Delaware Wrongful Termination Laws

Learn about illegal reasons for firing in Delaware.

If you've recently lost your job, you might be wondering whether you have grounds for a wrongful termination lawsuit against your former employer. In Delaware, as in other states, employees work at will. This means an employee can generally be fired at any time and for any reason, or for no reason at all.

But there are some exceptions to the at-will rule. If your Delaware employer fires you for discriminatory reasons, in violation of an employment contract, or in retaliation for exercising your rights, for example, you may have a legal claim against your employer for wrongful termination.

Every state’s laws on wrongful termination are different. This article covers some of the common legal grounds you might have for suing your employer in Delaware for wrongful termination. But it’s not a comprehensive list of Delaware employment rights, which can change as courts issue new rulings and legislators pass or modify laws. To find out the full extent of your legal claims, speak to an experienced Delaware employment lawyer. To learn more about Delaware employment law, contact the state Department of Labor.

Discriminatory Firing

Under federal law, it is illegal for an employer to fire an employee based on a protected characteristic. Federal law prohibits employers from firing employees based on race, color, national origin, sex, pregnancy, religion, age (if the employee is at least 40), disability, citizenship status, or genetic information. However, only employers with a minimum number of employees must comply with these laws. Most types of discrimination are prohibited once an employer has at least 15 employees; the minimum is 20 employees for age discrimination and four employees for discrimination based on citizenship status.

Delaware law prohibits discrimination based on race, color, national origin, sex, religion, disability (physical or mental), age (40 and older), genetic information, sexual orientation, gender identity and expression, and marital status. In Delaware, employers with at least four employees must comply with these laws.

These laws also make it illegal for an employer to retaliate against you for asserting your rights. For example, if you complain to your company’s HR department that you believe you were passed over for promotion because of your age, your employer may not discipline or fire you for your complaint. Likewise, your employer cannot fire you for participating in an investigation of a discrimination complaint (no matter who made the complaint), testifying in court, or making other efforts to stop discriminatory practices.

Before filing a discrimination or retaliation lawsuit, you must file a complaint with the appropriate government agency. In Delaware, the Division of Industrial Affairs of the Delaware Department of Labor enforces state laws prohibiting discrimination. In many cases, state fair employment practices agencies will record your complaint with the Equal Employment Opportunity Commission (EEOC), the agency that enforces federal antidiscrimination laws. However, you should check to make sure. If not, you may also have to file a complaint with the EEOC; you can find contact information for the nearest office at the EEOC’s Field Offices page.

Breach of Contract

If you have an employment contract promising you job security, you may not be an at-will employee. In Delaware, an employment contract may be written, oral, or implied. In the first two types of contracts, your employer makes oral or written promises not to fire you for a certain period of time without good cause. In an implied contract, your employer doesn't make express promises, but acts in a way that creates a reasonable expectation that you would continue to be employed. For example, if your employer made comments that you would "have a long future at the company as long as you performed well," that may create an implied contract of continued employment. If you have an employment contract, and your employer fires you without good cause, you have a legal claim for breach of contract.

Wage and Hour Issues

In Delaware, the current minimum wage is $7.75 per hour, but this will increase to $8.25 per hour on June 1, 2015. Under federal law, employees in Delaware are entitled to overtime pay when they work more than 40 hours in a workweek. Employees who work 7.5 or more hours a day are entitled to an unpaid 30-minute meal break, which must be scheduled after the second hour of work and before the last two hours of work. It is illegal for employers to fire an employee for making a wage complaint with the Department of Labor, testifying in a wage hearing, or instituting a legal proceeding to recover unpaid wages.

Time Off Work

State and federal laws give employees the right to take time off work for certain civic obligations and personal responsibilities. Employers may not discipline or fire workers for exercising these rights. In Delaware, these rights include:

  • Military leave. Under federal law, employees have the right to take up to five years of leave to serve in the military, with the right to be reinstated when they return to work. (This law also prohibits discrimination against employees based on their military service, protects employees from discharge without good cause for up to one year after they return from military duty, and provides other protections; see Nolo’s article Taking Military Leave for more information.) Delaware law extends these rights to members of the state National Guard who are called to active state duty.
  • Jury duty. Employees are entitled to take unpaid leave for jury service. Employers who fire or penalize an employee for jury service are subject to criminal penalties and damages in a wrongful termination lawsuit.
  • Family and medical leave. Although Delaware doesn’t have its own family and medical leave laws, Delaware employees are protected by the federal Family Medical Leave Act (FMLA). The FMLA requires employers with 50 or more employees to provide eligible employees with up to 12 weeks off, unpaid, every year for a serious health condition, to care for a family member with a serious health condition, to care for a new child, or to handle certain practical matters arising out of a family member’s military service. Employees can take up to 26 weeks off in a single year to care for a family member who is seriously injured while serving in the military. Employees who take FMLA leave must be reinstated to the same position once their FMLA leave is over. For more information, see the articles at Nolo's FMLA page.

Other State Claims

  • Workers' compensation. Employers may not fire or retaliate against an employee for filing a workers' compensation claim, reporting a violation of the workers' comp laws, or testifying in a workers' comp hearing.
  • Work safety. Employers are prohibited from firing or taking other negative action against employees who make complaints, cooperate in investigations, or assist in legal proceedings with regard to violations of hazardous chemical safety laws.
  • Whistleblowing. Employers cannot retaliate against employees for reporting illegal activity to their employers or to a government agency, refusing to participate in illegal activity, or assisting in legal proceedings having to do with the employer's illegal activity.

What to Do Next

If you think you were fired illegally, talk to a Delaware employment lawyer. A lawyer can help you sort through the facts and assess the strength of your claims. A lawyer can also inform you of other state or local claims that you may have in addition to those listed above. Whether you want to try to get your job back, negotiate a severance package, or sue your employer in court, a lawyer can walk you through your options and help you decide on how best to proceed.

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