A bill pending in the Delaware legislature would expand the state’s anti-discrimination statute. House Bill 4 would prohibit discrimination on the basis of domestic violence, sexual offense, or stalking. If passed, the bill would have important implications for Delaware employers. Here’s what you need to know. Continue reading
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
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.
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.
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.
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.
Criminal histories and credit scores will soon be an off-limit topic for job applications in Delaware’s public sector. HB 167 passed the Delaware Senate on May 1, 2014, and is expected to be signed into law by Gov. Markell soon.
As we previously reported, the bill would prohibit public employers and contractors with State agencies from:
inquiring into or considering the criminal record, criminal history, or credit history or score of an applicant before it makes a conditional offer to the applicant.
Once a conditional offer of employment has been made, the employer may perform a background check but, even then,
may only consider felonies for 10 years from the completion of the sentence, and misdemeanors for 5 years from the completion of the sentence.
The bill would also require employers to “several enumerated factors” (i.e., the EEOC’s factors) when deciding whether to revoke a conditional offer based on the results of a background check.
The scope of the bill is broader than you may suspect. It would apply not only to public employers (i.e., State government), but also to “contractors with State agencies.” It does, however, provide for an exception for contractors who are subject to conflicting State or federal laws. For example, a child-care facility that contracts with the State would not be subject to the new law because it is obligated by other State laws to comply with certain background-screening requirements.
The trend towards prohibiting employers from inquiring into an applicant’s criminal history or credit score does not appear to be going away any time soon. Although, for now, only public employers in Delaware will be subject to this ban-the-box law, it may be just a matter of time before the scope is expanded to include private-sector employers, as well.
Other posts on criminal-history checks for potential employees
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.
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.
So-called “ban-the-box” initiatives, which limit employers’ inquiries into an applicant’s criminal history, have been adopted by several cities and municipalities. Philadelphia adopted such a law in the Spring of 2011. The City of Wilmington joined the ban-the-box bandwagon in Fall 2012, when then-Mayor Baker signed an executive order that removed a question about criminal convictions from job applications. But that executive order applied only to applicants seeking work with the City of Wilmington. Other Delaware employers have not been subject to these restrictions.
A bill is pending in the Delaware legislature, though, would change that and more if passed.
H.B. 167 proposes to limit when public employers and government contractors may inquire about or consider the criminal background or credit history. The employer would not be permitted to ask about this information until “after it has determined that the applicant is otherwise qualified and has conditionally offered the applicant the position.” Thus, a covered employer would be prohibited from asking about criminal or credit history until at least the first interview-no more checkboxes on job application.
The bill also proposes to limit the specific types of information that can be requested. Covered employers would be permitted to ask only about: (a) felony convictions in the past 10 years; and (b) misdemeanor convictions in the past 5 years.
This means that questions about arrests would be totally off limits-both on applications and in in-person interviews.
Finally, the bill proposes to limit how the information that the employer obtains will impact the hiring decision. The bill basically adopts a scaled-down version of the EEOC’s multi-factor analysis whereby employers would be required to consider the nature of the crime and its relationship to the position sought, how much time has passed, etc.
Oddly, the bill offers no specific limits on the use of credit history information other than timing. In other words, the bill prohibits covered employers from obtaining a credit report for the candidate until a conditional offer has been made.
Even for private-sector employers who do no business with the State or any State agency, the use of background checks as part of the screening process continues to warrant consideration. Particularly since the laws around the country are still developing, employers should weigh the benefits of this checks against the risks. (See 5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit). And, if nothing else, employers should evaluate the process and policies in place for conducting such checks.