At-a-Glance Compliance Overview

State Mini-FCRA Laws

Delaware does not maintain a comprehensive consumer reporting statute comparable to the “mini-FCRA” laws adopted in states such as California, Colorado, or Massachusetts.

Employment background checks obtained from consumer reporting agencies are therefore governed primarily by the federal Fair Credit Reporting Act (15 U.S.C. §1681 et seq.).

Employers using third-party background screening providers must comply with federal requirements, including:

• providing a clear written disclosure before obtaining a consumer report
• obtaining written authorization from the applicant or employee
• providing pre-adverse action and adverse action notices when information in a consumer report influences an employment decision.

Criminal Record Reporting Rules

Delaware does not impose state-specific reporting limits on criminal convictions in employment background checks.

Convictions

Criminal convictions may generally be reported without time limitation under FCRA §605(a)(5).

Non-Convictions

Under the Fair Credit Reporting Act, consumer reporting agencies generally may not report arrests, indictments, or other adverse non-conviction information that is more than seven years old.

Expunged Records

Delaware law allows individuals to obtain expungement of certain criminal records under:

11 Del. C. §4371 – §4385

Expungement may apply to certain:

• arrests not resulting in conviction
• misdemeanor convictions
• certain nonviolent felony convictions after statutory waiting periods.

Once expunged, the record is removed from public access and generally may not appear in employment background checks.

Fair Chance / Ban-the-Box Law

Delaware has enacted a ban-the-box law that applies only to public employers.

The law is codified at:

19 Del. C. §711(g)

Public employers may not inquire about criminal history during the initial application process.

Criminal history inquiries may occur after the first interview or after the applicant is otherwise determined to be qualified for the position.

These restrictions apply only to state government employers and do not regulate hiring practices of private employers.

Private employers in Delaware may inquire about criminal history during the hiring process, including on job applications.

Credit Check Restrictions

Delaware does not restrict employer use of credit reports for employment purposes.

Private employers may obtain credit reports if they comply with the Fair Credit Reporting Act, including disclosure, authorization, and adverse action requirements.

Certain timing restrictions on credit history inquiries apply to public employers under 19 Del. C. §711, but those restrictions do not apply to private employers.

Cannabis Use and Drug Testing Rules

Delaware permits medical marijuana under the Delaware Medical Marijuana Act, codified at:

16 Del. C. §4901A et seq.

The statute provides employment protections for registered medical marijuana patients.

Employers generally may not discriminate against an individual solely because the person is a registered medical marijuana cardholder or tests positive for marijuana metabolites.

However, employers may still:

• prohibit marijuana use or possession in the workplace
• prohibit employees from working while impaired
• enforce drug-free workplace policies
• discipline employees for workplace impairment.

Delaware legalized recreational marijuana in 2023, but the legalization statute does not impose additional employment accommodation requirements.

Pay Equity and Salary History Rules

Delaware restricts employer use of salary history under:

19 Del. C. §709B

Employers may not:

• screen applicants based on compensation history
• request salary history from applicants or their current or former employers.

Employers may discuss salary expectations with applicants.

Salary history may be verified only after an offer of employment has been made and accepted.

Local Fair Chance or Screening Ordinances

Delaware does not currently maintain municipal fair chance hiring ordinances affecting private employers.

Cities such as Wilmington, Dover, and Newark have not enacted local laws regulating private employer use of criminal history in hiring.

Employers operating throughout Delaware generally follow the same statewide rules governing employment background checks.

Record Sealing / Clean Slate Laws

Delaware provides mechanisms for criminal record expungement under 11 Del. C. §4371 – §4385.

The state also enacted the Delaware Clean Slate Act, which provides automatic expungement for certain low-level criminal records after specified waiting periods.

Eligible individuals may obtain expungement of:

• arrests that did not result in conviction
• certain misdemeanor convictions
• certain nonviolent felony offenses.

Once expunged, the record generally cannot be disclosed in employment background checks.

Key Statutes

• Delaware Ban-the-Box Law (Public Employers) – 19 Del. C. §711

• Salary History Ban – 19 Del. C. §709B

• Delaware Medical Marijuana Act – 16 Del. C. §4901A et seq.

• Delaware Expungement Statutes – 11 Del. C. §4371 – §4385

Employer Compliance Checklist

Employers conducting background checks in Delaware should implement several compliance practices.

• Follow federal Fair Credit Reporting Act disclosure and authorization requirements when ordering background checks.

• Provide pre-adverse action and adverse action notices when consumer reports influence hiring decisions.

• Avoid requesting or relying on salary history during the hiring process.

• Ensure background screening providers exclude expunged records from employment reports.

• Apply criminal history screening practices consistently to reduce discrimination risks.

• Maintain clear workplace drug testing policies addressing marijuana use and workplace impairment.