Faw Casson

Delaware Legislative Changes

August 7, 2018

After an elongated session on June 30, 2018, the 149th Delaware General Assembly settled multiple bills. The work completed during the session included many crucial legislative changes that will impact employers and employees.
The 4 bills signed into law are:
  • Increase of Minimum Wages
  • Establishment of a Training Minimum Wage Rate and Youth Minimum Wage Rate
  • Requirements for Sexual Harassment Training
  • Establishment of a Delaware Worker Adjustment and Retraining Notification
Senate Bill No. 170 orders an increase of the Delaware Minimum Wage to $8.75 per hour as of January 1st, 2019 and will increase to $9.25 per hour as of October 1st, 2019.
The Bill was amended for a second time, through Senate Amendment No. 2. This Amendment reduced the minimum wage increases from 4 fifty cent increases to 2 fifty cent increases. Governor Carney signed the bill into law on July 1, 2018.
House Bill No. 483 establishes a new Training Minimum Wage and a Youth Minimum Wage effective on January 1, 2019. The bill allows employers to pay $.50 per hour less than the required Delaware Minimum Wage under one of two circumstances:
1. Training Wage – During the first 90 successive day after the employee’s date of hire, an employer can pay an employee who is 18 years of age or older, a wage rate that is no more than $.50 less of the Delaware Minimum Wage.
2. Youth Wage –An employer can pay an employee, who is under 18 years of age, a wage rate that is no more than $.50 per hour less of the established Delaware Minimum Wage.
House Substitute No. 1 to House Bill No. 360 as Amended by House Amendment No. 2 was passed.   Bill No. 360 states that sexual harassment is an illegal employment practice under Federal and Delaware law. An employer is legally defined as a person employing 4 or more employees within the State. An employer can be found responsible for sexual harassment of an employee when:
  • A supervisor’s sexual harassment causes negative employment behavior of an employee
  • The employer knew or should have known of the sexual harassment and failed to take appropriate corrective actions
  • Negative employment behavior is taken in retaliation to an employee filing or participating in an investigation or testifying on the sexual harassment of an employee
If the employer promptly provided practical care to prevent or correct any harassment or the employee refused to take advantage of any preventive or corrective help provided by the employer, then the employer is given a justifiable defense.
The State Department of Labor will give out a sexual harassment information sheet for employers to distribute to all employees. Employers who have 50 or more employees will give interactive training and instruction on sexual harassment within 1 year of the beginning of employment and then every 2 years subsequently. Employers will also give supervisors additional training that specifies their individual responsibilities concerning prevention and correction of sexual harassment and how to prohibit any retaliation.
The State of Delaware Department is authorized to prohibit any individual from engaging in any unlawful employment practice and can investigate, make/revise rules, and/or take civil action in Superior Court. There is a 300-day statute of limitations for detection or suspected unlawful employment practices.
The Department of Labor will have 60 days from the report of sexual harassment to investigate and conclude if there was “reasonable cause” or “no reasonable cause”. If the case is determined under “reasonable cause” then the parties are required to appear for reconciliation. If there is “no reasonable cause” or “no cause” then Delaware Right to Sue Notices will be dispensed by the Department of Labor.
The Delaware Workplace Adjustment and Retraining Notification Act (WARN) is parallel to the already existing Federal WARN.
Delaware’s WARN requires employers to provide a notice 60 days in advance to a loss of employment due to a mass layoff, plant closing or relocation impacting 50 or more employees. The Delaware WARN Act applies to employers with 100 or more employees who jointly work at least 2,000 hours per week. Employers are required to notify the employees, their representatives, the Delaware Department of Labor, Division of Employment and Training and the Delaware Workforce Development Board who are impacted. Like the Federal WARN Act, in certain circumstances there are some exemptions to the notice requirements (see the actual bill for these specific situations).
The Delaware WARN Act states that an employer can be accountable for back pay and benefits. An employer can also be subject to a $1,000 penalty per day for every day that a notice was not provided or $100 per day for each released employee, whichever amount is higher.
If you are an employer or employed by the state of Delaware, it is crucial to understand and follow these new employment laws once they become effective. Please contact your local Faw Casson representative if you have any further questions regarding the recent Delaware legislative changes.

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