ARTICLE 1. Department of Labor.

Sec.

§ 95-1. Department of Labor established.

A Department of Labor is hereby created and established. The duties of said Department shall be exercised and discharged under the supervision and direction of a commissioner, to be known as the Commissioner of Labor.

History

(Rev., s. 3909; 1919, c. 314, s. 4; C.S., s. 7309; 1931, c. 312, s. 1.)

Legal Periodicals. - For comment on the 1931 act, see 9 N.C.L. Rev. 413 (1931).

CASE NOTES

Unfair or Deceptive Trade Practices. - Although this Chapter is regulatory in nature, this fact does not prevent the finding of an unfair or deceptive trade practice (see Chapter 75) based on the conduct proscribed by this Chapter. Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 331 S.E.2d 677 (1985).

Cited in Commissioner of Labor v. Dillard's, Inc., 83 F. Supp. 2d 622 (M.D.N.C. 2000).

§ 95-2. Election of Commissioner; term; salary; vacancy.

The Commissioner of Labor shall be elected by the people in the same manner as is provided for the election of the Secretary of State. The term of office of the Commissioner of Labor shall be four years, and the salary of the Commissioner of Labor shall be set by the General Assembly in the Current Operations Appropriations Act. Any vacancy in the office shall be filled by the Governor, until the next general election. The office of the Department of Labor shall be kept in the City of Raleigh and shall be provided for as are other public offices of the State. In addition to the salary set by the General Assembly in the Current Operations Appropriations Act, longevity pay shall be paid on the same basis as is provided to employees of the State who are subject to the North Carolina Human Resources Act.

History

(Rev., ss. 3909, 3910; 1919, c. 314, s. 4; C.S., s. 7310; 1931, c. 312, s. 2; 1933, c. 282, s. 5; 1935, c. 293; 1937, c. 415; 1939, c. 349; 1943, c. 499, s. 2; 1947, c. 1041; 1949, c. 1278; 1953, c. 1, s. 2; 1957, c. 1; 1963, c. 1178, s. 5; 1967, c. 1130; c. 1237, s. 5; 1969, c. 1214, s. 5; 1971, c. 912, s. 5; 1973, c. 778, s. 5; 1975, 2nd Sess., c. 983, s. 20; 1977, c. 802, s. 42.11; 1983, c. 761, s. 207; 1983 (Reg. Sess., 1984), c. 1034, s. 164; 1987, c. 738, s. 32(b); 2013-382, s. 9.1(c).)

Editor's Note. - Session Laws 2013-382, s. 9.1(b), provides: "The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

"(1) The State Personnel Commission is renamed the 'North Carolina Human Resources Commission.'

"(2) The Office of State Personnel is renamed the 'North Carolina Office of State Human Resources.'

"(3) The State Personnel Director is renamed the 'Director of the North Carolina Office of State Human Resources.'"

Session Laws 2013-382, s. 9.1.(c), provides in part: "Modification of References. - The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary."

Session Laws 2013-382, s. 9.2, provides: "No action or proceeding pending on the effective date of this section, brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies." Session Laws 2013-382, s. 9.2, was effective August 21, 2013.

Session Laws 2013-382, s. 9.3, provides: "Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office." Session Laws 2013-382, s. 9.3, was effective August 21, 2013.

Effect of Amendments. - Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted "North Carolina Human Resources Act" for "State Personnel Act" in the last sentence.

CASE NOTES

Cited in Commissioner of Labor v. Dillard's, Inc., 83 F. Supp. 2d 622 (M.D.N.C. 2000).

§ 95-3. Divisions of Department; Commissioner; administrative officers.

The Department of Labor shall consist of the following officers, divisions and sections:

A Commissioner of Labor.

A Division of Standards and Inspections.

A Division of Occupational Safety and Health.

Each division shall be in the charge of a chief administrative officer and shall be organized under such rules and regulations as the Commissioner of Labor and the head of the division concerned shall prescribe and promulgate. The Commissioner of Labor may make provision for one person to act as chief administrative officer of two or more divisions, when such is deemed advisable. The chief administrative officers of the several divisions shall be appointed by the Commissioner of Labor. The Commissioner of Labor may combine or consolidate the activities of two or more of the divisions of the Department, or provide for the setting up of other divisions when such action shall be deemed advisable for the more efficient and economical administration of the work and duties of the Department.

History

(1931, c. 277; c. 312, s. 4; 1933, c. 46; 1963, c. 313, s. 2; 2015-221, s. 1.1.)

Editor's Note. - The State Employment Standards Division within the North Carolina Department of Labor was renamed the Wage and Hour Division by G.S. 95-25.17.

Effect of Amendments. - Session Laws 2015-221, s. 1.1, effective August 18, 2015, substituted "A Division of Occupation Safety and Health" for "A Division of Statistics" in the first paragraph; and in the second paragraph, deleted "with the approval of the Governor" following "the division concerned" in the first sentence and following "Commissioner of Labor" throughout.

§ 95-4. Authority, powers and duties of Commissioner.

The Commissioner of Labor shall be the executive and administrative head of the Department of Labor. In addition to the other powers and duties conferred upon the Commissioner of Labor by this Article, the said Commissioner shall have authority and be charged with the duty:

  1. To appoint and assign to duty such clerks, stenographers, and other employees in the various divisions of the Department, as may be necessary to perform the work of the Department, and fix their compensation, subject to the approval of the Department of Administration. The Commissioner of Labor may assign or transfer stenographers, or clerks, from one division to another, or inspectors from one division to another, or combine the clerical force of two or more divisions, or require from one division assistance in the work of another division, as he may consider necessary and advisable: Provided, however, the provisions of this subdivision shall not apply to the Industrial Commission, or the Division of Workers' Compensation.
  2. To make such rules and regulations with reference to the work of the Department and of the several divisions thereof as shall be necessary to properly carry out the duties imposed upon the said Commissioner and the work of the Department.
  3. To take and preserve testimony, examine witnesses, administer oaths, and under proper restriction enter any public institution of the State, any factory, store, workshop, laundry, public eating house or mine, and interrogate any person employed therein or connected therewith, or the proper officer of a corporation, or file a written or printed list of interrogatories and require full and complete answers to the same, to be returned under oath within 30 days of the receipt of said list of questions.
  4. To secure the enforcement of all laws relating to the inspection of factories, mercantile establishments, mills, workshops, public eating places, and commercial institutions in the State. To aid him in the work, he shall have power to appoint factory inspectors and other assistants. The duties of such inspectors and other assistants shall be prescribed by the Commissioner of Labor.
  5. To visit and inspect, personally or through his assistants and factory inspectors, at reasonable hours, as often as practicable, the factories, mercantile establishments, mills, workshops, public eating places, and commercial institutions in the State, where goods, wares, or merchandise are manufactured, purchased, or sold, at wholesale or retail.
  6. To enforce the provisions of this section and to prosecute all violations of laws relating to the inspection of factories, mercantile establishments, mills, workshops, public eating houses, and commercial institutions in this State before any court of competent jurisdiction. It shall be the duty of the district attorney of the proper district upon the request of the Commissioner of Labor, or any of his assistants or deputies, to prosecute any violation of a law, which it is made the duty of the said Commissioner of Labor to enforce.

History

(1925, c. 288; 1931, c. 277; c. 312, ss. 5, 6; 1933, cc. 46, 244; 1945, c. 723, s. 2; 1957, c. 269, s. 1; 1973, c. 47, s. 2; c. 108, s. 41; 1991, c. 636, s. 3; 2015-221, s. 1.2.)

Editor's Note. - Session Laws 2009-79, s. 3, provides: "The Commissioner of Labor shall adopt rules pursuant to Article 14A of Chapter 95 of the General Statutes (Elevator Act of North Carolina) to require, in any building or structure having more than one elevator, the posting of a distinct number in plain view in the passenger cabin of each elevator for the purpose of identification of the elevator to facilitate extrication from any elevator that malfunctions while occupied."

Effect of Amendments. - Session Laws 2015-221, s. 1.2, effective August 18, 2015, deleted "with approval of said director of division" following "in the various divisions of the Department" near the middle of the first sentence of subdivision (1); and deleted "such rules and regulations to be made subject to the approval of the Governor" at the end of subdivision (2).

CASE NOTES

The public duty doctrine, by barring negligence actions against a governmental entity absent a "special relationship" or a "special duty" to a particular individual applies to claims brought under the Tort Claims Act. Stone v. North Carolina Dep't of Labor, 347 N.C. 473, 495 S.E.2d 711 (1998).

Duty for the Benefit of Public. - Although this section imposes a duty upon defendant (N.C. Dept. of Labor), that duty is for the benefit of the public, not individual claimants. Stone v. North Carolina Dep't of Labor, 347 N.C. 473, 495 S.E.2d 711 (1998).

Cited in Commissioner of Labor v. Dillard's, Inc., 83 F. Supp. 2d 622 (M.D.N.C. 2000); Multiple Claimants v. N.C. HHS, Div. of Facility Servs., 361 N.C. 372, 646 S.E.2d 356 (2007).


§ 95-5: Repealed by Session Laws 2015-221, s. 2.1, effective August 18, 2015.

History

(1931, c. 312, s. 7; repealed by 2015-221, s. 2.1, effective August 18, 2015.)

Editor's Note. - Former G.S. 95-5 pertained to the annual report to Governor; recommendation as to legislation needed.

§ 95-6: Repealed by Session Laws 2015-221, s. 2.2, effective August 18, 2015.

History

(1931, c. 312, s. 8; repealed by 2015-221, s. 2.2, effective August 18, 2015.)

Editor's Note. - Former G.S. 95-6 pertained to the statistical report to Governor; publication of information given by employers.

§ 95-7. Power of Commissioner to compel the giving of information; refusal as contempt.

The Commissioner of Labor, or his authorized representative, shall have power to examine witnesses on oath, to compel the attendance of witnesses and the giving of such testimony and production of such papers as shall be necessary to enable him to gain the necessary information. Upon the refusal of any witness to comply with the requirements of the Commissioner of Labor or his representative in this respect, it shall be the duty of any judge of the superior court, upon the application of the Commissioner of Labor, or his representative, to order the witness to show cause why he should not comply with the requirements of the said Commissioner, or his representative, if in the discretion of the judge such requirement is reasonable and proper. Refusal to comply with the order of the judge of the superior court shall be dealt with as for contempt of court.

History

(1931, c. 312, s. 9; 2015-221, s. 2.3.)

Effect of Amendments. - Session Laws 2015-221, s. 2.3, effective August 18, 2015, deleted "such" preceding "information" in the section heading; and deleted "for the purpose of securing the statistical details referred to in G.S. 95-6" following "or his authorized representative" in the first sentence.

§ 95-8. Employers required to make statistical report to Commissioner; refusal as contempt.

It shall be the duty of every owner, operator, or manager of every factory, workshop, mill, mine, or other establishment, where labor is employed, to make to the Department, upon blanks furnished by said Department, such reports and returns as the said Department may require, for the purpose of compiling such labor statistics as are authorized by this Article, and the owner or business manager shall make such reports and returns within the time prescribed therefor by said Commissioner, and shall certify to the correctness of the same. Upon the refusal of any person, firm, or corporation to comply with the provisions of this section, it shall be the duty of any judge of the superior court, upon application by the Commissioner or by any representative of the Department authorized by him, to order the person, firm, or corporation to show cause why he or it should not comply with the provisions of this section. Refusal to comply with the order of the judge of the superior court shall be dealt with as for contempt of court.

History

(1931, c. 312, s. 10.)

§ 95-9. Employers to post notice of laws.

It shall be the duty of every employer to keep posted in a conspicuous place in every room where five or more persons are employed a printed notice stating the provisions of the law relative to the employment of adult persons and children and the regulation of hours and working conditions. The Commissioner of Labor shall furnish the printed form of such notice upon request.

History

(1933, c. 244, s. 6.)

§ 95-9.1. Notice of employer's rights during farm inspections.

The Department of Labor shall, in consultation with farm organizations and the Department of Agriculture and Consumer Services, prepare a notice to be delivered to the employer, at the beginning of an inspection of any premises engaged in agricultural employment in this State. The notice shall advise the employer of any rights or recourse to which the employer and employees are entitled under State or federal law in connection with any inspection of the employer's premises or operation conducted by the Department of Labor. The Department shall deliver the notice to the employer at the beginning of an inspection of premises used for agricultural employment. For purposes of this section, the term "agricultural employment" shall have the same meaning as defined in G.S. 95-223(1).

History

(2012-187, s. 10.1(b).)

Editor's Note. - Session Laws 2012-187, s. 10.1(c), made this section effective August 1, 2012, and applicable to all inspections of premises engaged in agricultural employment conducted by the Department of Labor on or after that date.

§ 95-10: Repealed by Session Laws 1963, c. 313, s. 1.

§ 95-11: Repealed by Session Laws 2015-221, s. 2.4, effective August 18, 2015.

History

(1931, c. 312, s. 12; c. 426; 1935, c. 131; repealed by 2015-221, s. 2.4, effective August 18, 2015.)

Editor's Note. - Former G.S. 95-11 pertained to division of standards and inspection.

CASE NOTES

Section Does Not Create Criterion for Negligence. - Neither the legislature, when it authorized the division to promulgate rules and regulations to protect the health, safety and general well-being of the working classes of the State, nor the division when it wrote the rules, intended to create a criterion for negligence in civil damages suits; hence, violation of those rules cannot be asserted as contributory negligence. Swaney v. Peden Steel Co., 259 N.C. 531, 131 S.E.2d 601 (1963).


§ 95-12: Repealed by Session Laws 2015-221, s. 2.5, effective August 18, 2015.

History

(1931, c. 312, s. 13; repealed by 2015-221, s. 2.5, effective August 18, 2015.)

Editor's Note. - Former G.S. 95-12 pertained to the Division of Statistics.

§ 95-13. Enforcement of rules and regulations.

In the event any person, firm or corporation shall, after notice by the Commissioner of Labor, violate any of the rules or regulations promulgated under the authority of this Article or any laws amendatory hereof relating to safety devices, or measures, the Attorney General of the State, upon the request of the Commissioner of Labor, may take appropriate action in the civil courts of the State to enforce such rules and regulations. Upon request of the Attorney General, any district attorney of the State of North Carolina in whose district such rule or regulation is violated may perform the duties hereinabove required of the Attorney General.

History

(1939, c. 398; 1973, c. 47, s. 2.)

CASE NOTES

Cited in Swaney v. Peden Steel Co., 259 N.C. 531, 131 S.E.2d 601 (1963).


§ 95-14. Agreements with certain federal agencies for enforcement of Fair Labor Standards Act.

The North Carolina State Department of Labor may and it is hereby authorized to enter into agreements with the Wage and Hour Division, and the Children's Bureau, United States Department of Labor, for assistance and cooperation in the enforcement within this State of the act of Congress known as the Fair Labor Standards Act of 1938, approved June 25, 1938, and is further authorized to accept payment and/or reimbursement for its services as provided by said act of Congress. Any such agreement may be subject to the regulations of the administrator of the Wage and Hour Division, or the chief of the Children's Bureau of the United States Department of Labor, as the case may be, and shall be subject to the approval of the Director of the State Budget. Nothing in this section shall be construed as authorizing the State Department of Labor to spend in excess of its appropriation from State funds, except to the extent that such excess may be paid and/or reimbursed to it by the United States Department of Labor. All payments received by the State Department of Labor under this section shall be deposited in the State treasury and are hereby appropriated to the State Department of Labor to enable it to carry out the agreements entered into under this section.

History

(1939, c. 245.)

§ 95-14.1: Repealed by Session Laws 2011-145, s. 12.1, effective July 1, 2011.

History

(2009-451, s. 12.2; repealed by 2011-145, s. 12.1, effective July 1, 2011.)

Editor's Note. - Former G.S. 95-14.1 pertained to department review fees biennially.

ARTICLE 2. Maximum Working Hours.

§§ 95-15 through 95-25: Recodified as §§ 95-25.1 to 95-25.25.

Editor's Note. - This Article was rewritten by Session Laws 1979, c. 839, s. 1, and has been recodified as G.S. 95-25.1 through 95-25.25.

ARTICLE 2A. Wage and Hour Act.

Sec.

§ 95-25.1. Short title and legislative purpose.

  1. This Article shall be known and may be cited as the "Wage and Hour Act."
  2. The public policy of this State is declared as follows: The wage levels of employees, hours of labor, payment of earned wages, and the well-being of minors are subjects of concern requiring legislation to promote the general welfare of the people of the State without jeopardizing the competitive position of North Carolina business and industry. The General Assembly declares that the general welfare of the State requires the enactment of this law under the police power of the State.
  3. Repealed by Session Laws 2017-4, s. 1, effective March 30, 2017.

History

(1937, c. 409, s. 2; 1979, c. 839, s. 1; 2016-3, 2nd Ex. Sess., s. 2.1; 2017-4, s. 1.)

Editor's Note. - This Article is Article 2, G.S. 95-15 to 95-25 of this Chapter, as rewritten by Session Laws 1979, c. 839, s. 1, and recodified. The 1979 act also repealed Article 11, G.S. 95-85 to 95-96, and Article 17, G.S. 95-161 to 95-172, of this Chapter, and Article 1, G.S. 110-1 to 110-20 of Chapter 110, and incorporated the subject matter of those articles in Article 2A of this Chapter as rewritten. Where appropriate, the historical citations to sections from the rewritten and repealed articles have been added to corresponding sections in the Article as recodified.

Session Laws 2017-4, s. 1, effective March 30, 2017, provides: "S.L. 2016-3 and S.L. 2016-99 are repealed." Session Laws 2016-3, 2nd Ex. Sess., s. 2.1, effective March 23, 2016, and applicable to any action taken on or after that date, to any ordinance, resolution, regulation, or policy adopted or amended on or after that date, and to any contract entered into on or after that date, had amended the section catchline and added subsection (c).

Session Laws 2017-4, s. 3, provides: "No local government in this State may enact or amend an ordinance regulating private employment practices or regulating public accommodations." Section 3 of this act expires on December 1, 2020.

Effect of Amendments. - Session Laws 2016-3, 2nd Ex. Sess., s. 2.1, effective March 23, 2016, added "; local governments preempted" to the section catchline; and added subsection (c).

Legal Periodicals. - For note on workers' compensation and retaliatory discharge, see 58 N.C.L. Rev. 629 (1980).

For article, "Labor, Exclusion, and Flourishing in Property Law," see 95 N.C.L. Rev. 415 (2017).

CASE NOTES

North Carolina Wage and Hour Act is modeled after the Federal Fair Labor Standards Act, 29 U.S.C.S. § 201 et seq. North Carolina Wage and Hour Act is modeled after the Federal Fair Labor Standards Act, 29 U.S.C.S. § 201 et seq. Whitehead v. Sparrow Enter., 167 N.C. App. 178, 605 S.E.2d 234 (2004), cert. denied, 359 N.C. 856, 618 S.E.2d 240 (2005).

Public Policy. - Without question, payment of the minimum wage is the public policy of North Carolina. Amos v. Oakdale Knitting Co., 102 N.C. App. 782, 403 S.E.2d 565, rev'd on other grounds, 331 N.C. 348, 416 S.E.2d 166 (1992).

The General Assembly in enacting the Wage and Hour Act expressly recognized that the general welfare of the people necessitated a balancing of the employee's right to earn acceptable wages and the competitive position of North Carolina business and industry. The statutory remedy making the employer potentially liable for up to twice the amount due plus the costs and expenses incurred by the employee in pursuing the claim reflects this balancing. Amos v. Oakdale Knitting Co., 102 N.C. App. 782, 403 S.E.2d 565, rev'd on other grounds, 331 N.C. 348, 416 S.E.2d 166 (1992).

This Article requires an employer to notify an employee in advance of the wages and hours which he will earn and the conditions which must be met to earn them, and to pay such wages and benefits as are due when the employee has actually performed the work required to earn them. Once the employee has earned wages and benefits under this statutory scheme, the employer is prevented from rescinding them, with the exception that for certain benefits such as commissions, bonuses and vacation pay, an employer may cause a loss or forfeiture of such pay if he has notified the employee of the conditions for loss or forfeiture in advance of the time when the pay is earned. Narron v. Hardee's Food Sys., 75 N.C. App. 579, 331 S.E.2d 205, cert. denied, 314 N.C. 542, 335 S.E.2d 316 (1985).

Businesses covered by the federal Fair Labor Standards Act are exempt, from the North Carolina Wage and Hour Act. Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992).

Where employer-employee relationship at issue was covered by the Fair Labor Standards Act, it was exempt from the provisions of the North Carolina Wage and Hour Act. Spencer v. Hyde County, 959 F. Supp. 721 (E.D.N.C. 1997).

A claim for vacation pay pursuant to this Article is not preempted by federal law, the United States Supreme Court having recently held that an employer's policy of paying discharged employees vacation pay for unused vacation time does not constitute an "employee welfare benefit plan" within the meaning of the Employment Retirement Income and Security Act of 1974 (ERISA), as amended, 29 U.S.C. sec. 1001 et seq. Rucker v. First Union Nat'l Bank, 98 N.C. App. 100, 389 S.E.2d 622, cert. denied, 326 N.C. 801, 393 S.E.2d 899 (1990).

Claim for Unpaid Bonus. - Plaintiff's state claims presented complex and unsettled issues of North Carolina law which would be more appropriately resolved by a North Carolina court including the proper definition of "handicapped person" under G.S. 143-422.2, part of the North Carolina Equal Employment Practices Act; and the proper analysis of this act, with its accompanying administrative regulations in the North Carolina Administrative Code, in the context of the plaintiff's claim for an unpaid bonus. McCullough v. Branch Banking & Trust Co., 844 F. Supp. 258 (E.D.N.C. 1993), aff'd, 35 F.3d 127 (4th Cir. 1994), cert. denied, 513 U.S. 1151, 115 S. Ct. 1101, 130 L. Ed. 2d 1069 (1995).

Liquidated Damages. - The employer bears the burden of demonstrating that liquidated damages should not be imposed; however, even if an employer shows that it acted in good faith, and with the belief that its action did not constitute a violation of the Wage and Hour Act, the trial court may still, in its discretion, award liquidated damages in any amount up to the amount due for unpaid wages. Hamilton v. Memorex Telex Corp., 118 N.C. App. 1, 454 S.E.2d 278 (1995).

Extraterritorial Application. - North Carolina Wage and Hour Act, G.S. 95-25.1, could not be applied to a nonresident employee's breach of contract claim alleging that the former employer's violation constituted a breach of their employment agreement, even where the employment agreement stated that North Carolina law applied to any termination dispute and the former employee made almost daily conference calls to the former employer's North Carolina office. The trial court lacked the authority to make such an extrajudicial application of the law. Panos v. Timco Engine Ctr., Inc., 197 N.C. App. 510, 677 S.E.2d 868 (2009).

Preemption by ERISA - Employer was entitled to summary judgment on the employee's State law claims concerning the denial of short-term and long-term disability benefits because the State claims were preempted by 29 U.S.C.S. § 1144(a). Bursell v. GE, 243 F. Supp. 2d 460 (E.D.N.C. 2003).

Where employee sued under the North Carolina Wage and Hour Act, G.S. 95-25.1 et seq. to recover severance pay, which was also provided for by 29 U.S.C.S. § 1132(a), the civil enforcement provision of the Employee Retirement Income Security Act (ERISA), 29 U.S.C.S. § 1001 et seq, 29 U.S.C.S. § 1132(a), preempted the State law claim; however, the State law claim was not dismissed but was treated as an ERISA claim, subject to amendment of the complaint to assert the ERISA claim, since the requested relief was not allowed under ERISA and a finding that the employer's severance plan was an ERISA plan could give rise to claims other than that for benefits. Mullaly v. Ins. Servs. Office, Inc., 395 F. Supp. 2d 290 (M.D.N.C. 2005).

Where former employee sought severance pay under the North Carolina Wage and Hour Act, G.S. 95-25.1 et seq., the employer's severance plan was an employee welfare benefit plan subject to the Employee Retirement Income Security Act (ERISA), 29 U.S.C.S. § 1001 et seq. and preempted the State law claim; the federal district court had federal question subject matter jurisdiction, and it denied the employee's post-removal motion to remand to State court. Mullaly v. Ins. Servs. Office, Inc., 395 F. Supp. 2d 290 (M.D.N.C. 2005).

Plaintiff's employment agreement provided for a detailed and complex severance package, and thus it was an employee welfare benefit plan under the Employee Retirement Income Security Act of 1974 (and not merely a contract that provided severance benefits); plaintiff's claims for severance wages under breach of contract and violation of North Carolina's Wage and Hour Act, G.S. 95-25.1 et seq., were preempted by 29 U.S.C.S. § 1144(a). Rinaldi v. CCX, Inc., - F. Supp. 2d - (W.D.N.C. July 2, 2008).

Federal Court Supplemental Jurisdiction Declined. - Where plaintiff H-2A visa certification program workers filed a class action for minimum wage law violations under the Fair Labor Standards Act (FLSA), and under the North Carolina Wage and Hour Act alleging defendant employers failed to reimburse transportation, visa, and border crossing fees, the workers' FLSA action could proceed as a collective action, but supplemental jurisdiction under 28 U.S.C.S. § 1367(a), (c), was declined as to the state law claim due to resulting confusion between state claim "opt-out" procedures under Fed. R. Civ. P. 23, "opt-in" procedures under 29 U.S.C.S. § 216(b) of the FLSA, and the multiple notifications as to separate classes and claims. De Jesus De Luna-Guerrero v. North Carolina Grower's Ass'n, 338 F. Supp. 2d 649 (E.D.N.C. 2004).

Pharmacy Board Lacked Authority to Regulate Pharmacist Hours. - Pharmacy board's authority to regulate pharmacies did not extend to regulating pharmacist working hours as set out in its proposed rule; the North Carolina Department of Labor was the only entity with authority to regulate working hours of pharmacists in pharmacies, and such regulation was solely through the Wage and Hour Act, G.S. 95-25.1. N.C. Bd. of Pharm. v. Rules Review Comm'n, 174 N.C. App. 301, 620 S.E.2d 893 (2005), rev'd, in part, remanded, 360 N.C. 638, 637 S.E.2d 515 (2006) (rev'd as to pharmacy board's authority to regulate hours).

Although plaintiff former employee's complaint against defendant former employer mentioned North Carolina's Wage and Hour Act, it did so only in the context of that part of the complaint alleging wrongful termination under Title VII of the Civil Rights Act of 1964, which had failed, and since the complaint did not clearly set out a separate claim under the Wage and Hour Act, did not mention such a cause of actions in the prayer for relief, and did not contain any citation to a specific provision of the Wage and Hour Act alleged to be violated, any such claim failed. Staten v. Tekelec, - F. Supp. 2d - (E.D.N.C. Sept. 28, 2010).

Class Certified. - Class certification for the claims brought under G.S. 95-25.6 was granted because common questions of law predominated because the same operative facts underlying the employer's alleged refusal to pay production workers for all time spent donning, doffing, cleaning their personal protective equipment, and walking and waiting associated with these tasks, also formed the basis of the North Carolina Wage and Hour Act (NCWHA), G.S. 95-25.1 et seq., claims. Romero v. Mountaire Farms, Inc., 796 F. Supp. 2d 700 (E.D.N.C. 2011).

Applied in Martin v. Pomeroy Computer Resources, Inc., 87 F. Supp. 2d 496 (W.D.N.C. 1999); Beltran-Benitez v. Sea Safari, Ltd., 180 F. Supp. 2d 772 (E.D.N.C. 2001).

Cited in Johnson v. North Carolina DOT, 107 N.C. App. 63, 418 S.E.2d 700 (1992); Moses H. Cone Mem'l Health Servs. Corp. v. Triplett, 167 N.C. App. 267, 605 S.E.2d 492 (2004); Maglione v. Aegis Family Health Ctrs., 168 N.C. App. 49, 607 S.E.2d 286 (2005); Arndt v. First Union Nat'l Bank, 170 N.C. App. 518, 613 S.E.2d 274 (2005); Youse v. Duke Energy Corp., 171 N.C. App. 187, 614 S.E.2d 396 (2005); Abreo v. N.C. Growers' Ass'n, - F. Supp. 2d - (M.D.N.C. Nov. 25, 2005).


§ 95-25.2. Definitions.

In this Article, unless the context otherwise requires:

  1. "Agriculture" includes farming in all its branches performed by a farmer or on a farm as an incident to or in conjunction with farming operations.
  2. "Commissioner" means the Commissioner of Labor.
  3. "Employ" means to suffer or permit to work.
  4. "Employee" includes any individual employed by an employer.
  5. "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee.
  6. "Establishment" means a physical location where business is conducted.
  7. "The Fair Labor Standards Act" means the Fair Labor Standards Act of 1938, as amended and as the same may be amended from time to time by the United States Congress.
  8. "Hours worked" includes all time an employee is employed.
  9. "Payday" means that day designated for payment of wages due by virtue of the employment relationship.
  10. "Pay periods" may be daily, weekly, biweekly, semimonthly, or monthly.
  11. "Person" means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons. For the purposes of G.S. 95-25.2, G.S. 95-25.3, G.S. 95-25.14, and G.S. 95-25.20, it also means the State of North Carolina, any city, town, county, or municipality, or any State or local agency or instrumentality of government. The Government of the United States and any agency of the United States (including the United States Postal Service and Postal Rate Commission) are not included as persons for any purpose under this Article.
  12. "Seasonal food service establishment" means a restaurant, food and drink stand or other establishment generally recognized as a commercial food service establishment, preparing and serving food to the public but operating 180 days or less per year.
  13. "Seasonal religious or nonprofit educational conference center or a seasonal amusement or recreational establishment" means an establishment which does not operate for more than seven months in any calendar year, or during the preceding calendar year had average receipts for any six months of such year of not more than thirty-three and one-third percent (331/3%) of its average receipts for the other six months of that year.
  14. "Tipped employee" means any employee who customarily receives more than twenty dollars ($20.00) a month in tips.
  15. "Tip" shall mean any money or part thereof over and above the actual amount due a business for goods, food, drink, services or articles sold which is paid in cash or by credit card, or is given to or left for an employee by a patron or patrons of the business where the employee is employed.
  16. "Wage" paid to an employee means compensation for labor or services rendered by an employee whether determined on a time, task, piece, job, day, commission, or other basis of calculation, and the reasonable cost as determined by the Commissioner of furnishing employees with board, lodging, or other facilities. For the purposes of G.S. 95-25.6 through G.S. 95-25.13 "wage" includes sick pay, vacation pay, severance pay, commissions, bonuses, and other amounts promised when the employer has a policy or a practice of making such payments.
  17. "Workweek" means any period of 168 consecutive hours.
  18. "Enterprise" means the related activities performed either through unified operations or common control by any person or persons for a common business purpose and includes all such activities whether performed in one or more establishments or by one or more corporate units but shall not include the related activities performed for such enterprise by an independent contractor or franchisee.

History

(1959, c. 475; 1961, c. 652; 1969, c. 34, s. 2; c. 218; 1971, c. 1231, s. 1; 1975, c. 413, s. 1; c. 605; 1977, c. 653; c. 672, s. 1; c. 826, s. 1; 1979, c. 839, s. 1; 1981, c. 663, ss. 10, 11; 1983, c. 708, s. 3; 1991, c. 330, s. 1.)

Legal Periodicals. - For article, "An Analysis of the Retaliatory Employment Discrimination Act and Protected Activity under the Occupational Safety and Health Act of North Carolina," see 15 Campbell L. Rev. 29 (1992).

CASE NOTES

The definition of "employer" in subdivision (5) of this section is identical to the definition in the Equal Pay Act. In construing this definition, the court should keep in mind the remedial purposes of Title VII (42 U.S.C. § 2000) and the Equal Pay Act (29 U.S.C. § 203(d)). Crowder v. Fieldcrest Mills, Inc., 569 F. Supp. 825 (M.D.N.C. 1983).

President and sole shareholder of a company was not an employer of temporary foreign non-agricultural workers within the meaning of 29 U.S.C.S. § 203(d) or G.S. 95-25.2(5) because the president and sole shareholder had no role in the direct hiring of the temporary foreign workers who were hired to work as crab pickers and the president and sole shareholder had little direct involvement with the seafood processing portion of the company. Garcia v. Frog Island Seafood, Inc., 644 F. Supp. 2d 696 (E.D.N.C. 2009).

"Hours Worked". - Pursuant to G.S. 95-25.2(3) and (8), and 29 U.S.C.S. § 203(g), a trial court properly held that the day laborers' waiting and transportation time was excluded from their hours worked where the laborers received assignments only if work was available, they were not required to ride the company van to the jobsite, they were able to use the wait time for their own personal activities, and they were not required to don or doff specialized protective gear and clothing, but safety equipment was made available to them for certain job sites, which could be rented on an as needed basis. Leverette v. Labor Works Int'l, LLC, 180 N.C. App. 102, 636 S.E.2d 258 (2006).

Time that day laborers spent taking and waiting for the results of a breathalyzer test was not compensable where the test was a pre-condition to employment. Leverette v. Labor Works Int'l, LLC, 180 N.C. App. 102, 636 S.E.2d 258 (2006).

Defendant employer's contention that plaintiffs' payday claim failed because plaintiffs had not established that the employer contracted to pay plaintiffs for the time plaintiffs spent engaging in such activities as changing into and out of protective gear, walking to and from work stations and waiting at work stations for production lines to start, failed; if the court interpreted G.S. 95-25.6 as requiring plaintiffs to prove that their employer expressly agreed to pay them for particular services performed (such as changing into and out of protective gear required by the employer), an employer would be able to avoid payment of any wages to his employees by simply claiming that the services rendered, although for the benefit of the employer, were something other than "work." Martinez-Hernandez v. Butterball, LLC, 578 F. Supp. 2d 816 (E.D.N.C. Sept. 2, 2008).

It is dependence that indicates employee status. Poole v. Local 305 Nat'l Post Office Mail Handlers, 69 N.C. App. 675, 318 S.E.2d 105 (1984).

Employee Status Not Shown. - A directed verdict on a wage and hour claim would be affirmed where there was no evidence that real estate broker was an "employee"; the parties had entered into a separate agreement regarding a commission after the broker had resigned, and at most, broker was an independent contractor. Horack v. S. Real Estate Co. of Charlotte, Inc., 150 N.C. App. 305, 563 S.E.2d 47 (2002).

"Enterprise." - Trial court found that three temporary employment agencies were not enterprises under G.S. 95-25.2(18) where the day laborers who brought the action had been employed at only one location, and deposition testimony that each of the limited liability companies ultimately deposited their funds into an account maintained by one of the temporary agencies did not give rise to an issue of fact as to whether the agencies engaged in related activities performed through a unified operation. Leverette v. Labor Works Int'l, LLC, 180 N.C. App. 102, 636 S.E.2d 258 (2006).

Severance Payments and Benefits Required under Agreement. - Employees were entitled to judgment on the pleadings on their claims against a bank under the North Carolina Wage and Hour Act because their employment agreements provided that the employees were entitled to severance payments and benefits in the event the agreements were terminated, and the bank violated the Act by failing to provide the payments and benefits. Washburn v. Yadkin Valley Bank & Trust Co., 190 N.C. App. 315, 660 S.E.2d 577 (2008), review denied, 363 N.C. 139, 674 S.E.2d 422 (2009).

Defendants who had taken an active role in management and the closing of factory business were "employers" for purposes of federal worker protection and notification statutes; therefore, they were denied summary judgment on liability claims. Sigmon v. Recovery Equity Partners, L.P. (In re Shelby Yarn Co.), 306 B.R. 523 (W.D.N.C. 2004).

Amendment of Annual Bonus Without Notice. - Employee was entitled to an award under the North Carolina Wage and Hour Act, G.S. 95-25.1 et seq., because: (1) the employers' representative orally agreed to pay the employee an annual bonus as part of a contract; (2) the employers modified the employee's bonus formula without his consent; and (3) the employers also failed to give the employee notice of the change in the bonus formula. Arndt v. First Union Nat'l Bank, 170 N.C. App. 518, 613 S.E.2d 274 (2005).

"Wages." - Employee failed to state a claim under the North Carolina Wage and Hour Act, G.S. 95-25.1 et seq., pursuant to G.S. 95-25.22(a) because, despite his arguments regarding notice, his complaint only sought recovery for a period of time in which he was admittedly not working; thus, he did not seek wages as was defined in G.S. 95-25.2(16). Crespo v. Delta Apparel, Inc., - F. Supp. 2d - (W.D.N.C. July 31, 2008).

Liquidated Damages. - Based upon the plain language of the North Carolina Wage and Hour Act (NCWHA), the unpaid amounts due under G.S. 95-25.7 were a doctor's wages as defined by G.S. 95-25.2(16). Consequently, the fact that the employer could withhold or divert a portion of the doctor's wages in accordance with state and federal law did not change the fact that they were unpaid amounts which the employer should have paid out, either directly to the employee or for the employee's benefit, but for the violation of the NCWHA. Harper v. Vohra Wound Physicians of NY, - N.C. App. - , 841 S.E.2d 580 (2020).

Province of Jury. - Former employee's formula to calculate the bonus due to him was adequate to submit to the jury the question of whether the issuance bonuses owed were calculable under the North Carolina Wage and Hour Act, G.S. 95-25.2, as the formula offered was at least one reasonable way to calculate those bonuses, and the evidence relied on for that formula was supported in the record. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013).

Cited in Narron v. Hardee's Food Sys., 75 N.C. App. 579, 331 S.E.2d 205 (1985); Hamilton v. Memorex Telex Corp., 118 N.C. App. 1, 454 S.E.2d 278 (1995).


§ 95-25.3. Minimum wage.

  1. Every employer shall pay to each employee who in any workweek performs any work, wages of at least six dollars and fifteen cents ($6.15) per hour or the minimum wage set forth in paragraph 1 of section 6(a) of the Fair Labor Standards Act, 29 U.S.C. 206(a)(1), as that wage may change from time to time, whichever is higher, except as otherwise provided in this section.
  2. In order to prevent curtailment of opportunities for employment, the wage rate for full-time students, learners, apprentices, and messengers, as defined under the Fair Labor Standards Act, shall be ninety percent (90%) of the rate in effect under subsection (a) above, rounded to the lowest nickel.
  3. The Commissioner, in order to prevent curtailment of opportunities for employment, may, by regulation, establish a wage rate less than the wage rate in effect under section (a) which may apply to persons whose earning or productive capacity is impaired by age or physical or mental deficiency or injury, as such persons are defined under the Fair Labor Standards Act.
  4. The Commissioner, in order to prevent curtailment of opportunities for employment of the economically disadvantaged and the unemployed, may, by regulation, establish a wage rate not less than eighty-five percent (85%) of the otherwise applicable wage rate in effect under subsection (a) which shall apply to all persons (i) who have been unemployed for at least 15 weeks and who are economically disadvantaged, or (ii) who are, or whose families are, receiving Work First Family Assistance or who are receiving supplemental security benefits under Title XVI of the Social Security Act.
  5. The Commissioner, in order to prevent curtailment of opportunities for employment, and to not adversely affect the viability of seasonal establishments, may, by regulation, establish a wage rate not less than eighty-five percent (85%) of the otherwise applicable wage rate in effect under subsection (a) that shall apply to any employee employed by an establishment that is a seasonal food service establishment.
  6. Tips earned by a tipped employee may be counted as wages only up to the amount permitted in section 3(m) of the Fair Labor Standards Act, 29 U.S.C. 203(m), if the tipped employee is notified in advance, is permitted to retain all tips and the employer maintains accurate and complete records of tips received by each employee as such tips are certified by the employee monthly or for each pay period. Even if the employee refuses to certify tips accurately, tips may still be counted as wages when the employer complies with the other requirements of this section and can demonstrate by monitoring tips that the employee regularly receives tips in the amount for which the credit is taken. Tip pooling shall also be permissible among employees who customarily and regularly receive tips; however, no employee's tips may be reduced by more than fifteen percent (15%) under a tip pooling arrangement.
  7. Repealed by Session Laws 2006-259, s. 18, effective August 23, 2006.

Pursuant to regulations issued by the Commissioner, certificates establishing eligibility for such subminimum wage shall be issued by the Division of Employment Security.

The regulation issued by the Commissioner shall not permit employment at the subminimum rate for a period in excess of 52 weeks.

History

(1959, c. 475; 1963, c. 816; 1965, c. 229; 1969, c. 34, s. 1; 1971, c. 138; 1973, c. 802; 1975, c. 256, s. 1; 1977, c. 519; 1979, c. 839, s. 1; 1981, c. 493, s. 1; c. 663, s. 13; 1983, c. 708, s. 1; 1985, c. 97; 1987, c. 79; 1991, c. 270, ss. 1, 2; c. 330, s. 5; 1997-146, s. 1; 1997-443, s. 12.25; 2006-114, s. 1; 2006-259, s. 18; 2011-401, s. 3.6; 2017-185, s. 3(b).)

Cross References. - As to exemptions from the provisions of this section, see G.S. 95-25.14.

Effect of Amendments. - Session Laws 2006-114, s. 1, effective January 1, 2007, in subsection (a), inserted "six dollars and fifteen cents ($6.15) per hour or" following "wages of at least" and inserted "whichever is higher" following "from time to time."

Session Laws 2006-259, s. 18, effective August 23, 2006, repealed subsection (g) which read: "In order to prevent curtailment of opportunities for employment, an employer may, in lieu of the minimum wage prescribed by this section, pay a training wage to eligible persons in accordance with G.S.95-25.3A."

Session Laws 2011-401, s. 3.6, effective November 1, 2011, substituted "Division of Employment Security" for "Employment Security Commission" in the second paragraph of subsection (d).

Session Laws 2017-185, s. 3(b), effective January 1, 2018, in subsection (e), substituted "that" for "which" twice, and deleted "a seasonal amusement or recreational establishment, or" preceding "a seasonal food."

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 389 (1998).

CASE NOTES

Action Not Preempted by Fair Labor Standards Act. - Plaintiffs' class action alleging violations of the North Carolina Wage and Hour Act was remanded to state court because the employer failed to establish federal question jurisdiction because the Fair Labor Standards Act (FLSA) did not completely preempt state law and the employee specifically denied that the claims implicated the requirement in G.S. 95-25.3(f) that no employee's tips could be reduced by more than 15 percent under a tip-pooling arrangement. Chandler v. Cheesecake Factory Rests., Inc., 239 F.R.D. 432 (M.D.N.C. 2006).

Cited in Narron v. Hardee's Food Sys., 75 N.C. App. 579, 331 S.E.2d 205 (1985); Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992); Zelaya v. J.M. Macias, Inc., 999 F. Supp. 778 (E.D.N.C. 1998).


§ 95-25.3A: Repealed by Session Laws 2003-308, s. 8, effective July 1, 2003.

§ 95-25.4. Overtime.

  1. Every employer shall pay each employee who works longer than 40 hours in any workweek at a rate of not less than time and one half of the regular rate of pay of the employee for those hours in excess of 40 per week.
  2. Repealed by Session Laws 1991, c. 330, s. 2, effective June 19, 1991.

History

(1973, c. 685, s. 1; 1979, c. 839, s. 1; 1991, c. 330, s. 2; c. 492, s. 1; 2017-185, s. 3(c).)

Cross References. - As to exemptions from the provisions of this section, see G.S. 95-25.14.

Effect of Amendments. - Session Laws 2017-185, s. 3(c), effective January 1, 2018, deleted "provided that employers of seasonal amusement or recreational establishment employees are required to pay those employees the overtime rate only for hours in excess of 45 per workweek" from the end of subsection (a).

CASE NOTES

Construction With Federal Law. - Summary judgment was denied to both plaintiff welding instructor and defendant college, as material issues of fact remained as to whether the instructor was entitled to overtime pay under the Fair Labor Standards Act, 29 U.S.C.S. § 201, et seq., and the North Carolina Wage Act, G.S. 95-85, et seq., or was exempted as a professional employee. Massie v. Bd. of Trs., 357 F. Supp. 2d 878 (W.D.N.C. 2005).

Cited in Narron v. Hardee's Food Sys., 75 N.C. App. 579, 331 S.E.2d 205 (1985); Zelaya v. J.M. Macias, Inc., 999 F. Supp. 778 (E.D.N.C. 1998); Chandler v. Cheesecake Factory Rests., Inc., 239 F.R.D. 432 (M.D.N.C. 2006); Simmons v. United Mortg. & Loan Inv., LLC, - F. Supp. 2d - (W.D.N.C. May 30, 2008).


§ 95-25.5. Youth employment.

  1. No youth under 18 years of age shall be employed by any employer in any occupation without a youth employment certificate unless specifically exempted. The Commissioner of Labor shall prescribe regulations for youths and employers concerning the issuance, maintenance and revocation of certificates. Certificates will be issued by the Commissioner.
  2. During the regular school term, no youth under 18 years of age who is enrolled in school in grade 12 or lower may be employed between 11 P.M. and 5 A.M. when there is school for the youth the next day. This restriction does not apply to youths 16 and 17 years of age if the employer receives written approval for the youth to work beyond the stated hours from the youth's parent or guardian and from the youth's principal or the principal's designee.
  3. No youth under 18 years of age may be employed by an employer in any occupation which the United States Department of Labor shall find and by order declare to be hazardous and without exemption under the Fair Labor Standards Act, or in any occupation which the Commissioner of Labor after public hearing shall find and declare to be detrimental to the health and well-being of youths.
  4. No youth 14 or 15 years of age may be employed by an employer in any occupation except those determined by the United States Department of Labor to be permitted occupations under the Fair Labor Standards Act; provided, such youths may be employed by employers:
    1. No more than three hours on a day when school is in session for the youth;
    2. No more than eight hours on a day when school is not in session for the youth;
    3. Only between 7 A.M. and 7 P.M., except to 9 P.M. during the summer (when school is not in session);
    4. No more than 40 hours in any one week when school is not in session for the youth;
    5. No more than 18 hours in any one week when school is in session for the youth; and
    6. Only outside school hours.
  5. No youth 13 years of age or less may be employed by an employer, except youths 12 and 13 years of age may be employed outside school hours in the distribution of newspapers to the consumer but not more than three hours per day. An employment certificate shall not be required for any youth under 18 years of age engaged in the distribution of newspapers to the consumer outside of school hours.
  6. No youth under 16 years of age shall be employed for more than five consecutive hours without an interval of at least 30 minutes for rest. No period of less than 30 minutes shall be deemed to interrupt a continuous period of work.
  7. For any youth 13 years of age or older, the Commissioner may waive any provision of this section and authorize the issuance of an employment certificate when:
    1. He receives a letter from a social worker, court, probation officer, county department of social services, a letter from the North Carolina Alcohol Beverage Control Commission or school official stating those factors which create a hardship situation and how the best interest of the youth is served by allowing a waiver; and
    2. He determines that the health or safety of the youth would not be adversely affected; and
    3. The parent, guardian, or other person standing in loco parentis consents in writing to the proposed employment.
  8. Youths employed as models, or as actors or performers in motion pictures or theatrical productions, or in radio or television productions are exempt from all provisions of this section except the certificate requirements of subsection (a).
  9. Youths employed by an outdoor drama directly in production-related positions such as stagehands, lighting, costumes, properties and special effects are exempt from all provisions of this section except the certificate requirements of subsection (a). Positions such as office workers, ticket takers, ushers and parking lot attendants have no exemption and are subject to all provisions of this section.
  10. Youth under 18 years of age employed by their parent, guardian, or other person standing in loco parentis are exempt from all provisions of this section, except for all of the following:
    1. The certificate requirements of subsection (a) of this section.
    2. The prohibition from hazardous or detrimental occupations of subsection (b) of this section.
    3. The prohibitions of subsection (j)(2) of this section if the youths only work at the establishment when another employee at least 21 years of age is in charge of and present at the licensed premises.
  11. No person who holds any ABC permit issued pursuant to the provisions of Chapter 18B of the General Statutes for the on-premises sale or consumption of alcoholic beverages, including any mixed beverages, shall employ a youth:
    1. Under 16 years of age on the premises for any purpose, unless the youth is at least 14 years of age and each of the following conditions is met:
      1. The person obtains the written consent of a parent or guardian of the youth.
      2. The youth is employed to work on the outside grounds of the premises for a purpose that does not involve the preparation, serving, dispensing, or sale of alcoholic beverages.
    2. Under 18 years of age to prepare, serve, dispense or sell any alcoholic beverages, including mixed beverages, except for sale of alcoholic beverages at the point-of-sale for only off-premises consumption.
  12. Persons and establishments required to comply with or subject to regulation of child labor under the Fair Labor Standards Act are exempt from all provisions of this section, except the certificate requirements of subsection (a), the provisions of subsection (a1), the prohibition from occupations found and declared to be detrimental by the Commissioner of Labor pursuant to subsection (b), and the prohibitions of subsection (j). In addition, employment certificates will not be issued if such person's employment will be in violation of the applicable child labor provisions of the Fair Labor Standards Act. Such employers may also be assessed civil penalties pursuant to G.S. 95-25.23 for each violation of the provisions of this section or any regulation issued hereunder from which there is no exemption.
  13. Youth, who are at least 16 years of age but less than 18 years of age, who participate in a supervised, practice experience in an occupation with an employer are exempt from the prohibition from occupations found and declared to be detrimental to the health and well-being of youth by the Commissioner of Labor pursuant to subsection (b) of this section, if the Commissioner of Labor finds all of the following conditions are met:
    1. The youth is enrolled in a public school or a nonpublic school that meets the requirements of Part 1 or Part 2 of Article 39 of Chapter 115C of the General Statutes that is partnering with the employer to offer the supervised, practice experience for the occupation.
    2. The employer submits to the Commissioner of Labor the written agreement between the employer and the public or nonpublic school where the youth is enrolled that governs the operation of the supervised, practice experience for the occupation. The written agreement shall include at least the following:
      1. The work is incidental to the youth's supervised, practice experience for the occupation.
      2. The work is intermittent and for short periods of time.
      3. The work is performed under direct and close supervision of a qualified and experienced person.
      4. The employer shall give safety instructions and training to the youth before performing the work.
      5. The employer has prepared a schedule of organized and progressive work processes to be performed by the youth.
  14. Notwithstanding any other provision of this section, any youth who holds a North Carolina driver's license valid for the type of driving involved may be assigned as part of his employment to drive an automobile or truck not exceeding 6,000 pounds gross vehicle weight within a 25-mile radius of the principal place of employment, provided that the youth has completed a State-approved driver-education course, and provided that the assignment does not involve the towing of vehicles. "Gross vehicle weight" includes the truck chassis with lubricants, water and full tank or tanks of fuel, plus the weight of the cab or driver's compartment, body and special chassis and body equipment, and payload.
  15. Notwithstanding any other provision of this section, youths who are enrolled at an institution of higher education may be employed by the institution provided the employment is not hazardous. As used in this subsection, "institution of higher education" means any constituent institution of The University of North Carolina, any North Carolina community college, or any college or university that awards postsecondary degrees.
  16. Nothing in this section prohibits qualified youths under 18 years of age from participating in training through their fire department, the Office of State Fire Marshal, or the North Carolina Community College System. As used in this subsection, the term "qualified youth under 18 years of age" means an uncompensated fire department or rescue squad member who is at least the age of 15 and under the age of 18 and who is a member of a bona fide fire department, as that term is defined in G.S. 58-86-25, or of a rescue squad described in G.S. 58-86-30.

Notwithstanding the above, enrollees in high school apprenticeships or in work experience and career exploration programs as defined under the Fair Labor Standards Act may work up to 23 hours in any one week when school is in session, any portion of which may be during school hours.

The terms of the written agreement required by subdivision (2) of this subsection shall be consistent with the guidance provided in Child Labor Bulletin 101, Child Labor Provisions for Nonagricultural Occupations under the Fair Labor Standards Act , published by the United States Department of Labor, Wage and Hour Division, effective November 2016, and any subsequent revisions published for that document.

History

(1937, c. 317, ss. 1-3, 6, 9, 18; 1943, c. 670; 1951, c. 1187, s. 1; 1967, cc. 173, 764; 1969, c. 962; 1973, c. 649, s. 1; c. 758, s. 1; 1977, c. 551, ss. 1-4; 1979, c. 839, s. 1; 1981, c. 412, ss. 3, 4; c. 489, ss. 1-7; c. 747, s. 66; 1985, c. 97, s. 1; 1987, c. 154; 1991, c. 492, s. 2; 1991 (Reg. Sess., 1992), c. 991, s. 1; 1993, c. 239, s. 1; 1995, c. 214, s. 1; 1999-237, s. 14.1; 2001-312, s. 3; 2001-515, s. 5; 2005-453, s. 15; 2009-21, s. 2; 2010-97, s. 9; 2015-221, s. 3.1; 2017-211, s. 14(a); 2019-166, s. 1; 2021-82, s. 5.)

Cross References. - As to exemptions from the provisions of this section, see G.S. 95-25.14.

Editor's Note. - Session Laws 2017-211, s. 21(a), is a severability clause.

Session Laws 2019-166, s. 2 made subsection (k1) of this section, as added by Session Laws 2019-166, s. 1, effective July 26, 2019, and applicable to participation of youth in practical experience programs on or after that date.

Effect of Amendments. - Session Laws 2001-515, s. 5, effective January 4, 2002, added the language beginning "unless" at the end of the introductory language of subdivision (j)(1), and added subdivisions (j)(1)a and (j)(1)b.

Session Laws 2005-453, s. 15, effective October 1, 2005, in subsection (i), substituted "Youth" for "Youths" and inserted "guardian, or other person standing in loco parentis."

Session Laws 2009-21, s. 2, effective May 4, 2009, added subsection (n).

Session Laws 2010-97, s. 9, effective July 20, 2010, substituted "who is at least the age of 15" for "who is over the age of 15" in the last sentence of subsection (n).

Session Laws 2015-221, s. 3.1, effective August 18, 2015, inserted "except for sale of alcoholic beverages at the point-of-sale for only off-premises consumption" at the end of subdivision (j)(2).

Session Laws 2017-211, s. 14(a), effective October 1, 2017, substituted "issued by the Commissioner" for "issued, subject to review by the Department of Labor, by county directors of social services and such of their designees as are approved by the Commissioner; provided, the Commissioner may also issue certificates" in subsection (a).

Session Laws 2019-166, s. 1, added subsection (k1). For effective date and applicability, see editor's note.

Session Laws 2021-82, s. 5, effective July 8, 2021, substituted "Commissioner” for "Commissioner, both directly and electronically” in the last sentence of subsection (a).

Legal Periodicals. - For article, "A History of Liquor-By-The Drink Legislation in North Carolina," see 1 Campbell L. Rev. 61 (1979).

For note on workers' compensation and retaliatory discharge, see 58 N.C.L. Rev. 629 (1980).

For article, "States of Confusion: The Rise of State and Local Power Over Immigration," see 86 N.C.L. Rev. 1557 (2008).

CASE NOTES

Prior Law. - As to employment of children before the Child Labor Act of 1903, see Ward v. Allen, 126 N.C. 946, 36 S.E. 194 (1900); Fitzgerald v. Alma Furn. Co., 131 N.C. 636, 42 S.E. 946 (1902); Hendrix v. Cotton Mills, 138 N.C. 169, 50 S.E. 561 (1905).

As to employment since the act, see Rolin v. R.J. Reynolds Tobacco Co., 141 N.C. 300, 53 S.E. 891 (1906); Leathers v. Blackwell Durham Tobacco Co., 144 N.C. 330, 57 S.E. 11 (1907); Starnes v. Albion Mfg. Co., 147 N.C. 556, 61 S.E. 525 (1908); Pettit v. Atlantic C.L. Ry., 156 N.C. 119, 72 S.E. 195 (1911); McGowan v. Ivanhoe Mfg. Co., 167 N.C. 192, 82 S.E. 1028 (1914); Evans v. Dare Lumber Co., 174 N.C. 31, 93 S.E. 430 (1917).

As to employment in messenger or delivery service, see Pettit v. Atlantic C.L. Ry., 186 N.C. 9, 118 S.E. 840 (1923).

As to mere volunteer injured in performance of simple and ordinary task, see Reaves v. Catawba Mfg. & Elec. Power Co., 206 N.C. 523, 174 S.E. 413 (1934).

Corporate Officer Held Personally Liable for Unpaid Wages. - An individual Chapter 13 debtor who served as Vice President, Secretary, Treasurer, and Director of a Chapter 7 debtor corporation, and who was also a 50% owner of the corporation and managed the office, supervised cash flow, maintained payroll records, signed and distributed payroll checks and kept employees working when there was insufficient cash flow to pay employees, was held personally liable for unpaid wages as an "employer" under this section. In re Halperin, 87 Bankr. 399 (Bankr. W.D.N.C. 1987).

Cited in Golden v. Register, 50 N.C. App. 650, 274 S.E.2d 892 (1981); Lemmerman v. A.T. Williams Oil Co., 318 N.C. 577, 350 S.E.2d 83 (1986); In re Schrimpsher, 143 N.C. App. 461, 546 S.E.2d 407 (2001); Chandler v. Cheesecake Factory Rests., Inc., 239 F.R.D. 432 (M.D.N.C. 2006).


§ 95-25.6. Wage payment.

Every employer shall pay every employee all wages and tips accruing to the employee on the regular payday. Pay periods may be daily, weekly, bi-weekly, semi-monthly, or monthly. Wages based upon bonuses, commissions, or other forms of calculation may be paid as infrequently as annually if prescribed in advance.

History

(1975, c. 413, s. 3; 1977, c. 826, s. 3; 1979, c. 839, s. 1.)

CASE NOTES

Common Law Claims Not Preempted. - While defendant former employer alleged that the North Carolina Wage and Hour Act (NCWHA) provided plaintiff former sales director's exclusive statutory remedy for the alleged failure to pay a bonus, and that thus, a common law breach of contract claim for wages allegedly owed was precluded, Fed. R. Civ. P. 8(d)(2) provided for pleading alternative claims, and no North Carolina court, or any federal court applying North Carolina law, had directly held that the NCWHA preempted claims for breach of contract. Feldman v. Law Enforcement Assocs. Corp., 779 F. Supp. 2d 472 (E.D.N.C. 2011).

Defendants' motion to dismiss, for failure to state a claim, plaintiffs' suit alleging that the defendants failed to pay them all of the weekly wages due at the time due or at the correct rate, and that their claims were typical of at least 100 similarly situated employees, was premature; plaintiffs had not yet filed a motion for class certification, and the propriety of specifics regarding class certification would be addressed at such time. Zelaya v. J.M. Macias, Inc., 175 F.R.D. 625 (E.D.N.C. 1997).

Defendant employer's contention that plaintiffs' payday claim failed because plaintiffs had not established that the employer contracted to pay plaintiffs for the time plaintiffs spent engaging in such activities as changing into and out of protective gear, walking to and from work stations and waiting at work stations for production lines to start, failed; if the court interpreted G.S. 95-25.6 as requiring plaintiffs to prove that their employer expressly agreed to pay them for particular services performed (such as changing into and out of protective gear required by the employer), an employer would be able to avoid payment of any wages to his employees by simply claiming that the services rendered, although for the benefit of the employer, were something other than "work." Martinez-Hernandez v. Butterball, LLC, 578 F. Supp. 2d 816 (E.D.N.C. Sept. 2, 2008).

In a former pastor's action alleging a violation of the North Carolina Wage and Hour Act, the trial court erred in granting a church's motion to dismiss for failure to state a claim upon which relief could be granted because the pastor's allegations that the contractually promised "salary" constituted wages and that the church wrongfully failed to pay that salary sufficiently alleged a claim under the Act. Bigelow v. Sassafras Grove Baptist Church, 247 N.C. App. 401, 786 S.E.2d 358 (2016).

Defendant's Motion for Summary Judgment. - Trial court's order granting defendants' motion for summary judgment on the North Carolina Wage and Hour Act claim was vacated because the language of the contract was ambiguous and genuine issues of material fact existed as to which iteration of the Consumer Price Index should be used. Meehan v. Am. Media Int'l, LLC, 214 N.C. App. 245, 712 S.E.2d 904 (2011).

The trial court did not err in allowing the plaintiff to amend his complaint to state a violation of the Act where the defendants clearly failed to pay him commissions earned as required by this section and G.S. 95-25.7; and where the plaintiff raised the violation in the pretrial order which defendants signed and, thereby, put them on notice of the claims against them, negating a claim of prejudice as a result of the amendment. Fulk v. Piedmont Music Ctr., 138 N.C. App. 425, 531 S.E.2d 476 (2000).

Exemption Did Not Apply to Wage Payment Claim. - Temporary employment agency was not exempt from the North Carolina Wage and Hour Laws Act (NCWHA) pursuant to G.S. 95-25.14(a), because that section, which provided exemptions to employers from the NCWHA in limited circumstances, did not apply to G.S. 95-25.6 and G.S. 95-25.8, the sections of the NCWHA covering wage payment and withholding of wages, and those were the sections of the NCWHA under which plaintiffs' claims arose. Whitehead v. Sparrow Enter., 167 N.C. App. 178, 605 S.E.2d 234 (2004), cert. denied, 359 N.C. 856, 618 S.E.2d 240 (2005).

In a former pastor's action alleging a violation of the North Carolina Wage and Hour Act, the trial court erred in granting a church's motion to dismiss for failure to state a claim upon which relief could be granted because the ministerial exception did not apply; the pastor's complaint did not challenge the church's decision to terminate his employment but instead sought to enforce a contractual obligation regarding his compensation and benefits. Bigelow v. Sassafras Grove Baptist Church, 247 N.C. App. 401, 786 S.E.2d 358 (2016).

Ecclesiastical Abstention Doctrine Inapplicable. - In a former pastor's action alleging a violation of the North Carolina Wage and Hour Act, the trial court erred in granting a church's motion to dismiss for failure to state a claim upon which relief could be granted because the ecclesiastical abstention doctrine did not require dismissal; a court could decide the pastor's contract-based claims applying "neutral principles of law" without entangling the court in an ecclesiastical dispute or interpretation since they required a secular decision. Bigelow v. Sassafras Grove Baptist Church, 247 N.C. App. 401, 786 S.E.2d 358 (2016).

Action Not Preempted by Fair Labor Standards Act. - Plaintiffs' class action alleging violations of the North Carolina Wage and Hour Act was remanded to state court because the employer failed to establish federal question jurisdiction because the Fair Labor Standards Act (FLSA) did not completely preempt state law and the employee specifically denied that the claims implicated the requirement in G.S. 95-25.3(f) that no employee's tips could be reduced by more than 15 percent under a tip-pooling arrangement. Chandler v. Cheesecake Factory Rests., Inc., 239 F.R.D. 432 (M.D.N.C. 2006).

Employees Entitled to Severance Payments and Benefits Upon Termination of Employment Agreements. - Employees were entitled to judgment on the pleadings on their claims against a bank under the North Carolina Wage and Hour Act because their employment agreements provided that the employees were entitled to severance payments and benefits in the event the agreements were terminated, and the bank violated the Act by failing to provide the payments and benefits. Washburn v. Yadkin Valley Bank & Trust Co., 190 N.C. App. 315, 660 S.E.2d 577 (2008), review denied, 363 N.C. 139, 674 S.E.2d 422 (2009).

Failure to Pay for Waiting and Travel Time. - Temporary agency did not violate G.S. 95-25.6, even though its employees were not paid for the time spent waiting for and traveling to work sites as the employees' contracts provided that they would be paid for time spent working at the job site. Hyman v. Efficiency, Inc., 167 N.C. App. 134, 605 S.E.2d 254 (2004), cert. denied, 359 N.C. 851, 618 S.E.2d 239 (2005).

Temporary employment agency did not violate G.S. 95.25.6 by not compensating employees for time spent waiting for work assignments and time spent traveling to a job site; the agency's "house rules," which all employees signed, specifically stated that arriving early to wait to be assigned a job, which would improve a worker's chances of employment, was completely optional and that waiting time and travel time was not compensable work time. Whitehead v. Sparrow Enter., 167 N.C. App. 178, 605 S.E.2d 234 (2004), cert. denied, 359 N.C. 856, 618 S.E.2d 240 (2005).

Class Certified. - Class certification for the claims brought under G.S. 95-25.6 was granted because common questions of law predominated because the same operative facts underlying the employer's alleged refusal to pay production workers for all time spent donning, doffing, cleaning their personal protective equipment, and walking and waiting associated with these tasks, also formed the basis of the North Carolina Wage and Hour Act (NCWHA), G.S. 95-25.1 et seq., claims. Romero v. Mountaire Farms, Inc., 796 F. Supp. 2d 700 (E.D.N.C. 2011).

Cited in Zelaya v. J.M. Macias, Inc., 999 F. Supp. 778 (E.D.N.C. 1998); Arndt v. First Union Nat'l Bank, 170 N.C. App. 518, 613 S.E.2d 274 (2005); Garcia v. Frog Island Seafood, Inc., 644 F. Supp. 2d 696 (E.D.N.C. 2009).


§ 95-25.7. Payment to separated employees.

Employees whose employment is discontinued for any reason shall be paid all wages due on or before the next regular payday either through the regular pay channels or by trackable mail if requested by the employee in writing. Wages based on bonuses, commissions or other forms of calculation shall be paid on the first regular payday after the amount becomes calculable when a separation occurs. Such wages may not be forfeited unless the employee has been notified in accordance with G.S. 95-25.13 of the employer's policy or practice which results in forfeiture. Employees not so notified are not subject to such loss or forfeiture.

History

(1975, c. 413, s. 4; 1979, c. 839, s. 1; 1981, c. 663, s. 1; 1993, c. 214, s. 1; 2021-82, s. 6.)

Effect of Amendments. - Session Laws 2021-82, s. 6, effective July 8, 2021, inserted "trackable” preceding "mail”, and substituted "employee in writing” for "employee” in the first sentence.

CASE NOTES

Section Preempted by ERISA. - Regulation of severance pay under ERISA, the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq., preempts this section and any state cause of action under common law insofar as such claim "relates to" an employee benefit plan covered by ERISA. Holland v. Burlington Indus., Inc., 772 F.2d 1140 (4th Cir. 1985), aff'd sub nom. Brooks v. Burlington Indus., Inc., 477 U.S. 901, 106 S. Ct. 3267, 91 L. Ed. 2d 559, cert. denied, 477 U.S. 903, 106 S. Ct. 3271, 91 L. Ed. 2d 562 (1986).

Bonus. - Employee performed everything that was required of the employee as a prerequisite for a bonus pursuant to G.S. 95-25.7, by scouting out available properties, determining which properties might be a good investment, performing required due diligence, closing the sale, and handling improvements and leasing of the properties; the properties had increased in value sufficient to create a profit giving rise to a bonus. Kornegay v. Aspen Asset Group, LLC, 204 N.C. App. 213, 693 S.E.2d 723 (2010).

Forfeiture of Bonus upon Termination of Employment. - Where plaintiff's employment was terminated before the end of the plan year and Defendant refused to pay any bonus, although there was no notification to plaintiff that termination of his employment could result in forfeiture of his bonus, the decision to require forfeiture of the bonus did not constitute a change in the plan; therefore, no notice was required. McCullough v. Branch Banking & Trust Co., 136 N.C. App. 340, 524 S.E.2d 569 (2000).

Employees Entitled to Severance Payments and Benefits Upon Termination of Employment Agreements. - Employees were entitled to judgment on the pleadings on their claims against a bank under the North Carolina Wage and Hour Act because their employment agreements provided that the employees were entitled to severance payments and benefits in the event the agreements were terminated, and the bank violated the Act by failing to provide the payments and benefits. Washburn v. Yadkin Valley Bank & Trust Co., 190 N.C. App. 315, 660 S.E.2d 577 (2008), review denied, 363 N.C. 139, 674 S.E.2d 422 (2009).

The trial court did not err in allowing the plaintiff to amend his complaint to state a violation of the Act where the defendants clearly failed to pay him commissions earned as required by G.S. 95-25.6 and this section; and where the plaintiff raised the violation in the pretrial order which defendants signed and, thereby, put them on notice of the claims against them, negating a claim of prejudice as a result of the amendment. Fulk v. Piedmont Music Ctr., 138 N.C. App. 425, 531 S.E.2d 476 (2000).

Province of Jury. - Question of calculability under the North Carolina Wage and Hour Act, G.S. 95-25.7, is properly presented to the jury for review as it requires a weighing of the evidence and, thus, falls in a jury trial within the exclusive purview of the jury. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013).

Former employee presented more than a scintilla of evidence in support of his position that he earned the $675,000 in issuance bonuses under the employer's bonus policy and the conflicting evidence offered by the parties was enough, on its own, to allow the matter to go to the jury. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013).

Former employee's formula to calculate the bonus due to him was adequate to submit to the jury the question of whether the issuance bonuses owed were calculable under the North Carolina Wage and Hour Act, G.S. 95-25.2, as the formula offered was at least one reasonable way to calculate those bonuses, and the evidence relied on for that formula was supported in the record. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013).

Liquidated Damages Properly Awarded. - Based upon the plain language of the North Carolina Wage and Hour Act (NCWHA), the unpaid amounts due under G.S. 95-25.7 were a doctor's wages as defined by G.S. 95-25.2(16). Consequently, the fact that the employer could withhold or divert a portion of the doctor's wages in accordance with state and federal law did not change the fact that they were unpaid amounts which the employer should have paid out, either directly to the employee or for the employee's benefit, but for the violation of the NCWHA. Harper v. Vohra Wound Physicians of NY, - N.C. App. - , 841 S.E.2d 580 (2020).

Applied in Rucker v. First Union Nat'l Bank, 98 N.C. App. 100, 389 S.E.2d 622 (1990).

Cited in Hamilton v. Memorex Telex Corp., 118 N.C. App. 1, 454 S.E.2d 278 (1995); Buchanan v. Fairfield Resorts, Inc., - F. Supp. 2d - (M.D.N.C. Nov. 25, 2005).


§ 95-25.7A. Wages in dispute.

  1. If the amount of wages is in dispute, the employer shall pay the wages, or that part of the wages, which the employer concedes to be due without condition, within the time set by this Article. The employee retains all remedies that the employee might otherwise be entitled to regarding any balance of wages claimed by the employee, including those remedies provided under this Article.
  2. Acceptance of a partial payment of wages under this section by an employee does not constitute a release of the balance of the claim. Further, any release of the claim required by an employer as a condition of partial payment is void.

History

(1989, c. 687, s. 1.)

§ 95-25.8. Withholding of wages.

  1. An employer may withhold or divert any portion of an employee's wages when:
    1. The employer is required or empowered to do so by State or federal law;
    2. When the amount or rate of the proposed deduction is known and agreed upon in advance, the employer must have written authorization from the employee which (i) is signed on or before the payday(s) for the pay period(s) from which the deduction is to be made; (ii) indicates the reason for the deduction; and (iii) states the actual dollar amount or percentage of wages which shall be deducted from one or more paychecks. Provided, that if the deduction is for the convenience of the employee, the employee shall be given a reasonable opportunity to withdraw the authorization; or
    3. When the amount of the proposed deduction is not known and agreed upon in advance, the employer must have written authorization from the employee which (i) is signed on or before the payday(s) for the pay period(s) from which the deduction is to be made; and (ii) indicates the reason for the deduction. Prior to any deductions being made under this section, the employee must (i) receive advance written notice of the actual amount to be deducted; (ii) receive written notice of their right to withdraw the authorization; and (iii) be given a reasonable opportunity to withdraw the authorization in writing.
  2. The withholding or diversion of wages owed for the employer's benefit must comply with the following requirements:
    1. In nonovertime workweeks, an employer may reduce wages to the minimum wage level.
    2. In overtime workweeks, employers may reduce wages to the minimum wage level for nonovertime hours.
    3. No reductions may be made to overtime wages owed.
  3. In addition to complying with the requirements in subsections (a) and (b) of this section, an employer may withhold or divert a portion of an employee's wages for cash shortages, inventory shortages, or loss or damage to an employer's property after giving the employee written notice of the amount to be deducted seven days prior to the payday on which the deduction is to be made, except that when a separation occurs the seven-day notice is not required.
  4. Notwithstanding subsections (a) and (b), above, an overpayment of wages to an employee as a result of a miscalculation or other bona fide error, advances of wages to an employee or to a third party at the employee's request, and the principal amount of loans made by an employer to an employee are considered prepayment of wages and may be withheld or deducted from an employee's wages. Deductions for interest and other charges related to loans by an employer to an employee shall require written authorization in accordance with subsection (a), above.
  5. Notwithstanding subsections (a) and (c), above, if criminal process has issued against an employee, an employee has been indicted, or an employee has been arrested pursuant to Articles 17, 20, and 32 of Chapter 15A of the General Statutes for a charge incident to a cash shortage, inventory shortage, or damage to an employer's property, an employer may withhold or divert a portion of the employee's wages in order to recoup the amount of the cash shortage, inventory shortage, or damage to the employer's property, without the written authorization required by this section, but the amount of such withholdings shall comply with the provisions of subsection (b) of this section. If the employee is not found guilty, then the amount deducted shall be reimbursed to the employee by the employer.
  6. For purposes of this section, a written authorization or written notice may be in the form of an electronic record in compliance with Article 40 of Chapter 66 (the Uniform Electronic Transactions Act).
  7. Nothing in this Article shall preclude an employer from bringing a civil action in the General Court of Justice to collect any amounts due the employer from the employee.

History

(1975, c. 413, s. 6; 1979, c. 839, s. 1; 1981, c. 663, s. 2; 2005-453, s. 16.)

Effect of Amendments. - Session Laws 2005-453, s. 16, effective October 1, 2005, rewrote this section, adding subsections (b) through (g).

CASE NOTES

Exemption Did Not Apply to Withholding of Wages Claim. - Temporary employment agency was not exempt from the North Carolina Wage and Hour Laws Act (NCWHA) pursuant to G.S. 95-25.14(a), because that section, which provided exemptions to employers from the NCWHA in limited circumstances, did not apply to G.S. 95-25.6 and G.S. 95-25.8, the sections of the NCWHA covering wage payment and withholding of wages, and those were the sections of the NCWHA under which plaintiffs' claims arose. Whitehead v. Sparrow Enter., 167 N.C. App. 178, 605 S.E.2d 234 (2004), cert. denied, 359 N.C. 856, 618 S.E.2d 240 (2005).

Optional transportation service offered by a temporary employment agency fell within the category of "other facilities" and could be counted towards wages; therefore, the agency properly deducted the associated transportation cost from the class members' paychecks in compliance with G.S. 95-25.8 and N.C. Admin. Code tit. 13, r. 12.0305. Whitehead v. Sparrow Enter., 167 N.C. App. 178, 605 S.E.2d 234 (2004), cert. denied, 359 N.C. 856, 618 S.E.2d 240 (2005).

Wage deductions for van transportation and safety equipment were permissible under G.S. 95-25.8 where the authorization forms were in writing, signed prior to the deductions, dated, and stated the reason for and amounts of the deductions, the deductions were not taken if the day laborers did not use the temporary agencies' van transportation, and an increase in the equipment rental fees was clearly posted. Leverette v. Labor Works Int'l, LLC, 180 N.C. App. 102, 636 S.E.2d 258 (2006).

Specific Authorization for Deduction of Transportation Expenses. - Daily log of a temporary agency giving the agency authorization to deduct an optional transportation expense from its employees' wages, which stated the specific amount of the deduction, was a specific authorization under G.S. 95-25.8(2)(a) where the daily log was written, signed by the employees on or before the payday for the pay period for which the deduction was made, included the date signed, and stated the reason for the deduction. Hyman v. Efficiency, Inc., 167 N.C. App. 134, 605 S.E.2d 254 (2004), cert. denied, 359 N.C. 851, 618 S.E.2d 239 (2005).

Temporary employment agency's form, entitled "House Rules," which all employees had to read and sign and that provided that anyone choosing to accept transportation from the agency to a job site would be charged $1.00 and that such amount would be deducted from the employees' pay if he elected transportation, qualified as a specific authorization for deductions under G.S. 95-25.8(2)(a). Whitehead v. Sparrow Enter., 167 N.C. App. 178, 605 S.E.2d 234 (2004), cert. denied, 359 N.C. 856, 618 S.E.2d 240 (2005).

Failure to obtain authorization. - Although an employer argued that it substantially complied with the requirements of G.S. 95-25.8, the employer was liable because it conceded that it failed to comply with the technical requirements of § 95-25.8(c) by not getting seven days' advance authorization for deductions. Garcia v. Frog Island Seafood, Inc., 644 F. Supp. 2d 696 (E.D.N.C. 2009).

Preempted By ERISA. - Because plaintiff's claim under G.S. 95-25.8 sought benefits allegedly due under a severance pay plan, the claim was exclusively governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.S. § 1001 et seq., and ERISA completely preempted the claim. Buchanan v. Fairfield Resorts, Inc., - F. Supp. 2d - (M.D.N.C. Nov. 25, 2005).

Applied in Strickland v. MICA Info. Sys., 800 F. Supp. 1320 (M.D.N.C. 1992).

§§ 95-25.9, 95-25.10: Repealed by Session Laws 2005-453, ss. 17 and 18, effective October 1, 2005.

§ 95-25.11. Employers' remedies preserved.

  1. Repealed by Session Laws 2005-453, s. 19.
  2. Nothing in this Article shall preclude an employer from bringing a civil action in the General Court of Justice to collect any amounts due the employer from the employee.

History

(1979, c. 839, s. 1; 1981, c. 663, s. 5; 2005-453, s. 19.)

Effect of Amendments. - Session Laws 2005-453, s. 19, effective October 1, 2005, deleted former subsection (a) which read:

"(a) The provisions of G.S. 95-25.8, G.S. 95-25.9, and G.S. 95-25.10 do not apply if criminal process has issued against the employee, if the employee has been indicted, or if the employee has been arrested pursuant to Articles 17, 20, and 32 of Chapter 15A of the General Statutes for a charge incident to a cash shortage, inventory shortage, or damage to an employer's property.

"If the employee is not found guilty, then the amount deducted shall be reimbursed to the employee by the employer."

CASE NOTES

Cited in Clark v. B.H. Holland Co., 852 F. Supp. 1268 (E.D.N.C. 1994).

§ 95-25.12. Vacation pay plans.

No employer is required to provide vacation pay plans for employees. However, if an employer provides these promised benefits for employees, the employer shall give all vacation time off or payment in lieu of time off in accordance with the company policy or practice. Employees shall be notified in accordance with G.S. 95-25.13 of any policy or practice which requires or results in loss or forfeiture of vacation time or pay. Employees not so notified are not subject to such loss or forfeiture.

History

(1979, c. 839, s. 1; 1981, c. 663, s. 6; 2005-453, s. 20.)

Effect of Amendments. - Session Laws 2005-453, s. 20, effective October 1, 2005, added "plans" to the end of the section heading; inserted "pay plans" preceding "for employees" in the first sentence; and substituted "these promised benefits" for "vacation" in the second sentence.

Legal Periodicals. - For article, "North Carolina Employment Case Law: Contract Principles Abandoned," 25 N.C. Cent. L.J. 163 (2003).

CASE NOTES

This Article requires an employer to notify an employee in advance of the wages and hours which he will earn and the conditions which must be met to earn them, and to pay such wages and benefits as are due when the employee has actually performed the work required to earn them. Once the employee has earned the wages and benefits under this statutory scheme, the employer is prevented from rescinding them, with the exception that for certain benefits such as commissions, bonuses and vacation pay, an employer may cause a loss or forfeiture of such pay if he has notified the employee of the conditions for loss or forfeiture in advance of the time when the pay is earned. Narron v. Hardee's Food Systems, 75 N.C. App. 579, 331 S.E.2d 205, cert. denied, 314 N.C. 542, 335 S.E.2d 316 (1985).

The vacation pay due an employee at the termination of his employment is not controlled solely by the employer's vacation policy in effect at the time of termination. If the employee earned and accumulated vacation under a vacation policy which did not provide for forfeiture of unused vacation, this Article would dictate that he receive all vacation pay earned prior to the employer's change of personnel policy with regard thereto. Narron v. Hardee's Food Sys., 75 N.C. App. 579, 331 S.E.2d 205, cert. denied, 314 N.C. 542, 335 S.E.2d 316 (1985).

A claim for vacation pay pursuant to this Article is not preempted by federal law, the United States Supreme Court having recently held that an employer's policy of paying discharged employees vacation pay for unused vacation time does not constitute an "employee welfare benefit plan" within the meaning of the Employment Retirement Income and Security Act of 1974 (ERISA), as amended, 29 U.S.C. § 1001 et seq. Rucker v. First Union Nat'l Bank, 98 N.C. App. 100, 389 S.E.2d 622, cert. denied, 324 N.C. 138, 394 S.E.2d 454 (1990).

Cited in Peoples Sec. Life Ins. Co. v. Hooks, 320 N.C. App. 794, 357 S.E.2d 411 (1987); Hamilton v. Memorex Telex Corp., 118 N.C. App. 1, 454 S.E.2d 278 (1995).


§ 95-25.13. Notification, posting, and records.

Every employer shall do all of the following:

  1. Notify its employees, in writing at the time of hiring, of the promised wages and the day and place for payment.
  2. Make available to its employees, in writing or through a posted notice maintained in a place accessible to its employees, employment practices and policies with regard to promised wages.
  3. Notify employees, in writing, at least one pay period prior to any changes in promised wages. Wages may be retroactively increased without the prior notice required by this subsection.
  4. Furnish each employee with an itemized statement of deductions made from that employee's wages under G.S. 95-25.8 for each pay period such deductions are made.

History

(1975, c. 413, s. 7; 1979, c. 839, s. 1; 1981, c. 663, s. 12; 1993, c. 203, s. 1; 2005-453, s. 21; 2021-82, s. 7.)

Effect of Amendments. - Session Laws 2005-453, s. 21, effective October 1, 2005, rewrote subdivision (3).

Session Laws 2021-82, s. 7, effective July 8, 2021, inserted "do all of the following” in the introductory paragraph; deleted "orally or” preceding "in writing” in subdivision (1); substituted "writing, at least one pay period” for "writing or through a posted notice maintained in a place accessible to its employees, at least 24 hours” in subdivision (3); and made stylistic changes throughout.

Legal Periodicals. - For article, "North Carolina Employment Case Law: Contract Principles Abandoned," 25 N.C. Cent. L.J. 163 (2003).

CASE NOTES

Change to Wages Without Notification. - In this breach of contract and North Carolina Wage and Hour Act action, defendant was denied summary judgment because there was no evidence that defendant provided any written or posted notice to plaintiff about a change to his promised wages; it appeared that defendant simply stopped paying the "guaranteed compensation" of $11,000.00 per month to plaintiff starting in or about January 2009. Ken E. Church & Ken E. Church Enters., LLC v. Home Fashions Int'l, LLC, 879 F. Supp. 2d 498 (W.D.N.C. 2012), aff'd., 2013 U.S. App. LEXIS 13734 (4th Cir. N.C. 2013).

Forfeiture of Bonus upon Termination of Employment. - Where plaintiff's employment was terminated before the end of the plan year and defendant refused to pay any bonus, although there was no notification to plaintiff that termination of his employment could result in forfeiture of his bonus, the decision to require forfeiture of the bonus did not constitute a change in the plan; therefore, no notice was required. McCullough v. Branch Banking & Trust Co., 136 N.C. App. 340, 524 S.E.2d 569 (2000).

Amendment of Annual Bonus That Had Not Yet Accrued. - Employee's North Carolina Wage and Hour Act claim was denied because the employee's annual bonus had not accrued at the time of a change in the employer's allocation plan and, thus, there was no violation of G.S. 95-25.13(3), because, under the employee's contract, the amount to which any member of the division of her employer in which she worked was entitled to as a bonus was not calculable until the end of the plan year; thus, no definite sum had accrued to the employee at the time the change was made. Moses H. Cone Mem'l Health Servs. Corp. v. Triplett, 167 N.C. App. 267, 605 S.E.2d 492 (2004).

Amendment of Annual Bonus Without Notice. - Employee was entitled to an award under the North Carolina Wage and Hour Act, G.S. 95-25.1 et seq., because: (1) the employers' representative orally agreed to pay the employee an annual bonus as part of a contract; (2) the employers modified the employee's bonus formula without his consent; and (3) the employers also failed to give the employee notice of the change in the bonus formula. Arndt v. First Union Nat'l Bank, 170 N.C. App. 518, 613 S.E.2d 274 (2005).

Sufficient Evidence to Support Liquidated Damages Award for Failure to Give Notice. - Employer's failure to provide a former employee with notice of the change in his bonus plan constituted sufficient evidence to support the trial court's finding that the employer did not act in good faith or with objective reasonableness and, therefore, justified the business court's award of liquidated damages in the case. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013).

Cited in Narron v. Hardee's Food Sys., 75 N.C. App. 579, 331 S.E.2d 205 (1985); Kornegay v. Aspen Asset Group, LLC, 204 N.C. App. 213, 693 S.E.2d 723 (2010).


§ 95-25.14. Exemptions.

  1. The provisions of G.S. 95-25.3 (Minimum Wage), G.S. 95-25.4 (Overtime), and G.S. 95-25.5 (Youth Employment), and the provisions of G.S. 95-25.15(b) (Record Keeping) as they relate to these exemptions, do not apply to:
    1. Any person employed in an enterprise engaged in commerce or in the production of goods for commerce as defined in the Fair Labor Standards Act:
      1. Except as otherwise specifically provided in G.S. 95-25.5;
      2. Notwithstanding the above, any employee other than a learner, apprentice, student, or handicapped worker as defined in the Fair Labor Standards Act who is not otherwise exempt under the other provisions of this section, and for whom the applicable minimum wage under the Fair Labor Standards Act is less than the minimum wage provided in G.S. 95-25.3, is not exempt from the provisions of G.S. 95-25.3 or G.S. 95-25.4;
      3. Notwithstanding the above, any employer or employee exempt from the minimum wage, overtime, or child labor requirements of the Fair Labor Standards Act for whom there is no comparable exemption under this Article shall not be exempt under this subsection except that where an exemption in the Fair Labor Standards Act provides a method of computing overtime which is an alternative to the method required in 29 U.S.C.S. § 207(a), the employer or employee subject to that alternate method shall be exempt from the provisions of G.S. 95-25.4(a); provided that, persons not employed at an enterprise described in subdivision (1) of this subsection shall also be subject to the same alternative methods of overtime calculation in the circumstances described in the Fair Labor Standards Act exemptions providing those alternative methods;
    2. Any person employed in agriculture, as defined under the Fair Labor Standards Act;
    3. Any person employed as a domestic, including baby sitters and companions, as defined under the Fair Labor Standards Act;
    4. Any person employed as a page in the North Carolina General Assembly or in the Governor's Office;
    5. Bona fide volunteers in medical, educational, religious, or nonprofit organizations where an employer-employee relationship does not exist;
    6. Persons confined in and working for any penal, correctional or mental institution of the State or local government;
    7. Any person employed as a model, or as an actor or performer in motion pictures or theatrical, radio or television productions, as defined under the Fair Labor Standards Act, except as otherwise specifically provided in G.S. 95-25.5;
    8. Any person employed by an outdoor drama in a production role, including lighting, costumes, properties and special effects, except as otherwise specifically provided in G.S. 95-25.5; but this exemption does not include such positions as office workers, ticket takers, ushers and parking lot attendants.
  2. The provisions of G.S. 95-25.3 (Minimum Wage) and G.S. 95-25.4 (Overtime), and the provisions of G.S. 95-25.15(b) (Record Keeping) as they relate to these exemptions, do not apply to:
    1. Any employee of a boys' or girls' summer camp or of a seasonal religious or nonprofit educational conference center;
    2. Any person employed in the catching, processing or first sale of seafood, as defined under the Fair Labor Standards Act;
    3. The spouse, child, or parent of the employer or any person qualifying as a dependent of the employer under the income tax laws of North Carolina;
    4. Any person employed in a bona fide executive, administrative, professional or outside sales capacity, as defined under the Fair Labor Standards Act;
    5. Repealed by Session Laws 1989, c. 687, s. 2.
    6. Any person while participating in a ridesharing arrangement as defined in G.S. 136-44.21;
    7. Any person who is employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, as defined in the Fair Labor Standards Act.
  3. The provisions of G.S. 95-25.3 (Minimum Wage) and G.S. 95-25.4 (Overtime), and the provisions of G.S. 95- 25.15(b) (Record Keeping) as they relate to the exemptions provided for in this subsection, do not apply to any of the following:
    1. Hours worked as a bona fide volunteer firefighter in an incorporated, nonprofit volunteer or community fire department.
    2. Hours worked as a bona fide volunteer rescue and emergency medical services personnel in an incorporated, nonprofit volunteer or community fire department, or an incorporated, nonprofit rescue squad.
  4. The provisions of G.S. 95-25.4 (Overtime), and the provisions of G.S. 95-25.15(b) (Record Keeping) as they relate to this exemption, do not apply to:
    1. Drivers, drivers' helpers, loaders and mechanics, as defined under the Fair Labor Standards Act;
    2. Taxicab drivers;
    3. Seamen, employees of railroads, and employees of air carriers, as defined under the Fair Labor Standards Act;
    4. Salespersons, mechanics and partsmen employed by automotive, truck, and farm implement dealers, as defined under the Fair Labor Standards Act;
    5. Salespersons employed by trailer, boat, and aircraft dealers, as defined under the Fair Labor Standards Act;
    6. Live-in child care workers or other live-in employees in homes for dependent children;
    7. Radio and television announcers, news editors, and chief engineers, as defined under the Fair Labor Standards Act.
    8. Any employee of a seasonal amusement or recreational establishment.
  5. The provisions of this Article do not apply to the State of North Carolina, any city, town, county, or municipality, or any State or local agency or instrumentality of government, except for the following provisions, which do apply:
    1. The minimum wage provisions of G.S. 95-25.3;
    2. The definition provisions of G.S. 95-25.2 necessary to interpret the applicable provisions;
    3. The exemptions of subsections (a) and (b) of this section;
    4. The complainant protection provisions of G.S. 95-25.20.
  6. Employment in a seasonal recreation program by the State of North Carolina, any city, town, county, or municipality, or any State or local agency or instrumentality of government, is exempt from all provisions of this Article, including G.S. 95-25.3 (Minimum Wage).

Hours worked in accordance with this subsection shall not be considered hours worked for purposes of G.S. 95-25.3 or G.S. 95-25.4.

History

(1937, c. 406; c. 409, s. 3; 1939, c. 312, s. 1; 1943, c. 59; 1947, c. 825; 1949, c. 1057; 1959, cc. 475, 629; 1961, cc. 602, 1070; 1963, c. 1123; 1965, c. 724; 1967, c. 998; 1973, c. 600, s. 1; 1975, c. 19, s. 26; c. 413, s. 2; 1977, c. 146; 1979, c. 839, s. 1; 1981, c. 493, s. 2; c. 606, s. 2; c. 663, s. 7; 1983, c. 708, s. 2; 1989, c. 687, s. 2; 1991, c. 330, s. 3; 1993, c. 214, s. 2; 1995, c. 509, s. 47; 1997-146, s. 2; 2002-113, s. 2; 2017-185, s. 3(a).)

Effect of Amendments. - Session Laws 2017-185, s. 3(a), effective January 1, 2018, added subdivision (c)(8).

Legal Periodicals. - For 1997 legislative survey, see 20 Campbell L. Rev. 389 (1998).

CASE NOTES

No Recovery of Attorneys' Fees from City. - In view of this section, which explicitly exempts this State and any city, town or municipality from the application of Article 2A of this Chapter, G.S. 95-25.22(d), relating to the recovery of attorneys' fees, had no application to plaintiff who sought to compel city to pay him for stand-by duty worked for the city police department, and the trial court was in error in awarding such fees. Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125 (1986), cert. denied and appeal dismissed, 319 N.C. 225, 353 S.E.2d 402 (1987).

Construction with Federal Law. - Where employer-employee relationship at issue was covered by the Fair Labor Standards Act, it was exempt from the provisions of the North Carolina Wage and Hour Act. Spencer v. Hyde County, 959 F. Supp. 721 (E.D.N.C. 1997).

Summary judgment was denied to both plaintiff welding instructor and defendant college, as material issues of fact remained as to whether the instructor was entitled to overtime pay under the Fair Labor Standards Act, 29 U.S.C.S. § 201, et seq., or was exempted as a professional employee under 29 U.S.C.S. § 213 and G.S. 95-25.14(b)(4). Massie v. Bd. of Trs., 357 F. Supp. 2d 878 (W.D.N.C. 2005).

Employees' contention that the exemption in G.S. 95-25.14(a) did not apply because of language in G.S. 95-25.14(a)(1)(b) failed. The State minimum wage rate of $6.15 per hour (which was higher than the federal minimum) was not in effect during the period that plaintiffs were employed by the employer. Simmons v. United Mortg. & Loan Inv., LLC, - F. Supp. 2d - (W.D.N.C. May 30, 2008).

Exemption of Employers Engaged in Production of Goods for Commerce. - Under G.S. 95-25.14(a)(1) of the North Carolina Wage and Hour Act, an employee was not entitled to compensation for time that he alleged he worked as overtime because his employer was exempt from the overtime requirement under the Act as an enterprise engaged in the production of goods for commerce. Jones v. Philip Morris USA, Inc., - F. Supp. 2d - (M.D.N.C. Apr. 8, 2004).

Exemption Did Not Apply to Wage Payment and Withholding of Wages Claims. - Temporary employment agency was not exempt from the North Carolina Wage and Hour Laws Act (NCWHA) pursuant to G.S. 95-25.14(a), because that section, which provided exemptions to employers from the NCWHA in limited circumstances, did not apply to G.S. 95-25.6 and G.S. 95-25.8, the sections of the NCWHA covering wage payment and withholding of wages, and those were the sections of the NCWHA under which plaintiffs' claims arose. Whitehead v. Sparrow Enter., 167 N.C. App. 178, 605 S.E.2d 234 (2004), cert. denied, 359 N.C. 856, 618 S.E.2d 240 (2005).

Cited in Thornton v. Thornton, 45 N.C. App. 25, 262 S.E.2d 326 (1980); Golden v. Register, 50 N.C. App. 650, 274 S.E.2d 892 (1981); Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992); State v. Frazier, 142 N.C. App. 207, 541 S.E.2d 800 (2001); Chandler v. Cheesecake Factory Rests., Inc., 239 F.R.D. 432 (M.D.N.C. 2006).


§ 95-25.15. Investigations and inspection of records; notice of law.

  1. The Commissioner or his designated representative shall have the power and authority to enter any place of employment and gather such facts as are essential to determine whether or not the employer is covered by any provision of this Article.
  2. Except as otherwise provided in this Article, every employer subject to any provision of this Article shall make, keep, and preserve such records of the persons employed by the employer, including the ages of employees, and of the wages, hours, and other conditions and practices of employment which are essential to the enforcement of this Article and are prescribed by regulation of the Commissioner, except that the Commissioner shall have no authority to prescribe records for the State of North Carolina, a city, town, county or other municipality or agency or instrumentality of government.
  3. A poster summarizing the major provisions of this Article shall be displayed in every establishment subject to this Article. This poster shall also include notice indicating the following in plain language:
    1. Any worker who is defined as an employee by either G.S. 95-25.2(4), 143-786(a)(3), 96-1(b)(10), 97-2(2), or 105-163.1(4) shall be treated as an employee unless the individual is an independent contractor.
    2. Any employee who believes that the employee has been misclassified as an independent contractor by the employee's employer may report the suspected misclassification to the Employee Classification Section within the Industrial Commission.
    3. The physical location, mailing address, telephone number, and e-mail address where alleged incidents of employee misclassification occurred may be reported to the Employee Classification Section within the Industrial Commission.

With respect to any provision of this Article under which the employer is covered, the Commissioner or the Commissioner's designated representative may inspect such places and such records, make transcriptions of any and all such records, question employees and investigate such facts, conditions, practices, or matters as are necessary to determine whether the employer has violated said provision of this Article.

With respect to the provisions of G.S. 95-25.6 through 95-25.12 (Wage Payment) as those provisions apply to persons covered by the Fair Labor Standards Act, the Commissioner or his designated representative shall have no authority under this subsection unless the Commissioner or his designated representative has received a complaint from an employee of the covered establishment.

History

(1937, c. 317, ss. 5, 19; 1959, c. 475; 1971, c. 1231, s. 2; 1973, c. 649, s. 4; 1975, c. 413, ss. 7, 9; 1979, c. 839, s. 1; 2005-453, s. 22; 2009-351, s. 2; 2017-203, s. 3.)

Cross References. - As to exemptions from subsection (b) of this section, see G.S. 95-25.14.

Effect of Amendments. - Session Laws 2005-453, s. 22, effective October 1, 2005, substituted "the Commissioner's" for "his" in the second paragraph of subsection (a); and deleted "and then shall investigate that specific complaint only" at the end of the third paragraph of subsection (a).

Session Laws 2017-203, s. 3, effective December 31, 2017, added the last sentence in subsection (c) and subdivisions (c)(1)-(3).

CASE NOTES

Cited in Chandler v. Cheesecake Factory Rests., Inc., 239 F.R.D. 432 (M.D.N.C. 2006); Simmons v. United Mortg. & Loan Inv., LLC, - F. Supp. 2d - (W.D.N.C. May 30, 2008).

§ 95-25.16. Enforcement.

  1. The Commissioner shall enforce and administer the provisions of this Article, and the Commissioner or his authorized representative is empowered to hold hearings and to institute criminal and civil proceedings hereunder.
  2. The Commissioner or his authorized representative shall have power to administer oaths and examine witnesses, issue subpoenas, compel the attendance of witnesses and the production of papers, books, accounts, records, payrolls, documents, and take depositions and affidavits in any proceeding hereunder.
  3. The Commissioner is empowered to enter into reciprocal agreements with the labor department or corresponding agency of any other state or with the person, board, officer, or commission authorized to act on behalf of the department or agency, for the collection in the other state of claims and judgments for wages based upon investigations and findings made by the Commissioner or his authorized representative.
  4. Subsection (c) of this section applies only to those states that extend comity to this State.

The Commissioner may, to the extent provided for by any reciprocal agreement entered into by law or with an agency of another state, as provided in this section, maintain actions in the courts of any other state for the collection of claims or judgments for wages and may assign the claims and judgments to the labor department or agency of the other state for collection to the extent that such an assignment may be permitted or provided for by the law of that state or by reciprocal agreement.

Except as provided in subsection (d) of this section, the Commissioner may, upon the written consent of the labor department or corresponding agency of any other state or of any person, board, officer, or commission authorized to act on behalf of the department or agency, maintain actions in the courts of this State upon assigned claims and judgments for wages arising in the other state in the same manner and to the same extent that these actions by the Commissioner are authorized when arising in this State.

History

(1937, c. 317, s. 19; c. 409, s. 7; 1971, c. 1231, s. 2; 1973, c. 649, s. 4; 1975, c. 473, s. 9; c. 475; 1979, c. 839, s. 1; 1989, c. 687, s. 3.)

§ 95-25.17. Wage and Hour Division established.

The Commissioner of Labor is charged with enforcement of this Article. The Commissioner shall appoint a Wage and Hour Director and any other employees the Commissioner deems necessary for enforcement of this Article. The Commissioner shall continue to prescribe the powers, duties, and responsibilities of the Director and employees engaged in the administration of this Article.

History

(1979, c. 839, s. 1; 2005-453, s. 23.)

Effect of Amendments. - Session Laws 2005-453, s. 23, effective October 1, 2005, rewrote this section.

§ 95-25.18. Legal representation.

It shall be the duty of the Attorney General of North Carolina, when requested, to represent the Department of Labor in actions or proceedings in connection with this Article.

History

(1979, c. 839, s. 1.)

§ 95-25.19. Rules.

The Commissioner may adopt rules needed to implement this Article.

History

(1937, c. 317, s. 18; 1975, c. 413, s. 12; 1979, c. 839, s. 1; 1987, c. 827, s. 262.)

§ 95-25.20. Records.

Files and other records relating to investigations and enforcement proceedings pursuant to this Article, or pursuant to Article 21 of this Chapter with respect to Wage and Hour Act violations, shall not be subject to inspection and examination as authorized by G.S. 132-6 while such investigations and proceedings are pending. Nothing under this section shall impede the right to discovery under G.S. 1A-1, Rules of Civil Procedure.

History

(1979, c. 839, s. 1; 1981, c. 663, s. 8; 1991 (Reg. Sess., 1992), c. 1021, s. 3.)

Legal Periodicals. - For article, "North Carolina Employment Law After Coman : Reaffirming Basic Rights in the Workplace," see 24 Wake Forest L. Rev. 905 (1989).

CASE NOTES

Cited in Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116 (1986); Coman v. Thomas Mfg. Co., 91 N.C. App. 327, 371 S.E.2d 731 (1988); Iturbe v. Wandel & Goltermann Technologies, Inc., 774 F. Supp. 959 (M.D.N.C. 1991); Amos v. Oakdale Knitting Co., 331 N.C. 348, 416 S.E.2d 166 (1992).


§ 95-25.21. Illegal acts.

  1. It shall be unlawful for any person to interfere unduly with, hinder, or delay the Commissioner or any authorized representative in the performance of official duties or refuse to give the Commissioner or his authorized representative any information required for the enforcement of this Article.
  2. It shall be unlawful for any person to make any statement or report, or keep or file any record pursuant to this Article or regulations issued thereunder, knowing such statement, report, or record to be false in a material respect.
  3. Any person who violates this section shall be guilty of a Class 2 misdemeanor.

History

(1937, c. 409, ss. 6, 8; 1979, c. 839, s. 1; 1993, c. 539, s. 661; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 95-25.22. Recovery of unpaid wages.

  1. Any employer who violates the provisions of G.S. 95-25.3 (Minimum Wage), G.S. 95-25.4 (Overtime), or G.S. 95-25.6 through 95-25.12 (Wage Payment) shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, their unpaid overtime compensation, or their unpaid amounts due under G.S. 95-25.6 through 95-25.12, as the case may be, plus interest at the legal rate set forth in G.S. 24-1, from the date each amount first came due.
  2. In addition to the amounts awarded pursuant to subsection (a) of this section, the court shall award liquidated damages in an amount equal to the amount found to be due as provided in subsection (a) of this section, provided that if the employer shows to the satisfaction of the court that the act or omission constituting the violation was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of this Article, the court may, in its discretion, award no liquidated damages or may award any amount of liquidated damages not exceeding the amount found due as provided in subsection (a) of this section.
  3. Action to recover such liability may be maintained in the General Court of Justice by any one or more employees.
  4. Action to recover such liability may also be maintained in the General Court of Justice by the Commissioner at the request of the employees affected. Any sums thus recovered by the Commissioner on behalf of an employee shall be held in a special deposit account and shall be paid directly to the employee or employees affected.
  5. The court, in any action brought under this Article may, in addition to any judgment awarded plaintiff, order costs and fees of the action and reasonable attorneys' fees to be paid by the defendant. In an action brought by the Commissioner in which a default judgment is entered, the clerk shall order attorneys' fees of three hundred dollars ($300.00) to be paid by the defendant.
  6. The Commissioner is authorized to determine and supervise the payment of the amounts due under this section, including interest at the legal rate set forth in G.S. 24-1, from the date each amount first came due, and the agreement to accept such amounts by the employee shall constitute a waiver of the employee's right to bring an action under subsection (b) of this section.
  7. Actions under this section must be brought within two years pursuant to G.S. 1-53.
  8. Prior to initiating any action under this section, the Commissioner shall exhaust all administrative remedies, including giving the employer the opportunity to be heard on the matters at issue and giving the employer notice of the pending action.

The court may order costs and fees of the action and reasonable attorneys' fees to be paid by the plaintiff if the court determines that the action was frivolous.

History

(1959, c. 475; 1975, c. 413, s. 11; 1979, c. 839, s. 1; 1989, c. 687, s. 4; 1991, c. 298, s. 1.)

CASE NOTES

Several factors used by federal jurisdictions to determine employee status under the FLSA are equally useful in the context of the Wage and Hour Act: (1) whether the alleged employee performs services for the employer; (2) the degree of control exerted by the alleged employer over the individual or entity; and (3) the alleged employee's opportunity for profit or loss derived from its relationship with the employer. Laborers' Int'l Union v. Case Farms, Inc., 127 N.C. App. 312, 488 S.E.2d 632 (1997).

Accrual of Cause of Action. - As defendant's policy did not require it to pay cash for any unused vacation days until the employment was terminated, no individual plaintiff had a cause of action until the next pay day after termination; thus the trial court correctly found that only those plaintiffs whose pay date next following termination preceded two years prior to the filing of the action were barred by this section. Hamilton v. Memorex Telex Corp., 118 N.C. App. 1, 454 S.E.2d 278 (1995).

Class Action not Appropriate. - Wage and Hour Act claims would require individual determinations, including which putative class members were subject to the alleged violations and why those putative class members who worked off-the-clock did so, i.e., whether they, for example, missed breaks in order to leave work early; thus, it was not a proper claim for a class action suit. Harrison v. Wal-Mart Stores, Inc., 170 N.C. App. 545, 613 S.E.2d 322 (2005).

No Recovery of Attorneys' Fees from City. - In view of G.S. 95-25.14, which explicitly exempts this State and any city, town or municipality from the application of Article 2A of this Chapter, subsection (d) of this section, relating to the recovery of attorneys' fees, had no application to plaintiff who sought to compel city to pay him for stand-by duty worked for the city police department, and the trial court was in error in awarding such fees. Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125 (1986), cert. denied and appeal dismissed, 319 N.C. 225, 353 S.E.2d 402 (1987).

Because the Act does not require a finding that defendants acted in bad faith in order for attorney's fees to be awarded to plaintiff, the court acted within its discretion by awarding the plaintiff/piano salesman attorney's fees. Fulk v. Piedmont Music Ctr., 138 N.C. App. 425, 531 S.E.2d 476 (2000).

Award of Attorney's Fees and Costs Appropriate to Employee. - Former employer failed to show that a trial court abused the court's discretion when, pursuant to G.S. 95-25.22(d), the court awarded attorney's fees and costs to a former employee on the employee's claim for unpaid wages because the employer failed to show that the trial court, in making the court's findings did not: (1) hear all of the attorneys' arguments; (2) observe their litigation strategies; (3) watch their examination of witnesses; (4) rule on their evidentiary objections; (5) read their briefs; (6) listen to their summations of the evidence; and (7) consider their posttrial motions. Williams v. New Hope Found., Inc., 192 N.C. App. 528, 665 S.E.2d 586 (2008).

Attorney's Fee Award Required Further Findings of Fact. - Appellate court reversed the business court's award of attorneys' fees in an employment retaliation case and remanded the case for further findings of fact and conclusions of law regarding whether the former employee's claims arose from a common nucleus of operative fact and, thus, whether he was entitled to all of his attorneys' fees because it should not have allocated the attorneys' fees among the claims on which he was successful and those on which he was not. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013).

Action Not Frivolous. - A former employee's action for unpaid wages and attorney fees was not frivolous, and thus, the employer was not entitled to attorney fees, even though employer prevailed in the action, where the employer's motions for summary judgment and directed verdict were rejected, and all claims were submitted to the jury. Rice v. Danas, Inc., 132 N.C. App. 736, 514 S.E.2d 97 (1999).

Liquidated Damages Mandated. - Where defendant pointed to no evidence to show that the failure to pay plaintiffs for their vacation days was done in good faith or in the belief that it was not a violation of the Wage and Hour Act, this section mandated that the trial court award liquidated damages. Hamilton v. Memorex Telex Corp., 118 N.C. App. 1, 454 S.E.2d 278 (1995).

Liquidated Damages Denied. - Employer that was required to reimburse temporary foreign workers' transportation and border crossing expenses to the extent those expenses reduced the workers' first week's wages below the minimum wage was not liable for liquidated damages under 29 U.S.C.S. § 216(b) or G.S. 95-25.22(a1) because the employer's noncompliance with the Fair Labor Standards Act and the North Carolina Wage and Hour Act was reasonable given the complexity of the issue and the minimal caselaw regarding the obligations of employers who hired temporary nonagricultural workers. Garcia v. Frog Island Seafood, Inc., 644 F. Supp. 2d 696 (E.D.N.C. 2009).

Liquidated Damages was Issue for Factfinder. - Whether liquidated damages were available under G.S. 95-25.22(a1) was an issue for the trier of fact, depending upon whether the employer acted in good faith. Mason v. ILS Tech., LLC, - F. Supp. 2d - (W.D.N.C. Apr. 11, 2007).

Trial court did not abuse its discretion in awarding an employee liquidated damages under G.S. 95-25.22, when the employers unilaterally modified the employee's agreed to bonus formula without notice, because the employers neither offered evidence showing nor argued how the trial court's decision to award liquidated damages was so arbitrary that it could not have been the result of a reasoned decision. Further, review of the record did not indicate the trial court's decision to impose liquidated damages on the employers was manifestly unsupported by reason. Arndt v. First Union Nat'l Bank, 170 N.C. App. 518, 613 S.E.2d 274 (2005).

Liquidated damages award was properly awarded to the doctor where the amount awarded was equal the amount left unpaid by the employer's North Carolina Wage and Hour Act violation. Harper v. Vohra Wound Physicians of NY, - N.C. App. - , 841 S.E.2d 580 (2020).

Based upon the plain language of the North Carolina Wage and Hour Act (NCWHA), the unpaid amounts due under G.S. 95-25.7 were a doctor's wages as defined by G.S. 95-25.2(16). Consequently, the fact that the employer could withhold or divert a portion of the doctor's wages in accordance with state and federal law did not change the fact that they were unpaid amounts which the employer should have paid out, either directly to the employee or for the employee's benefit, but for the violation of the NCWHA. Harper v. Vohra Wound Physicians of NY, - N.C. App. - , 841 S.E.2d 580 (2020).

Sufficient Evidence to Support Liquidated Damages Award. - Employer's failure to provide a former employee with notice of the change in his bonus plan constituted sufficient evidence to support the trial court's finding that the employer did not act in good faith or with objective reasonableness and, therefore, justified the business court's award of liquidated damages in the case. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013).

While this section states that interest may be recovered on the unpaid wages, it does not provide that interest is payable on liquidated damages. Hamilton v. Memorex Telex Corp., 118 N.C. App. 1, 454 S.E.2d 278 (1995).

Defendants' motion to dismiss, for failure to state a claim, plaintiffs' suit alleging that the defendants failed to pay them all of the weekly wages due at the time due or at the correct rate, and that their claims were typical of at least 100 similarly situated employees, was premature; plaintiffs had not yet filed a motion for class certification, and the propriety of specifics regarding class certification would be addressed at such time. Zelaya v. J.M. Macias, Inc., 175 F.R.D. 625 (E.D.N.C. 1997).

Employee Failed to State a Claim. - Employee failed to state a claim under the North Carolina Wage and Hour Act, G.S. 95-25.1 et seq., pursuant to G.S. 95-25.22(a) because, despite his arguments regarding notice, his complaint only sought recovery for a period of time in which he was admittedly not working; thus, he did not seek wages as was defined in G.S. 95-25.2(16). Crespo v. Delta Apparel, Inc., - F. Supp. 2d - (W.D.N.C. July 31, 2008).

Evidence insufficient to establish claim. - Temporary foreign workers who alleged that they were not paid correctly for all crabmeat picked failed to establish a claim under G.S. 95-25.6 and G.S. 95-25.22(a) because the workers failed to proffer sufficient evidence of the number of occasions during which the inaccurate weighing or recording occurred or of the alleged extra pounds of crabmeat picked. Garcia v. Frog Island Seafood, Inc., 644 F. Supp. 2d 696 (E.D.N.C. 2009).

Plaintiff unions lacked standing to bring suit on behalf of employees under the Wage and Hour Act in that: (1) no services were performed by the unions for defendant; (2) defendant did not exercise nay control over the unions; and (3) any opportunity for profit or loss from the union's relationship with defendant was indirect and not a product of an employer-employee relationship. Laborers' Int'l Union v. Case Farms, Inc., 127 N.C. App. 312, 488 S.E.2d 632 (1997).

Exemption Did Not Apply to Wage Payment Claim. - In a former pastor's action alleging a violation of the North Carolina Wage and Hour Act, the trial court erred in granting a church's motion to dismiss for failure to state a claim upon which relief could be granted because the ministerial exception did not apply; the pastor's complaint did not challenge the church's decision to terminate his employment but instead sought to enforce a contractual obligation regarding his compensation and benefits. Bigelow v. Sassafras Grove Baptist Church, 247 N.C. App. 401, 786 S.E.2d 358 (2016).

Ecclesiastical Abstention Doctrine Inapplicable. - In a former pastor's action alleging a violation of the North Carolina Wage and Hour Act, the trial court erred in granting a church's motion to dismiss for failure to state a claim upon which relief could be granted because the ecclesiastical abstention doctrine did not require dismissal; a court could decide the pastor's contract-based claims applying "neutral principles of law" without entangling the court in an ecclesiastical dispute or interpretation since they required a secular decision. Bigelow v. Sassafras Grove Baptist Church, 247 N.C. App. 401, 786 S.E.2d 358 (2016).

Action Not Preempted by Fair Labor Standards Act. - Plaintiffs' class action alleging violations of the North Carolina Wage and Hour Act was remanded to state court because the employer failed to establish federal question jurisdiction because the Fair Labor Standards Act (FLSA) did not completely preempt state law and the employee specifically denied that the claims implicated the requirement in G.S. 95-25.3(f) that no employee's tips could be reduced by more than 15 percent under a tip-pooling arrangement. Chandler v. Cheesecake Factory Rests., Inc., 239 F.R.D. 432 (M.D.N.C. 2006).

Ruling on Motion in Limine After Default Judgment Entered. - Employee's motion in limine to exclude evidence from his former employer in a hearing on damages with respect to the employee's claim for recovery of unpaid commissions was proper because a default judgment had been entered against the employer pursuant to G.S. 1A-1, N.C. R. Civ. P. 55(d), such that the employer was not entitled to offer evidence to dispute its liability for the liquidated damages sought pursuant to the North Carolina Wage and Hour Act, G.S. 95-25.22(a) and (a1). Luke v. Omega Consulting Group, LC, 194 N.C. App. 745, 670 S.E.2d 604 (2009).

Applied in Poole v. Local 305 Nat'l Post Office Mail Handlers, 69 N.C. App. 675, 318 S.E.2d 105 (1984); Kornegay v. Aspen Asset Group, LLC, 204 N.C. App. 213, 693 S.E.2d 723 (2010).

Cited in Zelaya v. J.M. Macias, Inc., 999 F. Supp. 778 (E.D.N.C. 1998); Aerial Images, Inc. v. Anderson, - F. Supp. 2d - (E.D.N.C. Feb. 21, 2000); Moses H. Cone Mem'l Health Servs. Corp. v. Triplett, 167 N.C. App. 267, 605 S.E.2d 492 (2004); Seven Seventeen HB Charlotte Corp. v. Shrine Bowl of the Carolinas, Inc., 182 N.C. App. 128, 641 S.E.2d 711 (2007); Meehan v. Am. Media Int'l, LLC, 214 N.C. App. 245, 712 S.E.2d 904 (2011).


§ 95-25.23. Violation of youth employment; civil penalty.

  1. Any employer who violates the provisions of G.S. 95-25.5 (Youth Employment) or any regulation issued thereunder, shall be subject to a civil penalty not to exceed five hundred dollars ($500.00) for the first violation and not to exceed one thousand dollars ($1,000) for each subsequent violation. In determining the amount of such penalty, the appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation shall be considered. The determination by the Commissioner shall be final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person charged with the violation takes exception to the determination, in which event final determination of the penalty shall be made in an administrative proceeding pursuant to Article 3 of Chapter 150B and in a judicial proceeding pursuant to Article 4 of Chapter 150B.
  2. The amount of such penalty when finally determined may be recovered in the manner set forth in G.S. 95-25.23B.
  3. The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.
  4. Assessment of penalties under this section shall be subject to a two-year statute of limitations commencing at the time of the occurrence of the violation.

History

(1979, c. 839, s. 1; 1981, c. 663, s. 9; 1989, c. 687, s. 6; 1993, c. 225, s. 1; 1998-215, s. 107; 2003-308, s. 1; 2007-231, s. 4; 2009-351, s. 1.)

Effect of Amendments. - Session Laws 2007-231, s. 4, effective July 18, 2007, in the last sentence of subsection (a), substituted "with return receipt, by signature confirmation as provided by the U.S. Postal Service" for "or" and inserted "or via hand delivery."

CASE NOTES

Violation of Former Section as Proximate Cause of Injury. - In order to make an employer liable in damages for an injury sustained by an employee being required to work more than eight hours a day in violation of former section, it had to be shown that the violation of the statute was a proximate cause of the injury complained of. Williamson v. Old Dominion Box Co., 205 N.C. 350, 171 S.E. 335 (1933), decided under prior law.

Newsboy Not Employee. - A newsboy engaged in selling papers was not an employee of the newspaper within the meaning of that term as used in the Workers' Compensation Act, the newsboy not being on the newspaper's payroll and being without authority to solicit subscriptions and being free to select his own methods of effecting sales, although some degree of supervision was exercised by the newspaper. Creswell v. Charlotte News Publishing Co., 204 N.C. 380, 168 S.E. 408 (1933), decided under prior law.

Cited in Golden v. Register, 50 N.C. App. 650, 274 S.E.2d 892 (1981).


§ 95-25.23A. Violation of record-keeping requirement; civil penalty.

  1. Any employer who violates the provisions of G.S. 95-25.15(b) or any regulation issued pursuant to G.S. 95-25.15(b), shall be subject to a civil penalty of up to two hundred fifty dollars ($250.00) per employee with the maximum not to exceed two thousand dollars ($2,000) per violation by the Commissioner or the Commissioner's authorized representative. In determining the amount of the penalty, the Commissioner shall consider each of the following:
    1. The appropriateness of the penalty for the size of the business of the employer charged.
    2. The gravity of the violation.
    3. Whether the violation involves an employee under 18 years of age.
  2. The amount of the penalty when finally determined may be recovered in the manner set forth in G.S. 95-25.23B.
  3. The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.
  4. Assessment of penalties under this section shall be subject to a two-year statute of limitations commencing at the time of the occurrence of the violation.

The determination by the Commissioner shall be final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person charged with the violation takes exception to the determination, in which event final determination of the penalty shall be made in an administrative proceeding pursuant to Article 3 of Chapter 150B and in a judicial proceeding pursuant to Article 4 of Chapter 150B.

History

(1989, c. 687, s. 5; 1993, c. 225, s. 2; 1998-215, s. 108; 2003-308, s. 2; 2007-231, s. 5; 2009-351, s. 3; 2021-82, s. 8.)

Effect of Amendments. - Session Laws 2007-231, s. 5, effective July 18, 2007, in the second paragraph of subsection (a), substituted "with return receipt, by signature confirmation as provided by the U.S. Postal Service" for "or" and inserted "or via hand delivery."

Session Laws 2021-82, s. 8, effective July 8, 2021, substituted "violation” for "investigation” in subsection (a).

§ 95-25.23B. Civil penalty collection.

The Commissioner may file in the office of the clerk of the superior court of any county a certified copy of an assessment, either unappealed from or affirmed in whole or in part upon appeal, of a civil money penalty under G.S. 95-25.23 or G.S. 95-25.23A. Upon such filing, the clerk shall enter judgment in accordance with the unappealed or affirmed portion of the assessment and shall notify the parties. Such judgment shall have the same effect, and all proceedings in relation to the judgment shall thereafter be the same, as though the judgment had been rendered in a suit duly heard and determined by the superior court of the General Court of Justice.

History

(1993, c. 225, s. 3.)

§ 95-25.23C. Report on youth employment enforcement activities.

  1. Findings. - The General Assembly finds that:
    1. There is an increasing need to protect the educational opportunities of youths under age 18 and to prohibit their employment in jobs and under conditions that are detrimental to their health and well-being.
    2. Although the statutory protections available for youths under age 18 who are employed in this State are comprehensive, those protections are rendered meaningless without effective enforcement.
    3. It is in the best interest of the State and its youngest workers to ensure that North Carolina employers are in full compliance with the youth employment laws and regulations enacted under the Wage and Hour Act.
  2. Intent. - Recognizing that the Department of Labor is the State agency charged with enforcing the Wage and Hour Act as it pertains to youth employment, the General Assembly intends to review the Department's education and enforcement activities on a regular basis in order to identify effective measures for enhancing youth employment protections in this State.
  3. Report. - No later than February 1 of each year, the Commissioner shall submit a written report to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, the Joint Legislative Education Oversight Committee, and the Fiscal Research Division of the General Assembly on the Department of Labor's investigative, inspection, and enforcement activities under the Wage and Hour Act pertaining to youth employment. Each report submitted pursuant to this subsection shall contain data and information about the calendar year preceding the date on which the last written report was submitted. The report shall include at least all of the following:
    1. All activities the Department of Labor has sponsored or participated in for the purpose of educating employers about their responsibilities under the Wage and Hour Act.
    2. The total number of complaints received by the Department of Labor alleging youth employment violations under the Wage and Hour Act, or any regulations issued under the Wage and Hour Act, or both.
    3. The specific types of youth employment violations alleged and the ages of the youths referenced in the complaints received by the Department of Labor.
    4. The total number of investigations conducted by the Department of Labor concerning alleged youth employment violations, the length of the investigations, and the number of investigators assigned to conduct the investigations. For purposes of this subdivision, the Commissioner shall provide a separate analysis of (i) investigations initiated by the Department in response to a complaint, (ii) investigations initiated by the Department in the absence of a complaint, and (iii) alleged record-keeping violations pertaining to youth employment.
    5. The total number of administrative proceedings involving youth employment violations.
    6. The total number and identity of employers cited for youth employment violations and the industries or occupations that received the greatest and the least number of complaints alleging youth employment violations.
    7. The total number and dollar amount of civil penalties assessed pursuant to G.S. 95-25.23 and the total number and dollar amount of civil penalties actually collected pursuant to that section. For purposes of this subdivision, the Commissioner shall provide a detailed, itemized list of each civil penalty represented in the total number and dollar amounts reported pursuant to this subdivision and indicate whether each civil penalty is the result of a complaint.
    8. The total number and dollar amount of civil penalties assessed pursuant to G.S. 95-25.23A and the total number and dollar amount of civil penalties actually collected pursuant to that section. For purposes of this subdivision, the Commissioner shall provide a detailed, itemized list of each civil penalty represented in the total number and dollar amounts reported pursuant to this subdivision and indicate whether each civil penalty is the result of a complaint.
    9. An explanation of any obstacles that prevented the Department of Labor from enforcing any provision of the Wage and Hour Act as it pertains to youth employment, any recommended changes to the Wage and Hour Act to strengthen the Department of Labor's oversight and enforcement of youth employment laws and regulations in this State, and any other information related to the Department of Labor's enhanced enforcement of the State's youth employment laws and regulations.
    10. Recommendations about the funding needed by the Department to (i) eliminate any identified obstacles to enforcement of youth employment laws and regulations and (ii) effectively implement any recommended changes.

History

(2009-139, s. 1; 2011-291, s. 2.21; 2017-57, s. 14.1(nn).)

Editor's Note. - Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2011-291, s. 2.21, effective June 24, 2011, substituted "Joint Legislative Education Oversight Committee" for "Legislative Study Commission on Children and Youth" in the introductory paragraph of subsection (c).

Session Laws 2017-57, s. 14.1(nn), effective July 1, 2017, substituted "Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources" for "General Assembly" in subsection (c).

§ 95-25.24. Restraint of violations.

The General Court of Justice has jurisdiction and authority upon application of the Commissioner to enjoin or restrain violations of this Article, including the restraint of any withholding of payment of unpaid wages, minimum wages, or overtime compensation found by the court to be due to employees under this Article (except sums which employees are barred from recovering, at the time of the commencement of the action to restrain the violations, by virtue of the applicable statute of limitations).

History

(1979, c. 839, s. 1; 1991, c. 330, s. 4.)

§ 95-25.24A. Franchisee status.

Neither a franchisee nor a franchisee's employee shall be deemed to be an employee of the franchisor for any purposes, including, but not limited to, this Article and Chapters 96, 97, and 105 of the General Statutes. For purposes of this section, "franchisee" and "franchisor" have the same definitions as set out in 16 C.F.R. § 436.1.

History

(2017-10, s. 1.1.)

Editor's Note. - Session Laws 2017-10, s. 5.1, is a severability clause.

Session Laws 2017-10, s. 5.2 made this section effective May 4, 2017.

§ 95-25.25. Construction of Article and severability.

This Article shall receive a liberal construction to the end that the welfare of adult and minor workers may be protected. If any provisions of this Article or the application thereof to any person or circumstance is held to be invalid, such invalidity shall not affect the provisions or application of the Article which can be given effect without the invalid provision or application, and to this end the provisions of this Article are severable.

History

(1979, c. 839, s. 1.)

CASE NOTES

Cited in Youse v. Duke Energy Corp., 171 N.C. App. 187, 614 S.E.2d 396 (2005).


ARTICLE 3. Various Regulations.

Sec.

§ 95-26: Repealed by Session Laws 1971, c. 56.

§ 95-27: Repealed by Session Laws 1973, c. 660, s. 3.

§ 95-28: Repealed by Session Laws 1997-443, s. 19.14.

§ 95-28.1. Discrimination against any person possessing sickle cell trait or hemoglobin C trait prohibited.

No person, firm, corporation, unincorporated association, State agency, unit of local government or any public or private entity shall deny or refuse employment to any person or discharge any person from employment on account of the fact such person possesses sickle cell trait or hemoglobin C trait. The term "sickle cell trait" is defined as the condition wherein the major natural hemoglobin components present in the blood of the individual are hemoglobin A (normal) and hemoglobin S (sickle hemoglobin) as defined by standard chemical and physical analytic techniques, including electrophoresis; and the proportion of hemoglobin A is greater than the proportion of hemoglobin S or one natural parent of the individual is shown to have only normal hemoglobin components (hemoglobin A, hemoglobin A2, hemoglobin F) in the normal proportions by standard chemical and physical analytic tests. The term "hemoglobin C trait" is defined as the condition wherein the major natural hemoglobin components present in the blood of the individual are hemoglobin A (normal) and hemoglobin C as defined by standard chemical and physical analytic techniques, including electrophoresis; and the proportion of hemoglobin A is greater than the proportion of hemoglobin C or one natural parent of the individual is shown to have only normal hemoglobin components (hemoglobin A, hemoglobin A2, hemoglobin F) in the normal proportions by standard chemical and physical analytic tests, provided, however, that this section shall not be construed to give employment, promotion, or layoff preference to persons who possess the above traits, or to prevent such persons being discharged for cause.

History

(1975, c. 463, s. 1.)

Legal Periodicals. - For article, "North Carolina Employment Law After Coman : Reaffirming Basic Rights in the Workplace," see 24 Wake Forest L. Rev. 905 (1989).

§ 95-28.1A. Discrimination against persons based on genetic testing or genetic information prohibited.

  1. No person, firm, corporation, unincorporated association, State agency, unit of local government, or any public or private entity shall deny or refuse employment to any person or discharge any person from employment on account of the person's having requested genetic testing or counseling services, or on the basis of genetic information obtained concerning the person or a member of the person's family. This section shall not be construed to prevent the person from being discharged for cause.
  2. As used in this section, the term "genetic test" means a test for determining the presence or absence of genetic characteristics in an individual or a member of the individual's family in order to diagnose a genetic condition or characteristic or ascertain susceptibility to a genetic condition. The term "genetic characteristic" means any scientifically or medically identifiable genes or chromosomes, or alterations or products thereof, which are known individually or in combination with other characteristics to be a cause of a disease or disorder, or determined to be associated with a statistically increased risk of development of a disease or disorder, and which are asymptomatic of any disease or disorder. The term "genetic information" means information about genes, gene products, or inherited characteristics that may derive from an individual or a family member.

History

(1997-350, s. 2.)

Legal Periodicals. - For note, "'Hair' Today, Gone Tomorrow: How Immutable Traits May Become the New Face of Discrimination as Interpreted in Equal Employment Opportunity Comm'n v. Catastrophe Mgmt. Sols.," see 39 N.C. Cent. L. Rev. 166 (2017).

§ 95-28.2. Discrimination against persons for lawful use of lawful products during nonworking hours prohibited.

  1. As used in this section, "employer" means the State and all political subdivisions of the State, public and quasi-public corporations, boards, bureaus, commissions, councils, and private employers with three or more regularly employed employees.
  2. It is an unlawful employment practice for an employer to fail or refuse to hire a prospective employee, or discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the prospective employee or the employee engages in or has engaged in the lawful use of lawful products if the activity occurs off the premises of the employer during nonworking hours and does not adversely affect the employee's job performance or the person's ability to properly fulfill the responsibilities of the position in question or the safety of other employees.
  3. It is not a violation of this section for an employer to do any of the following:
    1. Restrict the lawful use of lawful products by employees during nonworking hours if the restriction relates to a bona fide occupational requirement and is reasonably related to the employment activities. If the restriction reasonably relates to only a particular employee or group of employees, then the restriction may only lawfully apply to them.
    2. Restrict the lawful use of lawful products by employees during nonworking hours if the restriction relates to the fundamental objectives of the organization.
    3. Discharge, discipline, or take any action against an employee because of the employee's failure to comply with the requirements of the employer's substance abuse prevention program or the recommendations of substance abuse prevention counselors employed or retained by the employer.
  4. This section shall not prohibit an employer from offering, imposing, or having in effect a health, disability, or life insurance policy distinguishing between employees for the type or price of coverage based on the use or nonuse of lawful products if each of the following is met:
    1. Differential rates assessed employees reflect actuarially justified differences in the provision of employee benefits.
    2. The employer provides written notice to employees setting forth the differential rates imposed by insurance carriers.
    3. The employer contributes an equal amount to the insurance carrier on behalf of each employee of the employer.
  5. An employee who is discharged or otherwise discriminated against, or a prospective employee who is denied employment in violation of this section, may bring a civil action within one year from the date of the alleged violation against the employer who violates the provisions of subsection (b) of this section and obtain any of the following:
    1. Any wages or benefits lost as a result of the violation;
    2. An order of reinstatement without loss of position, seniority, or benefits; or
    3. An order directing the employer to offer employment to the prospective employee.
  6. The court may award reasonable costs, including court costs and attorneys' fees, to the prevailing party in an action brought pursuant to this section.

History

(1991 (Reg. Sess., 1992), c. 1023, s. 1.)

Editor's Note. - Subsection (f) of this section has been so designated at the direction of the Revisor of Statutes, the subsection in the enacting act having been designated as a second subsection "(d)."

Legal Periodicals. - For survey of developments in North Carolina law, see 71 N.C.L. Rev. 1893 (1993).

§ 95-28.3. Leave for parent involvement in schools.

  1. It is the belief of the General Assembly that parent involvement is an essential component of school success and positive student outcomes. Therefore, employers shall grant four hours per year leave to any employee who is a parent, guardian, or person standing in loco parentis of a school-aged child so that the employee may attend or otherwise be involved at that child's school. However, any leave under this section is subject to the following conditions:
    1. The leave shall be at a mutually agreed upon time between the employer and the employee.
    2. The employer may require an employee to provide the employer with a written request for the leave at least 48 hours before the time desired for the leave.
    3. The employer may require that the employee furnish written verification from the child's school that the employee attended or was otherwise involved at that school during the time of the leave.
  2. Employers shall not discharge, demote, or otherwise take an adverse employment action against an employee who requests or takes leave under this section. Nothing in this section shall require an employer to pay an employee for leave taken under this section.
  3. An employee who is demoted or discharged or who has had an adverse employment action taken against him or her in violation of this section may bring a civil action within one year from the date of the alleged violation against the employer who violates this section and obtain either of the following:
    1. Any wages or benefits lost as a result of the violation; or
    2. An order of reinstatement without loss of position, seniority, wages, or benefits.

For the purpose of this section, "school" means any (i) public school, (ii) private church school, church of religious charter, or nonpublic school described in Parts 1 and 2 of Article 39 of Chapter 115C of the General Statutes that regularly provides a course of grade school instruction, (iii) preschool, and (iv) child care facility as defined in G.S. 110-86(3).

The burden of proof shall be upon the employee.

History

(1993, c. 509, s. 1; 1997-506, s. 34.)

§ 95-28.4. Veterans preference.

A private, nonpublic employer in the State may provide a preference to a veteran for employment. Spouses of honorably discharged veterans who have a service-connected permanent and total disability also may be preferred for employment. Granting of this preference is not a violation of any State or local equal employment opportunity law.

History

(2013-413, s. 14; 2014-115, s. 17.)

Editor's Note. - Session Laws 2013-413, s. 60(c), had provided that: "This act becomes effective July 1, 2015."

Session Laws 2013-413, s. 61(b), provides: "Except as otherwise provided, this act is effective when it becomes law [August 23, 2013]."

Session Laws 2014-115, s. 17, amended Session Laws 2013-413, s. 60(c), to replace the reference to "This act" with the words "This Part."

Session Laws 2013-413, s. 61(a) is a severability clause.

§ 95-29: Repealed by Session Laws 1973, c. 660, s. 4.

§ 95-30: Repealed by Session Laws 1971, c. 240.

§ 95-31. Acceptance by employer of assignment of wages.

No employer of labor shall be responsible for any assignment of wages to be earned in the future, executed by an employee, unless and until such assignment of wages is accepted by the employer in a written agreement to pay same.

History

(1935, c. 410; 1937, c. 90.)

CASE NOTES

Section Is Constitutional. - The provisions of this section, rendering an assignment invalid unless accepted in writing by the employer, do not deprive the assignee of due process of law or the equal protection of the laws. Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941).

When applied to contracts executed after its effective date, this section cannot be held unconstitutional as impairing the obligations of contracts. Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941).

This section is a regulation of contracts growing out of the relationship of employer and employee imposed for the general welfare and is a valid exercise of the police power of the State. Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941).

The fact that this section permits an employer, at his election, to accept an assignment of unearned wages executed by his employee does not in itself constitute an unconstitutional discrimination, since in the absence of legislative restraint, one engaged in private business may exercise his own pleasure as to the parties with whom he will deal. Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941).

Purpose. - The end in view was not only to relieve the employer of unnecessary responsibility, but also to restrain the activities of those who were engaged in the business of buying at a discount the unearned wages of employees. Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941).

Section Applies Only to Wages to Be Earned. - An assignment by an employee of wages earned and due him from the employer is valid without acceptance by the employer, and the assignee may sue the employer thereon, the provision of this section being applicable only to wages to be earned in the future. Rickman v. Holshouser, 217 N.C. 377, 8 S.E.2d 199 (1940).


ARTICLE 4. Conciliation Service and Mediation of Labor Disputes.

Sec.

§ 95-32. Declaration of policy.

It is hereby declared as the public policy of this State that the best interests of the people of the State are served by the prevention or prompt settlement of labor disputes; that strikes and lockouts and other forms of industrial strife, regardless of where the merits of the controversy lie, are forces productive ultimately of economic waste; that the interests and rights of the consumers and the people of the State, while not direct parties thereto, should always be considered, respected and protected; and that the conciliation and voluntary mediation of such disputes under the guidance and supervision of a governmental agency will tend to promote permanent industrial peace and the health, welfare, comfort and safety of the people of the State. To carry out such policy, the necessity for the enactment of the provisions of this Article is hereby declared as a matter of legislative determination.

History

(1941, c. 362, s. 1.)

Cross References. - For subsequent statute affecting this Article, see G.S. 95-36.1 to 95-36.9.

§ 95-33. Scope of Article.

The provisions of this Article shall apply to all labor disputes in North Carolina.

History

(1941, c. 362, s. 2.)

§ 95-34. Administration of Article.

The administration of this Article shall be under the general supervision of the Commissioner of Labor of North Carolina.

History

(1941, c. 362, s. 3.)

§ 95-35. Conciliation service established; personnel; removal; compensation.

There is hereby established in the Department of Labor a conciliation service. The Commissioner of Labor may appoint such employees as may be required for the consummation of the work under this Article, prescribe their duties and fix their compensation, subject to existing laws applicable to the appointment and compensation of employees of the State of North Carolina. Any member of or employee in the conciliation service may be removed from office by the Commissioner of Labor, acting in his discretion.

History

(1941, c. 362, s. 4.)

§ 95-36. Powers and duties of Commissioner and conciliator.

Upon his own motion in an existent or imminent labor dispute, the Commissioner of Labor may, and, upon the direction of the Governor, must order a conciliator to take such steps as seem expedient to effect a voluntary, amicable and expeditious adjustment and settlement of the differences and issues between employer and employees which have precipitated or culminated in or threaten to precipitate or culminate in such labor dispute.

The conciliator shall promptly put himself in communication with the parties to such controversy, and shall use his best efforts, by mediation, to bring them to agreement.

The Commissioner of Labor, any conciliator or conciliators and all other employees of the Commissioner of Labor engaged in the enforcement and duties prescribed by this Article, shall not be compelled to disclose to any administrative or judicial tribunal any information relating to, or acquired in the course of their official activities under the provisions of this Article, nor shall any reports, minutes, written communications, or other documents or copies of documents of the Commissioner of Labor and the above employees pertaining to such information be subject to subpoena: Provided, that the Commissioner of Labor, any conciliator or conciliators and all other employees of the Commissioner of Labor engaged in the enforcement of this Article, may be required to testify fully in any examination, trial, or other proceeding in which the commission of a crime is the subject of inquiry.

History

(1941, c. 362, s. 5; 1949, c. 673.)

Legal Periodicals. - For brief comment on the 1949 amendment, see 27 N.C.L. Rev. 465 (1949).

For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

ARTICLE 4A. Voluntary Arbitration of Labor Disputes.

Sec.

§ 95-36.1. Declaration of policy.

It is hereby declared as the public policy of this State that the best interests of the people of the State are served by the prompt settlement of labor disputes; that strikes and lockouts and other forms of industrial strife, regardless of where the merits of the controversy lie, are forces productive ultimately of economic waste; that the interests and rights of the consumers and the people of the State, while not direct parties to such disputes, should always be considered, respected and protected; and, where efforts at amicable settlement have been unsuccessful, that the voluntary arbitration of such disputes will tend to promote permanent industrial peace and the health, welfare, comfort and safety of the people of the State. To carry out such policies, the necessity for the enactment of the provisions of this Article is hereby declared as a matter of legislative determination.

History

(1945, c. 1045, s. 1; 1951, c. 1103, s. 1.)

Cross References. - As to arbitration and award generally, see G.S. 1-569.1 et seq.

As to the State's conciliation service, see G.S. 95-32 through 95-36.

State Government Reorganization. - The administration of this Article was transferred to the Department of Labor by G.S. 143A-72, enacted by Session Laws 1971, c. 864.

Legal Periodicals. - For note on labor arbitration in North Carolina, see 29 N.C.L. Rev. 460 (1951).

For article, "Labor, Exclusion, and Flourishing in Property Law," see 95 N.C.L. Rev. 415 (2017).

For article, "Clause Construction: A Glimpse Into Judicial and Arbitral Decision-Making,” see 68 Duke L.J. 1324 (2019).

For article, "Clause Construction: A Glimpse Into Judicial and Arbitral Decision-Making,” see 68 Duke L.J. 1324 (2019).

CASE NOTES

Remedy Provided by Article Is Cumulative. - The statutory methods of arbitration provide cumulative and concurrent rather than exclusive procedural remedies. Lammonds v. Aleo Mfg. Co., 243 N.C. 749, 92 S.E.2d 143 (1956).

Effect on Employee's Right to Sue for Wages and Benefits Due Under Labor Contract. - The fact that disputed provisions of a collective labor contract have been arbitrated under the procedure outlined in the contract does not make the question of an accounting for an employee's wages and other benefits under the terms of the contract one of arbitration and award under the Uniform Arbitration Act, former G.S. 1-544 et seq. (now G.S. 1-569.1 et seq.). Nor does the statutory procedure for the voluntary arbitration of labor disputes as contained in this Article preclude maintenance of an action by the employee for such accounting. Lammonds v. Aleo Mfg. Co., 243 N.C. 749, 92 S.E.2d 143 (1956).


§ 95-36.2. Scope of Article.

The provisions of this Article shall apply only to voluntary agreements to arbitrate labor disputes including, but not restricted to, all controversies between employers, employees and their respective bargaining representatives, or any of them, relating to wages, hours, and other conditions of employment.

History

(1945, c. 1045, s. 2; 1951, c. 1103, s. 1.)

§ 95-36.3. Administration of Article.

  1. The administration of this Article shall be under the general supervision of the Commissioner of Labor of North Carolina.
  2. There is hereby established in the Department of Labor an arbitration service. The Commissioner of Labor may appoint such employees as may be required for the consummation of the work under this Article, prescribe their duties and fix their compensation, subject to existing laws applicable to the appointment and compensation of employees of the State of North Carolina. Any member of or employee in the arbitration service may be removed from office by the Commissioner of Labor, acting in his discretion.
  3. The Commissioner of Labor, with the written approval of the Attorney General as to legality, shall have power to adopt, alter, amend or repeal appropriate rules of procedure for selection of the arbitrator or panel and for conduct of the arbitration proceedings in accordance with this Article: Provided, however, that such rules shall be inapplicable to the extent that they are inconsistent with the arbitration agreement of the parties.

History

(1945, c. 1045, s. 3; 1951, c. 1103, s. 1.)

§ 95-36.4. Voluntary arbitrators.

  1. It shall be the duty of the Commissioner of Labor to maintain a list of qualified and public-spirited citizens who will serve as arbitrators. All appointments of a single arbitrator or member of an arbitration panel by the Commissioner of Labor shall be made from the list of qualified arbitrators maintained by him.
  2. No person named by the Commissioner of Labor to act as an arbitrator in a dispute shall be qualified to serve as such arbitrator if such person has any financial or other interest in the company or labor organization involved in the dispute.

History

(1945, c. 1045, s. 4; 1951, c. 1103, s. 1.)

§ 95-36.5. Fees and expenses.

  1. All the costs of any arbitration proceeding under this Article, including the fees and expenses of the arbitrator or arbitration panel, shall be paid by the parties to the proceeding in accordance with any agreement between them. In the absence of such an agreement, the award in the proceeding shall normally require the payment of such fees, expenses and other proper costs by one or more of the parties: Provided, that if the Commissioner of Labor deems that the public interest so requires, he may provide for the payment to any arbitrator appointed by him of per diem compensation at the rate established by the Commissioner, and actual travel and other necessary expenses incurred while performing duties arising under this Article.
  2. In cases where an arbitrator has been appointed by the Commissioner, the Department of Labor may furnish necessary stenographic, clerical and technical service and assistance to the arbitrator or arbitration panel.
  3. Expenditures of public funds authorized under this section shall be paid from funds appropriated for the administration of this Article.

History

(1945, c. 1045, s. 5; 1947, c. 379, ss. 1-3; 1951, c. 1103, s. 1.)

Legal Periodicals. - For discussion of 1947 amendment affecting this and following sections, see 25 N.C.L. Rev. 446 (1947).

§ 95-36.6. Appointment of arbitrators.

The parties may by agreement determine the method of appointment of the arbitrator or arbitration panel. If the parties have agreed upon arbitration under this Article and have not otherwise agreed upon the number of arbitrators or the method for their appointment, the controversy shall be heard and decided by a single arbitrator designated in such manner as the Commissioner of Labor shall determine. Any person or agency selected by agreement or otherwise to appoint an arbitrator or arbitrators shall send by registered mail to each of the parties to the proposed proceeding notice of the demand for arbitration. The arbitrator or arbitration panel, as the case may be, shall have such powers and duties as are conferred by the voluntary agreement of the parties, and, if there is no agreement to the contrary, shall have power to decide the arbitrability as well as the merits of the dispute.

History

(1945, c. 1045, s. 5; 1947, c. 379, ss. 1-3; 1951, c. 1103, s. 1.)

CASE NOTES

This section is modified by G.S. 95-36.9(b), giving the courts and not the arbitrators power to decide whether or not a party has agreed to the arbitration of the controversy involved. Charlotte City Coach Lines v. Brotherhood of R.R. Trainmen, 254 N.C. 60, 118 S.E.2d 37 (1961).


§ 95-36.7. Arbitration procedure.

Upon the selection or appointment of an arbitrator or arbitration panel in any labor dispute, a statement of the issues or questions in dispute shall be submitted to said arbitrator or panel in writing, signed by one or more of the parties or their authorized agents. The arbitrator or panel shall appoint a time and place for the hearing, and notify the parties thereof, and may postpone or adjourn the hearing from time to time as may be necessary, subject to any time limits which are agreed upon by the parties. If any party neglects to appear before the arbitrator or panel after reasonable notice, the arbitrator or panel may nevertheless proceed to hear and determine the controversy. Unless the parties have otherwise agreed, the findings and decision of a majority of an arbitration panel shall constitute the award of the panel and, if a majority vote of the panel cannot be obtained, then the findings and decision of the impartial chairman of the panel shall constitute such award. To be enforceable, the award shall be handed down within 60 days after the written statement of the issues or questions in dispute has been received by the arbitrator or panel, or within such further time as may be agreed to by the parties.

History

(1945, c. 1045, s. 5; 1947, c. 379, ss. 1-3; 1951, c. 1103, s. 1.)

§ 95-36.8. Enforcement of arbitration agreement and award.

  1. Written agreements to arbitrate labor disputes, including but not restricted to controversies relating to wages, hours and other conditions of employment, shall be valid, enforceable and irrevocable, except upon such grounds as exist in law or equity for the rescission or revocation of any contract, in either of the following cases:
    1. Where there is a provision in a collective bargaining agreement or any other contract, hereafter made or extended, for the settlement by arbitration of a controversy or controversies thereafter arising between the parties;
    2. Where there is an agreement to submit to arbitration a controversy or controversies already existing between the parties.
  2. Any arbitration award, made pursuant to an agreement of the parties described in subsection (a) of this section and in accordance with this Article, shall be final and binding upon the parties to the arbitration proceedings.

History

(1945, c. 1045, s. 5; 1947, c. 379, ss. 1-3; 1951, c. 1103, s. 1.)

CASE NOTES

This section is not preempted by the Federal Arbitration Act. Moore v. Duke Power Co., 971 F. Supp. 978 (W.D.N.C. 1997).

Arbitrator's Decision Bars Later Legal Claim. - Where plaintiff participated in binding arbitration pursuant to a collective bargaining agreement, the arbitrator's decision that plaintiff was discharged for "just cause" was binding on him and barred his claim for wrongful or retaliatory discharge. Shreve v. Duke Power Co., 85 N.C. App. 253, 354 S.E.2d 357 (1987).

Pursuant to the collective bargaining agreement and this section, plaintiff's state common law claim for wrongful discharge in violation of public policy was barred by the preclusive effect of arbitrator's decision that termination was proper. Moore v. Duke Power Co., 971 F. Supp. 978 (W.D.N.C. 1997).

Multiple Grievance Procedure. - Where employee accepted a multiple grievance award in accordance with collective bargaining contract, this statute did not prevent labor commissioner from bringing suit for retaliatory discharge; the multiple grievance procedure was not arbitration contemplated by this section. Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 382 S.E.2d 874, cert. denied, 325 N.C. 704, 388 S.E.2d 449 (1989).

Cited in Tucker v. General Tel. Co., 50 N.C. App. 112, 272 S.E.2d 911 (1980).


§ 95-36.9. Stay of proceedings.

  1. If any action or proceeding be brought in any court upon any issue referable to arbitration under an agreement described in subsection (a) of G.S. 95-36.8, the court where the action or proceeding is pending or a judge of the superior court having jurisdiction in any county where the dispute arose shall stay the action or proceeding, except for any temporary relief which may be appropriate pending the arbitration award, until such arbitration has been had in accordance with the terms of the agreement. The application for stay may be made by motion in writing of a party to the agreement, but such motion must be made before answer or demurrer to the pleading by which the action or proceeding was begun.
  2. Any party against whom arbitration proceedings have been initiated may, within 10 days after receiving written notice of the issue or questions to be passed upon at the arbitration hearing, apply to any judge of the superior court having jurisdiction in any county where the dispute arose for a stay of the arbitration upon the ground that he has not agreed to the arbitration of the controversy involved. Any such application shall be made in writing and heard in a summary way in the manner and upon the notice provided by law or rules of court for the making and hearing of motions generally, except that it shall be entitled to priority in the interest of prompt disposition. If no such application is made within said 10-day period, a party against whom arbitration proceedings have been initiated cannot raise the issue of arbitrability except before the arbitrator and in proceedings subsequent to the award.
  3. Any party against whom an arbitration award has been issued may, within 10 days after receiving written notice of such award, apply to any judge of the superior court having jurisdiction in any county where the dispute arose for a stay of the award upon the ground that it exceeds the authority conferred by the arbitration agreement. Any such application shall be made in writing and heard in a summary way in the manner and upon the notice provided by law or rules of court for the making and hearing of motions generally, except that it shall be entitled to priority in the interest of prompt disposition. If no such application is made within said 10-day period, a party against whom arbitration proceedings have been initiated cannot raise the issue of arbitrability except before the arbitrator or arbitrators, or in proceedings to enforce the award. Any failure to abide by an award shall not constitute a breach of the contract to arbitrate, pending disposition of a timely application for stay of the award pursuant to this paragraph.

History

(1951, c. 1103, s. 1.)

CASE NOTES

G.S. 95-36.6 is modified by this section, giving the courts and not the arbitrators power to decide whether or not a party has agreed to the arbitration of the controversy involved. Charlotte City Coach Lines v. Brotherhood of R.R. Trainmen, 254 N.C. 60, 118 S.E.2d 37 (1961).

Limitation of Action Under Labor Management Relations Act. - In an action to vacate an arbitrator's award under § 301 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185, the most clearly analogous state statute of limitations was determined to be the 90-day limitation provided in former G.S. 1-567.13(b), for vacating an award, rather than the 10-day limitation set forth in subsection (c) of this section for a stay of proceedings, notwithstanding the provision in former G.S. 1-567.2 that the Uniform Arbitration Act shall not apply "to arbitration agreements between employers and employees or between their respective representatives," since former G.S. 1-567.13(b) was the statute of limitations most analogous for the determination of timeliness. Gencorp, Inc. v. Local 850, United Rubber Workers of Am., 622 F. Supp. 216 (W.D.N.C. 1985).

Applied in Calvine Cotton Mills, Inc. v. Textile Workers Union, Local 677, 238 N.C. 719, 79 S.E.2d 181 (1953).


ARTICLE 5. Regulation of Employment Agencies.

§§ 95-37 through 95-47: Recodified as §§ 95-47.1 to 95-47.13.

Editor's Note. - This Article was rewritten by Session Laws 1979, c. 780, s. 1, effective July 1, 1979, and has been recodified as Article 5A, G.S. 95-47.1 through 95-47.13.

ARTICLE 5A. Regulation of Private Personnel Services.

Sec.

§ 95-47.1. Definitions.

As used in this Article, unless the context clearly requires otherwise:

  1. "Accept" employment means to accept an employer's offer of employment or to begin work for an employer.
  2. "Applicant," except where it refers to an applicant for a private personnel services license, means any person who uses or attempts to use the services of a private personnel service in seeking employment.
  3. "Commissioner" means the North Carolina Commissioner of Labor or any person designated by the Commissioner as the representative of the Commissioner.
  4. "Complaint" means a communication to the Commissioner or department alleging facts that could support issuance of a warning or citation under G.S. 95-47.9.
  5. "Contract" means any agreement between a private personnel service and an applicant obligating the applicant to pay a fee or any agreement subsequent to such contract reducing the obligations of the private personnel service to the applicant under the contract.
  6. "Employee" means a person performing work or services of any kind or character for compensation.
  7. "Employer" means a person employing or seeking to employ a person for compensation, or any representative or employee of such employer.
  8. "Employment" means any service or engagement rendered or undertaken for wages, salary, commission, or other form of compensation.
  9. "Fee" means anything of value, including money or other valuable consideration or services or the promise of any of the foregoing, required or received by a private personnel service, in payment for any of its services, or act rendered or to be rendered by any private personnel service.
  10. "Interview" means a meeting between an employer and an applicant to discuss potential employment.
  11. "Job order" means an oral or written communication from an employer authorizing a private personnel service to refer applicants for a position the employer has available.
  12. "Licensee" means any person licensed by the Commissioner to operate a private personnel service.
  13. "Manager" of a private personnel service means the person who is responsible for the operation of an office of a private personnel service.
  14. "Owner" of a private personnel service means the sole proprietor of a private personnel service operated as a sole proprietorship; any partner in a partnership that owns or operates a private personnel service; any stockholder with a financial interest greater than 10 percent (10%) in a corporation that owns or operates a private personnel service.
  15. "Person" means any individual, association, partnership or corporation.
  16. "Private personnel service" means any business operated in the State of North Carolina by any person for profit which secures employment or by any form of advertising holds itself out to applicants as able to secure employment or to provide information or service of any kind purporting to promote, lead to or result in employment for the applicant with any employer other than itself, where any applicant may become liable for the payment of a fee to the private personnel service, either directly or indirectly. "Private personnel service" does not include:
    1. Any educational, religious, charitable, fraternal or benevolent organization which charges no fee for services rendered in securing employment or providing information about employment;
    2. Any employment service operated by the State of North Carolina, the Government of the United States, or any city, county, or town, or any agency thereof;
    3. Any temporary help service that at no time advertises or represents that its employee may, with the approval of the temporary help service, be employed by one of its client companies on a permanent basis and which does not act as a private personnel service or an employer fee paid personnel service;
    4. Any newspaper of general circulation or other business engaged primarily in communicating information other than information about specific positions of employment and that does not purport to adapt the information provided to the needs or desires of an individual subscriber;
    5. Employment offices that charge no fee to the applicant other than union dues or to the employer and which are used solely for the hiring of employees under a valid union contract by the employer subscribing to this contract;
    6. Any employer fee paid personnel consulting service or temporary help service that offers temporary to permanent placement when the service operates on a one hundred percent (100%) employer fee paid service basis, requires no applicant placement contract, and has no recourse against an applicant for a fee under any circumstances.
  17. "Refer" an applicant means to submit resumes to an employer, arrange interviews between an applicant and an employer, or to provide an employer with the name of an applicant.

History

(1929, c. 178, ss. 1, 10; 1979, c. 780, s. 1; 1989, c. 414, s. 1.)

CASE NOTES

Cited in North Carolina Chiropractic Ass'n v. Aetna Cas. & Sur. Co., 89 N.C. App. 1, 365 S.E.2d 312 (1988).


§ 95-47.2. Licensing procedures.

  1. No person shall open, keep, maintain, own, operate or carry on a private personnel service unless the person has first procured a license therefor as provided in this Article.
  2. An application for license shall be made to the Commissioner. If the private personnel service is owned by an individual, the application shall be made by that individual; if the service is owned by a partnership, the application shall be made by all partners; if the service is owned by a corporation, the application shall be made by all stockholders who own at least twenty percent (20%) of the issued and outstanding voting stock of the corporation, or if the service is owned by an association, society, or corporation in which no one individual owns at least twenty percent (20%) of the issued and outstanding voting stock, the application shall be made by the president, vice-president, secretary and treasurer of the owner, by whatever title designated. The application shall state the name and address of the individual who is responsible for the direction and operation of the placement activities of the private personnel service whether that individual be one of the applicants or another person; whether or not that individual has ever been employed in a private personnel service; the name and address of each of the license applicant's prior employers during the five years immediately preceding the license application; and such other information relating to the good moral character of that individual as the Commissioner may require. No change in such persons shall take place without prior notification to the Commissioner.
  3. Each application for license shall be in writing and in the form prescribed by the Commissioner, and shall state truthfully the name under which the business is to be conducted; the street and number of the building or place where the business is to be conducted.
  4. Upon the receipt of an application for a license the Commissioner:
    1. Shall publish a notice of the pending application in a newspaper of general circulation in the area of the proposed location of the employment agency and may publish the notice in a newspaper of general circulation in each area in which the applicant (or if a corporation, the president and majority shareholder) has resided during the five years preceding the time of the application. The applicant shall incur the cost associated with the publication of this legal advertisement. The notice shall include a statement informing individuals of their right to protest the issuance of a license by filing within 10 days written comments with the Commissioner. The protest shall be in writing and signed by the person filing the protest or by his authorized agent or attorney, and shall state reasons why the license should not be granted. Upon the filing of a protest, the Commissioner, if he determines the protest to be of such a nature that a hearing should be conducted and that the protest is for a cause on which denial of a license may properly be based, shall appoint a time and place for a hearing on the application and shall give at least seven days' notice of that time and place to the license applicant and to the person filing the protest. The hearing shall be conducted in accordance with the provisions of the rules of the Administrative Procedure Act.
    2. Shall investigate the character, criminal record and business integrity of each applicant for agency license and shall investigate the criminal records of all persons listed as agency owners, officers, directors or managers. The applicant and all agency owners, officers, directors and managers shall assist the department in obtaining necessary information by authorizing the release of all relevant information. The applicant shall incur the cost associated with this background investigation.
    3. The Department of Public Safety may provide a criminal record check to the Commissioner for a person or agency who has applied for a license through the Commissioner. The Commissioner shall provide to the Department of Public Safety, along with the request, the fingerprints of all applicants, any additional information required by the Department of Public Safety, and a form signed by the applicants consenting to the check of the criminal record and to the use of the fingerprints and other identifying information required by the State or national repositories. The applicants' fingerprints shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of the fingerprints to the Federal Bureau of Investigation for a national criminal history check. The Commissioner shall keep all information pursuant to this subdivision privileged, in accordance with applicable State law and federal guidelines, and the information shall be confidential and shall not be a public record under Chapter 132 of the General Statutes.
    4. Upon completion of the investigation, or 60 days after the application was received, whichever is later, but in no case more than 75 days after the application was received, shall determine whether or not a license should be issued. The license shall be denied for any of the following reasons:
      1. If the applicant for agency license, or the president or majority shareholder of a corporate applicant, omits or falsifies any material information asked for in the application and required by the Commissioner.
      2. If any owner, officer, director or manager of the employment agency:
        1. Has been convicted in any state of the criminal offense of embezzlement, obtaining money under false pretenses, forgery, conspiracy to defraud or any similar offense involving fraud or moral turpitude;
        2. Was an owner, officer, director or manager of an employment agency or other business whose license was revoked or that was otherwise caused to cease operation by action of any State or federal agency or court because of violations of law or regulation relating to deceptive or unfair practices in the conduct of business;
        3. As an owner or manager of an employment agency or other business or as an employment counselor was found by any State or federal agency or court to have violated any law or regulation relating to deceptive or unfair practices in the conduct of business; or
        4. In any other demonstrable way engaged in deceptive or unfair practices in the conduct of business.
      3. If the employment agency will be operated on the same premises as a loan agency (as defined in G.S. 105-88) or collection agency (as defined in G.S. 58-70-15).
  5. If it appears upon the hearing or from the inspection, examination or investigation made by the Commissioner that the owners, partners, corporation officers or the agency manager are not persons of good moral character or that the license applicant has not complied with the provisions of this Article, the application shall be denied and a license shall not be granted. The Commissioner shall find facts to substantiate his denial of the issuance of a license. Each application shall be granted or refused within 60 days from the date of its filing, or if a hearing is held, within 75 days. Any license heretofore or hereafter issued shall expire 12 months from the date of its issuance, and shall be renewed as hereinafter provided unless sooner revoked by the Commissioner.
  6. No license shall be granted to a person to operate as a private personnel service where the name of the business is similar or identical to that of any existing licensed business (except where a franchiser has licensed two or more persons to use the same name within the State) or directly or indirectly expresses or connotes any limitation, specification or discrimination contrary to current State or federal laws against discrimination in employment.
  7. Every license shall contain the name of the person licensed and shall designate the city in which the license is issued, the name of the manager and date of the license. The license shall be displayed in a conspicuous place in the area where job applicants are received by the agency.
  8. A license granted as provided in this Article shall not be valid for any person other than the person to whom it is issued or for any place other than that designated in the license and shall not be assigned or transferred without the consent of the Commissioner, whose consent must be based on the standards contained in this Article. Applications for consent to assign or transfer shall be made in the same manner as an application for a license, and all the provisions of this Article shall apply to applications for consent. The location of a private personnel service shall not be changed without notice to the Commissioner, and any change of location shall be endorsed upon the license. A person who has obtained a license in accordance with the provisions of this Article may apply for additional licenses to conduct additional private personnel services in accordance with the provisions of this Article. The manner of application, and the conditions and terms applicable to the issuance of the additional licenses shall be the same as for an original license. The same agency manager may be designated in all such licenses.
  9. Temporary license. - If ownership of a licensed private personnel service is transferred, the department shall issue a temporary license to any new owner or successor if it appears to the department that issuance of such a license would serve the public interest. A temporary license shall be effective for a period of 90 days and shall not be renewed.
  10. Each licensee shall, before the license is issued or renewed, deposit with the department a bond payable to the State of North Carolina and executed by a surety company duly authorized to transact business in the State of North Carolina in the amount of ten thousand dollars ($10,000) and upon condition that the private personnel service will pay to applicants all refunds due under this Article and regulations adopted hereunder if the private personnel service terminates its business.

The Department of Public Safety may charge each applicant a fee for conducting the checks of criminal history records authorized by this subdivision.

History

(1929, c. 178, ss. 2, 3; 1931, c. 312, s. 3; 1979, c. 780, s. 1; 1987, c. 282, s. 12; 1989, c. 414, s. 2; 2002-147, s. 12; 2003-308, s. 9; 2014-100, s. 17.1(o).)

Editor's Note. - Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.7, is a severability clause.

Effect of Amendments. - Session Laws 2014-100, s. 17.1(o), effective July 1, 2014, in subdivision (d)(2a), substituted "Department of Public Safety" for "Department of Justice" four times.

§ 95-47.3. Fees and contracts; filing with Commissioner.

  1. Every license applicant shall file with the Commissioner a schedule of fees or charges made by the private personnel service to applicants for employment for any services rendered, stating clearly the conditions under which the private personnel service refunds or does not refund a fee, together with all rules or regulations that may in any manner affect the fees charged or to be charged for any service. Every license applicant and licensee shall include in its schedule of fees or charges a clear description of how it determines fees for placement of employment, the compensation of which is based, in whole or in part, on commission. Changes in the schedule may be made, but no change shall become effective until seven calendar days after the filing thereof with the Commissioner. It is unlawful for a private personnel service to charge, demand, collect or receive a greater compensation from an applicant for employment for any service performed than as specified in the schedule filed with the Commissioner.
  2. Every license applicant shall file with the Commissioner a copy of the contract which the private personnel service will require applicants for employment to execute.

History

(1979, c. 780, s. 1; 1991 (Reg. Sess., 1992), c. 970, s. 1.)

§ 95-47.3A. Fee reimbursement from employers due to overstated earnings expectations.

  1. An applicant who accepts employment that is compensated in whole or in part on a commission basis, and who pays a fee to the licensee calculated on the commission-based compensation amount stated by the employer in the written job order, may file a written complaint with the Commissioner if the applicant did not earn at least eighty percent (80%) of the compensation amount stated by the employer in the written job order. If the applicant files the written complaint before the period upon which the anticipated earnings is based has ended, the Commissioner shall prorate the amount earned over the period of time the applicant worked prior to the filing of the complaint in order to determine whether or not the applicant earned at least eighty percent (80%) of the compensation amount stated by the employer in the written job order.
  2. The Commissioner shall investigate all complaints filed pursuant to subsection (a) of this section. After completion of the investigation and a hearing, the Commissioner shall order the employer to reimburse the applicant for part or all of the fee paid by the applicant to the licensee if the Commissioner finds the applicant is entitled to the refund based on all of the following:
    1. The applicant did not earn at least eighty percent (80%) of the compensation amount stated by the employer in the written job order;
    2. The licensee reasonably relied on the compensation information provided by the employer in calculating the fee paid by the applicant;
    3. It is unrealistic to expect that an employee could earn substantially the amount of commission-based compensation stated by the employer in the written job order filed with the licensee; and
    4. The fee paid by the applicant to the licensee was calculated based on the commission-based compensation stated by the employer in the written job order.
  3. The reimbursement due the applicant under subsection (b) shall be the difference between the fee actually paid by the applicant to the licensee, and the fee that the applicant would have paid if the compensation stated by the employer in the written job order had been what the applicant actually earned or reasonably could have earned during the applicable employment period.
  4. The Commissioner shall adopt rules setting forth procedures for complaints and investigations, and standards for determining whether a statement by the employer in the licensee's written job order of potential or anticipated commission-based earnings is realistic under the circumstances. The Commissioner or his authorized representative shall have power to administer oaths and examine witnesses, issue subpoenas, compel the attendance of witnesses and the production of papers, books, accounts, records, payrolls, documents, and take depositions and affidavits in any proceeding hereunder. Additionally, the Commissioner shall adopt rules setting forth procedures for enforcement of any order made under subsections (b) and (c) of this section. Rules adopted by the Commissioner pursuant to this section shall be in accordance with Chapter 150B of the General Statutes.
  5. The Commissioner shall enforce and administer the provisions of this section, and the Commissioner or his authorized representative is empowered to hold hearings and to institute civil proceedings to collect on behalf of the applicant any amounts determined to be owed by the employer.

History

(1991 (Reg. Sess., 1992), c. 970, s. 3.)

§ 95-47.4. Contracts; contents; approval; tying contracts forbidden.

  1. A contract between a private personnel service and an applicant shall be in writing, labeled as a contract, physically separate from any application and made in duplicate. One copy shall be given to the applicant and the other shall be kept by the private personnel service as required by G.S. 95-47.5(2).
  2. Any contract that obligates an applicant to pay a fee to the private personnel service shall include:
    1. The name, address and telephone number of the private personnel service;
    2. The name of the applicant;
    3. The date the contract was signed;
    4. A clear schedule of the fees to be charged to the applicant at various salary levels;
    5. A clear explanation of when the applicant becomes obligated to pay a fee;
    6. A clear refund policy (or no refund policy) that conforms to the requirements of G.S. 95-47.4(f) and (g);
    7. If the applicant is obligated whether or not the applicant accepts employment, a clear explanation of the services provided and a statement that the private personnel service does not guarantee that the applicant will obtain employment as a result of its services;
    8. A statement, in a type size no smaller than nine point, directly above the place for the applicant's signature, that reads as follows: "I have read and received a copy of this CONTRACT, which I understand makes me legally obligated to pay a fee under conditions outlined above." In the preceding statement the word "CONTRACT" and no others shall be in all capitals; and
    9. A statement that the private personnel service is licensed and regulated by the Commissioner and the address at which a copy of laws and regulations governing private personnel services may be obtained.
  3. A copy of each contract form to be used with applicants shall be filed with the Commissioner. Until the private personnel service receives written notification from the Commissioner that the form conforms to the requirements of this Article and regulations adopted hereunder, it shall not be used with applicants.
  4. A private personnel service shall not require an applicant to sign a contract with the private personnel service before the applicant has had an opportunity to read the contract and discuss the contract with an employee of the personnel agency who regularly arranges contacts and assists in negotiations between employers and applicants. A private personnel service shall not coerce an applicant into signing a contract by applying or using duress, undue influence, fraud or misrepresentation sufficient to invalidate the contract under North Carolina law.
  5. Any contract that obligates an applicant to pay a fee to the private personnel service when the applicant accepts employment shall be physically separate from any contract that obligates an applicant to pay a fee whether or not the applicant accepts employment. A private personnel service shall not require an applicant to sign one contract as a prerequisite to signing another contract or to pay a fee as a prerequisite to signing a contract. Express violations of this subsection are the following:
    1. Refusal to allow an applicant to contract for counseling, job information or resume writing services, if the applicant does not agree to pay an additional fee upon acceptance of employment; and
    2. Refusal to allow an applicant to contract for services which obligate the applicant only upon acceptance of employment, if the applicant does not agree to pay a registration fee or to contract for counseling, resume writing or other services.
  6. If a private personnel service has a refund policy, included on each contract that obligates an applicant upon acceptance of employment will be a statement defining:
    1. The length of the period of time covered by the refund policy;
    2. The exact manner of computing the refund so that the amount of refund due the applicant will be clear;
    3. The conditions under which a refund becomes due to the applicant. The conditions of the refund, if other than unconditional policy is used, shall contain a definition of the reasons for which a refund will not be made. A refund will not be denied except for a reason so stated in the definition of the contract;
    4. A personnel service shall abide by the refund policy stated on its contract by promptly paying to applicants any refund due under the terms of the contract.
  7. If a private personnel service has no refund policy, the private personnel service shall include on each contract that obligates an applicant upon acceptance of employment, in a type size no smaller than nine point, a statement that reads as follows:
  8. If a private personnel service places an applicant in a position of employment, the compensation of which is based, in whole or in part, on commission, the private personnel service shall:
    1. Have a written job order from the employer that includes the anticipated earnings upon which the private personnel service may base its fee, or
    2. In lieu of the written job order required by subdivision (1) of this subsection, have a policy of providing the same fee reimbursement as may be available to applicants from employers under the provisions of G.S. 95-47.3A.

"______________ (name of private personnel service) will make NO REFUND under any circumstances of fees paid by the applicant." In the preceding statement the words NO REFUND and no others shall be in all capitals.

In no case may the applicant collect the same reimbursement from both the employer and the private personnel service. When the private personnel service elects to obtain the written job order from the employer and not have its own reimbursement policy as described in subdivision (2) of this subsection, the private personnel service shall explain to the applicant and the employer how the fee for the placement is calculated, and shall inform in writing both the applicant and the employer of the provisions of G.S. 95-47.3A governing fee refunds from employers.

History

(1979, c. 780, s. 1; 1991 (Reg. Sess., 1992), c. 970, s. 2; 1993, c. 202, s. 1; 1993 (Reg. Sess., 1994), c. 769, s. 29(a).)

§ 95-47.5. Records.

Every private personnel service shall maintain for a period of two years, the following records:

  1. Job orders or job specifications.
  2. Executed applicant contracts.
  3. Information on all placements made, including the employer's name and address; name and address of applicant placed; salary of the position; amount of fee charged; and refunds, where applicable.

History

(1929, c. 178, s. 4; 1931, c. 312, s. 3; 1979, c. 780, s. 1.)

§ 95-47.6. Prohibited acts.

A private personnel service shall not engage in any of the following activities or conduct:

  1. Induce or attempt to induce any employee placed by that private personnel service to terminate his employment in order to obtain other employment through the private personnel service; or procure or attempt to procure the discharge of any person from his employment.
  2. Publish or cause to be published any false or fraudulent information, representation, promise, notice or advertisement.
  3. Advertise in newspapers or otherwise, unless the advertising contains the name of the private personnel service and the word "personnel service."
  4. Direct an applicant to visit or call upon an employer for the purpose of obtaining employment without having first obtained a job order or authorization from the employer for the interview. A private personnel service may attempt to sell the services of an applicant to an employer from whom no job order has been received and may charge a fee if the efforts result in the applicant's being employed.
  5. Send or cause to be sent any person to any employer where the private personnel service knows that the prospective employment is or would be in violation of State or federal laws governing minimum wages or child labor, or has been notified that a labor dispute is in progress, without notifying the applicant of that fact, or knowingly arrange an interview for an employment or occupation prohibited by law.
  6. Send or cause to be sent any person to any place which the private personnel service knows is maintained for immoral or illicit purposes.
  7. Divide or share, either directly or indirectly, the fees collected by the private personnel service, with contractors, sub-contractors, employers or their agents, foremen or anyone in their employ, or if the contractors, sub-contractors or employers be a corporation, any of the officers, directors or employees of the corporation to whom applicants for employment are sent.
  8. Make, cause to be made, or use any name, sign or advertising device bearing a name which is similar to or may reasonably be confused with the name of a federal, State, city, county or other governmental unit or agency.
  9. Knowingly make any false or misleading promise or representation or give any false or misleading information to any applicant or employer in regard to any employment, work or position, its nature, location, duration, compensation or the circumstances surrounding any employment, work or position including the availability thereof.
  10. Accept a registration fee from an applicant.
  11. Impose or attempt to collect any fee from any applicant unless that applicant accepts employment with an employer to which the applicant was directly or indirectly introduced by the private personnel service.
  12. A fee may be charged for resume writing provided the private personnel service does not require the applicant to become obligated for any other services.

History

(1979, c. 780, s. 1.)

Legal Periodicals. - For note, "Consumer Protection - The Unfair Trade Practice Act and the Insurance Code: Does Per Se Necessarily Preempt?," see 10 Campbell L. Rev. 487 (1988).

CASE NOTES

A private personnel service violated subdivision (2) of this section by advertising that "pre-screened, qualified applicants" were quickly available through it, where the work experience and reliability of the applicants had been neither investigated nor verified. Winston Realty Co. v. G.H.G., Inc., 70 N.C. App. 374, 320 S.E.2d 286 (1984), aff'd, 314 N.C. 90, 331 S.E.2d 677 (1985).

Misappropriation of Trade Secrets. - In a data company's action against a competitor that hired its former employee, the court upheld the jury verdict for the plaintiff because punitive damages for an unfair trade practice were warranted because of an unjustified interference with an employment contract and not due to misappropriation of trade secrets. Legacy Data Access, LLC v. Mediquant, Inc., - F. Supp. 2d - (W.D.N.C. Dec. 4, 2017).

The jury was at liberty to conclude that some of plaintiff 's damages proximately resulted from representations made by private personnel service as to the qualifications of applicants, where the plaintiff 's witness testified that he relied upon defendant's false representations in hiring an employee through the private personnel service. Winston Realty Co. v. G.H.G., Inc., 70 N.C. App. 374, 320 S.E.2d 286 (1984), aff'd, 314 N.C. 90, 331 S.E.2d 677 (1985).

Unfair or Deceptive Trade Practices. - A violation of either or both subdivisions (2) and (9) of this section as a matter of law constitutes an unfair or deceptive trade practice in violation of G.S. 75-1.1. Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 331 S.E.2d 677 (1985).

Proof of fraud necessarily constitutes a violation of the prohibition against unfair and deceptive acts. Winston Realty Co. v. G.H.G., Inc., 314 N.C. 90, 331 S.E.2d 677 (1985).

Cited in Gray v. North Carolina Ins. Underwriting Ass'n, 352 N.C. 61, 529 S.E.2d 676 (2000).


§ 95-47.7: Repealed by Session Laws 2003-308, s. 10, effective July 1, 2003.

§ 95-47.8: Repealed by Session Laws 2003-308, s. 11, effective July 1, 2003.

§ 95-47.9. Enforcement of Article; rules; hearing; penalty; criminal penalties.

  1. This Article shall be enforced by the Commissioner. The Commissioner or any duly authorized agent, deputies or assistants designated by the Commissioner, may upon receipt of a complaint that a private personnel service has violated a specific section of this Article, inspect those records relevant to the complaint which this Article requires the private personnel service to retain. The Commissioner may also subpoena those records and witnesses and may conduct investigations of any employer or other person where the Commissioner has reasonable grounds for believing that the employer or person has conspired or is conspiring with a private personnel service to violate this Article.
  2. The Commissioner shall adopt rules necessary to carry out and administer the provisions of this Article.
  3. Complaints against any licensed person shall be made in writing to the Commissioner.
    1. If the complaint alleges a violation of this Article, the Commissioner shall cause an investigation to be made. If, as a result of the investigation, the Commissioner has reason to believe that a material violation of this Article has been committed by a private personnel service, the Commissioner may, after compliance with Chapter 150B of the General Statutes, deny, suspend, or revoke a license issued under this Article if it is determined that the licensee or any employee of the licensee is guilty of violating the provisions of this Article. In addition, the Commissioner may issue warnings or levy a fine against the private personnel service that shall not exceed two hundred fifty dollars ($250.00).
    2. The denial, revocation, or suspension of a license or the issuance of a warning or fine by the Commissioner shall be in writing, shall be signed by the Commissioner or the Commissioner's designee, and shall state the grounds upon which the decision is based. The aggrieved person shall have the right to appeal from the decision as provided by Chapter 150B of the General Statutes.
  4. Whenever a license is revoked pursuant to subsection (c) of this section, another license shall not be issued to the same person within three years from the date of the revocation.
  5. Any person who operates as a private personnel service without first obtaining the appropriate license (i) shall be guilty of a Class 1 misdemeanor; and (ii) be subject to a civil penalty of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100.00) for each day the private personnel service operates without a license, the penalty not to exceed a total of two thousand dollars ($2,000). Actions to recover civil penalties shall be initiated by the Attorney General. The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.

History

(1929, c. 178, ss. 3-5, 7, 9; 1931, c. 312, s. 3; 1979, c. 780, s. 1; 1993, c. 539, s. 663; 1994, Ex. Sess., c. 24, s. 14(c); 1998-215, s. 109; 2003-308, s. 12.)

§ 95-47.10. Power of Commissioner to seek injunction.

The Commissioner may apply to courts having jurisdiction for injunctions to prevent violations of this Chapter or of rules issued pursuant thereto, and such courts are empowered to grant such injunctions regardless of whether criminal prosecution or other action has been or may be instituted as a result of such violation. A single act of unauthorized or illegal practice shall be sufficient, if shown, to invoke the injunctive relief of this section or criminal or civil penalties under G.S. 95-47.9(e).

History

(1979, c. 780, s. 1.)

§ 95-47.11. Government employment agencies unaffected.

This Article shall not in any manner affect or apply to the State of North Carolina, the government of the United States, or to any city, county or town, or any agency of any of those governments.

History

(1929, c. 178, s. 10; 1979, c. 780, s. 1.)

§ 95-47.12. License taxes placed upon agencies not affected.

This Article is not intended to conflict with or affect any license tax placed upon private personnel services by the revenue laws of North Carolina, but instead shall be construed as supplementary thereto in exercising the police powers of the State.

History

(1929, c. 178, s. 11; 1979, c. 780, s. 1.)

§ 95-47.13. Severability.

If any provision of this Article or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications, and to this end the provisions of this Article are severable.

History

(1929, c. 178, s. 9; 1979, c. 780, s. 1.)

§ 95-47.14. Notification requirement.

Any temporary help service as described in G.S. 95-47.1(16)c that operates in North Carolina shall notify the Department of Labor in writing that the temporary help service:

  1. Operates only as a temporary help service;
  2. Establishes an employer-employee relationship with its temporaries;
  3. Does not operate as a private personnel service or an employer fee paid personnel consulting service.

History

(1989, c. 414, s. 3.)

§ 95-47.15. Certification requirement.

Any employer fee paid personnel consulting service or temporary help service, as the two terms are described in G.S. 95-47.1(16)f, that operates in North Carolina shall certify annually to the Department of Labor on a form prescribed by the Commissioner that the service:

  1. Operates on a one hundred percent (100%) employer fee paid basis;
  2. Requires no applicant placement contract; and
  3. Has no recourse against an applicant for a fee under any circumstances.

History

(1989, c. 414, s. 3.)

§§ 95-47.16 through 95-47.18: Reserved for future codification purposes.

ARTICLE 5B. Regulation of Job Listing Services.

Sec.

§§ 95-47.19 through 95-47.32: Repealed by Session Laws 2021-82, s. 4(a), effective July 8, 2021.

History

(G.S. 95-47.19: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.20: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.21: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.22: 1979, c. 780, s. 2; 1993, c. 172, s. 1; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.23: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.24: 1979, c. 780, s. 2; 1993, c. 172, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.25: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.26: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.27: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.28: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.29: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.30: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.31: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021. G.S. 95-47.32: 1979, c. 780, s. 2; repealed by 2021-82, s. 4(a), effective July 8, 2021.)

Editor's Note. - Former G.S. 95-47.19 pertained to definitions. Former G.S. 95-47.20 pertained to license required. Former G.S. 95-47.21 pertained to violation of this Article; criminal and civil penalty. Former G.S. 95-47.22 pertained to licensing procedure. Former G.S. 95-47.23 pertained to enforcement. Former G.S. 95-47.24 pertained to certain practices prohibited. Former G.S. 95-47.25 pertained to contracts; contents; approval. Former G.S. 95-47.26 pertained to advertising and publication. Former G.S. 95-47.27 pertained to fee receipts. Former G.S. 95-47.28 pertained to prohibited job listings. Former G.S. 95-47.29 pertained to records of the job listing service. Former G.S. 95-47.30 pertained to administration of this Article. Former G.S. 95-47.31 pertained to review of job listing services. Former G.S. 95-47.32 pertained to severability.

ARTICLE 6. Separate Toilets for Sexes.

§§ 95-48 through 95-53: Repealed by Session Laws 1993, c. 204, s. 1.

ARTICLE 7. Board of Boiler Rules and Bureau of Boiler Inspection.

§§ 95-54 through 95-69.7: Repealed by Session Laws 1981 (Regular Session, 1982), c. 1187, s. 1.

Editor's Note. - Repealed G.S. 95-69.3 to 95-69.7 were reserved sections.

ARTICLE 7A. Uniform Boiler and Pressure Vessel Act.

Sec.

§ 95-69.8. Short title.

This Article shall be known as the Uniform Boiler and Pressure Vessel Act of North Carolina.

History

(1975, c. 895, s. 1.)

§ 95-69.9. Definitions.

  1. Repealed by Session Laws 2015-221, s. 2.7, effective August 18, 2015.
  2. The term "boiler" shall mean a closed vessel in which water is heated, steam is generated, steam is superheated, or any combination thereof, under pressure or vacuum by the direct or indirect application of heat. The term "boiler" shall also include fired units for heating or vaporizing liquids other than water where these units are complete within themselves.
  3. The term "Chief Inspector" shall mean the individual appointed by the Commissioner to hold the office of Chief of the Boiler Safety Bureau within the Department of Labor. The Chief Inspector serves as the North Carolina member on the National Board of Boiler and Pressure Vessel Inspectors.
  4. The term "Commissioner" shall mean the North Carolina Commissioner of Labor.
  5. Repealed by Session Laws 2005-453, s. 1.
  6. The term "Deputy Inspector" shall mean any Boiler and Pressure Vessel Inspector who is employed by the Department of Labor and is subordinate to the Chief Inspector.
  7. The term "inspection certificate" or "certificate of inspection" shall mean certification by the Chief Inspector that a boiler or pressure vessel is in compliance with the rules and regulations adopted under this Article.
  8. The term "inspector's commission" shall mean a written authorization by the Commissioner for a person who has met the qualifications set out in this Article to conduct inspections of boilers and pressure vessels.
  9. The term "National Board" shall mean the National Board of Boiler and Pressure Vessel Inspectors.
  10. The term "person" shall mean any individual, association, partnership, firm, corporation, private organization, or the State of North Carolina or any political subdivision of the State or any unit of local government.
  11. The term "pressure vessel" shall mean a vessel in which the pressure is obtained from an indirect source or by the application of heat from an indirect source or a direct source, other than those included within the term "boiler".

History

(1975, c. 895, s. 2; 1993, c. 351, s. 1; 2005-453, s. 1; 2015-221, s. 2.7.)

Effect of Amendments. - Session Laws 2005-453, s. 1, effective October 1, 2005, in subsection (b), substituted "by the direct or indirect application of heat" for "for use externally to itself by the application of heat from the combustion of fuels, or from electricity or nuclear energy" in the first sentence, and "The term 'boiler' ... are complete" for "This term 'boiler' shall also include fired units for heating or vaporizing liquids other than water where these units are separate from processing systems and are complete" in the second sentence; deleted former subsection (d), which read: "The term 'Director' shall mean the individual appointed by the Commissioner to hold the office of Director of the Boiler and Pressure Vessel Division within the Department of Labor"; in subsection (e), inserted "or 'certificate of inspection'" preceding "shall mean certification" and substituted "Chief Inspector" for "Director"; added subsections (b1), (d1), (f1) and (f2); and made minor punctuation changes.

Session Laws 2015-221, s. 2.7, effective August 18, 2015, repealed subsection (a).

§ 95-69.10. Application of Article; exemptions.

  1. This Article shall apply to all boilers and pressure vessels constructed, used, or designed for operation in this State including all new and existing installations unless specifically excluded by subsection (b) of this section.
  2. This Article shall not apply to:
    1. Boilers and pressure vessels owned or operated by the federal government, unless the agency in question has asked for coverage by this Article.
    2. Pressure vessels used for transportation or storage of compressed gases when constructed in compliance with the specifications of the United States Department of Transportation and when charged with gas marked, maintained, and periodically requalified for use, as required by appropriate regulations of the United States Department of Transportation.
    3. Portable pressure vessels used for agricultural purposes only or for pumping or drilling in an open field for water, gas or coal, gold, talc, or other minerals and metals.
    4. Boilers and pressure vessels which are located in private residences or in apartment houses of less than six families.
    5. Repealed by Session Laws 2007-231, s. 1, effective July 18, 2007.
    6. Air tanks located on vehicles licensed under the rules and regulations of other state authorities operating under rules and regulations substantially similar to those of this State and used for carrying passengers or freight within interstate commerce.
    7. Air tanks installed on right-of-way of railroads and used directly in the operation of trains.
    8. Any of the following pressure vessels that do not exceed the listed limitations if the vessel is not equipped with a quick actuating closure:
      1. Five cubic feet in volume and 250 psig.
      2. Three cubic feet in volume and 350 psig.
      3. One and one-half cubic feet in volume and 600 psig.
      4. An inside diameter of six inches with no limitation on pressure.
      5. Five cubic feet in volume when the pressure vessel is constructed and operated on the same real property zoned industrial and where its operation is undertaken using commercially acceptable safety precautions for the application.
    9. Pressure vessels operating at a working pressure not exceeding 15 psig.
    10. Pressure vessels with a nominal water capacity not exceeding 120 gallons and containing water under pressure at temperatures not exceeding 120øF, including those containing air, the compression of which serves as a cushion.
    11. Boilers and pressure vessels on railroad steam locomotives that are subject to federal railway safety regulations pursuant to 49 C.F.R. § 230.
    12. Repealed by Session Laws 1985, c. 620, s. 2.
    13. Coil-type hot water supply boilers, generally referred to as steam jennies, where the water can flash into steam when released directly to the atmosphere through a manually operated nozzle and where adequate safety relief valves and controls are installed on them, provided none of the following limitations are exceeded:
      1. There is no drum, header, or other steam space.
      2. No steam is generated within the coil.
      3. Maximum 1 inch tube size.
      4. Maximum 3/4 inch nominal pipe size.
      5. Maximum 6 gallon nominal water storage capacity.
      6. Water temperature of 350øF.
    14. Pressure vessels containing water at a temperature not exceeding 110 degrees fahrenheit except that this provision shall not exclude hydropneumatic pressure vessels from regulation.
    15. An air tank that does not exceed eight cubic feet in volume that is installed on a service vehicle.
    16. Autoclaves in medical offices and hospitals that are less than five cubic feet in volume, even if they are equipped with a quick actuating closure.
    17. Coil-type hot water supply boilers of the instantaneous type where adequate safety relief valves and controls are installed if none of the following limitations are exceeded:
      1. There is no drum or header.
      2. No steam is generated within the coil.
      3. Maximum one-inch tube size.
      4. Maximum three-quarter-inch nominal pipe size.
      5. Maximum six-gallon nominal water storage capacity.
      6. Water temperature not to exceed 250øF.
      7. Maximum heat input does not exceed 400,000 Btu/hr or 110 kW.
      8. Maximum pressure of 260 psig.
    18. Toy boilers, if all of the following apply:
      1. The water containing volume of the boiler is less than one quart.
      2. The operating pressure does not exceed 15 psig.
      3. The maximum outside diameter of the shell is no greater than six inches.
      4. The boiler is manually fired by solid fuels.
    19. Pressure vessels associated with electrical apparatus in electrical switchyards if the pressure vessels have proper pressure relief devices.
    20. Carbon dioxide tanks used in beverage dispensing service.
  3. The construction and inspection requirements established by the Department of Labor shall not apply to hot water supply boilers or water heaters which are directly fired with oil, gas, or electricity, or to hot water storage tanks heated by steam or any other indirect means, if they are equipped with ASME Code and National Board certified safety relief valves and do not exceed any of the following limitations:
    1. Heat input of 200,000 Btu/hr or 58.6 kW.
    2. Repealed by Session Laws 2005-453, s. 2.
    3. Nominal water capacity of 120 gallons.
  4. The construction requirements established by the Department of Labor shall not apply to pressure vessels installed in this State prior to December 31, 1981, if they are equipped with ASME Code and National Board certified safety relief valves and:
    1. Are of one-piece, unwelded, forged construction;
    2. Are constructed before January 1, 1981, and operating or could be operated, under the laws of any state or Canadian Province that has adopted one or more sections of the ASME Code;
    3. Are transferred into this State without a change of ownership; and
    4. Are determined by the Chief Inspector to be constructed under standards substantially equivalent to those established by the department at the time of transfer.
  5. The construction requirements established by the Department of Labor shall not apply to pressure vessels installed in this State prior to December 31, 1984, if they are equipped with ASME Code and National Board certified safety relief valves and:
    1. Are manufactured from gray iron casting material, as specified by the American Society for Testing and Materials, (ASTM) 48-60T/30;
    2. Are constructed before December 31, 1967, and operating or could be operated, under the laws of any state or Canadian Province that has adopted one or more sections of the ASME Boiler and Pressure Vessel Code;
    3. Are transferred into this State without a change of ownership; and
    4. Are determined by the Chief Inspector to be constructed under standards substantially equivalent to those established by the department at the time of transfer.
  6. The construction requirements established by the Department of Labor shall not apply to hydropneumatic tanks installed or operated by a community water system prior to January 1, 1986.
  7. The inspection requirements established by the Department of Labor shall not apply to pressure vessels used for transportation or storage of liquefied petroleum gas that are subject to inspection in accordance with the requirements established by the Department of Agriculture and Consumer Services.

History

(1975, c. 895, s. 3; 1979, c. 920, ss. 1, 2; 1981, c. 591; 1983, c. 654; 1985, c. 620, ss. 1, 2; c. 629; 1993, c. 351, s. 2; 2005-453, s. 2; 2007-231, s. 1; 2011-366, ss. 1, 2, 3; 2017-211, s. 18.)

Editor's Note. - Session Laws 2017-211, s. 21(a), is a severability clause.

Effect of Amendments. - Session Laws 2005-453, s. 2, effective October 1, 2005, substituted "or operated by the federal government, unless the agency in question has asked for coverage by this Article" for "and/or operated by the federal government" in subdivision (b)(1); rewrote subdivision (b)(8); substituted "PSIG pressure" for "psig" in subdivision (b)(9); substituted "not exceeding 120 gallons and containing water under pressure at temperatures not exceeding 120 ø F" for "of 120 gallons or less and containing water under pressure at ambient temperature" in subdivision (b)(10); added subdivisions (b)(15) through (b)(20); substituted "Btu/hr or 58.6 kW" for "BTU HR" in subdivision (c)(1); repealed former subdivision (c)(2), which read: "Water temperature of 200 degrees F"; substituted "unwelded, forged construction" for "forged construction and have no weldments" in subdivision (d)(1); substituted "Chief Inspector" for "Director" in subdivisions (d)(4) and (e)(4); added subsection (f); and made minor punctuation and stylistic changes.

Session Laws 2007-231, s. 1, effective July 18, 2007, deleted former subdivision (b)(5) which read: "Pressure vessels used for transportation or storage of liquified petroleum gas."; substituted "railway safety regulations pursuant to 49 C.F.R. § 230" for "safety regulations" at the end of subdivision (b)(11); and added subsection (g).

Session Laws 2011-366, ss. 1 through 3, effective June 27, 2011, rewrote subsections (a) and (c) through (e); and in subdivision (b)(17), substituted "drum or header" for "drum, header, or other steam space."

Session Laws 2017-211, s. 18, effective October 5, 2017, added subdivision (b)(8)e.

§ 95-69.11. Powers and duties of Commissioner.

The Commissioner of Labor is hereby charged, directed, and empowered:

  1. To adopt, modify, or revoke rules governing the construction, operation, and use of boilers and pressure vessels, including, where necessary, requirements for fencing to prevent unauthorized persons from coming in contact with boilers and pressure vessels or the systems they are connected to.
  2. To delegate to the Chief Inspector any powers, duties, and responsibilities that the Commissioner determines will best serve the public interest in the safe operation of boilers and pressure vessels, and to supervise the Chief Inspector in the performance of those duties.
  3. To enforce rules adopted under authority of this Article.
  4. To inspect boilers and pressure vessels covered under this Article.
  5. To issue inspection certificates to those boilers and pressure vessels found in compliance with this Article.
  6. To enjoin violations of this Article in the civil and criminal courts of this State.
  7. To keep adequate records of the type, dimensions, age, conditions, pressure allowed upon, location, and date of the last inspection of all boilers and pressure vessels to which this Article applies.
  8. To require such periodic reports from inspectors, owners, and operators of boilers and pressure vessels as he deems appropriate in carrying out the purposes of this Article.
  9. To have free access, without notice, to any location in this State, during reasonable hours, where a boiler or pressure vessel is being built, installed, or operated for the purpose of ascertaining whether such boiler or pressure vessel is built, installed, or operated in accordance with the provisions of this Article.
  10. To investigate serious accidents involving boilers and pressure vessels to determine the causes of the accidents, and to have full subpoena powers in conducting the investigation.
  11. To establish reasonable fees for the inspection and issuance of inspection certificates for boilers and pressure vessels that are in use.
  12. To establish reasonable fees for the examination and certification of inspectors.
  13. Repealed by Session Laws 2015-221, s. 1.3, effective August 18, 2015.
  14. To perform inspections and audits relating to the construction and repair of boilers and pressure vessels and to establish and collect fees for these activities.
  15. To order the payment of civil penalties provided by this section.
  16. To require that before any boiler or pressure vessel that is subject to this Article is transferred into the State, or is moved from one location to another within the State, the owner or the owner's authorized agent shall file with the Commissioner a written notice of intent to do so and the type of device involved and provide a copy of the specifications, previous inspection documents, or other information that the Commissioner deems necessary to determine whether the boiler or pressure vessel is in compliance with the provisions of this Article and the rules adopted under this Article.
  17. To grant exceptions from the requirements of the rules and regulations adopted under authority of this Article and to permit the use of other devices when such exceptions and uses will not expose the public to an unsafe condition likely to result in serious personal injury or property damage.
  18. To devise and proctor examinations covering this Article and the rules adopted under this Article to applicants seeking a commission as inspectors of boilers and pressure vessels in this State.
  19. To act as proctors during the administration of the National Board commissioning examination.
  20. To issue, suspend, or revoke inspector's commissions as inspectors of boilers and pressure vessels within this State. Whenever action is taken under this section to suspend or revoke a commission, the affected party shall be given notice of the availability of an administrative hearing and of judicial review in accordance with Chapter 150B of the General Statutes, the Administrative Procedure Act.

History

(1975, c. 895, s. 4; 1985, c. 620, s. 3; 1993, c. 351, s. 3; 2005-453, s. 3; 2011-366, s. 4; 2015-221, s. 1.3.)

Effect of Amendments. - Session Laws 2005-453, s. 3, effective October 1, 2005, rewrote subdivision (2); and added subdivisions (15) and (16).

Session Laws 2011-366, s. 4, effective June 27, 2011, added subdivision (17).

Session Laws 2015-221, s. 1.3, effective August 18, 2015, deleted former subdivision (13) and added subdivisions (18) through (20).

§ 95-69.12. Boiler Safety Bureau established.

There is established a Boiler Safety Bureau within the Department of Labor. The Commissioner shall appoint a Chief Inspector of the Boiler Safety Bureau and any other employees that the Commissioner deems necessary to assist the Chief Inspector in administering the provisions of this Article and the rules adopted under this Article.

History

(1975, c. 895, s. 5; 1981 (Reg. Sess., 1982), c. 1187, ss. 2, 3; 2005-453, s. 4.)

Effect of Amendments. - Session Laws 2005-453, s. 4, effective October 1, 2005, rewrote the section heading and text.

§ 95-69.13: Repealed by Session Laws 2015-221, s. 2.6, effective August 18, 2015.

History

(1975, c. 895, s. 6; 1977, c. 788; 1981 (Reg. Sess., 1982), c. 1187, s. 4; 1983, c. 717, s. 16; 1985, c. 620, s. 5; 2005-453, s. 5; repealed by 2015-221, s. 2.6, effective August 18, 2015.)

Editor's Note. - Former G.S. 95-69.13 pertained to the Board of Boiler and Pressure Vessels Rules created; appointment, terms, compensation and duties.

§ 95-69.14. Rules and regulations governing the construction, operation and use of boilers and pressure vessels.

The Commissioner may adopt, modify, or revoke any rules and regulations governing the construction, installation, repair, alteration, inspection, use, and operation of boilers and pressure vessels as the Commissioner deems appropriate to insure the safe operation and avoidance of injury to person or property from boilers and pressure vessels. The rules and regulations will conform as nearly as possible to the standards of the American Society of Mechanical Engineers and the amendments and interpretations of those engineering standards.

The procedure for the adoption, modification, or revocation of the rules and regulations shall be in accordance with Chapter 150B of the General Statutes, the Administrative Procedure Act.

History

(1975, c. 895, s. 7; 1985, c. 620, s. 4; 1987, c. 827, s. 1; 2005-453, s. 6; 2015-221, s. 2.8.)

Effect of Amendments. - Session Laws 2005-453, s. 6, effective October 1, 2005, rewrote this section.

Session Laws 2015-221, s. 2.8, effective August 18, 2015, deleted "after consultation with the Board" following "The Commissioner" at the beginning of the first sentence of the first designated paragraph.

§ 95-69.15. Classification of inspectors; qualifications; examinations; inspector's commission.

  1. There shall be three types of inspectors authorized to conduct inspections and report their findings to the Chief Inspector under this Article:
    1. Boiler and Pressure Vessel Inspector or Deputy Inspector. - Shall be a qualified individual, employed by the Department of Labor and appointed by the Commissioner, to assist in conducting inspections under this Article and report on the suitability of boilers and pressure vessels so inspected.
    2. Special Inspector or Insurance Inspector. - Shall be a qualified individual regularly employed by an insurance company authorized to insure in this State against injury to person or property or both from explosions and accidents involving boilers and pressure vessels. Special Inspectors shall not include employees of private contract inspection agencies.
    3. Owner-User Inspectors. - Shall be a qualified individual employed on a full-time basis by a company operating pressure vessels for its own use and not for resale, and maintains an established inspection program for periodic inspection of pressure vessels owned or used by that company and where such inspection program is under the supervision of one or more engineers having qualifications satisfactory to the Commissioner.
  2. Inspector's Commission. - Any company authorized to insure in this State against loss to person or property as a result of an explosion or accident involving boilers and pressure vessels or operating boilers or pressure vessels or both for its own use and not for resale, may apply for the issuance of an inspector's commission for an individual within its employ who has a commission from the National Board.
  3. Repealed by Session Laws 2007, c. 231, s. 2, effective July 18, 2007.

A North Carolina commission authorizes an inspector to make inspections on boilers and pressure vessels and report on the suitability of said boilers and pressure vessels to the Chief Inspector. Those inspectors holding commissions as special inspectors shall be limited to making inspections on boilers and pressure vessels insured by their employer. Owner-user inspectors shall be limited to conducting inspections on boilers and pressure vessels operated by their respective employers.

A person seeking a commission from this State to conduct in-service inspections of boilers and pressure vessels must take and pass an examination on this Article and the rules adopted pursuant to this Article prior to receiving the commission. Any person who has had a commission in this State but who has been inactive for more than one year must take or retake and pass the State examination before conducting further in-service inspections of boilers and pressure vessels.

History

(1975, c. 895, s. 8; 2005-453, s. 7; 2007-231, s. 2.)

Effect of Amendments. - Session Laws 2005-453, s. 7, effective October 1, 2005, substituted "Chief Inspector" for "Director" in subsection (a); in subdivision (a)(1), added "or Deputy Inspector" to the catchline and inserted "employed by the Department of labor and" preceding "appointed by"; in subdivision (a)(2), added "or Insurance Inspector" for the end of the catchline, substituted "or property or both" for "and/or property" and added the last sentence; in subdivision (a)(3), deleted "boilers or" preceding the first occurrence of "pressure vessels" and "boilers and" preceding the second occurrence; rewrote subsections (b) and (c); and made minor punctuation changes.

Session Laws 2007-231, s. 2, effective July 18, 2007, deleted "certificates of competency;" preceding "inspector's commission" in the section heading; and deleted former subsection (c) which read: "Certificates of Competency. Certificates of competency may be issued by the Chief Inspector to those persons who take and pass a National Board commissioning examination administered by the Board."

§ 95-69.16. Inspection certificate required.

All boilers and pressure vessels subject to the provisions of this Article shall be inspected by a commissioned inspector. The Commissioner may determine both the frequency and the method of inspection. In determining the frequency of inspection, the Commissioner shall give due consideration to the hazard involved and the need for the protection of the public. The method of inspection must provide an adequate procedure to insure the safety of individuals likely to be injured by an explosion or accident involving a boiler or pressure vessel.

No boiler or pressure vessel may be operated without an inspection certificate, except pressure vessels being operated under an owner-user provision where administrative procedures of equal safety and competency have been approved by the Commissioner. No more than 60 days grace period may be granted beyond the certificate expiration date.

History

(1975, c. 895, s. 9; 1993, c. 351, s. 4; 2005-453, s. 8; 2007-231, s. 3; 2015-221, s. 2.9.)

Effect of Amendments. - Session Laws 2005-453, s. 8, effective October 1, 2005, substituted "a commissioned" for "an authorized" in the first paragraph; and substituted "90" for "60" in the second paragraph.

Session Laws 2007-231, s. 3, effective July 18, 2007, substituted "60 days" for "90 days" in the last sentence of the second paragraph.

Session Laws 2015-221, s. 2.9, effective August 18, 2015, deleted "Board and" preceding "Commissioner" at the end of the first sentence of the second designated paragraph.

§ 95-69.17. Noncomplying devices; appeal.

  1. If the Commissioner determines that a boiler or pressure vessel is subject to the provisions of this Article and that the operation of the boiler or pressure vessel is exposing the public to an unsafe condition likely to result in serious personal injury or property damage, the Commissioner may immediately order in writing that the use of the boiler or pressure vessel be stopped or limited until the Commissioner determines that the boiler or pressure vessel has been made safe for operation.
  2. If the Commissioner determines that the provisions of this Article or the rules adopted pursuant to this Article have not been complied with, the Commissioner may refuse to issue or renew or may revoke, suspend, or amend an inspection certificate.
  3. Any action taken under this section by the Commissioner shall be final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person against whom such action was taken takes exception to the determination, in which event the final determination of the action shall be made in an administrative proceeding and in a judicial proceeding pursuant to Chapter 150B of the General Statutes, the Administrative Procedure Act.

History

(1975, c. 895, s. 10; 1987, c. 827, s. 263; 1993, c. 351, s. 5; 2005-453, s. 9; 2015-221, s. 1.4.)

Effect of Amendments. - Session Laws 2005-453, s. 9, effective October 1, 2005, rewrote the section heading and text.

Session Laws 2015-221, s. 1.4, effective August 18, 2015, rewrote subsection (c).

§ 95-69.18. Operation without inspection certificate; operation not in compliance with this Article; operation after nonissuance or revocation of certificate.

  1. No person may operate or permit to be operated any boiler or pressure vessel subject to the provisions of this Article without a valid inspection certificate unless the absence of a valid inspection certificate is the result of the Commissioner's failure to inspect the device.
  2. No person may operate or permit to be operated any boiler or pressure vessel subject to the provisions of this Article other than in accordance with this Article and the rules adopted pursuant to this Article.
  3. No person may operate or permit to be operated any boiler or pressure vessel subject to the provisions of this Article after the Commissioner has refused to issue or has revoked the inspection certificate for the boiler or pressure vessel.

History

(1975, c. 895, s. 11; 1993, c. 539, s. 665; 1994, Ex. Sess., c. 24, s. 14(c); 2005-453, s. 10.)

Effect of Amendments. - Session Laws 2005-453, s. 10, effective October 1, 2005, rewrote the section heading and text.

§ 95-69.19. Violations; civil penalties; appeals.

  1. Any person who violates G.S. 95-69.18(a) or (b) (operation without inspection certificate; operation not in accordance with Article or rules and regulations) shall be subject to a civil penalty not to exceed two hundred fifty dollars ($250.00) for each day each boiler or pressure vessel is so operated or used.
  2. Any person who violates G.S. 95-69.18(c) (operation after refusal to issue or after revocation of inspection certificate) shall be subject to a civil penalty not to exceed five hundred dollars ($500.00) for each day any such boiler or pressure vessel is so operated or used.
  3. In determining the amount of any penalty ordered under authority of this section, the Commissioner shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person being charged, the gravity of the violation, the good faith of the person, and the record of previous violations.
  4. The determination of the amount of the penalty by the Commissioner shall be final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person charged with the violation takes exception to the determination in which event the final determination of the penalty shall be made in an administrative proceeding and in a judicial proceeding pursuant to Chapter 150B of the General Statutes, the Administrative Procedure Act.
  5. The Commissioner may file in the office of the clerk of the superior court of the county where the violation occurred or where the person against whom a civil penalty has been ordered resides, or if a corporation is involved in the county where the corporation maintains its principal place of business, a certified copy of a final order of the Commissioner unappealed from, or of a final order of the Commissioner affirmed upon appeal. Upon filing of the final order, the clerk of superior court shall enter judgment in accordance with the order and notify the parties. The judgment shall have the same force and effect as a judgment by the superior court of the General Court of Justice.

History

(2005-453, s. 11; 2007-231, s. 6.)

Effect of Amendments. - Session Laws 2007-231, s. 6, effective July 18, 2007, inserted "with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery" in subsection (d).

§ 95-69.20. Violations; criminal penalties.

  1. Any person who knowingly and willfully misrepresents himself as an authorized inspector administering or enforcing the provisions of this Article or the rules adopted pursuant to this Article shall be guilty of a Class 2 misdemeanor.
  2. Any person knowingly making a material and false statement, representation, or certification in any application, record, report, plan, or any other document filed or required to be maintained pursuant to this Article or the rules adopted pursuant to this Article shall be guilty of a Class 2 misdemeanor.

History

(2005-453, s. 12.)

§§ 95-69.21 through 95-69.29: Reserved for future codification purposes.

ARTICLE 7B. Historical Boilers.

Sec.

§ 95-69.30. Safety Program for Operators and Apprentices.

The Department of Labor shall create and conduct a safety program for the purpose of providing instruction on how to properly care, maintain, operate, and exhibit historical boilers. The program shall also include instruction on how to train an apprentice to properly care, maintain, operate, and exhibit historical boilers. For purposes of this section, the term "historical boiler" means a steam boiler of riveted construction that is preserved, restored, or maintained for hobby or demonstration.

History

(2013-360, s. 13.10(a).)

ARTICLE 8. Bureau of Labor for the Deaf.

§§ 95-70 through 95-72: Repealed by Session Laws 1975, c. 412, s. 1.

Editor's Note. - Session Laws 1975, c. 412, which repealed this Article, in s. 3 provided: "The intent of this act is to transfer the Bureau of Labor for the Deaf from the Department of Labor to the Department of Human Resources as a Type I transfer as defined in G.S. 143A-6(a)."

See also G.S. 168-14.

ARTICLE 9. Earnings of Employees in Interstate Commerce.

Sec.

§ 95-73. Collections out of State to avoid exemptions forbidden.

No resident creditor or other holder of any book account, negotiable instrument, duebill or other monetary demand arising out of contract, due by or chargeable against any resident wage earner or other salaried employee of any railway corporation or other corporation, firm, or individual engaged in interstate business shall send out of the State, assign, or transfer the same, for value or otherwise, with intent to thereby deprive such debtor of his personal earnings and property exempt by law from application to the payment of his debts under the laws of the State of North Carolina, by instituting or causing to be instituted thereon against such debtor, in any court outside of this State, in such creditor's own name or in the name of any other person, any action, suit, or proceeding for the attachment or garnishment of such debtor's earnings in the hands of his employer, when such creditor and debtor and the railway corporation or other corporation, firm, or individual owing the wages or salary intended to be reached are under the jurisdiction of the courts of this State.

History

(1909, c. 504, s. 1; C.S., s. 6568.)

CASE NOTES

The resident creditor is not forbidden to send his claim out of the State for collection by suit or otherwise, provided no effort is made in the foreign state by attachment or garnishment to deprive the resident debtor of his personal earnings and property exempt from application to the payment of his debts under the laws of this State. Padgett v. Long, 225 N.C. 392, 35 S.E.2d 234 (1945).


§ 95-74. Resident not to abet collection out of State.

No person residing or sojourning in this State shall counsel, aid, or abet any violation of the provisions of G.S. 95-73.

History

(1909, c. 504, s. 2; C.S., s. 6569.)

§ 95-75. Remedies for violation of § 95-73 or 95-74; damages; indictment.

Any person violating any provisions of G.S. 95-73 or 95-74 shall be answerable in damages to any debtor from whom any book account, negotiable instrument, duebill, or other monetary demand arising out of contract shall be collected, or against whose earnings any warrant of attachment or notice of garnishment shall be issued, in violation of the provisions of G.S. 95-73, to the full amount of the debt thus collected, attached, or garnisheed, to be recovered by civil action in any court of competent jurisdiction in this State; and any person so offending shall likewise be guilty of a Class 3 misdemeanor, punishable only by a fine of not more than two hundred dollars ($200.00).

History

(1909, c. 504, s. 3; C.S., s. 6570; 1993, c. 539, s. 666; 1994, Ex. Sess., c. 24, s. 14(c).)

CASE NOTES

Necessary Allegation. - In a suit to recover damages for violation of the provisions of G.S. 95-73, an allegation that the forbidden purpose was accomplished by instituting in the foreign state an action, suit or proceeding for the attachment or garnishment of the debtor's earnings in the hands of his employer would seem to be an essential element of the cause of action. An allegation that the debtor was threatened with attachment or garnishment of his wages and was forced to pay the foreign judgment in order to avoid same is not sufficient. Padgett v. Long, 225 N.C. 392, 35 S.E.2d 234 (1945).


§ 95-76. Institution of foreign suit, etc., evidence of intent to violate.

In any civil or criminal action instituted in any court of competent jurisdiction in this State for any violation of the provisions of G.S. 95-73 and 95-74, proof of the institution or prosecution of any action, suit, or proceeding in violation of the provisions of G.S. 95-73, or the issuance of service therein of any warrant of attachment, notice, or garnishment or other like writ for the garnishment of earnings of the defendant therein, or of the payment by the garnishee therein of any final judgment rendered in any such action, suit, or proceeding shall be deemed prima facie evidence of the intent of the creditor or other holder of the debt sued upon to deprive such debtor of his personal earnings and property exempt from application to the payment of his debts under the laws of this State, in violation of the provisions of this Article.

History

(1909, c. 504, s. 4; C.S., s. 6571.)

§ 95-77. Construction of Article.

No provision of this Article shall be so construed as to deprive any person entitled to its benefits of any legal or equitable remedy already possessed under the laws of this State.

History

(1909, c. 504, s. 5; C.S., s. 6572.)

ARTICLE 10. Declaration of Policy as to Labor Organizations.

Sec.

§ 95-78. Declaration of public policy.

The right to live includes the right to work. The exercise of the right to work must be protected and maintained free from undue restraints and coercion. It is hereby declared to be the public policy of North Carolina that the right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization or association.

History

(1947, c. 328, s. 1.)

Legal Periodicals. - For discussion of this Article, see 25 N.C.L. Rev. 447 (1947).

For note on preemption and State injunctive enforcement of the "Right-to-Work" law, see 36 N.C.L. Rev. 502 (1958).

For note, "Application of Right-to-Work Laws in Multistate Workforce Situations," see 55 N.C.L. Rev. 685 (1977).

For article, "Right-To-Work Laws in the Southern States," see 59 N.C.L. Rev. 29 (1980).

For comment on public employee bargaining in North Carolina, see 59 N.C.L. Rev. 214 (1980).

CASE NOTES

Article Is Constitutional. - This Article does not abridge the freedom of speech and the opportunities of unions and their members "peaceably to assemble and to petition the government for a redress of grievances," which are guaranteed by U.S. Const., Amend. I and made applicable to the states by U.S. Const., Amend. XIV. Nor does it conflict with U.S. Const., Art. I, § 10 insofar as it impairs the obligation of contracts made prior to its enactment. Nor does it deny unions and their members equal protection of the laws contrary to U.S. Const., Amend. XIV. Nor does it deprive employers, unions or members of unions of their liberty without due process of law in violation of U.S. Const., Amend. XIV. Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S. Ct. 251, 93 L. Ed. 212 (1949).

This Article is a valid exercise of the police power of the State, and does not violate former § 17, Art. I, of the State Constitution (see now N.C. Const., Art. I, § 19). State v. Whitaker, 228 N.C. 352, 45 S.E.2d 860 (1947), aff'd sub nom. Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S. Ct. 251, 93 L. Ed. 212 (1949).

Not Discriminatory. - This Article is applicable to all employers and employees within the State, and therefore the fact that persons or groups coming within its scope must perforce be affected in different degrees because of the difference of their economic, social or political positions, does not render the act unconstitutional as discriminatory. State v. Whitaker, 228 N.C. 352, 45 S.E.2d 860 (1947), aff'd sub nom. Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S. Ct. 251, 93 L. Ed. 212 (1949).

G.S. 95-79 through 95-81 constitute the public policy of North Carolina with respect to the right to work. Poole & Kent Corp. v. C.E. Thurston & Sons, 286 N.C. 121, 209 S.E.2d 450 (1974).

By this Article the legislature in emphatic language declared its public policy with respect to conditions incident to the right to employment. Douglas Aircraft Co. v. Local 379, Int'l Bhd. of Elec. Workers, 247 N.C. 620, 101 S.E.2d 800 (1958).

This Article defines certain rights of employers and employees. Beasley v. Food Fair of N.C. Inc., 282 N.C. 530, 193 S.E.2d 911 (1973), aff'd, 416 U.S. 653, 94 S. Ct. 2023, 40 L. Ed. 2d 443 (1974).

The violation of this Article is a criminal offense. State v. Whitaker, 228 N.C. 352, 45 S.E.2d 860 (1947), aff'd sub nom. Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 69 S. Ct. 251, 93 L. Ed. 212 (1949).

Punishable as for Misdemeanor. - This Article is declaratory of public policy and was enacted in the interest of the public welfare, and therefore the violation of its provisions is a criminal offense punishable as for a misdemeanor, notwithstanding the failure of the statute to prescribe a penalty for its breach. The fact that the act incidentally provides for the redress of private injuries does not alter this result. State v. Bishop, 228 N.C. 371, 45 S.E.2d 858 (1947).

Article Is in Force Except as Limited by National Labor Legislation. - Except to the extent Congress, in enacting labor legislation related to interstate commerce, has preempted the field, this Article is in full force and effect. Hudson v. Atlantic C.L.R.R., 242 N.C. 650, 89 S.E.2d 441 (1955), cert. denied, 351 U.S. 949, 76 S. Ct. 844, 100 L. Ed. 1473 (1956).

Construction of Section. - This section cannot be construed to contravene the national policy as between employer and supervisor. Beasley v. Food Fair of N.C. Inc., 282 N.C. 530, 193 S.E.2d 911 (1973), aff'd, 416 U.S. 653, 94 S. Ct. 2023, 40 L. Ed. 2d 443 (1974).

To enforce a provision of a construction contract whereby all of defendant subcontractor's labor must be acceptable to the plaintiff general contractor by requiring subcontractor to remove its nonunion members from the project and replace them with union members would result in a direct violation of the public policy declared in this section and of the express prohibition contained in G.S. 95-80. Poole & Kent Corp. v. C.E. Thurston & Sons, 21 N.C. App. 1, 203 S.E.2d 74, aff'd, Poole & Kent Corp. v. C.E. Thurston & Sons, 286 N.C. 121, 209 S.E.2d 450 (1974).

Provisions for a "closed shop" in agreements executed subsequent to the effective date of this Article, and such provisions in extensions of prior contracts executed subsequent to that date, are contrary to public policy and void. In re Port Publishing Co., 231 N.C. 395, 57 S.E.2d 366, 14 A.L.R.2d 842 (1950).

Union Shop Agreement Valid Under Federal Railway Labor Act. - A union shop agreement, complying in all respects with the provisions of the Union Shop Amendment of 1951 to the Federal Railway Labor Act is not void by virtue of this Article. Hudson v. Atlantic C.L.R.R., 242 N.C. 650, 89 S.E.2d 441 (1955), cert. denied, 351 U.S. 949, 76 S. Ct. 844, 100 L. Ed. 1473 (1956).

In an action to restrain alleged unlawful picketing pursuant to a conspiracy to force plaintiff to violate the State Right-to-Work Law, on motion to show cause why a temporary restraining order should not be continued, the facts were insufficient to show that continuance of the temporary restraining order enjoined the exercise of any rights of defendants protected by the Federal Labor Management Act, and the order would not be disturbed, the question being determinable upon the evidence to be offered upon the hearing upon the merits. J.A. Jones Constr. Co. v. Local 755 Int'l Bhd. of Elec. Workers, 246 N.C. 481, 98 S.E.2d 852 (1957).

Applied in Brotherhood of Ry. & S.S. Clerks v. Allen, 373 U.S. 113, 83 S. Ct. 1158, 10 L. Ed. 2d 235 (1963).

Cited in Willard v. Huffman, 247 N.C. 523, 101 S.E.2d 373 (1958); National Right to Work Legal Defense & Educ. Found., Inc. v. United States, 487 F. Supp. 801 (E.D.N.C. 1979); Sesco v. Dana World Trade Corp., - F. Supp. 2d - (W.D.N.C. Feb. 7, 2002).


§ 95-79. Certain agreements declared illegal.

  1. Any agreement or combination between any employer and any labor union or labor organization whereby persons not members of such union or organization shall be denied the right to work for said employer, or whereby such membership is made a condition of employment or continuation of employment by such employer, or whereby any such union or organization acquires an employment monopoly in any enterprise, is hereby declared to be against the public policy and an illegal combination or conspiracy in restraint of trade or commerce in the State of North Carolina.
  2. Any provision that directly or indirectly conditions the purchase of agricultural products, the terms of an agreement for the purchase of agricultural products, or the terms of an agreement not to sue or settle litigation upon an agricultural producer's status as a union or nonunion employer or entry into or refusal to enter into an agreement with a labor union or labor organization is invalid and unenforceable as against public policy in restraint of trade or commerce in the State of North Carolina. Further, notwithstanding G.S. 95-25.8, an agreement requiring an agricultural producer to transfer funds to a labor union or labor organization for the purpose of paying an employee's membership fee or dues is invalid and unenforceable against public policy in restraint of trade or commerce in the State of North Carolina. For purposes of this subsection, the term "agricultural producer" means any producer engaged in any service or activity included within the provisions of section 3(f) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 203, or section 3121(g) of the Internal Revenue Code of 1986, 26 U.S.C. § 3121.

History

(1947, c. 328, s. 2; 2013-413, s. 15; 2014-115, s. 17; 2017-108, s. 20.5(a).)

Editor's Note. - Session Laws 2017-108, s. 20.5(b), made the amendment to subsection (b) by Session Laws 2017-108, s. 20.5(a), effective July 12, 2017, and applicable to agreements and settlements entered into, renewed, or extended on or after that date.

Session Laws 2017-108, s. 21, is a severability clause.

Effect of Amendments. - Session Laws 2013-413, s. 15, designated the formerly undesignated provisions of this section as present subsection (a); and added subsection (b). For effective date, see Editor's note.

Session Laws 2017-108, s. 20.5(a), in subsection (b), inserted "or the terms of an agreement not to sue or settle litigation" in the first sentence and added the second sentence; and made stylistic changes. For effective date and applicability, see editor's note.

CASE NOTES

Picketing for the purpose of forcing an employer to employ only union labor is for an unlawful purpose by virtue of this section. Douglas Aircraft Co. v. Local 379, Int'l Bhd. of Elec. Workers, 247 N.C. 620, 101 S.E.2d 800 (1958).

Federal Preemption. - Where orderly and peaceful picketing is for the unlawful purpose of forcing an employer to breach the Right-to-Work Law embraced in this section by employing only union labor, and also constitutes an unfair labor practice within the purview of the Federal Labor Management Relations Act, the North Carolina courts have no authority to issue a restraining order enjoining such picketing, since under the federal decisions the federal law exclusively preempts the field and removes the matter from the jurisdiction of the State courts. Douglas Aircraft Co. v. Local 379, Int'l Bhd. of Elec. Workers, 247 N.C. 620, 101 S.E.2d 800 (1958).

Void Agreement. - An agreement between an employer and its employees which makes union membership a prerequisite of employment is void in this jurisdiction. In re Port Publishing Co., 231 N.C. 395, 57 S.E.2d 366, 14 A.L.R.2d 842 (1950).

Valid Severable Provisions. - While G.S. 95-79 through 95-84 preclude "closed shop" agreements, these sections do not preclude provisions relating to working conditions, hours, rates of pay, training of journeymen, overtime, vacation and severance pay, and such provisions are severable and may be sustained irrespective of the invalidity of a "closed shop" provision in the contract. In re Port Publishing Co., 231 N.C. 395, 57 S.E.2d 366, 14 A.L.R.2d 842 (1950).

Applied in Poole & Kent Corp. v. C.E. Thurston & Sons, 286 N.C. 121, 209 S.E.2d 450 (1974).


§ 95-80. Membership in labor organization as condition of employment prohibited.

No person shall be required by an employer to become or remain a member of any labor union or labor organization as a condition of employment or continuation of employment by such employer.

History

(1947, c. 328, s. 3.)

Legal Periodicals. - For note, "Application of Right-to-Work Laws in Multistate Workforce Situations," see 55 N.C.L. Rev. 685 (1977).

CASE NOTES

Editor's Note. - See also the case notes under G.S. 95-79.

To enforce a provision of a construction contract whereby all of defendant subcontractor's labor must be acceptable to the plaintiff general contractor by requiring subcontractor to remove its nonunion members from the project and replace them with union members would result in a direct violation of the public policy declared in G.S. 95-78 and of the express prohibition contained in this section. Poole & Kent Corp. v. C.E. Thurston & Sons, 21 N.C. App. 1, 203 S.E.2d 74, aff'd, Poole & Kent Corp. v. C.E. Thurston & Sons, 286 N.C. 121, 209 S.E.2d 450 (1974).

Void Agreement. - An agreement between an employer and its employees which makes union membership a prerequisite of employment is void in this jurisdiction. In re Port Publishing Co., 231 N.C. 395, 57 S.E.2d 366, 14 A.L.R.2d 842 (1950).

Cited in Poole & Kent Corp. v. C.E. Thurston & Sons, 286 N.C. 121, 209 S.E.2d 450 (1974).


§ 95-81. Nonmembership as condition of employment prohibited.

No person shall be required by an employer to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment.

History

(1947, c. 328, s. 4.)

Legal Periodicals. - For note on federal preemption of state damage remedies for discharge, see 53 N.C.L. Rev. 571 (1974).

For note, "Application of Right-to-Work Laws in Multistate Workforce Situations," see 55 N.C.L. Rev. 685 (1977).

For comment on public employee bargaining in North Carolina, see 59 N.C.L. Rev. 214 (1980).

CASE NOTES

Editor's Note. - See also the case notes under G.S. 95-83.

Employer's Right to Discharge Supervisor for Union Membership Is Federal. - Congress and the federal courts have adopted a national industrial relations policy which gives an employer the right to discharge his supervisor for union membership. Beasley v. Food Fair of N.C. Inc., 282 N.C. 530, 193 S.E.2d 911 (1973), aff'd, 416 U.S. 653, 94 S. Ct. 2023, 40 L. Ed. 2d 443 (1974).

State is precluded from interfering with that policy. Beasley v. Food Fair of N.C. Inc., 282 N.C. 530, 193 S.E.2d 911 (1973), aff'd, 416 U.S. 653, 94 S. Ct. 2023, 40 L. Ed. 2d 443 (1974).

When plaintiff seeks to deprive an employer of his right to discharge his supervisor for membership in a union, the doctrine of federal preemption applies, and the state court is without jurisdiction over the subject matter of the controversy. Beasley v. Food Fair of N.C. Inc., 282 N.C. 530, 193 S.E.2d 911 (1973), aff'd, 416 U.S. 653, 94 S. Ct. 2023, 40 L. Ed. 2d 443 (1974).

Void Agreement. - An agreement between an employer and its employees which makes nonmembership in a labor union a prerequisite of employment is void in this jurisdiction. In re Port Publishing Co., 231 N.C. 395, 57 S.E.2d 366, 14 A.L.R.2d 842 (1950).

Jurisdiction over Violation. - Where the National Labor Relations Board has declined jurisdiction because the amount of interstate commerce involved is less than the jurisdictional amount fixed by the Board, a State court has jurisdiction of an action for damages brought for an alleged violation of this section. Willard v. Huffman, 250 N.C. 396, 109 S.E.2d 233, cert. denied, 361 U.S. 893, 80 S. Ct. 195, 4 L. Ed. 2d 150 (1959). See Keller v. Huffman Full Fashioned Mills, Inc., 251 N.C. 92, 110 S.E.2d 480 (1959).

Wrongful Discharge Claim Sufficiently Alleged. - Plaintiffs sufficiently alleged a wrongful discharge claim where they alleged that they were fired: (1) for photographing and complaining about unsafe working conditions in violation of G.S. 95-241(a)(1)b. and G.S. 95-126(2); (2) for engaging in union activities in violation of G.S. 95-81; (3) in retaliation for filing discrimination grievances under G.S. 95-151; (4) in violation of their N.C. Const., Art. I, §§ 14 and 19 rights; and (5) based in part on race. Bigelow v. Town of Chapel Hill, 227 N.C. App. 1, 745 S.E.2d 316, review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 806 (2013).

Cited in Poole & Kent Corp. v. C.E. Thurston & Sons, 21 N.C. App. 1, 203 S.E.2d 74 (1974); Poole & Kent Corp. v. C.E. Thurston & Sons, 286 N.C. 121, 209 S.E.2d 450 (1974); Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116 (1986); Coman v. Thomas Mfg. Co., 91 N.C. App. 327, 371 S.E.2d 731 (1988).


§ 95-82. Payment of dues as condition of employment prohibited.

No employer shall require any person, as a condition of employment or continuation of employment, to pay any dues, fees, or other charges of any kind to any labor union or labor organization.

History

(1947, c. 328, s. 5.)

§ 95-83. Recovery of damages by persons denied employment.

Any person who may be denied employment or be deprived of continuation of his employment in violation of G.S. 95-80, 95-81 and 95-82 or of one or more of such sections, shall be entitled to recover from such employer and from any other person, firm, corporation, or association acting in concert with him by appropriate action in the courts of this State such damages as he may have sustained by reason of such denial or deprivation of employment.

History

(1947, c. 328, s. 6.)

Legal Periodicals. - For note on federal preemption of state damage remedies for discharge, see 53 N.C.L. Rev. 571 (1974).

For note on workers' compensation and retaliatory discharge, see 58 N.C.L. Rev. 629 (1980).

CASE NOTES

Employer's Right to Discharge Supervisor for Union Membership Is Federal. - Congress and the federal courts have adopted a national industrial relations policy which gives an employer the right to discharge his supervisor for union membership. Beasley v. Food Fair of N.C. Inc., 282 N.C. 530, 193 S.E.2d 911 (1973), aff'd, 416 U.S. 653, 94 S. Ct. 2023, 40 L. Ed. 2d 443 (1974).

State is precluded from interfering with that policy. Beasley v. Food Fair of N.C. Inc., 282 N.C. 530, 193 S.E.2d 911 (1973), aff'd, 416 U.S. 653, 94 S. Ct. 2023, 40 L. Ed. 2d 443 (1974).

When plaintiffs seek to deprive an employer of his right to discharge his supervisor for membership in a union, the doctrine of federal preemption applies, and the state court is without jurisdiction over the subject matter of the controversy. Beasley v. Food Fair of N.C. Inc., 282 N.C. 530, 193 S.E.2d 911 (1973), aff'd, 416 U.S. 653, 94 S. Ct. 2023, 40 L. Ed. 2d 443 (1974).

What Plaintiff Must Show. - In order for the plaintiff in the instant case to recover for damages allegedly sustained as a result of his discharge in violation of the provisions of G.S. 95-81, the burden is on him to show by competent evidence, and by the greater weight thereof, that he was discharged solely by reason of his participation in the discussions with his fellow employees in connection with their proposed plan to join a labor union or that such participation therein was the "motivating" or "moving cause" for the discharge. Willard v. Huffman, 247 N.C. 523, 101 S.E.2d 373 (1958).

What Jury Must Find. - Where there is a conflict in the evidence as to the reason for discharge, in an action brought under the provisions of G.S. 95-81 and the following sections, in order for a plaintiff to recover damages thereunder, the jury must find that the discharge resulted solely from the plaintiff 's exercise of rights protected under this statute, or that the plaintiff 's exercise of such rights was the motivating or moving cause for such discharge. Willard v. Huffman, 247 N.C. 523, 101 S.E.2d 373 (1958).

Jurisdiction over Violation. - Where the National Labor Relations Board has declined jurisdiction because the amount of interstate commerce involved is less than the jurisdictional amount fixed by the Board, a State court has jurisdiction of an action for damages brought for an alleged violation of this section. Willard v. Huffman, 250 N.C. 396, 109 S.E.2d 233, cert. denied, 361 U.S. 893, 80 S. Ct. 195, 4 L. Ed. 2d 150 (1959). See also Keller v. Huffman Full Fashioned Mills, Inc., 251 N.C. 92, 110 S.E.2d 480 (1959).

Cited in Dockery v. Lampart Table Co., 36 N.C. App. 293, 244 S.E.2d 272 (1978); Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116 (1986); Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987); Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989).


§ 95-84. Application of Article.

The provisions of this Article shall not apply to any lawful contract in force on the effective date hereof but they shall apply in all respects to contracts entered into thereafter and to any renewal or extension of any existing contract.

History

(1947, c. 328, s. 7.)

CASE NOTES

Applied in Beasley v. Food Fair of N.C. Inc., 282 N.C. 530, 193 S.E.2d 911 (1973).

Cited in Willard v. Huffman, 247 N.C. 523, 101 S.E.2d 373 (1958).


ARTICLE 11. Minimum Wage Act.

§§ 95-85 through 95-96: Repealed by Session Laws 1979, c. 839, s. 2.

Cross References. - For present statute covering the subject matter of the repealed sections, see G.S. 95-25.1 et seq.

ARTICLE 12. Units of Government and Labor Unions, Trade Unions, and Labor Organizations, and Public Employee Strikes.

Sec.

§ 95-97: Repealed by Session Laws 1998-217, s. 26, effective October 31, 1998.

Legal Periodicals. - For article, "Public Employee Labor Relations in the Southeast - An Historical Perspective," see 59 N.C.L. Rev. 71 (1980).

For comment on public employee bargaining in North Carolina, see 59 N.C.L. Rev. 214 (1980).

Editor's Note. - Session Laws 2006-264, s. 50, effective August 27, 2006, rewrote the Article heading by substituting "Units of Government and Labor Unions, Trade Unions, and Labor Organizations, and Public Employee Strikes" for "Public Employees Prohibited from Becoming Members of Trade Unions or Labor."

CASE NOTES

This section is unconstitutional on its face. Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D.N.C. 1969).

This section is void on its face as an abridgement of freedom of association protected by U.S. Const., Amend. I and U.S. Const., Amend. XIV. Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D.N.C. 1969).

G.S. 95-99 is so related to this section that it cannot survive the invalidation thereof. Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D.N.C. 1969).

§ 95-98. Contracts between units of government and labor unions, trade unions or labor organizations concerning public employees declared to be illegal.

Any agreement, or contract, between the governing authority of any city, town, county, or other municipality, or between any agency, unit, or instrumentality thereof, or between any agency, instrumentality, or institution of the State of North Carolina, and any labor union, trade union, or labor organization, as bargaining agent for any public employees of such city, town, county or other municipality, or agency or instrumentality of government, is hereby declared to be against the public policy of the State, illegal, unlawful, void and of no effect.

History

(1959, c. 742.)

Legal Periodicals. - For note discussing judicial deference to the administrative discretion of prison officials in the context of Jones v. North Carolina Prisoners' Labor Unions, Inc., 433 U.S. 119, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977), see 14 Wake Forest L. Rev. 647 (1978).

For article, "Public Employee Labor Relations in the Southeast - An Historical Perspective," see 59 N.C.L. Rev. 71 (1980).

For article, "The Southern Public Employee Unions' Constitutional Card: Utilization of the Equal Protection Clause," see 59 N.C.L. Rev. 85 (1980).

For comment on public employee bargaining in North Carolina, see 59 N.C.L. Rev. 214 (1980).

For survey of developments in North Carolina law, see 71 N.C.L. Rev. 1893 (1993).

For article, "Trademarks as Entrepreneurial Change Agents for Legal Reform," see 95 N.C.L. Rev. 1519 (2017).

CASE NOTES

Constitutionality. - This section is a valid and constitutional exercise of the legislative authority of the General Assembly of North Carolina. Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D.N.C. 1969).

This section is unenforceable in the face of the federal Railway Labor Act. International Longshoremen's Ass'n v. North Carolina Ports Auth., 463 F.2d 1 (4th Cir.), cert. denied, 409 U.S. 982, 93 S. Ct. 318, 34 L. Ed. 2d 245 (1972).

The State Ports Authority, operating terminal railroads to transfer freight from ships to interstate carriers, is a carrier under the Railway Labor Act and is required to negotiate with a labor union on pay rates. International Longshoremen's Ass'n v. North Carolina Ports Auth., 463 F.2d 1 (4th Cir.), cert. denied, 409 U.S. 982, 93 S. Ct. 318, 34 L. Ed. 2d 245 (1972).

The provisions of the Railway Labor Act providing for collective bargaining between carriers and the duly elected representatives of their employees are supreme and preempt the provisions of this section. International Longshoremen's Ass'n v. North Carolina State Ports Auth., 370 F. Supp. 33 (E.D.N.C. 1974), aff'd, 511 F.2d 1007 (4th Cir. 1975).

Regulations Relating to Prisoners' Labor Union. - Regulations promulgated by the Department of Correction (now the Division of Adult Correction) prohibiting prisoners from soliciting other inmates to join a prisoners' labor union and barring union meetings and bulk mailings concerning the union from outside sources were not in violation of rights of free speech, association and assembly, or of equal protection. Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977).

Right of Association to Express Wage Views Before City Council. - Although this section forbids North Carolina municipalities from entering into contracts or agreements with labor unions or associations, that prohibition does not extend to a union's advocacy of a particular point of view. Thus, North Carolina's policy prohibiting governmental bodies from negotiating with labor unions was not implicated and therefore could not serve as a compelling state interest allowing restriction of the Hickory Fire Fighters Association's right to advocate its position on firefighters' wages in front of the city council. Hickory Fire Fighters Ass'n, Local 2653 v. City of Hickory, 656 F.2d 917 (4th Cir. 1981).

Cited in NLRB v. Randolph Elec. Membership Corp., 343 F.2d 60 (4th Cir. 1965); English v. Powell, 592 F.2d 727 (4th Cir. 1979); City of Winston-Salem v. Chauffeurs Local Union 391, 470 F. Supp. 442 (M.D.N.C. 1979); Jacksonville Professional Fire Fighters Ass'n Local 2961 v. City of Jacksonville, 685 F. Supp. 513 (E.D.N.C. 1988).

Opinions of Attorney General

Municipal housing authority is governed by this section. See opinion of Attorney General to Mr. Robert E. Allen, Attorney, Housing Authority, Greensboro, 40 N.C.A.G. 315 (1969).

Municipalities cannot check off or deduct union dues for their employees. See opinion of Attorney General to Mr. Milton Short, Councilman, City of Charlotte, 40 N.C.A.G. 591 (1969).

§ 95-98.1. Strikes by public employees prohibited.

Strikes by public employees are hereby declared illegal and against the public policy of this State. No person holding a position either full- or part-time by appointment or employment with the State of North Carolina or in any county, city, town or other political subdivision of the State of North Carolina, or in any agency of any of them, shall willfully participate in a strike by public employees.

History

(1981, c. 958, s. 1.)

§ 95-98.2. Strike defined.

The word "strike" as used herein shall mean a cessation or deliberate slowing down of work by a combination of persons as a means of enforcing compliance with a demand upon the employer, but shall not include protected activity under Article 16 of this Chapter: Provided, however, that nothing herein shall limit or impair the right of any public employee to express or communicate a complaint or opinion on any matter related to the conditions of public employment so long as the same is not designed to and does not interfere with the full, faithful, and proper performance of the duties of employment.

History

(1981, c. 958, s. 1.)

§ 95-99. Penalty for violation of Article.

Any violation of the provisions of this Article is hereby declared to be a Class 1 misdemeanor.

History

(1959, c. 742; 1993, c. 539, s. 667; 1994, Ex. Sess., c. 24, s. 14(c).)

Legal Periodicals. - For comment on public employee bargaining in North Carolina, see 59 N.C.L. Rev. 214 (1980).

CASE NOTES

Section Unconstitutional. - This section is so related to former G.S. 95-97 that it cannot survive the invalidation of that section. Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D.N.C. 1969).

Cited in NLRB v. Randolph Elec. Membership Corp., 343 F.2d 60 (4th Cir. 1965).

§ 95-100. No provisions of Article 10 of Chapter 95 applicable to units of government or their employees.

The provisions of Article 10 of Chapter 95 of the General Statutes shall not apply to the State of North Carolina or any agency, institution, or instrumentality thereof or the employees of same nor shall the provisions of Article 10 of Chapter 95 of the General Statutes apply to any public employees or any employees of any town, city, county or other municipality or the agencies or instrumentalities thereof, nor shall said Article apply to employees of the State or any agencies, instrumentalities or institutions thereof or to any public employees whatsoever.

History

(1959, c. 742.)

Legal Periodicals. - For comment on public employee bargaining in North Carolina, see 59 N.C.L. Rev. 214 (1980).

CASE NOTES

Cited in City of Winston-Salem v. Chauffeurs Local Union 391, 470 F. Supp. 442 (M.D.N.C. 1979).

ARTICLE 13. Payments to or for Benefit of Labor Organizations.

Sec.

§ 95-101. Definition.

As used in this Article, the term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employee or employees participate and which exists for the purpose in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

History

(1963, c. 244.)

§ 95-102. Certain payments to and agreements to pay labor organizations unlawful.

It shall be unlawful for any carrier or shipper of property or any association of such carriers or shippers to agree to pay, or to pay, to or for the benefit of a labor organization, directly or indirectly, any charge by reason of the placing upon, delivery to, or movement by rail, or by a railroad car, of a motor vehicle, trailer, or container which is also capable of being moved or propelled upon the highways and any such agreement shall be void and unenforceable.

History

(1963, c. 244.)

§ 95-103. Acceptance of such payments unlawful.

It shall be unlawful for any labor organization to accept or receive from any carrier or shipper of property, or any association of such carriers or shippers, any payment described in G.S. 95-102 above.

History

(1963, c. 244.)

§ 95-104. Penalty.

Any person, firm, corporation, association or partnership which or who agrees to pay, or does pay, or agrees to receive, or does receive, any payment described in this Article shall be guilty of a Class 3 misdemeanor and shall only be fined not less than one hundred dollars ($100.00), nor more than one thousand dollars ($1,000) for each offense. Each act of violation, and each day during which such an agreement remains in effect, shall constitute a separate offense.

History

(1963, c. 244; 1993, c. 539, s. 668; 1994, Ex. Sess., c. 24, s. 14(c).)

ARTICLE 14. Inspection Service Fees.

Sec.

§§ 95-105, 95-106: Repealed by Session Laws 2001-427, s. 11(a) and (b), effective July 1, 2003.

Section Repealed upon Adoption of Rule. - Session Laws 2001-427, s. 11(a) and (b), repealed G.S. 95-105 and G.S. 95-106. Session Laws 2001-427, s. 11(g), provides that the repeal of these sections by s. 11(a) and (b) becomes effective upon the effective date of a rule adopted pursuant to G.S. 95-110.5(20), as enacted by s. 11(e) of the act. Effective July 1, 2003, the North Carolina Department of Labor adopted a permanent rule regarding the fees that had been governed by G.S. 95-105 and G.S. 95-106. As a result, these sections stand repealed, effective July 1, 2003.

§ 95-107. Assessment and collection of fees; certificates of safe operation.

The assessment of the fees adopted by the Commissioner pursuant to G.S. 95-69.11, 95-110.5, 95-111.4 and 95-120 shall be made against the owner or operator of the equipment and may be collected at the time of inspection. If the fees are not collected at the time of inspection, the Department must bill the owner or operator of the equipment for the amount of the fee assessed for the inspection of the equipment and the amount assessed is payable by the owner or operator of the equipment upon receipt of the bill. Certificates of safe operation may be withheld by the Department of Labor until such time as the assessed fees are collected.

History

(1975, c. 777, s. 3; 1995, c. 217, s. 1; 2001-427, s. 11(c); 2005-347, s. 6; 2005-453, s. 13.)

Effect of Amendments. - Session Laws 2005-347, s. 6, effective September 7, 2005, substituted "G.S. 95-110.5, 95-111.4, and 95-120" for "G.S. 95-110.5 and G.S. 95-111.4."

Session Laws 2005-453, s. 13, effective October 1, 2005, substituted "G.S. 95-69.11, 95-110.5, and 95-111.4" for "G.S. 95-110.5 and G.S. 95-111.4" in the first sentence.

§ 95-108. Disposition of fees.

All fees collected by the Department of Labor pursuant to G.S. 95-69.11, 95-110.5, 95-111.4 and 95-120 shall be deposited with the State Treasurer and shall be used exclusively for inspection and certification purposes.

History

(1975, c. 777, s. 4; 2001-427, s. 11(d); 2005-347, s. 7; 2005-453, s. 14.)

Effect of Amendments. - Session Laws 2005-347, s. 7, effective September 7, 2005, substituted "G.S. 95-110.5, 95-111.4, and 95-120" for "G.S. 95-110.5 and G.S. 95-111.4."

Session Laws 2005-453, s. 14, effective October 1, 2005, substituted "G.S. 95-69.11, 95-110.5, and 95-111.4" for "G.S. 95-110.5, and G.S. 95-111.4."

§ 95-109: Repealed by Session Laws 1985 (Regular Session, 1986), c. 990, s. 3.

§ 95-110: Reserved for future codification purposes.

ARTICLE 14A. Elevator Safety Act of North Carolina.

Sec.

§ 95-110.1. Short title and legislative purpose.

  1. This Article shall be known as the Elevator Safety Act of North Carolina.
  2. The General Assembly finds that the use of unsafe and defective lifting devices imposes a substantial probability of serious and preventable injury to employees and the public exposed to unsafe conditions and that prevention of these injuries and protection of employees and the public from unsafe conditions is in the best interests and welfare of the people of the State.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1.)

Editor's Note. - Session Laws 2009-79, s. 3, provides: "The Commissioner of Labor shall adopt rules pursuant to Article 14A of Chapter 95 of the General Statutes (Elevator Act of North Carolina) to require, in any building or structure having more than one elevator, the posting of a distinct number in plain view in the passenger cabin of each elevator for the purpose of identification of the elevator to facilitate extrication from any elevator that malfunctions while occupied."


§ 95-110.2. Scope.

This Article shall govern the design, construction, installation, plans review, testing, inspection, certification, operation, use, maintenance, alteration, relocation and investigation of accidents involving:

  1. Elevators, dumbwaiters, escalators, and moving walks;
  2. Personnel hoists;
  3. Inclined stairway chair lifts;
  4. Inclined and vertical wheelchair lifts;
  5. Manlifts; and
  6. Special equipment.

This Article shall not apply to devices and equipment located and operated in a single family residence, to conveyors and related equipment within the scope of the American National Standard Safety Standard for Conveyors and Related Equipment (ANSI/ASME B20.1) constructed, installed and used exclusively for the movement of materials, or to mining equipment specifically covered by the Federal Mine Safety and Health Act or the Mine Safety and Health Act of North Carolina or the rules and regulations adopted pursuant thereto.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1.)

§ 95-110.3. Definitions.

  1. The term "Commissioner" shall mean the North Carolina Commissioner of Labor or his authorized representative.
  2. The term "Director" shall mean the Director of the Elevator and Amusement Device Division of the North Carolina Department of Labor.
  3. The term "dumbwaiter" shall mean a hoisting and lowering mechanism equipped with a car or platform which moves in guides in a substantially vertical direction, the floor area of which does not exceed nine square feet, the total inside height of which, whether or not provided with fixed or removable shelves, does not exceed four feet, the capacity of which does not exceed 500 pounds, and which is used exclusively for carrying materials.
  4. The term "elevator" shall mean a hoisting and lowering mechanism equipped with a car or platform which moves in guides, and which serves two or more floors of a building or structure.
  5. The term "escalator" shall mean a power driven, inclined continuous stairway used for raising and lowering passengers.
  6. The term "inclined stairway chair lift" shall mean a hoisting and lowering mechanism with one or more chairs or a platform for one or more wheelchairs installed on a stairway for the purpose of transporting a physically disabled person.
  7. The term "inclined or vertical wheelchair lift" shall mean a powered platform-elevating device used to transport a physically disabled person in a wheelchair.
  8. The term "manlift" shall mean platforms or brackets and accompanying handholds, mounted on, or attached to, an endless belt operating vertically in one direction only and being supported by, and driven through, pulleys at the top and bottom and intended primarily for the conveyance of persons.
  9. The term "moving walk" shall mean a type of passenger carrying device on which passengers stand or walk and in which the passenger carrying surface remains parallel to its direction of motion and is uninterrupted.
  10. The term "operator" shall mean any person having direct control over the operation of any covered device or equipment.
  11. The term "owner" shall mean any person or authorized agent of such person who owns a device or equipment subject to regulation under this Article, or in the event the device or equipment is leased, the lessee. The term "owner" also shall include the State of North Carolina or any political subdivision thereof or any unit of local government.
  12. The term "person" shall mean any individual, association, partnership, firm, corporation, private organization, or the State of North Carolina or any political subdivision thereof or any unit of local government.
  13. The term "personnel hoist" shall mean an elevator installed inside or outside of buildings during construction, alteration or demolition and used primarily to raise and lower workers and other persons connected with or related to the building project.
  14. The term "special equipment" shall mean any permanently or semi-permanently located device, manually or power-operated, used for moving or lifting person or persons and materials but not considered as an elevator, escalator, dumbwaiter, moving walk, personnel hoist, inclined stairway chair lift, inclined or vertical wheelchair lift, or manlift. Special equipment shall include, but not be limited to, manhoists, lift bridges, elevators which are used only for handling building materials and workmen during construction, and stage and orchestra lifts.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1.)

§ 95-110.4. Elevator and Amusement Device Division established.

There is hereby created an Elevator and Amusement Device Division within the Department of Labor. The Commissioner shall appoint a director of the Elevator and Amusement Device Division and such other employees as the Commissioner deems necessary to assist the director in administering the provisions of this Article.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1.)

§ 95-110.5. Powers and duties of Commissioner.

The Commissioner of Labor is hereby empowered:

  1. To delegate to the Director of the Elevator and Amusement Device Division such powers, duties and responsibilities as the Commissioner determines will best serve the public interest in the safe operation of lifting devices and equipment;
  2. To supervise the Director of the Elevator and Amusement Device Division;
  3. To adopt, modify, or revoke such rules and regulations as are necessary for the purpose of carrying out the provisions of this Article including, but not limited to, those governing the design, construction, installation, plans review, testing, inspection, certification, operation, use, maintenance, alteration and relocation of devices and equipment subject to the provisions of this Article. The rules and regulations promulgated pursuant to this rulemaking authority shall conform with good engineering practice as evidenced generally by the most recent editions of the American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks, the National Electrical Code, the American National Standard Safety Requirements for Personnel Hoists, the American National Standard Safety Code for Manlifts, the American National Standard Safety Standard for Conveyors and Related Equipment and similar codes promulgated by agencies engaged in research concerning strength of material, safe design, and other factors bearing upon the safe operation of the devices and equipment subject to the provisions of this Article. The rules and regulations may apply different standards to devices and equipment subject to this Article depending upon their date of installation. The rules and regulations for special equipment shall not adopt specifically any portion of the American National Standard Safety Code for Elevators, Dumbwaiters, Escalators and Moving Walks to inclined and vertical reciprocating conveyors;
  4. To enforce rules and regulations adopted under authority of this Article;
  5. To inspect and have tested for acceptance all new, altered or relocated devices or equipment subject to the provisions of this Article;
  6. To make maintenance and periodic inspections and tests of all devices and equipment subject to the provisions of this Article as often as every six months;
  7. To issue certificates of operation which certify for use such devices and equipment as are found to be in compliance with this Article and the rules and regulations promulgated thereunder;
  8. To have free access, with or without notice, to the devices and equipment subject to the provisions of this Article, during reasonable hours, for purposes of inspection or testing;
  9. To obtain an Administrative Search and Inspection Warrant in accordance with the provisions of Article 4A of Chapter 15 of the General Statutes;
  10. To investigate accidents involving the devices and equipment subject to the provisions of this Article to determine the cause of such accident, and he shall have full subpoena powers in conducting such investigation;
  11. To institute proceedings in the civil or criminal courts of this State, when a provision of this Article or the rules and regulations promulgated thereunder has been violated;
  12. To issue a limited certificate of operation for any device or equipment subject to the provisions of this Article to allow the temporary or restricted use thereof;
  13. To adopt, modify or revoke rules and regulations governing the qualifications of inspectors;
  14. To grant exceptions from the requirements of the rules and regulations promulgated under authority of this Article and to permit the use of other devices when such exceptions and uses will not expose the public to an unsafe condition likely to result in serious personal injury or property damage;
  15. To require that a construction permit must be obtained from the Commissioner before any device or equipment subject to the provisions of this Article is installed, altered or moved from one place to another and to require that the Commissioner must be supplied with whatever plans, diagrams or other data he deems necessary to determine whether or not the proposed construction is in compliance with the provisions of this Article and the rules and regulations promulgated thereunder;
  16. To prohibit the use of any device or equipment subject to the provisions of this Article which is found upon inspection to expose the public to an unsafe condition likely to cause personal injury or property damage. Such device or equipment shall be made operational only upon the Commissioner's determination that such device or equipment has been made safe;
  17. To order the payment of all civil penalties provided by this Article. Funds collected pursuant to a civil penalty order shall be deposited with the State Treasurer;
  18. To require that any device or equipment subject to the provisions of this Article which has been out-of-service and not continuously maintained for one or more years shall not be returned to service without first complying with all rules and regulations governing existing installations; and
  19. To coordinate enforcement and inspection activity relative to equipment, devices and operations covered by this Article in order to minimize duplication of liability or regulatory responsibility on the part of the employer or owner.
  20. To establish fees not to exceed two hundred dollars ($200.00) for the inspection and issuance of certificates of operation for all devices and equipment subject to this Article upon installation or alteration, for each follow-up inspection, and for annual periodic inspections thereafter.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1; 1995, c. 217, s. 2; 2001-427, s. 11(e).)

§ 95-110.6. Noncomplying devices and equipment; appeal.

  1. Whenever the Commissioner determines that a device or equipment is subject to the provisions of this Article, and that the operation of such device or equipment is exposing the public to an unsafe condition likely to result in serious personal injury or property damage, he may immediately order in writing that the use of the device or equipment be stopped or limited until such time as he determines that the device or equipment has been made safe for use by the public.
  2. Whenever the Commissioner determines that the provisions of this Article or the rules and regulations promulgated thereunder have not been complied with, he may refuse to issue or renew or may revoke, suspend or amend a certificate of operation.
  3. Any action taken under this section by the Commissioner shall be final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person against whom such action was taken takes exception to the determination, in which event the final determination of the action shall be made in an administrative proceeding and in a judicial proceeding pursuant to Chapter 150B of the General Statutes, the Administrative Procedure Act.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1; 2015-221, s. 1.5.)

Effect of Amendments. - Session Laws 2015-221, s. 1.5, effective August 18, 2015, rewrote subsection (c).

§ 95-110.7. Operation without certificate; operation not in accordance with Article or rules and regulations; operation after refusal to issue or after revocation of certificate.

  1. No person shall operate or permit to be operated or use any device or equipment subject to the provisions of this Article without a valid certificate of operation unless the absence of a valid certificate is the result of the Commissioner's failure to inspect such device.
  2. No person shall operate or permit to be operated or use any device or equipment subject to the provisions of this Article otherwise than in accordance with this Article and the rules and regulations promulgated thereunder.
  3. No person shall operate or permit to be operated or use any device or equipment subject to the provisions of this Article after the Commissioner has refused to issue or has revoked the certificate of operation for such device or equipment.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1.)

§ 95-110.8. Operation of unsafe device or equipment.

No person shall operate, permit to be operated or use any device or equipment subject to the provisions of this Article if such person knows or reasonably should know that such operation or use will expose the public to an unsafe condition which is likely to result in personal injury or property damage.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1.)

§ 95-110.9. Reports required.

  1. The owner of any device or equipment regulated under the provisions of this Article, or his authorized agent, shall within 24 hours notify the Commissioner of each and every occurrence involving such device or equipment when:
    1. The occurrence results in death or injury requiring medical treatment, other than first aid, by a physician. First aid means the one time treatment or observation of scratches, cuts not requiring stitches, burns, splinters and contusions or a diagnostic procedure, including examination and x-rays, which does not ordinarily require medical treatment even though provided by a physician or other licensed personnel; or
    2. The occurrence results in damage to the device indicating a substantial defect in design, mechanics, structure or equipment, affecting the future safe operation of the device. No reporting is required in the case of normal wear and tear.
  2. The Commissioner, without delay, after notification and determination that an occurrence involving injury or damage as specified in subsection (a) has occurred, shall make a complete and thorough investigation of the occurrence. The report of the investigation shall be placed on file in the office of the division and shall give in detail all facts and information available. The owner may submit for inclusion in the file results of investigations independent of the department's investigation.
  3. No person, following an occurrence as specified in subsection (a), shall operate, attempt to operate, use or move or attempt to move such device or equipment, or part thereof, without the approval of the Commissioner, unless so as to prevent injury to any person or persons.
  4. No person, following an occurrence as specified in subsection (a), shall remove or attempt to remove from the premises any damaged or undamaged part of such device or equipment or repair or attempt to repair any damaged part necessary to a complete and thorough investigation. The department must initiate its investigation within 24 hours of being notified.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1.)

§ 95-110.10. Violations; civil penalties; appeals.

  1. Any person who violates G.S. 95-110.7(a) or (b) (Operation without certificate; operation not in accordance with Article or rules and regulations) shall be subject to a civil penalty not to exceed two hundred fifty dollars ($250.00) for each day each device or equipment is so operated or used.
  2. Any person who violates G.S. 95-110.7(c) (Operation after refusal to issue or after revocation of certificate) or G.S. 95-110.9(c) (Reports required) shall be subject to a civil penalty not to exceed five hundred dollars ($500.00) for each day any such device or equipment is operated or used.
  3. Any person who violates the provisions of G.S. 95-110.9(d) (Reports required) shall be subject to a civil penalty not to exceed five hundred dollars ($500.00).
  4. In determining the amount of any penalty ordered under authority of this section, the Commissioner shall give due consideration to the appropriateness of the penalty with respect to the size of the business of the person being charged, the gravity of the violation, the good faith of the person and the record of previous violations.
  5. The determination of the amount of the penalty by the Commissioner shall be final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person charged with the violation takes exception to the determination in which event the final determination of the penalty shall be made in an administrative proceeding and in a judicial proceeding pursuant to Chapter 150B of the General Statutes, the Administrative Procedure Act.
  6. The Commissioner may file in the office of the clerk of the superior court of the county wherein the person, against whom a civil penalty has been ordered, resides, or if a corporation is involved, in the county wherein the corporation maintains its principal place of business, or in the county wherein the violation occurred, a certified copy of a final order of the Commissioner unappealed from, or of a final order of the Commissioner affirmed upon appeal. Whereupon, the clerk of said court shall enter judgment in accordance therewith and notify the parties. Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though said judgment had been rendered in a suit duly heard and determined by the superior court of the General Court of Justice.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1; 2003-308, s. 3; 2007-231, s. 7.)

Effect of Amendments. - Session Laws 2007-231, s. 7, effective July 18, 2007, in subsection (e), substituted "with return receipt, by signature confirmation as provided by the U.S. Postal Service" for "or" and inserted "or via hand delivery."

§ 95-110.11. Violations; criminal penalties.

  1. Any person who violates G.S. 95-110.8 (Operation of unsafe device or equipment) shall be guilty of a Class 2 misdemeanor.
  2. Any person misrepresenting himself as an authorized inspector administering or enforcing the provisions of this Article or the rules and regulations promulgated thereunder shall be guilty of a Class 2 misdemeanor.
  3. Any person knowingly making a material and false statement, representation or certification in any application, record, report, plan or any other document filed or required to be maintained pursuant to this Article or the rules and regulations promulgated thereunder shall be guilty of a Class 2 misdemeanor which may include a fine of up to five thousand dollars ($5,000).

History

(1985 (Reg. Sess., 1986), c. 990, s. 1; 1993, c. 539, s. 669; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 95-110.12. Legal representation.

It shall be the duty of the Attorney General of North Carolina, when requested, to represent the Department of Labor in actions or proceedings in connection with this Article or the rules and regulations promulgated thereunder.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1.)

§ 95-110.13. Authorization for similar safety and health federal-State programs.

Consistent with the requirements and conditions provided in this Article and the rules and regulations promulgated thereunder, the State, upon recommendation of the Commissioner of Labor, may enter into agreements or arrangements with appropriate federal agencies for the purpose of administering the enforcement of federal statutes and rules and regulations governing devices and equipment subject to the provisions of this Article.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1.)

§ 95-110.14. Confidentiality of trade secrets.

All information reported to or otherwise obtained by the Commissioner or his agents or representatives in connection with any inspection or proceeding under this Article or the rules and regulations promulgated thereunder which contains or might reveal a trade secret shall be considered confidential, except as to carrying out this Article and the rules and regulations promulgated thereunder, or when it is relevant in any proceeding under the same. In any such proceeding the Commissioner or the court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1.)

§ 95-110.15. Construction of Article and rules and regulations and severability.

This Article and the rules and regulations promulgated thereunder shall receive a liberal construction to the end that the welfare of the people may be protected. If any provisions of either or the application thereof to any person or circumstances is held to be invalid, such invalidity shall not affect those provisions or applications which can be given effect without the invalid provision or application, and to that end the provisions of this Article are severable.

History

(1985 (Reg. Sess., 1986), c. 990, s. 1.)

§ 95-111: Reserved for future codification purposes.

ARTICLE 14B. Amusement Device Safety Act of North Carolina.

Sec.

§ 95-111.1. Short title and legislative purpose.

  1. This Article shall be known as the "Amusement Device Safety Act of North Carolina".
  2. The General Assembly finds that although most amusement devices are free from defect and operated in a safe manner, those which are not impose a substantial probability of serious and preventable injury to the public. Protection of the public from exposure to such unsafe conditions and the prevention of injuries is in the best interest and welfare of the people of the State.
  3. It is the intent of this Article that amusement devices shall be designed, constructed, assembled or disassembled, maintained, and operated so as to prevent injuries.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2.)

CASE NOTES

Cited in Multiple Claimants v. N.C. HHS, Div. of Facility Servs., 361 N.C. 372, 646 S.E.2d 356 (2007).


§ 95-111.2. Scope.

  1. This Article shall govern the design, construction, installation, plans review, testing, inspection, certification, operation, use, maintenance, alteration, relocation and investigation of accidents involving amusement devices.
  2. This Article shall not apply to any device which does not normally require the supervision or services of an operator.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2; 1991, c. 178, s. 1; 2003-170, s. 1.)

§ 95-111.3. Definitions.

  1. The term "amusement device" shall mean any mechanical or structural device or attraction that carries or conveys or permits persons to walk along, around or over a fixed or restricted route or course or within a defined area including the entrances and exits thereto, for the purpose of giving such persons amusement, pleasure, thrills or excitement. This term shall not include any of the following:
    1. Devices operated on a river, lake, or any other natural body of water.
    2. Wavepools.
    3. Roller skating rinks.
    4. Ice skating rinks.
    5. Skateboard ramps or courses.
    6. Mechanical bulls.
    7. Buildings or concourses used in laser games.
    8. All-terrain vehicles.
    9. Motorcycles.
    10. Bicycles.
    11. Mopeds.
    12. Rock walls that are in a fixed, permanent location.
    13. Zip-lines.
    14. Funhouses, haunted houses, and similar walk-through devices that are erected temporarily on a seasonal basis and do not have mechanical components.
    15. Playground equipment, including but not limited to soft contained play equipment, swings, seesaws, slides, stationary spring-mounted animal features, jungle gyms, rider-propelled merry-go-rounds, and trampolines.
    16. Any train or device previously or currently approved for use on the public rail transit system.
  2. The term "amusement park" shall mean any tract or area used principally as a permanent location for amusement devices.
  3. The term "annual gross volume" shall mean the gross receipts a person or device receives from all types of sales made and business done during a 12-month period.
  4. The term "carnival area" shall mean any area, track, or structure that is rented, leased, or owned as a temporary location for amusement devices.
  5. The term "Commissioner" shall mean the North Carolina Commissioner of Labor or his authorized representative.
  6. The term "Director" shall mean the Director of the Elevator and Amusement Device Division of the North Carolina Department of Labor.
  7. The term "operator" shall mean any person having direct control of the operation of an amusement device.  The term "operator" shall not include any person on the device for the purpose of receiving amusement, pleasure, thrills, or excitement.
  8. The term "owner" shall mean any person or authorized agent of such person who owns an amusement device or in the event such device is leased, the lessee. The term "owner" also shall include the State of North Carolina or any political subdivision thereof or any unit of local government.
  9. The term "person" shall mean any individual, association, partnership, firm, corporation, private organization, or the State of North Carolina or any political subdivision thereof or any unit of local government.
  10. The term "waterslide" shall mean a stationary amusement device that provides a descending ride on a flowing water film through a trough or tube or on an inclined plane into a pool of water. This term does not include devices where the vertical distance between the highest and the lowest points does not exceed 15 feet.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2; 1987, c. 864, s. 90(a); 1991, c. 178, s. 2; 2011-366, s. 5; 2015-152, s. 1; 2021-82, s. 2.)

Editor's Note. - A hyphen was inserted between the words "all" and "terrain" in subdivision (a)(8) at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2011-366, s. 5, effective June 27, 2011, in the introductory paragraph of subsection (a), deleted the former second sentence, which read: "The term shall include but not be limited to roller coasters, Ferris wheels, merry-go-rounds, glasshouses, waterslides, and walk-through dark houses," and in the last sentence, inserted "any of"; in subdivisions (a)(1) through (a)(12), made minor stylistic changes; and added subdivisions (a)(12) through (a)(15).

Session Laws 2015-152, s. 1, effective July 16, 2015, inserted present subsection (b1), and redesignated former subsection (b1) as present subsection (b2).

Session Laws 2021-82, s. 2, effective July 8, 2021, added subdivision (a)(16).

Opinions of Attorney General

A "go-cart" operated on a track by patrons for a fee is an amusement device as defined by subsection (a) of this section, and is subject to the requirements of the Amusement Device Safety Act of North Carolina. See opinion of Attorney General to Mr. John C. Brooks, Commissioner, North Carolina Department of Labor, 59 N.C.A.G. 25 (1989).

§ 95-111.4. Powers and duties of Commissioner.

The Commissioner of Labor is hereby empowered to do all of the following:

  1. To delegate to the Director of the Elevator and Amusement Device Division such powers, duties and responsibilities as the Commissioner determines will best serve the public interest in the safe operation of amusement devices.
  2. To supervise the Director of the Elevator and Amusement Device Division.
  3. To adopt, modify, or revoke such rules and regulations as are necessary for the purpose of carrying out the provisions of this Article including, but not limited to, those governing the design, construction, installation, plans review, testing, inspection, certification, operation, use, maintenance, alteration and relocation of devices subject to the provisions of this Article. The rules and regulations promulgated pursuant to this rulemaking authority shall conform with good engineering and safety standards, formulas and practices.
  4. To enforce rules and regulations adopted under authority of this Article.
  5. To inspect and have tested for acceptance all new and relocated devices subject to the provisions of this Article. Relocated amusement devices shall be inspected upon reassembly at each new location within this State; provided that the Commissioner may provide for less frequent inspections when he determines that the device is of such a type and its use is of such a nature that inspection less often than upon each reassembly would not expose the public to an unsafe condition likely to result in serious personal injury or property damage.
  6. To inspect amusement devices which have been substantially rebuilt or substantially modified so as to change the original action, structure or capacity of the device.
  7. To make maintenance and periodic inspections and tests of all devices subject to the provisions of this Article. Devices located in amusement parks shall be inspected at least once annually.
  8. To issue certificates of operation which certify for use such devices as are found to be in compliance with this Article and the rules and regulations promulgated thereunder.
  9. To have reasonable access, with or without notice, to the devices subject to the provisions of this Article during reasonable hours, for purposes of inspection or testing.
  10. To obtain an Administrative Search and Inspection Warrant in accordance with the provisions of Article 4A of Chapter 15 of the General Statutes.
  11. To investigate accidents involving devices subject to the provisions of this Article to determine the cause of the accident, and the Commissioner shall have full subpoena powers in conducting the investigation.
  12. To institute proceedings in the civil courts of this State, when a provision of this Article or the rules and regulations promulgated thereunder has been violated.
  13. To adopt, modify or revoke rules and regulations governing the qualifications of inspectors.
  14. To grant exceptions from the requirements of the rules and regulations promulgated under authority of this Article and to permit the use of other devices when these exceptions and uses will not expose the public to an unsafe condition likely to result in serious personal injury or property damage.
  15. To require that before any device subject to the provisions of this Article is erected in this State, or before any additions or alterations which substantially change the device are made, or before the physical spacing between the devices is changed, the owner or the owner's authorized agent shall file with the Commissioner a written notice of the owner's intention to do so and the type of device involved. Should circumstances necessitate, the Commissioner may require that the owner or the owner's authorized agent furnish a copy of the plans, diagrams, specifications or stress analyses of the device before the inspection of the device. When plans, diagrams, specifications or stress analyses are requested by the Commissioner, the Commissioner shall review them within 10 days of receipt, and upon approval, shall authorize the device for use by the public.
  16. To prohibit the use of any device subject to the provisions of this Article which is found upon inspection to expose the public to an unsafe condition likely to cause personal injury or property damage. Such a device shall be made operational only upon the Commissioner's determination that it has been made safe.
  17. To order the payment of all civil penalties provided by this Article. The clear proceeds of funds collected pursuant to a civil penalty order shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.
  18. To coordinate enforcement and inspection activity relative to equipment, devices and operations covered by this Article in order to minimize duplication of liability or regulatory responsibility on the part of the employer or owner.
  19. To establish fees not to exceed two hundred fifty dollars ($250.00) for the inspection and issuance of certificates of operation for devices subject to this Article that are in use.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2; 1987, c. 635, s. 2; 1998-215, s. 110; 2001-427, s. 11(f); 2014-115, s. 5.)

Effect of Amendments. - Session Laws 2014-115, s. 5, effective August 11, 2014, added "to do all of the following" in the introductory paragraph; and made stylistic and punctuation changes throughout the section.

CASE NOTES

Claim Barred by Public Duty Doctrine. - A claim against the Department of Labor under the Tort Claims Act based on the failure of a Department employee to enforce compliance with regulations regarding go-kart seat belts did not fall within the "special relationship" or "special duty" exceptions to the public duty doctrine and the claim was barred. Hunt ex rel. Hasty v. North Carolina Dep't of Labor, 125 N.C. App. 293, 480 S.E.2d 413 (1997), rev'd, 348 N.C. 192, 499 S.E.2d 747 (1998).


§ 95-111.5. Pre-opening inspection and test; records; revocation of certificate of operation.

  1. An owner of a device subject to the provisions of this Article, or his authorized agent, is hereby required to make a pre-opening inspection and test of such device, prior to admitting the public, each day such device is intended to be used.
  2. An owner of a device subject to the provisions of this Article, or his authorized agent, is hereby required to maintain for at least the previous 12 months a signed record of the required pre-opening inspection and test and such other pertinent information as the Commissioner may require by rule or regulation.
  3. The Commissioner is hereby empowered to revoke the certificate of operation for any device regulated by this Article upon failure by the owner or his authorized agent to make the required pre-opening inspection and test or to maintain the required record.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2; 2003-170, s. 2.)

Effect of Amendments. - Session Laws 2003-170, s. 2, effective June 12, 2004, substituted "the previous 12 months" for "30 days" in subsection (b).

§ 95-111.6. Noncomplying devices; appeal.

  1. Whenever the Commissioner determines that a device is subject to the provisions of this Article and the operation of such device is exposing the public to an unsafe condition likely to result in serious personal injury or property damage, he immediately may order in writing that the use of the device be stopped or limited until such time as he determines that the device has been made safe for use by the public.
  2. Whenever the Commissioner determines that the provisions of this Article or the rules and regulations promulgated thereunder have not been complied with, he may refuse to issue or renew or may revoke, suspend or amend a certificate of operation.
  3. Any action taken under this section by the Commissioner shall be final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person against whom such action was taken takes exception to the determination, in which event the final determination of the action shall be made in an administrative proceeding and in a judicial proceeding pursuant to Chapter 150B of the General Statutes, the Administrative Procedure Act.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2; 2015-221, s. 1.6.)

Effect of Amendments. - Session Laws 2015-221, s. 1.6, effective August 18, 2015, rewrote subsection (c).

§ 95-111.7. Operation without certificate; operation not in accordance with Article or rules and regulations; operation after refusal to issue or after revocation of certificate.

  1. No person shall operate or permit to be operated or use any device subject to the provisions of this Article without a valid certificate of operation.
  2. No person shall operate or permit to be operated or use any device subject to the provisions of this Article otherwise than in accordance with this Article and the rules and regulations promulgated thereunder.
  3. No person shall operate or permit to be operated or use any device subject to the provisions of this Article after the Commissioner has refused to issue or has revoked the certificate of operation for such device.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2.)

§ 95-111.8. Location notice.

No person shall operate for the public or permit the operation for the public any device subject to the provisions of this Article after initial assembly or after reassembly at any location within this State without first notifying the Commissioner of the intention to operate for the public. Written notice of a planned schedule of operation or use shall be received at least 10 working days prior to the first planned date of operation or use.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2; 2003-170, s. 3; 2011-366, s. 6.)

Effect of Amendments. - Session Laws 2011-366, s. 6, effective June 27, 2011, inserted "working" in the last sentence.

§ 95-111.9. Operation of unsafe device.

No person shall operate, permit to be operated or use any device subject to the provisions of this Article if such person knows or reasonably should know that such operation or use will expose the public to an unsafe condition which is likely to result in personal injury or property damage.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2.)

§ 95-111.10. Reports required.

  1. The owner of any device regulated under the provisions of this Article, or his authorized agent, shall within 24 hours, notify the Commissioner of each and every occurrence involving such device when:
    1. The occurrence results in death or injury requiring medical treatment, other than first aid, by a physician. First aid means the one time treatment or observation of scratches, cuts not requiring stitches, burns, splinters and contusions or a diagnostic procedure, including examination and x-rays, which does not ordinarily require medical treatment even though provided by a physician or other licensed personnel; or
    2. The occurrence results in damage to the device indicating a substantial defect in design, mechanics, structure or equipment, affecting the future safe operation of the device. No reporting is required in the case of normal wear and tear.
  2. The Commissioner, without delay, after notification and determination that an occurrence involving injury or damage as specified in subsection (a) has occurred, shall make a complete and thorough investigation of the occurrence. The report of the investigation shall be placed on file in the office of the division and shall give in detail all facts and information available. The owner may submit for inclusion in the file results of investigations independent of the department's investigation.
  3. No person, following an occurrence as specified in subsection (a), shall operate, attempt to operate, use or move or attempt to move such device or part thereof, without the approval of the Commissioner, unless so as to prevent injury to any person or persons.
  4. No person, following an occurrence as specified in subsection (a), shall remove or attempt to remove from the premises any damaged or undamaged part of such device or repair or attempt to repair any damaged part necessary to a complete and thorough investigation. The department must initiate its investigation within 24 hours of being notified.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2.)

§ 95-111.11. Operators.

  1. Any operator of a device subject to the provisions of this Article shall be at least 18 years of age. An operator shall operate no more than one device at any given time. An operator shall be in attendance at all times the device is in operation.
  2. No person shall operate any amusement device equipment while under the influence of alcohol or any other impairing substance as defined by G.S. 20-4.01(14a). It shall be a violation of this subsection to knowingly permit the operation of any amusement device while the operator is under the influence of an impairing substance.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2; 2003-170, s. 4.)

§ 95-111.12. Liability insurance.

  1. No owner shall operate a device subject to the provisions of this Article, unless at the time, there is in existence a contract of insurance providing coverage of not less than one million dollars ($1,000,000) per occurrence against liability for injury to persons or property arising out of the operation or use of such device or there is in existence a contract of insurance providing coverage of not less than five hundred thousand dollars ($500,000) per occurrence against liability for injury to persons or property arising out of the operation or use of the amusement device if the annual gross volume of the device does not exceed two hundred seventy-five thousand dollars ($275,000); provided waterslides shall not be required to be insured as herein provided for an amount in excess of one hundred thousand dollars ($100,000) per occurrence. The insurance contract to be provided must be by any insurer or surety that is acceptable to the North Carolina Insurance Commissioner and authorized to transact business in this State; provided, however, that insurance for waterslides may be purchased under Article 21 of Chapter 58 of the General Statutes or under G.S. 58-28-5(b).
  2. No certificate of operation shall be issued by the Commissioner until such time as the owner or his authorized agent provides proof of the required contract of insurance.
  3. The Commissioner shall have the right to request from the owner of a device regulated by this Article, or his authorized agent, proof of the required contract of insurance, and upon failure of the owner or his authorized agent to provide such proof, the Commissioner shall have the right to prevent the commencement of or to stop the operation of the device until such time as proof is provided.
  4. Operators of waterslides, as defined in G.S. 95-111.3(h), shall notify the Commissioner of all incidences of personal injury involving the waterslides, as required by G.S. 95-111.10(a).

History

(1985 (Reg. Sess., 1986), c. 990, s. 2; 1987, c. 635, s. 1; c. 864, ss. 90(b), 91(a); 1989, c. 232; 1989 (Reg. Sess., 1990), c. 914; 1995, c. 517, s. 34; 2015-152, s. 3.)

Editor's Note. - Session Laws 1995, c. 517, s. 42, provided that subsection (a) as amended by s. 34 of that act would expire December 31, 1997. Subsection (a) is set out as it read prior to amendment by this act.

Effect of Amendments. - Session Laws 2015-152, s. 3, effective July 16, 2015, substituted "amusement device if the annual gross volume of the device" for "amusement devices if the annual gross volume of the devices" in the first sentence of subsection (a).

§ 95-111.13. Violations; civil penalties; appeal; criminal penalties.

  1. Any person who violates G.S. 95-111.7(a) or (b) (Operation without certificate; operation not in accordance with Article or rules and regulations) or G.S. 95-111.8 (Location notice) is subject to a civil penalty not to exceed one thousand two hundred fifty dollars ($1,250) for each rule, regulation, or section of this Article violated and for each day each device is so operated or used.
  2. Any person who violates G.S. 95-111.7(c) (Operation after refusal to issue or after revocation of certificate) or G.S. 95-111.10(c) (Reports required) or G.S. 95-111.12 (Liability insurance) is subject to a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each day each device is so operated or used.
  3. Repealed by Session Laws 2015-152, s. 2, effective July 16, 2015, and applicable to violations occurring on or after that date.
  4. Any person who violates the provisions of G.S. 95-111.10(d) (Reports required) or knowingly permits the operation of an amusement device in violation of G.S. 95-111.11(a) (Operator requirements) is subject to a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each day each device is so operated or used.
  5. Any person who violates G.S. 95-111.9 (Operation of unsafe device) or G.S. 95-111.11(b) (Operation of an amusement device while impaired) is subject to a civil penalty not to exceed five thousand dollars ($5,000) for each day each device is so operated or used.
  6. In determining the amount of any penalty ordered under authority of this section, the Commissioner shall give due consideration to the appropriateness of the penalty with respect to the annual gross volume of the person being charged, the gravity of the violation, the good faith of the person, and the record of previous violations.
  7. The determination of the amount of the penalty by the Commissioner is final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person charged with the violation takes exception to the determination, in which event final determination of the penalty shall be made in an administrative proceeding and in a judicial proceeding pursuant to Chapter 150B of the General Statutes, the Administrative Procedure Act.
  8. The Commissioner may file in the office of the clerk of the superior court of the county wherein the person, against whom a civil penalty has been ordered, resides, or if a corporation is involved, in the county wherein the corporation maintains its principal place of business, or in the county wherein the violation occurred, a certified copy of a final order of the Commissioner unappealed from, or of a final order of the Commissioner affirmed upon appeal. Whereupon, the clerk of said court shall enter judgment in accordance therewith and notify the parties. Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though said judgment had been rendered in a suit duly heard and determined by the superior court of the General Court of Justice.
  9. Except as provided under subsection (j) of this section, any person who willfully violates any provision of this Article is guilty of a Class 2 misdemeanor, which may include a fine of not more than ten thousand dollars ($10,000); except that if the conviction is for a violation committed after a first conviction of the person, the person shall be guilty of a Class 1 misdemeanor, which may include a fine of not more than twenty thousand dollars ($20,000).
  10. Any person who willfully violates any provision of this Article, and that violation causes the serious injury or death of any person, then the person is guilty of a Class E felony, which shall include a fine.
  11. Nothing in this section prevents any prosecuting officer of the State of North Carolina from proceeding against a person who violates this Article on a prosecution charging any degree of willful or culpable homicide.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2; 2003-170, s. 5; 2003-308, s. 4; 2007-231, s. 8; 2015-152, s. 2.)

Editor's Note. - Session Laws 2015-152, s. 6, provides: "G.S. 95-111.13(i) and (j), as enacted in Section 2 of this act, become effective December 1, 2015, and apply to violations occurring on or after that date. The remainder of Section 2 of this act is effective when this act becomes law [July 16, 2015] and applies to violations occurring on or after that date. The remainder of this act is effective when it becomes law."

Effect of Amendments. - Session Laws 2007-231, s. 8, effective July 18, 2007, in subsection (g), substituted "with return receipt, by signature confirmation as provided by the U.S. Postal Service" for "or" and inserted "or via hand delivery."

Session Laws 2015-152, s. 2, rewrote subsection (a); substituted "two thousand five hundred dollars ($2,500)" for "five hundred dollars ($500.00)" in subsection (b); deleted former subsection (c), which read: "Any person who violates G.S. 95-111.8 (Location notice) shall be subject to a civil penalty not to exceed five hundred dollars ($500.00) for each day any device is operated or used without the location notice having been provided"; substituted "two thousand five hundred dollars ($2,500) for each day each device is so operated or used" for "five hundred dollars ($500.00)" in subsection (d); substituted "five thousand dollars ($5,000) for each day each device is so operated or used" for "one thousand dollars ($1,000)" in subsection (e); substituted " annual gross volume" for "size of the business" in subsection (f); in subsection (i), added "Except as provided under subsection (j) of this section" and substituted "Article is guilty" for "Article, and the violation causes the death of any person, shall be guilty" in the first sentence, and deleted the former last sentence, which read: "This subsection shall not prevent any prosecuting officer of the State of North Carolina from proceeding against such person on a prosecution charging any degree of willful or culpable homicide"; added subsection (j) and (k); and made minor stylistic changes. For effective date and applicability, see editor's note.

§ 95-111.14. Denial of permission to enter amusement device.

The owner or amusement device operator may deny any person entrance to an amusement device if he or she believes such entry may jeopardize the safety of the person desiring entry, riders or other persons.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2.)

§ 95-111.15. Legal representation.

It shall be the duty of the Attorney General of North Carolina, when requested, to represent the Department of Labor in actions or proceedings in connection with this Article or the rules and regulations promulgated thereunder.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2.)

§ 95-111.16. Authorization for similar safety and health federal-State programs.

Consistent with the requirements and conditions provided in this Article and the rules and regulations promulgated thereunder, the State, upon recommendation of the Commissioner of Labor, may enter into agreements or arrangements with appropriate federal agencies for the purpose of administering the enforcement of federal statutes and rules and regulations governing devices subject to the provisions of this Article.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2.)

§ 95-111.17. Confidentiality of trade secrets.

All information reported to or otherwise obtained by the Commissioner or his agents or representatives in connection with any inspection or proceeding under this Article or the rules and regulations promulgated thereunder which contains or might reveal a trade secret shall be considered confidential, except as to carrying out this Article and the rules and regulations promulgated thereunder or when it is relevant in any proceeding under the same. In any such proceeding the Commissioner or the Court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2.)

§ 95-111.18. Construction of Article and rules and regulations and severability.

This Article and the rules and regulations promulgated thereunder shall receive a liberal construction to the end that the welfare of the people may be protected. If any provisions of either or the application thereof to any person or circumstances is held to be invalid, such invalidity shall not affect those provisions or applications which can be given effect without the invalid provision or application, and to that end the provisions of this Article are severable.

History

(1985 (Reg. Sess., 1986), c. 990, s. 2.)

CASE NOTES

Cited in Multiple Claimants v. N.C. HHS, Div. of Facility Servs., 361 N.C. 372, 646 S.E.2d 356 (2007).


§§ 95-112 through 95-115: Reserved for future codification purposes.

ARTICLE 15. Passenger Tramway Safety.

Sec.

§ 95-116. Declaration of policy.

In order to safeguard life, health, property, and the welfare of this State, it shall be the policy of the State of North Carolina to protect its citizens and visitors from unnecessary mechanical hazards in the operation of ski tows, lifts, tramways and related devices to insure that reasonable design and construction are used, that accepted safety devices and sufficient personnel are provided for, and that periodic inspections and adjustments are made which are deemed essential to the safe operation of ski tows, ski lifts and passenger tramways. The primary responsibility for design, construction, maintenance, and inspection rests with the operators of such passenger tramway devices. The State, through the Commissioner of Labor, shall register all ski lift devices and passenger tramways and establish reasonable standards of design and operational practices, and cause to be made such inspections as may be necessary in carrying out this policy.

History

(1969, c. 1021.)

Cross References. - As to actions relating to skier safety and skiing accidents, see G.S. 99C-1 through 99C-5.


§ 95-117. Definitions.

Each word or term defined in this Article has the meaning indicated in this section, unless a different meaning is plainly required by the context.

  1. Annual gross volume. - The gross receipts a person or passenger tramway receives from all types of sales made and business done during a 12-month period.
  2. Commissioner. - The Commissioner of Labor of the State of North Carolina.
  3. Industry. - Activities of all those persons in the State who own, manage, or direct the operation of passenger tramways.
  4. Operator. - Any person, firm, corporation, or organization which owns, manages, or directs the operation of a passenger tramway. "Operator" may apply to the State or any political subdivision or instrumentality thereof.
  5. Owner. - Any person or authorized agent of such person who owns a passenger tramway or, in the event the passenger tramway is leased, the lessee. The term owner shall also include the State of North Carolina or any political subdivision thereof or any unit of local government.
  6. Passenger tramway. - A device used to transport passengers uphill on skis, or in cars on tracks, or suspended in the air by the use of steel cables, chains or belts, or by ropes, and usually supported by trestles or towers with one or more spans. The term includes any of the following devices:
    1. Chairlift. - A type of transportation on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain or link belt supported by trestles or towers with one or more spans, or similar devices.
    2. J bar, T bar, or platter pull. - Devices which pull skiers riding on skis by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans.
    3. Multicar aerial passenger tramway. - A device used to transport passengers in several open or in closed cars attached to, and suspended from, a moving wire rope or attached to a moving wire rope and supported on a standing wire rope, or similar device.
    4. Rope tow. - A type of transportation which pulls the skiers, riding on skis as the skier grasps the rope manually, or similar device.
    5. Skimobile. - A device in which a passenger car running on steel or wooden tracks is attached to and pulled by a steel cable, or similar device.
    6. Two-car aerial passenger tramway. - A device used to transport passengers in two open or enclosed cars attached to, and suspended from, a moving wire rope or attached to a moving wire rope and supported on a standing wire rope or similar device.
  7. Person. - Any individual, association, partnership, firm, corporation, private organization, or the State of North Carolina or any political subdivision thereof or any unit of local government.

a1. Conveyor. - A type of transportation on which passengers are transported uphill on a flexible moving element (conveyor belt) that travels uphill on one path and generally returns underneath the uphill portion.

a2. Funicular. - A system in which passengers are transported in or on carriers that are supported and guided by a level or inclined guideway and propelled by means of a haul rope or other flexible element that is driven by a power unit remaining essentially at a single location.

a3. Gondola. - An enclosed cabin attached to a cable that mechanically transports people or cargo.

History

(1969, c. 1021; 2005-347, s. 1; 2017-211, s. 14(b).)

Editor's Note. - Session Laws 2017-211, s. 21(a), is a severability clause.

Effect of Amendments. - Session Laws 2005-347, s. 1, effective September 7, 2005, added subdivision (4)a1.

Session Laws 2017-211, s. 14(b), effective October 1, 2017, rewrote the section.

§ 95-118. Registration required; application procedures.

  1. No person shall operate or permit to be operated or use any device subject to the provisions of this Article without a valid registration certificate.
  2. Operators of devices subject to the provisions of this Article shall apply to the Commissioner of Labor, on forms provided by the Commissioner, for registration of the devices that the operator owns or manages, or the operation of which the operator directs. The application shall contain information that the Commissioner may reasonably require in order for the Commissioner to determine whether the passenger tramway sought to be registered by the operator complies with the intent of this Article and the rules adopted by the Commissioner.

History

(1969, c. 1021; 2005-347, s. 2.)

Effect of Amendments. - Session Laws 2005-347, s. 2, effective September 7, 2005, rewrote the section heading and text.

§ 95-119. Certification criteria; procedures; display of certificate.

  1. A registration certificate shall be issued annually when the Commissioner is satisfied that the facts stated in the application are sufficient to enable the Commissioner to fulfill his or her duties under this Article and that the device sought to be registered complies with the rules adopted pursuant to this Article.
  2. The Commissioner may conduct any inspections necessary to determine whether the device sought to be registered complies with the intent of this Article and the rules adopted pursuant to this Article.
  3. The registration certificate for each device subject to the provisions of this Article shall be displayed prominently at the place where passengers are loaded onto the device.

History

(1969, c. 1021; 2005-347, s. 3; 2011-366, s. 7.)

Effect of Amendments. - Session Laws 2005-347, s. 3, effective September 7, 2005, rewrote the section heading and text.

Session Laws 2011-366, s. 7, effective June 27, 2011, in subsection (a), substituted "shall be issued annually" for "shall be issued without delay" and deleted the last sentence, which read: "Each registration certificate shall expire on October 31 of the year next following the date of issuance."

§ 95-120. Powers and duties of the Commissioner.

In addition to all other powers and duties conferred and imposed upon the Commissioner by this Article, the Commissioner shall have and exercise the following powers and duties:

  1. To adopt, modify, or revoke the rules necessary for carrying out the provisions of this Article, including those governing the design, construction, installation, operation, use, and maintenance of devices subject to the provisions of this Article. The rules adopted under this section shall conform as nearly as possible to the standards contained  in the B77.1 - American National Standards Safety Requirements for Aerial Passenger Tramways and with good engineering and safety standards, formulas, and practices.
  2. To enforce the rules adopted under this Article.
  3. To grant exceptions from the requirements of the rules adopted under this Article and to permit the use of other devices when the exceptions and uses will not expose the public to an unsafe condition likely to result in serious personal injury or damage to property.
  4. To hold hearings and take evidence in all matters relating to the exercise and performance of the powers and duties vested in the Commissioner, subpoena witnesses, administer oaths, and compel the testimony of witnesses and the production of books, papers and records relevant to any inquiry.
  5. To approve, deny, revoke, and renew the registration certificates in accordance with the rules adopted pursuant to this Article.
  6. To institute civil actions for injunctive or other relief against violators of this Article.
  7. To cause the seal of the Commissioner of Labor to be affixed to all registrations issued by the Commissioner, and to employ, within the funds available to the Commissioner, and prescribe the duties of the personnel as the Commissioner may deem necessary in the administration of this Article.
  8. To have reasonable access, with or without notice, to the devices subject to the provisions of this Article during reasonable hours, for the purposes of inspections and testing.
  9. To investigate accidents involving devices subject to the provisions of this Article to determine the cause of the accident. The Commissioner shall have full subpoena powers in conducting the investigations.
  10. To coordinate enforcement and inspection activity relative to equipment, devices, and operations covered by this Article in order to minimize duplication of liability or regulatory responsibility on the part of the operator, owner, or employer.
  11. To establish fees not to exceed one hundred thirty-seven dollars ($137.00) for the inspection and issuance of registration certificates for devices that are in use and subject to this Article.

History

(1969, c. 1021; 2005-347, s. 4.)

Cross References. - As to duties of ski operators and skiers, see G.S. 99C-2.

Effect of Amendments. - Session Laws 2005-347, s. 4, effective September 7, 2005, rewrote the section, adding subdivisions (6) to (9).

§ 95-120.1. Liability insurance.

  1. No person shall operate a device subject to the provisions of this Article, unless at the time of operation, there is in existence:
    1. A contract of insurance providing coverage of not less than one million dollars ($1,000,000) per occurrence against liability for injury to persons or property arising out of the operation or use of the device; or
    2. A contract of insurance providing coverage of not less than five hundred thousand dollars ($500,000) per occurrence against liability for injury to persons or property arising out of the operation or use of the devices if the annual gross volume of the receipts of the devices as defined in G.S. 95-111.3(b1) does not exceed two hundred seventy-five thousand dollars ($275,000).
  2. The Commissioner shall not issue a certificate of registration until the operator or the operator's authorized agent provides proof of the required contract of insurance.
  3. The Commissioner may request from the operator of a device subject to the provisions of this Article or the operator's authorized agent, proof of the required contract of insurance, and upon failure of the operator or authorized agent to provide proof of insurance, the Commissioner shall have the power to prevent the commencement of or to stop the operation of the device until such time as proof is provided.

The insurance contract to be provided must be made by an insurer or surety that is acceptable to the North Carolina Insurance Commissioner and authorized to transact business in this State.

History

(2005-347, s. 5; 2015-152, s. 5.)

Effect of Amendments. - Session Laws 2015-152, s. 5, effective July 16, 2015, substituted "volume of the receipts of the devices as defined in G.S. 95-111.3(b1)" for "volume of the devices" in subdivision (a)(2).

§ 95-121. Inspections and reports.

The Commissioner may cause to be made such inspections of the construction, operation, and maintenance of passenger tramways as he shall deem to be reasonably necessary. If, as the result of an inspection, it is found that a violation of the Commissioner's rules and regulations exists, or a condition in passenger tramway construction, operation or maintenance exists, which endangers safety of the public, an immediate report shall be made to the Commissioner for appropriate investigation and order.

History

(1969, c. 1021.)

§ 95-122. Emergency shutdown.

When facts are presented to the Commissioner tending to show that an unreasonable hazard exists in the continued operation of a passenger tramway, and after such verification of said facts as is practical under the circumstances and consistent with the public safety, the Commissioner may by an emergency order require the operator of said tramway forthwith to cease using the same for the transportation of passengers. Such emergency order shall be in writing, signed by the Commissioner, and notice thereof shall be served upon the operator or his agent immediately in control of said passenger tramway by a true copy of such order, with a return being made of such service and endorsed on the original order. Such emergency shutdown shall be effective for a period not to exceed 48 hours from the time of service. Immediately after the issuance of an emergency order, the Commissioner shall conduct an investigation into the facts of the case and shall take such action as may be appropriate and as provided by the provisions of this Article.

History

(1969, c. 1021.)

§ 95-123. Orders.

If, after investigation, the Commissioner finds that a violation of any of his rules and regulations exists, or that there is a condition in passenger tramway construction, operation, or maintenance which endangers the safety of the public, the Commissioner shall forthwith issue his written order setting forth his findings, the corrective action to be taken, and fixing a reasonable time for compliance therewith. The order shall be sent to the affected operator by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, and shall become final unless the operator contests the order by filing a petition for a contested case under G.S. 150B-23 within 20 days after receiving the order. The Commissioner shall have the power to institute injunctive proceedings in any court of competent jurisdiction of the district court district as defined in G.S. 7A-133 or superior court district or set of districts as defined in G.S. 7A-41.1, as the case may be, in which the passenger tramway is located for the purpose of restraining the operation of said tramway or for compelling compliance with any lawful order of the Commissioner. Judicial review of a final decision under this section may be obtained under Article 4 of Chapter 150B of the General Statutes.

History

(1969, c. 1021; 1973, c. 1331, s. 3; 1987, c. 827, s. 264; 1987 (Reg. Sess., 1988), c. 1037, s. 106; 2003-308, s. 5; 2007-231, s. 9.)

Effect of Amendments. - Session Laws 2007-231, s. 9, effective July 18, 2007, in the second sentence, substituted "with return receipt, by signature confirmation as provided by the U.S. Postal Service" for "or" and inserted "or via hand delivery."

§ 95-124. Suspension of registration.

If any operator fails to comply with the lawful order of the Commissioner as issued under this Article, and within the time fixed thereby, the Commissioner may suspend the registration of the affected passenger tramway for such time as he may consider necessary for the protection of the safety of the public. Any operator who shall be convicted, or enter a plea of guilty or nolo contendere, to operating a passenger tramway which has not been registered by the Commissioner, or after its registration has been suspended by the Commissioner, shall be guilty of a Class 1 misdemeanor.

History

(1969, c. 1021; 1993, c. 539, s. 670; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 95-125. Effective date of initial applications.

This Article shall take effect and become operative on July 30, 1969, provided that the initial applications for registration of passenger tramways shall be filed on or before November 1, 1969, and passenger tramways in existence on November 1, 1969, may be operated without registration until final action is taken by the Commissioner on the application for registration thereof.

History

(1969, c. 1021.)

§ 95-125.1. Operation of unsafe device.

No person shall operate, permit to be operated, or use any device subject to the provisions of this Article if the person knows or reasonably should know that the operation or use of the device will expose the public to an unsafe condition which is likely to result in personal injury or property damage.

History

(2017-211, s. 14(c).)

Editor's Note. - Session Laws 2017-211, s. 14(j), made this section effective January 1, 2018, and applicable to violations occurring and offenses committed on or after that date.

Session Laws 2017-211, s. 21(a), is a severability clause.

§ 95-125.2. Reports required.

  1. The owner of any device regulated under the provisions of this Article, or the owner's authorized agent, shall, within 24 hours, notify the Commissioner of each and every occurrence involving the device when either of the following occurs:
    1. Death or injury requiring medical treatment, other than first aid, by a physician. For the purposes of this section, "first aid" means (i) the one-time treatment or observation of scratches, cuts not requiring stitches, burns, splinters, or contusions or (ii) performing a diagnostic procedure, including examination and X rays, which does not ordinarily require medical treatment even though provided by a physician or other licensed personnel.
    2. Damage to the device indicating a substantial defect in design, mechanics, structure, or equipment that affects the future safe operation of the device. No reporting is required in the case of normal wear and tear.
  2. The Commissioner, without delay, after notification and determination that an occurrence involving injury or damage as specified in subsection (a) of this section has occurred, shall make a complete and thorough investigation of the occurrence. The report of the investigation shall be placed on file in the office of the division and shall give in detail all facts and information available. The owner may submit for inclusion in the file results of investigations independent of the department's investigation.
  3. No person, after an occurrence specified in subsection (a) of this section, shall do either of the following:
    1. Operate, attempt to operate, use, or move or attempt to move such device or part thereof without the approval of the Commissioner, unless so as to prevent injury to any person or persons.
    2. Remove or attempt to remove from the premises any damaged or undamaged part of such device or repair or attempt to repair any damaged part necessary to a complete and thorough investigation. The Department must initiate its investigation within 24 hours of being notified.

History

(2017-211, s. 14(c).)

Editor's Note. - Session Laws 2017-211, s. 14(j), made this section effective January 1, 2018, and applicable to violations occurring and offenses committed on or after that date.

Session Laws 2017-211, s. 21(a), is a severability clause.

§ 95-125.3. Violations; civil penalties; appeal; criminal penalties.

  1. Any person who violates G.S. 95-118 (Registration required; application procedures) is subject to a civil penalty not to exceed one thousand two hundred fifty dollars ($1,250) for each day each device is so operated or used.
  2. Any person who violates G.S. 95-120.1 (Liability insurance) or G.S. 95-125.2 (Reports required) is subject to a civil penalty not to exceed two thousand five hundred dollars ($2,500) for each day each device is so operated and used.
  3. Any person who violates G.S. 95-125.1 (Operation of unsafe device) is subject to a civil penalty not to exceed five thousand dollars ($5,000) for each day each device is so operated and used.
  4. In determining the amount of any penalty ordered under authority of this section, the Commissioner shall give due consideration to the appropriateness of the penalty with respect to the annual gross volume of the person being charged, the gravity of the violation, the good faith of the person, and the record of previous violations.
  5. The Commissioner's determination of the amount of the penalty is final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person charged with the violation takes exception to the determination, in which event final determination of the penalty shall be made in an administrative proceeding pursuant to Chapter 150B of the General Statutes, the Administrative Procedures Act.
  6. The Commissioner may file in the office of the clerk of the superior court of the county wherein the person, against whom a civil penalty has been ordered, resides or, if a corporation is involved, in the county wherein the violation occurred, a certified copy of a final order of the Commissioner unappealed form, or of a final order of the Commissioner affirmed upon appeal. Upon such filing, the clerk of said court shall enter judgment in accordance with the final order and notify the parties. The judgment shall have the same effect, and all proceedings in relation to the judgment shall thereafter be the same, as though the judgment had been rendered in a suit duly heard and determined by the superior court of the General Court of Justice.
  7. Any person who willfully violates any provision of this Article and that violation causes the serious injury or death of any person, then the person is guilty of a Class E felony, which shall include a fine.
  8. Nothing in this section prevents any prosecuting officer of the State of North Carolina from proceeding against a person who violates this Article on a prosecution charging any degree of willful or culpable homicide.

History

(2017-211, s. 14(c).)

Editor's Note. - Session Laws 2017-211, s. 14(j), made this section effective January 1, 2018, and applicable to violations occurring and offenses committed on or after that date.

Session Laws 2017-211, s. 21(a), is a severability clause.

ARTICLE 16. Occupational Safety and Health Act of North Carolina.

Sec.

§ 95-126. Short title and legislative purpose.

  1. This Article shall be known as the "Occupational Safety and Health Act of North Carolina" and also may be referred to by abbreviations as "OSHANC."
  2. Legislative findings and purpose:
    1. The General Assembly finds that the burden of employers and employees of this State resulting from personal injuries and illnesses arising out of work situations is substantial; that the prevention of these injuries and illnesses is an important objective of the government of this State; that the greatest hope of attaining this objective lies in programs of research, education and enforcement, and in the earnest cooperation of the federal and State governments, employers and employees.
    2. The General Assembly of North Carolina declares it to be its purpose and policy through the exercise of its powers to ensure so far as possible every working man and woman in the State of North Carolina safe and healthful working conditions and to preserve our human resources:
      1. By encouraging employers and employees in their effort to reduce the number of occupational safety and health hazards at the place of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;
      2. By providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;
      3. By authorizing the Commissioner to develop occupational safety and health standards applicable to business giving consideration to the needs of employers and employees and to adopt standards promulgated from time to time by the Secretary of Labor under the Occupational Safety and Health Act of 1970, and by creating a safety and health review commission for carrying out adjudicatory functions under this Article;
      4. By building upon advances already made through employer and employee initiative for providing safe and healthful working conditions;
      5. By providing occupational health criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience;
      6. By providing for training programs to increase the number and competence of personnel engaged in the field of occupational safety and health;
      7. By providing an effective enforcement program which shall include a prohibition against giving advance notice of an inspection and sanctions for any individual violating this prohibition;
      8. By providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Article and accurately describe the nature of the occupational safety and health problem;
      9. By encouraging joint employer-employee efforts to reduce injuries and diseases arising out of employment;
      10. By providing for research in the field of occupational safety and health, by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems;
      11. By exploring ways to discover latent diseases, establishing causal connections between diseases and work in environmental conditions, and conducting other research relating to health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occupational safety;
      12. By authorizing the Commissioner to enter into contracts with the Department of Health and Human Services, or any other State or local units, to the end the Commissioner and the Department of Health and Human Services and other State or local units may fully cooperate and carry out the ends and purposes of this Article.
      13. The General Assembly of North Carolina appoints and elects the North Carolina Department of Labor as the designated agency to administer the Occupational Safety and Health Act of North Carolina.

History

(1973, c. 295, s. 1; c. 476, s. 128; 1989, c. 727, s. 219(13); 1997-443, s. 11A.33; 2005-133, s. 2.)

Cross References. - For the Migrant Housing Act of North Carolina, see G.S. 95-222 et seq.

Editor's Note. - Session Laws 2005-133, s. 1, effective June 29, 2005, as amended by Session Laws 2006-226, s. 30, provides: "Under the Occupational Safety and Health Act of North Carolina, the name of the Safety and Health Review Board is changed to the North Carolina Occupational Safety and Health Review Commission. The Revisor of Statutes is authorized to substitute the term 'Commission' for the term 'Board' wherever that term appears in the General Statutes in relation to the Act. The Revisor of Statutes is also authorized to insert the words 'North Carolina Occupational' in front of the phrase 'Safety and Health Review Commission' wherever that phrase appears in the General Statutes in relation to the Act."

Effect of Amendments. - Session Laws 2005-133, s. 2, effective June 29, 2005, substituted "commission" for "board" in subdivision (b)(2)c.

Legal Periodicals. - For survey of 1974 case law on proceedings under the Occupational Safety and Health Act, see 53 N.C.L. Rev. 1005 (1975).

For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).

For article, "Smoking in the Workplace: Who Has What Rights?," see 11 Campbell L. Rev. 311 (1989).

For article discussing the protection of nonsmokers' rights in the workplace, see 11 Campbell L. Rev. 339 (1989).

For article, "Proving Violations or Proving Affirmative Defenses Under the Occupational Safety and Health Act of North Carolina," see 18 N.C. Cent. L.J. 99 (1989).

For article, "North Carolina Employment Law After Coman : Reaffirming Basic Rights in the Workplace," see 24 Wake Forest L. Rev. 905 (1989).

For article, "Penalties Under the Occupational Safety and Health Act of North Carolina," see 19 N.C. Cent. L.J. 27 (1990).

CASE NOTES

Purpose. - The primary purpose of this Act is to keep conditions in the workplace safe for workers. This purpose cannot possibly be accomplished where employers are allowed to delegate to a third party a specific duty promulgated under the Act that is designed to protect the safety of workers. Therefore, where an employer, on a regular basis, is not aware of the reputation of the electrician who grounds equipment emitting dangerous currents of electricity, such blatant disregard for the safety of employees cannot be ignored. Brooks v. BCF Piping, Inc., 109 N.C. App. 26, 426 S.E.2d 282 (1993).

There is statutory authority under G.S. 95-126(b)(2)(m) granted to the North Carolina Department of Labor to protect the health and safety of all employees in North Carolina; the operations manual is a non-binding interpretive statement, not a rule requiring formal rule-making procedures - accordingly, the exception that requires rule-making if the rights and duties of the employer are affected does not apply; thus, the operations manual merely established guidelines that directed Occupational Safety and Health Act inspectors as to what parties could be cited for violation of a rule and thus did not require formal rule-making. Comm'r of Labor v. Weekley Homes, L.P., 169 N.C. App. 17, 609 S.E.2d 407 (2005).

Where an employee alleged that he was wrongfully discharged in violation of public policy, his cause of action under the Occupational Safety and Health Act of North Carolina, G.S. 95-126 et seq., was not dismissed for failure to state claim because the Act was a source of public policy as set out in G.S. 95-126(b)(2); though it could not be gleaned whether the employee's complaints were shared with an external source pursuant to G.S. 95-130(7), the issue could easily be addressed on summary judgment. Crespo v. Delta Apparel, Inc., - F. Supp. 2d - (W.D.N.C. July 31, 2008).

Retaliatory Employment Discrimination Act Claim Not Stated. - Retaliatory Employment Discrimination Act claim failed to state a claim where plaintiff did not initiate an inquiry under G.S. 95-241(a) when he submitted a proposed plan that would have provided certification of the crane operators in compliance with an upcoming regulatory change and complained about his concerns regarding the certification of riggers; plaintiff's call to defendant one's ethics hotline was to report the retaliatory treatment he was receiving, not to report a concern about occupational health and safety in the context of his employment under the Occupational Safety and Health Act of North Carolina, G.S. 95-126 et seq. Pierce v. Atl. Group, Inc., 219 N.C. App. 19, 724 S.E.2d 568 (2012).

Wrongful Discharge Claim Sufficiently Alleged. - Plaintiffs sufficiently alleged a wrongful discharge claim where they alleged that they were fired: (1) for photographing and complaining about unsafe working conditions in violation of G.S. 95-241(a)(1)b. and G.S. 95-126(2); (2) for engaging in union activities in violation of G.S. 95-81; (3) in retaliation for filing discrimination grievances under G.S. 95-151; (4) in violation of their N.C. Const., Art. I, §§ 14 and 19 rights; and (5) based in part on race. Bigelow v. Town of Chapel Hill, 227 N.C. App. 1, 745 S.E.2d 316, review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 806 (2013).

Applied in House of Raeford Farms, Inc. v. Brooks, 63 N.C. App. 106, 304 S.E.2d 619 (1983).

Cited in Brooks v. McWhirter Grading Co., 303 N.C. 573, 281 S.E.2d 24 (1981); Daniel Constr. Co. v. Brooks, 73 N.C. App. 426, 326 S.E.2d 339 (1985); Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 335 S.E.2d 79 (1985); Pittman v. Inco, Inc., 78 N.C. App. 134, 336 S.E.2d 637 (1985); Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116 (1986).


§ 95-127. Definitions.

As used in this Article, the following definitions apply:

  1. Advisory Council. - The Advisory Council or body established under this Article.
  2. Antineoplastic agent. - A chemotherapy drug or cytotoxic drug used to treat cancer patients and some non-cancer patients.
  3. Carolina Star Program. - A voluntary program designed to recognize work sites that implement effective safety and health management systems and that meet standards adopted by the Commissioner pursuant to G.S. 95-157. The Carolina Star Program is inclusive of four distinct programs, which includes the following: Carolina Star, Rising Star, Building Star, and Public Sector Star.
  4. Classified service. - A position included in the State Merit System of Personnel Administration subject to the laws, rules and regulations of the State Personnel Board as administered by the State Personnel Director and as set forth in Chapter 126 of the General Statutes.
  5. Commission. - North Carolina Occupational Safety and Health Review Commission established under this Article.
  6. Commissioner. - The Commissioner of Labor of North Carolina.
  7. Day. - A calendar day unless otherwise noted.
  8. Department. - The North Carolina Department of Labor of North Carolina.
  9. Deputy Commissioner. - The Deputy Commissioner of the North Carolina Department of Labor, who is appointed by the Commissioner to aid and assist the Commissioner in the performance of his duties. The Deputy Commissioner shall exercise such power and authority as delegated to him or her by the Commissioner.
  10. Director. - The officer or agent appointed by the Commissioner of Labor for the purpose of assisting in the administration of the Occupational Safety and Health Act of North Carolina.
  11. Employee. - An employee of an employer who is employed in a business or other capacity of his or her employer, including any and all business units and agencies owned and/or controlled by the employer.
  12. Employer. - A person engaged in a business who has employees, including any state or political subdivision of a state, but does not include the employment of domestic workers employed in the place of residence of his or her employer.
  13. Established federal standard. - Any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any act of Congress in force on the date of enactment of this Article, and adopted by the Secretary of Labor under the Occupational Safety and Health Act of 1970.
  14. Federal Act. - The Occupational Safety and Health Act of 1970 (Public Law 91-596, 91st Congress, Act of December 29, 1970, 84 Stat. 1950).
  15. Imminent danger. - Any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death, or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Article.
  16. Issue. - An industrial, occupational or hazard grouping.
  17. Occupational safety and health standard. - A standard which requires conditions, or the adoption or use of one or more practices, means, methods, safety devices, operations or processes reasonably necessary and appropriate to provide safe and healthful employment and places of employment, and shall include all occupational safety and health standards adopted and promulgated by the Secretary which also may be and are adopted by the State of North Carolina under the provisions of this Article. This term includes but is not limited to interim federal standards, consensus standards, any proprietary standards or permanent standards, as well as temporary emergency standards which may be adopted by the Secretary, promulgated as provided by the Occupational Safety and Health Act of 1970, and which standards or regulations are published in the Code of Federal Regulations or otherwise properly promulgated under the federal act or any appropriate federal agencies.
  18. Person. - One or more individuals, partnerships, associations, corporations, business trusts, legal representatives.
  19. Secretary. - The United States Secretary of Labor.
  20. Serious violation. - A violation that shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use at such place of employment, unless the employer did not know, and could not, with the exercise of reasonable diligence, know of the presence of the violation.
  21. State. - The State of North Carolina.

History

(1973, c. 295, s. 2; 1987, c. 282, s. 14; 2005-133, s. 3; 2013-382, s. 9.1(c); 2014-76, s. 2; 2017-211, s. 15(a).)

Editor's Note. - Session Laws 2005-133, s. 1, effective June 29, 2005, as amended by Session Laws 2006-226, s. 30, provides: "Under the Occupational Safety and Health Act of North Carolina, the name of the Safety and Health Review Board is changed to the North Carolina Occupational Safety and Health Review Commission. The Revisor of Statutes is authorized to substitute the term 'Commission' for the term 'Board' wherever that term appears in the General Statutes in relation to the Act. The Revisor of Statutes is also authorized to insert the words 'North Carolina Occupational' in front of the phrase 'Safety and Health Review Commission' wherever that phrase appears in the General Statutes in relation to the Act."

Session Laws 2013-382, s. 9.1(b), provides: "The following entities and positions created by Chapter 126 of the General Statutes are hereby renamed by this act:

(1) The State Personnel Commission is renamed the 'North Carolina Human Resources Commission.'

(2) The Office of State Personnel is renamed the 'North Carolina Office of State Human Resources.'

(3) The State Personnel Director is renamed the 'Director of the North Carolina Office of State Human Resources.' "

Session Laws 2013-382, s. 9.1.(c), provides in part: "Modification of References. - The Revisor of Statutes shall delete any references in the General Statutes to the State Personnel Act, State Personnel Commission, the State Personnel Director, and the Office of State Personnel (or any derivatives thereof) and substitute references to the North Carolina Human Resources Act, the State Human Resources Commission, the Director of the Office of State Human Resources, and the Office of Human Resources (or the appropriate derivative thereof) to effectuate the renaming set forth in this section wherever conforming changes are necessary."

Session Laws 2013-382, s. 9.2, provides: "No action or proceeding pending on the effective date of this section, brought by or against the State Personnel Commission, the Director of the Office of State Personnel, or the Office of State Personnel, shall be affected by any provision of this section, but the same may be prosecuted or defended in the new name of the Commission, Director, and Office. In these actions and proceedings, the renamed Commission, Director, or Office shall be substituted as a party upon proper application to the courts or other public bodies." Session Laws 2013-382, s. 9.2, was effective August 21, 2013.

Session Laws 2013-382, s. 9.3, provides: "Any business or other matter undertaken or commanded by the former State Personnel Commission, State Personnel Director, or Office of State Personnel regarding any State program, office, or contract or pertaining to or connected with their respective functions, powers, obligations, and duties that are pending on the date this act becomes effective may be conducted and completed by the Commission, Director, or Office in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the formerly named commission, director, or office." Session Laws 2013-382, s. 9.3, was effective August 21, 2013.

Session Laws 2014-76 provides in its preamble: "Whereas, according to the National Institute for Occupational Safety and Health (NIOSH), early concerns about occupational exposure to antineoplastic agents first appeared in the 1970s; and

"Whereas, antineoplastic agents may cause skin rashes, infertility, miscarriage, birth defects, and have been linked to a wide variety of cancers; and

"Whereas, NIOSH published an alert on preventing occupational exposures to antineoplastic agents in health care settings in 2004 with an update in 2010; and

"Whereas, in this alert, the NIOSH presents a standard precautions or universal precautions approach to handling antineoplastic agents safely, meaning that it recommends that antineoplastic agents be handled as outlined in the alert; Now, therefore,"

Session Laws 2014-76, s. 1, provides: "The General Assembly finds that health care personnel who work with or near hazardous antineoplastic agents in health care settings may be exposed to these agents in the workplace. It is the intent of the General Assembly to require health care facilities to follow rules requiring compliance with all aspects of alerts from the National Institute for Occupational Safety and Health in order to protect health care personnel in this State from hazardous exposure to such agents."

Session Laws 2014-76, s. 5, provides: "The Commissioner of Labor shall adopt the rules to implement this act no later than January 1, 2016. Rules adopted pursuant to this section shall not be subject to G.S. 150B-19.1(e), 150B-19.1(f), 150B-19.1(h), and 150B-21.4. The Commissioner of Labor shall establish an advisory workgroup, consisting of hospitals, organizations representing health care personnel, and other interested stakeholders, for the development of rules as required by this act. Consideration shall be given to what constitutes a reasonable time frame for facilities to implement new requirements."

Session Laws 2017-211, s. 21(a), is a severability clause.

Effect of Amendments. - Session Laws 2005-133, s. 3, effective June 29, 2005, substituted "'Commission' means the North Carolina Occupational Safety and Health Review Commission" for "'Board' means the Safety and Health Review Board" in subdivision (2).

Session Laws 2013-382, s. 9.1(c), effective August 21, 2013, substituted "North Carolina Human Resources Commission as administered by the Director of the Office of State Human Resources" for "State Personnel Board as administered by the State Personnel Director" in subdivision (3).

Session Laws 2014-76, s. 2, effective July 22, 2014, rewrote the section.

Session Laws 2017-211, s. 15(a), effective October 1, 2017, added subdivision (2a).

Legal Periodicals. - For article, "Proving Violations or Proving Affirmative Defenses Under the Occupational Safety and Health Act of North Carolina," see 18 N.C. Cent. L.J. 99 (1989).

CASE NOTES

Serious Violation. - The evidence supported a determination by the Safety and Health Review Board [now the Occupational Safety and Health Review Commission] that respondent was guilty of a serious and repeated Occupational Safety and Health Act violation in failing to slope to adequate angle of repose or provide adequate shoring for sewer line trench in hard or compact soil more than five feet in depth at job site on April 21, 1977, where it showed that the trench in question was eight feet deep and at least eight feet in length; there was no sloping or shoring or wall support of any kind; and respondent had paid a fine for failing properly to shore, slope or otherwise protect the sides of a trench in 1974, although the 1974 violation was for work in soft or unstable soil rather than in hard or compact soil. Brooks v. McWhirter Grading Co., 49 N.C. App. 352, 271 S.E.2d 568 (1980), rev'd on other grounds, 303 N.C. 573, 281 S.E.2d 24 (1981).

Evidence that petitioner's employee would walk along 10-inch-wide steel beams at a height of 40 to 60 feet above the ground and would perform work tasks while balanced on those beams, at no time being secured by a safety rope, presented the possibility of an accident which would carry a substantial probability of death or serious injury, and thus showed a "serious violation" within the meaning of subdivision (18). Moreover, substantial evidence supported the conclusion that the violation was "willful," that is, that it was a deliberate disregard of a duty, imposed by statute, regulation or contract, necessary to the safety of a person or property. O.S. Steel Erectors v. Brooks, 84 N.C. App. 630, 353 S.E.2d 869 (1987).

To establish a serious violation, the Commissioner of Labor must show by substantial evidence that the violation creates (1) the possibility of an accident, and (2) the substantially probable result of which is death or serious physical injury. Yates Constr. Co. v. Commissioner of Labor, 126 N.C. App. 147, 484 S.E.2d 430 (1997).

Cited in Brooks v. McWhirter Grading Co., 303 N.C. 573, 281 S.E.2d 24 (1981); Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 382 S.E.2d 874 (1989); Brooks v. BCF Piping, Inc., 109 N.C. App. 26, 426 S.E.2d 282 (1993); Brooks v. Ansco & Assocs., 114 N.C. App. 711, 443 S.E.2d 89 (1994); Brooks v. North Carolina DOT, 115 N.C. App. 163, 443 S.E.2d 897 (1994), cert. denied, 338 N.C. 308, 451 S.E.2d 632 (1994); Associated Mechanical Contractors v. Payne, 342 N.C. 825, 467 S.E.2d 398 (1996); Yates Constr. Co. v. Commissioner of Labor, 126 N.C. App. 147, 484 S.E.2d 430 (1997).

Opinions of Attorney General

Grower or Owner of Temporary Labor Camps Is Responsible for Enforcement of Safety and Health Regulations. - See opinion of Attorney General to Mr. Weldon B. Denny, Assistant Director, Occupational Safety and Health Act of N.C. 43 N.C.A.G. 245 (1973).

§ 95-128. Coverage.

The provisions of this Article or any standard or regulation promulgated pursuant to this Article shall apply to all employers and employees except:

  1. The federal government, including its departments, agencies and instrumentalities;
  2. Employees whose safety and health are subject to protection under the Atomic Energy Act of 1954, as amended;
  3. Employees whose safety and health are subject to protection under the Federal Coal Mine Health and Safety Act of 1969 (30 U.S.C. 801) and the Federal Metal and Nonmetallic Mine Safety Act (30 U.S.C. 725), or Subtitle V of Title 49 of the United States Code;
  4. Railroad employees whose safety and health are subject to protection under Subtitle V of Title 49 of the United States Code;
  5. Employees engaged in all maritime operations;
  6. Employees whose employer is within that class and type of employment which does not permit federal funding, on a matching basis, to the State in return of State enforcement of all occupational safety and health issues.

History

(1973, c. 295, s. 3; 1998-217, s. 27.)

Legal Periodicals. - For article, "An Analysis of the Retaliatory Employment Discrimination Act and Protected Activity under the Occupational Safety and Health Act of North Carolina," see 15 Campbell L. Rev. 29 (1992).

CASE NOTES

Cited in Brooks v. North Carolina DOT, 115 N.C. App. 163, 443 S.E.2d 897 (1994), cert. denied, 338 N.C. 308, 451 S.E.2d 632 (1994).


§ 95-129. Rights and duties of employers.

Rights and duties of employers shall include but are not limited to the following provisions:

  1. Each employer shall furnish to each of his employees conditions of employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm to his employees;
  2. Each employer shall comply with occupational safety and health standards or regulations promulgated pursuant to this Article;
  3. Each employer shall refrain from any unreasonable restraint on the right of the Commissioner or Director, or their lawfully appointed agents, to inspect the employer's place of business. Each employer shall assist the Commissioner, the Director or the lawful agents of either or both of them, in the performance of their inspection duties by supplying or by making available information, any necessary personnel or necessary inspection aides;
  4. Any employer, or association of employers, is entitled to participate in the development of standards by submission of comments on proposed standards, participation in hearings on proposed standards, or by requesting the development of standards on a given issue under G.S. 95-131;
  5. Any employer is entitled, under G.S. 95-137, to review of any citation issued because of his alleged violation of any standard promulgated under this Article, or the length of the abatement period allowed for the correction of an alleged violation;
  6. Any employer is entitled, under G.S. 95-137, to a review of any penalty in the form of civil damages assessed against him because of his alleged violation of this Article;
  7. Any employer is entitled, under G.S. 95-132, to seek an order granting a variance from any occupational safety or health standard;
  8. Any employer is entitled, under G.S. 95-152, to protection of his trade secrets and other legally privileged communications.

History

(1973, c. 295, s. 4.)

Legal Periodicals. - For article, "Smoking in the Workplace: Who Has What Rights?," see 11 Campbell L. Rev. 311 (1989).

For article discussing the protection of nonsmokers' rights in the workplace, see 11 Campbell L. Rev. 339 (1989).

For article, "Proving Violations or Proving Affirmative Defenses Under the Occupational Safety and Health Act of North Carolina," see 18 N.C. Cent. L.J. 99 (1989).

CASE NOTES

Nondelegable Duties. - The primary purpose of this Act is to keep conditions in the workplace safe for workers. This purpose cannot possibly be accomplished where employers are allowed to delegate to a third party a specific duty promulgated under the Act that is designed to protect the safety of workers. Brooks v. BCF Piping, Inc., 109 N.C. App. 26, 426 S.E.2d 282 (1993).

Company was hired by another to provide welding services and delivered welding equipment, which it had inspected, to plant. The equipment that was improperly wired was owned by welding company, placed on the worksite by welding company employees and was to be used by welding company's employees. Although it was proper and customary to send the male end plug and allow someone else to attach it, welding company's reliance on the plant's electrician to properly ground machinery and protect its employees from the existence of a hazard was unreasonable pursuant to the North Carolina Occupational Safety and Health Act which imposed a specific duty on welding company to inspect the arc welder to make sure it was properly grounded; such a statutory duty was nondelegable. Brooks v. BCF Piping, Inc., 109 N.C. App. 26, 426 S.E.2d 282 (1993).

Member of an LLC did not undertake an independent duty to ensure worker safety at a plant where the employer was the LLC, who had a nondelegable duty under North Carolina law to provide a worker with a safe workplace, and the member had not undertaken any affirmative duty to provide a safe workplace for the LLC's employees in entering an operating agreement for the plant with other members of the LLC. Spaulding v. Honeywell Int'l, Inc., 184 N.C. App. 317, 646 S.E.2d 645, review denied, 361 N.C. 696, 654 S.E.2d 482 (2007), reh'g dismissed, 362 N.C. 177, 657 S.E.2d 667 (2008).

Construction with Federal Law. - North Carolina courts have yet to specifically address the interpretation of subdivision (1) of this section; therefore, because of the similarity between the state and federal provisions, federal decisions may be turned to for guidance. Brooks v. Rebarco, Inc., 91 N.C. App. 459, 372 S.E.2d 342 (1988).

Commissioner was not precluded by § 1910.303(g)(2) of the National Electric Code from citing elevator company for violation of the general duty clause based on allegations that elevator company exposed its workers to hazards resulting from the use of a "temporary run station" having live parts unguarded by approved enclosures and operating on less than 50 volts. Brooks v. Dover Elevator Co., 94 N.C. App. 139, 379 S.E.2d 707 (1989).

When Hazard Recognized. - A hazard is recognized only when the Commissioner of Labor demonstrates that feasible measures can be taken to reduce materially the likelihood of death or serious physical harm resulting to employees. Brooks v. Rebarco, Inc., 91 N.C. App. 459, 372 S.E.2d 342 (1988).

Standard for Determining Existence of Hazard. - Whether or not a hazard exists is to be determined by the standard of a reasonably prudent person. Industry custom and practice are relevant and helpful but are not dispositive. If a reasonable and prudent person would recognize a hazard, the industry cannot eliminate it by closing its eyes. Brooks v. Rebarco, Inc., 91 N.C. App. 459, 372 S.E.2d 342 (1988).

Showing Prerequisite to Suit Under "General Duty Clause" of Subdivision (1). - To successfully prosecute a violation under subdivision (1), known as the "general duty clause," a complainant must show that an employer failed to render its workplace free of a hazard which was "recognized" and causing or likely to cause death or serious physical harm. Brooks v. Rebarco, Inc., 91 N.C. App. 459, 372 S.E.2d 342 (1988).

Burden of Proof. - Where commissioner had issued a citation to elevator company for violating the general duty clause, commissioner had the burden of proving: (1) the employer failed to render its workplace free of a hazard; (2) the hazard was recognized; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) there were feasible means by which the employer could have eliminated or materially reduced the hazard. Brooks v. Dover Elevator Co., 94 N.C. App. 139, 379 S.E.2d 707 (1989).

Multi-Employer Work Sites. - Under G.S. 95-129(2), the employer, a general contractor, failed in its duty to inspect the job site to detect safety violations committed by its own employees and also those committed by its subcontractors; thus, the citation issued by the State Department of Labor for failing to conduct frequent and regular inspections of the job sites was appropriate. Comm'r of Labor v. Weekley Homes, L.P., 169 N.C. App. 17, 609 S.E.2d 407 (2005).

The rule as to employer culpability for safety violations in cases involving multi-employer work sites is that an employer is expected to make reasonable efforts to detect and abate any violation of safety standards of which it is aware and to which its employees are exposed, despite the fact that the employer did not commit the violation. Brooks v. Rebarco, Inc., 91 N.C. App. 459, 372 S.E.2d 342 (1988).

G.S. 95-129 does not limit an employer's responsibility to comply with occupational health and safety standards to only its own employees. Comm'r of Labor v. Weekley Homes, L.P., 169 N.C. App. 17, 609 S.E.2d 407 (2005).

General contractor's duty under G.S. 95-129(2), requiring that each employer shall comply with occupational safety and health standards or regulations, extends to employees of subcontractors on job sites; however, the duty is a reasonable duty and the general contractor is only liable for violations that its subcontractor may create if it could reasonably have been expected to detect the violation by inspecting the job site. Comm'r of Labor v. Weekley Homes, L.P., 169 N.C. App. 17, 609 S.E.2d 407 (2005).

Applied in Prevette v. Clark Equip. Co., 62 N.C. App. 272, 302 S.E.2d 639 (1983); Brown v. Kroger Co., 169 N.C. App. 312, 610 S.E.2d 447 (2005).

Cited in Brooks v. Butler, 70 N.C. App. 681, 321 S.E.2d 440 (1984); Shreve v. Duke Power Co., 85 N.C. App. 253, 354 S.E.2d 357 (1987); Hamby v. Profile Prods., L.L.C., 361 N.C. 630, 652 S.E.2d 231 (2007).


§ 95-130. Rights and duties of employees.

Rights and duties of employees shall include but are not limited to the following provisions:

  1. Employees shall comply with occupational safety and health standards and all rules, regulations and orders issued pursuant to this Article which are applicable to their own actions and conduct.
  2. Employees and representatives of employees are entitled to participate in the development of standards by submission of comments on proposed standards, participation in hearings on proposed standards, or by requesting the development of standards on a given issue under G.S. 95-131.
  3. Employees shall be notified by their employer of any application for a temporary order granting the employer a variance from any provision of this Article or standard or regulation promulgated pursuant to this Article.
  4. Employees shall be given the opportunity to participate in any hearing which concerns an application by their employer for a variance from a standard promulgated under this Article.
  5. Any employee who may be adversely affected by a standard or variance issued pursuant to this Article may file a petition for review with the Commissioner who shall review the matters set forth and alleged in the petition.
  6. Any employee who has been exposed or is being exposed to toxic materials or harmful physical agents in concentrations or at levels in excess of that provided for by any applicable standard shall have a right to file a petition for review with the Commissioner who shall investigate and pass upon same.
  7. Subject to regulations issued pursuant to this Article any employee or authorized representative of employees shall be given the right to request an inspection and to consult with the Commissioner, Director, or their agents, at the time of the physical inspection of any work place as provided by the inspection provision of this Article.
  8. to (10) Repealed by Session Laws 1991 (Regular Session, 1992), c. 1021, s. 2.

(11) Any employee or representative of employees who believes that any period of time fixed in the citation given to his employer for correction of a violation is unreasonable has the right to contest such time for correction by filing a written and signed notice within 15 working days from the date the citation is posted within the establishment.

(12) Nothing in this or any other provision of this Article shall be deemed to authorize or require medical examination, immunization, or treatment for those who object thereto on religious grounds, except where such is necessary for the protection of the health or safety of others.

History

(1973, c. 295, s. 5; 1991 (Reg. Sess., 1992), c. 1021, s. 2; 2011-366, s. 8.)

Effect of Amendments. - Session Laws 2011-366, s. 8, effective June 27, 2011, substituted "15 working days" for "20 working days" in subdivision (11).

Legal Periodicals. - For note on workers' compensation and retaliatory discharge, see 58 N.C.L. Rev. 629 (1980).

For article, "Smoking in the Workplace: Who Has What Rights?," see 11 Campbell L. Rev. 311 (1989).

For article discussing the protection of nonsmokers' rights in the workplace, see 11 Campbell L. Rev. 339 (1989).

For article, "North Carolina Employment Law After Coman : Reaffirming Basic Rights in the Workplace," see 24 Wake Forest L. Rev. 905 (1989).

For note, "Coman v. Thomas Manufacturing Co.: Recognizing a Public Policy Exception to the At-Will Employment Doctrine," see 68 N.C.L. Rev. 1178 (1990).

For article, "An Analysis of the Retaliatory Employment Discrimination Act and Protected Activity under the Occupational Safety and Health Act of North Carolina," see 15 Campbell L. Rev. 29 (1992).

CASE NOTES

Grievances. - Where an employee alleged that he was wrongfully discharged in violation of public policy, his cause of action under the Occupational Safety and Health Act of North Carolina, G.S. 95-126 et seq., was not dismissed for failure to state claim because the Act was a source of public policy as set out in G.S. 95-126(b)(2); though it could not be gleaned whether the employee's complaints were shared with an external source pursuant to G.S. 95-130(7), the issue could easily be addressed on summary judgment. Crespo v. Delta Apparel, Inc., - F. Supp. 2d - (W.D.N.C. July 31, 2008).

Discharge Not Linked to Protected Activities. - Although employee's complaint to his employer and employee's filing of the Occupational Safety and Health Act of North Carolina (OSHANC) claim were protected activities, employer met its burden of proof of showing that employee would have been discharged in the absence of his protected activity; the following factors supported this conclusion: (i) employee disregarded company safety policy thereby creating two potentially life-threatening situations, (ii) the absence of any evidence of insidious intent on the part of the first-shift employees who reported the incidents, (iii) the lack of any connection whatever between these employees' reporting the incidents and Nettles' OSHANC complaint eight months earlier, and (iv) the time lapse between the OSHANC complaint and the incidents precipitating employee's termination. Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 382 S.E.2d 874, cert. denied, 325 N.C. 704, 388 S.E.2d 449 (1989).

Labor Commissioner's Suit Barred. - Employee's acceptance of multiplant grievance committee decision rendered pursuant to the collective bargaining agreement barred labor commissioner's suit for retaliatory discharge; the limited scope of the benefits sought, namely back pay for the period during employee's suspension, made this action one for private rather than public benefits. Brooks v. Stroh Brewery Co., 95 N.C. App. 226, 382 S.E.2d 874, cert. denied, 325 N.C. 704, 388 S.E.2d 449 (1989).

Cited in Brooks v. Taylor Tobacco Enters. Inc., 39 N.C. App. 529, 251 S.E.2d 656 (1979); Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116 (1986); Shreve v. Duke Power Co., 85 N.C. App. 253, 354 S.E.2d 357 (1987); Guy v. Travenol Lab., Inc., 812 F.2d 911 (4th Cir. 1987); Harris v. Duke Power Co., 319 N.C. 627, 356 S.E.2d 357 (1987); Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989).


§ 95-131. Development and promulgation of standards; adoption of federal standards and regulations.

  1. All occupational safety and health standards promulgated under the federal act by the Secretary, and any modifications, revision, amendments or revocations in accordance with the authority conferred by the federal act or any other federal act or agency relating to safety and health and adopted by the Secretary, shall be adopted as the rules of the Commissioner of this State unless the Commissioner decides to adopt an alternative State rule as effective as the federal requirement and providing safe and healthful employment in places of employment as required by the federal act and standards and regulations heretofore referred to and as provided by the Occupational Safety and Health Act of 1970. Chapter 150B of the General Statutes governs the adoption of rules by the Commissioner.
  2. ,  (c) Repealed by Session Laws 1991, c. 418, s. 8.
  3. Rules adopted under this section shall provide insofar as possible the highest degree of safety and health protection for employees; other considerations shall be the latest available scientific data in the field, the feasibility of the standard, and experience gained under this and other health and safety laws. Whenever practical the standards established in a rule shall be expressed in terms of objective criteria and of the performance desired. In establishing standards dealing with toxic materials or harmful physical agents, the Commissioner, after consultation and recommendations of the Department of Health and Human Services, shall set a standard which most adequately assures, to the extent possible, on the basis of the most available evidence that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.
  4. The Commissioner may not adopt State standards, for products distributed or used in interstate commerce, which are different from federal standards for such products unless the adoption of such State standard, or standards, is required by compelling local conditions and does not unduly burden interstate commerce.
  5. Repealed by Session Laws 1991, c. 418, s. 8.
  6. Any rule, regulation, scope, or standard for agricultural employers adopted or promulgated prior to July 12, 1988, that differs from the federal rule, regulation, scope, or standard is repealed effective September 1, 1989, unless readopted pursuant to Chapter 150B of the General Statutes.

History

(1973, c. 295, s. 6; c. 476, s. 128; 1975, 2nd Sess., c. 983, s. 81; 1987, c. 285, s. 17; 1987 (Reg. Sess., 1988), c. 1111, ss. 7, 8; 1989, c. 727, s. 219(14); 1991, c. 418, s. 8; 1997-443, s. 11A.34.)

Cross References. - As to an agency's exercise of its authority to adopt rules, see Article 2A of Chapter 150B.

Editor's Note. - Session Laws 2006-264, s. 102(a), (b), provide: "The Department of Labor shall adopt rules in connection with its requirements regarding fall protection for tower climbers as follows:

"(1) With regard to employer-provided rescue procedures, employers must ensure that at least two trained and designated rescue employees are on-site when employees are working at heights over six feet on the tower, except that where only two employees are on-site, then an employer may comply with this requirement if one employee is a trained and designated rescue employee and one employee has been employed for less than nine months and has received documented orientation from the employer outlining steps to take in an emergency.

"(2) With regard to third-party-provided rescue procedures, the employer must obtain verification from the third-party rescue service that the service is able to respond to a rescue summons in a timely manner and that the service is proficient in rescue-related tasks and equipment needed to rescue climbers from elevated heights on communication structures. The employer must also provide the selected third-party rescue service with contact information regarding the tower site and allow the service to conduct whatever preparation for rescue it deems necessary.

"Notwithstanding G.S. 150B-21.1(a), the Department of Labor may adopt the rules provided for by this section as temporary rules within 270 days after the effective date of this act."

Session Laws 2009-217, s. 4, provides: "Notwithstanding G.S. 150B-21.3(b1), 13 NCAC 07F.0901 (Scope) as adopted by the Department of Labor on February 19, 2009, and approved by the Rules Review Commission on March 19, 2009, is disapproved."

Legal Periodicals. - For article, "Proving Violations or Proving Affirmative Defenses Under the Occupational Safety and Health Act of North Carolina," see 18 N.C. Cent. L.J. 99 (1989).

For article, "North Carolina Employment Law After Coman : Reaffirming Basic Rights in the Workplace," see 24 Wake Forest L. Rev. 905 (1989).

CASE NOTES

Federal court decisions interpreting the federal Occupational Health and Safety Act have been followed by North Carolina courts when interpreting this Article. Brooks v. Butler, 70 N.C. App. 681, 321 S.E.2d 440 (1984), cert. denied, 313 N.C. 327, 329 S.E.2d 385 (1985).

OSHA Regulations Are Admissible to Establish Standard of Care. - Occupational Safety and Health Act regulations are some evidence of the custom in the construction industry and are admissible to establish the standard of care required of reasonable men in the same circumstances. Cowan v. Laughridge Constr. Co., 57 N.C. App. 321, 291 S.E.2d 287 (1982).

By virtue of G.S. 95-131(a), the requirements of 29 C.F.R. § 1910.22(b)(1) are a statutory requirement that brings an employee's injury and an employer's subsequent citation within the scope of G.S. 97-12. Brown v. Kroger Co., 169 N.C. App. 312, 610 S.E.2d 447 (2005).

But Violation of OSHA Rules Is Not Negligence Per Se. - Since a willful violation of an Occupational Safety and Health Act rule constitutes a misdemeanor only if said violation causes the death of an employee, and for all other violations, the sanction is a possible civil penalty assessed by the Commissioner, the adopted OSHA regulations are not penal in nature, and, therefore, a violation does not constitute negligence per se. Cowan v. Laughridge Constr. Co., 57 N.C. App. 321, 291 S.E.2d 287 (1982).

Industry Practice Is Only One Factor in Determining Reasonableness. - Each industry is permitted to evaluate the hazards associated with its own operations and determine what, if anything, to do about them. But the practice in the industry is but one circumstance to consider, along with the other circumstances, in determining whether a practice meets the reasonable man standard of the common law. Daniel Constr. Co. v. Brooks, 73 N.C. App. 426, 326 S.E.2d 339 (1985).

Equating the practice of an industry with what is reasonably safe and proper can result in outmoded, unsafe standards being followed to the detriment of workers in that industry. Daniel Constr. Co. v. Brooks, 73 N.C. App. 426, 326 S.E.2d 339 (1985).

Applied in McCuiston v. Addressograph-Multigraph Corp., 308 N.C. 665, 303 S.E.2d 795 (1983); Comm'r of Labor v. Weekley Homes, L.P., 169 N.C. App. 17, 609 S.E.2d 407 (2005).

Cited in Brooks v. McWhirter Grading Co., 303 N.C. 573, 281 S.E.2d 24 (1981); Prevette v. Clark Equip. Co., 62 N.C. App. 272, 302 S.E.2d 639 (1983); O.S. Steel Erectors v. Brooks, 84 N.C. App. 630, 353 S.E.2d 869 (1987); Brooks v. Dover Elevator Co., 94 N.C. App. 139, 379 S.E.2d 707 (1989); Sloan v. Miller Bldg. Corp., 119 N.C. App. 162, 458 S.E.2d 30 (1995); Pike v. D.A. Fiore Constr. Servs., 201 N.C. App. 406, 689 S.E.2d 535 (2009), review denied, 363 N.C. 855, 694 S.E.2d 390, 2010 N.C. LEXIS 251 (2010); Wise v. Alcoa, Inc., 231 N.C. App. 159, 752 S.E.2d 172 (2013).


§ 95-132. Variances.

  1. Temporary Variances. -
    1. The Commissioner may upon written application by an employer issue an order granting such employer a temporary variance from standards adopted by this Article or promulgated by the Commissioner under this Article. Any such order shall prescribe the practices, means, methods, operations and processes which the employer must adopt or use while the variance is in effect and state in detail a program for coming into compliance with the standard.
    2. An application for a temporary variance shall contain all information required as enumerated in 29 C.F.R. 1905.10(b) which is hereby incorporated by reference, as if herein fully set out.
    3. Upon receipt of an application for an order granting a temporary variance, the Commissioner to whom such application is addressed may issue an interim order granting such a temporary variance, for the purpose of permitting time for an orderly consideration of such application. No such interim order may be effective for longer than 180 days.
    4. Such a temporary variance may be granted only after notice to employees and interested parties and opportunity for hearing. The temporary variance may be for a period of no longer than required to achieve compliance or one year, whichever is shorter, and may be renewed only once. Application for renewal of a variance must be filed in accordance with provisions in the initial grant of the temporary variance.
    5. An order granting a temporary variance shall be issued only if the employer establishes
      1. (i) That he is unable to comply with the standard by the effective date because of unavailability of professional or technical personnel or materials and equipment required or necessary construction or alteration of facilities or technology, (ii) that all available steps have been taken to safeguard his employees against the hazards covered by the standard, and (iii) that he has an effective program for coming into compliance with the standard as quickly as practicable, or
      2. That he is engaged in an experimental program as described in subsection (c) of this section as hereinafter stated.
  2. Permanent Variances. -
    1. Any affected employer may apply to the Commissioner for a rule or order for a permanent variance from a standard promulgated under this section. Affected employees shall be given notice of each such application and an opportunity to participate in a hearing. The Commissioner shall issue such rule or order if he determines on the record, after opportunity for an inspection where appropriate and a hearing, that the proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer will provide employment and places of employment to his employees which are as safe and healthful as those which would prevail if he complied with the standard.
    2. The rule or order so issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations, and processes which he must adopt and utilize to the extent they differ from the standard in question.
    3. Such a rule or order may be modified or revoked upon application by an employer, employees, or by the Commissioner on his own motion, in the manner prescribed for its issuance under this subsection at any time after six months from its issuance.
  3. Experimental Variances. - The Commissioner is authorized to grant a variance from any standard or portion thereof whenever he determines that such variance is necessary to permit an employer to participate in an experiment approved by him designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.

History

(1973, c. 295, s. 7; 1997-456, s. 27.)

Legal Periodicals. - For article, "Proving Violations or Proving Affirmative Defenses Under the Occupational Safety and Health Act of North Carolina," see 18 N.C. Cent. L.J. 99 (1989).

§ 95-133. Office of Director of Occupational Safety and Health; powers and duties of the Director.

  1. There is hereby created and established in the North Carolina Department of Labor a division to be known as the Occupational Safety and Health Division. The Commissioner shall appoint a Director to administer this division who shall be subject to the direction and supervision of the Commissioner. The Director shall carry out the responsibilities of the State of North Carolina as prescribed under the Occupational Safety and Health Act of 1970, and any subsequent federal laws or regulations relating to occupational safety and health, and this Article, as written, revised or amended by legislative enactment and as delegated or authorized by the Commissioner. The Commissioner shall make and promulgate such rules, amendments, or revisions in rules, as the Commissioner may deem advisable for the administration of the office. The Commissioner shall also accept and use the services, facilities, and personnel of any agency of the State or of any subdivision of State government, either as a free service or by reimbursement. The Director shall devote full time to his or her duties of office and shall not hold any other office. The Director, subject to the approval of the Commissioner, shall select a professional staff of qualified and competent employees to assist in the statewide administration of the Article. All of the employees referred to herein shall be under the classified service.
  2. Subject to the general supervision of the Commissioner and Deputy Commissioner, the Director shall be responsible for the administration and enforcement of all laws, rules and regulations which it is the duty of the Division to administer and enforce. The Director shall have the power, jurisdiction and authority to:
    1. Uniformly superintend, enforce and administer applicable occupational safety and health laws of the State of North Carolina;
    2. Make or cause to be made all necessary inspections, analyses and research for the purpose of seeing that all laws and rules and regulations which the office has the duty, power and authority to enforce are promptly and effectively carried out;
    3. Make all necessary investigations, develop information and reports upon conditions of employee safety and health, and upon all matters relating to the enforcement of this Article and all lawful regulations issued thereunder;
    4. Report to the Federal Occupational Safety and Health Administration any information which it may require;
    5. Recommend to the Commissioner such rules, regulations, standards, or changes in rules, regulations and standards which the Director deems advisable for the prevention of accidents, occupational hazards or the prevention of industrial or occupational diseases;
    6. Recommend to the Commissioner that he institute proceedings to remove from his or her position any employee of the Office who accepts any favor, privilege, money, object of value, or property of any kind whatsoever or who shall give prior notice of a compliance inspection of a work place unless authorized under the provisions of this Article;
    7. Employ experts, consultants or organizations for work related to the occupational safety and health program of the Division and compensate same with the approval of the Commissioner;
    8. Institute hearings, investigations, request the issuance of citations and propose such penalties as he may in his judgment consider necessary to carry out the provisions of this Article;
    9. The Commissioner shall have the power and authority to issue all types of notices, citations, cease and desist orders, or any other pleading, form or notice necessary to enforce compliance with this Article as hereinafter set forth. The Commissioner is also empowered and authorized to apply to the courts of the State having jurisdiction for orders or injunctions restraining unlawful acts and practices prohibited by this Article or not in compliance with this Article and to apply for mandatory injunctions to compel enforcement of the Article, and the Commissioner is authorized, and further authorized by and through his agents, to institute criminal actions or proceedings for such violations of the Article as are subject to criminal penalties. The Director shall recommend to the Commissioner the imposition and amount of civil penalties provided by this Article, and the Commissioner may institute such proceedings as necessary for the enforcement and payment of such civil penalties subject to such review of the Commission as hereinafter set forth.
    10. The Director may recommend to the Commissioner that any person, firm, corporation or witness be cited for contempt or for punishment as of contempt, and the Commissioner is authorized to enter any order of contempt or as of contempt as he may deem proper and necessary, and any hearing examiner may recommend to the Commissioner that such order or citation for contempt be made.
    11. The Commissioner or the Director, or their authorized agents, shall have the power and authority to issue subpoenas for witnesses and for the production of any and all papers and documents necessary for any hearing or other proceeding and to require the same to be served by the process officers of the State. The Commissioner and the Director may administer any and all oaths that are necessary in the enforcement of this Article and may certify as to the authenticity of all records, papers, documents and transcripts under the seal of the Department of Labor.
    12. All orders, citations, cease and desist orders, stop orders, sanctions and contempt orders, civil penalties and the proceedings thereon shall be subject to review by the Commission as hereinafter provided, including all assessments for civil penalties.
    13. Obtain relevant medical records. The Occupational Safety and Health Division is a health oversight agency as defined in 45 C.F.R. § 164.501, Standards for Privacy of Individually Identifiable Health Information. A covered entity, as defined by the Health Insurance Portability and Accountability Act, may disclose protected health information to health oversight agencies, including the Occupational Safety and Health Division, as necessary for law enforcement, judicial, and administrative purposes. The Commissioner or the Director, or their authorized agents, may obtain medical records of injured or deceased employees that are both directly related to the investigation being conducted and are necessary to conduct investigations and enforcement proceedings under this Article. The medical records to be obtained shall be restricted to the evaluation, diagnosis, or treatment of an employee injury or fatality. Such records shall only consist of those compiled and maintained by the Department of Health and Human Services, by hospitals participating in the statewide trauma system, or by emergency medical services providers in connection with the dispatch, response, treatment, or transport of individual patients. The medical records obtained by the Department shall be kept separate from any investigative file, shall be strictly confidential, are not public records within the meaning of G.S. 132-1, and shall not be released to any employer under investigation except as necessary to support the issuance of a citation in an OSHANC enforcement proceeding.

History

(1973, c. 295, s. 8; 2005-133, s. 4; 2014-76, s. 3; 2015-264, s. 29; 2021-82, s. 3.)

Editor's Note. - Session Laws 2005-133, s. 1, effective June 29, 2005, as amended by Session Laws 2006-226, s. 30, provides: "Under the Occupational Safety and Health Act of North Carolina, the name of the Safety and Health Review Board is changed to the North Carolina Occupational Safety and Health Review Commission. The Revisor of Statutes is authorized to substitute the term 'Commission' for the term 'Board' wherever that term appears in the General Statutes in relation to the Act. The Revisor of Statutes is also authorized to insert the words 'North Carolina Occupational' in front of the phrase 'Safety and Health Review Commission' wherever that phrase appears in the General Statutes in relation to the Act."

Session Laws 2014-76, s. 3, provided: "G.S. 94-133(a) reads as rewritten:" However, G.S. 95-133 appears to have been intended. Session Laws 2015-264, s. 29, amended the language in Session Laws 2014-76, s. 3, to correct the error. Session Laws 2014-76, s. 3 was effective July 22, 2014. Session Laws 2015-264, s. 29 was effective October 1, 2015.

Session Laws 2015-264, s. 91.7, contains a severability clause.

Effect of Amendments. - Session Laws 2005-133, s. 4, effective June 29, 2005, in subsection (a), substituted "Occupational Safety and Health Division" for "Office of Occupational Safety and Health" at the end of the first sentence; in subdivision (b), substituted "Division" for "Office" in the introductory paragraph; and substituted "Commission" for "Board" in subdivisions (b)(9) and (b)(12).

Session Laws 2014-76, s. 3, as amended by Session Laws 2015-264, s. 29, in subsection (a), substituted "as the Commissioner" for "as he" and "office. The Commissioner" for "office, he" in the fourth sentence, inserted "or her" in the fifth sentence, and deleted "as herein defined in G.S. 95-127, subdivision (3)" in the last sentence. See Editor's note for effective date.

Session Laws 2021-82, s. 3, effective July 8, 2021, added subdivision (b)(13).

§ 95-134. Advisory Council.

  1. There is hereby established a State Advisory Council on Occupational Safety and Health consisting of 11 members, appointed by the Commissioner, composed of three representatives from management, three representatives from labor, four representatives of the public sector with knowledge of occupational safety and occupational health professions and one representative of the public sector with knowledge of migrant labor. The Commissioner shall designate one of the members from the public sector as chairman and all members of the State Advisory Council shall be selected insofar as possible upon the basis of their experience and competence in the field of occupational safety and health.
  2. The Council shall advise, consult with, and make recommendations to the Commissioner on matters relating to the administration of this Article. The Council shall hold no fewer than two meetings during each calendar year. All meetings of the Advisory Council shall be open to the public and a transcript shall be kept and made available for public inspection.
  3. The Director shall furnish to the Advisory Council such secretarial, clerical and other services as he deems necessary to conduct the business of the Advisory Council. The members of the Advisory Council shall be compensated for reasonable expenses incurred, including necessary time spent in traveling to and from their place of residence within the State to the place of meeting, and mileage and subsistence as allowed to State officials. The members of the Advisory Council shall be compensated in accordance with Chapter 138 of the General Statutes.
  4. In addition to its other duties, the Advisory Council shall assist the Commissioner in formulating and setting standards under the provisions of this Article. For this purpose the Commissioner may appoint persons qualified by experience and affiliation to present the viewpoint of the employers involved, persons similarly qualified to present the viewpoint of the workers involved, and some persons to represent the health and safety agencies of the State. The Commissioner for this purpose may include representatives or professional organizations of technicians or professionals specializing in occupational safety or health. Such persons appointed for temporary purposes may be paid such per diem and expenses of attending meetings as provided in Chapter 138 of the General Statutes.

History

(1973, c. 295, s. 9; 1977, c. 806; 1983, c. 717, ss. 17, 18.)

§ 95-135. North Carolina Occupational Safety and Health Review Commission.

  1. The North Carolina Occupational Safety and Health Review Commission is hereby established. The Commission shall be composed of three members from among persons who, by reason of training, education or experience, are qualified to carry out the functions of the Commission under this Article. The Governor shall appoint the members of the Commission and name one of the members as chairman of the Commission. The terms of the members of the Commission shall be six years except that the members of the Commission first taking office shall serve, as designated by the Governor at the time of appointment, one for a term of two years, one for a term of four years, and the member of the Commission designated as chairman shall serve for a term of six years. Any vacancy caused by the death, resignation, or removal of a member prior to the expiration of the term for which he was appointed shall be filled by the Governor for the remainder of the unexpired term. The Governor shall fill all vacancies occurring by reason of the expiration of the term of any members of the Commission.
  2. The Commission shall hear and issue decisions on appeals entered from citations and abatement periods and from all types of penalties. Appeals from orders of the Director dealing with conditions or practices that constitute imminent danger shall not be stayed by the Commission until after full and adequate hearing. The Commission in the discharge of its duties under this Article is authorized and empowered to administer oaths and affirmations and institute motions, cause the taking of depositions, interrogatories, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with any appeal or proceeding for review before the Commission.
  3. The Commission shall meet at least once each calendar quarter but it may hold call meetings or hearings upon at least three days' notice to each member by the chairman and at such time and place as the chairman may fix. The chairman shall be responsible on behalf of the Commission for the administrative operations of the Commission and shall appoint such hearing examiners and other employees as he deems necessary to assist in the performance of the Commission's functions and fix the compensation of such employees with the approval of the Governor. The assignment and removal of hearing examiners shall be made by the Commission, and any hearing examiner may be removed for misfeasance, malfeasance, misconduct, immoral conduct, incompetency, the commission of any crime, or for any other good and adequate reason as found by the Commission. The Commission shall give notice to such hearing examiner, along with written allegations as to the charges against him, and the same shall be heard by the Commission, and its decision shall be final. The compensation of the members of the Commission shall be on a per diem basis and shall be fixed by the Governor. The chairman of the Commission may be paid a higher rate of compensation than the other two members of the Commission. For the purpose of carrying out its duties and functions under this Article, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members of the Commission. On matters properly before the Commission the chairman may issue temporary orders, subpoenas, and other temporary types of orders subject to the subsequent review of the Commission. The issuance of subpoenas, orders to take depositions, orders requiring interrogatories and other procedural matters of evidence issued by the chairman shall not be subject to review.
  4. Every official act of the Commission shall be entered of record and its hearings and records shall be open to the public. The Commission is authorized and empowered to make such procedural rules as are necessary for the orderly transaction of its proceedings. Unless the Commission adopts a different rule, the proceedings, as nearly as possible, shall be in accordance with the Rules of Civil Procedure, G.S. 1A-1. The Commission may order testimony to be taken by deposition in any proceeding pending before it at any stage of such proceeding. Any person, firm or corporation, and its agents or officials, may be compelled to appear and testify and produce like documentary evidence before the Commission. Witnesses whose depositions are taken under this section, and the persons taking such depositions, shall be entitled to the same fees as are paid for like services in the courts of the State.
  5. The rules of procedure prescribed or adopted by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this section.
  6. Any member of the Commission may be removed by the Governor for inefficiency, neglect of duty, or any misfeasance or malfeasance in office. Before such removal the Governor shall give notice of hearing and state the allegations against the member of the Commission, and the same shall be heard by the Governor, and his decision shall be final. The principal office of the Commission shall be in Raleigh, North Carolina, but whenever it deems that the convenience of the public or of the parties may be promoted, or delay or expense may be minimized, the Commission may hold hearings or conduct other proceedings at any place in the State.
  7. In case of a contumacy, failure or refusal of any person to testify before the Commission, give any type of evidence, or to produce any books, records, papers, correspondence, memoranda or other records, such person upon such failure to obey the orders of the Commission may be punished for contempt or any other matter involving contempt as set forth and described by the general laws of the State. The Commission shall issue no order for contempt without first finding the facts involved in the proceeding. Witnesses appearing before the Commission shall be entitled to the same fees as those paid for the services of said witnesses in the courts of the State, and all such fees shall be taxed against the interested parties according to the judgment and discretion of the Commission.
  8. The Director shall consult with the chairman of the Commission with respect to the preparation and presentation to the Commission for adoption of all necessary forms or citations, notices of all kinds, forms of stop orders, all forms and orders imposing penalties and all forms of notices or applications for review by the Commission, and any and all other procedural papers and documents necessary for the administration of the Article as applied to employers and employees and for all procedures and proceedings brought before the Commission for review.
  9. A hearing examiner appointed by the chairman of the Commission shall hear, and make a determination upon, any proceeding instituted before the Commission and may hear any motion in connection therewith, assigned to the hearing examiner, and shall make a report of the determination which constitutes the hearing examiner's final disposition of the proceedings. A copy of the report of the hearing examiner shall be furnished to the Director and all interested parties involved in any appeal or any proceeding before the hearing examiner for the hearing examiner's determination. The report of the hearing examiner shall become the final order of the Commission 30 days from the date of the report as determined by the hearing examiner, unless within the 30-day period any member of the Commission had directed that the report shall be reviewed by the entire Commission as a whole. Upon application for review of any report or determination of a hearing examiner, before the 30-day period expires, the Commission shall schedule the matter for hearing, on the record, except the Commission may allow the introduction of newly discovered evidence, or in its discretion the taking of further evidence upon any question or issue. All interested parties to the original hearing shall be notified of the date, time and place of the hearing and shall be allowed to appear in person or by attorney at the hearing. Upon review of the report and determination by the hearing examiner the Commission may adopt, modify or vacate the report of the hearing examiner and notify the interested parties. The report of the hearing examiner, and the report, decision, or determination of the Commission upon review shall be in writing and shall include findings of fact, conclusions of law, and the reasons or bases for them, on all the material issues of fact, law, or discretion presented on the record. The report, decision or determination of the Commission upon review shall be final unless further appeal is made to the courts under the provisions of Chapter 150B of the General Statutes, as amended, entitled: "Judicial Review of Decisions of Certain Administrative Agencies."
  10. Repealed by Session Laws 1993, c. 300, s. 1.

History

(1973, c. 295, s. 10; c. 1331, s. 3; 1985, c. 746, s. 1; 1985 (Reg. Sess., 1986), c. 955, ss. 6, 7; 1987, c. 827, s. 1; 1987 (Reg. Sess., 1988), c. 1111, s. 10; 1993, c. 300, s. 1; c. 474, s. 1; 2005-133, ss. 1, 5; 2006-203, s. 21.)

Editor's Note. - Subsection (j) of this section, concerning appeals from citations and abatement periods and penalties involving agricultural employers, was repealed by Session Laws 1993, c. 300, s. 1. For current similar provisions, see G.S. 95-137(b).

"Judicial Review of Decisions of Certain Administrative Agencies," referred to in subsection (i), is the title of former Article 33 of Chapter 143. Chapter 150B is entitled the "Administrative Procedure Act."

Session Laws 2005-133, s. 1, as amended by Session Laws 2006-226, s. 30, effective June 29, 2005, provides: "Under the Occupational Safety and Health Act of North Carolina, the name of the Safety and Health Review Board is changed to the North Carolina Occupational Safety and Health Review Commission. The Revisor of Statutes is authorized to substitute the term 'Commission' for the term 'Board' wherever that term appears in the General Statutes in relation to the Act. The Revisor of Statutes is also authorized to insert the words 'North Carolina Occupational' in front of the phrase 'Safety and Health Review Commission' wherever that phrase appears in the General Statutes in relation to the Act."

Effect of Amendments. - Session Laws 2005-133, s. 5, effective June 29, 2005, substituted "North Carolina Occupational Safety and Health Review Commission" for "Safety and Health Review Board" at the beginning of subsection (a); and substituted "Commission" for "Board" throughout the section.

Legal Periodicals. - For article, "Proving Violations or Proving Affirmative Defenses Under the Occupational Safety and Health Act of North Carolina," see 18 N.C. Cent. L.J. 99 (1989).

CASE NOTES

Board Complied with Authority. - In an appeal from a decision of a hearing examiner that respondent's violation of the Occupational Safety and Health Act was not repeated and serious and merited no penalty, the Safety and Health Review Board [now the Occupational Safety and Health Review Commission] complied with its function and authority to adopt, modify or vacate the order of the hearing examiner where the board's order restated the findings of fact made by the hearing examiner almost verbatim, narrated some of the evidence, and made additional findings, and where the decision portion of the order modified the order of the hearing examiner so as to conclude that the cited violation was repeated and serious and justified a penalty of $2,500. Brooks v. McWhirter Grading Co., 49 N.C. App. 352, 271 S.E.2d 568 (1980), rev'd on other grounds, 303 N.C. 573, 281 S.E.2d 24 (1981).

Cited in Brooks v. McWhirter Grading Co., 303 N.C. 573, 281 S.E.2d 24 (1981); Associated Mechanical Contractors v. Payne, 342 N.C. 825, 467 S.E.2d 398 (1996).


§ 95-136. Inspections.

  1. In order to carry out the purposes of this Article, the Commissioner or Director, or their duly authorized agents, upon presenting appropriate credentials to the owner, operator, or agent in charge, are authorized:
    1. To enter without delay, and at any reasonable time, any factory, plant, establishment, construction site, or other area, work place or environment where work is being performed by an employee of an employer; and
    2. To inspect and investigate during regular working hours, and at other reasonable times, and within reasonable limits, and in a reasonable manner, any such place of employment and all pertinent conditions, processes, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.
    3. The Commissioner or Director, or their duly authorized agents, shall reinspect any place of employment where a willful serious violation was found to exist during the previous inspection and a final Order has been entered.
  2. In making his inspections and investigations under this Article, the Commissioner may issue subpoenas to require the attendance and testimony of witnesses and the production of evidence under oath. Witnesses shall be reimbursed for all travel and other necessary expenses which shall be claimed and paid in accordance with the prevailing travel regulations of the State. In case of a failure or refusal of any person to obey a subpoena under this section, the district judge or superior court judge of the county in which the inspection or investigation is conducted shall have jurisdiction upon the application of the Commissioner to issue an order requiring such person to appear and testify or produce evidence as the case may require, and any failure to obey such order of the court may be punished by such court as contempt thereof.
  3. Subject to regulations issued by the Commissioner a representative of the employer and an employee authorized by the employees shall be given an opportunity to consult with or to accompany the Commissioner, Director, or their authorized agents, during the physical inspection of any work place described under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Commissioner, Director, or their authorized agents, shall consult with a reasonable number of employees concerning matters of health and safety in the work place.
    1. Any employees or an employee representative of the employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice of such violation or danger to the Commissioner or Director. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by employees or the employee representatives of the employees, and a copy shall be provided the employer or his agent no later than at the time of inspection. Upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy of any record published, released or made available pursuant to subsection (e) of this section. If upon receipt of such notification the Commissioner or Director determines there are reasonable grounds to believe that such violation or danger exists, the Commissioner or Director or their authorized agents shall promptly make a special investigation in accordance with the provisions of this section as soon as practicable to determine if such violation or danger exists. If the Commissioner or Director determines there are not reasonable grounds to believe that a violation or danger exists he shall notify the employees or representatives of the employees, in writing, of such determination. (d) (1)  Any employees or an employee representative of the employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice of such violation or danger to the Commissioner or Director. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by employees or the employee representatives of the employees, and a copy shall be provided the employer or his agent no later than at the time of inspection. Upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy of any record published, released or made available pursuant to subsection (e) of this section. If upon receipt of such notification the Commissioner or Director determines there are reasonable grounds to believe that such violation or danger exists, the Commissioner or Director or their authorized agents shall promptly make a special investigation in accordance with the provisions of this section as soon as practicable to determine if such violation or danger exists. If the Commissioner or Director determines there are not reasonable grounds to believe that a violation or danger exists he shall notify the employees or representatives of the employees, in writing, of such determination.
    2. Prior to, during and after any inspection of a work place, any employees or representative of employees employed in such work place may notify the inspecting Commissioner, Director, or their agents, in writing, of any violation of this Article which they have reason to believe exists in such work place. The Commissioner shall, by regulation, establish procedures for informal review of any refusal by a representative of the Commissioner or Director to issue a citation with respect to any such alleged violation and shall furnish the employees or representatives of employees requesting such review a written statement of the reason for the Commissioner's or Director's final disposition of the case.
  4. The Commissioner is authorized to compile, analyze, and publish, in summary or detailed form, all reports or information obtained under this section. Files and other records relating to investigations and enforcement proceedings pursuant to this Article shall not be subject to inspection and examination as authorized by G.S. 132-6 while such investigations and proceedings are pending, except that, subject to the provisions of subsection (e1) of this section, an employer cited under the provisions of this Article is entitled to receive a copy of the official inspection report which is the basis for citations received by the employer following the issuance of citations.
  5. Upon the written request of and at the expense of the requesting party, official inspection reports of inspections conducted pursuant to this Article shall be available for release in accordance with the provisions contained in this subsection and subsection (e) of this section. The names of witnesses or complainants, and any information within statements taken from witnesses or complainants during the course of inspections or investigations conducted pursuant to this Article that would name or otherwise identify the witnesses or complainants, shall not be released to any employer or third party and shall be redacted from any copy of the official inspection report provided to the employer or third party. Witness statements that are in the handwriting of the witness or complainant shall, upon the request of and at the expense of the requesting party, be transcribed so that information that would not name or otherwise identify the witness may be released. A witness or complainant may, however, sign a written release permitting the Commissioner to provide information specified in the release to any persons or entities designated in the release. Nothing in this section shall be construed to prohibit the use of the name or statement of a witness or complainant by the Commissioner in enforcement proceedings or hearings held pursuant to this Article. The Commissioner shall make available to the employer 10 days prior to a scheduled enforcement hearing unredacted copies of: (i) the witness statements the Commissioner intends to use at the enforcement hearing, (ii) the statements of witnesses the Commissioner intends to call to testify, or (iii) the statements of witnesses whom the Commissioner does not intend to use that might support an employer's affirmative defense or otherwise exonerate the employer; provided a written request for the statement or statements is received by the Commissioner no later than 12 days prior to the enforcement hearing. If the request for an unredacted copy of the witness statement or statements is received less than 12 days before a hearing, the statement or statements shall be made available as soon as practicable. The Commissioner may permit the use of names and statements of witnesses and complainants and information obtained during the course of inspections or investigations conducted pursuant to this Article by public officials in the performance of their public duties.
    1. Inspections conducted under this section shall be accomplished without advance notice, subject to the exception in subdivision (2) below this subsection. (f) (1)  Inspections conducted under this section shall be accomplished without advance notice, subject to the exception in subdivision (2) below this subsection.
    2. The Commissioner or Director may authorize the giving to any employer or employee advance notice of an inspection only when the giving of such notice is essential to the effectiveness of such inspection, and in keeping with regulations issued by the Commissioner.
  6. The Commissioner shall prescribe such rules and regulations as he may deem necessary to carry out his responsibilities under this Article, including rules and regulations dealing with the inspection of an employer's establishment.

History

(1973, c. 295, s. 11; 1993, c. 317, ss. 1, 2; 1999-364, ss. 1, 2; 2003-174, s. 1.)

Legal Periodicals. - For survey of 1979 constitutional law, see 58 N.C.L. Rev. 1326 (1980).

For article, "Proving Violations or Proving Affirmative Defenses Under the Occupational Safety and Health Act of North Carolina," see 18 N.C. Cent. L.J. 99 (1989).

CASE NOTES

Constitutionality. - Subsection (a) of this section is essentially identical to § 8(a) of the Federal Occupational Safety and Health Act of 1970, 29 U.S.C. § 657(a), which the United States Supreme Court found unconstitutional in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978). Gooden v. Brooks, 39 N.C. App. 519, 251 S.E.2d 698, appeal dismissed, 298 N.C. 806, 261 S.E.2d 919 (1979), cert. denied, 454 U.S. 1097, 102 S. Ct. 670, 70 L. Ed. 2d 638 (1981).

Subsection (a) of this section violates the U.S. Const., Amends. I and XIV to the extent it authorizes warrantless searches. Gooden v. Brooks, 39 N.C. App. 519, 251 S.E.2d 698, appeal dismissed, 298 N.C. 806, 261 S.E.2d 919 (1979), cert. denied, 454 U.S. 1097, 102 S. Ct. 670, 70 L. Ed. 2d 638 (1981).

Ex parte warrant proceedings are authorized under the rules and regulations of the federal Occupational Safety and Health Act and this Article and have been judicially approved by case law. Brooks v. Butler, 70 N.C. App. 681, 321 S.E.2d 440 (1984), cert. denied, 313 N.C. 327, 329 S.E.2d 385 (1985).

Probable cause for an administration inspection warrant may be based on (1) specific evidence of an existing violation, or (2) a showing that reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular establishment. In order to meet the requirements of the second standard, an applicant for an inspection warrant must show that: (1) there exists a legally authorized inspection program which naturally included the property; (2) the general administrative enforcement plan is based on reasonable legislative or administrative standards; and (3) the administrative standards are being applied to the particular establishment on a neutral basis. Brooks v. Butler, 70 N.C. App. 681, 321 S.E.2d 440 (1984), cert. denied, 313 N.C. 327, 329 S.E.2d 385 (1985).

The fact that the warrant application fails to state that affiant has no higher priority inspection pending does not invalidate the warrant. Brooks v. Butler, 70 N.C. App. 681, 321 S.E.2d 440 (1984), cert. denied, 313 N.C. 327, 329 S.E.2d 385 (1985).

Warrant Not Overbroad. - A warrant authorizing inspection of "all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials, and all other things . . ." is not overbroad. A warrant authorizing a general inspection of an industry naturally contemplates a comprehensive inspection, since the location of possible violations is unknown. Brooks v. Butler, 70 N.C. App. 681, 321 S.E.2d 440 (1984), cert. denied, 313 N.C. 327, 329 S.E.2d 385 (1985).

Cited in Brooks v. Taylor Tobacco Enters. Inc., 39 N.C. App. 529, 251 S.E.2d 656 (1979); Brooks v. Taylor Tobacco Enters. Inc., 298 N.C. 759, 260 S.E.2d 419 (1979).


§ 95-136.1. Special emphasis inspection program.

  1. As used in this section, a "special emphasis inspection" is an inspection by the Department's occupational safety and health division that is scheduled because of an employer's high frequency of violations of safety and health laws or because of an employer's high risk or high rate of work-related fatalities or work-related serious injuries or illnesses.
  2. The Department shall develop and implement a special emphasis inspection program that targets for special emphasis inspection employers who:
    1. Have a high rate of serious or willful violations of any standard, rule, order, or other requirement under this Article, or of regulations prescribed pursuant to the Federal Occupational Safety and Health Act of 1970, in a one-year period;
    2. Have a high rate of work-related deaths, or a high rate of work-related serious injuries or illnesses, in a one-year period; or
    3. Are engaged in a type of industry determined by the Department to be at high risk for serious or fatal work-related injuries or illnesses.
    4. Repealed by Session Laws 1997-443, s. 17(b).
  3. The Director shall make information about the special emphasis inspection program available prior to the date of implementation of the program.
  4. The Department shall by March 1, 1995, and annually thereafter, report to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources and the Fiscal Research Division of the General Assembly on the impact of the special emphasis inspection program on safety and health compliance and enforcement.

To identify an employer for a special emphasis inspection, the Department shall use the most current data available from its own database and from other sources, including State departments, divisions, boards, commissions, and other State entities. The Department shall ensure that every employer targeted for a special emphasis inspection is inspected at least one time within the two-year period following targeting of the employer by the Department. The Department shall update its special emphasis inspection records at least annually.

History

(1991 (Reg. Sess., 1992), c. 924, s. 1; 1997-443, s. 17(b); 2017-57, s. 14.1(oo).)

Editor's Note. - Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2017-57, s. 14.1(oo), effective July 1, 2017, substituted "Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources " for "Joint Legislative Commission on Governmental Operations" in subsection (d).

§ 95-137. Issuance of citations.

  1. If, upon inspection or investigation, the Director or his authorized representative has reasonable grounds to believe that an employer has not fulfilled his duties as prescribed in this Article, or has violated any standard, regulation, rule or order promulgated under this Article, he shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provisions of the act, standards, rules and regulations, or orders alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the violation. The Director may prescribe procedures for the issuance of a notice in lieu of a citation with respect to de minimus violations which have no direct or immediate relationship to safety or health. Each citation or notice in lieu of citation issued under this section, or a copy or copies thereof, shall be prominently posted, as prescribed in regulations issued by the Director, at or near such place a violation referred to in the citation occurred.
  2. Procedure for Enforcement. -
    1. If, after an inspection or investigation, the Director issues a citation under any provisions of this Article, the Director shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal [Service], by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery of any penalty, if any, the Director has recommended to the Commissioner to be proposed under the provisions of this Article and that the employer has 15 working days within which to notify the Director that the employer wishes to:
      1. Contest the citation or proposed assessment of penalty; or
      2. Request an informal conference.
    2. If the Director has reason to believe that an employer has failed to correct a violation for which a citation has been issued within the period permitted for its correction (which period shall not begin to run until the entry of a final order by the Commission in case of any review proceedings under this Article initiated by the employer in good faith and not solely for a delay or avoidance of penalties), the Director shall notify the employer by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery of such failure and of the penalty proposed to be assessed under this Article by reason of such failure and that the employer has 15 working days within which to notify the Director that the employer wishes to contest the Director's notification of the proposed assessment of penalty. If, within 15 working days from the receipt of notification issued by the Director, an employer fails to notify the Director that the employer intends to contest the notification or proposed recommendation of penalty, the notification and the proposed assessment made by the Director shall be final and not subject to review by any court.
    3. No citation may be issued under this section after the expiration of six months following the occurrence of any violation.
    4. If an employer notifies the Director that the employer intends to contest a citation issued under the provisions of this Article or notification issued under the provisions of this Article, or if, within 15 working days of the receipt of a citation under this Article, any employee or representative thereof files a notice with the Director alleging that the period of time fixed in the citation for the abatement of the violation is unreasonable, the Director shall immediately advise the Commission of such notification, and the Commission shall afford an opportunity for a hearing. The Commission shall thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Director's citation or the proposed penalty fixed by the Commissioner, or directing other appropriate relief, and such order shall become final 30 days after its issuance. Upon showing by an employer of a good faith effort to comply with the abatement requirements of a citation, and that an abatement has not been completed because of factors beyond the employer's reasonable control, the Director, after an opportunity for a hearing as provided in this Article, shall issue an order affirming or modifying the abatement requirements in such citation. The rules of procedure prescribed by the chairman of the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this section.
    5. Repealed by Session Laws 1993, c. 300, s. 2.
    6. Each local unit of government shall report each violation for which it is issued a citation to its local governing board at its next public meeting and to its workers compensation insurance carrier or to the risk pool of which it is a member pursuant to Article 23 of Chapter 58 of the General Statutes.

Following an informal conference, unless the employer and Department have entered into a settlement agreement, the Director shall send the employer an amended citation or notice of no change. The employer has 15 working days from the receipt of the amended citation or notice of no change to notify the Director that the employer wishes to contest the citation or proposed assessment of penalty, whether or not amended. If, within 15 working days from the receipt of the notice issued by the Director, the employer fails to notify the Director that the employer requires an informal conference to be held or intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under the provisions of this Article within such time, the citation and the assessment as proposed to the Commissioner shall be deemed final and not subject to review by any court.

History

(1973, c. 295, s. 12; 1987 (Reg. Sess., 1988), c. 1111, s. 11; 1991 (Reg. Sess., 1992), c. 1020, ss. 2, 3; 1993, c. 300, s. 2; 2003-308, s. 6; 2005-133, ss. 6, 7; 2007-231, s. 10.)

Editor's Note. - This section was amended by Session Laws 2007-231, s. 10, in the coded bill drafting format provided by G.S. 120-20.1. In subdivision (b)(1), the word "Service" was inserted without coding. Subdivision (b)(1) has been set out in the form above at the direction of the Revisor of Statutes.

Session Laws 2005-133, s. 1, as amended by Session Laws 2006-226, s. 30, effective June 29, 2005, provides: "Under the Occupational Safety and Health Act of North Carolina, the name of the Safety and Health Review Board is changed to the North Carolina Occupational Safety and Health Review Commission. The Revisor of Statutes is authorized to substitute the term 'Commission' for the term 'Board' wherever that term appears in the General Statutes in relation to the Act. The Revisor of Statutes is also authorized to insert the words 'North Carolina Occupational' in front of the phrase 'Safety and Health Review Commission' wherever that phrase appears in the General Statutes in relation to the Act."

Effect of Amendments. - Session Laws 2005-133, ss. 6 and 7, effective June 29, 2005, substituted "Commission" for "Board" in the first sentence of subdivision (b)(2) and throughout subdivision (b)(4).

Session Laws 2007-231, s. 10, effective July 18, 2007, substituted "mail with return receipt, by signature confirmation as provided by the U.S. Postal Service" for "mail," in subdivisions (b)(1) and (b)(2).

Legal Periodicals. - For article, "Proving Violations or Proving Affirmative Defenses Under the Occupational Safety and Health Act of North Carolina," see 18 N.C. Cent. L.J. 99 (1989).

CASE NOTES

Constitutionality. - See House of Raeford Farms, Inc. v. Brooks, 63 N.C. App. 106, 304 S.E.2d 619 (1983), cert. denied, 310 N.C. 153, 311 S.E.2d 291 (1984).

Violations of Occupational Safety and Health Act. - The General Assembly determined that the State and its agencies can be issued citations for violations of the Occupational Safety and Health Act which are enforceable by proceedings before the Safety and Health Review Board [now the Occupational Safety and Health Review Commission]. Brooks v. North Carolina DOT, 115 N.C. App. 163, 443 S.E.2d 897, cert. denied, 338 N.C. 308, 451 S.E.2d 632 (1994).

For cases construing notice provision contained in the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. § 659(a)), see House of Raeford Farms, Inc. v. Brooks, 63 N.C. App. 106, 304 S.E.2d 619 (1983), cert. denied, 310 N.C. 153, 311 S.E.2d 291 (1984).

Cited in O.S. Steel Erectors v. Brooks, 84 N.C. App. 630, 353 S.E.2d 869 (1987); Associated Mechanical Contractors v. Payne, 342 N.C. 825, 467 S.E.2d 398 (1996).


§ 95-138. Civil penalties.

  1. The Commissioner, upon recommendation of the Director, or the North Carolina Occupational Safety and Health Review Commission in the case of an appeal, shall have the authority to assess penalties against any employer who violates the requirements of this Article, or any standard, rule, or order adopted under this Article, as follows:
    1. A minimum penalty of five thousand dollars ($5,000) to a maximum penalty of seventy thousand dollars ($70,000) may be assessed for each willful or repeat violation.
    2. A penalty of up to seven thousand dollars ($7,000) shall be assessed for each serious violation, except that a penalty of up to fourteen thousand dollars ($14,000) shall be assessed for each serious violation that involves injury to an employee under 18 years of age.
    3. A penalty of up to seven thousand dollars ($7,000) may be assessed for each violation that is adjudged not to be of a serious nature.
    4. A penalty of up to seven thousand dollars ($7,000) may be assessed against an employer who fails to correct and abate a violation, within the period allowed for its correction and abatement, which period shall not begin to run until the date of the final Order of the Commission in the case of any appeal proceedings in this Article initiated by the employer in good faith and not solely for the delay of avoidance of penalties. The assessment shall be made to apply to each day during which the failure or violation continues.
    5. A penalty of up to seven thousand dollars ($7,000) shall be assessed for violating the posting requirements, as required under the provisions of this Article.
  2. The Commissioner shall adopt uniform standards that the Commissioner, the Commission, and the hearing examiner shall apply when determining appropriateness of the penalty. The following factors shall be used in determining whether a penalty is appropriate:
    1. Size of the business of the employer being charged.
    2. The gravity of the violation.
    3. The good faith of the employer.
    4. The record of previous violations; provided that for purposes of determining repeat violations, only the record within the previous three years is applicable.
    5. Whether the violation involves injury to an employee under 18 years of age.
  3. The clear proceeds of all civil penalties and interest recovered by the Commissioner, together with the costs thereof, shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.

The report of the hearing examiner and the report, decision, or determination of the Commission on appeal shall specify the standards applied in determining the reduction or affirmation of the penalty assessed by the Commissioner.

History

(1973, c. 295, s. 13; 1987 (Reg. Sess., 1988), c. 1111, s. 12; 1989 (Reg. Sess., 1990), c. 844; 1991, c. 329, s. 1; c. 761, s. 17; 1993, c. 474, s. 2; 1998-215, s. 111; 2004-203, s. 39(a); 2005-133, s. 8; 2006-39, s. 3; 2009-351, s. 4.)

Editor's Note. - Session Laws 2005-133, s. 1, as amended by Session Laws 2006-226, s. 30, effective June 29, 2005, provides: "Under the Occupational Safety and Health Act of North Carolina, the name of the Safety and Health Review Board is changed to the North Carolina Occupational Safety and Health Review Commission. The Revisor of Statutes is authorized to substitute the term 'Commission' for the term 'Board' wherever that term appears in the General Statutes in relation to the Act. The Revisor of Statutes is also authorized to insert the words 'North Carolina Occupational' in front of the phrase 'Safety and Health Review Commission' wherever that phrase appears in the General Statutes in relation to the Act."

Effect of Amendments. - Session Laws 2004-203, s. 39.(a), effective October 1, 2004, and applicable to violations occurring on or after that date, rewrote the section.

Session Laws 2005-133, s. 8, effective June 29, 2005, inserted "or the North Carolina Occupational Safety and Health Review Commission in the case of an appeal" in the introductory paragraph of subsection (a); and substituted "Commission" for "Board" in the first and last paragraphs of subsection (b).

Session Laws 2006-39, s. 3, effective June 30, 2006, in the introductory paragraph of subsection (a), substituted "shall have the authority to assess" for "may assess" preceding "penalties against any" and substituted "adopted under" for "promulgated pursuant to" following "or any standard, rule, or order"; added "may be assessed" following "seventy thousand dollars ($70,000)" in subdivision (a)(1); rewrote subdivision (a)(2); added subdivision (a)(2a); in subdivision (a)(3), rewrote the first sentence and added the last sentence; and rewrote subdivision (a)(4).

Legal Periodicals. - For article, "Proving Violations or Proving Affirmative Defenses Under the Occupational Safety and Health Act of North Carolina," see 18 N.C. Cent. L.J. 99 (1989).

For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).

CASE NOTES

When Act Is Willful. - An act is willful when there exists a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another or some duty assumed by contract or imposed by law. Prevette v. Clark Equip. Co., 62 N.C. App. 272, 302 S.E.2d 639 (1983).

What Constitutes "Repeated" Violation. - In order for a violation to be repeated, it must be against the same employer and it must also be substantially similar to prior violations. Brooks v. McWhirter Grading Co., 303 N.C. 573, 281 S.E.2d 24 (1981).

A subsequent OSHA violation by the same employer substantially similar to a prior violation or violations is a "repeated" violation only if the employer should have known of the standard by virtue of the prior citation or citations. Factors which should be considered in determining whether the employer should have known of the standard are the extent to which the condition was obviously unsafe, the proximity in time to the prior citation, whether management or key employees had changed between citations, and the number of prior substantially similar violations. Brooks v. McWhirter Grading Co., 303 N.C. 573, 281 S.E.2d 24 (1981).

Where two alleged OSHA violations are of different subsections of the same standard and involve the same hazard, the second violation can form the basis of the citation for a "repeated" violation. Brooks v. McWhirter Grading Co., 303 N.C. 573, 281 S.E.2d 24 (1981).

Burden of Showing "Serious" Violation. - In order to establish a serious OSHA violation under this section, the Commissioner of Labor must show by substantial evidence that the violation created a possibility of an accident, a substantially probable result of which was death or serious physical injury. Brooks v. McWhirter Grading Co., 303 N.C. 573, 281 S.E.2d 24 (1981).

Violation of OSHA Rule Not Negligence Per Se. - Since a willful violation of an Occupational Safety and Health Act rule constitutes a misdemeanor only if said violation causes the death of an employee, and for all other violations, the sanction is a possible civil penalty assessed by the Commissioner, the adopted OSHA regulations are not penal in nature, and, therefore, a violation does not constitute negligence per se. Cowan v. Laughridge Constr. Co., 57 N.C. App. 321, 291 S.E.2d 287 (1982).

Fine of $1800 for a "willful-serious" violation in allowing an employee to work on steel beams 30 feet off the ground without safety nets or a safety belt was well within the established guidelines for a violation of this nature. O.S. Steel Erectors v. Brooks, 84 N.C. App. 630, 353 S.E.2d 869 (1987).


§ 95-139. Criminal penalties.

  1. Any employer who willfully violates any standard, rule, regulation or order promulgated pursuant to the authority of this Article, and the violation causes the death of any employee 18 years of age or older, shall be guilty of a Class 2 misdemeanor, which may include a fine of not more than ten thousand dollars ($10,000).
  2. Any employer who willfully violates any standard, rule, regulation, or order promulgated pursuant to the authority of this Article, and the violation causes the death of any employee under 18 years of age, shall be guilty of a Class 2 misdemeanor, which may include a fine of not more than twenty thousand dollars ($20,000).
  3. If an employer is convicted of more than one violation of subsection (a) or (b) of this section, the subsequent violation shall be penalized as follows:
    1. The employer shall be guilty of a Class 1 misdemeanor which may include a fine of not more than twenty thousand dollars ($20,000) if the subsequent violation results in the death of an employee 18 years of age or older.
    2. The employer shall be guilty of a Class 1 misdemeanor which may include a fine of not more than forty thousand dollars ($40,000) if the subsequent violation results in the death of an employee under 18 years of age.
  4. This section shall not prevent any prosecuting officer of the State of North Carolina from proceeding against such employer on a prosecution charging any degree of willful or culpable homicide. Any person who gives advance notice of any inspection to be conducted under this Article, without authority from the Commissioner, Director, or any of their agents to whom such authority has been delegated, shall be guilty of a Class 2 misdemeanor.
  5. Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or any other document filed or required to be maintained pursuant to this Article, shall be guilty of a Class 2 misdemeanor, which may include a fine of (i) not more than ten thousand dollars ($10,000) for falsifications pertaining to employees 18 years of age or older or (ii) not more than twenty thousand dollars ($20,000) for falsifications pertaining to employees under 18 years of age.
  6. Whoever shall commit any kind of assault upon or whoever kills a person engaged in or on account of the performance of investigative, inspection, or law-enforcement functions shall be subject to prosecution under the general criminal laws of the State and upon such charges as the proper prosecuting officer shall charge or allege.

History

(1973, c. 295, s. 14; 1993, c. 539, s. 671; 1994, Ex. Sess., c. 24, s. 14(c); 2009-351, s. 5.)

CASE NOTES

Violation of OSHA Rule Not Negligence Per Se. - Since a willful violation of an Occupational Safety and Health Act rule constitutes a misdemeanor only if said violation causes the death of an employee, and for all other violations, the sanction is a possible civil penalty assessed by the Commissioner, the adopted OSHA regulations are not penal in nature, and, therefore, a violation does not constitute negligence per se. Cowan v. Laughridge Constr. Co., 57 N.C. App. 321, 291 S.E.2d 287 (1982).


§ 95-140. Procedures to counteract imminent dangers.

  1. The superior courts of this State shall have jurisdiction, upon petition of the Commissioner, to restrain any conditions or practices in any place of employment which are such that a danger exists, which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Article. Any order issued under this section may require such steps to be taken as may be necessary to avoid, correct, or remove such imminent danger and prohibit the employment or presence of any individual in locations or under conditions where such imminent danger exists, except those individuals whose presence is necessary to avoid, correct or remove such imminent danger or to maintain the capacity of a continuous process operation to assume normal operations without a complete cessation of operations, or where a cessation of operations is necessary to permit such to be accomplished in a safe and orderly manner.
  2. Upon the filing of any such petition the superior court shall, without the necessity of showing an adequate remedy at law, have jurisdiction to grant injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding pursuant to this Article. The proceeding shall be as provided under the statutes and Rules of Civil Procedure of this State except that no temporary restraining order issued without notice shall be effective for a period longer than five days.
  3. Whenever and as soon as an inspector concludes that conditions or practices described in this section exist in any place of employment, he shall inform the affected employees and employers of the danger and that he is recommending to the Commissioner that relief be sought. If the Commissioner arbitrarily or capriciously fails to seek relief under this section, any employee who may be injured by reason of such failure, or the representative of such employee, may bring an action against the Commissioner in the superior court of the district in which the imminent danger is alleged to exist or the employer has its principal office or place of business, for a writ of mandamus to compel the Commissioner to seek such an order for such relief as may be appropriate.

History

(1973, c. 295, s. 15.)

Editor's Note. - The Rules of Civil Procedure are found in G.S. 1A-1.


§ 95-141. Judicial review.

Any person or party in interest who has exhausted all administrative remedies available under this Article and who is aggrieved by a final decision in a contested case is entitled to judicial review in accordance with Article 4 of Chapter 150B of the General Statutes. The Commissioner may file in the office of the clerk of the superior court of the county wherein the person, firm or corporation under order resides, or, if a corporation is involved, in the county wherein the corporation maintains its principal place of business, or in the county wherein the violation occurred, a certified copy of a final order of the Commissioner unappealed from, or of a final order of the Commissioner affirmed upon appeal. Whereupon, the clerk of said court shall enter judgment in accordance therewith and notify the parties. Such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though said judgment had been rendered in a suit duly heard and determined by the superior court of the General Court of Justice.

History

(1973, c. 295, s. 16; c. 1331, s. 3; 1987, c. 827, s. 265.)

Legal Periodicals. - For article, "Proving Violations or Proving Affirmative Defenses Under the Occupational Safety and Health Act of North Carolina," see 18 N.C. Cent. L.J. 99 (1989).

CASE NOTES

Judicial review of Occupational Safety and Health Act (OSHA) Review Board decisions is under the Administrative Procedure Act (Article 4 of Chapter 150B). Brooks v. Austin Berryhill Fabricators, Inc., 102 N.C. App. 212, 401 S.E.2d 795 (1991).

Cited in Brooks v. McWhirter Grading Co., 303 N.C. 573, 281 S.E.2d 24 (1981); House of Raeford Farms, Inc. v. Brooks, 63 N.C. App. 106, 304 S.E.2d 619 (1983); Daniel Constr. Co. v. Brooks, 73 N.C. App. 426, 326 S.E.2d 339 (1985); O.S. Steel Erectors v. Brooks, 84 N.C. App. 630, 353 S.E.2d 869 (1987); Brooks v. Dover Elevator Co., 94 N.C. App. 139, 379 S.E.2d 707 (1989); Brooks v. BCF Piping, Inc., 109 N.C. App. 26, 426 S.E.2d 282 (1993); Associated Mechanical Contractors v. Payne, 342 N.C. 825, 467 S.E.2d 398 (1996); Yates Constr. Co. v. Commissioner of Labor, 126 N.C. App. 147, 484 S.E.2d 430 (1997).


§ 95-142. Legal representation of the Department of Labor.

It shall be the duty of the Attorney General to represent the Department of Labor or designate some member of his staff to represent them in all actions or proceedings in connection with this Article.

History

(1973, c. 295, s. 17.)

§ 95-143. Record keeping and reporting.

  1. Each employer shall make available to the Commissioner, or his agents, in such manner as the Commissioner shall require, copies of the same records and reports regarding his activities relating to this Article as are required to be made, kept, or preserved by section 8(c) of the Federal Occupational Safety and Health Act of 1970 (P.L. 91-596) and regulations made pursuant thereto.
  2. Each employer shall make, keep and preserve and make available to the Commissioner such records regarding his activities relating to this Article as the Commissioner may prescribe by regulation as necessary and appropriate for the enforcement of this Article or for developing information regarding the causes and prevention of occupational accidents and illnesses. In order to carry out the provisions of this section such regulations may include provisions requiring employers to conduct periodic inspections. The Commissioner shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep the employees informed of their protections and obligations under this Article, including the provisions of applicable standards. The Commissioner shall prescribe regulations requiring employers to maintain accurate records of, and to make reports at least annually on, work-related deaths, injuries and illnesses other than minor injuries requiring only first-aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.
  3. The Commissioner shall issue regulations requiring employers to maintain accurate records of employee exposure to potentially toxic materials of [or] harmful physical agents which are required to be monitored or measured under this Article. Such regulations shall provide employees or their representatives with an opportunity to observe such monitoring or measuring, and to have access to the records thereof. Such regulations shall also make appropriate provisions for each employee or former employee to have access to such records as will indicate his own exposure to toxic materials or harmful physical agents. Each employer shall promptly notify any employee who has been or is being exposed to toxic materials or harmful physical agents in concentrations or at levels which exceed those prescribed by an applicable safety and health standard promulgated under this Article and shall inform any employee who is being thus exposed of the corrective action being taken.
  4. Any information obtained by the Commissioner or his duly authorized agents under this Article shall be obtained with a minimum burden upon employers, especially those operating small businesses. Unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible.

History

(1973, c. 295, s. 18; 1991 (Reg. Sess., 1992), c. 894, s. 1.)

§ 95-144. Statistics.

  1. In order to further the purposes of this Article, the Commissioner shall develop and maintain an effective program of collection, compilation, and analysis of occupational safety and health statistics. The Commissioner shall compile accurate statistics on work injuries and illnesses which shall include all disabling, serious or significant injuries or illnesses, whether or not involving loss of time from work, other than minor injuries requiring only first-aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job. On the basis of records made and kept pursuant to the provisions of this Article, employers shall file such reports with the Commissioner as he shall prescribe by regulations and as may be necessary to carry out his functions.
  2. A listing of employment by area and industry of employers who have an assigned account number by the Division of Employment Security (DES) of the Department of Commerce of this State shall be supplied annually to the Commissioner by the DES. The listing of employment by area and industry shall contain at least the following: employer name; DES account number; indication of whether multiple or a single report unit; number of reporting units; average employment; establishment size code; geographical area; any four-digit code; and any other information deemed necessary by the Commissioner to meet federal reporting requirements.

History

(1973, c. 295, s. 19; 2011-401, s. 5.1.)

Editor's Note. - Session Laws 2011-401, s. 3.7, stated in its prefatory language that "G.S. 94-144(b) reads as rewritten." There is no section G.S. 94-144, and it appears that the amendment was intended for G.S. 95-144(b). The amendment would have substituted "Department of Commerce, Division of Employment Security (DES)" for "Employment Security Commission," "DES" for "Employment Security Commission of this State" and for "Employment Security Commission," and "Division" for "Commissioner". The amendment has not been implemented at the direction of the Revisor of Statutes.

However, Session Laws 2011-401, s. 5.1, provides: "Deletion of references. - The Revisor of Statutes may delete any reference in the General Statutes to the Employment Security Commission, or any derivative thereof, and substitute references to the Division of Employment Security (DES) of the Department of Commerce created by this act wherever conforming changes are necessary. The Revisor of Statutes may delete any reference in the General Statutes to the Chairman of the Employment Security Commission, or any derivative thereof, and substitute references to the Secretary of Commerce as appropriate." Pursuant to that authority, the Revisor of Statutes has made conforming changes in subsection (b), which has been set out in the form above at the direction of the Revisor of Statutes.

§ 95-145. Reports to the Secretary.

  1. The Commissioner shall require employers in the State to make reports to the Secretary in the same manner and to the same extent as if the plan in force under this Article were not in effect, and
  2. The Commissioner shall make such reports to the Secretary in such form and containing such information as the Secretary from time to time shall require.

History

(1973, c. 295, s. 20.)

§ 95-146. Continuation and effectiveness of this Article.

The Commissioner shall from time to time furnish to the Secretary information and assurances that this Article is being administered by adequate methods and by standards and enforcement procedures which are and will continue to be as effective as federal standards.

History

(1973, c. 295, s. 21.)

§ 95-147. Training and employee education.

  1. The Commissioner, after consultation with appropriate departments and agencies of the State and subdivisions of government, shall conduct, directly or by grants or contracts, (i) education programs to provide an adequate supply of qualified personnel to carry out the purposes of this Article, and (ii) informational, educational and training programs on the importance of and proper use of adequate safety and health equipment to encourage voluntary compliance.
  2. The Commissioner is also authorized to conduct, directly or by grants or contracts, short-term training of personnel engaged in work related to the Commissioner's responsibilities under this Article.
  3. The Commissioner shall provide employers and employees programs covering recognition, avoidance and prevention of unsafe and unhealthful working conditions in places of employment and shall advise employers and employees, or their representatives, [of] effective means to prevent occupational injuries and illnesses.

History

(1973, c. 295, s. 22.)

§ 95-148. Safety and health programs of State agencies and local governments.

It shall be the responsibility of each administrative department, commission, board, division or other agency of the State and of counties, cities, towns and subdivisions of government to establish and maintain an effective and comprehensive occupational safety and health program which is consistent with the standards and regulations promulgated under this Article. The head of each agency shall:

  1. Provide safe and healthful places and conditions of employment, consistent with the standards and regulations promulgated by this Article.
  2. Acquire, maintain, and require the use of safety equipment, personal protective equipment, and devices reasonably necessary to protect employees.
  3. Consult with and encourage employees to cooperate in achieving safe and healthful working conditions.
  4. Keep adequate records of all occupational accidents and illnesses for proper evaluation and corrective action.
  5. Consult with the Commissioner as to the adequacy as to form and content of records kept pursuant to this section.
  6. Make an annual report to the Commissioner with respect to occupational accidents and injuries and the agency's program under this section.

The Commissioner shall transmit annually to the Governor and the General Assembly a report of the activities of the State agency and instrumentalities under this section. If the Commissioner has reason to believe that any local government program or program of any agency of the State is ineffective, the Commissioner shall, after unsuccessfully seeking by negotiations to abate this failure, include this in the Commissioner's annual report to the Governor and the General Assembly, together with the reasons therefor, and may recommend legislation intended to correct the condition.

The Commissioner shall have access to the records and reports kept and filed by State agencies and instrumentalities pursuant to this section unless such records and reports are required to be kept secret in the interest of national defense, in which case the Commissioner shall have access to such information as will not jeopardize national defense.

Employees of any agency or department covered under this section are afforded the same rights and protections as granted employees in the private sector.

This section shall not apply to volunteer fire departments not a part of any municipality.

Any municipality with a population of 10,000 or less may exclude its fire department from the operation of this section by a resolution of the governing body of the municipality, except that the resolution may not exclude those firefighters who are employees of the municipality.

The North Carolina Fire and Rescue Commission shall recommend regulations and standards for fire departments.

History

(1973, c. 295, s. 23; 1983, c. 164; 1985, c. 544; 1989, c. 750, s. 3; 1991 (Reg. Sess., 1992), c. 1020, s. 1; 2014-115, s. 6.)

Effect of Amendments. - Session Laws 2014-115, s. 6, effective August 11, 2014, made stylistic, punctuation, and gender neutralization changes throughout the section.

Legal Periodicals. - For comment, "From Andrews to Woodson and Beyond: The Development of the Intentional Tort Exception to the Exclusive Remedy Provision - Rescuing North Carolina Workers from Treacherous Waters," see 20 N.C. Cent. L.J. 164 (1992).

§ 95-149. Authority to enter into contracts with other State agencies and subdivisions of government.

The Commissioner may enter into contracts with the Department of Health and Human Services or any other State officer or State agency or State instrumentality, or any municipality, county, or other political subdivision of the State, for the enforcement, administration, and any other application of the provisions of this Article.

History

(1973, c. 295, s. 24; 1989, c. 727, s. 24; 1997-443, s. 11A.35.)

§ 95-150. Assurance of adequate funds to enforce Article.

The Commissioner shall submit to the General Assembly a budget and request for appropriations to adequately administer this Article which shall be sufficient to give satisfactory assurance that this State will devote adequate funds to the administration and enforcement of the standards herein provided and the proper administration of this Article as required by federal standards.

History

(1973, c. 295, s. 25.)

§ 95-151. Discrimination.

No employer, employee, or any other person related to the administration of this Article shall be discriminated against in any work, procedure, or employment by reason of sex, race, ethnic origin, or by reason of religious affiliation.

History

(1973, c. 295, s. 26.)

Legal Periodicals. - For article, "States of Confusion: The Rise of State and Local Power Over Immigration," see 86 N.C.L. Rev. 1557 2008.

For article, "The War Against Chinese Restaurants,” see 67 Duke L.J. 681 (2018).

CASE NOTES

Wrongful Discharge Claim Sufficiently Alleged. - Plaintiffs sufficiently alleged a wrongful discharge claim where they alleged that they were fired: (1) for photographing and complaining about unsafe working conditions in violation of G.S. 95-241(a)(1)b. and G.S. 95-126(2); (2) for engaging in union activities in violation of G.S. 95-81; (3) in retaliation for filing discrimination grievances under G.S. 95-151; (4) in violation of their N.C. Const., Art. I, §§ 14 and 19 rights; and (5) based in part on race. Bigelow v. Town of Chapel Hill, 227 N.C. App. 1, 745 S.E.2d 316, review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 806 (2013).


§ 95-152. Confidentiality of trade secrets.

All information reported to or otherwise obtained by the Commissioner or his agents or representatives in connection with any inspection or proceeding under this Article which contains or which might reveal a trade secret shall be considered confidential, as provided by section 1905 of Title 18 of U.S.C., except as to carrying out this Article or when it is relevant in any proceeding under this Article. In any such proceeding the Commissioner, the Commission, or the court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.

History

(1973, c. 295, s. 27; 2005-133, s. 9.)

Editor's Note. - Session Laws 2005-133, s. 1, as amended by Session Laws 2006-226, s. 30, effective June 29, 2005, provides: "Under the Occupational Safety and Health Act of North Carolina, the name of the Safety and Health Review Board is changed to the North Carolina Occupational Safety and Health Review Commission. The Revisor of Statutes is authorized to substitute the term 'Commission' for the term 'Board' wherever that term appears in the General Statutes in relation to the Act. The Revisor of Statutes is also authorized to insert the words 'North Carolina Occupational' in front of the phrase 'Safety and Health Review Commission' wherever that phrase appears in the General Statutes in relation to the Act."

Effect of Amendments. - Session Laws 2005-133, s. 9, effective June 29, 2005, substituted "Commission" for "Board" near the end of the section.

§ 95-153: Reserved for future codification purposes.

§ 95-154. Authorization for similar safety and health federal-state programs.

Consistent with the requirements and conditions provided in this Article the State, upon the recommendation of the Commissioner of Labor and approval of the Governor, may enter into agreements or arrangements with other federal agencies for the purpose of administering occupational safety and health measures for such employees and employers within the State of North Carolina as may be covered by such federal safety and health statutes.

History

(1973, c. 295, s. 29.)

§ 95-155. Construction of Article and severability.

This Article shall receive a liberal construction to the end that the safety and health of the employees of the State may be effectuated and protected. If any provision of this Article or the application thereof to any person or circumstance is held to be invalid, such invalidity shall not affect other provisions or applications of the Article which can be given effect without the invalid provision or application, and to this end the provisions of this Article are severable.

History

(1973, c. 295, s. 30.)

§ 95-156. Handling of dangerous antineoplastic agents.

  1. The Commissioner of Labor shall adopt rules to establish requirements for the handling of antineoplastic agents in facilities where there is occupational exposure to antineoplastic agents.
  2. The rules adopted pursuant to this section shall be consistent with, but not exceed, the recommendations issued by the National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC), as contained in the Alert: Preventing Occupational Exposure to Antineoplastic and Other Hazardous Drugs in Health Care Settings, as published in 2004 and including subsequent amendments and editions. The Department's adoption of the rules may incorporate updates and changes to NIOSH's guidelines as made by CDC.
  3. Rules adopted pursuant to this section shall not apply to an entity that has obtained a permit pursuant to G.S. 90-85.21 or G.S. 90-85.21A.
  4. The Commissioner shall enforce these rules and investigate complaints in accordance with the provisions of this Article.

History

(2014-76, s. 4.)

Editor's Note. - Session Laws 2014-76, s. 6 made this section effective July 22, 2014.

Session Laws 2014-76, s. 1, provides: "The General Assembly finds that health care personnel who work with or near hazardous antineoplastic agents in health care settings may be exposed to these agents in the workplace. It is the intent of the General Assembly to require health care facilities to follow rules requiring compliance with all aspects of alerts from the National Institute for Occupational Safety and Health in order to protect health care personnel in this State from hazardous exposure to such agents."

Session Laws 2014-76, s. 5, provides: "The Commissioner of Labor shall adopt the rules to implement this act no later than January 1, 2016. Rules adopted pursuant to this section shall not be subject to G.S. 150B-19.1(e), 150B-19.1(f), 150B-19.1(h), and 150B-21.4. The Commissioner of Labor shall establish an advisory workgroup, consisting of hospitals, organizations representing health care personnel, and other interested stakeholders, for the development of rules as required by this act. Consideration shall be given to what constitutes a reasonable time frame for facilities to implement new requirements."


§ 95-157. Carolina Star Program.

  1. The Commissioner may adopt rules for the operation of the Carolina Star Program in a manner that will promote safe and healthy workplaces throughout the State. The rules for the Carolina Star Program adopted by the Commissioner shall pertain to the following matters:
    1. Upper management leadership and active and meaningful employee involvement.
    2. Systematic assessment of occupational hazards.
    3. Comprehensive hazard prevention, control, and mitigation programs.
    4. Employee safety and health training.
    5. Annual safety and health program evaluation.
    6. Star Annual Report.
    7. Attendance and active participation on Carolina Star Safety Conference Regional Teams and conference related activities.
  2. Applications for participation in the Carolina Star Program shall be submitted by the workplace's management. Applications shall include documentation establishing to the satisfaction of the Commissioner that the employer meets all standards for Carolina Star Program participation.
  3. The Department shall provide for on-site evaluations, as resources allow, by Carolina Star Program evaluation teams of each workplace that has applied to participate in the Carolina Star Program to determine if the applicant's workplace complies with the standards for Carolina Star Program participation.
  4. A workplace's continued participation in the Carolina Star Program shall be conditioned on meeting the requirements and expectations established by the Carolina Star Program Policies and Procedures Manual, Star Annual Report, and successful completion of periodic on-site evaluations conducted by the Carolina Star Program evaluation team.
  5. During periods in which a workplace is a participant in the Carolina Star Program, the workplace shall be exempt from inspections under G.S. 95-136; however, this exception shall not apply to inspections or investigations of the workplace arising from complaints, referrals, fatalities, catastrophes, nonfatal accidents, or significant toxic chemical releases.

History

(2017-211, s. 15(b).)

Editor's Note. - Session Laws 2017-211, s. 15(c), provides: "A workplace that was a participant in the uncodified Carolina Star Program prior to October 1, 2017, may continue as a participant in the Carolina Star Program established pursuant to G.S. 95-157, as enacted by this section. On and after October 1, 2017, the continued participation by that workplace in the Carolina Star Program shall be conditioned upon the workplace's ability to meet the requirements and expectations established by all guidelines for participation in the Carolina Star Program adopted by the Commissioner under G.S. 95-157."

Session Laws 2017-211, s. 15(d) made this section effective October 1, 2017.

Session Laws 2017-211, s. 21(a), is a severability clause.

§§ 95-158 through 95-160: Reserved for future codification purposes.

ARTICLE 17. The Uniform Wage Payment Law of North Carolina.

§§ 95-161 through 95-172: Repealed by Session Laws 1979, c. 839, s. 2.

Cross References. - For present statute covering the subject matter of the repealed sections, see G.S. 95-25.1 et seq.

ARTICLE 18. Identification of Toxic or Hazardous Substances.

Part 1. General Provisions.

Sec.

Part 2. Public Safety and Emergency Response Right to Know.

Part 3. Community Right to Know.

Part 4. Implementation.

PART 1. GENERAL PROVISIONS.

§ 95-173. Short title.

This Article shall be cited as the Hazardous Chemicals Right to Know Act.

History

(1985, c. 775, s. 1.)

Editor's Note. - Session Laws 2019-241, s. 7(a)-(c), provides: "(a) The North Carolina Policy Collaboratory at the University of North Carolina at Chapel Hill (Collaboratory) shall create an inventory of aqueous film-forming foam (AFFF) used or stored by fire departments in North Carolina operated, managed, or overseen by units of local government, including those located at or serving airports. This inventory shall include, at a minimum, the following:

"(1) The name and address of each fire department that owns or otherwise has on the premises of a fire station a firefighting vehicle that carries AFFF or a storage tank or other vessel for AFFF.

"(2) The volume, trade name, and CAS number of AFFF used by each department in 2018 for fighting fires or firefighter training.

"(3) The number of firefighting vehicles carrying AFFF and the volume of AFFF carried by each vehicle.

"(4) Each fire department's annual cost of acquiring AFFF and last known purchases of AFFF.

"(5) The volume, trade name, and CAS number of AFFF stored by each fire department or unit of local government for firefighting use and the portion of these AFFFs that are no longer utilized and could be removed from inventory for disposal.

"(6) Other data deemed relevant by the Collaboratory to establish a statewide inventory of AFFF used for fighting fires or firefighter training.

"The Office of the State Fire Marshal of the Department of Insurance and all units of local government shall provide any assistance requested by the Collaboratory to acquire and compile the data required by this section.

"(b) The North Carolina Policy Collaboratory at the University of North Carolina at Chapel Hill (Collaboratory) shall develop a proposal for identifying and collecting AFFF that is expired or no longer needed or wanted by each fire department in North Carolina operated, managed, or overseen by units of local government, including those located at or serving airports. This proposal should include recommendations on which State agency or agencies could oversee such a collection effort and cost estimates on this collection, stockpiling, and disposal. The Department of Insurance Office of the State Fire Marshal, the Department of Environmental Quality, the Department of Health and Human Services, and the Department of Public Safety shall provide any assistance requested by the Collaboratory to acquire and compile the data required by this section.

"(c) The Collaboratory shall submit an interim report with the results of the studies required by subsections (a) and (b) of this section no later than April 1, 2020, and a final report no later than October 15, 2020, to the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources and the Environmental Review Commission."

Legal Periodicals. - For note, "The Hazardous Chemicals Right-to-Know Act: Letting the Public Know What's Next Door," see 64 N.C.L. Rev. 1330 (1986).

§ 95-174. Definitions.

  1. "Chemical manufacturer" means a manufacturing facility classified in North American Industry Classification System (NAICS) Codes 31 through 33 where chemicals are produced for use or distribution in North Carolina.
  2. "Chemical name" means the scientific designation of a chemical in accordance with the nomenclature system developed by the International Union of Pure and Applied Chemistry (IUPAC), or the Chemical Abstracts Service (CAS) rules of nomenclature or a name which will clearly identify the chemical for the purpose of conducting a hazard evaluation.
  3. "Common name" means any designation or identification such as a code name, code number, trade name, brand name or generic name used to identify a chemical other than by its chemical name.
  4. "Distributor" means any business, other than a chemical manufacturer or importer, which supplies hazardous chemicals to other distributors or to purchasers.
  5. "Employee" means any person who is employed by an employer under normal operating conditions.
  6. "Employer" means a person engaged in business who has employees, including the State and its political subdivisions but excluding an individual whose only employees are domestic workers or casual laborers who are hired to work at the individual's residence.
  7. "Facility" means one or more establishments, factories, or buildings located at one contiguous site in North Carolina.
  8. "Fire Chief " means Fire Chief or Fire Marshall, or Emergency Response Coordinator in the absence of a Fire Chief or Fire Marshall for the appropriate local fire department.
  9. Repealed by Session Laws 1987, c. 489, s. 1.
  10. "Fire Department" means the fire department having jurisdiction over the facility.
  11. "Hazardous chemical" means any element, chemical compound or mixture of elements and/or compounds which is a physical hazard or health hazard as defined in subsection (c) of the OSHNC Standard or a hazardous substance as defined in standards adopted by the Occupational Safety and Health Division of the North Carolina Department of Labor in Title 13, Chapter 7 of the North Carolina Administrative Code (13 NCAC 7).
  12. "Hazardous Substance List" means the list required by G.S. 95-191.
  13. "Hazardous substance trade secret" means any formula, plan, pattern, device, process, production information, or compilation of information, which is not patented, which is known only to the employer, the employer's licensees, the employer's employees, and certain other individuals, and which is used or developed for use in the employer's business, and which gives the employer possessing it the opportunity to obtain a competitive advantage over businesses who do not possess it, or the secrecy of which is certified by an appropriate official of the federal government as necessary for national defense purposes. The chemical name and Chemical Abstracts Service number of a substance shall be considered a trade secret only if the employer can establish that the identity or composition of the substance cannot be readily ascertained without undue expense by analytical techniques, laboratory procedures, or other lawful means available to a competitor.
  14. "Label" means any written, printed, or graphic material displayed on or affixed to containers of hazardous chemicals.
  15. "Manufacturing facility" means a facility classified in NAICS Code 31 through 33 which manufactures or uses a hazardous chemical or chemicals in North Carolina.
  16. Recodified as subsection (t) at the direction of he Revisor of Statutes.
  17. "Nonmanufacturing facility" means any facility in North Carolina other than a facility in NAICS Code 31 through 33, the State of North Carolina (and its political subdivisions) and volunteer emergency service organizations whose members may be exposed to chemical hazards during emergency situations.
  18. "OSHNC Standard" means the current Hazard Communication Standard adopted by the Occupational Safety and Health Division of North Carolina Department of Labor in Title 13, Chapter 7 of the North Carolina Administrative Code (13 NCAC 7).
  19. "Storage and Container" has the ordinary meaning however it does not include pipes used in the transfer of substances or the fuel tanks of self-propelled internal combustion vehicles.
  20. "Safety Data Sheets" or "SDS" means chemical information sheets adopted by the Occupational Safety and Health Division of the North Carolina Department of Labor in Title 13, Chapter 7 of the North Carolina Administrative Code (13 NCAC 7).

History

(1985, c. 775, s. 1; 1987, c. 489, ss. 1, 2; 1998-217, ss. 28-30; 2017-211, s. 14(d).)

Editor's Note. - The definition of "Safety Data Sheets" was redesignated as subsection (t) from former subsection (p) to maintain alphabetical order at the direction of the Revisor of Statutes.

Session Laws 2017-211, s. 21(a), is a severability clause.

Effect of Amendments. - Session Laws 2017-211, s. 14(d), effective October 1, 2017, substituted "means" for "shall mean" throughout; in subsection (a), substituted "North American Industry Classification System (NAICS) Codes 31 through 33" for "Standard Industrial Classification (SIC) Codes 20 through 39"; in subsections (o) and (q), substituted "NAICS Code 31 through 33" for "SIC Codes 20 through 39"; in subsection (p), substituted " 'Safety Data Sheets' or 'SDS' for 'MSDS' "; and made stylistic changes. See editor's note for redesignation of subsection (p) as subsection (t).

§§ 95-175 through 95-190: Reserved for future codification purposes.

PART 2. PUBLIC SAFETY AND EMERGENCY RESPONSE RIGHT TO KNOW.

§ 95-191. Hazardous Substance List.

  1. All employers who manufacture, process, use, store, or produce hazardous chemicals, shall compile and maintain a Hazardous Substance List which shall contain all of the following information for each hazardous chemical stored in the facility in quantities of 55 gallons or 500 pounds, whichever is greater:
    1. The chemical name or the common name used on the SDS or container label.
    2. The maximum amount of the chemical stored at the facility at any time during a year, using the following ranges:
    3. The area in the facility in which the hazardous chemical is normally stored and to what extent the chemical may be stored at altered temperature or pressure.
  2. The Hazardous Substance List shall be updated quarterly if necessary, but not less often than annually; however, if a chemical is deleted from, or added to, the Hazardous Substance List, or if the quantity changes sufficiently to cause the chemical to be in a different class as defined in subsection (a) of this section, the employer shall update the Hazardous Substance List to reflect those changes as soon as practicable, but in any event within 30 days of such change.
  3. In lieu of the information required by subdivisions (a)(1) through (a)(3), employers may substitute the information specified in section 312(d)(2) of the Superfund Amendments and Reauthorization Act of 1986, P.L. 99-499.
  4. The Hazardous Substance List may be prepared for the facility as a whole, or for each area in a facility where hazardous chemicals are stored, at the option of the employer but shall include only chemicals used or stored in North Carolina.

Class A, which includes quantities of less than 55 gallons or 500 pounds.

Class B, which includes quantities of between 55 gallons to 550 gallons, and quantities of between 500 pounds and 5,000 pounds.

Class C, which includes quantities of between 550 gallons and 5500 gallons, and quantities between 5,000 pounds and 50,000 pounds.

Class D, which includes quantities of greater than 5500 gallons or 50,000 pounds.

History

(1985, c. 775, s. 1; 1987, c. 489, s. 3; 2017-211, s. 14(e).)

Editor's Note. - Session Laws 2017-211, s. 21(a), is a severability clause.

Effect of Amendments. - Session Laws 2017-211, s. 14(e), effective October 1, 2017, in the introductory language of subsection (a), inserted "all of" following "shall contain"; in subdivision (a)(1), substituted "SDS or container label" for "MSDS or container label"; and in subdivision (a)(2), substituted "includes" for "shall include" throughout, and made stylistic changes.

§ 95-192. Safety data sheets.

  1. Chemical manufacturers and distributors shall provide safety data sheets (SDSs) to manufacturing and nonmanufacturing purchasers of hazardous chemicals in North Carolina for each hazardous chemical purchased.
  2. Employers shall maintain the most current SDS received from manufacturers or distributors for each hazardous chemical purchased. If an SDS has not been provided by the manufacturer or distributor for chemicals on the Hazardous Substance List at the time the chemicals are received at the facility, the employer shall request one in writing from the manufacturer or distributor within 30 days after receipt of the chemical. If the employer does not receive an SDS within 30 days after his written request, he shall notify the Commissioner of Labor of the failure by manufacturer or distributor to provide the SDS.

History

(1985, c. 775, s. 1; 2017-211, s. 14(f).)

Editor's Note. - Session Laws 2017-211, s. 21(a), is a severability clause.

Effect of Amendments. - Session Laws 2017-211, s. 14(f), effective October 1, 2017, deleted "material" preceding "safety data sheets" throughout, and substituted "SDS" for "MSDS" throughout.

§ 95-193. Labels.

Existing labels on incoming containers of hazardous chemicals shall not be removed or defaced. All containers of hazardous substances must be clearly designated as hazardous.

History

(1985, c. 775, s. 1.)

§ 95-194. Emergency information.

  1. An employer who normally stores at a facility any hazardous chemical in an amount of at least 55 gallons or 500 pounds, whichever is greater, shall provide the Fire Chief of the Fire Department having jurisdiction over the facility, in writing, (i) the name(s) and telephone number(s) of knowledgeable representative(s) of the employer who can be contacted for further information or in case of an emergency and (ii) a copy of the Hazardous Substance List.
  2. Each employer shall provide a copy of the Hazardous Substance List to the Fire Chief. The employer shall notify the Fire Chief in writing of any updates that occur in the previously submitted Hazardous Substance List as provided in G.S. 95-191(b).
  3. The Fire Chief or his representative, upon request, shall be permitted on-site inspections at reasonable times of the chemicals located at the facility on the Hazardous Substance List for the sole purpose of preplanning Fire Department activities in the case of an emergency and insuring by inspection the usefulness and accuracy of the Hazardous Substance List and labels.
  4. Employers shall provide to the Fire Chief, upon written request of the Fire Chief, a copy of the SDS for any chemical on the Hazardous Substance List.
  5. Upon written request of the Fire Chief, an employer shall prepare an emergency response plan for the facility that includes facility evacuation procedures, a list of emergency equipment available at the facility, and copies of other emergency response plans, such as the contingency plan required under rules governing the management of hazardous waste adopted pursuant to Article 9 of Chapter 130A of the General Statutes. A copy of the emergency response plan or any prefire plan or emergency response plan required under applicable North Carolina or federal statute or rule or regulation shall, upon written request by the Fire Chief, be given to the Fire Chief.
  6. The Fire Chief shall make information from the Hazardous Substance List, the emergency response plan, and SDSs available to members of the Fire Department having jurisdiction over the facility and to personnel responsible for preplanning emergency response, police, medical or fire activities, but shall not otherwise distribute or disclose (or allow the disclosure of) information not available to the public under G.S. 95-208. Such persons receiving such information shall not disclose the information received and shall use such information only for the purpose of preplanning emergency response, police, medical or fire activities.
  7. Any knowing distribution or disclosure (or permitted disclosure) of any information referred to in subsection (f) of this section in any manner except as specifically permitted under that subsection (f) shall be punishable as a Class 1 misdemeanor. Restrictions concerning confidentiality or nondisclosure of information under this Article 18 shall be exemptions from the Public Records Act contained in Chapter 132 of the General Statutes, and such information shall not be disclosed notwithstanding the provisions of Chapter 132 of the General Statutes.

History

(1985, c. 775, s. 1; 1987, c. 489, ss. 4-6; 1993, c. 539, s. 672; 1994, Ex. Sess., c. 24, s. 14(c); 2002-165, s. 1.2; 2017-211, s. 14(g).)

Editor's Note. - Session Laws 2017-211, s. 21(a), is a severability clause.

Effect of Amendments. - Session Laws 2017-211, s. 14(g), effective October 1, 2017, substituted "SDS" for "MSDS" in subsections (d) and (f).

§ 95-195. Complaints, investigations, penalties.

  1. Complaints of violations of this Part shall be filed in writing with the Commissioner of Labor. Such complaints received in writing from any Fire Chief relating to alleged violations of this Part shall be investigated in a timely manner by the Commissioner of Labor or his designated representative.
  2. Duly designated representatives of the Commissioner of Labor, upon presentation of appropriate credentials to the employer, shall have the right of entry into any facility at reasonable times to inspect and investigate complaints within reasonable limits, and in a reasonable manner. Following the investigation, the Commissioner shall make appropriate findings. Either the employer or the person complaining of a violation may request an administrative hearing pursuant to Chapter 150B of the General Statutes. This request for an administrative hearing shall be submitted to the Commissioner of Labor within 14 days following the Commissioner making his findings. The Commissioner shall within 30 days of receiving the request hold an administrative hearing in accordance with Article 3 of Chapter 150B of the General Statutes.
  3. If the Commissioner of Labor finds that the employer violated this Article, the Commissioner shall order the employer to comply within 14 days following receipt of written notification of the violation. Employers not complying within 14 days following receipt of written notification of a violation shall be subject to civil penalties of not more than one thousand dollars ($1,000) per violation imposed by the Commissioner of Labor. There shall be a separate offense for each day the violation continues. The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.
  4. Any order by the Commissioner under subsection (b) or (c) of this section shall be subject to judicial review as provided under Article 4 of Chapter 150B of the General Statutes.

History

(1985, c. 775, s. 1; 1987, c. 489, s. 7; 1998-215, s. 112.)

§ 95-196. Employee rights.

No employer shall discharge, or cause to be discharged, or otherwise discipline or in any manner discriminate against an employee at the facility because the employee has assisted the Commissioner of Labor or his representative or the Fire Chief or his representative who may make or is making an inspection under G.S. 95-194(c) or G.S. 95-195(b), or has testified or is about to testify in any proceeding under this Article, or has used the provisions of G.S. 95-208.

History

(1985, c. 775, s. 1.)

Legal Periodicals. - For article, "North Carolina Employment Law After Coman : Reaffirming Basic Rights in the Workplace," see 24 Wake Forest L. Rev. 905 (1989).

§ 95-197. Withholding hazardous substance trade secret information.

  1. An employer who believes that all or any part of the information required under G.S. 95-191, 95-192, 95-194(b) or 95-194(d) is a hazardous substance trade secret may withhold the information, provided that (i) hazard information on chemicals the identity of which is claimed as a hazardous substance trade secret is provided to the Fire Chief who shall hold it in confidence and (ii) the employer claims that the information is a hazardous substance trade secret.
  2. Any person in North Carolina may request in writing that the Commissioner of Labor review in camera an employer's hazardous substance trade secret claim. If the Commissioner of Labor finds that the claim is other than completely valid, this finding shall be appealable under subsection (d) of this section. If the Commissioner of Labor finds that the claim is valid, he shall then determine whether the nonconfidential information is sufficient for the Fire Chief to fulfill the responsibilities of his office. If the Commissioner of Labor finds that the information is not sufficient, he shall direct the employer to supplement the information with such other information as will provide the Fire Chief with sufficient information to fulfill the responsibilities of his office, but this finding shall be appealable under subsection (d) of this section.
  3. The Commissioner of Labor and the Fire Chief shall protect from disclosure any or all information coming into either or both of their possession when such information is marked by the employer as confidential, and they shall return all information so marked to the employer at the conclusion of their determination by the Commissioner of Labor. Any person who has access to any hazardous substance trade secret solely pursuant to this section and who discloses it knowing it to be a hazardous substance trade secret to any person not authorized to receive it shall be guilty of a Class I felony, and if knowingly or negligently disclosed to any person not authorized, shall be subject to civil action for damages and injunction by the owner of the hazardous substance trade secret, including, without limitation, actions under Article 24 of Chapter 66 of the General Statutes.
  4. The employer, Fire Chief, or person making the original request who is an aggrieved party shall have 30 days after receipt of notification by the Commissioner of his findings under subsection (b) to request an administrative hearing on the determination. Any such hearing shall be held in a manner similar to that provided for in G.S. Chapter 150B, Article 3 and the decision upon the request of any aggrieved party shall be subject to the judicial review provided for by G.S. Chapter 150B, Article 4, provided that these administrative and judicial hearings shall be conducted in camera to assure the confidentiality of the information being reviewed.

History

(1985, c. 775, s. 1; 1987, c. 827, s. 1; 1993, c. 539, s. 1290; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 95-198. Medical emergency and nonemergency situations.

  1. Where a treating health care provider determines that a medical emergency exists and the specific chemical identity of a hazardous chemical is necessary for emergency or first-aid treatment, the chemical manufacturer, importer, or employer shall immediately disclose the specific chemical identity of a hazardous substance trade secret substance to that treating physician or nurse, regardless of the existence of written statement of need or a confidentiality agreement. The chemical manufacturer, importer, or employer may require a written statement of need and a confidentiality agreement as soon as circumstances permit. The confidentiality agreement (i) may restrict the use of the information to the health purposes indicated in a written statement of need; (ii) may provide for appropriate legal remedies in the event of a breach of the agreement, including stipulation of a reasonable pre-estimate of likely damages; and (iii) may not include requirements for the posting of a penalty bond. The parties are not precluded from pursuing noncontractual remedies to the extent permitted by law.
  2. In nonemergency situations, a chemical manufacturer, importer, or employer shall, upon request, disclose a specific chemical identity, otherwise permitted to be withheld under this section, to a responsible party, as defined in the standards adopted in Title 13, Subchapter 7F of the North Carolina Administrative Code (13 NCAC 7F), providing medical or other occupational health services to exposed persons if the request is in writing and states the medical need for the information. The employer may require that the responsible party sign a confidentiality agreement prior to release of the information. The parties are not precluded from pursuing noncontractual remedies to the extent permitted by law.
  3. If the chemical manufacturer, importer or employer denies a written request for hazardous substance trade secret release, or does not provide this information within 30 days, the Department of Labor shall initiate the trade secret claim determination process under G.S. 95-197.

History

(1985, c. 775, s. 1; 1998-217, s. 31.)

§§ 95-199 through 95-207: Reserved for future codification purposes.

PART 3. COMMUNITY RIGHT TO KNOW.

§ 95-208. Community information on hazardous chemicals.

  1. Any person in North Carolina may request in writing from the employer a list of chemicals used or stored at the facility. The request shall include the name and address of the person making the request and a statement of the purpose for the request. If the person is requesting the list on behalf of or for the use of an organization, partnership, or corporation, he shall also disclose the name and business address of such organization, partnership, or corporation. The request may include, at the option of the employer, a statement to the effect that the information will be used only for the purpose stated. The employer shall furnish to the person making the request a list containing, at a minimum, all chemicals included on the Hazardous Substance List, the class of each chemical as defined in G.S. 95-191(a)(2), and an SDS for each chemical for which an SDS is available and is requested. Whenever an employer has withheld a chemical under the provisions of G.S. 95-197 from the information provided under G.S. 95-208, the employer must state that the information is being withheld and, upon request, must provide the SDS for the chemical. Additional information may be furnished to the person making the request at the option of the employer. The employer shall provide, at a fee not to exceed the cost of reproducing the materials, the materials requested within 10 working days of the date the employer receives the written request for information.
  2. If the employer fails or refuses to provide the information required under subsection (a) of this section, the person requesting the information may request in writing that the Commissioner of Labor review the request. The Commissioner of Labor may conduct an investigation in the same manner as provided in G.S. 95-195(b). Following the investigation, the Commissioner shall make appropriate findings. Either the employer or the person making the initial request may request an administrative hearing pursuant to Chapter 150B of the General Statutes. This request for an administrative hearing shall be submitted to the Commissioner of Labor within 30 days following the Commissioner making his findings. The Commissioner of Labor shall within 30 days of receiving the request hold an administrative hearing to consider the request for information under subsection (a) of this section. This hearing shall be held as provided for in G.S. Chapter 150B, Article 3. If the Commissioner of Labor finds that the request complies with the requirements of subsection (a) of this section, the Commissioner of Labor shall direct that the employer provide to the person making the request a list containing, at a minimum, all chemicals used or stored at the facility included on the Hazardous Substance List, the class of each chemical as defined in G.S. 95-191(a)(2), and an SDS for each chemical for which an SDS is available and is requested and may in his discretion assess civil penalties as provided in G.S. 95-195(c); provided that it shall be a defense to such disclosure if the employer proves that the information has been requested directly or indirectly by, or in behalf of, a competitor of the employer, or that such information is a Hazardous Substance Trade Secret, or that the request did not comply with the requirements of subsection (a) of this section.
  3. Any order by the Commissioner of Labor under subsection (b) of this section shall be subject to judicial review as provided under G.S. Chapter 150B, Article 4.

History

(1985, c. 775, s. 1; 1987, c. 827, s. 1; 2017-211, s. 14(h).)

Editor's Note. - Session Laws 2017-211, s. 21(a), is a severability clause.

Effect of Amendments. - Session Laws 2017-211, s. 14(h), effective October 1, 2017, substituted "SDS" for "MSDS" throughout.

§§ 95-209 through 95-215: Reserved for future codification purposes.

PART 4. IMPLEMENTATION.

§ 95-216. Exemptions.

Notwithstanding any language to the contrary, the provisions of this Article shall not apply to chemicals in or on any of the following:

  1. Hazardous substances while being transported in interstate commerce into or through this State.
  2. Products intended for personal consumption by employees in the facilities.
  3. Retail food sale establishments and all other retail trade establishments in North American Industry Classification System Codes 44 through 45, exclusive of processing and repair areas, except that the employer must comply with the provisions of G.S. 95-194(a)(i).
  4. Any food, food additive, color additive, drug or cosmetic as such terms are defined in the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301, et seq.).
  5. A laboratory under the direct supervision or guidance of a technically qualified individual provided that:
    1. Labels on containers of incoming chemicals shall not be removed or defaced;
    2. SDSs received by the laboratory shall be maintained and made accessible to employees and students;
    3. The laboratory is not used primarily to produce hazardous chemicals in bulk for commercial purposes; and
    4. The laboratory operator complies with the provisions of G.S. 95-194(a)(i).
  6. Any farming operation which employs 10 or fewer full-time employees, except that if any hazardous chemical in an amount in excess of 55 gallons or 500 pounds, whichever is greater, is normally stored at the farming operation, the employer must comply with the provisions of G.S. 95-194(a)(i).
  7. Any distilled spirits, tobacco, and untreated wood products.
  8. Medicines used directly in patient care in health care facilities and health care facility laboratories.

History

(1985, c. 775, s. 1; 1987, c. 489, s. 8; 2017-211, s. 14(i).)

Editor's Note. - Session Laws 2017-211, s. 21(a), is a severability clause.

Effect of Amendments. - Session Laws 2017-211, s. 14(i), effective October 1, 2017, in the introductory language, inserted "any of"; in subsection (3), substituted "North American Industry Classification System Codes 44 through 45" for "Standard Industrial Classification Codes 53 through 59"; in subdivision (5)(b), substituted "SDSs" for "MSDS's"; and made stylistic changes.

§ 95-217. Preemption of local regulations.

It is the intent of the General Assembly to prescribe this uniform system for the disclosure of information regarding the use or storage of hazardous chemicals. To that end, all units of local government in the State are preempted from exercising their powers to require disclosure, directly or indirectly, of information regarding the use or storage of hazardous chemicals by employers to any members of the public, or to any branch or agent of State or local government in any manner other than as provided for in this Article. This section does not preempt the enforcement of the provisions of any nationally recognized fire code that may be adopted by a unit of local government.

History

(1985, c. 775, s. 1; 1987, c. 489, s. 9.)

§ 95-218. Severability.

The provisions of this Article are severable, and if any phrase, clause, sentence, or provision of this Article, or the application of any such phrase, clause, sentence or provision to any person, business entity or circumstances, other than those to which it was held invalid shall not be affected thereby.

History

(1985, c. 775, s. 1.)

§§ 95-219 through 95-221: Reserved for future codification purposes.

ARTICLE 19. Migrant Housing Act of North Carolina.

Sec.

§ 95-222. Short title; legislative purpose.

  1. This Article may be cited as the "Migrant Housing Act of North Carolina."
  2. It is the purpose and policy of the General Assembly to conform migrant housing standards to, as much as reasonably possible, the Occupational Safety and Health Act of North Carolina, and to ensure safe and healthy migrant housing conditions. The General Assembly finds that the general welfare of the State requires the enactment of this law under the police power of the State.

History

(1989, c. 91, s. 2.)

Cross References. - For the Occupational Safety and Health Act, see G.S. 95-126 et seq.

Editor's Note. - Session Laws 1989, c. 91, which enacted this Article, in s. 5 provided that if funds were appropriated for the 1989-1990 fiscal year to implement the provisions of ss. 1, 2, and 3 of the act, ss. 1, 2, and 3 would become effective January 1, 1990, but that the act would not be construed to obligate the General Assembly to make any appropriation to implement the provisions of the act. Such an appropriation was made by Session Laws 1989, c. 752, s. 164.

CASE NOTES

Former Laws Did Not Trigger Constitutional Protections. - The North Carolina migrant housing laws and regulations in former G.S. 130A-238 et seq. were not sufficiently mandatory in nature to trigger constitutional protections for migrant farmworkers; the state regulations requiring inspection and certification of private migrant housing facilities did not affect the migrant workers' liberty and the statutory and regulatory commands did not hinder efforts by private farmers to provide safe housing for their workers. Edwards v. Johnston County Health Dep't, 885 F.2d 1215 (4th Cir. 1989), decided under prior law.

§ 95-223. Definitions.

As used in this Article, unless the context requires otherwise:

  1. "Agricultural employment" means employment in any service or activity included within the provisions of Section 3(f) of the Fair Labor Standards Act of 1938, or section 3121(g) of the Internal Revenue Code of 1986; and the handling, planting, drying, packing, packaging, processing, freezing, or grading prior to delivery for storage of any agricultural or horticultural commodity in its unmanufactured state and including the harvesting of Christmas trees, and the harvesting of saltwater crabs;
  2. "Commissioner" means the Commissioner of Labor of North Carolina;
  3. "Day" means a calendar day;
  4. "Director" means the Director of the Agricultural Safety and Health Bureau, who is the agent designated by the Commissioner to assist in the administration of this Article.
  5. "Established federal standard" means those standards as set out in, and interpretations issued by, the Secretary of the United States Department of Labor in 29 C.F.R. 1910.142, as amended;
  6. "Migrant" means an individual, and his dependents, who is employed in agricultural employment of a seasonal or other temporary nature, and who is required to be absent overnight from his permanent place of residence;
  7. "Migrant housing" means any facility, structure, real property, or other unit that is established, operated, or used as living quarters for migrants;
  8. "Operator" means any person who owns or controls migrant housing; and
  9. "Person" means an individual, partnership, association, joint stock company, corporation, trust, or legal representative;
  10. "Substantive violation" means a violation of a safety and health standard, including those that provide fire prevention, and adequate and sanitary supply of water, plumbing maintenance, structurally sound construction of buildings, effective maintenance of those buildings, provision of adequate heat as weather conditions require, and reasonable protection for inhabitants from insects and rodents. A substantive violation does not include technical or procedural violations of safety and health standards.

History

(1989, c. 91, s. 2; 1993, c. 300, s. 3; 2007-548, s. 1.)

Effect of Amendments. - Session Laws 2007-548, s. 1, effective August 31, 2007, added subdivision (3a).

§ 95-224. Scope; powers and duties.

  1. The provisions of this Article shall apply to all operators and migrants except:
    1. Any person who, in the ordinary course of that person's business, regularly provides housing on a commercial basis to the general public; and who provides housing to migrants of the same character and on the same or comparable terms and conditions as those provided to the general public; or
    2. A housing unit owned by one or more of the occupants and occupied solely by a family unit.
  2. The Commissioner shall have the following powers and duties under this Article:
    1. To delegate to the Director the powers, duties, and responsibilities necessary to ensure safe and healthy migrant housing conditions.
    2. To supervise the Director.
    3. To issue preoccupancy certificates to certify that housing for migrant workers has been found to be in compliance with this Article.
    4. To conduct postoccupancy inspections of migrant housing in accordance with the provisions of G.S. 95-226(g).

History

(1989, c. 91, s. 2; 2007-548, s. 2.)

Effect of Amendments. - Session Laws 2007-548, s. 2, effective August 31, 2007, added "powers and duties" to the section heading; designated the former first paragraph as subsection (a); and added subsection (b).

§ 95-225. Adoption of standards and interpretations.

  1. Unless otherwise provided, all established federal standards are adopted and shall be enforced by the Department of Labor of North Carolina.
  2. The Commissioner shall provide for publication in the North Carolina Register any modification by the federal government of the established federal standards within 30 days of their adoption.
  3. For the protection of the public health, the Commission for Public Health shall adopt and the Department of Environmental Quality shall enforce rules that establish water quality and water sanitation standards for migrant housing under this Article.
  4. The requirements for the collection, treatment, and disposal of sewage, as provided in Article 11 of Chapter 130A, and the rules adopted pursuant to that Article shall apply to migrant housing.
  5. Whenever the outside temperature falls below 50 degrees Fahrenheit and the migrant housing is occupied, heating equipment shall be provided and operable. Regardless of outside temperature, this equipment must be capable of maintaining living areas of 65 degrees Fahrenheit. If housing is to be occupied from May 15 until September 1 only, no heating equipment shall be required at the time of preoccupancy inspection.
  6. All migrant housing shall comply with the standards regarding fire safety for migrant housing as adopted by the Commission for Public Health and in effect on January 1, 1989.
  7. For purposes of this Article, the established federal standard provided in 29 C.F.R. 1910.142(i) does not apply. The following standards shall apply to migrant housing:
    1. Food preparation facilities and eating areas shall be provided and maintained in a clean and sanitary manner;
    2. A kitchen facility shall be provided with an operable stove with at least one burner per five people, and in no event with less than two burners; an operable refrigerator with .75 cubic feet per person minimum; a table; and a sink with running hot and cold water;
    3. Surfaces with which food or drink come in contact shall be easily accessible for cleaning, and shall be nontoxic, resistant to corrosion, nonabsorbent, and free of open crevices;
    4. Acceptable storage facilities shall be provided and shall be kept clean and free of vermin; and
    5. All food service facilities, other than those where migrants procure and prepare food for their own or their family's consumption, shall comply with the standards regarding kitchen and dining room facilities for migrant housing, as adopted by the Commission for Public Health and in effect on January 1, 1989.
  8. Each migrant shall be provided with a bed that shall include a mattress in good repair with a clean cover. The Department of Labor of North Carolina inspector shall determine the condition of the mattress and cover during the preoccupancy inspection. If the mattress or cover is damaged beyond normal wear and tear during the migrant's occupancy of the housing, the operator may charge the migrant the reasonable cost of replacing the mattress or cover.

History

(1989, c. 91, s. 2; c. 727, s. 220; 1997-443, s. 11A.36; 2007-182, s. 2; 2007-548, s. 3; 2015-241, s. 14.30(u).)

Editor's Note. - Session Laws 2015-241, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2015.'"

Session Laws 2015-241, s. 33.6, is a severability clause.

Effect of Amendments. - Session Laws 2007-182, s. 2, effective July 5, 2007, substituted "Commission for Public Health" for "Commission for Health Services" in subsections (c) and (f), and in subdivision (g)(5).

Session Laws 2007-548, s. 3, effective August 31, 2007, added subsection (h).

Session Laws 2015-241, s. 14.30(u), effective July 1, 2015, substituted "Department of Environmental Quality" for "Department of Environment and Natural Resources" in subsection (c).

§ 95-226. Application for inspection.

  1. Except as provided in subsection (f) of this section, every operator shall request a preoccupancy inspection at least 45 days prior to the anticipated date of occupancy by applying directly to the Department of Labor of North Carolina or to the local health department. Upon receipt of an application by the Department of Labor of North Carolina, the Department of Labor of North Carolina shall immediately notify, in writing, the appropriate local health department; and the local health department shall inspect the migrant housing for compliance with G.S. 95-225(c) and (d). Upon receipt of the application by the local health department, the local health department shall immediately notify, in writing, the Department of Labor of North Carolina and shall inspect the migrant housing for compliance with G.S. 95-225(c) and (d).
  2. The Department of Labor of North Carolina shall provide local health departments and Agricultural Extension offices with blank copies of forms for applying for preoccupancy inspections.
  3. The application for inspection shall include:
    1. The name, address, and telephone number of the operator;
    2. The location of the migrant housing;
    3. The anticipated number of migrants to be housed in the migrant housing; and
    4. The anticipated dates of occupancy of the migrant housing.
  4. Except as provided in subsections (e) and (f) of this section, an operator may allow the migrant housing to be occupied only if the migrant housing has been certified by the Department of Labor of North Carolina or the United States Department of Labor to be in compliance with all of the standards under this Article, except that an operator may allow migrant housing to be occupied on a provisional basis if the operator applied for a preoccupancy inspection at least 45 days prior to occupancy and the preoccupancy inspection was not conducted by the Department of Labor of North Carolina at least four days prior to the anticipated occupancy. Upon subsequent inspection by the Department of Labor of North Carolina, the provisional occupancy shall be revoked if any deficiencies have not been corrected within the period of time specified by the Department of Labor of North Carolina, or within two days after receipt of written notice provided on-site to the operator. No penalties may be assessed for any violation of this Article which are found during the preoccupancy inspection, unless substantive violations exist during provisional occupancy.
  5. If an operator has applied for an inspection pursuant to this Article and one or more migrants arrives in advance of the arrival date stated in the application, the operator shall notify the Department of Labor of North Carolina within two working days of the occupancy of the migrant housing.
  6. If an operator receives a preoccupancy inspection rating from the Department of Labor of North Carolina of one hundred percent (100%) compliance for a particular migrant housing unit for two consecutive years, in the third year the operator shall have the right to conduct the preoccupancy inspection for that particular migrant housing unit himself or herself. Operators conducting their own preoccupancy inspections pursuant to this subsection shall, at least 45 days prior to occupancy, register the migrant housing with the Department of Labor of North Carolina and notify in writing the appropriate local health department. The local health department shall inspect the migrant housing for compliance with G.S. 95-225(c) and (d). The operator shall request a preoccupancy inspection under subsection (a) of this section in the year following a year when the operator conducted a self-inspection under this subsection.
  7. In addition to any other applicable federal or State law or regulation, the Department may only conduct a postoccupancy inspection of operators:
    1. Who were subject to an annual preoccupancy inspection by the Department of Labor of North Carolina and found not to be in one hundred percent (100%) compliance at that inspection.
    2. Who were assessed a civil penalty by the Department of Labor of North Carolina during the previous calendar year for violations of this Article or pursuant to G.S. 95-136(a)(3).
    3. Who did not undergo a preoccupancy inspection, unless the operator conducted a self-inspection pursuant to subsection (f) of this section.
    4. In response to a referral from a federal, State, county, or local government official or any person with firsthand knowledge of an alleged violation of this Article or of an alleged safety or health hazard whom the Department of Labor of North Carolina deems to have provided a credible referral.

The local health department shall forward the results of its inspection to the Department of Labor of North Carolina and to the operator. The Department of Labor of North Carolina shall inspect the migrant housing and certify to the operator the results of the inspection.

At the time the Department of Labor of North Carolina conducts a preoccupancy inspection, the Department of Labor of North Carolina shall provide the operator with a copy of the guide for employers on compliance with the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., as amended, prepared by the United States Department of Justice.

History

(1989, c. 91, s. 2; 2007-548, ss. 3.1, 3.2, 4.)

Effect of Amendments. - Session Laws 2007-548, ss. 3.1-4, effective August 31, 2007, in subsection (a), added "Except as provided in subsection (f) of this section" to the beginning of the first paragraph, added the last paragraph; in subsection (d), substituted "in subsections (e) and (f) of this section" for "in subsection (e) of this section," made a stylistic change; and added subsections (f) and (g).

§ 95-227. Enforcement.

  1. For the purpose of enforcing the standards provided by this Article, the provisions of G.S. 95-129, G.S. 95-130 and G.S. 95-136 through G.S. 95-142 shall apply under this Article in a similar manner as they apply to places of employment under OSHANC; however, G.S. 95-129(4), 95-130(2), and 95-130(6) do not apply to migrant housing. For the purposes of this Article, the term:
    1. "Employer" in G.S. 95-129, G.S. 95-130 and G.S. 95-136 through G.S. 95-142 shall be construed to mean an operator.
    2. "Employee" shall be construed to mean a migrant.
    3. Repealed by Session Laws 2007-548, s. 5, effective August 31, 2007.
  2. The Commissioner may establish a new division to enforce this Article.
  3. The Department of Labor of North Carolina shall maintain a list of operators and the physical address of their migrant housing units, number of beds, and the date of the annual preoccupancy inspection and certification.
  4. The Department of Labor of North Carolina shall maintain a summary of any inspections filed annually with the Division that enforce this Article, including the number and type of citations issued and the violations found, if any.
  5. The Commissioner shall report no later than May 1 of each year to the Chairpersons of the Senate Appropriations Committee on Natural and Economic Resources, the Chairpersons of the House of Representatives Appropriations Committee on Agriculture and Natural and Economic Resources, the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, and the Fiscal Research Division regarding the number of annual preoccupancy certifications issued, the number of operators with one hundred percent (100%) compliance at the preoccupancy inspection, the number of postoccupancy inspections conducted by the Department of Labor of North Carolina, the number and type of citations and fines issued, the total number of migrant worker beds in the State, and the identification of operators who fail to apply for or obtain permits to operate migrant housing pursuant to this Article.

History

(1989, c. 91, s. 2; 1997-35, s. 1; 2007-548, s. 5; 2017-57, s. 14.1(pp).)

Editor's Note. - Session Laws 2017-57, s. 1.1, provides: "This act shall be known as the 'Current Operations Appropriations Act of 2017.'"

Session Laws 2017-57, s. 39.6, is a severability clause.

Effect of Amendments. - Session Laws 2007-548, s. 5, effective August 31, 2007, inserted the subsection (a) and (b) designations and made stylistic changes; deleted former subdivision (3) defining "Director"; and added subsections (c) through (e).

Session Laws 2017-57, s. 14.1(pp), effective July 1, 2017, in subsection (e) substituted "House of Representatives Appropriations Committee on Agriculture and" for "House of Representatives Appropriations Subcommittee on" and inserted "the Joint Legislative Oversight Committee on Agriculture and Natural and Economic Resources, and the Fiscal Research Division" and made stylistic changes.

§ 95-228. Waiver of rights.

Agreements entered into by migrants to waive or to modify their rights under this Article shall be deemed void as contrary to public policy. A waiver or modification of rights by the Department of Labor of North Carolina shall be valid under this Article.

History

(1989, c. 91, s. 2.)

§ 95-229. Construction of Article; severability.

This Article shall be liberally construed to the end that the safety and health of the migrants of this State may be effectuated and protected.

The provisions of this Article are severable, and if any provision of this Article is held invalid by a court of competent jurisdiction, the invalidity may not affect other provisions of the Article, which can be given effect without the invalid provision.

History

(1989, c. 91, s. 2.)

§ 95-229.1. Actions upon finding uninhabitable migrant housing.

If the Department of Labor of North Carolina determines that housing provided to migrants under this Article is uninhabitable, but is not reasonably expected to cause death or serious physical harm, the migrants shall be allowed to remain in the housing for a reasonable period, not to exceed 14 days, while the operator locates alternative housing or makes necessary repairs to make the housing habitable. No additional civil penalties arising from the condition of the housing shall be levied against the operator during the 14-day period after the housing has been determined to be uninhabitable in which the migrants are allowed to remain in the housing. The alternative housing shall be provided at the same rate or less than the rate paid by the migrants for the uninhabitable housing. If the Director determines, after recommendation by an inspector, that housing provided to migrants could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated, the migrants shall not be allowed to stay in the housing, and alternative housing shall be provided by the operator at the same rate or less than the rate paid by the migrants for the uninhabitable housing.

History

(2007-548, s. 5.1.)

Editor's Note. - This section was enacted as G.S. 95-299.1 by Session Laws 2007-548, s. 5.1. It has been renumbered as this section at the direction of the Revisor of Statutes.

§§ 95-229.2 through 95-229.4: Reserved for future codification purposes.

ARTICLE 19A. Overhead High-Voltage Line Safety Act.

Sec.

§ 95-229.5. Purpose; scope.

The purpose of this Article is to promote the safety and protection of persons engaged in work in the vicinity of high-voltage overhead lines. This Article defines the conditions under which work may be carried on safely and provides for the precautionary safety arrangements to be taken when any person engages in work in proximity to overhead high-voltage lines.

History

(1995 (Reg. Sess., 1996), c. 587, s. 1.)

§ 95-229.6. Definitions.

As used in this Article, unless the context requires otherwise:

  1. "Covered equipment" or "covered items" means any mechanical equipment, hoisting equipment, antenna, or rigging; any part of which is capable of vertical, lateral, or swinging motion that could cause any portion of the equipment or item to come closer than 10 feet to a high-voltage line during erection, construction, operation, or maintenance; including, but not limited to, equipment such as cranes, derricks, power shovels, backhoes, dump trucks, drilling rigs, pile drivers, excavating equipment, hay-loaders, haystackers, combines, irrigation equipment, portable grain augers or elevators, and mechanical cotton pickers. These terms also include items such as handheld tools, ladders, scaffolds, antennas, and outriggers, houses or other structures in transport, and gutters, siding, and other construction materials, the motion or manipulation of which could cause them to come closer than 10 feet to a high-voltage line.
  2. "High-voltage line" means all aboveground electrical conductors of voltage in excess of 600 volts measured between conductor and ground.
  3. "Person" means natural person, firm, business association, company, partnership, corporation, or other legal entity.
  4. "Person responsible for the work to be done" means the person performing or controlling the work that necessitates the precautionary safety measures required by this Article, unless the person performing or controlling the work is under contract or agreement with a governmental entity, in which case "person responsible for the work to be done" means that governmental entity.
  5. "Warning sign" means a weather-resistant sign of not less than five inches by seven inches with at least two panels: a signal panel and a message panel. The signal panel shall contain the signal word "WARNING" in black lettering and a safety alert symbol consisting of a black triangle with an orange exclamation point, all on an orange background. The message panel shall contain the following words, either in black letters on a white background or white letters on a black background: "UNLAWFUL TO OPERATE THIS EQUIPMENT WITHIN TEN FEET OF OVERHEAD HIGH-VOLTAGE LINES - Contact with power lines can result in death or serious burns." A symbol or pictorial panel may also be added. Such warning sign language, lettering, style, colors, size, and format shall meet the requirements of the American National Standard ANSI Z535.4-1991, Product Safety Signs and Labels, or its successor or such equally effective standard as may be approved for use by the Commissioner of Labor. In the event of a conflict with regard to the appearance or content of the warning sign, the standard approved by the Commissioner of Labor shall take precedence over any description or standard set out in this subdivision.

History

(1995 (Reg. Sess., 1996), c. 587, s. 1; 1998-193, s. 2.)

Legal Periodicals. - See legislative survey, 21 Campbell L. Rev. 323 (1999).

§ 95-229.7. Prohibited activities.

  1. Unless danger of contact with high-voltage lines has been guarded against as provided by G.S. 95-229.8, 95-229.9, and 95-229.10, the following actions are prohibited:
    1. No person shall, individually or through an agent or employee, perform, or require any other person to perform, any work upon any land, building, highway, or other premises that will cause:
      1. Such individual, agent, employee, or other person to be placed within six feet of any overhead high-voltage line; or any part of any tool or material used by the agent, employee, or other person to be brought within six feet of any overhead high-voltage line, or
      2. Any part of any covered equipment or covered item used by the individual, agent, employee, or other person to be brought within 10 feet of any high-voltage line.
    2. No person shall, individually or through an agent or employee or as an agent or employee, erect, construct, operate, maintain, transport, or store any covered equipment or covered item within 10 feet of any high-voltage line, or such greater clearance as may be required under the circumstances by OSHA, except as provided herein. This prohibition shall not apply, however, to covered equipment as defined herein when lawfully driven or transported on public streets and highways in compliance with applicable height restrictions. The required clearance from high-voltage lines shall be not less than four feet when:
      1. Covered equipment as defined herein is lawfully driven or transported on public streets and highways in compliance with the height restriction applicable thereto,
      2. Refuse collection equipment is operating, or
      3. Agricultural equipment is operating.
    3. No person shall, individually or through an agent or employee or as an agent or employee, operate or cause to be operated an airplane or helicopter within 20 feet of a high-voltage line, except that no clearance is specified for licensed aerial applicators that may incidentally pass within the 20-foot limitation during normal operation.
    4. No person shall, individually or through an agent or employee or as an agent or employee, store or cause to be stored any materials that are expected to be moved or handled by covered equipment or any covered item within 10 feet of a high-voltage line.
    5. No person shall, individually or through an agent or employee or as an agent or employee, provide or cause to be provided additional clearance by either (i) raising, moving, or displacing any overhead utility electric lines or (ii) pulling or pushing any pole, guy, or other structural appurtenance.
    6. No person shall, individually or through an agent or employee or as an agent or employee, excavate or cause to be excavated any portion of any foundations of structures, including guy anchors or other structural appurtenances, which support any overhead utility electric lines.
  2. If the high-voltage line has been insulated or de-energized and grounded, in accordance with G.S. 95-229.10, the required clearances specified in subdivisions (1), (2), and (4) of subsection (a) of this section may be reduced to not less than two feet. Under no circumstances shall the line or its covering be contacted. If the line is temporarily raised or moved to accommodate the expected work, without also being insulated or de-energized and grounded, the required clearances from the line, specified in subsection (a) of this section, shall not be reduced.

History

(1995 (Reg. Sess., 1996), c. 587, s. 1; 1998-193, s. 3.)

§ 95-229.8. Warning signs.

  1. No person shall, individually or through an agent or employee or as an agent or employee, operate any covered equipment in the proximity of a high-voltage line unless warning signs are posted and maintained as follows:
    1. A sign shall be located within the equipment and readily visible and legible to the operator of such equipment when at the controls of such equipment; and
    2. Signs shall be located on the outside of equipment so as to be readily visible and legible at 12 feet to other persons engaged in the work operations.
  2. If the Commissioner of Labor determines that a successor, substitute, or additional sign standard may or shall be used in place of the requirements listed in G.S. 95-229.6, a period of not less than 18 months from such determination shall be allowed for any required replacement of signs.

This subsection shall not apply to handheld tools, handheld equipment, and other items which by their size or configuration cannot accommodate the warning signs specified in G.S. 95-229.6(5).

History

(1995 (Reg. Sess., 1996), c. 587, s. 1; 1998-193, s. 4.)

§ 95-229.9. Notification.

  1. When any person desires to carry on any work in closer proximity to any high-voltage line than permitted by G.S. 95-229.7(a), the person responsible for the work to be done shall notify the owner or operator of the high-voltage line prior to the time the work is to be commenced. Such notification shall occur at the earliest practical time; however, such notification shall occur not less than 48 hours, excluding Saturday, Sunday, and legal State and federal holidays, prior to the intended work. In emergency situations, including police, fire, and rescue emergencies, such notification shall occur as soon as possible under the circumstances. In cases where the person or business entity responsible for doing the work is doing so under contract or agreement with a government entity, and the government entity and the owner or operator of the lines have already made satisfactory mutual arrangements, further arrangements for that particular work are not required.
  2. Every notice served by any person on an owner or operator of a high-voltage line shall contain the following information:
    1. The name, address, and telephone number of the individual serving such notice;
    2. The location of the proposed work;
    3. The name, address, and telephone number of the person responsible for the work;
    4. The field telephone number of the site of such work, if one is available;
    5. The type, duration, and extent of the proposed work;
    6. The name of the person for whom the proposed work is being performed;
    7. The time and date of the notice; and
    8. The approximate date and time when the work is to begin.
  3. If the notification required by this Article is made by telephone, a record of the information in subsection (b) of this section shall be maintained by the owner or operator notified and the person giving the notice to document compliance with the requirements of this Article.
  4. Owners or operators of high-voltage lines may form and operate an association providing for mutual receipt of notification of activities close to high-voltage lines in a specified area. In areas where an association is formed, the following shall occur:
    1. Notification to the association shall be effected as set forth in this section.
    2. Owners or operators of high-voltage lines in the area:
      1. May become members of the association;
      2. May participate in and receive the services furnished by the association; and
      3. Shall pay their proportionate share of the cost for the services furnished.
    3. The association whose members or participants have high-voltage lines within a county shall file a list containing the name, address, and telephone number of every member and participating owner or operator of high-voltage lines with the clerk of superior court.
    4. If notification is made by telephone, an adequate record of the information required by subsection (b) of this section shall be maintained by the association to document compliance with the requirements of this Article.

History

(1995 (Reg. Sess., 1996), c. 587, s. 1.)

§ 95-229.10. Precautionary safety arrangements.

  1. Installation or performance of precautionary safety arrangements shall be performed by the owner or operator of high-voltage lines only after mutually satisfactory arrangements have been negotiated between the owner or the operator of the lines, or both, and the person responsible for the work to be done. The negotiations shall proceed promptly and in good faith with the goal of accommodating the requested work consistent with the owner's or operator's service needs and the intent to protect the public from the danger of contact with high-voltage lines as far as is reasonable and cost-effective. The person responsible for the work may perform the work only after satisfactory mutual arrangements, including coordination of work and construction schedules, have been made between the owner or operator of the high-voltage lines and the person responsible for the work. The owners or operators of high-voltage lines shall make the final determination as to which arrangements are most feasible and appropriate under the circumstances; provided, however, that the utility may determine that no arrangements can be made that would allow the proposed work to be carried out in a reasonably safe manner or at reasonable cost taking into account the cost to its customers, and the owner or operator of high-voltage lines may refuse to enter into an agreement on that basis.
  2. The precautionary safety measures shall be appropriate, reasonable, and cost-effective for the work of which the owner or operator of high-voltage lines has received notification. During mutual negotiations, the person responsible for the work may change the notification of intended work to include different or limited work so as to reduce the precautionary safety measures required to accommodate such work. The precautionary safety measures shall not violate the requirements of the current edition of the National Electrical Safety Code.
  3. The owner or operator of the high-voltage lines is not required to provide the precautionary safety arrangements until an agreement for payment has been made; except that, if the amount of payment is in dispute, the owner or operator shall commence with providing precautionary safety measures as if agreement had then been reached and the undisputed amount shall be paid according to the agreement reached as to that amount. If agreement for payment of the disputed amount has not been reached within 14 days from completion of precautionary safety measures, the owner or operator and the person or business entity responsible for doing the work may resolve the dispute by arbitration or other legal means.
  4. Unless otherwise agreed, the owner or operator of the high-voltage lines shall initiate the precautionary safety arrangements agreed upon within five working days after the agreement for payment has been reached as required in subsection (c) of this section, but no earlier than the agreed construction date coordinated between the parties. Once initiated, the owner or operator shall complete the work promptly and without interruption, consistent with the owner's or operator's service needs. Should the owner or operator of the high-voltage lines fail to provide the precautionary safety measures agreed upon in a timely manner, the owner or operator of the high-voltage lines shall be liable for costs or loss of production of the person or business entity requesting assistance to work in close proximity to high-voltage lines, except that no such liability shall exist during times of emergency, such as storm repair and the like.
  5. Precautionary safety arrangements may include:
    1. Placement of temporary mechanical barriers separating and preventing contact between material, equipment, other objects, or persons and high-voltage lines;
    2. Temporary de-energization and grounding;
    3. Temporary relocation or raising of the high-voltage lines; or
    4. Other such measures found to be appropriate in the judgment of the owner or operator of the high-voltage lines.
  6. The actual expense incurred by any owner or operator of high-voltage lines in taking precautionary measures as set out in subsections (a) through (e) of this section, including the wages of its workers involved in making safety arrangements, shall be paid by the person responsible for the work to be done, except if:
    1. Any owner or operator of an overhead high-voltage line has located its facilities within a public highway or street right-of-way and the work is performed by or for the Department of Transportation or a city, county, or town, the actual expenses shall be the responsibility of the owner or operator of the overhead high-voltage lines, unless the owner or operator can provide evidence of prior rights or there is a prior written agreement specifying cost responsibility. However, if it is determined by the Department of Transportation or a city, county, or town that the temporary safety arrangements are for the sole convenience of its contractor, the actual expense shall be the responsibility of the contractor;
    2. The owner or operator of the high-voltage lines has not installed the line in conformance with an applicable edition of the National Electrical Safety Code. In that case, the liability of the person responsible for the work shall be limited to the amount required to accommodate the work over and above the amount required to bring the installation into compliance with the National Electrical Safety Code; or
    3. In the case of property used for residential purposes, such actual expenses shall be limited to those in excess of one thousand dollars ($1,000).

History

(1995 (Reg. Sess., 1996), c. 587, s. 1.)

§ 95-229.11. Exemptions.

  1. This Article shall not apply to the construction, reconstruction, operation, and maintenance of overhead electrical or communication circuits or conductors and their supporting structures and associated equipment of the following systems, provided that such work on any of the following systems is performed by the employees of the owner or operator of the systems or independent contractors engaged on behalf of the owner or operator of the systems to perform the work, and the owner of the system has a valid joint-use contract or agreement with the owner of the high-voltage lines:
    1. Rail transportation systems;
    2. Electrical generating, transmission, or distribution systems;
    3. Communications systems, including cable television; or
    4. Any other publicly or privately owned system, including traffic signals.
  2. This Article also shall not apply to electrical or communications circuits or conductors on the premises of coal or other mines which are subject to the provisions of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 801, et seq.) and regulations adopted pursuant to that Act by the Mine Safety and Health Administration.

History

(1995 (Reg. Sess., 1996), c. 587, s. 1.)

§ 95-229.12. Application.

Nothing in this Article shall relieve any person from complying with any safety rule, regulation, or statute not imposed by this Article. A violation of this Article shall not constitute negligence or contributory negligence, nor give rise to any cause of action based upon injury to persons or property. An action may be brought by an owner or operator of a high-voltage line to recover the cost of precautionary safety arrangements or for damage to its facilities. Nothing contained in this Article shall be construed to alter, amend, restrict, or limit the liability of any person for violation of that person's duty under law; nor shall any person be relieved from liability as a result of violations of standards under existing law where such violations of existing standards of care are found to be a cause of damage to property, personal injury, or death.

History

(1995 (Reg. Sess., 1996), c. 587, s. 1.)

§ 95-229.13. Severability.

The provisions of this Article are severable. If any part of this Article is declared invalid or unconstitutional, such declaration shall not affect the remainder.

History

(1995 (Reg. Sess., 1996), c. 587, s. 1.)

ARTICLE 20. Controlled Substance Examination Regulation.

Sec.

§ 95-230. Purpose.

The General Assembly finds that individuals should be protected from unreliable and inadequate examinations and screening for controlled substances. The General Assembly also finds that employers who test employees for controlled substances shall use reliable and minimally invasive examinations and screenings and be afforded the opportunity to select from a range of cost-effective and advanced drug testing technologies. The purpose of this Article is to establish procedural and other requirements for the administration of controlled substance examinations.

History

(1991, c. 687, s. 1; 2001-487, s. 66(a).)

CASE NOTES

Applied in Jones v. Graham County Bd. of Educ., 197 N.C. App. 279, 677 S.E.2d 171 (2009).

Cited in Garner v. Rentenbach Constructors Inc., 350 N.C. 573, 515 S.E.2d 438 (1999).


§ 95-231. Definitions.

As used in this Article, unless the context clearly requires otherwise:

  1. "Approved laboratory" means a clinical chemistry laboratory which performs controlled substances testing and which has demonstrated satisfactory performance in the forensic urine drug testing programs of the United States Department of Health and Human Services or the College of American Pathologists for the type of tests and controlled substances being evaluated.
  2. "Controlled substance" is as defined in G.S. 90-87(5) or a metabolite thereof.
  3. "Controlled substance examination" means all actions related to drug testing for the purpose of determining if an examinee has used controlled substances.
  4. "Examiner" means a person, firm, or corporation, doing business in the State, including State, county, and municipal employers, who is the employer or prospective employer of the examinee and who performs or has performed by an approved laboratory a controlled substance examination.
  5. "Examinee" means an individual who is an employee of the examiner or an applicant for employment with the examiner and who is requested or required by an examiner to submit to a controlled substance examination.
  6. "Screening" means initial controlled substance examination performed for the purpose of determining use of controlled substances by an examinee.

History

(1991, c. 687, s. 1; 1993, c. 213, s. 1.)

CASE NOTES

Cited in Garner v. Rentenbach Constructors Inc., 350 N.C. 573, 515 S.E.2d 438 (1999).


§ 95-232. Procedural requirements for the administration of controlled substance examinations.

  1. An examiner who requests or requires an examinee to submit to a controlled substance examination shall comply with the procedural requirements set forth in this section.
  2. Collection of samples: the collection of samples for examination or screening shall be performed under reasonable and sanitary conditions. Individual dignity shall be preserved to the extent practicable. Samples shall be collected in a manner reasonably calculated to prevent substitution of samples and interference with the collection, examination, or screening of samples. Samples for prospective or current employees may be collected on-site or at an approved laboratory.
  3. Screening test of samples:
    1. Prospective employees: a preliminary screening procedure that utilizes a single-use test device may be used for prospective employees.
    2. Current employees: the screening test of samples for current employees shall only be performed by an approved laboratory.
  4. Confirmation test of samples: if a screening test for a prospective employee produces a positive result, an approved laboratory shall confirm that result by a second examination of the sample utilizing gas chromatography with mass spectrometry or an equivalent scientifically accepted method, unless the examinee signs a written waiver at the time or after they receive the preliminary test result. All screening tests for current employees that produce a positive result shall be confirmed by a second examination of the sample utilizing gas chromatography with mass spectrometry or an equivalent scientifically accepted method.
  5. Retention of samples: a portion of every sample that produces a confirmed positive examination result shall be preserved by the laboratory that conducts the confirmatory examination for a period of at least 90 days from the time the results of the confirmed positive examination are mailed or otherwise delivered to the examiner.
  6. Chain of custody: the examiner or his agent shall establish procedures regarding chain of custody for sample collection and examination to ensure proper record keeping, handling, labeling, and identification of examination samples.
  7. Retesting of positive samples: the examinee shall have the right to retest a confirmed positive sample at the same or another approved laboratory. The examiner, through the approved laboratory, shall make confirmed positive samples available to the affected examinee, or a designated agent, during the time which the sample is required to be retained. The examinee must request release of the sample in writing specifying to which approved laboratory the sample is to be sent. The examinee incurs all reasonable expenses for chain of custody procedures, shipping, and retesting of positive samples related to this request.

History

(1991, c. 687, s. 1; 1993, c. 213, s. 2; 1995, c. 383, s. 1; 2006-264, s. 52(a); 2009-535, s. 1.)

Effect of Amendments. - Session Laws 2006-264, s. 52(a), effective August 27, 2006, added the last sentence in subsection (b); rewrote subsection (c); and in subsection (c1), inserted "if a preliminary screening procedure or other screening test produces a positive result," near the beginning, and substituted "that result" for "any sample that produces a positive result."

Session Laws 2009-535, s. 1, effective August 28, 2009, in subsection (c1), in the first sentence, substituted "if a screening test for a prospective employee produces" for "if a preliminary screening procedure or other screening test produces" and added "unless the examinee signs a written waiver at the time or after they receive the preliminary test result" at the end, and, added the second sentence.

CASE NOTES

Effect of Unknowing Use of Nonapproved Laboratory on Discharge of Employee. - The termination of plaintiff's employment based on a positive reading of a drug test did not constitute a wrongful discharge in violation of this section, and failure to use an approved laboratory did not automatically trigger the public policy exception to the employment-at-will doctrine, where plaintiff failed to demonstrate that defendant/employer knew that the laboratory did not qualify as an approved laboratory. Garner v. Rentenbach Constructors Inc., 350 N.C. 573, 515 S.E.2d 438 (1999).


§ 95-233. No duty to examine.

Nothing in this Article shall be construed to place a duty on examiners to conduct controlled substance examinations.

History

(1991, c. 687, s. 1.)

§ 95-234. Violation of controlled substance examination regulations; civil penalty.

  1. Any examiner who violates the provisions of this Article shall be subject to a civil penalty of up to two hundred fifty dollars ($250.00) per affected examinee with the maximum not to exceed one thousand dollars ($1,000) per investigation by the Commissioner of Labor or his authorized representative. In determining the amount of the penalty, the Commissioner shall consider:
    1. The appropriateness of the penalty for the size of the business of the employer charged; and
    2. The gravity of the violation.
  2. The amount of the penalty when finally determined may be recovered in a civil action brought by the Commissioner in the General Court of Justice.
  3. The clear proceeds of civil penalties provided for in this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.
  4. Assessment of penalties under this section shall be subject to a two-year statute of limitations commencing at the time of the occurrence of the violation.
  5. The Commissioner of Labor may adopt, modify, or revoke such rules as are necessary for carrying out the provisions of this Article. The rules adopted shall promote individual dignity and privacy while not posing an undue burden on employers.

The determination by the Commissioner shall be final, unless within 15 days after receipt of notice thereof by certified mail with return receipt, by signature confirmation as provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person charged with the violation takes exception to the determination, in which event final determination of the penalty shall be made in an administrative proceeding pursuant to Article 3 of Chapter 150B and which final determination shall be subject to judicial review in a judicial proceeding pursuant to Article 4 of Chapter 150B.

History

(1991, c. 687, s. 1; 1993, c. 213, s. 3; 1998-215, s. 113; 2003-308, s. 7; 2007-231, s. 11.)

Effect of Amendments. - Session Laws 2007-231, s. 11, effective July 18, 2007, in the second paragraph of subsection (a), substituted "with return receipt, by signature confirmation as provided by the U.S. Postal Service" for "or" and inserted "or via hand delivery."

CASE NOTES

Cited in Garner v. Rentenbach Constructors Inc., 350 N.C. 573, 515 S.E.2d 438 (1999).


§ 95-235. Certain federal agencies exempted.

The provisions of this Article shall not apply to a controlled substance examination required by the United States Department of Transportation or the United States Nuclear Regulatory Commission.

History

(1993, c. 213, s. 4.)

§§ 95-236 through 95-239: Reserved for future codification purposes.

ARTICLE 21. Retaliatory Employment Discrimination.

Sec.

§ 95-240. Definitions.

The following definitions apply in this Article:

  1. "Person" means any individual, partnership, association, corporation, business trust, legal representative, the State, a city, town, county, municipality, local agency, or other entity of government.
  2. "Retaliatory action" means the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.

History

(1991 (Reg. Sess., 1992), c. 1021, s. 1.)

Legal Periodicals. - For note on workers' compensation and retaliatory discharge, see 58 N.C.L. Rev. 629 (1980).

For survey of 1982 law on workers' compensation, see 61 N.C.L. Rev. 1243 (1983).

For article on the doctrine of wrongful discharge in North Carolina and the need for reform, see 10 Campbell L. Rev. 217 (1988).

For article, "North Carolina Employment Law After Coman : Reaffirming Basic Rights in the Workplace," see 24 Wake Forest L. Rev. 905 (1989).

For note, "Coman v. Thomas Manufacturing Co.: Recognizing a Public Policy Exception to the At-Will Employment Doctrine," see 68 N.C.L. Rev. 2278 (1990).

For article, "An Analysis of the Retaliatory Employment Discrimination Act and Protected Activity under the Occupational Safety and Health Act of North Carolina," see 15 Campbell L. Rev. 29 (1992).

For article, "The Preferred Preferences in Employment Discrimination Law,” see 97 N.C.L. Rev. 91 (2018).

CASE NOTES

Commissioner of Labor Not a Citizen for Diversity Purposes. - The Commissioner of Labor, in carrying out his statutory duties on behalf of the State, is the alter ego of the State and as such cannot be considered a citizen for diversity purposes. Commissioner of Labor v. Dillard's, Inc., 83 F. Supp. 2d 622 (M.D.N.C. 2000).

Former Employees Not Protected. - "Former employees" are not within the class of persons protected by the Retaliatory Employment Discrimination Act, G.S. 95-240 et seq. Ciancia v. Mission Hosps., Inc., - F. Supp. 2d - (W.D.N.C. Dec. 28, 2005).

Because plaintiff was not an "employee" at the time the employer committed the acts of which plaintiff complained, plaintiff was not protected by the Retaliatory Employment Discrimination Act (REDA), G.S. 95-240 et seq., and the employer's motion to dismiss plaintiff's REDA claim was granted. Ciancia v. Mission Hosps., Inc., - F. Supp. 2d - (W.D.N.C. Dec. 28, 2005).

"Adverse Employment Action." - The failure to renew an employment contract constitutes an adverse employment action for purposes of REDA. Johnson v. Trustees of Durham Technical Community College, 139 N.C. App. 676, 535 S.E.2d 357 (2000).

Employee's retaliation claim failed since the employee failed to prove that the supervisor who decided to terminate the employee knew about a complaint he filed with the state's department of occupational safety after being injured on the job. Brown v. Sears Auto. Ctr., 222 F. Supp. 2d 757 (M.D.N.C. 2002).

Nondiscriminatory Reason for Termination. - Employer was entitled to summary judgment in an action under the American with Disabilities Act, 42 U.S.C.S. § 12101 et seq., and the North Carolina Retaliatory Employment Discrimination Act, G.S. 95-240 et seq., because the employee, the director of food and housekeeping services, offered no evidence to dispute the employer's contention that, at the time of the employee's discharge, the designated menu was not being following, food was not being stored or labeled property, and poor quality food was being served. Thus, there was not a genuine issue of material fact regarding the adequacy of the employee's performance. Sherwin v. Pinehurst Assisted Living Ret. Cmty., L.L.C., - F. Supp. 2d - (E.D.N.C. May 22, 2012).

Federal Court Removal. - Although removal of a claim brought pursuant to the North Carolina Retaliatory Employment Discrimination Act (REDA), G.S. 9-240 et seq., was in violation of 28 U.S.C.S. § 1445(c), since it arose under North Carolina's workers' compensation laws, such violations were procedural, and plaintiff former employee had not timely sought a remand for a procedural defect in his motion; plaintiff's reference to REDA in setting forth his argument as to the jurisdictional amount did not suffice to raise a U.S.C.S. § 1445(c) objection Lunsford v. Cemex, Inc., 733 F. Supp. 2d 652 (M.D.N.C. 2010).

Matters Within Scope of Discovery. - In a wrongful termination suit, the trial court did not abuse its discretion by ordering plaintiff's production of requested medical records for a period beginning five years prior to service of the discovery request because by claiming emotional distress, she impliedly waived the patient-physician privilege when she brought an action which placed her medical condition at issue. Young v. Kimberly-Clark Corp., 219 N.C. App. 172, 724 S.E.2d 552 (2012).

In a wrongful termination suit, the trial court did not abuse its discretion by ordering plaintiff to identify "all persons having knowledge or information relating to the subject matter of this action, including persons contacted by plaintiff or her counsel" as the identification of a person is clearly not a document or tangible thing, which was prepared in anticipation of litigation or for trial, and by or for another party or its representatives which may include an attorney, consultant agent and since the trial court's order did not require the production of any witness statements which may have been taken by plaintiff's counsel or any information at all beyond identification of the persons contacted, there was no abuse of discretion. Young v. Kimberly-Clark Corp., 219 N.C. App. 172, 724 S.E.2d 552 (2012).

Matters Relevant to Claims and Defenses Within Scope of Discovery. - In a wrongful termination suit, the trial court did not abuse its discretion by ordering plaintiff's production of requested medical records for a period beginning five years prior to service of the discovery request because by claiming emotional distress, she waived the patient-physician privilege when she brought an action which placed her medical condition at issue. Young v. Kimberly-Clark Corp., 219 N.C. App. 172, 724 S.E.2d 552 (2012).

In a wrongful termination suit, the trial court did not abuse its discretion by ordering plaintiff's production of her federal and state income tax returns because information regarding her earnings was entirely relevant to the subject matter involved in the pending action as it related to both the defense of the party seeking discovery, specifically defendant's defense of mitigation of damages, and to the claim of any other party, specifically plaintiff's claim for loss of past and future earnings Young v. Kimberly-Clark Corp., 219 N.C. App. 172, 724 S.E.2d 552 (2012).

State department of labor's finding that there was reasonable cause to support the employee's claim of retaliation, while probative, did not bind the court to the same conclusion. Brown v. Sears Auto. Ctr., 222 F. Supp. 2d 757 (M.D.N.C. 2002).

Summary Judgment Denied. - Summary judgment on action brought under North Carolina Retaliatory Employment Discrimination Act was denied because the accident occurred on October 31, 2008, but the company did not immediately terminate the employee, instead terminating him on November 6, 2008, only two days after the company's doctor confirmed the employee had been injured and restricted him to light-duty work. Webb v. K.R. Drenth Trucking, Inc., 780 F. Supp. 2d 409 (W.D.N.C. 2011).

Cited in Pineda-Lopez v. N.C. Growers Ass'n, 151 N.C. App. 587, 566 S.E.2d 162 (2002); Johnson v. Bd. of Trs. of Durham Tech. Cmty. College, 157 N.C. App. 38, 577 S.E.2d 670 (2003); Wiley v. UPS, Inc., 164 N.C. App. 183, 594 S.E.2d 809 (2004); Whitings v. Wolfson Casing Corp., 173 N.C. App. 218, 618 S.E.2d 750 (2005); McDowell v. Cent. Station Original Interiors, Inc., 211 N.C. App. 159, 712 S.E.2d 251 (2011); Pierce v. Atl. Group, Inc., 219 N.C. App. 19, 724 S.E.2d 568 (2012).


§ 95-241. Discrimination prohibited.

  1. No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following:
    1. File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following:
      1. Chapter 97 of the General Statutes.
      2. Article 2A or Article 16 of this Chapter.
      3. Article 2A of Chapter 74 of the General Statutes.
      4. G.S. 95-28.1.
      5. Article 16 of Chapter 127A of the General Statutes.
      6. G.S. 95-28.1A.
      7. Article 52 of Chapter 143 of the General Statutes.
      8. Article 5F of Chapter 90 of the General Statutes.
    2. Cause any of the activities listed in subdivision (1) of this subsection to be initiated on an employee's behalf.
    3. Exercise any right on behalf of the employee or any other employee afforded by Article 2A or Article 16 of this Chapter, by Article 2A of Chapter 74 of the General Statutes, or by Article 52 of Chapter 143 of the General Statutes.
    4. Comply with the provisions of Article 27 of Chapter 7B of the General Statutes.
    5. Exercise rights under Chapter 50B. Actions brought under this subdivision shall be in accordance with the provisions of G.S. 50B-5.5.
  2. It shall not be a violation of this Article for a person to discharge or take any other unfavorable action with respect to an employee who has engaged in protected activity as set forth under this Article if the person proves by the greater weight of the evidence that it would have taken the same unfavorable action in the absence of the protected activity of the employee.

History

(1991 (Reg. Sess., 1992), c. 1021, s. 1; 1993, c. 423, s. 1; 1997-153, s. 7; 1997-350, s. 3; 1998-202, s. 7; 1999-423, s. 4; 2004-186, s. 18.2; 2008-212, s. 1; 2009-205, s. 2.)

Effect of Amendments. - Session Laws 2008-212, s. 1, effective August 11, 2008, added subdivision (a)(1)g; and in subdivision (a)(3), added "or by Article 52 of Chapter 143 of the General Statutes," and made a related change.

CASE NOTES

The public policy behind former G.S. 97-6.1 was to promote an open environment in which employees could pursue their remedies under the Workers' Compensation Act without the fear of retaliation from their employers. Abels v. Renfro Corp., 108 N.C. App. 135, 423 S.E.2d 479 (1992), rev'd on other grounds, 355 N.C. 209, 436 S.E.2d 822 (1993) (decided under former § 97-6.1)

Public Policy. - Trial court erred in dismissing a former employee's claim for wrongful discharge in violation of public policy against her former employer, a county sheriff, for lack of subject matter jurisdiction, even though the employee's right-to-sue letter named the "Sheriff's Department" as a party, because the complaint's allegations, claims, and prayer for relief indicated the sheriff was sued in his official capacity, which was synonymous with a suit against the sheriff's department; the employee asserted she was discharged in violation of the public policy set out in G.S. 95-241(a)(1)(a). White v. Cochran, 216 N.C. App. 125, 716 S.E.2d 420 (2011).

Wrongful Discharge Claim Based on Retaliation Must be Brought Under Retaliatory Employment Discrimination Act. - While an employee's wrongful discharge claim would proceed, it could not be based on her allegations of retaliation, unless she could plausibly allege that she was proceeding under the Retaliatory Employment Discrimination Act, codified at G.S. 95-241. Keener v. Universal Cos., - F. Supp. 2d - (M.D.N.C. Sept. 1, 2015).

Burden of Proof. - To prove a North Carolina's Retaliatory Employment Discrimination Act case, a plaintiff must show that: (1) he had a workers' compensation claim, (2) defendant took an adverse employment action against him, (3) the workers' compensation claim was a substantial factor in whatever adverse employment action was taken against him, and (4) the adverse action would not have occurred in the absence of the employer's knowledge of the claim. Lilly v. Mastec N. Am., Inc., 302 F. Supp. 2d 471 (M.D.N.C. 2004).

Where plaintiff did not initiate an inquiry under G.S. 95-241(a) when he submitted a proposed plan that would have provided certification of the crane operators in compliance with an upcoming regulatory change and complained about his concerns regarding the certification of riggers; plaintiff's call to defendant one's ethics hotline was to report the retaliatory treatment he was receiving, not to report a concern about occupational health and safety in the context of his employment under the Occupational Safety and Health Act of North Carolina, G.S. 95-126 et seq. Pierce v. Atl. Group, Inc., 219 N.C. App. 19, 724 S.E.2d 568 (2012).

Former employee's claims under Title VII of the Civil Rights Act of 1964, the Fair Labor Standards Act, the North Carolina Equal Employment Practices Act, the North Carolina Retaliatory Employment Discrimination Act, for declaratory relief, compensatory and punitive damages, costs, and attorneys fees, were dismissed under U.S. Const. amend. XI. The complaint did not state a claim for violation of public policy under G.S. 95-241. Johnson v. North Carolina, - F. Supp. 2d - (W.D.N.C. Oct. 17, 2012).

Treatment of Similarly Situated Employees. - In an employee discharge case instituted pursuant to former G.S. 97-6.1 (see now this section), evidence of the employer's treatment of similarly situated employees is admissible to show the employer's motive for discharging the employee. Abels v. Renfro Corp., 335 N.C. 209, 436 S.E.2d 822 (1993).

Even if the former employee raised an inference of a causal connection between the employee's workers' compensation claims and the termination of employment, the employer established its affirmative defense under G.S. 95-241(b) that the employee would have been terminated regardless of the workers' compensation claims, based on the evidence indicating that the employer's policy of terminating employees after a year's absence, of which the employee was aware, was consistently applied. Wilkerson v. Pilkington N. Am., Inc., 211 F. Supp. 2d 700 (M.D.N.C. 2002).

Removal to Federal Court Improper. - The provisions of this section relating to worker's compensation "arise under" the worker's compensation laws for purposes of 28 U.S.C.S. § 1445(c) and, therefore, the removal to federal court of a case alleging a violation of this section was improper. Arnett v. Leviton Mfg., Inc., 174 F. Supp. 2d 410 (W.D.N.C. 2001).

Employee's state law retaliation claim was remanded to state court because the federal court decided that the claim was so integrally related to state workers compensation law, that it arose under the state retaliatory employment discrimination act, G.S. 95-241 et seq., rather than 28 U.S.C.S. § 1445(c). Wiley v. UPS, 227 F. Supp. 2d 480 (M.D.N.C. 2002).

Under 28 U.S.C.S. § 1445(c), an employee's state law claims for wrongful discharge and violation of the North Carolina Retaliatory Employment Discrimination Act, G.S. 95-241(a), could not be properly removed to a federal district court because the employee's claim that she was discriminated in retaliation for filing a workmen's compensation claim arose under workers' compensation laws. Laing v. Fed. Express Corp., - F. Supp. 2d - (W.D.N.C. Sept. 14, 2011).

Federal Supplemental Jurisdiction. - Supplemental jurisdiction would not be exercised over plaintiff's claim under the North Carolina Retaliatory Discharge Act, G.S. 95-240 et seq., because the question of whether the language in G.S. 95-241(a) created a "but for" standard of causation was a novel issue of state law that had not been addressed by the North Carolina Supreme Court or the North Carolina Court of Appeals. Roberson v. Paul Smith, Inc., - F. Supp. 2d - (E.D.N.C. Apr. 20, 2011).

No Violation of Section Found. - No genuine issue of material fact existed as to whether defendant college took retaliatory action against plaintiff disabled teacher, in violation of this section, where the defendant entered into three new contracts with plaintiff after she filed a workers' compensation claim, and defendant's refusal to renew plaintiff's contract was not closely temporally related to her worker's compensation claim in that it took place over a year after she filed for compensation. Johnson v. Trustees of Durham Technical Community College, 139 N.C. App. 676, 535 S.E.2d 357 (2000).

Former employee failed to show any causal connection between the workers' compensation claims and the employee's termination, since the substantial period between the employee's final claim and the termination lacked the temporal proximity required to raise an inference that the termination was retaliatory. Wilkerson v. Pilkington N. Am., Inc., 211 F. Supp. 2d 700 (M.D.N.C. 2002).

Court of appeals upheld trial court's judgment dismissing an employee's claims that an employer wrongfully terminated the employee because the employee filed a workers' compensation claim and because the employee was an advocate for a nursing home's patients' rights; the employee's claims were speculative and did not present a triable issue of fact. Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 575 S.E.2d 46 (2003).

Where an employer did not have to make an accommodation for an employee, the failure to return the employee to work was not an adverse employment action under G.S. 95-241(a)(1a), and the employee could not demonstrate that the alleged retaliatory action was taken; therefore, the employer was properly granted summary judgment under G.S. 1A-1, N.C. R. Civ. P. 56(c). Wiley v. UPS, Inc., 164 N.C. App. 183, 594 S.E.2d 809 (2004).

There were no genuine issues of material fact that precluded summary judgment on a claim under G.S. 95-241(a) of the Retaliatory Employment Discrimination Act, as despite the employee's prima facie case, he failed to overcome the employer's evidence that deficient job performance led to his termination. Fatta v. M & M Props. Mgmt., 221 N.C. App. 369, 727 S.E.2d 595 (2012), review denied, 735 S.E.2d 182, 2012 N.C. LEXIS 1197 (2012), review denied, 743 S.E.2d 182, 2013 N.C. LEXIS 520 (2013).

Settlement Negotiations Included Within Protection of North Carolina Retaliatory Employment Discrimination Act. - All aspects of a workers' compensation proceeding are included in the statute, including claims, complaints, inquiries, investigations, inspections, proceedings, other actions, and testifying. Thus, negotiating a settlement falls within the protection of the North Carolina Retaliatory Employment Discrimination Act, and a former employee presented facts sufficient to survive summary judgment on his retaliation claim where he showed that his employer may have conditioned his acceptance of a worker's compensation settlement with a resignation from his job and where he showed that he was told he should stop trying to get his job back because he received as much from his former employer in the settlement as he would receive. Lilly v. Mastec N. Am., Inc., 302 F. Supp. 2d 471 (M.D.N.C. 2004).

Workers' Compensation Claim - Pursuing one's rights under the North Carolina Workers' Compensation Act, G.S. 97-1 et seq., is a legally protected activity under G.S. 95-241(a)(1)a.; public policy is violated for purposes of the public policy exception to the at-will employment doctrine when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes, and the statutory remedy available for violation of this public policy does not diminish the rights or remedies of any employee at common law under G.S. 95-244. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757 (2003).

Dismissal of the employee's claim for wrongful discharge in violation of public policy and her claim under North Carolina's Retaliatory Employment Discrimination Act (REDA), G.S. 95-240 et. seq., was reversed because the employee provided evidence that established that the employer admitted the employee was terminated for pursuing workers' compensation rights. Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C. App. 504, 593 S.E.2d 808 (2004), cert. denied, 358 N.C. 739, 603 S.E.2d 126 (2004).

Pertinent inquiry under the Seagraves test is not focused on determining whether an employer may fire an injured employee for misconduct unrelated to his injuries; it is clear that an employer may do so pursuant to G.S. 95-241(b). Rather, the relevant question is determining whether, upon firing an injured employee for such misconduct, an employer can nevertheless be held responsible for continuing to pay injury benefits to the terminated employee. McRae v. Toastmaster, Inc., 358 N.C. 488, 597 S.E.2d 695 (2004).

Decision of the North Carolina Industrial Commission, finding that a claimant was terminated from his employment due to his disability, was upheld on appeal because the employer failed to show that the claimant made threats at work to have justified his termination. Workman v. Rutherford Elec. Mbrshp. Corp., 170 N.C. App. 481, 613 S.E.2d 243 (2005).

Seventy-day period between an employee's filing of a workers' compensation claim and his termination from his employer was not insufficient as a matter of law, nor was it short enough alone to constitute a prima facie case; such a time period failed to show close temporal proximity for a North Carolina Retaliatory Employment Discrimination Act claim, under G.S. 95-241, as a matter of law. Smith v. Computer Task Group, Inc., 568 F. Supp. 2d 603 (M.D.N.C. July 22, 2008).

Trial court did not err in denying a sheriff and a surety summary judgment in a former employee's action asserting retaliatory termination because the sheriff clearly received notice of the employee's claim in a form consistent with that required by the liability insurance policy the county had purchased. White v. Cochran, 229 N.C. App. 183, 748 S.E.2d 334 (2013).

Trial court did not err in denying a sheriff and a surety summary judgment in a former employee's action asserting retaliatory termination because the sheriff waived governmental immunity; the claims asserted in the complaint did not constitute an Equal Employment Opportunity Commission or similar state proceeding for purposes of the liability insurance policy the county had purchaser, which excluded EEOC proceedings from coverage. White v. Cochran, 229 N.C. App. 183, 748 S.E.2d 334 (2013).

Wrongful Discharge Claim Sufficiently Alleged. - Plaintiffs sufficiently alleged a wrongful discharge claim where they alleged that they were fired: (1) for photographing and complaining about unsafe working conditions in violation of G.S. 95-241(a)(1)b. and G.S. 95-126(2); (2) for engaging in union activities in violation of G.S. 95-81; (3) in retaliation for filing discrimination grievances under G.S. 95-151; (4) in violation of their N.C. Const., Art. I, §§ 14 and 19 rights; and (5) based in part on race. Bigelow v. Town of Chapel Hill, 227 N.C. App. 1, 745 S.E.2d 316, review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 806 (2013).

Summary Judgment Inappropriate - Where the employee was allegedly fired for reporting violations to Occupational Safety and Health Administration and the Environmental Protection Agency, and there were issues of fact as to whether there was a causal connection between the protected activity and his firing, which was allegedly a retaliatory discharge in violation of the Retaliatory Employment Discrimination Act, G.S. 95-241, summary judgment was inappropriate. Bumgardner v. Spotless Enters., 287 F. Supp. 2d 630 (W.D.N.C. 2003).

In a retaliatory discharge claim under G.S. 95-241(a), the trial court erred when it granted the employer's motion for summary judgment, as there was a genuine issue of material fact where the employer claimed the employee was terminated for excessive absences, but the employee presented evidence that the employee was terminated due to the employee's "health claim." McDowell v. Cent. Station Original Interiors, Inc., 211 N.C. App. 159, 712 S.E.2d 251 (2011).

Summary judgment on action brought under North Carolina Retaliatory Employment Discrimination Act was denied because the accident occurred on October 31, 2008, but the company did not immediately terminate the employee, instead terminating him on November 6, 2008, only two days after the company's doctor confirmed the employee had been injured and restricted him to light-duty work. Webb v. K.R. Drenth Trucking, Inc., 780 F. Supp. 2d 409 (W.D.N.C. 2011).

Trial court did not err in denying a sheriff and a surety summary judgment in a former employee's action asserting retaliatory termination because the sheriff waived governmental immunity by purchasing an official bond; the employee's claim, if supported by adequate proof, came within the scope of the sheriff's official duties because she alleged that the sheriff wrongfully terminated her employment in retaliation for her decision to file a workers' compensation claim. White v. Cochran, 229 N.C. App. 183, 748 S.E.2d 334 (2013).

Summary Judgment Appropriate. - Trial court properly granted an employer's motion for summary judgment in an employee's action, alleging claims under G.S. 95-241(a) of the Retaliatory Employment Discrimination Act, as the employee failed to establish a causal connection between the alleged retaliatory action and his exercise of the protected activity, which was filing a worker's compensation claim. Fatta v. M & M Props. Mgmt., 221 N.C. App. 369, 727 S.E.2d 595 (2012).

Applied in Ciancia v. Mission Hosps., Inc., - F. Supp. 2d - (W.D.N.C. Dec. 28, 2005).

Cited in Abels v. Renfro Corp., 126 N.C. App. 800, 486 S.E.2d 735 (1997); Commissioner of Labor v. Dillard's, Inc., 83 F. Supp. 2d 622 (M.D.N.C. 2000); Smallwood v. Perdue Farms, Inc., - F. Supp. 2d - (E.D.N.C. Feb. 21, 2000); Hodge v. N.C. DOT, 246 N.C. App. 455, 784 S.E.2d 594 (2016).


§ 95-242. Complaint; investigation; conciliation.

  1. An employee allegedly aggrieved by a violation of G.S. 95-241 may file a written complaint with the Commissioner of Labor alleging the violation. The complaint shall be filed within 180 days of the alleged violation. Within 20 days following receipt of the complaint, the Commissioner shall forward a copy of the complaint to the person alleged to have committed the violation and shall initiate an investigation. If the Commissioner determines after the investigation that there is not reasonable cause to believe that the allegation is true, the Commissioner shall dismiss the complaint, promptly notify the employee and the respondent, and issue a right-to-sue letter to the employee that will enable the employee to bring a civil action pursuant to G.S. 95-243. If the Commissioner determines after investigation that there is reasonable cause to believe that the allegation is true, the Commissioner shall attempt to eliminate the alleged violation by informal methods which may consist of conference, conciliation, and persuasion. The Commissioner shall make a determination as soon as possible and, in any event, not later than 90 days after the filing of the complaint.
  2. If the Commissioner is unable to resolve the alleged violation through the informal methods, the Commissioner shall notify the parties in writing that conciliation efforts have failed. The Commissioner shall then either file a civil action on behalf of the employee pursuant to G.S. 95-243 or issue a right-to-sue letter to the employee enabling the employee to bring a civil action pursuant to G.S. 95-243.
  3. The Commissioner may reopen an investigation under this Article for good cause shown within 30 days of receipt of the right-to-sue letter. If an investigation is reopened pursuant to this section, the 90 - day time limit set forth in G.S. 95-243(b) shall not commence until the new investigation is complete and either a new right-to-sue letter is issued or the Commissioner notifies the parties in writing that conciliation efforts have failed.
  4. An employee may make a written request to the Commissioner for a right-to-sue letter after 90 days following the filing of a complaint if the Commissioner has not issued a notice of conciliation failure and has not commenced an action pursuant to G.S. 95-242.
  5. Nothing said or done during the use of the informal methods described in subsection (a) of this section may be made public by the Commissioner or used as evidence in a subsequent proceeding under this Article without the written consent of the persons concerned.
  6. The Commissioner's files and the Commissioner's other records relating to investigations and enforcement proceedings pursuant to this Article shall not be subject to inspection and examination as authorized by G.S. 132-6 while such investigations and proceedings are open or pending in the trial court division.
  7. In making inspections and investigations under this Article, the Commissioner or his duly authorized agents may, in addition to exercising the authority granted in G.S. 95-4, issue subpoenas to require the attendance and testimony of witnesses and the production of evidence under oath. Witnesses shall be reimbursed for all travel and other necessary expenses which shall be claimed and paid in accordance with the prevailing travel reimbursement requirements of the State. In the case of failure or refusal of any person to obey a subpoena under this Article, the district court judge or superior court judge of the county in which the inspection or investigation is conducted shall, upon the application of the Commissioner, have jurisdiction to issue an order requiring compliance.

History

(1991 (Reg. Sess., 1992), c. 1021, s. 1; 1993, c. 423, s. 2; 2011-366, ss. 9, 10.)

Effect of Amendments. - Session Laws 2011-366, ss. 9 and 10, effective June 27, 2011, added subsection (b1); and substituted "90 days" for "180 days" in subsection (c).

CASE NOTES

Timeliness of Claims. - Acts of the employer alleged by the former employee to be retaliatory which did not occur within 180 days of filing the written complaint as required under G.S. 95-242(a) could only be considered as evidence that the employee's termination was retaliatory and not as separate retaliatory acts in their own right. Wilkerson v. Pilkington N. Am., Inc., 211 F. Supp. 2d 700 (M.D.N.C. 2002).

Time of Determination of Merit of Complaint. - Subsection (a) requires that the Commissioner of Labor make a determination as to the merit of a complaint within 90 days, but fails to provide a result in the event that the Commissioner fails to do so; thus, this statutory time period is of a directory, not jurisdictional nature. Commissioner of Labor v. House of Raeford Farms, Inc., 124 N.C. App. 349, 477 S.E.2d 230 (1996).

Trial court properly dismissed a North Carolina Retaliatory Employment Discrimination Act, G.S. 95-240 et seq., complaint under G.S. 1A-1, Rule 12(b)(6), where the right-to-sue letter from the North Carolina Department of Labor (NCDOL) stated that the administrative complaint to the NCDOL was untimely under G.S. 95-242(a). Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757 (2003).

Time Limitation Is Mandatory. - Although there is no express statutory consequence for failing to meet the 180-day time limit set forth in G.S. 95-242(a), case law precedent indicates the limit is a mandatory one. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757 (2003).

Right-to-Sue Letter - Where an employee referred in a complaint for a violation of the North Carolina Retaliatory Employment Discrimination Act, G.S. 95-240 et seq., to the administrative complaint and/or right-to-sue letter from the North Carolina Department of Labor, which were not attached to the complaint, and they formed the procedural basis for the complaint, the trial court did not convert the employer's motion to dismiss under G.S. 1A-1, Rule 12(b)(6), into one for summary judgment under G.S. 1A-1, Rule 56 by considering the unattached documents. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757 (2003).

Applicability to Claims by North Carolina Servicemember - A North Carolina National Guard servicemember who alleged wrongful termination because of a National Guard obligation could initiate an action under the procedures set forth in the Retaliatory Employment Discrimination Act, G.S. 95. Lederer v. Hargraves Tech. Corp., 256 F. Supp. 2d 467 (W.D.N.C. 2003).

Applied in White v. Cochran, 216 N.C. App. 125, 716 S.E.2d 420 (2011).

Cited in Commissioner of Labor v. Dillard's, Inc., 83 F. Supp. 2d 622 (M.D.N.C. 2000); Arnett v. Leviton Mfg., Inc., 174 F. Supp. 2d 410 (W.D.N.C. 2001); Badgett v. Fed. Express Corp., 378 F. Supp. 2d 613 (M.D.N.C. Apr. 7, 2005); White v. Cochran, 229 N.C. App. 183, 748 S.E.2d 334 (2013).


§ 95-243. Civil action.

  1. An employee who has been issued a right-to-sue letter or the Commissioner of Labor may commence a civil action in the superior court of the county where the violation occurred, where the complainant resides, or where the respondent resides or has his principal place of business.
  2. A civil action under this section shall be commenced by an employee within 90 days of the date upon which the right-to-sue letter was issued or by the Commissioner within 90 days of the date on which the Commissioner notifies the parties in writing that conciliation efforts have failed.
  3. The employee or the Commissioner may seek and the court may award any or all of the following types of relief:
    1. An injunction to enjoin continued violation of this Article.
    2. Reinstatement of the employee to the same position held before the retaliatory action or discrimination or to an equivalent position.
    3. Reinstatement of full fringe benefits and seniority rights.
    4. Compensation for lost wages, lost benefits, and other economic losses that were proximately caused by the retaliatory action or discrimination.
  4. Parties to a civil action brought pursuant to this section shall have the right to a jury trial as provided under G.S. 1A-1, Rules of Civil Procedure.
  5. An employee may only bring an action under this section when he has been issued a right-to-sue letter by the Commissioner.

If in an action under this Article the court finds that the employee was injured by a willful violation of G.S. 95-241, the court shall treble the amount awarded under subdivision (4) of this subsection.

The court may award to the plaintiff and assess against the defendant the reasonable costs and expenses, including attorneys' fees, of the plaintiff in bringing an action pursuant to this section. If the court determines that the plaintiff's action is frivolous, it may award to the defendant and assess against the plaintiff the reasonable costs and expenses, including attorneys' fees, of the defendant in defending the action brought pursuant to this section.

History

(1991 (Reg. Sess., 1992), c. 1021, s. 1.)

CASE NOTES

Failure to Meet Delayed Service Requirements. - Statute of limitations barred plaintiff's retaliatory employment discrimination claim under this section, when he failed to meet the requirements of delayed service under G.S. 1A-1, Rule 3(a). Telesca v. SAS Inst., Inc., 133 N.C. App. 653, 516 S.E.2d 397, cert. denied, 351 N.C. 120, 540 S.E.2d 749 (1999).

Commencement of Civil Action - Under G.S. 1-52(2), a civil action must be commenced within three years upon a liability created by statute, unless some other time is mentioned in the statute creating it; G.S. 1-52(2) is inapplicable to claims under the North Carolina Retaliatory Employment Discrimination Act, G.S. 95-240 et seq. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757 (2003).

Jurisdictional Amount in Controversy. - Plaintiff former employee argued that defendant would require that damages for backpay be reduced by any unemployment benefits that he received, thus reducing his potential damages to an amount under the jurisdictional threshold; court rejected the argument since a defense could not be used at that stage to reduce the amount in controversy, and defendant former employer showed by a preponderance of the evidence that plaintiff's claims for damages for retaliatory discharge under exceeded $75,000 and plaintiff was not entitled to a remand. Lunsford v. Cemex, Inc., 733 F. Supp. 2d 652 (M.D.N.C. 2010).

Official Capacity. - Although a former employee's complaint against her former employer, a county sheriff, under the Retaliatory Employment Discrimination Act, G.S. 95-243, did not specifically identify the capacity in which the sheriff was being sued, a trial court erred in dismissing the complaint for lack of subject matter jurisdiction because the allegations in the complaint, the claims, and the prayer for relief indicated the sheriff was sued in his official capacity; although the employee's right-to-sue letter named the "Sheriff's Department" as a party, the sheriff being sued in his official capacity was synonymous with a suit against the sheriff's department. White v. Cochran, 216 N.C. App. 125, 716 S.E.2d 420 (2011).

Right-to-Sue Letter Required - Under G.S. 95-243(e), without a right-to-sue letter issued by the North Carolina Commissioner of Labor, a plaintiff may not file a civil action for an alleged violation of the North Carolina Retaliatory Employment Discrimination Act, G.S. 95-240 et seq. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757 (2003).

Time Limitation Mandatory - Ninety-day limit provided by G.S. 95-243 has been interpreted as mandatory, although the statute contains no express consequence for failure to meet the deadline; in addition, 42 U.S.C.S. § 2000e-5(e) uses similar language to describe the time for filing charges of employment discrimination under Title VII of the Civil Rights Act of 1964. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757 (2003).

Province of Jury. - North Carolina Court of Appeals holds that a determination of willfulness under the Retaliatory Employment Discrimination Act, G.S. 95-243, is a finding of fact for the jury to decide, not for the judge. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013).

Consideration of Attorney's Fees. - Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorneys' fees reduced simply because the court did not adopt each contention raised, but where the plaintiff achieved only limited success, the court should award only that amount of fees that is reasonable in relation to the results obtained when considering the allocation of attorneys' fees in a wage claim or employment retaliation suit. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013).

Attorney's Fee Award Required Further Findings of Fact. - Appellate court reversed the business court's award of attorneys' fees in an employment retaliation case and remanded the case for further findings of fact and conclusions of law regarding whether the former employee's claims arose from a common nucleus of operative fact and, thus, whether he was entitled to all of his attorneys' fees because it should not have allocated the attorneys' fees among the claims on which he was successful and those on which he was not. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013).

Willfulness Not Shown. - Business court did not err in declining a former employee's demand for a treble damages award of $390,000 under the Retaliatory Employment Discrimination Act, G.S. 95-243, because there was competent evidence to support the business court's determination that the employer did not willfully violate Retaliatory Employment Discrimination Act based on the jury rejecting the former employee's contention that he resigned and giving no opinion on the employer's belief on the former employee's employment status. Morris v. Scenera Research, LLC, 229 N.C. App. 31, 747 S.E.2d 362 (2013).

Cited in Commissioner of Labor v. Dillard's, Inc., 83 F. Supp. 2d 622 (M.D.N.C. 2000); Arnett v. Leviton Mfg., Inc., 174 F. Supp. 2d 410 (W.D.N.C. 2001); Lederer v. Hargraves Tech. Corp., 256 F. Supp. 2d 467 (W.D.N.C. 2003); Whitings v. Wolfson Casing Corp., 173 N.C. App. 218, 618 S.E.2d 750 (2005).


§ 95-244. Effect of Article on other rights.

Nothing in this Article shall be deemed to diminish the rights or remedies of any employee under any collective bargaining agreement, employment contract, other statutory rights or remedies, or at common law.

History

(1991 (Reg. Sess., 1992), c. 1021, s. 1.)

CASE NOTES

Workers' Compensation Claim Does Not Diminish Rights - Pursuing one's rights under the North Carolina Workers' Compensation Act, G.S. 97-1 et seq., is a legally protected activity under G.S. 95-241(a)(1)a.; public policy is violated for purposes of the public policy exception to the at-will employment doctrine when an employee is fired in contravention of express policy declarations contained in the North Carolina General Statutes, and the statutory remedy available for violation of this public policy does not diminish the rights or remedies of any employee at common law under G.S. 95-244. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757 (2003).

Applied in Salter v. E & J Healthcare, Inc., 155 N.C. App. 685, 575 S.E.2d 46 (2003).

Cited in Arnett v. Leviton Mfg., Inc., 174 F. Supp. 2d 410 (W.D.N.C. 2001).

§ 95-245. Rules.

The Commissioner may adopt rules needed to implement this Article pursuant to the provisions of Chapter 150B of the General Statutes.

History

(1993, c. 423, s. 3.)

CASE NOTES

Deference to Commissioner's Interpretation. - Based upon the plain language of the Retaliatory Employment Discrimination Act, G.S. 95-240 et seq., the state and federal court decisions construing the Act, and the purpose of the Act as expressed by the North Carolina Court of Appeals, the Commissioner of Labor impermissibly defined "employee" to include "former employees," and the court declined to follow the Commissioner's definition. Ciancia v. Mission Hosps., Inc., - F. Supp. 2d - (W.D.N.C. Dec. 28, 2005).

Cited in Pierce v. Atl. Group, Inc., 219 N.C. App. 19, 724 S.E.2d 568 (2012).


§§ 95-246 through 95-249: Reserved for future codification purposes.

ARTICLE 22. Safety and Health Programs and Committees.

Sec.

§ 95-250. Definitions.

The following definitions shall apply in this Article:

  1. "Experience rate modifier" means the numerical modification applied by the Rate Bureau to an experience rating for use in determining workers' compensation premiums.
  2. "Worksite" means a single physical location where business is conducted or where operations are performed by employees of an employer.

The definitions of Article 16 of this Chapter shall also apply to this Article, except that "employee" for the purposes of G.S. 95-252(a), 95-252(c)(1)b., 95-255, and 95-256 means an employee employed for some portion of a working day in each of 20 or more calendar weeks in the current or preceding calendar year.

History

(1991 (Reg. Sess., 1992), c. 962, s. 1.)

Legal Periodicals. - For comment, "From Andrews to Woodson and Beyond: The Development of the Intentional Tort Exception to the Exclusive Remedy Provision - Rescuing North Carolina Workers from Treacherous Waters," see 20 N.C. Cent. L.J. 164 (1992).

§ 95-251. Safety and health programs.

  1. Establishment of safety and health programs.
    1. Except as provided in subdivision (2) of this subsection, each employer with an experience rate modifier of 1.5 or greater shall, in accordance with this section, establish and carry out a safety and health program to reduce or eliminate hazards and to prevent injuries and illnesses to employees.
    2. Employers with an experience rate modifier of 1.5 or greater which provide temporary help services shall, in accordance with this section, establish and implement a safety and health program to reduce or eliminate hazards and to prevent injuries and illnesses to its full-time employees permanently located at the employer's worksite. Employers which provide temporary help services shall not be required to establish and implement a safety and health program under this section for its employees assigned to a client's worksite. This subdivision shall not apply to employee leasing companies.
    3. The Commissioner may modify the application of the requirements of this section to classes of employers where the Commissioner determines that, in light of the nature of the risks faced by the employees of these employers, such a modification would not reduce the employees' safety and health protection.
  2. Safety and health program requirements. A safety and health program established and implemented under this section shall be a written program that shall include at least all of the following:
    1. Methods and procedures for identifying, evaluating, and documenting safety and health hazards.
    2. Methods and procedures for correcting the safety and health hazards identified under subdivision (1) of this subsection.
    3. Methods and procedures for investigating work-related fatalities, injuries, and illnesses.
    4. Methods and procedures for providing occupational safety and health services, including emergency response and first aid procedures.
    5. Methods and procedures for employee participation in the implementation of the safety and health program.
    6. Methods and procedures for responding to the recommendations of the safety and health committee, where applicable.
    7. Methods and procedures for providing safety and health training and education to employees and to members of any safety and health committee established under G.S. 95-252.
    8. The designation of a representative of the employer who has the qualifications and responsibility to identify safety and health hazards and the authority to initiate corrective action where appropriate.
    9. In the case of a worksite where employees of two or more employers work, procedures for each employer to protect employees at the worksite from hazards under the employer's control, including procedures to provide information on safety and health hazards to other employers and employees at the worksite.
    10. Any other provisions as the Commissioner requires to effectuate the purposes of this section.
  3. No loss of pay. The time during which employees are participating in training and education activities under this section shall be considered as hours worked for purposes of wages, benefits, and other terms and conditions of employment. The training and education shall be provided by an employer at no cost to the employees of the employer.

History

(1991 (Reg. Sess., 1992), c. 962, s. 1.)

§ 95-252. Safety and health committees required.

  1. Establishment of safety and health committees. Except as provided in subsection (b) of this section, each employer with 11 or more employees and an experience rate modifier of 1.5 or greater shall provide for the establishment of safety and health committees and the selection of employee safety and health representatives in accordance with this section.
  2. Temporary help services. Temporary employees of employers which provide temporary help services shall not be counted as part of the 11 or more employees needed to establish a safety and health committee under this section, and employers which provide temporary help services shall not be required to establish a safety and health committee under this section for its employees assigned to a client's worksite. This subsection shall not apply to employee leasing companies.
  3. Safety and health committee requirements.
    1. In general. - Each employer covered by this section shall establish a safety and health committee at each worksite of the employer, except as provided as follows:
      1. An employer covered by this section whose employees do not primarily report to or work at a fixed location is required to have only one safety and health committee to represent all employees.
      2. A safety and health committee is not required at a covered employer's worksite with less than 11 employees.
      3. The Commissioner may, by rule, modify the application of this subdivision to worksites where employees of more than one employer are employed.
    2. Membership. - Each safety and health committee shall consist of:
      1. The employee safety and health representatives selected or appointed under subsection (d) of this section.
      2. As determined appropriate by the employer, employer representatives, the number of which may not exceed the number of employee representatives.
    3. Chairpersons. - Each safety and health committee shall be cochaired by:
      1. A representative selected by the employer.
      2. A representative selected by the employee members of the committee.
    4. Rights. - Each safety and health committee shall, within reasonable limits and in a reasonable manner, exercise the following rights:
      1. Review any safety and health program established by the employer under G.S. 95-251.
      2. Review incidents involving work-related fatalities, injuries and illnesses, and complaints by employees regarding safety or health hazards.
      3. Review, upon the request of the committee or upon the request of the employer representatives or employee representatives of the committee, the employer's work injury and illness records, other than personally identifiable medical information, and other reports or documents relating to occupational safety and health.
      4. Conduct inspections of the worksite at least once every three months and in response to complaints by employees or committee members regarding safety or health hazards.
      5. Conduct interviews with employees in conjunction with inspections of the worksite.
      6. Conduct meetings, at least once every three months, and maintain written minutes of the meetings.
      7. Observe the measurement of employee exposure to toxic materials and harmful physical agents.
      8. Establish procedures for exercising the rights of the committee.
      9. Make recommendations on behalf of the committee, and in making recommendations, permit any members of the committee to submit separate views to the employer for improvements in the employer's safety and health program and for the correction of hazards to employee safety or health, except that recommendations shall be advisory only and the employer shall retain full authority to manage the worksite.
      10. Accompany, upon request, the Commissioner or the Commissioner's representative during any physical inspection of the worksite.
    5. Time for committee activities. - The employer shall permit members of the committee established under this section to take the time from work reasonably necessary to exercise the rights of the committee without suffering any loss of pay or benefits for time spent on duties of the committee.
  4. Employee safety and health representatives.
    1. In general. - Safety and health committees established under this section shall include:
      1. One employee safety and health representative where the average number of nonmanagerial employees of the employer at the worksite during the preceding year was more than 10, but less than 50.
      2. Two employee safety and health representatives where the average number of nonmanagerial employees of the employer at the worksite during the preceding year was 50 or more, but less than 100.