Delaware Employment Screening Overview
Delaware has moderate employment screening regulations, with public employers subject to ban-the-box rules that delay criminal history inquiries until after the first interview, plus restrictions on credit history checks during initial hiring stages.
Private employers face fewer state-level restrictions but should note medical marijuana protections for cardholders and mandatory drug testing requirements in healthcare settings—federal requirements and local ordinances may still apply.
What's Permitted
- Public employers may inquire about criminal history after first interview or conditional offer
- Credit history inquiries permitted for public employers only after conditional offer stage
- Private employers generally may conduct pre-employment drug testing without state restrictions
- Medical marijuana patients may be disciplined if impaired at work or on premises
What's Prohibited
- Inquiring about criminal or credit history before conditional offer (public employers)
- Requesting salary history from applicants or prior employers
- Using credit checks before first interview (public employers)
- Considering expunged records in hiring decisions
Ban the Box Laws
Public Employers OnlyStatus Summary
Delaware HB 167 covers public employers; bans criminal/credit inquiries until after the first interview; requires individualized assessment with 10-year felony/5-year misdemeanor lookbacks; exempts law enforcement and legally mandated checks; private contractors are encouraged to adopt similar practices. https://legis.delaware.gov/BillDetail/23201 https://news.delaware.gov/2014/05/08/governor-bans... https://delcode.delaware.gov/title19/c007/sc01/ind...
Key Requirements
House Bill 167 (Delaware)
State ban‑the‑box law for public employers:
- Applies to public employers only
- No criminal or credit inquiries pre‑interview
- Background checks allowed after first interview
- Must perform individualized assessment before disqualification
- Lookbacks: felonies 10 years; misdemeanors 5
Sources: https://legis.delaware.gov/BillDetail/23201 | https://delcode.delaware.gov/title19/c013/ | https://news.delaware.gov/2014/05/08/governor-bans...
Ban the Box Best Practices for Delaware Employers
- Delay criminal and credit questions until after first interview
- Apply individualized assessment: offense, time elapsed, job nature
- Respect lookbacks: felonies 10 years, misdemeanors 5 years
- Treat law enforcement, corrections, judicial roles as exempt
- State contractors encouraged to adopt similar Ban-the-Box policies
Individual Assessments
EEOC Baseline OnlyStatus Summary
Delaware's ban-the-box provisions under 19 Del. C. § 711(g) apply to public employers only, not to private employers. Private employers in Delaware have no state-specific individualized assessment mandate. Federal EEOC guidance under Title VII applies. The public employer law restricts criminal history inquiries until after the first interview and limits consideration to felonies within 10 years and misdemeanors within 5 years.
Sources: 19 Del. C. § 711(g) (Tier 1), NELP Ban-the-Box tracker (Tier 2).
Key Requirements
No state-specific individualized assessment requirements for private employers. Federal EEOC guidance applies:
Green Factors (Recommended)
- Nature and gravity of the offense
- Time elapsed since the offense or completion of sentence
- Nature of the job held or sought
FCRA Adverse Action Process (Mandatory when using CRAs)
- Pre-adverse action notice with copy of report and Summary of Rights
- Reasonable waiting period (5 to 7 business days standard practice)
- Final adverse action notice
Note on Public Employers
Delaware's public employer law (19 Del. C. § 711(g)) does impose individualized assessment with lookback limits (felonies: 10 years; misdemeanors: 5 years). This does not apply to private employers but may signal future legislative direction.
Legal Standard
No state-specific legal standard for private employers. Federal standards apply:
Title VII (via EEOC Guidance): Criminal record exclusion policies must be "job related for the position in question and consistent with business necessity."
FCRA: Procedural compliance with adverse action requirements when using consumer reporting agencies.
Public employer standard (not applicable to private): 19 Del. C. § 711(g) requires that criminal history be "job related" and "consistent with business necessity," with lookback limits of 10 years for felonies and 5 years for misdemeanors.
Individual Assessment Best Practices for Delaware Employers
- Follow EEOC guidance by conducting individualized assessments using the Green factors before adverse action based on criminal history.
- Document the assessment process and rationale for any adverse decision.
- Comply with FCRA adverse action requirements when using consumer reporting agencies.
- Consider voluntarily adopting the public employer lookback limits (10 years for felonies, 5 years for misdemeanors) as best practice.
- Avoid blanket exclusion policies not tailored to specific job duties.
- Monitor Delaware legislative developments, as the public employer law may be extended to private employers.
Salary History Ban
StatewideTitle 19 Del. C. § 709B — Unlawful employment practices; compensation history
State ban on compensation-history inquiries and use:
- Prohibits asking applicants' compensation history.
- Bans screening by prior compensation amounts.
- Covers employers and agents of all sizes.
- Verify salary only after accepted offer.
- Penalties: $1k–$5k first; $5k–$10k subsequent.
Del. Code § 709B (statute): https://delcode.delaware.gov/title19/c007/sc01/ind...
Delaware Dept. of Labor — Wage & Hour (guidance): https://industrialaffairs.delaware.gov/wage-hour
House Bill 105 — Pay range disclosure requirement
Requires pay-range transparency in hiring materials:
- Requires pay ranges in job postings.
- Applies to employers with 26 or more employees.
- Provide pay info before offers or discussions.
- Exceptions for temporary, interim, or acting roles requiring immediate hire.
- Retain pay records for employment plus three years.
- Effective September 2027.
House Bill 105 (text): https://legis.delaware.gov/BillDetail/142429
Summary / pay transparency details: https://delcode.delaware.gov/title19/c007/sc01/ind...
Important Distinction
Delaware's salary‑history ban was among the nation's earliest and became effective December 14, 2017; statewide statutory civil penalties apply, predating Massachusetts and Oregon enforcement.
https://delcode.delaware.gov/title19/c007/sc01/ind... https://labor.delaware.gov
Salary History Best Practices for Delaware Employers
- Do not ask applicants about prior compensation history
- Do not screen or filter candidates based on salary history
- Ask applicants' salary expectations, not their compensation history
- Only verify salary history after offer with compensation terms accepted
- Train hiring staff and document compliance with hiring procedures
Consumer Credit Checks
RestrictedPublic employers may not inquire into or consider credit history or scores during application through the first interview; they may consider credit afterward if otherwise qualified. Private employers not covered. Medical debt excluded Oct 27, 2025. https://delcode.delaware.gov/title19/c007/sc02/ https://news.delaware.gov/2025/10/27/new-law-exclu...
Key Requirements
House Bill 167 (Delaware ban-the-box)
Delaware ban-the-box limiting public employers' inquiries:
- No credit checks during initial application
- No credit scores before first interview
- Applies only to public employers
- Excludes police, corrections, courts, required-by-law
Sources: | https://news.delaware.gov/2014/05/08/governor-bans...
Delaware Code Title 19 §711(h)
Statutory codification and procedural rules:
- Prohibits inquiries through first interview
- May consider credit after first interview
- Applicant must be otherwise qualified
- Requires individualized criminal-history assessment
Senate Bill 156 (Medical debt exclusion)
Removes medical debt from employment credit reports:
- Medical debt excluded from credit reports
- Effective October 27, 2025
- Affects credit-based hiring decisions
- May remove debt based on thresholds
Source: https://news.delaware.gov/2025/10/27/new-law-exclu...
Fair Credit Reporting Act (federal)
Federal consumer-reporting obligations employers must follow:
- Requires written consent for credit reports
- Mandates pre-adverse and adverse notices
- Seven-year lookback for many negative items
- Convictions and high-salary exceptions apply
Source: https://www.congress.gov/committee-report/114th-co...
Title VII of the Civil Rights Act (federal)
Anti-discrimination limits on credit-based hiring:
- Prohibits disparate-impact discrimination
- Requires job-relatedness and business necessity
- Demands individualized assessments to justify exclusions
Source: https://www.congress.gov/committee-report/114th-co...
Credit Check Best Practices for Delaware Employers
- Wait until after first interview before obtaining credit information
- Ensure applicant is otherwise qualified before credit inquiry
- Obtain written consent and follow FCRA adverse-action steps
- Limit credit use to job-related, individualized assessments
- Do not consider medical debt on employment credit reports
Marijuana Protection
Medicinal Marijuana
Employers may not discriminate against Delaware medical‑marijuana cardholders based solely on status or a positive marijuana test, unless the employee was impaired at work or employer action is required to avoid loss of federal monetary or licensing benefits (16 Del. C. § 4905A). https://delcode.delaware.gov/
Recreational Marijuana
Delaware’s 2023 recreational legalization (HB 1, 2023) expressly does not restrict employers; employers may still set policies and may discipline or refuse to hire based on marijuana use or positive tests. https://legis.delaware.gov/
Drug Testing Regulations
Delaware mandates drug testing only in specific sectors: state safety‑sensitive and child‑care roles, long‑term care, home‑care, and public‑works contractors; private employers otherwise set policies. Medical‑marijuana patients have limited protections; recreational marijuana gives no employment protections.
Permitted Testing Types
Pre-Employment
Allowed; mandatory in specified sectors; medical-marijuana exceptions apply.
Random Testing
Allowed; required in some sectors; private employers generally permissive.
Reasonable Suspicion
Allowed statewide; permissible with sector-specific rules and exceptions.
Post Accident
Allowed; required or permitted in safety-sensitive and public-works contexts.
Workers' Compensation Discount
No statewide workers' compensation premium discount ties to Delaware drug-testing laws.
Statutes and regulations reviewed do not reference WC discounts; insurer-specific programs may vary.
Best Practices
- Follow sector-specific mandates: healthcare, state, home-care, public works
- Do not discriminate against medical marijuana cardholders absent impairment
- Use Background Check Center procedures for DHSS-regulated screenings
- Maintain confidentiality and ADA-compliant accommodation for results
- For public works, implement certified programs and random testing
Clean Slate Laws
StatewideDelaware's Clean Slate Act (SB111, effective Aug 1, 2024) mandates monthly SBI automatic expungements (violations: 3‑yr from conviction; misdemeanors: 5‑yr from conviction; certain drug felonies: 5–10 yrs), bars disclosure of expunged records; public employers: ban‑the‑box, 10/5 lookbacks. DelCode DSP
E-Verify Requirements
VoluntaryWho Must Use E-Verify
Private Employers [No Delaware E‑Verify statute; Immigration Reform and Control Act (Form I‑9)]
E‑Verify is voluntary for private Delaware employers; federal Form I‑9 (IRCA) completion and retention remain mandatory for all hires.
Federal Contractors [FAR 52.222‑54 — E‑Verify clause; Federal Acquisition Regulation]
Contractors with FAR 52.222‑54 clauses must enroll in E‑Verify and verify new hires and contract‑assigned employees within specified FAR timelines.
Any other relevant groups [State Executive Branch — DHR‑STW‑212.1; Healthcare/Childcare — Delaware Title 16; Public employers — 2014 HB 167 (Ban‑the‑Box)]
State Executive Branch agencies must use E‑Verify per DHR policy; healthcare/childcare employers must follow Title 16 criminal‑history and drug‑screen rules; Ban‑the‑Box restricts initial criminal‑history questions.
https://dhr.delaware.gov/policies/documents/e-veri...
Background Check Regulations
Federal FCRA rules apply, and Delaware adds state requirements—public employer “ban‑the‑box” protections and limits on considering older convictions—so employers must comply with both federal and Delaware law.
FCRA Compliance Process
Disclosure & Authorization
Provide clear, standalone written disclosure that a background check will be conducted. Obtain separate written authorization from the applicant before ordering the report.
Obtain Background Report
Order the background check from a Consumer Reporting Agency (CRA). Ensure the CRA is FCRA-compliant and provides accurate, up-to-date information.
Pre-Adverse Action Notice
If considering denying employment based on the report, provide the applicant with:
- Copy of the background report
- Copy of "A Summary of Your Rights Under the FCRA"
- Reasonable time to respond (typically 5 business days)
Adverse Action Notice
If final decision is made to deny employment, provide written notice including:
- Name, address, and phone number of the CRA
- Statement that the CRA did not make the decision
- Notice of right to dispute report accuracy
- Notice of right to request additional free copy within 60 days