POLITICS

Joe Biden as potential VP ― good or bad news for Delaware employers?

Delaware has been all aflutter over the last several weeks following the announcement of its own Senator Joe Biden as the Democratic nominee for Vice President. If you've spent even a little time in Delaware, you've probably met the Senator or feel some close connection to him. But what does his possible ascension to the White House mean for Delaware employers? Read on to find out.

Family matters

Although Biden, who was first elected to the U.S. Senate in 1972, is perhaps best known for his focus on foreign policy, he is no stranger to important employment legislation. In the 1990s, he supported the Family and Medical Leave Act, which guarantees workers up to 12 weeks of unpaid leave for a serious illness or to care for a family member. He also sponsored the Violence Against Women Act, legislation he has long cited as one of his proudest accomplishments.

His personal story further demonstrates his commitment to matters affecting the family. Following the tragic death of his wife and infant daughter in a car accident in the 1970s, he made the decision to commute home to Wilmington every night so he could be with his family. The fact that he never established a Washington, D.C., residence solidified his connection to Delaware and the residents' feeling that he's "one of us."

Friend or foe?

It should come as no surprise that Biden has taken the employees' side on several important pieces of pending employment legislation. He supports the Paycheck Fairness Act (Senate Bill (SB) 766), which is intended to prevent pay discrimination by increasing penalties against employers that use discriminatory pay practices. His support for the Fair Pay Restoration Act (SB 1843) should also come as no surprise. The Act seeks to address the U.S. Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co.

In the Ledbetter decision, the Supreme Court held that employees cannot challenge ongoing pay discrimination if the employer's original discrimination decision occurred more than 180 days before the most recent discrimination (300 days under Delaware's statute), even when an employee continues to receive paychecks that have been discriminatorily reduced for some time.

Under the Fair Pay Restoration Act, an unlawful discriminatory act is committed when a discretionary compensation decision is adopted, when an employee becomes subject to the decision, or when an individual is affected by the application of a decision, including each time compensation is paid. If the Act is passed, employers could be exposed to lawsuits based on decisions made decades ago.

Biden also supports amendments to the Americans with Disabilities Act (ADA) ― specifically SB 3406, which is currently awaiting the President's signature. The Act promotes changes to the ADA that purport to override several U.S. Supreme Court decisions that apply a strict standard for individuals to show that they're disabled or regarded as disabled under the ADA.

Barack Obama's platform includes appointing judges who respect laws designed to protect disabled individuals, increasing funding for enforcement of those laws, and promoting the Genetic Information Nondiscrimination Act (GINA). As we've reported in the past (see "Your mama's so . . . Is Congress stealing punchline in discrimination law?" April 2007), Delaware has long protected against discrimination on the basis of genetic information, so the recent passage of GINA doesn't mean anything new for Delaware employers.

Finally, Biden is a cosponsor of the Employee Free Choice Act (SB 1041). If passed, the Act would (1) allow employees to form unions when a majority of workers sign union authorization cards, (2) establish mediation and binding arbitration when employers and workers are unable to agree on an initial contract, and (3) strengthen penalties for companies that coerce or intimidate workers.

Bank on Biden?

At the same time Biden has taken "proemployee" stances on employment legislation, he has put his full weight behind and achieved great success on behalf of at least two significant segments of Delaware employers: banks and the legal system. He supported the 2005 Bankruptcy Reform Act, which made it harder for consumers to rid themselves of debt but benefited banks such as MBNA.

As part of the 2005 law, the U.S. Bankruptcy Court for the District of Delaware got four new judges. Once the new judges were assigned, Delaware regained its top position for bankruptcy filings, with nearly 80 percent of companies filing for bankruptcy protection in 2007. Biden has thus endeared himself to Delaware's legal employers by ensuring the state's prominence in the bankruptcy field.

Joe, we hardly knew ye

So what will it mean if Biden moves from his leadership position in the U.S. Senate to one in the executive office? As Vice President, he would also become the president of the Senate. As president of the Senate, his primary duty is casting his vote in the event of a deadlock. However, his constituency has changed from Delaware to the entire nation. Thus, we might expect him to use his vote to support Obama's platform, not Delaware's interests.

Obama has strongly criticized the Bankruptcy Reform Act and has taken aim at the same financial services industries Biden has supported. Even if Biden were inclined to support Delaware's interests, there's a strong convention within the U.S. Senate that the Vice President shouldn't use his position as president of the Senate to influence the passage of legislation or act in a partisan manner ― except in the case of breaking tie votes. For those reasons, Biden is unlikely to use his position to advocate for Delaware employers as he's done in the past.

Bottom line

Although most Delawareans are excited about the prospect of Joe Biden in the prominent role of Vice President, it's not necessarily good news for Delaware employers. Biden has made it clear that he wouldn't have accepted the nomination without assurances of a meaningful role as VP. And some observers believe that because of his long history in Delaware, he'll continue to represent Delaware interests. However, given that he will no longer officially represent Delawareans, and that Obama has taken a strong stance against the financial services industry, Biden's move to the White House is unlikely to benefit Delaware employers.

Copyright 2008 M. Lee Smith Publishers LLC

DELAWARE EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in Delaware employment law. Questions about individual problems should be addressed to the employment law attorney of your choice.