State & Local Employment Law Developments: Q2 2022

Alabama

Leave Benefits for Adoption: Alabama’s Adoption Promotion Act (the Act) takes effect on July 1, 2022 and requires employers with 50 or more employees to provide eligible employees with up to 12 weeks of unpaid family leave for the birth or adoption of a child. The Act also mandates that employers who provide paid leave benefits and additional leave considerations for the birth of a child provide similar benefits for adoption.

Marketplace Contractors: Effective July 1, 2022, marketplace contractors are not considered employees under workers’ compensation and unemployment insurance laws (if certain conditions are met). Marketplace contractors are persons/entities who enter into agreements with marketplace platforms to be connected with third parties seeking services — such as drivers for Uber and Lyft.

Arizona

Expansion of Employer Definition under Sexual Harassment Discrimination: Arizona enacted a change to the sexual harassment provisions of existing employment discrimination law, so that the law applies to any employers or their agents who commit sexual harassment or retaliate against someone for reporting it.

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Delaware Chancery Court Declines to Blue-Pencil Overly Broad Noncompete Agreement; Casts Doubt on Choice of Law Provisions

A recent Delaware Chancery Court opinion has elucidated Delaware’s approach to judicially modifying, or “blue-penciling,” overly broad noncompete agreements and deferring to parties’ choice of law provisions. The case, FP UC Holdings, LLC, et al. v. James W. Hamilton, Jr., et al., C.A. No. 2019-1029-JRS (Del Ch. Mar. 27, 2020), highlights the importance of drafting well-tailored restrictive covenants, and shows that even in Delaware – where employers often have been reassured by the safe harbor of courts’ relative willingness to blue-pencil problematic agreements and apply Delaware law to fact patterns that have developed in other states – employers must make careful drafting and choice of law decisions. It also emphasizes that if an employer’s intent is to litigate in Delaware, the employer should do so from the beginning, without acquiescing to another court’s jurisdiction.

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Delaware Joins Growing List of States Passing Anti-Harassment Legislation

Delaware is the latest state to mandate that employers provide anti-harassment training to employees. Delaware joins New York, California, Connecticut, and Maine as states that require employers to provide such training. The new law amends the Delaware Discrimination in Employment Act (“DDEA”), and takes effect on January 1, 2019.

While the DDEA already prohibited discrimination based on sex, the recent amendments are devoted to prevention of sexual harassment in the workplace. The new law amends the DDEA to define sexual harassment and provides the same process used for Title VII violations with regard to exhaustion of administrative remedies prior to filing a private lawsuit.

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