Delaware Sexual Harassment Prevention Training Law and the Importance of the Continuing Advancement of the #MeToo Movement

States all across the U.S. have been continuing to create new laws and advancements in accordance with the ‘Me Too’ movement. The ‘Me Too’ movement which was founded in 2006 to help survivors of sexual violence. The goal of the ‘Me Too’ movement is to develop a conversation around sexual violence and in 2006 the hashtag #MeToo went viral and started a crucial conversation about sexual violence nationally.

To collaborate with the ‘Me Too’ movement and to try to avoid sexual harassment and violence in the workplace many states are passing several new sexual harassment training laws. Delaware has passed a law that went into effect on January 1st, 2019 that requires employers with at least 50 employees in the state to conduct anti-sexual mandatory training that must be completed by January 2020 for existing employees and then for new employees within one year of the start.  The training must address the illegality of sexual harassment, define sexual harassment and even give examples, detail the legal remedies that are available to the employee, and finally instruct employees that retaliation is prohibited.

This new Delaware law under the Delaware Discrimination Employment Act also affects employers with at least four employees within the state as they are now required to issue an information sheet on sexual harassment that is issued by the Delaware Department of Labor to all new employees when they start employment. This information sheet is to inform new employees of their right to be free from sexual harassment and how to report sexual harassment. Employers must distribute this information sheet to new employees at the commencement of employment and to existing employees by Jul 1, 2019.

The Delaware Discrimination Employment Act protects all individuals in all workplaces. Some examples of sexual harassment include but are not limited too unwelcome or inappropriate touching, making sexual comments about an individual’s appearance, body, or the way they dress, or making sexist remarks or derogatory comments based on gender.

#Me Too’s Not Going Away

 

According to the Equal Employment Opportunity Commission’s Chair Victoria Lipnic, workers stepping forward to report claims of sexual harassment isn’t likely to slow down anytime soon.

In the year since the #Me Too movement took off, the EEOC has launched 50 % more sexual harassment lawsuits than it did the previous year. The EEOC data shows that a 12 % increase in sexual harassment complaints from 2017 to 2018.

Workers will find it easier to Sue their Unions for Negligence

 

A new policy implemented by the National Labor Relations Board could cause a major increase in litigation at a time when unions are already struggling to retain members and stabilize finances.

According to the NLRB, unions that do not properly process workers’ grievances will be presumptively considered liable unless they can prove otherwise.  “In cases where a union asserts a mere negligence defense based on its having lost track, misplaced or otherwise forgotten about a grievance, whether or not it had committed to pursue it, the union should be required to show the existence of established, reasonable procedures or systems in place to track grievances, without which, the defense should ordinarily fail,” said NLRB General Counsel Peter Robb.

Similarly, a union’s failure to keep a worker fully appraised of its efforts to pursue a grievance constitutes more than negligence and itself would, therefore, be a violation.  According to the memorandum sent to the Board of Regional directors, it is unclear how often unions fail to represent workers, but the memo said the change was prompted by an “increasing number of cases” in which unions defended themselves from worker complaints by asserting a “mere negligence” defense. “Mere negligence” asserts that if the union messed up, it wasn’t because it was acting in bad faith.

A New York based labor side attorney said the general counsel’s shift could be a serious problem for some unions. There are unions that have thousands of members and professional staff and would be expected to be able to follow up on this.

 

EEOC Sues Connections CSP For Disability Discrimination

The Americans with Disabilities Act of 1990 prohibits employers from discriminating against employees or applicants with disabilities in all aspects of employment including hiring, pay, promotion, firing, and much more.

Recently, a human services provider unlawfully fired employees who needed medical leave. According to the EEOC, Connections CSP, Inc. is one of Delaware’s Largest non-profit organizations that provides health care, housing and employment opportunities, unlawfully denied reasonable accommodations to a class of employees and fired them pursuant to an inflexible maximum-leave policy.

According to the EEOC’s suit, Connections enforced a fixed leave policy that did not provide reasonable accommodation for qualified individuals with disabilities when, as a matter of course, it refused to provide leave beyond the 12 weeks allowed under the FMLA. Connections denied other forms of reasonable accommodations that would have allowed qualified individuals with disabilities to remain employed, such as reassignment to vacant positions. The ADA also requires an employer to provide reasonable accommodations such as modifying leave policies to grant additional unpaid leave or transferring an employee to a vacant position for which the employee is qualified, unless the employer can provide that it would be an undue hardship.

While employers may have leave policies that establish the maximum amount of leave an employer will provide or permit, the ADA requires that the employer modify those policies and grant additional leave as a reasonable accommodation to employees who need it because of a disability. According to the EEOC, “Rigid maximum-leave” policies even if they comply with other laws, still violate the ADA when the policy mandates the termination of Employees. Therefore, Connections CSP violated the ADA policy by refusing to modify its inflexible, maximum leave policy, or provide other reasonable accommodations as required by law.

 

Delaware is Increasing Minimum Wage

Delaware’s minimum wage has now increased $.50 cents from $8.25 to $8.75. In 2015 Delaware increased its minimum wage to $8.25 and had hopes of increasing the minimum wage even more. The $8.75 increase is just the start as there is going to be another increase in the minimum wage effective October 1, 2019. This increase will take the minimum wage up to $9.25. This increase may not be the exact amount that some state senators may have wanted, but it is still a one dollar increase from the previous minimum wage.

A one-dollar increase may not seem like a lot but looking at the bigger picture the wage increase makes a difference. Someone working 40 hours a week under the wage of $8.25 would make $17,160 annually before taxes. Now with the increase of $9.25 being effective October 1, 2019, that same person will now make $19,240 before taxes, an increase of over $2,000 dollars.

There are also exceptions with the new minimum wage increase. Employees ages between 14-17 are allowed to receive a “youth rate” which can not be more than $.50 cents less than the minimum wage. Similarly, there is a “training rate” for adult employees for the first 90 days on the job, which also cannot be more than $.50 cents less than the minimum wage.

Other exceptions include tipped employees who are allowed to be paid a lower cash wage of at least $2.23 per hour as long as their tip credit reaches $6.52 to equal the tipped minimum wage of $8.75. The definition of a tipped employee in Delaware is an employee who participated in normal work activities receives more than $30 in tips per month. Here is an example of the tip credit calculation taken from minimum-wage.org to get a better understanding of how tip credit calculation works.1 A bartender in Delaware who has an hourly wage of $8.75 (Delaware’s minimum wage) and in one hour receives $7.00 in tips, the bartender’s employer can credit $6.52 of the tips against the bartender’s hourly wage of $8.75, so the employer will only pay $2.23 in cash wages for that hour and the bartender will receive total earnings of $9.23. Now let’s say in the next hour the bartender receives $0 tips, the employer must pay the bartender $8.75 in cash wages for this hour.

These new minimum wage laws are just the start as Delaware plans to increase wages again in 2020.

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