Delaware Whistleblower Lawyer

Whistleblower Protection

The Delaware Whistleblowers’ Protection Act became law on July 19, 2004. It is codified at 19 Del. C. § 1701, et. seq. The Statute makes it unlawful for an employer to discharge, threaten or otherwise discriminate against an employee because the employee reports a violation of law to a public body; because an employee participates or is requested by a public body to participate in an investigation, hearing, or inquiry; because an employee refuses to commit or assist in the commission of a violation of law; or because an employee reports a violation of law to their employer.

The key to understanding the statute, however, is the definition of “ violation”. Not every reported violation of law is afforded protection under the Delaware Whistleblower’s Protection Act. Delaware Courts have strictly construed the definition of “violation”, which is defined in 19 Del. C. § 1702(6) as:

“ … an act or omission by an employer, or an agent thereof, that is:

a. Materially inconsistent with, and a serious deviation from, standards implemented pursuant to a law, rule or regulation promulgated under the laws of this State, a political subdivision of this State, or the United States, to protect employees or other persons from health, safety, or environmental hazards while on the employer’s premises or elsewhere; or

b. Materially inconsistent with, and a serious deviation from, financial management or accounting standards implemented pursuant to a rule or regulation promulgated by the employer or a law, rule or regulation promulgated under the laws of this State, a political subdivision of this State, or the United States, to protect any person from fraud, deceit, or misappropriation of public or private funds or assets under the control of the employer.”

Also, in order to prevail under the Delaware Whistleblowers’ Protection Act, the employee must prove that the “primary basis” for the discharge, threats, or discrimination, was that the employee undertook a protected act. 19 Del. C. § 1708.

Another important piece of the statute is that an employee need not prove that the employer actually violated, or was about to violate, a law, rule, or regulation, but that the employee reported conduct which he or she reasonably believed violated the law. 19 Del C. § 1703(4).

Knepper & Stratton represents whistleblowers in litigation in both State and Federal Courts. In addition to the Delaware Whistleblowers’ Protection Act, Knepper & Stratton has successfully represented employees with claims under the anti-retaliation provisions of the Delaware Worker’s Compensation Statute, 19 Del. C. § 2365; the Delaware False Claims Act, 6 Del. C. § 1208; the Federal False Claims Act, 31 U.S.C. 3730 (h); the Delaware abuse and neglect reporting statute relating to nursing homes and other similar facilities, 16 Del. C. § 1135; the Delaware Discrimination in Employment Act, 19 Del. C. § 711, and Title VII of the Civil Rights Act, 42 U. S. C. § 2000 et seq.

Delaware Whistleblower Protection Act

TITLE 19
Labor
General Provisions
CHAPTER 17. WHISTLEBLOWERS’ PROTECTION

Click here for the full statute, current as of May 2017.

§ 1701 Short title.

This chapter may be cited as the “Delaware Whistleblowers’ Protection Act.”

74 Del. Laws, c. 361, § 1.;

§ 1702 Definitions.

As used in this chapter:

(1) “Employee” means a person employed full or part time by any employer, and shall include, but not be limited to, at will employees, contract employees, independent contractors, and volunteer firefighters as defined in § 6651(c) of Title 16.

(2) “Employer” means any person, partnership, association, sole proprietorship, corporation or other business entity, including any department, agency, commission, committee, board, council, bureau, or authority or any subdivision of them in state, county or municipal government. One shall employ another if services are performed for wages or under any contract of hire, written or oral, express or implied.

(3) “Person” means an individual, sole proprietorship, partnership, corporation, association, or any other legal entity.

(4) “Public body” means all of the following:

a. A state wide elected official, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government or employee of them;

b. A legislator or employee of the legislative branch of state government;

c. An elected official of a county, city, or school district or employee of them;

d. A law enforcement agency or employee of that law enforcement agency; and

e. A federal agency or employee of that federal agency.

(5) “Supervisor” means any individual to whom an employer has given the authority to direct and control the work performance of the affected employee or any individual who has the authority to take corrective action regarding the violation of a law, rule or regulation about which the employee complains.

(6) “Violation” means an act or omission by an employer, or an agent thereof, that is:

a. Materially inconsistent with, and a serious deviation from, standards implemented pursuant to a law, rule, or regulation promulgated under the laws of this State, a political subdivision of this State, or the United States, to protect employees or other persons from health, safety, or environmental hazards while on the employer’s premises or elsewhere; or

b. Materially inconsistent with, and a serious deviation from, financial management or accounting standards implemented pursuant to a rule or regulation promulgated by the employer or a law, rule, or regulation promulgated under the laws of this State, a political subdivision of this State, or the United States, to protect any person from fraud, deceit, or misappropriation of public or private funds or assets under the control of the employer.

74 Del. Laws, c. 361, § 1.;

§ 1703 Protection.

An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment:

(1) Because the employee, or a person acting on behalf of the employee, reports or is about to report to a public body, verbally or in writing, a violation which the employee knows or reasonably believes has occurred or is about to occur, unless the employee knows or has reason to know that the report is false; or

(2) Because an employee participates or is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action, in connection with a violation as defined in this chapter; or

(3) Because an employee refuses to commit or assist in the commission of a violation, as defined in this chapter; or

(4) Because the employee reports verbally or in writing to the employer or to the employee’s supervisor a violation, which the employee knows or reasonably believes has occurred or is about to occur, unless the employee knows or has reason to know that the report is false. Provided, however that if the report is verbally made, the employee must establish by clear and convincing evidence that such report was made; or

(5) Because an employee reports or is about to report to a public body, to the employer or the employee’s supervisor, verbally or in writing any noncompliance or an infraction which the employee knows or reasonably believes has occurred or is about to occur, of Chapter 80 of Title 15 unless the employee knows or has reason to believe the report is false; or participates or is requested to participate in an investigation, hearing, trial or inquiry, of a person or entity other than employee, regarding noncompliance or an infraction of Chapter 80 of Title 15; or refuses to participate or assist in the noncompliance or an infraction of Chapter 80 of Title 15.

74 Del. Laws, c. 361, § 1; 79 Del. Laws, c. 344, § 1.;

§ 1704 Relief and damages.

(a) A person who alleges a violation of this chapter may bring a civil action for appropriate declaratory relief, or actual damages, or both within 3 years after the occurrence of the alleged violation of this chapter.

(b) An action commenced pursuant to subsection (a) of this section may be brought in Superior Court in the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed resides or has their principal place of business.

(c) As used in subsection (a) of this section, “damages” means damages for injury or loss caused by each violation of this chapter.

(d) A court, in rendering a judgment in an action brought under this chapter, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, expungement of records relating to the disciplinary action or discharge, actual damages, or any combination of these remedies. A court may also award, as part of a judgment in an action brought under this chapter, all or a portion of the costs of litigation, including attorneys’ fees, if the court determines that such an award is appropriate.

74 Del. Laws, c. 361, § 1.;

§ 1705 Collective bargaining.

This chapter shall not be construed to diminish or impair the rights of a person under any collective bargaining agreement.

74 Del. Laws, c. 361, § 1.;

§ 1706 Exemption.

This chapter shall not be construed to require an employer to compensate an employee for participation in an investigation, hearing or inquiry held by a public body in accordance with § 1703 of this title.

74 Del. Laws, c. 361, § 1.;

§ 1707 Notices requirement.

An employer shall post notices and use other appropriate means to keep the employer’s employees informed of their protections and obligations under this chapter.

74 Del. Laws, c. 361, § 1; 70 Del. Laws, c. 186, § 1.;

§ 1708 Burden of proof.

The burden of proof in any action brought under this chapter shall be upon the employee to show that the primary basis for the discharge, threats, or discrimination alleged to be in violation of this chapter was that the employee undertook an act protected pursuant to § 1703 of this title.

74 Del. Laws, c. 361, § 1.;

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by Barbara H. Stratton, Employment Lawyer
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● 3/23/16 - Labor & Employment Law Update, Delaware State Bar Association, "Old and New Ethical Pitfalls in Communicating with Employee Witnesses"

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