Delaware Labor Laws

In the US, there are federal laws in place to manage the time spent by employees in the workplace, safeguarding their rights and guaranteeing fair pay for their efforts. These laws act as directives for employers, keeping them in check, and minimizing any forms of abuse or exploitation.

The Fair Labor Standards Act (FLSA), which dates back to 1938, is a critical federal law for time management, setting hourly wage rates and overtime pay, and requiring employers to keep an accurate record of their employees’ working hours. Overtime is pegged at 1.5 times the regular hourly rate for workers who exceed 40 hours a week. However, certain job categories, including executives, professionals, and administrative employees, are exempt from overtime pay depending on their job description and salary.

The Family and Medical Leave Act (FMLA) is another essential federal law that governs time management in the workplace, entitling eligible employees to up to 12 weeks of unpaid leave for specific family and medical reasons, such as the birth or adoption of a child or caring for a family member with a serious health condition. This act also requires employers to maintain employees’ health benefits during their leave and restore them to their previous or equivalent positions upon their return to work.

Employers who contravene federal time management laws face severe legal ramifications, including fines, back pay, and damages. If workers feel that their employer has violated federal time management laws, they can file complaints with the Department of Labor’s Wage and Hour Division for investigation and legal action.

Overall, federal time management laws are instrumental in ensuring that workers are compensated fairly for their time and effort in the workplace, protecting them from abuse and exploitation by employers. The Fair Labor Standards Act and the Family and Medical Leave Act are vital federal laws that govern time management and worker compensation, ensuring fair labor practices across various sectors, including non-profit, public, and private organizations.

Delaware’s hiring laws adhere to the federal regulations that apply nationwide, as outlined in the following section. Delaware (and other comparable states) have a provision that bars employers from discriminating against candidates:

• Biological sex
• Race and national origin
• Age (applies to individuals between 40 and 70 years of age)
• Pregnancy, child or spousal support withholding
• Sexual orientation
• Gender and gender identity
• Religion
• AIDS/HIV status
• Mental and Physical Disability

Delaware operates under an employment-at-will policy, which essentially means that employees who do not have a written contract may be terminated for any reason, without warning. However, it is important to keep in mind that the termination cannot be legally justified in cases involving discrimination or employee retaliation.

According to the Delaware Department of Labor, employers must pay employees their final wages by the next payday, no matter the reason for termination.

Now, we will discuss some key labor laws in Delaware that may not be related to the categories we have previously explored. Some of these regulations include:

• OSHA Laws – When it comes to keeping workplaces safe, Delaware doesn’t have its own state-regulated program for occupational safety and health. Instead, the state follows the federal Occupational Safety and Health Act (OSHA). But there’s still help available for small businesses as well. Delaware has a Department of Labor’s OSHA Consultation Office that offers free consultations and hazard assessments to small businesses with under 250 employees per facility, and 500 per company.
• Whistleblower Protection Laws – Employees in Delaware are protected by the Whistleblowers’ Protection Act, which prohibits employers from taking adverse actions such as firing or discrimination against employees who report a violation of law or regulation to their supervisor or a public body in writing or verbally. This protection also applies to employees who participate in a public body investigation or hearing related to a workplace violation, report noncompliance or infractions to their supervisor or a public body, or refuse to participate in unlawful activities on the job. However, if an employee knowingly makes a false report, they are not protected by this law.
• Background Check Laws – Delaware has the most stringent criteria when it comes to employment in the health and caregiving sectors. The Department of Health and Social Services (DHSS) requires thorough background checks that include fingerprinting and obtaining criminal history records from State Bureau of Identification (SBI) and Federal Bureau of Investigation (FBI) databases for all candidates.
• Drug and Alcohol Testing Laws – In Delaware, employers are able to request drug testing as allowed by state law. Additionally, the Background Check Center (BCC) has made it easier to access information on potential candidates. However, it’s important to note that for jobs outside of healthcare and caregiving, employers cannot conduct background checks until after the first interview.
• Employer Use of Social Media Laws – Delaware is among the states in the US that govern an employer’s access to their employees’ personal social media accounts. The regulation prohibits employers from requesting an employee’s social media login credentials and accessing their accounts. Additionally, an employer cannot consider the contents of an employee’s social media account as a factor for employment or manipulate its settings to allow third-party access. However, exceptions can be made if an employee is under investigation for misconduct, the account or device is used for business purposes, or the employer owns the network used to access the social media account.
• Employee Monitoring Law – As stated by the Delaware Office of Labor Law, it is prohibited for an employer to intercept or monitor the phone calls, Internet traffic, or electronic correspondences of their employees without adhering to certain conditions. These conditions include providing a daily notice whenever employees access the network or use electronic and phone services, as well as giving a one-time notice in writing, requesting the employee to read and sign in agreement with the monitoring. In essence, secretly monitoring employees’ electronic activity and correspondence is not allowed. However, it is important to note that these regulations do not apply in certain situations. For instance, if law enforcement or a public body is investigating an employee due to a violation or infraction, monitoring may be permitted. Additionally, if monitoring online activity is an integral part of the company’s regular tasks such as measuring email volume, or if monitoring is carried out for the purpose of computer system protection and maintenance, it may also be allowed.
• Sexual Harassment Training Laws – Delaware mandates that employers with 50 or more employees must conduct sexual harassment prevention training within the first year of hiring for each employee. Subsequently, all employees should receive this training every two years.
• COBRA Laws – Delaware adheres to the Federal Consolidated Omnibus Budget Reconciliation Act (COBRA), which allows for continuation of health coverage for employees who have been terminated. However, COBRA applies solely to companies with 20 or more employees, leaving small businesses without any regulation to assist them. Fortunately, Delaware also has its own regulation, commonly dubbed “mini-COBRA”, that caters to business owners with less than 20 employees. This regulatory measure permits former employees to maintain their health coverage through their erstwhile employers for 9 months, even after termination.
• Expense Reimbursement Laws – Although Delaware does not mandate employers to reimburse staff for their travel expenses, they should provide compensation for the time spent on business trips. If an employer chooses not to cover travel costs, employees have the option of claiming it as a deduction on their taxes. However, this excludes injured workers. In such cases, the employer’s insurance provider must reimburse travel expenses at a rate of 40 cents per mile.
• Recordkeeping Laws – As per the regulations set by the Equal Employment Opportunity Commission, employers are required to maintain all records pertaining to employment for a minimum of one year post-termination. Additionally, it is advised that employers preserve copies of each employee’s I-9 form for a period of at least one year. This includes a range of paperwork related to employment. Records that must be kept are:
  • Employee’s full name
  • Their social security number
  • Date hired, rehired, or returned to work
  • Date employment ended and the reason(s) for separation from work
  • Amount of remuneration paid in each calendar quarter
  • Amount of remuneration paid each pay period, including the value of any remuneration in a form other than cash
  • Amount and date of any special payment, such as a bonus, gift, or prize
  • Place in which services were performed
  • Any documents relating to basic employment and earning, such as wages, timecards/timesheets, billing records, and any bonuses or deductions from pay
  • Any documents concerning payroll records, agreements, bargaining agreements, sales and purchase records
  • Records of job-related injuries are kept for 5 years
  • Records of annual reports for benefit plans are kept for 6 years
  • Records of toxic substance exposure are kept for 30 years

Delaware’s minimum wage increases every calendar year on January 1st to keep up with the rising cost of living. Currently, the minimum wage in Delaware stands at $13.25 per hour. For occupations where employees can earn more than $30 per month in tips regularly, the minimum tipped wage in Delaware can’t be lower than $2.23 per hour. Employers cannot take any tips or gratuities that employees receive and have proof of with a receipt or deposit, except if required by state or federal law.

Employees in certain industries may be exempt from receiving minimum wage requirements. Those are:

• Agriculture
• United States Government
• Executive and administrative
• Volunteer workers
• Domestic service
• Non-profit summer camp programs
• Department of Correction programs
• Outside commission paid sales
• Fishing and fish processing
• New Employees under 20 years of age
• Full-time students

Employers in Delaware must follow state labor laws and make sure to pay their employees at least once per month on designated pay days. These payments should occur within seven days after the end of the pay period in which the wages were earned. Additionally, if the pay day happens to fall on a day off, the employer is required to pay their employees on the last workday before the pay day.

In Delaware, overtime is governed by the Fair Labor Standards Act (FLSA), which sets a limit of 40 hours of work per week. Any hours worked beyond this are considered overtime, and employers are required to compensate their employees at a rate of 1.5 times their regular wage for them. For comprehensive information on your rights to overtime pay, refer to our article What are my overtime rights in Delaware?

In Delaware, overtime exceptions and exemptions follow the same regulations as all other states under the FLSA. Employees earning at least $684 per week or $35,568 per year are exempt from receiving overtime pay, while all other employees who earn less than this minimum threshold are eligible to receive overtime pay.

Learn more in detail about Delaware Salaried Employees Laws and Delaware Overtime Laws.

According to regulations from the US Department of Labor, employers are required to offer their employees a half-hour meal break for every 7.5 hours of daily work. This break should be taken after the first 2 hours of work and before the final 2 hours of work. Additionally, young employees who are minors can enjoy a 30-minute break for every 5 hours worked.

There may be restrictions on meal breaks in certain situations:

• When there is only one employee for the work role
• For emergency working employees
• When public safety is disrupted due to the break

Delaware’s Pregnant Workers Fairness Act states that employers must provide a designated nursing room (not a bathroom) for employees needing lactation breaks. The length of these breaks is decided by the employer and should be reasonable, and available for up to one year after the child’s birth. The time should be compensated and not count as leave. The employee has the right to full privacy while using the room and should not be interrupted.

Delaware provides two types of leaves – required and non-required leaves.

The following are the required leave types that Delaware employers must provide to their employees:

• Sick Leave – In Delaware, employers are not required by state law to give paid sick leave to their employees. It’s up to companies to decide whether they want to provide benefits that align with their established policies. In some cases, employers may be required to offer paid sick leave when other laws such as the Family and Medical Leave Act take precedence.
• Jury Duty Leave – When an employee has been summoned for jury duty, their employer isn’t obligated to pay for their time off. However, the employer can’t give any sort of punishment or penalty to the employee for taking that leave. Furthermore, any payment that the employee receives from the state due to serving on jury duty can’t be considered as wages.
• Emergency Response Leave – Employers aren’t required to give paid leave to volunteer emergency responders, but it’s forbidden for them to punish or discipline their workers for participating in a state of emergency declared by the Governor or sustaining injury from it.
• Organ and Bone Donation Leave – State employees, teachers, and school employees are entitled to up to 30 days of paid leave for organ donation and up to 7 days for bone marrow donation, in accordance with the law. This ensures that these individuals can take time off for medical procedures and recover without having to worry about their job security or financial stability.
• Military Leave – If an employee in Delaware is called up for military service, their employer is legally obligated to approve their leave for the entire duration of their tour, plus an additional 90 days after their tour ends. This is covered by the federal law known as the Uniformed Services Employment and Reemployment Rights Act (USERRA), which all states in the US comply with. Essentially, this law ensures that employees can safely and reliably return to their jobs after fulfilling their military obligations.

The non-required leave types are:

• Bereavement Leave – Employers have no legal obligation to provide bereavement leave or time off for attending funerals. However, should an employer decide to grant such benefits, they should conform to existing company policies.
• Vacation Leave – In Delaware, state law does not require employers to offer paid vacation leave. However, it is within their discretion to provide such benefits and align them with the company’s policies. Employers may implement policies that deny payment for vacation leave after an employee leaves or terminates, or disqualify employees from using paid leave if they fail to adhere to certain company requirements. Paid vacation policies may also include a provision requiring employees to use their leave by a certain date, preventing excessive accrual. Employers are not legally obligated to provide payouts of vacation leave upon termination unless it is specified in their company policy.
• Domestic Violence or Sexual Assault Leave – As per the Delaware Domestic Violence, Sexual Violence and Stalking Policy, employers are not mandated to offer leave, paid or unpaid, to employees who are suffering from domestic violence, sexual assault, or stalking. However, they are obligated to create a safe workplace and provide reasonable adjustments to support the victims (as long as it does not disrupt the organizational workflow).
• Voting Time Leave – Employers are not obligated to provide paid or unpaid leave to employees for voting purposes. Nevertheless, employers cannot prohibit employees from utilizing the accrued time off for engaging in election activities or working as a poll worker. This applies to all employees, excluding those employed in positions essential for public safety, healthcare, transportation, etc.
• Holiday Leave – When it comes to private employers, they aren’t legally required to provide paid leave or pay their employees extra for working on holidays (unless it counts as overtime). However, public office employees and educators in public schools are mandated to have time off on state-approved holidays.

The following are the official federal holidays observed in the US:

There are specific rules and guidelines that must be followed when employing minors. Those under the age of 14 are not allowed to work under any circumstances. Minors under the age of 18 are required to obtain a work permit before they can work. Those aged 16 and 17 may work, but they cannot be employed in hazardous jobs.

The working hours restrictions are as follows:

In order to protect the well-being, safety, and morals of minors, the Delaware Child Labor Law prohibits specific types of employment, such as those involved in:

• Docks, wharves, and marinas that accommodate sale or service of pleasure boats
• Railroads
• Distilleries, or any alcoholic beverage manufacturer
• Manufacturing of dangerous or toxic chemicals
• Occupations requiring handling of electrical wires
• Employment at a telephone or messenger company requiring them to distribute, collect or transmit goods or messages in any town with a population over 20.000 people.