The Fair Labor Standards Act defines the workweek as a fixed and recurring period of 168 hours comprised of seven consecutive 24-hour periods that do not need to coincide with the calendar week. It is adjustable only if the change is designed to be permanent. Each week is considered on its own for purposes of calculating overtime. The hours of two or more weeks may not be averaged.
Under state law, work time required to be paid at the regular rate of pay includes: time spent in mandatory meetings and training, except training required by the federal, state or local government; standby time on the employer’s premises; on-call time when the employee is engaged to wait; and travel time during the employee’s regular work hours other than travel between home and work.
Employees are entitled to payment at time-and-one-half their regular rates for all hours worked over 40 in a week. Overtime must be 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. Private employers are not allowed to use compensatory time to avoid paying overtime to employees who have worked more than 40 hours in a week. In other words, private employers are not permitted to allow employees to carry overtime hours worked in one workweek to a subsequent work week by giving them paid time off.
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 working time. The driver of a vehicle is working at any time when required to travel by the employer. Travel time from job site to job site, or from office to job site, 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.
One Day of Rest in Seven
An employer may not require an employee to work seven consecutive days in a business that sells merchandise at retail. An employer may not deny an employee at least one period of twenty-four consecutive hours of time off for rest or worship in each seven-day period. The time off must be in addition to the regular periods of rest allowed during each day worked. An employer shall accommodate the religious beliefs and practices of an employee unless the employer can demonstrate that to do so would constitute an undue hardship on the conduct of the employer’s business. However, if an employee requests time off to attend one regular worship service a week, an employer may not require the employee to work during that period unless:
Breast Feeding Break
An employee may use the designation “infant friendly” on its promotional materials if the employer adopts a workplace breastfeeding policy that would consist of flexible work scheduling, including scheduling breaks and permitting work patterns that provide time for expression of breast milk. The employer is required to provide a convenient, sanitary, safe, and private location, other than a restroom, allowing privacy for breastfeeding or expressing breast milk.
The employer is also required to provide a convenient clean and safe water source with facilities for washing hands and rinsing breast-pumping equipment located in the private location; and a convenient hygienic refrigerator in the workplace for the temporary storage of the mother’s breast milk.
An employment contract or policy may require an employee to take annual leave 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.
Employers must pay employees at least $7.25 an hour. Before July 24, 2009, the minimum wage was $6.55 an hour.
With approval from the Department of Labor and Human Rights, students enrolled in vocational education or related programs may be paid 85 percent of the minimum wage. The department also may issue a special license to an employee whose productive capacity is impaired by physical or mental disability or to an apprentice or learner allowing employment at a wage less than the minimum wage. The license is valid for one year. Wages must be reevaluated every six months.
A tip credit of 33 percent may be allowed. A minimum cash wage of $4.86 per hour may therefore be paid to workers receiving more than $30 per month in tips. Employers must be able to prove that wages plus tips equal or exceed $7.25 per hour.
Employers must permit all employees working at least five hours to take a 30-minute uncompensated meal break. Meal breaks are not required to be paid if employees are completely relieved of their duties and the meal period is ordinarily thirty minutes in length. An employee who is required to perform any duties during the meal period is not “completely relieved of duties.” An employee may waive his or her right to a meal period upon agreement with the employer. Other breaks (such as 15 minute “coffee” breaks) are not required by law, but must be paid breaks if they are offered by the employer.
Employers must allow employees to take unpaid leave to appear as witnesses in court proceedings. Employers cannot penalize employees for taking court attendance leave. Employers must allow employees to take unpaid leave to serve as jurors. Employers cannot discharge employees because they take jury duty leave.
It is the policy of this state to encourage voting by all eligible voters at all statewide special, primary, or general elections. To this end, employers are encouraged to establish a program to grant an employee who is a qualified voter to be absent from the employee’s employment for the purpose of voting when an employee’s regular work schedule conflicts with voting during time when polls are open.
State employees are entitled to up to 20 days of paid leave. (§54-06-14.4).
Last updated on: February 7th, 2019