Payroll and Benefits Guide United States – North Dakota

Employer

Employer Payroll Contributions

Employee

Employee Payroll Contributions

Employee

Employee Income Tax

General

North Dakota follows the federal minimum wage of 7.25 USD per hour.

Payroll Cycle

Employees are generally paid monthly or semi-monthly.

13th Salary

There are no provisions in the law regarding 13th salaries.

General

The standard workweek consists of a maximum of 40 hours per week or 8 hours per day.

Overtime

North Dakota adheres to the Fair Labour Standards Act (FLSA). Overtime is considered any hours worked in excess of the standard 40-hour workweek. Overtime is paid at the rate of 150% of the regular salary rate. If employees are scheduled to work on weekends or rest days, no additional payment is required.

However, should an employer request an employee to work in exceptional circumstances on these days, then overtime pay of 150% of the regular pay rate is required.

Working Week

Monday-Friday

Paid Time Off

There are no provisions in the law regarding paid time off. However, it is common for employers to decide whether to offer paid or unpaid vacation leave.  This must comply with employment law and must be stipulated in the collective bargaining agreements.

Public Holidays

There are 11 official holidays, however private employers are not required to provide either time off or overtime pay on these days.

Sick Days

Sick leave falls under the Family and Medical Leave Act (FMLA) which provides leave for an employee with a serious health condition that makes them unable to perform the essential functions of their job.

It is common for an employer to follow the FMLA which provides certain employees with up to 12 weeks of unpaid, job-protected leave per year for certain family and medical reasons (maternity leave, serious illnesses, or if the employee needs to care for a spouse or child).

Employees are eligible for FMLA if they have worked for their employer for at least one year, completed a minimum of 1,250 hours over the past year, and worked at a location where the company employs 50 or more employees within 75 miles.

Maternity Leave

Maternity leave falls under the FMLA (see sick leave) which allows a mother:

• Twelve working weeks of leave in any one year for a child’s birth and to care for the newborn child within one year of birth.

In addition to the FMLA, North Dakota has the North Dakota Human Rights Act, which ensures that pregnancy is treated the same way as any other temporary disability and all employee rights are adhered to.

Paternity Leave

Paternity leave falls under the FMLA (see sick leave), which allows fathers:

• Twelve working weeks of leave in any one year for a child’s birth and to care for the newborn child within one year of birth.

Parental Leave

Parental leave falls under the FMLA (see sick leave), which allows for:

• Leave for the adoption or foster care of a child and care for the newly placed child within one year of placement.
• Any qualifying necessity arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

Other Leave

Leave for the care of an employee’s spouse, child, or parent who has a severe health condition falls under the FMLA (see sick leave).

Alternatively, an employee may take 26 working weeks of leave during a single one-year period to care for a covered servicemember with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Other leave under North Dakota law includes:

• Job-protected, unpaid leave for jury duty, as a witness in a case, responding to a subpoena, or acting as a plaintiff or defendant in the courts. Employees must provide a copy of the jury summons to the employer as evidence of requirement.
• In addition to the federal law USERRA, North Dakota law provides protection against discrimination for members of U.S. armed forces, reserves, National Guard, commissioned corps of the public health service, and any other category of persons designated by the president in a time of war or emergency.

Termination Process

Except in mass dismissals or as provided for in an employment contract or a collective bargaining agreement, U.S. law does not impose a formal notice period to terminate an individual employment relationship, and employment is stipulated “at will.”

This means that either the employer or the employee may end the employment relationship without giving either notice or reason, provided it is not illegal, notable discrimination on the grounds of a category protected by law, etc., and as per the Federal Worker Adjustment and Retraining Notification Act (WARN).

The employment contracts of executives and other highly skilled individuals often incorporate a “just cause termination” clause which mandates that the employer may only terminate the employee for “cause” and lists the permissible grounds. In such cases, the parties negotiate the foundations for a “just cause” termination.

Notice Period

In Texas, most employees are employed at will, and either party can terminate the employment relationship without notice. In Texas, payout of unused vacation time is not required by law. Still, employers will generally pay an employee for unused vacation days, provided the employee gave some advanced notice of resignation.  There is no official notice period. Still, in general practice, two weeks’ notice is a minimum requirement.

In mass dismissal cases the Worker Adjustment and Retraining Notification Act (WARN Act) must be followed, and employers must give 60 days’ notice to impacted employees.

Severance Pay

Except as otherwise provided in an employment contract or collective bargaining agreement, employers are not required to make severance payments to terminated employees. Employers who choose to offer severance would need to have the provisions within the employee’s contract and agreed by both parties. Many employers choose to offer severance pay based on the employee’s length of employment.

Probation Period

No legal provision governs a formal trial or probation period. However, it is common practice for employers to set a performance evaluation after an initially stated period of employment of 90 days.

VISA

Foreign nationals without permanent resident status or a work visa are not permitted to work in the United States. An employer seeking to hire a foreign national may file a petition with the United States Department of Homeland Security or the United States Citizenship and Immigration Services (USCIS) for an employment visa on behalf of the prospective employee.

If the petition is approved, the prospective employee must obtain a visa stamp from a United States embassy or consulate (Canadian citizens are exempt from this requirement).  To get a temporary U.S. work visa, an employer must file a petition with U.S. Citizenship and Immigration Services (USCIS). An approved petition must be part of the visa request.

The types of visas include:

• H-1B: For applicants with a college degree hired to do specialized work. The visa is valid for three years and can be extended for an additional three years. The visa is connected to the employer that filed the petition. If there is a change of employer, the new employer must repeat the process. There are 65,000 H-1B visas available each year.
• H-1B1: For applicants with a college degree from Chile and Singapore. The US government grants up to 1,400 visas to Chilean citizens and 5,400 from Singapore each year.
• H-2A:  For temporary or seasonal agriculture work. It is limited to citizens of qualified countries. Usually valid for up to 1 year and can be extended to a maximum of 3 years.
• H-2B: For temporary non-agricultural work. These visas are limited to citizens of qualified countries. Usually valid for up to 1 year and can be extended to a maximum of 3 years.
• L: For intercompany transfers (people transferred from a foreign company to a US branch of the company). The applicant must have been employed at the company for a year before the transfer and work in a managerial level position or higher with specialized knowledge.
• O: For people with extraordinary abilities in science, arts, education, business, or athletics.

The standard procedure is to obtain a short-term work visa and then apply for an immigrant visa after the employee has started working in the United States.

For those seeking employment-based immigrant visas:

• E-1: Highest priority employment for those with extraordinary ability in science, arts, education, business, and athletics
• E-2: For those with advanced degrees or exceptional ability
• E-3: For skilled workers and professionals, as well as unskilled workers
• E-4: Members of certain immigrant groups
• E-5: Immigrant investors in US companies (substantial investment)

Alternatively, an employer may sponsor a potential employee’s application for permanent resident status, referred to as a “green card” if the employee can establish that the potential employee is a multinational executive or manager transferee, has unique skills, or has been offered a job in the United States. The employer must have been unable to recruit a U.S. worker who meets the position’s minimum requirements.

All employers are obligated to verify that all individuals they employ are authorized to work in the United States.

General

North Dakota has a minimum combined sales tax rate of 6.85% (state tax is 5.00% and local tax average 1.85%).