Delaware’s background check laws require fingerprint-based criminal history screening for jobs that involve children, elderly residents, and in-home healthcare clients, while leaving most other hiring decisions to the employer’s discretion under federal rules. The state layers its own mandates on top of the federal Fair Credit Reporting Act, and the rules split sharply depending on whether the employer is a public agency or a private company. Getting that distinction wrong is the most common compliance error in the state.
When Delaware Requires a Background Check
Not every Delaware employer has to screen applicants. The mandate applies to specific categories of work, nearly all of them involving contact with people who can’t easily protect themselves.
Child-serving entities carry the most detailed obligations. 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.1Justia Law. Delaware Code Title 31 Section 309 – Background Checks for Child-Serving Entities and Other Organizations Licensed childcare facilities, schools, foster care agencies, and similar organizations all fall within this requirement. School employees, volunteers, and even school board members are covered.
Home health agencies, hospice providers, and personal assistance services agencies must run fingerprint-based state and federal criminal history checks before an applicant has direct contact with patients or clients.2Delaware Code Online. Delaware Code Title 16 Section 1145 – Criminal Background Checks The statute is broadly written and reaches people who privately hire caregivers.
Department of Health and Social Services employees and contractors who visit children in their homes or have regular direct access to minors are also required to go through the state and federal check.3Delaware Code Online. Delaware Code Title 29 Section 7998-7999 – Background Checks for Employees, Contractors, and Volunteers
Outside these categories, background checks are optional. A retailer, office employer, or general industry company can choose whether to screen. When they do, federal rules take over.
How the SBI Fingerprint Process Works
All Delaware-mandated checks run through the State Bureau of Identification, part of the Delaware State Police. The process is fingerprint-based: the applicant provides fingerprints at an SBI location, and SBI checks those prints against both Delaware criminal records and the FBI national database.2Delaware Code Online. Delaware Code Title 16 Section 1145 – Criminal Background Checks The dual-level check picks up out-of-state convictions a Delaware-only search would miss.
SBI has fingerprinting locations in all three counties. The Dover location in Kent County accepts walk-ins on weekdays. New Castle County requires an appointment through SBI’s scheduling line. Sussex County offers fingerprinting by appointment at Troop 4 in Georgetown on alternating Wednesdays. You need a photo ID; a Social Security card or birth certificate is not required.
Fees are $52.50 for a Delaware-only check and $69.00 for a combined state and federal check. SBI accepts cash, credit and debit cards, bank checks, money orders, and company checks payable to Delaware State Police. Personal checks are not accepted.
Employers in mandated industries can conditionally hire a fingerprinted applicant while waiting for results.3Delaware Code Online. Delaware Code Title 29 Section 7998-7999 – Background Checks for Employees, Contractors, and Volunteers If 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 limit of its reach is the single most important detail: the law applies only to public employers. Private employers in Delaware are not covered.4Delaware General Assembly. Delaware Session Law 79-227 – House Bill 167 The law encourages state vendors and contractors to adopt similar practices, but encouragement is not a legal 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 that first interview, if the applicant is otherwise qualified, the public employer may ask about criminal and credit history.4Delaware General Assembly. Delaware Session Law 79-227 – House Bill 167
Even after the first interview, a public employer can only disqualify someone when the exclusion is job-related and consistent with business necessity. Three factors have to be weighed: the nature and gravity of the offense, the time elapsed since conviction or sentence completion, and the relationship between the offense and the duties of the position.
Several public-sector roles 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 position where federal or state law specifically requires or permits criminal history review.4Delaware General Assembly. Delaware Session Law 79-227 – House Bill 167
What Private Employers Can Ask
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 EEOC guidance discourages the practice.
There is a practical limit built into the SBI system. SBI furnishes only conviction data to employers for employment purposes, so a private employer who orders a report through SBI will not see mere arrests. Using the EEOC’s job-relatedness analysis (nature of offense, time elapsed, job relevance) is not legally mandated for private employers, but it reduces exposure to a Title VII discrimination claim.
Credit checks follow the same split. A public employer cannot look at credit history or credit score before the first interview, and must tie any disqualification to job-relatedness and business necessity.4Delaware General Assembly. Delaware Session Law 79-227 – House Bill 167 Private employers face no Delaware-specific restriction on credit checks, as long as they follow the FCRA.
FCRA Obligations When Using a Screening Company
Any Delaware employer, public or private, that uses a third-party consumer reporting agency must comply with the federal Fair Credit Reporting Act. The rule covers criminal history reports, credit reports, and employment verification reports alike.5Office of the Law Revision Counsel. 15 USC 1681b – Permissible Purposes of Consumer Reports
Before ordering the report, the employer must give the applicant a standalone written disclosure stating that a consumer report may be obtained for employment purposes. That disclosure document can contain nothing besides the notice and the applicant’s written authorization. Burying it in a larger packet or combining it with a liability waiver violates the statute.5Office of the Law Revision Counsel. 15 USC 1681b – Permissible Purposes of Consumer Reports
If the report contains something that might cause rejection, the FCRA requires a two-step adverse action process. Before making a final decision, the employer sends a pre-adverse action notice that includes a copy of the report and a written summary of the applicant’s rights under the FCRA.6Federal Trade Commission. Using Consumer Reports: What Employers Need to Know This gives the applicant a chance to review and dispute errors before the employer acts.
After a reasonable waiting period, if the employer proceeds, a second notice goes out. The post-adverse action notice must include the name and contact information of the consumer reporting agency, a statement that the agency did not make the hiring decision, and notice that the applicant can get a free copy of the report within 60 days and dispute inaccurate information.6Federal Trade Commission. Using Consumer Reports: What Employers Need to Know The required summary of rights is a standardized document prescribed by the Consumer Financial Protection Bureau.7Consumer Financial Protection Bureau. A Summary of Your Rights Under the Fair Credit Reporting Act
Disqualifying Convictions in Mandated Industries
For child-serving entities, certain convictions are automatic disqualifiers with fixed prohibition periods:
- Felony assault or sexual crimes against a child, impaired adult, or elderly person: lifetime prohibition from employment with a child-serving entity.
- Felony assault or sexual crimes against another adult: 10-year prohibition from the date of conviction.
- Other violent felonies: 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.1Justia Law. Delaware Code Title 31 Section 309 – Background Checks for Child-Serving Entities and Other Organizations
Long-term care facilities carry an additional federal rule. No facility may employ someone convicted within the past 15 years of abusing, neglecting, or mistreating a facility resident or an impaired adult. The Delaware Department of Health and Social Services has adopted EEOC guidance on evaluating criminal history for these positions, so convictions must be assessed for relevance to the specific duties.
How Expunged Records Affect Hiring
Delaware expungement has real force. Once a record is expunged, all law enforcement and court records tied to the case are destroyed, segregated, or sealed with SBI. When anyone other than law enforcement asks about an expunged record, agencies must respond that no record exists.8Delaware Code Online. Delaware Code Title 11 – Expungement of Criminal Records
A person whose record has been expunged is not required to disclose the arrest, charge, or conviction to anyone for any purpose. An employer who asks about expunged records is asking a question the applicant has no legal obligation to answer, because the statute explicitly says the person should not be asked to disclose it.8Delaware Code Online. Delaware Code Title 11 – Expungement of Criminal Records An expunged record will not appear on an SBI background check.
Compliance Mistakes to Watch For
The biggest error in Delaware is treating Ban the Box as universal. Private employers who delay criminal history questions because they think the law requires it are not violating anything, but private employers who assume they have the same obligations as a state agency may overlook the rules that actually apply to them, especially the FCRA’s technical consent and notice requirements.
The second common problem is botching the FCRA adverse action process. Employers frequently send a rejection letter without first providing the pre-adverse action notice with a copy of the report and the summary of rights. Combining the two notices, or skipping the waiting period between them, exposes the employer to statutory damages under the FCRA.
Employers in mandated industries face a different risk: letting an employee stay on after a disqualifying conviction surfaces. The statutes for child-serving entities and healthcare providers do not offer discretion. A disqualifying conviction means the person cannot hold the position, and the employer cannot waive the prohibition regardless of the employee’s performance or tenure.