Guide to Delaware employee benefits and HR rules

Is your organization compliant with Delaware's employment laws?

If you have a Delaware-based company or employ Delaware workers, learning everything you need to know about HR compliance in Delaware is essential. This guide will provide a general overview of Delaware's employment and benefit regulations for small to medium-sized businesses.

Topics covered in this guide include:

• What are employment laws in Delaware?
• What are employees’ rights in Delaware?
• Required and non-required employee benefits in Delaware
• Health insurance in Delaware
• Wage laws in Delaware

What are employment laws in Delaware?

The federal government sets minimum benefits and HR requirements for employers nationwide. However, many states create their own employment laws to offer additional employee protection, and Delaware is no exception.

Before opening or expanding your business in Delaware, you should familiarize yourself with state employment laws.

In Delaware, employers must follow several state-specific laws in addition to federal employment laws, such as:

• At-will employment
  • Delaware is an “at-will” employment state, meaning employers and employees can end an employment agreement at any time, with or without cause. However, by law, employers can’t terminate an employee due to discrimination or other illegal factors.
  • Employees who believe their employer fired them illegally can file a complaint.
• Discrimination in Employment Act
  • It’s illegal for employers with four or more employees to discriminate against employees based on race, marital status, genetic information, color, age (40 or older), religion, sex, pregnancy-related conditions, sexual orientation, immigration status, gender identity, and national origin.
  • The Act also applies to volunteer emergency responders, victims of domestic violence, sexual offenses, or stalking, reproductive health decisions, and family responsibilities.
• Disabilities Employment Protections Act
  • It’s illegal for private and public employers with 15 or more employees to discriminate against qualified individuals with disabilities in the job application process as well as hiring, firing, promotions, compensation, training, and other privileges of basic employment.
  • Additionally, employers can’t ask job applicants if they have a disability or the nature or severity of a disability.
• The Crown Act
  • This Act prohibits Delaware employers from firing, refusing to hire, or otherwise discriminating against a job candidate or employee if they have a race-based hairstyle. This includes hair texture and protective hairstyles like braids, locks, and twists.
• Wage Payment and Collection Act
  • This law prohibits wage discrimination between two employees doing equal work requiring equal skill and effort based solely on sex. However, employers may base pay on seniority, merit, quantity or quality of production, or factors other than gender.
• Delaware sexual harassment training laws
  • All public and private employers with 50 or more employees must provide harassment prevention training. New hires must receive training within one year of employment. After initial training, employees must receive it every two years.
• Child labor laws
  • The law prohibits children younger than 14 from working. Minors aged 14-17 can work but have time and occupation restrictions. Employers must have appropriate permits for all minor employees younger than 18.
• Medical marijuana laws
  • Delaware law prohibits employers from firing or refusing to hire an employee because they’re a medical marijuana cardholder or if they test positive for marijuana or metabolites. Employers can take action against employees for using or possessing the drug in the workplace or during business hours.
• Background, criminal history, and credit checks
  • Delaware employers must run background checks on Department of Corrections employees, childcare and healthcare workers, public school employees, nursing home workers, and school bus drivers.
  • It’s illegal for employers to ask applicants about their criminal or credit history until they extend a conditional job offer.
• Delaware’s special employment practice laws
  • These laws require healthcare and childcare business owners to check their applicants’ references and check the child abuse or adult abuse registries. This is to ensure employers don’t hire an individual with a history of violence or who has abused adults and children in their care.
• Compensation history inquiry restrictions
  • It’s illegal for employers to consider applicants based on their compensation histories. They also may not ask an applicant or their current or former employers about their compensation history or require an applicant's prior compensation to meet a minimum or maximum amount.
  • Employers may discuss compensation if the applicant voluntarily brings it up or if the applicant has already accepted the job offer.
• Social Media and the Workplace Law
  • With few exceptions, Delaware law prohibits employers from gaining access to a job applicant’s or current employee’s personal social media accounts. This includes asking applicants and employees for their usernames or passwords, compelling individuals to add their employer to their social media contact lists, or requiring them to change their privacy settings.
• Workplace Accommodations for Nursing Mothers
  • The Pregnant Workers Fairness Act requires Delaware employers to provide employees limited by pregnancy, childbirth, and related conditions with reasonable accommodations, such as frequent or longer breaks, light work assignments, temporary job changes, different work schedules, and more.
  • Under the Fair Labor Standards Act (FLSA), employers must provide nursing mothers with breaks to express breast milk in a private location for one year after their child is born unless doing so places undue hardship on business operations. Bathrooms and toilet stalls don’t meet the private location requirement.

Now that we’ve reviewed a few Delaware-specific laws, we’ll review the state’s employee rights.

What are employees’ rights in Delaware?

Employees in Delaware have many rights under state and federal law. Regardless of your organization's size, you must know your employees' rights if you have or plan to hire employees in the state.

Some state rights include:

• Fair wages
  • Employers must pay at least the state minimum wage and overtime laws.
• Meal periods
  • All employees working a 7.5-hour or longer shift must receive a 30-minute meal break unless exempt. The break can be unpaid but must occur sometime after the first two hours of work and before the last two hours that the shift ends.
• Rest breaks
  • Minors must receive a 30-minute break for every five consecutive hours of work. However, the law doesn’t require employers to give adult employees rest breaks.
  • If employers allow breaks, they must pay for breaks shorter than 20 minutes. Employers don’t have to pay for break times lasting 30 minutes or more.
• Right-to-work
  • Employees can organize, join labor unions, bargain collectively, participate in mutual activities, and receive representation without discrimination.
• Discussion of wages
  • Employees have the right to speak about how much they earn. Employers can’t force their employees to sign waivers that limit their discussion around wage information. They also can’t retaliate against employees who discuss their wages with coworkers.
• Employee monitoring laws
  • Delaware is an “all parties” consent state. Employers must notify their employees and whoever they’re speaking to before monitoring their phone calls, e-mails, or internet usage.
• Access to personnel files
  • Employees have the right to access their personnel records to learn their eligibility for employment, promotions, additional compensation, disciplinary measures, and potential termination.
  • Employers must make the records available during the employee’s regular shift when they have enough free time to review them. However, employers can limit access to once every 12 months.
• Smoke-free workplace

• Under Delaware’s Clean Indoor Air Act, all employees have a right to smoke-free indoor work areas. The law defines these spaces as where one or more employees regularly work.
• Employers must post clear and readable signs in the areas where smoking is allowed at their workplaces.

• Consolidated Omnibus Budget Reconciliation Act (COBRA)
  • Federal COBRA gives employees at organizations with 20 or more employees the right to continue their employer-sponsored health coverage for up to 18 months after employment ends. This extended coverage also applies to any dependents on an employee’s plan, such as the employee’s spouse or children younger than 26.

• Because of Delware’s mini-COBRA law, all employers with one to 19 employees must offer continuation coverage to their employees and their dependents. The maximum coverage period under the state’s mini-COBRA law is nine months.
• Employers must notify the employee and the policy administrator within 30 days of the triggering event.

• Delaware’s Worker Adjustment and Retraining Notification Act
  • Employees have the right to at least 60 days' written notice before a mass layoff, plant closure, or relocation. Unlike the federal WARN Act, Delaware’s law applies to employers with 100 or more employees who work a combined total of at least 2,000 hours per week.

Health insurance in Delaware

State and federal laws don’t require employers to offer health insurance in Delaware if they have fewer than 50 employees. However, federal law requires employers with 50 or more full-time equivalent employees (FTEs) to provide affordable insurance with minimum essential coverage (MEC) and minimum value that satisfies the Affordable Care Act’s (ACA) employer mandate.

Even if you’re not required to provide health benefits, choosing to do so is a great way to attract and retain top talent. Traditional group health insurance remains a popular option for employers. But, rising healthcare costs can make it challenging for small to medium-sized businesses on a budget to afford the premiums.

Small group health insurance premiums in some Delaware counties can get as high as $672 per month. In contrast, the average monthly premium for a 40-year-old on a silver individual health plan can be as low as $567. This makes covering the cost of individual health plans more accessible than offering a group plan in many parts of Delaware.

Employers interested in offering a health benefit can take advantage of Delaware’s lower individual plan prices by implementing an alternative health benefit, like a health reimbursement arrangement (HRA).

Health reimbursement arrangement (HRA)

An HRA is an IRS-approved health benefit funded by the employer. It allows you to reimburse your employees, tax-free, for their individual health insurance premiums and qualifying medical expenses.

With an HRA, your employees choose the individual health insurance plan that suits their medical needs and budget. Employers save more money by not purchasing a group health insurance plan, not experiencing annual rate hikes, and only reimbursing their employees when they incur an approved healthcare expense.

Some HRAs, such as the individual coverage HRA (ICHRA), can help employers satisfy the federal regulations for applicable large employers (ALEs), making an HRA a health benefit that can work for employers of all sizes.

Learn more about each HRA

Wage laws in Delaware

Wages in Delaware are subject to various state laws. We've compiled the most critical requirements to know below.

Minimum wage laws

The minimum wage in Delaware is $13.25 per hour, which is higher than the federal minimum wage. It will rise to $15 per hour in 2025. Certain employees are exempt from standard minimum wage requirements.

Under the Jamie Wolfe Employment Act, it’s illegal for employers to pay individuals with disabilities a subminimum wage. All employees must receive at least the regular minimum wage rate.

Tipped wages

Currently, the tipped minimum wage is $2.23 per hour. If the employee’s base wages plus average weekly tips don’t equal the non-tipped minimum hourly rate, the employer must make up the difference. If the employee makes more than minimum wage in tips, the employer doesn’t need to pay anything extra.

Tip pooling is legal in Delaware under certain circumstances. However, the amount of the tip pooling can’t be more than 15% of the tips the employee receives.

Overtime pay

Delaware’s overtime requirements are similar to the federal overtime law. Employers must pay employees an overtime rate of 1.5 times their regular rate for any hours they work more than 40 in a standard workweek.

Like the minimum wage and hour law, certain employee classes are exempt from overtime pay under federal regulations if they meet the minimum salary requirements.

Pay notices

Employers with four or more employees must notify newly hired employees in writing about their pay rate, payment schedule, payment method, any fringe benefits, and all company policies. They must also give employees written notice when their wages are reduced or there are changes in pay schedule, method, or benefits.

Pay statements

Delaware employers with four or more workers must provide employees with an itemized pay statement at least once monthly or on their regularly scheduled payday.

Pay statements must include the following:

• Total regular wages
• The pay period
• A list of deductions
• The amount of each deduction
• The number of hours worked (only for non-exempt employees)

Pay frequency and method

Under Delaware law, employers must pay employee wages at least once a month within seven days from the end of each pay period. If the regularly scheduled payday occurs on a non-working day, employers should pay wages the day before.

Suppose an employee is absent on payday. In that case, employers should pay them the next day they’re at work or by mail (if the employee requests it).

Delaware employers may pay wages in cash or by check if they arrange for employees to cash them at a location close to the workplace. An employer may also pay by direct deposit upon written request from the employee.

Pay deductions

Employers can deduct pay for reasons required by federal or state law and other reasons with the employee's written approval, such as premium payments for benefit plans. However, there are specific items that employers can’t deduct from their employees’ paychecks.

The following aren’t allowable pay deductions under Delaware law:

• Cash or inventory shortages
• Cash advances or charges for goods and services
  • This is allowable if a signed agreement outlines the amount owed and the repayment schedule between the employee and employer.
• Damaged property
• Failure to return employer’s property

Recordkeeping

Missouri employers must keep accurate records detailing each employee's name, address, occupation, pay rate, total wages per payroll period, and hours worked per day and week.

Employers must keep these detailed payroll records on file on or near their workplace for at least three years and make them available for inspection or audit upon request.

Final pay

When an employee separates from employment—regardless of how they left the company—they must receive their final paycheck on the next regularly scheduled payday. Employers may pay final wages to employees through their regular payment method or by mail if requested.

After proper demand, employers may pay up to $300 of a deceased employee’s owed wages to the following individuals in order:

1. Surviving children younger than 21 years old or the children’s legal guardian, in equal amounts
2. The surviving spouse
3. Surviving children 21 years old or older in equal amounts
4. Parents, in equal amounts

After an employer receives proper notice, they may pay out any final wages exceeding $300.

Frequently asked questions