2017 Delaware Code
Title 19 - Labor
CHAPTER 9. MINIMUM WAGE
§ 902. Minimum wage rate [For current federal minimum wage, see 29 U.S.C. § 206(a)(1)(A)].

(a) Except as may otherwise be provided under this chapter, every employer shall pay to every employee in any occupation wages of a rate:

(1) Not less than $7.75 per hour effective June 1, 2014; and

(2) Not less than $8.25 per hour effective June 1, 2015.

Upon the establishment of a federal minimum wage in excess of the state minimum wage, the minimum wage in this State shall be equal in amount to the federal minimum wage, except as may otherwise be provided under this chapter.

(b) Gratuities received by employees engaged in occupations in which gratuities customarily constitute part of the remuneration may be considered wages for purposes of this chapter in an amount equal to the tip credit percentage, as set by the federal government as of June 15, 2006, of the minimum rate as set forth in subsection (a) of this section. In no event shall the minimum rate, under this subsection, be less than $2.23 per hour.

(c) For purposes of this section:

(1) An employee engaged in an occupation in which gratuities customarily constitute part of the remuneration shall be any worker engaged in an occupation in which workers customarily and regularly receive more than $30 per month in tips or gratuities.

(2) "Gratuities" means monetary contributions received directly or indirectly by an employee from a guest, patron or customer for services rendered where the customer is entirely free to determine whether to make any payment at all and, if so, the amount.

(3) A "primary direct service employee" is one who in a given situation performs the main direct service for a customer and is to be considered the recipient of the gratuity.

(4) A "service charge" is an obligatory sum of money included in the statement of charges. Clear and conspicuous notice must be made on either the menu, placard, the front of the statement of charges or other notice given to the customer indicating that all or part of the service charge is the property of the management. Such notice must be clearly printed, stamped or written in bold type. A service charge assessed to customers, patrons or guests without such notice is the property of the primary direct service employee(s). For the purposes of this section, type which is at least 18 points ( 1/4 inch) on the placard, or 10 points ( 1/8 inch) or larger on all other notices shall be considered clear and conspicuous.

(d)(1) Any gratuity received by an employee, indicated on any receipt as a gratuity, or deposited in or about a place of business for direct services rendered by an employee is the sole property of the primary direct service employee and may not be taken or retained by the employer except as required by state or federal law.

(2) Employees may establish a system for the sharing or pooling of gratuities among direct service employees, provided that the employer shall not in any fashion require or coerce employees to agree upon such a system. Where more than 1 direct service employee provides personal service to the same customer from whom gratuities are received, the employer may require that such employees establish a tip pooling or sharing system not to exceed 15% of the primary direct service employee's gratuities. The employer shall not, under any circumstances, receive any portion of the gratuities received by the employees.

(3) The Department may require the employer to pay restitution if the employer diverts any gratuities of its employees in the amount of the gratuities diverted. If the records maintained by the employer do not provide sufficient information to determine the exact amount of gratuities diverted, the Department may make a determination of gratuities diverted based on available evidence.

19 Del. C. 1953, § 902; 55 Del. Laws, c. 18, § 1; 56 Del. Laws, c. 134, § 1; 56 Del. Laws, c. 339; 57 Del. Laws, c. 691; 59 Del. Laws, c. 470, § 1; 64 Del. Laws, c. 84, § 1; 65 Del. Laws, c. 436, § 1; 66 Del. Laws, c. 28, § 1; 67 Del. Laws, c. 141, §§ 1, 3, 4; 70 Del. Laws, c. 319, §§ 1, 2; 72 Del. Laws, c. 16, § 1; 75 Del. Laws, c. 314, § 1; 79 Del. Laws, c. 186, § 1.;