Recently in Delaware Specific Category

Bill Would Limit Use of Criminal Histories for Delaware Employers

Posted by Molly DiBiancaOn January 17, 2014In: Background Checks, Delaware Specific, Hiring, Legislative Update

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

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

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

The bill also proposes to limit the specific types of information that can be requested. Covered employers would be permitted to ask only about: (a) felony convictions in the past 10 years; and (b) misdemeanor convictions in the past 5 years.

This means that questions about arrests would be totally off limits—both on applications and in in-person interviews.

Finally, the bill proposes to limit how the information that the employer obtains will impact the hiring decision.  The bill basically adopts a scaled-down version of the EEOC’s multi-factor analysis whereby employers would be required to consider the nature of the crime and its relationship to the position sought, how much time has passed, etc. 

Oddly, the bill offers no specific limits on the use of credit history information other than timing.  In other words, the bill prohibits covered employers from obtaining a credit report for the candidate until a conditional offer has been made.

Even for private-sector employers who do no business with the State or any State agency, the use of background checks as part of the screening process continues to warrant consideration.  Particularly since the laws around the country are still developing, employers should weigh the benefits of this checks against the risks.  (See 5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit).  And, if nothing else, employers should evaluate the process and policies in place for conducting such checks.

Delaware Mini-COBRA Law Grows

Posted by Molly DiBiancaOn January 15, 2014In: Benefits, Delaware Specific, Legislative Update

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

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

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

I'm not sure what the Legislature meant when they provided that the Mini-COBRA statue would be preempted by federal law on January 1, 2014 but the intent was for the Mini-COBRA law to sunset on that date. However, in a little-publicized move in July of 2013, the legislature eliminated the January 1, 2014 sunset date for Mini-COBRA. They described their rationale for doing so as follows:

The Mini-COBRA Bill was originally passed as a short-term bill that was needed until the provisions of the Patient Protection and Affordable Care Act ("PPACA") became applicable to states, which was to occur on January 1, 2014. However, because PPACA's legislation relating to small employer group health policies now permits insurance companies to impose a ninety (90) day waiting period prior to the effective date of coverage, which was not anticipated when the Mini-COBRA Bill was passed, it is desirable to remove the sunset provision of the Mini-COBRA Bill so that the Mini-COBRA Bill remains in the Delaware Code, at least until a point in time when PPACA or other law may no longer permit an insurance company to impose waiting periods.

I initially thought that the Legislature provided for a January 1, 2014 sunset date because that is the date that coverage begins under the healthcare exchanges, which do not impose waiting periods in the typical COBRA scenario.  Thus, an individual terminated from a small employer could purchase his or her coverage for at least the 90-day waiting period from the exchange rather than requiring the former employer's insurer to provide the mini-COBRA benefit.  In fact, the U.S. Department of Labor, which oversees regular COBRA benefit administration, has issued revised model COBRA Notices that inform the qualified beneficiaries that they can acquire COBRA coverage through their former employer or they can obtain new coverage from the healthcare exchange.

SCOTUS Ruling on Forum-Selection Clauses Good News for Employers

Posted by Sheldon N. SandlerOn December 9, 2013In: Delaware Specific, U.S. Supreme Court Decisions

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Many employment agreements contain forum-selection clauses naming the state or the court in which any disputes must be litigated, and what state's law will govern. Employers often name Delaware state courts as the exclusive forum, due to the high quality of Delaware courts and large number of corporations and other entities created in Delaware, and name Delaware law as the governing law.

Some courts have refused to enforce forum-selection clauses on the ground that another state would be more convenient than the named forum, based on the location of witnesses or documents. In a unanimous decision, the U.S. Supreme Court has strongly endorsed enforcement of these clauses. While the facts did not involve an employment dispute, the Court's reasoning will apply with equal force to such disputes.

The facts involved a construction contract between a firm in Texas and one in Virginia, for work to be performed in Texas. The contract contained a clause naming Virginia as the appropriate forum. When the Texas firm filed a lawsuit in Texas, the Fifth Circuit refused to enforce the forum-selection clause, explaining that the convenience of the parties justified keeping the case in Texas notwithstanding the clause. The Supreme Court reversed. The Court observed that a forum-selection clause must be

given controlling weight in all but the most exceptional cases. . . . When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a [motion to transfer] be denied.

Atl. Marine Constr. Co., Inc. v. U.S. Dist. Ct., No. 12-929 (U.S. Dec. 3, 2013).

Significantly, the Court pointed out that whether the forum-selection clause names another federal court or a state court, the same standard applies, that is, the existence of the clause is to be given great weight. Delaware has a specific statute on choice of law that should be invoked in any forum-selection clause. That statute, 6 Del. C. § 2709, applies to contracts involving $100,000 or more and sets out the language to be used in a forum-selection clause in order to establish the requisite relationship with Delaware. Especially in agreements with senior-level employees, employers would be well advised to consider the use of forum-selection clauses.

ABA Journal Top 100 Legal Blogs: An Embarrassment of Riches

Posted by Molly DiBiancaOn November 26, 2013In: Delaware Specific, YCST

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Well, it’s happened again.  The Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country for the fifth consecutive year.  In my world, this is the most prestigious award a legal blogger can receive and it is such an honor to have been selected again.  It is, as the saying goes, truly an embarrassment of riches. 

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To those who nominated us for the award, thank you. To all of our readers, thank you.  And to all of the many, many, many employment law bloggers whose posts continue to set an incredibly high standard for the rest of us, thank you.

I share the honor this year with six other employment-law bloggers, each of which does a tremendous job reporting on the various aspects our shared practice area.  Most of you likely already read the blogs of my co-winners but, if you don't, you should. 

Here's the list of winners—we’re all repeat honorees, except for Trading Secrets, which we extend a warm welcome to the Winner’s Circle:

I’ve said it before but will say it again here because it’s more true than ever—I am in awe of my fellow honorees.  The time and work that they consistently devote to their blogs is just amazing.  I continue to be humbled by the company I have been permitted to keep. 

Writing a legal blog is a labor of love. And, by that, I mean that it doesn't pay the bills. To consistently put up quality posts that are original and interesting to readers is no easy feat--especially when the demands of our day jobs can be, well, demanding. To be recognized for the hard work that goes into writing a legal blog really does mean so much. Almost as much as knowing that our readers find value in the content that we generate.

You can vote for your favorite in the employment-law category at the ABA Journal site . . . but no pressure, really. You can find all of the Top 100 bloggers on Twitter through the ABA Journal's list. So, as Frank and Ed used to say in those classic Bartles & James commercials, "Thank you for your support."

Delaware Commission on Law and Technology

Posted by Molly DiBiancaOn October 25, 2013In: Delaware Specific, Locally Speaking, YCST

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Technology effects every workplace.  Readers of this blog know this well enough, as many of my posts address the wide variety of problems faced by employers that arise from employee use of technology, particularly social media.  Lawyers, too, face these problems.  The legal profession is, by no means, immune from the woes of social-media or the difficulties of trying to keep up with changing technology.  Technology’s impact on the legal profession is a topic near and dear to my heart. Delaware Commission on Law and Technology

Which is why I am so honored to have been appointed to Delaware’s newly formed Commission on Law and Technology.  The Commission was created by the Supreme Court of Delaware in response to a recent amendment to the State’s rules of professional responsibility requiring lawyers to maintain competence in technology.  Supreme Court Justice Henry duPont Ridgely, who will serve as the judicial liaison to the Commission, has explained that the Commission will be charged with creating a set of best practices in a variety of areas, including cloud computing, e-discovery, and, of course, social media.

The purpose of the Commission is to provide Delaware lawyers with sufficient guidance and education in the aspects of technology and the practice of law so as to facilitate compliance with our rules of professional conduct.  Although several states’ bar associations have issued advisory opinions on certain aspects of technology and its use, the opinions can be limited in scope, as they apply only to the specific set of facts posed by the inquiring attorney.  Thus, it is very exciting to be part of an official effort to broaden the information available to Delaware lawyers.

The collaborative nature of the Commission between the bench and bar is very reflective of our State’s cooperative spirit.  And the affirmative effort to provide guidance is very much in line with my preventative-practices philosophy.  For all of these reasons, I am looking forward to making a contribution to the Commission’s laudable mission and am proud (although not surprised) that our State is the first to launch such a commendable endeavor.

New Laws Gives New Rights Delaware First Responders

Posted by Lauren Moak RussellOn September 19, 2013In: Delaware Specific, Discrimination, Discrimination & Harassment, Legislative Update

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

Volunteer Emergency Responders Job Protection Act

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

The Act defines a "volunteer emergency responder" as a volunteer firefighter, a member of the ladies auxiliary of a volunteer fire company, volunteer emergency medical technician, or a volunteer fire police officer.

Importantly, while an employer may not discipline or terminate an employee for being absent when performing emergency services, the employer is not required to compensate the employee for time away from work to perform such services. The employee also has an obligation to make "reasonable efforts" to notify the employer of a possible absence.

Under the Act, employers are also entitled to verify that an employee was absent due to emergency service or a related injury. Employers may request a written statement confirming relevant facts from either the volunteer department with which the employee serves or from a treating medical provider. The employer is entitled to the statement within 7 days of making such a request.

Amendment to the Delaware Discrimination in Employment Act

The second bill signed into effect amends the Delaware Discrimination in Employment Act, to provide protection to volunteer firefighters, ambulance personnel, and ladies auxiliary members. More specifically, the bill makes it unlawful for employers to refuse to hire, discharge, or otherwise discrimination as to the terms and conditions of employment based on an individual's service rendered to a volunteer fire or ambulance company or related ladies' auxiliary.

Bottom Line

The bottom line is that Delaware employers have one more protected classification to be aware of. Hopefully these new restrictions will not impose a significant burden upon employers--comments made in connection with the bill signing indicate that the bills are a reaction to a single incident affecting an injured firefighter working in Wilmington. However, as always, employers need to give careful consideration to the circumstances impacting hiring and disciplinary decisions.

Delaware Chancery Ct. Finds No Privilege for Email Sent from Work Account

Posted by Molly DiBiancaOn September 10, 2013In: Cases of Note, Delaware Specific, Privacy Rights of Employees

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Does an employee who communicates with his lawyer from a company email account waive the attorney-client privilege with respect to those communications?  The answer is not terribly well settled—not in Delaware and not in most jurisdictions.  But a recent decision by the Delaware Court of Chancery gives Delaware employers and litigants a pretty good idea of the analysis to be applied.

The case, In re Information Management Services, is an unusual type of derivative litigation in that it involves two families, each suing the other for breaches of fiduciary duty.  Two of the company’s senior executives, who were alleged to have mismanaged the company in violation of their fiduciary duties, sent emails to their personal lawyers from their company-issued email accounts.  During discovery, the executives refused to produce the emails, claiming them to be protected by the attorney-client privilege.  The plaintiffs sought to compel production of the emails.

The court adopted the four-factor test first enumerated in In re Asia Global Crossing, Ltd. (Bankr. S.D.N.Y. 2005), and applied it to determine whether the executives had a reasonable expectation of privacy in the contents of the emails that they sought to protect.  The court determined that the executives did not have a reasonable expectation of privacy in the contents of the emails because the company’s policy expressly warned that employee emails were “open to access” the company’s staff.  The policy permitted personal use of the company’s computers “after hours” but warned that, if an employee wanted to keep files private, the files should be saved offline.  Thus, the policy was key in ensuring the company can now access emails between the executives and their counsel.

There are a few particularly notable points in the decision that are worth mention. 

First, Delaware law generally provides great deference to the attorney-client privilege.  Usually, the privilege is considered very difficult to waive.  By contrast, this case suggests that a company policy is sufficient to overcome that otherwise difficult hurdle.  The court goes so far as to say that a policy that prohibits all personal use would likely be sufficient to waive the privilege without any further analysis.

Second, the court seemed to place a high burden on the executives. Vice Chancellor Laster recognized that the executives wrote in the subject lines of the emails, “Subject to Attorney Client Privilege” but concluded that the failure to use webmail (such as G-Mail or Yahoo!) or encryption rendered the communications not confidential.  The court wrote that there could be no reasonable expectation of privacy because:

a third party to the communication had the right to access [the] emails when [the executives] communicated using their work accounts.

The “third party” in this case was the company and its IT staff. But the holding raises questions of whether use of a service such as Dropbox, which, by its terms of service, expressly notifies users of its right to access the contents of any account, would also waive the privilege.  In that case, a third party has the right to access contents so, in accordance with the court’s decision, there could be no reasonable expectation of privacy and, therefore, no privilege.

The decision is very well researched and contains a stockpile of case citations and references for those who may be interested in the subject matter.  And even for those who may not be interested in the macro view of this area of the law, there is one key lesson to take away—Delaware employers should carefully review their policies to ensure that the language clearly warns employees that the company reserves the right to monitor, access, and/or review all emails sent or received from a company email account.  Now, the question of whether a personal, web-based email account, accessed via the company’s servers, would be subject to the same analysis is an even trickier one and one that we’ll save for a later date. 

In re Info. Mgmt. Servs., Inc., No. 8168-VCL (Del. Ch. Sept. 5, 2013).

UD Employees Confidential Info Hacked

Posted by Molly DiBiancaOn July 31, 2013In: Delaware Specific, Privacy In the Workplace, Privacy Rights of Employees

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The University of Delaware announced that confidential employee data was compromised, reports the News Journal. And the breach is a sizeable one—the University estimates that the names, addresses, and social security numbers for more than 72,000 current and former employees may have been stolen. As reported by the News Journal, the university “is working to notify everyone who had their information compromised” and the school will pay for credit-monitoring services. Theft of Employee Data

An employee in the IT Department apparently discovered a possible breach on July 22. At that time, though, the university was not sure about whether a breach had occurred and, if so, the scope of the problem. But a forensic investigation confirmed that the data had been compromised.

Like many other states, Delaware has a computer-breach law that governs how an entity must respond when it suspects that a breach of personal information has occurred. “Personal information” includes, among other things, social security numbers, so the breach at UD triggers the law’s requirements. The university seems to have complied with these requirements by promptly conducting an investigation and then, when the investigation indicated that a breach had occurred, notifying the victims of the breach.

Delaware employers must be aware of their duties when they discover that employee data may have been breached. Importantly, a breach need not occur in the form of a computer hack like what appears to have happened at the University of Delaware. It also can come in the form of an employee who sends herself a copy of payroll data just before she resigns. If the payroll data contains bank-account numbers and/or social-security numbers, and it’s in the possession of a former employee, you have a duty to take immediate action under Delaware law.

See also

What to Do If Your Employees’ Confidential Data Is Stolen

Your Employees Are Stealing Your Data

Delaware Retirees’ Personal Data Accidentally Posted Online

Delaware Passes Gender-Identity Anti-Discrimination Law

Posted by Lauren Moak RussellOn July 8, 2013In: Delaware Specific, Discrimination

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Delaware's employment-law landscape has been in flux in recent months. In addition to the Supreme Court's recent decisions affecting employment law, Delaware also passed a law prohibiting employment and other types of discrimination on the basis of an individual's gender identity. Here is what Delaware employers need to know about the new statute.

What Is Gender Identity?

Gender identity and sexual orientation are not synoymous. Instead, an individual's gender identity relates to his or her internal sense of self as male or female, as well as an outward presentation and behavior related to that internal sense of self. Developing from that concept, an individual may be described as transgender when his or her gender identity does not match his or her biological sex at birth. Because gender identity is based on what an individual feels inside, when addressing transgender employees, employers should be guided by the employee's description of his or her gender, not outward appearance.

Protection Against Gender-Identity Discrimination

On June 19, 2013, the Delaware Discrimination in Employment Act ("DDEA") was amended to prohibit employment discrimination on the basis of gender identity. The statute defines "gender identity" to mean "a gender-related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth." The statute further provides that "[g]ender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person's core identity; provided, however, that ender identity shall not be asserted for any improper purpose."

The DDEA provides the same protection from discrimination based on gender identity as it does for all other protected classifications. In other words, it is unlawful for an employer to discriminate against an employee in any term or condition of employment on the basis of the employee's gender identity. Only employers with four or more employees are subject to the provisions of the DDEA.

How to Prepare for the Change in Law

In light of the amendments to the DDEA, which are currently in effect, employers should begin educating employees about gender identity, and their non-discrimination obligations. While more than fifteen states currently have laws that prohibit gender-identity discrimination, it is still a concept that is frequently misunderstood. Outlining for employees and managers the differences between sex, gender, and sexual orientation will help individuals to better understand their workplace obligations with respect to the new law.

Employers should also be alert to workplace conduct that may implicate this new protected classification. Common issues implicating gender-identity include "joking" about an individual's external appearance (e.g. dress, facial hair, or physical build; the use of proper gender pronouns to refer to a transgender individual; and the use of communal bathrooms that are designated for use by gender). While there are no hard and fast rules in addressing these issues, employers should be guided by the transgender employee's personal preferences, whenever possible.

Bottom Line

Delaware law now protects employees from discrimination on the basis of their gender identity. When preparing for this change, employers should make sure that their employees (managers and subordinates, alike) have a basic understanding of the concept of gender identity, and that they following basic workplace standards of respect. If conflicts or misunderstandings arise, employers should take their lead from the transgender employee--wherever reasonable--in how best to treat the employee with respect.

Promissory Estoppel Is Alive and Well In Delaware Employment Law

Posted by Sheldon N. SandlerOn March 17, 2013In: Cases of Note, Delaware Specific

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In a reminder to Delaware employers that what you say can come back to bite you, the Delaware Supreme Court reinstated a Superior Court jury verdict in favor of a plaintiff, after the trial court had determined that his claim failed as a matter of law. The plaintiff, Donald Harmon, had been the Presiding Judge of the Delaware Harness Racing Commission, and was fired as a result of an allegation that he had changed a judging sheet for a race, as a favor to the horse's owner. Harmon was charged with crimes and was suspended without pay pending the outcome of the criminal case.

He asked another employee to find out from the Racing Commission whether he would be reinstated if he was acquitted on the criminal charges. The employee testified that he put that question to the Commissioners and they "looked at each other and then said [Harmon] would be reinstated." The Commission later decided not to reinstate Harmon and he sued, obtaining an award of $102,273 after a 5 day jury trial. The trial court overturned the verdict and Harmon appealed to the Delaware Supreme Court.

In essence, promissory estoppel in the employment context means that the employer has made a representation to an employee that the employee reasonably relied on to his or her detriment. While that theory can apply to private employers, the general rule in the public sector, as asserted by the Racing Commission in this case, is that "the state is not estopped in the exercise of its governmental functions by the acts of its officers."

Relying on two rather hoary school-district cases, the Delaware Supreme Court recognized that there is "an exception to the general rule in the employment context." In, Keating v. Bd. of Educ. of the Appoquinimink Sch. Dist., and Crisco v. Bd. of Educ. of the Indian River Sch. Dist., the court rejected the claim that promissory estoppel does not apply to a "creature of the State."

The Takeaway

What is striking about all three cases is the casual manner in which the employers' representatives acted. If a clear, written statement had existed in Keating that it was only the decision of the Board that determined who would be rehired, and in Crisco that persons with standard certificates would have preference under the RIF policy, and if the Racing Commission had, instead of "looking at each other," made it clear that it was not committing to rehiring Harmon without a more formal investigation, the outcome almost surely would have been different.

Harmon v. State of Delaware, (PDF), No 676, 2011 (Del. Feb. 15, 2013).

Lessons from a Shooting Close to Home

Posted by Molly DiBiancaOn February 12, 2013In: Delaware Specific, Workplace Violence

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Delaware experienced a tragedy yesterday at the New Castle County courthouse. As reported by ABCNews.com, a man embroiled in a custody dispute entered the courthouse lobby this morning shortly after 8 a.m. and opened fire, fatally wounding two women and injuring two Capital Police officers. The shooter exchanged gunfire with the officers and died at the scene.

The courthouse is just a few blocks away, on the same street as our firm's offices. Reports of the story spread quickly but were not confirmed until this afternoon. The courthouse was evacuated and will be closed tomorrow.

Gun violence certainly has been on the minds of many of us in the past several months. The dialogue has even extended to the topic of guns in the workplace. For example, despite the devastating events of the recent past, some state legislatures are considering legislation that would permit employees to keep loaded firearms in their vehicles, even in the employer's parking lot.

According to this post at Fox Rothschild's Employment Discrimination Report, 20 states have adopted a "parking-lot" law. Al Vreeling offers his thoughts on Alabama's recently proposed law in Guns Do Not Belong In the Workplace, at HR Hero.

Oklahoma's "open-carry" law takes a different approach and, as I understand it, provides an exception for employers, preserving their right to manage the workplace with the policies of their choosing. For those who are interested, our friends at McAffee Taft are hosting a free webinar, Guns or No Guns--Weighing Workplace Weapons Policies, on this issue on February 21.

Del. Supreme Court Warns Lawyers to Mind the Clock

Posted by Molly DiBiancaOn January 10, 2013In: Cases of Note, Delaware Specific, Purely Legal

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The Delaware Supreme Court started the New Year with a resolution of sorts for lawyers. In a decision issued on January 2, 2013, the Court instructed that, if counsel agrees to alter a deadline in the trial court's scheduling order, all remaining deadlines will be rendered inapplicable:

Henceforth, parties who ignore or extend scheduling deadlines without promptly consulting the trial court will do so at their own risk. In other words, any party that grants an informal extension to opposing counsel will be precluded from seeking relief from the court with respect to any deadlines in the scheduling order.

The Court also stressed the priority of avoiding any changes that would affect the trial date:

. . . [I]f the trial court is asked to extend any deadlines in the scheduling order, the extension should not alter the trial date. Counsel may face a compressed time period to complete discovery, or the filing of dispositive motions, but the most important aspect of the scheduling order--the trial date--will be preserved.

And, the Court warned, where the trial court does elect to postpone the trial date, the parties should expect that their new date will be after "all other trials already scheduled on the court's docket." In other words, there's no butting in line.

The Court's admonition is a welcome one. All too often, counsel wants to extend a deadline that truly should not be extended. There seems to be a belief by some practitioners that all requests or extension must be granted. This simply is not true. In fact, a lawyer may not agree to extend a deadline that would detrimentally affect his client's case.

Moreover, the parties negotiate the scheduling order--it is not a set of arbitrary deadlines forced upon them by the court. It is a set of obligations created entirely by agreement. Thus, I tend to have a fairly low tolerance for the opposing counsel who cries that he just couldn't meet the deadlines and whines that I'm such a monster for not agreeing to extend them. In my book, a deal's a deal and there's a lot to be said for keeping your promises.

Christian v. Counseling Resource Assocs., Inc., C.A. 460, 2011 (Del. Jan. 2, 2013).

A New Year, A New Honor, and A Lot of Thanks

Posted by Molly DiBiancaOn January 8, 2013In: Delaware Specific, YCST

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I took a week off of blogging last week in a largely unsuccessful attempt at vacation. Although my vacation plans did not turn out quite as I'd expected, I did manage to tear myself away from the computer, my smartphone, Twitter, and the Internet as a whole for three entire days. For me, this is no small feat.

The draws of the digital world are many. For me, the strongest pull is the thought of a client trying to reach me. I'm in the service business, after all. So it's my business to make sure my clients are getting the services they need, when they need it.

My three-day reprieve was a reasonable success. I was able to see a few sights, take a few good pictures, and even managed to make some time for a little retail therapy. And, despite my digital absence, no client suffered as a result.

Maintaining a "work-life balance" (whatever that is), has never been my strong suit. But my long weekend has given me a bit of perspective. It's good to get some fresh air once in a while. It's good to get away from the daily grind every so often. And it's really good not to be tied to the iPhone 24-7.

Now, all that being said, I'll finally get to the point of this post. During my brief respite, I learned that this blog was voted into the top spot in the Labor & Employment category of ABA Journal's Top 100 Blawgs. Lest you think that I was anything other than extremely grateful for your votes, I thought it best to let you know why my thanks have been somewhat delayed.

Blawg100Badge_Labor.jpg

Delayed or not, my thanks are sincere. I've said it before but I'll say it again--thank you for your support.

For those of you who visit the blog irregularly, consider subscribing via email, which you can do by entering your email address in the box at the top right side of this page. That way, you'll get the day's post delivered before lunch. Seems that email has its advantages after all.

Dealing With Difficult People

Posted by Molly DiBiancaOn November 5, 2012In: Delaware Specific, Jerks at Work

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We deal with difficult people everywhere, really. At work, we may have to deal with difficult people as co-workers, as customers, as vendors, and as bosses, just to name a few.
Difficult people come in all shapes and sizes. The street bully is the difficult person who are yells and throws insults to get his or her way. The silent killer uses passive-aggressive tactics to wage wars based on sabotage. In today's post, though, I have in mind the rough and rude bully type--the difficult person who pushes his or her way around like a bull in a china store and expects everyone to jump into action at his or her command.

The ABA Journal recently asked its readers how they deal with difficult people of a particularly difficult variety--opposing counsel in litigation. As a general rule, I have had very positive relationships with opposing counsel. In fact, many of my opposing counsel have become very good friends of mine, whose friendship I value tremendously. Particularly in Delaware, where we value civility and professionalism as a foundation of the practice of law, my interactions with the lawyer on the other side of the table is a positive one more often than not.

That said, there certainly have been times when I have had to deal with a lawyer on the other side who, it seems to me, insists on being unreasonable or who routinely uses bully tactics in an effort to get his or her way. These interactions trouble me a great deal and, unfortunately, tend to change the way the case is litigated. Perhaps it is because this happens so infrequently (thank goodness), that I have given these bullies a good deal of thought once the interaction or case is over.

There are a few mantras that I do my best to remember when getting screamed at by another lawyer or having to deal with a lawyer who uses threats as strategy. I share them here both as a reminder to myself and in the hopes that readers may be able to put them to use in their time of need.

Mean people are scared people.
If my opposing counsel is yelling at me, I know he's scared of something I've said or he thinks I am going to say. Either I have an actual advantage or he thinks I do. I'm happy to have either.

A lawyer who can't control his temper can't control his case.
If my opposing counsel spends hours writing lengthy letters and multiple emails filled with ridicule and scathing commentary, he is not spending his time preparing his case, reviewing the facts, or coming up with new legal arguments and strategy. A distracted opponent is fine by me.

Sticks 'n stones may break my bones (and even hurt my feelings), but they won't affect my client's case.
At the end of the case, nasty comments and raised voices are irrelevant. The outcome of the case--whether by settlement, by verdict, or by judicial decision--will not include a scorecard of baseless accusations made or declare a winner for worst-mannered, most uncivil lawyer. The case will be decided on the application of the law to facts, as argued by the more effective lawyer, so it's best not to focus on anything else.

So, turning back to the question posed by the ABA Journal, "how do you deal with rude opposing counsel?" My answer is easy. I win.

In the U.S. Unlawfully But Eligible for Workers' Comp?

Posted by Molly DiBiancaOn October 25, 2012In: Benefits, Cases of Note, Delaware Specific, Hiring

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Is an employee who is in the country illegally a covered "employee" under the Workers' Compensation laws? That was the question of first impression presented to the Delaware Superior Court in Del. Valley Field Servs. v. Ramirez, (PDF) No. 12A-01-007-JOH (Sep. 13, 2012). The court concluded that the answer is "yes," and ordered that the former employee, who has since been deported to Honduras, is eligible to receive benefits under Delaware's workers-compensation statute.

Facts
The employee, Saul Melgar Ramirez, was hired in April 2010 as an "independent contractor'"--which the term the court uses to say that Ramirez was paid in cash. In January 2011, he was converted to a regular employee and added to the payroll. When told by his boss that he would need a Social Security number for his I-9 documentation, Ramirez bought a fake SSN card for $180. In February, the payroll service informed the employer that the number was false. Ramirez was deported in March.

In late January, shortly after he was converted to employee status, Ramirez fell down six steps and landed on his back. The company's president, who witnessed the fall, reported the accident to the company's workers' compensation carrier and made arrangements for Ramirez to get medical treatment. The treating physician determined that Ramirez was totally disabled.

Issues
The Industrial Board awarded benefits to Ramirez. (See Cassandra Robert's cleverly named post about the Board's decision, The Dearly Deported--Illegal Alien Status Does Not Work a Forfeiture in Delaware). The employer appealed to the Delaware Superior Court, where it made several arguments, including:

  • the employee's "fraudulent inducement" in obtaining the job disqualified him from receiving benefits;
  • because, pursuant to the federal immigration laws, Ramirez could not be lawfully hired, those laws preempted the State's workers' compensation laws; and
  • the employee's exclusion from the U.S. was the equivalent of being incarcerated, which would result in the suspension of benefits.
Judge Herlihy rejected each of the three arguments in turn and concluded that, despite his status as an illegal alien at the time of his employment, Ramirez was not disqualified from receiving workers' compensation benefits.

Nuts and Bolts
Regular readers may be mildly surprised to read that I actually side with the employee in this case. Not so much because of complicated legal reasons but more because of the basic facts. The employer hired Ramirez. The basic employment relationship involves the performance of services by the employee and the provision of certain compensation and benefits by the employer in return. One of those benefits is workers' compensation insurance.

Here, there is no dispute that Ramirez performed the services for which he was hired. Thus, the employer received the bargained-for benefit of the employment relationship. Ramirez, in return, was entitled to receive, in exchange, the benefits for which he had bargained, including wages for work performed and workers' compensation insurance.

There is no dispute that Ramirez was injured during the course and scope of his employment and there appears to be no dispute as to the extent of his injuries. Thus, it seems fair to me that he receive the benefits of the employment relationship, just as his employer did.

Feel free to disagree with me--I'm open to different opinions. Sean O'Sullivan reported the case in an excellent article in the News Journal today and notes that the case has been appealed to the Delaware Supreme Court. So we'll keep you posted.