Employers with operations in multiple states not only have to ensure compliance with federal laws such as Title VII and the Americans with Disabilities Act, but also with applicable state laws affecting employment. North Carolina and South Carolina may not be known for enacting as many employment laws as states like New York or California, but both states have their own unique sets of employment law oddities. Whether it relates to employee handbooks, leave and disability accommodation, wage and hour compliance, and other vital workplace issues, employers operating in North Carolina or South Carolina should be aware of several requirements that apply to workplaces in the Carolinas.
NORTH CAROLINA: REDA
Unlike other states, including South Carolina, North Carolina does not have its own state-level agency focused on the enforcement of standard equal employment opportunity (“EEO”) laws in tandem with the federal Equal Employment Opportunity Commission (“EEOC”). Thus, North Carolina employees wishing to file a Charge of Discrimination based on race, sex, age, national origin, religion, or disability must go to their local EEOC office and file a Charge under one of several federal employment discrimination statutes, including Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (“ADEA”). However, North Carolina does have the Retaliatory Employment Discrimination Bureau (“REDB”). The REDB is a division of the North Carolina Department of Justice (“NCDOJ”), and it is responsible for enforcing the North Carolina Retaliatory Employment Discrimination Act (“REDA”).
REDA is a truly unique state law, in that it specifically prohibits retaliation against employees engaging in a certain set of protected activities. These activities include filing a claim or complaint, initiating any inquiry, investigation, inspection, proceeding or other action, or testifying or providing information to any person with respect to any of the following statutorily covered topics: workers’ compensation, wage and hour, occupational safety and health, mine safety and health, discrimination based on sickle cell or hemoglobin c traits or genetic testing and information, National Guard reemployment, or workplace violence. REDA was enacted in 1992 after the 1991 Hamlet, North Carolina chicken plant fire that killed 25 workers and injured 40 others, and it was meant to address workplace retaliation across several areas already governed by state statutes. Note however, that REDA does not cover retaliation for protected activity connected to standard EEO discrimination. North Carolina employees wishing to complain of retaliation under Title VII, the ADA, or the ADEA must still file a Charge of Discrimination with the EEOC.
NORTH CAROLINA: WAGE AND HOUR
In addition to the protections afforded by REDA, North Carolina has several unique wage and hour requirements. For instance, at the time of hiring, North Carolina employers must notify their employees in writing of the promised wages and the time and place for payment. North Carolina employers must also notify their employees in writing at least one pay period prior to any changes in promised wages, though wages may be retroactively increased without such a prior notice. North Carolina employers should note that this requirement was changed in July 2021 (previously only 24-hours’ notice required). While the North Carolina Wage and Hour Act does not require employers to provide paid vacation, if an employer does provide paid vacation, then such vacation will typically be treated as a wage, and the employer must enact a policy that addresses when and how the vacation is earned, whether and how much vacation time may be carried forward from one year to the next, when vacation time must be taken, when and if vacation pay may be paid in lieu of time off, and under what conditions vacation pay is forfeited on termination of employment. If the employer’s policies on these topics are unclear or ambiguous, the policies will be construed in favor of the employees. The North Carolina Wage and Hour Act also prohibits deductions from employee pay unless they are authorized or required by law or amount is known and has been specifically agreed to in advance by the employee through a written authorization.
NORTH CAROLINA: LEAVE
North Carolina employers are required to provide four hours per year of unpaid leave to any employee who is a parent, guardian, or person standing in loco parentis of a school-aged child so that the employee may attend or otherwise be involved at that child’s school. Employers can require the employee to submit a written request at least 48 hours before the time desired for the leave as well as written verification from the child’s school that the employee attended or was otherwise involved at the school event. North Carolina employers are also required to provide unpaid leave for employees called to serve jury duty or as part of a grand jury. North Carolina further requires employers to provide leave to employees for “a reasonable period of time” to obtain protective orders or other relief from domestic violence.
NORTH CAROLINA: LAWFUL USE OF LAWFUL PRODUCTS
North Carolina employers with three or more regularly employed employees are prohibited from discriminating against employees for their use of lawful products such as alcohol or tobacco. To qualify for protection, the employee’s use of the legal product must be off the employer’s premises during non-working hours. The use must also not affect the employee’s job performance or the safety of other employees. While generally used to protect tobacco and alcohol use by employees, this law will have renewed relevance if North Carolina ever legalizes the recreational use of marijuana.
SOUTH CAROLINA: HANDBOOK DISCLAIMERS
Like North Carolina, South Carolina is an at-will employment state. Many employers, however, do not realize that South Carolina has very specific requirements for employee handbooks to avoid being considered express or implied contracts of employment. In particular, employers who want to avoid having their handbooks be considered contracts by employees must place a conspicuous disclaimer on the first page of the handbook. The disclaimer must be in underlined, all-caps letters, and signed by the employee. It is also advisable to expressly state the at-will status of employees in the disclaimer, confirming that this at-will status cannot be modified by anyone except the employer’s senior management through a signed, written agreement.
SOUTH CAROLINA: PREGNANCY AND LACTATION ACCOMMODATION
South Carolina has two statutes providing for the accommodation of pregnant and lactating workers in the workplace. The South Carolina Pregnancy Accommodations Act prohibits discrimination against pregnant women and requires employers to provide reasonable accommodations to employees and applicants for medical needs arising from pregnancy, childbirth, or related medical conditions. The South Carolina Lactation Support Act requires employers to provide a reasonable amount of unpaid break time to employees wishing to express breast milk at work. Employees must also be allowed to use paid break time or meal time for such purposes, if requested. However, an employer is not required to provide break time if doing so would create an undue hardship on its operations. The break time provided can also run concurrently with break time already provided to the employee. The South Carolina Lactation Support Act also requires employers to make reasonable efforts to provide a room or other location, other than a toilet stall, in close proximity to the work area, for an employee to express breast milk in privacy. Notably, the South Carolina Lactation Support Act does not require an employer to construct permanent, dedicated space for expressing milk. Employees wishing to file claims of discrimination under either the Pregnancy Accommodations Act or the Lactation Support Act can file a charge of discrimination with the South Carolina Human Affairs Commission (“SCHAC”), South Carolina’s state EEO agency working in tandem with the EEOC. In addition to claims under the laws described in this paragraph, SCHAC also enforces discrimination claims related to sex, religion, race, color, national origin, age, and disability brought under the South Carolina Human Affairs Law.
SOUTH CAROLINA: EMPLOYEE POLITICAL OPINIONS
South Carolina makes it a crime to “discharge a citizen from employment or occupation . . . because of political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State.” In certain circumstances, an employee in South Carolina may bring a lawsuit against their employer for wrongful termination when this section is violated, effectively making the political opinion of an employee a protected class of its own. South Carolina employers should thus exercise caution when making decisions to terminate employees over opinions voiced on social media.
SOUTH CAROLINA: LEAVE
While South Carolina does not, unlike North Carolina, explicitly provide for unpaid jury duty leave, it does prohibit employers from discharging or demoting employees for taking jury duty leave or leave to comply with a subpoena. South Carolina also allows employers to grant paid leave to employees to donate bone marrow, but the combined length of such periods of absence cannot exceed 40 hours unless the employer agrees to it. An employer may not retaliate against an employee for requesting or obtaining leave to donate bone marrow.
SOUTH CAROLINA: WAGE AND HOUR
At the time of hire, South Carolina employers must provide notice to their employees in writing regarding the amount of wages the employee is to receive, the normal hours of work, the time and place of payment of wages, and deductions to be made from any paycheck. South Carolina employers must also notify employees in writing of any deductions to be made from wages or reductions in normal wage rates at least 7 calendar days before the deductions or reductions become effective. South Carolina does not require the payment of accrued vacation or sick time upon termination unless an employer’s policy specifies that an employee is entitled to such accrued time upon termination.
Though North Carolina and South Carolina may not be known for their extensive employment laws, employers would do well to review each state’s particular employment oddities before continuing to conduct business in the Carolinas. This article highlights some of these unique laws, but cannot cover them all. As one example, it is beyond the scope of this article to address the state-specific requirements of non-competition agreements (and North Carolina and South Carolina have unique principals of law in that area). As always, when in doubt, reach out to legal counsel for assistance.
Mr. McCracken joined Wyrick Robbins’ Employment Practice Group in May 2021. He is licensed to practice in both North Carolina and South Carolina.
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