GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

H	2 

HOUSE BILL 1394*
Committee Substitute Favorable 6/19/92

Short Title:  Retaliatory Discrimination.	(Public)
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Sponsors:
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Referred to:  
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May 28, 1992

A BILL TO BE ENTITLED
AN ACT TO PROTECT EMPLOYEES FROM RETALIATORY DISCRIMINATION IN EMPLOYMENT FOR ENGAGING IN PROTECTED ACTIVITIES.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 95 of the General Statutes is amended by adding the following new Article:
"ARTICLE 21.
"Retaliatory Employment Discrimination.
"§ 95-240. Discrimination prohibited.
(a)	No person shall discriminate or take any retaliatory action against an employee because the employee 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:
a.	A workers' compensation claim;
b.	A violation of Article 2A (Wage and Hour Act) or Article 16 (Occupational Safety and Health Act of North Carolina) of this Chapter; or
c.	A violation of Article 2A of Chapter 74 of the General Statutes (Mine Safety and Health Act of North Carolina).
(2)	Cause any of the activities listed in subdivision (1) of this subsection to be initiated on the 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 or by Article 2A of Chapter 74 of the General Statutes.
(b)	For purposes of this Article, 'retaliatory action' means the discharge, suspension, demotion, or retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.
(c)	It shall not be a violation of this Article for an employer to discharge or take any other unfavorable action with respect to an employee who has engaged in protected activity if the employer 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.
"§ 95-241.  Complaint; investigation; conciliation.
An employee allegedly aggrieved by a violation of G.S. 95-240 may, within 180 days thereafter, file a written complaint with the Commissioner alleging the violation.  Within 10 days of the receipt of the complaint, the Commissioner shall forward a copy of the complaint to the person alleged to have committed the violation (hereinafter, 'respondent') 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 complainant that will enable the complainant to bring a civil action pursuant to G.S. 95-242.  If the Commissioner determines after investigation that there is reasonable cause to believe that the allegation is true, the Commissioner shall endeavor to eliminate the alleged violation by informal methods 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.
If the Commissioner is unable to resolve the alleged violation through the informal procedures, 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. 95-242 or issue a right-to-sue letter to the employee enabling the employee to bring a civil action pursuant to G.S. 95-242.
An employee may make a written request to the Commissioner for a right-to-sue letter after 180 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.
Nothing said or done during the course of these informal procedures 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.
"§ 95-242.  Civil action.
(a)	An employee who has been issued a right-to-sue letter or the Commissioner may commence a civil action in the superior court in which the violation occurred, in which the complainant resides, or in which the defendant resides or has its principal place of business.
(b)	A civil action under this section must 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.
(c)	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, benefits, and other remuneration, including compensatory damages.
(5)	Punitive damages.
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.
(d)	Parties to a civil action brought pursuant to this section shall have the right to a jury trial as provided for by the North Carolina Rules of Civil Procedure.
"§ 95-243.  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 or employment contract or at common law."
Sec. 2.  G.S. 95-130 reads as rewritten:
"§ 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.
			(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 20 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."
Sec. 3.  G.S. 95-25.20 reads as rewritten:
"§ 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."
Sec. 4.  G.S. 97-6.1 is repealed.
Sec. 5.  G.S. 74-24.15 reads as rewritten:
"§ 74-24.15. Rights and duties of miners.
	Miners shall comply with all safety and health standards and all rules, regulations, or orders issued pursuant to this Article which are applicable to their own actions and conduct and shall have the rights afforded under Article 21 of Chapter 95 of the General Statutes.
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Sec. 6.  G.S. 126-86 reads as rewritten:
"§ 126-86.  Civil actions for injunctive relief or other remedies.
Any State employee injured by a violation of G.S. 126-85 may maintain an action in superior court for damages, an injunction, or other remedies provided in this Article against the person or agency who committed the violation within one year after the occurrence of the alleged violation of this Article; provided, however, any claim arising under Article 21 of Chapter 95 of the General Statutes may be maintained pursuant to the provisions of that Article only and may be redressed only by the remedies and relief available under that Article."
Sec. 7.  This act becomes effective October 1, 1992, and applies to violations occurring on or after that date.