Delaware ban-the-box law: 19 Del. C. 711 for public employers

Delaware's ban-the-box law, 19 Del. C. section 711(h), applies only to public employers: the State of Delaware, its agencies and its political subdivisions. It bars them from asking about or considering an applicant's criminal record, criminal history, credit history or credit score during the initial application process, up to and including the first interview. After that, an otherwise qualified applicant may be asked, and may be disqualified for criminal history only where that is job related and consistent with business necessity, weighing three factors. If you recruit for a private Delaware company, this subsection does not bind your client, though federal law and good practice still point the same way.

The statute

Section 711(h), in the Discrimination in Employment subchapter of Title 19, chapter 7, has four paragraphs:

1. "It shall be 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."
2. "If an applicant is otherwise qualified, a public employer may inquire into or consider an applicant's criminal record, criminal history, credit history or credit score after the completion of the first interview."
3. A public employer may disqualify an applicant based on criminal history "where the exclusion is job related for the position in question and consistent with business necessity," and must consider the nature and gravity of the offense or conduct; the time that has passed since the offense or conduct and/or completion of the sentence; and the nature of the job held or sought.
4. The subsection does not apply to any state, county or municipal police force, the Department of Correction, the Department of Justice, the Office of Defense Services, the courts, or any position where a federal or state statute requires or expressly permits considering criminal history.

Who is covered: public employers only

Section 710 defines "public employer" as "the State of Delaware, its agencies, or political subdivisions." That means state departments, counties, cities, towns and other political subdivisions, subject to the exemptions in paragraph (4). It does not include private companies, nonprofits or private contractors, even though the general definition of "employer" in the same subchapter (four or more employees, including the State) does reach them for other purposes.

What that means for private recruiters

If your client is a private Delaware employer, section 711(h) does not dictate when it may ask about criminal history. We did not find a Delaware statute that applies the same timing rule to private employers, and we did not check city or county ordinances for this page. Private clients are still subject to Title VII and the EEOC's guidance on arrest and conviction records, and to the FCRA when they use a screening company. A multistate client may choose to wait until after an interview or a conditional offer everywhere, which keeps a Delaware process consistent with stricter neighbors such as New Jersey and Maryland.

If you recruit for a Delaware state agency, county or town, or for a contractor that runs hiring on its behalf, the rule applies to that hiring process, and you should treat your screen as part of the initial application process.

What is allowed at each stage (public employers)

Two details stand out. The first interview itself is protected, so a criminal history question asked in that interview is too early. And the rule covers credit history and credit score as well as criminal history, which matters for finance and procurement roles in local government.

Individualized assessment and notices

The three factors in 711(h)(3) are the same ones the EEOC uses in its Title VII guidance: the nature and gravity of the offense or conduct, the time elapsed, and the nature of the job. The statute does not require a written preliminary notice or a set response period. A public employer that relies on a consumer report still has the FCRA notice duties, and documenting how the three factors were weighed is the practical way to show the exclusion was job related and consistent with business necessity.

Staffing agencies and recruiters

Section 711(h) speaks only of public employers, and does not mention employment agencies or agents. An agency that recruits for a Delaware public employer is not itself a public employer, but it is running part of the public employer's initial application process. The safe practice is to follow the public employer's rule completely: no criminal history or credit questions on the agency's forms or screens for that role, and nothing passed along before the first interview is complete.

Penalties and enforcement

A violation of 711(h) is an unlawful employment practice under the subchapter. Section 712 sets the charge process: a verified charge of discrimination filed with the Delaware Department of Labor within 300 days of the alleged unlawful employment practice or its discovery. The subsection sets no fixed fine, and we have not listed remedy amounts because we did not verify how the subchapter's remedies apply to it.

How it fits with FCRA adverse action

When a public employer orders a criminal or credit report from a screening company after the first interview, the FCRA applies: a stand-alone disclosure and written authorization, a pre-adverse action notice with a copy of the report and the summary of rights, a reasonable wait, then the adverse action notice. See the FCRA background check process and background check notification emails.

Questions to settle with a Delaware client at intake

• Is the client the State, a state agency or a political subdivision such as a county, city or town? If not, 711(h) does not apply.
• If it is public, is it a police force, the Department of Correction, the Department of Justice, the Office of Defense Services or a court? Those are exempt.
• Does a federal or state statute require or expressly permit considering criminal history for this position? If so, which one?
• What is the first interview, who conducts it, and who confirms it is complete?
• Who orders any criminal or credit report, and who sends the FCRA notices?
• For a private client, when does it want criminal history considered, and will it apply that policy consistently?

Write the answers into the job order. If a question about timing comes up later, you will be able to show what the client told you and why the process ran the way it did.

A script for Delaware screens

Candidate for a county job volunteers a conviction: "Thanks for telling me. For this role, criminal history isn't considered until after the first interview, so I won't note it."

Candidate asks whether a credit check is part of a city job: "If it is, it comes after the first interview, and you'd be asked to authorize it first."

Private client asks whether Delaware's law applies to them: "Delaware's ban-the-box subsection covers public employers. You can still choose to wait, and federal rules on background checks apply either way."

A Delaware checklist for recruiting desks

1. Identify whether the client is a public employer under section 710, and whether a paragraph (4) exemption applies.
2. For public roles, remove criminal history and credit questions from applications and screens, and keep them out of the first interview.
3. For private roles, decide with the client when criminal history is considered, and write it into the job order.
4. Keep volunteered details out of notes and submittals. See what not to write in interview notes.
5. For the federal picture and other states, see ban-the-box laws and interview questions.