Articles About Delaware Labor and Employment Law.

Beginning on June 15, 2020, at 8:00 a.m., Delaware will move into the second phase of its three-phase reopening plan following the recent lifting of the state’s stay-at-home order. In Phase 2, retail establishments, restaurants, and other businesses that were previously permitted to reopen at 30 percent of fire occupancy

On August 26, 2019, the Delaware Chancery Court invalidated a California employee’s customer and employee non-solicitation covenant on the grounds that it violated California law. In doing so, the Court rejected the plaintiff company’s attempt to override California law by including a Delaware choice of law provision in the underlying

On August 26, 2019, the Delaware Chancery Court invalidated a California employee’s customer and employee non-solicitation covenant on the grounds that it violated California law. In doing so, the Court rejected the plaintiff company’s attempt to override California law by including a Delaware choice of law provision in the underlying agreement.

The Superior Court of Delaware recently issued a decision confirming the state’s protections for medical marijuana users. On December 17, 2018, in Chance v. Kraft Heinz Foods Co., the court held that the federal Controlled Substances Act (CSA), which prohibits the use and sale of marijuana, does not preempt Delaware’s Medical Marijuana Act (DMMA). While the Chance decision is not unique—both Connecticut1 and Rhode Island2 have recently issued decisions that reached the same conclusion—the decision is noteworthy as Delaware is one of the few states that expressly prohibits the discipline or discharge of employees who use medical marijuana outside of work and subsequently test positive on a job-related drug test absent evidence of on-duty use/possession or impairment. The language of the DMMA was therefore arguably more susceptible to a challenge that a conflict existed between state and federal law. The decision is also the first to imply a private cause of action under DMMA’s employment anti-discrimination provision.

A Delaware state court has held that a medical marijuana user may proceed with a lawsuit against his former employer after his employment was terminated due to a positive drug test result for marijuana. Chance v. Kraft Heinz Foods Co., C.A. No. K18C-01-056 NEP (Del. Super. Ct. Dec. 17, 2018).

When implementing restrictive covenant agreements in their workforces, companies often grapple with how best to handle the wide variation in the law from one state to the other. One solution is to include a choice of law provision that calls for all agreements to be construed under the laws of a single state.

Beginning January 7, 2019, Delaware law will require certain businesses doing business in the state to provide at least 60 days’ advance notice of mass layoffs, plant closings, or relocations.

A new Delaware law specifically addresses the prohibition against sexual harassment under the Delaware Discrimination in Employment Act (DDEA), sets an affirmative defense for employers, imposes mandatory notice distribution on employers with at least four employees within the state, and provides anti-sexual harassment training requirements for employers with at least 50 employees in the state.

On August 29, 2018, Delaware Governor John Carney signed into law a bill (SB 360) addressing sexual harassment in the workplace. The new law broadly defines, and prohibits, sexual harassment and retaliation. The statute obligates employers (with 4 or more employees) to issue an information sheet on sexual harassment. It also requires larger employers (with 50 or more employees) to provide sexual harassment training for all employees and supervisors, making Delaware the fifth state to statutorily mandate sexual harassment training. The Delaware law will become effective on January 1, 2019.

With another Labor Day approaching, employers are once again thinking about the many tasks that need to be completed before year end. Let’s add one more – remembering to add Delaware to the list of jurisdictions prohibiting employers from asking applicants’ compensation history pre-offer. The synopsis of the law states that when an employer affirmatively asks about pay history, it perpetuates gender disparities from one job to another.

Delaware joins the growing number of states that recently amended their data breach notification law. On August 17th, Delaware amended its data breach notification law with House Bill 180, the first significant change since 2005, effective 240 days after enactment (on or about April 14, 2018).

On June 14, 2017, Delaware Governor John Carney signed a new law to address the pay gap between men and women by prohibiting prospective employers from asking job applicants about their salary history. Delaware’s law, which garnered significant bipartisan support, is based on the same rationale used for similar measures enacted in Oregon, Massachusetts, New York City, and Philadelphia: pay inequities are perpetuated when current pay is based on past employer decisions that could have been discriminatory based on gender. The new law aims to reduce persistent pay gaps between the genders by prohibiting inquiry into a job applicant’s compensation history, with the hopes of encouraging employers to proactively assess pay based on other factors, such as merit, experience, and the market.

The importance of drafting non-competition and other restrictive covenant agreements narrowly in terms of geography, duration and scope of activities to reasonably meet the employer’s legitimate business interests should not be underestimated. A recent decision from the Southern District of Texas illustrates the importance of narrowly crafting post-employment restrictions.

Upon a showing of good cause, a stockholder could overcome a corporation’s attorney-client privilege when suing the corporation for acting contrary to the stockholders’ interests, the Delaware Supreme Court has ruled. Wal-Mart Stores, Inc. v. Indiana Electrical Workers Pension Trust Fund IBEW, No. 614, 2013 (July 23, 2014).

Delaware Governor Jack A. Markell (D) has signed into law the Pregnant Workers Fairness Act, S.B. 212, extending workplace protections afforded to pregnant employees, and employees who have recently given birth, to include requiring employers provide reasonable accommodations to such employees.