GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

H	4 

HOUSE BILL 458
Second Edition Engrossed 5/10/89
Manufacturing & Labor Senate Committee Substitute Adopted 7/28/90
Fourth Edition Engrossed 7/28/90

Short Title:  Raise Minimum Wage.	(Public)
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Sponsors:
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Referred to:  
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March 6, 1989

A BILL TO BE ENTITLED
AN ACT TO RAISE THE MINIMUM WAGE IN ENTERPRISES WITH AT LEAST $250,000 IN ANNUAL SALES OR BUSINESS AND TO AUTHORIZE A TRAINING WAGE.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 95-25.3 reads as rewritten:
"§ 95-25.3. Minimum wage.
(a)	Every employer in an enterprise whose annual gross volume of sales made or business done is not less than two hundred fifty thousand dollars ($250,000), exclusive of excise sales at the retail level that are separately stated, shall pay to each employee who in any workweek performs any work, wages of at least three dollars and eighty cents ($3.80) per hour effective October 1, 1990, and four dollars and twenty-five cents ($4.25) per hour effective April 1, 1991, except as otherwise provided in this section.
(a1)	Every employer in an enterprise whose annual gross volume of sales made or business done is less than two hundred fifty thousand dollars ($250,000), exclusive of excise taxes at the retail level that are separately stated, shall pay to each employee who in any workweek performs any work, wages of at least three dollars and thirty-five cents ($3.35) per hour. Employers covered by this subsection are not eligible to pay the training wage provided for in subsections (g) through (q) of this section.
(b)	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) or (a1) above, whichever is applicable, rounded to the lowest nickel.
(c)	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 subsection (a) or subsection (a1), whichever is applicable, 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.
(d)	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) or subsection (a1) 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 aid to families with dependent children provided under Part A of Title IV of the Social Security Act, or who are receiving supplemental security benefits under Title XVI of the Social Security Act.
Pursuant to regulations issued by the Commissioner, certificates establishing eligibility for such subminimum wage shall be issued by the Employment Security Commission.
The regulation issued by the Commissioner shall not permit employment at the subminimum rate for a period in excess of 52 weeks.
(e)	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) or subsection (a1) which shall apply to any employee employed by an establishment which is a seasonal amusement or recreational establishment, or a seasonal food service establishment.
(f)	Tips earned by a tipped employee may be counted as wages only up to fifty percent (50%) of the applicable minimum wage for each hour worked 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. 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.
(g)	Any employer may, in lieu of the minimum wage prescribed by subsection (a) or by subsections (b) through (e) of this section, pay an eligible employee a training wage while such employee is:
(1)	Employed for the period authorized in paragraph (n)(1)c.1. of this section, or
(2)	Engaged in on-the-job training for the period authorized by paragraph (n)(1)c.2. of this section.
This training wage shall be a wage:
a.	Of not less than three dollars and thirty-five cents ($3.35) per hour during the eight months beginning October 1, 1990; and
b.	Beginning April 1, 1991, eighty-five percent (85%) of the wage prescribed by subsection (a) of this section.
(h)	An employer may pay an eligible employee the training wage under subsection (g) of this section for a period that:
(1)	Begins on or after October 1, 1990;
(2)	Does not exceed the maximum period during which an employee may be paid such wage as determined under sub-subdivision (n)(1)c. of this section; and
(3)	Ends before April 1, 1993.
(i)	No eligible employee may be paid the training wage under subsection (g) of this section by an employer if:
(1)	Any other individual has been laid off by such employer from the position to be filled by such eligible employee or from any substantially equivalent position; or
(2)	Such employer has terminated the employment of any regular employee or otherwise reduced the number of employees with the intention of filling the vacancy so created by hiring an employee to be paid such training wage.
(j)	During any month in which employees are to be employed in an establishment and are to be paid a training wage under subsection (g) of this section, the proportion of these employee hours of employment to the total hours of employment of all employees in such establishment may not exceed a proportion equal to one-fourth of the total hours of employment of all employees in such establishment.
(k)	No employer may take any action to displace employees, including partial displacements such as reduction in hours, wages, or employment benefits, for purposes of hiring individuals at the training wage under subsection (g) of this section.  If the Commissioner determines that an employer has taken an action to displace employees, the Commissioner shall issue an order disqualifying such employer from employing any individual at such training wage.
(l)	Each employer shall provide to any eligible employee who is to be paid the training wage under subsection (g) of this section a written notice before the employee begins employment stating the requirements of subsections (g) through (k) and subsections (n) through (q) of this section and the remedies provided by subsection (m) of this section for violations of any of these requirements.  The Commissioner shall provide to employers upon request the text of the notice to be provided under this subsection.
(m)	Any employer who takes an action to displace employers in violation of subsection (k) of this section shall be considered to have violated G.S. 95-25.20 and the remedies provided in that section shall apply to any such violation.
(n)	For purposes of subsections (g) through (m) and subsections (o) through (q) of this section:
(1)	‘Eligible employee' means, with respect to an employer, an individual who:
a.	Is not a migrant agricultural worker or a seasonal agricultural worker, as defined in paragraphs (8) and (10) of Section 3 of the Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. § 1802 (8) and (10), without regard to subparagraph (B) of such paragraphs; and is not a nonimmigrant described in Section 101(a)(15)(H)(ii)(a) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(15)(H)(ii)(a);
b.	Has not attained the age of 20 years; and
c.	Is eligible to be paid the training wage under subsection (g) of this section by virtue of the duration of employment as follows:
1.	An employee shall initially be eligible to be paid the training wage under subsection (g) of this section until the employee has been employed a cumulative total of 90 days at such wage;
2.	An employee who has been employed by an employer at the training wage under subsection (g) of this section pursuant to paragraph c.1. of this subdivision may be employed by any other employer for an additional 90 days, if the employer meets the requirements of subsection (p) of this section;
3.	The total period pursuant to paragraphs c.1. and c.2. of this subdivision that an employee may be paid the training wage under subsection (g) of this section may not exceed 180 days;
4.	For purposes of this subdivision, the term ‘employer' means, with respect to an employee, an employer who is required to withhold payroll taxes for such employee.
(2)	‘On-the-job training' means training that is offered to an individual while employed in productive work that provides training, technical, and other related skills, and personal skills that are essential to the full and adequate performance of such employment.
(o)	An individual shall provide the requisite proof of previous period or periods of employment with other employers for purposes of establishing whether the employee is an eligible employee pursuant to subsection (n) of this section.  An employer's good faith reliance on the proof presented to the employer by an individual shall constitute a complete defense to a charge that the employer has violated subdivision (h)(2) of this section with respect to such individual.  The Commissioner shall issue regulations which shall be identical to the regulations issued by the United States Secretary of Labor defining the requisite proof required of an individual.
(p)	An employer who wants to employ employees at the wage authorized by subsection (g) of this section for the period authorized by paragraph (n)(1)c.2. of this section shall:
(1)	Notify the Commissioner annually of the positions at which such employees are to be employed at such wage;
(2)	Provide on-the-job training to such employees which meets general criteria of the Commissioner issued by regulations which shall be identical to the regulations issued by the United States Secretary of Labor;
(3)	Keep on file a copy of the training program which the employer will provide such employees;
(4)	Provide a copy of the training program to the employees;
(5)	Post in a conspicuous place in places of employment a notice of the types of jobs for which the employer is providing on-the-job training; and
(6)	Send to the Commissioner on an annual basis a copy of such notice.
The Commissioner shall make available to the public upon request notices provided to the Commissioner by employers in accordance with subdivision (6) of this subsection.
(q)	An employer who has complied with the requirements of the Fair Labor Standards Act for paying a training wage to a particular employee shall be deemed to have complied with the requirements of subsections (g) through (p) of this section."
Sec. 2.  Nothing in this act shall obligate the General Assembly to appropriate any funds.
Sec. 3.  This act shall become effective October 1, 1990.