Delaware Employment Law Blog

Last week was a busy one at the Governor's office, where Governor Jerry Brown signed into law no less than three new laws with a pro-labor, pro-employee theme. The first two laws were a package deal, making California is the first State to enact legislation that prohibits employers and educators from requesting employees' and students' social-networking passwords. Gov. Brown announced that he'd signed the twin bills into law via a Twitter post on Thursday.

California is the second State after Delaware to prohibit universities and colleges from requiring students to turn over their passwords to their social-networking accounts. It is the third State, following Maryland and Illinois, to enact similar legislation providing these privacy protections to employees and applicants. And similar legislation is pending in several States. New Jersey's version of the Facebook-privacy law was released by a Senate committee at the end of September.

The day after Gov. Brown signed the bills into law, he signed a third bill, which declared May to be Labor History Month. What, you ask, does this actually mean? Well, it means that school districts in the State will commemorate the month with educational exercises intended to teach students about the role of the labor movement in California and across the country.

The bill extends Labor History Week into a full month and moves the observation from the first week of April to the month of May. According to the Sacramento Bee, many of California's school districts are on spring break the first week of April, and supporters of the bill said the rest of the month is busy for students because they are preparing for statewide tests.

I think it's safe to say that last week was a good week for the pro-labor movement in California.

Delaware employers in the long-term- and community-care industries are subject to new background-check requirements.  The Delaware Code as amended by S.B. 216 to establish an electronic web-based “background check center” for employment in long-term care or community settings.  S.B. 216 was signed by Gov. Markell on July 5, 2012. 

Creation of a Background Check Center

The biggest change is the creation of a new “Background Check Center.”  The stated purpose of the Center is to “consolidate various data streams” from inside and outside the State of Delaware, as necessary to conduct a proper background search. 

In short, it requires covered employers to use the Center to perform mandatory criminal background checks for new employees.  Nursing or similar facilities, hospice, home-health, and home-care agencies are subject to the law. 

There will be a fee for the background check, which is subject to change each year based on the Center’s operating costs. The statute specifically provides that applicants will be provided with “due process protections of notice and opportunity to be heard,” as well as the right to appeal.

Criminal-History Checks

S.B. 216 also amended the law relating to criminal-history checks performed by employers operating long-term-care facilities.  For example, these employers are now required to use the Background Check Centers, as described above.  Some other key changes for employers include:

• An applicant may be “conditionally hired” for 60 days but only if the employer has first received verification that the applicant has been fingerprinted by the State Bureau of Identification. 
• Criminal histories are to be treated as “strictly confidential” and must be stored in manner that maintains such confidentiality.

Employers aren’t the only ones with new obligations, though.  Employees who were grandfathered in under the original version of the statute have 120 days from the date the Background Check Center is implemented to submit to fingerprinting and a criminal background check. 

Applicants have some new obligations, too.  They are required to execute a release that allows the employer to obtain a criminal history before the time of hire and post-hire for the purpose of updating the history during employment. 

Failure to comply will be costly.  Employers and applicants who fail to comply will be subject to a civil penalty of between $1,000 and $5,000 for each violation.

Key Take-Aways for Delaware Employers

The changes to the law is significant—but only for employers and potential employees in the long-term-care industry.  Employers in other industries are not affected and should be aware of the national trend away from the use of criminal histories as part of the hiring process.  However, for covered employers, the changes are many take effect immediately following the creation of the State’s Background Check Center, so be sure to consult with your employment law counsel about the steps you should be taking to prepare.

See also:

EEOC Publishes Guidance on Consideration of Arrest and Conviction Records

5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit

New Philly Law Limits Use of Criminal-Background Checks

Delaware’s version of the “password-privacy” laws currently pending in state legislatures across the country lives to see another day.  H.B. 308, titled the “Workplace Privacy Act,” was released from Committee last month and made it to the House a few weeks ago. It’s slowly been making its way to the top of the agenda and closer to a vote by the House of Representatives.

Last week, I presented on social media at the monthly meeting of Delaware SHRM and, no surprise, the proposed law was a topic on the agenda.  I discussed my concerns with the law as drafted—specifically, the prohibition on an employer asking an employee to show the employer his or her social-networking site for purposes of a legitimate workplace investigation.  (For a more detailed discussion of the potential implications, see my post about a hypothetical allegation and investigation in the education setting). 

After the SHRM meeting, I was approached by several members about what steps should be taken to address the flaws in the legislation as drafted.  I worked with Delaware SHRM to draft a letter for members to submit to their State Representatives about the concerns employers have with H.B. 308.  The letter went out today.

Perhaps as a matter of sheer coincidence, perhaps not, H.B. 308 was amended yet again today. The most critical provision for employers is Section (e) which contains the “permitted acts” for employers. Of most interest in this amendment is the new version of Section (e)(5), which was pitched as the “solution” to the concerns I’ve been raising.  The section, unfortunately, contains several sentences that don’t particularly belong together, which makes it even more confusing.  I’ll do my best to unravel the mystery one sentence at a time.

This Act shall not prohibit any employer from barring employees from accessing social networking sites while performing work for the employer.

Good gracious, let’s hope not!  Of course an employer is allowed to prohibit its employees from using its equipment and/or technology to engage in social networking or anything else unrelated to work during working time.

Employers are permitted to access electronic communication devices which are the property of the employer for the purpose of investigating employee wrongdoing, or otherwise serving the employer’s business purposes.

Again, I think this is pretty obvious, though maybe less so than the previous sentence. In short, it says that an employer is allowed to “access” the smartphones, laptops, tablets, etc., that they provide to employees. In other words, the company can access its own property. 

Notably, though, the Bill purports that an employer may do so lawfully only for the “purpose of investigating employee wrongdoing” or “otherwise serving the employer’s business purposes.”  Supposedly, a charitable purpose or at the request of the employee would not be considered a “permitted act” under the amended Bill.

Where an employer has credible information indicating imminent workplace violence, the employer may question the subject employee as to alleged social network site postings.

Try to not to laugh—it’s not funny.  According to this sentence, in the event there is a credible threat of imminent workplace violence, the employer may “question” a “subject employee” (whoever that is), about his or her social-network-site postings.  Wow.  That’s it? 

Employers are also permitted to access an employee’s social networking site profile or account which is public and non-restricted.

And, finally, an employer is permitted to look at publicly available information that is posted online.  Well, yes.  Of course employers are allowed to look at the Internet and the public information posted online. 

It’s pretty clear to me that this “amendment” may constitute a changed version of the Bill but not an improved version and certainly not the answer to the problems that I’ve discussed previously. 

If you are not a SHRM member but want your voice to be heard on this legislation, I’ve uploaded a modified version of the SHRM letter, which I would encourage you to use as a template for your own letter.  But act soon, there are just two sessions left before the summer recess and the Bill could be voted on as early as tomorrow.

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.

Delaware’s Pending Password-Privacy Legislation

As I’ve written recently, there is a bill pending in Delaware’s House of Representatives that is intended to prohibit employers from requesting or requiring that an employee or applicant turn over his or her password. If you’ve read my posts on this topic, you know that I have significant concerns about the scope of the bill and its potential consequences for both employers and employees. This afternoon, the bill will be presented for vote to the Telecommunications, Internet, and Technology Committee.  I will keep you posted about the results of that hearing as soon as possible. Until then, you should consider reaching out to your State Representative and voice any concern you may have with the bill.

Pretexting Via Social Media

I wrote earlier this week about a high-school principal in Missouri, who is alleged to have created a fake Facebook account for the purpose of spying on students in her school. As I stated in that post, using deceit about your identity for the purpose of obtaining information about someone, known as pretexting, is a wholly unacceptable practice.

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 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.

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.

Continue reading . . .

Last night, Governor Markell signed Delaware's civil union bill into law. The new law will go  into effect on January 1, 2012. 

See our prior posts regarding how the new law will affect Delaware employers:

Civil Unions: Federal Tax and Benefit Implications

Same-Sex Civil Unions Recognized in Delaware

Delaware Legislature Considers Same-Sex Civil Unions

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. 

I reported last week that the Delaware Senate was considering a bill that would recognize civil unions.  The Wilmington News Journal reports that the State Senate voted to approve the Civil Union and Equality Act of 2011 yesterday.  The House is expected to vote on the legislation on Thursday, April 15, so stay tuned. 

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.

The legal effectiveness of social-media policies in the workplace came under fire when the National Labor Relations Board (NLRB) filed an unfair labor practices complaint against American Medical Response.  The complaint was filed after the employer terminated a unionized employee for complaining about her boss via Facebook. The NLRB's complaint alleged that the employee was engaged in activity protected by the NLRA because she was discussing the terms and conditions of her employment with co-workers.

The NLRB just announced  that it settled the matter after the employer agreed, among other things, to revise its social media policy to be less broad. The employer had previously prohibited its employees from any on-line criticism of the company. As we've previously noted, the NLRB's position on social media does not mean that an employer is prohibited from restricting social media use by employees. It does, however, mean that employers need to tailor their social media policies to avoid overly broad restrictions.  We'll keep an eye out for release of the revised (and NLRB-approved) social-media policy. 

See also, coverage of the settlement by the N.Y. Times.

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

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

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

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

Other States' Laws

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

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

Other Legal Issues, From ADA Accommodation to Safety

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

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

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

A law first proposed by the late Senator Ted Kennedy has been resurrected and introduced in the Senate by Bob Casey (D-Pa.) and Tom Harkin (D-Iowa). The law mirrors legislation introduced in the House of Representatives in March 2009 which, to date, has gone  nowhere. Premised on the purported need of employees to have more flexible work options, it authorizes an employee to request from an employer a change in the terms or conditions of the employee's employment if the request relates to: (1) the number of hours the employee is required to work; (2) the times when the employee is required to work; or   (3) where the employee is required to work.

The proposal does not require the employer to grant any requests, but does set forth employer duties with respect to such requests, and makes it unlawful for an employer to interfere with any rights provided to an employee under the Act. Under regulations to be promulgated by the Secretary of Labor, an employer would have to hold a meeting with the requesting employee and give the employee a written decision on the request, discussing the reason for any rejection and addressing a prescribed list of possible explanations. An employee would be entitled to request reconsideration and the employer would be required to provide a written response to that request as well. In short, it would create an unnecessary paperwork nightmare.

The proposed law also authorizes an employee to file a complaint with the Administrator of the Wage and Hour Division of the Employment Standards Administration of the Department of Labor for any alleged violations of rights, and provides for the investigation and assessment of civil penalties or the award of relief for alleged violations.

The timing of its introduction suggests that S. 3840  is a political ploy. In view of the current mood of the populace, passage of the legislation is, to put it mildly, a longshot.

The credit history of a job candidate will be off limits to Illinois employers as of January 1, 2011.  Illinois Governor Pat Quinn signed the bill into law on Tuesday, thereby prohibiting employers from making employment decisions--including the decision whether to hire--based on the individual's credit history.  (See Press Release).

Hawaii, Oregon, and Washington already have similar laws.  And bills are pending in 16 state legislatures that would enact similar prohibitions.  The recent push is likely related to the high unemployment rate--more candidates inevitably will have credit issues as a result of unemployment. Therefore, there are more voices to speak out against employers' use of credit histories for employment decisions. 

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

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

• Ban all cell phone use while driving company-owned vehicles -- even hands-free devices can distract drivers.
• Specifically ban texting and e-mailing while driving. If text messaging must be used, incorporate a strict policy requiring drivers to first find a safe area to park the vehicle.
• Make an exception for emergencies that require police or medical attention.
• Also require all occupants of company-owned vehicles or private vehicles driven on company business to wear seat belts.
• Monitor and enforce the policy.