delaware shrm...2019/04/09 · facts: ‐ her new provider said that she suffered from social...

Delaware SHRM2019 Employment Law Hot Topics

Jennifer C. JauffretLori A. Brewington

Facts:‐ Delaware employee, Autumn Lampkins, worked at

KFC‐ Lampkins was allowed to pump only once during

her 10-hour training shift ‐ She had to pump in a single-stall bathroom before

being given permission to pump in the manager’s office

Lampkin v. Mitra QSR, LLC, C.A. No. 16-647-CFC

Facts: ‐ Manager’s office had unblocked windows and an

unlocked door, providing little privacy‐ Surveillance camera in the office could not be

turned off‐ Co-workers occasionally watched her pumping


Facts: ‐ Employer demoted and transferred her to another

restaurant so that “it would be easier” for her‐ Lampkins feared termination and felt that she had

to resign


How Did The Court Rule?

‐ Jury awarded Lampkins $25,000 in compensatory damages and $1.5 million in punitive damages

‐ Employer recently filed a motion for judgment as a matter of law or, in the alternative, for a new trial


Agenda Federal Law #MeToo In the News Harassment Pregnancy Discrimination Recent Supreme Court News Grooming and Dress Policies Transgender Protections ADA, ADEA EEOC, EE0-1 Survey NLRB Handbook Guidance New U.S. DOL Proposals Medical Marijuana

Agenda State Law Marijuana in the

Workplace Paid Sick Leave Minimum Wage Youth and Training Wage Shift-Worker Protections Pay Equity laws Equal Rights Amendment Sexual Harassment DE DOL Posters DE WARN Act

Workplace Harassment - #MeToo Movement

In 2018, EEOC filed 66 harassment lawsuits, including 41 cases alleging sexual harassment

‐ More than a 50% increase in sexual harassment suits over FY 2017

#Workplace Harassment - #MeToo Movement

Best Practices:

‐ Strong anti-harassment policy

‐ Train managers and employees

‐ Encourage reporting of inappropriate conduct

‐ Investigate every complaint

‐ Take prompt and appropriate remedial action

A New Mexico sports bar, Ojos Locos Sports Cantina, agreed to pay $700,000 to settle a case alleging that female employees were sexually harassed by managers and co-workers

Additionally, the bar’s locations must revise its policies barring sex discrimination and retaliation, and provide training to employees

All 28 members of the women’s national soccer team recently filed a proposed class action in California federal court alleging that the U.S. Soccer Federation is paying its world champion female athletes significantly less than the male players

A group of female attorneys filed a $200 million pregnancy and gender discrimination suit against Jones Day

Suit alleges that firm systematically underpaid women, devalued work of female associates, and pushed out lawyers who have children

Plaintiffs also allege that Jones Day operates with presumption that female lawyers who have kids “have chosen family over work”

Parker v. Reema Consulting Services, Inc., C.A. No. 18-1206 (4th Cir. Feb. 8, 2019)

Facts: ‐ Parker was employed for 18 months and had 6

promotions‐ After her latest promotion to warehouse manager,

Parker learned of rumor that she had sex with her male superior to get the promotion

‐ Male employees began to treat Parker with increased hostility and disrespect

Harassment

Facts: ‐ Highest-ranking warehouse manager, Moppins,

helped spread the rumor and told her he should have fired her when she started “huffing and puffing about this BS rumor”

‐ Ultimately, Moppins called Parker into a meeting to issue her two written warnings and fired her


• Holding:‐ Fourth Circuit reversed the lower court’s dismissal of

her hostile work environment and retaliation claims‐ Court held that rumor was rooted in longstanding

“negative stereotypes” about women in the workplace

‐ “We conclude that the allegations of the employee’s complaint in this case, where the employer is charged with participating in the circulation of the rumor and acting on it by sanctioning the employee, do implicate such liability”


Cortez v. Chipotle Mexican Grill, Inc., C.A. No. 17-04787 (C.D. Cal. Feb. 20, 2019)

Facts: ‐ Employee worked at Chipotle for 8 years ‐ She suffered a miscarriage at work after years

of trying to get pregnant‐ Employee fell into a deep depression and

sought mental health treatment‐ Manager gave her 12 weeks off, unpaid

FMLA

Pregnancy Discrimination

Facts: ‐ After her leave, Employee asked for additional

month off to sort out a final doctor’s appointment. Manager gave her one “courtesy week” off

‐ According to Chipotle, Employee “went behind [the Manager’s] back” and got her leave extended by a month after calling employee benefits center


‐ Employee never provided medical documentation describing her need for more time off and didn’t discuss her plan to RTW

‐ Manager informed Employee that they had to fill her position and refused to put Employee back on schedule, because she didn’t provide doctor’s note

‐ Employee was fired‐ Employee filed suit alleging pregnancy

and disability discrimination‐ Jury Verdict−Employer or Employee?


Facts:‐ Travis sought a promotion to a position vacated

by her supervisor ‐ Supervisor denied her the promotion and instead

promoted a male employee‐ Supervisor, who was known to have a history of

bias against women, told Travis he “was never going to” promote her to the supervisor position

Recent Supreme Court NewsTravis v. Exel Inc., C.A. No. 14-11007 (11th Cir. March 16, 2018)

Holding:‐ 11th Circuit upheld jury verdict in favor of EEOC

and Travis, but said that supervisor was not high enough on the employer’s corporate ladder for the whole company to be on the hook for punitive damages

‐ In her cert petition, Travis asked the Supr. Ct. to review standard by which liability for a manager’s discriminatory actions can be imputed onto employer

Travis v. Exel Inc., C.A. No. 14-11007 (11th Cir. March 16, 2018)

Grooming and Dress Policies New York City recently

warned businesses that banning hairstyles commonly worn by African Americans may run afoul of anti-discrimination laws

Specifically, employers may face liability under the New York City Human Rights Law if their policies subject African American employees to disparate treatment by banning certain hairstyles, like cornrows, Afros, or fades

Grooming and Dress Policies

Could other cities or states implement similar law?

Grooming and Dress Policies Four Common Mistakes

‐ Not Making Exceptions for Religion and Disabilities

‐ Imposing a Harsher Dress Code for Women

‐ Trying to Outlaw Union Gear

Transgender Protections - Update

EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., C.A. No. 16-2424 (6th Cir. 2018)

Altitude Express Inc. v. Zarda, 883 F.3d 100 (2dCir. 2018) ‐ Supreme Court “distributed for conference of

March 29, 2019” Several appellate courts have held that sexual

orientation and/or gender identity are protected under Title VII

Transgender ProtectionsWittmer v. Phillips 66 Co., C.A. No. 18-20251 (5th Cir. Feb. 6, 2019) Facts:

‐ Nicole Wittmer, a transgender woman, applied for Instrument and Reliability Engineer position

‐ Employer offered her the job, contingent on passing background checks

‐ HR found a discrepancy in her background check and rescinded the offer

‐ Whittmer claimed Employer refused to hire her because she was transgender

Transgender ProtectionsWittmer v. Phillips 66 Co., C.A. No. 18-20251 (5th Cir. Feb. 6, 2019) Holding:

‐ Affirmed summary judgment for Employer ‐ Whittmer failed to establish a prima facie

case of discrimination and present a genuine issue of material fact that the non-discriminatory reason offered by Employer was pretexual

‐ In his concurrance, Judge James Ho argued that Title VII does not forbid LGBTbias

ADATurcotte v. Comcast Cable Comm. Mgmt. LLC, C.A. No. 17-150 (D.

N.H. Feb. 14, 2019)

Facts:‐ Turcotte worked at Comcast as a Customer Account

Executive‐ She took FMLA due to work-related panic attacks and

bereavement‐ She sought an accommodation and accepted a new

position, Pre-Caller‐ Two years later, Comcast automated the

Pre-Caller function and transitioned Turcotte to a dispatch position and her performance suffered


N.H. Feb. 14, 2019)

Facts:‐ Turcotte told HR she could no longer field inbound

calls because of a medical condition and requested an accommodation

‐ Turcotte’s healthcare provider stated that she could do the essential functions of her job

‐ Comcast offered her dispatch job back to her with retraining

‐ Turcotte still suffered from panic attacks‐ Turcotte eventually took FMLA leave again


N.H. Feb. 14, 2019)

Facts:‐ Her new provider said that she suffered

from social phobia and could not perform the essential functions of her job

‐ Ultimately, Turcotte alleged that Comcast failed to accommodate her by prohibiting her from transferring to 8 other positions


N.H. Feb. 14, 2019)

Holding:‐ Granted summary judgment in favor of Comcast‐ Turcotte showed that she had a disability‐ However, Comcast did not fail to accommodate

Turcotte by declining to reassign her

Kleber v. CareFusion Corporation, C.A. No. 15-1994 (7th Cir. Jan. 23, 2019)

Facts: ‐ 58-year-old attorney filed a job application for a

general counsel job at a medical technology company

‐ The job advertisement sought someone with 3 to 7 years of legal experience

‐ Employer hired a 29 year old applicant

ADEA

Holding: ‐ Section 4(a)(2) of the ADEA covers only

discrimination against current employees‐ Outside job seekers can’t sue businesses for so-

called disparate impact claims alleging that they use practices that adversely affect older individuals

‐ Even though this case seems like a win for employers, experts say it could result in more state court suits where heftier damages are possible

Kleber v. CareFusion Corporation, C.A. No. 15-1994 (7th Cir. Jan. 23, 2019)

‐ On February 22, the EEOC issued a notice of proposed rulemaking

‐ The proposed changes

• update and amend procedural regulations to fully digitize the EEOC’scharge processing and records systems,

• clarify the meaning and significance of a “no cause” determination, and

• delegate the issuance of dismissals to lower-level EEOC employees

‐ There is a 60-day public review and comment period

‐ If the proposed rule becomes final, it could result in increased charge activity and subsequent litigation

EEO-1 Survey Stay Lifted and Pay Data Collection Re-Established

On March 4, the D.C. District Court issued a ruling vacating:‐ OMB’s stay of EEOC’s revised EEO-1 form; and‐ “Stay the Effectiveness of the EEO-1 Pay Data

Collection,” from 2017 Decision instantly reinstates EEO-1 pay data collection

requirements which were suspended in 2017 Race or ethnicity, gender, and job category (“Component

1”) Current deadline to submit EEO-1 data is May 31, 2019 National Women’s Law Center v. Office of Management and

Budget, C.A. No. 17-2458 (D.D.C. Mar. 4, 2019) EEOC proposes pay data, broken down by race, gender and

ethnicity by Sept. 30 (“Component 2”)

FMLA Leave Headlines New DOL Opinion Letters

DOL issued new opinion letters on March 14

Employers cannot let workers take paid sick time before tapping into their allotment of FMLA unpaid leave

‐ This contradicts a 2014 Ninth Circuit ruling that stated workers could take vacation days before using their FMLA time

FMLA Leave Headlines New DOL Opinion Letters

Employers are also prohibited from designating more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave

Additionally, Employees are not owed pay for community service they perform through an employer program, unless forced into volunteering

New HandbookGuidancefrom the NLRB

Require employees to keep employee handbooks confidential

Prohibit employees from using its email system for protected activities outside of working time when an employer allows employees to use its email system for work

Employers May Not:

Prohibit employees from disclosing “payroll”

Prohibit employees from using cell phones during all “working hours” (but the rule would be different if it referenced “working time”). An employer generally may, however, prohibit solicitation during working “time,” because the Board understands that term to exclude break time

Employers May Not:

Maintain a dress code policy prohibiting “items of apparel with inappropriate commercial advertising or insignia”

Require that “only designated spokespersons” provide information to the media

Employers May:

Independent Contractors

NLRB recently made it easer for employers to show their workers are independent contractors

Board held that franchisee van operators for SuperShuttle, who transport airplane passengers, were independent contractors and cannot unionize

SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338, Case 16-RC-010963 (NLRB Jan. 25, 2019)

Independent Contractors This ruling reverts back to the common law test

for determining independent contractor status The Common-Law Agency test looks at various

factors, including:– Extent of control by employer– Whether there is a distinct occupation or business– Kind of occupation– Skill required– Whether employer supplies tools/supplies– Length of employment, method of payment, – Whether work is part of employer’s regular business – Whether parties believe they are creating an agency

relationship– Whether the principal is or is not in business

U.S. DOL Proposes Regulations to Clarify Interpretation of Joint Employer Status under FLSA

On April 1, the U.S. DOL issued proposed regulations to clarify its interpretation of joint employer status under the FLSA

DOL proposes a four-factor test to determine whether an entity would be considered a “joint employer” under the FLSA

Potential joint employer would have to actually exercise the power to‐ Hire or fire the employee;‐ Supervise and control the employee’s work schedules or

conditions of employment;‐ Determine the employee’s rate and method of payment; and‐ Maintain the employee’s employment records

U.S. Department of Labor Proposes New Overtime Rule- Salary Threshold

On March 7, 2019, DOL announced its proposal for a new overtime rule

Proposal raises overtime salary threshold required to qualify for FLSA’s “white collar” exemption from $23,660 to $35,308 per year

‐ Weekly threshold salary level will increase from $455 to $679

Proposal also increases the total annual compensation requirement for “highly compensated employees” from $100,000 to $147,414 per year

U.S. Department of Labor Proposes New Overtime Rule- Salary Threshold

Additionally, DOL plans to propose updated salary levels every 4 years to update the salary threshold, which would require notice-and-comment rulemaking

If new rule is implemented, employers may use nondiscretionary bonuses, commissions and incentive payments that are paid annually or more frequently to satisfy up to 10% of the salary level

There will be a 60-day public comment period

‐ DOL will consider all timely comments in developing a final rule, which is estimated to take effect in January 2020

U.S. Department of Labor Proposes New Overtime Rule- Regular Rate of Pay for Overtime

On March 28, 2019, DOL announced a second possible rule change

For the first time in more than 50 years, proposal updates rules regarding the types of employee compensation that must be included when calculating an employee’s “regular rate” under FLSA


Benefits employers, because it excludes certain employee benefits paid by employers from the regular rate calculation such as:

the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;

payments for unused paid leave, including paid sick leave;

reimbursed expenses, even if not incurred “solely” for the employer’s benefit;


reimbursed travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System and that satisfy other regulatory requirements;

discretionary bonuses, by providing additional examples and clarifying that the label given a bonus does not determine whether it is discretionary;

benefit plans, including accident, unemployment, and legal services; and

tuition programs, such as reimbursement programs or repayment of educational debt.

Proposed rule is subject to a 60 day notice-and-comment period

Medical Marijuana

Facts: ‐ Employee obtained a medical marijuana card,

because she suffered from chronic pain and needed a sleep aid

‐ Later, Employer modified its alcohol and drug policy to prohibit employees from “reporting to work under the influence of drugs or alcohol, including medical marijuana”

Whitmire v. Wal-Mart Stores, Inc., C.A. No. 17-8108 (D. Ariz. Jan. 23, 2019)

Facts: ‐ After an injury at work, Employer directed Employee

to go to an urgent care clinic for a wrist examination and post-accident urine drug test

‐ The drug test was positive for marijuana and she was fired for being impaired at work

‐ Only proof Walmart provided that the employee was impaired was HR’s interpretation of drug test results


Holding: ‐ Court sua sponte granted summary judgment in favor

of Employee on the discrimination claim‐ HR did not constitute an expert


Marijuana in the Workplace - Delaware Medical marijuana: Delaware prohibits adverse

employment action against a cardholder employee unless the employer can prove that he or she is “impaired” in the workplace

Marijuana is currently decriminalized for possession of small amounts (HB 39 signed into law June 18, 2015)

Marijuana in the Workplace - Delaware In 2018, H.B. 110 was introduced:

‐ Eliminates any penalty for possessing 1 ounce or less of marijuana for individuals over the age of 21 but maintains the existing civil penalty for possession of 1 ounce or less for adults age 18 to 21

‐ Prohibits the use of marijuana in public, by drivers or passengers in vehicles, and prohibits the smoking of marijuana anywhere that smoking tobacco or e-cigarettes is not permitted

‐ Employers can prohibit the use of marijuana

Marijuana in the Workplace - Delaware Employer Concerns

‐ Drug testing programs• Blood test most accurate for testing presence of

marijuana‐ H.B. 110 would have prohibited an employer from

disciplining a marijuana user unless he or she is “under the influence”• So far, there is no guidance on “impairment” or

“under the influence” or how much leads to “intoxication”

Marijuana in the Workplace - Delaware Status:

‐ Defeated in the House on 6/27/18• 21 yes, 15 no, 5 not voting• Required 3/5 majority vote

‐ Current General Assembly is expected to introduce a similar bill

Paid Leave - Delaware Paid Sick Leave

‐ DE State Workers/School District Employees (H.B. 3 w/H.A. 4)• Requires that all full-time state employees and all employees

of school districts, charter schools and vocational schools shall be eligible for 12 weeks paid leave upon the birth/ adoption of a child 6 years old or younger, as along as they have been employed for at least one year

• Runs concurrently with FMLA and short term disability• Signed on 6/30/18, Effective April 1, 2019• Amendment established reporting requirements to allow

evaluation of the number of employees using the leave and impact on retention and recruitment

Minimum Wage (S.B. 170 w/S.A. 2 + H.B. 483) Signed into law on 7/1/18 Raises minimum wage to $9.25 an hour Requires Delaware employers to raise their minimum

wage to:‐ $8.75 an hour by January 1, 2019‐ $9.25 an hour (an additional $0.50) by October 1, 2019

If federal minimum wage surpasses DE’s new provisions, employers must meet new federal wage

Last year, the General Assembly passed H.B. 483, which created an alternative wage for training during the first 90 days of employment and for teens under the age of 18

Youth and training minimum wage is $0.50 less than the minimum wage

H.B. 47 seeks to eliminate both of the youth and training minimum wages

Shift-Worker Protection Study Group

Senate Concurrent Resolution No. 73

‐ Passed on 6/28/18

‐ Resolution creates a Shift-Worker Protection Study Group to identify best practices to reduce the unpredictability of shift-worker schedules

‐ The study group has 13 members (including public officials, union employee representatives, and various associations)


Report issued on January 25, 2019

‐ Findings:

• Positive trend in Delaware regarding shift work as fewer total complaints are being reported across the board and complaints in the study group’s focused industries remained at low percentages



‐ Best Practices:

• Advanced Notice

• Employee Participating in Scheduling

• Good faith estimate and effective communication



‐ Recommendations:

• DART look into ways of expanding public transportation options past usual work hours to accommodate shift workers with irregular shifts.

• DOL work with the business community to continue training and education surrounding best practices in shift working to help better promote public-private partnerships



‐ Recommendations:

• DOL explore options to improve data collection across different areas of employment

• DOL continue to have an open dialogue with businesses in hospitality and retail industries

• Delaware continue its efforts in combatting the opioid epidemic

Delaware Equal Rights Amendment

Recently, the DE General Assembly passed H.B. 1, amending Article I of the Delaware Constitution to provide equal rights on the basis of sex

‐ “Equality of rights under the law shall not be denied or abridged on account of sex”


H.B. 1 also contained a statement of purpose, clarifying that the amendment only applies to the state and its political subdivisions, and does not apply to private entities

‐ Further, while the state may not impair a person’s opportunity to exercise his or her rights, the state is not required to fund the exercise of those rights

‐ Finally, there are limited circumstances where the state may support permissible single-sex services and programming, such as for privacy concerns


This was the second and final vote necessary in order for the bill to become law

Effective immediately, governor’s approval was not required

Signed into law on August 30, 2018 Broadens protections against sexual harassment

for all workers Applies to all public and private employers with 4

or more employees

Sexual Harassment in the Workplace - H.S. 1 to H.B. 360 as amended by H.A. 2

Definition of Sexual Harassment

Unlawful employment practice when employee is subjected to:‐ Conduct that includes unwelcome sexual advances‐ Requests for sexual favors, or‐ Other verbal or physical conduct of a sexual nature when:

• submission to such conduct is made explicitly/implicitly a term of employment;

• submission to or rejection of such conduct is used as basis for employment decisions; or

• such conduct unreasonably interferes with employee’s work performance or creates intimidating, hostile, or offensive work environment


Employer is responsible for sexual harassment of an employee when:‐ supervisor’s sexual harassment results in negative

employment action; ‐ employer knew or should have known of sexual harassment

and failed to take appropriate corrective measures; or‐ negative employment action is

taken against employee in retaliation for employee filing discrimination charge, participating in sexual harassment investigation, or testifying in any proceeding about sexual harassment of employee


Employers have an affirmative defense when they can demonstrate efforts to promptly prevent and correct any sexual harassment and can prove that employee unreasonably failed to take advantage of those efforts

This bill:‐ Protects private and public employees, unpaid interns,

applicants, joint employees, and apprentices‐ Requires the DOL to create an

information sheet to distribute to employees

‐ Requires employers with 50 or more employees to provide INTERACTIVE sexual harassment training to employees and supervisors

Delaware DOL Posters

In 2018, Delaware DOL updated its labor law poster and sexual harassment notice

Delaware DOL Posters

Delaware WARN Act Delaware Workers

Adjustment and Retraining Notification Act (H.B. 409 w/H.A. 2)

Signed into law on July 11, 2018 and went into effect in January 2019

Applies to employers with 100+ employees, excluding part-time employees or employers with 100+ employees that collectively worked at least 2,000 hours per week

Delaware WARN Act Requires certain employers to provide 60 days’ advance written notice

prior to:‐ Employment loss due to either “mass layoff” or “plant closing” (>

50 impacted employees), or ‐ Relocation of all or substantially all of operations to another

location 50+ miles away (no min. req. of impacted employees, provided employer has requisite number of employees to be eligible)

‐ Such advanced notice must be provided to:

• Affected employees and their representatives

• Department of Labor, Division of Employment and Training (“DET”)

• Workforce Development Board

Delaware WARN Act Notice to employees must provide:

‐ All elements required by federal WARN act

‐ Certain information regarding all workers employer is planning to release

‐ General information regarding severance packages, job relocation opportunities, retirement options, and any payout employer plans to offer dislocated worker

QUESTIONS?

This presentation and the material contained herein are provided as general information and should not be construed as legal advice on any specific matter or as creating an attorney-client relationship. Before relying on general legal information or deciding on legal action, request a consultation or information from a Richards, Layton & Finger attorney on specific legal needs.

Copyright © 2014 Richards, Layton & Finger, P.A. All rights reserved.

Attorney302-651-7689

302-498-7689

Jennifer C. JauffretAttorney 302-651-568

302-498-7568

[email protected]

Lori A. Brewington

[email protected]

88

Delaware Insight

Our firm leads the Delaware bar in several key areas and offers presentations in the following areas which we would be happy to make available to your colleagues.

Alternative Entities

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