Executive exemption
North Dakota exempts bona fide executive employees from it overtime requirements. To qualify as an executive employee, an employee must:
- be paid on a salary or fee basis;
- be employed in a bona fide executive capacity, which may include the following primary duties:
- managing the enterprise in which the employee is employed or a customarily recognized department or subdivision thereof;
- directing the work of two or more other employees; and
- having the authority to hire or fire other employees or whose suggestions as to hiring, firing, and other advancements and promotions are given particular weight.
ND Admin. Code 46-02-07-01(6); ND Admin. Code 46-02-07-02(4)(a)
Administrative exemption
North Dakota exempts bona fide administrative employees from its overtime requirements. To qualify as an administrative employee, an employee must:
- be paid on a salary or fee basis;
- be employed in a bona fide administrative capacity, which may include the following primary duties:
- performing office or nonmanual work directly related to management policies or general business operations of the employer or the employer’s customer; and
- customarily and regularly exercising discretion and independent judgment.
ND Admin. Code 46-02-07-01(1); ND Admin. Code 46-02-07-02(4)(a)
Professional exemption
North Dakota exempts bona fide professional employees from its overtime requirements. To qualify as a professional employee, an employee must:
- be paid on a salary or fee basis;
- be employed in a bona fide professional capacity, which may include the following primary duties:
- perform 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;
- perform work requiring the consistent exercise of discretion and judgment in its performance; and
- perform 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.
ND Admin. Code 46-02-07-01(10); ND Admin. Code 46-02-07-02(4)(a)
North Dakota also exempts employees from its overtime requirements who are employed in artistic professions which are original and creative in nature or where the work is dependent upon the invention, imagination, or talent of the employee, such as: editors, columnists, critics, publishers, cartoonists, graphic artists; musicians, composers, conductors, soloists, novelists, writers, and actors. ND Admin. Code 46-02-07-02(4)(k)
North Dakota also exempts employees from its overtime requirements who are teachers, instructors, tutors, or lecturers engaged in teaching in a school or educational system. ND Admin. Code 46-02-07-02(4)(m)
Outside salesman exemption
North Dakota exempts outside salesmen from its overtime requirements. To qualify for the outside salesman exemption, an employee must customarily and regularly work away from the employer’s premises for the purpose of making sales or taking orders. Employees do not qualify for the exemption if their work unrelated to outside sales exceeds 20 percent of their hours worked. ND Admin. Code 46-02-07-02(4)(g)
Computer employee exemption
North Dakota exempts certain computer employees from its overtime exemptions. To qualify for the exemption, an employee must exercise discretion and independent judgment when designing, developing, creating, analyzing, testing, or modifying computer programs or be a computer professional who is paid $27.63 per hour. ND Admin. Code 46-02-07-02(4)(f)
Other minimum wage and overtime exemptions
North Dakota law exempts the following employees from its minimum wage and overtime laws:
- individuals working at nonprofit camps directly youth-related and intended for educational purposes;
- individuals working as guides, cooks, or camp-tenders for a hunting or fishing guide service;
- golf course caddies;
- individuals working in a program for youthful or first-time offenders designed as an alternative to incarceration if the person:
- voluntarily enters into the program for personal benefit;
- does not displace regular employees or infringe on the employment opportunities of others;
- is under the supervision or control of a court; and
- performs the work without contemplation of pay.
- prison or jail inmates who do work for the prison, jail, institution, or other areas directly associated with the incarceration program, where the work is performed for the prison, jail, institution, state, or a political subdivision;
- actors or extras for a motion picture;
- volunteers which include:
- individuals who donate their time and services, usually on a part-time basis, including public service, humanitarian objectives, religious, fraternal, nonprofit, and charitable organizations, not as employees and without contemplation of pay;
- individuals who provide services to hospitals or nursing homes to provide support and assistance to families and patients;
- regular employees of religious, nonprofit, or charitable organizations may volunteer their services for activities outside of their normal work duties;
- residents or patients of shelters, foster care, or other such related establishments may volunteer their services as long as regular employees are not displaced.
- student trainees meeting the following criteria:
- the training is similar to that in a vocational school;
- the training is clearly for the benefit of the trainees;
- the trainee does not displace regular employees;
- the employer derives no immediate benefit;
- the trainee is not entitled to a job; and
- the trainee is not entitled to wages.
- individuals who provide companionship services for individuals who, because of age or disability, are unable to care for themselves to the extent that those companionship services are provided by an employee from 10:00 p.m. to 9:00 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;
- individuals who provide family home care;
- individuals who contract with an elderly or disabled person, or a spouse or relative of an elderly or disabled person to provide room, board, supervisory care, and personal services to that elderly or disabled person;
ND Admin. Code 46-02-07-02(1); ND Statute 34-06-03.1
Overtime only exemptions
North Dakota exempts the following employees from its overtime requirements only. Employers in these situation must comply with any minimum wage requirements:
- employees working in an agricultural occupation;
- employees spending at least 51% of their work time providing direct care to clients of a shelter, foster care, or other such related establishment whose primary responsibilities are to provide temporary shelter, crisis prevention, prevention, education, and fellowship;
- employees employed in domestic service who reside in the household in which employed;
- a straight commission salesperson in retail automobile, trailer, boat, aircraft, truck, or farm implement dealerships unless that salesperson is required to be on the premises for more than forty hours per week;
- mechanics paid on a commission basis off a flat rate schedule;
- employees of retail establishments if the employees’ regular rate of pay exceeds 1.5 times the minimum wage if more than half of the employee’s compensation for a period of not less than one month is derived from commission on goods or services sold;
- employees working for radio or television stations as announcers, news editors, or chief engineers;
- employees exempt from the Fair Labor Standards Act as applied to employees of motor common, contract, and private carriers specified by the Motor Carrier Act;
- highly compensated employees
