Although it is spring, the start of summer will be here before you know it. Now is a great time for spring cleaning of HR policy, including making sure measures are in place to meet new distribution requirements concerning a specific sexual harassment information sheet. In short, although employers are already required to distribute an information sheet to any employee hired since January 1, 2019, by July 1, 2019, employers must provide such notice to those who were employed prior to January 1, 2019.
I know what you are thinking: “I already have that huge poster in my break room and I pay a company to send me updates, so I’m good to go.” Think again.
Employers are required to “distribute, physically or electronically” the required information sheet. Therefore, a posting may be insufficient. Moreover, although, for quite some time, sexual harassment has been a type of sex discrimination under the Delaware Discrimination in Employment Act, the new law specifically requires the Delaware Department of Labor (“DDOL”) to create the new information sheet; and the employer’s duty to distribute applies to that information sheet. Therefore, although the employment law poster already includes a box addressing discrimination (including sex discrimination and hence sexual harassment), the poster does not satisfy the new information sheet distribution requirement. The information sheet itself must be distributed by anyone fitting the definition of “employer” to those fitting the definition of “employee.”
Delaware’s new sexual harassment law has its own definition of “employer” that is different from the definition that applies to sex discrimination. The new definition of “employer” means any person employing 4 or more employees within the State of Delaware at the time of an alleged violation and includes the State, the General Assembly, state agencies and labor organizations. It is interesting to consider whether the limited meaning of “state agency” results in a situation where fewer employees are protected from sexual harassment after this new law than before its passage. But that is a discussion for another time.
The new law also has its own definition of “employee” that also is different from the definition that applies to sex discrimination. The new definition of “employee” means an individual employed by an employer and includes state employees, unpaid interns, applicants, joint employees and apprentices. The exceptions to the definition of “employee” applicable to discrimination claims are not exceptions under the new law pertaining to sexual harassment. Those include: (1) any individual employed in agriculture or in the domestic service of any person; (2) any individual who, as a part of that individual’s employment, resides in the personal residence of the employer; (3) any individual employed by said individual’s parents, spouse or child; and (4) any individual elected to public office in the State or political subdivision by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. Thus it seems that those who in other contexts would not be counted as part of the “4 or more employees” must be counted for purposes of sexual harassment and such workers, though not having claims for discrimination under Delaware law, may have claims for sexual harassment.
Employers who have tried to comply with the law and who have been criticized by the Delaware Department of Labor (“DDOL”) for making mistakes may find it particularly annoying — or perhaps reassuring — to learn that the DDOL’s information sheet contains a substantive error. Specifically, the information sheet’s summary of the new law states that the law “extends protections to . . . independent contractors.” A version of the bill initially proposed to expand Delaware’s employer-employee law to provide a claim and cause of action by an independent contractor. But that would have been a major change to Delaware law and fundamentally change the company-independent contractor relationship. That part of the bill was abandoned; and the Delaware law remains such that only employees (which do not include independent contractors) can bring claims under the law. Presumably the error in the information sheet is an honest mistake. The DDOL has been made aware of the error. But it has remained uncorrected for some reason. I have heard that some at the DDOL believe there is no error, which I hope is not really the case. I have separately heard that the non-correction is because of the cost to correct it. In any event, the information sheet needs to be distributed as is, despite what certainly appears to be an error.
Employers should note that compliance with the information sheet distribution requirement does not insulate the employer from liability for sexual harassment of any current or former employee or applicant. Employers may also note that failure to distribute the information sheet is not in and of itself something that can result in liability of any employer to any present or former employee in any action alleging sexual harassment. However, employers should also note that, when an employee alleges sexual harassment, an employer has multiple defenses, including one that the new Delaware law expressly states is an “affirmative defense.” To be applicable, the employer must have exercised “reasonable care to prevent and correct any harassment promptly.” It may prove difficult for an employer to prevail on the affirmative defense if the employer does not distribute the information sheet as required.
In sum, regardless of whether there are errors in the DDOL’s information sheet, employers are already required to distribute it to any employee hired since January 1, 2019, and must distribute it to those employed on or before January 1, 2019, no later than July 1, 2019. Employers should also stay tuned to a see if the DDOL updates the information sheet (e.g., to fix error(s)). Also, any employer with 50 or more employees in Delaware should make sure to fulfill the new training requirements – another deadline for such looms on January 1, 2020.