Labor & Employment

This Act adds minor league baseball players to the existing exemptions from state minimum wage and recordkeeping standards. After minor league players formed a union in 2022, minor league players represented by the Major League Baseball Players Association (MLBPA) signed their first collective bargaining agreement with Major League Baseball (MLB) in 2023. This exemption actualizes that existing collective bargaining agreement between the players union and MLB.

Under current Delaware law, if a labor dispute constitutes a lockout, employees who meet all other eligibility requirements qualify for unemployment benefits from the date they file their claim. However, if a labor dispute does not constitute a lockout, employees do not qualify for (i.e. are disqualified from receiving) unemployment benefits. This Act changes the law to allow an employee who is subject to a labor dispute, other than a lockout, to collect unemployment benefits after a 2-week waiting period, if the employee meets all the eligibility requirements for unemployment benefits, including being able and available for work and completing weekly job requirements. This Act provides that the 2-week waiting period established by this Act is waived if one or both of the following apply: (1) The labor dispute is caused by the failure or refusal of the employer to comply with an agreement or contract between the employer and the individual, including a collective bargaining agreement with a union representing the individual, or a State or federal law pertaining to hours, wages, or other conditions of work. (2) The employer hires a permanent replacement worker for the individual's position. The Department of Labor may impose a penalty on an employer who fraudulently certifies the ability of an employee to return to the employee’s prior position on conclusion of the labor dispute. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

Chapter 35 of Title 19 prohibits an employer from improperly classifying an individual who is an employee as an independent contractor. Not only is this improper classification unfair to employees because it violates state and federal laws related to income tax withholding, unemployment insurance, wage laws, and workers’ compensation, it is also unfair to contractors who comply with Chapter 35 and these other employment laws. When employers who violate Chapter 35 are subcontractors who have not registered as contractors as required under Chapter 36 of Title 19, the Department of Labor (Department) has no recourse for enforcing compliance with Chapter 35. This Act makes a general contractor responsible for a subcontractor’s compliance with Chapter 35 by making the general contractor jointly and severally liable for restitution and penalties assessed against the subcontractor. This Act also allows the Department to deny, suspend, or revoke the certificate of registration of a contractor who contracts with a subcontractor who has not registered on any project. In addition, Section 3 of this Act makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

Pay range transparency empowers job applicants with crucial information to negotiate salaries and make informed career decisions. It also encourages businesses to proactively review compensation practices, address unjustified pay disparities, and strengthen their ability to attract and retain top talent. This Act requires that employers include salary or wage range information and a general description of benefits in all postings for job opportunities, and ensures that applicants have access to that information prior to any offer or discussion of compensation. Employers are required to maintain records relating to job descriptions and wage rates for employees for at least 3 years. The Department of Labor may bring an administrative action to enforce the pay transparency provision. This Act does not apply to employers with 25 or fewer employees. The Act takes effect 2 years after its enactment. House Substitute No. 2 to House Bill No. 105 differs from House Substitute No. 1 to House Bill No. 105 as follows: It provides that where a job opportunity is covered by a collective bargaining agreement (CBA), the compensation or compensation range disclosed in a notification should be one that has been agreed upon for disclosure in the CBA itself. It provides that the pay transparency provision becomes applicable to postings for opportunities covered by a CBA only when the CBA is amended, modified, or renewed after the effective date of the Act, to give the parties opportunity to consider the disclosed range in the course of negotiating a CBA. It provides that an employer is not liable for job postings that are digitally replicated and published without the employer’s consent. It specifies that the pay transparency provisions in this section apply to Delaware-based jobs or non-international remote positions offered by an employer based in Delaware. It makes the record preservation requirement consistent with § 907 of Title 19.

The language of this Act is identical to Senate Bill No. 25 of the 153rd General Assembly. The only difference between this Act and Senate Bill No. 25 is the title, which has been changed to clarify that the language includes the Public Employment Relations Act of Title 19. This Act allows an employee organization to file a petition with the Board to become the exclusive representative of an appropriate bargaining unit for the purpose of collective bargaining. In the event an employee organization provides over 50% of the employees’ approval, through their authorized signatures, then the Board may not order an election but must certify the employee organization. This Act also makes technical corrections to confirm existing law to the standards of the Delaware Legislative Drafting Manual.

This Act aligns Delaware’s non-discrimination laws. Delaware has several broad laws that prohibit discrimination in public accommodations, housing, employment, and insurance but also has many narrow non-discrimination laws that apply to a specific entity, or type of entity, even though a broad law also prohibits discrimination by that entity. This Act aligns the narrower non-discrimination laws with the applicable broad non-discrimination law by also prohibiting discrimination on any other basis protected under the applicable broad law. Adding the reference to the chapter for the applicable broad law includes all protected classes, definitions, and actions that are currently protected under the broad law or that are added to the broad law in the future. This Act does not make any substantive changes to current non-discrimination laws but is necessary because most of the narrow laws do not contain all of the same protected classes as the broad law that also applies or do not include the definitions of classes that are also in the broad law. These inconsistencies could lead to a misunderstanding by someone reading only an incomplete narrow law, and eventually litigation, about what constitutes illegal discrimination by an entity covered by both the narrow and broad laws. For example: • The non-discrimination provision for the Board of Podiatry under § 506(c) of Title 24 does not prohibit discrimination on the basis of the following classes, for which discrimination is prohibited under Chapter 45 of Title 6: age, marital status, religion, sexual orientation, gender identity, or disability. • Only 4 of the 42 chapters in Title 24 establishing professional licensing boards contain a non-discrimination provision, but this does not mean that the other 38 licensing boards are free to discriminate. Aligning these 4 non-discrimination provisions with Chapter 45 of Title 6 clarifies that Chapter 45 of Title 6 also applies to the 38 professional boards that do not have specific non-discrimination provisions. • For merit system state employees, § 5953 of Title 29 only prohibits discrimination based on race, religion, sex, sexual orientation, gender identity, and housing status but in addition to these classes, § 711 of Title 19 prohibits any employer in this State, including the State, from discriminating in employment based on age, marital status, color, national origin, or disability. • Most of the narrower non-discrimination laws do not include all of the definitions in the applicable broad law. Adding the reference to the applicable broad law incorporates those definitions into the narrower law. For example: 1. All of Delaware’s non-discrimination laws prohibit discrimination based on race and all of the broad non-discrimination laws define “race” as including traits historically associated with race, including hair texture and protective hairstyle. However, very few of the narrower non-discrimination laws include this definition of “race”. 2. Several narrow non-discrimination laws prohibit discrimination on the basis of sexual orientation and gender identity but do not include or specifically reference the definitions of “sexual orientation” or “gender identity” in the applicable broad non-discrimination law. Specifically, this Act revises the following narrow non-discrimination laws to align with the applicable broad non-discrimination law, as follows: To align with the Delaware Equal Accommodations Law, Chapter 45 of Title 6, which prohibits discrimination on the basis of race, age, marital status, creed, religion, color, sex, disability, sexual orientation, gender identity, or national origin by establishments that offer goods, services, facilities, privileges, advantages, or accommodations to the general public, including government agencies: • Transportation networks, § 1917 of Title 2. • Parkland owned by civic associations, § 8110 of Title 9. • Jury service, § 4502 of Title 10. • Private business and trade schools, § 8516 of Title 14. • Delaware Veterans Memorial Cemetery, § 1204 of Title 20. • Board of Podiatry, § 506 of Title 24. • Board of Chiropractic, § 706 of Title 24. • The Board of Medical Licensure & Discipline, § 1713 of Title 24. • Board of Funeral Services, § 3102 of Title 24. To align with the Delaware Fair Housing Act, Chapter 46 of Title 6, which prohibits discrimination on the basis of race, color, national origin, religion, creed, sex, marital status, familial status, source of income, age, sexual orientation, gender identity, disability, or housing status in housing offered for sale, rent, or exchange: • Section 4601 of Title 6, because gender identity is missing from the list of classes protected in the purpose section of Chapter 46 even though gender identity is protected under all of the substantive provisions under that chapter. • Recording of deeds, § 9605 of Title 9. • Residential Landlord-Tenant Code, § 5116 of Title 25. To align with Chapter 46 of Title 6, Subsections (a), (b), and (d) are revised to use the term "familial status" because "familial status" is defined in the Delaware Fair Housing Act to mean a household with children. • The definition of “comparable housing” in § 7102 of Title 25 for the conversion of manufactured home communities. To align with the unlawful employment practices in employment under Chapter 7 of Title 19, which prohibits discrimination in employment on the basis of race, marital status, genetic information, color, age, religion, sex including pregnancy, sexual orientation, gender identity, national origin, housing status, disability, status as a victim of domestic violence, a sexual offense, or stalking, or a reproductive health decision: • New Castle County government, § 1183 of Title 9. • Training and apprenticeship programs, § 204 of Title 19. • Merit System of Personnel Administration, § 5953 of Title 29. • Large public works contracts, § 6962 of Title 29. This Act also clarifies that the definition of “place of public accommodation” in § 4502(19) of Title 6 includes entities and services licensed or regulated under Title 5, Banking. This Act does not make any changes to Title 18 for insurance. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

This Act does the following: (1) Updates the Workers’ Compensation Act to reflect current practices and technology including enabling workers’ compensations payments to be by made by direct deposit. (2) Allows the Office of Workers’ Compensation to increase the reimbursement percentage of activities from 66.6% to 100%. This ensures that the inspection and safety functions of the Division of Industrial Affairs are fully covered as they are partially covered right now. Insurance carriers pay the assessment imposed by this section. The annual budget process provides caps or spend authorities on these appropriated special funds on an annual basis. This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.