{ "type": "practice-guide", "canonical": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware", "links": [ { "rel": "self", "href": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware.json", "type": "application/json" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware", "type": "text/html" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware/markdown", "type": "text/markdown" }, { "rel": "alternate", "href": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware/json", "type": "application/json" }, { "rel": "license", "href": "https://creativecommons.org/licenses/by/4.0/", "type": "text/html", "external": true, "title": "CC BY 4.0" } ], "data": { "topic": "wage-and-hour", "state": "delaware", "frontmatter": { "title": "Wage and Hour Law in Delaware", "description": "Delaware employers must pay at least $15.00 an hour under the state Minimum Wage Act, look to the federal Fair Labor Standards Act for overtime, give an unpaid meal break of at least 30 minutes on shifts of 7½ or more consecutive hours, and follow the Wage Payment and Collection Act on paydays, final pay, pay statements, deductions, and wage claims, while a separate Workplace Fraud Act governs worker classification in the construction services industry.", "state": "Delaware", "lastReviewed": "2026-09-28", "license": "CC BY 4.0", "authors": [ "steven-obiajulu" ], "summary": { "minimumWageFloor": "aboveFederal", "bottomLine": "Delaware requires a minimum wage of at least $15.00 an hour, leaves overtime for covered employers to the federal forty-hour workweek rule, requires an unpaid meal break of at least 30 minutes on shifts of 7½ or more consecutive hours, and makes final wages due on the later of the next regular payday or three business days after the last day worked.", "keyLaw": [ { "source": "del-902a-rate" }, { "source": "del-1103a1-final-pay-deadline" }, { "source": "del-902b-floor" }, { "source": "del-1102a-paydays" } ], "dailyOvertime": "weeklyOnly", "mealRestBreaks": "mealBreakOnly", "latePayPenalty": "liquidatedDamages", "payFrequency": "monthly", "wageStatement": "basicRequired", "workerClassificationTest": "abc", "tipCredit": "partialTipCredit", "currentAsOf": "2026-09-28" }, "about": [ "Delaware minimum wage", "Federal overtime for Delaware workers", "Meal breaks", "Final pay and paydays", "Tipped employees", "Worker classification", "Wage claim enforcement" ] }, "questions": [ { "slug": "minimum-wage", "label": "What is the state minimum wage, and how does it relate to the federal floor?", "heading": "What is the minimum wage?", "answerText": "Delaware employers must pay covered employees at least $15.00 an hour, the rate the state Minimum Wage Act has set since January 1, 2025. That is above the federal minimum wage of $7.25 an hour under the Fair Labor Standards Act. If a federal minimum wage higher than the state rate is established, the Delaware minimum wage becomes equal to the federal rate, except as the Act otherwise provides. The Act defines an employer broadly. The definition covers individuals, partnerships, associations, corporations, and trusts. It also covers any person acting directly or indirectly in an employer's interest in relation to an employee. The Act's definition of employee leaves out several groups, including individuals employed in agriculture, in domestic service in or about a private home, in a bona fide executive, administrative, or professional capacity, or as outside commission-paid salespeople, other than route drivers, who customarily perform services away from the employer's premises taking orders for goods or services. The Department of Labor may, by regulation adopted after a public hearing, allow learners and apprentices to be paid below the minimum rate, and no employee may be paid such a lower rate except under those regulations.", "sources": [ { "id": "del-902a-rate", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(a)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "Delaware employers must pay every employee not less than $15.00 per hour effective January 1, 2025, the last step of the statutory rate schedule, except as the Minimum Wage Act otherwise provides.", "verbatimQuote": "Except as may otherwise be provided under this chapter, every employer shall pay to every employee in any occupation wages of a rate: (1) Not less than $9.25 per hour until January 1, 2022; (2) Not less than $10.50 per hour effective January 1, 2022; (3) Not less than $11.75 per hour effective January 1, 2023; (4) Not less than $13.25 per hour effective January 1, 2024; (5) Not less than $15.00 per hour effective January 1, 2025.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902a-rate" }, { "id": "del-902a-federal-match", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(a)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "If a federal minimum wage higher than the Delaware minimum wage is established, the Delaware minimum wage becomes equal to the federal minimum wage, except as the Minimum Wage Act otherwise provides.", "verbatimQuote": "Upon the establishment of a federal minimum wage in excess of the state minimum wage, the minimum wage in this State shall be equal in amount to the federal minimum wage, except as may otherwise be provided under this chapter.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902a-federal-match" }, { "id": "del-901-employer", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 901", "citation": "19 Del. C. § 901", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "Under the Delaware Minimum Wage Act, the term employer includes individuals, business entities, trusts, and any person acting directly or indirectly in an employer's interest in relation to an employee.", "verbatimQuote": "“Employer” includes any individual, partnership, association, corporation, statutory trust, business trust or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-901-employer" }, { "id": "del-906-learners", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 906", "citation": "19 Del. C. § 906", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "The Delaware Department may adopt regulations, after a public hearing, allowing learners and apprentices to be paid below the minimum rate, and no employee may be paid such a rate except under those regulations.", "verbatimQuote": "For any occupation, the Department may provide by regulations, after public hearing, upon reasonable notice, at which any person may be heard, for the employment of learners and apprentices at such wages lower than the minimum rate under this chapter as the Department may deem necessary or appropriate to prevent curtailment of opportunities for employment. No employee shall be employed at wages fixed pursuant to this section except under applicable regulations of the Department.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-906-learners" }, { "id": "fed-206a-minimum-wage", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "29 U.S.C. § 206", "citation": "29 U.S.C. § 206(a)(1)", "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section206&edition=prelim", "proposition": "Under the federal Fair Labor Standards Act, a covered employer must pay covered employees a minimum wage, which reached $7.25 an hour in the final step of the statutory schedule.", "verbatimQuote": "Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates: (1) except as otherwise provided in this section, not less than- (A) $5.85 an hour, beginning on the 60th day after May 25, 2007; (B) $6.55 an hour, beginning 12 months after that 60th day; and (C) $7.25 an hour, beginning 24 months after that 60th day;", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-fed-206a-minimum-wage" }, { "id": "del-901-excluded", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 901", "citation": "19 Del. C. § 901(3)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "The Delaware Minimum Wage Act's definition of employee excludes, among others, agricultural workers, domestic workers in a private home, and bona fide executive, administrative, and professional employees and outside commission-paid salespeople.", "verbatimQuote": "“Employee” includes any individual employed by an employer but shall not include: a. Any individual employed in agriculture; b. Any individual employed in domestic service in or about a private home; c. Any individual employed in a bona fide executive, administrative or professional capacity, or as an outside commission paid salesperson, not route driver, who customarily performs services away from the individual’s employer’s premises taking orders for goods or services;", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-901-excluded" } ] }, { "slug": "overtime", "label": "Does the state require daily overtime beyond the federal 40-hour weekly rule?", "heading": "When is overtime owed?", "answerText": "Delaware does not require daily overtime under the Delaware sections cited here: the Delaware Minimum Wage Act's rate provision sets an hourly minimum rate for Delaware employers and states no overtime premium, daily or weekly. Overtime for covered Delaware workers comes instead from the federal Fair Labor Standards Act, under which covered employers must pay covered employees at least one and one-half times the regular rate for hours worked beyond forty in a workweek. That federal requirement is measured by hours in a workweek, not hours in a day. The federal rule covers employees engaged in commerce or in producing goods for commerce, and employees of an enterprise engaged in commerce. It applies except as that federal section otherwise provides.", "sources": [ { "id": "fed-207a1-weekly-overtime", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "29 U.S.C. § 207", "citation": "29 U.S.C. § 207(a)(1)", "url": "https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title29-section207&edition=prelim", "proposition": "Under the federal Fair Labor Standards Act, a covered employer must pay a covered employee at least one and one-half times the employee's regular rate for hours worked beyond forty in a workweek, except as that section otherwise provides.", "verbatimQuote": "Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-fed-207a1-weekly-overtime" }, { "id": "del-902a-rate-ot", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(a)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "The Delaware Minimum Wage Act's rate provision sets an hourly minimum wage schedule, reaching $15.00 per hour effective January 1, 2025, and states no overtime premium.", "verbatimQuote": "Except as may otherwise be provided under this chapter, every employer shall pay to every employee in any occupation wages of a rate: (1) Not less than $9.25 per hour until January 1, 2022; (2) Not less than $10.50 per hour effective January 1, 2022; (3) Not less than $11.75 per hour effective January 1, 2023; (4) Not less than $13.25 per hour effective January 1, 2024; (5) Not less than $15.00 per hour effective January 1, 2025.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902a-rate-ot" } ] }, { "slug": "meal-rest-breaks", "label": "Are meal and rest breaks mandated, and are they paid?", "heading": "Are breaks required?", "answerText": "Delaware employers must allow an unpaid meal break of at least 30 consecutive minutes to any employee who works 7 1/2 or more consecutive hours. The break must come some time after the first 2 hours of work and before the last 2 hours. The Delaware sections cited here require no separate rest break for adult workers. Minors have their own rule: a worker under 18 may not work more than 5 hours continuously without a nonworking period of at least one half hour. The same section also bars a minor under 18 from spending more than 12 hours a day in a combination of school hours and work hours, and requires that a minor under 18 have at least 8 consecutive hours of nonwork, nonschool time in each 24-hour day. The adult meal-break rule has narrow carve-outs: It does not apply to professional employees who are certified by the State Board of Education and employed by a local school board to work directly with children.It does not apply where a collective bargaining agreement or other written employer-employee agreement provides otherwise. The Secretary of Labor must also issue rules for granting exemptions in four situations: compliance would adversely affect public safety only 1 employee can perform the duties of a position an employer has fewer than 5 employees on a shift at a single place of business (the exemption then covers only that shift) continuous operations require employees to respond to urgent conditions at all times, and the employees are paid for their meal breaks Federal regulations add one point on pay: rest periods that count as paid time may not be offset against other working time, such as paid waiting time or on-call time.", "sources": [ { "id": "del-707a-threshold", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 707", "citation": "19 Del. C. § 707(a)", "url": "https://delcode.delaware.gov/title19/c007/sc01/index.html", "proposition": "A Delaware employer must allow an employee who works 7 1/2 or more consecutive hours an unpaid meal break of at least 30 consecutive minutes.", "verbatimQuote": "An employer must allow an employee an unpaid meal break of at least 30 consecutive minutes, if the employee works 7 1/2 or more consecutive hours.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-707a-threshold" }, { "id": "del-707a-timing", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 707", "citation": "19 Del. C. § 707(a)", "url": "https://delcode.delaware.gov/title19/c007/sc01/index.html", "proposition": "A Delaware employer must give the required meal break some time after the employee's first 2 hours of work and before the last 2 hours.", "verbatimQuote": "The meal break must be given some time after the first 2 hours of work and before the last 2 hours.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-707a-timing" }, { "id": "del-707a-carveouts", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 707", "citation": "19 Del. C. § 707(a)", "url": "https://delcode.delaware.gov/title19/c007/sc01/index.html", "proposition": "The Delaware meal-break rule does not apply to certified professional employees of local school boards who work directly with children, or where a collective bargaining agreement or other written employer-employee agreement provides otherwise.", "verbatimQuote": "However, this rule does not apply to any professional employee certified by the State Board of Education and employed by a local school board to work directly with children. Also, it does not apply where there is a collective bargaining agreement or other written employer-employee agreement providing otherwise.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-707a-carveouts" }, { "id": "del-707a-exemptions", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 707", "citation": "19 Del. C. § 707(a)", "url": "https://delcode.delaware.gov/title19/c007/sc01/index.html", "proposition": "The Delaware Secretary of Labor must issue rules granting meal-break exemptions in four listed circumstances, including shifts with fewer than 5 employees at a single place of business.", "verbatimQuote": "Further, the Secretary of Labor shall issue rules for granting exemptions in cases where: (1) Compliance would adversely affect public safety; (2) Only 1 employee may perform the duties of a position; (3) An employer has fewer than 5 employees on a shift at a single place of business (in which case the exemption applies only to that shift); or (4) The continuous nature of an employer’s operations, such as chemical production or research experiments, requires employees to respond to urgent or unusual conditions at all times and the employees are compensated for their meal break periods.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-707a-exemptions" }, { "id": "del-507-minors", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 507", "citation": "19 Del. C. § 507(e)", "url": "https://delcode.delaware.gov/title19/c005/index.html", "proposition": "A Delaware employer may not employ a minor under 18 for more than 5 hours continuously without a nonworking period of at least one half hour.", "verbatimQuote": "A minor under 18 years of age shall not be employed or permitted to work more than 5 hours continuously without a nonworking period of at least one half hour.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-507-minors" }, { "id": "del-507c-combined", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 507", "citation": "19 Del. C. § 507(c)", "url": "https://delcode.delaware.gov/title19/c005/index.html", "proposition": "A Delaware minor under 18 may not spend more than 12 hours per day in a combination of school hours and work hours.", "verbatimQuote": "A minor under 18 years of age shall not spend more than 12 hours in a combination of school hours and work hours per day.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-507c-combined" }, { "id": "del-507d-nonwork", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 507", "citation": "19 Del. C. § 507(d)", "url": "https://delcode.delaware.gov/title19/c005/index.html", "proposition": "A Delaware minor under 18 must have at least 8 consecutive hours of nonwork, nonschool time in each 24-hour day.", "verbatimQuote": "A minor under 18 years of age shall have at least 8 consecutive hours of nonwork, nonschool time each 24-hour day.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-507d-nonwork" }, { "id": "fed-785-18", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "29 C.F.R. § 785.18", "citation": "29 C.F.R. § 785.18", "url": "https://www.ecfr.gov/current/title-29/section-785.18", "proposition": "Under federal regulations, compensable rest-period time may not be offset against other working time such as compensable waiting time or on-call time.", "verbatimQuote": "Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-fed-785-18" } ] }, { "slug": "final-pay", "label": "When must final wages be paid on separation, and what is the penalty for paying late?", "heading": "When is final pay due?", "answerText": "Delaware employers must pay a departing employee's final wages by the later of the next regular payday for the last day worked or three business days after the last day worked, whether the employee quit, resigned, was discharged, suspended, or laid off. The two alternatives are: the next date wages would be paid through the last day worked under the employer's regular pay cycle, as if employment had not stopped three business days after the last day worked The employer must deliver final pay by either of two methods: through the usual pay channels as if the employment had not been suspended or terminated, or, if the employee requests it, by mail to the address provided in the employee's request or, if the request provides no address, the most recent address provided to the employer. An employer that fails to pay wages as the Wage Payment and Collection Act requires, without reasonable grounds for dispute, also owes the employee liquidated damages equal to the lower of two amounts: ten percent of the unpaid wages for each day, except Sundays and legal holidays, that the failure continues after payment is due, or an amount equal to the unpaid wages. If the employer is adjudicated bankrupt, the failure to pay is not treated as continuing after the date a bankruptcy petition is filed. An employer is not in violation if it cannot prepare payroll because of a labor dispute, power failure, blizzard or similar weather catastrophe, epidemic, fire, or explosion. In a dispute over the amount of wages, the employer must pay without condition, and within the time the Act sets, all wages or parts of wages it concedes are due. The employee keeps all remedies the employee might otherwise have as to any balance claimed. A dispute over the amount therefore does not excuse late payment of the wages the employer concedes are due. The employee's acceptance of that payment does not release the balance of the employee's claim.", "sources": [ { "id": "del-1103a1-final-pay-deadline", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1103", "citation": "19 Del. C. § 1103(a)(1)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "When a Delaware employee quits, resigns, is discharged, suspended, or laid off, earned wages are due on the later of the next regular payday for the last day worked or three business days after the last day worked.", "verbatimQuote": "Whenever an employee quits, resigns, is discharged, suspended, or laid off, the wages earned by the employee become due and payable by the employer on the later of the following: a. The next date the wages would be paid through the last day worked under the employer’s regular pay cycle as if the employment had not stopped. b. Three business days after the last day worked.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1103a1-final-pay-deadline" }, { "id": "del-1103a2-method", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1103", "citation": "19 Del. C. § 1103(a)(2)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer must deliver final wages through the usual pay channels or, if the employee requests, by mail to the requested or most recent address.", "verbatimQuote": "The employer must make the payment due under paragraph (a)(1) of this section using either of the following methods: a. The usual pay channels as if the employment had not been suspended or terminated. b. If requested by the employee, by mail to the address provided in the employee’s request or if no address is provided, the most recent address provided to the employer.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1103a2-method" }, { "id": "del-1103b2-damages", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1103", "citation": "19 Del. C. § 1103(b)(2)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer that fails to pay wages as required, without reasonable grounds for dispute, is also liable to the employee for liquidated damages equal to the lower of ten percent of the unpaid wages per day (excluding Sundays and legal holidays) or an amount equal to the unpaid wages.", "verbatimQuote": "If an employer, without any reasonable grounds for dispute under § 1104 or § 1107 of this title, fails to pay an employee wages as required under this chapter, the employer is also liable to the employee for liquidated damages in the amount of the lower of the following: a. Ten percent of the unpaid wages for each day, except Sunday and legal holidays, upon which the failure continues after the day upon which payment is required. b. An amount equal to the unpaid wages.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1103b2-damages" }, { "id": "del-1103c-excuse", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1103", "citation": "19 Del. C. § 1103(c)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer that cannot prepare payroll because of a labor dispute, power failure, weather catastrophe, epidemic, fire, or explosion is not in violation of the Wage Payment and Collection Act.", "verbatimQuote": "An employer who is unable to prepare the payroll due to a labor dispute, power failure, blizzard, or like weather catastrophe, epidemic, fire, or explosion is not in violation of this chapter.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1103c-excuse" }, { "id": "del-1104-dispute", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1104", "citation": "19 Del. C. § 1104", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "In a dispute over the amount of wages, a Delaware employer must pay the conceded wages without condition and on time, and the employee keeps all remedies for the disputed balance.", "verbatimQuote": "In case of a dispute over the amount of wages, the employer shall pay without condition and within the time set by this chapter all wages or parts thereof conceded by the employer to be due, leaving to the employee all remedies the employee might otherwise be entitled to, including those provided under this chapter, as to any balance claimed.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1104-dispute" }, { "id": "del-1103b3-bankruptcy", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1103", "citation": "19 Del. C. § 1103(b)(3)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "For Delaware liquidated damages, a failure to pay is not treated as continuing after a bankruptcy petition is filed with respect to an employer that is adjudicated bankrupt.", "verbatimQuote": "For purposes of liquidated damages under paragraph (b)(2) of this section, the failure to pay is not deemed to continue after the date of the filing of a petition of bankruptcy with respect to the employer if the employer is adjudicated bankrupt.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1103b3-bankruptcy" }, { "id": "del-1104b-release", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1104", "citation": "19 Del. C. § 1104(b)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employee's acceptance of conceded wages does not release the balance of the claim, and a release required or obtained as a condition of payment violates the Wage Payment and Collection Act and is void.", "verbatimQuote": "The acceptance by an employee of a payment under this section shall not constitute a release as to the balance of the employee’s claim and any release required or obtained by an employer as a condition to payment shall be in violation of this chapter and shall be null and void.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1104b-release" } ] }, { "slug": "pay-frequency", "label": "How often must workers be paid, and what must a pay stub show?", "heading": "How often must workers be paid?", "answerText": "Delaware employers must pay all wages on regular paydays set in advance, at least once each calendar month. They must also pay all wages within 7 days after the close of the pay period in which the wages were earned. If the regular payday falls on a nonwork day, payment moves to the preceding workday. When the regular payday falls within the pay period and the pay period is no longer than 16 days, the employer may delay until the next pay period the pay for overtime hours, for employees hired or resuming employment during the pay period, and for part-time or temporary employees with variable working time. Wages must be paid in lawful United States money, or by check if the employer arranges for the check to be cashed for its full amount at a bank or business convenient to the workplace. On an employee's written request, an employer may pay by credit to a bank account the employee designates. An employee who is absent on payday is paid in one of three ways: by mail if requested, on the next regular workday the employee is present, or by credit to the designated bank account. Delaware employers of over 3 employees must give each employee a pay statement at the time of payment. The statement may be on the check, on a separate slip, or electronic in a form the employee can keep, and it must show: the wages due the pay period the total deductions, separately specified for hourly employees, the total hours worked in the pay period An employee who receives the statement electronically may ask for it in written form on a separate slip. The same employers must also notify each employee in writing at hiring of the rate of pay and the day, hour, and place of payment, give written or posted notice before any reduction in the regular rate of pay or change in the day, hour, or place of payment, and make their vacation pay, sick leave, and comparable policies available in writing or on a posted notice. They must post a summary of the Act supplied by the Department and keep wage and hour records for at least 3 years. Delaware employers may withhold or divert wages only in three cases: state or federal law requires or allows it the deduction is for medical, surgical, or hospital care, without financial benefit to the employer, and is properly recorded the employee has signed an authorization for a lawful purpose that benefits the employee, unless the Department prohibits that withholding by regulation in the public interest", "sources": [ { "id": "del-1102a-paydays", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1102", "citation": "19 Del. C. § 1102(a)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer must pay all wages due on regular paydays designated in advance, at least once each calendar month, in lawful money or by check with suitable cashing arrangements.", "verbatimQuote": "Every employer shall pay all wages due to the employer’s employees on regular paydays designated in advance by the employer, which shall be at least once during each calendar month, and in lawful money of the United States or checks provided suitable arrangements are made by the employer for cashing such checks for the full amount of the wages due at a bank or other business establishment convenient to the place of employment.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1102a-paydays" }, { "id": "del-1102b-seven-days", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1102", "citation": "19 Del. C. § 1102(b)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer must pay all wages due within 7 days after the close of the pay period in which they were earned, paying on the preceding workday when the regular payday falls on a nonwork day.", "verbatimQuote": "Every employer shall pay all wages due within 7 days from the close of the pay period in which the wages were earned; provided, that if the regular payday falls on a nonwork day, payment shall be made on the preceding workday.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1102b-seven-days" }, { "id": "del-1102a-deposit", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1102", "citation": "19 Del. C. § 1102(a)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "On an employee's written request, a Delaware employer may pay the employee's wages by credit to a bank account the employee designates.", "verbatimQuote": "But upon written request of an employee, an employer may pay such employee all wages due by credit to a bank account designated by the employee.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1102a-deposit" }, { "id": "del-1102c-absent", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1102", "citation": "19 Del. C. § 1102(c)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer must pay an employee absent on payday by mail if requested, on the next regular workday the employee is present, or by credit to the employee's designated bank account.", "verbatimQuote": "If an employee is for any reason not present on the regular payday, payment shall be made either by mail if requested by the employee or at the next regular workday that the employee is present or by the credit to the bank account designated by the employee.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1102c-absent" }, { "id": "del-1108-4-statement", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1108", "citation": "19 Del. C. § 1108(4)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer covered by § 1108 must give each employee at payment a retainable statement showing wages due, the pay period, separately specified deductions, and, for hourly employees, total hours.", "verbatimQuote": "Furnish to each employee at the time of payment a statement, either on the check, or by a separate slip, or electronically, so long as the electronic statement is in a form capable of being retained by the employee, showing the wages due, the pay period for which the wages are due and the total amount of deductions, separately specified, which have been made from the wages due, provided such statement shall, for an employee who is paid at an hourly rate, show the total number of hours for the said pay period.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1108-4-statement" }, { "id": "del-1108-scope", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1108", "citation": "19 Del. C. § 1108(1)-(3)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "The Delaware duties in § 1108 apply to every employer of over 3 employees and include written notice at hiring of pay terms, notice before a pay reduction, and making vacation, sick-leave, and comparable policies available.", "verbatimQuote": "It shall be the duty of every employer of over 3 employees to: (1) Notify each employee in writing, at the time of hiring, of the rate of pay and of the day, hour and place of payment; (2) Notify each employee in writing or through a posted notice maintained in a place accessible to the employees and where they normally pass of any reduction in the regular rate of pay, and day, hour and place of payment prior to the time of such reduction; (3) Make available to each employee in writing or through a poster notice maintained in a place accessible to the employees and where they normally pass employment practices and policies with regard to vacation pay, sick leave and comparable matters;", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1108-scope" }, { "id": "del-1107-deductions", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1107", "citation": "19 Del. C. § 1107", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer may withhold or divert wages only when required or allowed by law, for properly recorded medical care deductions without financial benefit to the employer, or with the employee's signed authorization for a lawful purpose benefiting the employee, which the Department may prohibit by regulation.", "verbatimQuote": "No employer may withhold or divert any portion of an employee’s wages unless: (1) The employer is required or empowered to do so by state or federal law; or (2) The deductions are for medical, surgical or hospital care or service, without financial benefit to the employer, and are openly, clearly and in due course recorded in the employers’ books; or (3) The employer has a signed authorization by the employee for deductions for a lawful purpose accruing to the benefit of the employee, except that the Department, upon finding that it is acting in the public interest, may, by regulation, prohibit such withholding or diverting for such purpose.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1107-deductions" }, { "id": "del-1102b-delay", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1102", "citation": "19 Del. C. § 1102(b)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "When the regular payday falls within a pay period of no more than 16 days, a Delaware employer may delay to the next pay period the pay for overtime hours, newly hired or returning employees, and part-time or temporary employees with variable hours.", "verbatimQuote": "If, however, the regular payday is within the pay period (on or before the final day of the pay period) and the pay period does not exceed 16 days, the employer may delay until the next pay period compensation for the following: (1) Overtime hours worked by employees; (2) Employees hired or resuming employment during the pay period; and (3) Part-time or temporary employees with variable working time.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1102b-delay" }, { "id": "del-1108-4-electronic", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1108", "citation": "19 Del. C. § 1108(4)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employee who receives an electronic pay statement may request it in written form on a separate slip.", "verbatimQuote": "Where the statement is furnished electronically, an employee may request that the statement be provided in written form on a separate slip.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1108-4-electronic" }, { "id": "del-1108-5-6", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1108", "citation": "19 Del. C. § 1108(5)-(6)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer of over 3 employees must post a summary of the Wage Payment and Collection Act supplied by the Department and keep wage and hour records for at least 3 years.", "verbatimQuote": "(5) Post and maintain in a place accessible to the employees and where they normally pass a summary of this chapter to be supplied by the Department upon request without charge; (6) Make, keep and preserve for a period not less than 3 years the records specified in the chapter, including wage and hour records, in or about the premises or place of business or employment or at 1 or more central record keeping offices, and make such reports therefrom to the Department as it shall deem by regulation to be necessary or appropriate to administer or enforce this chapter.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1108-5-6" } ] }, { "slug": "worker-classification", "label": "What test does the state use to classify a worker as an employee or contractor?", "heading": "Employee or independent contractor?", "answerText": "Delaware's Wage Payment and Collection Act treats a person suffered or permitted to work by an employer in the state as an employee, but does not apply to federal, state, or local government employees or to independent contractors. It adopts the Workplace Fraud Act's definition of independent contractor in § 3501 and adds persons licensed by the Department of Insurance, registered broker-dealers, agents, investment advisers, and investment adviser representatives, and persons the Department designates by regulation. Under § 3501, an independent contractor must meet all of three conditions: the work is performed free from the employer's control and direction; the individual is customarily engaged in an independently established trade, occupation, profession, or business; and the work is either outside the employer's usual course of business or performed by a registered contractor outside any place of business of the employer. Section 3501 gives both of those phrases specific meanings. Work is outside the usual course of business if it is any of the following: performed at a location that is not the employer's place of business, not integrated into the employer's operation, or unrelated to the employer's business. An employer's place of business means its principal office or headquarters, and does not mean a work site at which the employer has been contracted to perform services. Delaware's unemployment insurance law uses its own three-part test: services performed for wages count as employment unless the Department is satisfied of all three of the following: the individual is free from control and direction in performing the work, both under the contract and in fact the work is outside the usual course of the business, or is performed outside all of the enterprise's places of business the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature The Workplace Fraud Act applies only to the construction services industry. Within that industry, an employer-employee relationship is presumed when an individual works for pay from an employer. The employer can overcome the presumption only by showing the Department that the individual is an exempt person or an independent contractor. An exempt person is an individual who meets every one of the following conditions: performs services in a personal capacity and employs no individuals other than a spouse, child, or immediate family member performs services free from direction and control over the means and manner of providing them, subject only to the right of the person or entity for whom the services are provided to specify the desired result furnishes the tools and equipment necessary to provide the services operates a business considered inseparable from the individual for purposes of taxes, profits, and liabilities, in which the individual owns all of the assets and profits, does not pay taxes for the business separately but reports business income on a personal income tax return, and either has sole, unlimited, personal liability for all of the business's debts and liabilities or, if the business is organized as a single-person corporate entity to which sole, unlimited personal liability does not apply, is the sole member of that single-person corporate entity exercises complete control over the management and operations of the business An employer must not act as a labor broker by improperly classifying an individual who works for pay as an independent contractor, and an individual is improperly classified when an employer-employee relationship exists but the employer has not classified the individual as an employee. A labor broker providing construction services is rebuttably presumed to have violated the Act knowingly. A general contractor or subcontractor may, by contract, engage a registered independent contractor to do the same type of work at the same location without creating an employer-employee relationship. Because the Workplace Fraud Act applies only to construction, that presumption does not reach employers outside construction. Once the Department has adopted the regulations on the notice's content and form that the statute makes a prerequisite, construction employers must give each individual classified as an independent contractor or exempt person written notice of that classification at the time of hire. The notice must explain the implications of the classification, give the Department's contact information, be in English and Spanish, and be signed by both parties. An employer that complies with the notice requirement is presumed to have acted in good faith in classifying the individual. Construction employers must also keep, for at least 3 years and in or about their place of business, records of the name, address, occupation, and classification of each employee or independent contractor. For each employee, the records must show the rate of pay, the amount paid each pay period, and the hours worked each day and each work week. For each independent contractor, the records must show the method of payment. For each individual not classified as an employee, the records must include the written classification notice and any other evidence in the employer's possession that the employer believes is relevant to whether the individual is an exempt person, an independent contractor, or an employee.", "sources": [ { "id": "del-1101a4-employee", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1101", "citation": "19 Del. C. § 1101(a)(4)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "Under the Delaware Wage Payment and Collection Act, an employee is a person suffered or permitted to work by an employer in Delaware, and the Act does not apply to federal, state, or local government employees or to independent contractors.", "verbatimQuote": "“Employee” means a person suffered or permitted to work by an employer in this State. This chapter does not apply to any of the following: a. Employees of the United States government. b. Employees of the State of Delaware or any political subdivision of this State. c. Independent contractors.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1101a4-employee" }, { "id": "del-1101a6-contractor", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1101", "citation": "19 Del. C. § 1101(a)(6)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "The Delaware Wage Payment and Collection Act adopts the § 3501 definition of independent contractor and adds licensed insurance producers, registered broker-dealers, agents, investment advisers and their representatives, and persons the Department designates by regulation.", "verbatimQuote": "“Independent contractor” means as defined in § 3501 of this title. “Independent contractor” includes any of the following: a. A person licensed by the Department of Insurance under Title 18. b. A person registered under Chapter 73 of Title 6 as any of the following: 1. A broker-dealer. 2. An agent. 3. An investment adviser. 4. An investment adviser representative. c. A person designated as an “independent contractor” by the Department through regulations.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1101a6-contractor" }, { "id": "del-3302-unemployment", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3302", "citation": "19 Del. C. § 3302(14)(K)", "url": "https://delcode.delaware.gov/title19/c033/sc01/index.html", "proposition": "For Delaware unemployment insurance, services performed for wages are employment unless the Department is satisfied that the individual is free from control, works outside the usual course or places of business, and is customarily engaged in an independent trade of the same nature.", "verbatimQuote": "Notwithstanding any other provisions of this chapter and irrespective of whether the common-law relationship of employer and employee exists, services performed by an individual for wages, unless and until it is shown to the satisfaction of the Department that: (i) Such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under the individual’s contract for the performance of services and in fact; and (ii) Such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and (iii) Such individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3302-unemployment" }, { "id": "del-3502-construction", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3502", "citation": "19 Del. C. § 3502", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "The Delaware Workplace Fraud Act applies only to the construction services industry.", "verbatimQuote": "This chapter applies only to the construction services industry.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3502-construction" }, { "id": "del-3503c1-presumption", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3503", "citation": "19 Del. C. § 3503(c)(1)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Under the Delaware Workplace Fraud Act, an employer-employee relationship is presumed when an individual performs work for pay from an employer, unless the employer shows the Department that the individual is an exempt person or independent contractor.", "verbatimQuote": "An “employer-employee” relationship is presumed to exist when work is performed by an individual for remuneration paid by an employer, unless the employer demonstrates, to the satisfaction of the Department, that the individual is an exempt person or independent contractor.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3503c1-presumption" }, { "id": "del-3511-notice", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3511", "citation": "19 Del. C. § 3511(b)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "A Delaware employer covered by the Workplace Fraud Act must give written notice of classification at hire to each individual it classifies as an independent contractor or exempt person.", "verbatimQuote": "An employer shall provide each individual classified as an independent contractor or exempt person with written notice of such classification at the time the individual is hired.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3511-notice" }, { "id": "del-3501a9-test", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3501", "citation": "19 Del. C. § 3501(a)(9)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Under 19 Del. C. § 3501, an independent contractor must work free from the employer's control and direction, be customarily engaged in an independently established business, and either work outside the employer's usual course of business or be a registered contractor working outside the employer's places of business.", "verbatimQuote": "“Independent contractor” means an individual or entity who meets all of the following: a. Performs the work free from the employer’s control and direction over the performance of the employee’s services. b. Is customarily engaged in an independently established trade, occupation, profession, or business. c. Performs work which is either of the following: 1. Outside of the usual course of business of the employer for whom the work is performed. 2. Performed by a registered contractor under Chapter 36 of this title outside of any place of business of the employer for whom the work is performed.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3501a9-test" }, { "id": "del-3501a12-usual-course", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3501", "citation": "19 Del. C. § 3501(a)(12)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Under 19 Del. C. § 3501, work is outside the usual course of business if it is performed at a location that is not the employer's place of business, is not integrated into the employer's operation, or is unrelated to the employer's business.", "verbatimQuote": "“Outside of the usual course of business” means work an individual performs for an employer that is any of the following: a. At a location that is not the employer’s place of business. b. Not integrated into the employer’s operation. c. Unrelated to the employer’s business.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3501a12-usual-course" }, { "id": "del-3501a13-place", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3501", "citation": "19 Del. C. § 3501(a)(13)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Under 19 Del. C. § 3501, an employer's place of business is its principal office or headquarters and does not include a work site at which the employer has been contracted to perform services.", "verbatimQuote": "“Place of business” means the principal office or headquarters of the employer, but does not mean a work site at which the employer has been contracted to perform services.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3501a13-place" }, { "id": "del-3503c2-registered", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3503", "citation": "19 Del. C. § 3503(c)(2)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Under the Delaware Workplace Fraud Act, a general contractor or subcontractor may by contract engage a registered independent contractor to do the same type of work at the same location without creating an employer-employee relationship.", "verbatimQuote": "By contract, a general contractor or subcontractor may engage an independent contractor registered under Chapter 36 of this title, to do the same type of work in which the general contractor or subcontractor engages, at the same location where the general contractor or subcontractor is working, without establishing an employer-employee relationship between the multiple contracting parties.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3503c2-registered" }, { "id": "del-3511c-contents", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3511", "citation": "19 Del. C. § 3511(c)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "A Delaware Workplace Fraud Act classification notice must explain the implications of the classification, give the Department's contact information, be provided in English and Spanish, and be signed by both the employer and the individual.", "verbatimQuote": "The written notice shall: (1) Include an explanation of the implications of the individual’s classification as an independent contractor or exempt person rather than as an employee; (2) Include contact information for the Department; (3) Be provided in English and Spanish; and (4) Be signed by both the employer and the independent contractor or by the employer and the exempt person, as the case may be.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3511c-contents" }, { "id": "del-3511d-penalty", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3511", "citation": "19 Del. C. § 3511(d)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Failure to give the required classification notice is evidence of a knowing Workplace Fraud Act violation and makes the employer liable for a $500 administrative penalty per individual not notified.", "verbatimQuote": "Failure to comply with the written notice requirement in subsection (c) of this section shall be evidence of a knowing violation by the employer of § 3503 of this title. The employer shall be liable for an administrative penalty of $500 for each individual that the employer failed to notify.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3511d-penalty" }, { "id": "del-3511f-regulations", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3511", "citation": "19 Del. C. § 3511(f)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "The Delaware Department of Labor's adoption of regulations on the notice's content and form is a prerequisite to an employer's obligation to furnish the classification notice.", "verbatimQuote": "The Department shall adopt regulations establishing specific requirements for the content and form of the notice by October 29, 2010, and, notwithstanding the provisions of subsection (b) of this section, the adoption of such regulations shall be a prerequisite to an employer’s obligation to furnish the notice.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3511f-regulations" }, { "id": "del-3511e-good-faith", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3511", "citation": "19 Del. C. § 3511(e)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "A Delaware construction employer that complies with the classification-notice requirement is presumed to have acted in good faith in classifying the individual.", "verbatimQuote": "An employer who complies with the written notice requirement in subsection (c) of this section shall be presumed to have acted in good faith in determining whether to classify an individual as an employee, an independent contractor or an exempt person pursuant to § 3503 of this title.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3511e-good-faith" }, { "id": "del-3511a-records", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3511", "citation": "19 Del. C. § 3511(a)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "A Delaware construction employer must keep for at least 3 years records of each worker's classification, pay, and hours and, for non-employees, the notice and other evidence supporting the classification.", "verbatimQuote": "An employer shall keep, for at least 3 years, in or about its place of business, records of the employer containing the following information: (1) The name, address, occupation, and classification of each employee or independent contractor; (2) The rate of pay of each employee or method of payment for the independent contractor; (3) The amount that is paid each pay period to each employee; (4) The hours that each employee works each day and each work week; (5) For all individuals who are not classified as employees, evidence including the written notice required by subsection (c) of this section and any other evidence in the employer’s possession which the employer believes is relevant to determine whether each individual is an exempt person, an independent contractor or an employee; and", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3511a-records" }, { "id": "del-3501a7-exempt", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3501", "citation": "19 Del. C. § 3501(a)(7)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Under the Delaware Workplace Fraud Act, an exempt person must meet every listed condition: personal-capacity work employing only immediate family, freedom from direction over means and manner, own tools, a business inseparable from the individual for taxes, profits and liabilities, and complete control of its management.", "verbatimQuote": "“Exempt person” means any individual who: a. Performs services in a personal capacity and who employs no individuals other than a spouse, child, or immediate family member of the individual; b. Performs services free from direction and control over the means and manner of providing the services, subject only to the right of the person or entity for whom services are provided to specify the desired result; c. Furnishes the tools and equipment necessary to provide the services; and d. Operates a business that is considered inseparable from the individual for purposes of taxes, profits, and liabilities, in which the individual: 1. Owns all of the assets and profits of the business; and 2. Has sole, unlimited, personal liability for all of the debts and liabilities of the business; or alternatively, if the business is organized as a single-person corporate entity, to which sole, unlimited personal liability does not apply, the individual must be the sole member of said single-person corporate entity; and 3. For which the individual does not pay taxes for the business separately but reports business income on the individual’s personal income tax return; and e. Exercises complete control over the management and operations of the business.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3501a7-exempt" }, { "id": "del-3503a-broker", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3503", "citation": "19 Del. C. § 3503(a)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "A Delaware construction employer must not act as a labor broker by improperly classifying an individual who works for pay as an independent contractor.", "verbatimQuote": "An employer must not act as a labor broker by improperly classifying an individual who performs work for remuneration provided by an employer as an independent contractor.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3503a-broker" }, { "id": "del-3503b-improper", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3503", "citation": "19 Del. C. § 3503(b)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Under the Delaware Workplace Fraud Act, an individual is improperly classified when an employer-employee relationship exists but the employer has not classified the individual as an employee.", "verbatimQuote": "An employer has improperly classified an individual when an employer-employee relationship exists, as determined under subsection (c) of this section, but the employer has not classified the individual as an employee.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3503b-improper" }, { "id": "del-3503c3-knowing", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3503", "citation": "19 Del. C. § 3503(c)(3)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "An entity or individual that acts as a labor broker in providing construction services is rebuttably presumed to have knowingly violated the Delaware Workplace Fraud Act.", "verbatimQuote": "There is a rebuttable presumption that an entity or individual who acts as a labor broker in providing construction services has engaged in a knowing violation of this chapter.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3503c3-knowing" } ] }, { "slug": "tip-credit", "label": "Does the state allow a tip credit against the cash minimum wage?", "heading": "Is a tip credit allowed?", "answerText": "Delaware employers may count tips toward the minimum wage for employees in customarily tipped occupations, up to the tip credit percentage set by the federal government as of June 15, 2006, applied to the state minimum rate, and the resulting minimum rate may never be less than $2.23 per hour. The sections cited here do not state the dollar amount of that percentage credit against the current $15.00 rate. A tipped employee is a worker in an occupation where workers customarily and regularly receive more than $30 per month in tips. Who owns the tips. A tip belongs to the primary direct service employee who earned it, and the employer may not take or keep it except as state or federal law requires. The employer may not receive any portion of employees' tips under any circumstances. Tip pools. Employees may set up their own tip-sharing or tip-pooling system among direct service employees, but the employer may not require or pressure them into one. There is one exception: where more than 1 direct service employee serves the same customer, the employer may require a pool of no more than 15% of the primary direct service employee's tips. Service charges. A service charge is a mandatory amount on the bill. Management may keep all or part of it only with clear and conspicuous notice to the customer. The notice must be clearly printed, stamped, or written in bold type, and type of at least 18 points on a placard, or 10 points or larger on other notices, counts as clear and conspicuous. Without that notice, the service charge belongs to the primary direct service employees. Diverted tips. The Department may require an employer that diverts tips to pay them back as restitution. If the employer's records are too thin to show the exact amount, the Department may estimate it from the available evidence.", "sources": [ { "id": "del-902b-credit", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(b)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "A Delaware employer may count tips of customarily tipped employees as wages in an amount equal to the federal tip credit percentage as of June 15, 2006, applied to the state minimum rate.", "verbatimQuote": "Gratuities received by employees engaged in occupations in which gratuities customarily constitute part of the remuneration may be considered wages for purposes of this chapter in an amount equal to the tip credit percentage, as set by the federal government as of June 15, 2006, of the minimum rate as set forth in subsection (a) of this section.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902b-credit" }, { "id": "del-902b-floor", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(b)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "The minimum rate a Delaware employer pays under the tip-credit subsection may never be less than $2.23 per hour.", "verbatimQuote": "In no event shall the minimum rate, under this subsection, be less than $2.23 per hour.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902b-floor" }, { "id": "del-902c1-tipped", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(c)(1)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "Under Delaware law, a tipped employee is a worker in an occupation in which workers customarily and regularly receive more than $30 per month in tips.", "verbatimQuote": "An employee engaged in an occupation in which gratuities customarily constitute part of the remuneration shall be any worker engaged in an occupation in which workers customarily and regularly receive more than $30 per month in tips or gratuities.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902c1-tipped" }, { "id": "del-902d1-property", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(d)(1)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "A tip belongs to the primary direct service employee, and a Delaware employer may not take or keep it except as state or federal law requires.", "verbatimQuote": "Any gratuity received by an employee, indicated on any receipt as a gratuity, or deposited in or about a place of business for direct services rendered by an employee is the sole property of the primary direct service employee and may not be taken or retained by the employer except as required by state or federal law.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902d1-property" }, { "id": "del-902d2-employer", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(d)(2)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "A Delaware employer may not receive any portion of its employees' tips under any circumstances.", "verbatimQuote": "The employer shall not, under any circumstances, receive any portion of the gratuities received by the employees.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902d2-employer" }, { "id": "del-902d2-pool", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(d)(2)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "A Delaware employer may not coerce employees into a tip pool, but where more than 1 direct service employee serves the same customer it may require a pool of no more than 15% of the primary direct service employee's tips.", "verbatimQuote": "Employees may establish a system for the sharing or pooling of gratuities among direct service employees, provided that the employer shall not in any fashion require or coerce employees to agree upon such a system. Where more than 1 direct service employee provides personal service to the same customer from whom gratuities are received, the employer may require that such employees establish a tip pooling or sharing system not to exceed 15% of the primary direct service employee’s gratuities.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902d2-pool" }, { "id": "del-902c4-notice", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(c)(4)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "A Delaware employer may treat all or part of a mandatory service charge as management property only with clear and conspicuous notice to the customer.", "verbatimQuote": "A “service charge” is an obligatory sum of money included in the statement of charges. Clear and conspicuous notice must be made on either the menu, placard, the front of the statement of charges or other notice given to the customer indicating that all or part of the service charge is the property of the management.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902c4-notice" }, { "id": "del-902c4-form", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(c)(4)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "A Delaware service-charge notice must be in bold type of a stated minimum size, and a service charge assessed without it belongs to the primary direct service employees.", "verbatimQuote": "Such notice must be clearly printed, stamped or written in bold type. A service charge assessed to customers, patrons or guests without such notice is the property of the primary direct service employee(s). For the purposes of this section, type which is at least 18 points (1/4 inch) on the placard, or 10 points (1/8 inch) or larger on all other notices shall be considered clear and conspicuous.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902c4-form" }, { "id": "del-902d3-restitution", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 902", "citation": "19 Del. C. § 902(d)(3)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "The Delaware Department may require an employer that diverts employee tips to pay restitution of the diverted amount, estimating that amount from available evidence when records are insufficient.", "verbatimQuote": "The Department may require the employer to pay restitution if the employer diverts any gratuities of its employees in the amount of the gratuities diverted. If the records maintained by the employer do not provide sufficient information to determine the exact amount of gratuities diverted, the Department may make a determination of gratuities diverted based on available evidence.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-902d3-restitution" } ] }, { "slug": "enforcement", "label": "How is wage-and-hour law enforced, and can employees sue?", "heading": "How is it enforced?", "answerText": "Delaware workers may sue their employers for unpaid wages: under the Minimum Wage Act, an employer that pays less than the full wages owed under that Act is liable in a civil action for the shortfall, plus costs, necessary expenses of prosecution, and reasonable attorney's fees. An agreement between the employee and the employer to work for less than the Act's minimum wage rate is no defense to that action. Minimum Wage Act (19 Del. C. chapter 9). The Department of Labor may bring any legal action necessary to collect minimum wages it believes are unpaid.Employers must keep, for at least 3 years, records of each employee's name, address, and occupation; rate of pay; amount paid each pay period; and hours worked each day and each workweek.An employer that pays less than the applicable rate, fails to keep or falsifies required records, fails to post the required summary, obstructs the Department, or otherwise violates the Act is subject to a civil penalty of $1,000 to $5,000 for each violation.An employer that fires or otherwise discriminates against an employee for complaining or giving information to the Department, or for taking part in proceedings under the Act, violates the Act. The employer is subject to a civil penalty of $1,000 to $5,000 for each violation. Wage Payment and Collection Act (19 Del. C. chapter 11). An employee may bring a civil action to recover unpaid wages and liquidated damages in any court of competent jurisdiction.The Department may also sue to collect unpaid wages and, with the employee's consent, settle and adjust the claim.A judgment for the employee must include costs of the action, necessary costs of prosecution, and reasonable attorney's fees, all paid by the employer.Separately, an employer that violates the Act or its regulations is subject to a civil penalty of $1,000 to $5,000 for each violation.An employer that fires or otherwise discriminates against an employee for complaining, giving information to the Department, or taking part in proceedings under the Act is subject to a civil penalty of $1,000 to $5,000 for each violation.An employer that falsely makes or delivers a receipt or statement that wages were credited to an employee's bank account is subject to a civil penalty of $1,000 to $5,000 for each violation.Corporate officers and managing agents who knowingly permit the corporation to violate the Act are deemed the employer of its employees.The Act's protections cannot be contracted away by private agreement except as the Act itself provides.A person who subcontracts work it has undertaken is civilly liable to the subcontractor's employees for unpaid wages, excluding liquidated damages, when their direct employer fails to pay, and the direct employer is liable to that person for any wages it pays. Meal-break rule. An employer that fires or otherwise discriminates against an employee for complaining to the Department of Labor about a meal-break violation, or for taking part in related proceedings, violates the meal-break section. Any violation of the meal-break section carries a civil penalty of $1,000 to $5,000 for each violation. Workplace Fraud Act (construction only). An employer that violates the classification rules is subject to a civil penalty of $5,000 to $20,000 for each violation, and each misclassified employee counts as a separate violation.An employer that does not produce requested books and records within 30 days of the Department's written request may face a stop-work order and an administrative penalty of up to $500 a day.An employer that discharges or in any manner discriminates against a person because the person complained or gave information to the Department under the Act, caused or is about to cause proceedings to be instituted under it, or testified or is about to testify in those proceedings, is subject to a civil penalty of $20,000 to $50,000 for each violation.An employer found in violation must, within 30 days of the final order, pay restitution to each individual not properly classified and come into compliance with tax-withholding, unemployment-insurance, wage, and workers' compensation laws.A general contractor is jointly and severally liable for a subcontractor's penalties and restitution and is responsible for a subcontractor's violations of the Act. Debarment is one of the sanctions available under the Act, but a general contractor's liability for a subcontractor's penalties does not include debarment.Corporate officers and managing agents who knowingly permit the corporation to violate the Act are deemed the employers of its employees.A person alleging a violation of § 3503 or § 3509 of the Act must first notify the Department in writing and request an investigation. If the Department does not investigate or file suit in the Superior Court within 90 days of that written notice, the person alleging the § 3503 or § 3509 violation may sue for declaratory relief, actual damages, or both, within 3 years of the alleged violation.For that suit, damages means treble damages for lost wages or benefits caused by each violation, and also include back wages, fringe benefits, seniority rights, actual damages, litigation costs, and attorneys' fees. Time limit for wage claims. Under Delaware's statute, 10 Del. C. § 8111, claims for wages, salary, or overtime, and for related damages, interest, or penalties, must be brought within 2 years after the claim accrues. Federal law, 29 U.S.C. § 255(a), provides that an action under the Fair Labor Standards Act for unpaid minimum wages, unpaid overtime compensation, or liquidated damages must be commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after it accrued.", "sources": [ { "id": "del-911-mwa-action", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 911", "citation": "19 Del. C. § 911(a)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "A Delaware employer that underpays wages owed under the Minimum Wage Act is liable to the employee in a civil action for the unpaid amount plus costs, prosecution expenses, and reasonable attorney's fees.", "verbatimQuote": "Any employer who pays any employee less than the full amount of the wages to which the employee is entitled under this chapter shall be liable to such employee in a civil action for the full amount of such wages less any amount actually paid to such employee by the employer and for the costs of the action, necessary expenses of prosecution and reasonable attorney’s fees.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-911-mwa-action" }, { "id": "del-911a-no-defense", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 911", "citation": "19 Del. C. § 911(a)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "In a Delaware Minimum Wage Act civil action for unpaid wages, an agreement between the employee and the employer to work for less than the statutory minimum wage rate is no defense.", "verbatimQuote": "Any agreement between such employee and the employer to work for less than the minimum wage rate under this chapter shall be no defense to such action.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-911a-no-defense" }, { "id": "del-907-records", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 907", "citation": "19 Del. C. § 907", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "A Delaware employer must keep, for at least 3 years, records of each employee's identity, occupation, pay rate, pay per period, and daily and weekly hours worked.", "verbatimQuote": "Every employer shall make, keep and preserve for a period of not less than 3 years, in or about the premises or place of business or employment, a record of the name, address and occupation of each employee, the rate of pay and the amount paid each pay period to each employee, the hours worked each day and each work week by each employee and such other information or records as the Department shall deem by regulation to be necessary or appropriate to administer or enforce this chapter.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-907-records" }, { "id": "del-910-retaliation", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 910", "citation": "19 Del. C. § 910(b)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "A Delaware employer that retaliates against an employee for complaining, giving information, or taking part in Minimum Wage Act proceedings is subject to a civil penalty of $1,000 to $5,000 per violation.", "verbatimQuote": "Any employer who discharges or who in any manner discriminates against any employee because that employee made a complaint or gave information to the Department pursuant to this chapter, or caused or is about to cause any proceedings to be instituted under this chapter, or has testified or is about to testify in any such proceedings shall be deemed in violation of this chapter and shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each such violation.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-910-retaliation" }, { "id": "del-1113a-action", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1113", "citation": "19 Del. C. § 1113(a)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A civil action to recover unpaid wages and liquidated damages under the Delaware Wage Payment and Collection Act may be brought in any court of competent jurisdiction.", "verbatimQuote": "A civil action to recover unpaid wages and liquidated damages may be maintained in any court of competent jurisdiction.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1113a-action" }, { "id": "del-1113c-fees", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1113", "citation": "19 Del. C. § 1113(c)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A judgment for the plaintiff in a Delaware wage-payment action must include costs, necessary prosecution costs, and reasonable attorney's fees paid by the defendant.", "verbatimQuote": "Any judgment entered for a plaintiff in an action brought under this section shall include an award for the costs of the action, the necessary costs of prosecution and reasonable attorney’s fees, all to be paid by the defendant.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1113c-fees" }, { "id": "del-1112a-penalty", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1112", "citation": "19 Del. C. § 1112(a)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer that violates the Wage Payment and Collection Act or its regulations is subject to a civil penalty of $1,000 to $5,000 per violation.", "verbatimQuote": "Any employer who violates or fails to comply with any requirement of this chapter or any regulation published thereunder shall be deemed in violation of this chapter and shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each such violation.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1112a-penalty" }, { "id": "del-1110-waiver", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1110", "citation": "19 Del. C. § 1110", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "Except as the Delaware Wage Payment and Collection Act itself provides, no private agreement may contravene or set aside any of its provisions.", "verbatimQuote": "Except as provided in this chapter, no provision of this chapter may in any way be contravened or set aside by private agreement.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1110-waiver" }, { "id": "del-1105-contractor", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1105", "citation": "19 Del. C. § 1105", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A person who subcontracts work it has undertaken is civilly liable to the subcontractor's employees for wages, excluding liquidated damages, to the extent their employer fails to pay, and may recover those wages from that employer.", "verbatimQuote": "Whenever any person shall contract with another for the performance of any work which the contracting person has undertaken to perform, the person shall become civilly liable to employees engaged in the performance of work under such contract for the payment of wages, exclusive of liquidated damages, as required under this chapter, whenever and to the extent that the employer of such employees fails to pay such wages, and the employer of such employees shall be liable to such person for any wages paid by the employer under this section.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1105-contractor" }, { "id": "del-707b-retaliation", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 707", "citation": "19 Del. C. § 707(b)", "url": "https://delcode.delaware.gov/title19/c007/sc01/index.html", "proposition": "A Delaware employer that retaliates against an employee for complaining to the Department of Labor about a meal-break violation, or for taking part in related proceedings, violates the meal-break section.", "verbatimQuote": "Any employer who discharges or in any manner discriminates against an employee because that employee has made a complaint or has given information to the Department of Labor pursuant to a violation of this section, or because the employee caused to be instituted or is about to cause to be instituted any proceedings under this section, or has testified or is about to testify in any such proceedings shall be deemed in violation of this section.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-707b-retaliation" }, { "id": "del-3505-penalty", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3505", "citation": "19 Del. C. § 3505(a)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "A Delaware construction employer that violates the Workplace Fraud Act classification rules is subject to a civil penalty of $5,000 to $20,000 per violation, with each misclassified employee a separate violation.", "verbatimQuote": "Any employer who violates or fails to comply with § 3503 of this title or any regulation published thereunder is in violation of § 3503 of this title, and is subject to a civil penalty of not less than $5,000, and not more than $20,000, for each violation. Each employee who is not properly classified in violation of § 3503 of this title is a separate violation under this section.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3505-penalty" }, { "id": "del-3508-action", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3508", "citation": "19 Del. C. § 3508(a)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "If the Delaware Department does not investigate or sue within 90 days of written notice of an alleged violation of § 3503 or § 3509 of the Workplace Fraud Act, the person alleging that violation may sue for declaratory relief or actual damages within 3 years of the violation.", "verbatimQuote": "If the Department fails to investigate or fails to commence an action in the Superior Court pursuant to § 3504(d) or § 3509(b)(2) of this title, within 90 days of receipt of written notice of an alleged violation of § 3503 or § 3509 of this title, the person alleging a violation of said section may bring a civil action for appropriate declaratory relief, or actual damages, or both. A civil action pursuant to this section must be brought within 3 years after the occurrence of the alleged violation of the applicable provision or provisions of this chapter.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3508-action" }, { "id": "del-8111-limitations", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "10 Del. C. § 8111", "citation": "10 Del. C. § 8111", "url": "https://delcode.delaware.gov/title10/c081/index.html", "proposition": "In Delaware, an action to recover wages, salary, or overtime, or related damages, interest, or penalties, must be brought within 2 years after the cause of action accrues.", "verbatimQuote": "No action for recovery upon a claim for wages, salary, or overtime for work, labor, or personal services performed, or for damages (actual, compensatory, or punitive, liquidated or otherwise), or for interest or penalties resulting from the failure to pay any such claim, or for any other benefits arising from such work, labor, or personal services performed or in connection with any such action, shall be brought after the expiration of 2 years from the accruing of the cause of action on which such action is based.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-8111-limitations" }, { "id": "fed-255a-limitations", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "29 U.S.C. § 255(a)", "citation": "29 U.S.C. § 255(a)", "url": "https://www.govinfo.gov/content/pkg/USCODE-2024-title29/html/USCODE-2024-title29-chap9-sec255.htm", "proposition": "29 U.S.C. § 255(a) provides that an action under the Fair Labor Standards Act for unpaid minimum wages, unpaid overtime compensation, or liquidated damages must be commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after it accrued.", "verbatimQuote": "Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.], the Walsh-Healey Act, or the Bacon-Davis Act 1 — (a) if the cause of action accrues on or after May 14, 1947—may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued;", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-fed-255a-limitations" }, { "id": "del-910a-penalty", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 910", "citation": "19 Del. C. § 910(a)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "A Delaware employer that underpays the applicable rate, fails to keep or falsifies records, fails to post the required summary, obstructs the Department, or otherwise violates the Minimum Wage Act is subject to a civil penalty of $1,000 to $5,000 per violation.", "verbatimQuote": "Any employer who hinders or delays the Department in the performance of its duties or refuses to admit the Department to the premises or place of business or employment in violation of any court order, or fails to make, keep and preserve any books, registers, payrolls or other records or falsifies the same, or refuses to make the same accessible to the Department, or refuses to furnish a sworn statement of the same or any other information, or fails to post a summary of this chapter or of any applicable regulations published thereunder or summary thereof, or pays or agrees to pay wages at a rate less than the rate applicable, or otherwise violates this chapter or any regulation published thereunder shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each such violation.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-910a-penalty" }, { "id": "del-1112b-retaliation", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1112", "citation": "19 Del. C. § 1112(b)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer that retaliates against an employee for a complaint, information, or participation in proceedings under the Wage Payment and Collection Act is subject to a civil penalty of $1,000 to $5,000 per violation.", "verbatimQuote": "Any employer who discharges or in any manner discriminates against an employee because that employee has made a complaint or has given information to the Department pursuant to this chapter, or because the employee has caused to be instituted or is about to cause to be instituted any proceedings under this chapter, or has testified or is about to testify in any such proceedings shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each such violation.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1112b-retaliation" }, { "id": "del-707c-penalty", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 707", "citation": "19 Del. C. § 707(c)", "url": "https://delcode.delaware.gov/title19/c007/sc01/index.html", "proposition": "A violation of the Delaware meal-break section is subject to a civil penalty of $1,000 to $5,000 per violation.", "verbatimQuote": "Whoever violates this section shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-707c-penalty" }, { "id": "del-3508a-notice", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3508", "citation": "19 Del. C. § 3508(a)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Before suing under the Delaware Workplace Fraud Act, an individual alleging a violation of § 3503 or § 3509 must notify the Department in writing and request an investigation.", "verbatimQuote": "An employee or other individual who alleges a violation of § 3503 or § 3509 of this title must first notify the Department in writing and request an investigation by the Department, pursuant to § 3504 or § 3509(b)(2) of this title, as applicable, of the alleged violation.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3508a-notice" }, { "id": "del-3508c-damages", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3508", "citation": "19 Del. C. § 3508(c)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "In a Delaware Workplace Fraud Act suit, damages means treble damages for lost wages or benefits and also includes back wages, fringe benefits, seniority rights, actual damages, litigation costs, and attorneys' fees.", "verbatimQuote": "As used in subsection (a) of this section, “damages” means treble damages for lost wages or benefits caused by each violation of this chapter. “Damages” also includes the payment of back wages, fringe benefits, seniority rights, actual damages, litigation costs and attorneys’ fees, or any combination of these remedies.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3508c-damages" }, { "id": "del-911b-department", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 911", "citation": "19 Del. C. § 911(b)", "url": "https://delcode.delaware.gov/title19/c009/index.html", "proposition": "The Delaware Department of Labor may bring any legal action necessary to collect minimum wages it believes are unpaid.", "verbatimQuote": "Whenever the Department believes that wages, as required under this chapter, have not been paid, the Department may bring any legal action necessary to collect such claim.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-911b-department" }, { "id": "del-1113b-department", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1113", "citation": "19 Del. C. § 1113(b)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "The Delaware Department of Labor may sue to collect unpaid wages under the Wage Payment and Collection Act and, with the employee's consent, settle and adjust the claim.", "verbatimQuote": "Whenever the Department determines that wages, as required under this chapter, have not been paid, the Department may bring any legal action necessary to collect such claim. With the consent of the aggrieved employee, the Department shall have the power to settle and adjust any such claim to the same extent as might the assigning employee.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1113b-department" }, { "id": "del-1112c-false-credit", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1112", "citation": "19 Del. C. § 1112(c)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "A Delaware employer that falsely makes or delivers a receipt or statement that wages were credited to an employee's bank account is subject to a civil penalty of $1,000 to $5,000 per violation.", "verbatimQuote": "Any employer who falsely makes, utters, draws or delivers any receipt or statement that credit to a bank account of any employee has been made in payment of wages due shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each such violation.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1112c-false-credit" }, { "id": "del-1101b-officers", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 1101", "citation": "19 Del. C. § 1101(b)", "url": "https://delcode.delaware.gov/title19/c011/index.html", "proposition": "Under the Delaware Wage Payment and Collection Act, corporate officers and managing agents who knowingly permit the corporation to violate the Act are deemed the employer of its employees.", "verbatimQuote": "For purposes of this chapter, the officers of a corporation and any agents having the management thereof, who knowingly permit a corporation to violate this chapter are deemed to be the employer of the employees of the corporation.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-1101b-officers" }, { "id": "del-3505b-records", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3505", "citation": "19 Del. C. § 3505(b)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "A Delaware construction employer that does not produce requested records within 30 days of the Department's written request may face a stop-work order and an administrative penalty of up to $500 per day.", "verbatimQuote": "An employer that fails to produce to the Department the books and records requested pursuant to § 3504(c) of this title within 30 days of the employer’s receipt of a written request sent to the employer via federal express or certified mail from the Department, in the course of an investigation to determine whether the employer is in compliance with the provisions of this chapter, may be subject to a stop work order, and may be subject to an administrative penalty, not to exceed $500 per day, for each day that the requested records are not produced after the date on which the employer receives the written request from the Department.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3505b-records" }, { "id": "del-3505c-retaliation", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3505", "citation": "19 Del. C. § 3505(c)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Retaliation under the Delaware Workplace Fraud Act carries a civil penalty of $20,000 to $50,000 per violation.", "verbatimQuote": "An employer who discharges or in any manner discriminates against a person because that person has made a complaint or has given information to the Department under this chapter, or because the person has caused to be instituted or is about to cause to be instituted any proceedings under this chapter, or has testified or is about to testify in any such proceedings, is subject to a civil penalty of not less than $20,000, and not more than $50,000, for each violation.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3505c-retaliation" }, { "id": "del-3505g-restitution", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3505", "citation": "19 Del. C. § 3505(g)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "A Delaware employer found in violation of the Workplace Fraud Act must, within 30 days of the final order, pay restitution to misclassified individuals and comply with all applicable labor laws.", "verbatimQuote": "Notwithstanding subsections (a) through (e) of this section, an employer found by any court or the Department to be in violation of this chapter shall be required, within 30 days of the final order: (1) To pay restitution to or on behalf of any individual not properly classified; and (2) To otherwise come into compliance with all applicable labor laws, including those related to income tax withholding, unemployment insurance, wage laws, and workers’ compensation.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3505g-restitution" }, { "id": "del-3505j-general-contractor", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3505", "citation": "19 Del. C. § 3505(j)(1)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "A general contractor is jointly and severally liable for a subcontractor's Workplace Fraud Act penalties and restitution.", "verbatimQuote": "A general contractor is jointly and severally liable for a subcontractor’s penalties and restitution under this section.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3505j-general-contractor" }, { "id": "del-3505j2-debarment", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3505", "citation": "19 Del. C. § 3505(j)(2)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Under the Delaware Workplace Fraud Act, a general contractor's liability for a subcontractor's penalties does not include debarment, a sanction the Act provides for separately.", "verbatimQuote": "A general contractor’s liability for a subcontractor’s penalties under paragraph (j)(1) of this section does not include debarment under paragraph (h)(1) of this section.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3505j2-debarment" }, { "id": "del-3503e2-general-contractor", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3503", "citation": "19 Del. C. § 3503(e)(2)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Under the Delaware Workplace Fraud Act, a general contractor is responsible for a subcontractor's violations.", "verbatimQuote": "Notwithstanding paragraph (e)(1) of this section, a general contractor is responsible for a subcontractor’s violations of this chapter.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3503e2-general-contractor" }, { "id": "del-3501b-officers", "authorityType": "primary-law", "tier": "primary-source-backed", "title": "19 Del. C. § 3501", "citation": "19 Del. C. § 3501(b)", "url": "https://delcode.delaware.gov/title19/c035/index.html", "proposition": "Under the Delaware Workplace Fraud Act, corporate officers and managing agents who knowingly permit the corporation to violate the Act are deemed the employers of its employees.", "verbatimQuote": "For the purposes of this chapter the officers of a corporation and any agents having the management thereof who knowingly permit the corporation to violate this chapter shall be deemed to be the employers of the employees of the corporation.", "anchor": "https://openagreements.org/practice-guides/wage-and-hour/us/delaware#src-del-3501b-officers" } ] } ] } }