GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

H	1 

HOUSE BILL 453

Short Title:  Clarify Labor Law.	(Public)
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Sponsors: Representative Michaux.
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Referred to:  Judiciary II.
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April 1, 1991

A BILL TO BE ENTITLED
AN ACT TO MAKE CLARIFYING CHANGES TO THE WAGE AND HOUR ACT.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 95-25.2 reads as rewritten:
"§ 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 (33 1/3%) 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."
Sec. 2. G.S. 95-25.4 reads as rewritten:
"§ 95-25.4. Overtime.
(a)	Every employer shall pay each employee who works longer than 45 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 45 per week.
	."
Sec. 3. G.S. 95-25.14 reads as rewritten:
"§ 95-25.14. Exemptions.
(a)	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:
a.	Except as otherwise specifically provided in G.S. 95-25.5.
b.	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;
(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.
(b)	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.
(c)	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.
(d)	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.
(e)	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)."
Sec. 4. G.S. 95-25.24 reads as rewritten:
"§ 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)."
Sec. 5. This act is effective upon ratification.