N.D. Admin. Code Title 46 — Labor Commissioner

Article 46-01 General Administration

Chapter 46-01-01 Organization of Department of Labor

N.D. Admin. Code 46-01-01-01 Organization of department of labor

1.History. The 1965 legislative assembly established the department of labor. The department is headed by a labor commissioner. The commissioner was originally elected on the no-party ballot for a term of four years, with the first election being held in 1966. Prior to this time agriculture and labor were one department under the commissioner of agriculture and labor.

Effective January 1, 1999, the commissioner is appointed and serves at the pleasure of the governor.

2. Divisions and functions. The department of labor is comprised of two divisions. The wage and hour division is primarily responsible for investigating and resolving claims of unpaid wages and other labor standards. The human rights division is responsible for investigating and resolving complaints of discrimination.

a.Wage and hour division. The wage and hour division handles labor standards, including inquiries and investigation regarding wage payment, child labor, minimum wage, overtime, employment agencies, independent contractor verification, and subminimum wage. Inquiries regarding wage and hour disputes may be addressed to:

North Dakota Department of Labor Wage and Hour Division State Capitol 600 East Boulevard Avenue, Dept. 406 Bismarck, ND 58505-0340

b.Human rights division. The human rights division may mediate, conciliate, or investigate complaints or charges of discrimination in the areas of employment, housing, public services, public accommodations, and credit transactions based on a person's membership in a protected category as set forth in North Dakota Century Code chapters 14-02.4 and 14-02.5. In addition, the human rights division may receive complaints of retaliation under North Dakota Century Code sections 34-01-20 and 34-11.1-05 and attempt voluntary compliance through informal advice, negotiation, or conciliation.

Inquiries may be addressed to:

North Dakota Department of Labor Human Rights Division State Capitol 600 East Boulevard Avenue, Dept. 406 Bismarck, ND 58505-0340

February 1, 1993; May 1, 1994; October 1, 1996; July 1, 2010.

History

• History: Amended effective November 1, 1981; October 1, 1987; November 1, 1989; August 1, 1991;
• General Authority: NDCC 28-32-02.1
• Law Implemented: NDCC 28-32-02.1

Article 46-02 Occupation Minimum Wage and Work Conditions Orders

Chapter 46-02-01 Public Housekeeping Occupation Minimum Wage and Work Conditions Order Number One [Repealed]

N.D. Admin. Code 46-02-01 Public Housekeeping Occupation Minimum Wage and Work Conditions Order Number One [Repealed]

ARTICLE 46-02

OCCUPATION MINIMUM WAGE AND WORK CONDITIONS ORDERS

Chapter 46-02-01Public Housekeeping Occupation Minimum Wage and Work Conditions Order Number One [Repealed] 46-02-02Manufacturing and Processing Occupation Minimum Wage and Work Conditions Order Number Two [Repealed] 46-02-03Mercantile Occupation Minimum Wage and Work Conditions Order Number Three [Repealed] 46-02-04Professional, Technical, Clerical, and Similar Occupations Minimum Wage and Work Conditions Order Number Four [Repealed] 46-02-05Agricultural Occupation Minimum Wage and Work Conditions Order Number Five [Repealed] 46-02-06Motor Carrier Exemption From Overtime Pay Provisions [Repealed] 46-02-07North Dakota Minimum Wage and Work Conditions Order 46-02-08Motor Carrier Exemption From Overtime Pay Provisions [Repealed]

CHAPTER 46-02-01

PUBLIC HOUSEKEEPING OCCUPATION MINIMUM WAGE AND WORK CONDITIONS

ORDER NUMBER ONE [Repealed effective May 1, 1994]

Chapter 46-02-02 Manufacturing and Processing Occupation Minimum Wage and Work Conditions Order Number Two [Repealed]

N.D. Admin. Code 46-02-02 Manufacturing and Processing Occupation Minimum Wage and Work Conditions Order Number Two [Repealed]

CHAPTER 46-02-02

MANUFACTURING AND PROCESSING OCCUPATION MINIMUM WAGE AND WORK

CONDITIONS ORDER NUMBER TWO [Repealed effective May 1, 1994]

Chapter 46-02-03 Mercantile Occupation Minimum Wage and Work Conditions Order Number Three [Repealed]

N.D. Admin. Code 46-02-03 Mercantile Occupation Minimum Wage and Work Conditions Order Number Three [Repealed]

CHAPTER 46-02-03

MERCANTILE OCCUPATION MINIMUM WAGE AND WORK CONDITIONS ORDER

NUMBER THREE [Repealed effective May 1, 1994]

Chapter 46-02-04 Professional, Technical, Clerical, and Similar Occupations Minimum Wage and Work Conditions Order Number Four [Repealed]

N.D. Admin. Code 46-02-04 Professional, Technical, Clerical, and Similar Occupations Minimum Wage and Work Conditions Order Number Four [Repealed]

CHAPTER 46-02-04

PROFESSIONAL, TECHNICAL, CLERICAL, AND SIMILAR OCCUPATIONS MINIMUM

WAGE AND WORK CONDITIONS ORDER NUMBER FOUR [Repealed effective May 1, 1994]

Chapter 46-02-05 Agricultural Occupation Minimum Wage and Work Conditions Order Number Five [Repealed]

N.D. Admin. Code 46-02-05 Agricultural Occupation Minimum Wage and Work Conditions Order Number Five [Repealed]

CHAPTER 46-02-05

AGRICULTURAL OCCUPATION MINIMUM WAGE AND WORK CONDITIONS ORDER

NUMBER FIVE [Repealed effective May 1, 1994]

Chapter 46-02-06 Motor Carrier Exemption from Overtime Pay Provisions [Repealed]

N.D. Admin. Code 46-02-06 Motor Carrier Exemption from Overtime Pay Provisions [Repealed]

CHAPTER 46-02-06

MOTOR CARRIER EXEMPTION FROM OVERTIME PAY PROVISIONS [Repealed effective May 1, 1994]

Chapter 46-02-07 North Dakota Minimum Wage and Work Conditions Order

N.D. Admin. Code 46-02-07-01 Definitions

As used in this title:

1."Administrative" means an employee paid on a salary or fee basis and employed in a bona fide administrative capacity, but is not exclusive to any employee whose primary duty consists of:

a.The performance of office or nonmanual work directly related to management policies or general business operations of the employer or the employer's customer; and

b.Who customarily and regularly exercises discretion and independent judgment.

2."Agricultural employment" means employment on a farm, for a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to carriers for transportation to market.

3."Casual employment" means employment that is irregular or intermittent.

4."Domestic service employment" means services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom the employee is employed.

5."Engaged to wait" means when employees are required to remain on call on the employer's premises or so close thereto that they cannot use the time effectively for their own purposes and thus are considered to be working.

6."Executive" means an employee paid on a salary or fee basis and employed in a bona fide executive capacity, but is not exclusive to any employee whose primary duty consists of:

a.The management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;

b.Directing the work of two or more other employees therein; and

c.The authority to hire or fire other employees or whose suggestions as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight.

7."Highly compensated employee" means an employee who is paid total annualized compensation of one hundred thousand dollars or more, which includes at least four hundred fifty-five dollars per week paid on a salary or fee basis. The employee's primary duty includes performing office or nonmanual work.

8."Nonprofit" means a nonprofit corporation organized under the laws of this or another state.

9."Occasional and sporadic" means infrequent, irregular, or occurring in scattered instances.

10."Professional" means an employee paid on a salary or fee basis and employed in a bona fide professional capacity, but is not exclusive to any employee whose primary duty consists of:

a.Work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes.

b.Work requiring the consistent exercise of discretion and judgment in its performance; and

c.Work that is predominately intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.

11."Residential care establishment" means an institution primarily engaged in the care of the sick, the aged, or the mentally ill residing on the premises requiring general treatment or observation of a less critical nature than provided by a hospital. Such institutions may include nursing homes, rest homes, convalescent homes, homes for the elderly and infirm, and the like.

12."Retail establishment" means an establishment in which seventy-five percent or more of the annual gross sales are sold to the final consumer and are not sold for resale, and is recognized as retail sales or services in the industry.

13."Salary or fee basis" will be interpreted according to the Federal Fair Labor Standards Act.

14."Service employee" means any employee who is providing direct service to the customer and to whom that customer shows appreciation for that service by tipping that employee for the direct service. The employee must regularly and customarily provide personal face-to-face service to individual customers, which the customer would recognize as being performed for his or her benefit. Services such as cooking and dishwashing are not included.

15."Service industry" means an industry in which the principal activity is to provide goods and services directly to the consuming public.

16."Taxicab driver" means an individual employed as a driver by a taxicab company; where the service is a computer or radio dispatched door-to-door service but not a motorcoach or a routed system.

17."Tip credit" means the amount or percentage by which an employer is allowed to reduce the minimum wage for a tipped employee.

18."Tip pooling" means when two or more tipped employees agree to pool their tips and split them as agreed upon.

19."Tipped employee" means any service employee in an occupation in which the employee customarily and regularly receives more than thirty dollars a month in tips.

20."Total annualized compensation" means commissions, nondiscretionary bonuses, and other nondiscretionary compensation earned on a basis of a fifty-two-week period, but does not include board, lodging, or other employer-provided facilities, payments for medical insurance or life insurance, or contributions to a retirement plan or other fringe benefits.

21."Waiting to be engaged" means when employees are on call and not required to remain on the employer's premises, but are required to respond to a beeper or leave word at home or the employer's business where they may be reached. Employees are not considered to be working while in this status.

22."Week" means any consecutive seven-day period established by the employer.

History

• History: Effective May 1, 1994; amended effective March 1, 1998; October 1, 2012.

N.D. Admin. Code 46-02-07-02 Standards that apply

1.The North Dakota minimum wage is set forth in North Dakota Century Code section 34-06-22.

The following are exempt from minimum wage and working conditions provided in this

chapter:

a.Employees of nonprofit camps that are directly youth-related and intended for educational purposes.

b.A guide, cook, or camp-tender for a hunting or fishing guide service.

c.Golf course caddies.

d.Any person in a program for youthful or first-time offenders designed as an alternative to incarceration if the person:

(1)Voluntarily enters into the program for personal benefit;

(2)Does not displace regular employees or infringe on the employment opportunities of others;

(3)Is under the supervision or control of a court; and (4)Performs the work without contemplation of pay.

e.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.

f.Actors or extras for a motion picture.

g.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 babysitting services.

h.Volunteers as described in this subdivision:

(1)Individuals who donate their time and services, usually on a part-time basis, including public service, humanitarian objectives, religious, fraternal, nonprofit, and charitable organizations, not as employees and without contemplation of pay.

(2)Individuals who provide services to hospitals or nursing homes to provide support and assistance to families and patients.

(3)Regular employees of religious, nonprofit, or charitable organizations may volunteer their services for activities outside of their normal work duties.

(4)Residents or patients of shelters, foster care, or other such related establishments may volunteer their services as long as regular employees are not displaced.

i.Student trainees meeting the following six criteria:

(1)The training is similar to that in a vocational school.

(2)The training is clearly for the benefit of the trainee.

(3)The trainee does not displace regular employees.

(4)The employer derives no immediate benefit.

(5)The trainee is not entitled to a job.

(6)The trainee is not entitled to wages.

2.The commissioner may issue subminimum wages for students enrolled in vocational education or related programs as long as the wage is not below eighty-five percent of the current state minimum wage.

The process for granting subminimum wages for students includes:

a.The student must complete the application for subminimum wage certificate for vocational education students (SFN 51370). The application (SFN 51370) includes: the employee's name, address, and signature; the employer's name, type of business, address, and signature; a description of the job; the pay rate; the vocational education instructor's signature.

b.Upon receipt of the application the commissioner may issue a license to pay a subminimum wage to the employee for not more than one year.

3.The process for granting subminimum wages to individuals with disabilities in accordance with North Dakota Century Code section 34-06-15 includes:

a.The disabled worker must complete the application for subminimum wage certificate for individuals with disabilities (SFN 51371). The application (SFN 51371) includes: the employee's name, address, and signature; the employer's name, type of business, address, and signature; a description of the job; the prevailing wage; the proposed pay rate; and an analysis of the employee's productive capacity. A physician's signed verification of the disability in relationship to the job duties or existing supporting evidence of the disability must be provided.

b.In order to be paid less than the minimum wage, documentation of the employee's commensurate wage rate must be provided to the commissioner and maintained by the employer. Commensurate wages are determined by assessing nondisabled worker productivity, the prevailing wage rate for the same or similar work, and an evaluation of the worker's own efficiency.

c.Upon receipt of the application and documentation the commissioner may issue a license to pay a subminimum wage to the employee for not more than one year.

d.The worker's commensurate wage rate must be reevaluated by the employer every six months and adjusted accordingly; the employer must maintain all documentation.

The commissioner may issue a special license to pay less than the minimum wage to nonprofit community rehabilitation programs for the handicapped under North Dakota Century Code section 34-06-15. Those programs must conduct a recognized program for rehabilitation for handicapped workers or provide paid employment for such workers or other occupational rehabilitative activity of an educational or learning nature. Special licenses to these programs may be issued after the commissioner receives a copy of the application and license from the commensurate federal program for employment of disabled workers under special certificates.

4.Overtime pay must be paid at one and one-half times the regular rate of pay to any employee for hours worked in excess of forty hours in any one week. Paid holidays, paid time off, or sick leave are not counted in computing overtime hours. Overtime is computed on a weekly basis regardless of the length of the pay period. Hours worked may not be averaged over the pay period or used to offset shorter weeks. Employees working more than one job under the control of the same employer must have all hours worked counted toward overtime.

Individuals employed as drivers by taxicab companies must be compensated at one and one-half times the regular rate of pay for all hours worked in excess of fifty hours in any one week. Hospitals and residential care establishments may adopt, by agreement with their employees, a fourteen-day overtime period in lieu of the usual seven-day workweek, if the employees are paid at least time and one-half their regular rate for hours worked over eight in a day or eighty in a fourteen-day work period. The following types of employment are exempt from the overtime provisions of this subsection:

a.Any employee employed in a bona fide executive, administrative, or professional capacity.

b.Any employee engaged in an agricultural occupation.

c.Any employee spending at least fifty-one percent of the employee's 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.

d.Any employee employed in domestic service who resides in the household in which employed.

e.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.

f.Computer professionals exercising discretion and independent judgment when designing, developing, creating, analyzing, testing, or modifying computer programs or who are paid hourly at a rate of at least twenty-seven dollars and sixty-three cents.

g.Any employee who is customarily and regularly engaged away from the employer's premises for the purpose of making sales or taking orders. Work unrelated to outside sales may not exceed twenty percent of the hours worked in the week for the exemption to apply.

h.Mechanics paid on a commission basis off a flat rate schedule.

i.An employee of a retail establishment if the employee's regular rate of pay exceeds 1.5 times the minimum hourly rate applicable if more than half of the employee's compensation for a period of not less than one month is derived from commission on goods or services sold.

j.Any employee employed as an announcer, news editor, or chief engineer by a radio or television station.

k.Artistic professions which are original and creative in nature or where the work is dependent upon the invention, imagination, or talent of the employee, such as: editors, columnists, critics, publishers, cartoonists, graphic artists, musicians, composers, conductors, soloists, novelists, writers, and actors.

l.Motor carrier: Any employee exempted by section 13(b)(1), (2), and (3) of the Fair Labor Standards Act [29 U.S.C. 213(b)(1), (2), and (3)] from section 7 of the Fair Labor Standards Act [29 U.S.C. 207], as applied to covered employees of motor common, contract, and private carriers specified by the Motor Carriers Act [49 U.S.C. 3102].

m.Teachers, instructors, tutors, and lecturers engaged in teaching in a school or educational system.

n.A highly compensated employee.

5.A minimum thirty-minute meal period must be provided in each shift exceeding five hours when there are two or more employees on duty. Employees may waive their right to a meal period upon agreement with the employer. Employees do not have to be paid for meal periods if they are completely relieved of their duties and the meal period is ordinarily thirty minutes in length. The employee is not completely relieved if required to perform any duties during the meal period. Collectively bargained agreements will prevail over this provision.

6.Attendance at lectures, meetings, training programs, and similar activities need not be counted as working time if all the following four criteria are met:

a.Attendance is outside of the employee's regular working hours.

b.Attendance is in fact voluntary.

c.The course, lecture, or meeting is not directly related to the employee's job.

d.The employee does not perform any productive work during such attendance.

Training or education mandated by the state, federal government, or any political subdivision for a specific occupation need not be counted as work time.

7.Ordinary travel from home to work need not be counted as work time. Special and unusual one-day assignments performed for the employer's benefit and at the employer's request is work time for the employee regardless of driver or passenger status. Travel away from home is work time when performed during the employee's regular working hours. Time spent traveling on nonworking days during regular working hours is work time. The time spent as a passenger on an airplane, train, bus, or automobile after normal working hours is not work time. The driver of a vehicle is working at anytime when required to travel by the employer.

Travel time from jobsite to jobsite, or from office to jobsite, is work time to be compensated.

Activities which are merely incidental use of an employer-provided vehicle for commuting home to work are not considered part of the employee's principal activity and therefore need not be counted as work time.

8.Standby time on the employer's premises, or "on call" as in an engaged to wait manner is work time to be compensated. Waiting to be engaged is not required to be compensated as work time.

9.If an employee is required to be on duty for twenty-four hours or more, the employer and the employee may agree to exclude bona fide meal periods and bona fide regularly scheduled sleeping periods of not more than eight hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted sleep. If the sleeping period is more than eight hours, only eight hours will be deducted from hours worked. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep, the entire period must be counted as work time.

10.Recordkeeping: Every employer must furnish to an employee each pay period a check stub or pay voucher that indicates hours worked, the rate of pay, required state and federal deductions, and authorized deductions.

Time clocks: Time clocks are not required. If used, the employer may round the time to the nearest five minutes or quarter hour using the total minutes for the day as long as the employee over a period of time is paid for all the time the employee has actually worked.

Employees who voluntarily clock in before their regular starting time or remain after closing time do not have to be compensated provided that no work is performed.

11.An employer may require an employee to purchase uniforms if the cost of such uniforms does not bring that employee's wage below the hourly minimum wage for all hours worked during that pay period.

12.Paid time off includes annual leave, earned time, personal days, or any other provisions of the employment relationship intended to provide compensation as vacation. Provisions where employees earn time off and the employees can use the days for any purpose, are paid time off unless separate arrangements are made for sick leave.

Paid time off, once earned or awarded, is considered wages upon separation from employment. If the paid time off is available for use at the time of separation from employment, the employer must pay the employee for that time at the regular rate of pay earned by the employee prior to separation.

No employment contract or policy may provide for forfeiture of earned paid time off upon separation. An employment contract or policy may require an employee to take vacation by a certain date or lose the vacation (use it or lose it), provided that the employee is given a reasonable opportunity to take the vacation. The employer must demonstrate that the employee had notice of such contract or policy provision.

13.The reasonable value not exceeding the employer's actual cost of board, lodging, and other facilities customarily furnished by the employer for the employee's benefit may be treated as

part of the wages, up to a maximum of eighteen dollars per day, if agreed to by a written agreement and if the employee's acceptance of facilities is in fact voluntary.

14.The common law test provided in subdivisions a and b of subsection 5 of section 27-02-14-01 will be used to determine whether or not an individual may be considered an employee or an independent contractor.

15.Earned bonus: An earned bonus is an amount paid in addition to a salary, wage, or commission. An earned bonus is compensable when an employee performs the requirements set forth in a contract or an agreement between the parties.

Earned commission: A commission is a fee or percentage given for compensation to an individual for completion of a sale, service, or transaction. Upon separation from employment, the past practices, policies, and entire employment relationship will be used to determine if the commission is earned and compensable.

16.The department will use the past practices, policies, and entire employment relationship in wage claim determinations.

History

• History: Effective May 1, 1994; amended effective October 1, 1996; September 1, 1997; March 1, 1998; July 24, 2007; October 1, 2012.
• Law Implemented: NDCC 34-06-03, 34-06-09, 34-06-11, 34-06-12, 34-06-15

N.D. Admin. Code 46-02-07-03 Additional standards that apply to service and nonprofit industries

1.A tip credit of thirty-three percent of the minimum wage may be allowed for tipped employees.

The employer may consider tips as part of wages, but such a tip credit must not exceed thirty-three percent of the minimum wage. The employer who elects to use the tip credit provision must inform the employee in advance and must maintain written records showing that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined.

2.Tip pooling is allowed only among the tipped employees. A vote of tipped employees to allow tip pooling must be taken, and fifty percent plus one of all tipped employees must approve it.

The employer must maintain a written record of each vote on tip pooling, including names of employees voting and the vote totals. A vote on whether to pool tips is required if requested by fifty-one percent or more of the tipped employees. The tipped employees shall provide documentation verifying the request. Time spent in meetings called by the employees exclusively for tip issues is not work time.

3.Tipped employees employed in the nonprofit gaming industry means all employees who are employed as gaming attendants by a gaming organization licensed under North Dakota Century Code section 53-06.1-03.

a.Gaming sites that regularly have four or fewer tipped employees on duty can require tip pooling among all tipped employees at the site.

b.A gaming organization licensed under North Dakota Century Code section 53-06.1-03 may require tip pooling by blackjack (twenty-one) dealers at an authorized site as provided in North Dakota Century Code section 53-06.1-10. This tip pooling requirement only pertains to any employee, pit boss, or supervisor when actually dealing blackjack (twenty-one).

c.Pit bosses or supervisors at gaming sites are not tipped employees and cannot be part of the tip pool when performing functions of those positions other than dealing blackjack (twenty-one).

History

• History: Effective May 1, 1994; amended effective October 1, 1996; September 1, 1997; March 1, 1998.

N.D. Admin. Code 46-02-07-04 Additional standards that apply to government entities

1.Any two individuals employed by the state or any political subdivision in any occupation may agree to substitute for one another during scheduled work hours in performance of work in the same capacity. The hours worked shall be excluded by the employer in the calculation of the hours for which the substituting employee would otherwise be entitled to overtime. If one employee works for another, each employee will be credited as if that employee had worked that employee's normal schedule. In order to qualify an agreement between individuals employed by the agency the agreement must be approved by the agency. The agency approval must be prior to the work being done. Each employee must be free to refuse to participate. The employee's decision to participate is valid only if freely made without coercion from the employer. A public agency that employs individuals who substitute or "trade time" under this section is not required to keep a record of the hours of the substitute work. This subsection must be interpreted in accordance with 29 CFR 553.31, as amended.

2.A state or political subdivision employee, solely at the employee's own option, may work occasionally or sporadically on a part-time basis for the same agency in a different capacity from the regular employment. The hours worked in the different jobs must not be combined for overtime purposes. This subsection must be interpreted in accordance with 29 CFR 553.30, as amended.

History

• History: Effective May 1, 1994.

Chapter 46-02-08 Motor Carrier Exemption from Overtime Pay Provisions [Repealed]

N.D. Admin. Code 46-02-08 Motor Carrier Exemption from Overtime Pay Provisions [Repealed]

CHAPTER 46-02-08

MOTOR CARRIER EXEMPTION FROM OVERTIME PAY PROVISIONS [Repealed effective March 1, 1998]

Article 46-03 Calculation of a Regular Rate and Overtime

Chapter 46-03-01 Calculation of a Regular Rate and Overtime

N.D. Admin. Code 46-03-01-01 Formulas for determining regular rate and overtime

1.Determining overtime from an hourly rate:

Hourly rate x 1.5=Overtime hourly rate of pay Overtime hourly rate of pay x Number of hours worked in excess of 40 = Amount of overtime due

2.Determining hourly rate and overtime from monthly salary:

Monthly salary x 12 =Weekly salary Weekly salary =Rate per hour Total hours worked during that week To calculate overtime from this:

Rate per hour x 1/2xNumber of hours worked in excess of 40 =Amount of overtime due

3.Determining hourly rate and overtime for retail employees paid principally from commissions:

Total compensation for one week =Regular rate of pay Total hours worked for that same week

4.Weighted average method of overtime: When an employee performs two jobs for the same employer, with each job having a different rate of pay, the method of computing overtime is as follows:

Job 1:Rate of payxNumber of hours=Compensation Job 2:

Rate of payx Number of hours = Compensation Total hoursTotal compensation Total compensation =Average per hour Total hours Average per hour =Rate of overtime The rate of overtime multiplied by the number of overtime hours (hours in excess of 40) is the total overtime due.

5.Determining overtime from regular rate and overtime from day rates and job rates:

If the employee is paid a flat sum for a day's work or for doing a particular job, without regard to the number of hours worked in the day or at the job, and if the employee receives no other form of compensation for services, the employee's regular rate is determined by totaling all the sums received at such day rates or job rates in the workweek and dividing by the total hours actually worked. The employee is then entitled to extra half-time pay at the rate for all hours worked in excess of forty in the workweek.

History

• History: Effective December 1, 1992; amended effective March 1, 1998; October 1, 2012.
• General Authority: NDCC 28-32-02(1), 34-06-04
• Law Implemented: NDCC 34-06-11, 34-06-12

Article 46-04 Human Rights

Chapter 46-04-01 Human Rights Practice and Procedure

N.D. Admin. Code 46-04-01-01 Definitions

When used in this chapter or in the North Dakota Human Rights Act:

1."Act" means the North Dakota Human Rights Act, North Dakota Century Code chapter 14-02.4.

2."Alternative dispute resolution" means the confidential and voluntary mediation process facilitated by the department for resolving allegations of employment discrimination prior to investigation being conducted by the department.

3."Charge of discrimination" means written allegations of a discriminatory practice in regard to employment filed with the department in compliance with these rules, including an amended charge of discrimination.

4."Charging party" means a person, including the department, who files a charge of discrimination in regard to discriminatory employment practices under North Dakota Century Code chapter 14-02.4.

5."Complainant" means a person, including the department, who files a complaint under North Dakota Century Code section 14-02.4-19, in all areas covered by the Act, except employment.

6."Complaint" means written allegations of a discriminatory practice filed with the department in compliance with these rules, in all areas covered by the Act, except employment, including an amended complaint.

7."Conciliation" means the negotiations facilitated by the department between a charging party and the respondent to resolve the issues involving employment, after there has been a determination of probable cause.

8."Conciliation agreement" means a written agreement setting forth the terms that resolve the issues under conciliation.

9."EEOC" means the United States equal employment opportunity commission.

10."Informal negotiations" means negotiations facilitated by the department between a complainant or charging party and the respondent to resolve the issues raised in the complaint or charge of discrimination, which may include mediation or alternative dispute resolution.

11."Negotiated settlement agreement" means a written agreement setting forth the terms that resolve the issues under informal negotiation.

12."Respondent" means a person accused of a discriminatory practice.

History

• Law Implemented: NDCC 14-02.4

N.D. Admin. Code 46-04-01-02 Intake and reviewability and dismissal

1.An aggrieved person may utilize an intake questionnaire provided by the department to gain assistance from the department by contacting the department in person, by telephone, or in writing regarding alleged discriminatory practices.

2.The department shall promptly make a preliminary assessment to determine whether the information provided involves a potential violation of the Act and whether the department has jurisdiction over the matter.

3.The department shall administratively close or dismiss an intake questionnaire if during the preliminary assessment of the intake questionnaire it is determined that the alleged violation is:

a.Not within the jurisdiction of the department; or

b.Otherwise excluded from department review by state or federal law.

4.If it is determined that the department does not have jurisdiction, the department shall inform the aggrieved person of the reason the department lacks jurisdiction.

History

• Law Implemented: NDCC 14-02.4

N.D. Admin. Code 46-04-01-03 Complaint or charge of discrimination

1.A complaint or charge of discrimination may be filed by any aggrieved person or the person's duly authorized representative. A complaint or charge of discrimination filed by a representative shall state that the representative is authorized to file the complaint. The department may file a complaint or charge of discrimination.

2.Department staff shall be available during regular business hours to provide reasonable assistance to the aggrieved person in the drafting of the complaint or charge of discrimination.

3.Every complaint or charge of discrimination must be in writing, signed and verified upon a form designated by the department.

4.A complaint or charge of discrimination must contain a concise statement setting forth, to the extent reasonably possible, the following information:

a.The name, address, and telephone number of the complainant or charging party;

b.The name, address, and telephone number of the respondents;

c.The specific basis for the complainant's or charging party's belief that an unlawful practice has occurred, with relevant dates, places, and names of any individual participating in the alleged unlawful conduct or practice;

d.The specific basis for the complainant's or charging party's belief that the alleged conduct is subject to the Act, identifying the statute to be reviewed;

e.The specific harm the complainant or charging party believes he or she has suffered as a result of the alleged unlawful conduct; and

f.Any other information required by the department.

5.A complaint or charge of discrimination may be amended at any time by the complainant, the charging party, or the department in order to:

a.Cure technical defects or omissions;

b.Allege additional facts if they relate to the facts in the original complaint or charge of discrimination;

c.Add, remove, or change a party; or

d.Accomplish the purposes of the Act.

6.A complaint of discrimination may be withdrawn by a complainant. A charge of discrimination may be withdrawn by a charging party but only with the consent of the department. A complainant or charging party may submit a signed request for withdrawal with the department at any time. The department shall consider whether the withdrawal of the charge would defeat the purposes of the Act, and based upon that assessment, may permit or refuse to permit the withdrawal of a charge of discrimination by a charging party.

7.A charge of discrimination filed with the department that alleges a violation of law administered by the EEOC under the then existing work-sharing agreement shall be forwarded to the EEOC by the department.

N.D. Admin. Code 46-04-01-04 Computation of time

1.Time limitations for filing an action are as set forth in North Dakota Century Code section 14-02.4-19. In actions involving the department, a complaint, a charge of discrimination, and answer, or an election is deemed to be filed on the date it is received by the department, whether by mail, personal delivery, or facsimile. Documents produced by the department are deemed filed when signed by the commissioner or by the commissioner's designee.

2.Each document received by the department shall be date-stamped to reflect the date it was received.

N.D. Admin. Code 46-04-01-05 Notice requirements

1.Notice to complainant or charging party. Within ten days of the filing of the complaint or charge of discrimination, the department shall provide notice to the complainant or charging party and such notice must include:

a.The date the complaint or charge of discrimination was filed with the department;

b.A copy of the complaint or charge of discrimination; and

c.A statement describing the department's duties and the complainant's or charging party's obligations under the Act.

2.Notice to respondents. Within ten days of the filing of a complaint or charge of discrimination, the department shall provide notice to the respondents, and such notice must include:

a.The date the complaint or charge of discrimination was filed with the department;

b.A copy of the complaint or charge of discrimination;

c.A statement of the time limits applicable to the investigative process;

d.A statement describing the respondent's options for responding to the complaint or charge of discrimination; and

e.A statement, if not readily discernible from the complaint or charge of discrimination, identifying the alleged discriminatory practice on which the complaint or charge of discrimination is based.

N.D. Admin. Code 46-04-01-06 Respondent's response

1.The respondents may file a signed written response within twenty days of the date a respondent receives notice of the complaint or charge of discrimination.

2.If the complaint or charge of discrimination is amended, the respondents may file an amended response in the same manner as the original.

3.Department staff shall be available during regular business hours to provide reasonable assistance to respondents in drafting and completing responses.

4.The department may grant an extension of time to file a response upon request by a respondent if such a request is reasonable and not for the purpose of delay.

5.Failure by a respondent to file a response may result in the department concluding its investigation based upon information provided by the complainant or charging party and such other information as is reasonably available to the department.

6.The department may send a followup request for information, to gather additional documentary evidence, and when relevant, to gather comparative information as to how other persons similarly situated were treated by the respondents.

7.Failure by a respondent to provide requested information may result in the department issuing a subpoena or subpoena duces tecum requiring the production of the requested information.

N.D. Admin. Code 46-04-01-07 Informal negotiations

1.In all cases involving allegations of discriminatory practices, the department, during the period beginning with the filing of a complaint or charge of discrimination and ending with the dismissal or the issuance of a determination of probable cause by the department, to the extent feasible, shall engage in informal negotiations in an attempt to resolve the complaint or charge of discrimination.

2.The department does not represent any party in the informal negotiation process and shall act as a neutral third party in attempting to reach an agreement that is satisfactory to all parties.

3.A negotiated settlement agreement between the complainant or charging party and the respondents shall be reduced to writing, is subject to departmental approval, and is enforceable in the same manner as a final determination of the department. A copy of the signed negotiated settlement agreement shall be provided to the complainant or charging party and the respondents.

4.A negotiated settlement agreement may include terms for monitoring compliance with the agreement. The department may require any party to submit compliance reports as the department deems necessary to show the manner of compliance with the terms of the negotiated settlement agreement.

5.When the department is unable to obtain voluntary compliance and it is determined that further efforts would be futile or nonproductive, the parties will be notified in writing that negotiations to resolve the dispute have failed. If any party fails to respond within fifteen days after the receipt of a proposed negotiated settlement, the department may conclude that negotiations have failed as a result of the inactivity.

6.The department shall monitor all negotiated settlement agreements which have been approved by the department and which require specific performance by one or more of the parties. If it appears that a party is not in compliance with the terms of the agreement, the department shall notify the party in an attempt to obtain voluntary compliance or conduct further investigation into the alleged breach, or do both.

7.If there is probable cause to believe that a party has breached the negotiated settlement agreement, the department may commence proceedings to enforce the agreement unless to do so would not warrant the use of department resources.

N.D. Admin. Code 46-04-01-08 Investigation and disposition

1.Pursuant to North Dakota Century Code section 14-02.4-22, the department shall investigate allegations of discriminatory practices.

2.An investigation may include, subject to reasonable notice to the parties, onsite visits, interviews, fact-finding conferences, and the obtaining of records and other information as is reasonably necessary to investigate the complaint or charge of discrimination.

3.A party's unjustified failure to cooperate with the department's reasonable investigative request may result in the department concluding its investigation based on such other information as is available to the department. A party's unjustified failure to cooperate with the reasonable investigative request may also result in the issuance of a subpoena or subpoena duces tecum.

4.Unless the matter is otherwise resolved, upon completing its investigation the department shall determine from the evidence obtained whether probable cause exists to believe that a discriminatory practice has occurred. The determination will include a brief statement of the reasons for the department's conclusions and will be mailed to all parties.

5.If the department determines that probable cause exists to believe that a discriminatory practice has occurred or is occurring and is unable to resolve the complaint through informal negotiations or conciliation, the aggrieved person will be offered an administrative hearing at no cost. If the aggrieved person requests an administrative hearing, the department participates in the hearing in an attempt to obtain appropriate relief on behalf of the aggrieved person. The attorney general represents the department in such proceedings. An aggrieved person has the right to intervene; however, if an aggrieved person wishes to be represented by an attorney at the administrative hearing, it will be at the person's own expense.

6.The aggrieved person will be notified in writing of the person's option to request an administrative hearing. The aggrieved person must contact the department within twenty days from receipt of the determination to elect an administrative hearing. Reasonable extensions will be considered if the request is made within the twenty-day period.

7.If the aggrieved person does not elect an administrative hearing offered by the department, the aggrieved person may bring a civil action in state district court. The aggrieved person is responsible for the person's own representation in a state district court action.

8.On all complaints or charges of discrimination filed under the Act, it is the department's goal to determine whether or not probable cause exists within one hundred eighty days unless it is impracticable to do so. If the department is unable to make its determination within one hundred eighty days, it shall notify the parties of the reasons for delay.

9.The department may dismiss or administratively close a complaint or charge of discrimination prior to the completion of its investigation if:

a.The matter is resolved through informal negotiations;

b.The complaint or charge of discrimination is withdrawn by the complainant or charging party;

c.The complainant or charging party fails to cooperate with the department during the investigation, subject to the department providing notification by certified mail, of the need to cooperate or provide required information, or both, within thirty days of the notice;

d.The department is unable to locate the complainant or charging party; or

e.The complaint or charge of discrimination is deferred to a federal agency for investigation under the terms of a work-sharing agreement between the department and the federal agency.

10.The department shall notify the complainant or charging party and respondent of any dismissal or administrative closure of a complaint or charge of discrimination.

History

• Law Implemented: NDCC 14-02.4-23

N.D. Admin. Code 46-04-01-09 Conciliation in employment discrimination

1.In cases involving allegations of discriminatory employment practices, the department, during the period beginning with the issuance of a probable cause determination, to the extent feasible, shall engage in conciliation with the parties in an attempt to resolve the charge of discrimination.

2.The department does not represent any party in the conciliation process and shall act as a neutral third party during the conciliation process in attempting to reach an agreement that is satisfactory to all parties.

3.A conciliation agreement between the charging party and the respondents shall be reduced to writing, is subject to departmental approval, and is enforceable in the same manner as a final determination of the department. A copy of the signed conciliation agreement shall be provided to the charging party and the respondents.

4.A conciliation agreement may include terms for monitoring compliance with the agreement.

The department may require any party to submit compliance reports as the department deems necessary to show the manner of compliance with the terms of the conciliation agreement.

5.When the department is unable to obtain voluntary compliance and it is determined that further efforts would be futile or nonproductive, the charging party and the respondents shall be notified in writing that conciliation efforts have failed. If any party does not respond within fifteen days after the receipt of a proposed conciliation remedy, the department may conclude that conciliation has failed as a result of the inactivity.

6.The department shall monitor all conciliation agreements which have been approved by the department and which require specific performance by one or more of the parties. If it appears that a party is not in compliance with the terms of the agreement, the department shall notify the party in an attempt to obtain voluntary compliance or conduct further investigation into the alleged breach, or do both.

7.If there is probable cause to believe that a party has breached the conciliation agreement, the department may commence proceedings to enforce the agreement, unless to do so would not warrant the use of department resources.

N.D. Admin. Code 46-04-01-10 Reliance on outside sources

The rules set forth contain the procedures established by the department for carrying out its responsibilities in the administration and enforcement of the Act. In the absence of a specific rule, in cases when a charge of discrimination is dual-filed with the department and the EEOC, the department will rely on federal regulations and the compliance manual established by the EEOC for guidance.

History

• Law Implemented: NDCC 14-02.4-23

N.D. Admin. Code 46-04-01-11 Parties' right to representation

The complainant, any aggrieved person, or the respondent may be accompanied, advised, and represented throughout the investigation or any administrative proceeding by any chosen representative, including private counsel, at the party's own expense. If the party chooses to be represented, the party must notify the department in writing of such representation and of the nature and scope of the representation to facilitate effective communication.

Article 46-05 Housing

Chapter 46-05-01 Housing for Older Persons

N.D. Admin. Code 46-05-01-01 Housing for persons who are fifty-five years of age or older - Definitions

1.The provisions regarding familial status and age in North Dakota Century Code chapter 14-02.5 shall not apply to housing intended and operated for persons fifty-five years of age or older.

2.For purpose of this chapter, "housing facility or community" means any dwelling or group of dwelling units governed by a common set of rules, regulations, or restrictions. A portion or portions of a single building shall not constitute a housing facility or community. Examples of a housing facility or community include a:

a.Condominium association;

b.Cooperative;

c.Property governed by a homeowners' or resident association;

d.Municipally zoned area;

e.Leased property under common private ownership;

f.Mobile home park; and

g.Manufactured housing community.

3.For purposes of this chapter, "older person" means a person fifty-five years of age or older.

History

• Law Implemented: NDCC 14-02.5-11; 24 CFR 100.304

N.D. Admin. Code 46-05-01-02 Eighty percent occupancy

1.In order for a housing facility or community to qualify as housing for older persons under North Dakota Century Code section 14-02.5-11, at least eighty percent of its occupied units must be occupied by at least one person fifty-five years of age or older.

2.For purposes of this chapter, "occupied unit" means:

a.A dwelling unit that is actually occupied by one or more persons on the date that the exemption is claimed; or

b.A temporarily vacant unit, if the primary occupant has resided in the unit during the past year and intends to return on a periodic basis.

3.For purposes of this chapter, "occupied by at least one person fifty-five years of age or older" means that on the date the exemption for housing designed for persons who are fifty-five years of age or older is claimed:

a.At least one occupant of the dwelling unit is fifty-five years of age or older; or

b.If the dwelling unit is temporarily vacant, at least one of the occupants immediately prior to the date on which the unit was temporarily vacated was fifty-five years of age or older.

4.Newly constructed housing for first occupancy need not comply with the requirements of this

section until at least twenty-five percent of the units are occupied. For purposes of this

chapter, "newly constructed housing" includes a facility or community that has been wholly unoccupied for at least ninety days prior to re-occupancy due to renovation or rehabilitation.

5.Housing satisfies the requirements of this section even though:

a.There are unoccupied units, provided that at least eighty percent of the occupied units are occupied by at least one person fifty-five years of age or older.

b.There are units occupied by employees of the housing facility or community, and family members residing in the same unit, who are under fifty-five years of age, provided the employees perform substantial duties related to the management or maintenance of the facility or community.

c.There are units occupied by persons who are necessary to provide a reasonable accommodation to disabled residents and who are under the age of fifty-five.

d.For a period expiring January 1, 2011, there are insufficient units occupied by at least one person fifty-five years of age or older, but the housing facility or community, at the time the exemption is asserted:

(1)Has reserved all unoccupied units for occupancy by at least one person fifty-five years of age or older until at least eighty percent of the units are occupied by at least one person who is fifty-five years of age or older; and (2)Meets the requirements of sections 46-05-01-03 and 46-05-01-04.

6.For purposes of the transition provision described in subdivision d of subsection 5, a housing facility or community may not evict, refuse to renew leases, or otherwise penalize families with children who reside in the facility or community in order to achieve occupancy of at least eighty percent of the occupied units by at least one person fifty-five years of age or older.

7.When application of the eighty percent rule results in a fraction of a unit, that unit shall be considered to be included in the units that must be occupied by at least one person fifty-five years of age or older.

8.Each housing facility or community may determine the age restriction, if any, for units that are not occupied by at least one person fifty-five years of age or older, so long as the housing facility or community complies with the provisions of section 46-05-01-03.

History

• Law Implemented: NDCC 14-02.5-11; 24 CFR 100.305

N.D. Admin. Code 46-05-01-03 Intent to operate as housing designed for persons who are fifty-five years of age or older

1.In order for a housing facility or community to qualify as housing designed for persons who are fifty-five years of age or older, it must publish and adhere to policies and procedures that demonstrate its intent to operate as housing for persons fifty-five years of age or older. The following factors, among others, are considered relevant in determining whether the housing facility or community has complied with this requirement:

a.The manner in which the housing facility or community is described to prospective residents;

b.Any advertising designed to attract prospective residents;

c.Lease provisions;

d.Written rules, regulations, covenants, deeds, or other restrictions;

e.The maintenance and consistent application of relevant procedures;

f.Actual practices of the housing facility or community; and

g.Public posting in common areas of statements describing the facility or community as housing for persons fifty-five years of age or older.

2.Phrases such as "adult living", "adult community", or similar statements in any written advertisement or prospectus are not consistent with the intent that the housing facility or community intends to operate as housing for persons fifty-five years of age or older.

3.If there is language in a deed or other community or facility document which is inconsistent with the intent to provide housing for persons who are fifty-five years of age or older, the commissioner shall consider documented evidence of a good-faith attempt to remove such language in determining whether the housing facility or community complies with the requirements of this section in conjunction with other evidence of intent.

4.A housing facility or community may allow occupancy by families with children as long as it meets the requirements of section 46-05-01-02 and subsection 1 of section 46-05-01-03.

History

• Law Implemented: NDCC 14-02.5-11; 24 CFR 100.306

N.D. Admin. Code 46-05-01-04 Verification of occupancy

1.In order for a housing facility or community to qualify as housing for persons fifty-five years of age or older, it must be able to produce, in response to a complaint filed under this title, verification of compliance with section 46-05-01-02 through reliable surveys and affidavits.

2.A facility or community shall, within one hundred eighty days of January 1, 2010, develop procedures for routinely determining the occupancy of each unit, including the identification of whether at least one occupant of each unit is fifty-five years of age or older. Such procedures may be part of a normal leasing or purchasing arrangement.

3.The procedures described in subsection 2 must provide for regular updates, through surveys or other means, of the initial information supplied by the occupants of the housing facility or community. Such updates must take place at least once every two years.

4.Any of the following documents are considered reliable documentation of the age of the occupants of the housing facility or community:

a.Driver's license;

b.Birth certificate;

c.Passport;

d.Immigration card;

e.Military identification;

f.Any other state, local, national, or international official documents containing a birth date of comparable reliability; or

g.A certification in a lease, application, affidavit, or other document signed by any member of the household age eighteen or older asserting that at least one person in the unit is fifty-five years of age or older.

5.A facility or community shall consider any one of the forms of verification identified above as adequate for verification of age, provided that it contains specific information about current age or date of birth.

6.The housing facility or community must establish and maintain appropriate policies to require that occupants comply with the age verification procedures required by this section.

7.If the occupants of a particular dwelling unit refuse to comply with the age verification procedures, the housing facility or community may, if it has sufficient evidence, consider the unit to be occupied by at least one person fifty-five years of age or older. Such evidence may include:

a.Government records or documents, such as a local household census;

b.Prior forms or applications; or

c.A statement from an individual who has personal knowledge of the age of the occupants.

The individual's statement must set forth the basis for such knowledge and be signed under the penalty of perjury.

8.Surveys and verification procedures which comply with the requirements of this section shall be admissible in administrative and judicial proceedings for the purpose of verifying occupancy.

9.A summary of occupancy surveys shall be available for inspection upon reasonable notice and request by any person.

History

• Law Implemented: NDCC 14-02.5-11; 24 CFR 100.307

N.D. Admin. Code 46-05-01-05 Good-faith defense

1.A person shall not be held personally liable for monetary damages for discriminating on the

basis of familial status, if the person acted with the good-faith belief that the housing facility or community qualified for an exemption under this chapter. 2.a.A person claiming the good-faith belief defense must have actual knowledge that the housing facility or community has, through an authorized representative, asserted in writing that it qualifies for a housing for older persons exemption.

b.Before the date on which the discrimination is claimed to have occurred, a community or facility, through its authorized representatives, must verify, in writing and under oath or affirmation, to the person subsequently claiming the defense that it complies with the requirements for such an exemption as housing for persons fifty-five years of age or older in order for such person to claim the defense.

c.For purposes of this section, an authorized representative of a housing facility or community means the individual, committee, management company, owner, or other entity having the responsibility for adherence to the requirements established by this

chapter.

d.For purposes of this section, a "person" means a natural person.

e.A person shall not be entitled to the good-faith defense if the person has actual knowledge that the housing facility or community does not, or will not, qualify as housing for persons fifty-five years of age or older. Such a person will be ineligible for the good-faith defense regardless of whether the person received written assurance described in subdivision b.

History

• Law Implemented: NDCC 14-02.5-11; 24 CFR 100.308