Delaware Employment Law Blog

Delaware employers--private and public--may benefit from a recent decision from the Delaware Supreme Court upholding the termination of a school teacher.  The elementary school cited "immorality" as the basis for the termination of a 34-year old male teacher.   Lehto v. Board of Education of the Caesar Rodney School District, No. 175, 2008 (Del. Dec. 2, 2008).

The court held that the teacher, who had a sexual affair with a 17-year old female student, was guilty of immorality.  The student did not attend school in the district where the teacher worked, although her sister did, but the teacher had taught her some years before in elementary school.

The teacher had renewed his acquaintance with the student when she began coming to his school to pick up her younger sister, and they began an intimate relationship. Eventually, the affair became known in the community, and the teacher was charged with fourth degree rape, but the charge was nolle prossed because the teacher was not in a position of trust or supervision over the student. After a hearing, the school board terminated the teacher, who had positive teaching evaluations, concluding that his “engaging in a sexual relationship with a minor . . . violated the common mores of society” and “interferes with [the teacher’s] important function of serving as a role model to the students.”

The termination was upheld by the Delaware Superior Court and affirmed by the Delaware Supreme Court. Even though the conduct took place outside of the school and with a non-student of the district, “there was a proper nexus between his alleged off-duty conduct and his fitness to teach.” Especially interesting and broadly significant is the court's conclusion that the public disclosure of the relationship permitted the inference that allowing the teacher to remain could "reasonably undermine parents' confidence in both [the teacher] and the District."

Private employers are often faced with decisions concerning off-duty conduct of their employees. One rationale that has been applied is whether the conduct, if it became public, could damage the employer’s reputation. Most frequently, the issue arises when employees who enter people’s homes as part of their job are charged with, but not yet convicted, of crimes. This case supports the conclusion that if public confidence in the employer would be undermined by the knowledge that the employer retained an employee who was charged with a notorious crime, that is a sufficient reason for termination.

This isn't the first time off-duty conduct has played a role in the termination of a teacher:

People, don't you understand: More Teacher Social Networking Woes 

Terminating Employees for Off-Duty Conduct 

MySpace and Employment: Another Tale of Woe

Off-Duty Conduct of College Pres Leads to Firing

Human Resources departments of Delaware employers will soon face a new and more challenging day once the initial excitement dies down and the new administrations in Washington and Dover turn to official business. 

The State of Unions

In Washington, one of the first items on the agenda will surely be the Employee Free Choice Act, which is designed to revitalize the union movement. It will substitute card checks for secret ballot elections, establish strict bargaining deadlines, and introduce interest arbitration to impose a first contract if the parties are unable to reach agreement in 90 days. Interest arbitration is a concept already familiar to Delaware public employers.

Of note, Delaware public employers have won every interest arbitration case decided to date, but the concept itself changes the bargaining landscape. It requires employers to, in essence, bid against each other by proving they are keeping pace with comparable employers. The Act would also increase the power of the NLRB to obtain injunctive relief and impose increased back-pay damages for unfair labor practices committed by employers during bargaining campaigns.

Another law designed to assist unions is the RESPECT Act, which would overturn an NLRB decision (Kentucky River) that labeled many employees as supervisors and removed them from the coverage of the National Labor Relations Act. Passage of that Act would add many exempt supervisors to the rank and file.

On the Agenda

President-Elect Obama has also supported a proposed law that would ban the permanent replacement of strikers.  And he will be appointing at least 3 new members of the NLRB, and it is virtually guaranteed that the majority will be sympathetic to unions. Passage of this cornucopia of union-favoring legislation would put a heavy thumb on the union side of the organizing scale.

Another change that seems certain is the reversal of the Supreme Court’s Ledbetter decision. The plaintiff in that case, Lilly Ledbetter, was featured in an Obama ad, so he certainly owes her. That case held that the time for filing a charge of discrimination based on unequal pay begins to run from the time the initial unequal wage was established. The new law would permit a charge to be filed every time a new paycheck is received.

President-Elect Obama also has expressed support for expanding FMLA coverage from companies with 50 or more employees to those with 25 or more employees, and to require at least 7 days of mandatory paid sick-leave per year.

Delaware's Political Landscape

In Delaware, it is harder to predict what might come to pass. Governor-Elect Markell, though a Democrat, is a former businessman and will, likely, approach game-changing labor and employment legislation cautiously. But the General Assembly, with many union members and advocates, could pass several bills that have been proposed previously but have never seen the light of day.  Among these are the expansion of the state discrimination statute to include sexual orientation, and the elimination of the employment at-will doctrine. Depending on what happens in Washington, there might also be efforts to add a Delaware FMLA law and a Delaware analogue to the WARN Act.

Fasten your seat belts, it is going to be a bumpy ride.

If enacted next year, the Employee Free Choice Act (“EFCA”) would amend the National Labor Relations Act by doing away with secret ballot elections and replacing them with a card-check procedure that would require unions only to obtain signed authorization cards by a majority of employees in order to organize.

Employers’ current concern that the law will be enacted is causing some to overreact by, among other things, implementing grievance and arbitration procedures that mimic those in union contracts. But doing so at this stage makes little sense, whether or not the EFCA is passed. If it is not, employers would find themselves with unwieldy and expensive procedures that might not be suitable for their workplaces. And they would be handing the unions an argument in favor of organizing – pointing to adoption of these procedures as something almost all union contracts already have, and being able to puff about how much more the potential union members can expect if they agree to unionize. Moreover, by adopting these procedures now, employers deprive themselves of a major bargaining chip in the event they do reach the table for collective bargaining negotiations. All in all, adopting a wait and see approach makes a great deal of sense in this situation.

Delaware employers who've not heard of "The Construction Industry Independent Contractor Act" should pay close attention to this post.  Every business with employees working in Delaware should be aware of this bill, HB 468, introduced yesterday in the Delaware General Assembly, and the many repercussions it could cause. 

Proposed Bill Would Target Delaware Employers in the Construction Industry

"The Construction Industry Independent Contractors Act,” apparently is on the fast track for approval at the state legislative level.  Although its name indicates that it reaches construction-industry employers, the proposed bill has potential implications for all employers.

In short, the bill purports to penalize employers who improperly classify construction employees as independent contractors.

In essence, it provides that all construction industry workers are “deemed to be” employees unless:

1. the workers are “free from control or direction;”
2. the work is “outside” the employer’s usual business; and
3. the person is “customarily engaged in an independently established trade, occupation, profession, or business."

Employers Could Face Jail Time for Misclassification

An employer who fails to “properly classify” a person as an employee, even unwittingly, is subject to fines and imprisonment for up to 90 days. If done knowingly, the fine can be as much as $10,000 and the prison term as much as 6 months. In addition, the Secretary of Labor can impose administrative penalties, debar the employer from state projects, and even require the employer to cease operations.  And as if those measures aren't enough, an individual who claims to be the victim of misclassification, or his or her union, can bring a civil action for damages, including a class action.

This draconian legislation, if enacted, would expose construction industry employers to financial ruin. Class action lawsuits are invited, and the language is constructed in such a way that virtually every person who works on a construction project would be viewed as an employee.

The Potential Consequences of the Independent Contractors Act

But why stop with construction employers? The same rationale would seem to be applicable generally to employers, so the next step would seem to be to expand the scope of the legislation to cover all employers. Interested businesses and business associations beware – this bill must be stopped!

The full text of the bill can be seen at the Delaware General Assembly website.

Yesterday four members of the Supreme Court had to recuse themselves from a case, and as a result, no decision could be made. Apparently the Justices have not heard of the “rule of necessity.” That rule of thumb says, in essence, that if a court is unable to decide a case because the justices have conflicts, it is more equitable to have a judge with a conflict rule on the case, rather than leaving it undecided. A Supreme Court Justice should be able to render an objective decision even though he or she has some stock in one of the litigants. While not the optimum situation, that is far preferable to saying to the adversaries that the lower court decision is unreviewable.

Some recent reports about law firms trying to persuade associates to dress better, and even hiring coaches for them, are a reminder that the pendulum seems to have swung back from the days when even old timers were “dressing down” to try and “connect” with the wealthy young techie entrepreneurs.

I, for one, am pleased to see a move toward more moderate dress.

There has been silliness on both sides of the continuum. Some years ago, the Delaware Supreme Court, in its infinite wisdom, issued an edict that lawyers appearing before it had to wear white shirts. So much for sartorial creativity.

But if I were seeing a lawyer, I’d feel more confident if he or she were wearing a white shirt than jeans or running pants. While I don’t think we need to force associates to pore over “Dress For Success,” I think that dressing up a bit is a step in the right direction, both for the lawyer’s self-image and the clients’ confidence in the attorney. Maybe ties can be optional, especially in the summer, but there’s nothing like a suit or at least a sport jacket to establish a tone of authority (deserved or not).

Delaware’s state courts have been named the best in the country for tort and contract litigation. This is the sixth consecutive year the First State has been awarded this honor. In our experience, the same result holds true for employment litigation.

Not surprisingly, Delaware and the other four states that ranked highest, Nebraska, Maine, Indiana and Utah, appoint their judges, and the three states that ranked at the bottom, West Virginia, Louisiana and Mississippi, all elect their judges.

So maybe democracy isn’t what its cracked up to be?
Or maybe it’s a bit more complicated.

Unlike the other branches of government, the courts are not supposed to simply reflect the will of the people. Judges are required to apply the law, whether “the people” like it or not. And that’s where it gets messy for elected judges. As we can easily glean from what goes on in our neighboring state of Pennsylvania, judges have to spend large sums of money to get elected, and they get most of that money from interested constituencies like trial lawyers and unions. So when a large donor, in the form of an attorney as advocate, or a union as litigant, appears before the judge, . . .

. . . Will the judge “bite the hand that feeds him?”
Human nature has the answer.

That is not to say that Delaware and other states that appoint judges do so free of politics. But the politician in Delaware who appoint the judges, Delaware’s governor, has for many years recognized that Delaware stands to gain from maintaining its preeminent position as a quality court system, and governors of both parties have made a point of appointing capable jurists rather than political hacks. What that means is that all parties in a lawsuit get a fair shake based on the merits of the case, rather than money talking to tip the scales in favor of the largest contributors.

And that is how a real democracy should work.

AMERICANS WANT NEXT PRESIDENT TO FOCUS MORE ON SAVING U.S. JOBS AND HEALTHCARE; LESS ON IMMIGRATION REFORM

With the spotlight of the political world shining on the Delaware Valley today, a new “America at Work” national opinion survey by the non-partisan Employment Law Alliance (ELA) shows that Americans overwhelmingly want their next President to focus more on improving their standard of living, providing universal healthcare, and stemming the outsourcing of jobs overseas than making it easier for immigrants to live and work in the United States.

The poll is based on a sampling of 1,125 working Americans surveyed between April 4 and 9 and is believed to be the only national survey to date focusing exclusively on a wide range of workplace-related issues that will likely confront the next President.*

You can not walk outside today and not hear people talking about Wednesday's debate and the impact of the upcoming elections on jobs and healthcare. Life in the workplace is often the centerpiece of concern for so many Americans getting ready to elect a new president.

While issues such as immigration get much of the press, I believe that the poll shows that what a typical voter is interested in might vary.

A summary of the results reveal:

· 87% of Americans want their next President to focus on increasing the proportion of the workforce earning at least a living wage, closely followed (86%) by making it tougher for companies to outsource U.S. jobs to foreign countries, and (83%) rounding out the Big Three, providing healthcare coverage for all U.S. citizens.

· 76% of Americans are also concerned - but not at the same intensity level - with having the next President work toward increasing workplace safety regulation, 70% support focusing on expanding family leave rules and 69% think beefing up enforcement of workplace discrimination laws should be a priority.

· In sharp contrast, 40% said they are concerned that their next President focuses on immigration issues, ranging from making it easier for professionals to work in the U.S. to granting amnesty for illegal aliens.

· Workers were also significantly split along racial lines regarding both views on workplace issues and immigration reform with, for example, 55% of non-whites supporting relaxing immigration laws for professionals versus 36% among whites.

· Geographically, 46% of workers in Western states thought the President should make increasing legal immigration a priority compared to a low of 25% among Midwestern workers.

· 45% of Americans want to make it easier for unions to organize workers.

ELA members concentrate on labor and employment law issues in every American state and more than 75 countries. The survey was conducted prior to Wednesday's democratic debate at the National Constitution Center in Philadelphia and the Pennsylvania primary on April 22nd.

“The message to the next President is raising the standard of living and getting better healthcare is more of a priority than organizing unions or immigration concerns,” said Sandler.

Dr. Ted Reed, President of Philadelphia-based Reed group and Poll Director for ELA, said the input from ELA's attorneys around the country was invaluable in shaping the questions for the survey. According to Dr. Reed, “This survey is important because of the extent of demographic detail, including gender, race, income, education, and geography. The focus on pocketbook issues across the board as a Presidential priority is unmistakable.”

*The error interval is +/- 2.99% at a 95% level of confidence.

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Sheldon N. Sandler, a partner in the Employment Law Department at Young Conaway Stargatt & Taylor in Wilmington, Delaware, members of ELA.

Young Conaway Stargatt & Taylor, LLP, one of Delaware's largest law firms, counsels and represents national, international and local clients, handling sophisticated advisory and litigation matters involving bankruptcy, corporate law and intellectual property. Now in its fifth decade, Young Conaway also guides regional businesses and individuals through a myriad of employment, real estate, tax, estate planning, environmental, and banking issues from the firm's offices in downtown Wilmington.

The Employment Law Alliance is the world's largest integrated, global practice network comprised of premier, independent law firms distinguished for their practice in employment and labor law. Comprised of more than 3,000 lawyers, there are member firms in every jurisdiction in the United States and over 75 countries around the world. For further information, including access to the survey charts and graphs, visit: www.employmentlawalliance.com

New Castle County’s blue-collar union ratified a three year contract, which provides for no cost-of-living increases in the next two years. The News Journal’s story on the settlement is located here. T

he agreement was reached after over a year of negotiations and reflects the tough economic times faced by New Castle County and other governments in Delaware. See our earlier post.

Bill Bowser and I will be discussing the state of public sector negotiations on April 16 at our Department’s Annual Seminar.

To register, contact Marie Willey at 571-4751. Cost is $95. Lunch is provided.