34-01-01. Contract of employment defined.

A contract of employment is a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of the employer or of a third person.

34-01-02. Personal service contract — Time limit — Continuation of employment.

A contract to render personal service cannot be enforced against the employee beyond the term of two years from the commencement of service under it, but if the employee voluntarily continues the employee’s service under it beyond that time, the contract may be referred to as affording a presumptive measure of the compensation.

34-01-03. Voluntary service without employment — Duties of person rendering — Rights to compensation and expenses.

One who officiously and without the consent of the real or apparent owner of a thing takes it into possession for the purpose of rendering a service about it must complete such service and use ordinary care, diligence, and reasonable skill about the same. The person is not entitled to any compensation for the person’s service or expenses, except that the person may deduct actual and necessary expenses incurred by the person about such service from any profits which the person’s service has caused the thing to acquire for its owner and must account to the owner for the residue.

34-01-04. Intimidation, force, and threats against employees prohibited — Penalty.

Every person who, by any use of force, threats, or intimidation, prevents any person employed by another from continuing or performing the person’s work or from accepting any new work or employment, and every person who uses any force, threats, or intimidation to induce such hired person to relinquish the person’s work or employment or to return any work the person has in hand before it is finished, is guilty of a class B misdemeanor.

34-01-05. Intimidation, force, and threats against employers prohibited — Penalty.

Every person who, by any use of force, threats, or intimidation, prevents another from employing any person, and every person who uses force, threats, or intimidation to compel another to employ any person, or to force or induce another to alter that person’s mode of carrying on business, or to limit or increase the number of persons employed by that person, or their rate of wages or time of service, is guilty of a class B misdemeanor.

34-01-06. Hindering person from obtaining or enjoying employment — Penalty.

Every person who maliciously interferes or hinders, in any way, any person from obtaining employment or from enjoying employment already obtained from any other person, is guilty of a class A misdemeanor.

34-01-07. Black list prohibited — Punishment. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

34-01-08. Limitation on hours of labor of employees of city over five thousand population — Exceptions. [Repealed]

Repealed by S.L. 1991, ch. 365, § 1.

34-01-09. Violation of hours of employment for city employees — Penalty. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

34-01-09.1. Maximum hours of labor. [Repealed]

Repealed by S.L. 1991, ch. 365, § 1.

34-01-09.2. Penalty. [Repealed]

Repealed by omission from this code.

34-01-09.3. Qualifications to hold office in labor union or labor organization. [Repealed]

Repealed by omission from this code.

Note.

For provisions of this section, see § 34-01-16.

34-01-10. Fraud by employee in securing transportation or advancement — Misdemeanor. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673; 1975, ch. 296, § 1.

34-01-11. Definition. [Repealed]

Repealed by omission from this code.

34-01-12. Employer to pay surviving spouse or heirs wages due.

For the purposes of this section, the word “employer” includes every person, firm, partnership, corporation, limited liability company, the state of North Dakota, and all municipal corporations. If at the time of the death of any person, the person’s employer is indebted to the person for work, labor, or services performed, and no executor or administrator of the person’s estate has been appointed, such employer, upon the request of the surviving spouse, or, if there is no surviving spouse, then upon the request of the person’s next eligible heir or heirs as determined by section 30.1-04-03, forthwith shall pay said indebtedness to the said surviving spouse or heirs. The employer shall require proof of the claimant’s or claimants’ relationship to the decedent by affidavit and shall require claimant or claimants to acknowledge receipt of such payment in writing. Any payments made by an employer pursuant to the provisions of this section operate as a full and complete discharge of the employer’s indebtedness to the extent of such payment, and no employer thereafter may be liable therefor to the decedent’s estate or the decedent’s executor or administrator thereafter appointed. Any amount so received by a spouse or heirs must be considered in diminution of the allowance provided for by section 30.1-07-02.

34-01-13. Actions under Fair Labor Standards Act must be brought within certain time.

All suits and actions for the recovery of overtime, damages, fees, or penalties accruing under laws respecting the payment of wages, and specifically under the Act of Congress known as the Fair Labor Standards Act of 1938 [Pub. L. 75-718; 52 Stat. 1060; 29 U.S.C. 201 et seq.], as same has been or may hereafter be amended, and all other similar acts must be brought within two years after the accrual of such claim for relief, and all claims for relief accruing prior to the date hereof must be brought within one year after passage of this section. This section does not affect suits pending at the time of its passage.

34-01-14. Right to work not to be abridged by membership or nonmembership in labor union.

The right of persons to work may not be denied or abridged on account of membership or nonmembership in any labor union or labor organization, and all contracts in negation or abrogation of such rights are hereby declared to be invalid, void, and unenforceable.

34-01-14.1. Collection of actual representation expenses from nonunion employees.

As used in this section, “actual representation expenses” are only those actual expenses which are sustained by a labor union or labor organization in processing any grievance of a nonunion employee. For grievances arising from actions occurring while an employee was a member of a bargaining unit of a management entity with which a labor union or labor organization has a contract, but while that employee was not a member of that union or organization, that labor union or labor organization shall collect actual representation expenses from that nonunion employee. Actual representation expenses may be assessed only in instances in which a nonunion employee has specifically requested in writing to use representation by the labor union or labor organization. A nonunion employee may not be compelled to pay any expenses incurred by a labor union or labor organization in the course of general contract negotiations or collective bargaining. An assessment under this section is not an abridgement of any rights guaranteed under section 34-01-14. This section does not abridge or in any way interfere with rights guaranteed employees generally under the Labor Management Reporting and Disclosure Act of 1959 [29 U.S.C. 401 et seq.].

34-01-15. Employer to pay for medical examination — Penalty for violation.

Whenever an employer requires an employee, or prospective employee, to take a medical examination, or furnish any medical records, as a condition of retaining or obtaining employment, the employer shall bear the cost of the examination or the furnishing of the medical records. For purposes of this section, medical examination includes any test for the presence of drugs or alcohol. An employer violating any of the provisions of this section is guilty of an infraction.

34-01-15.1. Paid family leave — Political subdivision prohibition.

1. As used in this section:
   1. “Employee” means an individual employed in this state by an employer.
   2. “Employer” means a person that does business in this state. The term does not include a public employer.
   3. “Paid family leave” includes employment benefits for an employee to take time off work to care for an ill family member or to bond with a new child entering the family.
   4. “Public employer” means the state and each political subdivision of the state.
2. A political subdivision may not adopt or enforce an ordinance that requires an employer to provide to an employee paid family leave that exceeds the requirements of federal or state laws and rules.

34-01-16. Qualifications to hold office in labor union or labor organization.

No person who has been convicted of any crime involving moral turpitude or a felony, excepting traffic violations, may serve in any official capacity or as any officer in any labor union or labor organization in this state. No such person, nor any labor union or labor organization in which the person is an officer, is qualified to act as a bargaining agent or representative for employees in this state. Such disqualification terminates whenever such officer is removed or resigns as an officer in such labor union or labor organization.

34-01-17. Unlawful to discriminate because of age — Penalty.

No person carrying on or conducting within this state any business requiring employees may refuse to hire, employ, or license, or may bar or discharge from employment, any individual solely upon the ground of age; when the reasonable demands of the position do not require an age distinction; and, provided that such individual is well versed in the line of business carried on by such person, and is qualified physically, mentally, and by training and experience to satisfactorily perform the duties assigned to the person or for which the person applies. Nothing herein affects the retirement policy or system of any employer if such policy or system is not merely a subterfuge to evade the purposes of this section. Any person who violates any of the provisions of this section is guilty of a class B misdemeanor.

34-01-18. Discrimination against women jockeys prohibited — Penalty for violation. [Repealed]

Repealed by S.L. 1975, ch. 106, § 673.

34-01-19. Employment discrimination — Declaration of policy — Limitation of actions — Court jurisdiction. [Repealed]

Repealed by S.L. 1983, ch. 173, § 22.

34-01-20. Employer retaliation prohibited — Civil action for relief — Penalty.

1. An employer may not discharge, discipline, threaten discrimination, or penalize an employee regarding the employee’s compensation, conditions, location, or privileges of employment because:
   1. The employee, or a person acting on behalf of an employee, in good faith, reports a violation or suspected violation of federal, state, or local law, ordinance, regulation, or rule to an employer, a governmental body, or a law enforcement official.
   2. The employee is requested by a public body or official to participate in an investigation, a hearing, or an inquiry.
   3. The employee refuses an employer’s order to perform an action that the employee believes violates local, state, or federal law, ordinance, rule, or regulation. The employee must have an objective basis in fact for that belief and shall inform the employer that the order is being refused for that reason.
2. An employer who willfully violates this section is guilty of an infraction.
3. An employee asserting a violation of this section may bring a civil action for injunctive relief or actual damages, or both, within one hundred eighty days after the alleged violation, completion of proceedings under subsection 4, or completion of any grievance procedure available to the employee under the employee’s collective bargaining agreement, employment contract, or any public employee statute, rule, or policy, whichever is later. If the court determines that a violation has or is occurring under this section, the court may order, as the court deems appropriate, reinstatement of the employee, backpay for no more than two years after the violation, reinstatement of fringe benefits, temporary or permanent injunctive relief, or any combination of these remedies. Interim earnings or amounts earnable with reasonable diligence by the employee, from the same employer, must reduce backpay otherwise allowable. In any action under this section, the court may award reasonable attorney’s fees to the prevailing party as part of the costs of litigation. An employee whose collective bargaining agreement, employment contract, or public employee rights provides a process through which recourse for conduct prohibited by subsection 1 is available must exercise that process to completion before commencing an action under this subsection, and if that process provides for judicial review by statutory appeal, then recourse under this subsection is not available.
4. The department of labor and human rights shall receive complaints of violations of this section and may attempt to obtain voluntary compliance with this section through informal advice, negotiation, or conciliation. In order to receive assistance from the department of labor and human rights, a person claiming to be aggrieved by a violation of this section shall file a complaint with the department within three hundred days after the alleged act of wrongdoing. An employee is not prohibited from filing, or required to file, a complaint with the department of labor and human rights under this subsection before proceeding under other provisions of this section.

34-02-01. Employer must indemnify employee for losses and expenses — Exception.

An employer shall indemnify the employer’s employee, except as prescribed in section 34-02-02, for all that the employee necessarily expends or loses in direct consequence of the discharge of the employee’s duties as such or of the employee’s obedience to the directions of the employer even though such directions were unlawful, unless the employee at the time of obeying such directions believed them to be unlawful. The obligation to indemnify does not include expenses incurred to purchase or rent tools of a trade or any other equipment that is also used by the employee outside the scope of employment.

34-02-02. Nonliability of employer for ordinary risks — Negligence of coemployees — Exception.

Except as otherwise provided by law, an employer is not bound to indemnify the employer’s employee for losses suffered by the latter in consequence of the ordinary risks of the business in which the employee is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless the employer has neglected to use ordinary care in the selection of the culpable employee.

34-02-03. Liability for employer’s negligence.

An employer, in all cases, shall indemnify the employer’s employee for losses caused by the former’s want of ordinary care.

34-02-04. Gratuitous employee — Performance and care required.

One who undertakes to do a service for another without consideration is not bound to perform the same unless it is entrusted to the person at the person’s own request, in which case the person shall perform the service fully. If the person commences performance, the person shall use at least slight care and diligence therein. Except as otherwise provided in this section, a gratuitous employee may relinquish the employment at any time.

34-02-05. Gratuitous employee under power of attorney.

A gratuitous employee who accepts a written power of attorney shall act under the power as long as it remains in force or until the employee gives notice to the person’s employer that the person will not do so.

34-02-06. Employee for reward — Ordinary care and diligence required.

One who, for a good consideration, agrees to serve another shall perform the service and shall use ordinary care and diligence as long as the person is thus employed.

34-02-07. Employee for own benefit — Great care and diligence required.

One who is employed at the person’s own request to do that which is more for the person’s own advantage than for that of the person’s employer shall use great care and diligence therein to protect the interests of the latter.

34-02-08. Employee shall obey instructions of employer — Exceptions.

An employee shall comply substantially with all of the directions of the employee’s employer concerning the service upon which the employee is engaged except:

1. When such compliance is impossible or unlawful;
2. When such compliance would impose new and unreasonable burdens upon the employee; or
3. In case of an emergency which, according to the best information which the employee can obtain, was not contemplated by the employer, in which the employer cannot be consulted with the use of reasonable diligence, and in which the employee, in good faith and with the exercise of reasonable discretion, judges noncompliance with the employer’s instructions to be absolutely necessary for the protection of the employer’s interests.

In any case arising under subsection 1, 2, or 3, the employee shall conform as nearly as is reasonably practicable to the directions of the employer.

34-02-09. Employee to perform service in conformity with usage of place — Exception.

An employee shall perform the employee’s service in conformity to the usage of the place of performance unless otherwise directed by the employee’s employer, or unless it is impracticable or manifestly injurious to the employee’s employer to do so.

34-02-10. Skill required by employee.

An employee is bound to use a reasonable degree of skill unless the person’s employer has notice of the employee’s want of skill before employing the employee. The employee is bound always to use all the skill the employee possesses so far as the same is required for the service specified.

34-02-11. Products of employment belong to employer — Exception.

Everything which an employee acquires by virtue of the employee’s employment, whether acquired lawfully or unlawfully or during or after the expiration of the term of the employee’s employment, except any compensation which is due the employee from the employee’s employer, belongs to the employer.

34-02-12. Employee shall account to employer — Demand required — Exception.

An employee, upon demand, shall render to the employee’s employer just accounts of all the employee’s transactions in the course of the employee’s service as often as may be reasonable, and the employee shall give, without demand, prompt notice to the employee’s employer of everything which the employee receives for the employer’s account.

34-02-13. Deliveries to employer — Demand required — Restriction.

An employee who receives anything on account of the person’s employer in any capacity other than that of a mere servant is not bound to deliver it to the employer until demanded. An employee is not at liberty, without demand, to send it to the person’s employer from a distance in any manner involving greater risk than its retention by the employee.

34-02-14. Employee to give preference to employer’s business.

An employee who has any business to transact on the employee’s own account similar to that entrusted to the employee by the employee’s employer shall give the latter the preference always. If an employee is entrusted with similar affairs by different employers, the employee shall give the affairs preference according to their relative urgency, or other things being equal, according to the order in which they were committed to the employee.

34-02-15. Substitute employee selected by employee — Liability and responsibility.

An employee who is authorized expressly to employ a substitute is liable to the employee’s principal only for want of ordinary care in the employee’s selection. The substitute is directly responsible to the principal.

34-02-16. Liability of employee for culpable negligence — Liability of employer for services.

An employee who is guilty of a culpable degree of negligence is liable to the person’s employer for the damage caused to the latter thereby. Unless the service is gratuitous, the employer is liable to the employee for the value of services properly rendered.

34-02-17. Surviving employee to perform service — Exception.

When a service is to be rendered by two or more persons jointly and one of them dies, the survivor shall act alone if the service to be rendered can be performed properly without the aid of the deceased person, but not otherwise.

34-02-18. Immunity for providing employment reference.

1. An employer, or an employer’s agent, who truthfully discloses date of employment, pay level, job description and duties, and wage history about a current or former employee to a prospective employer of the employee is immune from civil liability for the disclosure and the consequences of the disclosure of that information.
2. An employer, or an employer’s agent, who discloses information about a current or former employee’s job performance to a prospective employer of the employee is presumed to be acting in good faith. Unless lack of good faith is shown, the employer or employer’s agent is immune from civil liability for the disclosure and the consequences of providing that information. The presumption of good faith may be rebutted by a preponderance of the evidence that the information disclosed was:
   1. Knowingly false;
   2. Disclosed with reckless disregard for the truth;
   3. Deliberately misleading; or
   4. Rendered with malicious purpose.
3. The immunity provided by subsection 2 does not apply if the information provided is in violation of a nondisclosure agreement or was otherwise confidential according to applicable law.

34-03-01. Termination of employment at will — Notice required.

An employment having no specified term may be terminated at the will of either party on notice to the other, except when otherwise provided by this title.

34-03-02. How employment terminated.

Every employment is terminated by:

1. The expiration of its appointed term;
2. The extinction of its subject;
3. The death of the employee; or
4. The employee’s legal incapacity to act.

34-03-03. Termination of employment not coupled with an interest.

Every employment in which the power of the employee is not coupled with an interest in its subject is terminated by notice to the employee of:

1. The death of the employer; or
2. The employer’s legal incapacity to contract.

34-03-04. Continuance of employment required after death or incapacity of employer — Exceptions.

Unless the term of an employee’s service has expired or unless the employee has a right to discontinue the employee’s service at any time without notice, an employee shall continue the employee’s service after the employee has notice of the death or incapacity of the employee’s employer to such extent as is necessary to protect the interests of the employer’s successor in interest from serious injury and until a reasonable time after notice of the facts has been communicated to the successor. The successor shall compensate the employee for such service according to the terms of the contract of employment.

34-03-05. Termination by employer for breach or neglect of duty or incapacity to perform.

Every employment may be terminated at any time by the employer in case of any willful breach of duty by the employee in the course of the employee’s employment, in case of the employee’s habitual neglect of duty, or in case of the employee’s continued incapacity to perform the employee’s duty.

34-03-06. Employee may terminate employment because of breach of obligations by employer.

Every employment may be terminated by the employee at any time in case of any willful or permanent breach of the obligations of the employee’s employer to the person as an employee.

34-03-07. Compensation of employee after discharge for cause. [Repealed]

Repealed by S.L. 1961, ch. 233, § 2.

34-03-08. Employee quitting for cause — Compensation. [Repealed]

Repealed by S.L. 1961, ch. 233, § 2.

34-03-09. Compensation of employees upon termination of employment.

An employee who quits the service of the person’s employer for good cause and an employee who is dismissed by the person’s employer for good cause are entitled to such proportion of the compensation which would have become due upon full performance of the contract of employment as the services already rendered by such employee bear to the services the employee was obligated to render had the contract of employment been fully performed.

34-05-01. Statistics relating to the employment of labor.

The labor commissioner shall collect, systematize, and submit in biennial reports to the governor and the secretary of state in accordance with section 54-06-04 statistical details relating to the employment of labor in the state. The statistics may be classified as the labor commissioner determines best.

34-05-01.1. Department of labor and human rights.

There is hereby created the North Dakota department of labor and human rights. All records, materials, supplies, and equipment used by the deputy commissioner of agriculture and labor in the official capacity as administrator of the labor division of the department of agriculture and labor must be transferred to the department of labor and human rights.

34-05-01.2. Labor commissioner to administer department of labor and human rights.

The governor shall appoint a labor commissioner to administer the department of labor and human rights. The labor commissioner shall serve at the pleasure of the governor.

34-05-01.3. Duties of labor commissioner.

The labor commissioner shall:

1. Improve working conditions and living conditions of employees and advance their opportunities for profitable employment.
2. Foster, promote, and develop the welfare of both wage earners and industries in North Dakota.
3. Promote friendly and cooperative relations between employers and employees.
4. Cooperate with other state agencies to encourage the development of new industries and the expansion of existing industries.
5. Represent the state of North Dakota in dealings with the United States department of labor, with the federal mediation and conciliation service, and with the United States veterans’ administration with respect to job training programs.
6. Acquire and disseminate information on the subjects connected with labor, relations between employers and employees, hours of labor, and working conditions.
7. Encourage and assist in the adoption of practical methods of career and technical education training, retraining, and career development counseling.
8. Report biennially to the governor and to the legislative assembly concerning activities of the department of labor and human rights, including in such report recommendations for legislation deemed necessary or desirable to effectuate the purposes of this chapter.
9. Administer the provisions of chapter 34-06 relating to wages and hours, chapter 34-07 relating to child labor, and the provisions of chapter 34-12 relating to labor-management relations.
10. Perform such other duties as may be required by law.

34-05-01.4. Independent contractors — Determination made by commissioner.

A person beginning work or working as an independent contractor may apply to the commissioner to receive verification of independent contractor status. The commissioner, upon receiving an application, shall review the circumstances of the applicant’s job and other relevant information. When the information supports a finding under the “common law” test that the applicant will be working or is working as an independent contractor, the commissioner shall issue a determination to verify the status of the applicant as an independent contractor and shall issue the independent contractor an identification number that will be invalid if the applicant’s job changes. If the applicant’s job changes, the applicant may reapply for a determination to verify independent contractor status.

34-05-02. Labor division — Administrative officers — General duties. [Repealed]

Repealed by S.L. 1965, ch. 236, § 15.

34-05-03. Officials and employers to furnish certain information — Records — Penalty.

All public officers and all employers shall furnish to the labor commissioner such information as the commissioner may request relating to their respective offices or businesses. Any information collected, records, and determinations made under chapter 34-14, information collected under this section from private employers, and information collected under section 34-06-02 from private employers are exempt from section 44-04-18. The commissioner shall disclose information collected, records, and determinations made to the parties to an investigation under chapter 34-14. When the commissioner enforces collection of a wage claim by judicial action or forwards records, information, or determinations to another state or country for enforcement as authorized under chapter 34-14, the information collected, records, and determinations made under chapter 34-14 are open records. The commissioner may publish aggregate employment-related statistics. The commissioner may provide a list of the names and addresses of employers to other agencies or to a private entity for the purpose of jointly publishing or distributing publications or other information as provided in section 54-06-04.3. Any information so provided may only be used for the purpose of jointly publishing or distributing publications or other information as provided in section 54-06-04.3. Any officer, employer, or operator or manager of any establishment wherein persons are employed, who fails or refuses to furnish the commissioner with the information requested under the provisions of this section, is guilty of a class B misdemeanor.

34-05-04. Employment of assistants.

The labor commissioner may employ necessary help and assistants for the purpose of administering and enforcing labor laws, rules, and regulations, and may fix their compensation and bonds. The total amount of compensation paid for such purposes, however, may not exceed the amount appropriated for compensation by the legislative assembly.

34-06-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

1. “Commissioner” means the labor commissioner.
2. “Employee” includes any individual employed by an employer. However, an individual is not an “employee” while engaged in a ridesharing arrangement, as defined in section 8-02-07. The term does not include a person engaged in firefighting or sworn law enforcement officers for a political subdivision of the state.
3. “Employer” includes any individual, partnership, association, corporation, limited liability company, the state and political subdivisions of the state, or any person or group of persons acting in the interest of an employer in relation to an employee.
4. “Minor” means a person of either sex under the age of eighteen years.
5. “Occupation” means a business or industry, or a trade or branch thereof, but it does not include outside salesmen who are compensated on a commission basis.
6. “Wages” includes all payments made to or on behalf of an employee as remuneration for employment, whether calculated on a time, piece, job, or incentive basis.

34-06-02. Power to investigate conditions of labor and wages and hours of employees.

The commissioner has the power to:

1. Investigate and ascertain the wages and the hours and conditions of labor of employees in the different occupations in which they are employed within this state.
2. Inspect and examine, either in person or through authorized representative, all books, payrolls, and other records of any employer of employees appertaining to or bearing on the questions of hours or conditions of labor of any employee employed by such employer.
3. Require from any employer of employees a full and true statement of the wages paid to, and the hours and conditions of labor of, all employees in the employer’s employ.

34-06-03. Commissioner may adopt standards by rule.

The commissioner may ascertain and prescribe by rule:

1. Standards of hours of employment for employees and what are unreasonably long hours for employees in any occupation within this state.
2. Standards of conditions of labor for employees in any occupation within this state and what surroundings or conditions, sanitary or otherwise, are detrimental to the health or morals of employees in any such occupation.
3. Standards of minimum wages for employees in any occupation in this state.
4. Standards of minimum wages for minors in any occupation within this state and what wages are unreasonably low for any such minor workers.

34-06-03.1. Exemption for companionship services and family home care.

1. Employees who provide companionship services for individuals who, because of age or disability, are unable to care for themselves are exempt from any minimum wage and hour standards that may be prescribed under this chapter, to the extent that those companionship services are provided by an employee from ten p.m. to nine a.m., up to a total of eight hours, during which time the employee is available to perform duties for the aged or disabled individual, but is free to sleep and otherwise engage in normal private pursuits in the aged or disabled individual’s home. Employees who provide companionship services are not entitled to any overtime premium that may be prescribed under this chapter.
2. An individual who provides family home care is exempt from any minimum wage and hour standards that may be prescribed under this chapter.
3. An individual who contracts with an elderly or disabled person, or a spouse or relative of an elderly or disabled person as described in subdivision b of subsection 4, to provide room, board, supervisory care, and personal services to that elderly or disabled person is exempt from any minimum wage and hour standards that may be prescribed under this chapter.
4. As used in this section:
   1. “Companionship services” means those services that provide fellowship, care, and protection for individuals who, because of advanced age or physical or mental disabilities, cannot care for their own needs. Those services may include household work related to the care of the aged or disabled person, including meal preparation, bed making, washing of clothes, and other similar services, and may include the performance of general household work if that work does not exceed twenty percent of the total weekly hours worked. “Companionship services” do not include services relating to the care and protection of the aged or disabled which require and are performed by trained personnel, including a registered or practical nurse, and do not include individuals who provide care and protection for infants and young children who are not physically or mentally disabled.
   2. “Family home care” means the provision of room, board, supervisory care, and personal services to an eligible elderly or disabled person by the spouse or by one of the following relatives, or the current or former spouse of one of the following relatives, of the elderly or disabled person: parent, grandparent, adult child, adult sibling, adult grandchild, adult niece, or adult nephew.

34-06-03.2. Authority of labor commissioner — Exception.

Notwithstanding section 34-06-03, the labor commissioner may not adopt rules relating to sections 23-12-09 through 23-12-11. If the labor commissioner is made aware of a possible violation of chapter 23-12, the commissioner may refer the violation to an appropriate law enforcement agency for enforcement pursuant to section 23-12-11.

34-06-04. Power to make rules — Posting by employers.

The commissioner may prepare, adopt, and promulgate rules under chapter 28-32 to implement the various provisions of this chapter. Before filing the notice of rulemaking and the proposed draft of rules under section 28-32-10, the commissioner shall send notice of the proposed rules to and solicit input from associations with statewide membership of which the primary focus is representing business or labor interests. The commissioner shall provide a summary of rules adopted under this chapter to every employer affected by the rules. The employer shall keep a copy of the summary posted in a conspicuous place in a commonly frequented area of the employer’s establishment in which employees work.

34-06-04.1. Compensatory time, overtime, and work-period claims.

The state or a political subdivision of the state may provide for compensatory time and for a work period for compensatory time and overtime calculation for its employees if the state or political subdivision complies with the requirements of the Fair Labor Standards Act of 1938, as amended, [Pub. L. 75-718; 52 Stat. 1060; 29 U.S.C. 201 et seq.] and any rules and interpretations adopted by the United States department of labor. The authority provided in this section applies in any proceeding brought after June 30, 2003, with respect to compensatory time or overtime earned regardless of when the work in question was performed.

34-06-05. Employment of employees under certain conditions illegal.

It is unlawful to employ in any occupation within this state:

1. Employees for unreasonably long hours.
2. Employees under surroundings or conditions, sanitary or otherwise, which may be detrimental to their health or morals.
3. Employees for wages which are less than the state minimum wage.
4. Minors for unreasonably low wages.

34-06-05.1. One day of rest in seven — Penalty.

1. 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:
   1. Honoring the employee’s request would cause the employer substantial economic burdens or would require the imposition of significant burdens on other employees required to work in place of the Sabbath observer; or
   2. The employer has made a reasonable effort to accommodate the employee’s request.
2. A violation of this section is a class B misdemeanor. It is an affirmative defense to prosecution under this section that the employee volunteered for work on the seventh consecutive day and the employee executed a written statement so stating. The statement must also contain a provision, signed by the employer or the employer’s agent, that the employer did not require such work.
3. This section applies only to an employer in a business that sells merchandise at retail.

34-06-06. Hours of labor for females limited — Exceptions. [Repealed]

Repealed by S.L. 1973, ch. 265, § 1.

34-06-07. Employer to keep register of employees employed — Inspection and examination of register.

Every employer shall keep a register of the names of all employees employed by the employer, and on request shall permit the commissioner or any of the commissioner’s authorized representatives to inspect and examine such register.

34-06-08. Investigations and hearings by commissioner — Subpoena, oath, and fees of witnesses.

The commissioner may hold public hearings for the purpose of investigating any of the matters the commissioner is authorized to investigate under the provisions of this chapter. Such hearings must be held at such times and places as the commissioner deems fit. Any person interested in a matter under investigation may appear and testify at any public hearing held thereon. The commissioner or the commissioner’s duly authorized representative may subpoena and compel the attendance of any witness at any public hearing or at any session of any conference called and held as provided in this chapter and may administer an oath to any witness who is to testify thereat. A witness subpoenaed by the commissioner or by the commissioner’s representative must be paid the same mileage and per diem as are paid to witnesses in civil cases before the district court.

34-06-09. Conference to consider investigation by commissioner — Members, quorum, report. [Repealed]

Repealed by S.L. 2003, ch. 281, § 6.

34-06-10. Recommendations contained in report of conference. [Repealed]

Repealed by S.L. 2003, ch. 281, § 6.

34-06-11. Consideration of report by commissioner — Hearing upon approval. [Repealed]

Repealed by S.L. 2003, ch. 281, § 6.

34-06-12. Order issued by commissioner — Posting. [Repealed]

Repealed by S.L. 2003, ch. 281, § 6.

34-06-13. Investigation of employment of minors — Recommendations and requirements governing. [Repealed]

Repealed by S.L. 2003, ch. 281, § 6.

34-06-14. Right of appeal from commissioner’s decision limited.

Except as otherwise provided in this chapter, all questions of fact arising under this chapter must be determined by the commissioner. There may be no appeal from the decision of the commissioner on any question of fact, but there is a right of appeal from the commissioner to the district court of Burleigh County from any ruling or holding on any question of law included or embodied in any decision of the commissioner, and there is a right of appeal from the district court to the supreme court of this state. In all such appeals, the attorney general shall appear for and represent the commissioner.

34-06-15. Special license to employ at less than minimum wage.

The commissioner may issue to an employee whose productive capacity for the work to be performed is impaired by physical or mental disability, or to any student or learner enrolled in a career and technical education or related program, a special license authorizing the employment of that licensee at less than the minimum wage. The commissioner may also issue special licenses to community rehabilitation programs for the handicapped which engage in the occupation and responsibility of representing and placing for the purpose of training, learning, or employment of those employees whose productive capacity for the work to be performed is impaired by physical or mental disability. The commissioner shall issue such licenses under rules adopted by the commissioner.

34-06-16. Recovery by underpaid employee. [Repealed]

Repealed by S.L. 1975, ch. 298, § 1.

34-06-17. Investigation of compliance with rules — Failure to observe or comply.

The commissioner, from time to time, shall investigate and ascertain whether or not employers in this state are observing and complying with rules issued pursuant to the provisions of this chapter, and shall take such steps as may be necessary to cause the prosecution of employers failing to observe or comply therewith.

34-06-18. Employer discriminating against employees.

No employer may discharge or in any other manner discriminate against any employee because such employee has testified or is about to testify, or because such employer believes that the employee may testify, in any investigation or proceeding under or relative to this chapter.

34-06-19. Penalty for violation of chapter.

Any person who violates any of the provisions of this chapter, or any rule issued pursuant thereto, is guilty of a class B misdemeanor.

34-06-20. Biennial report.

The commissioner shall submit a biennial report to the governor and the secretary of state in accordance with section 54-06-04.

34-06-21. Hours of labor for females during war. [Repealed]

Repealed by omission from this code.

34-06-22. State minimum wage rate.

1. Except as otherwise provided under this chapter and rules adopted by the commissioner, every employer shall pay to each of the employer’s employees:
   1. Effective July 24, 2007, a wage of at least five dollars and eighty-five cents per hour;
   2. Effective July 24, 2008, a wage of at least six dollars and fifty-five cents per hour; and
   3. Effective July 24, 2009, a wage of at least seven dollars and twenty-five cents per hour.
2. This section does not limit the authority of the commissioner to adopt rules establishing a state minimum wage rate that differs from the rates established under subsection 1.

34-06-23. Living wage mandate prohibition — Political subdivisions.

1. As used in this section:
   1. “Employ” has the same meaning as provided under section 34-06.1-02.
   2. “Employer” includes a person acting directly or indirectly in the interest of an employer in relation to an employee. The term may include a public agency, other than the federal government, and an employer that has a contract or subcontract with a political subdivision or that has received tax abatements, loan guarantees, or other financial assistance from the political subdivision.
   3. “Living wage mandate” means a requirement enacted by a political subdivision which requires an employer to pay any or all of the employees of the employer a wage rate not otherwise required under the law of this state or federal law.
   4. “Political subdivision” includes a city, county, township, school district, or any other local government of this state.
2. A political subdivision may not enact, maintain, or enforce by charter, ordinance, purchase agreement, contract, regulation, rule, or resolution a living wage mandate in an amount greater than the applicable minimum wage rate of this state.

34-06.1-01. Declaration of public policy.

The public policy of this state is declared to be that the practice of discriminating on the basis of sex by paying wages to employees of one sex at a lesser rate than the rate paid to employees of the opposite sex for comparable work on jobs which have comparable requirements unjustly discriminates against the person receiving the lesser rate; leads to low worker morale, high turnover, and frequent labor unrest; discourages workers paid at the lesser wage rates from training for higher level jobs; curtails employment opportunities, decreases workers’ mobility, and increases labor costs; impairs purchasing power and threatens the maintenance of an adequate standard of living by such workers and their families; prevents optimum utilization of the state’s available labor resources; threatens the well-being of citizens of this state; and adversely affects the general welfare. It is therefore declared to be the policy of this state through exercise of its police power to correct and, as rapidly as possible, to eliminate discriminatory wage practices based on sex.

34-06.1-02. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

1. “Commissioner” means the labor commissioner.
2. “Employ” includes to suffer or permit to work.
3. “Employee” means any individual employed by an employer, including individuals employed by the state or any of its political subdivisions, including public bodies.
4. “Employer” means any person acting directly or indirectly in the interest of an employer in relation to one or more employees of each sex.
5. “Occupation” includes any industry, trade, business or branch thereof, or any employment or class of employment, but does not include domestic employment in private homes.
6. “Person” includes one or more individuals, partnerships, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, or voluntary associations.
7. “Wage rate” means all compensation for employment, including payment in kind and amounts paid by employers for employee benefits, as defined by the commissioner in regulations issued under this chapter.

34-06.1-03. Prohibition of discrimination.

1. An employer may not discriminate between employees in the same establishment on the basis of gender, by paying wages to any employee in any occupation in this state at a rate less than the rate at which the employer pays any employee of the opposite gender for comparable work on jobs that have comparable requirements relating to skill, effort, and responsibility. Differentials that are paid pursuant to established seniority systems, systems that measure earnings by quantity or quality of production, merit systems, or a bona fide factor other than gender, such as education, training, or experience, and which do not discriminate on the basis of gender, are not within this prohibition.
2. An employer that is paying a wage differential in violation of this chapter may not, in order to comply with this chapter, reduce the wage rates of any employee.
3. A person may not cause or attempt to cause an employer to discriminate against any employee in violation of this chapter.
4. An employer may not discharge or discriminate against an employee by reason of any action taken by the employee to invoke or assist in any manner the enforcement of this chapter, except when proven that the act of the employee is fraudulent.
5. An unlawful employment practice occurs under this section when a discriminatory compensation decision or other practice is adopted; when an individual becomes subject to a discriminatory compensation decision or other practice; or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.

34-06.1-04. Powers of commissioner.

The commissioner has the power and duty to carry out the provisions of this chapter and for this purpose, the commissioner, or the commissioner’s authorized representative, has power to:

1. With the consent of the employer or upon appropriate court order, for cause, enter the place of employment of any employer to inspect and copy payrolls and other employment records, to compare character of work and operations on which persons employed by the employer are engaged, to question such persons, and to obtain such other information as is reasonably necessary to the administration and enforcement of this chapter.
2. Examine witnesses under oath, and to require by subpoena the attendance and testimony of witnesses and the production of any documentary evidence relating to the subject matter of any investigation undertaken pursuant to this section.
3. Eliminate pay practices unlawful under this chapter, by informal methods of conference, conciliation and persuasion, and to supervise the payment of wages owing to any employee under this chapter.
4. Issue such regulations, not inconsistent with the purpose of this chapter, as the commissioner deems necessary or appropriate to carry out its provisions.

Witnesses summoned by the commissioner or the commissioner’s authorized representative must be paid the same fees as are allowed witnesses attending the district courts of this state. In the event of the failure of a person to attend, testify, or produce documents under or in response to a subpoena, the court on application of the commissioner or the commissioner’s representative may issue an order requiring said person to appear before the commissioner or authorized representative, or to produce documentary evidence, and any failure to obey such order of the court may be punished by the court as a contempt thereof.

34-06.1-05. Collection of unpaid wages and other relief — District court — Commissioner.

1. An employer that violates the provisions of section 34-06.1-03 is liable to the employee or employees affected in the amount of their unpaid wages, and in instances of willful violation in employee suits up to an additional equal amount as liquidated damages.
2. Any one or more individuals claiming to be aggrieved by an unlawful employment practice under section 34-06.1-03 may bring an action in the district court in the judicial district in which the unlawful employment practice is alleged to have been committed, in the district in which the records relevant to the alleged unlawful employment practice are maintained and administered, or in the district in which the individual would have worked or obtained credit were it not for the alleged unlawful employment practice. In an action brought under this chapter, the court shall, in cases of violation in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.
3. An agreement by an employee to work for less than the wage to which the employee is entitled under this chapter does not bar an action or voluntary wage restitution of the full amount due under this chapter.
4. At the written request of an employee claiming to have been paid less than the wage to which the employee may be entitled under this chapter, the commissioner may bring any legal action necessary on behalf of the employee to collect the claim for unpaid wages. The commissioner is not required to pay the filing fee, or other costs, in connection with an action under this section. The commissioner may join various claims against the employer in one claim for relief. In proceedings under this section, the court may order other affirmative action as appropriate, including reinstatement of employees discharged in violation of this chapter. The commissioner may petition the district court to restrain violations of section 34-06.1-03, and for affirmative relief as the court may deem appropriate, including restoration of unpaid wages and reinstatement of employees, consistent with the purpose of this chapter.
5. If a person elects to bring an action in district court under this chapter, the commissioner shall dismiss any action pending before the commissioner which is based on the same alleged unlawful employment practice.

34-06.1-06. Statute of limitations.

Court action under this chapter may be commenced no later than two years after the unlawful employment practice occurred. However, if a complaint of a discriminatory practice is first filed with the commissioner, this period of limitation for bringing an action in the district court is tolled until the commissioner completes an investigation or otherwise notifies the complainant the commissioner will be taking no further action on the complaint.

34-06.1-07. Records and reporting.

An employer subject to this chapter shall make, keep, and maintain records of the wages and wage rates, job classifications, and other terms and conditions of employment of the individuals employed by the employer; shall preserve such records for as long as the employee is employed and two years thereafter; and shall make such reports from the records as the commissioner prescribes.

34-06.1-08. Posting of law. [Repealed]

Repealed by S.L. 1997, ch. 296, § 1.

34-06.1-09. Penalties.

Any person who violates any provision of this chapter, or who discharges or in any other manner discriminates against any employee because such employee has made any complaint relating to a violation of any provision of this chapter, or has instituted, or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceedings, is guilty of a class B misdemeanor.

34-07-01. Employment of minor under fourteen years of age prohibited.

No minor under fourteen years of age may be employed or permitted to work in any occupation except farm labor, domestic service, or in the employment of, and under the direct supervision of, that minor’s parent, guardian, or grandparent. Domestic service includes services of a household nature performed by an employee in or about a private home of the employer. No minor under fourteen years of age may be employed in any business or service whatever during any part of the hours when the public schools of the district in which the minor resides are in session.

34-07-02. Certificate of employment required — Inspection — List of minors employed to be kept.

A minor fourteen or fifteen years of age may not be employed or permitted to work in any occupation except farm labor, domestic service, or in the employment of, and under the direct supervision of, the minor’s parent or guardian unless the minor is exempt from compulsory school attendance under subdivisions b, c, and d of subsection 1 of section 15.1-20-02 or unless the minor has an employment certificate signed by the minor’s parent or guardian in accordance with the provisions of this chapter. Any person, firm, corporation, or limited liability company employing a minor must keep on file a completed employment certificate, for each minor, as provided in this chapter. The employment certificate must be accessible to inspection by the principal of the school which the minor attends, a principal in the municipality in which the minor resides, or the labor commissioner or the commissioner’s agent or representative.

34-07-03. Question of age of minor employee — Who may raise — Duties of employer — Evidence required.

Any person, firm, corporation, or limited liability company employing a minor who appears to be under the age of sixteen years and for whom an employment certificate is not filed as required by the provisions of this chapter, either shall furnish satisfactory evidence that such minor is sixteen years of age or older or shall cease to employ such minor or to permit the minor to work in such employment immediately after a demand is made upon the employer to do so by:

1. The principal of the school which the minor attends or a principal in the municipality in which the minor resides;
2. The labor commissioner or the commissioner’s agent or representative; or
3. Any other officer charged with the enforcement of child labor, compulsory school attendance, or other child welfare laws.

The officer making such demand may require the same evidence, and only the same evidence, of age of the minor as is required on the issuance of an employment certificate under the provisions of this chapter.

34-07-04. Noncompliance with demand — Prima facie evidence in prosecution.

If it is proved in any prosecution for a violation of the provisions of this chapter that a demand was made by a proper officer upon the person, firm, corporation, or limited liability company named as defendant in such prosecution, that such demand was in accordance with the provisions of section 34-07-03, and that the defendant in such prosecution failed within the time therein limited to comply therewith, such failure constitutes prima facie evidence that the minor for the employment of whom the prosecution was instituted was under sixteen years of age at the time of such employment and was unlawfully employed.

34-07-05. Who may issue certificates — Where certificates may be obtained.

An employment certificate must be in writing and must be issued by the minor’s parent or guardian. The parent or guardian who certifies, or rejects, the employment certificate must file a completed copy with the department of labor and human rights, the employer, the principal of the school which the minor attends, or a principal in the municipality in which the minor resides, within ten days of certification or rejection. No employment certificate is required for any minor then in, or who is about to enter, the minor’s own employment or the employment of a firm, corporation, or limited liability company of which the minor is a member, officer, or manager. The labor commissioner shall make the certificates of employment available.

34-07-06. Evidence of age of minor.

The age of a minor who desires an employment certificate must be proved by:

1. A certificate of proof of birth issued by the state registrar of vital statistics; or
2. Documentary evidence satisfactory to the labor commissioner, such as a certificate of arrival in the United States issued by the United States immigration officers and showing the age of the child, a passport showing the age of the child, a valid driver’s license, a baptismal certificate, or a life insurance policy. Such other satisfactory documentary evidence must have been in existence for at least one year, and in the case of a life insurance policy, for at least four years.

34-07-07. Letter of prospective employer required before employment certificate issued. [Repealed]

Repealed by S.L. 1993, ch. 351, § 16.

34-07-08. School record of minor required before employment certificate issued — Contents of record. [Repealed]

Repealed by S.L. 1993, ch. 351, § 16.

34-07-09. Number of years of school attendance required before certificate issued. [Repealed]

Repealed by S.L. 1975, ch. 299, § 2.

34-07-10. Vacation employment certificate. [Repealed]

Repealed by S.L. 1993, ch. 351, § 16.

34-07-11. Requirements for certificate for school term but not during daily session — Truant or deficient minor not to be employed.

A certificate permitting the employment of a minor during the school term, but not during the daily period of the school session, may be granted if such minor maintains a passing grade in all studies pursued by the minor in such school. No minor may be employed who at the time is guilty of truancy or of deficiency in studies, as determined by the minor’s parent or guardian, or the principal of the school which the minor attends, or a principal in the municipality in which the minor resides, or the labor commissioner or the commissioner’s agent or representative.

34-07-12. Contents of employment certificate.

The employment certificate must state the date of birth of the minor, a description of the job duties and responsibilities of the minor, and must also be signed by the minor’s parent or guardian and the employer.

34-07-13. Certificate returned to officer issuing the same upon termination of employment — New certificate. [Repealed]

Repealed by S.L. 1993, ch. 351, § 16.

34-07-14. Revocation of certificate — Notice — Return of revoked certificate.

Whenever it appears to the minor’s parent or guardian, or the principal of the school which the minor attends, a principal in the municipality in which the minor resides, or the labor commissioner or the commissioner’s agent or representative who issued an employment certificate, or to the person’s successor, that such certificate has been improperly or illegally issued or that the physical or moral welfare of the minor would be best served by the revocation of the certificate, such certificate may be revoked. The revoking officer shall give notice of the revocation by registered or certified mail to the person employing such minor and to the minor holding the certificate. Immediately upon receiving notice of the revocation of the certificate, the employer shall return the revoked certificate to the officer revoking the same and shall discontinue the employment of the minor. Revocation of a permit must be registered with the labor commissioner or the commissioner’s agent within ten days.

34-07-15. Maximum hours of labor of minors fourteen or fifteen years of age — Notice to be posted.

A minor fourteen or fifteen years of age may not be employed or permitted to work at any occupation, except in domestic services and at farm labor, before the hour of seven a.m. nor after the hour of seven p.m., except that these hours are seven a.m. to nine p.m. from June first through labor day, nor more than eighteen hours during schoolweeks, nor more than three hours on schooldays, nor more than forty hours during nonschoolweeks, nor more than eight hours on nonschooldays. A schoolweek is considered to be any week Sunday through Saturday in which a youth is required to be in attendance, for any period of time, four or more days. Provided, however, that the limitations restricting hours of work during schoolweeks and schooldays do not apply to minors who are not attending school because they are excepted from compulsory school attendance by subdivisions b, c, and d of subsection 1 of section 15.1-20-02. Every employer shall post, in a conspicuous place where minors are employed, a printed notice stating the hours of work required of the minors each day of the week, the hours of commencing and stopping work, and the hours allowed for dinner or other meals. The printed form of the notice must be furnished by the labor commissioner. The employment of any minor for a longer period than that stated in the notice is a violation of this chapter.

34-07-16. Prohibited employments and occupations of minors.

No minor fourteen or fifteen years of age may be employed or permitted to work in:

1. Any employment involving the use of any power-driven machinery; but this prohibition does not apply to the use of:
   1. Office machines, such as adding machines or typewriters;
   2. Tagging, pricing, or similar machines used in retail stores;
   3. Domestic-type machines used in food service operations, such as toasters, coffee grinders, or milkshake blenders;
   4. Machines used in service stations such as those in connection with car cleaning, washing, or polishing, or in the dispensing of gasoline or oil; provided, however, that no work may be done in connection with cars and trucks if such work involves the use of pits, racks, or lifting apparatus, or involving the inflation of any tire mounted on a rim equipped with a removable retaining ring; or
   5. Lawnmowers.
2. Construction work other than cleaning, errand running, moving, stacking, loading, or unloading materials by hand.
3. Lumbering or logging operations.
4. Sawmills or planing mills.
5. The manufacture, disposition, or use of explosives.
6. The operation of any steam boiler, steam machinery, or other steam generating apparatus.
7. The operation or assisting in the operation of laundry machinery.
8. Preparing any composition in which dangerous or poisonous acids are used.
9. The manufacture of paints, colors, or white lead.
10. Operating or assisting in the operation of passenger or freight elevators.
11. Any mine or quarry.
12. The manufacture of goods for immoral purposes.
13. Any other employment not herein specifically enumerated that may be considered dangerous to life or limb or in which health may be injured or morals depraved.
14. Occupations which involve working on an elevated surface, with or without use of safety equipment, including ladders and scaffolds in which the work is performed higher than six feet from the ground surface.
15. Security positions or any such occupations that require the use of a firearm or other weapon.
16. Door-to-door sales of any kind.
17. Occupations involving the loading, handling, mixing, applying, or working around or near any fertilizers, herbicides, fungicides, pesticides, insecticides, or any other chemicals, toxins, or heavy metals.
18. Occupations in or in connection with medical or other dangerous wastes.
19. Occupations which involve the handling or storage of blood, blood products, body fluids, and body tissues.
20. Cooking, baking, grilling, or frying.
21. Warehouse or storage work of any kind in which the main objective of the operation is distribution.
22. Trucking or commercial driving of any kind.

Nothing contained in this section prohibits a minor from doing ordinary farm labor or from operating farm machinery. No person fourteen or fifteen years of age may be employed in any capacity if such employment compels the person to remain standing constantly. This section does not prevent the education of a minor in music nor the employment of a minor as a singer or musician in a church, school, or academy, or in any school or home talent exhibition given by the people of a local community.

34-07-17. Permit to work in theater or place of amusement.

A minor under sixteen years of age may be employed to act or perform in a theater or place of amusement if a permit so to do is obtained from the minor’s parent or guardian and the labor commissioner or the commissioner’s agent or representative, if such person decides that the appearance of such minor will not be detrimental to the minor’s morals, health, safety, welfare, or education.

34-07-17.1. Newspaper and shopper carrier exemption.

The provisions of this chapter do not apply to newspaper or shopper carriers. This exemption applies to carriers engaged in making deliveries to subscribers’ homes or to other newspaper or shopper consumers. It applies to carriers engaged in the street sale or delivery of newspapers or shoppers to the consumer, but it does not include persons engaged in hauling newspapers or shoppers to drop stations, distributing centers, newsstands, newsracks, vending machines, or similar locations or items.

34-07-18. Inspection of factories and establishments by peace officers — Report — Complaints.

Peace officers may visit any business establishments within their several jurisdictions to ascertain whether any minors are employed therein contrary to the provisions of this chapter. The peace officers shall report all cases of illegal employment to the labor commissioner. Such officers may require that the employment certificates of employees which an employer is required to keep under the provisions of this chapter be produced for inspection. Complaints for offenses under this chapter may be made by any peace officer or by any other person cognizant of the facts.

34-07-19. Duties of labor commissioner.

The labor commissioner shall prepare all employment certificates necessary in the administration of this chapter, shall distribute such employment certificates to the school officers, parents, guardians, and authorities of this state, shall exercise general supervision, interpretation, and exemption powers over the administration of the provisions of this chapter, and shall enforce the same. The commissioner and the commissioner’s agents and representatives have full power of visitation and inspection of all business establishments in which minors may be employed or permitted to work.

34-07-20. Commissioner may issue orders with reference to employment of minors.

In addition to the powers vested in the labor commissioner by the provisions of chapter 34-06, the commissioner may issue general and special orders with reference to the employment of minors and may prohibit or exempt the employment of minors in any employment or place of employment which is dangerous or prejudicial to the life, health, safety, or welfare of such minors. Any such regulation or order is in addition to the regulations specified in this chapter.

34-07-21. Penalty.

Any person who employs any minor contrary to the provisions of this chapter or of any order or regulation promulgated by the labor commissioner as provided by law is guilty of an infraction.

34-08-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

1. A “case” must be held to involve or to grow out of a labor dispute when such case involves persons who are engaged in the same industry, trade, craft, or occupation, or who have a direct or indirect interest therein, or who are employees of the same employer or who are members of the same or of an affiliated organization of employers or employees, whether such dispute is:
   1. Between one or more employers or associations of employers, and one or more employees or associations of employees.
   2. Between one or more employers or associations of employers, and one or more employers or associations of employers.
   3. Between one or more employees or associations of employees, and one or more employees or associations of employees; or when such case involves any conflicting or competing interests of persons participating or interested in a labor dispute.
2. “Labor dispute” includes any controversy concerning terms or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment whether or not the disputants stand in the proximate relationship of employer and employee.
3. A “person” or “association” must be held to be a person or association participating or interested in a labor dispute if relief is sought against the person or association and if the person or association:
   1. Is engaged in the same industry, trade, craft, or occupation in which such dispute occurs;
   2. Has a direct or indirect interest in such dispute; or
   3. Is a member, officer, or agent of any association composed in whole or in part of employers or employees engaged in the trade, industry, craft, or occupation in which such dispute occurs.
4. “Strike” means the temporary stoppage of work by the concerted action of two or more employees as a result of a labor dispute.

34-08-02. Declaration of public policy.

For the purpose of the interpretation of the provisions of this chapter, the public policy of this state is declared to be that a worker of this state must be free to decline to associate with the worker’s fellow workers, but that the worker also has full freedom of association, self-organization, and designation of representatives of the worker’s own choosing to negotiate the terms and conditions of the worker’s employment, and that the worker is free in such matters, as well as in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, from interference, restraint, or coercion by employers of labor or their agents.

34-08-03. Restriction on granting of preventive relief by courts in labor disputes.

No court of this state may issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute except in strict conformity with the provisions of this chapter. No such restraining order or temporary or permanent injunction may be issued contrary to the public policy declared in this chapter.

34-08-04. Undertaking or promise to join or resign from labor organization not enforceable.

Any undertaking or promise, whether written or oral, express or implied, constituting or contained in any contract or agreement of hiring or employment between any individual, firm, company, association, corporation, or limited liability company and any employee or prospective employee of the same, whereby:

1. Either party to such contract or agreement undertakes or promises not to join, become, or remain a member of any labor organization or of any employer organization; or
2. Either party to such contract or agreement undertakes or promises that that party will withdraw from an employment relationship in the event that that party joins, becomes, or remains a member of any labor organization or of any employer organization, and any other undertaking or promise which is in conflict with the public policy of this state as declared in this chapter,

is not enforceable in any court of this state and does not afford any basis for the granting of legal or equitable relief in any such court.

34-08-05. Acts which may not be enjoined or restrained.

No court of this state may issue any restraining order or temporary or permanent injunction in any case involving or growing out of a labor dispute to prohibit any person or persons participating or interested in such dispute from doing, whether singly or in concert, any of the following acts:

1. Ceasing or refusing to perform any work or to remain in any employment relationship.
2. Becoming or remaining a member of any labor organization or of any employer organization.
3. Paying or giving to, or withholding from, any person participating or interested in such labor dispute, any strike or unemployment benefits or insurance or other moneys or things of value.
4. By all lawful means, aiding any person participating or interested in any labor dispute who is being proceeded against in, or who is prosecuting, any action or suit in any court of the United States or of any state.
5. Giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence.
6. Assembling peaceably to act or to organize to act, in promotion of their interests in a labor dispute.
7. Advising or notifying any person of an intention to do any of the acts specified in this section.
8. Agreeing with other persons to do, or not to do, any of the acts specified in this section.
9. Advising, urging, or otherwise causing or inducing, without fraud or violence, any of the acts specified in this section, regardless of the existence of any undertaking or promise of the kind described in section 34-08-04.

34-08-06. Labor dispute not an unlawful combination or conspiracy.

No court of this state may issue a restraining order or temporary or permanent injunction upon the ground that any of the persons participating or interested in a labor dispute constitute, or are engaged in, an unlawful combination or conspiracy because of the doing in concert of any of the acts enumerated in section 34-08-05.

34-08-07. Basis upon which restraining order or injunction may be issued.

No court of this state may issue a restraining order or a temporary or permanent injunction in any case involving or growing out of a labor dispute except after hearing the testimony of witnesses in open court in support of the allegations of a complaint made under oath and the testimony offered in opposition thereto, and the granting to opposing parties of the right to cross-examine such witnesses, and except after the court has made and filed with the records in the case findings of fact to the effect that:

1. Unlawful acts have been threatened and will be committed, or have been committed and will be continued, unless restrained;
2. Substantial irreparable injury to complainant’s property will follow;
3. As to each item of relief granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; and
4. Complainant has no adequate remedy at law.

No such restraining order or injunction may be issued on account of any threat or unlawful act except against a person, association, or organization making the threat or committing the unlawful act or authorizing or ratifying the same with actual knowledge thereof. Every restraining order or injunction granted in a case involving or growing out of a labor dispute must include only a prohibition of such specific act or acts as may be expressly complained of in the complaint filed in such case and as shall be expressly included in the findings of fact.

34-08-08. Hearing required — Notice — When temporary order without notice may issue.

The hearing required under the provisions of section 34-08-07 must be held only after due and personal notice thereof has been given, in such manner as the court shall direct, to all known persons against whom relief is sought and also to the chief police officer of the county and city within which the unlawful acts have been threatened or committed. If a complainant alleges, however, that unless a temporary restraining order is issued without notice, a substantial and irreparable injury to complainant’s property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing after notice. Such a temporary restraining order becomes void at the expiration of five days. No temporary restraining order or injunction may be issued except on condition that complainant first shall file an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs, expenses, and a reasonable attorney’s fee, incurred in the defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court.

34-08-09. Judgment may be entered on undertaking — Notice required.

The undertaking mentioned in section 34-08-08 constitutes an agreement entered into by the complainant and the complainant’s surety upon which a judgment may be rendered against the complainant and the complainant’s surety in the same proceeding in which such undertaking is filed, and such complainant and surety, by filing the undertaking, submit themselves to the jurisdiction of the court for such purpose. Such judgment shall be rendered only after a hearing to assess damages, and the complainant and the complainant’s surety must have reasonable notice of such hearing. Nothing contained in this section precludes any party having a claim for relief upon such undertaking from pursuing the party’s ordinary remedy by suit at law.

34-08-10. Review by supreme court of order granting or denying temporary injunction.

Whenever any court of this state issues or denies a temporary injunction in a case involving or growing out of a labor dispute, such court, upon the request of any party to the proceeding and the filing by that party of a statutory cost bond, shall certify the record of the case to the supreme court of this state as in other civil cases for review by such court. The appeal must be heard by the supreme court and the temporary injunctive order must be affirmed, modified, or set aside by such court with the greatest possible expedition, and such appeal must have precedence over all other matters except older matters of the same character.

34-08-11. Jury trial on contempt charge — Exceptions.

In all cases arising under this chapter in which a person is charged with contempt in a court of this state, the accused shall enjoy the right to a speedy and public trial by an impartial jury, except when the contempt is alleged to have been committed in the presence of the court or so near thereto as to interfere directly with the administration of justice, or when the alleged contempt is the misbehavior, misconduct, or disobedience of any officer of the court in respect to a writ, order, or process of the court.

34-08-12. Change of judge to hear contempt charge — Demand required.

The defendant in any proceeding for contempt of court arising out of matters covered by the provisions of this chapter may file with the court, prior to the hearing in such proceeding, a demand for the retirement of the judge sitting in the proceeding if:

1. The contempt is alleged to have arisen from an attack upon the character or conduct of such judge; and
2. The attack which is alleged to be the basis of such proceeding occurred elsewhere than in the presence of the court or so near thereto as to interfere directly with the administration of justice.

Upon the filing of such demand, the judge shall proceed no further in the matter and another judge must be designated by the supreme court to hear the same.

34-08-13. Member or officer of an organization or association not liable for agents’ acts — Exception.

No officer or member of any association or organization, and no association or organization, participating or interested in a labor dispute, may be held responsible or liable in any court of this state for the unlawful acts of individual officers, members, or agents except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts, after actual knowledge thereof.

34-08-14. Mediators — Appointment — Functions — Compensation.

The state labor commissioner has power to act as mediator, or to appoint any competent, impartial, disinterested person to act as mediator, in any labor dispute either upon the commissioner’s own initiative or upon the request of one of the parties to the dispute. It is the function of such mediator to bring the parties together voluntarily under such favorable auspices as will tend to effectuate settlement of the dispute, but neither the mediator nor the commissioner has any power of compulsion in mediation proceedings. The commissioner shall provide necessary expenses for such mediators, other than for the commissioner or the commissioner’s deputy, as the commissioner may appoint, under reasonable compensation plus per diem expenses for each such mediator, and prescribe reasonable rules of procedure for such mediators.

34-09-01. Declaration of public policy.

The public policy of this state is declared to be that a worker is free to decline to associate with the worker’s fellow workers and is free to obtain employment wherever possible without interference or being hindered in any way, but that the worker also has the right to association and organization with the worker’s fellow employees and designation of representatives of the worker’s own choosing. A contract made and entered into between an employer of labor and a worker or workers or any agent, bargaining agent, or representative of a worker or workers is binding and equally enforceable upon both parties to said contract. Elections by secret ballot held to determine the question of who is the bargaining representative of a worker or workers or whether a worker or workers shall strike against an employer must be free and impartial without being influenced by either an employer or worker or any third parties. Secondary boycotts and sympathy strikes are hereby declared to be against public interest and unlawful.

34-09-02. Labor union to file statement with secretary of state — Contents. [Repealed]

Repealed by S.L. 1953, ch. 216, § 8.

34-09-03. Annual report of labor union. [Repealed]

Repealed by S.L. 1953, ch. 216, § 8.

34-09-04. Secretary of state to keep record. [Repealed]

Repealed by S.L. 1953, ch. 216, § 8.

34-09-05. When labor union may act as bargaining agent. [Repealed]

Repealed by S.L. 1953, ch. 216, § 8.

34-09-06. Contracts between union and employer.

Any contract entered into between the employer and a labor union must be executed on behalf of the employer in the employer’s true name and signed by the employer, or in case of a corporation by the proper officers authorized by law and the bylaws of the corporation to execute valid and binding contracts on behalf of the corporation, or in the case of a limited liability company by the proper managers authorized by law and the bylaws of the limited liability company to execute valid and binding contracts on behalf of the limited liability company, and any contract under this section must be executed on behalf of the labor union in the name of the labor union by the president, the secretary, or other duly authorized officer of the labor union. A contract under this section is equally binding as to all of the contract’s terms and conditions against both the employer and the labor union.

34-09-07. Effect of contract. [Repealed]

Repealed by omission from this code.

34-09-08. Enforcement of contract.

The contract may be enforced by either party by an action commenced in the district court. In such action a labor union may proceed or be proceeded against under the name in which the contract was executed. All orders and decrees issued by the court are binding upon the employer, the labor union, and the employees governed by the contract.

34-09-09. Conduct of election on appointing bargaining agent and on strike. [Repealed]

Repealed by S.L. 1953, ch. 216, § 8.

34-09-10. Certificate of results of election — Effect. [Repealed]

Repealed by S.L. 1953, ch. 216, § 8.

34-09-11. Vote required to appoint bargaining agent or have strike become effective. [Repealed]

Repealed by S.L. 1953, ch. 216, § 8.

34-09-12. Unlawful picketing — Violation.

In any strike in this state it is illegal for any person other than an employee of the particular establishment against which such strike is called or a local resident member of the union representing the employees of such establishment to picket in aid of such strike. Picketing in violation of this section is hereby declared to be unlawful and against the peace and dignity of the state and is subject to restraint by the district court of the county where such picketing occurs.

34-09-13. Boycotting, secondary boycotting, and sympathy strikes against public policy.

Boycotting, secondary boycotting, and sympathy strikes are hereby declared to be against the public policy and against the peace and dignity of the state of North Dakota and are subject to restraint by the district courts of the state of North Dakota as well as suits for damages therein.

34-09-14. Contract effective upon dissolution, reorganization, or merger of labor union.

If, after the execution of any contract or agreement as provided by this chapter, such labor union executing such contract is dissolved, reorganized, or merged or in any other way associated with any other labor union or organization or changes its name, such contract or agreement is nevertheless binding as to all its terms and conditions for the time specified in such contract.

34-09-15. Chapter not applicable to interstate commerce. [Repealed]

Repealed by S.L. 1953, ch. 216, § 8.

34-11-01. Recommendations of mediation board — Effect — Good faith and cooperation required.

No provisions of this chapter may be construed to mean that the state or any subordinate jurisdiction thereof or any board, commission, or department within such public jurisdiction is compelled to accept the recommendations of a mediation board as binding nor is any group of employees affiliated with a union or otherwise compelled to abide by the recommendations of such mediation board; provided, however, that both parties to any dispute or grievance in the public employee field covered by this chapter are required to proceed in good faith according to the terms hereof to create a mediation board and to cooperate fully with such board in attending hearings and supplying data concerning all matters in dispute, to answer questions and in all other particulars to respond in good faith and to cooperate fully with such board in its attempt to settle the matter in dispute. Nor may anything in this chapter be construed to affect, limit, or impair the right of any public employee to express that individual’s views, to make complaint or give testimony concerning any grievance pertaining to public employment or to the betterment of that individual’s working conditions. Nor may the provisions herein be construed to authorize any public employer covered by this chapter to attempt to or deter any public employee working subject to the public employer’s jurisdiction from affiliating with any union, association, or other group of public employees nor may a public employer refuse to consider grievances concerning employment problems with the representatives duly chosen by such union, association, or affiliation of public employees.

34-11-02. Mediation board — Designation — Selection of chairman.

Whenever a public employer or the employing head of a board, commission, or department in the state service or in the services of any subordinate jurisdiction or whenever any union, association, or group of public employees of a public unit of government decides by vote of such group that a grievance or matter in dispute which has been considered between the employer and the employee cannot be settled amicably and without disruption of the public service, it is the duty of the employer or the employees or both to request in writing of the chief executive officer of the unit of government, namely the governor in the state service, the chairman of the county board or commission in county services, and the mayor or city manager of the city in city services, that it is the wish of one or both parties concerned in such dispute or grievance that the provisions of this chapter be made use of by the designation by such officer of two members of a mediation board, one to be recognized as a representative of the employer in the public service and one to be a bona fide employee who is a member of the union, association, or group of employees and who is interested in the point of view of such group of employees. The two persons so designated shall upon their appointment forthwith meet and agree upon a third person who must be chairman of the mediation board.

34-11-03. Duty of mediation board — Public hearings — Determination of issues — Recommendations.

It is the duty of such mediation board to hold public hearings to consider the matter in dispute or the grievance at any place in the state for state employee-employer disputes or grievances, at any place within the jurisdiction of the county in county disputes, and within the limits of the city in a city dispute. Such board has the authority to subpoena witnesses, compel their attendance, administer oaths, take testimony, and receive evidence and it possesses the authority to discuss informally the matter of dispute or the grievance in the presence of both the employer or the employee or their representatives. Following the conclusion of such public hearings or such public considerations of the problem involved, such board shall within thirty days make determination of the issues involved in such dispute or grievance, prepare recommendations thereon in writing and submit a signed copy to the governor in the case of a dispute in the state employee field, to the chairman of the county board or commission in the case of a county dispute, and to the mayor or city manager in the case of a dispute in city service, and a signed copy to the employer and to the representative of the employees.

34-11-04. Study of recommendations by employer and employees — Reconsideration by board.

The employer and the employees concerned shall in good faith study the recommendations so prepared by the mediation board, and if either party to the dispute or grievance after such consideration of the recommendations feels that for some reason it cannot accept the recommendation, it shall notify the opposing party in writing and give reasons therefor. In such event either party to the dispute is entitled to ask the board of mediators for further consideration. Whenever further consideration is so requested, both parties to the dispute are bound to respond a second time as hereinbefore provided and the mediation board is privileged to exercise all of the powers with which it is clothed.

34-11-05. Expenses of board members reimbursed.

The members of boards of mediation may not receive compensation for their work but they must be reimbursed for any actual or necessary expenses incurred in connection therewith, and the unit of government involved is obligated upon proper affidavit therefor to pay from the treasury actual costs, including subpoena services and other expenses.

34-11.1-01. Definitions.

In this chapter unless the context otherwise requires:

1. “Agency” means any department, institution, board, or other similar body of state government, or any political subdivision within the state.
2. “Appointing authority” means the individuals in any agency who have authority to fill job vacancies.
3. “Employee” means any person, whether employed, appointed, or under contract, providing services for the state, county, city, or other political subdivision, for which compensation is paid. “Employee” also includes a person subject to the civil service or merit system or civil service laws of the state government, governmental agency, or a political subdivision. “Employee” does not include:
   1. A person elected to public office in the state or in a political subdivision.
   2. A member of the legislative council.
   3. A person holding an appointive statutory office.
   4. One deputy or principal assistant for each elected official or appointive statutory official.
   5. One secretary for each elected or appointive statutory official.
   6. All members of the governor’s staff.
4. “Organization” means any organized group of individuals working together for the common good of public employees and government.

34-11.1-02. Political activities.

Except when on duty or acting in an official capacity and except as otherwise provided by state or federal law, no employee may be prohibited from engaging in political activity or be denied the right to refrain from engaging in such activity.

34-11.1-03. Membership in organizations.

No employee may be denied the right to be a member of an organization of employees or be intimidated or coerced in a decision to communicate or affiliate with an organization. Public employees have the right to request payroll deduction of dues for membership in an organization of employees.

34-11.1-04. Violations for misuse reported by employee — Reprisals prohibited — Furnishing false information — Department of labor and human rights.

1. An employee, without fear of reprisal, may report in writing to the employee’s respective agency head, a state’s attorney, the attorney general, the state auditor, or an employee organization the existence of:
   1. A job-related violation of local, state, or federal law, rule, regulation, or ordinance.
   2. The job-related misuse of public resources.
2. For having made a report under subsection 1, no employee will:
   1. Be dismissed from employment.
   2. Have salary increases or employment-related benefits withheld.
   3. Be transferred or reassigned.
   4. Be denied a promotion that the employee otherwise would have received.
   5. Be demoted.
   6. Be discriminated against in any term or condition of employment.
3. An employee who intentionally furnishes false information is subject to disciplinary action, including suspension or dismissal as determined by the employee’s appointing authority or designee. An employee claiming reprisal under this section may appeal first to the human resource management services division and then to the district court in the manner prescribed by chapter 28-32, or to other appropriate offices and then to district court if the employee is not under the jurisdiction of the human resource management services division.
4. The department of labor and human rights shall receive complaints of violations of this section and may attempt to obtain voluntary compliance with this section through informal advice, negotiation, or conciliation. To receive assistance from the department of labor and human rights, a person claiming to be aggrieved by a violation of this section shall file a complaint with the department within three hundred days after the alleged act of wrongdoing. An employee is not prohibited from filing, or required to file, a complaint with the department of labor and human rights under this subsection before proceeding under other provisions of this section.
5. An employee of the state may appeal a claim of reprisal under this section in the manner prescribed for a classified employee under chapter 54-44.3. This subsection does not apply to an employee under the jurisdiction of the state board of higher education or the judicial branch of government.

34-11.1-04.1. Discrimination on basis of marital status in state employment prohibited — Exception.

Each state employee is, if otherwise qualified, entitled to work with that state employee’s spouse. A state agency may not discriminate against an employee or an applicant for employment, with respect to working conditions, workplace assignment, or other privileges of employment, merely because the spouse of that employee or applicant is also an employee of that state agency. Compliance with section 44-04-09 is not discrimination under this section.

34-11.1-04.2. Employee representation at grievance proceeding.

An employee who is a party to a work-related grievance proceeding may be accompanied, advised, and represented throughout the proceeding by another employee or by a representative chosen by the employee involved in the proceeding.

34-11.1-05. Prohibited acts.

No agency, appointing authority, organization, or employee may directly or indirectly:

1. Require or coerce any agency employee to participate in any way in any activity or undertaking unless the activity or undertaking is related to the performance of official duties.
2. Require or coerce any agency employee to make any report concerning any activities or undertaking unless the activity or undertaking is related to the performance of official duties.
3. Require any agency employee to invest or contribute earnings in any manner or for any purpose, except for participation in the employees retirement program.
4. Restrict or attempt to restrict after-working-hour statements, pronouncements, or other activities of any agency employee not otherwise prohibited by law which pertains to matters of public concern, if the employee does not purport to speak or act in an official capacity.
5. Restrict or attempt to restrict access of any employee to any member or committee of the legislative assembly.

34-11.1-06. Penalties or threats prohibited.

No employee may suffer a penalty or the threat of a penalty because that employee exercised rights under this chapter.

34-11.1-07. Other rights or legal remedies unimpaired.

Nothing in this chapter disparages, impairs, or limits any other right or legal remedy of an employee.

34-11.1-08. Penalty.

A violation of the provisions in this chapter is a class B misdemeanor.

34-12-01. Definitions.

In this chapter, unless the context or subject matter otherwise requires:

1. “Commissioner” means the North Dakota labor commissioner, the labor commissioner’s successor, or the labor commissioner’s duly authorized deputy.
2. “Employee” includes any employee, and is not limited to the employees of a particular employer, unless the chapter explicitly states otherwise, and includes any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but does not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at that family’s or person’s home, or any individual employed by that individual’s parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor or guard, or any individual employed by an employer subject to the Railway Labor Act [Pub. L. 69-257; 44 Stat. 577; 45 U.S.C. 151 et seq.], as amended from time to time, or by any other person who is not an employer as herein defined.
3. “Employer” includes any person acting as an agent of an employer, directly or indirectly, but does not include the United States or any wholly owned government corporation, or any federal reserve bank, or any state or political subdivision thereof, or any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual, or any person subject to the Railway Labor Act [Pub. L. 69-257; 44 Stat. 577; 45 U.S.C. 151 et seq.], as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization, or any farmer.
4. “Labor organization” means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.
5. “Person” includes one or more individuals, labor organizations, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, or receivers.
6. “Representatives” includes any individual or labor organization.
7. “Unfair labor practice” means any unfair labor practice as provided in section 34-12-03.

34-12-02. Right of employees as to organization, collective bargaining.

Employees have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other lawful concerted activities for the purpose of collective bargaining or other mutual aid or protection, and also have the right to refrain from any or all of such activities and are free to decline to associate with their fellows and are free to obtain employment wherever possible without interference or being hindered in any way.

34-12-03. Unfair labor practices.

1. It is an unfair labor practice for any employer:
   1. To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 34-12-02.
   2. To dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. This may not be construed to prohibit an employer from conferring with employees or their bona fide representatives and including, but not by way of limitation, explaining the position of management in connection with the problems of the employer during working hours without the loss of pay.
   3. By discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.
   4. To discharge or otherwise discriminate against an employee because the employee has filed charges or given testimony under this chapter.
   5. To refuse to bargain collectively with the representatives of the employer’s employees, subject to section 34-12-02.
2. It is an unfair labor practice for a labor organization or its agents:
   1. To restrain or coerce employees in the exercise of rights guaranteed in section 34-12-02, provided that a labor organization may prescribe its own rules for the acquisition and maintenance of membership in said labor organization.
   2. To cause or attempt to cause an employer to discriminate or restrain or coerce employees in the exercise of rights set forth in section 34-12-02.
   3. To restrain or coerce an employer in the selection of the employer’s representatives or to refuse to bargain with an employer if the labor organization or its agent is the representative of the employer’s employees.
   4. To force or attempt to force an employer or self-employed person to join any organization.
   5. To engage in, or to induce or encourage any employee to engage in, a strike or a refusal in the course of the employee’s employment to use or work on any goods, articles, materials or commodities, or to perform any services, or to threaten, coerce, or restrain any person for the purpose of forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any employer to recognize or bargain with a labor organization as the representative of the employer’s employees unless the labor organization has been certified as the representative of the employer’s employees under the provisions of section 34-12-05; but nothing in this subsection may be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing, and nothing contained in this subsection may be construed to make unlawful a refusal by any person to enter upon the premises of any employer, other than the person’s own employer, if the employees of the other employer are engaged in a lawful strike.
   6. To require of employees as a condition for membership the payment of fees found by the commissioner to be excessive or discriminatory.
   7. To cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed.
   8. To make, circulate, or cause to be circulated a black list.
   9. To coerce or intimidate an employee in the enjoyment of the employee’s legal rights, or to intimidate the employee’s family or any member thereof, picket the employee’s domicile, or injure the person or property of the employee or the employee’s family or of any member thereof.
   10. To hinder or prevent by unlawful picketing, threats, intimidation, force, or coercion of any kind the pursuit of any lawful work or employment, or to obstruct or interfere with entrance to or egress from any place of employment, or to obstruct or interfere with free and uninterrupted use of public roads, streets, highways, railways, airports, or other ways of travel or conveyance.
3. It is unfair labor practice for a person:
   1. To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 34-12-02.
   2. To coerce or intimidate an employee in the enjoyment of the employee’s legal rights, or to intimidate the employee’s family or any member thereof, picket the employee’s domicile, or injure the person or property of the employee, the employee’s family, or any member thereof.
   3. To hinder or prevent by unlawful picketing, threats, intimidation, force, or coercion of any kind, the pursuit of any lawful work or employment, or to obstruct or interfere with entrance to or exit from any place of employment, or to obstruct or interfere with free and uninterrupted use of entrances, public roads, streets, highways, railways, airports, or other ways of travel or conveyance.
4. The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, is not evidence of an unfair labor practice under this chapter if the expression contains no threat of reprisal or force or promise of benefit.

34-12-04. Collective bargaining.

1. For the purposes of this chapter, to bargain collectively means the performance of the mutual obligations of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation or renegotiation of an agreement, or any question thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.
2. When there is in effect a collective bargaining contract, the duty to bargain also means that no party to such contract may terminate or modify such contract at the conclusion of its term until sixty days after either party mails notice of a desire to terminate or to modify. A strike or lockout for economic purposes is unlawful until the end of the sixty-day period. The duty to bargain collectively continues despite termination of a collective bargaining contract unless the employee bargaining representative has lost its majority status.

34-12-05. Exclusive representation — Employees’ adjustment of grievances directly with employer.

1. Representatives designated or selected for the purpose of collective bargaining of the employees in a unit appropriate for such purposes are exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment.
2. Any individual employee or group of employees has the right at any time to present grievances to the individual’s or group’s employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective bargaining contract or agreement then in effect. The bargaining representative must be given an opportunity to be present at such adjustment.

34-12-06. Determination of bargaining unit by commissioner.

The commissioner shall decide in each case whether in order to assure to employees the fullest freedom in exercising rights guaranteed by this chapter, the unit appropriate for the purposes of collective bargaining is the employer unit, craft unit, plant unit, or subdivision thereof. The commissioner may not:

1. Decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit.
2. Decide that any craft unit is inappropriate for such purposes on the ground that a different unit has been established by a prior commissioner determination, unless a majority of the employees in the proposed craft unit vote against separate representation.
3. Decide that any unit is appropriate for such purposes if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer’s premises; but no labor organization may be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.

In determining whether a unit is appropriate, the extent to which the employees have organized is not controlling.

34-12-07. Informal conference — Hearing on representation questions — Election requirements.

1. The commissioner shall promptly fix a date for an informal conference upon due notice to all parties whenever a petition has been filed, in accordance with this chapter:
   1. By an employee or group of employees or any individual or labor organization acting in the employee’s or group’s behalf alleging that at least thirty percent of employees wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in section 34-12-05, or assert that the individual or labor organization, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a representative as defined in section 34-12-05; or
   2. By an employer, alleging that one or more individuals or labor organizations have presented to the employer a claim to be recognized as the representative defined in section 34-12-05.
2. If upon the informal conference:
   1. All parties agree that a question of representation exists and consent to an election, the commissioner shall conduct an election upon secret ballot forthwith.
   2. The parties cannot agree that a question of representation exists, the commissioner shall hold a hearing and if upon such hearing the commissioner finds a question of representation exists, the commissioner shall conduct an election by secret ballot and shall certify the results thereof.
3. When a petition is filed as above provided, or the bargaining representative has been questioned, or a strike is to be called by the bargaining representative certified to represent employees, and the issue cannot be determined informally, the commissioner shall notify the employees, the employer, and such other persons as the commissioner deems necessary, requiring employees and the employer to each appoint a representative to act with the commissioner in the conduct of an impartial and secret ballot election to determine a bargaining agent, or whether a strike shall be had, or determine whether the present bargaining agent is no longer the representative bargaining agent. If any party shall decline or neglect to appoint a representative, the commissioner shall appoint some fair and impartial person to act as such party’s representative. Such election board, consisting of a representative of the employees, a representative of the employer, and the commissioner shall thereupon designate a reasonable time within ten days after such board is constituted when such vote must be held, which election must be upon the premises of the employer during working hours. The board shall conduct an impartial secret ballot in which all employees of the appropriate bargaining unit involved have the right to cast a vote. Within twenty-four hours immediately after the completion of the election, such election board shall make an accurate and complete tabulation of the votes cast in such election and shall prepare a written certificate, which must bear the signature of the commissioner, and a copy of such certificate must be delivered to the employer and to the employees or their bargaining agent.
4. No election is valid unless at least fifty-one percent of the employees in the appropriate bargaining unit cast valid ballots. If fifty-one percent of the employees in the appropriate bargaining unit fail to cast valid ballots at such election, a second election must be held forthwith. If on such second election fifty-one percent participation is not obtained, no further elections may be held for a period of one year.

No election may be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period a valid election has been held. Employees on strike who are not entitled to reinstatement are not eligible to vote. In any election in which none of the choices on the ballot receives a majority, a runoff must be conducted, the ballot providing for a selection between the two choices receiving the largest and second largest number of valid votes cast in the election.

34-12-08. Authority of commissioner.

Whenever it is charged that any person is engaged in or has engaged in any unfair labor practice, the commissioner shall investigate the charges informally and if it appears that an unfair labor practice is occurring or has occurred, the commissioner has power to issue and cause to be served upon such person a written specification of the issues which are to be considered and determined. If, upon the evidence, the commissioner is of the opinion that any person named in the written specifications has engaged in or is engaging in any such unfair labor practice, the commissioner shall issue and cause to be served upon such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action, including reinstatement of employees with or without backpay, as will effectuate the policies of this chapter. When an order requires reinstatement of an employee, backpay may be required of the employer or employee organization, as the case may be, responsible for the discrimination suffered by the employee. No order of the commissioner may require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to the individual of any backpay, if such individual was suspended or discharged for cause. If the order is not obeyed, the commissioner has the authority to apply to the appropriate district court for such action as is necessary to enforce the commissioner’s order, including injunction and mandamus proceedings. The commissioner may act as a conciliator in any labor dispute.

34-12-09. Power to promulgate regulations.

The commissioner has the authority to promulgate reasonable regulations to effectuate the purposes of this chapter.

34-12-10. Applicability of chapter 28-32.

All proceedings hereunder and all appeals to the courts are governed by the provisions of chapter 28-32.

34-12-11. Right of suit for damages preserved.

Any person injured in person or property by reason of the commission of an unfair labor practice as defined in this chapter may sue therefor in the district court and shall recover the damages sustained by that person and the cost of the suit.

34-12-12. Reporting by labor organization.

The commissioner is hereby designated as the official of the state of North Dakota authorized to receive copies of reports made to the secretary of labor of the United States by virtue of the Labor-Management Reporting and Disclosure Act of 1959 [Pub. L. 86-257; 73 Stat. 525; 29 U.S.C. 432], as amended from time to time. In the event such reports have not been made to the secretary of labor of the United States by a labor organization, such labor organization shall file with the commissioner, within ninety days after the close of its fiscal year, a report giving the name of the labor organization, its mailing address, and the name, title, and address of each of its officers. The governor shall request copies of all reports filed by labor organizations subject to the jurisdiction of the state of North Dakota from the United States secretary of labor.

34-12-13. Severability clause. [Repealed]

Repealed by S.L. 1983, ch. 82, § 154.

34-12-14. Short title.

This chapter may be cited as the North Dakota Labor-Management Relations Act.

34-13-01. Definitions. [Effective through August 31, 2022]

As used in this chapter, unless the context or subject matter otherwise requires:

1. “Commissioner” means the labor commissioner.
2. “Employee” means any individual, whether employed or unemployed, seeking or entering into any arrangement for employment or change of employment through the medium of service of an employment agent.
3. “Employer” means any individual, firm, corporation, limited liability company, or association employing or seeking to enter into an arrangement to employ any individual through the medium or service of an employment agent.
4. “Employment agent” or “employment agency”:
   1. Means any individual, firm, corporation, limited liability company, or association in this state engaged for hire or compensation in the business of furnishing:
      1. Individuals seeking employment or changing employment, with information or other service enabling or tending to enable such individuals to procure employment, by or with employers, other than such employment agent; or
      2. Any other individual, firm, corporation, limited liability company, or association that may be seeking to employ or may be in the market for help of any kind, with information enabling or tending to enable such other individual, firm, corporation, limited liability company, or association to procure such help.
   2. Does not include:
      1. An individual, firm, corporation, limited liability company, or association employing individuals to render part-time or temporary services to or for a third person, if the individual, firm, corporation, limited liability company, or association employing the individuals, in addition to wages or salaries, pays social security and unemployment insurance taxes, provides workforce safety and insurance coverage, and is responsible for the acts of the employees while rendering services to or for a third person.
      2. An individual, firm, corporation, limited liability company, or association charging service fees or any other charges exclusively to employers.
      3. An individual, firm, corporation, limited liability company, or association licensed or certified by the department of human services to provide employment related services, to the extent the employment-related services are being provided for the clientele identified by the department in the issuance of the license or certificate.
5. “Gross misconduct” means misconduct involving assault and battery, the malicious destruction of property, or the theft of money or property.

34-13-01. Definitions. [Effective September 1, 2022]

As used in this chapter, unless the context or subject matter otherwise requires:

1. “Commissioner” means the labor commissioner.
2. “Employee” means any individual, whether employed or unemployed, seeking or entering into any arrangement for employment or change of employment through the medium of service of an employment agent.
3. “Employer” means any individual, firm, corporation, limited liability company, or association employing or seeking to enter into an arrangement to employ any individual through the medium or service of an employment agent.
4. “Employment agent” or “employment agency” :
   1. Means any individual, firm, corporation, limited liability company, or association in this state engaged for hire or compensation in the business of furnishing:
      1. Individuals seeking employment or changing employment, with information or other service enabling or tending to enable such individuals to procure employment, by or with employers, other than such employment agent; or
      2. Any other individual, firm, corporation, limited liability company, or association that may be seeking to employ or may be in the market for help of any kind, with information enabling or tending to enable such other individual, firm, corporation, limited liability company, or association to procure such help.
   2. Does not include:
      1. An individual, firm, corporation, limited liability company, or association employing individuals to render part-time or temporary services to or for a third person, if the individual, firm, corporation, limited liability company, or association employing the individuals, in addition to wages or salaries, pays social security and unemployment insurance taxes, provides workforce safety and insurance coverage, and is responsible for the acts of the employees while rendering services to or for a third person.
      2. An individual, firm, corporation, limited liability company, or association charging service fees or any other charges exclusively to employers.
      3. An individual, firm, corporation, limited liability company, or association licensed or certified by the department of health and human services to provide employment related services, to the extent the employment-related services are being provided for the clientele identified by the department in the issuance of the license or certificate.
5. “Gross misconduct” means misconduct involving assault and battery, the malicious destruction of property, or the theft of money or property.

34-13-02. License required — Penalty.

A person may not open or carry on an employment agency if that person has a physical presence or location within the state, unless that person first procures a license from the commissioner. A person opening or conducting any such agency without first procuring a license is guilty of a class B misdemeanor.

34-13-03. License application — Schedule of fees — License issuance and revocation.

Annually, every applicant for a license shall file with the commissioner a written application stating the name and address of the applicant, the street and number of the building in which the employment agency is to be maintained, the name of the person who is to have the general management of the office, the name under which the business of the office is to be carried on, whether or not the applicant is pecuniarily interested in any other business of a like nature, and if so, where. Such application must also state whether the applicant is the only person pecuniarily interested in the business to be carried on under the license and must be signed by the applicant and sworn to before a notary public. If the applicant is a corporation, the application must state the names and addresses of the officers and directors of the corporation and must be signed and sworn to by the president and treasurer thereof. If the applicant is a limited liability company, the application must state the names and addresses of the managers and governors of the limited liability company and must be signed and sworn to by the president and treasurer thereof. If the applicant is a partnership, the application must also state the names and addresses of all partners therein and must be signed and sworn to by the managing partner or partners. The application must also state whether or not the applicant is, at the time of making application, or has at any previous time been, engaged or interested in, or employed by anyone engaged in, the business of conducting an employment agency, either in this state or any other, and if so, when and where. The application must also give as reference the names and addresses of at least three persons of reputed business or professional integrity, located within the state. Every applicant for a license to engage in the business of an employment agent shall, at the time of making application for said license, file with the commissioner a schedule of the fees or charges to be collected by such employment agent for any services rendered, together with all rules and regulations that may in any way affect the fees charged or to be charged for any service. Such fees and such rules or regulations may thereafter be changed by filing an amended or supplemental schedule showing such charges, with the commissioner. It is unlawful for any employment agent to charge, demand, collect, or receive a greater compensation for any service performed by the agent than is specified in such schedule filed with the commissioner.

The commissioner may issue a license to an employment agent and refuse to issue a license if, after due investigation, the commissioner finds that the character of the applicant makes the applicant unfit to be an employment agent, or when the premises for conducting the business of an employment agent are found to be unfit. The commissioner may revoke a license upon due notice to the holder of the license and upon due cause. Failure to comply with the duties, terms, conditions, or provisions of this chapter, or any lawful orders of the commissioner is due cause to revoke a license.

34-13-04. License term and fee.

All such licenses must be issued for a period of one year only, and the annual fees must be paid to the commissioner who shall promptly deliver them to the state treasurer, who shall deposit all such moneys in the general fund. The annual fee for such a license is two hundred dollars.

34-13-05. Applicant to furnish bond.

Every application for a license must be accompanied by a bond in the penal sum of five thousand dollars, with one or more sureties or a duly authorized surety company, to be approved by the commissioner and filed in the commissioner’s office, conditioned that the agent will conform to and not violate any of the terms or requirements of this chapter or violate the covenants of any contract made by such agent in the conduct of said business. Action on this bond may be brought by and prosecuted in the name of any person damaged by any breach or any condition thereof, and successive actions may be maintained thereon.

34-13-06. Form and contents of license.

After an application for a license has been granted, a license must be issued to the applicant which must state the name of the employment agent, and, if a corporation, the names of the officers, if a limited liability company, the names of the managers, if a partnership, the names of the partners, the location of the office where the business is to be conducted, and the name of the person who is to be charged with the general management of the business. The license must also be numbered and dated.

34-13-07. Duration of license.

Every license, unless previously revoked, remains in force until one year after its issue, and every employment agent shall, upon payment of the amount of the license fee required and the filing of a new bond or an authenticated certificate continuing a bond previously approved by the commissioner, have issued to it a license for the ensuing year, unless the commissioner refuses to do so for any of the reasons stated in this chapter.

34-13-08. Suspension or revocation of license.

If the commissioner finds that the employment agent has violated any of the provisions of this chapter, or has acted dishonestly in connection with the agent’s business, or has improperly conducted the agent’s business, or that any other good and sufficient reason exists within the meaning and purpose of this chapter, the commissioner may suspend or revoke the employment agent’s license, or refuse to grant a new license to the employment agent upon the termination thereof; but in any case no such action may be taken until a written notice has been sent to the employment agent specifying the charges against the employment agent and the employment agent has been given a hearing, if the employment agent requests, and a reasonable opportunity to disprove or explain the charges.

34-13-09. Transfer of license — Consent to others becoming connected with licensee.

No license granted under the terms of this chapter is transferable, except with the consent of the commissioner. No employment agent may permit any person not mentioned in the license to become connected with the business as a partner, as an active officer of a licensed corporation, or as an active manager of a licensed limited liability company unless the consent of the commissioner is first obtained. Such consent may be withheld for any reason for which an original application for a license might have been rejected, if the person in question had been mentioned therein. If such consent is given, the names of the persons so becoming connected with the employment agency must be endorsed upon the license and, if such license is renewed, must be substituted for or added to the names of the persons originally mentioned therein.

34-13-10. Place of business.

No employment agent may open, conduct, or maintain an employment agency at any other place than that specified in the license without first obtaining the consent of the commissioner. Such consent may be withheld for any reason for which an original application might have been rejected, if such place had been mentioned therein. If such consent is given, it must be endorsed upon the license and, if such license is renewed, such other place must be substituted for the place originally named in the license. So long as any employment agent continues to act as such under the person’s license, the employment agent shall maintain and keep open an office or place of business at the place specified in the license.

34-13-11. License classifications. [Repealed]

Repealed by S.L. 1995, ch. 341, § 6.

34-13-12. Schedule of charges posted and printed on receipts — Sections of law posted — Information given to applicant for employment.

Every employment agent possessing a valid license shall post in a conspicuous place in a room used for business purposes in the employment office and which is open to the public, a schedule showing the amount of the service charges to be made to employees. The amount collected may not exceed the schedule of charges indicated.

A licensed employment agent shall post in a conspicuous place in a room used for business purposes in the employment office a copy of sections 34-13-12 and 34-13-15, provided by the commissioner.

No employment agent holding a license may direct any applicant to apply for employment at any place outside of the office of such employment agent without first giving to such applicant, in written form, the name and address of the employment agent, the name of the applicant, the name and address of the person to whom the applicant is referred, and the kind of employment supposed to be obtainable at such place. Nothing herein may be construed to prohibit an employment agent from directing an applicant by telephone to apply for employment, but such telephone message must be confirmed in writing by the employment agent within twenty-four hours after the telephone conversation, and a copy of such confirmation must be kept on file at the place of business of the employment agent for a period of one year.

34-13-13. Contract with applicant for employment.

Every licensed employment agent shall contract, in writing, with every applicant for employment for services to be rendered to the applicant by the employment agent, which contract must contain the date, the name and address of the employment agency, the name of the employment agent, the service charge to be made to the applicant, and the time and method of payments, and, on either the face or back of the contract, must appear the definition of “accept”, “method of payment”, and “charge for permanent position which ends within ninety calendar days”.

34-13-13.1. Service charge refund — Contracts and fees approved by commissioner — Cause of action by employee.

1. If an employment position terminates or the employee is fired or laid off before the end of ninety calendar days, the employee shall receive a refund of all service charges paid in excess of twenty percent of the gross wages actually received prior to termination or release. If the employee has a signed contract accepting an employment position but does not start employment, quits the job voluntarily, or is terminated for gross misconduct, the refund does not apply. Nothing contained in this section restricts an agency from receiving full-service charges at the time of the referral, subject to the refund herein provided.
2. Every employment agency shall submit copies of all contracts and fee schedules used by the agency or agent to the labor commissioner for approval. No contract or fee between an employment agency and an employee is valid without the commissioner’s approval. In approving or disapproving such contracts and fees, the commissioner shall issue a written determination. This determination is subject to review and appeal under chapter 28-32.
3. This section does not apply to contracts wherein the service charge does not exceed one hundred dollars.
4. Any employee who is damaged by a violation of this section is entitled to receive from the licensee the entire amount of service charges the employee has paid the licensee.

34-13-14. Theatrical agencies — Duplicates of applications for engagements. [Repealed]

Repealed by S.L. 1995, ch. 341, § 6.

34-13-15. Employment agent requirements.

In addition to the foregoing sections governing specific classifications, the following shall govern each and every employment agent:

1. Every license must be hung in a conspicuous place in the main office of the employment agency.
2. No fee may be solicited or accepted as an application or registration fee by any employment agent for the purpose of being registered as an applicant for employment.
3. Every employment agent shall give to every person from whom the payment of a service charge is received for services rendered or to be rendered, or assistance given or to be given, a receipt bearing the name and address of the employment agency, the name of the employment agent, the amount of the payment, the date of the payment, and for what it is paid. Every receipt to an applicant by an employment agent must be numbered and bound in duplicate form. A duplicate copy of each receipt must be kept at least one year.
4. Every employment agent shall keep a record of all services rendered employers and employees. This record must contain the name and address of the employer by whom the services were solicited, the name and address of the employee, kind of position offered by the employer, kind of position accepted by the employee, probable duration of the employment, rate of wage or salary to be paid the employee, amount of the employment agent’s service charge, dates and amounts of payments, date and amount of refund, if any, and for what, and a space for remarks under which must be recorded anything of an individual nature to amplify the foregoing report and as information in the event of any question arising concerning the transaction. Such records must during business hours be open to the inspection of the commissioner at the address where the employment agency is conducted for the purpose of satisfying the commissioner that they are being kept in conformity with this section. Upon written complaint being made, the commissioner may require of the employment agent against whom the complaint is made a detailed account under oath in writing of the transaction referred to in the complaint. If the commissioner has reason to question the detailed report so submitted by the employment agent, the commissioner may demand of the employment agent the production of these records for examination by the commissioner, or the commissioner’s agent, at such place as the commissioner may designate.
5. No employment agent may send out any applicant for employment without having obtained, either orally or in writing, a bona fide order, and if no employment of the kind applied for existed at the place to which the applicant was directed, the employment agent shall refund to the applicant, within forty-eight hours of demand, any sums paid by the applicant for transportation in going to and returning from the place, and all fees paid by the applicant. This chapter does not prevent an employment agent from directing an applicant to an employer where the employer has previously requested that the employer be accorded interviews with applicants of certain types and qualifications, even though no actual vacancy existed in the employer’s organization at the time the applicant was so directed; nor does it prevent the employment agent from attempting to sell the services of an applicant to the employer even though no order has been placed with the employment agent; provided, that in any case the applicant is acquainted with the facts when directed to the employer, in which event no employment agent is liable to any applicant as provided in this section.
6. No employment agent may, personally, or by an agent or agents, solicit, persuade, or induce any employee to leave any employment in which the employment agent or the employment agent’s agents has placed the employee. Nor may any agent, personally or through any agents, persuade or induce or solicit any employer to discharge any employee.
7. No employment agent may knowingly cause to be printed or published a false or fraudulent notice or advertisement for help or for obtaining work or employment.
8. No employment agent may place or assist in placing any person in unlawful employment.
9. No employment agent may fail to state in any advertisement, proposal, or contract for employment that there is a strike or lockout at the place of proposed employment, if the agent has knowledge that such condition exists.
10. Any person who splits, divides, or shares, directly or indirectly, any fee, charge, or compensation received from any employee with any employer, or person in any way connected with the business thereof, is guilty of a class A misdemeanor.

34-13-16. Penalty.

Any person who violates the provisions of this chapter for which another penalty is not specifically provided is guilty of a class A misdemeanor.

34-14-01. Definition.

Whenever used in this chapter, “employer” includes every person, firm, partnership, association, corporation, limited liability company, receiver or other officer of a court of the state, and any agent or officer of any kind of the above-mentioned classes and subject to the provisions hereof, employing any person in this state.

34-14-02. Agreed payday — Direct deposit — Stored value card.

Every employer shall pay all wages due to employees at least once each calendar month on regular agreed paydays designated in advance by the employer. Wages must be paid in lawful money of the United States; with checks, as that item is used in chapter 41-03, drawn on banks or credit unions convenient to the place of employment; with direct deposit in the financial institution of the employee’s choice; or, at the election of the employee when offered by the employer, by delivery to the employee of a stored value card that meets the requirements of this section. A stored value card that is used by an employer to pay wages must be issued by a federally insured bank or credit union. The value of the funds underlying a stored value card that is used by an employer to pay wages must be a deposit that is insured by the federal deposit insurance corporation or national credit union administration. Before paying wages by delivering a stored value card to an employee, an employer must have deposited with the issuer funds in an amount at least equal to the wages due from the employer to each employee whose wages are being paid through a stored value card and any account fees that are charged to the employer by the issuer.

34-14-03. Employees who are separated from payroll before paydays.

Whenever an employee is discharged or terminated from employment by an employer, separates from employment voluntarily, or is suspended from work as the result of an industrial dispute, the employee’s unpaid wages or compensation becomes due and payable at the regular paydays established in advance by the employer for the periods worked by the employee. When an employer discharges or terminates an employee, the employer shall pay those wages to the employee by certified mail at an address designated by the employee or as otherwise agreed upon by both parties. If the employer fails to pay the wages within the stated time, the employee may charge and collect wages in the sum agreed upon in the contract of employment for each day the employer is in default until the employer has paid in full, without rendering any service therefor, except the employee shall cease to draw wages or salary thirty days after such default.

34-14-04. Unconditional payment of wages conceded to be due.

In case of a dispute over wages, the employer shall give written notice to the employee of the amount of wages less whatever the employee owes the employer which the employee concedes to be due and shall pay such amount without condition within the time set by this chapter, provided that acceptance by the employee of any payment made hereunder does not constitute a release as to the balance of the claim.

34-14-04.1. Limitations on withholdings.

Except for those amounts that are required under state or federal law to be withheld from employee compensation or where a court has ordered the employer to withhold compensation, an employer only may withhold from the compensation due employees:

1. Advances paid to employees, other than undocumented cash.
2. A recurring deduction authorized in writing.
3. A nonrecurring deduction authorized in writing, when the source of the deduction is cited specifically.
4. A nonrecurring deduction for damage, breakage, shortage, or negligence must be authorized by the employee at the time of the deduction.

34-14-05. Enforcement.

1. The labor commissioner or the commissioner’s deputy shall ensure compliance with this chapter, investigate alleged violations of this chapter, and institute or cause to be instituted actions for penalties and forfeitures related to violation of this chapter.
2. The commissioner or the commissioner’s deputy may hold hearings on the merits of any claim and shall cooperate with any employee in the enforcement of a claim against the employee’s employer in any case if, in the commissioner’s opinion, the claim is valid.
3. In investigating a complaint under this chapter, the commissioner may require the attendance of a witness and the production of a book, record, document, data, or other object at any hearing or with reference to any matter the commissioner has the authority to investigate under this chapter.
   1. If under this subsection a witness fails or refuses to appear or to produce, the commissioner may issue a subpoena to compel the witness to appear or a subpoena duces tecum to compel the witness to appear and produce a relevant book, record, document, data, or other object.
   2. If a person refuses to obey a subpoena, the district court, upon application by the commissioner, may issue to the person an order requiring the person to appear and give evidence or otherwise produce documentary evidence requested by the commissioner regarding the matter under investigation.
   3. A witness subpoenaed under this section who appears at a hearing or has a deposition taken is entitled to receive the same fees and mileage as a witness in a civil case in district court.
4. The commissioner may consider any offsets, deductions, or counterclaims asserted by an employer during the commissioner’s investigation and determination of the validity, enforceability, and amount of any claim for wages. An employer shall disclose the basis for and the amount of any claimed offset, deduction, or counterclaim to the commissioner within the time the commissioner directs.
5. The commissioner and the commissioner’s authorized representatives have the right to enter places of employment for the purpose of inspecting records and seeing that all provisions of this chapter are complied with.

34-14-06. Personnel.

The labor commissioner and the commissioner’s deputy may employ such clerical and other assistants as may be necessary to carry out the purposes of this chapter, and shall fix the compensation of such employees and may also, to carry out such purposes, incur reasonable traveling expenses for the commissioner and the commissioner’s deputy and assistants.

34-14-07. Penalties.

Any employer who willfully refuses to pay the wages due and payable when demanded as in this chapter, or who falsely denies the amount thereof, or that the same is due with intent to secure for the employer or any other person any discount upon such indebtedness, or with intent to annoy, harass, or oppress, or hinder, or delay, or defraud the person to whom such indebtedness is due, is guilty of an infraction. Any employee who falsifies the amount due the employee or who willfully attempts to defraud the employer is guilty of an infraction.

34-14-07.1. Retroactive payment not required.

When the commissioner reviews a potential employment relationship involving an independent contractor who has a valid identification number issued under section 34-05-01.4 and determines that the party described as an independent contractor is an employee for purposes of wages, rather than an independent contractor, the commissioner may not require the party determined to be the employer to pay wages, in addition to those required by the contract, for that employee, or any interest, penalty, or delinquency fee with respect to those wages, retroactive to the date the relationship with the employee began, unless, however, the commissioner determines that the employer willfully and intentionally entered the relationship with the purpose of avoiding the payment of wages. The commissioner may require the payment of wages for that employee as of the date the order declaring an employment relationship becomes final.

34-14-08. Assignment of wage claims to labor commissioner for recovery by civil action.

The labor commissioner or the commissioner’s deputy has the power and authority to take assignments of wage claims and claims for relief for penalties provided by section 34-14-09, without being bound by any of the technical rules with reference to the validity of such assignments; and has the power and authority to prosecute actions for the collection of such claims on behalf of persons who, in the judgment of the commissioner or the commissioner’s deputy, are entitled to the services of the commissioner or the commissioner’s deputy and who, in the commissioner’s judgment, have claims which are valid and enforceable in the courts. The commissioner or the commissioner’s deputy has the power to join various claimants in one preferred claim or lien and in case of suit to join them in one claim for relief.

34-14-09. Employees’ remedies — Limitation on wages collectible.

1. An employee may file with the department a claim for wages due under this chapter or under chapter 34-06 if the filing is made within two years from the date the wages are due and the amount of the wages claimed due is at least one hundred twenty-five dollars but not more than fifteen thousand dollars. For purposes of this section, wages are due at each regular payday immediately following the work period during which wages were earned. If the department denies the claim for wages due because the amount claimed is less than one hundred twenty-five dollars, the department shall inform the claimant of the opportunity for the claimant to pursue the claim in small claims court under chapter 27-08.1. If the department denies the claim for wages due because the amount claimed is more than fifteen thousand dollars, the department shall inform the claimant of the opportunity for the claimant to pursue the claim in district court under chapter 27-05.
2. If the labor commissioner determines wages have not been paid and that the unpaid wages constitute an enforceable claim, the commissioner, upon request of the employee, may take an assignment in trust for the wages or a claim for liquidated damages in amounts the commissioner deems valid and enforceable without being bound by the technical rules respecting the validity of any assignments and may bring any legal action necessary to collect the claim. With the consent of the assigning employee at the time of the assignment, the commissioner may settle and adjust the claim to the same extent as the assigning employee.
3. The limitation of action under section 34-01-13 is tolled by the filing of a claim with the commissioner until the commissioner determines the claim is not enforceable or the commissioner reassigns the claim to the employee.

34-14-09.1. Interest on unpaid wages — Amount of recovery — Exception.

In addition to the employee’s right to recover unpaid wages as provided in this chapter, every employee is entitled to recover from the employee’s employer:

1. Interest on the unpaid wages from the date the wages are due until payment is made in full at the rate as established by section 47-14-09; and
2. An amount equal to:
   1. Double the employee’s unpaid wages, if, within one year preceding the date such wages are due, the employer has, on separate occasions, been subject to, and found liable for, two previous wage claims under the provisions of this chapter; or
   2. Treble the employee’s unpaid wages, if, within one year preceding the date such wages are due, the employer has, on separate occasions, been subject to, and found liable for, three or more previous wage claims under the provisions of this chapter.

The provisions of this section do not apply to wage claims arising under the Railway Labor Act [Pub. L. 69-257; 44 Stat. 577; 45 U.S.C. 151 et seq.] or to wage claims arising under contested application of collective bargaining agreements.

34-14-09.2. Limitations on accrued paid time off — Investigation

1. If an employee separates from employment voluntarily, a private employer may withhold payment for accrued paid time off if:
   1. At the time of hiring, the employer provided the employee written notice of the limitation on payment of accrued paid time off;
   2. The employee has been employed by the employer for less than one year; and
   3. The employee gave the employer less than five days’ written or verbal notice.
2. If an employee separates from employment, a private employer may withhold payment for paid time off if:
   1. The paid time off was awarded by the employer but not yet earned by the employee; and
   2. Before awarding the paid time off, the employer provided the employee written notice of the limitation on payment of awarded paid time off.
3. As provided under section 34-14-05, an employee may report a violation under this section. If a report of violation is made within thirty days of the alleged violation, the labor commissioner shall investigate the merits of the claim. If a report is made more than thirty days following the alleged violation, the commissioner may investigate the merits of the claim.

34-14-10. Rules and regulations.

The labor commissioner is authorized to issue such rules and regulations as necessary for the purpose of carrying out the provisions of this chapter.

34-14-11. Reciprocal agreements for collection of wages.

The labor commissioner may enter into reciprocal agreements with the department of labor or corresponding agency of any other state, nation, or country or with the person, board, officer, or commission authorized to act for and on behalf of the department or agency, for the collection in the other state, nation, or country of claims or judgments for wages and other demands based upon claims previously assigned to the department of labor and human rights.

34-14-12. Actions in other states, nations, or countries for collection of claims — Assignments for collection.

The department of labor and human rights may, to the extent provided for by any reciprocal agreement entered into pursuant to section 34-14-11, or by the laws of any other state, nation, or country, maintain actions in the courts of the other state, nation, or country for the collection of such claims for wages, judgments, and other demands and may assign the claims, judgments, and demands to the department of labor or agency of the other state, nation, or country for collection to the extent that the same may be permitted or provided for by the laws of the state, nation, or country or by reciprocal agreement.

34-14-13. Claims assigned by other states, nations, or countries — Actions — Collection.

The department of labor and human rights may, upon the written request of the department of labor or other corresponding agency of any other state, nation, or country or of any person, board, officer, or commission of the state, nation, or country authorized to act for and on behalf of the department of labor or corresponding agency, maintain actions in the courts of this state upon assigned claims for wages, judgments, and demands arising in the other state, nation, or country in the same manner and to the same extent that the actions by the department of labor and human rights are authorized when arising in this state; provided, however, that the actions may be commenced and maintained only in those cases where the other state, nation, or country by appropriate legislation or by reciprocal agreement extends a like comity to cases arising in this state.

34-15-01. Definitions. [Effective through August 31, 2022]

As used in this chapter:

1. “Date of hire” means the date services for remuneration were first performed by the employee.
2. “Department” means the department of human services.
3. “Employee” means an individual who would be determined to be an employee under chapter 24 of the Internal Revenue Code of 1986, as amended [26 U.S.C. 3401 et seq.], but does not include an employee of a federal or state agency performing intelligence or counterintelligence functions, if the head of the agency has determined that reporting under this chapter, with respect to that employee, could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission.
4. “Employee newly hired” means an employee who has not previously been employed by the employer or was previously employed by that employer but has been separated from such prior employment for at least sixty consecutive days.
5. “Employer” means an entity or individual who would be determined to be an employer under section 3401(d) of the Internal Revenue Code of 1986, as amended [26 U.S.C. 3401(d)], and includes any governmental entity and any labor organization.
6. “Labor organization” means an organization treated as a labor organization under section 2(5) of the National Labor Relations Act, as amended [29 U.S.C. 152(5)], and includes any entity, including a “hiring hall”, which is used by the organization and an employer to carry out requirements, described in section 8(f)(3) of the National Labor Relations Act, as amended [29 U.S.C. 158(f)(3)], of an agreement between the organization and the employer.

34-15-01. Definitions. [Effective September 1, 2022]

As used in this chapter:

1. “Date of hire” means the date services for remuneration were first performed by the employee.
2. “Department” means the department of health and human services.
3. “Employee” means an individual who would be determined to be an employee under chapter 24 of the Internal Revenue Code of 1986, as amended [26 U.S.C. 3401 et seq.], but does not include an employee of a federal or state agency performing intelligence or counterintelligence functions, if the head of the agency has determined that reporting under this chapter, with respect to that employee, could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission.
4. “Employee newly hired” means an employee who has not previously been employed by the employer or was previously employed by that employer but has been separated from such prior employment for at least sixty consecutive days.
5. “Employer” means an entity or individual who would be determined to be an employer under section 3401(d) of the Internal Revenue Code of 1986, as amended [26 U.S.C. 3401(d)], and includes any governmental entity and any labor organization.
6. “Labor organization” means an organization treated as a labor organization under section 2(5) of the National Labor Relations Act, as amended [29 U.S.C. 152(5)], and includes any entity, including a “hiring hall”, which is used by the organization and an employer to carry out requirements, described in section 8(f)(3) of the National Labor Relations Act, as amended [29 U.S.C. 158(f)(3)], of an agreement between the organization and the employer.

34-15-02. State directory of new hires — Duties and responsibilities.

There is, within the department, a state directory of new hires. The state directory of new hires shall, in conformance with section 453A of the Social Security Act [42 U.S.C. 653A]:

1. Receive reports made by employers;
2. Enter information into a database maintained by the state directory of new hires;
3. Provide automated comparisons of employer report information and information maintained in the state registry of cases being enforced under the state plan approved under title IV-D of the Social Security Act [42 U.S.C. 651 et seq.] and identify cases matched; and
4. Transmit information received by the state directory of new hires to the national directory of new hires.

34-15-03. Employer reporting.

1. Except as provided in subsections 2 and 3, each employer shall furnish to the directory of new hires a report that contains the name, address, and social security number of each employee newly hired for work within this state, the date of hire, whether the employer offers health insurance to the employee, and the employer’s name and address and the identifying number assigned under section 6109 of the Internal Revenue Code of 1986, as amended [26 U.S.C. 6109], to the employer.
2. An employer who has employees who are employed in two or more states, and who transmits reports magnetically or electronically, may designate one state in which the employer has employees and may transmit a report conforming to subsection 1 to that state. An employer who reports pursuant to this subsection must notify the secretary of the United States department of health and human services, in writing, of the state so designated.
3. Any department, agency, or instrumentality of the United States shall transmit a report, conforming to subsection 1, to the national directory of new hires established pursuant to section 453 of the Social Security Act [42 U.S.C. 653].
4. 1. Except as provided in subdivision b, a report required under this section must be made no later than twenty days after the date the employer hires the employee.
   2. If the employer transmits reports magnetically or electronically, a report required under this section may be made by two monthly transmissions, if necessary, not less than twelve nor more than sixteen days apart.

34-15-04. Reporting format.

1. Each employer report required by this chapter must be made, to the extent practicable, on a W-4 form or an equivalent form prescribed by the state directory of new hires.
2. Except as provided in subsection 3, the report may be transmitted by first-class mail or by any magnetic or electronic means readable by the department, including facsimile transmission, electronic mail, modem transmission, or other means of electronic communication.
3. An employer that employs more than twenty-four employees at any time must report new hires through an electronic method provided by the department. An employer that does not comply with this subsection is deemed to have failed to report new hires under section 34-15-05. The department may waive, upon a showing of good cause, the requirement to report new hires electronically.

34-15-05. Civil money penalties.

1. Except as provided in subsection 3, an employer who, after warning provided under subsection 2, fails to file a timely, complete, and correct report required under this chapter is liable for a civil money penalty of twenty dollars for each failure to report a new hire.
2. The department may issue a written warning to an employer who fails to file a timely, complete, and correct report required under this chapter. The warning must state that a failure to report may result in a civil money penalty.
3. An employer who, by agreement between the employer and employee, fails to file a timely, complete, and correct report required under this chapter or files a false or incomplete report is liable for a civil money penalty of two hundred fifty dollars for each failure to report or each false or incomplete report.

34-15-06. Recovery of civil money penalties.

A civil money penalty assessed under this chapter is payable fifteen days after service on the employer, by first-class mail, of notice of imposition of the civil money penalty. A judgment against an employer for failure to pay a civil money penalty may be enforced as a contempt of court by any court of this state with jurisdiction over the employer.

34-15-07. Disposition of civil money penalties — Continuing appropriation.

A civil money penalty collected under this chapter must be paid into the state treasury for deposit in the child support collection and disbursement fund and is appropriated to the department on a continuing basis for the purpose of covering losses the department incurs in making child support disbursements as provided under section 14-09-25.

34-15-08. Confidentiality.

1. Information derived from employer reports received and maintained by the directory of new hires is confidential but must be made available for use by state agencies, in this state and other states, administering:
   1. State plans under title IV-D of the Social Security Act [42 U.S.C. 651 et seq.];
   2. Programs specified in section 1137(b) of the Social Security Act [42 U.S.C. 1320b-7(b)];
   3. Employment security programs; and
   4. Workforce safety and insurance programs.
2. Information acquired under subsection 1 remains confidential subject to the confidentiality requirements of the plans and programs identified in subsection 1.