GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

S	1 

SENATE BILL 989*

Short Title:  Retaliatory Discrimination.	(Public)
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Sponsors: Senators Plyler, Conder, Martin of Guilford, Smith, Plexico, and Sands.
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Referred to:  Judiciary II.
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May 27, 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 is about 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.
For purposes of this Article, ‘retaliatory action' means the discharge, suspension, or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.
"§ 95-241. Remedies.
(a)	An employee aggrieved by an alleged violation of G.S. 95-240 may pursue the administrative remedy provided under G.S. 95-242 or the private remedy provided under G.S. 95-243.
(b)	An employee that pursues the administrative remedy under G.S. 95-242 and receives a determination from the Commissioner that no violation of G.S. 95-240 has occurred may commence an action under G.S. 95-243 within one year of the date on which the Commissioner notifies the employee of the determination.
"§ 95-242. Administrative remedy; Commissioner investigation and orders.
(a)	An employee aggrieved by an alleged violation of G.S. 95-240 may, within 180 days after the violation occurs, file (or have filed by any person on the employee's behalf) a complaint with the Commissioner alleging the discrimination or retaliatory action.  The Commissioner shall immediately forward a copy of the complaint to the person alleged to have violated G.S. 95-240 (who shall be referred to as the respondent).
(b)	Not later than 60 days after receipt of a complaint filed under subsection (a), the Commissioner shall conduct an investigation and determine whether there is reasonable cause to believe that the complaint has merit and shall notify the complainant and the respondent of the findings.  Where the Commissioner has concluded that there is reasonable cause to believe that a violation has occurred, the Commissioner shall accompany the findings with a preliminary order providing the relief prescribed by subsection (d).  The respondent or the complainant may, within 30 days thereafter, file objections to the findings or preliminary order, or both, and request a hearing on the record, except that the filing of such objections shall not operate to stay any reinstatement remedy contained in the preliminary order.  The hearings shall be expeditiously conducted.  If a hearing is not timely requested, the preliminary order is deemed a final order not subject to judicial review.
(c)	The Commissioner shall issue a final order within 120 days of the last hearing.  In the interim, the proceedings may be terminated at any time by written agreement of the Commissioner, the complainant, and the respondent.
(d)	If the Commissioner determines that a violation of G.S. 95-240 has occurred, the Commissioner shall order the respondent to:
(1)	Take action to correct the violation;
(2)	Reinstate the complainant to the complainant's former position together with the compensation (including backpay), terms, conditions, and privileges of the complainant's employment; and
(3)	Pay the complainant compensatory damages.
(e)	At the complainant's request, the Commissioner may assess the complainant's costs and expenses (including attorneys' fees) against the respondent if a final order is issued providing any of the relief prescribed in subsection (d).  At the respondent's request, the Commissioner may assess the respondent's costs and expenses (including attorneys' fees) against the complainant upon a determination that the claim filed by the complainant was frivolous.
(f)	Any person adversely affected or aggrieved by a final order issued under this section may obtain review of the order in the superior court of the county in which the violation occurred, in which the complainant or respondent resides, or in which the respondent has its principal place of business by filing a petition with the court within 30 days after receipt of the final order from the Commissioner.  A person who fails to file a petition within the required time waives the right to judicial review under this section.  For good cause shown, however, the superior court may accept an untimely petition.
(g)	Whenever a person has failed to comply with an order issued under this section, the Commissioner shall file a civil action in the Superior Court of Wake County or in the county in which the violation occurred in order to enforce the order.  In actions brought under this subsection, the superior court shall have jurisdiction to grant all appropriate relief, including injunctive relief, reinstatement, back pay, and compensatory damages.
"§ 95-243. Private right of action.
(a)	An employee aggrieved by an alleged violation of G.S. 95-240 may, within one year after the violation occurs (except as provided in G.S. 95-241), 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)	The plaintiff 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.
"§ 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 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.