Delaware Background Check Laws: Employer Rules, FCRA, and Disqualifiers

Delaware’s background check laws work in three layers: state statutes mandate fingerprint-based criminal checks for jobs involving children, healthcare, and certain state roles; a Ban the Box law restricts when public employers can ask about criminal or credit history; and the federal Fair Credit Reporting Act governs every employer, public or private, that uses a third-party screening company. The public-versus-private distinction is where most employers go wrong, because Delaware’s hiring restrictions apply almost entirely to state and local government agencies, not to private businesses.

Which Employers Are Required to Run Background Checks

Delaware does not require every employer to screen applicants. The mandate applies to specific categories of work involving people who can’t easily protect themselves.

Any organization that serves children must obtain both a fingerprint-based criminal history check through the State Bureau of Identification and the FBI, and a separate Child Protection Registry check through the Department of Services for Children, Youth and Their Families.¹ This covers licensed childcare facilities, schools, foster care agencies, and similar organizations, and it reaches employees, volunteers, and contractors alike.

Home health agencies, hospice providers, and personal assistance services agencies must run fingerprint-based state and federal criminal history checks on prospective employees before offering even conditional employment.² The same applies to Department of Health and Social Services employees and contractors who visit children in their homes or have regular direct access to minors.³

Outside those categories, screening is optional. A retail store, an office, or a general contractor can decide whether to check applicants at all. If they do, and they use an outside company to pull the report, they fall under the FCRA.

How the Fingerprint Check Works

All Delaware-mandated background checks run through the State Bureau of Identification, part of the Delaware State Police. Applicants provide fingerprints at an SBI location, and SBI runs those prints against both Delaware’s records and the FBI’s national database.² The dual-level check catches out-of-state convictions that a Delaware-only search would miss.

SBI operates fingerprinting locations in all three counties. A photo ID is required; a Social Security card or birth certificate is not. The current fee is $52.50 for a Delaware-only check and $69.00 for a combined state and federal check. SBI takes cash, credit and debit cards, bank checks, money orders, and company checks payable to Delaware State Police, but not personal checks.

Employers in mandated industries can extend a conditional offer to someone who has been fingerprinted while the results are pending.³ If the results come back with a disqualifying conviction, the employee must be terminated immediately.

Ban the Box Applies Only to Public Employers

Delaware enacted Ban the Box in 2014, and the coverage limit is the point most often missed: the law binds public employers only. Private employers in Delaware are not covered.⁴ The statute encourages state vendors and contractors to adopt similar practices, but encouragement is not a requirement.

A public employer cannot ask about or consider an applicant’s criminal record, criminal history, credit history, or credit score during the initial application process, up through and including the first interview. After the first interview, if the applicant is otherwise qualified, the public employer may inquire.⁴

Even then, disqualification based on a conviction has to be job-related and consistent with business necessity. The employer weighs three factors: the nature and gravity of the offense, the time elapsed since the conviction or completion of sentence, and the connection between the offense and the position’s duties.

Several public-sector positions are exempt entirely, including state, county, and municipal police forces, the Department of Correction, the Department of Justice, the Office of Defense Services, the courts, and any role where federal or state law specifically requires or permits criminal history review.⁴

What Private Employers Can Do

Private employers in Delaware have considerably more latitude. No state statute broadly prohibits them from asking about criminal history on job applications or from considering convictions at any stage. Delaware also has no general law barring private employers from considering arrest records that did not lead to conviction, though federal EEOC guidance discourages the practice.

One practical limit exists anyway. SBI furnishes only conviction data to employers for employment purposes, so a criminal history report ordered through SBI focuses on convictions rather than arrests. Private employers who use a third-party screening company are also bound by the FCRA. And when a report turns up criminal history, EEOC enforcement guidance recommends evaluating convictions using the same nature, time, and job-relevance factors Delaware requires of public employers. Following that framework isn’t legally mandated for private employers here, but it reduces exposure to a Title VII discrimination claim.

FCRA Rules for Any Employer Using a Screening Company

Any Delaware employer, public or private, that uses a third-party consumer reporting agency to run a background check must comply with the Fair Credit Reporting Act. This covers criminal history reports, credit reports, and employment verification reports.⁵

Before ordering the report, the employer has to give the applicant a standalone written disclosure stating that a consumer report may be obtained for employment purposes. That document can contain nothing else beyond the notice and the applicant’s written authorization. Burying the disclosure inside a longer document, or combining it with a liability waiver, violates the statute.⁵

If something in the report might cause the employer to reject the applicant, a two-step adverse action process kicks in. First, before any final decision, the employer sends a pre-adverse action notice with a copy of the report and a written summary of the applicant’s rights under the FCRA.⁶ The point is to let the applicant review the report and dispute errors before the employer acts.

After a reasonable waiting period, if the employer still intends to reject the applicant, a second notice goes out. This post-adverse action notice must name the consumer reporting agency and give its contact information, state that the agency did not make the hiring decision, and tell the applicant they can get a free copy of the report within 60 days and dispute anything inaccurate.⁶ The required summary of rights is a standardized document prescribed by the Consumer Financial Protection Bureau.⁷ Skipping either step is one of the most common FCRA violations and a frequent basis for lawsuits.

Credit History

The rules on credit checks track the Ban the Box structure: they bind public employers only. A public employer cannot consider an applicant’s credit history or credit score during the initial application process or before the first interview.⁴ After the first interview, a public employer may review credit information but must tie any disqualification to job-relatedness and business necessity.

Private employers face no Delaware-specific restriction on credit checks. They may pull credit at any point in the hiring process, provided they follow the FCRA’s consent and adverse-action requirements.⁵

Automatic Disqualifiers in Regulated Industries

Child-Serving Entities and Schools

For any organization that serves children, including schools and school board members, certain convictions are automatic disqualifiers with fixed prohibition periods:

Felony assault or sexual crimes against a child, impaired adult, or elderly person carry a lifetime prohibition.
Felony assault or sexual crimes against another adult carry a 10-year prohibition from the date of conviction.
Other violent felonies carry a 7-year prohibition from the date of conviction.

These timeframes are not subject to employer discretion. A child-serving entity that knowingly employs someone with a disqualifying conviction faces regulatory consequences.¹ Schools may conditionally hire while results are pending but must terminate immediately if a disqualifying offense turns up.

Healthcare and Long-Term Care

Home health agencies, hospice providers, and personal assistance services agencies must fingerprint employees before any direct contact with patients or clients. The statute is written broadly to protect anyone receiving in-home care.²

Long-term care facilities carry an added federal restriction: no facility may employ someone convicted within the past 15 years of abusing, neglecting, or mistreating a facility resident or an impaired adult. Delaware’s Department of Health and Social Services has adopted EEOC guidance on evaluating criminal history for these positions, so convictions get assessed against the specific job duties rather than applied as blanket bars.

Expunged Records

Delaware expungements are meaningful. Once a record is expunged, all law enforcement and court records related to the case are destroyed, segregated, or sealed with SBI, and agencies must respond to any non-law-enforcement request by stating no record exists.⁸

A person whose record has been expunged is not required to disclose the arrest, charge, or conviction for any purpose. An employer who asks about expunged records is asking a question the applicant has no obligation to answer, because the statute says the person should not be asked to disclose it.⁸

Not every conviction qualifies. Delaware distinguishes mandatory expungement (dismissed cases, certain minor violations after three years) from discretionary expungement (misdemeanors and some felonies, subject to court approval). Several offenses are permanently ineligible, including incest, certain unlawful sexual contact offenses, and unlawfully dealing with a child. A person currently serving a sentence, on parole, or on probation cannot seek expungement, and all fines and restitution must be paid in full.⁸ For hiring purposes, an expunged record will not appear on an SBI background check.

Where Employers Get Into Trouble

The single biggest compliance error in Delaware is treating Ban the Box as though it applied to all employers. Private employers who delay criminal history questions because they think the law requires it are not violating anything, but they may also be overlooking the rules that do apply to them, particularly the FCRA’s technical consent and notice requirements.

Botching the FCRA adverse action process is the second most common problem. Employers frequently send a rejection letter without first providing the pre-adverse action notice with the report and summary of rights attached. Combining the two notices, or skipping the waiting period between them, exposes the employer to statutory damages under the FCRA.

In regulated industries, a different risk applies: letting an employee keep working after a disqualifying conviction surfaces. Delaware’s child-serving and healthcare statutes leave no discretion on this point. A disqualifying conviction means the person cannot hold the position, regardless of performance or length of service, and the employer has no authority to waive the prohibition.

1
Justia Law. Delaware Code Title 31 Section 309 – Background Checks for Child-Serving Entities and Other Organizations
2
Delaware Code Online. Delaware Code Title 16 Section 1145 – Criminal Background Checks
3
Delaware Code Online. Delaware Code Title 29 Section 7998-7999 – Background Checks for Employees, Contractors, and Volunteers
4
Delaware General Assembly. Delaware Session Law 79-227 – House Bill 167
5
Office of the Law Revision Counsel. 15 USC 1681b – Permissible Purposes of Consumer Reports
6
Federal Trade Commission. Using Consumer Reports: What Employers Need to Know
7
Consumer Financial Protection Bureau. A Summary of Your Rights Under the Fair Credit Reporting Act
8
Delaware Code Online. Delaware Code Title 11 – Expungement of Criminal Records