The Status of Workplace State Law Discrimination Claims in North Carolina

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On March 23, 2016, in House Bill 2 (HB2), notoriously known as the “Bathroom Bill,” the North Carolina General Assembly set out that the North Carolina Employment Practices Act (NCEEPA) (N.C.G.S. Chapter 143) did not provide a cause of action for wrongful termination based on discrimination. The NCEEPA covers employers with 15 or more employees and provided a discrimination cause of action against employers who discriminated on the basis of race, religion, color, national origin, age, sex or handicap in employment. The statute of limitations was three (3) years in state court.

This change in North Carolina law did not affect employee rights under federal law. If employees wish to file a federal claim, the procedure is entirely different and the statute of limitations is much shorter–180 days to file a charge with the Equal Employment Opportunity Commission and then 90 days to file a lawsuit in federal court, after the EEOC concludes its investigation and issues its determination.

On July 18, 2016, the General Assembly restored the right of employees under the NCEEPA to bring wrongful discharge claims for employment discrimination in state court, but shortened the statute of limitations to one (1) year. The NCEEPA clearly does not prohibit employment discrimination against LBGT persons.

The text of the revised NCEEPA sets out: “It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, biological sex or handicap by employers which regularly employ 15 or more employees.”

Employment discrimination against LBGT persons still violates federal law, and North Carolina employers must comply with both federal and state laws in terms and conditions of employment.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

 

 

EEOC Issues Guidance on Depression, PTSD and Other Mental Health Conditions in Workplace

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On December 12, 2016, the EEOC published information summarizing the rights of individuals in the workplace who suffer from depression, PTSD, and other mental health conditions. The information covers information such as discrimination and harassment, privacy and reasonable accommodations in the workplace.

The link to the publication is https://www.eeoc.gov/eeoc/publications/mental_health.cfm.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

Document and Communicate with Employees about Performance Deficiencies

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For multiple reasons, it is imperative that employers document and communicate performance deficiencies with the employee and keep written documentation in the employee’s personnel file. The write-up and counseling should occur at the time the deficiency occurs not at the annual review.

This written documentation and communication with the employee is important to defend against litigation. First, if the employee files an employment discrimination claim, the record of performance deficiency and the employee’s knowledge of the issues illustrate a legitimate, non-discriminatory reason for termination. Second, it may save the employer from paying unemployment benefits. The documented performance problems may illustrate misconduct, which will exclude the employee from receiving unemployment. If the employee were to receive unemployment benefits, they would be charged to the employer’s unemployment account.

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.

Actual Notice Needed for Employees to be Bound to Arbitration

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The fact that two terminated employees signed an acknowledgement of an arbitration agreement is not enough to force the employees to arbitrate their employment discrimination complaints.

Jonathan Collier and Robert McQuen admitted that they signed forms acknowledging their receipt of and promise to be bound by their employer’s arbitration agreement; however, they deny ever receiving the arbitration agreement itself. The failure to receive the actual agreement was fatal in this case.

The court in Collier v. RD America, LLC, held that “without actual notice of the contract’s terms, the contract lacked mutual assent and is not valid and enforceable.”

For help with employment law questions or other civil litigation issues, call Tracy Stroud, Attorney with Colombo Kitchin Attorneys in Greenville, NC, at 252-321-2020.