2023 North Carolina Labor & Employment Year End Review
Charlotte, N.C. (February 1, 2024) - The State of North Carolina saw a number of significant developments in the area of labor and employment law in 2023, including the passage of legislation that prohibits compelled speech when an individual seeks state government or community college employment and changes to the state's occupational safety and health rules.
Non-Discrimination and Dignity in State Work – Senate Bill 364
This Act amends North Carolina’s State Human Resources Act to prohibit compelled speech when an individual seeks state government or community college employment. Here, the North Carolina General Assembly is demonstrating its intent that state and community college employees recognize the rights of all persons. State government and community college workplaces are prohibited from soliciting or requiring applicants for employment to endorse or opine about beliefs, affiliations, ideals, or principles regarding matters of contemporary political debate or social action as a condition of employment.
Similarly, state government and community college workplaces cannot solicit or require an applicant for employment to describe the applicant’s actions in support of, or in opposition to, the beliefs, affiliations, ideals, or principles regarding matters of contemporary political debate or social action as a condition of employment Senate Bill 364 appears to underscore the General Assembly’s desire to promote the equality and rights of all persons by wholly separating any connection between state employment and outside political debate or social actions, thus keeping sociopolitical speech and activities outside of the state employment space.
Changes to Occupational Safety and Health Rules
The time during which the North Carolina Department of Labor must cite an employer for a violation of the state's Occupational Safety and Health Act is now six months from the date of the violation rather than six months from the date that the inspection began. This modification brings North Carolina’s statute of limitations commensurate with most of the “state plan” states that administer and enforce their own occupational safety and health laws, and the statute of limitations in the states where the federal government is responsible for the administration and enforcement of occupational safety and health laws. Now, employers can only be cited for failing to record work-related illnesses and injuries in their OSHA 300 logs where the failure to record an illness or injury occurred within six months of when the citation was issued rather than a broader period dating back to inception of the inspection. NCDOL cannot issue citations related to accidents and injuries based on violations of OSHA standards that occurred more than six months before the citation was issued simply by reviewing the employer’s OSHA 300 logs. Accordingly, an employer receiving a citation should determine whether the citation arises from facts occurring within the six months immediately pre-dating the citation.
Changes to the North Carolina Department of Labor’s Ability to Adopt New OSHA Standards
The North Carolina Department of Labor will have to publish a notice and go through the state’s rulemaking process before adopting any new standard promulgated by the federal Occupational Safety and Health Administration. This ostensibly ends the NCDOL’s ability to adopt occupational safety and health standards identical to the standards adopted by the USDOL without first subjecting all changes to oversight by the North Carolina Rules Review Commission, which is the agency responsible for reviewing and approving rules and regulations adopted by North Carolina’s state agencies. However, the North Carolina Court of Appeals has previously determined that the NCDOL does not need to follow the formal rulemaking process prior to adopting “nonbinding interpretive statements” even if an interpretation impacts how the agency applies and enforces OSHA standards. Thus, it appears unclear how this change impacts NCDOL’s ability to adopt policies and interpretations of OSHA standards just below the level of official occupational safety and health standards.
Prohibition on Adoption of Wage and Hour Laws By Local Governments
Local ordinances adopted by counties or municipalities establishing minimum wage, overtime, or leave laws that are different from the North Carolina Wage and Hour Act are now unenforceable. Counties, municipalities, or other local governmental entities cannot adopt minimum wage, overtime, or paid leave laws that differ from those contained in state law. Thus, employers do not need to worry about whether wage and hour laws vary in any of North Carolina’s 100 counties or its myriad cities, towns, and other municipal organizations.
For more information on these developments, contact the authors of this alert. To learn more about Lewis Brisbois' capabilities in this area, visit our Labor & Employment Practice page.
Philip Hinson, Managing Partner - Charlotte
Margaret Taviano, Associate