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Employee Discipline: North Dakota

Employee Discipline requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: Joel Fremstad and Lynn Block, Fremstad Law

Summary

  • In North Dakota, there is a presumption that employment is at-will. See Employment At-Will.
  • North Dakota law restricts an employer's ability to take an adverse employment action against an employee on the basis of criteria such as race, sex, age, disability and other protected categories. See Employees in Protected Classes.
  • North Dakota statutory restrictions limit an employer's ability to take any adverse employment action against an employee for opposing any unlawful discriminatory practice or who, in good faith, has filed a complaint, testified, assisted or participated in an investigation, proceeding, hearing or litigation under several laws. See Employees Who Have Engaged in Protected Activities.
  • North Dakota employers should exercise caution when disciplining employees based on absences taken as a result of protected leaves. See Enforcement of Attendance Policies.
  • North Dakota employers may not discriminate against or discipline employees for their participation, or their refusal to participate, in labor activities. See Employee Blacklisting.
  • In North Dakota, employers may not prohibit employees, customers or other persons lawfully visiting the business premises from possessing a firearm, if the firearm is legally possessed and locked inside a motor vehicle. See Possession of Firearms in the Workplace.
  • North Dakota employers should ensure that an effective employee drug and alcohol testing policy is in place. See Employee Drug Testing.
  • North Dakota may not discipline or otherwise discriminate employees for off-duty, legal behavior that is not in direct conflict with the employer's business interests. See Off-Duty Conduct.
  • North Dakota prohibits smoking cigarettes, including e-cigarettes, under certain circumstances. See E-Cigarettes and Tobacco Use.
  • With respect to recording, monitoring or intercepting employment communications, such as disciplinary meetings, North Dakota is a one-party consent state. See Recording Disciplinary Meetings.
  • Bismarck has requirements pertaining to employee discipline. See Local Requirements.

Employment At-Will

In North Dakota, there is a presumption that employment is at-will. At-will employment means that either the employer or the employee can terminate the employment relationship at any time, for any lawful reason, with or without prior notice. +N.D. Cent. Code § 34-03-01.

Exceptions to Employment At-Will

An employer cannot terminate the employment relationship for a reason that is prohibited by law. Likewise, an employer cannot take any adverse employment action for a reason that is prohibited by law.

Employees in Protected Classes

North Dakota law restricts an employer's ability to take an adverse employment action against an employee on the basis of certain protected categories. +N.D.C.C. § 14-02.4-01; see EEO - Discrimination: North Dakota.

North Dakota law protects the following classifications:

  • Race;
  • Color;
  • National origin;
  • Sex, including pregnancy;
  • Religion;
  • Age, ages 40 and over;
  • Marital status;
  • Disability; and
  • Receipt of public assistance.

Independent contractors are not covered by this law. Birchem v. Knights of Columbus, +116 F.3d 310, 312 (8th Cir. 1997).

Employees Who Have Engaged in Protected Activities

Other North Dakota statutory restrictions limit an employer's ability to take an adverse employment action against an employee for opposing any unlawful discriminatory practice or who, in good faith, has filed a complaint, testified, assisted or participated in an investigation, proceeding, hearing or litigation under the following laws:

North Dakota Whistleblower Law

Under North Dakota's Whistleblower Law, employees who report, in good faith, violations or suspected violations of laws or regulations to their employer, a governmental agency or law enforcement are protected from retaliation. Employees who participate in an investigation, inquiry or proceeding or who refuse an employer's order to perform an action that the employee believes is illegal are also protected. Retaliation includes threatened discrimination, discipline or termination.

Within 180 days of the retaliatory action, employees may bring a civil claim for the following relief:

  • Injunction;
  • Actual damages;
  • Reinstatement of employment;
  • Backpay;
  • Reinstatement of fringe benefits;
  • Attorney fees; and
  • Costs.

Independent contractors are not covered by this law. Birchem v. Knights of Columbus, +116 F.3d 310, 312 (8th Cir. 1997).

Enforcement of Attendance Policies

North Dakota employers should exercise caution when disciplining employees based on absences taken as a result of protected leaves. North Dakota law protects the following leaves:

See Jury Duty: North Dakota and Other Leaves: North Dakota.

Employee Blacklisting

North Dakota employers may not discriminate against or discipline employees for their participation, or refusal to participate, in labor activities. +N.D. Cent. Code § 34-12-03; see Unfair Labor Practices: Federal.

Possession of Firearms in the Workplace

In North Dakota, employers may not prohibit employees, customers or other persons lawfully visiting the business premises from possessing a firearm, if the firearm is legally possessed and locked inside a motor vehicle. +N.D. Cent. Code § 62.1-02-13.

Employers are also prohibited from making inquiries or conducting searches in order to determine the presence of a firearm in a locked vehicle.

Employers who are exempted from this provision include:

  • Educational institutions;
  • Correctional facilities;
  • Employers involved in national defense or homeland security; or
  • Employers whose primary business relates to combustible materials.

Employers may prohibit employees from possessing firearms in vehicles that are owned, leased or rented by the employers.

Employee Drug Testing

North Dakota employers should ensure that an effective employee drug and alcohol testing policy is in place.

In the case of workplace injuries, an employer who has a mandatory drug alcohol testing policy for work accidents, or who has reasonable suspicions that an employee's work injury was as a result of intoxication due to drug or alcohol use, may request that an employee undergo drug testing. If the employee refuses to undergo testing, he or she forfeits any workers' compensation benefits. +N.D. Cent. Code § 65-01-11; See Workers' Compensation: North Dakota.

Off-Duty Conduct

North Dakota may not discipline or otherwise discriminate employees for off-duty, legal behavior that is not in direct conflict with the employer's business interests. +N.D. Cent. Code § 14-02.4-03.

In addition, North Dakota employers may not discipline public employees for their lawful off-duty behavior regarding political activities. +N.D. Cent. Code § 44-08-19.

E-Cigarettes and Tobacco Use

North Dakota's smoke-free law prohibits the use of electronic cigarettes in all places where smoking is not allowed under the law. +N.D. Cent. Code § 23-12-09. Therefore, a North Dakota employer may discipline employees accordingly.

Bismarck has additional requirements related to e-cigarette usage. See Local Requirements.

Marijuana

Federal law continues to prohibit use of marijuana. Marijuana, or cannabis, is scheduled as a Schedule I controlled substance, which means that it has no acceptable medical use. Therefore, an employer:

  • Does not have to accommodate marijuana use, including ingestion, possession or intoxication, in the workplace; and
  • May take adverse action, including discipline up to and including termination, against an employee who is under the influence of marijuana at work.

North Dakota law permits the use of marijuana for medical purposes. However, an employer need not permit or accommodate marijuana use or ingestion in the workplace, or an employee working while under the influence of marijuana.

An employer should continue to follow applicable drug testing and drug-free policies and document any facts that would show impairment while at work, such as those relating to dexterity or appearance.

Recording Disciplinary Meetings

With respect to recording, monitoring or intercepting employment communications, such as disciplinary meetings, North Dakota is a one-party consent state. This means that an employer wishing to record an employee conversation must obtain the prior consent of one of the parties to the communication, and that the interception is not for the purpose of committing a crime or other illegal act. +N.D. Cent. Code § 12.1-15-02.

Employers should use caution when intercepting employee mail. It is a crime (specifically, a class A misdemeanor) to intercept written private correspondence without the consent of the sender or the receiver. The law may apply not only to sealed correspondence but also to undelivered electronic correspondence, thereby prohibiting an employer from accessing employee email without authorization. +N.D. Cent. Code § 12.1-15-05.

Local Requirements

Bismarck E-Cigarette and Tobacco Use

The City of Bismarck prohibits smoking in all enclosed areas in public places and places of employment. Smoking is defined to include the use of e-cigarettes. Bismarck, North Dakota, Code of Ordinances Sections 5-12-02, 5-12-03.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.

Additional Resources

Employee Communications: North Dakota

EEO - Retaliation: North Dakota

Terms of Employment: North Dakota