Delaware Labor and Employment Law: An Overview
Delaware has a comprehensive network of labor laws that dictate the relationship between employers and employees within its borders. These statutes present a framework not only for the rights of the workers but also for the obligations of the employers in each sector of the workforce. The intent behind the labor laws is to create a safe, fair, and lawful workplace in which employees enjoy legal protections and employers optimize their production processes.
Most workplace inclusions are formed by entitlements, privileges, and other benefits provided by law. Employers must implement these benefits and ensure their availability to the employee within the timeframes prescribed by law. If a business violates its obligations under the law, the organization may be liable for damages in civil court and through governmental authorities . Employers can face civil actions directly brought by injured workers or by a government authority acting on behalf of the employee.
The Delaware Secretary of Labor can exercise authority over employment contracts, wages and salaries, occupational health and safety, and working conditions in general. The Delaware Department of Labor has the power to investigate complaints from distressed employees and to resolve disputes. A deadline of three years applies in general to the filing of most labor-related claims.
The State of Delaware has a complicated series of statutes, regulations, and executive orders affecting aspects of labor and management. Because of the severity of the penalties for violations, it is critical for employees, owners, and managers to understand how the Delaware labor law system works and to closely follow its regulations.
Delaware Scheduling Laws
Under Delaware law, an employer must provide sufficient notice to an employee who is seeking a modification of their schedule. Unless an employee waives the right, an employer must provide an employee with a minimum of 14 days of notice prior to implementing any change in the employee’s schedule. An employee can opt out of this requirement if the employee voluntarily and without coercion waives this notice period. If the employer is unable to provide the required notice, presumably because an employee calls out or the company has a sudden influx in business that necessitates a change in an employees schedule, the employer must make a good-faith effort to contact the employee as soon as practicable to alert an employee of the change. The employer must also provide a "reasonable excuse" for the failure to provide the requisite notice.
Delaware Employee Rights Related to Work Schedules
In addition to your right to know your schedule in advance, there are other things you should know about your work schedule. Important protections prohibit you from being punished for scheduling and other work-related issues, as well as your ability to change your schedule without suffering repercussions.
Rights Related to Scheduling
You have the right not to be unfairly punished or discharged by your employer for scheduling-related issues. In Delaware, the law makes it illegal for an employer to discharge, discipline, or discriminate against an employee because that employee:
In addition, the law prohibits an employer from penalizing you for refusing to work a shift that the employer "knew would conflict with the person’s personal religious beliefs."
Rights to Request Changes to Your Schedule
You also have the right to request changes to your schedule. Your employer is required to consider your request. It may be possible to get a different start time, end time, or break, if both you and your employer approve. However, your employer is not legally required to make that change.
Delaware Employer Obligations Related to Work Schedules
An employer’s labor schedule for nonexempt employees is a necessity to properly account for the reporting time of its workers and to ensure the business is adequately staffed to meet demand. However, such schedules may change due to unexpected circumstances (often perceived as the consequence of poor planning), new customer orders or other business needs. In such situations, what are an employer’s obligations under Delaware’s labor laws?
Delaware’s Wage and Hour Rules stipulate that any employee who is required to report to work by an employer must be paid for a minimum of three hours at no less than the federal minimum wage rate ($7.25 per hour). They also require that the employee who reports to work but is not put to work or is furnished with less than three hours of work, be paid for a minimum of three hours at no less than the federal minimum wage rate ($7.25 per hour).
As a general rule, employers should provide as much notice as possible to employees when changing their schedules. Reliable notice provisions in written agreements with employees are an advantage. Likewise, employers should try to accommodate employees’ scheduling conflicts. Flexibility and accommodations may go a long way in creating goodwill between the employer and the employee, while failing to provide such benefits may create conflicts between the employer and employee, or among co-workers. Indeed, while a failure to provide adequate notice or fail to accommodate particular employee scheduling conflicts are generally discouraged, should such failures arise, they may constitute "good cause" for employees to file complaints with appropriate authorities, to engage in a "protected activity," or to file a lawsuit.
In addition, for employers subject to the Federal Fair Labor Standards Act, there is an obligation to provide notice to employees on their right to a reasonable break for nursing mothers. In addition to Delaware requirements to either provide reasonable break periods or provide a fixed (usually 30 minutes) period for a meal, the FLSA requires employers to provide a reasonable break time and a private place (not a bathroom stall) for nursing mothers to express milk.
Additionally, seniority or seniority-based systems, if appropriately carried out and communicated to employees, are legally protected as long as the system is bona fide. It has been the experience of the author that many employees appreciate these systems.
It must be noted that this is just a general framework. Delaware and federal laws are complex and govern multiple issues related to employee reporting and scheduling. For example, issues of rest and meal periods under the Wage and Hour Rules are not addressed here. However, if both employer and employee appreciate both the economic necessity and the obligations imposed, then scheduling ought to be one less cause of friction in the employer/employee relationship.
How Scheduling Laws Impact Employers and Employees in Delaware
Delaware’s Scheduling Laws and Their Impacts on Various Businesses
While some are billed as pro-employee, such as the premium pay for last minute schedule changes, flexible on-call employees may actually benefit. The advance notice laws also benefit employees by bringing the employer’s attention to the impacts of the scheduling decisions, allowing discussion and input from other employees early rather than at the last minute.
On the other hand, some of the scheduling laws present challenges for employers. An employee wishing to work a different shift on a one-off basis , for example, may not be able to take advantage of shift swapping (as noted above, voluntary swapping of shifts is not permitted). And sometimes, the small benefits accrued by each employee individually can add up to a substantial burden over time. The increased costs of overtime when two hours of work per week per employee must be paid at time and a half — the cost of the additional work that may have been avoided through advance notice — can add up like any other frequently recurring expense.
Tips for Complying with Delaware Scheduling Laws
For employers operating in Delaware, it is critical to ensure compliance with all applicable scheduling laws, and that includes the following:
Give at least two weeks’ notice of any schedule changes
With certain exceptions, employers have to give employees two weeks’ written or electronic notice of their schedules, as well as any changes in that schedule. The only exceptions to this rule include:
Offer shifts to current employees before hiring new employees
Employers can only fill a position with a new employee if there are no current employees who have the skills to fill the position and want it. Therefore, employers must offer existing employees available shifts, and can’t hire someone new to fill available shifts unless there are no existing employees who want it.
Provide the ability to refuse shifts without penalty for a "reasonable" period of time
Only employees that work less than 9 hours per week can be penalized for refusing a shift if they don’t do so within 24 hours of when it is offered to them. For all other employees, they have to be given a reasonable period of time to refuse a shift without penalties.
Advance notice of being on-call or on standby shifts to employees is required
In Delaware, employers have to give employees at least 12 hours’ notice of being put on call or on standby shift, as well as provide a reasonable range of hours that an employee must be available to work. On-call pay, standby pay, or what you may think of as "call-in" pay is mandatory in Delaware for some employees, but the amount and rules surrounding it depend on your business model and the state of operation.
Avoid retaliation by providing what Delaware law considers as a "reasonable" accommodation when scheduling employees—above and beyond that of what is legally required.
Updates on Scheduling Laws
In the 2019 legislative session, Delaware introduced two bills that would amend state scheduling laws. Although neither bill advanced beyond the committee stage last year, these developments provide a preview of issues likely to surface again in the future.
HR 2 – Right to Request Flexible Work Arrangements
Perhaps the most comprehensive proposed scheduling law in the country is S.B. 103, a bill that would provide workers a "right to request a flexible working arrangement." As introduced by Senator Mendez in November of 2017, the bill provides:
[T]he an employee may request a change in the employee’s work schedule or the arrangement of the employee’s work time. Upon receiving such a request, the employer shall grant, unless doing so would result in undue hardship on the employer, the employee’s request for a flexible working arrangement. The employer may deny an employee’s request for a flexible working arrangement when such denial is based upon a legitimate business reason such as, but not limited to, the following: (1) The needs of other employees or the employer override the employee’s request; (2) Granting the employee’s request would have a negative effect on customer service; and (3) The employee has exceeded his or her number of attendance or tardiness occurrences as established in the employer’s current policies.
The employee’s request for a flexible working arrangement must be made at least 30 days for a change in work arrangements and 14 days for a change in schedule prior to enactment of the change . The employer must respond to a request for a flexible working arrangement no later than 30 days before the requested effective date of the change.
For employers with 25 or more employees, violation of the provision subjects an employer to a $500 civil penalty, per violation, unless the employer can show undue hardship. Delaware’s measure does not impose similar requirements on employees, which are often included in other jurisdictions, such as providing seven-day advance notice of changes and requiring (if possible) that changes occur in order of seniority. S.B. 103 was referred to the Senate Labor Committee on November 16, 2017. It has not moved forward. Delaware’s bill reflects the growing acceptance and implementation of scheduling laws in other states. This draft also shows that a right to request flexible work arrangement (while it does exist in portions of California for school district employees) is relatively new outside of those jurisdictions.
HB 5 – Unemployment Compensation — Notice of Schedule Changes
Introduced in December of 2018, this bill removes language from the Delaware Employment Security Act that disqualifies individuals from unemployment benefits who voluntarily leave employment without good cause related to the individual’s family obligations, or who are temporarily unemployed due to having their work hours reduced. A similar bill was successfully introduced in California the last legislative session. Together, these bills provide additional evidence of our evolving workforce and schedule accommodations. Employers who do business in multiple jurisdictions in the United States need to keep a close watch on developing scheduling legislation.