2022 Delaware Code
Title 19 - Labor
Chapter 19. Delaware Workplace Adjustment and Retraining
§ 1909. Violation; liability
(a) An employer who fails to give notice as required by this chapter before ordering a mass layoff, plant closing, or relocation if any of the above will cause an employment loss is liable to each employee entitled to notice who lost his or her employment for the following:
(1) Back pay at the average regular rate of compensation received by the employee during the last 3 years of his or her employment, or the employee's final rate of compensation, whichever is higher.
(2) The value of the cost of any benefits to which the employee would have been entitled had his or her employment not been lost, including the cost of any medical expenses incurred by the employee that would have been covered under an employee benefit plan.
(b) Back pay and other liability under this section is calculated for the period of the employer's violation, up to a maximum of 60 days, or ½ the number of days that the employee was employed by the employer, whichever period is smaller.
(c) Payments to an employee under this chapter by an employer who has failed to provide the advance notice of a mass layoff, plant closing or relocation that is required by this chapter or the federal Worker Adjustment and Retraining Notification Act (29 U.S.C. § 2101 et seq.) shall not be construed as wages. Unemployment insurance benefits under this title may not be denied or reduced because of the receipt of payments related to an employer's violation of this chapter or the federal Worker Adjustment and Retraining Notification Act.
(d) The amount of an employer's liability under this chapter shall be reduced by the following:
(1) Any wages, except vacation moneys accrued before the period of the employer's violation, paid by the employer to the employee during the period of the employer's violation.
(2) Any voluntary and unconditional payments made by the employer to the employee that were not required to satisfy any legal obligation.
(3) Any payments by the employer to a third party or trustee, such as premiums for health benefits or payments to a defined contribution pension plan, on behalf of and attributable to the employee for the period of the violation.
(4) Any liability paid by the employer under any applicable federal law governing notification of mass layoffs, plant closings, or relocations.
(5) In an administrative proceeding by the Secretary, any liability paid by the employer prior to the Secretary's determination as the result of a civil action brought under this chapter.
(6) In a civil action brought under this chapter, any liability paid by the employer in an administrative proceeding by the Secretary prior to the adjudication of such civil action.
(e) Any liability incurred by an employer under subsection (a) of this section with respect to a defined benefit pension plan may be reduced by crediting the employee with service for all purposes under such a plan for the period of the violation.
(f) If an employer proves to the satisfaction of the Secretary that the act or omission that violated this chapter was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of this chapter, the Secretary may, in his or her discretion, reduce the amount of liability provided for in this section. In determining the amount of such reduction, the Secretary shall consider the following:
(1) The size of the employer.
(2) The hardships imposed on employees by the violation.
(3) Any efforts by the employer to mitigate the violation.
(4) The grounds for the employer's belief.
(g) An aggrieved employee, local government, or an employee representative seeking to establish liability against an employer may bring a civil action on behalf of the person, other persons similarly situated, or both, in any court of competent jurisdiction, within 3 years of the alleged violation of this chapter. The court may award reasonable attorneys' fees as part of costs to any plaintiff who prevails in a civil action brought under this chapter. If the court determines that an employer conducted a reasonable investigation in good faith, and had reasonable grounds to believe that its conduct was not a violation of this chapter, the court may reduce the amount of any penalty it would otherwise impose against the employer under this chapter.
(h) Neither the Secretary nor any court shall have the authority to enjoin a mass layoff, plant closing, or relocation under this chapter.81 Del. Laws, c. 312, § 1;