Thank you for downloading Agent 77 s STATE EMPLOYMENT REGULATIONS FOR DELAWARE. This form is provided to you as is. As provided, we believe it meets the requirements needed for state compliance, as applicable, at the time you download it. Any substantive change to the contents of this document may result in potential legal liability for you and your company. Agent 77, Inc. accepts no liability or responsibility for any of our documents that have had the contents altered beyond simply filling in the appropriate blanks and/or replacing place holder text and adding your company logo and information. This document is provided to you with the understanding it is not a legal or accounting opinion and should not be construed as such, and that Agent 77, Inc. is not engaged in the business of rendering legal or accounting services. If you need specific advice on any legal or accounting issue, the services of a competent professional should be sought. Please see www.agent77.com/legal for more information. This and all documents downloaded from our website are Copyright 2005, 2006, 2007, 2008, 2012, 2013, 2014 Agent 77, Inc. Reminder: Agent 77 s license prohibits you from copying and distributing this STATE EMPLOYMENT REGULATIONS FOR DELAWARE to anyone outside of your company. Doing so is a violation of this license and will result in the revocation of your subscription and/or prosecution under federal copyright laws as well as possible civil litigation. Please see www.agent77.com/legal for a copy of the current license agreement. Delaware_Regs \
What s New 010107 The Delaware minimum wage was raised to $6.65 per hour as of January 1, 2007. 072407 New sections added on Breastfeeding Rights, Drug Testing, Smoking in the Workplace and Job Reference Liability. 010107 The Delaware minimum wage was raised to $7.15 per hour as of January 1, 2007. 072409 As of July 24, 2009 Delaware s minimum wage will match the Federal Minimum of $7.25 per hour. Tipped employees may be paid $2.23. 111212 - The following sections were added: Access to Personnel Files, Job Reference Liability, Work Hours and Breaks and New Hire Reporting. Changes were made to the following sections: Minimum Wage, Child Labor, Payment of Wages, Military Leave, Smoking in the Workplace, and Voting Time. 041013 - Changes were made to the following section: Continuation of Benefits. 041014 Changes were made to the following sections: Minimum Wage Delaware_Regs \
Introduction Employment laws vary from state to state with some being more employee-friendly than others. Federal regulations set minimum standards of worker protections that all employers of a given size must meet. Individual states, however, are free to grant workers additional or expanded rights or protections above this federal minimum. Virtually all employers in the U.S. are subject to federal employment regulations. Only the smallest, strictly local employers are not subject to federal regulations. If an employer does any of the following, they are participating in interstate commerce and are subject to federal employment regulations: Production of goods for commerce, such as transportation or communication Use of mail over state lines Interstate communications using the telephone Use of the Internet over state lines Interstate communications using electronic mail Make purchases from out-of-state vendors Sell to customers in other states This summary of employment regulations does not include information for those few employers not subject to the federal minimum employment regulations. Many states have regulations for public employers that are different than those for employers in the private sector. This document also does not include information on regulations (federal and state) that apply only to public sector employers. In this document we summarize the workplace regulations and worker protections available in Delaware. Although not an exhaustive list, it covers the major topics small to mid-sized employers must deal with on a regular basis. Covered areas include: Wage, hour and overtime rules (including child labor and break rules); Leaves of absence (family leaves, voting time and jury duty); Discrimination and harassment regulations; and State rules on continuation of benefits. The federally mandated, but state run new-hire reporting requirements are covered under a separate document, available for download from Libretto or from the Agent 77 store. The following Quick View table summarizes these regulations. This is followed by a more detailed description of these regulations. Please be sure to read both carefully to understand your responsibilities under Delaware and federal law. Also, see the resources section below for reference websites and Libretto tools that can help you comply with these regulations. Delaware_Regs 1 of 7
QUICK VIEW OF STATE EMPLOYMENT REGULATIONS FOR DELAWARE Topic Minimum Wage Overtime Payment of Wages Work Hours and Breaks Child Labor Family Leave Delaware Regulation $7.25 / hour Tipped employees may be paid a minimum of $2.23 Posting requirements apply. Minimum wage will change as detailed below. Non-exempt employees must be paid at least 1.5 times their regular rate for hours worked over 40 in a given week Employees must be paid at least monthly, no more than 7 days after the close of the period. Final paychecks must be delivered no later than the following payday and must include any accrued vacation. Certain information is required to be provided to employees by employers with 3 or more employees. Employees working at least 7½ contiguous hours must be given a 30-minute or more meal break after the first 2 hours and before the last 2 hours of work. Minors under the age of 18 who wok continuously for more than 5 hours must be provided with a 1/2 hour break. Employers employing minors under 18 must keep an employment certificate on file (issued by Superintendent of Schools) Federal and Delaware law prohibit minors in certain occupations. See the U.S. Department of Labor and the Delaware Department of Labor for information on these prohibitions (contact information is in the reference section). Required 30-minute break for every 5 hours worked See the details section below for restrictions on hours minors may work Delaware has no separate Family Leave aside from the Federal Law outlined below Employers with 50 or more employees must grant up to 12 weeks of unpaid family medical leave to employees who have completed a year of service or 1250 hours Leave must be granted for birth or adoption of a child, serious medical condition of the employee, to care for a family member with a serious medical condition, qualifying exigency for military leave and serious injury or illness of covered service member for military family leave. Employee must be reinstated to same or equivalent position after completion of leave Benefits must be maintained during leave Delaware_Regs 2 of 7
QUICK VIEW OF STATE EMPLOYMENT REGULATIONS FOR DELAWARE Jury Duty Military Leave Voting Time Access to Employee Files Breastfeeding Rights Drug Testing Job Reference Liability New Hire Reporting Smoking in the Workplace Discrimination and Harassment Continuation of Benefits Leave is required, but is unpaid Employee must be reinstated to same position after completion of jury duty Delaware has limited law regarding National Guard members detailed below. Federal Law is outlined below: Employers must grant up to 5 years of military leave Employee must be reinstated to same or equivalent position after completion of military leave Employers may not terminate or threaten to terminate any employee called to military service Special benefit rules apply for military leave Delaware has no voting time rules except for employees wanting to serving as election officials. Employees must be allowed once a year to inspect the content of their personnel files. Mothers must be allowed to breastfeed their child in any place that they otherwise are allowed to be. Employers are not required to provide any special time off or location for this. State and local government contractors, employers of school transportation or other motor carriers and drivers, nursing home employers, and home healthcare employers must implement a drug-free workplace policy conforming to state regulations. Employers who give out information about current or former employees to a prospective employer are generally protected from civil liability, unless the information given is knowingly false. Employees' information must be provided within 20 days of hire to the Division of Child Support Enforcement. Delaware prohibits smoking in any place of employment. For exceptions, see below. Posting requirements apply for "Smoking Permitted". Delaware prohibits employers from discriminating based on national origin, race or color, religion, age (40 or more), genetic information, physical or mental disability, marital status, sex (including sexual harassment, pregnancy, childbirth, and other pregnancy-related conditions), smoking during non-working hours, military service and sexual orientation. Details and contact information are listed below. Delaware_Regs 3 of 7
Wage, Hour and Overtime Rules Employers are subject to the federal minimum wage, hour and overtime rules through the Fair Labor Standards Act. This act specifies that businesses that do at least $500,000 in gross revenue, as well as all health care facilities and schools are subject to the federal rules. Also, employers involved in interstate commerce are subject to the federal rules. Minimum Wage Delaware minimum wage is $7.25 per hour. Employers may pay tipped employees a minimum of $2.23 per hour, provided that the total wages plus tips come to at least the minimum of $7.25 per hour. Effective June 1, 2014, the minimum wage will increase to $7.75 per hour. Effective June 1, 2015, the minimum wage will increase to $8.25 per hour. Employers must keep an approved summary of the minimum wage law and applicable regulations posted in a conspicuous and accessible location in the place of employments where employees normally pass. This summary will be provided by the Department of Labor. Finally, both federal and Delaware regulations allow employers to apply for licenses to pay sub-minimum wages to certain disabled persons and student learners and some exceptions apply for certain types of work. Please contact the U.S. Department of Labor or the Delaware Department of Labor for more information on applying for these licenses. (Contact information for both are listed in the reference section below.) Overtime Delaware has the same overtime rules as the federal government. That is, for any hours worked over 40 in a given week, non-exempt employees must be paid at least one and onehalf times their regular pay. Like the federal rules Delaware exempts certain employees from minimum wage and overtime rules. Excluded employee classes include: executive, administrative, professional, outside salespeople, and computer professionals. (Use Libretto s FLSA Resource Package for help in determining whether a given employee is exempt). Delaware also permits exemptions for certain small employers not involved in interstate commerce. See the Delaware Department of Labor web site for a list of these exemptions. Payment of Wages Delaware law requires that employees be paid at least monthly, and payment must be made no more than 7 days after the close of that period. These regular pay periods must be established and published for all employees. Final paychecks must be delivered no later than the payday following termination and must include payment for any accrued vacation in addition to all wages earned. Deductions from the final paycheck may not be made without the employees written consent, unless required by law. If a regular payday falls on a non-work day, payment must be made on the preceding workday. If vacation benefits are provided by contract, accrued vacation must be paid upon termination. Employers who have more than three (3) employees must furnish to each employee at the time of payment a statement showing wages due, the pay period, and the total amount of deductions, separately specified. In addition, such employers must: 1) at time of hiring notify each employee in writing of the rate of pay and of the day, hour and place of payment; Delaware_Regs 4 of 7
2) notify each employee in writing or through a posted notice of any reduction in the regular rate of pay, and day, hour and place of payment prior to such reduction; 3) make available to each employee in writing or through a poster notice employment policies and practices regarding vacation pay, sick leave and comparable matters; 4) post and maintain in a place accessible to the employees and where they normally pass a summary covering wage payment and collection and 5) make, keep and preserve for a period not less than three (3) years records required under the law. Work Hours and Breaks Delaware requires employees working 7½ hours in a day to have at least a 30 minute unpaid meal break after the first 2 hours and before the last 2 hours of work (unless otherwise established through a collective bargaining agreement). Employers must provide minors under 18 years of age, who work continuously for more than five (5) hours, with a nonworking period of at least 1/2 hour. Child Labor Delaware child labor law requires all employers employing minors under the age of 18 to have employment certificates on file (issued by a city or county superintendent of schools). Both federal and Delaware law prohibits minors from working in hazardous or certain other occupations. Please contact the U.S. Department of Labor or the Delaware Department of Labor for more information on restricted occupations for minor employees. Delaware law requires that any minor working 5 or more continuous hours in a day be given a 30-minute break. Employers who employ minors less than 16 years of age are subject to strict limits for hours worked per day and per week for their minor employees: Minors under 16 years of age must not be employed or permitted to work for more than: 4 hours on any day when school is in session; 8 hours on any day when school is not in session; 18 hours in any week when school is in session for 5 days; 40 hours in any week when school is not in session; and 6 days in any week. However, the hours worked by a minor enrolled in a bona fide work-study or student-learner program when school is normally in session are not counted towards the permissible hours of work. A minor under 18 years of age must not spend more than 12 hours in a combination of school and work hours. Leaves of Absence Family Leave Employers with 50 or more employees must grant up to 12 weeks of unpaid family medical leave to employees who have completed a year of service or 1250 hours. This leave must be granted for the birth or adoption of a child, serious medical condition of the employee, to care for a family member with a serious medical condition, qualifying exigency for military leave and serious injury or illness of covered service member for military family leave. After completion of the leave the employee must be reinstated to the same or an equivalent Delaware_Regs 5 of 7
position (as regards to salary, benefits and seniority). Also, benefits, such as health care coverage and retirement benefits, must be maintained during leave. Jury Duty Employers must provide leave for jury duty, but need not pay for the leave. Also, employers may not terminate or threaten to terminate any employee called to jury duty, and employees must be restored to their position within the company as if they had been on furlough. Employees covered by FLSA exemptions serving on a federal jury or grand jury must be paid their full salary (minus any jury stipend) or risk losing their exemption status. Military Leave Delaware provides that any National Guard member who is called to state active duty 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. Also employers may not discriminate against an employee for his/her military service. Employees must be granted up to 5 years of military leave and must be restored to their position (or an equivalent position) within the company as if they had been on furlough. Also, employers may not terminate or threaten to terminate any employee called to military service, Please see Libretto s White Paper on USERRA for more details on military leave. Voting Time Delaware has no voting time leave provisions except employers are not to deprive employees of employment of otherwise threaten or coerce an employee because the employee uses accrued vacation time the employee has available to serve as an election officer on election day, provided the employee is not in a critical need position. Other Employment Regulations Access to Employee Files Upon request, and within a reasonable time, employers must permit an employee, once every calendar year, to inspect his/her own personnel file during regular business hours. Employers may require an employee to inspect the records during the employee's free time. The employee may be required to file a written form to access the file. Employers may require the inspection to be in the presence of a designated official. Employers may not discharge or discriminate against an employee for making a complaint or giving information to the Department of Labor. Employers are not required to allow an employee to remove all or part of the personnel file from the employer's premises; however employees are allowed to take notes. Breastfeeding Rights Under Delaware law mothers may not be prohibited from breastfeeding their child in any location where they are otherwise authorized to be. However, employers are not required to provide any special time off or place for breastfeeding or expressing of breast milk. Drug Testing State and local government contractors, employers of school transportation or other motor carriers and drivers, nursing home employers, and home healthcare employers must implement a drug-free workplace policy conforming to state regulations. Delaware_Regs 6 of 7
Job Reference Liability Employers that in good faith disclose a current/former employee's job performance information to a prospective employer are generally immune from liability for the disclosures and their consequences. Within ten (10) days of a written request of another employer (concerning individuals seeking employment in health/child care), employers must provide a signed service letter regarding a current/former employee, including the type of work performed, the duration of employment, the nature of separation, and reasonable substantiated incidents involving violence, abuse or neglect. Employers are generally immune from civil liability for the disclosures and their consequences, and may not be made subject of actions for libel, slander or defamation. New Hire Reporting The employee's name, social security number, the dates services for remuneration were first performed by the employee, and the employer's name, address and FEIN must be reported via federal form W-4 or an equivalent within 20 days to hiring to the Division of Child Support. Smoking in the Workplace Delaware prohibits smoking in any indoor work space. Exceptions include private homes and automobiles, private function space, and designated smoking rooms at hotels & motels. Delaware requires the posting of "Warning: Smoking Permitted" signs, and they must be prominently posted and properly maintained where smoking is permitted. These signs must be posted and maintained by the owner, operator, manager or other person having control of such area. The letters on such signs must be at least 1 inch in height. Discrimination and Harassment Delaware prohibits discrimination or harassment (most are applicable to employers 4 or more employees) based on: National origin Race or color Religion Age (40 or more) Genetic information Mental or physical disability Marital status Military Service Sexual Orientation Sex (including sexual harassment, pregnancy, childbirth, and other pregnancyrelated conditions), or Smoking during non-working hours Employers must post and keep posted in a conspicuous place on their premises, where notices to employees and job applicants are customarily posted, a notice prepared or approved by the Department of Labor outlining anti-discrimination provisions. Delaware_Regs 7 of 7
Although Delaware does not have specific laws prohibited sexual harassment, employers with more than 15 employees are be covered by Title VII of the Civil Rights Act, as amended, which prohibit sexual harassment. Additionally, employers with more than 15 employers are covered by GINA which prohibits discrimination based on genetic testing information. State Continuation of Benefits Though January 1, 2014, the state's mini-cobra law will apply to employers up of to 19 employees. For employers with more than 20 employers, the federal COBRA law will apply. The following link accesses the state law: http://legis.delaware.gov/lis/lis146.nsf/vwlegislation/hb+170/$file/legis.html?open Resources/Posters Delaware Department of Labor http://www.delawareworks.com/default.shtml United States Department of Labor http://www.dol.gov/ Division of Child Support Enforcement www.dhss.delaware.gov/dhss/dcse/ Related Libretto Products FLSA Resource Package (for help in determining overtime exempt / non-exempt status of employees) Overtime Guidelines Break Period Guidelines Family Medical Leave of Absence Policy Military Leave of Absence Policy Jury Duty-Witness Leave Policy Voting Time Policy Drug & Alcohol Testing Policy & Release Forms Guidelines on Smoking In the Workplace Guidelines on Verification of Employment and Providing References Prohibited Harassment and Nondiscrimination Policy & Employee Acknowledgement COBRA Continuation Coverage Policy General Notice of COBRA Continuation Coverage Rights COBRA Continuation Coverage Election Information. Notice And Form New Hire Reporting for Delaware Delaware_Regs 8 of 7