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New Delaware Legislation Impacting Employers

October 12, 2016

Delaware has enacted new legislation providing employees with additional protections from discrimination.  In our July Update, we discussed four new laws impacting employers.  Governor Markell has signed two additional laws that impact employers, and we have highlighted key components of these laws in the discussion below.

Employees Now Have 300 Days to File a Discrimination Charge

The Delaware Department of Labor’s Office of Anti-Discrimination (the DDOL) has the exclusive jurisdiction to investigate employees’ state law claims of discrimination or retaliation against their employer.  Prior to the DDOL’s investigation of a claim, employees or applicants for employment must first file a charge with the DDOL that sets forth, in writing, a concise statement of facts, verified and signed by the employee or applicant.  Signed into law by Governor Markell, Senate Bill No. 214 increases the amount of time provided to an employee to file a charge of discrimination with the DDOL from 120 days to 300 days, making Delaware’s statute of limitations consistent with the statute of limitations under federal discrimination law. 

As a practical matter, Senate Bill No. 214 is not likely to materially increase the number of claims filed with the DDOL by employees and applicants against employers.  Employees and applicants already have the ability to file a charge of discrimination with the DDOL within 300 days, as long as they simultaneously file their charge with the EEOC under federal law, which is accomplished by simply checking a box on the charge form.  In reality, most employees automatically file charges with both the EEOC and the DDOL and, as a result, already have 300 days to bring their claim against their employer.  The employees who will benefit from this new law are those working for employers with under 15 employees, as they are not protected by federal anti-discrimination laws and only have 120 days to file a charge of discrimination.

Delaware Workers’ Compensation Statute Is the Exclusive Remedy for Injuries Arising out of Employment

Signed into law by Governor Markell, House Bill No. 308 clarifies that even though an employee is bound by Delaware’s workers’ compensation law with regard to compensation for personal injury or death arising in the course of employment, regardless of the question of negligence, the injured employee can still obtain or retain uninsured and underinsured motorists benefits and personal injury protection.  

House Bill No. 308 clarifies the issue raised in Simpson v. State, 2016 WL 425010 (Del. Super. Jan. 28, 2016), in which the plaintiff employee sought underinsured motorist benefits from her employer, the State of Delaware, and her personal insurance carrier for injuries sustained in the course of employment.  Simpson was injured in an accident with an underinsured motorist while driving a car owned by the state.  Simpson received workers’ compensation benefits for her injuries, but she wished to collect benefits from her personal insurance against underinsured motorists as well as the State of Delaware, which insures its employees against underinsured motorists.  Simpson’s insurance carrier informed her that she was prevented from accessing such state benefits until she had exhausted the state’s coverage as the primary policy on the vehicle involved in the accident.  The state claimed Simpson was not eligible for these benefits because she had already collected workers’ compensation benefits as her exclusive remedy.

The Delaware Code already allows employees to collect both workers’ compensation and their own insurance policy benefits.  However, in this case, the workers’ compensation insurer and the underinsured motorist insurer were the same entity, the State of Delaware.  The court, believing that an individual who received both types of benefits would be compensated twice for the same injury, suggested that the legislature introduce clarifying language if it wanted to support the position that the phrase “exclusion of all rights and remedies” did not apply to other insurance provided by the employer.  Otherwise, the state in the Simpson case was not required to pay the plaintiff anything beyond the workers’ compensation benefits she had already received.  As a result of this decision, the General Assembly acted to ensure that employees, including state employees, had the protection of workers’ compensation benefits as well as motorist and personal insurance benefits, if applicable.

Senate Bill No. 214 and House Bill No. 308 are currently in effect, and employers should ensure that management is educated and trained on these new laws.  If you have any questions, please contact us.

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