CHAPTER 361

FORMERLY

SENATE BILL NO. 173

AS AMENDED BY

HOUSE AMENDMENT NOS. 1 & 3

AN ACT TO AMEND TITLE 19 AND TITLE 29 OF THE DELAWARE CODE RELATING TO WHISTLEBLOWERS' PROTECTION.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend Title 19 of the Delaware Code by inserting therein the following:

“Chapter 17. Whistleblowers’ Protection

§1701 Short title.

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

§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 16 Del.C. § 6651(c).

(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:

(i) 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;

(ii) A legislator or employee of the legislative branch of state government;

(iii) An elected official of a county, city, or school district or employee of them;

(iv) A law enforcement agency or employee of that law enforcement agency; and

(v) 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 (i) 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 (ii) 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.

§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.

§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 three 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.

§1705 Collective bargaining.

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

§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 Chapter.

§1707 Notices requirement.

An employer shall post notices and use other appropriate means to keep his or her employees informed of their protections and obligations under this Chapter.

§ 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.”

Section 2. Nothing in this Act shall be interpreted to modify, abrogate, or reduce any protection afforded to State employees pursuant to 29 Del. C. § 5115.

Approved July 19, 2004