This article was written by Lauren Moak Russell. I’m in California for two weeks, taking depositions, and am very thankful for the contribution in my absence.

This has been a month of major changes in the employment law landscape in Delaware. In addition to the Supreme Court’s three major decisions affecting employment law (addressing retaliation and harassment under Title VII, and the constitutionality of the federal Defense of Marriage Act) and the legalization of gay marriage, 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?

Delaware’s Governor has signed legislation related to the safe destruction of documents containing personal identifying information. The bill is effective January 1, 2015, and requires that commercial entities take all reasonable steps to destroy a consumer’s personal identifying information within the business’s custody and control, when the information is no longer to be retained. Destruction includes shredding, erasing, or otherwise destroying or modifying the personal identifying information to make it entirely unreadable or indecipherable through any means.crumbled paper trash_3

Personal identifying information includes, but is not limited to, a consumer’s first name or first initial and last name in combination with any one of the following: a signature; date of birth; social security number; passport number; driver’s license number, insurance policy number; or financial information (such as a credit card number).

There are exceptions for federally regulated financial institutions, healthcare organizations subject to HIPAA, consumer reporting agencies subject to the FCRA, and governmental bodies.

Communication is key to success. The better employees understand the objective and the rules for achieving the objective, the more productive they are and the more likely it is that the objective will be achieved.  But communication isn’t easy.  In fact, I’d venture to guess that most of us have been in a workplace where the communication was kept to an inner circle,  where the message seemed to be ever-changing, or where the higher-ups didn’t seem to understand how important communication really is.

Yet, the quest for better internal communication seems to be never ending.  Sometimes, the way to tackle a difficult problem is to start over.  Taking a fresh look at an old problem can remind us that simpler is better.  Speak a language that people understand.  Corporate-speak is just plain alienating to most humans. 

Delta offers a great example of the idea that speaking the language of your intended audience is the key to successful communications.  As a tribute to Delta’s first safety video, which premiered in the 1980s, Delta released an 80s-themed safety videos.  The video’s description explains the idea behind a truly entertaining safety video-“to reward even the most frequent of frequent flyers for paying attention.”

Electronic discovery, the collection and production of electronic documents in litigation, is a scary thing to many lawyers. Some are so scared by it, in fact, that they just deny that it exists and continue to produce only hard-copy documents. Of course, that is a terrible idea. And not at all in compliance with the rules of procedure. But, alas, it is what it is.logo_from_dev

There are times that a lawyer will want to produce electronic records, such as text messages, emails, and, heaven forbid, social-media content, but simply not know how to do it.  I had an opposing counsel call me once and say that he was willing to produce his client’s relevant Facebook posts if I would show him how to do it.  Ummmm, no.

My point, though, is that lawyers are ethically bound to understand and comply with the applicable e-discovery rules but, as a matter of practical reality, that does not mean that they comply.  Which is why e-discovery continues to be a predominant subject for discussion in the legal profession.

It’s summer and that means it’s time for summer vacations.  Some employers are unaware of the law regarding when an employee may be paid “comp time” instead of wages.  So here’s a brief recap of what you should know.logo_from_dev

Rule #1

Absent an exemption (see below), all employees must be paid at an overtime rate of 1.5 times the normal hourly rate for all hours worked in excess of 40.

Breaches of confidentiality via Facebook and other social media are more common than most of us would like to think.  Employees post information about customers, clients, and patients on Facebook, in violation of internal company policies and privacy laws, such as HIPAA, for example.  I recently wrote about a plaintiff who could not collect a sizeable settlement payment because his daughter posted about the settlement on Facebook, which served to demonstrate that her father had breached the confidentiality provision in the settlement agreement. logo_from_dev

There’s another reason to be concerned about what employees say on social-networking sites-waiver of the attorney-client privilege.  The general rule is that confidential communications between an attorney and her client are subject to the privilege and are not subject to discovery by the opposing side.  Privilege can be waived, however.  And one way for a client to waive privilege is to have the communication in the presence of a third party.  Another way is for the client to tell a third party about the communication between himself and his lawyer.

For example, Lawyer and Client meet to discuss strategy regarding litigation.  This conversation would be privileged.  If Client brings his friend to the meeting, the conversation would not be privileged.  And, if Client did not bring his friend but reported the conversation to his friend after the meeting was over, the privilege would be lost.

Delaware Gov. Jack Markell signed into law legislation that expands the protections provided to employee-whistleblowers.  H.B. 300 extends whistleblower protections to employees who report noncompliance with the State’s campaign-contribution laws,who participate in an investigation or hearing regarding an alleged violation of the campaign-contribution laws, or who refuses to violate the campaign-contribution laws.

The practical effect of this new protection is limited, as it applies to a fairly narrow group of employees-those whose employer has some involvement in political fundraising.  But it serves as an excellent reminder about the importance of preventing unlawful retaliation.Whistleblower_thumb

Retaliation claims continue to top the list of claims filed with the EEOC.  Not only are they popular but they are some of the most successful for plaintiffs.  The reason for its popularity and its success is the same-retaliation happens.

Delaware’s General Assembly has passed a law “relating to the removal of insensitive and offensive language.”  When I first saw the title of this Act, I admit, I was alarmed that our State’s legislature was banning profanity in some context.  I was relieved to read the text of the law, though, and learn exactly what it actually does provide. logo_from_dev

According to the synopsis, the bill is part of a national movement, known as People First Language (“PFL”) legislation, intended to “promote dignity and inclusion for people with disabilities.”  PFL requires that, when describing an individual, the person come first, and the description of the person come second.

For example, when using PFL, terms such as “the disabled” would be phrased, “persons with disabilities.”  This language emphasizes that individuals are people first and that their disabilities are secondary.  I think this is an outstanding initiative.

Joseph Talbot worked as a nurse at Desert View Care Center until he was terminated for violating the employer’s social-media policy. In the Facebook post that triggered his termination, Talbot wrote:

Ever have one of those days where you’d like to slap the ever loving bat snot out of a patient who is just being a jerk because they can? Nurses shouldn’t have to take abuse from you just because you are sick. In fact, it makes me less motivated to make sure your call light gets answered every time when I know that the minute I step into the room I’ll be greeted by a deluge of insults.

One of Talbot’s Facebook friends, a nursing professor, reported the post to the employer, expressing concerns about resident safety. Talbot said he was “just venting.” The employer fired him, citing the company’s social-media policy.

Jurors misbehaving have been making a lot of news headlines lately.  And jurors’ online research is one of the most commonly reported problems in this area.judge's gavel_thumb

In May 2014, for example, a jury awarded the plaintiff, a former police officer, $300,000 in compensatory damages and $7.2 million in punitive damages based on its finding of unlawful sexual harassment and retaliation.  The employer appealed the judgment after a juror acknowledged that, during deliberations, he Googled the phrase, “where do punitive damages go” and, after reading a Wikipedia entry on the subject, told his fellow jurors that the plaintiff would receive some or all of such an award.

Delaware has not been immune from this problem.  In May, the Delaware Supreme Court reversed a final judgment following a jury verdict due to alleged juror misconduct.  In Baird v. Owczark, the plaintiff moved for a new trial on several grounds, including juror misconduct.  In the two weeks after the jury had delivered its verdict, one of the jurors wrote a letter to the trial judge informing him that another juror had conducted online research during deliberations.

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