Workplace Fairness

1. What legal protection does North Carolina provide private sector employees in regard to whistleblowing and retaliation?

The general rule is that most employees may be fired at any time for any reason or for no reason at all under what is known as the at-will employment doctrine. However, in the past half-century, many exceptions to the general rule have emerged. Exceptions to this general rule can come from two sources: (1) courts, which modify and make "common law protections" or (2) the legislature, which enacts "statutory protections." Statutory protections tend to be specific, addressing certain subject areas (such as discrimination, workers' compensation, etc.). Yet, legislators often lack the foresight to address every possible situation of retaliation. Common law protections, on the other hand, tend to "fill the gaps" where no statute exists for a given situation.

Common Law Protections
North Carolina recognizes a public policy exception to the at-will employment doctrine. An employer may not discharge an employee for a reason that contravenes public policy. An employee has a cause of action in other words, the employee may sue for wrongful discharge when the discharge is done in contravention of public policy.

To determine what constitutes public policy, North Carolina courts will look to statutes and constitutional provisions to determine if a given practice has been endorsed (e.g. the right to collect workers' compensation benefits) or prohibited (e.g. a criminal statute). So, for example, because a North Carolina statute endorses an employee's right to collect workers' compensation benefits, an employer who retaliates against an employee for invoking that right would be contravening public policy. On the other side of the same coin, because criminal statutes prohibit perjury, an employer who coerces an employee to commit perjury by threats of reprisal is also contravening North Carolina's public policy. In both situations, employees are protected from retaliatory discharge.

Statutory Protections
In addition, the North Carolina General Assembly has adopted a general anti-retaliation statute, the Retaliatory Employment Discrimination Act (REDA). REDA protects employees from retaliation for certain activities, including filing a workers' compensation claim, filing an occupational safety and health complaint, and filing complaints under wage and hour laws. In addition to REDA, North Carolina has adopted narrow statutory protections for other activities. Employees who engage in protected activities under laws in the following subject areas are protected from retaliation: discrimination (disabled persons), unemployment proceeding, and toxic/hazardous substances.

Other Protections
In addition to the above state protections, federal law provides workers with additional protections. Furthermore, a private contract or collective bargaining agreement may also protect employees from certain forms of retaliation.

2. What activities does state law protect, and to whom does this protection apply?

Common Law Protections
An employee may not be discharged for a reason that contravenes the public policy of the state of North Carolina. Specifically, employees are protected from retaliatory discharge for the following protected activities:

• Refusing to engage in unlawful conduct
• Refusing to engage in conduct that threatens public safety
• Refusing to testify untruthfully or incompletely in court
• Refusing to work for less than the state minimum wage
• Assisting authorities in a criminal investigation

Thus, whistleblowers receive some protection under present North Carolina common law. These protections are in addition to the statutory protections passed by the North Carolina General Assembly.

Statutory Protections
General Anti-Retaliation Protection: Under the Retaliatory Employment Discrimination Act (REDA) , an employee may not be discharged (or discriminated against) in retaliation for performing the following activities (or threatening to perform the following activities) in good faith:

• (1) Filing a claim or complaint; (2) initiating an inquiry, investigation, inspection, proceeding, or other action; or, (3) providing information or testimony to any person concerning the following North Carolina laws:
  • Workers' Compensation Act
  • Wage and Hour Act
  • Occupational Safety and Health Act
  • Mine Safety and Health Act
  • Statute prohibiting discrimination on the basis of sickle cell trait or hemoglobin C trait
  • Statute prohibiting discrimination on the basis of information obtained from genetic testing
  • National Guard Employment Rights laws
• Exercising a right, either personally or on behalf of another employee, afforded by the following North Carolina laws:
  • Wage and Hour Act
  • Occupational Safety and Health Act
  • Mine Safety and Health Act
• Complying with the provisions under North Carolina's juvenile code that require certain conduct of parents (for example, attending juvenile delinquency hearings, providing transportation for a juvenile to the court, paying for medical or psychiatric treatment)
• Exercising rights under North Carolina's domestic violence laws (for example, taking time off from work to obtain a restraining order)

Discrimination - Disabled Persons: An employee may not be discharged (or discriminated against) in retaliation for opposing an employment practice that unlawfully discriminates against disabled persons. Nor may an employee may be discharged (or discriminated against) in retaliation for testifying, assisting, or participating in a proceeding under North Carolina's Persons With Disabilities Protection Act. N.C. Gen. Stat. § 168A-10.

Employment Security Act Unemployment Proceeding: An employee may not be discharged (or discriminated against) in retaliation for testifying or being summoned to testify in a proceeding under the Employment Security Act (ESA). The ESA is, among other things, the legal basis for the state's unemployment insurance. N.C. Gen. Stat. § 96-15.1.

Public Employees: An employee of a state agency or department may not be retaliated against for reporting a violation of state or federal law, fraud, misappropriation of state resources, a danger to public health and safety, or gross mismanagement. N.C. Gen. Stat. § 126-85

Retirement: An employee may not be discharged for furnishing information to the Retirement Systems Board in furtherance of an investigation. N.C. Gen. Stat. § 128-38.6.

Teachers (Sexual Harassment): An employee of a school board may not be discharged or discriminated against for alleging sexual harassment. N.C. Gen. Stat. § 115C-335.5.

Toxic or Hazardous Substances: An employee may not be discharged (or discriminated against) in retaliation for assisting in an investigation, testifying in a proceeding, or exercising a right concerning toxic or hazardous substances. N.C. Gen. Stat. § 95-196.

3. How do I file a whistleblower or retaliation claim in North Carolina?

Generally: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed with 3 years of the retaliatory action, unless otherwise specified by statute. If you believe you have a claim, you should contact a lawyer. N.C. Gen Stat. § 1-52(5).

General Anti-Retaliation Protection: Under the Retaliatory Employment Discrimination Act (REDA), an employee may file a written complaint with the North Carolina Department of Labor, Employment Discrimination Bureau (EDB). The complaint must be filed within 180 days of the retaliatory action. EDB will investigate the matter and then make a preliminary determination of whether there is reasonable cause to find that the discharge was unlawful.

If EDB finds that there is not reasonable cause (i.e. a finding against the employee), EDB will grant a right-to-sue letter, and the employee's only recourse will be to file a lawsuit. If EDB finds that there is reasonable cause (i.e. a finding for the employee), EDB will attempt to correct the violation through informal methods (conference, conciliation, persuasion). If these attempts are unsuccessful, EDB may file a lawsuit on your behalf or issue a right-to-sue letter to the employee.

An employee has the right to request a right-to-sue letter after 180 days have passed since the filing of the complaint, unless EDB has already filed a lawsuit on the employee's behalf.

An employee may only proceed with a lawsuit if the employee has obtained a right-to-sue letter from the Department of Labor. An employee must file a lawsuit in an appropriate court within 90 days of the date on which the right-to-sue letter was issued.

If you believe you have a claim, you should contact the North Carolina Department of Labor, Employment Discrimination Bureau (EDB) immediately at:

Workplace Retaliatory Discrimination Office
North Carolina Department of Labor
4 West Edenton Street
Raleigh, NC 27601

Phone: 1-800-NC-LABOR (1-800-625-2267)
E-mail: ask.edb@nclabor.com
Web: http://www.nclabor.com/edb/edb.htm
REDA Information: http://www.nclabor.com/edb/reda_act.pdf

Disabled Persons: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within 180 days of the retaliatory action. However, if an employee chooses to file a lawsuit or commence administrative proceedings under federal law (such as the American with Disabilities Act of 1990), the employee cannot proceed with a lawsuit in state court alleging violations of North Carolina's Persons With Disabilities Protection Act. If you believe you have a claim, you should contact a lawyer immedi

Employment Security Act Unemployment Proceeding: An employee may file a lawsuit in an appropriate court. The lawsuit must be filed within one year of the retaliatory action. If you believe you have a claim, you should contact a lawyer immediately.