On June 14, 2017, Governor John Carney made Delaware the third state to ban inquiries regarding pay history during the employment application process. Delaware joins Massachusetts and Oregon, as well as Puerto Rico, New York City and Philadelphia, all with similar laws aimed at eradicating the pay disparity between men and women. The Delaware law, set to take effect on December 14, 2017, prohibits employers from asking potential candidates about their pay history until after making a conditional offer of employment. At that point, they may ask about the applicant’s compensation history only to confirm it, not to inform current compensation. Employers are also prohibited from screening applicants by requiring applicants to satisfy a minimum or maximum compensation criteria in the employment application. However, employers are free to negotiate compensation expectations, provided that the employer does not inquire about the applicant’s compensation history.

To help protect employers, the law provides a safe harbor for those who can demonstrate that they informed their recruiters or hiring personnel of the prohibitions of the law and instructed them to comply. The Delaware Department of Labor is responsible for posting the requirements of the law and conducting outreach to educate Delaware employers. The Delaware Department of Labor is also tasked with enforcing the law. Penalties range from $1,000 to $5,000 per offense for first time offenders, to between $5,000 and $10,00 for repeat offenders.

In advance of the effective date, Delaware employers should review their applications and remove any references to compensation history. Delaware employers should also train their recruitment and hiring personnel regarding the nuances of the law. The prohibitions apply equally to the entire application process, including the written application, initial phone screening, and any call back interview. Employers who provide training regarding the prohibitions may use the safe harbor if they instructed their hiring personnel to comply, and an inadvertent violation occurred during the hiring process.