Articles Posted in Purely Legal

By Michael P. Stafford

Marijuana is back in the news here in Delaware. Our state’s first Compassion Center is set to open later this month and legislation decriminalizing the sacred herb has been signed into law by Governor Jack Markell.  medical marijuana_3

Delaware is by no means unique-it is part of a national trend towards decriminalization and even legalization occurring at the state level across the nation. However, as far as the federal government is concerned, marijuana remains illegal. Essentially, America is becoming a veritable patchwork quilt of differing, and inconsistent approaches-a situation that is creating headaches for employers, particularly those with national or multi-state operations, striving for consistency and uniformity in their drug policies.

By William W. Bowser

Under the Family and Medical Leave Act, an eligible employee can take up to 12 weeks of protected leave for his or her own “serious health condition.” A “serious health condition” is defined by Department of Labor’s regulations as one “that involves inpatient care … or continuing treatment by a health care provider.” While many FMLA cases have focused on the meaning of “continuing treatment,” the definition of “inpatient care” has seen little review. A recent decision by the Third Circuit Court of Appeals, which covers Delaware, recently focused on the issue.

Jeff Bonkowski worked for Oberg Industries as a wirecut operator and machinist. During a meeting with his supervisors on November 14, 2011, Bonkowski began to experience shortness of breath. His supervisors gave him permission to go home and he clocked out at 5:18 p.m. Shortly after 11 p.m., Bonkowski’s wife drove him to the hospital. Although he arrived at the hospital before midnight, he was not admitted into the hospital until shortly after midnight on November 15th. As we will see, these few minutes would be very important.

A bill pending in the Delaware legislature would expand the state’s anti-discrimination statute.  House Bill 4 would prohibit discrimination on the basis of domestic violence, sexual offense, or stalking.  If passed, the bill would have important implications for Delaware employers.  Here’s what you need to know.

Which Employees Would Be Protected?

If adopted, the bill would prohibit employers from discriminating against employees because the employee was a victim of domestic violence.  There are several scenarios where the implications of the law would be significant.

By Barry M. Willoughby

At our recent Annual Seminar, we discussed, EEOC v. Abercrombie & Fitch Stores, Inc., an action involving alleged religious discrimination in connection with a refusal to hire that was then pending before the U.S. Supreme Court.  Attendees at the seminar will recall that the case involved an applicant for employment at Abercrombie who was turned down based on the Company’s “look policy,” because she wore a head scarf.  Although the interview for this position did not involve any discussion of whether the applicant wore the scarf for religious reasons, and/or whether she would require an accommodation to allow her to wear the scarf while at work, the EEOC investigation established that the company’s representatives believed that the applicant was wearing the scarf for religious reasons and refused to hire her on that basis.

On June 1, 2015, as we predicted, the Court issued its Opinion finding that the employer had indeed violated Title VII’s prohibition against religious discrimination.  Significantly, the Court ruled that actual knowledge of the employee’s need for a religious accommodation is not required.  Instead, the Court found that the test is whether the employer’s decision was, in fact, motivated by illegal discrimination under Title VII.

At our Annual Employment Law Seminar last week, I spoke about the “Facebook Privacy” bill that was then pending in Delaware’s House of Representatives.  The bill passed the House on later that day and is now headed to the Senate.  For those of you who weren’t in attendance last week, here’s a brief recap of the proposed law. 

The stated purpose of HB 109 is to protect individuals’ privacy in their personal social media accounts.  Generally speaking, HB 109 would prohibit employers from requiring or requesting that an employee or applicant give the employer access to their personal social-media accounts-either by giving up their passwords or by logging in and letting the employer take a look (also known as “shoulder surfing”). 

As we all know, though, with any law, the devil is in the details.  And there are, not surprisingly, a few devilish details.  For example. . .

The intersection of Facebook use and Free Speech is complicated.  Complicated enough, in fact, that the U.S. Supreme Court will weigh in on the subject when it decides a case it is scheduled to hear argument in today, Elonis v. United States. text message speech bubble or twitter keyboard_3

The basic legal principle at issue is what constitutes a “true threat.”  It is a crime to use the phone or Internet to make a “threat to injure” another person.  And “true threats” are not protected as speech under the First Amendment.  So, “true threats” to injure another made via Facebook can be punishable as crimes.  Otherwise, the speech would be protected by the constitution and could not be considered criminal.

But what’s a “true threat?”  Is that question to be answered by the “reasonable person” who would be subject to the threat?  Or does the speaker have to have intended his words as a threat to constitute a criminal act?

Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.logo_from_dev

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it.  I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it.  Ummmm, no.

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply.  Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

Breaches of confidentiality via Facebook and other social media are more common than most of us would like to think.  Employees post information about customers, clients, and patients on Facebook, in violation of internal company policies and privacy laws, such as HIPAA, for example.  I recently wrote about a plaintiff who could not collect a sizeable settlement payment because his daughter posted about the settlement on Facebook, which served to demonstrate that her father had breached the confidentiality provision in the settlement agreement. logo_from_dev

There’s another reason to be concerned about what employees say on social-networking sites-waiver of the attorney-client privilege.  The general rule is that confidential communications between an attorney and her client are subject to the privilege and are not subject to discovery by the opposing side.  Privilege can be waived, however.  And one way for a client to waive privilege is to have the communication in the presence of a third party.  Another way is for the client to tell a third party about the communication between himself and his lawyer.

For example, Lawyer and Client meet to discuss strategy regarding litigation.  This conversation would be privileged.  If Client brings his friend to the meeting, the conversation would not be privileged.  And, if Client did not bring his friend but reported the conversation to his friend after the meeting was over, the privilege would be lost.

Delaware Gov. Jack Markell signed into law legislation that expands the protections provided to employee-whistleblowers.  H.B. 300 extends whistleblower protections to employees who report noncompliance with the State’s campaign-contribution laws,who participate in an investigation or hearing regarding an alleged violation of the campaign-contribution laws, or who refuses to violate the campaign-contribution laws.

The practical effect of this new protection is limited, as it applies to a fairly narrow group of employees-those whose employer has some involvement in political fundraising.  But it serves as an excellent reminder about the importance of preventing unlawful retaliation.Whistleblower_thumb

Retaliation claims continue to top the list of claims filed with the EEOC.  Not only are they popular but they are some of the most successful for plaintiffs.  The reason for its popularity and its success is the same-retaliation happens.

Delaware’s General Assembly has passed a law “relating to the removal of insensitive and offensive language.”  When I first saw the title of this Act, I admit, I was alarmed that our State’s legislature was banning profanity in some context.  I was relieved to read the text of the law, though, and learn exactly what it actually does provide. logo_from_dev

According to the synopsis, the bill is part of a national movement, known as People First Language (“PFL”) legislation, intended to “promote dignity and inclusion for people with disabilities.”  PFL requires that, when describing an individual, the person come first, and the description of the person come second.

For example, when using PFL, terms such as “the disabled” would be phrased, “persons with disabilities.”  This language emphasizes that individuals are people first and that their disabilities are secondary.  I think this is an outstanding initiative.

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