Labor and Employment Law Overview: Delaware

Labor and Employment Law Overview requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: XpertHR Editorial Team

Summary

  • Delaware law prohibits employment discrimination based on a variety of factors and establishes protected classes not recognized under federal antidiscrimination laws. See EEO, Diversity and Employee Relations.
  • Delaware requires preemployment drug testing for certain positions in specified industries, and restricts the use of lie detector tests and genetic information. See Recruiting and Hiring.
  • In Delaware, there are many requirements relating to the minimum wage, rest breaks and child labor. See Wage and Hour.
  • Delaware has laws that relate to pay frequency, pay statements, final paychecks and health care continuation coverage. See Pay and Benefits.
  • Under Delaware law, employees are entitled to certain leaves including time off for jury duty and military service, for victims of crimes or domestic violence and for volunteer emergency responders. See Attendance and Leave.
  • Delaware laws protect employee health and safety related to distracted driving, smoking in the workplace and weapons in the workplace. See Health and Safety.
  • An employer that provides a job reference in good faith is generally protected from legal liability. See Organizational Exit.

Introduction to Employment Law in Delaware

Delaware is a middle-of-the-road state, meaning it generally does not lean toward being either employee- or employer-friendly.

Select Delaware employment requirements are summarized below to help an employer understand the range of employment laws affecting the employer-employee relationship in the state. An employer must comply with both federal and state law.

An employer must also comply with applicable municipal law obligations affecting the employment relationship, in addition to complying with state and federal requirements.

EEO, Diversity and Employee Relations

Key Delaware requirements impacting EEO, diversity and employee relations are:

Delaware Discrimination in Employment Act

The Delaware Discrimination in Employment Act (DDEA) prohibits employers with four or more employees in Delaware from discriminating based on a variety of factors, including:

  • Race;
  • Color;
  • Religion;
  • Sex (including pregnancy);
  • Sexual orientation;
  • National origin;
  • Age (40 years or older);
  • Marital status; and
  • Genetic information.

Persons with Disabilities Employment Protections Act

The Persons with Disabilities Employment Protections Act (PDEPA) parallels the federal Americans with Disabilities Act (ADA) and bans discrimination against an employee based on a statutorily defined disability. The PDEPA applies to employers with four or more employees.

Wage Discrimination

Delaware's Wage Payment and Collection Act requires an employer to pay men and women an equal rate of pay for doing equal or comparable work. State law does not, however, prevent an employer from basing pay differences on seniority, skill, merit or other nondiscriminatory factors.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on discrimination and harassment protection in Delaware can be found in the Delaware Employee Handbook Table of Contents, EEO - Discrimination: Delaware, Disabilities (ADA): Delaware, Delaware Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Delaware? Federal requirements can be found in EEO - Discrimination: Federal and Disabilities (ADA): Federal.

Recruiting and Hiring

Key Delaware requirements impacting recruiting and hiring are:

Drug Testing

Delaware law requires preemployment drug testing of certain applicants in specified industries, including:

  • Department of Corrections;
  • Nursing facilities;
  • Home health agencies;
  • Delaware Psychiatric Center;
  • Department of Services for Children, Youth and Their Families;
  • School bus drivers; and
  • Public works contracts.

The Delaware Medical Marijuana Act prohibits an employer from discriminating in hiring based on a registered qualifying patient's positive drug test for marijuana components or metabolites, unless the patient used, possessed or was impaired by marijuana on the employer's premises or during work hours.

Criminal History Background Checks

Employees and applicants need not disclose juvenile delinquency or expunged arrest records unless they are employed by, or seeking employment with, a law enforcement agency. In addition, absent a court order stating the contrary, employers may not review or disclose expunged records to third parties.

Lie Detector Tests

Most Delaware employers are prohibited from asking job applicants to submit to lie detector tests, with the exception of applicants for police officer positions.

Genetic Information

Delaware law prohibits an employer from collecting genetic information related to an applicant, an employee or an applicant's or employee's family member. Exceptions apply if the employer: demonstrates a business necessity or requests the information in connection with underwriting a welfare or benefit plan or in connection with a retirement policy.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on recruiting and hiring practices in Delaware can be found in Preemployment Screening and Testing: Delaware and Does This Law Apply to My Organization in Delaware? Federal requirements can be found in Preemployment Screening and Testing: Federal.

Wage and Hour

Key Delaware requirements impacting wages and hours are:

Minimum Wage

Delaware's minimum wage is $8.25 per hour. Separate minimum wage rates exist for the following:

  • Employees who receive tips; and
  • Different classes of employees (e.g., students) who are eligible for a training or subminimum wage.

Break Periods

All employees scheduled to work seven and one-half or more consecutive hours per day must receive an unpaid break of at least 30 consecutive minutes. The break must be given after the first two hours and before the last two hours of work. However, exemptions are allowed. Employees covered by these exemptions must be allowed to eat at their work stations and to use restroom facilities, and must be compensated for that time.

Child Labor

Child labor laws in Delaware restrict the occupations in which minors may be employed and the number of hours and times during which they may work.

In addition to the jobs prohibited by federal law, Delaware law prohibits minors under 18 from working in certain hazardous occupations, such as jobs with or in:

  • Blast furnaces;
  • Docks or wharves, other than marinas where pleasure boats are sold/serviced;
  • Railroads;
  • Erection/repair of electrical wires;
  • Distilleries of alcoholic beverages; and
  • Manufacturing of dangerous or toxic chemicals.

Minors who are 16 or 17 years old may not work and go to school for more than 12 hours total per day. They must also have at least eight consecutive hours of nonwork and nonschool time in each 24-hour period.

Minors who are 14 or 15 years old generally may not work:

  • During school hours;
  • Before 7 a.m or after 7 p.m. (9 p.m. from June 1 through Labor Day);
  • More than four hours on a school day;
  • More than 18 hours in a full school week;
  • More than six days in any week;
  • More than eight hours on a nonschool day; and
  • More than 40 hours during a nonschool week.

Delaware law requires minors under 18 to receive a minimum 30-minute break after five continuous hours of work.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on wage and hour practices in Delaware can be found in the Delaware Employee Handbook Table of Contents, Minimum Wage: Delaware, Hours Worked: Delaware and Child Labor: Delaware. Federal requirements can be found in Minimum Wage: Federal, Hours Worked: Federal and Child Labor: Federal.

Pay and Benefits

Key Delaware requirements impacting pay and benefits are:

Pay Frequency

Employers must pay wages at least once each month and comply with the following requirements:

  • With some exceptions, all employee wages must be paid within seven days from the close of each pay period;
  • If the payday falls on a nonworking day, payment must be made on the preceding workday; and
  • If an employee is absent on the regular payday, payment must be made on the next regular workday that the employee is present or, upon employee request, by mail.

Wage Deductions

An employer is not allowed to deduct or withhold wages for any of the following:

  • Damaged property or failure to return employer's property;
  • Cash or inventory shortages; or
  • Cash advances or charges for goods and services (unless there is a signed agreement specifying the amount owed and the repayment schedule).

If an employee damages the employer's property or fails to return the employer's property, the employer may seek judicial intervention by filing a lawsuit in court.

Pay Rate Notifications and Pay Statements

At the time of hire, an employer with four or more employees must provide written notification to employees regarding the:

  • Rate of pay; and
  • Day, hour and place of payment.

An employer must also notify employees in writing of any reduction to the rate of pay or change in the day, hour or place of payment.

Finally, an employer must furnish each employee with a pay statement showing the following information:

  • Amount of wages due;
  • The pay period covered by the payment;
  • Amounts of deductions (separately specified) that have been made from the wages; and
  • Total number of hours worked in the pay period (for employees who are paid an hourly rate).

Final Paycheck

When an employee quits or is fired, suspended or laid off, wages earned must be paid on the next regularly scheduled payday through the usual channels (or by mail, if requested by the employee).

An employer that agrees to pay or provide benefits or wage supplements (e.g., vacation pay) to an employee upon termination must provide the benefits within 30 days after termination.

Health Care Continuation

Delaware's health care continuation coverage law applies to group policies issued to small employers that employed between one and 19 employees on a normal business day during the preceding year.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on pay and benefits practices in Delaware can be found in Payment of Wages: Delaware, Involuntary and Voluntary Pay Deductions: Delaware, Employee Communications: Delaware and Health Care Continuation (COBRA): Delaware. Federal requirements can be found in Payment of Wages: Federal, Involuntary and Voluntary Pay Deductions: Federal, Employee Communications: Federal and Health Care Continuation (COBRA): Federal.

Attendance and Leave

Delaware has fewer laws relating to required leaves for employees than many other states, but does have mandated leave laws such as:

  • Jury duty leave;
  • Crime victim leave;
  • Domestic violence victim leave (covering employers with four or more employees);
  • Military leave; and
  • Volunteer emergency responder leave (covering employers with 10 or more employees).

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on attendance and leave practices in Delaware can be found in the Delaware Employee Handbook Table of Contents, Other Leaves: Delaware, Jury Duty: Delaware and USERRA: Delaware. Federal requirements can be found in Other Leaves: Federal, Jury Duty: Federal and USERRA: Federal.

Health and Safety

Key Delaware requirements impacting health and safety are:

Driving Policies

Delaware prohibits the use of any electronic devices while driving.

Smoking in the Workplace

Delaware's Clean Indoor Air Act prohibits smoking, including electronic smoking, in indoor workplaces. An employer is not required to provide employees with an outdoor smoking area or smoking breaks.

Weapons in the Workplace

An employer may prohibit employees from bringing firearms onto the employer's property, including parking lots, regardless of whether the employee is licensed to carry the weapon.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on health and safety requirements in Delaware can be found in the Delaware Employee Handbook Table of Contents, HR and Workplace Safety: Delaware, Employee Health: Delaware, Workplace Security: Delaware and Does This Law Apply to My Organization in Delaware? Federal requirements can be found in HR and Workplace Safety (OSHA Compliance): Federal, Employee Health: Federal and Workplace Security: Federal.

Organizational Exit

An employer that provides a reference to a current or former employee's prospective employer is presumed to have done so in good faith and, consequently, is immune from liability in a private lawsuit initiated by the current or former employee. A current or former employee may rebut this presumption, however, by showing:

  • The employer knowingly provided false information;
  • The employer purposely mislead the prospective employer;
  • The employer acted with malice;
  • The employer violated a nondisclosure agreement; or
  • The employer disclosed information considered confidential by federal, state or local law.

An employer may disclose the following types of information:

  • Job performance or work-related characteristics;
  • Actions that violated federal, state or local laws; or
  • Evaluations regarding the ability to fulfill or comply with job duties or standards.

Be aware that where there is overlap between federal, state and/or local law, complying with the law that offers the greatest rights or benefits to the employee will generally apply.

Additional information on providing references in Delaware can be found in Employee Communications: Delaware. Federal requirements can be found in Employee Communications: Federal.