Delaware Mandatory Overtime Labor Laws

The U.S. Department of Labor defines a regular workweek as consisting of 40 hours of work in a seven-day period. An employer may require employees to work in excess of that standard. Employees who work in the state of Delaware and are faced with mandatory overtime requirements will be protected by federal law, of course. However, Delaware law offers employees no significant protection beyond that established by federal law.

Both the federal government and state governments are charged with making laws in this country, and sometimes their authority to legislate overlaps. Some matters are left entirely to the federal government, like bankruptcy law and treaties with allies. Some issues are left solely to the states to determine, like requirements to marry in that state. But in other areas, the federal government and the states both have a voice, and their laws may overlap. Many areas of employment law fit into this category and employees are allowed to rely on those laws that offer them the most protection.

When it comes to labor laws about working hours, minimum wage and overtime pay, the federal government has set out a framework of employee protections. Each state is free to make its own laws on these issues. If state law offers greater protection, it will govern, but if it offers none, or less than the federal government requires, federal labor law governs.

For example, the federal government sets a minimum hourly wage at $7.25. This represents the lowest amount that a nonexempt worker can be paid for one hour of their time. Each state is free to set their own minimum wage rate and most do. Some, like Delaware, set a minimum wage higher than the federal wage; others set a minimum wage lower than the federal minimum wage, and these must yield to the federal wage.

The federal Fair Labor Standards Act (FLSA) sets baseline protections for workers about the hours they must work and when they are entitled to overtime. The federal government does not limit the number of hours an adult employee can work in a week or prohibit work on weekends or holidays. However, it sets a normal work week at 40 hours and provides that an employer must pay all time over 40 hours in a seven-day period at overtime rates. The regular overtime rate is time and one-half of the normal hourly rate. Some overtime must be paid at double time.

The FLSA does not restrict the number of hours an employee can be required to work, nor does it require mandatory rest breaks and meal breaks. However, it does provide that short rest breaks, if given, must be counted as part of an employee's work hours for that day.

Although the federal government sets no cap on an employee's workweek, it does regulate how many hours a minor can work in a day. These child labor statutes limit a workweek to 40 hours for children age 14 and 15. They limit the length of a workday for employees between the ages of 16 and 17 to 16 hours.

The federal government also offers special work protections for employees with disabilities who are asked to work overtime. If the disability makes overtime work more difficult, the Americans with Disabilities Act requires that the employer make a reasonable effort to either exempt the employee from overtime or give them assistance.

Delaware, like every state, can regulate the overtime pay a worker gets and the work hours they are required to undertake. States that provide more protections than the federal law will find their workers protected by the more advantageous set of rules.

For example, California requires overtime for anyone working more than eight hours in one day or 40 in one week. It also requires overtime for the first eight hours in the seventh straight day an employee is asked to work. It mandates double time for some overtime, that is, any hours over 12 worked in one day or over eight on the seventh day in a row of work. Since their state's law meets and exceeds the protections of the FLSA, California employees can rely on this greater protection.

Similarly, California mandates 10-minute rest breaks twice a day in a regular shift and meal breaks if a worker puts in a specified minimum of hours in a shift. Moreover, the state prohibits an employee from entering into an agreement to work without one or more of these protections.

However, Delaware has not opted to enact any laws on overtime hours for employees. It has no laws on the duration of a work day or a work week, or overtime pay. Given that choice not to regulate these aspects of labor law, Delaware leaves it to the federal government. For Delaware workers, the federal laws will apply. In addition, an employee might seek to set greater overtime protections or higher wages contractually.

A Delaware employer is not permitted to offer a nonexempt employee a contract with less overtime protection than is mandated in the FSLA. That would be breaking federal law. However, employees can push to get additional protection in their employment contracts. Language in employment contracts will be enforced as long as the protections meet and/or exceed FSLA standards. In states like California, with overtime protection that exceeds that offered by the FSLA, private contracts between and employer and employee to be valid must meet the level of protection under state law, as well.

That means that it is fine for potential employees to address workweek and overtime issues during a job interview, just like they can negotiate wages, sick leave and time off for vacation. A union can leverage collective bargaining power to implement more favorable overtime rules for union members. These agreed-upon overtime provisions will bind the employer as a matter of contract law, not under the labor laws. As a practical matter, an employee paid by the hour will rarely be in a position to dictate the terms of their work conditions.