N.D. Admin. Code 46-02-07-01
As used in this title:
1. "Administrative" means an employee paid on a salary or fee basis and employed in a bona fide administrative capacity, but is not exclusive to any employee whose primary duty consists of:
a. The performance of office or nonmanual work directly related to management policies or general business operations of the employer or the employer's customer; and
b. Who customarily and regularly exercises discretion and independent judgment.
2. "Agricultural employment" means employment on a farm, for a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to carriers for transportation to market.
3. "Casual employment" means employment that is irregular or intermittent.
4. "Domestic service employment" means services of a household nature performed by an employee in or about a private home (permanent or temporary) of the person by whom the employee is employed.
5. "Engaged to wait" means when employees are required to remain on call on the employer's premises or so close thereto that they cannot use the time effectively for their own purposes and thus are considered to be working.
6. "Executive" means an employee paid on a salary or fee basis and employed in a bona fide executive capacity, but is not exclusive to any employee whose primary duty consists of:
a. The management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
b. Directing the work of two or more other employees therein; and
c. The authority to hire or fire other employees or whose suggestions as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight.
7. "Highly compensated employee" means an employee who is paid total annualized compensation of one hundred thousand dollars or more, which includes at least four hundred fifty-five dollars per week paid on a salary or fee basis. The employee's primary duty includes performing office or nonmanual work.
8. "Nonprofit" means a nonprofit corporation organized under the laws of this or another state.
9. "Occasional and sporadic" means infrequent, irregular, or occurring in scattered instances.
10. "Professional" means an employee paid on a salary or fee basis and employed in a bona fide professional capacity, but is not exclusive to any employee whose primary duty consists of:
a. Work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes.
b. Work requiring the consistent exercise of discretion and judgment in its performance; and
c. Work that is predominately intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.
11. "Residential care establishment" means an institution primarily engaged in the care of the sick, the aged, or the mentally ill residing on the premises requiring general treatment or observation of a less critical nature than provided by a hospital. Such institutions may include nursing homes, rest homes, convalescent homes, homes for the elderly and infirm, and the like.
12. "Retail establishment" means an establishment in which seventy-five percent or more of the annual gross sales are sold to the final consumer and are not sold for resale, and is recognized as retail sales or services in the industry.
13. "Salary or fee basis" will be interpreted according to the Federal Fair Labor Standards Act.
14. "Service employee" means any employee who is providing direct service to the customer and to whom that customer shows appreciation for that service by tipping that employee for the direct service. The employee must regularly and customarily provide personal face-to-face service to individual customers, which the customer would recognize as being performed for his or her benefit. Services such as cooking and dishwashing are not included.
15. "Service industry" means an industry in which the principal activity is to provide goods and services directly to the consuming public.
16. "Taxicab driver" means an individual employed as a driver by a taxicab company; where the service is a computer or radio dispatched door-to-door service but not a motorcoach or a routed system.
17. "Tip credit" means the amount or percentage by which an employer is allowed to reduce the minimum wage for a tipped employee.
18. "Tip pooling" means when two or more tipped employees agree to pool their tips and split them as agreed upon.
19. "Tipped employee" means any service employee in an occupation in which the employee customarily and regularly receives more than thirty dollars a month in tips.
20. "Total annualized compensation" means commissions, nondiscretionary bonuses, and other nondiscretionary compensation earned on a basis of a fifty-two-week period, but does not include board, lodging, or other employer-provided facilities, payments for medical insurance or life insurance, or contributions to a retirement plan or other fringe benefits.
21. "Waiting to be engaged" means when employees are on call and not required to remain on the employer's premises, but are required to respond to a beeper or leave word at home or the employer's business where they may be reached. Employees are not considered to be working while in this status.
22. "Week" means any consecutive seven-day period established by the employer.
N.D. Admin Code 46-02-07-01
General Authority: NDCC 28-32-02(1), 34-06-04
Law Implemented: NDCC 34-06-03, 34-06-09, 34-06-11, 34-06-12