Employment Practices

Del. Code tit. 19, ch. 7
in effect

Del. Code tit. 19, § 701 Order on employer to pay employee’s loan carrying excessive interest rate; penalty for payment.

(a) No employer in this State shall knowingly pay any warrant or order due any person for borrowed money where more than the lawful rate of interest has been received or charged for the money borrowed. (b) Any employer, whether an individual, member of a firm, agent or officer of a corporation, who shall knowingly violate this section shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. A civil penalty claim may be filed in any court of competent jurisdiction.

Del. Code tit. 19, § 702 Payment of wages for railroad employees every 2 weeks.

(a) Every corporation or joint stock association operating a steam, electric or diesel surface railroad or engaged in the sleeping car business and every person carrying on such a business, by lease or otherwise, shall pay to each employee every 2 weeks the wages earned to a day not more than 14 days prior to the date of such payment. This section shall not apply to any person employed in a bona fide executive, administrative or professional capacity. (b) Every corporation or joint stock association or person carrying on such a business by lease or otherwise who knowingly does not pay the wages of all its or that person’s employees in accordance with this section, and the officers of such corporation or joint stock association who knowingly permit a corporation or joint stock association to violate this section by failing to pay the wages of any of its employees, shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. A civil penalty claim may be filed in any court of competent jurisdiction.

Del. Code tit. 19, § 703 Employment of strike breakers.

(a) It shall be unlawful for any person, firm or corporation, not directly involved in a labor strike or lockout, to recruit any person or persons for employment or to secure or offer to secure for any person or persons any employment, when the purpose of such recruiting, securing or offering to secure employment is to have such persons take the place in employment of employees in an industry where a labor strike or a lockout involving a recognized labor organization exists; provided, that this section shall not apply to the Delaware State Employment Service or the United States Employment Service or to any person, firm or corporation engaged in the production, handling or the processing of agricultural commodities. (b) 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. A civil penalty claim may be filed in any court of competent jurisdiction. (c) No person, firm or corporation recruiting persons for employment shall be subject to the penalties imposed by this section, unless the labor organization involved in said labor strike or lockout gives actual notice to said person, firm or corporation of the existence of said labor strike or lockout.

Del. Code tit. 19, § 704 Polygraph, lie detector or similar test or examination prohibited as condition of employment or continuation of employment; definitions; jurisdiction; penalty; exclusion.

(a) As used in this section, “person” includes any individual, corporation, partnership, firm, association and the State or any agency or political subdivision thereof, except as noted in subsection (d) of this section. (b) No person, nor any agent or representative of a person, shall require, request or suggest that any employee or prospective employee take or shall cause, directly or indirectly, any employee or prospective employee to take a polygraph, lie detector or similar test or examination as a condition of employment or continuation of employment. (c) 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. A civil penalty claim may be filed in any court of competent jurisdiction. (d) This section shall not apply to any polygraph, lie detector or similar test or examination administered by any law-enforcement agency in the performance of official duties which shall include police officer applicant background investigations. (e) As used in this section, the term “lie detector” shall include, but shall not be limited to, any electromechanical device which records or analyzes vocally produced sound frequency variations associated with stress for the purpose of determining the truth of any oral statement. (f) 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 section, or because the employee has 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 and shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

Del. Code tit. 19, § 705 Notice of monitoring of telephone transmissions, electronic mail and Internet usage.

(a) As used in this section, “employer” includes any individual, corporation, partnership, firm or association with a place of business in Delaware and the State of Delaware or any agency or political subdivision thereof. (b) No employer, nor any agent or any representative of any employer, shall monitor or otherwise intercept any telephone conversation or transmission, electronic mail or transmission, or Internet access or usage of or by a Delaware employee unless the employer either: (1) Provides an electronic notice of such monitoring or intercepting policies or activities to the employee at least once during each day the employee accesses the employer-provided e-mail or Internet access services; or (2) Has first given a 1-time notice to the employee of such monitoring or intercepting activity or policies. The notice required by this paragraph shall be in writing, in an electronic record, or in another electronic form and acknowledged by the employee either in writing or electronically. The notice required by this subsection shall not apply to activities of any law-enforcement officer acting under the order of a court issued pursuant to Chapter 24 of Title 11. (c) Whoever violates this section shall be subject to a civil penalty of $100 for each such violation. A civil penalty claim may be filed in any court of competent jurisdiction. (d) The provisions of this section shall not be deemed to be an exclusive remedy and shall not otherwise limit or bar any person from pursuing any other remedies available under any other law, state or federal statute, or the common law. The violations of this section by an employer shall not be admitted into evidence for the purpose of, or used as, a defense to criminal liability of any person in any Court in this State. (e) The provisions of this section shall not apply to processes that are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or Internet usage, that are not targeted to monitor or intercept the electronic mail or telephone voice mail or Internet usage of a particular individual, and that are performed solely for the purpose of computer system maintenance and/or protection.

Del. Code tit. 19, § 706 Continuation of labor contracts despite merger or other business combination.

(a) Notwithstanding any other provisions of this Code, no merger, consolidation, sale of assets or business combination shall result in the termination or impairment of the provisions of any labor contract covering persons engaged in employment in this State and negotiated by a labor organization or by a collective bargaining agent or other representative. Notwithstanding such merger, consolidation, sale of assets or business combination, such labor contract shall continue in effect until its termination date or until otherwise agreed by the parties to such contract or their legal successors. (b) For purposes of this section: (1) “Business combination” includes any merger, consolidation, joint venture, lease, sale, dividend exchange, mortgage, pledge, transfer or other disposition (in 1 transaction or a series of transactions) whether with a subsidiary or otherwise; and (2) “Employment” shall have the meaning set forth in § 3302(14)(H) and (I) of this title. (c) In the event that any such employee is denied or fails to receive wages, benefits or wage supplements as a result of a violation of this section, and in addition to injunctive or other relief provided by law, the provisions of Chapter 11 of this title shall be applicable to secure recovery against the merged or consolidated corporation or the resulting corporation, notwithstanding anything contained therein or elsewhere to the contrary. The remedies provided for herein shall be available against any of the parties to such merger, consolidation, sale of assets or business combination.

Del. Code tit. 19, § 707 Meal breaks.

(a) 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. The meal break must be given some time after the first 2 hours of work and before the last 2 hours. 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. 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. (b) 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. (c) 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. Jurisdiction of violations of this subchapter shall be in any court of competent jurisdiction.

Del. Code tit. 19, § 708 Special employment practices relating to health-care and child-care facilities.

(a) Definitions. — (1) “Child care facility” means any child care facility which is required to be licensed by the Department of Education, Office of Child Care Licensing. (2) “Child-serving entity” means as defined in § 309 of Title 31. (3) “Direct access” means the opportunity to have personal contact with persons receiving care during the course of one’s assigned duties. (4) “Health-care facility” means any custodial or residential facility where health, nutritional or personal care is provided for persons, including long-term care facilities as defined in § 1102 of Title 16, hospitals, home health-care agencies, and adult day-care facilities. (5) “Person seeking employment” means any person applying for employment in a health-care facility or child-care facility that affords direct access to persons receiving care at such a facility, or a person applying for licensure to operate a child-care facility. (b) Service letter. — (1) a. No employer who operates a health-care facility or child-care facility, or provides health, nutritional, or personal care in such a facility, shall hire any person seeking employment without obtaining 1 or more service letters regarding that person, provided such person has been previously employed. Any service letters obtained must include a service letter from the person’s current or most recent previous employer. In addition, if a person seeking employment was employed in a health-care facility or by a child-serving entity within the past 5 years, the employer must obtain a service letter from all such employers. If the person seeking employment has not been previously employed, or was self-employed, then the employer must require the person to provide letters of reference from 2 adults who are familiar with the person, but who are not relatives of the person. b. If the prospective employer attempts to obtain a service letter from a previous employer and the previous employer fails to respond, the previous employer’s failure to respond must be documented and reported to the Department of Labor. (c) Temporary agencies. — Any temporary agency responsible for providing temporary employees to a health-care facility or child-care facility, when such employees qualify as “persons seeking employment” for purposes of paragraph (a)(5) of this section, is considered an employer and is responsible for complying with the requirements of this section.

Del. Code tit. 19, § 709 Employment information.

(a) An employer or any person employed by the employer who discloses information about a current or former employee’s job performance to a prospective employer is presumed to be acting in good faith; and unless lack of good faith is shown, is immune from civil liability for such disclosure or its consequences. For purposes of this section, the presumption of good faith may be rebutted upon a showing that the information disclosed by such employer was knowingly false, was deliberately misleading or was rendered with malicious purpose; or that the information was disclosed in violation of a nondisclosure agreement, or was otherwise confidential according to applicable federal, state or local statute, rule or regulation. (b) For purposes of this section, the word “information” includes: (1) Information about an employee’s or former employee’s job performance or work-related characteristics; (2) Any act committed by such employee which would constitute a violation of federal, state or local law; or (3) An evaluation of the ability or lack of ability of such employee or former employee to accomplish or comply with the duties or standards of the position held by such employee or former employee.

Del. Code tit. 19, § 709A Employer use of social media.

(a) For purposes of this section, the following definitions shall apply: (1) “Applicant” means a prospective employee applying for employment. (2) “Electronic communication device” means a cellular telephone, personal digital assistant, electronic device with mobile data access, laptop computer, pager, broadband personal communication device, 2-way messaging device, electronic game, or portable computing device. (3) “Employee” means any individual employed within the State by an employer. This section does not apply to employees or applicants of the United States government in those capacities. (4) “Employer” means any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee or applicant, including the State and any political subdivision or board, department, commission, or school district thereof, and excluding the United States government. (5) “Personal social media” means an account on a social networking site created and operated by an employee or applicant exclusively for the employee or applicant’s personal use. “Personal social media” does not include an account on a social networking site created or operated by an employer and that is operated by an employee as part of their employment. (6) “Social networking site” means an internet-based, personalized, privacy-protected website or application whether free or commercial that allows users to construct a private or semi-private profile site within a bounded system, create a list of other system users who are granted reciprocal access to the individual’s profile site, send and receive e-mail, and share personal content, communications, and contacts. (b) An employer shall not require or request an employee or applicant to do any of the following: (1) Disclose a username or password for the purpose of enabling the employer to access personal social media. (2) Access personal social media in the presence of the employer. (3) Use personal social media as a condition of employment. (4) Divulge any personal social media, except as provided in subsection (d) of this section. (5) Add a person, including the employer, to the list of contacts associated with the employee’s or applicant’s personal social media, or invite or accept an invitation from any person, including the employer, to join a group associated with the employee’s or applicant’s personal social media. (6) Alter the settings on the employee’s or applicant’s personal social media that affect a third party’s ability to view the contents of the personal social media. (c) Nothing in this section shall affect an employer’s rights and obligations under the employer’s personnel policies, federal or state law, case law, or other rules or regulations to require or request an employee to disclose a username, password, or social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding. (d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing (i) an electronic communication device supplied by or paid for in whole or in part by the employer; or (ii) an account or service provided by the employer, obtained by virtue of the employee’s employment relationship with the employer, or used for the employer’s business purposes. (e) Nothing in this section precludes an employer from monitoring, reviewing, accessing, or blocking electronic data stored on an employer’s network or on an electronic communications device supplied by or paid for in whole or in part by the employer. (f) Nothing in this section precludes an employer from complying with a duty to screen employees, or applicants before hiring, or to monitor or retain employee communications: (1) That is established under federal or state law or by a self-regulatory organization, as defined in the Securities and Exchange Act of 1934, 15 U.S.C. § 78c(a)(26); or (2) In the course of a law-enforcement employment application or law-enforcement officer conduct investigation performed by a law-enforcement agency. (g) Nothing in this section precludes an employer from viewing, accessing, or using information about an employee or applicant that is in the public domain. (h) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

Del. Code tit. 19, § 709B Unlawful employment practices; compensation history

(a) Definitions. — For the purposes of this section: (1) “Applicant” means a prospective employee applying for employment. (2) “Compensation” includes monetary wages as well as benefits and other forms of compensation. (b) It shall be an unlawful employment practice for an employer or an employer’s agent to: (1) Screen applicants based on their compensation histories, including by requiring that an applicant’s prior compensation satisfy minimum or maximum criteria. (2) Seek the compensation history of an applicant from the applicant or a current or former employer. (c) For the purposes of this section, if an employer can demonstrate that the employer’s agent, who is not an employee, was informed of the requirements of this section and instructed to comply by the employer, then the employer is not liable for actions taken by the agent in violation of this section. (d) Nothing in this section prohibits an employer or an employer’s agent and an applicant from discussing and negotiating compensation expectations provided that the employer or employer’s agent does not request or require the applicant’s compensation history. (e) Nothing in this section prohibits an employer or an employer’s agent from seeking the applicant’s compensation history after an offer of employment with terms of compensation has been extended to the applicant and accepted, for the sole purpose of confirming the applicant’s compensation history. (f) The Department of Labor shall post the requirements of this section on its website and shall perform outreach as necessary to educate employers of the requirements of this section. (g) Enforcement. — The Department of Labor has the same powers under this section as given in § 1111 of this title. (h) Penalties. — (1) Any employer or employer’s agent who violates or fails to comply with any requirement of this section shall be deemed in violation of this section and shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for the first offense and not less than $5,000 nor more than $10,000 for each subsequent violation. (2) For penalty purposes, any actions by an employer or employer’s agent that violate the provisions of paragraph (b)(1) or (b)(2) of this section that pertain to interviewing and hiring for a single position shall constitute a single violation. (3) A civil penalty claim may be filed in any court of competent jurisdiction.

Del. Code tit. 19, § 709C Transparency in pay rates, employment, and advancement opportunities [Effective Sept. 26, 2027].

(a) As used in this section: (1) “Employer” means as defined in § 709A of this title. (2) “Hourly or salary compensation range” means the minimum to maximum pay range for the position, set in good faith by reference to any applicable pay scale, previously determined range for the position, the actual range of others currently holding equivalent positions, or the budgeted amount for the position, as applicable. (b) (1) If an employer announces, posts, or otherwise makes known a job opportunity, the employer must include the hourly or salary compensation range and a general description of the benefits and other compensation. (2) If an external or internal posting for the job opportunity has not been made available to an applicant, the employer must provide the applicant the hourly or salary compensation range and a general description of the benefits and other compensation for the job opportunity prior to any offer or discussion of compensation and at any time at the applicant’s request. (3) Temporary, interim, or acting job opportunities that require an immediate hire are exempt from the requirement of paragraph (b)(1) of this section. The Department of Labor may promulgate regulations for temporary, interim, or acting job opportunities that necessitate immediate hire. (c) (1) Except as provided under paragraph (c)(2) of this section, an employer must disclose all of the following in the notification of each job opportunity in both internal and external job postings: a. The hourly or salary compensation or the hourly or salary compensation range. The breadth of the hourly or salary compensation range provided is 1 factor relevant to the analysis of whether an employer has complied in good faith with this section. b. A general description of the benefits and other compensation applicable to the job opportunity. (2) a. A notification for a job opportunity that is paid on a commission basis, whether in whole or in part, must disclose that fact and is not required to disclose the compensation or compensation range. b. A notification for a job opportunity that is paid on a tipped basis must disclose that fact and provide the base wage or range of base wages for the job opportunity. c. A notification for a job opportunity that is covered by a collective bargaining agreement must disclose the compensation or compensation range that has been approved for disclosure under this section in the collective bargaining agreement. (d) An employer shall make, keep, and preserve records of job descriptions and salary or wage rate history for each employee for a period of not less than 3 years and shall make such record available to the Department of Labor upon request. (e) (1) a. The Department of Labor (Department) shall administer and enforce this section. The Department may investigate suspected violations of this section and adjudicate alleged violations through administrative proceedings. The Department shall adopt regulations to establish the administrative procedures. The regulations shall require the Secretary of Labor (Secretary) to issue a final order, in writing, whenever the Secretary imposes a penalty and to provide prompt notice of the order. b. A party aggrieved by a final order from the Secretary may appeal the order to the Superior Court within 30 days from the date notice was sent. The appeal shall be on the record without a trial de novo. If the Superior Court determines that the record is insufficient for its review, it shall remand the case to the Department for further proceedings on the record. When factual determinations are at issue, the Superior Court shall take due account of the Department’s experience and specialized competence and of the purposes of the basic law under which the Department has acted. In the absence of actual fraud, the Superior Court’s review shall be limited to a determination of whether the Department’s decision was supported by substantial evidence on the record before it. c. After an appeal to the Superior Court or the time for appeal has expired, if penalties are unpaid, the Department may file an action in the Superior Court for execution upon the Secretary’s final order as if the order was a judgment of the Court. (2) An employer who violates or fails to comply in good faith with any requirement of this section or any regulation published thereunder is in violation of this section. For a first offense, an employer shall receive a written warning. For any second or subsequent offense, an employer is subject to a civil penalty of not less than $500 nor more than $10,000 for each such violation. An employer’s failure to comply with this section for 1 job opportunity is 1 violation regardless of the number of times it is posted. (3) An employer who discharges or in any manner discriminates against an individual because that individual has made a complaint or has given information to the Department pursuant to this section, or because the individual has 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 is subject to a civil penalty of not less than $500 nor more than $10,000 for each such discharge or act of discrimination. (f) Nothing in this section requires an employer to identify a selected candidate for a job opportunity in any manner that violates the candidate’s privacy rights under applicable local, state, or federal law or in a manner that would place at risk the selected candidate’s health or safety. (g) (1) A third party who posts or reposts a notification regarding a job opportunity is not subject to liability or enforcement under this section. (2) An employer is not liable for job postings that are digitally replicated and published without the employer’s consent. (h) (1) This section does not apply to an employer with 25 or fewer employees. (2) For an employer with 26 or more employees, this section applies to jobs located in Delaware and noninternational remote positions offered by an employer based in Delaware. (i) This section applies to the posting of job opportunities covered by a collective bargaining agreement only after the collective bargaining agreement is executed, amended, modified, renewed, or replaced after September 26, 2027.

Del. Code tit. 19, § 710 Definitions.

For the purposes of this subchapter: (1) “Age” means the age of 40 or more years of age. (2) “Charging party” means any individual or the Department who initiates proceedings by the filing of a verified charge of discrimination, and who preserves a cause of action in Superior Court by exhausting the administrative remedies pursuant to the provisions of § 714 of this title. (3) “Conciliation” means a process which requires the appearance of the parties after a full investigation resulting in a final determination of reasonable cause. (4) “Delaware Right to Sue Notice” means a final acknowledgement of the charging party’s exhaustion of the administrative remedies provided herein and written notification to the charging party of a corresponding right to commence a lawsuit in Superior Court. (5) “Domestic violence” means any act that would constitute a violation of § 1041 of Title 10, and for which an employer may request verification by an official document, such as a court order or family medical leave record, from a domestic violence service provider, medical provider, mental health provider, or law enforcement. (6) “Employee” means an individual employed by an employer, but does not include: a. Any individual employed in agriculture or in the domestic service of any person, b. Any individual who, as a part of that individual’s employment, resides in the personal residence of the employer, c. Any individual employed by said individual’s parents, spouse or child, or d. Any individual elected to public office in the State or political subdivision by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff, or an appointee on the policy making level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the merit service rules or civil service rules of the state government or political subdivision. (7) “Employer” means any person employing 4 or more employees within the State at the time of the alleged violation, including the State or any political subdivision or board, department, commission or school district thereof. The term “employer” with respect to discriminatory practices based upon sexual orientation or gender identity does not include religious corporations, associations or societies whether supported, in whole or in part, by government appropriations, except where the duties of the employment or employment opportunity pertain solely to activities of the organization that generate unrelated business taxable income subject to taxation under § 511(a) of the Internal Revenue Code of 1986 [26 U.S.C. § 511(a)]. (8) “Employment agency” means any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person. (9) “Family responsibilities” means the obligations of an employee to care for any family member who would qualify as a covered family member under the Family and Medical Leave Act [29 U.S.C. § 2601 et seq.]. (10) “Gender identity” means a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth. (11) “Genetic information” means the results of a genetic test as defined in § 2317(a)(3) of Title 18. (12) “Housing status” means as defined in § 204 of Title 19. (13) “Job related and consistent with business necessity” means the condition in question renders the individual unable to perform the essential functions of the position that such individual holds or desires. This includes situations in which the individual poses a direct threat to the health or safety of the individual or others in the workplace. (14) “Labor organization” includes any organization of any kind, any agency or employee representation committee, group, association or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours or other terms or conditions of employment, any conference, general committee, joint or system board or joint council so engaged which is subordinate to a national or international labor organization. (15) “Mediation” means an expedited process for settling employment disputes with the assistance of an impartial third party prior to a full investigation. (16) “Military status” means status as any of the following: a. A member of the uniformed forces, as defined in 10 U.S.C. § 101, or a reserve component thereof listed under 10 U.S.C. § 10101. b. A “veteran” as defined in 38 U.S.C. § 101. c. A “dependent” of a servicemember as defined in 50 U.S.C. § 3911. (17) “No cause determination” means that the Department has completed its investigation and found that there is no reasonable cause to believe that an unlawful employment practice has occurred or is occurring. A no cause determination is a final determination ending the administrative process and provides the charging party with a corresponding Delaware Right to Sue Notice. (18) “Person” includes 1 or more individuals, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy or receivers. (19) “Pregnancy” means pregnancy, childbirth, or a related condition, including, but not limited to, lactation. (20) “Protective hairstyle” includes braids, locks, and twists. (21) “Public employer” means the State of Delaware, its agencies, or political subdivisions. (22) “Race” includes traits historically associated with race, including hair texture and a protective hairstyle. (23) “Reasonable accommodation” has the meaning given this term in § 722 of this title, except that all references to disability shall instead be references to known limitations of a person related to pregnancy, childbirth, or a related condition. Accommodations available under this subchapter may include, but are not limited to, acquisition of equipment for sitting, more frequent or longer breaks, periodic rest, assistance with manual labor, job restructuring, light duty assignments, modified work schedules, temporary transfers to less strenuous or hazardous work, time off to recover from childbirth, or break time and appropriate facilities for expressing breast milk. (24) “Reasonable cause determination” means that the Department has completed its investigation and found reasonable cause to believe that an unlawful employment practice has occurred or is occurring. A reasonable cause determination requires the parties’ good faith efforts in conciliation. (25) “Religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that the employer is unable to reasonably accommodate an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business. (26) “Reproductive health decision” means any decision related to the use or intended use of a particular drug, device, or medical service, including the use or intended use of contraception or fertility control or the planned or intended initiation or termination of a pregnancy. (27) “Respondent” means any person named in the Charge of Discrimination, including but not limited to employers, employment agencies, labor organizations, joint labor-management committees, controlling apprenticeship or other training programs including on-the-job training programs. (28) “Secretary” means the Secretary of the Department of Labor or the Secretary’s designee. (29) “Sexual offense” means any act that would constitute a violation of § 761 of Title 11, and for which an employer may request verification by an official document, such as a court order or family medical leave record, from a sexual violence service provider, medical provider, mental health provider, or law enforcement. (30) “Sexual orientation” includes heterosexuality, homosexuality, bisexuality, asexuality, or pansexuality. (31) “Stalking” means any act that would constitute a violation of § 1312 of Title 11, and for which an employer may request verification by an official document, such as a court order or family medical leave record, from a crime victim service provider, medical provider, mental health provider, or law enforcement. (32) “Undue hardship” means an action requiring significant difficulty or expense when considered in light of factors such as: the nature and cost of the accommodation; the overall financial resources of the employer; the overall size of the business of the employer with respect to the number of employees, and the number, type and location of its facilities; and the effect on expenses and resources or the impact otherwise of such accommodation upon the operation of the employer.

Del. Code tit. 19, § 711 Unlawful employment practices; employer practices.

(a) Definitions. — As used in this section: (1) “Certifying body or organization” means an independent body or entity duly accredited to issue a formal certification that an applicant meets specific local, state, or national standards or requirements. (2) “Licensing body or organization” means an agency, board, association, or other entity that authorizes individuals to practice a profession in the State and issues a license, certificate, permit, or other authorization to the individual which is required to legally conduct business in the State. (3) “Regulatory body or organization” means a government agency or entity established by legislation to enforce that legislation and to set and enforce standards implementing the legislation. (b) It is an unlawful employment practice for an employer to do any of the following: (1) Fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual’s race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status. (2) Limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual’s status as an employee because of such individual’s race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status. (3) a. For any employment-related purpose, fail or refuse to treat an employee or applicant for employment that the employer knows or should know is affected by pregnancy as well as the employer treats or would treat any other employee or applicant not so affected but similar in the ability or inability to work, without regard to the source of any condition affecting the other employee’s or applicant’s ability or inability to work; b. Fail or refuse to make reasonable accommodations to the known limitations related to the pregnancy of an applicant for employment or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such employer; c. Deny employment opportunities to a job applicant or employee, if such denial is based on the need of the employer to make reasonable accommodations to the known limitations related to the pregnancy of an employee or applicant for employment; d. Require an applicant for employment or employee affected by pregnancy to accept an accommodation that such applicant or employee chooses not to accept, if such applicant or employee does not have a known limitation related to pregnancy or if such accommodation is unnecessary for the applicant or employee to perform the essential duties of her job; e. Require an employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided to the known limitations related to the pregnancy of the employee; or f. Take adverse action against an employee in the terms, conditions, or privileges of employment for requesting or using a reasonable accommodation to the known limitations related to the pregnancy of the employee. (c) It is an unlawful employment practice for an employment agency to fail or refuse to refer for employment or otherwise to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status or to classify or refer for employment any individual on the basis of race, marital status, genetic information, color, religion, age, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status. (d) It is an unlawful employment practice for a labor organization to do any of the following: (1) Exclude or expel from its membership or otherwise to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status. (2) Limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual in any way which would deprive or tend to deprive any individual of employment opportunities or would limit such employment opportunities or otherwise adversely affect the individual’s status as an employee or as an applicant for employment because of such individual’s race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status. (3) Cause or attempt to cause an employer to discriminate against an individual in violation of this section. (e) It is an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status in admission to or employment in any program established to provide apprenticeship or other training. (f) It shall be an unlawful employment practice for an employer, employment agency, labor union or joint labor-management committee controlling apprenticeship or other training or retraining, including on the job training programs to intentionally collect, directly or indirectly, any genetic information concerning any employee or applicant for employment, or any member of their family, unless: (1) It can be demonstrated that the information is job-related and consistent with business necessity; or (2) The information or access to the information is sought in connection with the retirement policy or system of any employer or the underwriting or administration of a bona fide employee welfare or benefit plan. (g) It is an unlawful employment practice for any employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discharge, refuse to hire or otherwise discriminate against any individual or applicant for employment or membership on the basis of such person’s race, marital status, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status or because such person has opposed any practice prohibited by this subchapter or because such person has testified, assisted or participated in any manner in an investigation, proceeding, or hearing to enforce the provisions of this subchapter. (h) (1) It shall be an unlawful employment practice for any public employer to inquire into or consider the criminal record, criminal history, credit history, or credit score of an applicant for employment during the initial application process, up to and including the first interview. (2) If an applicant is otherwise qualified, a public employer may inquire into or consider an applicant’s criminal record, criminal history, credit history or credit score after the completion of the first interview. (3) A public employer may disqualify an applicant from employment based on criminal history where the exclusion is job related for the position in question and consistent with business necessity. The public employer shall consider the following factors in its hiring decision: a. The nature and gravity of the offense or conduct; b. The time that has passed since the offense or conduct and/or the completion of the sentence; and c. The nature of the job held or sought. (4) This subsection does not apply to any state, county or municipal police force, the Department of Correction, the Department of Justice, the Office of Defense Services, the courts, or any position where federal or state statute requires or expressly permits the consideration of an applicant’s criminal history. (i) It shall be an unlawful employment practice for an employer to do any of the following: (1) a. Fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because the individual was the victim of domestic violence, a sexual offense, or stalking. b. Fail or refuse to make reasonable accommodations to the limitations known to the employer and related to domestic violence, a sexual offense, or stalking, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such employer. c. For purposes of paragraph (i)(1) of this section, “reasonable accommodations” means making reasonable changes in the workplace, including reasonable changes in the schedules or duties of the job in question that would accommodate the person who was the victim of domestic violence, a sexual offense, or stalking, enabling such person to satisfactorily perform the essential duties of the job in question. Reasonable accommodations include allowing the individual to use accrued leave to address the domestic abuse, sexual offense, or stalking. (2) Discharge or discipline an individual who is a victim of a crime or a representative of a victim because the individual participated in the preparation for or attended proceedings under § 9409(a) of Title 11. (j) It shall be an unlawful employment practice for an employer to: (1) Require as a condition of employment that an employee refrain from inquiring about, discussing, or disclosing that employee's wages or the wages of another employee. (2) Require an employee to sign a waiver or other document which purports to deny an employee the right to disclose or discuss that employee's wages. (3) Discharge, formally discipline, or otherwise discriminate against an employee for inquiring about, discussing, or disclosing that employee's wages or the wages of another employee. (4) Nothing in this section creates an obligation for an employer or employee to disclose wages. (k) It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of a reproductive health decision by the individual. ( l ) (1) It shall be an unlawful employment practice for an employer to: a. Fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual’s family responsibilities, except with respect to the employer’s attendance and absenteeism standards that are not protected by other applicable law and inasmuch as the employee’s performance at work meets satisfactory standards. b. Limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual’s status as an employee because of such individual’s family responsibilities, except with respect to the employer’s attendance and absenteeism standards that are not protected by other applicable law and inasmuch as the employee’s performance at work meets satisfactory standards. (2) This subsection does not create any obligation for an employer to make special accommodations for an employee with family responsibilities, so long as all policies related to leave, scheduling, absenteeism, work performance, and benefits are applied in a nondiscriminatory manner. (m) It shall be an unlawful employment practice for an employer to request or require a prospective employee’s age, date of birth, dates of attendance at or date of graduation from an educational institution on an initial employment application, provided that the provisions of this subsection shall not apply to any employer requesting or requiring such information: (1) Based on a bona fide occupational qualification or need; or (2) When such information is required to comply with any provision of state or federal law, or the requirements of any regulatory, licensing, or certifying body or organization. For age to constitute “a bona fide occupational qualification or need” under this section, an employer must establish that age is an essential component of one’s ability to successfully perform a particular job and is necessary to the normal operation of the business. (n) Notwithstanding any other provision of this subchapter: (1) It is not an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program on the basis of religion, genetic information, age, sex (including pregnancy), sexual orientation, gender identity, military status, or national origin in those certain instances where religion, genetic information, age, sex (including pregnancy), sexual orientation, gender identity, national origin, military status, or housing status is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. (2) It shall not be an unlawful employment practice for a school, college, university or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled or managed by a particular religion or by a particular religious corporation, association or society or if the curriculum of such school, college, university or other educational institution or institution of learning is directed toward the propagation of a particular religion. (o) Notwithstanding any other provision of this subchapter, it is not an unlawful employment practice for an employer to apply different standards of compensation or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system or a system which measures earnings by quantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, marital status, genetic information, color, age, religion, sex (including pregnancy), sexual orientation, gender identity, military status, or national origin, nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration, or action upon the results is not designed, intended, or used to discriminate because of race, marital status, genetic information, color, religion, age, sex (including pregnancy), sexual orientation, gender identity, military status, or national origin. (p) Nothing contained in this subchapter as it applies to discrimination because of age or sex shall be interpreted to affect or interfere with the retirement policy or system of any employer or the underwriting or administration of a bona fide employee welfare or benefit plan, provided that such policy, system or plan is not merely a subterfuge to evade the purpose of this subchapter. (q) (1) Nothing in this subchapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age, and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policy-making position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit sharing, savings or deferred compensation plan, or any combination of such plans, of the employer of such an employee, which equals, in the aggregate, at least $44,000. (2) In applying the retirement benefit test of paragraph (q)(1) of this section, if any such retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such plan or make rollover contributions, such benefit shall be adjusted in accordance with regulations prescribed by the Secretary, United States Department of Labor, pursuant to 29 U.S.C. § 631(c)(2), so that the benefit is the equivalent of a straight life annuity (with no ancillary benefits) under a plan to which employees do not contribute and under which no rollover contributions are made. (r) Nothing in this subchapter shall be interpreted to require employers to offer health, welfare, pension or other benefits to persons associated with employees on the basis as such benefits are afforded to the spouses of married employees. (s) Nothing in this subchapter shall affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of state or federal law, except that an employer shall allow an employee to appear, groom and dress consistent with the employee’s gender identity. (t) Notwithstanding any other provision of this subchapter, it is not an unlawful employment practice to make a distinction or engage in differential treatment on the basis of military status that is allowed by Delaware law or regulation, federal law or regulation, or government contract.

Del. Code tit. 19, § 711A Unlawful employment practices; sexual harassment.

(a) Purpose . — The State of Delaware is committed to ensuring that all Delawareans experience a safe and respectful workplace free of sexual harassment. Complaints of sexual harassment will be taken seriously and employers will be held accountable for sexual harassment in the workplace. It is the expectation of the Delaware General Assembly that all employers in the State of Delaware will work to create a workplace where employees are safe and treated with dignity and respect. (b) Definitions . — As used in this section: (1) “Applicant” means as defined in § 709B of this title. (2) “Apprentice” means any individual who is engaged in the learning of any of the licensed practices in Title 24 from a practitioner licensed in the profession the apprentice is studying. (3) “Department” means Department of Labor. (4) “Employee” means an individual employed by an employer and includes state employees, unpaid interns, applicants, joint employees and apprentices. (5) “Employee placed by employment agency” means an employee who performs services for an employer as a result of the employer’s contractual agreement with an employment agency. (6) “Employer” means any person employing 4 or more employees within the State at the time of the alleged violation and includes the State, the General Assembly, state agencies and labor organizations. (7) “Employment agency” means as defined in § 710 of this title. (8) “General Assembly” means as defined in § 5831 of Title 29. (9) “Independent contractor” means as defined in § 3501 of this title. (10) “Labor organization” means as defined in § 710 of this title. (11) “Negative employment action” means an action taken by a supervisor that negatively impacts the employment status of an employee. (12) “State agency” means as defined in § 5831 of Title 29. (13) “State employee” means as defined in § 5831 of Title 29. (14) “Supervisor” means an individual that is empowered by the employer to take an action to change the employment status of an employee or who directs an employee’s daily work activities. (c) Sexual harassment of an employee is an unlawful employment practice when the employee is subjected to conduct that includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: (1) Submission to such conduct is made either explicitly or implicitly a term or condition of an employee’s employment; (2) Submission to or rejection of such conduct is used as the basis for employment decisions affecting an employee; or (3) Such conduct has the purpose or effect of unreasonably interfering with an employee’s work performance or creating an intimidating, hostile, or offensive working environment. (d) An employer is responsible for sexual harassment of an employee when: (1) A supervisor’s sexual harassment results in a negative employment action of an employee; (2) The employer knew or should have known of the non-supervisory employee’s sexual harassment of an employee and failed to take appropriate corrective measures; or (3) A negative employment action is taken against an employee in retaliation for the employee filing a discrimination charge, participating in an investigation of sexual harassment, or testifying in any proceeding or lawsuit about the sexual harassment of an employee. (e) In any action against an employer under paragraph (d)(2) of this section, it is an affirmative defense if the employer proves that: (1) The employer exercised reasonable care to prevent and correct any harassment promptly; and (2) The employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. (f) Information sheet . — (1) The Department of Labor shall create an information sheet on sexual harassment that the Department shall make available to employers. The information sheet shall be available at each office of the Department, and shall be mailed if the request includes a self-addressed envelope with postage affixed. The Department shall make the information sheet available on its website. (2) The information sheet shall provide notice to employees of the right to be free from sexual harassment in the workplace. The information sheet must contain all of the following: a. The illegality of sexual harassment; b. The definition of sexual harassment under state law using examples; c. The legal remedies and complaint process available through the Department; d. Directions on how to contact the Department. e. The legal prohibition against retaliation. (3) Every employer shall distribute, physically or electronically, the information sheet to its employees as follows: a. To new employees at the commencement of employment; b. To existing employees by July 1, 2019. (4) A claim that the information sheet required to be distributed under this subsection shall not in and of itself result in liability of any employer to any present or former employee in any action alleging sexual harassment. An employer’s compliance with this subsection does not insulate the employer from liability for sexual harassment of any current or former employee or applicant. (g) Training requirements for an employer having 50 or more employees in Delaware . — (1) An employer shall provide interactive training and education to employees regarding the prevention of sexual harassment. (2) Such training shall be provided to employees as follows: a. To new employees within 1 year of the commencement of employment and thereafter every 2 years; b. To existing employees by January 1, 2020, and thereafter every 2 years. (3) The training shall include all of the following: a. The illegality of sexual harassment; b. The definition of sexual harassment using examples; c. The legal remedies and complaint process available to the employee. d. Directions on how to contact the Department. e. The legal prohibition against retaliation. (4) Supervisor training . — a. An employer shall provide additional interactive training to all supervisors as follows: 1. To new supervisors within 1 year of the commencement of employment as a supervisor, and thereafter every 2 years; 2. To existing supervisors by January 1, 2020, and thereafter every 2 years. b. Such training shall include all of the following: 1. The specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment; 2. The legal prohibition against retaliation. (5) Training provided prior to January 1, 2019. — If an employer provided training to employees or supervisors prior to January 1, 2019, that would satisfy the requirements under this subsection, no additional training is required under this subsection until January 1, 2020. (6) Numerosity and training requirement . — a. Employers do not count applicants or independent contractors towards the numerosity requirement under this subsection. b. Employers are not required to provide training under this subsection to applicants, independent contractors, or employees employed less than 6 months continuously. c. Employment agencies are the only employers required to count and provide training to employees placed by employment agency under this subsection. (h) The Department of Labor shall post the requirements of this section on their website and shall perform outreach as necessary to educate employers of the requirements of this section.

Del. Code tit. 19, § 712 Enforcement provisions; powers of the Department; administrative process.

(a) The Department of Labor is empowered, as hereinafter provided, to prevent any person from engaging in any unlawful employment practice as set forth in §§ 711, 711A, 719A, 723, and 724 of this title. In connection with the performance of its duties, the Department may do all of the following: (1) Investigate employment practices by permitting the Department to enter any place of employment at reasonable times; inspect and copy records or documents in the possession of the employer, the employment agency, or labor organization; administer oaths, certify to official acts, take and cause to be taken depositions of witnesses; issue subpoenas compelling the attendance and testimony of witnesses and the production of papers, books, accounts, payrolls, documents, and records. (2) Make, revise, or rescind such rules or regulations necessary or appropriate to administer or enforce this chapter in accordance with the provisions of § 10161(b) of Title 29. (3) Commence civil actions in Superior Court for violations of this chapter, any published regulations or for civil penalties provided herein. (b) The Department shall have jurisdiction over all cases arising under this chapter, affording review and oversight of employment practices in Delaware. The Department shall endeavor to eliminate unlawful discrimination in employment through its administrative process set forth below. This subchapter shall afford the sole remedy for claims alleging a violation of this chapter to the exclusion of all other remedies. Upon termination of the administrative process by the Department, the charging party may institute a civil action in Superior Court of the State of Delaware pursuant to §§ 714 and 715 of this title. (c) The administrative process requires the following: (1) Statute of limitation and filing procedure. — a. Any person claiming to be aggrieved by a violation of this chapter shall first file a charge of discrimination within 300 days of the alleged unlawful employment practice or its discovery, setting forth a concise statement of facts, in writing, verified and signed by the charging party. A verified charge of discrimination under this paragraph (c)(1)a. is deemed filed on the date it is sent to the Department by physical or electronic submission. b. The Department shall serve a copy of the verified charge of discrimination upon the named respondent by certified mail. c. The respondent may file an answer within 20 days of its receipt, certifying that a copy of the answer was mailed to the charging party at the address provided. (2) Preliminary findings and recommendations. — The Department shall review the submissions within 60 days from the date of service upon the respondent and issue preliminary findings with recommendations. The preliminary findings may recommend: a. Dismissing the charge unless additional information is received which warrants further investigation; b. Referring the case for mediation requiring the parties’ appearance; or c. Referring the case for investigation. (3) Final determinations upon completion of investigation. — After investigation, the Department shall issue a determination of either “reasonable cause” or “no reasonable cause” to believe that a violation has occurred or is occurring. All cases resulting in a “reasonable cause” determination will require the parties to appear for compulsory conciliation. All cases resulting in a “no cause” determination will receive a corresponding Delaware Right to Sue Notice. (4) Confidentiality of the Department’s process. — The Department shall not make public the charge of discrimination or information obtained during the investigation of a charge. This provision does not apply to disclosures made to the parties, their counsel, or witnesses where disclosure is deemed necessary or appropriate. Nothing said or done during and as a part of the mediation or conciliation efforts may be made public by the Department, its officers or employees or used by any party as evidence in a subsequent proceeding without the written consent of the persons concerned. (5) End of administrative process. — In all cases where the Department has dismissed the charge, issued a no cause determination or upon the parties failed conciliation efforts, the Department shall issue a Delaware Right to Sue Notice, acknowledging the Department’s termination of the administrative process. Once the Department has issued its preliminary findings pursuant to paragraph (c)(2) of this section, the Department, in its discretion, may grant a Delaware Right to Sue Notice to a charging party.

Del. Code tit. 19, § 713 Civil action by the Attorney General; complaint.

(a) Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter or subchapter III of this chapter and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the Court of Chancery by filing with it a complaint: (1) Signed by the Attorney General (or in the Attorney General’s absence the Chief Deputy Attorney General); (2) Setting forth facts pertaining to such pattern or practice; and (3) Requesting such relief, including an application for a permanent or temporary injunction, restraining order or other order against the person or persons responsible for such pattern or practice, as the Attorney General deems necessary to insure the full enjoyment of the rights herein described. (b) The Court of Chancery shall have jurisdiction over proceedings brought pursuant to this section.

Del. Code tit. 19, § 714 Civil action by the charging party; Delaware Right to Sue Notice; election of remedies.

(a) A charging party may file a civil action in Superior Court, after exhausting the administrative remedies provided herein and receipt of a Delaware Right to Sue Notice acknowledging same. (b) The Delaware Right to Sue Notice shall include authorization for the charging party to bring a civil action under this chapter in Superior Court by instituting suit within 90 days of its receipt or within 90 days of receipt of a federal Right to Sue Notice, whichever is later. (c) The charging party shall elect a Delaware or federal forum to prosecute the employment discrimination cause of action so as to avoid unnecessary costs, delays and duplicative litigation. A charging party is barred by this election of remedies from filing cases in both Superior Court and the federal forum. If the charging party files in Superior Court and in a federal forum, the respondent may file an application to dismiss the Superior Court action under this election of remedies provision.

Del. Code tit. 19, § 715 Judicial remedies; civil penalties.

(a) Superior Court shall have jurisdiction over all proceedings brought by the charging party under § 714 of this title. Superior Court may excuse a charging party who has complied with the compulsory conciliation provisions of this chapter from the compulsory arbitration provisions of Superior Court rules. (b) Superior Court may order any of the following: (1) That the respondent cease and desist or modify its existing employment policies. (2) That the respondent hire, reinstate, or promote the charging party. (3) The payment of any of the following: a. Compensatory damages. b. Punitive damages. c. Special damages, including back pay and interest on back pay. d. Front pay. (4) Equitable relief provided under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5. (5) The costs of litigation and reasonable attorney’s fees to the prevailing party. (c) An award of compensatory or punitive damages, or both, under paragraph (b)(3)a. or b. of this section, may not exceed the following: (1) For a respondent with 4 through 14 employees, $50,000. (2) For a respondent with 15 through 100 employees, $75,000. (3) For a respondent with 101 through 200 employees, $175,000. (4) For a respondent with 201 through 500 employees, $300,000. (5) For a respondent with more than 500 employees, $500,000. (d) In any action brought by the Department for violation of the retaliation provision of § 711(g) of this title, the Court shall fine the employer not less than $1,000 nor more than $5,000 for each violation, in addition to any liability for damages under this section.

Del. Code tit. 19, § 716 Posting of notices; penalties.

(a) Every employer, employment agency and labor organization, as the case may be, shall post and keep posted in conspicuous places upon its premises where notices to employees, and applicants for employment are customarily posted, a notice to be prepared or approved by the Department setting forth excerpts from or summaries of the pertinent provisions of this subchapter and subchapter III of this chapter and information pertinent to the filing of a complaint. (b) (1) An employer shall provide notice of the right to be free from discrimination in relation to pregnancy, childbirth, and related conditions, including the right to reasonable accommodation to known limitations related to pregnancy, childbirth, and related conditions, pursuant to § 711(b)(3) of this title as follows: a. In writing to new employees at the commencement of employment; b. Orally or in writing to existing employees by January 7, 2015; and c. Orally or in writing to any employee who notifies the employer of her pregnancy within 10 days of such notification. (2) The notice required by paragraph (b)(1) of this section shall also be conspicuously posted at an employer’s place of business in an area accessible to employees. (c) A wilful violation of this section shall be punishable by a fine of not more than $100 for each separate offense.

Del. Code tit. 19, § 717 Veterans’ special rights or preference.

Nothing contained in this subchapter or subchapter III of this chapter shall be construed to repeal or modify any state or local law creating special rights or preferences for veterans.

Del. Code tit. 19, § 718 Short title, effective date, savings clause.

(a) This subchapter may be cited as the “Discrimination in Employment Act.” (b) This subchapter shall become effective September 10, 2004. (c) This subchapter does not affect any cause of action or the remedy provided therefor if such cause of action accrued and suit was instituted thereon prior to September 10, 2004.

Del. Code tit. 19, § 719 Criminal jurisdiction.

The Superior Court shall have exclusive original jurisdiction over all criminal violations of this subchapter.

Del. Code tit. 19, § 719A Volunteer firefighters, ambulance personnel and ladies auxiliary.

It shall be an unlawful employment practice for an employer to discriminate in the hiring or discharging of an individual because of such individual’s membership in a volunteer emergency responder organizer. This section shall not prevent an employer from taking otherwise lawful actions regarding hiring, discharging or requiring attendance of such individual. For purposes of this section “volunteer emergency responder” means a volunteer firefighter, a member of a ladies auxiliary of a volunteer fire company, volunteer emergency medical technician and/or a volunteer fire police officer.

Del. Code tit. 19, § 720 Short title.

This subchapter may be cited as the “Persons With Disabilities Employment Protections Act.”

Del. Code tit. 19, § 721 Statement of purpose and interpretation.

(a) This subchapter is intended to encourage and enable qualified persons with disabilities to engage in remunerative employment which is sought by them in good faith. The General Assembly finds that the practice of employment discrimination based on disability is contrary to the public interest and the principles of freedom and equality of opportunity. Such discrimination also deprives many persons with a disabilities of earnings necessary to maintain or contribute to a decent standard of living and necessitates their resort to public support. (b) This subchapter shall be liberally construed to promote the full employment opportunity of qualified persons with a disabilities who seek such opportunity in good faith. Furthermore, in defining the scope or extent of any duty imposed by this subchapter, including the duty of reasonable accommodation, higher or more comprehensive obligations established by otherwise applicable federal, state or local enactments may be considered. Nothing in this subchapter, however, shall be construed to impose liability upon any employer for selecting, hiring or promoting in good faith an applicant without disability or employee who is better qualified than another applicant or employee who is a qualified person with a disability.

Del. Code tit. 19, § 722 Definitions.

As used in this subchapter, unless the context otherwise requires: (1) The terms “person,” “employee,” “employment agency,” “labor organizations,” “Secretary” and “review board” are defined in § 710 of this title. (2) “Disability” means any condition or characteristic that renders a person a person with a disability as defined in this section. (3) “Employer” means a person qualifying as an employer under § 710 of this title. (4) “Person with a disability” means any person who satisfies any 1 of the following: a. Has a physical or mental impairment which substantially limits 1 or more major life activities. b. Has a record of such an impairment. c. Is regarded as having such an impairment. As used in this paragraph: 1. “Major life activities” includes caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. “Major life activities” also includes the operation of a major bodily function, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological brain, respiratory, circulatory, endocrine, and reproductive functions. 2. “Has a record of such impairment” means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits 1 or more major life activities. 3. “Is regarded as having an impairment” means an individual that establishes that the individual subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. Such impairment does not include impairments that are transitory and minor. This term is intended to be interpreted in conformity with the federal Rehabilitation Act of 1973 [29 U.S.C. § 701 et seq.], as amended, and, consistent with § 728 of this title, shall be further defined by the Secretary through regulation to clarify and delimit its scope following adequate public notice and comment. Enforcement of this subchapter by persons qualifying for protection solely under this paragraph (4)c. of this section shall be deferred until the issuance of the Secretary’s final regulation. 4. “Substantially limits” means that the impairment so affects a person as to create a likelihood that such person will experience difficulty in securing, retaining or advancing in employment because of a disability. 5. “Person with a disability” shall not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others. 6. “Transitory impairment” means an impairment with an actual or expected duration of 6 months or less. (5) “Qualified person with a disability” means a person with a disability who, with or without reasonable accommodation, can satisfactorily perform the essential functions of the job in question: a. Provided that the person with a disability shall not be held to standards of performance of essential job functions different from other employees similarly employed; and b. Further provided that the disability does not create an unreasonable and demonstrable risk to the safety or health of the person with a disability, other employees, the employer’s customers or the public. (6) “Reasonable accommodation” means making reasonable changes in the work place, including, but not limited to, making facilities accessible, modifying equipment and providing mechanical aids to assist in operating equipment, or making reasonable changes in the schedules or duties of the job in question that would accommodate the known disability of a person with a disability by enabling such person to satisfactorily perform the essential duties of the job in question; provided that “reasonable accommodation,” unless otherwise prescribed by applicable law, does not require that an employer: a. Provide accommodations of a personal nature, including, but not limited to, eyeglasses, hearing aids or prostheses, except under the same terms and conditions as such items are provided to the employer’s employees generally; b. Reassign duties of the job in question to other employees without assigning to the employee with a disability duties that would compensate for those reassigned; c. Reassign duties of the job in question to 1 or more other employees where such reassignment would significantly increase the skill, effort or responsibility required of such other employees from that required prior to the change in duties; d. Make changes to accommodate a person with a disability where: 1. For a new employee the cost of such changes would exceed 5 percent of the annual salary or annualized hourly wage of the job in question; or 2. For an existing employee the total cost of the changes would bring the total cost of changes made to accommodate the employee’s disabilities since the employee’s initial acceptance of employment with the employer to greater than 5 percent of the employee’s current salary or current annualized hourly wage; or e. Make any changes that would impose on the employer an undue hardship, provided that the costs of less than 5 percent of an employee’s salary or annualized wage as determined in paragraph (6)d. of this section shall be presumed not to be an undue hardship.

Del. Code tit. 19, § 723 Reasonable accommodation duties.

(a) A qualified person with a disability requesting a reasonable accommodation in a good-faith effort to seek an employment opportunity must apprise the employer, employment agency or labor organization of the person’s disability, submit any necessary medical documentation, make suggestions for such possible accommodations as are known to such person with a disability and cooperate in any ensuing discussion and evaluation aimed at determining possible or feasible accommodations. (b) Once a qualified person with a disability has requested an accommodation, or if a potential accommodation is obvious in the circumstances, an employer, employment agency or labor organization shall investigate whether there are reasonable accommodations that can be made and make reasonable accommodations as defined in § 722(6) of this title. If affirmatively requested in writing by the employer, employment agency or labor organization, the person with a disability may be required to accept the employment opportunity in writing as a precondition to the initiation of such investigation.

Del. Code tit. 19, § 724 Unlawful employment practices.

(a) Employer prohibitions. — It shall be an unlawful employment practice for an employer because of disability to: (1) Fail or refuse to hire, recruit or promote a qualified person with a disability who seeks such an employment opportunity in good faith; (2) Discharge or otherwise discriminate against qualified persons with disabilities with respect to compensation, terms, conditions or privileges of employment; (3) Limit, segregate or classify an employee or applicant for employment in a way which deprives or tends to deprive a qualified person with a disability of employment opportunities or otherwise adversely affects the status as an employee of the qualified person with a disability; (4) Fail or refuse to hire, recruit or promote a qualified person with a disability who seeks such an employment opportunity in good faith on the basis of physical, mental or other examinations that are not directly related to the essential functions of the job; or (5) Discharge or take other discriminatory action against a qualified person with disability on the basis of physical, mental or other examinations that are not directly related to the essential functions of the job. (b) Employment agency prohibitions. — It shall be an unlawful employment practice for an employment agency to refuse or fail to accept, register, classify properly, refer for employment or otherwise to discriminate against a qualified person with a disability because of disability. (c) Labor organization prohibitions. — It shall be an unlawful employment practice for a labor organization because of disability to: (1) Exclude or expel from its membership or otherwise discriminate against any qualified person with a disability; (2) Limit, segregate or classify its membership or classify or fail to refuse to refer for employment any qualified person with a disability in any way which would deprive or tend to deprive any such person of employment opportunities or would limit such employment opportunities or otherwise adversely affect such person’s status as an employee or an applicant for employment; (3) Cause or attempt to cause an employer to discriminate against a qualified person with a disability in violation of this section; or (4) Fail to cooperate with an employer’s efforts to provide reasonable accommodation to a qualified person with a disability to the extent it controls job structure and other employment conditions. (d) Training program prohibitions. — It shall be an unlawful employment practice for any employer, employment agency, labor organization or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any qualified person with a disability because of disability in admission to or employment in any program established to provide apprenticeship or other training. (e) Other prohibitions. — (1) It shall be an unlawful employment practice for an employer or employment agency to require an applicant to identify the applicant’s self as a person with a disability prior to a conditional offer of employment; however, any employer may invite an applicant to identify that applicant’s self as a person with a disability in order to act affirmatively on that applicant’s behalf. (2) It shall be an unlawful employment practice for an employer, labor organization or employment agency to fail to meet the duties imposed on them by § 723(b) of this title. (f) Exceptions. — It shall not be considered a violation of this section for an employer, employment agency or labor organization: (1) To make an employment decision on the basis of state and federal laws or regulations imposing physical, mental, health or educational job requirements; (2) To make preemployment or prepromotional inquiries which are directly related to an applicant’s ability to perform essential job-related functions; (3) To terminate or change the employment status of any person who is unable to adequately perform that person’s own essential job functions, or to discriminate among persons on the basis of competence or performance in essential job functions if the employer, employment agency or labor organization has complied with § 723(b) of this title; (4) To require or request a person to undergo a medical examination, which may include a medical history, for the purpose of determining the person’s ability or capacity to safely and satisfactorily perform the duties of available jobs for which the person is otherwise qualified, or to aid in determining possible accommodations for a disability, provided: a. That an offer of employment has been made on the condition that the person meets the physical and mental requirements of the job with or without reasonable accommodation; and b. That the examination, unless limited to determining the extent to which a person’s disability would interfere with that person’s own ability or capacity to safely and satisfactorily perform the duties of the job in question or the possible accommodations for a disability, is required of all persons offered employment for the same position regardless of disability; or (5) To administer preemployment tests, provided that the tests: a. Measure only job-related abilities; b. Are required of all applicants for the same position unless such tests are limited to determining the extent to which a person’s disability would interfere with that person’s own ability to safely and satisfactorily perform the duties of the job in question or the possible accommodation of the job in question; and c. Accurately measure the applicant’s aptitude, achievement level or whatever factors they purport to measure rather than reflecting the impaired sensory, manual or speaking skills of the person with a disability except when those skills are requirements of the job in question.

Del. Code tit. 19, § 725 Affirmative defenses.

In defense of any action to enforce § 724 of this title a respondent may assert affirmative defenses, including, but not limited to, the following: (1) Despite reasonable accommodation, a person with a disability cannot satisfactorily perform the essential functions of the job in question; (2) Employment of a person with a disability creates an unreasonable and demonstrable risk to the safety or health of the person with a disability, other employees, the employer’s customers or the public; (3) Any of the enumerated exceptions to reasonable accommodation set forth in § 722(6) of this title, including undue hardship, are applicable.

Del. Code tit. 19, § 726 Retaliation prohibited.

It shall be an unlawful employment practice for any employer to discharge, refuse to hire or otherwise discriminate against any person or applicant for employment, or any employment agency to discriminate against any person or any labor organization to discriminate against any member or applicant for membership because such person has opposed any practice prohibited by this subchapter or because such person has testified, assisted or participated in any manner in proceedings to enforce the provisions of this subchapter.

Del. Code tit. 19, § 727 Enforcement provisions and election remedies.

(a) Enforcement of this subchapter shall be in accordance with the procedures for enforcement of rights secured by subchapter II of this chapter. (b) Enforcement of this subchapter as authorized by § 712 of this title shall be barred if the complainant has commenced federal judicial or administrative proceedings under § 503 or § 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 793 or § 794], as amended, or regulations promulgated thereunder, based upon substantially common facts. If such federal proceedings are commenced subsequent to the filing of a charge pursuant to this subchapter, any administrative and judicial proceedings authorized by § 712 of this title shall be dismissed upon application of the respondent. Provided, however, that if complainant’s federal action is dismissed on jurisdictional grounds, including the lack of federal contractor status or federal program funding, the Secretary is authorized to accept a charge under § 712 of this title and waive the limitations period of § 712(d) of this title upon a finding that the complainant commenced the complainant’s federal action in good faith.

Del. Code tit. 19, § 728 Regulations.

The Secretary shall adopt such rules and regulations as may be necessary and proper to implement the policies of this subchapter.

Del. Code tit. 19, § 731 Definitions.

As used in this subchapter: (1) “Employee” means any person currently employed, laid off with reemployment rights or on leave of absence. The term “employee” shall not include applicants for employment or designated agents. (2) “Employer” shall mean any individual, person, partnership, association, corporation, the State, any of its political subdivisions or any agency, authority, board or commission created by them. (3) “Personnel file” means, if maintained by the employer, any application for employment, wage or salary information, notices of commendations, warning or discipline, authorization for a deduction or withholding of pay, fringe benefit information, leave records, employment history with the employer, including salary information, job title, dates of changes, retirement record, attendance records, performance evaluations and medical records. The term “personnel file” shall not include records of an employee relating to the investigation of a possible criminal offense, letters of reference, documents which are being developed or prepared for use in civil, criminal or grievance procedures or materials which are used by the employer to plan for future operations or information available to the employee under the Fair Credit Reporting Act [15 U.S.C. § 1681 et seq.].

Del. Code tit. 19, § 732 Inspection of personnel files.

An employer shall, at a reasonable time, upon request of an employee, permit that employee to inspect that employee’s own personnel files used to determine that employee’s own qualifications for employment, promotion, additional compensation, termination or disciplinary action. The employer shall make these records available during the regular business hours of the office where these records are usually and ordinarily maintained, when sufficient time is available during the course of a regular business day to inspect the personnel files in question. The employer may require the requesting employee to inspect such records on the free time of the employee. At the employer’s discretion, the employee may be required to file a written form to request access to the personnel file. This form is solely for the purpose of identifying the requesting individual to avoid disclosure to ineligible individuals. To assist the employer in providing the correct records to meet the employee’s need, the employee shall indicate in the written request either the purpose for which the inspection is requested or the particular parts of the employee’s personnel record which the employee wishes to inspect.

Del. Code tit. 19, § 733 Removal of file; note taking; protection of file; inspection time.

Nothing in this subchapter shall be construed as a requirement that an employee be permitted to remove the employee’s own personnel file, any part thereof or a copy of the contents of such file from the place of the employer’s premises where it is made available for inspection. The taking of notes by employees is permitted. The employer shall retain the right to protect the employer’s files from loss, damage or alteration to insure the integrity of the files. The employer may require inspection of the personnel file in the presence of a designated official. The employer must allow sufficient inspection time, commensurate with the volume content of the file. Except for reasonable cause the employer may limit inspection to once every calendar year.

Del. Code tit. 19, § 734 Removal or correction of information; employee’s explanatory statement.

If upon inspection of the employee’s personnel file an employee disagrees with any of the information contained in such file or records, removal or correction of such information may be agreed upon by such employee and the employee’s employer. If such employee and employer cannot agree upon such removal or correction then such employee may submit a written statement explaining the employee’s position. Such statement shall be maintained as part of such employee’s personnel file or medical records and shall accompany any transmittal or disclosure from such file or records made to a third party.

Del. Code tit. 19, § 735 Refusing employee access; penalty; jurisdiction of violations.

(a) Any employer who refuses an employee access to personnel files as provided in this subchapter shall be deemed in violation of this subchapter and shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation. A civil penalty claim may be filed in any court of competent jurisdiction. (b) 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 subchapter, or because the employee has caused to be instituted or is about to cause to be instituted any proceedings under this subchapter, or has testified or is about to testify in any such proceedings, shall be deemed in violation of this subchapter and shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each violation.

Del. Code tit. 19, § 736 Safe destruction of records containing personal identifying information.

(a) Definitions. — (1) “Personal identifying information” means an employee’s first name or first initial and last name in combination with any 1 of the following data elements that relate to the employee, when either the name or the data elements are not encrypted: Social Security number, passport number, driver’s license or state identification card number, insurance policy number, financial services account number, bank account number, credit card number, debit card number, tax or payroll information or confidential health care information. (2) “Record” means information that is inscribed on a tangible medium, or that is stored in an electronic or other medium and is retrievable in perceivable form on which personal identifying information is recorded or preserved. “Record” does not include publicly available directories or sources containing information an employee has voluntarily consented to have publicly disseminated or listed or which is disseminated as provided for by applicable law or regulation, such as name, address, or telephone number, or other directories or sources as are derived solely from such directories or sources. (b) In the event that an employer seeks permanently to dispose of records containing employees’ personal identifying information within its custody and control, such employer shall take all reasonable steps to destroy or arrange for the destruction of each such record by shredding, erasing, or otherwise destroying or modifying the personal identifying information in those records to make it unreadable or indecipherable. (c) An employee who incurs actual damages due to a reckless or intentional violation of this section may bring a civil action against the employer.

Del. Code tit. 19, § 741 Statement of purpose.

The General Assembly finds that the benefits of meaningful work have significance and importance to all working-age individuals, including persons with disabilities, which shall include, but not be limited to, veterans with service-connected disabilities. All persons, including persons with disabilities, have a right to the opportunity for competitive employment. In order to achieve meaningful and competitive employment for persons with disabilities, employment opportunities in fully-integrated work settings shall be the first and priority option explored in the service planning for working-age persons with disabilities.

Del. Code tit. 19, § 742 Definitions.

As used in this subchapter, unless the context otherwise requires: (1) “Competitive employment” means work in the competitive labor market that is performed on a full-time or part-time basis in an integrated setting and for which a person with a disability is compensated at or above the minimum wage, but not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by persons without disabilities. (2) “Disability” means, with respect to an individual: a. A physical or mental impairment that substantially limits 1 or more major life activities of such individual; b. A record of such an impairment; or c. Being regarded as having such an impairment, as defined in the Americans with Disabilities Act of 1990, as amended [42 U.S.C. § 12101 et seq.]. (3) “Integrated setting” means with respect to an employment outcome, a setting typically found in the community in which persons with disabilities interact with persons without disabilities, other than persons without disabilities who are providing services to those persons with disabilities, to the same extent that persons without disabilities in comparable positions interact with other persons. (4) “Working age” means 14 years of age or older in accordance with § 505 of this title.

Del. Code tit. 19, § 743 Employment first policy.

It is hereby declared to be the policy of this State that competitive employment in an integrated setting shall be considered its first and priority option when offering or providing services to persons with disabilities who are of working age. All state agencies that provide services and support to persons with disabilities shall follow this policy and ensure that it is effectively implemented in their programs and services. Nothing in this subchapter shall be construed to limit or disallow any disability benefits to which a person with a disability who is unable to be employed as contemplated by this subchapter would otherwise be entitled. Nothing in this subchapter shall be construed to require any employer to give preference to hiring persons with disabilities.

Del. Code tit. 19, § 744 Implementation of policy by state agencies.

(a) All state agencies shall coordinate efforts and shall collaborate within and among such agencies to ensure that state programs, policies, procedures and funding support competitive employment in integrated settings for persons with disabilities who are of working age. All state agencies shall, whenever feasible, share data and information across systems in order to track progress toward full implementation of this subchapter. All state agencies are encouraged to adopt measurable goals and objectives to promote assessment of progress in implementing this subchapter. (b) State agencies are authorized to adopt rules and regulations to implement this subchapter.

Del. Code tit. 19, § 745 Establishment of Employment First Oversight Commission.

(a) There is hereby established an Employment First Oversight Commission under the purview of the State Council for Persons with Disabilities, which shall facilitate the full, effective and timely implementation of this subchapter. (b) The Commission shall consist of members, who are residents of this State, or work in the State and whose employment agency shall either represent or advocate for the employment of persons with disabilities. (1) Four members who are persons with a disability and who are knowledgeable of disability issues whom shall be recommended by the Commission, 1 of whom shall be a veteran and 1 of whom shall be a member of the State Council for Persons with Disabilities, and including all of the following: a. One shall be appointed by the Speaker of the House of Representatives. b. One shall be appointed by the Minority Leader of the House of Representatives. c. One shall be appointed by the President Pro Tempore of the Senate. d. One shall be appointed by the Minority Leader of the Senate. (2) One member who is experienced with employment service programs and who is not a state employee and who shall be appointed by the chair of the State Council for Persons with Disabilities. (3) A representative of the Division of Industrial Affairs, appointed by the Secretary of Labor. (4) A representative of the Division of Vocational Rehabilitation, appointed by the Secretary of Labor. (5) The Secretary of Education or a designee appointed by the Secretary. (6) The Secretary of Health and Social Services or a designee appointed by the Secretary. (7) The Director of the Division of Developmental Disabilities Services or a designee appointed by the Director. (8) The Chair of the Developmental Disabilities Council or a designee appointed by the Chair. (9) The Secretary of the Department of Human Resources or a designee appointed by the Secretary. (10) The Executive Director of the Delaware Community Legal Aid Society Inc. or a designee appointed by the Executive Director. (11) The Director of the Division for the Visually Impaired or a designee appointed by the Director. (12) The Director of the Division of Substance Abuse and Mental Health or a designee appointed by the Director. (13) Other councils, committees, agencies, organizations and individuals as approved by both the Employment First Oversight Commission and the affected council, committee, agency, organization or individual. (c)-(e) [Repealed.] (f) Members of the Commission shall serve without compensation. (g) Any member, who is absent without adequate reason for 3 consecutive meetings, or who fails to attend at least half of all regular business meetings during any calendar year, shall be subject to suspension or removal from the Commission.

Del. Code tit. 19, § 746 Commission organization; meetings; officers; quorum.

(a) The Commission shall hold regularly scheduled business meetings at least once in each quarter, and at such times as the chairperson deems necessary, or at the request of a majority of the members of the Commission. (b) The Commission shall elect a chairperson and vice-chairperson. Each officer shall serve for a 2–year term. Each officer may be reelected for an additional consecutive term. (c) A majority of the members shall constitute a quorum for the purpose of transacting business.

Del. Code tit. 19, § 747 Powers and duties of Commission.

(a) The Commission shall review measurable goals and objectives as submitted to it by each relevant state agency to ensure implementation of this subchapter. The Commission shall track the measurable progress of state agencies in implementing this subchapter. All state agencies shall fully cooperate with and provide data and information to assist the Commission in carrying out its duties. (b) The Commission shall prepare an annual report as part of, and included in, the annual report submitted by the State Council for Persons with Disabilities to the Governor and members of the General Assembly. The report shall detail progress toward the goals and objectives and full implementation of this subchapter. All state agencies shall cooperate with the Commission on the creation and dissemination of the report. The report also shall identify barriers to achieving the outcomes along with the effective strategies and policies that can help realize the employment first initiative.

Del. Code tit. 19, § 751 Statement of purpose.

The General Assembly finds as follows: In 1938, § 14(c) of the federal Fair Labor Standards Act (29 U.S.C. § 214(c)) authorized the United States Secretary of Labor to grant special wage certificates to certain entities, allowing those entities to pay individuals with disabilities subminimum wages. § 905 of this title authorizes the Department of Labor to promulgate regulations permitting the employment of persons with disabilities at wages lower than the minimum wage. While the special wage certificate program was considered progressive when initiated, advances in vocational rehabilitation, technology, and training as well as changes in attitudes and laws regarding the ability of, and opportunities for, both students and adults with disabilities to work and live in the community now provide persons with disabilities greater employment opportunities. Persons with disabilities, regardless of their work environment, should be compensated like their peers without disabilities. Competitive employment opportunities as well as meaningful alternatives should be offered to individuals who are currently participating in programs that pay less than the minimum wage. In order to effectuate the purpose of the Employment First Act contained in this chapter, authorization to pay subminimum wages will be phased out and ultimately eliminated.

Del. Code tit. 19, § 752 Minimum wage for individuals with a disability.

Commencing January 31, 2024, an employer who is authorized to employ an individual with a disability at a subminimum wage pursuant to a special certificate issued under 29 U.S.C. § 214(c) or under regulations promulgated under § 905 of this title may not employ or agree to employ or otherwise remunerate or compensate an individual with a disability at an hourly rate lower than the effective rate payable under § 902 of this title.

Del. Code tit. 19, § 753 Plan.

(a) The Employment First Oversight Commission established under § 745 of this title shall oversee the development and implementation of a plan to phase out on or before January 31, 2024, authorizations under § 905 of this title to pay an individual with a disability less than the minimum wage otherwise required under § 902 of this title. The plan shall be developed by a task force comprised of representatives appointed by the Commission consisting of representatives from the Commission, the State Council for Persons with Disabilities, the Division of Industrial Affairs, the Division of Vocational Rehabilitation, the Division of Developmental Disabilities Services, the Developmental Disabilities Council, family members and individuals currently being served by sheltered workshops, service providers who have experience in transitioning from providing sheltered workshop services to providing competitive employment in integrated settings for persons with disabilities, current sheltered workshop providers, the Disabilities Law Program of the Community Legal Aid Society, Inc., and a range of national experts on the use of transitioning services out of § 14(c) of the federal Fair Labor Standards Act (29 U.S.C. § 214(c)) in order to determine what model of service might work best for Delaware. The Employment First Oversight Commission plan shall be completed and provided to the General Assembly by January 31, 2024, and include all of the following: (1) Benchmarks and expected outcomes for each year of the phase-out. (2) A list of the resources to assist each individual with a disability in receiving supports according to the needs and preferences of the individual in order to be employed in an integrated setting, or participate in a meaningful alternative program, regardless of the nature or severity of the individual’s disability. (3) Federal and state funding programs available to assist an individual with a disability to obtain competitive employment in an integrated setting, and assure adequate funding is available for more intensive services that may be necessary in the future. (4) Individualized person-centered planning for people currently participating in programs authorized under § 14(c) of the federal Fair Labor Standards Act, 29 U.S.C. § 214(c), during the phase out process designed to address individual wishes and service needs with respect to avoiding disruption of location and relationships with friends where feasible. (5) A means for tracking the effect of transitioning to integrated and meaningful employment on individuals with disabilities on the basis of the following factors: a. Wages. b. Unemployment rates. c. The number of individuals who move from positions paying subminimum wages to competitive employment in an integrated setting. d. The number of individuals who move from subminimum wage positions to noncompensated activities including those that may lose a job opportunity as a result of a minimum wage increase. (6) A means for tracking the effect of transitioning to meaningful alternative programing for those who do not engage in competitive integrated employment. Meaningful alternative employment shall include the following services: (1) Regular opportunities for community-based recreational, social, educational, cultural, and athletic activities, including community volunteer and training activities. (2) Regularly occurring nonfacility-based activities of a person’s choosing provided in settings which allow individuals with disabilities to interact with individuals without disabilities in a community setting to the fullest extent possible for the individual. (b) The plan referred to in paragraphs (a)(1)-(a)(5) of this section shall be provided to the State Council for Persons with Disabilities for inclusion in the annual report required by § 8210(b)(8) of Title 29.

Del. Code tit. 19, § 754 Regulations.

The Department may promulgate regulations necessary for implementation of the Jamie Wolfe Employment Act.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title19/c007/sc01/index.htmlFetched: 10/4/2026

Starting a business in Delaware? Delaware LLC guide: costs and requirements