Delaware salary history ban: 19 Del. C. 709B for recruiters

Delaware has banned compensation history questions since December 2017. Title 19, section 709B of the Delaware Code makes it an unlawful employment practice for an employer, or an employer's agent, to screen applicants on their pay history or to seek that history from the applicant or a current or former employer. Two features make Delaware's version different from most: it contains an express safe harbor for employers whose outside recruiters break the rule, and it allows confirming pay history only after an offer has been both made and accepted.

For an agency recruiter, those two features point the same way. The client can protect itself by instructing you in writing, which leaves the risk with you, and there is never a stage before the offer is accepted when asking is allowed.

The statute

Section 709B was added by 81 Delaware Laws chapter 41 (House Substitute 1 for House Bill 1), approved June 14, 2017. The act took effect six months after enactment, which puts the start date in mid-December 2017. Subsection (b) says it is an unlawful employment practice for an employer or an employer's agent to:

1. "Screen applicants based on their compensation histories, including by requiring that an applicant's prior compensation satisfy minimum or maximum criteria."
2. "Seek the compensation history of an applicant from the applicant or a current or former employer."

"Compensation" is defined broadly: it "includes monetary wages as well as benefits and other forms of compensation." A question about bonus value, equity, a pension contribution or the cost of a benefits package is a question about compensation history in Delaware, not a way around the rule.

Who is covered, and the agent safe harbor

Section 709B applies to "an employer or an employer's agent." The section does not set an employee-count threshold or give its own definition of employer, so treat every employer hiring for a Delaware role as covered. The word "agent" brings in anyone acting for the employer in hiring: agency recruiters, recruitment process outsourcing firms, executive search firms and staffing companies.

Subsection (c) is the part agency recruiters should read twice:

"if an employer can demonstrate that the employer's agent, who is not an employee, was informed of the requirements of this section and instructed to comply by the employer, then the employer is not liable for actions taken by the agent in violation of this section."

In practice, Delaware clients may put a clause in your agreement or send a written instruction saying you have been told about section 709B and must comply. That is good practice for them. The effect for you is that if you then ask a candidate what they earn, the employer has a defense and you do not. The penalty provision in subsection (h) applies to "any employer or employer's agent who violates or fails to comply."

What is banned and what is allowed

The minimum-criteria point catches online application forms more often than recruiters. A required field that asks candidates to confirm their current salary is above a threshold is screening on compensation history even if nobody ever reads the number.

Delaware's statute is silent on volunteered history. It does not give the express permission found in Hawaii or California, and it does not forbid considering the figure the way Illinois does. The safer course is the one the rest of this page assumes: do not record or pass on a volunteered figure, and set the offer from the role.

Verification after an accepted offer

Subsection (e) is narrower than the post-offer rules in neighboring states. Two conditions must both be met before anyone seeks pay history: an offer "with terms of compensation has been extended to the applicant," and the offer has been "accepted." The purpose is limited as well: "for the sole purpose of confirming the applicant's compensation history."

Compare New Jersey, where a volunteered figure may be considered, and Maryland, where voluntarily provided history can support a higher wage after an initial offer (see New Jersey and Maryland). Delaware gives no such route. Confirming history after acceptance cannot change an offer the candidate has already agreed to, so most employers have no reason to do it at all. If a client insists, ask what decision the number would feed; if the answer is "the offer," it is too late under subsection (e) and too early under subsection (b).

How it fits with Delaware's pay range law

Delaware does not yet require pay ranges in job postings. Section 709C, enacted by 85 Delaware Laws chapter 228, carries the note "Effective Sept. 26, 2027." From that date, employers with 26 or more employees must include the hourly or salary compensation range and a general description of benefits when they post or otherwise make known a job opportunity, and must give the range before any offer or discussion of compensation when no posting was made available. The section exempts employers with 25 or fewer employees and says a third party who posts or reposts a notification "is not subject to liability or enforcement under this section."

Until then, nothing in Delaware law forces the range into the conversation, which is exactly when a history question is most tempting. Sharing the range voluntarily removes that temptation. The details of the 2027 rule are in our Delaware pay transparency guide.

Enforcement and penalties

• Department of Labor. Under subsection (g), the Delaware Department of Labor has the same powers under this section as under section 1111 of Title 19. Subsection (f) also directs the department to post the requirements on its website and do outreach.
• Civil penalties. Not less than $1,000 nor more than $5,000 for the first offense, and not less than $5,000 nor more than $10,000 for each subsequent violation (subsection (h)(1)).
• One position, one violation. Actions that violate (b)(1) or (b)(2) and "pertain to interviewing and hiring for a single position" count as a single violation (subsection (h)(2)). Asking every candidate on one requisition is one violation; asking on ten requisitions can be ten.
• Court. A civil penalty claim may be filed in any court of competent jurisdiction (subsection (h)(3)). The section does not spell out a separate private damages remedy.

A Delaware script for the pay conversation

Opening the topic

"The client has budgeted $70,000 to $82,000 for this role, plus health cover and a retirement plan (example figures). What are you looking for, and is that number firm or flexible?"

When the candidate asks if you need their current salary

"No. In Delaware we don't ask about pay history, and it wouldn't change the range. What matters is whether this range works for you."

When the candidate volunteers it anyway

"Thanks. I'll leave that out of what I send the client and focus on what you're asking for. You said $78,000?" Then record only the expectation; what not to write in interview notes covers why.

When the client asks

"I can't ask that in Delaware, and the law covers recruiters acting for you, not just your own team. Her expectation is $78,000 and she's flexible on start date. If you want to confirm her previous pay, the law only allows that after she has accepted an offer."

Delaware checklist

1. Strip current and previous salary fields, and any "current salary above X" knockout questions, from applications and screening forms for Delaware roles.
2. Expect clients to instruct you in writing about section 709B, and keep that instruction with the requisition.
3. Lead with the range and ask for expectations; wording that works is in salary expectation questions.
4. Keep pay off reference calls and out of background check orders.
5. Do not verify prior pay until an offer with compensation terms has been accepted, and only to confirm it.
6. Diary September 26, 2027 for the posting rule if the employer has 26 or more employees.

For how other states handle a volunteered number or post-offer verification, see salary history ban states.