Delaware is one step closer to legislating employers' ability to manage their workforces. I testified yesterday about the significant flaws in H.B. 308, called the "Workplace Privacy Act." The members of the Telecommunications, Internet, and Technology Committee nodded along, thanked me for my testimony, and then promptly voted to release the bill as is to the House of Representatives. This, my friends, is why I chose the legal profession over a career in politics.
As a result of the Committee's decision, the bill will proceed to the House in its very defective state. I've posted at length about some of the many, many concerns I have about the unintended consequences this bill would have on employers and employees. But, after my experience at Legislative Hall, I have just one additional thought to share.
It seems increasingly clear that the intention of the bill's sponsors is far more expansive than simply preventing employers from trying to get employees' and applicants' passwords. The intent, it seems to me, is to undo the entire body of case law that has been developed regarding privacy rights. In short, the sponsors are attempting to create a reasonable expectation of privacy in online activities and comments. This is directly opposite of what the law provides and would have tremendous implications on employers in every industry and of every size.
One good thing to come out of today's hearing, though, the increased awareness of the problems with this bill by the State Chamber of Commerce and its members. I'll be sure to keep you up to date with any developments over the next two weeks as we get closer to the next step in the legislative process. Until then, though, Delaware residents should consider contacting their state representative and expressing their concerns with the proposed law. Don't hesitate to direct them to the summary I wrote in my prior posts and the Comment Outline, which is linked in the second of the two posts. See Delaware Proposes Facebook-Privacy Law; and Why Delaware's Proposed Workplace Privacy Act Is All Wrong.
It’s only Wednesday but this has been a busy week already. If time allowed, I could write posts on several important employment-law-related topics. But, alas, my day job is keeping me busy, so this short-form recap of some of the more notable items will have to suffice.
On her Ride the Lightning blog, Sharon Nelson writes of a story with similarly disturbing facts. In the case that she discusses, an insurer in a dog-bite case permitted its private investigator to lie about his identity on Facebook so he could spy on the plaintiff—a 12-year-old girl. Folks, if it’s not obvious already, this type of dishonesty is despicable and those who engage in it should not be surprised at the negative repercussions that result.
Show Me the Numbers
The EEOC has released a new set of statistics relating to Charges of Discrimination filed in FY 2011. What is notable about this data is that it marks the first time the EEOC has published private-sector statistics for each of the states and territories. The statistics provide the total number of charges filed in each state and a breakdown of charge by type of discrimination. This is the first time that state-specific information has been released and it offers helpful insight on a more granular level.
Lots of blawgers have reviewed this data as it relates to their particular states. For example, Dan Schwartz wrote about the Connecticut numbers and McAfee & Taft’s EmployerLINC blog posted about the Oklahoma stats. And Chris DeGroff and Matthew Gagnon, of Seyfarth Shaw’s Workplace Class Action blog wrote about the significance of this data.
Another One Bites the Dust
Because I just never seem to grow weary of stories involving smart people who fail to exercise good judgment when using social media, I’ll toss this one to my loyal readers for good measure. In this social-media saga, it’s a CFO who was terminated for improperly communicating company information through his Twitter feed and public Facebook profile. Jon Hyman and Phil Miles recap the story in more detail.
Delaware's version of a Facebook-privacy law, called the "Workplace Privacy Act" (H.B. 308), will go to hearing on Wednesday before the Telecommunications, Internet, and Technology Committee in Delaware's House of Representatives. The bill, as amended, purports to prohibit employers from requesting or requiring an employee's or applicant's password to his or her social-networking site.
In actuality, the bill would fail to accomplish that single objective but would, at the same time, have implications far beyond the stated objective. I wrote in a more demure tone about some of my concerns regarding this bill. But, after seeing a video update (below) in which Rich Heffron of the Delaware State Chamber of Commerce reports that the bill is likely to pass before the close of the session on June 30, it seems that a more direct approach may be in order.
I've outlined my many, many objections to the bill and have attached that document for those readers who may be interested in the more specifics. (HB 308, Full Text, Amendment, and Comments, PDF). For those of you more interested in the short-and-sweet edition, here's the Executive Summary of what I consider are the most dangerous provisions:
No Friending, Even for Family
The bill would prohibit a supervisor from sending a Facebook-friend request to any other employee in the organization--even if the supervisor worked in one division in Delaware and the friend-to-be worked in a different division in Hong Kong.
A supervisor whose teenaged son works for the same employer would be prohibited from "requiring or requesting" her son's Facebook password or "other related account information."
Employers May Not Investigate and Employees May Not Defend Accusations Made Against Them
The bill would prohibit an employer from investigating a report that an employee posted something to his Facebook page, such as: (a) a threat to commit workplace violence; (b) release of information protected by HIPPA and/or the state data-breach laws; (c) communication of trade-secret information; or (d) any number of other wrongdoings.
Not only would the employer be prohibited from asking the alleged wrongdoer about the allegations but the employer would also be prohibited from asking the accuser to support the allegations with proof of what she saw on Facebook that prompted her to make the report. In short, the employer would have no choice but to fie the accused--regardless of whether the individual wanted to clear his name.
The Rule, Though Too Broad, Is Swallowed By Its Exemptions--for Some Sectors
Yet, despite the incredibly overreaching effects of the bill, it is, at the same time, simply insufficient in its narrowness. the bill falls far short of satisfying its supposed purpose--i.e., to prevent employers from requiring employees and applicants to relinquish access to their social-media accounts in the name of a job. The two most glaring failures in this regard include the stated exemptions for:
Law Enforcement, who are altogether exempt from the provisions of the bill; and
The Department of Corrections, . . . maybe.
The exemption for the Department of Corrections is trickier. Although the bill seems to to exempt the DOC from the prohibitions in the bill, it is not entirely clear because the bill also states that the DOC shall not be prohibited "from accessing an employee's social networking site for purposes of employee supervision and retention."
Pardon me? If you think you know what such purposes may include, I'd love to hear about it.
Don't Say I Haven't Tried
Lest you think that I am the type who rushes to judgement and who condemns that which I did not create, let me take a preemptive strike against such conclusions. I forwarded my prior post and my comments to the sponsor for the Committee's consideration and review.
My question is this: Can we see eye to eye on an overly broad, unworkable law that has far-reaching implications for employees and employers? Despite what my business card may say, anyone who knows me knows that I come down squarely in the middle between "employer and employee," which is the only place I believe anything productive can be accomplished.
One of my biggest concerns about the bill is the scenario discussed above, in which the employee who is wrongly accused but who is unable to defend himself and who loses his employment as a result. Nor can I imagine any legitimate basis for there to be exemptions for law enforcement or the Department of Corrections as they are drafted in the proposed legislation. Thus, the concerns raised on behalf of employees are as strong as the problems raised by the bill for employers.
Call to Action, Delaware Employers and Employees
If you are a Delaware employer, a Delaware employee who uses social media and/or social-networking sites like Facebook, business proponent, or defender of civil liberties, I humbly suggest that you call your state representative between now and Wednesday at 3 p.m. to express the concerns you may have. And feel free to forward along my Comment Outline.
Delaware has joined several other States in proposing a Facebook privacy law, which would prohibit Delaware employers from requesting access to a candidate's Facebook or other social-networking site.
The proposed law, the "Workplace Privacy Act" (H.B. 308) is sponsored by Reps. Darryl M. Scott and William J. Carson and was introduced on Tuesday, May 1.
In some ways, the bill is similar to the Maryland law, which was the first of its kind to be passed into law, and the federal version currently pending in Congress (SNOPA). For example, the Delaware bill would prohibit employers from "requiring or requesting" that any "employee or applicant" disclose his or her social-networking-site password.
The bill goes further, though. Here are some of the more troublesome provisions of the proposed law:
1. The law prohibits employers from requiring or requesting that the user disclose "any other related account information."
This would seem to prohibit an employer from even asking whether the candidate has a Facebook account. There does not seem to be a legitimate reason for such a broad-sweeping prohibition. Moreoever, employers may have good reason to want to know whether an applicant has a Facebook or LinkedIn account. Additionally, isn't this information public in any event, even if access to the account's contents may be restricted?
2. The law also prohibits employers from requiring or requesting that a user log into a social-networking account in the empoyer's presence "so as to provide the employer access" to the user's account or profile.
This, in my opinion goes too far. Although I am not an advocate of this approach, it is not and should not be unlawful. There are certain industries and professions (i.e., the financial sector and law enforcement), that, in some cases, have a legitimate interest in a candidate's online activities. The employer should have the right to gain limited and temporary access the candidate's profile, provided the employer does so in a legitimate and responsible manner.
3. The law also prohibits employers from "accessing" a user's social-networking profile or account "indirectly" through the user's online friend or connection.
Again, this goes too far. And, in my opinion, has deeply troubling (and, likely, unintended), potential consequences. The worst-case scenario would go as follows: Employee reports to Employer that Coworker Posted on Coworker's Facebook profile that Coworker intends to cause harm to his supervisor. The employer has not just a right but a legal duty to prevent workplace violence and would be legally obligated to take stepst to prevent Coworker from carrying out this threat.
But the employer cannot simply fire Coworker based only on Employee's unverified report. It would need to first investigate the Coworker's claim. Most commonly, an employer will do this by asking the reporting Employee to pull up his own Facebook account for the purpose of showing Employer the allegedly threatening post of Coworker. But this provision of the proposed law would prohibit the employer from doing this.
Alternatively, Employer could call in Coworker and ask him whether he posted the threat as reported by Employee. But if Coworker denies making the post, Employer has no recourse and is forced to take him at his word because Employer would be prohibited from "requiring or requesting" that Employee log into the account to clear up the allegation. This, also, is an unsatisfactory result.
The scenarios go on and on. Consider, for example, a report of employee theft. Or an employee who is posting HIPPA-protected personal health information. Or an employee who is posting the employer's trade secrets? The employer would be without recourse in each scenario.
4. Anti-Retaliation
And, making it worse yet, the law would prohibit employers from "discharging, disciplining, or otherwise penalizing, or threatening to discharging, disciplining, or otherwise penalizing" an employee for his or her refusal to provide access.
Although I am not opposed to laws that prohibit employers and educational institutions from demanding an individual's password or log-on information, this bill, as currently drafted, goes far, far beyond what its sponsors likely intended.
I'll be sure to keep readers posted as developments occur.
In the meantime, you can read about what is happening around the country with regard to the issue of "Facebook-privacy laws" here:
Any lawyer will tell you that the practice of law differs greatly between States. Every State has a different legal culture and, in larger States, the culture can vary even more by judicial district. Florida is a great example of this--the way cases are litigated in Miami is tremendously different from the way they're handled in Naples.
Although civility is an excellent principle and serves as a fundamental basis for the way we practice law, it is more of a starting point. Delaware lawyers are expected to (and do) comply with an even higher standard. There may not be a specific rule that says as much but I think most of my fellow Delaware attorneys would agree that we are expected to conduct ourselves with kindness. Courtesies are exchanged without hesitation regularly.
A few examples from my own practice come to mind. One afternoon about a week or so ago, I got a call from a Delaware lawyer who regularly represents employees and, as a result, is a frequent adversary. The lawyer works in a different County and is not often in Wilmington. He said that he had just finished a mediation at the federal courthouse down the street from my firm's new offices and wondered if he could stop by for a quick tour. I'd offered a tour when I saw him at a State Bar event a few weeks earlier.
In the middle of a busy afternoon, I was thrilled that he took me up on my offer and told him to come by before heading out of town. He arrived about 30 minutes later and I gave him the full tour--historic background, architectural design, and all. I was genuinely honored that he took me at my word and that I'd had the opportunity to show off our beautiful new space. And he was genuinely excited to get the chance to see our offices, which are housed in a renovated courthouse, originally built in 1916.
The other example of why I love practicing law in Delaware is a week-long event sponsored by the Litigation Section of the Delaware Bar Association, called "Take Your Adversary To Lunch Week." Normally, when I tell lawyers from other States about this event, they either laugh out loud or stare at me in silence, mouth half open, in sheer disbelief. But don't be skeptical, it's true. This entire week, Delaware lawyers are encouraged to invite a former or current adversary out to lunch.
Litigation can be difficult and stressful, even for lawyers. And, for a variety of reasons, we sometimes let the aggravation of litigation cloud our judgment, causing us to fail in our duty to conduct ourselves with the standards expected of the members of the Delaware Bar. On the rare occasion that this does happen, it is our responsibility to repair any damage before moving on. This event gives us the opportunity to mend fences that should have been previously repaired and to celebrate fences that need no mending!
Each December, I inevitably receive a pile of holiday cards. Some are from clients, some from vendors, and many, many more are from my current and former opposing counsel. That is something that I am so very proud of and consider one of my defining achievements. And it's exactly why I love being a Delaware lawyer.
Delaware's medical-marijuana program has gone up in smoke. According to the News Journal, Gov. Markell "has suspended the regulation-writing and licensing process for medical-marijuana dispensaries--effectively killing the program." The decision comes in response to a letter from U.S. Attorney Charles M. Oberly III.
The governor's office sought guidance from Oberly about the legal implications of state employees who work at a dispensary. Oberly's response was clear: "State employees who conduct activities mandated by the Delaware Medical Marijuana Act are not immune from liability" under the Controlled Substances Act.
The death of the Delaware Medical Marijuana Act (DMMA), which was passed in May, 2011, is not due to a unique defect in the statue itself, which shares common elements with other state medical marijuana laws. Instead, the crux of the problem is the intersection of state and federal law and the shifting approach to enforcement taken by the Obama administration.
Despite state statutes like the DMMA, marijuana, medicinal or otherwise, remains illegal under the federal Controlled Substances Act as a "Schedule 1" controlled substance--the same category as drugs like heroin and LSD.
When the DMMA was passed in May 2011, legislators were under the impression that the federal government would not prosecute employees in future dispensaries. This understanding was due to representations by the Obama administration that it would not prosecute individuals for marijuana offenses made legal under state law. That position has changed, however, and the federal Department of Justice is now drawing a distinction between physicians prescribing medicinal marijuana, and individual cardholders, on the one hand, and "large scale, privately owned industrial cultivation centers" on the other. This is problematic for Delaware because the DMMA initially centralizes marijuana distribution in just three Compassion Centers (with one located in each county).
The uncertainty created by contradictory enforcement signals at the federal level has impacted the implementation of medicinal marijuana legislation in other states as well. As we posted previously, a Justice Department warning that "state employees who conducted activities mandated [under a proposed law] would not be immune from liability" led Washington Gov. Gregoire to veto that state's medical-marijuana bill. Similar warnings of potential enforcement actions targeting marijuana dispensaries also led Rhode Island Gov. Chafee to halt plans to create state-licensed compassion centers, as well.
The news should be a relief to Delaware employers concerned about the workplace implications of the DMMA which, among other things, would have made it unlawful for an employer to terminate a cardholder for failing a drug test unless they "used, possessed, or (were) impaired by marijuana" while at work during normal hours. The DMMA also specified that the mere presence of marijuana components or metabolites in a cardholders system would not suffice to establish that they were under the influence of the drug.
While some effort to amend the DMMA to address federal enforcement concerns is likely, for now, medical marijuana's future in Delaware appears hazy, at best.
The Delaware Court of Chancery has issued Guidelines to Help Lawyers Practicing before the Court. Chancery Court Guidelines.pdf This guidance may be particularly helpful to attorneys unfamiliar with the level of civility expected of the Delaware Bar. The guidelines also include advice on "best practice, which are informative even for seasoned practioners. Here are some excerpts from the new guidelines:
All cellphones and PDAs are strictly prohibited in the courtroom, even if silenced. Failure to comply with this rule may result in confiscation of the device and/or sanctions.
Plans for the use of technology during a hearing or trial should be made approximately one week before the proceeding.
Where Delaware attorneys are acting as local counsel, letters to the Court from lead counsel should not be forwarded to the Court under a cover letter saying, in substance, "Here is a letter from my co-counsel."
Letters to the Court should be short. If a letter exceeds 5 pages, double-spaced, counsel should consider whether a motion is more appropriate. Submissions of up to 15 pages may be filed as speaking motions. Submissions longer than 15 pages should be submitted as motions with supporting briefs.
Parties should include in their standard interrogatories a request that the other party(ies) identify prospective trial witnesses. If a party fails to include such an interrogatory, the Court will not look favorably on complaints of unfairness when counsel is unable to depose all trial witnesses before the close of discovery.
Answers should repeat the allegations of the Complaint and then set forth the response below, mirroring the practice used in discovery responses.
The Court takes issue with parties (1) aggressively denying basic facts without a good faith basis to do so, and (2) reciting a laundry list of affirmative defenses without consideration of the applicability of each defense to the case.
A series of sample documents reflecting the Court's recommended practices are also available from the Court's website.
Delaware’s Workplace Fraud Act , passed in July 2009, currently prohibits employers in the construction services industry from misclassifying employees as independent contractors. An employer who misclassifies its employees—intentionally or unintentionally—may be subject to civil penalties of up to $5,000 per misclassified employee; restitution obligations; stop-work orders; debarment from public contracts; and civil suit by the aggrieve employee(s).
Two bills currently under consideration by the Delaware General Assembly would amend and expand the Workplace Fraud Act. House Bill 221 would significantly expand the scope of the Act to cover all employers in the State. It would also make individual business owners jointly and severally liable with the business entity for any violation of the Act. House Bill 222 would allow the Department of Labor to publish a list of employers who had been found to have violated the Act.
Both Bills are currently in committee, and have not yet been put to a vote. It is unclear whether the bills have sufficient support to be passed by the General Assembly. But one thing is clear—passage of the bills would greatly impact Delaware employers using independent contractors!
These proposed amendments may reflect new enforcement efforts by the U.S. Department of Labor, seeking to put an end to employer practices of misclassification of employees as independent contractors in violation of the Fair Labor Standards Act and federal tax law.
Medical-marijuana laws have been blazing a trail across the U.S. since California’s passage of Proposition 215 in 1996. This year, the Delaware General Assembly began experimenting with marijuana legislation. With the passage of Senate Bill 17 (“S.B. 17”), on May 11, 2011, which was signed by Governor Markell immediately, Delaware joined the 15 other states and the District of Columbia that have bills legalizing marijuana for medicinal purposes.
S.B. 17 shares many common elements with medicinal marijuana legislation across the country. But there are some key differences that could have a major impact on Delaware employers. Essentially, S.B. 17 decriminalizes marijuana under state law in certain limited circumstances. Delawareans with certain specific debilitating medical conditions and who have received certification of a physician, must apply for a state-issued medical marijuana card. Cardholders are permitted to possess no more than 6 ounces of marijuana and are not permitted to grow their own.
Cardholders will be able to legally purchase marijuana at state-licensed non-profit dispensaries known as “compassion centers." There will be only one state licensed dispensary in each county. The Delaware Department of Health and Social Services, which will administer the registrations for patients, caregivers, and compassion centers, has until July 1, 2012, to develop the regulations needed to implement the new law.
Unlike many other states' medicinal-marijuana laws, S.B. 17 contains provisions that apply directly to employers. Specifically, although the bill prohibits cardholders from using medicinal marijuana at work, it also bars discrimination against them in hiring, termination, or other terms and conditions of employment. The new law also makes it clear that positive drug tests can’t serve as a basis for discipline of a cardholder unless the person “used, possessed, or was impaired by marijuana” at work during normal working hours.
This point is further clarified by a subsequent provision in the law, which states that cardholders “shall not be considered to be under the influence of marijuana solely because of the presence of metabolites or components of marijuana that appear in insufficient concentration to cause impairment” in a drug test. Regardless of the the passage of S.B. 17, it is important to note that marijuana use remains illegal under the federal Controlled Substances Act.
The Delaware Attorney General’s Office is seeking to appeal the Third Circuit’s ruling that Delaware’s labor apprentice law violated the commerce clause. That decision upheld an opinion in April 2010 by Judge Sue L. Robinson of the U.S. District Court for the District of Delaware that the state’s failure to recognize out-of-state registered apprentices under Delaware's Prevailing Wage Law discriminated against out-of-state contractors by effectively forcing them to pay higher wages to apprentices than in-state competitors were required to pay. After the Third Circuit’s ruling, Tri-M sought more than $190,000 in attorney’s fees and costs from the State, but that petition was stayed by the District Court while the State petitions the United States Supreme Court to review the Third Circuit’s ruling.
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.
The Third Circuit has upheld a ruling in April 2010 by Judge Sue L. Robinson of the U.S. District Court for the District of Delaware that the state’s failure to recognize out-of-state registered apprentices under Delaware's Prevailing Wage Law violates the commerce clause of the U.S. Constitution. The court ruled that Delaware discriminated against out-of-state contractors by effectively forcing them to pay higher wages to apprentices than in-state competitors were required to pay.
The Third Circuit ruled that the lower court correctly found that Delaware's refusal to recognize out-of-state registered apprentices facially discriminated against out-of-state contractors without advancing a legitimate state interest. The case is Tri-M Group LLC v. Sharp.
Tri-M filed suit in September 2006 alleging the Delaware Department of Labor had put it at a competitive disadvantage for public works projects by allowing in-state contractors “to pay reduced wages to their apprentices while denying out-of-state contractors the same right.” Tri-M was registered with Pennsylvania’s federally approved apprenticeship council but was not eligible for Delaware’s program, which requires sponsors to maintain a permanent place of business in Delaware.
In the summer of 2006, while Tri-M was performing electrical work at a construction project in Milford, Del., officials with the Delaware Department of Labor found the company had violated labor laws by failing to pay its apprentices their full wages.
Tri-M made adjustments, and the DDOL determined it was in compliance. Soon after, the company launched a legal challenge to the measures.
On appeal, the DDOL argued unsuccessfully that the challenged procurement scheme — including the permanent place of business requirement — does not discriminate against interstate commerce, and that the contested apprentice program regulations were explicitly authorized by Congress and approved by the U.S. Department of Labor. The Third Circuit disagreed and affirmed the District Court’s decision.
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.
