The rule in Delaware
In Delaware, hours over 40 in a workweek are paid at 1.5 times your regular rate. There is no general daily limit, so a 12-hour day inside a 36-hour week earns no overtime.
The US Department of Labor's state table adds: “No state overtime provision listed. FLSA governs.”
What counts toward your regular rate
Overtime is 1.5 times your regular rate of pay: everything you earned for the week at straight time, divided by every hour you worked.
Counts
- Your hourly pay for every hour worked, at each rate you worked
- Non-discretionary bonuses — attendance, production, safety, or any bonus promised in advance
- Commissions
- Shift differentials for nights, weekends or hazardous work
Does not count
- Discretionary bonuses and gifts, where both the fact and the amount were up to the employer
- Expense reimbursements
- Pay for time not worked: vacation, holidays, sick days
A worked example
Common mistakes employers make in Delaware
- Treating a Delaware wage claim as the source of the overtime right. The state collects unpaid overtime as unpaid wages, but the right to time and a half comes from the federal Fair Labor Standards Act.
- Skipping the state meal break. Delaware requires 30 consecutive minutes on a shift of 7.5 hours or more, after the first two hours of work and before the last two.
- Paying final wages on the next payday alone. Delaware requires the later of the next payday or three business days after the last day worked.
Other Delaware pay rules worth knowing
- Final paycheck if fired: By your next regular payday or within 3 business days of your last day, whichever comes later.
- Unused PTO: Delaware counts vacation pay as a benefit or wage supplement, not as wages. It is owed only if your employer agreed to pay it, and then within 30 days after the agreement requires payment.
- Late final pay: Liquidated damages of 10% of the unpaid wages for each day except Sundays and legal holidays the payment is late, up to an amount equal to the unpaid wages.
Delaware final paycheck law and deadline calculator →
Delaware overtime: common questions
Does my employer have to pay overtime if they didn't approve it?
Yes. Time your employer knew you were working, or allowed you to work, counts as hours worked, whether or not anyone approved it in advance. An employer can discipline you for breaking an overtime policy, but it still has to pay overtime for those hours — in Delaware as everywhere else under federal law.
Does my bonus change my overtime rate?
Yes, if the bonus is non-discretionary — promised for attendance, production, safety or hitting a target. It is added to your straight-time pay and divided by all the hours you worked, and your overtime is 1.5 times that higher rate. Discretionary gifts, expense reimbursements and paid time off are left out.
Does Delaware have its own overtime law?
No. Delaware has no state overtime provision, so the federal Fair Labor Standards Act sets the rule: time and a half after 40 hours in a workweek, with no daily limit. The federal law covers most employers — any business with $500,000 or more in annual sales, plus hospitals, schools and government agencies.
What is a workweek, and can my employer change it?
A workweek is a fixed, recurring block of seven consecutive 24-hour days, and it can start on any day and at any hour. Overtime is counted per workweek, never averaged across two, even when you are paid every two weeks. Your employer can change the start day, but only permanently and not to avoid paying overtime.
If you think you were underpaid
- Keep your own record of the hours you worked — the time card calculator totals them and exports a CSV — plus photos of the posted schedule and messages about shifts.
- Ask your employer in writing to correct the pay. Email beats a conversation because it creates a dated record.
- File a wage claim — File a Wage Claim Form with the Delaware Department of Labor, Office of Wage and Hour Enforcement — Wages@delaware.gov or 302-761-8200, option 3. It is free, and you do not need a lawyer.
- Federal overtime claims must generally be brought within 2 years of the underpayment, or 3 years if the violation was willful.
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Other states that also follow the 40-hour weekly rule with nothing added: District of Columbia, Illinois and Louisiana.
Work across a state line? Maryland overtime rules and New Jersey overtime rules.