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Employment Laws in Delaware

Filed under Office & HR.

Employers in Delaware must conform to these state rules relating to the employment relationship.

Employee means an individual employed by an employer, but does not include:

  • an individual employed in agriculture or in the domestic service of a person
  • an individual who, as part of his or her employment, resides in the personal residence of the employer
  • an individual employed by his or her parents, spouse or child

Employer includes the state or a political subdivision or board, department, commission or school district of the state and a person employing four or more persons within the state, but generally does not include religious, fraternal, charitable or sectarian corporations or associations, except such corporations or associations supported, in whole or in part, by governmental appropriations.

With respect to discrimination based on race, color, age or national origin, employer includes religious, fraternal, charitable and sectarian corporations and associations employing four or more persons within the state.

For purposes of the law prohibiting discrimination based on disability, employer includes the state or a political subdivision or board, department, commission or school district of the state and a person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

For purposes of the electronic monitoring provisions, employer includes an individual, corporation, partnership, firm, association, and the state or any of its agencies or subdivisions.

Prohibited Employment Discrimination

Employers may not discriminate against employees or job applicants on the basis of:

  • race
  • marital status
  • color
  • age (includes only persons between the ages of 40 and 70)
  • religion
  • sex
  • sexual orientation
  • genetic information
  • national origin

Discrimination in training and retraining programs is also prohibited.

Disability. Employment discrimination based on an individual's disability is prohibited.

Gender Identity Nondiscrimination Act. Delaware law prohibits discrimination against a person on the basis of gender identity.

Electronic Monitoring. Employers may not monitor or otherwise intercept any telephone conversation or transmission, e-mail or transmission, or internet access or usage of or by an employee unless the employer either provides an electronic notice of the monitoring or intercepting policies or activities to the employee at least once during each day the employee accesses employer-provided e-mail or Internet access services, or has first given a one-time notice to the employee of its monitoring or intercepting activity or policies.

The notice must be in writing, in an electronic record or in another electronic form and acknowledged by the employee either in writing or electronically. This provision does not apply to activities of any law enforcement officer acting under a court order.

Civil unions. Effective January 1, 2012, under the Civil Union and Equality Act of 2011, Delaware will recognize civil unions, and parties to a civil union will enjoy the same rights, benefits, and protections, and will be subject to all the same responsibilities, as married persons under Delaware law.

Same-sex marriage. Same-sex marriage is legalized effective July 1, 2013.

Volunteer Emergency Responders Job Protection Act. Employers are prohibited from firing or taking disciplinary action against an employee who:

  • misses up to seven days of work while responding to a Governor-declared state of emergency,
  • misses up to 14 days of work while responding to a President-declared state of emergency, or
  • is absent from work due to injury sustained when acting as a volunteer emergency responder.

Employers may require a worker who misses work for the above reasons to provide proof of the emergency response or injury, and may subtract wages for the employee’s time away.

In addition, employers are prohibited from discriminating in the hiring or discharging of a person because of that person’s membership in a volunteer emergency responder organization (such as volunteer firefighters, volunteer EMTs, and volunteer fire police, as well as ladies’ auxiliary members).

Recordkeeping Requirements

Employers are required to make and maintain records relevant to whether unlawful employment practices have been or are being committed. Employers must preserve and make reports from those records as required by the Department of Labor.

Posting Requirements

Every employer must post and keep posted in conspicuous places on its premises, where notices to employees and job applicants are customarily posted, a notice prepared or approved by the Department of Labor outlining the antidiscrimination in employment law and information pertinent to the filing of a complaint. Failure to comply with these posting requirements is punishable by a fine.

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