The Delaware Employment Law Guide

The state laws every business owner should know

Businesses must post all applicable state and federal labor law posters in the workplace.

Delaware labor law posters to download

Federal labor law posters to download

Wages and Breaks

Minimum wage
$8.75

The current minimum wage in Delaware is $8.75.

It will be raised to $9.25 Oct. 1, 2020.

Tipped min wage
$2.23

The current minimum wage for tipped employees is $2.23.

Employees may agree to participate in a tip pooling or sharing arrangement, but employers cannot be coerced to do so.

If more than one employee provides direct service to customers, the employer can require the employees to participate in a sharing system that does not exceed 15% of the primary gratuities.

Overtime
1.5X

Delaware law requires employers to pay non-exempt employees 1.5 times their regular rate of pay for all hours worked over 40 in a workweek. The Fair Labor Standards Act also requires that non-exempt employees be paid 1.5 times their regular rate of pay for all hours worked over 40 in the workweek.

The federal overtime rule stipulates that the minimum salary requirement for administrative, professional, and executive exemptions is $684 per week, or $35,568 per year. Workers making at least this salary level may be eligible for overtime based on their job duties. 

Meal breaks
30 min unpaid per 7.5 hrs

Employers are required to provide meal breaks of at least 30 minutes to adult employees who work 7.5 hours or more in a day.

The break can be unpaid, and must be given sometime after the first 2 hours of work and before the last 2 hours.

Minor breaks
30 min per 5 hrs

Minors must receive a 30-minute break for every 5 consecutive hours of work.

 

Final Paycheck

Employers must pay all final wages to employees who separate from employment for any reason (including termination, resignation, or separation due to a labor strike) by the next regularly scheduled payday.

Child Labor

Minors 14 and 15 years of age may not work: Before 7 a.m. or after 7 p.m. except from June 1 through Labor Day, when they may work until 9 p.m., more than 4 hours a day on school days, more than 8 hours a day on non-school days, more than 18 hours in any week when school is in session for 5 days, more than 6 days in any week, more than 40 hours a week when school is not in session, or more than 5 hours continuously without a break of at least 30 minutes.

Minors 16 and 17 years of age may not work more than 12 hours in a combination of school and work hours per day, or more than 5 hours continuously without a break of at least 30 minutes. They also must have at least 8 consecutive hours of non-work, non-school time in each 24-hour period.

Leave Requirements

Sick days

Employers are not required to provide paid or unpaid sick leave but must comply with their own established policies if they choose to implement one.

medical and family leave

Delaware has no statute on medical or family leave, but may be required to provide employees unpaid leave in accordance with the federal Family and Medical Leave Act.

bereavement leave

Employers are not required to provide bereavement leave.

vacation time

Employers are not required to provide paid or unpaid vacation leave but must comply with their own established policies if they choose to implement one.

Employers may establish a contract that denies employees payment for accrued vacation leave if they resign, if they are terminated, or if they fail to meet certain requirements.

Employers can cap the amount of vacation time that can be accrued.

holiday leave

Private employers are not required to provide paid or unpaid time off for holidays.

Jury Duty

Employers are not required to pay an employee for time taken to respond to a jury summons, but they are not allowed to punish the employee in any way and may not require them to use any available vacation or sick leave. 

Voting leave

Employers are not required to allow employees time off, either paid or unpaid, to vote.

An employer cannot prevent employees from using any available leave to act as an election officer as long as the employee is not in a critical need position.

Military leave

Public school employees are entitled to take military leave when they are called to active duty. The employee is entitled to return to their job after their service.

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) is applicable to all employers in the United States.

Witness Leave

Employers are not required to provide their employees with leave to appear as a witness in court, except for school bus drivers, aides, and crossing guards who testify about someone passing a school bus when its lights were flashing. Employers cannot take any adverse action against these types of employees for taking leave preparing for or appearing as a witness.

Crime Victim Leave

Employers cannot take any adverse action against an employee who is the victim of a crime (or their representative) for preparing for a criminal proceeding at the prosecutor’s request or for attending a criminal proceeding.

Hiring, firing, and more

discrimination

Federal law makes it illegal for an employer to discriminate on the basis of: Race, Color, Age, Sex, Sexual orientation, Gender, Gender identity, Religion, National origin, Pregnancy, Genetic information, including family medical history, Physical or mental disability, Child or spousal support withholding, Military or veteran status, Citizenship and/or immigration status.

Additionally, Delaware prohibits discrimination based on membership in a volunteer emergency responder organization.

Termination

Delaware is an employment-at-will state, which means that without a written employee contract, employees can be terminated for any reason at any time, provided that the reason is not discriminatory and that the employer is not retaliating against the employee for a rightful action.

Record Keeping

Regarding employment and payroll data, under the Fair Labor Standards Act (FLSA) and others, you must:

For at least 3 years: keep payroll records, certificates, agreements, notices, collective bargaining agreements, employment contracts, and sales and purchase records. Also keep completed copies of each employee’s I-9 for three years after they are hired. If the employee works longer than three years, hold on to the form for at least one year after the employee leaves. 

For at least 2 years: Keep basic employment and earning records like timecards, wage-rate tables, shipping and billing records, and records of additions to or deductions from wages. Also keep the records that show why you may pay different wages to employees of different sexes, such as wage rates, job evaluations, seniority and merit systems, and collective bargaining agreements.

For at least 1 year: The Equal Employment Opportunity Commission says employers should keep all employment records for at least one year from the employee’s date of termination. 

Other record-keeping laws that may apply to you: 

Under the Occupational Safety and Health Act, you need to keep records of job-related injuries and illnesses for five years. But some records, like those covering toxic substance exposure, have to be kept for 30 years.

You must keep files of benefit plans and seniority and merit systems while they are in effect and for at least a year after they end. You must also retain summary descriptions and annual reports of benefits plans for six years.

If your company is covered by the Family and Medical Leave Act, you must also retain relevant records of leaves, notices, policies, and more for three years.

Additional laws that may apply to you

Drug and alcohol testing

Delaware does not explicitly allow or prohibit testing employees or applicants for drugs or alcohol, except for school bus drivers, nursing homes, home health agencies, and certain governmental employees.

COBRA

COBRA is a federal law that allows many employees to continue their health insurance benefits after their employment ends. Because federal COBRA only applies to employers that have 20 or more employees, many states have adopted their own versions of the law, which are known as “mini-COBRAs.” Delaware’s mini-COBRA allows employees to continue their coverage for up to nine months. Employers must provide notice within 30 days of the triggering event to the employee and the policy administrator.

 

Whistleblower protection

Employers may not discharge or discriminate against an employee, because the employee reported a violation of the law, because the employee participated in a proceeding regarding an alleged violation of the law, or because the employee refused to violate the law or assist in violating the law.

Background checks

Delaware requires that employers conduct background checks on the following types of employees or applicants: Department of Corrections personnel, childcare workers, healthcare personnel, public school personnel, school bus drivers, and nursing home personnel.

Arrest and Convictions Checks

Employers are prohibited from asking applicants about expunged criminal records, and applicants are not required to disclose criminal records that have been expunged.

 

Pregnancy Workers Fairness Act

Delaware’s Pregnant Workers Fairness Act requires employers to provide reasonable accommodations to employees whose ability to work is limited by pregnancy, childbirth, breastfeeding, and related conditions. Examples of reasonable accommodations include: more frequent or longer breaks; modifying no-food-or-drink policies; light-duty assignments; temporary transfer to an alternative position; and modified work schedules.

Employee Monitoring

Employers must inform their employees before monitoring their phone calls, e-mail messages, or internet use. The notice may be electronic.

Delaware is an “all parties” consent state, meaning every person on a phone call must be aware that they are being monitored or recorded and have consented by placing or continuing the phone call.

This means employers may monitor or record phone calls between their own employees only if each employee has been given notice that phone calls may be monitored or recorded. However, phone calls placed by employees to outside parties may not be monitored or recorded unless the outside party has also consented.

Sexual harassment training

Any public or private sector employer with 50 or more employees are required to provide harassment prevention training.

All new hires must receive training within 1 year of commencement of employment.   Once the employees have received the initial training, they must be retrained on harassment prevention every two years thereafter.

Compliance Calendar

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Remember

This summary is not qualified legal advice. Laws are always subject to change, and they can vary from municipality to municipality. It’s up to you to make sure you’re compliant with all laws and statutes in your area. If you need more compliance help, we recommend consulting with a qualified lawyer, checking with your local government agencies, or signing up for Homebase to get help from our certified HR Pros. 

Additional Resources