Delaware employment law overview

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

Equal Employment Opportunity (EEO) and worker protections 

Delaware employers may be required to comply with requirements related to EEO and worker protections. 

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 but not limited to: 

• 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; 
• Military status; 
• 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 sex. 

Pay transparency  

Delaware does not have a pay transparency law applicable to private employers. 

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. 

Employee wage disclosure rights 

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. 

Breastfeeding breaks 

Under the Delaware Discrimination in Employment Act, certain employers must make reasonable accommodations for employees with pregnancy-related conditions, which includes providing break time 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. 

Scheduling 

Delaware does not have a scheduling law applicable to private employers. 

Recruiting and hiring 

Delaware does not currently have laws relating to credit checks, ban the box and E-Verify applicable to private employers.  

Wage and hour 

Delaware employers may be required to comply with certain wage and hour requirements.   

Minimum wage 

An employer in Delaware must pay its employees a minimum wage unless they are exempt. Currently, the state minimum wage is $15.00 per hour. 

Overtime 

Delaware does not have requirements for private employers related to overtime.   

Meal and rest 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. 

Employers are required to provide rest breaks to minors under certain conditions.

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. 

Pay and benefits 

Delaware employers may be required to follow certain requirements with respect to employee pay and benefits.   

Wage payment methods 

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 and lag time 

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). 

Pay 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). 

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. 

Wage theft 

Under Delaware’s wage theft law employers are prohibited from: 

• Employing an individual without reporting their employment to all appropriate government agencies and paying all applicable taxes and fees; 
• Failing to properly withhold state and federal taxes from an employee; 
• Failing to forward money withheld from an employee’s wages to the appropriate state or federal agency within seven days of the applicable pay period; 
• Paying an employee less than the minimum wage established under state and federal law for the work performed; 
• Misclassifying an employee as an independent contractor for purposes of avoiding wage, tax or workers’ compensation obligations; or 
• Knowingly conspiring to assist, advise or facilitate a wage theft violation. 

Health care continuation 

Delaware’s health care continuation coverage law applies to group policies issued to certain small employers. 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. 

Temporary disability insurance 

Delaware does not have requirements for private employers related to temporary disability insurance. 

Time off and leaves of absence 

Delaware employers may be required to follow certain requirements with respect to time off and leaves of absence.   

Family and medical leave 

The Healthy Delaware Families Act (HDFA) creates a paid family and medical leave insurance program that is funded by employer and employee contributions. Paid leave benefits are available for eligible employees taking: 

• Parental leave, to care for a child during the first year after the child’s birth, adoption or placement for foster care. 
• Family caregiving leave, to care for a family member with a serious health condition or for a qualifying exigency. 
• Medical leave, for the employee’s own serious health condition that renders them unable to perform job functions. 

Paid sick leave 

Delaware does not have a state paid sick leave law applicable to private employers. 

Other time off requirements  

In addition to the HDFA, a Delaware employer may also required to comply with other leave and time off laws, including but not limited to: 

• Jury duty leave; 
• Crime victim leave; 
• Election official leave; 
• Military leave; 
• Emergency responder leave; and 
• Isolation/quarantine leave. 

Health and safety 

Delaware employers may be required to follow certain requirements with respect to employee health and safety. 

Occupational safety and health 

Delaware does not have a federally approved state plan governing occupational safety and health. Therefore, the Occupational Safety and Health Administration has authority over private sector employers in the state. 

Drug and alcohol testing 

Private employers in Delaware are not prohibited from conducting drug and alcohol testing in the workplace and are free to establish drug and alcohol testing policies and require employees and job applicants to submit to drug and alcohol tests, if the testing programs comply with laws that protect workers from discrimination.  

Employers that adopt a written drug-free workplace policy with a drug and alcohol testing program may earn rate discounts and other economic benefits from worker’s compensation and unemployment insurance programs. 

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. 

Safe driving practices 

Delaware prohibits the use of any handheld electronic devices while driving.

Organizational exit 

Delaware employers may be required to follow certain requirements when employees exit the organization.   

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. 

Mass layoffs 

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, there are areas in which they differ, such as the events that trigger notice requirements. 

AI in employment 

Delaware does not have a law related to AI in employment applicable to private employers.