Chapter 11. Wage Payment and Collection
TITLE 19
Labor
General Provisions
CHAPTER 11. WAGE PAYMENT AND COLLECTION
§ 1101. Definition of terms.
(a) As used in this chapter:
(1) "Check" means a draft drawn on a bank and payable on demand.
(2) "Department" means the Department of Labor or its authorized representatives.
(3) "Employee" means any person suffered or permitted to work by an employer under a contract of employment either made in Delaware or to be performed wholly or partly therein. This chapter does not apply to employees of the United States government, the State of Delaware or any political subdivision thereof.
(4) "Employer" means any individual, partnership, association, joint stock company, trust, corporation, the administrator or executor of the estate of a deceased individual or the receiver, trustee or successor of any of the same employing any person. This chapter does not apply to employees of the United States government, the State of Delaware or any political subdivision thereof.
(5) "Wages" means compensation for labor or services rendered by an employee, whether the amount is fixed or determined on a time, task, piece, commission or other basis of calculation.
(b) For the purpose of this chapter the officers of a corporation and any agents having the management thereof who knowingly permit the corporation to violate this chapter shall be deemed to be the employers of the employees of the corporation.
19 Del. C. 1953, § 1101; 55 Del. Laws, c. 19, § 1; 57 Del. Laws, c. 669, § 11; 70 Del. Laws, c. 103, § 1.;
§ 1102. Payment of wages on regular paydays.
(a) Every employer shall pay all wages due to the employer's employees on regular paydays designated in advance by the employer, which shall be at least once during each calendar month, and in lawful money of the United States or checks provided suitable arrangements are made by the employer for cashing such checks for the full amount of the wages due at a bank or other business establishment convenient to the place of employment. But upon written request of an employee, an employer may pay such employee all wages due by credit to a bank account designated by the employee.
(b) Every employer shall pay all wages due within 7 days from the close of the pay period in which the wages were earned; provided, that if the regular payday falls on a nonwork day, payment shall be made on the preceding workday. If, however, the regular payday is within the pay period (on or before the final day of the pay period) and the pay period does not exceed 16 days, the employer may delay until the next pay period compensation for the following:
(1) Overtime hours worked by employees;
(2) Employees hired or resuming employment during the pay period; and
(3) Part-time or temporary employees with variable working time.
(c) If an employee is for any reason not present on the regular payday, payment shall be made either by mail if requested by the employee or at the next regular workday that the employee is present or by the credit to the bank account designated by the employee.
19 Del. C. 1953, § 1102; 55 Del. Laws, c. 19, § 1; 57 Del. Laws, c. 152, §§ 1, 2; 68 Del. Laws, c. 217, § 1; 70 Del. Laws, c. 103, §§ 2, 3; 70 Del. Laws, c. 186, § 1.;
§ 1103. Employees separated from the payroll before regular paydays.
(a) Whenever an employee quits, resigns, is discharged, suspended or laid off, the wages earned by the employee shall become due and payable by the employer on the next regularly scheduled payday(s) either through the usual pay channels or by mail, if requested by the employee, as if the employment had not been suspended or terminated.
(b) If an employer, without any reasonable grounds for dispute, fails to pay an employee wages, as required under this chapter, the employer shall, in addition, be liable to the employee for liquidated damages in the amount of 10 percent of the unpaid wages for each day, except Sunday and legal holidays, upon which such failure continues after the day upon which payment is required or in an amount equal to the unpaid wages, whichever is smaller, except that, for the purpose of such liquidated damages, such failure to pay shall not be deemed to continue after the date of the filing of a petition of bankruptcy with respect to the employer if the employer is adjudicated bankrupt thereupon. An employer who is unable to prepare the payroll due to a labor dispute, power failure, blizzard or like weather catastrophe, epidemic, fire or explosion shall not be deemed to have violated this chapter.
19 Del. C. 1953, § 1103; 55 Del. Laws, c. 19, § 1; 57 Del. Laws, c. 152, § 3; 64 Del. Laws, c. 226, § 1; 70 Del. Laws, c. 186, § 1.;
§ 1104. Unconditional payment of wages conceded to be due.
(a) In case of a dispute over the amount of wages, the employer shall pay without condition and within the time set by this chapter all wages or parts thereof conceded by the employer to be due, leaving to the employee all remedies the employee might otherwise be entitled to, including those provided under this chapter, as to any balance claimed.
(b) The acceptance by an employee of a payment under this section shall not constitute a release as to the balance of the employee's claim and any release required or obtained by an employer as a condition to payment shall be in violation of this chapter and shall be null and void.
19 Del. C. 1953, § 1104; 55 Del. Laws, c. 19, § 1; 70 Del. Laws, c. 186, § 1.;
§ 1105. Prime contractor's responsibility for wage payments.
Whenever any person shall contract with another for the performance of any work which the contracting person has undertaken to perform, the person shall become civilly liable to employees engaged in the performance of work under such contract for the payment of wages, exclusive of liquidated damages, as required under this chapter, whenever and to the extent that the employer of such employees fails to pay such wages, and the employer of such employees shall be liable to such person for any wages paid by the employer under this section.
19 Del. C. 1953, § 1105; 55 Del. Laws, c. 19, § 1; 70 Del. Laws, c. 186, § 1.;
§ 1106. Deceased employees.
(a) In the event of the death of an employee the wages due the employee by an employer not in excess of $300 may, upon proper demand, be paid in the absence of actual notice of the pendency of probate proceedings without requiring letters testamentary or of administration in the following order of preference to decedent's:
(1) Surviving children under 21 years of age, to the parent, guardian or other person having custody of such child, in equal shares;
(2) Surviving spouse;
(3) Surviving children 21 years of age and over, in equal shares;
(4) Parents, in equal shares or survivor.
(b) Payments under this section shall be a release and discharge of the employer to the amount of such payment.
19 Del. C. 1953, § 1106; 55 Del. Laws, c. 19, § 1; 70 Del. Laws, c. 186, § 1.;
§ 1107. Withholding of wages.
No employer may withhold or divert any portion of an employee's wages unless:
(1) The employer is required or empowered to do so by state or federal law; or
(2) The deductions are for medical, surgical or hospital care or service, without financial benefit to the employer, and are openly, clearly and in due course recorded in the employers' books; or
(3) The employer has a signed authorization by the employee for deductions for a lawful purpose accruing to the benefit of the employee, except that the Department, upon finding that it is acting in the public interest, may, by regulation, prohibit such withholding or diverting for such purpose. If the Department abuses its discretion and acts arbitrarily and without any reasonable ground, any aggrieved person may institute a civil action in the Superior Court to have such regulation declared null and void. The Department, in such action, shall not be liable for costs or fees of any nature.
19 Del. C. 1953, § 1107; 55 Del. Laws, c. 19, § 1.;
§ 1107A. Differential rate of pay based on gender prohibited.
(a) No employees shall be paid a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions, except where payment is made pursuant to a differential based on:
1) A seniority system;
2) A merit system;
3) A system which measures earnings by quantity or quality of production; or
4) Any other factor other than sex; provided, that an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with this subsection, reduce the wage rate of any employee.
(b) No labor organization, or its agents, representing employees of an employer having employees subject to any provisions of this section shall cause or attempt to cause such an employer to discriminate against an employee in violation of subsection (a) of this section.
(c) For purposes of administration and enforcement, any amounts owing to any employee which are withheld in violation of this section shall be deemed to be unpaid wages under this chapter.
(d) As used in this section, the term "labor organization" means any organization of any kind, or any agency or employee representative committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work.
64 Del. Laws, c. 132, § 1.;
§ 1108. Duty of employer regarding notification, posting and records.
It shall be the duty of every employer of over 3 employees to:
(1) Notify each employee in writing, at the time of hiring, of the rate of pay and of the day, hour and place of payment;
(2) Notify each employee in writing or through a posted notice maintained in a place accessible to the employees and where they normally pass of any reduction in the regular rate of pay, and day, hour and place of payment prior to the time of such reduction;
(3) Make available to each employee in writing or through a poster notice maintained in a place accessible to the employees and where they normally pass employment practices and policies with regard to vacation pay, sick leave and comparable matters;
(4) Furnish to each employee at the time of payment a statement, either on the check, or by a separate slip, or electronically, so long as the electronic statement is in a form capable of being retained by the employee, showing the wages due, the pay period for which the wages are due and the total amount of deductions, separately specified, which have been made from the wages due, provided such statement shall, for an employee who is paid at an hourly rate, show the total number of hours for the said pay period.
Where the statement is furnished electronically, an employee may request that the statement be provided in written form on a separate slip.
(5) Post and maintain in a place accessible to the employees and where they normally pass a summary of this chapter to be supplied by the Department upon request without charge;
(6) Make, keep and preserve for a period not less than 3 years the records specified in the chapter, including wage and hour records, in or about the premises or place of business or employment or at 1 or more central record keeping offices, and make such reports therefrom to the Department as it shall deem by regulation to be necessary or appropriate to administer or enforce this chapter.
19 Del. C. 1953, § 1108; 55 Del. Laws, c. 19, § 1; 57 Del. Laws, c. 152, §§ 4-6; 74 Del. Laws, c. 234, § 1.;
§ 1109. Benefits and wage supplements.
(a) Any employer who is party to an agreement to pay or provide benefits or wage supplements to any employee shall pay the amount or amounts necessary to provide such benefits or furnish such supplements within 30 days after such payments are required to be made; provided, however, that this section shall not apply to employers subject to Part I of the Interstate Commerce Act [49 U.S.C. § 10101 et seq.].
(b) As used herein, "benefits or wage supplements" means compensation for employment other than wages, including, but not limited to, reimbursement for expenses, health, welfare or retirement benefits, and vacation, separation or holiday pay, but not including disputed amounts of such compensation subject to handling under dispute procedures established by collective bargaining agreements.
19 Del. C. 1953, § 1109; 56 Del. Laws, c. 442, § 2.;
§ 1110. Provisions of law may not be waived by agreement.
Except as provided in this chapter, no provision of this chapter may in any way be contravened or set aside by private agreement.
19 Del. C. 1953, § 1110; 55 Del. Laws, c. 19, § 1; 56 Del. Laws, c. 442, § 1.;
§ 1111. 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 any provision of 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, 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 matter 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, § 1111; 55 Del. Laws, c. 19, § 1; 56 Del. Laws, c. 442, § 1; 70 Del. Laws, c. 186, § 1.;
§ 1112. Penalties.
(a) Any employer who violates or fails to comply with any requirement of this chapter or any regulation published thereunder 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.
(b) Any employer who discharges or in any manner discriminates against an employee because that employee has made a complaint or has given information to the Department pursuant to this chapter, or because the employee has caused to be instituted or is about to cause to be instituted any proceedings under this chapter, or has testified or is about to testify in any such proceedings shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each such violation.
(c) Any employer who falsely makes, utters, draws or delivers any receipt or statement that credit to a bank account of any employee has been made in payment of wages due shall be subject to a civil penalty of not less than $1,000 nor more than $5,000 for each such violation.
(d) A civil penalty claim may be filed in any court of competent jurisdiction.
19 Del. C. 1953, § 1112; 55 Del. Laws, c. 19, § 1; 56 Del. Laws, c. 442, § 1; 57 Del. Laws, c. 152, § 7; 67 Del. Laws, c. 260, § 1; 69 Del. Laws, c. 294, § 14; 70 Del. Laws, c. 186, § 1.;
§ 1113. Remedies of employees.
(a) A civil action to recover unpaid wages and liquidated damages may be maintained in any court of competent jurisdiction.
(b) Whenever the Department determines that wages, as required under this chapter, have not been paid, the Department may bring any legal action necessary to collect such claim. With the consent of the aggrieved employee, the Department shall have the power to settle and adjust any such claim to the same extent as might the assigning employee.
(c) Any judgment entered for a plaintiff in an action brought under this section shall include an award for the costs of the action, the necessary costs of prosecution and reasonable attorney's fees, all to be paid by the defendant. In the case of actions brought under this section by the Department, expenses and attorney's fees shall be remitted by the Department to the State Treasurer. The Department shall not be required to pay the filing fee or other costs of the action or fees of any nature or to file bond or other security of any nature in connection with such action or with proceedings supplementary thereto or as a condition precedent to the availability to the Department of any process in aid of such action or proceedings. The Department shall have the power to join various claimants in 1 preferred claim or lien and, in case of suit, to join them in 1 cause of action.
19 Del. C. 1953, § 1113; 55 Del. Laws, c. 19, § 1; 56 Del. Laws, c. 442, § 1; 64 Del. Laws, c. 226, §§ 2, 3.;
§ 1114. Regulations.
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, § 1114; 55 Del. Laws, c. 19, § 1; 56 Del. Laws, c. 442, § 1.;
§ 1115. Short title.
This chapter shall be known as the "Wage Payment and Collection Act of the State."
19 Del. C. 1953, § 1115; 55 Del. Laws, c. 19, § 1; 56 Del. Laws, c. 442, § 1.;