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Quick and Easy Guide to Labor & Employment Law: North Dakota

This state-specific guide covers labor and employment case law, statutes, rules, and regulations that HR professionals and clients often encounter or have questions about in North Dakota.

At-Will Employment

(N.D. Cent. Code § 34-03-01; N.D. Cent. Code § 34-01-20)

In North Dakota, the employer-employee relationship is governed by the employment-at-will doctrine. Employment that lacks "a specified term" can be terminated at the will of either party with notice to the other.

The North Dakota legislature has also enacted a whistle-blower statute that prohibits employers from terminating an employee who reports a violation or potential violation of a federal or state law or rule, and reports this to their employer.

Right-to-Work Laws

(N.D. Cent. Code § 34-01-14)

Individuals have a right to work that cannot be "denied or abridged" on account of membership or non-membership in a labor union or organization.

Immigration Verification

North Dakota places no additional employment verification procedures on employers beyond Federal I-9 compliance. There is no requirement to use E-Verify under North Dakota state laws.

Drug Testing

(N.D. Cent. Code § 34-01-15)

The only statutory restriction on drug testing in the workplace concerns payment for drug testing. If an employer requires a drug or alcohol test as a condition of retaining or obtaining employment, the employer must pay for the test and for the furnishing of any medical records.

Jury Duty Leave

(N.D. Cent. Code § 27-09.1-17; N.D. Admin. Code § 4-07-16-02)

It is unlawful for an employer to persuade or attempt to persuade any juror to avoid jury service; to intimidate or to threaten any juror in that respect; or to remove or otherwise subject an employee to adverse employment action as a result of jury service if the employee provides reasonable notice of his or her absence. Additionally, it is unlawful for an employer to require or request an employee to use annual, vacation or sick leave for time spent responding to a summons for jury duty.

North Dakota state law does not require private employers to pay wages while an employee is on jury duty, but does require state employers to be given paid leave for jury duty.

Voting Leave

(N.D. Cent. Code § 16.1-01-02.1)

Employers are encouraged to establish a program to allow employees to be absent for the purpose of voting, but this is voluntary for employers and there is not a guaranteed right to be absent.

Parental Leave

(N.D. Cent. Code §§ 14-02.4-01 – 14-02.4-02; N.D. Cent. Code § 54-52.4-02)

The North Dakota Human Rights Act prohibits employment discrimination on the basis of sex. The definition of sex includes pregnancy, childbirth and disabilities related to pregnancy or childbirth.

Currently, North Dakota does not require private employers to offer family leave to employees, but it does require state employers to grant an employee's request for family leave to:

  • Care for the employee's child by birth, if the leave concludes within 12 months of the child's birth;
     
  • Care for a child placed with the employee, by a child-placing agency for adoption or as a precondition to adoption, or for foster care, if the leave concludes within 12 months of the child's placement; or
     
  • To care for the employee's child if the child has a serious health condition.

Other Leave

(N.D. Admin. Code § 46-02-07-02; N.D. Cent. Code § 54-06-14)

Private employers are not required to offer to employees paid vacation or sick leave. However, the employer is subject to the federal Family Medical Leave Act and its requirements. If a private employer provides paid vacation leave, the employer cannot require an employee to forfeit accrued or earned vacation leave upon separation from employment but may cap the vacation leave an employee may accrue over time. All leave is considered vacation leave, unless the employer specifically divides vacation leave from sick or other types of leave.

State employers are required to provide annual leave and sick leave to those persons not employed under a written contract of hire. Annual leave for these employees must be at minimum one working day per month of employment and at maximum two working days per month of employment.

Smoking Laws

(N.D. Cent. Code §§ 23-12-09 – 23-12-10)

The legislature has enacted a smoke-free law that prohibits smoking in, among other areas, places of employment. Places of employment include any area under the control of a public or private employer. The law does not allow employers to have a smoking room.

Employers, though, are prohibited from discharging, refusing to hire or retaliating against an employee, applicant for employment or other person because that person lawfully smokes.

Break Time to Express Milk

(N.D. Cent. Code § 23-12-17)

Employers are not required to provide break time to express milk. However, employers that wish to use the designation of "infant friendly" are required to have a workplace breastfeeding policy that includes the following:

  • Flexible work scheduling, including scheduling breaks and permitting work patterns that provide time for expression of breast milk;
     
  • A convenient, sanitary, safe and private location, other than a restroom, allowing privacy for breastfeeding or expressing breast milk;
     
  • A convenient clean and safe water source with facilities for washing hands and rinsing breast-pumping equipment located in a private location; and
     
  • A convenient hygienic refrigerator in the workplace for the temporary storage of the mother's breast milk.

Meal Breaks

(N.D. Admin. Code § 46-02-07-02)

Employers are required to provide employees with an unpaid 30-minute uninterrupted meal break when scheduled to work more than five hours and two or more employees are on duty.

Minimum Wage, Overtime and Wage Recordkeeping

Minimum Wage

(N.D. Cent. Code § 34-06-22; N.D. Admin. Code § 46-02-07-01)

Effective July 24, 2009, the minimum wage for non-tipped employees is $7.25. The minimum wage for tipped employees is $4.86. A tipped employee is a service employee who customarily and regularly receives more than $30 in tips per month. Employers must notify tipped employees that they are going to be paying them the tipped wage.

Overtime

(N.D. Admin. Code 46-02-07-02)

In North Dakota, employers are required to pay overtime to employees pursuant to the FLSA when the employee has worked more than 40 hours in a work week. Under the FLSA, they are required to pay time-and-a-half for all hours worked over the 40 hours.

Final Payments

(N.D. Cent. Code § 34-14-03)

An employer must issue a final paycheck to a terminated employee on the next regularly scheduled pay date, or within 15 days, whichever is earlier. An employee who voluntarily terminates their employment is also entitled to receive his or her final paycheck on or before the next regularly scheduled pay date.

Unemployment Insurance

(N.D. Cent. Code § 52-06-01)

Unemployment insurance benefits provide income to individuals who have lost work through no fault of their own. The benefits are intended to partially offset the loss of wages while an unemployed worker searches for suitable work or until an employer can recall the employee to work. Nothing is deducted from the employee's wages to pay for this coverage. Unemployment benefits are administered by Job Service North Dakota and additional information regarding the benefits may be accessed at their website.

In order to be eligible for unemployment benefits in North Dakota, you must:

  • Have earned at least a minimum amount in wages before you were unemployed;
     
  • Be unemployed through no fault of your own; and
     
  • Be able and available to work and be actively seeking employment.

Workers' Compensation

(N.D. Cent. Code §§ 65-01-01 et seq.)

The North Dakota Workers' Compensation Act, administered by the North Dakota Workforce Safety & Insurance Organization (WSI), applies to almost every employer in North Dakota with limited exceptions. Employees who suffer injuries and/or occupational diseases arising out of and in the course of their employment may be eligible to receive several types of benefits under the Act. See website for additional information.

*WSI is the sole provider and administrator of workers' compensation in North Dakota without coverage by private insurance companies.

Child Labor

(N.D. Cent. Code §§ 34-07-01 et seq.)

Generally, 14 is the minimum age for employment under North Dakota state law. A minor of 14 or 15 years of age may not be employed or permitted to work in any occupation except farm labor, domestic service, or in the employment and direct supervision of his or her parent or guardian, unless the minor is exempt from compulsory school attendance or has an employment certificate, as statutorily defined, signed by the minor's parent or guardian. There are other restrictions for places of work dealing with minors, as well as restrictions on the hours of the day the minor may work that can be found in the statutory sections listed above.

Gun Laws

(N.D. Cent. Code § 62.1-02-13)

An employer may not:

  • Prohibit any employee from possessing any legally owned firearm, if the firearm is lawfully possessed and locked inside or locked to a private motor vehicle in a parking lot;
     
  • Make verbal or written inquiry regarding the presence of such firearm or conduct a search for such firearm;
     
  • Condition employment on whether or not an employee has a concealed weapons license or signing of an agreement prohibiting an employee from keeping a legal firearm locked inside or locked to a private motor vehicle; or
     
  • Terminate employment or otherwise discriminate against an employee for exercising the constitutional right to keep and bear arms or for exercising the right of self-defense, as long as a firearm is never exhibited on company property for any reason other than lawful defensive purposes.

Employers do not have a statutory duty of care related to these prohibitions and are not liable in a criminal or civil action based on their action or inaction in compliance with these prohibitions.

Additional Laws and Regulations

Employee v Independent Contractor

(N.D. Cent. Code. § 34-05-01.4)

The commissioner of the Department of Labor and Human Rights receives applications for independent contractor status and makes a determination based on the "common law" test. Additional information on this test may be found at the Department’s website. If verified as an independent contractor, the individual will receive an identification number that will be invalid if the applicant's job changes. 

Equal Pay

(N.D. Cent. Code §§ 34-06.1-01 et seq.)

The North Dakota Equal Pay Act requires that men and women be paid equally for comparable work on jobs that have comparable requirements relating to skill, effort and responsibility. Permissible pay differentials must be based on:

  • Seniority systems;
  • Systems that measure earnings by quantity or quality of production;
  • Job descriptive systems;
  • Merit pay systems; or
  • Bona fide factors other than gender (e.g., gender, training or experience).

Employers are also prohibited from retaliating against employees for submitting a complaint or participating in investigations under this Act.

Human Rights

(N.D. Cent. Code §§ 14-02.4-01 et seq.)

The North Dakota Human Rights Act prohibits employers from discriminating on the basis of race, color, religion, sex, national origin, age, the presence of any mental or physical disability, status with regard to marriage or public assistance, or participation in lawful activity off the employer's premises during nonworking hours which not in direct conflict with essential business-related interests of the employer. The North Dakota Department of Labor and Human Rights enforces this law and additional information on the Act can be found at its website.

Medical Marijuana

(N.D. Cent. Code § 19-24.1-34)

An employer may discipline an employee for possessing, using or being under the influence in the workplace, even when the individual is a legal medical marijuana patient.

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Guide last updated July 2021.

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