Filing a Wage and Hour Claim – North Dakota
Does North Dakota have state overtime laws that are different from federal law?
Like federal law, North Dakota law requires that employees be paid one and a half times their regular rate of pay for all hours worked in a given week over 40. The following employees are not covered by this law:
- Any employee employed in a bona fide executive, administrative, or professional capacity.
- Any employee engaged in an agricultural occupation.
- Any employee spending at least 51% of her/his work time providing direct care to clients of a shelter, foster care, or other such related establishment whose primary responsibilities are to provide temporary shelter, crisis intervention, prevention, education, and fellowship.
- Any employee employed in domestic service who resides in the household in which (s)he is employed.
- A straight commission salesperson in retail automobile, trailer, boat, aircraft, truck, or farm implement dealerships unless that salesperson is required to be on the premises for more than forty hours per week.
- Computer professionals exercising discretion and independent judgment when designing, developing, creating, analyzing, testing, or modifying computer programs and who are paid at an hourly rate of at least $27.63.
- Any employee who is customarily and regularly engaged (i.e. more than 80% of her/his time) away from the employer’s premises for the purpose of making sales or taking orders.
- Mechanics paid on a commission basis off a flat rate schedule.
- Retail employees if their regular rate of pay exceeds 1.5 times the minimum hourly rate and more than half the compensation for a period of not less than one month is derived from commission.
- Any employee employed as an announcer, news editor, or chief engineer by a radio or television station.
- Artistic employees whose work depends upon their invention, imagination, or talent (e.g. editors, columnists, publishers, cartoonists, musicians, novelists, actors).
- Motor carriers.
- Teachers, instructors, tutors and lecturers engaged in teaching in a school or educational system.
In addition, anyone exempt from North Dakota’s minimum wage law (see #2) is also exempt from the state’s overtime law. The following employees exempt under federal law are non-exempt and covered under North Dakota law:
- Railroad and air traffic employees.
- Taxi drivers.
- Local delivery employees.
- Employees of motion picture theaters.
- Farm workers.
Does North Dakota have a minimum wage that is different from federal law?
North Dakota has a minimum wage of $7.25 per hour, which is identical to the federal minimum wage.
The minimum wage must be paid to all employees in every occupation in the state, with the following exceptions:
- Employees of nonprofit camps that are directly youth-related and intended for educational purposes.
- Guides, cooks, or camp-tenders for hunting or fishing guide services.
- Golf course caddies.
- Any person in a program for youthful or first-time offenders designed as an alternative to incarceration if the person:
- Voluntarily enters into the program for personal benefit,
- Does not displace regular employees or infringe on the employment opportunities of others,
- Is under the supervision or control of a court; and
- Performs the work without contemplation of pay.
- Prison or jail inmates who do work for the prison, jail, institution or other areas directly associated with the incarceration program. The work must be performed for the prison, jail, institution, state, or a political subdivision.
- Actors or extras for a motion picture.
- Any person working on a casual basis for less than twenty hours per week for less than three consecutive weeks in domestic service employment providing baby-sitting services.
- Student trainees.
Anyone who is not covered under the federal minimum wage law and who is not in this list is covered under North Dakota’s minimum wage. This includes:
- Employees of certain seasonal amusements or recreational establishments.
- Employees of certain small newspapers and switchboard operators of telephone companies.
- Seamen employed on foreign vessels.
- Employees engaged in fishing operations.
- Employees engaged in newspaper delivery.
- Farm workers employed on small farms (those using less than 500 “man days” of farm labor in any calendar quarter of the preceding calendar year).
- Casual babysitters (except those listed above) and persons employed as companions to the elderly or inform.
- Highly-compensated employees performing office or non-manual work and paid a total of $100,000 or more per year.
If an employee makes tips, an employer may credit those tips toward the minimum wage, but the tip credit may not exceed 33% of the minimum wage ($2.40). The employer must inform the employee in advance that (s)he is doing this and must maintain written records.
If the employer and employee agree in writing, the employer may count up to $18 per day against the minimum wage for the reasonable cost of board, lodging, and other facilities the employer furnishes the employee. The employee must voluntarily agree to this.
An employer may require an employee to purchase a uniform as long as this does not bring the employee’s wages below the minimum wage for all hours worked during the relevant period.
The state Labor Commissioner has the authority to permit employers to pay students in vocational programs and disabled individuals below the minimum wage.
Does North Dakota have meal and rest break requirements, unlike federal law?
Unlike federal law, North Dakota does provide for a meal period. A minimum thirty-minute meal period must be provided in each shift exceeding five hours when there are two or more employees on duty. However, employees may waive their right to a meal period by making an agreement with their employers. If an employee is completely relieved of her/his duties during the meal period, the employer does not have to pay for that time. If there is a collective bargaining agreement, that will trump this provision.
How do I file a wage-and-hour or labor standards claim in North Dakota?
A detailed description of the wage claim process can be found at http://www.nd.gov/labor/services/wage-hour/wage-claim-proc.html. The process requires first that you speak with your employer about the wages you believe (s)he owes you, and, if that is unsuccessful, that you write a letter demanding the wages you are owed. If that does not work, you can file a wage claim with the North Dakota Labor Commissioner. The wage claim form can be found at http://www.nd.gov/. In order to help you enforce your wage claim, the North Dakota Department of Labor can hold hearings to help resolve the issue; if those hearings are unsuccessful, the Department can initiate a court case on your behalf. In addition to receiving your back wages and interest, you may be entitled to double or triple that amount if this is not your employer’s first violation.
What are my time deadlines?
Do not delay in contacting the North Dakota Department of Labor to file a claim. There are strict time limits in which charges of wage-and-hour violations must be filed. As there is a two-year statue of limitations on all wage claim cases in North Dakota, if you do not file your wage claim within two years, and give the Department sufficient time to investigate the claim, the Department will not be able to help you. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim if possible. It is not necessary to have an attorney, however, to file a wage claim with the North Dakota Department of Labor.
How can I or my attorney pursue a claim in court in North Dakota?
Under North Dakota state law, an employee has an implied right to bypass the administrative system described above and bring a lawsuit her/himself. The same statute of limitations applies (2 years).
North Dakota Department of Labor
600 East Boulevard Avenue, Dept. 406
Bismarck, ND 58505-0340
1-800-582-8032 (in-state toll free)
TTY: 1-800-366-6888 or 1-800-366-6889
Fax: (701) 328-2031
e-mail: [email protected]
You can visit the Department in person as well:
State Capitol, 13th Floor
Bismarck, North Dakota
This material was originally prepared by attorney Joseph Jaramillo and former law clerks Keia Cole and Adam Weiss of the law firm Goldstein, Demchak Baller Borgen and Dardarian, and was updated by Professor Douglas D. Scherer, of Touro College, Jacob D. Fuchsberg Law Center. Professor Scherer also serves as the Vice President of Workplace Fairness.
© 2015 Workplace Fairness