers. In the case, the Court affirmed dismissal of racial discrimination and retaliation claims where there were no overt racial statements made by supervisors and the employer addressed all allegations promptly and in a manner reasonably calculated to prevent further harassment.

Facts of the Case

Janeka Peace-Wickham, who was African-American, was hired as a manager in the Café at the Delaware Memorial Bridge facility of the Delaware River and Bay Authority (DRBA). Her position was that of a “working supervisor” and she was expected to fill in as needed with cooking, cashiering, and serving. Shortly after she began employment, she got into a heated argument with a Caucasian co-worker, which resulted in both of them filing claims of racial harassment against the other. Peace alleged that some of the Café customers (primarily DRBA employees) made racially inappropriate remarks. She claimed to overhear one customer remark to another when she was not happy the way her meal was prepared, “back in the day, down South, blacks would have been hung for things like this.”

Another customer remarked to Peace that the Café had “changed” since Peace’s arrival, and Peace took this to be motivated by racial animus because the previous supervisor was caucasian. Peace also alleged that a customer had balled up receipts and thrown them at her. Following the departure of the Café Supervisor, who was also African-American, someone posted a sign at the Café which said “Free At Last , Free At Last, Thank God Almighty, Free at Last,” which Peace took to be directed at her because she was the only African-American employed at the Café at that time.

Served up with a healthy dose of complaints

A mere three months into her employment, Peace complained of harassment from the Caucasian co-worker, and things only got worse from there. She routinely complained of understaffing in the Café and about how she was treated by customers as well as fellow employees in the Café. By the time she was done she’d filed numerous internal complaints, two charges of discrimination with the Delaware Department of Labor, and claimed that her rejection for a promotion was the result of her race and the fact she’d filed charges.

The Proof is In the Pudding, or Remedial Measures

The Court ruled that the DRBA was not liable for discrimination or retaliation. It noted that the record was devoid of any overtly discriminatory statements or conduct by her supervisors. While such conduct was not required to show intentional discrimination, the presence or absence of such conduct proves helpful in determining the motives of the decisionmakers. Here, the Court said the fact that Peace could not point to any overtly discriminatory conduct on the part of her supervisors lent further support to the conclusion that supervisors could not be held directly responsible for any hostile environment that may have existed.

Most importantly, however, the Court found that the DRBA took appropriate remedial steps in response to allegations of discrimination once it became aware of them. In response to Peace’s complaints that it took to long to investigate and conclude her initial harassment claim, the DRBA revised its investigation procedures. It also posted anti-harassment signs and instituted diversity and harassment training for all employees. While the DRBA did take longer to investigate Peace’s complaint than her co-worker’s, it addressed the issue immediately by separating the two employees. The Court held that these measures fell “comfortably within the realm of legally adequate legal measures.”

The Court further stated that it was “unwilling to step into the shoes of DRBA management, as suggested by Peace-Wickham, and make highly particularized judgments as to whether the DRBA should have docked pay, demoted, or withdrawn certain fringe benefits instead of following the course of action chosen here.”

Bottom Line

Employers can take comfort that as long as it takes steps “reasonably calculated to end the harassment” once it becomes aware of allegations, it will not be liable for a hostile work environment. Diversity and harassment training, in particular, were compelling to the Court in this case.

It should come as a surprise to no one that the recently-released charge statistics from the EEOC reveal a record-breaking number of charges of discrimination filed against employers in 2010. The continued bleak economy and resulting layoffs in 2009 and 2010 are the most obvious reasons for the increased charges.

The EEOC Chair has attributed the rise to other factors as well, including EEOC outreach efforts and changes in the ADA law.  Disability discrimination claims did take a bigger piece of the pie last year, rising from 23% of all claims filed in 2009, to 25.2% of all claims filed in 2010.

Some other observations from the statistics:

There has been a lot of discussion/speculation that older Americans were hit worst by the layoffs. It is interesting that, while the overall number of age discrimination charges rose slightly, the percentage of the total number of charges that were based on age discrimination actually decreased from 2009 to 2010, from 24.4% to 23.3% of all charges filed.

The brand new Genetic Information Nondiscrimination Act (GINA), which went into effect at the end of 2009, resulted in 201 charges filed. I expect that the regulations, which were released at the very end of 2010, and continued publicity and awareness of the law, will result in significantly more charges filed in this area in 2011.

Retaliation claims (which can be based on exercising one’s right under any of the protected categories) for the first time surged past race discrimination claims, which were previously the highest percentage of charges filed. In 2010, retaliation claims accounted for 36.3% of all charges filed, and race charges 35.9%. At the Delaware Department of Labor, charges filed based on retaliation have exceeded other types of charges substantially for some time.  See 2009 Stats on Delaware Charges of Discrimination; and What the Charge Statistics Mean for Delaware Employers.

Looks like Delaware was ahead of the curve on this one.  They don’t call us the First State for nothing!

What does all this mean for employers? Brace yourselves. Charges filed in 2010 may well lead to lawsuits in 2011. Unfortunately, the time from termination to lawsuit can be a lengthy one. Although the economy may be on its way to recovery in 2011, employers may just be starting to see the lawsuits resulting from layoffs several years ago.