Pre-Employment Background Checks in Delaware: The 'Ban the Box' Law and Applicant Rights
Delaware's "Ban the Box" law (19 Del. C. § 711(h)) prohibits public employers from asking about criminal history on initial job applications until after the first interview. All employers must follow federal FCRA rules before taking adverse action.
Delaware Hiring Laws and Criminal Backgrounds
Looking for a new job in cities like Newark, Middletown, or Wilmington can be incredibly stressful, especially if you have a past criminal record. Historically, many applicants were immediately disqualified from jobs simply because they had to check a box admitting to a past conviction on the initial application form. To combat this, the state passed a "Ban the Box" law, found in 19 Del. C. § 711(h). This law levels the playing field, allowing applicants to be judged on their skills and qualifications during the initial interview phase before their criminal history is heavily scrutinized. However, navigating the differences between public employers, private corporations, and federal reporting laws is critical to protecting your rights.
Public vs. Private Employers
It is vital to understand that Delaware's "Ban the Box" legislation (19 Del. C. § 711(h)) strictly applies to public employers. This includes state agencies, county governments, and municipal departments. Under Delaware law, public entities are prohibited from inquiring into an applicant's criminal history on initial written application forms, but they are legally permitted to inquire about criminal background and conduct screening once the first interview has been completed.
Conversely, private employers (such as retail stores, private corporate offices, and restaurants) are not bound by Delaware's Ban the Box statute. A private employer in Delaware may legally ask about criminal convictions on an initial job application, provided they comply with federal Equal Employment Opportunity Commission (EEOC) guidance and Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) requirements.
Statutory Exceptions for Specific Professions
Even within the public sector, the Ban the Box rules do not apply universally. Delaware law recognizes that certain vulnerable populations require intense protection. Therefore, specific professions are exempt from these restrictions. If you are applying to be a public school teacher, a daycare worker, a police officer, or a bank teller, state and federal laws mandate severe, upfront criminal background checks. In these highly regulated fields, inquiring about criminal history at the very beginning of the application process is completely legal and required.
The FCRA and Disputing Inaccurate Reports
Whether you apply for a public or private job, any employer that hires a third-party company to run a background check must comply with the federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.). The FCRA requires the employer to get your explicit, written permission on a standalone document before running the check. If the background check reveals a conviction-or mistakenly shows someone else's criminal record-and the employer decides not to hire you based on that report, they must provide you with a copy of the report and a statement of your FCRA rights before officially withdrawing the job offer.
Step-by-Step Process for Disputing a Background Check
If you lose a job opportunity in Delaware due to an inaccurate background check, you must act swiftly utilizing the FCRA guidelines.
Step 1: Review the Pre-Adverse Action Notice
When an employer decides to pass on you due to the report, they must first send you a "Pre-Adverse Action" letter. This letter will include a copy of the exact background report they received. Applicants should carefully review this notice, as it provides a critical opportunity to identify and challenge discrepancies.
Step 2: Check the Report for Errors
Applicants should verify the report thoroughly. Third-party background screening companies frequently make errors, such as mixing up people with similar names, reporting expunged records, or listing an old misdemeanor conviction as a major felony. It is essential to document any factual inaccuracies before proceeding.
Step 3: Utilize the 5-Day Dispute Window
Under the FCRA, employers must give you a "reasonable amount of time" to dispute the findings before taking final adverse action (officially rescinding the offer). In standard practice, this is a waiting period of about 5 business days. It is recommended to contact both the employer's HR department and the screening company promptly to submit a formal dispute.
Step 4: Report Violations to the State
If a public employer in Delaware illegally places a criminal history or credit history question on their initial application prior to the first interview, you can file a formal complaint with the Delaware Department of Labor, Wilmington to report the statutory violation under 19 Del. C. § 711(h).
Step 5: File an FCRA Lawsuit
If the background screening company refuses to correct the false data, or the employer failed to send you a Pre-Adverse Action letter before firing you or rejecting your application, it is time to seek legal counsel. Use our USA Lawyer Directory to find an attorney who handles FCRA violations and wrongful denial of employment.
How Much Does it Cost in Delaware?
Taking legal action against an employer or background check company for FCRA violations is highly accessible because federal law shifts the fees to the negligent party.
| Service / Expense Type | Estimated Cost (USD) |
|---|---|
| Disputing directly with the Agency | $0 (Free by federal law) |
| Filing a DOL Complaint | $0 |
| FCRA Attorney Retainer | $0 out-of-pocket (Most work on contingency/fee-shifting) |
| Statutory Damages Awarded to You | $100 - $1,000 per willful FCRA violation |
How Long Does the Process Take?
A standard pre-employment background check takes 2 to 5 business days to clear. If you dispute an inaccuracy, the background screening agency has a strict federal deadline of 30 days to investigate and correct the error. If you must file an FCRA civil lawsuit in federal court against a negligent screening company, litigation typically takes 9 to 18 months to reach a settlement or verdict.
Frequently Asked Questions (FAQ)
Can an employer ask about an expunged record?
No. If you have had your criminal record legally expunged or pardoned in Delaware, you do not have to disclose it to most employers. Legally, the event is treated as if it never occurred, though strict exceptions exist for law enforcement and high-security clearances.
Do private employers have to hire me if I have a criminal record?
No. While they cannot use false data to deny you, a private employer in Delaware can legally choose not to hire you based on an accurate criminal record, provided their policy does not disproportionately discriminate against protected classes under Title VII guidelines (42 U.S.C. § 2000e et seq.).
Does a background check include my credit history in Delaware?
It can. Under 19 Del. C. § 711(h), Delaware law restricts only public (state and local government) employers from inquiring into credit history on initial applications prior to the completion of the first interview. Delaware has no state law barring private employers from running employment credit checks for general positions, provided the employer complies with federal FCRA disclosure, authorization, and adverse-action requirements.
What happens if the employer didn't get my signature first?
If an employer runs a professional background check through a third-party consumer reporting agency without having you sign a standalone authorization form, they have committed a serious violation of the FCRA and can be sued in federal court.
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