Delaware is known as a business-friendly state due to its tax advantages, privacy, and flexible corporate laws. But what’s Delaware’s position on credit card surcharging?
Whether you’re a merchant or consumer in Delaware, read on to find out.
Disclaimer: This information is for reference only. It is not legal advice, and you should consult with an attorney before implementing a surcharge. Rules are constantly changing, and you should verify the accuracy of surcharge laws directly with your state.
Can Businesses Legally Surcharge Credit Card Transactions in Delaware?
Yes, merchants can legally add surcharge fees to credit card transactions in Delaware.
Delaware does not have any state-specific laws that explicitly prohibit credit card surcharges. This means that merchants in Delaware can default to federal law, which makes surcharging legal when accepting credit cards.
Is Debit Card Surcharging Legal in Delaware?
No, debit card surcharging is illegal in all 50 states—including the state of Delaware.
This comes from the Durbin Amendment to the Dodd-Frank Wall Street Reform and Consumer Protections Act. This applies to both debit cards and prepaid cards (even if the debit card is being run as a signature transaction). It’s also worth noting that merchants cannot set a minimum purchase amount for customers paying with a debit card.
What is the Maximum Allowable Surcharge on Credit Cards in Delaware?
Legally, the maximum allowable surcharge on credit card transactions is 4% in the state of Delaware. However, most businesses will likely have their surcharge fees capped at 3%.
Here’s why.
The 4% maximum surcharge is a federal law. Remember, since Delaware doesn’t have its own state-specific surcharge laws, we can refer to federal regulations for guidance.
But every credit card network also has its own rules regarding surcharge fees and how they’re imposed. If you zoom out and look at these rules holistically, you’ll see that any surcharge above 3% would be violating the card network rules.
According to Visa’s surcharge rules, merchants cannot impose surcharge fees that exceed 3% of the transaction. Amex also has its own surcharge rules stating that surcharges must be applied equally across all payment products—meaning you can’t charge 3% on Visa cards, 4% on Amex cards, and no surcharge fee on Discover cards.
Looking at just these two rules alone, you’re effectively capped at a 3% surcharge.
While technically, you won’t be breaking any laws in Delaware or any federal laws by charging more (so you can’t be jailed or fined by the government), you will be violating your card network agreements and subject to fines or other penalties.
How to File a Complaint For Illegal Surcharging in Delaware
If you’re a consumer in Delaware who is concerned that a merchant is applying illegal surcharges to card transactions, you can file a complaint online directly with the state’s Attorney General’s office.
Businesses adding surcharge fees that exceed 4% of the transaction or surcharges for any amount on a debit card would both be valid reasons for submitting a complaint.
Our team here at MCC would also like to hear from any customers in Delaware who have been surcharged for paying by credit card—even if it was done legally. Drop a comment on this post to start the discussion.
While we don’t offer any consumer-specific services, we think it’s helpful for merchants to see how their customers feel about being forced to pay a surcharge fee.
Other Noteworthy Credit Card Laws For Businesses in Delaware
Beyond what we’ve covered so far, there are a couple of other interesting points that are relevant for businesses accepting credit cards in Delaware.
Withholding Credit Card Fees From Employee Tips is Illegal
The Delaware Department of Labor issued a statement on January 31, 2025, to confirm that it’s illegal for merchants to withhold any percentage of employee tips for credit card processing fees.
This comes from an investigation and legal review that was prompted by multiple complaints and questions from employees state-wide.
The state found that withholding tips for credit card fees directly violates Title 19, Chapter 9, Section 902(d) of Delaware Code. And while Chapter 11, Section 1107 of Delaware’s Wage Payment Collection Act does allow merchants to withhold or divert employee wages, withholding gratuities for credit card processing fees is not permitted.
Simply put—businesses in Delaware must pay employees the full amount of the tips they’ve received, and they can’t deduct a percentage to cover payment processing costs.
An Attempt to Amend Delaware’s Credit Card Surcharge Laws Stalled in the House
It’s also worth noting that there recently was an attempt to change Delaware’s credit card surcharge laws.
House Bill 488 was introduced by Valerie Longhurst, a former state representative. The bill was an amendment to Title 6 of Delaware Code and an attempt to prohibit sellers from surcharging customers who choose to pay by credit card in lieu of cash or check.
However, this law never made it out of the house.
Final Thoughts
While completely legal, businesses in Delaware may want to think twice before applying surcharge fees to credit card transactions. Customers are against it, and it could ultimately have long-term effects on your success over time.
Recouping 3% of your costs to cover an operational fee isn’t worth it if you’re losing customers.
Alternatively, you can look for other ways to save money on credit card processing without passing the burden to your customers or changing any operations.
Contact our team here at MCC for a free audit and assessment. We can help find hidden fees and inflated rates on your statement and negotiate a new deal directly with your existing processor. So you can save money without switching providers or upsetting your customers.