Delaware HB 360: What You Need to Know

Whether you work at a small or large organization in Delaware, you will need to have a good understanding of HB 360 to ensure that you are in compliance. As with any law or regulation, failure to comply can lead to financial consequences. Therefore, you want to do the work now to understand your obligations and how your organization can comply in the most efficient manner possible.

HB 360: The Basics

As with other pieces of legislation across the country, HB 360 was enacted partly in response to the #MeToo movement across the United States. HB 360 was specifically designed to address the prohibition against sexual harassment under the Delaware Discrimination in Employment Act. Governor John Carney signed the legislation on August 29, 2018, and it went into effect on January 1, 2019.

There are several important components of HB 360. First, the law provides more detail of when sexual harassment is considered an unlawful employment practice. Sexual harassment is itself is when an employee is subject to unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature. It is an unlawful employment practice when (1) submission to that conduct is, either explicitly or implicitly, a term or condition of the victim’s employment, (2) submission to (or rejection of) such conduct is used as a basis for employment decisions affecting the victim, or (3) the conduct has the purpose or effect of unreasonably interfering with the victim’s work performance or creating an intimidating, hostile, or offensive working environment.

HB 360 applies to all Delaware employers with four or more employees. It includes not only private employers, but the state, labor organizations, state agencies, and the Delaware General Assembly. Also, eligible individuals under HB 360 include all Delaware workers. Specific types of workers mentioned in the law include state employees, unpaid interns, applicants, joint employees, and apprentices.

For more details about the law itself, you can check out the entire text of HB 360 here.

HB 360: Compliance

As with any law, companies and organizations must determine what they must do in order to achieve compliance. The same is true of HB 360.

The best way to determine your compliance obligations is to speak with your organization’s attorneys or human resources staffers. But that said, there are several things to keep in mind here.

First, understand the new affirmative defense in HB 360. The new law provides employers an affirmative defense if the employer can demonstrate that they took steps to promptly prevent and correct any sexual harassment and can prove that the affected employee unreasonably failed to take advantage of the employer’s efforts. Therefore, you and your organization must understand this affirmative defense and do your part to ensure that you can use it in case of a sexual harassment allegation at your company.

Next, take advantage of interactive training. Depending on the size of your organization, the law may actually compel you to hold a training on these topics. If your organization has 50 or more employees, you need to provide at least two hours of classroom or other interactive training and education on sexual harassment to all supervisory employees in the state within six months of assuming their supervisory position. The training must (1) be provided to every supervisory employee in Delaware every two years, (2) include information and practical guidance, prevention and correction of sexual harassment, and the remedies available to victims, and (3) have trainers or educators with the knowledge and expertise in the prevention of harassment.

While this requirement is for organizations with 50 or more people, you may want to consider implementing similar training if you work at a smaller organization. Doing so will ensure that your employees can identify and prevent harassment in your workplace, which will save you from regulatory scrutiny down the road.

A New Era

Times have certainly changed. While harassment (sexual or otherwise) was a dark, yet subtly accepted part of the American workforce, lawmakers are fighting back.

If you are an owner or manager of a Delaware business, you cannot ignore HB 360. Whether your business is below or above 50 employees, ensure that you are educating your workers. Incentivize them to immediately report bad behavior. By closely complying with HB 360, you can avoid future headaches and create a better working environment for your employees.