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