Delaware: Major nontenured policymaking or advisory position
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Monday, July 15, 2019

Delaware: Major nontenured policymaking or advisory position

By Payroll and Entitlements Editorial Staff

The court reversed the Board's grant of unemployment benefits to the claimant, who prior to termination was the Deputy Executive Director of a state agency. According to the Board, the claimant was not a "major nontentured policymaking employee,” and hence was not disqualified from benefits under Delaware law. In reversing the decision, the court noted that to be disqualified, the position must be both nontenured and policymaking. The court concluded that the position was nontenured because the employer's manual made the position not subject to a tenure provision that applied to other classes of employees. The court also reversed the finding of the Board as to whether the claimant had been engaged in policymaking duties. Citing statutory language, the court held that the determinative question was whether the position was designated as a nontentured policymaking position by the employer or whether the duties that were actually performed by the employee were policymaking in nature. Because the Board did not properly consider the issue in this light, the case was remanded to determine whether the position was designated as a policymaking position (Delaware River & Bay Authority v. Minor, Del. Super. Ct., C.A. NO.: N18A-08-002 SKR, June 13, 2019).

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