Governor John Carney of Delaware signed House No. 1 (for parent bill HB 360) which addresses sexual harassment and retaliation in employment and amends the current anti-harassment, anti-discrimination, and anti-retaliation laws. This law makes Delaware only the 5^th state in the union that mandates certain employers to provide sexual harassment training for all employees, managers, and supervisors. It also requires that all employers with 4 or more employees issue an information sheet on sexual harassment to its employees. This legislation became effective on January 1, 2019.

The new law clearly defines sexual harassment under Delaware law and provides affirmative defenses for employers. It additionally clarifies circumstances in which such conduct rises to the level of becoming an “unlawful employment practice,” such as in cases of hostile work environment harassment.
This legislation also delineates circumstances in which an employer is actually or vicariously liable for acts of sexual harassment, such as in cases in which the employer knew or should have known about the sexual harassment, but failed to remediate the issue.

In the text of the law, the term “employee” is broadly defined to include not only an individual employed by an employer but also includes state employees, unpaid interns, joint employees, applicants, and apprentices. It is of note that including unpaid interns, applicants and apprentices in the definition makes Delaware’s definition of “employee” one of the most expansive in the nation.

The law requires that covered employers give all employees the official notice that was drafted by the Department of Labor. The information sheet mirrors the topics and information that will be covered in the mandatory training. Such information sheet must be given, physically or electronically, to new employees upon hire and current employees before July 1, 2019.

As stated previously, the new law mandates training by covered employers that must be 90 minutes long; interactive and include information on sexual harassment awareness and prevention. The training cycle is every two years. Such training is mandatory for all employers with 50 or more employees, excluding job applicants. The training must be conducted for new hires within one year of commencement of employment. Current employees must be trained by Jan. 1, 2020.

New supervisors must receive supplemental interactive training within one year of becoming a supervisor, and existing supervisors must get their additional training by January 1, 2020. This supplemental training will address a supervisor’s responsibilities when it comes to preventing, reporting and correcting harassment and retaliation at work.

The training must be interactive and contain the following content: the illegal nature of sexual harassment and retaliation; the definition of sexual harassment; examples of sexual harassment; remedies and complaint procedures available for employees; and contact information on the Delaware Department of Labor.

What does this mean for Delaware employers? Covered employers should take steps to ensure compliance regarding both notice and training requirements. Anti-harassment; anti-discrimination and anti-retaliation policies and procedures should be reviewed. Copies of the Delaware Department of Labor’s information sheet should be distributed to current employees as soon as possible and to new hires as part of the onboarding process. Employers must update training procedures; content; and schedules so that they provide employee and supplemental supervisory training, as required and every two years after that. Such training programs should be examined so that they contain the required elements as defined by the statute.
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Nicole Sorokolit Croddick is Counsel at Davison, Eastman, Muñoz, Paone, P.A., where she focuses her practice on employment and labor matters. She consults companies on human resources issues and has conducted internal investigations on ethical and legal violations. She also conducts anti-harassment and other compliance trainings.