If you believe you’ve been deprived of the compensation to which you’re legally entitled, please contact the Lore Law Firm. Our overtime rights lawyers represent Delaware employees who have been subjected to workplace wage and hour violations and take cases on a contingent fee basis – no fee if no recovery of backpay.
Understanding Delaware Wage and Overtime laws
While Delaware does have certain state labor laws that differ from the federal Fair Labor Standards Act (FLSA), the state law applies only in instances where it provides greater rights or protections than federal law. Whichever law (state or federal) is more favorable to the worker will apply. In most instances, for workers employed in Delaware, this will be the federal wage and hour laws.
Delaware’s minimum wage rate increased to $9.25 effective October 1, 2019. Delaware wage laws do, however, allow for a training wage $8.75 for adult workers 18 & over for the first 90 days on a new job. Effective on January 1, 2019 a Youth Rate (14-17) of $8.75 per hour was implemented.
Delaware state law provides the following exemptions to minimum wage requirements:
- Employees in agriculture
- Employees in domestic service in or about private homes
- Employees of the United States Government
- Outside commission paid salespeople
- Bona fide executives, administrators, and professionals
- Employees engaged in fishing and fish processing at sea
- Volunteer workers (for educational, religious or non-profit organizations)
- Junior camp counselors employed by non-profit summer camp programs
- Inmates participating in Department of Correction programs
Delaware state labor laws on overtime pay generally apply the FLSA and require employers to pay time and a-half for all hours worked over 40 per workweek, unless an employee is properly classified as exempt.
For minimum wage workers in Delaware, the overtime pay rate amounts to $15 per hour (1.5 x $9.25).
Employees in Delaware can be required to work overtime (ie “mandatory overtime”) without violating the overtime laws, as long as they are properly compensated at the premium rate required by law. Likewise, absent a collective bargaining agreement or contract, an employee is only entitled to his or her regular rate of pay for working a weekend or holiday, unless such weekend or holiday hours cause them to actually work more than 40 hours during the work week, in which case they should be compensated at not less than one and one half times his/her regular rate of pay for all time worked past 40 hours.
Who is Entitled to Overtime Pay
Most workers in Delaware are entitled to overtime pay when they work more than 40 hours per week. In certain circumstances, however, there are exceptions.
Employees engaged in executive, administrative, or professional capacities (and paid at least $455 per week on a salary basis) are exempt from the overtime requirement. Note that new minimum salary requirements for overtime exemption take effect in January 2020 and increase the minimum salary threshold to $684 per week (or $35,568 annually). This change in federal law will also apply to most workers in Delaware when making the determination of whether they are classified as exempt or non-exempt from the overtime pay laws.
Misclassification of Independent Contractors
While there are situations in which workers are legitimately running their own business and properly treated as independent contractors who are not entitled to receive overtime, employers are not allowed to mischaracterize employee roles to avoid paying overtime compensation.
Merely labeling a worker as an independent contractor, or even entering into a written agreement, is not enough to avoid the labor laws on overtime pay. While there is no single definition of “independent contractor” in Delaware labor laws, there are several factors to be considered in determining if a worker in Delaware is an employee or independent contractor (a/k/a 1099 employee)
If properly classified as an independent contractor under Delaware law, workers are typically eligible for only the specific compensation bargained for in a contract.
Meal and Rest Breaks
Delaware state law provides that all employees must receive a meal break of at least 30 consecutive minutes if the employee is scheduled to work 7.5 or more hours per day. Meal breaks must be given sometime after the first two (2) hours of work and before the last (2) hours of work.
This rule does not apply when:
- The employee is a professional employee certified by the State Board of Education and employed by a local school board to work directly with children.
- There is a collective bargaining agreement or other employer-employee written agreement, which provides otherwise.
Rules have been issued granting exemptions when:
- Compliance would adversely affect public safety
- Only one employee may perform the duties of a position
- An employer has fewer than five employees on a shift at one location (the exception would only apply to that shift).
- 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 breaks.
Where exemptions are allowed, employees must be allowed to eat meals at their workstations or other authorized locations and use rest room facilities as reasonably necessary.
Under Delaware state wage laws, the following rules apply to workers who earn tips:
- The minimum cash wage payable to employees who receive tips is $2.23 per hour.
- Tips may not be taken or retained by an employer except as required by law.
- Tip pooling is permitted (under certain circumstances) in an amount not to exceed 15% of the actual tips received by the employee.
Reporting Pay / Show-Up Pay
Delaware labor laws do not require reporting pay or show-up pay when workers show up for a scheduled shift but are sent home due to no available work.
Delaware labor laws do not permit employers to deduct any amounts from an employee’s wages for:
- Cash or inventory shortages
- Cash advances or charges for goods and services (unless there is a signed agreement specifying the amount owed and the repayment schedule).
- Damaged property
- Failure to return employer’s property
Delaware labor law requires every employer of four or more employees to:
- Notify employees in writing at the time of hire regarding
- Rate of Pay
- Day, hour and place of payment
- Employer’s benefit policies
- Notify employees in writing of any reductions in the rate of pay, and any changes in the day, hour or place of payment of benefits.
- Provide each employee with a pay statement showing:
- Amount of wages due
- Pay period covered
- Any deductions made from wages
- Total number of hours worked in pay period – for hourly paid workers
Delaware doesn’t require employers to provide workers with paid or unpaid vacation leave.
Many employers choose to provide vacation leave as part of a benefits packages to attract employees, however. In these situations, employers may set the policies, terms and conditions as to how and when such a benefit is used – including “use it or lose it” policies that state that terminating employees forfeit accrued but unused vacation time.
Statute of limitations
Delaware’s deadline for filing an overtime claim adheres to the FLSA, which requires those seeking to recover unpaid back overtime wages file a lawsuit within two years from the date of the employer’s wage violation. So a lawsuit filed today would be able to seek recovery of back overtime for only the prior 2 (sometimes 3) years.
As an example, suppose you believe that your employer has failed to pay you proper overtime wages since January 1, 2016. Waiting until June 1, 2019, to file your lawsuit means you are only allowed to seek unpaid wages from June 1, 2017, to June 1, 2019.
The statute of limitations may be extended to three years if an employer’s violation of the FLSA was willful. An FLSA violation is deemed willful if the employer knew that its conduct was prohibited by the FLSA or showed reckless disregard.
Penalties for Violations
Under federal law, employers who fail to pay proper overtime wages may be liable for up to double the amount of unpaid back wages plus costs and attorney’s fees incurred by employees. These cases can be brought overtime pay lawyers on a class or collective basis on behalf of all workers who were subjected to the same illegal pay practices.
On your side
At the Lore Law Firm, we represent salaried, hourly, and day-rate workers in an array of employment litigation matters, including unpaid overtime compensation claims in Delaware. Our attorneys, and the Delaware overtime law attorneys we associate with, are passionate about protecting the rights of workers and have helped recover millions of dollars in unpaid overtime wages for our clients.
Contact us for a free and confidential review of your situation.