EMPLOYMENT AND LABOR LAW

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EPM has earned an excellent reputation statewide and nationally for its experience in the area of workers' rights. Two of the firm's attorneys are listed in the Best Lawyers in America in the area of employment law. Most of the firm's employment cases come from referrals from other law firms. The firm represents workers in a wide range of significant employment-related issues, including the following:

• Discrimination (Race, Sex, Disability, Age, Religion, National Origin or Pregnancy)
• Sexual Harassment
• Family and Medical Leave Act
• Americans with Disabilities Act
• Wage and Hour Problems
• Retaliatory Discharge
• Wrongful Termination
• Breach of Contract

EPM represents individuals, unions and professional organizations, including the North Carolina Association of Educators. The firm recently won a landmark case protecting the rights of wrongfully terminated teachers, a large sexual harassment case against a sheriff's department, and a First Amendment Free Speech case protecting the rights of public employees. The firm also won a case in the United States Supreme Court establishing the Constitutional right to a jury trial in certain labor cases.

GENERAL RULE OF EMPLOYMENT-AT-WILL

The general rule in North Carolina is that an employee of a private company who does not have an employment contract for a specified period of time 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 almost any reason.

EXCEPTIONS TO THE GENERAL RULE OF EMPLOYMENT-AT-WILL

There are exceptions to the rule that employees may be terminated at the will of the employer without just cause.

Contract Exceptions
If the employer and the employee have an employment contract (oral or written) for a specific time period (such as a one-year contract) or a specific project the employment-at-will rule does not apply. It also does not apply if the employee and employer are subject to a collective bargaining agreement between a union and the employer. In these two circumstances, the employee is protected by the individual contract or the union contract.

Federal and State Laws
Federal laws protect employees from discrimination in hiring, promotion, discipline, demotion, discharge, or any other conditions of employment based on race, age, gender, disability, religion, national origin or pregnancy. These federal laws only apply to employers with 15 or more employees. State laws protect employees who have pursued their legal rights under state statutes, such as filing a workers' compensation claim, wage and hour complaints, or OSHA complaints. Employees are also protected from discharge if their termination is a violation of the public policy of North Carolina. This means that an employee was fired for refusing the employer's demand to violate a law that protects the citizens of the state or for testifying against the employer.

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.

UNEMPLOYMENT

While you may not be able to successfully challenge a termination decision, you do have a right to file for unemployment compensation. In order to do so, you should visit your local office of the Employment Security Commission of North Carolina 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.

The North Carolina Employment Security Commission's home page is www.ncesc.com. The local office in Winston-Salem is at 630 West Sixth Street or by phone (336) 761-1700.

DISCRIMINATION

If you feel that you were the victim of discrimination by an employer with 15 or more employees and the discrimination was based on your race, sex, 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. You may start the charge filing process by contacting your local EEOC office and relating the facts of your case to the EEOC investigators.

Please note that you must file a written 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.

For more information the EEOC's home page is www.eeoc.gov. To file a charge contact the office of the EEOC closest to you:

1309 Annapolis Drive, Raleigh, NC 27606
(919) 856-4064

129 W. Trade Street, Suite 400, Charlotte, NC 28202
(704) 344-6682

2303 West Meadowview, Suite 201 Greensboro, NC 27407
(336) 547-4188

HARASSMENT

Harassment is a form of discrimination. If you feel you have been or are the victim of harassment, based on race, sex, disability, age, religion, national origin, or pregnancy, 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, a charge of harassment must be filed with the EEOC within 180 days of the alleged act. Whether or not your employer is covered by federal law, you may have other claims under state law. To protect your rights you must file a lawsuit against your company or the harasser before the deadline of the applicable statute of limitations. The statute of limitations can be very short. If you intend to file a lawsuit, you should do so at once.

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 (919-807-2796) and request a form to file a complaint.

A written complaint must be filed with the North Carolina Department of Labor, Employment Discrimination Bureau within 180 days of the date of the alleged retaliatory act.

Contact the Department of Labor at www.dol.state.nc.us or the

Employment Discrimination Bureau
4 W. Edenton St.
Raleigh, N.C. 27601-1092
919-807-2796
www.dol.state.nc.us/edb/edb.htm

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 workers' compensation benefits (or Form 18) with the North Carolina Industrial Commission (919-807-2500). 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 workers' compensation insurance carrier.

Contact: 
North Carolina Industrial Commission (to file for workers' compensation or ask questions about it)

4319 Mail Service Center, Raleigh, NC 27699-4319
(919) 807-2500 (main switchboard)
(919) 807-2501 or 800-688-8349
(ombudsmen; help with questions)
(919) 807-2502 (claims)
www.comp.state.nc.us/ncichome.htm

WAGE AND HOUR PROBLEMS

If you feel that you have been denied wages, overtime compensation, or other benefits including accrued bonuses, 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, benefits or overtime, you should contact one of the offices listed below. Please 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 27601-1092
(919) 807-2796 (Wage & Hour, Raleigh)
www.dol.state.nc.us

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 Rd., Suite CC-412, Charlotte, NC 28205
(704) 344-6302
www.dol.gov

FAMILY AND MEDICAL LEAVE ACT (FMLA)

Federal law requires employers with 50 or more employees within 75 miles to offer up to twelve weeks annual unpaid leave for employees who have been employed for one year or more, and 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 willful) 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. 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
4407 Bland Rd., Suite 260, Raleigh, NC 27611
(919) 790-2741
800 Briar Creek Rd., Suite CC-412, Charlotte, NC 28205
(704) 344-6302
www.dol.gov

OTHER AGENCIES

National Labor Relations Board (NLRB) (questions regarding unions or employees acting jointly about workplace issues)

Republic Square, Suite 200
4035 University Parkway or PO Box 11467
Winston-Salem, NC 27116-1467
Phone: 336-631-5201
Fax: 336-631-5210
www.nlrb.gov