Delaware Employment Law Blog

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.

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Continue reading "Waiting to Exhale: Delaware’s Medical-Marijuana Law" »

The Delaware Supreme Court has clarified key procedural requirements for terminating non-tenured teachers set forth in a decision issued last week, Angstadt v. Red Clay Consolidated School District.

Section 1410(b) of Title 14 of the Delaware Code states that a non-tenured teacher may request in writing the reasons for his termination after.  The statute requires the district to "provide such reason or reasons in writing" and that "the stated reason or reasons must have either been contained in the teacher's performance appraisal, and the teacher was provided time to correct any deficiency through an individualized improvement plan or other documented materials properly placed in the teacher's personnel file prior to said notice."

According to the Delaware Supreme Court, the term "personnel file" means exactly that- a physical personnel file- and does not simply refer to the type of documentation.  Moreover, documents supporting the decision to terminate a non-tenured teacher's services must be in the personnel file at the time the district's makes its decision.  However, the Court took a very broad view of what constitutes "other documented materials."  Such documents are not merely limited to reprimands or other disciplinary documents.  In this instance, a Lesson Analysis noting some difficulties controlling the classroom constituted the "other documented material" that sufficiently supported the school district's decision to terminate. 

In light of the Angstadt decision, districts will need to review their procedures to ensure that disciplinary documents are promptly placed in teachers' personnel files.  In addition, school districts would be well advised to review the contents of personnel files prior to distributing notices of their intention to terminate non-tenured teachers to ensure that documents supporting the decision are located in the file. 

Angstadt v. Red Clay Consol. Sch. Dist., No. 08C-03-051 (Del. July 8, 2010)

Electronic monitoring is a very hot topic in employment law these days. But what about other types of electronic monitoring by employers?  A case filed in the U.S. District Court for the Eastern District of Pennsylvania alleges a much more unusual sort of electronic monitoring.  The suit alleges that Lower Marion School District distributed over 1,800 laptops to its students.  So far, so good.

But, according to the Complaint (via Above the Law), the laptops were equipped with webcams. 

How could this not end badly?

The suit alleges that school administrators remotely activated the webcams.  One is alleged to have gone so far as to discipline a student for “improper behavior in his home."  Funny, I've never seen that one in a student code of conduct. It is also alleged that the District was also tracking all the students' online activity. 

Employers commonly provide employees with laptops for business-related use.  If your organization is one such employer, maybe consider skipping the upgrade to the models with webcams.

What is the appropriate discipline for an employees'  violation of a workplace cell-phone usage policy?

If you're New Jersey teacher Desley Getty, the answer is a reprimand and a $22,000 fine.  

Getty, a performing arts teacher at Asbury Park High School, picked an inopportune moment to send out her own greeting from Asbury Park in the form of a four-minute cell phone call to a suspended school superintendent.   

According to a news report describing the incident:

Court records show that Getty was covering for another teacher for a 45 minute period Jan. 10, 2008. Students had been assigned a test, but many had   apparently finished it during the first part of the 80-minute class. While she was at the desk, Getty placed a cell phone call to the district's suspended superintendent Antonio Lewis. While she was on the phone, two students danced in front of her desk and between her and the class. Another student played music on his cell phone and recorded the dancing with a digital camera, then posted an almost two minute edited version on YouTube.

The following school day after Getty became aware of the video, she went back into the classroom and began questioning students about who made it, records show. This action reportedly caused significant disruption in the class for about a half-hour, and when the administration learned of the matter, a reprimand was issued.

Like many employers, Asbury Park has a policy restricting staff cell phone usage in the workplace.  The policy permits "staff to make personal calls during their free period or lunch break outside the presence of students."  However, "[i]t specifically states that personal calls cannot be made while performing assigned school responsibilities except in emergency situations."

Although Getty will keep her job, she faces a stiff penalty for her actions.  Specifically, she is being reprimanded and will forfeit 120 days' salary as a penalty for the phone call and its repercussions.  The 120 days of salary adds up to a grand total of $22,000 .

According to news reports today, Getty will not appeal the ruling.

The decision not to terminate Getty is understandable, after all, it's hard to be a saint in high school.

Delaware's Indian River School District has decided to prohibit students from having cell phones, pagers, and other communication devices both at school and on school buses.   According to the Indian River's School Board President Charles Birely, the District took this step because, cell phones are a distraction  that "have no place in the classroom.” 

Many public school districts have policies that restrict the possession and use of cell phones and similar devices at school. Such policies, of course, may give rise to legal liability when school officials seize or search a student's phone.

Employee foibles on social networking websites are back in the news.  According to the Raleigh News & Observer, a teacher in the Charlotte-Mecklenburg Schools may be fired because of derogatory comments about students that the teacher posted on her Facebook page. 

The comments included referring to "teachin' chitlins in the ghetto of Charlotte."  The teacher went on to note in the "About Me" section of her Facebook profile that she is "teaching in the most ghetto school in Charlotte."  She also listed drinking as one of her hobbies.  Apparently, other Charlotte-Mecklenburg teachers also have objectionable Facebook pages as the news story reports that several other teachers from the same district have been also reprimanded for Facebook comments that show, in the district's view "poor judgment and bad taste."   

MySpace and Employment Law have crossed paths again. This time, they intersect, again, in education law. But this isn’t the first time.

You may remember Stacy Snyder, the "Drunken Pirate,” who, at the time, was a student in the Education program at Millersville State University.   In a moment of poor judgment, Snyder posted a photo of herself in a pirate hat, drinking, captioned "drunken pirate" on her personal MySpace page.  School officials  learned of the photo and refused to give Snyder a teaching credential because they believed the picture promoted underage drinking. 

Alas, another teacher has fallen prey to MySpace.  A federal District Court in Connecticut has upheld the decision of a school board in that State, which voted to not renew a teacher's contract because of content posted on his MySpace profile. The court found that the non-renewal decision did not violate the teacher’s constitutional rights to Free Speech or Free Association. 

A high school teacher, Jeffery Spanierman, apparently created a MySpace profile, which he used to communicate with students.  The discussions concerned a mix of topics, some of which were unrelated to the school.  Of course, Spanierman's venture into the world of social networking soon came to the attention of the school administration.   An administrator viewed the profile and believed it contained inappropriate comments and "peer-like" discussion with students.  Spanierman deleted the profile after these concerns were brought to his attention. 

But the lure of the social networking site proved to strong for Mr. Spanierman to long resist.  Shortly after deleting the original profile, Spanierman created a second one.  After learning of the second profile, Spanierman was placed on an administrative leave.  Ultimately, the school district decided not to renew Spanierman's teaching contract.   Spanierman filed suit against the school district and various individual officials alleging several violations of his constitutional rights.  In particular, Spanierman claimed that his rights of Free Association and Free Speech had been breached.

The District Court rejected Spanierman's arguments. Although the court determined that Spanierman was not acting pursuant to his official duties as a teacher in maintaining the MySpace page, it found that the page's content did not deal with matters of public concern.  The sole exception to this was a short poem on the Iraq war.  But there was no evidence that any administrator retaliated against Spanierman for expressing his views on that conflict in verse.  The Court went on to note that the school district would likely have been able to demonstrate that Spanierman's "speech" would have been sufficiently disruptive so as to outweigh any the First Amendment value it possessed.

The Court also rejected the teacher's free association claim.  MySpace may be a social networking website, but here, there was “no evidence in the present case that MySpace, as an organization, purports to speak out on matters of public concern.”

Off-duty conduct as grounds for termination is a common topic in employment law. It is not uncommon for employers to include "morals clauses" in employment contracts. And social-networking sites are not the only forums in which employees are getting "busted." You may remember the recent scandal involving not the internet, but a local newspaper, which ran unfavorable photographs of the then-president of the community college engaging in off-duty conduct that reflected negatively on his leadership and judgment. Robert Paxton, resigned after the paper published a photograph of him pouring beer into a young woman’s mouth.

Companies will not risk their reputations on drunken pirate escapades or inappropriate MySpace relationships. Few states offer protection under the law for employees' off-duty conduct. Delaware is not one of those states--employers have full authority to determine what actions constitute "bad behavior," and can result in termination. 

By Michael P. Stafford, Esq.

The free-speech rights of a student is the topic of the day in Colorado, where a 5th grader has been suspended for wearing a tee-shirt emblazoned with the slogan "Obama is a terrorist’s best friend."  The student's family claims that his First Amendment right to free speech is being trampled. Conspicuously absent from news coverage of this developing story is any detailed description of the tee-shirt causing "substantial disruption" to the school.

Did the school administration make the correct decision in suspending this youngster?

Under well-established Supreme Court precedent, public school administrators may regulate student speech protected by the First Amendment only in three circumstances: (1) when the speech is substantially disruptive; (2) when the speech bears the imprimatur of the school (such as in a school newspaper or yearbook), or; (3) when the speech is lewd or plainly offensive.  In particular, under Tinker v. Des Moines,  393 U.S. 503 (1969), student speech may be regulated only if the school has a well-founded expectation that the speech will cause substantial disruption of the school's operations or interference with the rights of others. The expectation of disruption must be a specific and significant fear of disruption, not just some remote apprehension of disturbance.  In this regard, speech is not disruptive merely because it causes offense or hurt feelings in listeners.

Moreover, any regulation of student speech must also be “content neutral.”  In Tinker, which involved students wearing black armbands to school to protest the Vietnam war, the Supreme Court observed that the school had singled out the anti-war black armbands for prohibition but had not forbidden other controversial or political symbols.  As many courts have noted in a variety of contexts, restrictions on speech because of its message or content are presumed to be unconstitutional. 

Here, the constitutionality of the school's action in suspending the student will likely turn on whether the tee-shirt caused, or was likely to cause, a substantial disruption to the educational environment.  Any attorney representing the student will also look closely at the other types of political apparel students have worn in the past without discipline by the school administration to discern whether the student has been discriminated against based on his viewpoint. 

The United States District Court for the District of Delaware has found in favor of a local public school district in a special-education case brought under the Individuals with Disabilities Education Act (IDEA).  The conduct of the parents, said the Court, was a large part of the problem.

The parent involved in the case filed a due-process claim against the District in late 2006, alleging a number of procedural errors.  As a remedy, the parent sought a private placement at The Gow School at public expense. Therefore, the Delaware Department of Education was joined as an additional party to the proceeding.  In a decision issued on January 6, 2007, the administrative due process Hearing Panel found in favor of the District and the Department, and the parent appealed. 

On appeal, both the parent and the District filed motions for summary judgment.   The two key issues raised in the case centered on whether the District denied the student a free appropriate public education (FAPE) by (a) failing to have an IEP in place for the student on the first day of school and (b) failing to properly notice an IEP meeting.  The Court rejected both claims.  

First, the Court noted that "minor procedural violations do not constitute an IDEA violation."  And, "[w]hile the court does not recommend having a disabled child attend school without an IEP, it finds the week delay to be a minor procedural error.  Consequently, the absence of an IEP on the first day of school does not equate to a denial of a FAPE." 

Second, the Court held that the IEP meeting "was merely a continuation" of a prior IEP meeting and as such "no new notice was necessary." Therefore, because there was no denial of FAPE, the Court concluded that the District was not responsible for the costs of the parents' private school placement.

This decision highlights the fact that minor procedural errors do not automatically lead to liability for public school district's under the IDEA.  The case also illustrates the risks run by parents when they cease to participate in the collaborative IEP development process.  Here, the Court specifically noted that it was "convinced that an IEP could have been instituted for [student] after the September 11, 2006 meeting and that none was developed because of the conduct of [student's] mother."  

[Editor's Note:  As usual, the author's humility has led him to omit his role in the case as counsel for the District.  Congratulations to Michael Stafford for securing this important victory for the school district! md]

Morality clauses are in the news again.  A Connecticut second-grade teacher was fired after she appeared, with her husband, on Howard Stern's radio show.  The couple participated in a contest called, "Hottest Wife, Ugliest Husband."  She sued her former employer alleging, among other things, sex discrimination and due process violations (under Section 1983).  She has also sued the union for violation of the duty of fair representation with regard to its alleged failure to advocate on her behalf during the grievance process.

The teacher, Marie Jarry, took a sick day from work to participate in the contest (which, by the way, they won first prize and $5,000).  She admits maybe that wasn't the best idea.  When she returned to work, she was told she'd violated the school's "morality clause" and was terminated.  

More details can be found at The Smoking Gun, as well as a link to the full complaint.

For more on morality clauses, see these recent Delaware Employment Law posts:

Prying Eyes: What is "Private" Becomes Even Fuzzier for Employees Who Snoop

More Drama at the News Desk: Co-Anchor Suspected of Snooping Through E-Mails

Off-Duty Conduct & Newsmakers:  The Role of Morals Clauses in Employment Contracts

Bad Boys, Bad Boys, Whatcha' Gonna Do When They Work for You?

Off-Duty Conduct, Generally:

Off-Duty Conduct In the News

There's No Hiding Your Own Bad Habits

[Editor's Note: Dan Schwartz of the CT Employment Law Blog always keeps his readers up to date on the hottest employment law topics and stories.  He has a great way of demonstrating how just about everything is related to employment law in some way. Well, being the legal eagle that he is, Dan apparently spotted this story at just the same time as Michael Stafford.  So, although I can't send him a hat tip for the story, I do want to send an equally enthusiastic "great post!" to Dan for his great catch.  I mean, really, sharing is a very important value.  If more managers would give credit where credit is due or share credit where possible, they'd have a much happier group of employees and, in turn, a much easier job.  All of that being said, go check out the CT Employment Law Blog for more on this story and Dan's other great posts! md]