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Your Rights Filing a Whistleblower or Retaliation Claim - Delaware

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1. What legal protection does Delaware provide private sector employees in regard to whistleblowing and retaliation?

The general rule is that most employees may be fired at any time-for any reason or for no reason at all-under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.

Common law
Delaware recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for reasons that are contrary to public policy. An employee has a cause of action-in other words, the employee may sue-for wrongful discharge when the motivation for the discharge violates public policy.

To determine what constitutes public policy, Delaware courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. criminal laws prohibiting perjury). So, for example, because a Delaware statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening Delaware's public policy. In both situations, employees are protected from retaliatory discharge. This protection extends to whistleblowers when the termination is in violation of public policy expressed in specific legislation.

Statutory Protections
In addition, the Delaware General Assembly has adopted statutory protections for certain activities. Delaware has adopted a comprehensive whistleblower statute-the Delaware Whistleblowers' Protection Act (WPA). Also, several other Delaware statutes contain anti-retaliation provisions. Employees who engage in protected activities (usually filing a complaint or testifying) under laws in the following subject areas are protected from retaliation: child labor, discrimination, hazardous chemicals, handicapped employees, lie detectors, meal breaks, minimum wage, nursing facility employees, personnel files, smoking, state contractor whistleblowers, wage payment violations, and workers' compensation.

Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.

2. What activities does state law protect, and to whom does this protection apply?

Common Law Protections
An employee may not be discharged in a manner that contradicts an established Delaware public policy. The public policy must be recognized in a statute or regulation, or by some judicial authority. For instance, an employee who refuses to perform an illegal activity or who reports illegal activities is said to be acting in the public interest. The employee is protected from retaliation for acting in the public interest.

This protection does not give an employee the absolute right to question his employer's conduct, however. An employee who questions his employer's questionable-but legal-business practices is not protected by the public policy exception. For example, if Employee A accurately reports to his supervisor that Employee B is incompetent and/or dangerous, Employee A may legally be discharged in retaliation for this action, no matter how much Employee A's action was in the best interest of the company.

Statutory Protections
General Whistleblower Protection: Under the Whistleblowers' Protection Act (WPA), an employee may not be discharged (or discriminated against) in retaliation for engaging in certain whistleblowing activity. The WPA's protections are designed to enforce two types of laws: (1) health, safety, and environmental laws; and (2) financial management and accounting standards laws. An employee may not be discharged for the following reasons Del. Code Ann. tit. 19, %26sect; 1703.:

  • Reporting a violation of either of these 2 types of laws (or potential future violations) to either an appropriate public body or a supervisor. The employee must know or reasonably believe that the violation has occurred.
  • Participating in a public investigation or hearing concerning a violation of either of these 2 types of laws.
  • Refusing to commit a violation of either of these 2 types of laws.

Health, safety, and environmental laws may be state law or federal law. Del. Code Ann. tit. 19, § 1702(6)(a). Financial management and accounting standards laws may be based upon state law or federal law. Also, for the purposes of the WPA's enforcement of financial management and accounting standards laws, violations of an employer's own rules and regulations constitute a violation of financial management and accounting standards laws. Thus, for example, an accountant who discloses that his firm is violating its own rules is protected by the WPA. Del. Code Ann. tit. 19, § 1702(6)(b).

When reporting violations, an employee may report the violation to an appropriate public body (or to a supervisor). Notably, however, disclosures to the media are not protected by the WPA. To be protected by the WPA, the employee must report the violation to one of the following:

  • A state-wide elected official, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government;
  • A legislator or employee of the legislative branch of state government;
  • An elected official of a county, city, or school district;
  • A law enforcement agency; or
  • A federal agency or employee of that federal agency. Del. Code Ann. tit. 19, %26sect; 1702(4).

Employers are also required under the WPA to inform employees that they will not be retaliated against for whistleblowing.

In addition to the whistleblower protection law above, the General Assembly has enacted many anti-retaliation statutes to cover specific instances of retaliation. Employees may not be discharged (or discriminated against) in retaliation for engaging in protected activities. Typically, reporting a violation to the appropriate authority, testifying in an enforcement proceeding, and instituting a proceeding are considered protected activities. Some statutes may protect additional conduct. You should inspect the specific statute or speak with a lawyer for further information.

Employees may not be retaliated against (i.e. discharged or discriminated against) for engaging in protected activities (e.g. reporting violations, filing a workers' compensation claim) concerning the following:

Campaign Contributions: An employee may not be discharged (or discriminated against) in retaliation for reporting a violation of campaign-contribution laws to a public body. Del. Code tit. § 1703.

Child Labor: An employee may not be discharged (or discriminated against) in retaliation for the following activities relating to child labor violations: filing a complaint; providing information to the Delaware Department of Labor; or instituting or testifying in a proceeding. Del. Code Ann. tit. 19, § 509(c).

Discrimination: An employee may not be discharged (or discriminated against) in retaliation for participating in the enforcement of Delaware's anti-discrimination laws. Nor may an employee be discharged for opposing an employment practice made illegal by state anti-discrimination laws. Del. Code Ann. tit. 19, § 711(f).

Hazardous Chemicals: An employee may not be discharged (or discriminated against) in retaliation for engaging in the following activities under the Hazardous Chemical Information Act Del. Code Ann. tit. 16, %26sect; 2415.:

  • Filing a complaint;
  • Assisting an inspector of hazardous chemicals;
  • Instituting, or testifying in, a hazardous chemicals proceeding;
  • Exercising a right under the Hazardous Chemical Information Act.

Handicapped Employee Protection: An employee may not be discharged (or discriminated against) in retaliation for testifying, assisting, or participating in a proceeding to enforce protections for handicapped persons. Nor may an employee be discharged in retaliation for opposing an employment practice that violates the Handicapped Persons Employment Protections Act. Del. Code Ann. tit. 19, § 726.

False Claims: An employee may not be discharged (or discriminated against) in retaliation for filing advancing a case under the Delaware False Claims Act or for trying to stop a violation from occurring. Del. Code Ann. tit. 6 § 1208.

Lie Detectors: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint concerning a violation of Delaware's lie detector prohibition statute. Under that statute, an employer may not request-or even suggest-that an employee take a lie detector test as a requirement for employment. Del. Code Ann. tit. 19, § 704(f).

Meal Breaks: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint concerning a violation of Delaware's meal break statute. Under that statute, an employer must provide unpaid meal breaks of 30 minutes under certain conditions. Del. Code Ann. tit. 19, § 707.

Minimum Wage: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, providing information to the Delaware Department of Labor, or instituting or testifying in a minimum wage proceeding. Del. Code Ann. tit. 19, § 910(b).

Nursing Facility Employees: Employees of nursing facilities may not be discharged (or discriminated against) in retaliation for reporting abuse, neglect, mistreatment, or financial exploitation of patients. The employee must have a good faith belief that a violation has occurred. Nor may such employees be discharged (or discriminated against) in retaliation for testifying in a proceeding concerning abuse, neglect, or mistreatment. Del. Code Ann. tit. 16, § 1135.

Personnel Files: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint concerning violations of Delaware's Right to Inspect Personnel Files Act. Under that act, an employee has the right to inspect his own personnel files under certain conditions. If an employer denies the employee this right, the employee may report this violation without fear of retaliation. Del. Code Ann. tit. 19, § 735.

Smoking: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint with the Delaware Department of Labor concerning a violation of the Clean Indoor Air Act. Nor may an employee be discharged for testifying in a proceeding concerning indoor smoking violations. The Clean Indoor Air Act prohibits smoking in indoor enclosed areas open to the general public. Del. Code Ann. tit. 16, § 2907.

State Contractor Whistleblowers: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint with the Department of Labor concerning a violation of state contractor laws. Del. Code Ann. tit. 29, § 6960.

Wage Payment Violations: An employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, or testifying in a proceeding concerning a violation of wage payment laws. Del. Code. Ann. tit. 19, § 1112(b).

Workers' Compensation: An employee may not be discharged (or discriminated against) in retaliation for filing a workers' compensation claim or testifying in a workers' compensation proceeding. Del. Code Ann. tit. 19, § 2365.

3. How do I file a whistleblower or retaliation claim in Delaware?

Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 3 years Del. Code Ann. tit. 10, %26sect; 8106. of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer.

General Whistleblower Protection: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 3 years Del. Code Ann. tit. 19, %26sect; 1704(a). of the retaliatory action. A wrongfully discharged employee may be entitled to reinstatement, back wages, reinstatement of fringe benefits and seniority rights, damages, and possibly attorney fees. If you believe you have a claim, you should contact a lawyer.

Discrimination: An employee may file a complaint with the Delaware Department of Labor. The complaint must be filed within 120 days of the retaliatory action. If you believe you have a claim, you should contact the Department immediately. The Department's Office of Labor Law Enforcement can be reached by phone at either (302) 761-8200 (Wilmington) or (302) 422-1134 (Milford).

Workers' Compensation: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 2 years of the retaliatory action. Del. Code Ann. tit. 19, § 2365. If you believe you have a claim, you should contact a lawyer.