Delaware employers who run background checks are working under two sets of rules at the same time. Federal law sets the floor for how any employer in the country orders and uses a consumer report, and Delaware law adds its own limits on when a public employer can ask about criminal history, what happens to a record once it is expunged, and how certain licensed occupations are screened. This guide walks through both layers so an employer can see where Delaware goes further than federal law and where it stays silent.
This article is written for employers and hiring managers, not job applicants, and it does not cover every municipal ordinance or industry specific rule that might also apply to a given position.
The federal baseline every Delaware employer still has to meet
Any employer that orders a background check through a consumer reporting agency, including Reveal Background, is covered by the federal Fair Credit Reporting Act regardless of what state it operates in. The statute requires a clear, standalone written disclosure to the applicant that a report may be obtained, separate from the job application itself, and the applicant’s written authorization before the report is pulled. Before taking an adverse action based on the report, the employer has to give the applicant a pre adverse action notice with a copy of the report and a copy of the Summary of Rights, then a real opportunity to respond before the final decision. These steps are set out in 15 U.S.C. 1681b, which also limits the permissible purposes for pulling a report in the first place.
The FCRA also limits how far back certain information can be reported. Under 15 U.S.C. 1681c, civil suits, civil judgments, arrest records, and other adverse items that did not result in a conviction generally cannot be reported after seven years, and that cap does not apply to criminal convictions. Delaware does not have a separate statute that shortens this federal lookback period for private employer background reports, so the seven year rule for nonconviction information applies to Delaware the same way it applies nationally. What Delaware does add is a set of rules about when a public employer can ask about criminal history and what happens once a record is expunged, both covered below.
Delaware’s ban the box rule applies to public employers
Delaware’s ban the box protection is narrower than some states because it applies to public employers rather than every private business. Under 19 Del. C. section 711, it is an unlawful employment practice for a public employer to inquire into or consider an applicant’s criminal record, criminal history, credit history, or credit score during the initial application process, up to and including the first interview. Once the first interview is complete, a public employer may inquire into or consider that history, and it may disqualify an applicant on that basis only where the exclusion is job related for the position and consistent with business necessity, weighing the nature of the offense, the time that has passed, and the nature of the job sought. The statute carves out state, county, and municipal police forces, the Department of Correction, the Department of Justice, the Office of Defense Services, the courts, and any position where a federal or state statute requires or expressly permits consideration of criminal history.
Delaware has not extended that same initial application restriction to private employers by statute, so a private employer in the state is not barred by state law from asking about criminal history on an application. A private employer that wants to limit early stage criminal history questions as a matter of policy may still do so, but it is not required by Delaware law the way it is for a public employer.
Expungement and the Clean Slate process
Delaware’s expungement subchapter, found at 11 Del. C. sections 4371 through 4378, states that a criminal history can be a hindrance to a person’s ability to obtain employment, housing, education, or credit, and sets up a process to protect people from damage that can occur when a record exists indefinitely. Once a court or the State Bureau of Identification grants an expungement, the law treats the underlying case as if it did not happen for most purposes: the person generally does not have to disclose it, and law enforcement agencies and courts that receive a records request are required to respond that there is no record.
The subchapter sets out both a discretionary path through the courts and a mandatory path that a person can pursue directly through the State Bureau of Identification for specific categories, such as a case that ended in favor of the accused, certain lower level convictions after enough time has passed, or specified drug possession and underage alcohol offenses. A list of serious and violent offenses, offenses involving a child or vulnerable adult victim, and certain repeat convictions are excluded from mandatory expungement. Because eligibility depends on offense type, disposition, and how much time has passed, an employer that is relying on a background report should treat the presence or absence of a record as reflecting the state of the State Bureau of Identification’s files, not a promise that every past charge will or will not appear.
Criminal history checks through the State Bureau of Identification
Delaware’s central criminal history repository is maintained by the State Bureau of Identification, a division of the Delaware State Police, which is also the agency responsible for executing expungement orders and processing fingerprint based criminal history requests for employers and licensing bodies that require them. Employers in fields that call for a state or FBI fingerprint check, rather than or in addition to a private consumer report, should confirm the current submission process directly through the State Bureau of Identification rather than assuming a standard commercial background check covers the same ground.
Licensing boards and occupational screening
Many of Delaware’s occupational licenses, from healthcare boards to cosmetology and real estate, are administered through the Division of Professional Regulation under the authority set out in 29 Del. C. section 8735, which lists the individual boards the division oversees and governs how complaints against licensees are investigated. The specific fingerprinting or criminal history requirement for an applicant, and whether a particular conviction can bar licensure, depends on the chapter of Title 24 that creates that board rather than on a single statewide rule, so an employer hiring into a licensed role should confirm the current requirement with the Division of Professional Regulation or the specific board rather than assuming every license is screened the same way.
Drug testing
Delaware does not have a general statute setting out comprehensive rules for private sector pre employment or random drug testing comparable to the ban the box or expungement statutes discussed above. Employers that are subject to federal testing programs, such as those regulated by the Department of Transportation, still have to follow those federal rules regardless of state law. Where Delaware law is silent, an employer should not read that silence as permission to ignore federal testing or disability law requirements, and a positive test result should always be handled through the standard verification and medical review officer process rather than through any informal judgment call.
What the EEOC says about criminal history and discrimination
The Equal Employment Opportunity Commission enforces Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex, or national origin, including the way an employer uses criminal history in a way that disproportionately screens out a protected group without a job related, consistent business justification. The agency’s 2012 enforcement guidance on arrest and conviction records has been rescinded, so employers should rely on the agency’s current published materials rather than that older document. The EEOC’s current guidance on background checks is published at eeoc.gov, and the agency’s overview of Title VII itself is available at eeoc.gov. Employers should treat any criminal history based screening decision as one to apply consistently and document carefully, not as an automatic disqualifier.
Delaware rules at a glance
| Topic | Delaware rule |
|---|---|
| Ban the box scope | Applies to public employers only, through the first interview, under 19 Del. C. section 711 |
| Federal nonconviction lookback | Seven years under 15 U.S.C. 1681c, no shorter state lookback statute |
| Expungement or sealing | Court and State Bureau of Identification process under 11 Del. C. sections 4371 through 4378, eligibility varies by offense and disposition |
| Private sector drug testing | No general statewide statute, federal testing rules apply where federally required |
| Licensing board checks | Set board by board under Title 24 through the Division of Professional Regulation, 29 Del. C. section 8735 |
Frequently asked questions
Does Delaware have a ban the box law for employers?
Yes, but it applies only to public employers. Under 19 Del. C. section 711, a public employer cannot ask about criminal, credit, or credit score history until after the first interview, with carve outs for law enforcement, corrections, and similar positions.
Can a Delaware employer ask about an expunged record?
Generally no. Once a record is expunged under Delaware’s expungement subchapter, the person is not required to disclose it, and courts and law enforcement agencies are required to respond to a records request by saying there is no record.
How far back can a Delaware background check report criminal history?
Federal law generally limits reporting of nonconviction items such as arrests to seven years under 15 U.S.C. 1681c. Convictions are not subject to that federal cap, and Delaware has not enacted a separate statute shortening that lookback for private employer reports.
Does Delaware require fingerprint based checks for certain jobs?
For many licensed occupations and positions that involve children or vulnerable adults, yes, through the State Bureau of Identification or a specific licensing board rather than a standard commercial search alone.
Is private employer drug testing regulated by Delaware statute?
Delaware does not have a comprehensive general statute governing private sector drug testing. Employers subject to federal testing rules still have to follow those rules regardless of state law.
What federal steps must a Delaware employer follow before and after a background check?
A standalone written disclosure, the applicant’s written authorization, and, if the employer may take an adverse action, a pre adverse action notice with a copy of the report and Summary of Rights followed by a final adverse action notice, all under the Fair Credit Reporting Act.
Employers building a Delaware hiring process from the ground up can review the general employee background check process and compliance steps for the federal disclosure and adverse action sequence that applies in every state, then layer the Delaware specific rules above on top of it. Reveal Background’s own screening services are described at revealbackground.com.
This article is general information, not legal advice. Employers with a specific hiring, licensing, or expungement question should talk to Delaware counsel.
