Labor and Employment Law Overview: Delaware

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

Author: XpertHR Editorial Team

Summary

• Delaware law prohibits an employer from discriminating and retaliating against employees in a variety of protected classes. Employers must also provide equal pay, pregnancy accommodations and whistleblower protections, and allow wage discussions and access to personnel files. See EEO, Diversity and Employee Relations.
• Delaware limits preemployment criminal checks and salary history inquiries. See Recruiting and Hiring.
• In Delaware, there are requirements relating to the minimum wage, meal breaks, breastfeeding breaks and child labor. See Wage and Hour.
• Delaware has laws that relate to employee pay and benefits, including pay frequency, pay statements, wage deductions, wage notice and health care continuation coverage requirements. See Pay and Benefits.
• Under Delaware law, employees are entitled to certain leaves or time off, including jury duty leave, crime victim leave, election official leave, military leave, emergency responder leave and isolation/quarantine leave. See Time Off and Leaves of Absence.
• Delaware prohibits smoking in the workplace and using an electronic device while driving. An employer may prohibit weapons in the workplace. See Health and Safety.
• When employment ends, Delaware employers must comply with applicable final pay and job reference requirements. Certain employers may also be subject to the state's mass layoff notification requirements. See Organizational Exit.

Introduction to Employment Law in Delaware

Delaware has laws that provide greater protections to employees than federal law, including pregnancy accommodation rights, a higher minimum wage and health care continuation coverage obligations for smaller employers, but generally follows federal law with respect to topics such as overtime and occupational safety.

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:

Fair Employment Practices

The Delaware Discrimination in Employment Act (DDEA) and the Persons with Disabilities Employment Protections Act (PDEPA) prohibit employers with four or more employees in Delaware from discriminating based on a variety of factors, including:

• Race (including hair texture, protective hairstyles and other traits historically associated with race);
• Marital status;
• Genetic information;
• Color;
• Age;
• Religion;
• Status as a victim of domestic violence, sexual assault and stalking;
• Pregnancy, childbirth and related medical conditions,
• Sex;
• Gender identity;
• Sexual orientation;
• National origin;
• Reproductive healthcare decisions;
• Caregiving responsibilities; and
• Disability.

In addition, the DDEA prohibits sexual harassment. Both laws prohibit an employer from retaliating against an employee because he or she has opposed a discriminatory practice or testified, assisted or participated in any manner in an investigation, proceeding or hearing to enforce the DDEA or PDEPA.

Equal Pay

Delaware's Wage Payment and Collection Act prohibits an employer from paying an employee a lower wage than the wage paid to an employee of the opposite sex in the same establishment for equal work on a job requiring equal skill, effort and responsibility, and that is performed under similar working conditions. An employer may differentiate wages based on:

• A seniority system;
• A merit system;
• A system that measures earnings by quantity or quality of production; or
• Any factor other than gender.

Discussion of Wages

Under the DDEA, an employer may not:

• Require that an employee avoid inquiring about, discussing or disclosing his or her own wages or the wages of another employee as a condition of employment;
• Require that an employee waive the right to disclose or discuss his or her own wages; or
• Terminate, discipline or otherwise discriminate against an employee for inquiring about, discussing or disclosing his or her own wages or the wages of another employee.

Pregnancy Accommodation

The Pregnant Workers Fairness Act requires an employer to provide reasonable accommodations to employees with health conditions related to pregnancy, childbirth or a related condition, including, but not limited to, lactation. Examples of reasonable accommodations include:

• Suitable seating;
• More frequent or longer breaks or periodic rest;
• Assistance with manual labor;
• Job restructuring;
• Light-duty assignment;
• Modified work schedule;
• Temporary transfer to less-strenuous or less-hazardous work;
• Time off to recover from childbirth; and
• Break time and appropriate facilities for expressing breast milk.

Access to Personnel Files

Under the Right to Inspect Personnel Files Act, employees have a right to review personnel records used to determine the employee's qualifications for the following:

• Employment;
• Promotion;
• Additional compensation;
• Termination; or
• Disciplinary action.

The employer must make personnel files available during regular business hours where the records are usually and ordinarily maintained, and when sufficient time is available for inspection during the course of a regular business day.

Whistleblower Protections

The Delaware Whistleblowers' Protection Act protects employees with respect to employer violations related to health, safety or environmental hazards or financial or accounting standards. An employer may not terminate, threaten or otherwise discriminate against an employee because he or she:

• Reported or planned to report a violation to a public body;
• Participated in an investigation held by a public body or in a court action in connection with a violation;
• Refused to commit or assist in the commission of a violation; or
• Reported a violation to the employer.

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 EEO, diversity and employee relations practices in Delaware can be found in the Delaware Employee Handbook Table of Contents, Discrimination: Delaware, Harassment: Delaware, Retaliation: Delaware, Disabilities (ADA): Delaware, HR Management: Delaware, Employee Discipline: Delaware, Delaware Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Delaware? Federal requirements can be found in Discrimination: Federal, Harassment: Federal, Retaliation: Federal, Disabilities (ADA): Federal, HR Management: Federal and Employee Discipline: Federal.

Recruiting and Hiring

Key Delaware requirements impacting recruiting and hiring are:

Criminal Checks

An employer that gains access to an expunged court or police record may not review the record or disclose to another person any information contained in the record, unless granted permission by the court that ordered the record expunged. An exception exists for employment with a law enforcement agency.

Salary History Inquiry Restrictions

Delaware law prohibits an employer from screening job applicants based on their salary history and from seeking that information from the applicant or a current or former employer. Exceptions may be made if the applicant voluntarily discloses the information or has accepted a job offer. The law also makes it an unlawful employment practice to require that an applicant's prior compensation satisfy minimum or maximum criteria.

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, Interviewing and Selecting Job Candidates: Delaware and Does This Law Apply to My Organization in Delaware? Federal requirements can be found in Preemployment Screening and Testing: Federal and Interviewing and Selecting Job Candidates: Federal.

Wage and Hour

Key Delaware requirements impacting wages and hours are:

Minimum Wage

An employer in Delaware must pay its employees a minimum wage unless they are exempt. Currently, the state minimum wage is $13.25 per hour.

Meal Breaks

Employees scheduled to work seven and one-half or more consecutive hours per day must receive an unpaid meal 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.

Breastfeeding Breaks

Under the Delaware Discrimination in Employment Act, an employer with four or more employees must make reasonable accommodations for employees with pregnancy-related conditions, which includes providing break time for expressing breast milk.

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 a variety of other 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, Child Labor: Delaware, Delaware Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in 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:

Payment of Wages

Delaware employers may pay wages in cash or by check, provided the employer makes suitable arrangements for checks to be cashed at a bank or other establishment convenient to the workplace. An employer may also pay employees by direct deposit or paycard, if certain conditions are met.

Pay Frequency

An employer generally must pay wages at least once each month and comply with the following requirements:

• With some exceptions, wages must be paid within seven days after the pay period ends;
• If the payday falls on a weekend or holiday, payment must be made on the preceding workday; and
• If an employee is absent on payday, payment must be made on the next regular workday that the employee is present, by mail at the employee's request or by credit to the employee's designated bank account (e.g., direct deposit).

Wage Deductions

Deductions may be made if required by federal or state law, with the employee's written authorization for a lawful purpose and for other reasons, such as deductions for health, welfare and benefit plans.

An employer may not make deductions for:

• 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).

Wage Notices

An employer with four or more employees must provide written notice to employees at the time of hire 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.

Pay Statements

An employer with four or more employees must furnish each employee with a pay statement with each paycheck that shows the following information:

• The total wages due;
• The pay period;
• The total amount of deductions;
• The amount of each deduction; and
• The number of hours worked for nonexempt employees.

Health Care Continuation

Delaware's health care continuation coverage law applies to group policies issued to employers with between one and 19 employees. Under state law, continuation coverage is generally available to covered employees and their eligible dependents for the same qualifying reasons as under federal law, but the maximum coverage period is nine months.

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, Health Care Continuation (COBRA): Delaware, Delaware Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Delaware? Federal requirements can be found in Payment of Wages: Federal, Involuntary and Voluntary Pay Deductions: Federal and Health Care Continuation (COBRA): Federal.

Time Off and Leaves of Absence

Delaware has a few laws relating to required time off and leaves of absence for employees. These laws include:

• Jury duty leave;
• Crime victim leave;
• Election official leave (covering employers with 21 or more employees);
• Military leave;
• Emergency responder leave (covering employers with 10 or more employees); and
• Isolation/quarantine leave.

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 time off and leave of absence practices in Delaware can be found in the Delaware Employee Handbook Table of Contents, Other Leaves: Delaware, Jury Duty: Delaware, USERRA: Delaware and Does This Law Apply to My Organization in 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:

Safe Driving Practices

Delaware prohibits the use of any electronic devices while driving.

Smoke-Free Workplace

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

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 practices in Delaware can be found in the Delaware Employee Handbook Table of Contents, HR and Workplace Safety: Delaware, Drugs, Alcohol and Smoking: 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, Drugs, Alcohol and Smoking: Federal and Workplace Security: Federal.

Organizational Exit

Key Delaware requirements impacting organizational exit are:

Final Pay

When an employee quits or is fired, suspended or laid off, wages earned must be paid by the next payday through the normal payment method (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.

Upon receiving a proper demand, an employer may pay up to $300 of wages due to a deceased employee to the following individuals, in the following order:

• Surviving children under 21 years old, or the legal guardian of children, in equal shares;
• The surviving spouse;
• Surviving children over 21 years old, in equal shares; or
• Parents, in equal shares.

An employer may pay wages exceeding $300 after it receives proper notice.

References

A Delaware employer may disclose certain information about a current or former employee (e.g., job performance, law violations) to a prospective employer without incurring civil liability. An employer may incur liability if it:

• Knowingly disclosed false information;
• Deliberately misled the prospective employer;
• Acted with malice;
• Violated a nondisclosure agreement; or
• Disclosed confidential information.

Mass Layoff Notifications

The Delaware Workplace Adjustment and Retraining Notification Act requires covered employers to provide advance notice regarding mass layoffs, plant closings or relocations to the Department of Labor, Division of Employment and Training. While the state law is modeled after the federal Worker Adjustment and Retraining Notification Act (WARN Act), there are areas in which they differ, such as the events that trigger notice requirements.

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 organizational exit practices in Delaware can be found in Mass Layoffs, Reductions in Force and Plant Closings: Delaware, Payment of Wages: Delaware, Employee Communications: Delaware, Delaware Workplace Labor and Employment Law Posters and Does This Law Apply to My Organization in Delaware? Federal requirements can be found in Mass Layoffs, Reductions in Force and Plant Closings: Federal, Payment of Wages: Federal and Employee Communications: Federal.