Recently enacted legislation expands the scope of the Delaware Whistleblowers' Protection Act, which formerly applied to public employees/employers only, to include all private employees/employers. Significantly, the Act defines "employee" to include common law employees, contract employees, and independent contractors. A person is "employed" within the meaning of the statute if services are performed for wages or under any contract of hire, whether it is written or oral, express or implied. Thus, the Act also applies to leased employees who may be provided through an employment agency. Finally, the Act applies to employers of any size. Aggrieved employees have a right to go directly to court, and may be awarded appropriate injunctive relief (such as reinstatement) and/or actual damages. Lawsuits arising under the Act must be filed within three years of the alleged violation of the Act. A prevailing plaintiff may be awarded back pay, reinstatement, compensatory damages, and attorneys' fees. The Act does not provide for punitive damages.
Pursuant to the Act, an employer may not "discharge, threaten, or otherwise discriminate" against such "employees" who have reported or are about to report to a public body, the employer, or the employee's supervisor a violation of a law or regulation or rule of the state, a political subdivision of the state, or the United States. Employees are protected whether such reports are made verbally or in writing, but in the case of a verbal report to the employer or the employee's supervisor, the employee has the burden of establishing by clear and convincing evidence that the report actually was made. "Supervisors," for purposes of the Act, include both individuals who have the authority to direct and control the work of the affected employee and any individuals who have the authority to take corrective action regarding the violation alleged. In all cases such "reporting" cases, the protections of the Act apply only if the employee knows or reasonably believes such a violation has occurred or is about to occur, and do not apply if the employee knows or has reason to know the report is false.
In addition, the protections of the statute extend to employees who are requested by a public body to participate in an investigation, hearing, inquiry, or a court action. Finally, the Act protects employees who refuse to violate or assist in violating federal, state or local law, rules, or regulations. With regard to these latter protections, the Act does not specifically provide, as it does for reporting cases, that the employee loses protection if the employee does not reasonably believe a violation would result from the action, or knows or has reason to know a violation would not result from the action. Whether or not the Court's will extend protections in all such cases, even absent the employee's reasonable belief, remains to be seen.
Moreover, even in cases where a "reasonable belief" is explicitly required by the statute, it is less than clear how that term may be interpreted by the Delaware courts. While the Delaware courts may be expected to follow federal guidance on this issue, there still remains no clear answer. In the context of Title VII retaliation cases, the federal courts have long held that an employee making a complaint need not be correct in his or her belief that a violation of law occurred, but rather that he or she need only have a reasonable belief of such a violation. Recently, however, in Clark County School District v. Breeden, the U.S. Supreme Court ruled (in the context of a Title VII case) that where no reasonable person could have believed there was a violation of law, an employee is not protected from retaliatory action. In so ruling, the Court relied heavily on the cases interpreting Title VII --- cases with which a complaining party generally is unlikely to be familiar. Whether such a standard may apply in whistleblower cases is unknown. Employers therefore act at their peril against any complaining employee, even if the employee's report of a violation is of a highly dubious nature.
Regardless of how it may be defined, however, any time an employee has a "reasonable belief" that he or she is disclosing a "violation of law, rule, or regulation," no matter how insignificant it may actually be, the employee is protected from reprisal under the whistleblower law. Even so, employers now are required under the Act to post notices and "use other appropriate means," which remain undefined, to keep employees informed of their protections and obligations under the Act.
Policy Advisor:
In keeping with the notice requirements of the Act, employers should adopt a policy to include in their employee handbook stating that employees will suffer no retaliation for making a good faith report of a violation of local, state or federal law, regulation, or rule to a public agency, the employee's immediate supervisor(s), or a company official authorized to take corrective action. Employers should designate those "authorized individuals" who may take corrective action in the case a violation occurs, and identify those individuals in the policy. Employers also should:
- Post a notice regarding the protections of the Act in an appropriate location(s).
- Provide supervisors with training regarding their obligations under the Act, and the appropriate response to employee complaints or reports.
The views expressed in this article are those of the author and may not reflect the views of Potter Anderson & Corroon LLP or its clients. Nothing in this website or the publications included in this website is intended to create an attorney-client relationship. This publication should not be deemed legal advice and should not be relied on by you as legal advice related to your particular circumstances.
Wendy K. Voss is a partner with the Wilmington, Delaware firm of Potter Anderson & Corroon LLP, where she has practiced since 1992. Ms. Voss graduated, summa cum laude, from the Marshall Wythe School of Law, College of William & Mary, in 1992 and graduated from the University of Michigan, magna cum laude, in 1974. Ms. Voss is a member of the Order of the Coif and was a Member of the William and Mary Law Review.
Ms. Voss's practice is concentrated in the areas of labor and employment law, in which she exclusively represents management. She provides advice regarding personnel policies and practices to human resources personnel and other members of management, and training in personnel-related matters. In addition, Ms. Voss regularly defends employers in employment and employment-related matters before federal and state courts and administrative agencies. Ms. Voss is a member of American Bar Association ("ABA") and the Delaware State Bar Association ("DSBA"). She is a former Chair of the Labor and Employment Law Section of the DSBA (1998-1999), and currently serves on the Delaware Board of Bar Examiners.