Filing a Wage and Hour Claim - North Dakota
Like federal law, North Dakota law requires that employees be paid one and one-half times their regular rate of pay for all hours worked in a given week over 40 hours. 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 40 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 their 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 one and one-half 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 below) 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
North Dakota has a minimum wage of $7.25 per hour, which is identical to the federal minimum wage. Employers can use tips and gratuities to reduce the minimum wage required to $4.86 per hour.
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 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.
No cities or counties in North Dakota currently have a minimum wage different from the state minimum.
Unlike federal law, North Dakota does provide for a meal period. A minimum of a 30-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.
The wage claim 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 may write a letter demanding the wages you are owed. If that does not work, you can electronically file a wage claim with the North Dakota Labor Commissioner. A printable form can be found here. 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.
Do not delay in contacting the North Dakota Department of Labor to file a claim. There is a strict two-year statute of limitations on all wage claim cases in North Dakota. If you do not file your wage claim within two years, the Department may not have sufficient time to investigate the claim, and then 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. It may be helpful to consult with an attorney prior to filing your claim, but it is not necessary to have an attorney to file a wage claim with the North Dakota Department of Labor.
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 two-year statute of limitations applies.
Department of Labor and Human Rights
600 East Boulevard Avenue, Dept. 406
Bismarck, ND 58505-0340
Phone: (701) 328-2660
TTY: 1-800-366-6888 or 1-800-366-6889
Fax: (701) 328-2031 E-mail: firstname.lastname@example.org
You can visit the Department in person as well:
600 East Boulevard Avenue 13th Floor
Bismarck, North Dakota 58505-0340
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.