Articles Posted in Legislative Update

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.

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. . .

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.

Criminal histories and credit scores will soon be an off-limit topic for job applications in Delaware’s public sector.  HB 167 passed the Delaware Senate on May 1, 2014, and is expected to be signed into law by Gov. Markell soon. criminal_background

As we previously reported, the bill would prohibit public employers and contractors with State agencies from:

inquiring into or considering the criminal record, criminal history, or credit history or score of an applicant before it makes a conditional offer to the applicant.

Employment legislation has been a popular topic for the Delaware General Assembly in recent months. Here are two recently proposed legislation that Delaware employers should keep an eye on.

Employment Protection for the Disabled

The General Assembly has proposed a very simple change to the Delaware Persons with Disabilities Employment Protections Act (DPDEPA), which would change the definition of “employer.” More specifically, they have proposed decreasing the threshold for coverage from 15 employees (the same as the Americans with Disabilities Act) to 4 employees (the same as the Delaware Discrimination in Employment Act).

So-called “ban-the-box” initiatives, which limit employers’ inquiries into an applicant’s criminal history, have been adopted by several cities and municipalities.  Philadelphia adopted such a law in the Spring of 2011.  The City of Wilmington joined the ban-the-box bandwagon in Fall 2012, when then-Mayor Baker signed an executive order that removed a question about criminal convictions from job applications.  But that executive order applied only to applicants seeking work with the City of Wilmington.  Other Delaware employers have not been subject to these restrictions.

A bill is pending in the Delaware legislature, though, would change that and more if passed.

H.B. 167 proposes to limit when public employers and government contractors may inquire about or consider the criminal background or credit history.   The employer would not be permitted to ask about this information until “after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.”  Thus, a covered employer would be prohibited from asking about criminal or credit history until at least the first interview-no more checkboxes on job application.

Editor’s Note:  This post was written by Timothy J. Snyder, Esq.  Tim is the Chair of Young Conaway’s Tax, Trusts and Estates, and Employee Benefits Sections. 

Delaware’s Mini-COBRA law, enacted in May 2012, allows qualified individuals who work for employers with fewer than 20 employees to continue their coverage at their own cost, for up to 9 months after termination of coverage.  When it was passed, the legislature provided that the provisions of the Mini-COBRA statute:

shall have no force or effect if the Health Care bill passed by Congress and signed by the President of the United States of America in 2010 is declared unconstitutional by the Supreme Court of the United States of America or the provisions addressed by this Act are preempted by federal law on January 1, 2014, whichever first careContinue reading

Delaware extended employment rights to volunteer firefighters and other first responders who must miss work due to emergencies or injuries sustained while providing volunteer rescue services.

Volunteer Emergency Responders Job Protection Act

Governor Markell signed two new bills affecting the employment rights of Delaware’s emergency responders. Under the Volunteer Emergency Responders Job Protection Act, employers with 10 or more employees are prohibited from terminating, demoting, or taking other disciplinary action against a volunteer emergency responder because of an absence related to a state of emergency or because of an injury sustained in the course of his or her duties as a volunteer emergency responder.

Last week was a busy one at the Governor’s office, where Governor Jerry Brown signed into law no less than three new laws with a pro-labor, pro-employee theme. The first two laws were a package deal, making California is the first State to enact legislation that prohibits employers and educators from requesting employees’ and students’ social-networking passwords. Gov. Brown announced that he’d signed the twin bills into law via a Twitter post on Thursday.

Seal of California.pngCalifornia is the second State after Delaware to prohibit universities and colleges from requiring students to turn over their passwords to their social-networking accounts. It is the third State, following Maryland and Illinois, to enact similar legislation providing these privacy protections to employees and applicants. And similar legislation is pending in several States. New Jersey’s version of the Facebook-privacy law was released by a Senate committee at the end of September.

The day after Gov. Brown signed the bills into law, he signed a third bill, which declared May to be Labor History Month. What, you ask, does this actually mean? Well, it means that school districts in the State will commemorate the month with educational exercises intended to teach students about the role of the labor movement in California and across the country.