| Synopsis: This act is based on the Model Employment Termination Act promulgated by the National Conference of Commissioners on Uniform State Laws in 1991. The basic philosophy of this act is one of compromise and balancing the competing interests of employers and employees. Thus, although covered employees are granted an expanded substantive right to “good cause” protections against termination, available remedies are limited to reinstatement, with or without backpay, and severance pay when reinstatement is unfeasible. Compensatory and punitive damages are eliminated, except in cases where an employer retaliates against an individual for filing a complaint, giving testimony or otherwise participating in proceedings under this Subchapter. Pursuant to this act, employees who have worked for an employer for more than one year may only be fired for “good cause.” Part-time employees working less than 20 hours per week are not covered by the act. As to covered employees, this act extinguishes all common law rights and remedies against an employer. This act, however, does not displace or extinguish any rights granted to an employee under any federal or Delaware statutes, administrative rules or regulations having the force of law. Similarly, this act does not displace or extinguish any rights granted to an employee under a collective-bargaining agreement or an express oral or written agreement relating to employment. Employees not covered by the provisions of this act retain all common law rights and remedies. This act does not apply to the State or its subdivisions or agencies, municipal corporations or private employers with less than five employees. “Good cause” for a termination is defined as: (i) a “reasonable basis” related to an individual employee in view of factors such as conduct on the job, job performance and employment record; or (ii) the exercise of business judgment in good faith by the employer. The requirement of good cause for a termination does not apply to a termination which occurs at the expiration of express term of employment or upon completion of the specified task or project to which the employment related. The provisions of this act cannot be waived except by an express written agreement of the employer and employee providing for severance pay in the event the employee is terminated without good cause. Any covered employee whose employment is terminated may file a complaint and demand for arbitration with the Department of Labor within 180 days of the effective date of the termination. An employer seeking a declaration that good cause exists for a termination may also file a complaint and request for arbitration. Arbitration pursuant to this act shall be governed by Delaware’s Uniform Arbitration Act. Either party to an arbitration proceeding may appeal the arbitrator’s award to the Superior Court of the County in which the termination occurred. The act will take effect 180 days after enactment to allow the Department of Labor to promulgate regulations implementing this act. To view full text of legislation, click HERE |
Thursday, April 14, 2011
House Bill #89 - Doctrine of Employment at Will
AN ACT TO AMEND TITLE 19 OF THE DELAWARE CODE RELATING TO THE DOCTRINE OF EMPLOYMENT AT WILL AND PROTECTION FROM WRONGFUL TERMINATION.
House Bill #88 - Regulation of Securities
AN ACT TO AMEND TITLE 6 OF THE DELAWARE CODE RELATING TO THE REGULATION OF SECURITIES.
Synopsis:
This bill, named the “Delaware Investor Protection Act,” re-organizes the provisions of the Delaware Securities Act (6 Del. C., Ch. 73) into seven subchapters and makes the following substantive amendments to the Act:
(1) The definition of the word “security” is amended to make clear that a viatical settlement contract is a security under the Act.
(2) The definition of the word “security” is amended to make clear that an annuity contract is a security under the Act.
(3) The definition of the word “security” is amended to make clear that an advance fee agreement is a security under the Act.
(4) A definition of the term “viatical settlement contract” is added to the Act.
(5) The anti-fraud provision under the Act is amended to make clear that (a) where scienter is an element of the offense, reckless conduct will satisfy the scienter requirement; and (b) in a government enforcement action brought under the anti-fraud provision, the government need not prove loss, proximate cause, or reliance in order to establish a violation of any part of the provision, nor scienter to establish that a violation has occurred through the making of a materially false statement or omission.
(6) The permissible range for filing fees payable for securities registrations and notice filings is amended to establish a minimum payment of $500.00 and a maximum payment of $1,500.00.
(7) The statutory registration exemption for any investment contract issued in connection with an employee’s stock purchase, savings, pension, profit-sharing or similar benefit plan is amended to eliminate the requirement that the Commissioner be notified in writing of the offering of any such security.
(8) A securities registration exemption for viatical settlement contracts is added to the Act.
(9) The Act is amended to make it unlawful for persons registered under the Act (or persons who are required to be registered under the Act) to make false or misleading filings with the Commissioner, to engage in any dishonest or unethical conduct, or to fail reasonably to supervise persons for whom he or she has supervisory responsibilities.
(10) The Act is amended to strike a provision that provides for automatic registration of the partners, officers, and directors of a broker-dealer or investment adviser.
(11) The Act is amended to increase the registration fees for broker-dealers, broker-dealer agents, investment advisers, investment adviser representatives, and issuer agents.
(12) The Act is amended to increase the notice filing fee for federal covered advisers.
(13) The Act is amended to clarify that the Attorney General may delegate to an administrative hearing officer the authority to preside in any administrative proceeding under the Act.
(14) The statute of limitations in the Act is amended to provide an extension of the existing 5-year statute of limitations for two additional years in the event of fraudulent concealment, but in no event will the applicable statute of limitations be extended for more than 3 years beyond the 5-year period.
(15) The Act is amended to increase the fine that may be imposed for a failure reasonably to supervise an agent or employee.
(16) The Act is amended to increase the fine that may be imposed for a violation of the Act involving a continuous course of conduct.
(17) The Act is amended to create enhanced criminal penalties for persons who commit violations of the Act that injure elderly, infirm or disabled persons.
(18) The Act is amended to create a right to rescind a viatical settlement contract for a limited period of time following the occurrence of the viatical settlement contract transaction. This right of rescission does not apply to institutional buyers or accredited investors.
(19) The Act is amended to create a mechanism by which an administrative order of the Commissioner can be filed with and given the full force and effect of a judgment of the Superior Court for the State of Delaware.
(20) The Act is amended to enhance funding for the Investor Protection Fund.
(21) The Act is amended to make aiding and abetting conduct a violation of the Act.
(22) The Act is amended to update statutory references and make minor technical corrections.
(1) The definition of the word “security” is amended to make clear that a viatical settlement contract is a security under the Act.
(2) The definition of the word “security” is amended to make clear that an annuity contract is a security under the Act.
(3) The definition of the word “security” is amended to make clear that an advance fee agreement is a security under the Act.
(4) A definition of the term “viatical settlement contract” is added to the Act.
(5) The anti-fraud provision under the Act is amended to make clear that (a) where scienter is an element of the offense, reckless conduct will satisfy the scienter requirement; and (b) in a government enforcement action brought under the anti-fraud provision, the government need not prove loss, proximate cause, or reliance in order to establish a violation of any part of the provision, nor scienter to establish that a violation has occurred through the making of a materially false statement or omission.
(6) The permissible range for filing fees payable for securities registrations and notice filings is amended to establish a minimum payment of $500.00 and a maximum payment of $1,500.00.
(7) The statutory registration exemption for any investment contract issued in connection with an employee’s stock purchase, savings, pension, profit-sharing or similar benefit plan is amended to eliminate the requirement that the Commissioner be notified in writing of the offering of any such security.
(8) A securities registration exemption for viatical settlement contracts is added to the Act.
(9) The Act is amended to make it unlawful for persons registered under the Act (or persons who are required to be registered under the Act) to make false or misleading filings with the Commissioner, to engage in any dishonest or unethical conduct, or to fail reasonably to supervise persons for whom he or she has supervisory responsibilities.
(10) The Act is amended to strike a provision that provides for automatic registration of the partners, officers, and directors of a broker-dealer or investment adviser.
(11) The Act is amended to increase the registration fees for broker-dealers, broker-dealer agents, investment advisers, investment adviser representatives, and issuer agents.
(12) The Act is amended to increase the notice filing fee for federal covered advisers.
(13) The Act is amended to clarify that the Attorney General may delegate to an administrative hearing officer the authority to preside in any administrative proceeding under the Act.
(14) The statute of limitations in the Act is amended to provide an extension of the existing 5-year statute of limitations for two additional years in the event of fraudulent concealment, but in no event will the applicable statute of limitations be extended for more than 3 years beyond the 5-year period.
(15) The Act is amended to increase the fine that may be imposed for a failure reasonably to supervise an agent or employee.
(16) The Act is amended to increase the fine that may be imposed for a violation of the Act involving a continuous course of conduct.
(17) The Act is amended to create enhanced criminal penalties for persons who commit violations of the Act that injure elderly, infirm or disabled persons.
(18) The Act is amended to create a right to rescind a viatical settlement contract for a limited period of time following the occurrence of the viatical settlement contract transaction. This right of rescission does not apply to institutional buyers or accredited investors.
(19) The Act is amended to create a mechanism by which an administrative order of the Commissioner can be filed with and given the full force and effect of a judgment of the Superior Court for the State of Delaware.
(20) The Act is amended to enhance funding for the Investor Protection Fund.
(21) The Act is amended to make aiding and abetting conduct a violation of the Act.
(22) The Act is amended to update statutory references and make minor technical corrections.
To view full text of legislation, click HERE
Tuesday, April 12, 2011
House Bill #75 and #65
HB 75 is a good bill. It would prevent members of the General Assembly from getting a state job after they get elected.
Notice, however, that HB 65 does exactly the same thing. The only real difference is that HB 65 was sponsored in the House by a Republican, which is the minority party. Is HB 75 a message to Republicans that they will not be allowed to sponsor any important legislation?
Senate Bill #40
More of your hard-earned money will be given to "green businesses." It will be interesting to see if they can pay it back.
AN ACT TO AMEND TITLE 30 OF THE DELAWARE CODE PERTAINING TO BUSINESS TAX CREDITS AND DEDUCTIONS AND CLEAN ENERGY TECHNOLOGY DEVICE MANUFACTURING.
Synopsis:
This Act improves and updates the State’s primary economic development tax incentive program. Specifically, the Act: 1) makes the program permanent by eliminating a sunset provision; 2) better delineates eligibility for tax relief by establishing a three-year application deadline; 3) boosts the program’s effectiveness by increasing the amount of the corporate or personal income tax credits; and 4) modernizes the program’s scope by including provisions specifically designed to attract manufacturers of advanced clean energy technology power generating devices and systems.
To view full text of legislation, Click HERE
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