Employee Background Check Laws in Delaware

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., is the primary federal law governing background checks for employment. FCRA applies to all employers and third-party background check providers (consumer reporting agencies). Before obtaining a background check, employers must: (1) provide written disclosure clearly stating that a background check will be obtained, (2) obtain the applicant's written consent, and (3) comply with all procedures outlined in 15 U.S.C. § 1681b.

Under FCRA, background check providers must follow accurate reporting standards (15 U.S.C. § 1681e), maintaining reasonable procedures to ensure maximum accuracy of information. If an employer intends to deny employment based wholly or partly on background check results, the employer must provide a pre-adverse action notice with a copy of the report and notice of rights, and must wait a reasonable period before making final decisions (15 U.S.C. § 1681c(b)(3)).

Applicants have the right to dispute inaccurate information and request free copies of their reports. The EEOC enforces FCRA in employment contexts. Violations can result in civil liability and damages up to $1,000 per violation, plus attorney fees.

Delaware does not have a comprehensive state-specific background check law that supplements FCRA. Instead, Delaware employers and applicants are governed entirely by federal FCRA requirements. However, Delaware Code Title 19, § 707 provides that employees have the right to access and copy their personnel files, which may include background check information.

Delaware does not currently have a state-level ban-the-box law, meaning employers in Delaware are not prohibited by state law from asking about criminal history on initial job applications. However, federal FCRA still applies, and employers must still obtain written consent and provide disclosure before conducting background checks.

Delaware employers conducting background checks must still comply with federal anti-discrimination laws (Title VII, ADEA, ADA, etc.), meaning they cannot use background check information in a discriminatory manner based on protected characteristics. Additionally, some municipalities in Delaware may have adopted local ban-the-box ordinances, though the state itself has not enacted one.

Unlike some states, Delaware does not have specific statutory waiting periods or additional notice requirements beyond FCRA. Employers in Delaware should be aware that while state law does not provide additional protections, they remain fully bound by FCRA's disclosure, consent, accuracy, and adverse action notice requirements.

FCRA contains several exceptions that affect Delaware employers. Certain positions may exempt employers from full FCRA compliance if the position involves access to sensitive information, such as national security roles or positions governed by specific federal regulations (e.g., positions requiring security clearances, banking, insurance). State and federal government agencies may have different rules under § 1681b(b).

Employers may obtain background checks without written disclosure under certain limited circumstances, such as aggregate credit information for investigative purposes where the applicant is aware through notice, or when background checks are provided by another employer (i.e., transfer of information between employers).

Per Se Disqualifications: While FCRA does not categorically prohibit considering any specific offense, employers may establish policies that certain convictions automatically disqualify candidates. However, employers must still follow procedural requirements and cannot discriminate based on criminal history in a way that has a disparate impact on protected classes without business necessity and job relatedness.

Independent Contractors and Volunteers: FCRA applies to background checks on independent contractors and may apply to volunteers depending on the nature of the position. Delaware employers should not assume exemptions apply without careful legal review. Employers using third-party background check providers (consumer reporting agencies) bear responsibility for FCRA compliance even when delegating the background check process.

Step 1: Document Everything.

If you believe a Delaware employer violated background check laws, begin immediately by documenting all communications related to the background check. Preserve: (1) any written disclosure provided to you, (2) any consent forms you signed (or note if none were provided), (3) communications about the background check (emails, letters), (4) any pre-adverse action notice or notice that employment was denied, (5) the actual background check report if you obtained a copy, (6) any disputed information you attempted to correct, and (7) correspondence with the employer or background check provider regarding disputes. Save copies in multiple formats and locations.

Step 2: Internal Complaint Process and Dispute Rights.

If the background check contains inaccurate information, you have the right under FCRA § 1681i to dispute the information directly with the background check provider (consumer reporting agency). Send a written dispute letter to the agency within 60 days of receiving the report, clearly identifying which items are inaccurate and why. The agency must investigate your dispute within 30 days and provide you with a written explanation of their findings. Request a free copy of your background check report from the provider if you have not already received one. Additionally, contact the employer directly and explain the inaccuracy; some employers may be willing to reconsider based on corrected information. Maintain copies of all dispute correspondence.

Step 3: File a Complaint with the Federal Trade Commission (FTC) or EEOC.

If the employer failed to provide written disclosure, failed to obtain written consent, failed to provide pre-adverse action notice, or violated your dispute rights under FCRA, file a complaint with the Federal Trade Commission (FTC) at www.reportidentitytheft.ftc.gov or www.ftccomplaintassistant.gov. The FTC enforces FCRA for consumer reporting agencies and employers. Provide detailed information including: (1) the employer's name and contact information, (2) the date of the alleged violation, (3) a description of what disclosure or consent was not provided, (4) the name and type of background check provider used, and (5) copies of all relevant documentation. There is no filing deadline for FTC complaints, but act promptly to preserve evidence.

Alternatively, if you believe the background check violation was connected to discrimination (e.g., the employer obtained background checks only from applicants of a particular race or gender), file a charge with the EEOC at www.eeoc.gov or call 1-800-669-4000. Delaware is part of the EEOC's Philadelphia District Office. File within 300 days of the violation (federal deadline applies in Delaware as there is no state EEOC agency).

Step 4: Investigation Process and Timeline.

If you file with the FTC, the agency will review your complaint and may conduct an investigation if the violation is widespread or systematic. The FTC does not typically provide individual case updates; instead, complaints contribute to the agency's overall enforcement priorities. Investigation timelines vary; some cases are resolved informally if the employer agrees to comply, while others may result in civil action. You may not directly participate in FTC investigations as a complainant, but your complaint creates a record of the violation.

If you file with the EEOC, the agency will contact the employer and request a response to your allegations. The investigation period is typically 180 days (can be extended). You may be interviewed, and the employer will provide their account. After investigation, the EEOC will issue a determination letter explaining their findings and your right to sue if they find reasonable cause to believe a violation occurred.

Step 5: Consult an Attorney and Legal Action.

If you have suffered damages (denied employment, incorrect information leading to other harm, emotional distress), consider consulting an employment attorney licensed in Delaware. You have a private right of action under FCRA § 1681p to sue the employer or background check provider for violations. Damages include actual damages (lost wages, emotional distress), statutory damages of up to $1,000 per violation, and attorney fees and court costs. Consult an attorney experienced in FCRA cases; many offer free initial consultations and work on contingency. The statute of limitations for FCRA private actions is two years from discovery of the violation. An attorney can help you determine whether to pursue a claim individually or whether a class action may be available if multiple applicants were affected.