As explained in Part 1 of this four-part series, we are exploring some of the more recent state law developments addressing sexual harassment in the workplace. Since the #MeToo movement began over a year ago, there have been various reactions from employees, employers and state legislatures. Employees have reacted by filing more internal and external complaints.  In fact, in early October the Equal Employment Opportunity Commission (EEOC) released its fiscal year 2018 statistics regarding workplace harassment. The data showed that charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017. In addition, the EEOC reported that it recovered nearly $70 million for victims of sexual harassment in fiscal year 2018, an increase of $22.5 million from fiscal year 2017. You can find more information on the EEOC’s report here.

Employers have reacted to the #MeToo movement by updating policies, conducting more trainings, and holding employees accountable.  While the United States Congress has not yet responded with specific legislation, many states have taken action to address sexual harassment and sexual misconduct in the workplace.

As a result, employers operating in multiple states must be aware of the various approaches taken by states and ensure compliance obligations are met.  Most employers have already taken action to address differing state law requirements such as how and when to pay employees, availability and use of paid leave, and the legality and enforcement of restrictive covenants.  Going forward, employers need to add sexual harassment compliance to the state-by-state compliance list.

The states take a varied approach to addressing this issue through legal regulations and requirements.  We anticipate that more state laws are on the way.  In Part 1 of this series we explored the recent flurry of legislation enacted in the State of California. In Part 2 we look at the recent developments under Delaware law.

DELAWARE

On August 29, 2018, Delaware passed a law that includes mandatory distribution to employees of a state-created information sheet on sexual harassment. Employers with four or more employees in the state of Delaware will be required to distribute the information sheet to new employees at the commencement of employment and all existing employees by July 1, 2019 at the very latest. The sexual harassment information sheet can be found here.

In addition, much like California’s training requirements, Delaware requires employers with at least 50 employees in the state of Delaware to provide interactive sexual harassment training and education. However, unlike California’s training requirements, the new Delaware law requires that both non-supervisory and supervisory employees receive the training.

Employers covered by the new law must provide interactive sexual harassment training to employees that includes the following components:

• Addresses the illegality of sexual harassment;
• Defines sexual harassment with the use of examples;
• Describes the legal remedies and complaint process available to employees;
• Provides directions to employees on how to contact the Delaware Department of Labor; and
• Instructs employees that retaliation is prohibited.

The training must be conducted for new employees within one year of the commencement of their employment. Current employees must receive the mandatory training by January 1, 2020.

New supervisors must receive additional interactive training within one year of the commencement of their employment in a supervisory role and existing supervisors must receive training by January 1, 2020. The additional training for supervisors must also include: (1) specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment; and (2) the legal prohibition against retaliation.

For employers who provide – or have already provided – training that meets the requirements of the law prior to January 1, 2019, are not required to conduct additional training until January 1, 2020. After January 1, 2020, both the employee and supervisor training programs must be repeated every two years.

Stay tuned for Part 3 of our journey through the patchwork approach of other recent state law developments in response to the #MeToo movement.