Delaware Employment Law Blog

Delaware will join the many states that ban cell-phone use while driving.  The law, signed by Gov. Markell on July 6, will take effect on January 2, 2011. The new law bans texting while driving and the use of hand-held cell phones – meaning a hands-free device will be required to talk on the cell phone while driving. It also bans the use of pagers, PDAs, BlackBerry devices, laptops, games or portable computers, and two-way communication devices while driving. In addition, drivers cannot browse wirelessly or read, write, or send messages while driving.

There are a few exceptions, including for law enforcement, firefighters, EMS technicians, or other operators of emergency vehicles. In addition, two-way mounted radios can be used to communicate with other employees or a central dispatch.

Any violation is primary offense and a civil penalty. The fine for the first offense is $50 and subsequent penalties are between $100 and $200 dollars.

29 other states plus D.C. & Guam ban texting. Delaware will be only the eighth state to ban the use of hand-held phones. Delaware State Police cite 230 crashes in 2009 that involved the use of a cell phone as a distraction. National research shoes that drivers using cell phones are four times more likely to get into crashes causing an injury.

Employer Policies

The new laws don’t require you to have specific policies, but it’s a good idea to remind your employees that they need to follow the law while they’re working. There are many reasons employers should take all the steps they can to make sure their employees are driving safely while on the job. Employers may be legally responsible for the actions of their employees. If one of your employees is negligent, gets into an accident, and injures someone while on the job, the company could be held liable. Furthermore, if the employee is injured, you will likely have a workers’ compensation claim on your hands as well.

For these reasons, consider adopting and enforcing the following policies – some of which go further than Delaware’s new law:

· Ban all cell phone use while driving company-owned vehicles or on company property (even hands-free phones can distract drivers);

· Ban texting and emailing while driving.  If text messaging must be used, incorporate a strict policy requiring drivers to first find a safe area to park the vehicle;

· Make an exception for emergencies that require police or medical attention;

· Require all occupants of company-owned vehicles or private vehicles driven on company business to wear their seat belts, and monitor and enforce the policy. Seat belt use is the single most effective way for vehicle occupants to prevent injuries and fatalities;

· Include a signed acknowledgement of your written policy;

Finally, employers may want to contact their insurance broker or review their insurance policies to make sure your company and your employees are adequately covered.

By implementing the suggested policies, employers can ensure their employees are following the law AND that, as an employer, have taken all steps possible to prevent accidents and minimize the company’s liability.

Bonus Benefit

Another potential upside of the cell phone ban, according to the L.A. Times, is improved personal relationships!  According to the article, effective communication while driving is difficult and can lead to relationship problems. 

Although my schedule recently has left little time for blogging, my fellow employment-law bloggers have been busy keeping readers up to speed with the latest and greatest stories impacting human-resources and management professionals. Here’s a sampling:

Social-Media and Employers

There’s an interesting article at Kroll OnTrack about social-media investigations. I’m often asked about best practices for employers to follow when conducting these investigations. Here’s what the author says about one of the biggest risks of social-media investigations:

It is important to note that not every piece of information on the Web is useable or defensible. Due to confidentiality, privacy and security concerns, most courts will not allow a person to falsely represent themselves as a “friend” to collect data. This is known as “friending someone under false pretenses.” If an individual accesses the private data of another under an alias, or if the person being “friended” is unaware of the individual’s true intentions, courts will not hesitate to disregard information obtained involuntarily or without a user’s actual knowledge.

Social-media policies continue to be a hot topic for employers and the education industry is no exception.  Dan Schwartz at the Connecticut Employment Law Blog tells us how one school board in West Hartford, CT, is considering a social-media-usage policy for its teachers and staff.

Employee [Dis]Loyalty

There have been a great number of perspectives written about story of General McChrystal’s resignation.  The Thomas More Institute’s Blog for All Seasons comes reviews the political story from a business-ethics perspective:

Any relationship between employer and employee must contain an understanding – both tacit and explicit – about loyalty. The employer will not cheat his employees by not writing their pay cheques, etc., and employees, in turn, will carry out their jobs responsibly and diligently. The understanding, of course, applies not only in such straightforward matters, but also to more complex ones: confidential corporate information; plans, strategies, etc. In extreme cases, where this relationship breaks down anarchy and chaos result.

Creative Pleading:  Discrimination Against the Unborn

Philip Miles of Lawffice Space tells us of a case that definitely seems to be a contender for the most-bizarre-lawsuit-of-the-year award.  The plaintiff has filed suit alleging pregnancy and religion discrimination, based on her claim that she was terminated because her employer believed that the plaintiff’s unborn fetus was creating a negative energy field in the workplace.  You’ll have to read it yourself to believe it (or not).

Anyone who works with me knows that I place a lot of emphasis on litigation hold letters. In the most general sense, litigation hold instructions are invaluable because they cause everyone involved to pause and think about what they are doing with relevant information. The primary purpose of litigation hold instructions is to make sure that evidence, whether it be a hard-copy document or an e-mail, is preserved. Litigation hold instructions can be used defensively (e.g., sending hold instructions to your team after a you have been altered to a potential for litigation) or offensively (e.g., sending instructions to your opponent to make sure that they do not despoil any evidence).

It will be interesting to see how the significance of litigation hold instructions evolves in BP Oil Spill litigation, particularly if reports about BP’s alleged knowledge of potential safety issues are true. On June 8, 2010 Newsweek reported that documents about BP’s internal safety investigations, leaked to ProPublica, show an alleged pattern of negligence and a culture which purportedly silenced whistleblowers. If these allegations are true, it is arguable that BP had a duty to preserve evidence when it first learned of any potential problems with Deep Horizon, and long before the April 20, 2010 explosion. Thus, even before any court opines on whether BP issued proper litigation hold instructions, there is an important lesson to be remembered by all employers – your preservation duties kick in before a complaint is filed.

Electronic discovery experts already predict that litigation associated with the BP Oil Spill will become the largest electronic discovery event in history, and I agree. The sheer volume of electronically stored information, combined with accusations of negligence, the extensive damage suffered by the Gulf Coast region, and the fact that the explosion on the Deep Horizon killed eleven people, has created the perfect e-discovery storm. No matter the circumstances, however, the lesson remains the same. Consider your litigation hold duties early and often, and before a complaint is filed.

President Obama’s Chief of Staff has caused quite a stir. Reportedly, in a fit of frustration, Rahm Emanuel called participants in a White House meeting “ f---ing retarded.” Sarah Palin, who has a son with Down’s Syndrome, quickly spoke out about the inappropriate nature of the comment  on Facebook. The statement drew additional attention because this is the second time that a member of the Obama Administration has had to apologize for making an insensitive comment regarding the mentally disabled.

Emanuel apologized for the comment to Tim Shriver, who heads the Special Olympics.  The organization has launched a campaign urging people to stop using the term "retarded" as an insult, "Spread the word to end the word."

There is a valuable lesson to be learned from Rahm Emanuel’s comments. Political correctness for its own sake can make personal interactions unnecessarily burdensome. Instead of trying to be politically correct, try to be kind.  A little sensitivity and forethought can help to avoid embarrassing foot-in-mouth moments.

This post was written by Lauren Moak, an associate in Young Conaway Stargatt & Taylor’s Employment Law Department.

It now appears the Conan and NBC saga is coming to the end. It is being reported that Conan will leave NBC with a boat load of cash and will be free to have a new show on another network in the Fall. The specific terms of the deal have not yet been released, but they will definitely be detailed in a contract between Conan and NBC. Such a contract, often called a severance agreement, is used in high risk terminations as a means of avoiding costly and distracting litigation.

The key elements of a severance agreement include:

• A provision detailing the nature of the separation. Employees usually want it characterized as a resignation. This allows the employee to search for new work without the stigma of a termination on his or her record. This provision should, of course, describe the last day of work.
• A discussion of how much money is going to be paid to the employee and how it is going to be paid. This is obviously a key provision for both the employee and employer. While it is unlikely that an employee will be receiving $33 million like Conan, it is likely that some payment will be made. Such a payment may be in a lump sum or paid on some schedule agreed to by the parties.
• A release of all claims the employees may have against the employer. This release must be broad enough to ensure that the settlement is truly the end of the matter. As a result, it should be drafted in a way that covers all entities and people who may be the target of a lawsuit. It should also cover any particular state or federal statute or claim that can be brought by an employee against a former employer. Special care must be given when drafting a release involving a claim under the Age Discrimination in Employment Act (ADEA). A federal law, the Older Workers Benefits Protection Act (OWBPA), requires that the employee: be provided notice that ADEA claims are being released ; allowed at least 21 days to consider the release; be given 7 days to rescind the release; and be advised that they should consult an attorney.
• A provision detailing payments for any accrued but unused sick or vacation pay.
• Provisions detailing the treatment of confidential and proprietary information. It is crucial that the obligations of the employee be spelled in a way that both parties know what is expected of them. For example, it is reported that Conan will be required to leave behind the various characters he and his team developed through their years at NBC. All employees should be required to return any company papers, computers, and the like.
• Terms describing when and how the departing employee can compete with his old employer. Key employees, like Conan, often have an employment agreement containing a restrictive covenant limiting their ability to work in the future. The scope of such a covenant is often modified during the negotiations involving the employee’s departure. In Conan’s case it appears that he will be able to launch a new show sometime in September. You can bet, however, that there was a lot of discussion over what Conan could do in the interim.
• A term discussing whether the employer will oppose the employee’s unemployment compensation claim
• A discussion as to whether the employer will continue the employee’s health care coverage and for how long. Such continuation may be for a number of months or until the employee obtains new coverage from an new employer.
• A discussion of how the employer will respond to requests for references from potential new employers. Consideration should be given requiring the employee to direct all such inquiries to a specific person who will respond in an agreed upon way.
• The agreement should require that the terms of the agreement remain confidential or, at a minimum, provide what will be provided to the press or public. Such a provision is especially important in high profile terminations in which each party will need to “save face.”

To catch up on the Conan/NBC saga, see my previous posts, Why NBC Should Have Used Delaware Law In Conan O’Brien’s Employment Contract, and What Can Employers Learn From Conan O’Brien and NBC?

Follow me on Twitter @Bill_Bowser

Yesterday, I wrote that NBC’s dispute with Conan O’Brien might turn on an interpretation of his employment contract. If NBC’s actions were in breach of its agreement, any restrictive covenant preventing Conan from moving to Fox would likely be unenforceable.

Since that post, several commentators have opined that any such restrictive covenant would be unenforceable under either New York or California law—both states have passed statutes prohibiting restrictive covenants in employment contracts.

NBC’s legal position would probably be much stronger if it had included both “choice-of-law” and “choice-of-forum” provisions requiring that Delaware law be used to interpret the agreement and that Delaware courts interpret the agreement. Teresa Cheek’s recent post on this topic details the real advantages of using Delaware law in employment contracts involving executives or key employees.

Follow me on Twitter @Bill_Bowser

Just a few days ago, NBC announced that it was moving the Jay Leno Show from its current 10 p.m. starting time to 11:35 p.m. This move was prompted by complaints from NBC affiliate stations that the Show’s poor performance was damaging the ratings of their local news programs and their profits. The move of Leno’s show, however, will require moving the start of the Tonight Show to 12:05 a.m. Yesterday, Conan O’Brien released a statement objecting to the changes and threatened to leave the show. What can employers learn from this high profile, high-stakes predicament?

Conan and Leno are employees of NBC and their rights and obligations are governed by employment agreements. As a result, the options of all three parties will be determined by the terms of these agreements.

Conan’s threat to bolt from NBC is likely based on a basic tenet of contract law: a party to a contract is relieved of the duty to perform (no pun intended) if the other party to the contract materially breached the contract first. While I have not seen the terms of Conan’s agreement with NBC, the final resolution of this highly public squabble may well turn on whether NBC’s actions are in breach of its agreement with Conan.

But how does the Conan-NBC contract apply in the real world? Well, Conan’s agreement with NBC, like many employment agreements, probably contains express restrictions on Conan’s ability to jump to another employer. Indeed, rumors are flying that Fox may be interested in bringing his talents to that network. If Conan can show that NBC actions materially breached his contract, he could be relieved his contractual obligation to provide a show for NBC and any restrictions preventing him from jumping to another network.

As a result, an employer should always make sure that any material changes affecting a key employee are in compliance with the terms of any employment agreement with that employee. If not, a court may refuse to enforce any non-competition provisions contained in the agreement.

As 2009 winds down, it’s a good time to reflect on the most important employment law developments in what has been a very busy year. Here are my top 10:

Continue reading "Top 10 Employment Law Developments of 2009" »

Here are a 10 of the most important and interesting employment-related posts from the web this week.  TGIF!

 

I am a big fan of audiobooks and podcasts for convenient learning.  Mission to Learn blog has a great post listing "10 Killer Content Sources for Your iPod Learning Mix"  with several excellent resources for those who want to learn on the go. 

 

Ogeltree Deakins' employment-law blog, Employment Law Matters has a timely summary of an important case from the 3d Circuit in the post, Replacing employee with younger, less experienced person is not always age discrimination.

 

Brian Hall, at Employer Law Report, provides an update on another important case, Pietrylo v. Hillstone Restaurant Group.  I reported on Pietrylo when the jury came back with a verdict against an employer who terminated two employees because of their MySpace page.  As Brian reports, the verdict was upheld by the federal district court in New Jersey.

 

David Yamada, at Minding the Workplace blog, reports on a survey, which found that a majority of workers in the U.S. think that their bosses are dishonest.

 

The WSJ reports that E-Mail No Longer Rules.  Instead, Twitter and Facebook (and other hopefuls) have taken over.  Recently, I read that the alleged decline of e-mail is an inevitable result of the Gen Y / Millennial infiltration.

 

Philip Miles at Lawffice Space updates us on the two new EEOC ADA notices issued by the EEOC, one on Swine Flu and one on the upcoming Town Halls for proposed ADAAA regulations.

 

An article at ComputerWeekly.com recommends that employers have dress-code policies for avatars.  Avatars are 2- or 3-dimensional objects that usually resemble humans, and used as a visual representation of the user.  This is an angle that I'd never heard previously but probably has some legitimacy for those organizations with staff who use avatars.

 

At The Word on Employment Law, John Phillips discusses the now infamous "Balloon Boy Hoax" and concludes (rightly), that Zero Tolerance Polices Are Worth Zero.

 

Epstein Becker's Trade Secrets & Noncompete Blog keeps readers up to date on the events in Georgia, as its state Legislature Proposes Dramatic Changes to Restrictive Covenant Laws.

 

Jon Hyman, at the Ohio Employment Law Blog, discusses the recently released Litigation Trends Survey and Highlights report, published by Fulbright & Jaworski, as it relates to what we can expect in the world of employment litigation in 2010.

The current hullabaloo over the AIG bonuses is a good example of the old adage that bad facts make bad law, and is especially puzzling to employment lawyers, who understand that employment agreements are usually sacrosanct. While it is hard to muster any sympathy for AIG, the proposed political machinations to make AIG executives give back their bonuses have broad implications that should be of concern to all clear-thinking citizens.

Congress imposed strings on the bailout money after it had already been accepted by AIG and many other companies, which itself is a bit questionable. But when Congress proscribed companies that accepted the bailout money from paying bonuses, it made an exception for bonuses that were "required to be paid pursuant to a written employment contract executed on or before February 11, 2009." To pillory AIG for paying out bonuses in accordance with the language chosen by the very politicians who are now screaming loudly about the greedy company seems a mite disingenuous.

Talk about a Hobson’s Choice! If AIG had refused to pay the money, it would have faced a flurry of lawsuits either by individuals or a class of people with very strong legal claims. And for those whose employment agreements called for them to remain with AIG in return for the bonuses, the so-called retainer bonuses, the refusal to pay the bonuses would likely have triggered wholesale departures from the company at a time when it needed them to stay afloat. Indeed, before the current uproar gathered steam, members of the administration opined that AIG had to honor these contracts and pay the bonuses.

Of even broader concern is the effort to get the bonus money back by imposing a 100% tax on it, or by trying to indirectly recover the money from AIG. Since the federal government’s original goal was to assist AIG in avoiding bankruptcy and eventually be repaid by AIG, the government’s current maneuvers could easily end up accomplishing the purpose it has been trying to avoid, a bankrupt AIG and a federal government that is unable to recoup any of the bailout money.

Even more dangerous are the potential long-term impacts. If these schemes are implemented, the resulting precedent would give the federal government carte blanche to violate the Contract Clause of the U.S. Constitution or, if nothing else, result in expensive lawsuits that would probably end with the legislation being overturned. While it may feel good, and win political points, to inveigh against the avaricious company, the truly responsible politicians and other citizens must focus dispassionately on the long term consequences of these actions.

A Philadelphia juror returned a verdict of guilty for former Pennsylvania state senator, Vince Fumo, today.  Over the weekend, Fumo's attorneys demanded that the jury's deliberations be halted and requested a mistrial after one juror was caught posting about the trial on his Facebook page and twittering about an impending verdict.  The defense argued that deliberations cease until the twittering juror was questioned about his online disclosures. 

The judge complied with the request but, after questioning the juror, permitted the deliberations to continue.  The judge stated that he was satisfied that the juror had not received any communications about the trial and that the juror's impartiality had not been compromised.

The "tweets" were not specific enough for the judge to find that they were posted in violation of the court's admonition against disclosing the status of jury deliberations.  For example, "Stay tuned for a big announcement on Monday everyone!"

Just hours after being permitted to return, the jury came back, finding Fumo guilty on all counts--137 in all, including charges of corruption and obstruction of justice.  The Fumo trial has been a focus of the Philadelphia news for the entire duration of the five-month trial.  Once considered the most powerful Democrat in the state, Fumo was accused of defrauding the state Senate and others of $3.5 million to support his lavish lifestyle. 

Given the attention surrounding the trial, is it really that surprising a juror just couldn't help himself from talking about it--even in the vaguest terms--online?

This is not the first time Facebook has been in the news in Philly.  Recently, a die-hard Eagles fan was fired for comments he posted on his Facebook profile that were critical of his favorite team's decision to trade fan-favorite Brian Dawkins.  Certainly, this is not the last story of its kind.  Stay tuned and tune in.

For similar stories:

Facebook Makes Friends With the Ladies

What Employers Should Not Do In A Social Marketing Recruiting Campaign

Discoverability of Facebook Profiles

More Good Advice on Best Practices for Use of Social Networks for Employers

Free Podcast: Employers' Use of Facebook, MySpace, and Other Social Networking Sites

The Number of Adults Who Use Online Social Networking Sites Is Skyrocketing

Employers Use MySpace for Hiring and, Now, Defending Discrimination Claims

President Obama’s commitment to work-family issues is a topic I've posted about previously.  I've also posted about the President's campaign platform on work-life and work-family issues.  I’ve wondered, however, given the many larger issues on the President’s plate, whether these matters would truly be a focus once he was in office. Michelle Obama has made it clear it is a focus of hers, even while her husband is tending to other matters. She solidified her commitment to the issue by her appointment, as reported in the Wall Street Journal, of fellow attorney and Harvard Law School classmate Jocelyn Frye, general counsel of the National Partnership for Women and Families, as her Policy Director.

Obama’s naming of Frye last Friday suggests she’s preparing to take an activist stance on such policy issues as family leave and flexible scheduling. Frye has been a long-time advocate of expanding family leave and ending pregnancy discrimination.  

The National Partnership for Women and Families drafted and lobbied for the 1993 Family & Medical Leave Act, which entitles many workers to up to 12 weeks unpaid time off for family care and other reasons. Their “proposed agenda for the new administration,” posted on the Partnership’s Web site, includes a much-expanded FMLA, guaranteeing employees of companies with 15 or more workers access to seven paid sick days a year, and also for the federal government to provide incentives for the states to set up paid family-leave insurance plans. The brief also calls for equal access to family leave for part-time workers, income supports to allow working parents in poverty to care for new children at home, and federal policies to give workers more control over their schedules, including the right to refuse mandatory overtime.

Let’s hope that Michelle Obama’s commitment to the cause, and her appointment of Frye, result in some real developments on work-family issues!

Do you have a New Year's resolution? Truth be told, I actually don't make any resolutions for the new year.  I'm a hyperactive overachiever with a mild case of OCD who sets [too many] goals throughout the year.  I'm never short on "things to accomplish" come January.  But I'm a sucker for ambitious to-do lists, so I'm posting about resolutions anyway. 

What resolutions do you expect to hear around the water cooler during the first few weeks of the year?  Based on the most popular topics on this blog in 2008, I bet we could guess what the most popular resolutions might be for 2009.

 

In no particular order, here are the topics and the corresponding resolutions:

1. Work-Life Balance:  Spend more family time.
2. Wellness Programs:  Get more exercise.
3. Jerks at Work:  Make new friends.
4. Going Green:  Implement eco-friendly policies at work.
5. Alternative Work Schedules:  Ask to try a four-day work week. 

One of the Obama administration's stated employment goals is to create or save 2.5 million jobs in the before January 2011.  Jobfox has predicted the job sectors where most of these new jobs can be expected to go.  According to Jobfox, the most wanted new jobs can be broken into categories that correlate to Obama's major initiatives.

Initiative: Construction of Roads, Bridges, Transit and Rural Broadband
Key Jobs:
1. Construction managers
2. Project managers
3. Civil engineers
4. Computer-aided drafting specialists
5. Telecommunications engineers

Initiative: Greater Oversight of Financial Markets
Key Jobs:
1. Compliance accountants
2. Internal auditors
3. Tax accountants
4. Government regulators

Initiative: Energy Independence
Key Jobs:
1. Electrical engineers
2. Mechanical engineers
3. Power grid managers
4. Biofuels chemists
5. Sales and marketing

Initiative: Healthcare Modernization
Key Jobs:
1. Nurses
2. Information technology specialists
3. Bioinformatics specialists
4. Information security specialists
5. Software developers

Initiative: Volunteerism and Community Involvement
Key Jobs:
1. Social workers
2. Administrators
3. Translators

Rep. Hilda Solis was named Friday as President-Elect Obama's choice for Secretary of Labor.  He nominated the Democratic congresswoman at a news conference on Friday, December 19, 2008.   The Hilda nomination was very popular with the unions.  The four-term politician has voted pro-union nearly 100% of the time during her eight-years as congresswoman in Los Angeles, California. 

And Solis isn't shy about her union loyalties.  At the conference, she stated, "I am humbled and honored. . . As secretary of labor, I will work to strengthen our unions."  American Rights at Work Executive Director Mary Beth Maxwell called Solis "a great choice” who “brings the expertise and leadership required to a department in desperate need of reform and will champion common sense policies like the Employee Free Choice Act to restore balance and create an economy that works for everyone.”

The unions have lots of good things to say in return, too.  See the following union websites for the glowing reviews: SEIU, Unite to Win, American Rights at Work, and Change to Win.

Solis is also known for her successful campaign to increase California's minimum wage from $4.25 to $5.75 in 1996.  In addition to her deep roots in the union movement, Solis has long been branded as an ardent environmentalist, who has pushed hard for the "green job movement."

Delaware's own Joe Biden will appear for an interview on Monday, December 22, 2008, on Delaware Tonight.  According to the Delaware Tonight website, Biden will discuss his thoughts about making history as the first Delawarean to be elected Vice President, and life's biggest adjustments since that memorable election night.

Delaware employers should tune in to keep abreast with this quickly-changing political landscape.

Potential job candidates beware: your Facebook page is not off limits.  At least that's the case if you're applying for a job in Presidential-elect Obama's administration.  Candidates for Cabinet and other high-ranking positions must complete a seven-page, 63-item questionnaire, which asks questions about almost every imaginable detail of their personal lives.

Some of the areas on the application include:

• real estate and financial investments;
• involvement in civil or criminal lawsuits;
• immigration of any domestic help they may have hired;
• names and phone numbers of past live-in lovers;
• whether any family member owns a gun; and
• financial and tax information.

One of the more unusual topics on the questionnaire is a real "sign of the times."  Potential candidates must disclose Facebook pages and blogs.  CNN reports that job applicants will need to turn over any and all information that could potentially cause embarrassment to the next administration, including their social networking pages--past or present.

So, will this silence some of the critics who advocate against employers who run Facebook and MySpace searches on candidates?  If it's a suitable background-check method for potential members of the presidential Cabinet and international ambassadors, doesn't it seem like a reasonable idea for potential members of your organization?

For more on this topic, see:

New Study Shows Increase in Online Applicant Screening

Conclusive Proof that Employers Should Screen Applicants with Social Networking Sites

How to Conduct Online Background Searches With Google

Facebook Users Beware: Employers Aren't the Only Ones Who Know How to Google

Top 10 Reasons Why Employers Should Screen Their Applicants

And for employers who are considering the practice of Online Applicant Screening but who don't know where to start, be sure to catch the easy-to-understand video, Video Resources: How to Set Up a Facebook Account for Applicant Screening, available under the Resources > Video Resources tab at the top of the page.

Human Resources departments of Delaware employers will soon face a new and more challenging day once the initial excitement dies down and the new administrations in Washington and Dover turn to official business. 

The State of Unions

In Washington, one of the first items on the agenda will surely be the Employee Free Choice Act, which is designed to revitalize the union movement. It will substitute card checks for secret ballot elections, establish strict bargaining deadlines, and introduce interest arbitration to impose a first contract if the parties are unable to reach agreement in 90 days. Interest arbitration is a concept already familiar to Delaware public employers.

Of note, Delaware public employers have won every interest arbitration case decided to date, but the concept itself changes the bargaining landscape. It requires employers to, in essence, bid against each other by proving they are keeping pace with comparable employers. The Act would also increase the power of the NLRB to obtain injunctive relief and impose increased back-pay damages for unfair labor practices committed by employers during bargaining campaigns.

Another law designed to assist unions is the RESPECT Act, which would overturn an NLRB decision (Kentucky River) that labeled many employees as supervisors and removed them from the coverage of the National Labor Relations Act. Passage of that Act would add many exempt supervisors to the rank and file.

On the Agenda

President-Elect Obama has also supported a proposed law that would ban the permanent replacement of strikers.  And he will be appointing at least 3 new members of the NLRB, and it is virtually guaranteed that the majority will be sympathetic to unions. Passage of this cornucopia of union-favoring legislation would put a heavy thumb on the union side of the organizing scale.

Another change that seems certain is the reversal of the Supreme Court’s Ledbetter decision. The plaintiff in that case, Lilly Ledbetter, was featured in an Obama ad, so he certainly owes her. That case held that the time for filing a charge of discrimination based on unequal pay begins to run from the time the initial unequal wage was established. The new law would permit a charge to be filed every time a new paycheck is received.

President-Elect Obama also has expressed support for expanding FMLA coverage from companies with 50 or more employees to those with 25 or more employees, and to require at least 7 days of mandatory paid sick-leave per year.

Delaware's Political Landscape

In Delaware, it is harder to predict what might come to pass. Governor-Elect Markell, though a Democrat, is a former businessman and will, likely, approach game-changing labor and employment legislation cautiously. But the General Assembly, with many union members and advocates, could pass several bills that have been proposed previously but have never seen the light of day.  Among these are the expansion of the state discrimination statute to include sexual orientation, and the elimination of the employment at-will doctrine. Depending on what happens in Washington, there might also be efforts to add a Delaware FMLA law and a Delaware analogue to the WARN Act.

Fasten your seat belts, it is going to be a bumpy ride.

Connecticut Employment Law Blog's Dan Schwartz has issued a challenge to his readers, which include more than a few fellow employment-law bloggers.  He's asked, what one question regarding labor and employment law would you ask the candidates?

I am glad to oblige, of course.  That being said, I can hardly be described as a fervent political observer.  So I think I'll leave the tough questions to the brains in the group like John Phillips,  favorite employment-law blogger, at The Word on Employment Law.  Instead, I'd ask questions that reflect the state of the workplace today.  And I'd ask both presidential candidates the same question in reverse.  Here goes:

To Biden:  How much will you miss the First State?   [And don't give me a hard time about the non-question.  I mean, really, how often do we Delawareans have a hometown player in the national political arena??]

To McCain:  If elected, you will be the oldest person ever inaugurated as president.  Your running mate, Sarah Palin, is the youngest person ever to hold the office of governor in the State of Alaska.  Based on your working relationship with Governor Palin, what role do you predict the generational divide may play in the workplace?

To Obama:  You are the youngest Democratic presidential candidate in history.  Your running mate, Senator Joe Biden, has served in the Senate for 35 years.  Based on your working relationship with Senator Biden, what role do you predict the generational divide may play in the workplace?

To Palin: You were back to work just one day after the birth of your fourth child and just three days after the birth of your fifth child.  Each time, you brought your infant with you to the Governor's office while you worked.  Would the current demand for work-life balance and alternative work schedules be benefited by allowing parents to bring infants and small children to the workplace, such as through employer-sponsored, on-site daycare?

In a prior post, Senator Biden on Work-Life Issues, I wrote on Biden’s stand on work-life issues. What about other matters of interest to Delaware employers? Is his possible ascension to the Vice Presidential role a good or bad thing for Delaware employers?

Friend or Foe?

It should come as no surprise that Biden has taken the “employee”-side on several important pieces of pending employment legislation. Biden supported the Paycheck Fairness Act (S. 766), which is intended to prevent pay discrimination by strengthening penalties should it occur. Biden’s support for the Fair Pay Restoration Act (S. 1843), should also be no surprise. The Fair Pay Restoration Act seeks to address the 2007 U.S. Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber.

In the Ledbetter decision, the Supreme Court held that employees cannot challenge ongoing pay discrimination if the employer’s original discrimination decision occurred more than 180 days before the most recent discrimination (300 days under Delaware’s statute), even when an employee continues to receive paychecks that have been discriminatorily reduced for some time. Under the Fair Pay Restoration Act, an unlawful discriminatory act is committed when a discretionary compensation decision is adopted, when an employee becomes subject to the decision, or when an individual is affected by the application of a decision, including each time compensation is paid. If this Act is passed, employers could be exposed to lawsuits based on decisions made decades ago.

Biden also supported amendments to the Americans with Disabilities Act (ADA) (S. 3406), which has been placed on the Senate’s legislative calendar. The Act promotes changes to the ADA which purport to override several U.S. Supreme Court decisions which apply a strict standard for individuals to meet in order to show that they are disabled or regarded as being disabled under the ADA. The Obama-Biden platform includes goals of appointing judges who respect laws designed to protect people with disabilities, increasing funding for enforcement, and garnering support for the Genetic Information Nondiscrimination Act (S. 358). However, Delaware has long protected against discrimination on the basis of genetic information, so passage of GINA would not mean anything new for Delaware employers.

Finally, Biden is a co-sponsor of the Employee Free Choice Act (S. 1041). If passed, that act would enable workers to form unions when a majority sign union authorization cards, establish mediation and binding arbitration when the employers and workers cannot agree on a first contract, and strengthen penalties for companies the coerce or intimidate workers.

Bank on Biden?

At the same time Biden has taken “pro-employee” stances on employment legislation, he has put his full weight behind, and achieved great success on behalf of, at least two significant segments of Delaware employers: banks and the legal system. He supported the 2005 bankruptcy reform law, which made it harder for consumers to rid themselves of debt, but benefited banks such as MBNA (since acquired by Bank of America).

Also as part of the 2005 law, the U.S. Bankruptcy Court for the District of Delaware got four new judges. Once the new judges were assigned, Delaware regained its top position for bankruptcy filings, with nearly 80% of companies seeking bankruptcy protection filing in Delaware in 2007. Biden has thus endeared himself to Delaware’s legal employers, by ensuring Delaware’s prominence in the bankruptcy field.

Joe – We Hardly Knew Ye

So what will it mean if Biden moves from his leadership position in the U.S. Senate to one in the executive office? As Vice President, Biden would also become the President of the U.S. Senate. As President of the Senate he has the primary duty to cast a vote in the event of a Senate deadlock. However, his constituency has changed from Delaware, to the entire nation.

One would expect Biden to use his vote to support Obama’s platform, not Delaware’s interests. Obama has strongly criticized the bankruptcy reform act, and has taken aim at the same financial services industries Biden has supported. Even if Biden were inclined to support Delaware’s interests, there is a strong convention within the U.S. Senate that the Vice President should not use his position as President of the Senate to influence the passage of legislation or act in a partisan manner, except in the case of breaking tie votes. For these reasons, Biden is unlikely to use his position to advocate for Delaware employers, as in the past.