Employment Law in North Dakota Text Size:

Pre-employment/Promotion

Hiring

Under federal law, an employer doesn't have to hire, or promote, the most qualified applicant. But the employer cannot base decisions on personal characteristics that are not job-related. These characteristics often include:

• Age
• Race
• Sex
• Religion
• National origin
• Disability

An interviewer isn't allowed to ask questions relating to these characteristics. Interview questions that aren't allowed include:

• Are you married? Are you planning to get married?
• Do you have children? Are you planning to have children?
• Where were you born?
• What's your sexual orientation?
• Have you ever been arrested?

An interviewer can, however, ask about a personal characteristic if it could hinder your ability to fulfill the job's requirements. Some examples might be:

• Have you ever been convicted of a crime?
• Can you prove that you are eligible to work in the US?
• Can you do this job with, or without, reasonable accommodations?

References

A previous employer is free to provide any non-confidential information about a previous employee, as long as it's true and isn't provided to maliciously harm the employee. An employer, who provides false information that disparages the employee, may be liable for defamation. In order to avoid potential liability, many employers often refuse to comment on a past employee's job performance and confirm only dates of hire and separation, plus wage or salary information.

Employment

At Will

In the majority of states, employees not working under an employment contract are deemed to be "at will." At-will employees may be terminated for any reason, so long as it's not illegal. There are numerous illegal reasons for termination. Typically such reasons fall into one of two large categories: illegal discrimination or illegal termination in violation of a public policy. Generally, employees who work under an employment contract can only be terminated for reasons specified in the contract.

North Dakota is an employment "at will" state. Employment that has no specified term may be terminated at the will of either the employer or the employee on notice to the other unless prohibited by law.

Employee Handbooks

While an employer is not required by law to have an employee handbook, in most cases, it is recommended. An employee handbook provides a centralized, complete and certain record of the employer's policies and procedures. An employee handbook also provides more convenient access by employees and managers.

At a minimum, an employee handbook should include:

• A statement regarding the at-will employment relationship
• An equal employment opportunity statement
• A policy regarding sexual and other types of harassment in the workplace
• Internet access, e-mail, and voice mail policies
• The Family Medical Leave Act

In North Dakota, there is a presumption of at-will employment. Clear and conspicuous provisions in an employee handbook, which state that the handbook does not create a contract between the employer and its employees, may preserve the presumption of employment at will and not bind the employer to follow policies and procedures set forth in its employee handbook.

Workplace Safety

Federal and state laws require that most employers furnish a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. In most instances, an employee may anonymously complain about an unsafe work environment and be protected against employer reprisals.

North Dakota's Occupational Safety & Health Consultation Program has professional consultants that help businesses eliminate hazards. Employers can request a consultation. Consultants do not issue citations for violations of federal or state OSHA standards. Consultants help employers recognize hazards in the workplace, suggest options for correcting them and identify additional resources for assistance.

Workplace Injury

Workers' compensation laws are designed to compensate employees who have been injured or killed in work related accidents according to a fixed monetary scheme, without having to resort to litigation. Dependents of a fatally injured employee may also be entitled to benefits. Employers may be protected by limits placed on the amount of an employee's recovery.

Employers are required to provide workers' compensation insurance for their employees. Full medical benefits are provided to employees who are entitled to workers' compensation benefits, with no time or monetary limits. You may receive the following disability benefits:

• Temporary total disability (TTD) payments are paid if your disability is total but only temporary and you are not able to work for five or more days in a row
• Temporary partial disability (TPD) payments are paid if your wages are reduced due to a physical limitation related to your injury
• Permanent total disability (PTD) payments are paid if you are totally disabled and unable to return to any kind of work
• Permanent partial impairment (PPI) payments are paid if you suffer permanent physical loss of a body part or function due to a work-related injury

In addition, death benefits are payable to your spouse and children. Payments are based upon a percentage of your wages, but a minimum amount is paid regardless of your earnings.

Sexual Harassment

An employer may be liable to an employee for instances of "sexual harassment," which can include unwelcome sexual advances, conduct or other physical or verbal acts of a sexual nature, which occur in the workplace. The following conduct is generally considered sexual harassment:

• Direct sexual conduct - an employer makes sexual advances or statements
• "Quid pro quo" - job-related benefits are offered in exchange for sexual conduct
• Hostile work environment - an employer maintains an overly sexual work environment

Discrimination and Wrongful Termination

Employers are not allowed to terminate or discriminate against employees for the following reasons:

• Age
• Race
• Sex
• Religion
• National origin
• Disability
• Pregnancy

It's illegal for an employer to consider these characteristics with regard to:

• Promotions
• Job assignments
• Termination
• Wages

And it's illegal for an employer to terminate an employee:

• For refusing to break a law
• In retaliation for filing a discrimination or safety claim
• For taking leave under the Family and Medical Leave Act
• Without following its own stated procedure or policy
• For reasons not contained in the employment contract, if one exists

Family and Medical Leave

The Family Medical Leave Act (FMLA) provides 12 weeks of unpaid leave to qualifying employees who need time off from work to care for their own or an immediate family member's serious health condition. This allows for continued medical benefits and restoration of their original position upon return. An employee is eligible when they:

• Have worked for the same employer for the previous 12 months
• Have worked at least 1,250 hours in the previous 12 months
• Are employed by a "covered" employer, which is:
  • All federal, state, and local governments and agencies
  • Private employers with 50 or more employees for 20 weeks in the calendar year and engaged in interstate commerce

An injury or illness qualifies as a "serious health condition" if it either requires an overnight stay in a medical facility or constitutes "continuing treatment" by a health-care provider. Continuing treatment requires either the employee's incapacity for more than three calendar days and at least two subsequent treatments, or treatment by a health-care provider that results in continuing supervised treatment.

Post-employment

Unemployment Benefits

Unemployment benefits are based on combinations of federal and state statutes. Unemployment compensation programs are administered by the state and normally provide temporary monetary compensation to workers who have been terminated without cause, through no fault of their own. Employees who voluntarily terminate their employment for "good cause" may also be entitled to benefits.

Unemployment Insurance benefits replace part of the income that you lose when you become unemployed. Unemployment benefits cover most people who have worked in North Dakota for private employers or state and local governments. To qualify for unemployment you must meet the following requirements at the time of filing:

• Be unemployed at the time of filing or working less than fulltime and earning wages less than your weekly benefit amount
• Have a minimum of $2,795 in covered wages from the highest two and one-half quarters of your base period, which is a 12 month period consisting of the first four of the last five completed calendar quarters preceding the date that you filed your claim
• Have total base period wages that are one and one-half times your highest quarter's wages

To continue to be eligible for unemployment benefits you must be:

• Able to work
• Available to work
• Actively seeking employment for which you are qualified

Your weekly amount will be the total of your highest two and one-half quarters of your base period earnings divided by 65. There is a maximum and minimum benefit amount that is determined by North Dakota law and is subject to change every July. Unemployment benefits are taxable income for both federal and state income tax purposes. You may not receive both unemployment insurance and workers' compensation for the same week.

COBRA

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), which is a federal law, employees may be allowed to continue their health insurance benefits, at the employee's expense, for up to 18 months after either voluntary or involuntary termination, if the employer has 20 or more employees.

To qualify for COBRA continuation coverage, an employee must have a qualifying event that causes the employee to lose group health coverage. The following are qualifying events:

For employees
• Voluntary or involuntary termination of employment for reasons other than gross misconduct
• Reduction in numbers of hours worked
For spouses
• Loss of coverage by the employee because of one of the qualifying events listed above
• Covered employee becomes eligible for Medicare
• Divorce or legal separation of the covered employee
• Death of the covered employee
For dependent children
• Loss of coverage because of any of the qualifying events listed for spouses
• Loss of status as a dependent child under the plan rules

Kansas has enacted "mini" COBRA laws similar to the federal COBRA law. Kansas law requires employers with 2-19 employees to offer COBRA for six months.

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