Delaware Employment Law Blog

Young Conaway Employment Law Partner Bill Bowser is a fan of the phrase, embarrassment of riches, meaning an overabundance of a good thing. Just today, Adria Martinelli and I each had occasion to use the phrase today in separate conversations and laughed when we realized that the real embarrassment of riches was our frequent use of the phrase in conversation. Embarrassment of riches had, itself, become an embarrassment of riches. And it now seems that we have yet another chance to use the phrase today, as I’ve learned that the Delaware Employment Law Blog has been named by LexisNexis as one of the Top 25 Labor and Employment Law Blogs!

There are so many incredible labor-and-employment law blogs and bloggers online today that I can’t imagine how tough it was to select just 25 of them for this award. I can’t even limit my annual Top 100 Labor and Employment Law Blog list to 100 anymore. I am a fan of each of the blogs named to the list of Top 25 and I recommend that you pay a visit to any of the sites you may not yet know. Between the whole motley crew of us, you’re almost guaranteed to get all of the up-to-the-minute coverage of what’s happening in the area of workplace law.

Without playing favorites, I will point you in the direction of a handful of blogs written by long-time bloggers whose posts I consistently enjoy. For example, two gentlemen I’ve had the pleasure of getting to know over the past few years, Dan Schwartz of the Connecticut Employment Law Blog and Jon Hyman of the Ohio Employer's Law Blog, both post so often, they make my head spin! Dan, Jon, Phil Miles of Lawffice Space, Rob Radcliffe of Smooth Transitions, and I also collaborated on a recently published book, Think Before You Click, which is the first Human Resources publication dedicated to in-depth coverage of social-media related issues in the workplace.

I also would like to direct you to three blogs that I read religiously but whose authors I’m sorry to say I have not yet met. Michael Fox has been blogging at Jottings by an Employer's Lawyer since before most of the rest of us knew what a blog actually was! Timothy Eavenson of Current Employment hasn’t been blogging quite as long (but, really, who has?), but still longer than most and yet consistently produces great posts on cases and issues that matter. And I am always amazed by Brian Hall of The Employer Law Report and his ability to constantly collect and curate stories from just about every source—and has the content-rich posts to prove it.

Finally, I have to mention my friend Seth Borden of Labor Relations Today. Although Seth’s blog didn’t appear in the LexisNexis list, I’m absolutely certain that it was only due to an oversight because nobody, and I mean nobody writes a better labor blog than Seth.

Although I could go on and on about the great folks with whom I’m so lucky to share the blogosphere with, I’ll, instead, leave you with the rest of those honored by LexisNexis this year. There is apparently a “race to the top” with readers able to vote for their most favorite blog from the Top 25. If you’re inclined to vote for this or any other blog on the list, you can do so here. That's also the page where you can find the entire list of all 25 employment-law blogs. And, while you’re there, be sure to check out all of the resources offered in the LexisNexis Labor and Employment Law Community—many of the bloggers on the Top 25 list are contributors to this terrific resource.

But regardless of whether or for whom you vote, thanks for reading the Delaware Employment Law Blog and any of the other many high-quality employment law blogs that are published every day. This blogging stuff can be a lot of work! But for those of us who do it, it’s a labor of love and we do appreciate having you come along for the ride.

LexisNexis has selected Delaware Employment Law Blog as a nominee for its Top 25 Labor and Employment Law Blogs. We're very honored to have been selected and are in very good company, along with 58 or so other excellent employment law or Human Resources-related blogs that also were nominated. According to LexisNexis, readers are encouraged to leave a comment in support of their favorit blog--each comment is counted as one "vote" and can be submitted through September 12, when the top 25 are announced.

Honestly, the biggest reward that we could hope for is your continued readership. Ok, well, the kind words some of you send to us once in a while don't hurt, either--I mean, who doesn't appreciate a compliment now and then? So we won't ask you to vote for us but certainly wouldn't object if you were inclined to do so anyway. To vote, you must be registered, so there is a prerequisite. If that doesn't stop you from wanting to support the Delaware Employment Law Blog, we thank you for your dedication. And, if not, thanks anyway! We're glad to have you stop by the blog anytime, voting or no voting!

A bill to permit the use of marijuana for medical purposes was introduced in the Delaware General Assembly yesterday. Senate Bill 17, if enacted, would create an exception to Delaware’s criminal laws by permitting the doctor-recommended medical use of marijuana by patients with serious medical conditions. A patient would be protected from arrest if his or her physician certifies, in writing, that the patient has a specified debilitating medical condition and that the patient would receive therapeutic benefit from medical marijuana.

Patients would be allowed to possess up to 6 ounces for their medical use. The legislation allows them to designate a caregiver who would also receive an ID card. Each caregiver may assist no more than five qualifying patients. The legislation would also allow for the state-regulated, non-profit distribution of medical marijuana. The Department of Health and Social Services would issue registration certificates to qualified applicants.

SB 17 also contains restrictions on the medical use of marijuana, including prohibitions on public use of marijuana and driving under the influence of marijuana.

While the bill states that employers are not required to allow patients to be impaired at work or to allow the possession of marijuana at a workplace, it does not address how employers are to deal with employees who test positive for marijuana or ask for accommodations under the ADA.

Other States' Laws

Delaware joins a growing list of States proposing or enacting medical marijuana laws. Last year alone, about 12 additional states considered legislation or ballot initiatives that would legalize medical marijuana

Some states have already enacted legislation. Earlier this year, New Jersey and the District of Columbia signed medical marijuana legislation into law. Two additional states, though not specifically legalizing medical marijuana, have passed laws that are favorable to its use. Maryland recognizes medical use as a defense in court, while Arizona allows doctors allows doctors to prescribe marijuana (though federal law prohibits doctors from doing so).

Other Legal Issues, From ADA Accommodation to Safety

Legal questions are sure to arise regarding whether employers need to make accommodations under the Americans with Disabilities Act (ADA) for employees who use medical marijuana, either on or off the job, to treat disabilities caused by their medical conditions. At least one state supreme court has ruled that employers don't need to make such accommodations. Because the ADA doesn't require accommodations that would create a threat to employee safety or unreasonable risk of harm, some employers could argue that accommodating an employee who tests positive for marijuana use or allowing such use in the workplace creates a dangerous environment.

Speaking of dangerous environments, an added concern for employers of medical marijuana patients is workplace safety. Employers must still meet Occupational Safety and Health Administration and other federal regulations for safety, especially when employees perform potentially dangerous jobs such as operating heavy equipment, machinery, or motor vehicles as part of their job duties.

See also Wilmington News Journal's coverage of Montel Williams' visit to Dover, Delaware, in support of SB 17

On Wednesday, December 8, 2010, the EEOC will commemorate its 45th anniversary by hosting a public seminar discussing its continued efforts to eliminate workplace discrimination. The free event will be held at the National Constitution Center, Kirby Auditorium, from 1:00 p.m. to 4:30 p.m.

The theme of the program is "EEOC at 45: Charting a Path toward Equal Employment."  Current EEOC Chair Jacqueline A. Berrien, and former Chair William H. Brown, III, will participate in a discussion, "Reflections on the Past, Present and Future of the EEOC."  Scott F. Cooper will moderate a panel discussion "Charting a Path toward Equal Employment", featuring attorneys and stakeholders: Mark Dichter, Sidney Gold, Juan Laureda, Rosalyn O'Neale, Matt Rubin, and Patricia Folino.

To reserve a seat at this exciting commemoration, hosted by the Philadelphia Bar Association and the Philadelphia Federal Executive Board, please call 215-440-2671 or e-mail mary.tiernan@eeoc.gov.

The Annual Women's Business Expo, held by New Castle County Delaware's Chamber of Commerce, will celebrate its 20th anniversary this year. The Expo will feature over 100 exhibitors, workshops, an awards luncheon honoring businesswomen in New Castle County, and a keynote presentation by author Jen Groover, creator of the Butler Bag.

I will be co-presenting about ways that businesses can use social media from a legal perspective.

The Expo will be held at the University of Delaware. Full day admission for members is $55 ($75 for nonmembers), and you can register online at the New Castle County Chamber's website.

Delaware’s law banning calling and texting while driving takes effect in January. Eric Ruth, of the Wilmington News Journal, details what Delaware's new no-cell-phone law does and does not require and, with a few suggestions from Adria B. Martinelli, offers ways that employers can begin to prepare.

Adria also offers some tips for employers who will need to update their policies:

• Ban all cell phone use while driving company-owned vehicles -- even hands-free devices can distract drivers.
• Specifically ban texting and e-mailing 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.
• Also require all occupants of company-owned vehicles or private vehicles driven on company business to wear seat belts.
• Monitor and enforce the policy.

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. 

Delaware’s legislature has bills pending which may change how some employers credential their employees.

First, there is a bill pending (Senate Bill No. 236) which will remove the provision that allows for the registration of psychological assistants who hold a master’s degree that is “based on a program of studies that is psychological in content and specifically designed to train and prepare psychologists but who is not working toward full licensure as a psychologist.” Pursuant to the bill, a psychological assistant must have completed all the course requirements for a doctoral degree in psychology. A grandfather provision is included for existing registered psychological assistants who maintain their registration. The change limits psychological assistants to those people who meet the experience requirement under §3508(a)(2) for full licensure as a psychologist. The bill was reported out of committee on May 12, 2010.

Second, there is a bill pending (House Bill No. 377) for all state contractors in the plumbing and heating, ventilation, air conditioning and air refrigeration (“HVACR”) fields. Currently a licensed contractor from any state can obtain a Delaware plumbing or HVACR license by simply paying a fee and proving that the contractor is licensed elsewhere. Some states do not offer the same reciprocity, and instead require Delaware contractors take a written test, pay a fee, and satisfy all licensing criteria for that state.  This bill eliminates the existing disparity between Delaware and out of state reciprocity requirements.   If an out of state contractor’s home state has provisions similar to Delaware’s, the contractor may obtain a Delaware license through the reciprocity provisions.  If the other state does not offer reciprocity, that state’s resident plumbing and HVACR contractors must go through the full process of becoming licensed in Delaware. The bill was reported out of committee on May 12, 2010.

Third, pending Senate Bill No. 246 would create a Delaware Board of Examiners of Bail Enforcement Agents empowered to enforce standards upon bail enforcement agents. This 9 member board will supplant the primary responsibility of the Secretary of the Department of Safety and Homeland Security regarding licensure and disciplinary regulatory authority. Regulations proposed by the Board would still be subject to the approval of the Secretary. The Bill also requires that licensees operating a bail enforcement company obtain insurance and file proof of insurance with the Board. The bill was reported out of the Senate’s sunset committee on May 12, 2010.

Employers can find out more about pending state legislation and how the legislative process works at http://legis.delaware.gov.

Delaware Department of Labor (DDOL), has published its yearly statistics for FY2009 relating to the charges of discrimination filed with its Office of Anti-Discrimination.  Here are some highlights:

It may not come as a surprise that the most-often filed charge was a retaliation charge, making up just over 70% of all charges filed.  Where a charge alleges more than one basis, each basis was counted separately, which explains why the total is higher than 100%.  It also indicates that retaliation is very often added as a second basis to a charge that alleges other types of discrimination. 

Again, not surprisingly, DDOL had a very busy year, with intakes at a five-year high.

Thanksgiving may have officially occurred last week but the authors of the Delaware Employment Law Blog have a new reason to continue giving thanks.  In something akin to a holiday-movie miracle, we were voted one of the Top 100 Blawgs (aka legal blogs) by the ABA Journal yesterday.  Winners were selected by the ABA Journal's editors, based on submissions by readers. 

When the opportunity to nominate blogs was announced, lots and lots (and lots) of blog authors campaigned their readers to submit their blogs as nominees. As tempting as that idea may have been, I passed on it because, honestly, we didn't stand a chance.  Or so I thought.  As it turns out, you thought differently. And boy aren't we thankful.

Please be sure to check out the other 99 amazing blogs on the list and, if you're so inclined, you can vote for your favorite blog in each of the several categories, including DELB in the "Geo" category, between now and December 31.

The Americans With Disabilities Act (ADA), was amended in September 2008 by the ADA Amendments Act of 2008 (ADAAA), which took effect on January 1, 2009. The ADAAA emphasizes that the definition of disability should be construed in favor of broad coverage of individuals to the maximum extent permitted by the terms of the ADA and generally shall not require extensive analysis. In other words, the Amendments Act expanded who qualifies as “disabled” for the purposes of the ADA’s protections. The new law makes it easier for an individual to establish that he or she has a disability within the meaning of the ADA.

The ADA’s basic definition of "disability"—an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment—remains the same under the new law. But those definitional terms are now subject to revised interpretations. A summary of the key revisions are set forth in the document linked below.

EEOC must revise its ADA regulations to comply with the new law. To accomplish these revisions, EEOC approved a Notice of Proposed Rulemaking (NPRM), containing a detailed analysis of the proposed changes, in September. There is a 60-day period following the publication of the NPRM when the Commission receives public comments on the proposed changes. Those comments are considers when drafting the final regulations.

As part of this public-comment period, EEOC will host four full-day “Town Hall Listening Sessions” across the county in October and November. Those in the Philadelphia area will have the opportunity to participate in one such session on Friday, October 30, 2009. Attendees will have the chance to provide their direct input on the proposed regulations.

The Format

The Listening Session will be held at the Liberty Center from 9 a.m. to 4 p.m.   Throughout the day, individuals will be able to comment on the proposed regulations in five-minute increments. Some of the time slots will be pre-assigned and others will be available on a first-come, first-served basis on the day of the event. Details, including the event address and registration details,are provided in the document below.

Those who take advantage of this opportunity will have the attention of a panel of key players. The panel will be presided over by EEOC’s Acting Chair and Vice Chair, Stuart J. Ishimaru and Christine Griffin, and Commissioner Constance S. Barker, as well as DOJ’s Deputy Assistant Attorney General for Civil Rights, Samuel Bagenstos, Counsel to the Assistant Attorney General for Civil Rights, Mazen Baswari, and Chief of the Disability Rights Section of the Civil Rights Division, John Wodatch.

Today is Martin Luther King, Jr. Day.  It is also the national day of service and the first day of President-elect Obama’s initiative to Renew America Together.  In communities around the First State, as well as in neighborhoods around the country, Americans are volunteering to help others.  If you would like to join in this growing initiative but don't know of any particular activities in your local area, check out USAService.org.   Here, you can search by zip code or by state and find a list of events being held today that would benefit from any time you can contribute.  And the website isn't just a great resource today.  Its comprehensive database of volunteer and charitable events lists the many opportunities that happen throughout the year.

73.5% of corporate and in-house counsel report that their companies have been a defendant in employment-related litigation over the last three years. Delaware employers, therefore, have an immediate need to understand state employment laws. To address these concerns, the Employment Law Group at Young Conaway Stargatt & Taylor, LLP, will host a CLE seminar specifically for in-house counsel with responsibilities for Delaware employees.

The seminar will be held at our offices in Wilmington, Delaware on December 9, 2008, from 9 am - 12 p.m. Registration is $105 per person and includes all seminar materials, validated parking, continental breakfast, and, as a bonus, the 2009 edition of the Delaware Employer's Handbook, which annotates the state-specific employment laws. Registration is open until November 26, 2008, and seats are limited.

To register, visit the Young Conaway website and register online or download the form for submission via fax, e-mail or mail. If you have any questions, please feel free to call or e-mail Shaina Carl (302) 571-4745 or SCarl@ycst.com.

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.

Delaware is all a-frenzy with the announcement of our very own Senator Joe Biden as the presumptive Democratic nominee for vice president. If you’ve seen The News Journal over the several days, you’ve seen the almost front-to-back coverage of Joe. With Barack Obama still fighting to win over many Hillary Clinton’s women supporters, there’s been considerable focus in the media already as to Joe Biden’s record on women’s and work-life balance issues.

We’ve previously posted on Barack Obama’s position on women’s and work-life balance issues. What kind of work-and-family experience has Joe Biden had, both in his personal life and as a policy maker?

The Wall Street Journal’s blog “The Juggle” noted Biden’s personal family tragedy: the 1972 car accident which killed his wife and infant daughter and left his two sons badly injured. To care for them while continuing his political career, he commuted daily by train between Wilmington, Del., and Washington, never securing a Washington residence.

As Chair of the Senate Judiciary Committee in 1991, some alleged that he was too easy on Supreme Court nominee Clarence Thomas and too hard on Anita Hill, a former co-worker of Thomas' who had accused the federal judge of sexual harassment. Some even maintain that "he very self-consciously tried to shore up his support from women voters after the Anita Hill episode."

Although Biden is perhaps best known for his focus on foreign policy, he has also had a hand in legislation targeting work-and-family issues. According to a cached version of Biden’s senatorial campaign Website (which since this weekend has automatically referred visitors to the Obama-Biden campaign site), the Senator is a co-sponsor of the Healthy Families Act, which would require employers with more than 15 employees to offer seven paid sick days a year. In the 1990s, he was the primary sponsor of the Violence Against Women Act and supported the Family and Medical Leave Act, which guarantees workers up to 12 weeks of unpaid leave to care for a family member.