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Quick and Easy Guide to Labor & Employment Law: Delaware

This state-specific guide covers labor and employment case law, statutes, rules, and regulations that HR professionals and clients often encounter or have questions about in Delaware.

At-Will Employment

Delaware is an at-will employment state. This means that employers may generally discharge employees for any reason, or no reason, so long as it is not a reason otherwise prohibited by law (such as discrimination or retaliation protections).

Right-to-Work Laws

Delaware is not a right-to-work state. Delaware employees have the right to organize and join employee organizations, bargain collectively, engage in concerted mutual activities, and be represented without any discrimination. Del. Code tit. 19, § 1303. Employees are not required to participate in collective bargaining on situations of managerial policy. Del. Code tit. 19 § 1305.

Immigration Verification

The State of Delaware has not enacted any additional employment verification procedures on employers beyond Federal I-9 compliance. There is no requirement to use E-Verify under Delaware state laws.

Drug Testing

Delaware does not have a drug-and-alcohol testing law that applies generally to employers. Delaware employers are thus free to administer drug-testing at their discretion.

Jury Duty Leave

Employees serving on jury duty shall be paid a per diem rate of $20, which shall serve as a daily allowance for reimbursement for travel, parking, and other out-of-pocket expenses. Del. Code tit. 10, § 4514. Jurors whose term of service is one day, or one trial shall not receive reimbursement for the first day of service. Id. It is unlawful for an employer to deprive an employee of employment or to threaten or otherwise coerce the employee with respect thereto because the employee receives a summons, responds to a summons, serves as a juror, or attends Court for prospective jury service. Del. Code tit. 10, § 4515.

Voting Leave

Employers cannot bribe or threaten to discharge employees in an effort to influence their right to vote in elections. Del. Code tit. 15, § 5162. Employers cannot bribe, threaten to discharge, or hinder employees appointed as election officers from performing such duties. Del. Code tit. 15 § 5161. Employers must allow eligible employees to take leave to serve as election officers on election day if they have accrued available vacation leave and are not in a critical need position. Del. Code tit. 15, § 4709.

Parental Leave

Delaware does not have a family and medical leave law that applies generally to private employers.

Delaware employers with four or more employees must make reasonable accommodations for known limitations related to employees' and applicants' pregnancies, including time off to recover from childbirth, unless employers can show that these accommodations would impose undue hardship on their business operations. Del. Code tit. 19, § 711.

Other Leave

Crime Victim Leave. Delaware employers cannot discharge or discipline employees who are crime victims or represent crime victims because they: (1) participate, at a prosecutor's request, in preparing for criminal proceedings; (2) attend criminal proceedings where their attendance is reasonably necessary to protect crime victims; or (3) attend criminal proceedings in response to a subpoena. Del. Code tit. 11, § 9409.

Emergency Response Leave. Delaware employers with ten or more employees are covered by the Volunteer Emergency Responders Job Protection Act. Del. Code tit. 19, § 1802. Employers cannot discharge or demote any employee who is a volunteer emergency responder if such employee is absent from his or her place of employment responding to a Governor-declared or President-declared state of emergency, or is absent from his or her place of employment due to injury from responding to an emergency. Del. Code tit. 19, § 1803. The emergency response leave provisions do not apply to employers who have substantially similar policies or rules that provide the same or substantially similar protections as are afforded in these provisions, and that provide the opportunity to appeal a decision to a court within Delaware. Del. Code tit.19, § 1808.

Military Leave. If any employer fails to comply with any provisions of federal or state law relating to employment rights of reservists or National Guard members, the employee may bring an action for damages for such noncompliance or such other relief as is appropriate in the Superior Court of Delaware. Del. Code tit. 20, § 905. Any National Guard member who is called to state active duty shall be entitled to the same rights, privileges and protections with respect to such member's employment as such member would have had if called for military training under federal law protecting reservists and National Guard members. Id.

Smoking Laws

Delaware employers must prohibit smoking in indoor work areas that generally are not accessible to the public, Del. Code tit. 16, § 2903, including work areas are areas where one or more employees are routinely assigned to perform work. Del. Code tit. 16, § 2902. Employers also must prohibit smoking in enclosed indoor areas that are open to the public, including elevators and common-use areas such as restrooms, lobbies, reception areas, and hallways. Del. Code tit. 16, § 2903. Smoking includes the use of e-cigarettes and other electronic smoking devices that create an aerosol or vapor. Del. Code tit. 16, § 2902. Employers must prominently post "Warning: Smoking Permitted" signs in their workplaces where smoking is permitted; the letters on the signs must be at least one inch high. Del. Code tit. 16, § 2905.

Break Time to Express Milk

Employers in the State of Delaware must not discriminate based on pregnancy, which includes lactation. Del. Code tit. 19, § 711; see also Del. Code tit. 19 § 710. Employers also cannot fail or refuse to make reasonable accommodations for known limitations related to employees' and applicants' pregnancy, including lactation, unless employers can show that these accommodations would impose undue hardship on their business operations. Del. Code tit. 19, § 711. Reasonable accommodations for pregnancy, including lactation, may include break time and appropriate facilities for expressing breast milk. Del. Code tit. 19 § 710.

Meal Breaks

Delaware employers must provide all covered employees scheduled to work at least 7.5 hours a meal period of at least 30 minutes. Del. Code tit. 19, § 707. Employers must provide the meal period after the first two hours and before the last two hours of scheduled work. Id.

Delaware wage and hour law has no specific provisions requiring private employers to provide rest breaks.

Minimum Wage, Overtime and Wage Recordkeeping

Effective January 1, 2022, , the State of Delaware set minimum wage at not less than $10.50 per hour. Del. Code tit. 19, § 902. This is set to change beginning January 1, 2023, at which time Delaware's minimum wage will increase to $11.75 per hour. Gratuities in occupations where gratuities are customary may be considered wages in an amount equal to the tip credit percentage set by the federal government. Id. Employers must still comply with federal wage laws and regulations. Id.

The youth rate to be paid to workers younger than age 18 and the training rate to be paid to adults for the first 90 days on the job is $0.50 less than the regular minimum wage. Del. Code tit. 19, § 902.

Delaware follows the federal provisions regarding overtime pay, which state that generally, if an employee works more than 40 hours, he or she must be compensated at a rate of 1.5 times the regular rate of pay at which he or she is employed. See 29 U.S.C. § 207.

Employers must maintain the following records for at least three years: (1) the name, address, and occupation of each employee; (2) each employee's rate of pay and the amount paid each pay period; and (3) the hours worked each day and each workweek by every employee. Del. Code tit. 19 § 907.

Employment to Persons with Disabilities

Jamie Wolfe Employment Act. Beginning January 31, 2024, employers who are authorized to employ an individual with a disability at a subminimum wage (pursuant to a certificate under 29. U.S.C. § 214(c) or pursuant to regulations under Del. Code tit. 19, §905) may not employ or compensate disabled individuals at an hourly rate lower than the effective rate payable under Del. Code tit. 19 § 902. Del. Code tit. 19 § 752.

Final Payments

Delaware employers must pay wages on the next regular payday when an employee quits, resigns, is discharged, suspended, or laid off. Del. Code tit. 19, § 1103.

Unemployment Insurance

Unemployment insurance benefits provide income to individuals who have lost work through no fault of their own. The benefits are intended to partially offset the loss of wages while an unemployed worker searches for suitable work or until an employer can recall the employee to work. Nothing is deducted from the employee's wages to pay for this coverage. Unemployment benefits are administered by the Delaware Department of Labor and additional information regarding the benefits may be accessed at labor.delaware.gov/divisions/unemployment-insurance. See also Del. Code tit. 19 § 3301 et seq.

Workers' Compensation

The Delaware Workers' Compensation Act, Del. Code tit. 19, § 2301, et seq., generally applies to every employer in Delaware. Del. Code tit. 19 § 2306. Employees who suffer injuries and/or occupational diseases arising out of and in the course of their employment may be eligible to receive several types of benefits. Del. Code tit 19 § 2304. A workplace injury must be immediately reported to the employer; failing to timely report an injury may result in a denial of benefits.

The workers' compensation law is administered by the Delaware Department of Labor. Additional information regarding Delaware's workers' compensation law may be accessed at labor.delaware.gov/divisions/industrial-affairs/workers-comp. Finally, Delaware recognizes a private cause of action for discrimination and retaliation under the workers' compensation law. Del. Code tit. 19, § 2365.

Child Labor

Minors between the ages of 14 – 15 and 16 – 17 are prohibited from employment during certain hours and periods and from certain types of work. Del. Code tit. 19, §§ 505, 506, 507. Additional school-based learning program exceptions might apply. Del. Code tit 19 §§ 506, 507. Employers must obtain work permits from all minor employees. Del. Code Ann. tit. 19, § 504. The laws may be found at Del. Code tit. 19, § 501, et seq.

Gun Laws

Delaware has no laws governing whether or not an employer can prohibit weapons in the workplace. Employers are therefore free to place restrictions on the right of employees to possess firearms at work, including in company parking lots.

Medical Marijuana

Delaware allows for medical use of marijuana to treat or alleviate certain debilitating medical conditions or related symptoms. Del. C. 16, § 4901a, et seq. Thus, an employer may not refuse to hire or terminate an employee upon a positive drug test for marijuana if such use was used at the direction of a health care practitioner. Del. Code tit 16 § 4905A.

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Guide last updated July 2022.

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