Information and guidance on every phase of employment
Q. Does Delaware have any laws requiring employers to train employees on their harassment policy?
A. Yes. On August 29, 2018, Delaware enacted a sexual harassment law aimed to broaden protections for workers against sexual harassment. Among other things, the law requires employers to provide sexual harassment prevention training to all employees, with supervisors receiving additional training. The law also instructs employers as to the content of the training.
Q: My company is headquartered in Massachusetts. Does the new Massachusetts law on non-competes change how I structure non-compete agreements with employees?
A: Massachusetts recently enacted a new law outlining the requirements for valid employee non-competition agreements. The law will go into effect for non-competition agreements entered into on October 1, 2018 and later. Agreements signed prior to the new law will remain valid.
Q: Can an employer discriminate against members of the LGBT community on the basis of the employer’s religious beliefs?
A. On June 4, 2018, the United States Supreme Court ruled in favor of a bakery that refused to bake a wedding cake ordered by a same sex couple because of the baker’s religious beliefs. The baker argued that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed, and that it would also violate his right to the free exercise of religion. The opinion was eagerly anticipated, as it was expected that the Court would provide some clarity on the question of whether an LGBT individual’s right to be protected from discrimination trumps an employer’s or business owner’s exercise of its sincerely-held religious belief. The Court failed to address the substantive First Amendment issue, however, and instead focused its decision on the Colorado Civil Rights Commission’s failure to remain a neutral decision-maker.
Q. How do I help my company avoid unconscious bias in the workplace?
A. A bias is a prejudice in favor of or against one thing, person, or group as compared with another. We all have biases. Biases can be based on any number of stereotypes, whether it is race, gender, age, national origin, religion, etc. In a perfect world, individuals would not act on their biases, however, our world is far from perfect and employees can and do bring their biases to work.
Q. Have there been any recent changes to the overtime pay rules that we have to be concerned about?
A. Currently, under both federal and Pennsylvania law, to be exempt from overtime under the “white collar exemptions,” an employee must meet both the salary basis test and the duties test, meaning they must make more than a certain amount weekly and perform certain identified duties. The salary threshold has been stagnant for decades. In 2016, however, the Department of Labor (DOL) announced new regulations that would increase the salary threshold from $23,660 annually ($455 per week) to $47,476 (or $913 per week). The regulations however, fell short of becoming law when a federal court in Texas enjoined the DOL from implementing it, only weeks before it was set to go into effect. Today, the federal law remains in limbo, with speculation that new regulations will be issued raising the salary test to less than the previously anticipated increase, although the exact amount remains unclear.
Q. Do you have any tips on how to ensure that our company holiday party does not lead to a new year liability?
A. As the year comes to a close, many employers often celebrate with a holiday party as a way to thank employees for their contributions. The holiday party is meant to build comradery with co-workers, and provides an opportunity for all employees, management and non-management, to “let their hair down”. A festive occasion however, can turn into a legal nightmare if employers fail to set expectations. Everyone has heard stories of an employee (or two) having too much to drink at the holiday party and making an inappropriate joke, getting “touchy” with a co-worker, or getting into a car accident. By following a few simple rules, employers can attempt to prevent such legal disasters. Below are some suggestions to help ensure that your holiday party does not end up as the focus of a lawsuit.
Q. An employee has requested that the company give her an accommodation due to a religious practice I have never heard of. Do we have to comply with this request?
A. Title VII of the Civil Rights Act of 1964 protects employees and applicants against religious discrimination and requires that an employer accommodate an individual’s religious practices unless doing so would create an undue hardship on the employer. Typically, employers are asked to accommodate more mainstream religions by way of scheduling accommodations or dress. However, lesser known religious practices also must be accommodated if the employee can establish a sincerely-held belief in the religious practice and that the accommodation would not impose an undue hardship on the company.
Q: How long does an employer have to accommodate an employee’s disability in the form of a leave of absence?
A: The law in most jurisdictions is unclear. In fact, in most jurisdictions, including Pennsylvania, New Jersey, and New York, there is no bright line rule as to the length of leave time that is reasonable under the ADA. Typically courts look at the surrounding circumstances to determine whether the amount of time off is a “reasonable accommodation” and have held that leaves longer than three months were required in some circumstances as a reasonable accommodation.
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