Delaware background check laws for employers (2026): what you can check and when

Delaware employers may run background checks, and the rules that bind private employers are about records, not timing. As of October 2026, the Delaware rules that matter most are the expungement law, which says candidates should not be asked about expunged records and need not disclose them, now with automatic expungement of eligible cases since August 2024; State Bureau of Identification (SBI) checks, which give employers conviction data by fingerprint; and long lists of required checks and previous-employer "service letters" for health care, child care and schools, which reach temporary agencies too. The ban-the-box and credit check limit in 19 Del. C. 711(h) covers public employers only.

The federal steps (stand-alone disclosure, authorization, pre-adverse and adverse action notices) apply to every Delaware hire that uses a screening company and are covered in the FCRA background check process. This page covers what Delaware law adds, with each section of the Delaware Code linked. The public-employer rule has its own page, Delaware's ban-the-box law, and the wider state picture is on hiring employees in Delaware.

Does Delaware add anything to the federal FCRA?

Not directly. We found no Delaware statute that adds disclosure, consent or adverse action steps to the federal FCRA for employment screening, so a screening company's report follows the federal process. What Delaware regulates is the state record itself (who may get it, and what is sealed), plus who must be checked before hiring. There is no state lookback statute either, so the federal limits apply: arrests and other non-conviction items older than seven years may not be reported for jobs paying under $75,000 a year, and convictions have no time limit (15 U.S.C. § 1681c). In Delaware, expungement does more to shorten a record than any time limit.

Can Delaware employers ask about expunged records?

No, and this is the strongest Delaware rule for private employers. 11 Del. C. § 4372(d) says "a person is not required to disclose, nor should the person be asked to disclose, to anyone for any purpose that the person was arrested for, charged with, or convicted of an offense for which records have been expunged." Section 4376(e) repeats that an expunged offense "does not have to be disclosed by the person for any reason," and § 4376(a) makes it unlawful for anyone with access to an expunged record to open, review or disclose it without a court order, a class B misdemeanor. The one employment exception is an application to a law-enforcement agency.

Expungement now reaches many records without a petition:

• Mandatory expungement through the SBI covers cases that ended in the person's favor, violations after three years, and, for people without disqualifying records, misdemeanors after five years and listed lower-level felonies after ten years (§ 4373). Crimes of domestic violence and other listed offenses are excluded.
• Automatic expungement. "Beginning August 1, 2024, on a monthly basis," the SBI identifies cases eligible for mandatory expungement and expunges them (§ 4373A).
• Discretionary expungement by the Family Court or Superior Court covers other eligible convictions after waiting periods, and pardoned convictions (§§ 4374 and 4375).

Practical effect: an application question such as "Have you ever been convicted of a crime?" should add that expunged records need not be disclosed, and a candidate who answers "no" about an expunged matter has answered as the law allows.

When can Delaware employers ask about criminal history?

Private employers have no state timing rule. 19 Del. C. § 711(h) makes it an unlawful employment practice "for any public employer to inquire into or consider the criminal record, criminal history, credit history, or credit score of an applicant for employment during the initial application process, up to and including the first interview," with exemptions for police, corrections, justice, the courts and jobs where a statute requires or permits a check. Exemptions, the factors a public employer must weigh, and what it means for agencies recruiting for public clients are on our Delaware ban-the-box page. We did not confirm any city or county ordinance covering private employers.

The EEOC rescinded its 2012 guidance on arrest and conviction records on October 28, 2026, effective immediately, but federal Title VII still governs how records are used, including its disparate impact provision (42 U.S.C. § 2000e-2(k)). For private employers, a job-related review using the Green factors from the 1975 Eighth Circuit case, Green v. Missouri Pacific Railroad Co. (the nature and gravity of the offense, the time since it, and the nature of the job), remains a sound way to make and document a decision; public employers must weigh the similar factors written into § 711(h).

How do you get a Delaware criminal record from the SBI?

The SBI, part of the Delaware State Police, is the state repository. Under 11 Del. C. § 8513(c), it may furnish conviction data to "individuals and agencies for the purpose of employment of the person whose record is sought," if the requester pays the fee and uses the data only for that purpose, so the employment release is limited to conviction data rather than the full record. Section 8513(d) prohibits dissemination of criminal history record information by anyone other than the bureau, so do not pass an SBI report on to a client.

The Delaware State Police criminal background check page says, as of October 2026:

• A certified criminal history is obtained through fingerprints, taken at the SBI's Dover and Georgetown centers or IdentoGO partner locations, with a service code supplied by the organization requiring the check. From October 5, 2026, fingerprinting moved to remote-proctored kiosks.
• The fee is $72 for a certified Delaware criminal history and $85 for Delaware and federal ("must be mandated by law").
• A personal criminal history report "will not fulfill the criminal history report for legally mandated agencies," so a candidate's own copy does not replace a required employer check.

Which Delaware jobs require background checks?

• Long-term care facilities. An employer may not employ an applicant for work in a licensed long-term care facility before obtaining a criminal history covering the full FBI record and the SBI record, through the state's Background Check Center (16 Del. C. § 1141). Conditional employment of up to 60 days is allowed only after the employer has verification that the applicant was fingerprinted. "Applicant" includes "a person employed by an agency for work in a facility," whose criminal history must be provided to the facility when the person starts, and the applicant must sign a release letting the agency share it. Penalties run $1,000 to $5,000 per violation. Drug screening is required under § 1142.
• Health care facilities, Child Protection Registry. Nursing homes, hospitals, home health care and adult day care employers must request and receive a Child Protection Registry check before hiring, with a signed release, and may hire conditionally only in exigent circumstances (11 Del. C. § 8563). Section 8564 adds an Adult Abuse Registry check before hiring for health care service providers, nursing homes and child care facilities, and its definition of health care service provider names "temporary employment agencies and contractors that place employees" in care settings.
• Child-serving entities. Public schools, licensed child care, youth camps, residential child care under contract with the state and early intervention providers must obtain a fingerprinted Delaware and national check plus a Child Protection Registry check for employees, volunteers and contractors (31 Del. C. § 309). Felony physical or sexual assault crimes against a child, an impaired adult or an elderly person bar the person for life; other listed convictions bar for 10 or 7 years. Conditional hiring is allowed pending the result.

Service letters for health care and child care

Delaware adds a reference rule found in few states. 19 Del. C. § 708 says no health care or child care facility employer may hire a person for a job with direct access to people in care "without obtaining 1 or more service letters," including one from the current or most recent employer and one from every health care or child-serving employer in the past five years. Someone never employed must provide two references from unrelated adults, and an employer that does not answer is reported to the Department of Labor. Under § 708(c), a temporary agency supplying such workers "is considered an employer and is responsible for complying."

Can Delaware employers check credit, salary history, social media or references?

• Credit. The § 711(h) limit applies to public employers only; private employers follow the federal FCRA steps. See credit check laws for employers.
• Salary history. Private employers may not screen on or seek compensation history (19 Del. C. § 709B); details are on Delaware's salary history ban, and pay range disclosure starts September 26, 2027 under § 709C (Delaware pay transparency).
• Social media. 19 Del. C. § 709A bars requiring or requesting an applicant's username or password, access to personal social media in your presence, or a contact request, while allowing employers to view information "that is in the public domain."
• References. Under § 709, an employer that discloses a current or former employee's job performance to a prospective employer is presumed to act in good faith and is immune unless the information was knowingly false, deliberately misleading, malicious, or disclosed in breach of a nondisclosure agreement or confidentiality law.

Delaware background check rules at a glance

What should recruiters and staffing agencies do in Delaware?

1. Fix the conviction question. Add that expunged records need not be disclosed, and never ask about them in a screen.
2. Collect service letters for care placements. If you place workers with direct access in health care or child care, § 708 treats your agency as the employer for this duty.
3. Get the long-term care release signed. Agency staff for long-term care facilities need a fingerprint-based criminal history before work (or proof of fingerprinting for conditional work) and a release to share it with the facility.
4. Keep SBI reports in-house. Section 8513(d) bars redissemination; let the client run its own check or rely on a screening company report.
5. Follow the public rule for public clients. For a state agency, county or town, ask nothing about criminal or credit history until after the first interview.
6. Keep criminal history out of interviews and notes. If a candidate volunteers a record, do not follow up or record it. If you record or transcribe interviews, check Delaware recording consent rules and remove the passage from notes you share.
7. Put it in a policy. A background check policy that names the checks by role keeps practice consistent. Agency licensing is covered in staffing agency licensing in Delaware.