Delaware Whistleblower Laws: Protections and How to Report

Delaware protects employees from employer retaliation under the state's general whistleblower statute, Del. Code tit. 19, § 1703, which bars discharge or discrimination against workers who report violations of state or federal law to a public body or internally to their own employer or supervisor, participate in related investigations, or refuse to take part in unlawful conduct.

A Summary of Delaware Whistleblower Laws

The state of Delaware has a public policy and various statutes that are designed to protect employees from retaliatory actions. Although the state follows the employment-at-will doctrine, it is illegal for employers to discharge or in any way discriminate against an employee for reasons that violate the state's public policy and statutory protections. Statutes are enacted by the state's legislature and only address specific subject areas (e.g., minimum wage) whereas public policy constitutes laws that are created by courts to fill the gaps not officially covered by enacted laws.

This is a summary of Delaware Whistleblower Laws, make sure to check out the Federal Whistleblower Laws as well.

Whistleblower Rights in Delaware

Common Law Protections

Delaware applies its public policy as a remedy to the at-will employment doctrine. This means judges may look for guidance in statutory protections and constitutional provisions that are similar to the proceeding in court before determining whether an employer broke the law when discharging an employee. For example, if a statute sets the minimum wage that is paid to an individual, then the policy here is that employees are entitled to certain wage rights. So an employer who discharges an employee for exercising such a right may be found guilty of violating public policy.

Statutory Protections and Penalties

General Whistleblower Protection

Under this statute, employers are not allowed to discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment. The statute expressly includes reporting or threatening to report an employee's suspected or actual citizenship or immigration status, or that of a family member, to a federal, state, or local agency. Those actions are prohibited when taken in retaliation for:

• Reporting or intending to report to a public body a violation of state or federal law that has occurred or is about to occur.
• Participating or intending to participate in an investigation, hearing, or inquiry related to a violation of state or federal laws.
• Refusing to participate in a violation of state or federal law.
• Reporting or intending to report a violation of Delaware's campaign contribution laws.
• Reporting a violation verbally or in writing to the employer or to the employee's own supervisor. If the report was made verbally, the employee must establish by clear and convincing evidence that the report was made.

An employee who takes the report outside the company is protected when it goes to a public body, which the statute defines as:

• 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 or employee of a county, city, or school district.

• A law enforcement agency.

• A federal agency.

Internal reports are protected too. An employee who reports the violation to the employer or to their own supervisor is covered by the same section, whether the report is verbal or in writing.

Del. Code tit. 19, § 1703.

Filing

There is no agency intake for this statute. An employee brings a civil action in Delaware Superior Court within 3 years of the violation, in the county where the violation occurred, the county where the employee lives, or the county where the employer resides or has its principal place of business. If you were fired or threatened after a report, get a free case evaluation from a Delaware employment lawyer on a Superior Court action within the 3 years (attorney advertising).

Penalty

A court may order an employer to reinstate the employee, pay back wages, reinstate the employee's fringe benefits and seniority rights, expunge related disciplinary or discharge records, and pay actual damages. The court may also award litigation costs and attorney fees.

Child Labor Statute

It is illegal for employers to discharge or in any way discriminate against an employee in retaliation for filing a complaint or instituting a proceeding under the state's child labor laws or for testifying or intending to testify in a proceeding related to the state's child labor laws. Del. Code Ann. tit. 19, § 509(c).

Penalty

Employers who carry out retaliatory action may be liable to pay a civil penalty ranging from $1000 to $5000 for each violation.

Discrimination Statute

It is against the law for an employer to refuse to hire an individual, alter an employee's terms of employment, or in any way discriminate against an employee because of the employee's or individual's race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, or national origin. Also, employees cannot be retaliated against for opposing unlawful discriminatory practices or for participating in the enforcement of the state's discrimination laws. Del. Code Ann. tit. 19, § 711(f).

Filing

Claims under this statute should be filed within 300 days of the retaliatory action. The charging party is required to start a lawsuit within 90 days of receiving a right to sue notice from either the state or federal government.

Penalty

In addition to any liability for damages, employers who carry out retaliatory action may be liable to pay a civil penalty ranging from $1000 to $5000 for each violation.

Hazardous Substances Statute

It is illegal for employers to discharge or in any way discriminate against an employee in retaliation for filing a complaint or instituting a proceeding under the state's Hazardous Chemical Information Act, or for testifying, or intending to testify in a proceeding related to the state's Hazardous Chemical Information Act. Del. Code Ann. tit. 16, § 2415(b).

Penalty

Employers found to be in violation are given 14 days to comply. Employers who fail to comply within that period may be subject to civil penalties of not more than $500 per violation. Del. Code Ann. tit. 16, § 2413(c).

Handicapped Employee Protection Statute

It is against the law for an employer to refuse to hire an individual, alter an employee's terms of employment, or in any way discriminate against an employee in retaliation for filing a complaint or instituting a proceeding under the state's Handicapped Persons Employment Protections Act, or for testifying or intending to testify in a proceeding related to the Handicapped Persons Employment Protections Act. Also, employees cannot be retaliated against for opposing practices that violate the Handicapped Persons Employment Protections Act. Del. Code Ann. tit. 19, § 726.

Lie Detectors Statute

Under this statute, employers are not allowed to request or require an individual to take a lie detector test or a similar test as a condition of employment or continuation of employment. Also, employers are not allowed to in any way discriminate against an employee in retaliation for filing a complaint or giving information regarding lie detector test laws to the relevant department of labor or for instituting a proceeding under the state's lie detector test laws, or for testifying, or intending to testify in a proceeding related to the Handicapped Persons Employment Protections Act. Del. Code Ann. tit. 19, § 704(f).

Penalties

Employers who request a lie detector test may be found guilty of breaking the law and may be liable to pay a civil penalty ranging from $1000 to $5000 for each violation. Employers who carry out retaliatory action may be liable to pay a civil penalty ranging from $1000 to $5000 for each violation.

Meal Breaks Statute

It is illegal for employers to discharge or in any way discriminate against an employee in retaliation for filing a complaint or instituting a proceeding under the state's meal break laws or for testifying or intending to testify in a proceeding related to the state's meal break laws. Under this statute, employers are required to give employees unpaid meal breaks under certain circumstances. For example, employees have a right to an unpaid meal break of at least 30 consecutive minutes if they work 7.5 or more consecutive hours. Del. Code Ann. tit. 19, § 707.

Penalty

Employers who violate this statute may be liable to pay a civil penalty ranging from $1000 to $5000 for each violation.

Minimum Wage Statute

It is illegal for employers to discharge or in any way discriminate against an employee in retaliation for filing a complaint or instituting a proceeding under the state's minimum wage laws or for testifying or intending to testify in a proceeding related to the state's minimum wage laws. Del. Code Ann. tit. 19, § 910(b).

Penalty

Employers who carry out retaliatory action may be liable to pay a civil penalty ranging from $1000 to $5000 for each violation.

Long-Term Care Facilities and Services Statute

It is illegal for employers to discharge or in any way discriminate against an employee in retaliation for filing a complaint, testifying, or intending to testify about issues concerning abuse, financial exploitation, mistreatment, or neglect of patients or residents. Del. Code Ann. tit. 16, § 1135.

Penalty

Employers who carry out retaliatory action may be liable to pay treble damages, costs, and attorney fees to the employee.

Personnel Files Statute

It is illegal for employers to discharge or in any way discriminate against an employee in retaliation for filing a complaint or instituting a proceeding under the state's Right to Inspect Personnel Files Act or for testifying or intending to testify in a proceeding related to the state's Right to Inspect Personnel Files Act. The act states that employers should give employees access to their personnel files whenever they request to inspect them. Del. Code Ann. tit. 19, § 735.

Penalties

Employers who deny employees access to their files may be liable to pay a civil penalty of not less than $1,000 and not more than $5,000 for each violation. Employers who carry out retaliatory action may be liable to pay a civil penalty ranging from $1000 to $5000 for each violation.

Health and Safety Statute

It is illegal for employers to discharge or in any way discriminate against an employee in retaliation for filing a complaint or instituting a proceeding under the state's Clean Indoor Air Act, or for testifying, or intending to testify in a proceeding related to the state's Clean Indoor Air Act. Under this act, smoking in indoor enclosed areas that are accessible by the general public is prohibited. Del. Code Ann. tit. 16, § 2907.

Penalty

Employers who carry out retaliatory action may be liable to pay a civil penalty ranging from $2000 to $10,000 for each violation.

State Contractor Whistleblowers Statute

It is illegal for employers to discharge or in any way discriminate against an employee in retaliation for filing a complaint or instituting a proceeding concerning a violation of state contractor laws, or for testifying, or intending to testify in a proceeding related to the state's contractor laws. Del. Code Ann. tit. 29, § 6960.

Penalty

Employers who carry out retaliatory action may be liable to pay a civil penalty ranging from $1000 to $5000 for each violation.

Wage Payment and Collection Statute

It is illegal for employers to discharge or in any way discriminate against an employee in retaliation for filing a complaint or instituting a proceeding concerning a violation of wage payment and collection laws or for testifying or intending to testify in a proceeding related to the state's wage payment and collection laws. Del. Code. Ann. tit. 19, § 1112(b).

Penalty

Employers who carry out retaliatory action may be liable to pay a civil penalty ranging from $1000 to $5000 for each violation.

Workers' Compensation Statute

It is illegal for employers to discharge or in any way discriminate against an employee in retaliation for filing a workers' compensation claim. Also, it is illegal to in any way retaliate against an employee for filing a complaint or instituting a proceeding concerning a violation of workers' compensation laws or for testifying or intending to testify in a proceeding related to the state's workers' compensation laws. Del. Code Ann. tit. 19, § 2365.

Filing

Complaints under this statute should be filed within 2 years of the retaliation.

Penalty

Employers who carry out retaliatory action may be liable to pay a civil penalty ranging from $500 to $3000 for each violation.

Whistleblower Hotlines in Delaware

To file a complaint on issues concerning retaliatory actions by employers, call the Delaware Department of Labor at (302) 368-6600 or send them a mail here.

Filing Note

Unless stated otherwise by a statute, lawsuits should be filed within 3 years of the retaliatory action.

Penalty

Unless stated otherwise by a statute, a court may order an employer to pay back pay, reinstate the employee, pay attorney fees, and court costs, plus any other compensation authorized by the specific statute involved. Under the general Whistleblowers' Protection Act, for example, 19 Del. C. Section 1704 limits recovery to reinstatement, back wages, restored benefits and seniority, expungement of related records, actual damages, and litigation costs, not punitive damages or front pay.

More Delaware Laws

• Delaware At-Will Employment Laws
• Delaware Employee Monitoring Laws
• Delaware Final Paycheck Laws
• Delaware Workers Compensation Laws