Right-to-work: Right or Wrong?

Recently there has been a lot of talk in Delaware regarding right-to-work laws.

When a private-sector company is organized, the union will try to negotiate a requirement that all employees either join the union and pay union dues or pay a so-called agency fee for the services provided by the union like negotiations and grievance processing. The National Labor Relations Act (NLRA) authorizes individual states to outlaw this practice.  Any state who passes such a law is called a “right-to-work state.”

Delaware, like 21 other states, is not a right-to-work state. Delaware Governor Carney wants Delaware to stay that way. Continue reading

Delaware Social Media Privacy Law Moves Ahead

At our Annual Employment Law Seminar last week, I spoke about the “Facebook Privacy” bill that was then pending in Delaware’s House of Representatives.  The bill passed the House on later that day and is now headed to the Senate.  For those of you who weren’t in attendance last week, here’s a brief recap of the proposed law.  Continue reading

If You Need Me, I Will Be In the Hall of Fame

Well, it’s happened again. The Delaware Employment Law Blog was selected as one of the Top 100 Legal Blogs in the country by the ABA Journal Magazine.  Because this is my fifth year as an honoree, I’ve been inducted into the magazine’s Hall of Fame, where I join my friend Dan Schwartz, whose Connecticut Employment Law Blog was inducted in 2013.  In my world, this is the most prestigious award a legal blogger can receive and it is such an honor to have been selected again. It is, as the saying goes, truly an embarrassment of riches.

ABA Journal Top Blawg 100

To those who nominated us for the award, thank you.  To all of our readers, thank you. And to all of the many, many, many employment law bloggers who continue to set an incredibly high standard for the rest of us, thank you.

I share the honor this year with seven other employment-law bloggers, each of who does a tremendous job reporting on the various aspects our shared practice area. Many of you already read the blogs of my co-winners but, if you don’t, you should.  I continue to be humbled by the company I have been permitted to keep.

Writing a legal blog is a labor of love. And, by that, I mean that it doesn’t pay the bills. To consistently put up quality posts that are original and interesting to readers is no easy feat–especially when the demands of our day jobs can be, well, demanding. To be recognized for the hard work that goes into writing a legal blog really does mean so much. Almost as much as knowing that our readers find value in the content that we generate.

You can vote for your favorite in the employment-law category at the ABA Journal site . . . but no pressure, really.  Voting is open through December 11.  You can find all of the Top 100 bloggers on Twitter through the ABA Journal’s list.

So, as Frank and Ed used to say in those classic Bartles & James commercials, “Thank you for your support.”

Delaware Gov. to Sign Law Expanding Retaliation Protection for Whistleblowers

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.

Thankfully, most of us are not targets of workplace discrimination based on our race, gender, or disability.  But I’d challenge anyone to say that they’ve really never been the target of retaliation.  If you made a critical comment about a co-worker in front of your boss, you were probably subject to retaliation by that co-worker.  The retaliation could have been mild-maybe you don’t get invited to lunch that day.  It could be more overt-maybe a flat-out refusal to help the next time you request assistance from the co-worker.  Or it could be more covert-the coworker quietly (but intentionally) sows the seeds of poor performance with your boss, telling your boss every time you don’t make a meeting on time or leave early on a Friday.

All of these things constitute retaliation.  But they’re not unlawful retaliation because they are not in response to you having engaged in a protected activity, such as reporting workplace discrimination or, now, refusing to violate the campaign-contribution law.

So, how can employers prevent unlawful retaliation?  The key, in my opinion, is taking a step back.  We’ve all had our feelings hurt when a co-worker points out an error in our work while the boss is standing there.  But, the key is to take a step back, realize that you’re a rational, logical, thinking adult.  And move on.  No grudge holding.  It makes life far more difficult than necessary.

See also

U.S.S.C. Clarifies the Applicable Standard for Retaliation Claims

Manager’s Drunk Facebook Post Leads to Retaliation Claim

3d Cir. Issues a Bitchin’ Constructive Discharge Decision

Business Is Booming . . . for the EEOC, Anyway

People First Language: Delaware Legislation Gets It Right

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.

First, it is far easier to do (or say) the right thing when we know what the right thing is.  So legislation like this, which makes clear what is (and is not) the right thing to say, is always helpful.  Second, I think the approach is spot on.  Individuals are people first. The same concept applies to all protected characteristics.

I have received countless calls from clients seeking advice with regard to a potential termination of an employee.  The call often starts out like this: “We have an employee who is in a protected class and who is always late to work and who constantly undermines her coworkers.”

If the PFL concept were applied, the call would start out, instead, like this: “We have an employee who is always late to work and who constantly undermines her coworkers.”

What matters is what the employee is doing (or failing to do) with respect to her job-not that she is “in a protected class.”  Start off by addressing what actually matters.  Everything else, including a discussion about potential accommodations, etc., will follow if and when it’s appropriate.

See also, previous posts regarding Disabilities in the Workplace.

Employment-Law Legislation In Delaware’s General Assembly

Employment legislation has been a popular topic for the Delaware General Assembly in recent months. Here are two recently proposed legislation that Delaware employers should keep an eye on.

Employment Protection for the Disabled

The General Assembly has proposed a very simple change to the Delaware Persons with Disabilities Employment Protections Act (DPDEPA), which would change the definition of “employer.” More specifically, they have proposed decreasing the threshold for coverage from 15 employees (the same as the Americans with Disabilities Act) to 4 employees (the same as the Delaware Discrimination in Employment Act).

Expanding statutory coverage is always worrisome for employers. However, the proposed change would also provide consistency under Delaware law, which could benefit employers in their decision-making processes. Whatever your business’s philosophy, for that small subsection of businesses employing between 4 and 14 individuals, this is something to watch.

The Minimum Wage . . . Again

As many readers know, Delaware will increase its minimum wage–in two waves–resulting in a July 1, 2015 wage of $8.25. Since that legislation was signed by Governor Markell, the General Assembly has drafted another bill that would raise the minimum wage to $10.10 per hour. If passed in its current state, the bill would add a third step to the increases already legislated, requiring a jump from $8.25 to $10.10, effective June 1, 2016.

The proposed increase would put Delaware’s minimum wage far above the current federal requirement, and nearly in line with San Francisco, California, which has the highest minimum wage in the country ($10.74 per hour, effective January 1, 2014). The change mirrors legislation that President Obama is expected to propose, and which will face stiff opposition from Republicans in Congress. With that in mind, it is unclear whether Delaware’s proposed legislation has any chance of passing the General Assembly. But it is certainly an issue that employers should be monitoring.

Bottom Line

Keep in mind that these bills reflect proposed legislation, only. If you believe that your business would be adversely affected, reach out to the General Assembly, or bring these issues to the attention of any advocacy groups to which you belong.