2016 North Dakota Century Code Title 34 Labor and Employment Chapter 34-06.1 Equal Pay for Men and Women
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CHAPTER 34-06.1
EQUAL PAY FOR MEN AND WOMEN
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
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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
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5.
court may deem appropriate, including restoration of unpaid wages and reinstatement
of employees, consistent with the purpose of this chapter.
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 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.
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