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L A W L I B R A R Y:
General Information About Your Employment Rights:
Written by Robert M. Elliot & J. Griffin Morgan, Attorneys at
Law
Questions &
Answers about Your Employment Rights
GENERAL
INFORMATION
Generally, under
North Carolina Law, an employee of a private company without a valid
employment contract can be terminated at any time without just
cause. Unfortunately, this means that an employer's decision to
terminate an employee does not have to be fair or reasonable or
based on fact. Since the employee is "at-will" he or she
can be terminated at the will of the employer at any time for any
reason. This is not true if the employer and the employee have a
valid contract (either oral or written) for employment for a
specific time period or project; in this event, the employee is
protected by the contract.
There are exceptions
to the rule that employees may be terminated at the will of the
employer without just cause. These are exceptions which are provided
by our federal and state statutes which protect employees from
discrimination based on race, age, gender, disability, religion,
national origin or pregnancy. Other exceptions protect employees who
have pursued their legal rights under other statutes (such as filing
workers' compensation claims, sexual harassment claims, wage and
hour complaints, OSHA complaints, etc.); or who are protected by the
public policy of North Carolina (for refusing to violate the law,
for testifying against the employer, etc.).
Some of the
exceptions to the employer's at-will ability to terminate employees
are discussed below. The contact information for the appropriate
agency is also provided.
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UNEMPLOYMENT
While you may have no
right to challenge a termination decision, you do have a right
(assuming you meet the coverage requirements) to file for
unemployment compensation. In order to do so, you should visit your
local office of the Employment Security Commission of North Carolina
(in Winston-Salem, 630 West Sixth Street, 761-1700) and file a
claim. The Commission will make an initial decision based on your
claim and the response of the company. If you are unsuccessful at
that point, you can request a hearing before an appeals referee and
present your evidence. If you prove that you were terminated without
cause, you should be eligible for unemployment compensation. If, on
the other hand, the employer is successful in proving you were
terminated for misconduct or substantial fault, you may be
disqualified from all or a portion of your benefits.
Contact
Employment Security Commission of North Carolina
630 West Sixth Street
Winston-Salem, NC 27101
(336)761-1700
Other Agencies
National Labor
Relations Board (NLRB)
PO Box 11467 Winston Salem NC 27116-1467
Phone: 336-631-5201
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DISCRIMINATION
If you feel that you
were the victim of discrimination based on race, sex (including
sexual harassment), disability, age, religion, national origin, or
pregnancy, you should file a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC), a federal agency which
enforces laws against discrimination in this area. You may file a
charge by contacting your local EEOC office and relating the facts
of your case to the EEOC investigators.
Please note that you
must file a charge of discrimination within 180 days of the
discriminatory act (whether it is a notice of termination, failure
to promote, denial of benefits, or some other act during your
employment relationship). If you intend to file a charge of
discrimination, you should do so at once.
Contact the
branch of the EEOC closest to you
- 2303 West Meadowview, Suite 201. Greensboro, NC 27407
(336) 547-4188
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HARASSMENT
If you feel you have
been or are the victim of sexual or racial harassment, you should
carefully document each incident and report the harassment in
writing to the appropriate supervisor or upper management employee.
If your employer is covered under our federal discrimination laws
(has 15 or more employees), a charge of harassment must be filed
with the Equal Employment Opportunity Commission (EEOC)
(910-333-5174) within 180 days of the alleged act. Whether your
employer is covered by federal or state law, you may file a lawsuit
against your company and/or the harasser before the deadline of the
applicable statute of limitations, which generally run from 1-3
years depending on the type of action.
See Contact
Information for EEOC above.
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RETALIATORY
DISCHARGE
If you feel you have
been terminated, discriminated against, or retaliated against
because you have pursued a claim, filed a complaint, initiated an
inquiry, investigation or inspection, testified or provided
information with respect to Workers' Compensation, OSHA, the Wage
& Hour Act, the Mine Health & Safety Act, or some other
administrative claim (such as discrimination against a person with
sickle cell), you may file a complaint with the North Carolina
Department of Labor. This agency investigates complaints in which
employees believe they were discriminated or retaliated against
because of exercising their lawful rights under laws protecting
employees and other statutes relating to labor practices in North
Carolina. If you feel this may apply to your employment situation,
you should call the North Carolina Department of Labor
(919-733-2152) and request a form to file a complaint.
A written complaint
must be filed with the North Carolina Department of Labor, WRDD
Division within 180 days of the date of the alleged retaliatory act.
Contact
Workplace Retaliatory
Discrimination Division
Employment Discrimination Bureau of the NC Department of Labor
4 W. Edenton St.
Raleigh, NC 27601-1092
(919) 807-2796
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WORKERS'
COMPENSATION
If you have been
injured or contracted an occupational disease during the course of
your employment, you may have a claim for compensation under the
North Carolina Workers' Compensation Act. This Act requires that the
employer or its insurance carrier pay benefits and medical expenses
for many injuries or occupational diseases sustained by employees on
the job. You have two (2) years from the date of injury to file a
written claim for worker's compensation benefits (or Form 18) with
the North Carolina Industrial Commission (919-733-4820). The
Industrial Commission can provide you with free claim forms, as well
as its information pamphlet, The Bulletin. You may also
contact the Industrial Commission (Statistics Department) to obtain
the name, address and telephone number of the employer's worker's
compensation insurance carrier.
Contact
North Carolina
Industrial Commission (to file for workers' compensation
or ask questions about it)
430 N. Salisbury Street, Raleigh, NC 27603
(919) 733-4820 (main switchboard)
(919) 733-0345 (ombudsmen; help with questions)
(919) 733-5020 (claims)
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WAGE
AND HOUR PROBLEMS
If you feel that you
have been denied wages, overtime compensation, or other benefits
including accrued vacation and sick leave, you may file a complaint
with the North Carolina Department of Labor or the United States
Department of Labor. These agencies investigate complaints which
fall under either the North Carolina or federal wage and hour laws
(depending on the size of the employer, the type of business
conducted, and the type of work done by the employee). You have two
(2) years (three (3) years if the employer's violation was willful)
after the date wages were due and payable to file a private lawsuit
to recover unpaid wages from the employer. You should assume that
your statute of limitations is two (2) years, not three (3) years,
since it is very rare for a court to extend the time for filing a
complaint to three (3) years. If you feel you have been wrongfully
denied wages or overtime, you should contact one of the offices
listed below. Pleases note that the filing of a charge with the
North Carolina Department of Labor or the U.S. Department of Labor
does not prevent your statute of limitations from expiring on a
private lawsuit.
Contact
North Carolina
Department of Labor (state minimum wage & overtime; unpaid vacation;
employment of children; & deductions from paychecks)
4 West Edenton Street, Raleigh, NC 27603
(910) 807-2796
U.S. Department of
Labor (federal minimum wage & overtime; polygraph tests; family
& medical leave)
4407 Bland Rd., Suite 260, Raleigh, NC 27611
(919) 790-2741
800 Briar Creek Road, Suite CC-412, Charlotte, NC 28205
(704) 344-6302
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FAMILY
and MEDICAL LEAVE ACT (FMLA)
Federal law requires
certain employers to offer up to twelve weeks annual unpaid leave
for employees who are in various situations, including those who are
seriously sick or injured, have an immediate family member who is
seriously sick or injured, are adopting a child, or have just given
birth. You may qualify for this type of leave, depending on the size
of your employer, the length of your employment, and your health or
family situation. If you are eligible for this type of leave and
your employer denies it to you, you have two (2) years after the
last action you contend was in violation of the Act (three (3) years
if the employer's violation was wilful) to file a private lawsuit in
court against the employer. You should assume that your statute of
limitations is two (2) years, not three (3) years, since it is very
rare for a court to extend the time for filing a complaint to three
(3) years.
If you feel you have
been wrongfully denied leave under the Act, you should contact the
local office of the U.S. Department of Labor (Winston-Salem,
631-5155). Please note that the filing of a charge with the U.S.
Department of Labor does not prevent your statute of limitations
from expiring on a private lawsuit.
Contact
U.S. Department of
Labor (federal minimum wage & overtime;
polygraph tests; family & medical leave)
4407 Bland Rd., Suite 260, Raleigh, NC 27611
(919) 790-2741
800 Briar Creek Road,
Suite CC-412, Charlotte, NC 28205
(704) 344-6302
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