North Dakota Administrative Code › Title 46 - Labor Commissioner › Article 46-02 - Occupation Minimum Wage and Work Conditions Orders › Chapter 46-02-07 - North Dakota Minimum Wage and Work Conditions Order › Section 46-02-07-01 - Definitions

Current through Supplement No. 393, July, 2024
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.
General Authority:
NDCC
					 28-32-02(1),
					 34-06-04
Law Implemented:
NDCC
					 34-06-03,
					 34-06-09,
					 34-06-11,
					 34-06-12