Delaware’s Mandatory Employee Sexual Harassment Training Law Is Now In Effect

By Scott A. Holt, Esq.

On January 1, 2019, the new law specifically addressing the prohibition against sexual harassment under the Delaware Discrimination in Employment Act (DDEA) went into effect.  One of the biggest changes is the requirement that larger employers provide interactive training and education to employees regarding the prevention of sexual harassment.  Below are answers to some of the most common questions being asked.

Q. What employers are covered under the new law’s harassment training requirement?

A. The law requires any public or private sector employer with 50 or more employees in the State of Delaware to provide harassment prevention training. In determining whether they have 50 or more employees, employers should count all full-time employees, part-time employees, interns and apprentices, but need not count applicants or independent contractors towards the numerosity requirement.  The law does not specify what time period to use when determining coverage, but one approach would be to follow the formula applied under various federal employment laws.  This means you would be covered if you employed 50 or more employees during 20 or more calendar workweeks in either the current or the preceding calendar year.

Q. Which employees must be trained under the new law?

A. The training must be completed by all employees who work in the State of Delaware, which includes all full-time employees, part-time employees, seasonal employees, temporary employees, and interns and apprentices. Further, if an individual works a portion of his or her time in Delaware, even if based in another state, the individual should be trained.  Note that new hires do not need to be trained until they have been employed for at least 6 months.

Q. What if the employee is employed by an employment agency?

A. Employment agencies are the only employers required to count and provide training to employees placed by them with a third-party employer under the new law.

Q. I am an employer based in Delaware but also have employees who only work in other states. Do they need to be trained under the new law as well?

A. No. Only employees who work in Delaware need to be trained. However, if an individual works a portion of their time in Delaware, even if they’re based in another state, they must be trained.

Q. When does the training need to be completed?

A. The new law provides a timetable for when training must be completed. For existing employees, the training must be completed on or before January 1, 2020.  All new hires must receive training within 1 year of commencement of employment.   Once the employees have received the initial training, they must be retrained on harassment prevention every two years thereafter.  

Q. What if an employer has already provided harassment training. Must employees be retrained?

A. If an employer has provided training to employees prior to January 1, 2019, that would satisfy all of the requirements under the new law (see below), no additional training is required until January 1, 2020.

Q. What must be included in the training?

A. The training must be interactive and designed to educate employees regarding the prevention of sexual harassment. In addition, the training requirements differ depending upon the employee’s supervisory status.  For non-supervisory staff, the training must cover the following elements:

  1. The illegality of sexual harassment;
  2. The definition of sexual harassment using examples;
  3. The legal remedies and complaint process available to the employee;
  4. Directions on how to contact the Delaware Department of Labor; and
  5. The legal prohibition against retaliation.

For supervisors (which includes any employee authorized to change the employment status of another employee or who directs an employee’s daily work activities), the interactive training must include the above elements and the specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment.

Q. Is there a minimum number of training hours employees must complete?

A. No, the law does not specify any minimum time as long as the employees receive training that meets or exceeds the minimum standards. As a best practice, we recommend the training session for non-supervisory employees be at least 1.5 hours, and at least 2 hours for supervisors.

Q. What does “interactive training” mean?

A. Delaware law requires all sexual harassment training to be interactive. While the law is silent on what would satisfy the “interactive” requirement, a common sense approach would mean the employee must have the ability to participate in the training.  Several examples of employee participation might include:

  • If the training is web-based, the employees have an option to submit a question online and receive an answer during or immediately after the training session;
  • In an in-person or live training, the presenter asks the employees questions or gives them time throughout the presentation to ask questions.

Importantly, an individual watching a training video or reading a document only, with no feedback mechanism or interaction, would NOT be considered interactive.

Q. Can an employer use a third-party vendor to provide training? How do I ensure it meets the standards?

A. Yes, an employer may use a vendor to provide training. While the new law currently does not specifically require that the vendor possess a license or certification, at a minimum the vendor should be well versed in Delaware’s sexual harassment law requirements and be able to adequately respond to questions from participants.  As an employer you should thoroughly review any third-party training to ensure it meets or exceeds the minimum standards required under the law.

Q. What happens if some employees fail to take the training despite an employer’s best efforts to make it available?

A. Employers are required to ensure that all employees receive the required training within the timeframes provided. Employers may take appropriate remedies (including disciplinary action, if necessary) to ensure compliance.

Q. Are employers required to pay employees for the time spent in training?

A. The new law is silent on this issue, but federal law generally requires that employer-provided training time is counted as regular work hours.

Q. What type of records must employers maintain to verify training compliance?

A. Again, the law is silent on this issue. We recommend employers keep a signed acknowledgement (including any vendor certification) and a copy of all training records.  These records may be helpful in addressing any future complaints or lawsuits.

The attorneys at Young Conaway’s Employment Law Group provide interactive training (available in person or via webinar) which satisfies the new law’s requirement to educate employees on the prevention of sexual harassment.  For more information, please send inquiries to cenglish@ycst.com.