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Delaware Whistleblowers' Protection Act Update

Labor and Employment Alert | July 31, 2012
by: Marc S. Casarino

A pair of recent rulings have clarified elements of the Delaware Whistleblowers’ Protection Act, 19 Del. C. § 1703 (the Act).  In Curlett v. Madison Industrial Services Team, Inc., decided May 31, 2012 by the U.S. District Court for the District of Delaware, the plaintiffs worked at the defendant’s Pennsylvania office.  The plaintiffs complained about transactions involving the defendant and a Texas-based entity, after which the plaintiffs were terminated.  None of the complained of conduct occurred in Delaware.  The plaintiffs sued, claiming in part that their termination was a violation of the Act.

The court reviewed the Act’s evolution from an earlier statute that afforded whistleblower protection only to Delaware state employees.  The legislative history associated with the passing of the Act indicated that it is to protect “all employees in the state.”  In other words, the Act simply extended a protection to all employees in the state that was previously reserved only for state employees.  Accordingly, the court concluded that the Act was intended to apply only to interactions between employers and employees that take place within the State of Delaware. Because the conduct complained of occurred outside of Delaware, the Act-based claims were dismissed.

In Smith v. Delaware State University, decided July 5, 2012, the Delaware Supreme Court held as a matter of first impression that a constructive discharge can constitute a violation of the Act.  The court discussed the Act’s valuable function of protecting employees who report violations of the law for the benefit of the public, and of placing a check on persons in position of authority to ensure they do not take retaliatory action against subordinates who disclose misconduct.  The court further discussed that a successful constructive discharge claim requires a showing of unendurable working conditions so intolerable that a reasonable person would have no choice but to quit.  In this regard, the court concluded that it makes little sense to afford protection of the Act to those employees formally terminated while excluding those employees coerced into resigning because of intolerable conditions.  Nevertheless, the court found that Smith failed to state a constructive discharge claim and affirmed dismissal of her complaint.

For more information regarding this alert, please contact Marc Casarino in our Wilmington office at 302.467.4520 or

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.
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