Chapter 9. Minimum Wage
TITLE 19
Labor
General Provisions
CHAPTER 9. MINIMUM WAGE
§ 901. Definition of terms.
As used in this chapter:
(1) "Department" means the Department of Labor or its authorized representatives.
(2) "Employ" means to suffer or permit to work.
(3) "Employee" includes any individual employed by an employer but shall not include:
a. Any individual employed in agriculture;
b. Any individual employed in domestic service in or about a private home;
c. Any individual employed in a bona fide executive, administrative or professional capacity, or as an outside commission paid salesperson, not route driver, who customarily performs services away from the individual's employer's premises taking orders for goods or services;
d. Any individual employed by the United States;
e. Any individual engaged in the activities of an educational, charitable, religious or nonprofit organization where the employment relationship does not in fact exist or where the services are rendered to such organization gratuitously;
f. Any individual employed in the catching, taking, propagating, harvesting, cultivating or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds or other aquatic forms of animal and vegetable life, or in the first processing, canning or packing such marine products at sea as an incident to or in conjunction with such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee;
g. Any individual under the age of 18 participating in and employed as a junior counselor or counselor in training (CIT) by a nonprofit organization in a summer camp program.
h. Any inmate in the custody of the Department of Correction and any inmate on work release who participates in the Prison Industries programs or other programs sponsored for inmates by the Department of Correction pursuant to Chapter 65 of Title 11 or other applicable Delaware law, unless said inmate is employed by an employer other than the State or a political subdivision thereof.
(4) "Employer" includes any individual, partnership, association, corporation, statutory trust, business trust or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee.
(5) "Gratuities" means voluntary monetary contributions received by an employee from a guest, patron or customer for services rendered.
(6) "Occupation" means any occupation, service, trade, business, industry or branch or group of industries or employment or class of employment in which employees are gainfully employed.
(7) "Wage" means compensation due to an employee by reason of the employee's employment, payable in legal tender of the United States or check or bank convertible into cash on demand at full face value, subject to such deductions, charges or allowances as may be permitted by the regulations of the Department under this chapter.
19 Del. C. 1953, § 901; 55 Del. Laws, c. 18, § 1; 57 Del. Laws, c. 669, § 10; 66 Del. Laws, c. 75, § 1; 70 Del. Laws, c. 15, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 329, § 65.;
§ 902. Minimum wage rate. [For current federal minimum wage, see 29 U.S.C. § 206(a)(1)(A)]
(a) Every employer shall pay wages of a rate of not less than $6.15 per hour through December 31, 2006, and $6.65 per hour effective January 1, 2007, and $7.15 per hour effective January 1, 2008, to every employee in any occupation, except as may be otherwise provided under this chapter. Upon the establishment of a federal minimum wage in excess of the State minimum wage, the minimum wage in this State shall be equal in amount to the federal minimum wage, except as may otherwise be provided under this chapter.
Please Note: Due to the increase in the Federal minimum wage, wages of not less than $7.15 per hour shall be paid through July 23, 2009 and $7.25 per hour effective July 24, 2009.
(b) Gratuities received by employees engaged in occupations in which gratuities customarily constitute part of the remuneration may be considered wages for purposes of this chapter in an amount equal to the tip credit percentage, as set by the federal government as of June 15, 2006, of the minimum rate as set forth in subsection (a) of this section. In no event shall the minimum rate, under this subsection, be less than $2.23 per hour.
(c) For purposes of this section:
(1) An employee engaged in an occupation in which gratuities customarily constitute part of the remuneration shall be any worker engaged in an occupation in which workers customarily and regularly receive more than $30 per month in tips or gratuities.
(2) "Gratuities" means monetary contributions received directly or indirectly by an employee from a guest, patron or customer for services rendered where the customer is entirely free to determine whether to make any payment at all and, if so, the amount.
(3) A "primary direct service employee" is one who in a given situation performs the main direct service for a customer and is to be considered the recipient of the gratuity.
(4) A "service charge" is an obligatory sum of money included in the statement of charges. Clear and conspicuous notice must be made on either the menu, placard, the front of the statement of charges or other notice given to the customer indicating that all or part of the service charge is the property of the management. Such notice must be clearly printed, stamped or written in bold type. A service charge assessed to customers, patrons or guests without such notice is the property of the primary direct service employee(s). For the purposes of this section, type which is at least 18 point (one-fourth inch) on the placard, or 10 point (one-eighth inch) or larger on all other notices shall be considered clear and conspicuous.
(d)(1) Any gratuity received by an employee, indicated on any receipt as a gratuity, or deposited in or about a place of business for direct services rendered by an employee is the sole property of the primary direct service employee and may not be taken or retained by the employer except as required by state or federal law.
(2) Employees may establish a system for the sharing or pooling of gratuities among direct service employees, provided that the employer shall not in any fashion require or coerce employees to agree upon such a system. Where more than 1 direct service employee provides personal service to the same customer from whom gratuities are received, the employer may require that such employees establish a tip pooling or sharing system not to exceed 15% of the primary direct service employee's gratuities. The employer shall not, under any circumstances, receive any portion of the gratuities received by the employees.
(3) The Department may require the employer to pay restitution if the employer diverts any gratuities of its employees in the amount of the gratuities diverted. If the records maintained by the employer do not provide sufficient information to determine the exact amount of gratuities diverted, the Department may make a determination of gratuities diverted based on available evidence.
19 Del. C. 1953, § 902; 55 Del. Laws, c. 18, § 1; 56 Del. Laws, c. 134, § 1; 56 Del. Laws, c. 339; 57 Del. Laws, c. 691; 59 Del. Laws, c. 470, § 1; 64 Del. Laws, c. 84, § 1; 65 Del. Laws, c. 436, § 1; 66 Del. Laws, c. 28, § 1; 67 Del. Laws, c. 141, §§ 1, 3, 4; 70 Del. Laws, c. 319, §§ 1, 2; 72 Del. Laws, c. 16, § 1; 75 Del. Laws, c. 314, § 1.;
§ 903. Powers of the Department.
(a) The Department shall administer and enforce this chapter.
(b) Upon ex parte application of the Department showing reasonable ground to believe that this chapter or any regulation published thereunder has been or is being violated, the Superior Court shall enter an order permitting the Department to:
(1) Enter and inspect, after 1 day's notice to the employer, the premises or place of business or employment and upon demand examine and copy wholly or partly any or all books, registers, payrolls and other records that in any way relate to or have a bearing upon the question of wages, hours and other conditions of employment of any employee, including those required to be made, kept and preserved under this chapter or any regulation published thereunder;
(2) Question any employer, employee or other person in the premises or place of business or employment;
(3) Require from any employer full and correct statements in writing, including sworn statements, upon forms prescribed or approved by the Department, with respect to the payment of wages, hours, names, addresses and such other information pertaining to employees as the Department may deem necessary or appropriate;
(4) Investigate such facts, conditions or matters as the Department may deem necessary or appropriate to determine whether this chapter or any regulation published thereunder has been or is being violated;
(5) Hold hearings, administer oaths and examine witnesses under oath, issue subpoenas, compel the attendance of witnesses and the production of papers, books, accounts, records, payrolls, documents and testimony and to take depositions and affidavits in any proceeding before it, and, in case of failure of any person to comply with any subpoena lawfully issued or on the refusal of any witness to testify to any matters regarding which the witness may be lawfully interrogated, the Superior Court, on application by the Department, shall compel obedience as in the case of disobedience of the requirements of a subpoena issued from such Court or a refusal to testify therein.
(c) The Department may institute actions in the Superior Court for penalties for any violation of this chapter or any regulation published thereunder.
(d) Nothing contained in this chapter shall be deemed a limitation on any power or authority of the Department under any other law of this State which may be otherwise applicable to administer or enforce this chapter.
19 Del. C. 1953, § 903; 55 Del. Laws, c. 18, § 1; 70 Del. Laws, c. 186, § 1.;
§ 904. Regulations.
(a) The Department, for any occupation, shall have the power to make and revise or rescind such regulations, including the definition of terms, as it may deem necessary or appropriate to preserve or safeguard the minimum wage rate under this chapter, except that prior thereto the Department shall hold public hearing upon reasonable notice at which any person may be heard and shall consult with the members of an advisory board representing the interests of employers, employees and the public in equal numbers totaling not more than 9 in all. The members of the board shall serve at the pleasure of the Department and may be paid by it as compensation for their services a reasonable per diem, in accordance with such regulations as it may prescribe, for each day on which they attend a meeting of the board or for each day they spend in the work of the board and may in addition be reimbursed for their necessary and reasonable traveling expenses. Such regulations may include, but are not limited to: Regulations defining and governing outside salesperson, learners and apprentices, their number, proportion and length of service, part-time pay, bonuses, overtime pay, special pay for special or extra work, permitted charges to employees or allowances for board, lodging, apparel or other facilities or services customarily furnished by employers to employees, allowances for gratuities or allowances for such other special conditions or circumstances which may be usual in a particular employment relationship. Such regulations shall, except as may be otherwise provided by the Department, take effect upon publication.
(b) The Department shall have the power to make and revise or rescind such regulations as it may deem necessary or appropriate to administer or enforce this chapter, and such regulations shall, except as may be otherwise provided by the Department, take effect upon publication.
19 Del. C. 1953, § 904; 55 Del. Laws, c. 18, § 1; 70 Del. Laws, c. 186, § 1.;
§ 905. Wage rate for handicapped workers.
For any occupation, the Department may provide by regulations, after public hearing, upon reasonable notice, at which any person may be heard, for the employment of individuals whose earning capacity is impaired by age or physical or mental deficiency or injury at such wages lower than the minimum wage rate under this chapter as the Department may deem necessary or appropriate to avoid hardship or prevent curtailment of opportunities for employment. No employee shall be employed at wages fixed pursuant to this section except under special license issued under the applicable regulations of the Department. Such regulations shall, except as may be otherwise provided by the Department, take effect upon publication.
19 Del. C. 1953, § 905; 55 Del. Laws, c. 18, § 1.;
§ 906. Wage rate for learners and apprentices.
For any occupation, the Department may provide by regulations, after public hearing, upon reasonable notice, at which any person may be heard, for the employment of learners and apprentices at such wages lower than the minimum rate under this chapter as the Department may deem necessary or appropriate to prevent curtailment of opportunities for employment. No employee shall be employed at wages fixed pursuant to this section except under applicable regulations of the Department. Such regulations shall, except as may be otherwise provided by the Department, take effect upon publication.
19 Del. C. 1953, § 906; 55 Del. Laws, c. 18, § 1; 67 Del. Laws, c. 141, §§ 2, 5; 69 Del. Laws, c. 334, § 1.;
§ 907. Records of employers.
Every employer shall make, keep and preserve for a period of not less than 3 years, in or about the premises or place of business or employment, a record of the name, address and occupation of each employee, the rate of pay and the amount paid each pay period to each employee, the hours worked each day and each work week by each employee and such other information or records as the Department shall deem by regulation to be necessary or appropriate to administer or enforce this chapter.
19 Del. C. 1953, § 907; 55 Del. Laws, c. 18, § 1.;
§ 908. Posting of laws and regulations.
Every employer shall keep a summary of this chapter, approved by the Department, and of any applicable regulations published thereunder or a summary thereof, approved by the Department, posted in a conspicuous and accessible location in or about the premises or place of employment and where employees normally pass. Employers shall be furnished copies thereof by the Department on request without charge.
19 Del. C. 1953, § 908; 55 Del. Laws, c. 18, § 1.;
§ 909. Judicial review.
(a) Any interested person in any occupation for which any regulation has been published under this chapter, who has been or may be aggrieved thereby, may obtain a review thereof in the Superior Court by filing in such Court, within 20 days after notice that such regulation will affect the interested person's business operations or employment conditions or compensation, a petition against the Department as defendant praying that the regulation be modified or revoked. Two copies of the petition shall be served upon the Department by registered mail. Facts determined by the Department, if supported by evidence, shall be conclusive upon the Court. The Court shall determine whether the person has been or may be aggrieved and whether the regulation is in accordance with law. If the Court determines that the person has been or may be aggrieved and that the regulation is not in accordance with law, it shall remand the case to the Department with directions to modify or revoke the regulation.
(b) Proceedings in the Superior Court upon review taken under this section shall be privileged and take precedence over all matters, except matters of the same character. The jurisdiction of the Court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court at the instance of either party.
(c) The commencement of proceedings under this section shall not, unless specifically ordered by the Superior Court, operate as a stay of any regulation published under this chapter. The Court shall not grant any stay of any regulation unless the person aggrieved shall file in the Court an undertaking with a surety or sureties satisfactory to the Court for the payment to the employees affected by the regulation, in the event it is affirmed, of the amount by which the compensation the employees are entitled to receive under the regulation exceeds the compensation they actually receive while the stay is in effect.
19 Del. C. 1953, § 909; 55 Del. Laws, c. 18, § 1; 70 Del. Laws, c. 186, § 1.;
§ 910. Penalties.
(a) Any employer who hinders or delays the Department in the performance of its duties or refuses to admit the Department to the premises or place of business or employment in violation of any court order, or fails to make, keep and preserve any books, registers, payrolls or other records or falsifies the same, or refuses to make the same accessible to the Department, or refuses to furnish a sworn statement of the same or any other information, or fails to post a summary of this chapter or of any applicable regulations published thereunder or summary thereof, or pays or agrees to pay wages at a rate less than the rate applicable, or otherwise violates this chapter or any regulation published thereunder shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each such violation.
(b) Any employer who discharges or who in any manner discriminates against any employee because that employee made a complaint or gave information to the Department pursuant to this chapter, or caused or is about to cause any proceedings to be instituted under this chapter, or has testified or is about to testify in any such proceedings shall be deemed in violation of this chapter and shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each such violation.
(c) A civil penalty claim may be filed in any court of competent jurisdiction.
19 Del. C. 1953, § 910; 55 Del. Laws, c. 18, § 1; 67 Del. Laws, c. 260, § 1; 69 Del. Laws, c. 294, §§ 12, 13.;
§ 911. Remedies of employees.
(a) Any employer who pays any employee less than the full amount of the wages to which the employee is entitled under this chapter shall be liable to such employee in a civil action for the full amount of such wages less any amount actually paid to such employee by the employer and for the costs of the action, necessary expenses of prosecution and reasonable attorney's fees. Any agreement between such employee and the employer to work for less than the minimum wage rate under this chapter shall be no defense to such action.
(b) Whenever the Department believes that wages, as required under this chapter, have not been paid, the Department may bring any legal action necessary to collect such claim. The Department shall attempt to notify affected employees of its action. Should the Department prevail the employer shall also be liable to pay the costs of the action, necessary expenses of prosecution and reasonable attorney's fees. All expenses and attorney's fees collected by the Department shall be remitted by the Department to the State Treasurer. Any wages collected pursuant to this subsection but not claimed by the employee entitled thereto within 1 year from the date of collection shall be remitted by the Department to the State Treasurer.
19 Del. C. 1953, § 911; 55 Del. Laws, c. 18, § 1; 65 Del. Laws, c. 369, § 1; 70 Del. Laws, c. 186, § 1.;
§ 912. Relation to other laws.
Any standards relating to minimum wages, maximum hours, overtime compensation or other working conditions in effect under any other law of this State on the effective date of this chapter which are more favorable to employees than those applicable to such employees under this chapter or regulations published thereunder shall not be deemed to be amended, rescinded or otherwise affected by this chapter but shall continue in full force and effect and may be enforced as provided by law. Otherwise, any such standards in effect under any other law of this State on the effective date of this chapter are specifically superseded by standards established under this chapter or regulations published thereunder which are more favorable to such employees.
19 Del. C. 1953, § 912; 55 Del. Laws, c. 18, § 1.;
§ 913. Right of collective bargaining.
Nothing in this chapter shall be deemed to interfere with, impede or in any way diminish the right of employees to bargain collectively with their employers through representatives of their own choosing in order to establish wages or other conditions of work in excess of the minimum wage rate under this chapter.
19 Del. C. 1953, § 913; 55 Del. Laws, c. 18, § 1.;
§ 914. Short title.
This chapter shall be known as the "Minimum Wage Act of the State."
19 Del. C. 1953, § 914; 55 Del. Laws, c. 18, § 1.;