The Good, The Bad, The Ugly:
Employment Law Update Presented by:
William W. Bowser
Scott A. Holt
Lauren E. M. Russell
Agenda
• Federal Developments
• Defense of Marriage Act (DOMA) Update
• Federal Agency Update
• National Labor Relations Board
• Equal Employment Opportunity Commission
• State Developments
• Gender Identify Discrimination
• Medical Marijuana
• First Responders
Federal Developments
Defense of Marriage Act
(DOMA)
Delaware Domestic Relations Act
• Effective July 1, 2013
• Terminated Civil Union Process
• Voluntary Conversion
• Involuntary Conversion (July 1, 2014)
Delaware Domestic Relations Act
• Considerations
• Limited Changes (CUEA)
• Marriage-Related Benefits Extended
• Bereavement Leave, etc.
• Same Documentation
U.S. v. Windsor
• Marriage Defined by State Law
• Delaware Advantage
• Uniformity of Regulation
• Compliance Since 2010 in State Law
• Federal Benefits
• ERISA-Governed Plans; Taxation; FMLA Benefits; COBRA Benefits; 401(k) Plans
• OMB Estimates 1,138 Benefits, Rights, Privileges
Federal Agency Update
National Labor Relations
Board (NLRB)
NLRB
• July 31 2013
• All 5 NLRB Board Members confirmed
• 3 Democrats (pro-union)
• 2 Republicans (management-side labor lawyers)
• October 29 2013
• Senate confirmed Richard Griffin as the NLRB's general counsel
What Can We Expect from the New NLRB?
The New NLRB
• NLRB is widely expected to continue to expand the reach of federal labor law into nonunion settings
• Strike down rules of conduct that could be interpreted to interfere with employee’s right to engage in “concerted activity”
• Confidentiality policies
The New NLRB
Centerpiece of National Labor Relations Act
• Section 7 - protects employees who engage in union activities
• Section 7 also protects employees who engage in “other concerted activities for the purpose of . . . mutual aid or protection,” whether or not a union is involved
The New NLRB
Rules the NLRB Has Found Unlawful:
• Prohibiting the discussion of “private matters” of other employees
• Prohibiting the dissemination of “confidential” information such as employees’ names, addresses and telephone numbers
The New NLRB
• Prohibiting social media postings that “damage
the Company” or “damage any person’s
reputation”
• Prohibiting “disrespectful” or “other language
which injures the image or reputation” of the
employer
The New NLRB
The following policy has been found to unlawfully interfere with Section 7 Rights:
"You have an obligation to protect confidential, non-public information to which you have access in the course of your work. Do not disclose . . . any confidential information about the Company or any related companies . . . or about other [employees], customers, suppliers or business partners."
The New NLRB
Other policies found to violate Section 7:
• "Do not use any . . . photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company . . . .“
• Rule prohibiting use of company’s “logo, trademark, or graphics”
Takeaway for Employers
• Workplace policies can be unlawful even if never applied
• When drafting rules of conduct addressing such things as confidentiality and civility, be careful not to use broad, general prohibitions
• Be specific and list examples of unacceptable behavior so that a single word will not be read in isolation
New NLRB App
Equal Employment
Opportunity Commission
(EEOC)
Obligatory Statistics
• Slight decrease in charges from previous year
• Increase in disability and retaliation claims
• Claims based on remaining classifications static
or slightly decreased
Enforcement Priorities
• Systemic Bias Cases
• Background Screening
• Equal Pay
• Disparate Treatment Cases
• Harassment
• Vulnerable Workers (immigrant and migrant workers)
• Legal Access
Enforcement Priorities
• Background Screening
• Credit Checks
• Arrest and Conviction Records
• Job Related and Consistent with Business Necessity
• Individualized Review
• Equal Pay
• Lilly Ledbetter Fair Pay Act of 2009
• Almost No Litigation
Enforcement Priorities
• Harassment
• Large Settlements
• $1 mm - $11 mm
• Legal Access
• Scrutinizing Settlement Agreements
• Confidentiality Requirements
• Prohibitions on Filing Charges
Emerging Issues
• LGBT Litigation
State Developments
Gender Identity
Discrimination
Gender Identity Discrimination
• Delaware Discrimination In Employment Act
amended to prohibit discrimination based on
“gender identity”
Gender Identity Discrimination
• What is gender identity?
• Different than sexual orientation
• More than just wearing clothes of opposite gender
• Relates to internal sense of self as male or female
• May involve outward presentation and behavior
related to that internal sense of self
Gender Identity Discrimination
• Transgender
• Gender identity does not match biological sex at
birth
Gender Identity Discrimination
• Statute defines “gender identity“ as:
• "a gender- related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth."
• "gender 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 gender identity shall not be asserted for any improper purpose.“
Gender Identity Discrimination
• Common Issues:
• "joking" about an individual's external appearance
(e.g., dress, facial hair, or physical build),
• resistance to using proper gender pronouns to
refer to a transgender individual, and
• reluctance to share communal bathrooms
designated for use by gender.
Medical Marijuana
Medical Marijuana
• Delaware legalized marijuana for medicinal
purposes on May 11, 2011
• Delawareans with certain specific debilitating
medical conditions and who have received
certification of a physician will be able to legally
purchase marijuana at “compassion centers.”
Medical Marijuana
• Discrimination in hiring, termination, or other terms and conditions of employment is prohibited.
• Cannot discipline “cardholder” for positive drug test unless person “used, possessed, or was impaired by marijuana” at work during normal working hours.
• 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.
• “Impaired” is not defined.
Medical Marijuana
• Marijuana use remains illegal under the federal Controlled Substances Act
• Federal Prosecutors warned that employees at “compassion centers” could be subject to prosecution
• Governor Markell suspended licensing of Centers until August 2013
• DHHS issued regulations in October 2013
• One Center can start growing July 1, 2014
First Responders
First Responders
• Volunteer Emergency Responders Job Protection
Act
• Who is covered?
• Volunteer firefighter
• Ladies auxiliary
• Volunteer EMT
• Volunteer fire police
First Responders
• Volunteer Emergency Responders Job Protection Act
• What is prohibited?
• Termination, demotion or other disciplinary action under the following conditions:
• Governor-declared state of emergency up to 7 days
• President-declared state of emergency up to 14 days
• Absence due to injury while acting as responder
First Responders
• Volunteer Emergency Responders Job Protection
Act
• Don’t have to pay them for absence
• Employee must make “reasonable efforts” to
inform you of absence
• You can get verification of service or injury
First Responders
• Delaware Discrimination in Employment Act
• Expanded to cover same group
• Can’t discriminate
Thank You
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