Articles Discussing General Topics In Delaware Labor & Employment Law.

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.

Delaware’s first minimum wage hike since 2009 will go into effect on June 1, 2014, under legislation signed by Governor Jack Markell. The first of two increases becomes effective June 1, 2014, when the minimum wage will go up 50 cents to $7.75 per hour. One year later, on June 1, 2015, the rate will increase another 50 cents to $8.25 per hour.

Delaware Governor Jack Markell has signed the Gender Identity Nondiscrimination Act, making Delaware the 17th state to enact law prohibiting gender identity discrimination. The Act adds gender identity to the list of protected classes under Delaware law prohibiting discrimination and hate crimes. Effective immediately, the law (S.B. 97) bans discrimination on the basis of gender identity in employment, places of public accommodation, housing and public works contracting. The law also provides for increased penalties under the hates crimes law against a person who intentionally selects the victim of a crime because of the victim’s gender identity.