Secretary of Labor Discusses Delaware's New Harassment Prevention Law

From left to right: Secretary of the Delaware Department of Labor, Cerron Cade; Scott A. Holt, Esq.; and Lauren E.M. Russell, Esq.

On April 25, 2019, Young Conaway’s Labor and Employment attorneys hosted the 2019 Annual Employment Law Seminar at the Chase Center on the Riverfront. The event drew over 200 attendees to learn about the latest federal and state employment and labor laws. The seminar was comprised of both panel discussions and presentations about topics such as the ADA and FMLA, the new U.S. Department of Labor wage and hour overtime rules, and the new EEO-1 filing requirement.

The most attended panel included Cerron Cade, Secretary of the Delaware Department of Labor, and Young Conaway attorneys Scott A. Holt and Lauren E.M. Russell, who discussed Delaware’s Mandatory Sexual Harassment Prevention Training Law. Under the new law—which amends the Delaware Discrimination in Employment Act—private and public employers having offices in Delaware with 50 or more employees must provide all employees with interactive training and education on the prevention of sexual harassment. Here are some of the highlights of the panel discussion:

What are the requirements of interactive training?

According to Delaware Secretary of Labor Cade, in order for harassment prevention training to meet the Delaware “interactive” component requirement, the training must allow attendees the ability to ask questions and receive answers during the session. This requirement makes the Delaware harassment prevention training law one of the most progressive in the United States, along with California which has similar interactive requirements. The panelists noted one of the advantages of this interactive requirement is that attendees, by listening to others’ questions and comments, gain additional insight into the material and thus better understand their responsibilities in the workplace.

What types of training satisfy this interactive component?

The panelists discussed the benefits of having training conducted in person by a qualified trainer, but also acknowledged that in-person training may not always be feasible. Another option the panelists agreed would meet the interactive requirement was a web-based training session, but only if the employees have the ability to submit questions online and receive answers during or immediately after the training session.

Examples of training that would not meet the Delaware interactive requirement include videos, online webinars, or web-based training where the attendees have no ability to ask questions (or listen to other attendees’ questions) and obtain feedback from the trainer. Secretary Cade indicated these types of “check the box” training programs are outdated and are not compliant with the new law.

Who is qualified to do the training?

The panelists agreed that while there was no requirement that the trainer possess a license or certification, at a minimum he or she should be well versed in Delaware’s sexual harassment law and have experience conducting training and investigating claims of harassment. Secretary Cade also added he believed it was important the trainer be able to adequately respond to questions from the attendees.

What employees must be trained?

The panelists agreed that 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. Secretary Cade also confirmed that employees who work only a portion of their time in Delaware, even if based in another state, should be trained. He also recommended that out-of-state supervisors who supervise employees working in Delaware should receive training.

What should be included in the harassment training?

Secretary Cade discussed that the training should be designed to educate employees regarding the prevention of harassment, but he strongly recommended the training include education about other forms of harassment and education. He also stressed that employers need to educate supervisors (which includes any employee authorized to change the employment status of another employee or who directs an employee’s daily work activities) on their specific responsibilities regarding the prevention and correction of sexual harassment.

What Steps will the Department of Labor (DOL) Take to Enforce the New Training Requirement?

The panelists discussed what steps if any the Department of Labor would take to enforce the new law. Secretary Cade stated that the DOL currently had no plans to audit employers. Instead, if a charge of discrimination is filed against an employer, the DOL, as part of its investigation of the charge, will be requesting the employer to provide proof that they have met the training requirements of the new law. This would include records of when the training was conducted, attendance verification of all employees (e.g., sign in sheets; signed acknowledgements; certificate of attendance), and copies of the training materials.