Wage and Hour FAQ

Yes, in most cases. Employment relationships without a specific term exists at the will of both parties and can be terminated by either party upon notice to the other. No minimum length of notice (for example, a two-week notice) is required. Contracts specifying a term of employment, however, can pre-empt the at-will provision.

Reference: N.D.C.C. § 34-03-01

Yes, unless all the following criteria are met:

1. Attendance is outside the employee’s regular working hours;
2. Attendance is voluntary;
3. The meeting is not directly related to the employee’s job (office dinner party, holiday gathering, etc.); and
4. The employee does not perform any productive work during attendance.

Reference: N.D. Admin. Code § 46-02-07-02(6)
 

No, an employer is not required to pay an employee for ordinary travel to and from work (the job site) or for time spent driving an employer-provided vehicle to and from work (the job site).

Reference: N.D. Admin. Code § 46-02-07-02(6)

Yes, an employer must pay an employee for time spent traveling during regular work hours and from job site to job site or from office to job site.

Reference: N.D. Admin. Code § 46-02-07-02(7)

Generally, no. If an employee may use their time effectively for their own purposes (run errands, attend a birthday party, etc.), and even with some restrictions (no alcohol consumption), an employee is considered “waiting to be engaged” and therefore the employer does not have to compensate the employee for time on-call, so long as no work is performed. Excessive limitations, however, may be deemed compensable depending on the specific circumstances of a situation.

Reference: N.D. Admin. Code § 46-02-01-02(8)
 

Generally, there are two types of bonuses: Discretionary and Nondiscretionary. A discretionary bonus is not made according to any prior contract, agreement, or promise causing an employee to expect such a payment. A nondiscretionary bonus (or earned bonus) is payable to an employee when an employee performs the requirements set forth in a contract or agreement between the parties. Examples of earned bonuses can include an individual or a group production bonus, quality or accuracy bonus, attendance bonus, and safety bonus.

An employer must pay an earned commission to an employee. An earned commission is a fee or percentage intended as 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.

Reference: N.D. Admin. Code § 46-02-07-02(15)
 

Yes, 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 any pay period.

Reference: N.D. Admin. Code § 46-02-07-02(11)
 

Up to $18.00 per day may be factored in as wages. 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 $18 per day, if agreed to in writing and if the employee’s acceptance is in fact voluntary.

Reference: N.D. Admin. Code § 46-02-07-02(13)

Employers can change an employee’s rate of pay at any time, as long as the employee is notified of the change prior to the work has been performed and it is not for a discriminatory or retaliatory purpose. An employer may not, however, retroactively reduce a pay rate once an employee has performed duties under the rate existing at the time the duties were performed.

No, time clocks are not required. If a method for entering starting and stopping work times is utilized, 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 is ultimately paid for all the time the employee has actually worked. Employees who voluntarily clock in before their regular starting time or remain after stopping time do not have to be compensated provided that no work is performed.

Reference: N.D. Admin. Code § 46-02-07-02(10)
 

If, at the time of the death of any person, the person's employer owes the employee wages, they shall pay the wages to the surviving spouse or heirs.

Reference: N.D.C.C. § 34-01-12; N.D.C.C. § 30.1-04-03
 

Overtime must be paid at one and one-half times the employee’s regular rate of pay for time worked over 40 hours in any work week, which is any consecutive seven-day period defined by the employer.  

Overtime is always based on a weekly basis, regardless of the length of the pay period, and is based on actual hours worked.  Paid holidays, paid time off, or sick leave are NOT counted in computing overtime hours.

Rates for overtime can vary depending on the type of pay, whether the employee is paid a salary rate, hourly rate, piece rate, or works multiple jobs with the same employer for different rates.  These various calculations for overtime can be found in in N.D. Admin. Code § 46-03-01-01.

Reference: N.D. Admin. Code § 46-02-07-02(4).

A minimum 30-minute break must be provided in each shift exceeding 5 hours when 2 or more employees are on duty. The employer is not required to pay the employee for the meal period if the employee is completely relieved of their duties during the entire meal period. Employees may waive their right to a meal period upon agreement with the employer. Other breaks, such as 15-minute mid-shift breaks, are not required. However, if provided, the employer must compensate the employee during the breaks.

Reference: N.D. Admin. Code § 46-02-7-02
 

Yes, an employer may require an employee to take accrued paid leave (also known as vacation time) by a certain date or lose that vacation time (“use it or lose it”).  The employer must, however, allow the employee a reasonable opportunity to take the vacation prior to losing any accumulated time.  The employer also must demonstrate the employee had notice of such a policy provision.

Reference: N.D. Admin. Code § 46-02-07-12
 

In most situations, yes.  Generally, once paid time off is made available for an employee’s use, any unused portion of such time is considered wages upon separation unless a limitation is met.

There are two circumstances in which an employer is not required to pay any unused portion of paid time off to an employee upon separation from employment.

Limitation 1: If an employee separates from employment voluntarily, a private employer may withhold payment for accrued paid time off if the following three conditions are all met:

     a.    At the time of hiring, the employer provided the employee written notice of the limitation on payment of accrued paid time off;
     b.    The employee has been employed by the employer for less than one year; and 
     c.    The employee gave the employer less than five days’ written or verbal notice.

Limitation 2: If an employee separates from employment, a private employer may withhold payment for paid time off if:

     a.    The paid time off was awarded by the employer but not yet earned by the employee; and
     b.    Before awarding the paid time off, the employer provided the employee written notice of the limitation on payment of awarded paid time off.

Reference: N.D. Admin. Code § 46-02-07-10; N.D.C.C. § 34-14-09.2
 

Employers must pay employees at least once each calendar month, on the regular payday(s) designated in advance by the employer.

Reference: N.D.C.C. § 34-14-02
 

Yes, each pay period, an employer must provide each employee a check stub or voucher, which indicates the number of hours worked, rate of pay, required stated and federal deductions, and any authorized deductions. 
    
Reference: N.D. Admin. Code § 46-02-07-10
 

When an employee separates from employment for any reason, unpaid wages become due and payable on the next regularly scheduled payday(s) established in advance, by the employer, for the period(s) worked by the employee.

If an employee has been terminated, the employer shall pay those wages to the employee as agreed upon by both parties. If an agreement is not in place, the employer must pay the employee by certified mail at an address designated by the employee.

N.D.C.C. § 34-14-03
 

An employer may only withhold the following from an employee’s wages:

1.    Required state and federal deductions;
2.    Court ordered deductions;
3.    Advances paid to employees, other than undocumented cash;
4.    A recurring deduction that has been authorized by the employee in writing;
5.    A one-time (non-recurring) deduction authorized by the employee in writing, which specifies the source of the deduction; and
6.    A one-time (non-recurring) deduction for damage, breakage, shortage, or negligence, which has been authorized by the employee at the time of the deduction.

N.D.C.C. § 34-14-04.1

It may be. Unless an exemption applies, employers must pay overtime for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rate of pay. Common exemptions can include executive, administrative, professional, agricultural, straight commission sales, and several other exemptions. Each exemption has its own requirements that must be met for an employee’s pay to be exempt from overtime. The circumstances of a particular employment relationship will determine whether an employee is truly exempt.

Reference: N.D. Admin. Code § 46-02-07-02(4)
 

An employee’s workweek is a fixed and regularly recurring period of 168 hours – seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging hours over two or more weeks is not permitted.

Reference: N.D. Admin. Code § 46-02-07-01(22)
 

No, gratuities (tips) offered to an employee by a customer belong to the employee and may not be retained by the employer.

Reference: N.D. Admin. Code § 46-02-07-03

Employers may utilize a tip credit of 33% of the minimum wage for tipped employees. With the tip credit applied, the current minimum direct wage payable to a tipped employee is $4.86 per hour. The employer must retain written records verifying that tipped employees receive at least the full minimum wage for all hours worked when the direct wage and tips are combined. An employer who elects to use the tip credit must inform the employee in advance.

Reference: N.D. Admin. Code § 46-02-07-03
 

A tipped employee is any service employee in an occupation in which he or she receives more than thirty dollars ($30.00) per month in tips, 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. Employer may not consider tips to meet minimum wage requirements for services such as cooking and dishwashing.

For gaming attendants employed by a gaming organization licensed under N.D.C.C § 53-06.1-03, the following conditions apply:

1.    The gaming site regularly has four or fewer tipped employees on duty;
2.    The licensed gaming organization may require tip pooling by blackjack dealers; and
3.    Supervisors at gaming sites are not tipped employees and may not be part of the tip pool unless performing dealing blackjack.

An employer who elects to use the tip credit provision must inform the employee in advance and must maintain written records showing the employee receives at least minimum wage when direct wages and tip credits are combined.

Reference: N.D. Admin. Code § 46-02-07-01, N.D.C.C § 53-06.1-03