North Carolina - IMI Data Search_ Inc

Document Sample
North Carolina - IMI Data Search_ Inc Powered By Docstoc
					       Human Resource
State Employment Law Summary




           NORTH CAROLINA
                                                       Table of Contents
Appearance and Grooming.................................................................................................................... 4
   Uniforms ..................................................................................................................................... 4
Arrest and Conviction Records ............................................................................................................. 4
At-Will Employment ............................................................................................................................. 4
Breaks and Rest Periods ........................................................................................................................ 5
   Minors ......................................................................................................................................... 5
   Breastfeeding .............................................................................................................................. 5
Child Labor ............................................................................................................................................ 5
   Federal Law ................................................................................................................................ 5
   Types of Work ............................................................................................................................ 5
   Hours of Work ............................................................................................................................ 6
   Permits and Postings ................................................................................................................... 6
COBRA ................................................................................................................................................. 7
   Insurance Continuation ............................................................................................................... 7
Employee Conduct and Work Rules ..................................................................................................... 7
   Guns in the Workplace................................................................................................................ 7
Equal Employment Opportunity and Equal Pay ................................................................................... 7
Family and Medical Leave (FMLA) ..................................................................................................... 7
Files and Access .................................................................................................................................... 8
   Employee Review of Files .......................................................................................................... 8
Hiring Procedures .................................................................................................................................. 8
   Credit and Investigative Checks ................................................................................................. 8
   New Hire and Rehire Reporting Requirements .......................................................................... 9
   Mandatory Background Checks .................................................................................................. 9
Holidays ................................................................................................................................................. 9
Inventions .............................................................................................................................................. 9
Jury, Witness, and Voting Leave........................................................................................................... 9
   Jury and Witness Leave .............................................................................................................. 9
   Voting Leave ............................................................................................................................. 10
Labor-Management Relations ............................................................................................................. 10
Layoff and Reduction in Force............................................................................................................ 10
Medical Testing and Examinations ..................................................................................................... 10
   Drug (Alcohol) Testing ............................................................................................................. 10
   Medical Examinations .............................................................................................................. 11
   Genetic Testing ......................................................................................................................... 11
   HIV Testing .............................................................................................................................. 11
Military Leave ..................................................................................................................................... 11
Noncompetition Agreements............................................................................................................... 11
Overtime .............................................................................................................................................. 12
Polygraph/Lie Detector Tests .............................................................................................................. 12
Reference Requests ............................................................................................................................. 12
   Protection for Employers .......................................................................................................... 12
Sick Leave ........................................................................................................................................... 12
Smoking ............................................................................................................................................... 12
  Use of Lawful Products Off the Premises................................................................................. 12
Termination Procedures....................................................................................................................... 13
  Paychecks .................................................................................................................................. 13
Unemployment Compensation ............................................................................................................ 13
Vacations ............................................................................................................................................. 13
Wages and Hours................................................................................................................................. 13
  Paydays ..................................................................................................................................... 13
  Minimum Wage ........................................................................................................................ 13
  Withholding or Docking Pay .................................................................................................... 13
  Garnishment .............................................................................................................................. 14
  Direct Deposit ........................................................................................................................... 14
  Living Wage.............................................................................................................................. 14
Whistleblower Protection .................................................................................................................... 14
Workers’ Compensation ...................................................................................................................... 15
Required Posters .................................................................................................................................. 15
  Required Federal Posters .......................................................................................................... 15
  Required North Carolina Posters and Contacts ........................................................................ 15
_______________
                           STATE LAW SUMMARY

Appearance and Grooming


  Uniforms

  North Carolina law allows an employer to deduct a fee from an employee’s wages for the use
  of the employer’s property, including a required uniform. Similarly, an employer may deduct
  the cost of damages to the employer’s property. The employer must notify the employee of
  the deduction at least seven days before the payday when the deduction will be made. The
  deduction may not reduce the employee’s wages below the federal minimum wage.

Arrest and Conviction Records


  North Carolina has enacted no statute that prohibits a private employer from using arrest and
  conviction records of employees or applicants.

  Caution: Private employers considering using arrest or conviction records should do so with
  caution, even in states that allow the use of arrest or conviction records for employment
  purposes. An arrest might never result in a criminal guilty plea or conviction and it is always
  possible that a person has been arrested for something he or she did not do. Moreover, the
  federal Equal Employment Opportunity Commission has stated that use of conviction records
  might be discriminatory given that, according to the EEOC, minorities are often more likely
  to have such a record. The EEOC cautions that employers should only inquire about felony
  convictions, should state that a criminal record is not an automatic bar to employment and
  should ensure that there is a legitimate business reason for requesting such information.
  Employers should consult with their attorneys for more information and guidance on this
  issue.

At-Will Employment


  North Carolina law provides that an employment relationship of indefinite duration is an at-
  will relationship and can be terminated without cause. This at-will status can be modified by
  oral representations and written statements, although the risk is small under current North
  Carolina law. Adequate contract disclaimers and at-will statements in documents given to
  employees (handbooks, policies, etc.) can help minimize the risk that such statements or
  documents may be alleged to have created express or implied employment contracts. North
  Carolina law also has recognized that discharges that are violations of public policy can
  create a claim. This type of claim is typically one brought by a whistleblower or some other
  person asserting a legally protected right or by a person who has refused to commit an illegal
  act or who has reported one. North Carolina statutes preclude discharge for filing worker’s
  compensation claims, filing safety claims, testifying in an unemployment compensation
  hearing or engaging in labor disputes.

Breaks and Rest Periods


  North Carolina has enacted no statute that requires private employers to provide breaks and
  rest periods for adult employees.

  Minors

  Minors under 16 must be given a 30-minute break after any five consecutive hours of
  employment.

  Breastfeeding

  North Carolina law protects a mother’s right to breastfeed in places of public
  accommodation. Although an employer is not required to provide breaks or rest periods for
  the purpose of breastfeeding, an employer probably cannot prohibit a woman from
  breastfeeding or expressing milk at the workplace during a provided break.

Child Labor


  Federal Law

  Minors may be limited in the hours they work and may not be employed in occupations
  considered hazardous by federal law or by the U.S. Department of Labor’s rules and
  regulations. When school is in session, federal law requires work of minors age 14 and 15 to
  be limited to three (3) hours per day and eighteen (18) hours per week. When school is not in
  session, minors age 14 and 15 may work up to eight (8) hours per day and forty (40) hours
  per week between 7:00 a.m. and 7:00 p.m. (or 9:00 p.m. June 1 through Labor Day). Federal
  law does not limit work hours for minors age 16 and 17, regardless of whether or not school
  is in session. Except in limited circumstances, employers are generally prohibited from
  hiring minors under age 14. In addition to these federal restrictions, the following provisions
  address employment of minors in North Carolina. Additional North Carolina provisions
  regulate both the type and hours of work in which minors can engage. Note that the stricter
  law, the one that most benefits employees, prevails.

  Types of Work

     Minors Under Age 18

     No minor under age 18 can be employed in any hazardous occupation as defined by the
     United States Department of Labor. This includes, but is not limited to: welding;
   processes where quartz or silicon dioxide or asbestos silicate is present in powder form;
   work involving exposure to lead; benzol or any benzol compound which is volatile or can
   penetrate skin; spray painting; handling of unsterilized hides or animal or human hair;
   preparing, serving, dispensing or selling intoxicating liquors; and driving an automobile
   or truck exceeding 6,000 lbs. gross vehicle weight.

   Minors Under Age 16

   Minors under age 16 also cannot work on the premises of any employer holding a permit
   for the sale or consumption of intoxicating liquors. Minors under 18 employed by their
   parents are exempt from the law, except concerning employment certificates, hazardous
   occupations and alcohol restrictions (if there is another employee over 21 in charge of
   and present at the premises).

Hours of Work

   Minors Under Age 18

   Minors under age 18 and enrolled in school grade 12 or lower cannot work between
   11:00 p.m. and 5:00 a.m. during the school year, except minors age 16 and 17 can work
   beyond these limits when there is no school the next day or if they have written
   permission from a parent or guardian and a school principal. Minors under 16 must be
   given a 30-minute break after any five consecutive hours of employment.

   Minors Age 14 and 15

   Minors age 14 and 15 may be employed outside of school hours and not more than three
   hours on a school day (18 hours during a school week) and eight hours on a non-school
   day (40 hours during a non-school week). Minors 14 and 15 can work as late as 7:00
   p.m. during the school year and 9:00 p.m. during the summer when school is out.

   Minors Age 12 and 13

   Minors age 12 and 13 may be employed in newspaper delivery outside of school hours
   but not more than three hours per day.

Permits and Postings

Employment certificates, issued by county directors of social services, are required for
minors under age 18.

Child labor law can be both challenging and confusing. Employers of minors should
closely review federal and state child labor law differences and contact their attorneys
or the Department of Labor to ensure they are in full compliance.
COBRA


  Insurance Continuation

  Many states have legislation requiring small employers (those not subject to COBRA) to
  provide insurance continuation if an employee becomes ineligible for group coverage (such
  as through a termination). Such provisions are complex and very technical. You may want
  to contact your attorney or insurance broker to determine if you are meeting all applicable
  federal and state requirements.

Employee Conduct and Work Rules


  Guns in the Workplace

  Workplace violence continues to be a concern for employers. Many organizations adopt
  policies (such as the one found in the HRN manual) banning guns and other weapons on
  company property. However state law differs widely regarding employees’ weapons rights.
  You may want to contact the state employment agency or an attorney for further information
  regarding your specific policy and any possible liability that may result.

Equal Employment Opportunity and Equal Pay


  Similar to federal law, North Carolina state law prohibits discrimination in employment or
  terms and conditions of employment based on the race, creed, color, religion, sex, age (40
  and over), military status, national origin, and disability. The law applies to all private
  employers with fifteen or more employees. Included in unlawful discrimination is wage
  discrimination based on retaliation. Complaints of discrimination are filed with the North
  Carolina Human Relations Commission.

  Caution: Some municipalities may have adopted city ordinances expanding EEO
  protections. Please check local laws for more details.

Family and Medical Leave (FMLA)


  North Carolina employers must grant an employee leave of up to four hours per year for
  parent involvement with their child’s school. The employer may take no adverse action
  against the employee for taking leave. The leave must be at a mutually convenient time after
  a written request and with 48 hours notice. The employer is not required to pay the employee
  for leave taken. The employer may require that the employee provide written verification
  from the school of the employee’s involvement.
  Caution: Complying with the federal FMLA (and state law, if applicable) can be both
  challenging and confusing. You will likely want to contact your attorney, the Federal
  Department of Labor, or the appropriate state agency for further information and
  clarification.

Files and Access


  Employee Review of Files

  Neither federal nor North Carolina law requires that employees who work for private
  companies be permitted to review their personnel files. However, North Carolina does allow
  employees and former employees the right to access personnel records indicating their
  exposure to toxic materials or harmful agents.

Hiring Procedures


  Credit and Investigative Checks

  No North Carolina credit or investigative check requirements have been adopted that exceed
  those required by the federal Fair Credit Reporting Act and Consumer Credit Reform Act of
  1996. Under federal law, employers may not obtain a consumer report, (which includes
  checks on an employee's or applicant's credit standing, and which is obtained through a
  consumer reporting agency), unless a clear and conspicuous written disclosure has been
  made to the applicant or employee before the report is performed and the employer obtains
  written authorization from the applicant or employee. The disclosure must be made in a
  separate written document (not as part of a job application or other form) and must consist
  solely of the disclosure. Credit checks must be used for employment purposes only and may
  not be used discriminatorily in violation of any applicable federal or state law or regulation.
  Employers must also make written disclosures of investigative reports where personal
  information such as the applicant's or employee's character, reputation, etc is obtained
  through interviews with neighbors, friends, and others.

  Before an adverse employment action (such as refusal to hire) is taken based in whole or in
  part on information reported in a consumer or investigative report, the employer must inform
  the applicant or employee, and provide a copy of the report and a summary of consumer
  rights under the law. A post adverse action notice is also required under federal law. You
  may want to consult your legal counsel for detailed information.

  Caution: While not always required by law, it is generally a good practice to get releases
  from applicants for any background checks undertaken. You may want to contact your
  attorney for release requirements and related details.
  New Hire and Rehire Reporting Requirements

  In North Carolina, employers are required to report new hires and rehires to the State
  Department of Health and Human Services within 20 days of hiring. Information reported
  shall include the employer’s name, address, telephone number, federal employer ID number,
  as well as the employee’s name, address and social security number.

  Reports may be submitted by W-4 form and, if done electronically or magnetically, must be
  submitted twice a month, no more than 12 days and no less than 16 days apart. The state is
  required to provide forms for employers to use to report new hires. For more information,
  visit the North Carolina New Hire Reporting Guide website at www.ncnewhires.com.

  Mandatory Background Checks

  Many states require mandatory background checks of applicants in certain highly sensitive
  areas such as in teaching, childcare, healthcare and security positions. Such checks may
  include criminal history and fingerprint checks, various reporting requirements, and requiring
  job references. Contact your local state agency or attorney for further information.

Holidays


  No North Carolina statute has been enacted requiring private employers to give employees
  paid holiday time off or to pay premium pay for time actually worked on holidays.

Inventions


  North Carolina employers cannot require, by agreement, an employee to assign rights to an
  invention that the employee developed entirely on his or her own time without using the
  employer’s resources, except regarding those inventions that relate to the employer’s
  business or anticipated research and development or result from work performed by the
  employee for the employer.

Jury, Witness, and Voting Leave


  Jury and Witness Leave

  A North Carolina employer cannot demote or discharge an employee because the employee
  has been called for jury duty. No North Carolina statute requires payment for jury duty,
  however the federal Fair Labor Standards Act restricts deductions from the pay of salaried,
  exempt employees.

  Caution: Employers should consider contacting their attorneys before denying pay for jury
  leave.
  North Carolina has enacted no statute that prohibits a private employer from discharging an
  employee who takes leave to be a witness. However, the state will provide appropriate
  employer intercession services to seek the employer's cooperation with the criminal justice
  system and minimize the employee's loss of pay and other benefits resulting from such
  cooperation whenever possible.

  Voting Leave

  North Carolina has enacted no statute that requires a private employer to provide voting leave
  to employees.

Labor-Management Relations
  Various labor relations laws allow and/or regulate the rights of employees to unionize,
  bargain collectively, file grievances, picket, strike, and wear union insignia and govern the
  resolution of labor disputes. Contact the North Carolina Department of Labor,
  www.dol.state.nc.us for more information. Note also that federal law governs, and in fact
  pre-empts, many aspects of this area of law.

Layoff and Reduction in Force


  No applicable North Carolina statute exists. North Carolina has not enacted a state "WARN"
  law or other legislation regarding layoffs. However, employers must still comply with the
  federal WARN Act.

Medical Testing and Examinations


  Drug (Alcohol) Testing

  North Carolina law governs the administration and use of drug testing by private employers.
  North Carolina law requires that any “examiner” (defined to include employers) who requires
  an “examinee” (defined to include employees and applicants) to submit to a controlled
  substance examination must comply with certain procedural requirements. The collection of
  samples for examination or testing must be done under reasonable and sanitary conditions,
  preserving individual dignity to the extent practicable. Collection and chain of custody of
  samples also must be done in a way reasonably calculated to prevent substitution of samples
  and interference with collection, examination and testing, e.g., by proper labeling, record
  keeping, etc. Testing must be done by an approved laboratory. If there is a positive test
  result, confirmation must be done by a second examination utilizing gas chromatography
  with mass spectrometry or an equivalent scientifically accepted method. A portion of every
  sample that produces a confirmed positive result must be preserved for at least 90 days from
  the time the positive results are mailed or delivered to the examiner. Examinees must have,
  at their cost, the right to seek a retest by the same or another laboratory and can request, in
  writing, access to the positively-tested sample.
  Medical Examinations

  Applicants for employment cannot be required to pay the costs of any required medical
  examination or of furnishing records required by the employer.

  Genetic Testing

  No employer can 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.

  HIV Testing

  An employer cannot require an employer to undergo HIV testing unless it is part of an annual
  medical examination. The results of a positive HIV test may not be used to discharge an
  employee unless the employee poses a risk to others.

  Caution: In addition to state law, employers should also ensure that any testing undertaken
  conforms with federal law (e.g., the ADA and FMLA). Contact your attorney if you propose
  to undertake such testing.

Military Leave


  North Carolina employers cannot discriminate against any employee because of membership
  in the state or national military service. A member of the North Carolina National Guard is
  entitled to re-employment in the same or like position (in seniority, status, salary) upon
  honorable release from state duty if: He or she makes a written application for re-
  employment within five days of release from duty or hospitalization continuing after release
  from duty, and he or she is still qualified for the position unless the employer’s changed
  circumstances make re-employment unreasonable.

  If the employee is no longer qualified for a previous position, he or she must be placed in a
  position for which he or she is qualified.

  Caution: Military leave legislation is complicated and technical. In addition to any
  applicable state law requirements, employers should ensure that they are in compliance with
  federal laws.

Noncompetition Agreements
  A North Carolina statute, as well as court decisions, enforce noncompetition agreements if
  entered into as of the offer and acceptance of employment or, in the case of continued
  employment, if additional consideration is given, and provided they are reasonably necessary
  to protect a legitimate business interest such as customer contacts (good will), confidential
  information, trade secrets and valuable business information. To be enforceable, non-
  competes must also be reasonable regarding time and geographic restrictions.

Overtime


  Overtime pay is one and one-half times the regular wage for hours worked over 45 hours a
  week.

Polygraph/Lie Detector Tests
  North Carolina has no statutory requirements that exceed federal requirements. Federal law
  states that the refusal to take a polygraph cannot be the basis for denying or terminating
  employment.

Reference Requests


  Protection for Employers

  A North Carolina employer is immune from liability for giving out information on an
  employee’s job history or job performance to a prospective employer, at the request of the
  prospective employer or employee, unless the employer knowingly provides false
  information or reasonably should have known the information was false.

Sick Leave


  No North Carolina statute requires employers to provide paid sick leave or to pay for accrued
  paid sick leave at termination.

  Caution: If sick leave is provided, employers should ensure that it is provided on a non-
  discriminatory basis and in accordance with established policy and practice.

Smoking


  Use of Lawful Products Off the Premises

  North Carolina law makes it unlawful for any employer with three or more employees to
  discriminate or take any adverse employment action against any employee or person because
  he/she used lawful products during nonworking hours, off the employer’s premises and in a
  way that does not interfere with job performance.
Termination Procedures


  Paychecks

  An employer must pay final wages to a discharged employee or an employee who quits on or
  before the next regular payday. Wages based on bonuses or commissions not calculable at
  the time must be paid on the first regular payday after they become calculable.

Unemployment Compensation
  Extensive laws cover this area in North Carolina. Contact the North Carolina Employment
  Security Commission, www.ncesc.com, for further information.

Vacations


  North Carolina does not require employers to provide paid vacation leave to employees.
  However, if an employer provides paid vacation leave by contract or by a general policy, the
  employer must compensate the employee for unused, accrued vacation leave at termination.
  An employer may escape the compensation requirement by structuring the contract or policy
  to include a forfeiture provision. In such a circumstance, the employer will not be required to
  compensate the employee for unused, accrued vacation time so long as the employee
  received notice of the forfeiture provision. Employees not notified are not subject to
  forfeiture.

Wages and Hours


  Paydays

  North Carolina employers can pay on a daily, weekly, biweekly, semi-monthly or monthly
  basis. Employers must notify employees in writing, at hiring, of paydays and wages.
  Employers must give written notices of changes regarding the foregoing before such changes
  occur.

  Minimum Wage

  The North Carolina minimum wage is the same as the federal minimum wage of $5.15 per
  hour.

  Withholding or Docking Pay

  Deductions from paychecks are limited to those required by law or agreed to in advance and
  in writing. Employees must be allowed to withdraw authorization, if not previously
  informed of the amounts of deductions. Deductions for cash or inventory shortages or for
  loss or damage to an employer’s property may not be taken except on seven days advance
  notice, except for deductions at termination. Such deductions may not be taken if they
  reduce wages below the federal minimum rate or, if applicable, below 85% of the North
  Carolina minimum rate.

  Garnishment

  A North Carolina employer may not discharge or discipline an employee because of a
  garnishment done under applicable North Carolina law.

  If the debtor has a family, all earnings within 60 days before the order are exempt if needed
  to support the family. Up to $500 value of personal property is exempt.

  Direct Deposit

  An employer may require all employees to use direct deposit if the policy is uniform and
  nondiscriminatory.

  Living Wage

  A number of local governments (e.g. cities, towns, counties, school districts, etc.) have
  enacted laws known as “Living Wage” ordinances. These laws, although not always
  imposing the same types of requirements, typically mandate that any entity contracting or
  doing business with the local government or getting a tax abatement from the local
  government must pay its employees a set wage. The ordinances are typically called Living
  Wage ordinances because the set wage rate is typically much higher than the applicable
  minimum wage, thus better allowing the employees to live on the wage.

  Durham requires city contractors to provide a living wage of not less than $8.45 per hour. For
  more information on this rapidly developing area of law, including recent developments, see
  www.livingwage.com.

Whistleblower Protection
  A North Carolina employer cannot discharge an employee because the employee, in good
  faith, has filed or will file, or has initiated, an investigation or will testify concerning:
  1. The Worker’s Compensation Act

  2. The Wage and Hour Act

  3. The Mine Safety and Health Act

  4. The Occupational Safety and Health Act

  5. Discrimination related to sickle cell or hemoglobin C trait

  6. National Guard re-employment rights
Workers’ Compensation
  Extensive laws cover this area in North Carolina. Contact the North Carolina Industrial
  Commission, www.comp.state.nc.us, for further information.




Required Posters
  Listed below are the current listings for government agencies from which required posters
  can be obtained. Posters frequently can be obtained free of charge. Poster requirements may
  change from time to time, and employers should check to assure up to date compliance.

  Required Federal Posters
          Fair Labor Standards Act (FLSA) Minimum Wage
          Family Medical Leave Act (FMLA)
          Job Safety and Health Protection – Occupational Safety and Health
          Equal Employment Opportunity Act
          Migrant and Seasonal Agricultural Worker Protection Act (MSPA)
          Notice to Work with Disabilities (FLSA, SCA, and Walsh-Healey Act)
          Employee Polygraph Protection Act (EPPA)

  These posters can be accessed at the Department                     of    Labor    website:
  www.dol.gov/dol/osbp/public/sbrefa/poster/main.htm

  Required North Carolina Posters and Contacts
      Consolidated Notice to Employees         North Carolina Dept. of Labor
       (includes wage and hour law, workers’    4 West Edenton St.
       compensation insurance,                  Raleigh, NC 27601
       unemployment insurance, and job          1-800-LABOR-NC / 919-733-7166
       safety and health)                       www.dol.state.nc.us/posters/english.pdf
                                                www.dol.state.nc.us/posters/spanish.pdf


      Certificate of Coverage for and Notice   Employment Security Commission
       to Workers as to Benefit Rights          700 Wade Ave.
       (unemployment insurance)                 Raleigh, NC 27605
                                                919-733-7156
                                                http://www.ncesc.com/business/downloads/dow
                                                nloadmain.asp

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:3
posted:1/18/2013
language:English
pages:15