Part 2: Are You in Compliance with New Sexual Harassment Training Laws?

Though they may have been missed among COVID HR updates, new sexual harassment legislation should be near the top of HR departments’ lists in 2020. These new laws are focused on required sexual harassment training and they are reducing the federal “severe or pervasive” standard, expanding workplace harassment protections to independent contractors, and lengthening the statutes of limitations. All of these legislative and HR updates are making employers more vulnerable to lawsuits than ever.

Employers should note that it’s not just companies that will be more vulnerable to lawsuits under the new sexual harassment laws. In some states, like Massachusetts, separate training is recommended for supervisors because they can be held independently liable. (Employers should check the laws for their applicable states or check in with their HR consulting team to see if this is the case for them.)

Lastly, many of these new laws are completely negating nondisclosure agreements, or regulating the way they’re enforced. NDAs are tools that many employers have leaned on in the past when settling workplace harassment disputes. To stay in compliance, an employer’s NDAs may need to be changed or scrapped altogether.

To prepare, workplaces should increase their workplace harassment training, but they should also make sure they’re managing to these policies. A single harassment training that gives lip service isn’t enough. Managers need to create a corporate culture where problematic behavior isn’t tolerated. This is truly the best way to avoid costly lawsuits, fines, and the damage to an employer’s reputation as a workplace. Especially with the internet and websites like Glassdoor, news can travel fast if employees don’t feel safe at work.

Employers in all states should keep checking in with their HR consulting team or with MP for the latest HR updates surrounding this topic. If workplaces are operating remotely, they may also need to find ways to deliver sexual harassment training online. Through MP Learn, MP can also provide remote training courses for sexual harassment. The tool also provides the ability for managers to track and document employee’s progress in taking these trainings.

Below are the newest sexual harassment laws for Delaware and Illinois.

Delaware sexual harassment training laws

Sexual Harassment Training: According to Del. Code Ann. tit. 19, § 711A, employers with 50 or more workers must provide interactive training and education to all existing employees before January 1, 2020 and every two years afterwards. For new hires, employers with over 50 workers must provide training within one year of their start date, then every two years afterwards.

Trainings must include:

• The illegality of sexual harassment
• The definition of sexual harassment using examples
• The legal remedies and complaint process available to the employee
• Directions on how to contact the department
• The legal prohibition against retaliation
• Supervisor training

Employers with over 50 employees must provide separate, additional interactive training to their new supervisors within one year of their hire date or start date as a supervisor. Then they must provide sexual harassment training specifically for supervisors every two years. By January 1^st, 2020, all these employers’ current supervisors must be trained, then receive training every two years thereafter. Supervisors training must include the specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment, as well as information about legal prohibition against retaliation. Of course, even upon completion of this training, the employer won’t be protected from liability if any of their applicants, as well as current or former employees makes a complaint about sexual harassment.

If an employer with over 50 employees did provide training that satisfies all legal requirements to their staff and supervisors prior to January 1, 2019, they aren’t required to complete training before January 1, 2020.

There is one exemption, which is that employers are not required to provide sexual harassment training to applicants, independent contractors, or employees who are employed with them for less than six continuous months. However, employment agencies must provide sexual harassment training to all employees placed by the agency.

Illinois sexual harassment training laws

Who should receive training and when:

As of January 1, 2020, the Illinois Human Rights Act (ILHRA), at 775 Ill. Comp. Stat. §§ 5/2-109 and 5/2-110 says that all employers with one or more employees must train every employee once every calendar year. (This means all employers need to have trained their workers by December 31^st, 2020.) Additionally, they must create and enforce policies that prevent workers from experiencing either sexual harassment or retaliation for reporting it.

All employees who work in Illinois, frequently work with employees based in Illinois (even if based elsewhere), or will work with employees in Illinois or in Illinois themselves, must receive training. This applies no matter their status– whether they are short-term, part-time, intern, or full-time, they must be provided sexual harassment training.

Employers are not required to train independent contractors. However, they are advised to train them if they’ll be working at the workplace or will be interacting with the employer’s workforce.

Employers must train new employees as soon as possible after hire, or by December 31, 2020. They must be trained annually thereafter by December 31. Employers should train workers as quickly as possible because they will be liable for any sexual harassment they commit (even if the new hire was trained at a prior workplace). Employers can ask new hires if they were provided sexual harassment training elsewhere and can ask to see documentation of that completed training. Employers must document and retain records (available to the IDHR upon request and kept on premises) to demonstrate that they have properly trained all their workers every year. If documentation is lost, the relevant employees must be retrained. These records can include a certificate of participation, a signed employee acknowledgment, or sign-ins for training. Whether paper or electronic based, these records should include:

• Names of employees trained
• Dates of training
• Sign-in worksheets
• Copies of certificates of participation issued
• Copies of all written or recorded materials that comprise the training as well as the name of the training provider, if applicable.

If an employee has multiple employers, they don’t need to take multiple sexual harassment trainings every year. If the employee can show proof of completion of training and share that with all other employers, this can be kept on file. Note that employees will not be responsible for confirming that the training they received elsewhere is compliant with the law. Thus, if an employer is unsure if an employee got adequate training elsewhere, they should retrain the employee.

Training requirements

The Illinois Department of Human Rights offers a model training program that is free for employers to use. Employers may also provide their own training program if they include:

• An explanation of sexual harassment (per the law)
• Examples of behavior that would count as sexual harassment
• A summary of the federal and state statutory provisions for sexual harassment, especially the legal remedies for victims of sexual harassment
• A summary of how employers are responsible for preventing, investigating, and correcting sexual harassment

Additional training for restaurants and bars

Every restaurant and bar must have a sexual harassment policy which they provide, in writing and in English and Spanish, to all employees within the first calendar week of their start date. The policy must prohibit sexual harassment (as well as any retaliatory measures for reporting it) and define it (as per the Illinois Human Rights Act and Title VII of the federal Civil Rights Act). The policy should state that all employees are required to be trained in sexual harassment yearly. The policy must share how a worker can report a complaint of sexual harassment internally (with options to retain confidentiality) to the owner, corporate headquarters, human resources department, or other available internal reporting mechanism. There must be an explanation of internal complaint process. The policy must also detail how to contact and file a charge with the Illinois Department of Human Rights and U.S. Equal Employment Opportunity Commission.

While bars or restaurants may choose to use the free, supplemental model training program provided by the IDHR, they may also use their own if it has Spanish and English options and includes:

• Specific behavior and activities related to the restaurant or bar industry
• An explanation of how managers are responsible and liable for sexual harassment conduct

Restaurants and bars must keep a record of all their supplemental trainings, which they are required to provide for the IDHR upon request. These records can be paper or electronic and may include certificates of completion, signed employee acknowledgments, or course sign-in worksheets.

Casino and hotel owners As of July 1^st, 2020, all hotels and casinos of all sizes must create a sexual harassment prevention policy. This policy is required to contain specific language and provisions directing employees to internal complaint procedures and external resources. Additionally, casinos and hotels must make panic buttons for employees who work in isolated environments.