Wage and Hour Blog
Dolley Law LLC


Delaware Wage and Hour Law

At Dolley Law, we focus heavily on wage and hour laws. We have significant experience representing clients in connection with minimum wage and overtime claims across the country. Please contact us if you are seeking legal guidance or representation pertaining to a wage and hour matter.

Delaware Overtime Law

Delaware does not have laws in place pertaining to overtime pay requirements; therefore, the Fair Labor Standards Act (“FLSA”) provides the general overtime rules in Delaware. See 29 U.S.C. § 207(a)(1). The FLSA requires a minimum payment of one-and-one-half times an employee’s regular rate for every hour worked over 40 in a work week. Id.

However, not all employees are entitled to overtime compensation because the FLSA sets forth various exclusions, or exemptions, from its coverage. 29 U.S.C. § 213(a)-(b). These types of employees include but are not limited to those who are paid certain salary amounts and who primarily perform certain executive, professional, and administrative duties on behalf of an employer. Id.

Delaware Minimum Wage Law

Delaware has set a higher minimum wage than that required by federal law. See Del Code tit. 19, § 902(a)(4); 29 U.S.C. § 206(a)(1)(C). The minimum wage mandated by the FLSA is $7.25 per hour, whereas the minimum wage for Delaware is $9.25. Id.

Like other states and the FLSA, Delaware recognizes certain special rules for paying tipped employees at an hourly rate less than the minimum wage rate, prior to counting tips toward their compensation. See 29 C.F.R. § 516.28 (2019); Del. Code tit. § 902(b). When paying an employee who regularly receives tips, an employer is authorized to reduce the minimum hourly rate to $2.23 per hour. Del. Code tit. 19 § 902(b). But these employees may only receive an hourly rate below minimum wage if the average hourly rate for each workweek, after including tips, meets the general minimum wage rate. Id. By contrast, the federal minimum hourly rate for tipped employees is $2.13 per hour. 29 C.F.R. § 516.28 (2019).

New hires may also receive subminimum wages during their first 90 days of employment. See Del. Code tit. 19, § 902(e)(1). In Delaware, employers must pay workers over the age of 18 in their first 90 days of work at least $8.75 per hour, or up to 50 cents less the required minimum wage rate. Del. Code tit. 19, § 902(e)(1). This varies slightly from the training wage of the FLSA. See 29 U.S.C. § 206(g)(1). Under the FLSA, for an employee to be eligible to receive a training wage they must be less than 20 years of age and in their first 90 days of employment. Id. The federal minimum training wage is currently $4.25 per hour. Id.

Meal Breaks

The FLSA does not require breaks for employees, but Delaware does. See Del. Code tit. 19 § 707(a). In an effort to protect employees, Delaware has laws in place to give employees a right to breaks under certain circumstances. Id. Employees who work more than 7.5 consecutive hours have the right to a 30-minute unpaid meal break. Id. The meal break must be given some time after the first two hours of work and before the last two hours. Id. Employers who infringe on an employee’s right to the break could owe a civil penalty ranging from $1,000 to $5,000 for each violation. Del Code tit. 19 § 707(c).

Nonetheless, there are certain exceptions to the meal break requirement in Delaware. Del. Code tit. 19 § 707(b). Delaware law instructs the state government to publish rules providing for exceptions where, for example, compliance would adversely affect public safety or where only one employee may perform the duties of the position in question. Id.

Wage Payment Requirements

Under Delaware law, employers must pay employees in a regular and timely manner. See Del. Code tit. 19 § 1102(a-b). Employees must pay wages within seven days from the end of a pay period on regularly scheduled days decided by the employer. Id. Employers who violate wage payment requirements may owe employees unpaid wages, liquidated damages, and reasonable attorney’s fees. Del. Code tit. 19 §§ 1113(a), (c).

Potential Wage and Hour Violations

Employers who violate state or federal wage and hour requirements may be held liable to employees for various types of damages. See 29 U.S.C. § 216(b); Del. Code tit. § 910(a). Because Delaware does not have separate overtime laws, the liabilities associated with overtime violations are consistent with those provided for under the FLSA. See 29 U.S.C. § 216(b).

Under the FLSA, employers found in violation are typically liable for unpaid wages, liquidated damages equal to the amount of unpaid wages, and reasonable attorney’s fees. Id. This varies slightly from what an employer would be liable for under a state minimum wage claim. See Del. Code tit. 19, § 911(a). Under Delaware’s state minimum wage law, employees may collect any unpaid wages and reasonable attorney’s fees; however, the statute does not provide for liquidated damages. Id.

Under the FLSA, employers may still have a defense to liability for liquidated damages if they can meet a high burden in demonstrating that they acted in good faith with an honest intention of following the FLSA. 29 U.S.C. § 260; Brooks v. Village of Ridgefield Park, 185 F.3d 130, 137 (3d Cir. 1999).

Contact Us

Our Firm represents clients in wage and hour cases in courts throughout the United States. Direct your questions regarding minimum wage and overtime requirements to our attorneys. Our experience in wage and hour compliance in both federal and state cases provides us with the ability to effectively assist our clients. If you are in or around New Castle, Kent or Sussex counties, please feel free to contact our attorneys directly to discuss a wage and hour issue at 314-645-4100 or by email at kevin@dolleylaw.com.