Federal Law (FCRA)
The Fair Credit Reporting Act (FCRA) establishes the federal minimum requirements for employment background checks, including disclosure and authorization requirements, consumer rights, and the adverse action process. Many states impose additional requirements that employers must also follow.
Read FCRA Overview →Delaware: Key Requirements
Scroll to view all requirements below.
Ban the Box / Fair Chance Hiring
Delaware's ban the box law applies only to public employers. State government employers may not inquire about criminal history during the initial application process; inquiries may occur after the first interview or once the applicant is otherwise determined qualified. This does not apply to private employers, who may ask about criminal history at any stage.
Criminal Record Lookback Period
Delaware has no state law limiting how far back a criminal background check can go. Employers must follow the federal FCRA baseline.
Reporting Restrictions
Delaware has not adopted a mini FCRA or other comprehensive state consumer reporting law. Employers must follow the federal FCRA baseline.
Expunged / Sealed Records
Delaware provides for mandatory expungement of records where a case was terminated in the accused's favor, and of certain low level misdemeanor and violation convictions after five years, and mandatory expungement occurs automatically on a monthly basis without requiring a petition. Certain other misdemeanor and felony convictions may be eligible for discretionary expungement through a court petition, generally after a 5 to 10 year waiting period depending on the offense, with a list of excluded offenses including crimes of domestic violence and certain felonies.
Salary History Ban
Employers may not screen applicants based on compensation history, including requiring that prior compensation meet a minimum or maximum threshold, and may not seek an applicant's compensation history from the applicant or a current or former employer. Employers may discuss and negotiate compensation expectations without asking for compensation history, and may confirm compensation history after an offer has been extended and accepted.
Credit Report Restrictions
Delaware does not restrict a private employer's use of consumer credit reports in hiring decisions.
Bankruptcies
Delaware has no state law limiting the reporting of bankruptcies. Employers must follow the federal FCRA baseline.
Civil Judgments & Lawsuits
Delaware has no state law limiting the reporting of civil judgments or lawsuits. Employers must follow the federal FCRA baseline.
Tax Liens & Collections
Delaware has no state law limiting the reporting of paid tax liens or collection accounts. Employers must follow the federal FCRA baseline.
Marijuana / Drug Testing Protections
Employers may not discriminate against a person in hiring, termination, or any term or condition of employment based on their status as a registered medical marijuana cardholder, or based on a cardholder's positive drug test for marijuana. *This protection does not apply if the cardholder used, possessed, or was impaired by marijuana on the employer's premises or during work hours, or if it would cause the employer to lose a federal monetary or licensing benefit. Delaware's recreational marijuana law provides no employment protection; employers may refuse to hire or take adverse action against recreational users based on a positive test.
Pre-Adverse Action Notice & Waiting Period
Delaware has no state law setting a specific waiting period before taking adverse action. Employers must follow the federal FCRA baseline.
Adverse Action Notice Requirements
Delaware has no state law adding to the federal adverse action notice process.
Authorization Requirements
Delaware has no state law governing background check authorization. Employers must follow the federal FCRA baseline.
Individualized Assessment
No statute. EEOC guidance under Title VII applies.
Unless otherwise noted, the information on this page applies to private sector employment. Government employers and certain regulated industries may be subject to additional or different requirements.
Local Ordinances That May Apply
Click a jurisdiction below to view full details.
No Local Ordinances
Delaware has no local ordinances regulating criminal history inquiries by private employers.
This list reflects known local ordinances at the time of publication and may not be exhaustive. Employers should confirm requirements for every city or county where they hire.
What This Means for Employers
Delaware gives private employers wide latitude, but a few requirements still apply. To stay compliant:
You may ask about criminal history at any stage of the private-sector hiring process, since Delaware's ban the box law only covers public employers Do not screen applicants based on compensation history or ask an applicant, or their current or former employer, to disclose it You may confirm compensation history only after an offer has been extended and accepted Do not discriminate against an applicant or employee based on their status as a registered medical marijuana cardholder or a cardholder's positive marijuana test, unless the use, possession, or impairment occurred on your premises or during work hours Recreational marijuana use carries no employment protection, so a positive test may be treated the same as any other lawful basis for a hiring decision Confirm any criminal record returned on a background check has not been mandatorily or automatically expunged before considering it Provide FCRA pre-adverse and final adverse action notices before rejecting an applicant based on a background reportNon-compliance can result in civil penalties, damages, and legal liability under both state and local law.
Download the Delaware Quick Reference Guide
Get a printable, one-page comparison of FCRA vs. Delaware law.