Two bills increasing protections for workers who file misconduct complaints against their employers and increasing penalties for employment law violations are advancing in Delaware's General Assembly.
Delaware employers can – and, according to state Sen. Laura Sturgeon, regularly do – sue or pursue charges against employees who use the company’s electronic records as evidence in a misconduct complaint.
Sturgeon says the Delaware computer crimes law that makes those forms of retaliation possible can be enough to dissuade employees from documenting or reporting their employer’s wrongdoing.
“Not only will their claim get thrown out because some of their evidence is from electronic records," she said, "but they could end up being countersued for more [than the damages they claim in their original lawsuit].”
At the beginning of June, Sturgeon introduced legislation that would amend the computer crimes law to make an exception for whistleblowers — a proposal the Senate passed unanimously on Thursday.
Sturgeon is also the sponsor of a bill that would raise the caps on the punitive and compensatory damages a court can impose on employers who violate workplace protections.
Delaware relies on a 1991 federal civil rights law to set caps on court penalties for employers who violate workplace protections. For an employer with more than 500 employees, the penalty can’t exceed $300,000, even if a jury determines a higher penalty is necessary.
State Sen. Laura Sturgeon argues the caps should be adjusted to reflect 30 years of inflation and maintain a disincentive against workplace harassment or discrimination.
Her bill would increase penalties for employers of all sizes, with the cap for the largest employers raised to $1 million. For comparison, the federal Occupational Safety and Health Administration (OSHA) has rarely imposed fines of more than $100,000 on employers who violate workplace safety rules in the past decade; the largest recent penalty, issued to outgoing Port of Wilmington operator Gulftainer, fell just below $300,000.
Facing questions in a Senate Labor Committee hearing on Wednesday about whether increased penalties could discourage businesses from moving to Delaware, employment attorney Pat Gallagher – who worked with Sturgeon on the bill – noted employment rights cases rarely reach a jury, so the change would likely not drastically increase the total annual penalties paid by Delaware businesses.
“Employment discrimination plaintiffs are only successful in reaching a jury and winning about 15 percent of the time," he said. "It’s a staggeringly low number of cases that are actually successful.”
The bill doesn’t include a fiscal note, but Delaware’s Department of Human Resources says the state may need to budget for future lawsuits by state employees – an unusual recommendation from a state agency. It advanced out of the Labor Committee and will now move to the Senate floor.
