Employment Law in North Carolina
North Carolina Employment Law Attorneys
Practice Areas
The most common areas of North Carolina Employment Law that we practice include issues surrounding North Carolina Unemployment Insurance Benefits, Wrongful Discharge / Termination for North Carolina employees, Employment Discrimination, Harassment, and Retaliation based on a protected category under Federal Law (including under statutes enforced by the EEOC), Retaliatory Employment Discrimination Act Violations (REDA Cases), and Wage and Hour Violations (both under the Fair Labor Standards Act and the North Carolina Wage and Hour Act). We represent clients statewide in North Carolina Employment Law matters.
Severance
Non-competes
Retaliatory Employment Discrimination
Unpaid Wages
Wrongful Discharge
Employment Contracts
Employment Compliance
Cost of Services
The cost and method of billing depends on the type of case. For many things, including unemployment hearings, usually a low flat fee is all it takes to get legal representation. For other types of cases, we employ some creative methods of billing to make sure we can keep the lights on, but you still have the ability to get legal representation. During the initial consultation, we go over the available options in detail.
Starting the Process
The process starts with a phone call (919.244.2019), e-mail (law@hoplerwilms.com), or using our website’s contact link to reach us. Once our attorneys get that initial contact from you, we will get some general information about your case and arrange some time for a consultation. During the consultation, we review any relevant documents you bring and learn all the facts about the employment issue you are facing. Then, we chart out your options and show you what paths you have available and what things you can expect from each path. If one of your paths includes hiring a North Carolina licensed attorney, we discuss how to formalize our representation.
To learn more about the areas of Employment Law we practice, we’ve provided some general information. Keep in mind the laws change all the time and the information we’ve provided is not meant as legal advice.
Thank you for considering Hopler, Wilms, & Hanna PLLC for your Employment Law issue.
Non-Compete Agreements in North Carolina – Raleigh Non-Compete Attorney
It’s important to know if you are agreeing to an enforceable non-compete agreement under North Carolina law and what exactly the non-compete forbids. We can review a North Carolina non-compete with you and help you negotiate one that is fair. North Carolina Non-Compete Agreements or “Covenants Not to Compete” are usually enforceable if certain requirements are met:
Writing
First, non-competes must be in writing.
Consideration
Second, they must be supported by consideration. If you are at the start of employment, continued employment is sufficient. If you are at another point of employment, you have to have something besides continued employment to be sufficient.
Time and Territory
Third, covenants must be reasonable as to time and territory. This includes a geographic reference, and the following factors are considered in determining reasonableness: (1) the area, or scope, of the restriction, (2) the area assigned to employee, (3) the area in which the employee actually worked or was subject to work, (4) the area in which the employer operated, (5) the nature of the business involved, and (6) the nature of the employee’s duty and his knowledge of the employer’s business operation.
Employment Contract
Fourth, covenants have to be part of an otherwise valid employment contract.
Legitimate Business Interest
Fifth, covenants have to be designed to protect a legitimate business interest. To analyze this requirement, we ask if the nature of the employment brings the employee in personal contact with patrons or customers of the employer. If not, we ask if the nature of employment allows him to acquire valuable information as to the nature and character of the business and the names and requirements of the patrons or customers. If the answer to both of these questions is no, then there is not a legitimate business interest. If either answer is yes, then we must ask if this contact or information enables him to take advantage of such knowledge of or acquaintance with the patrons and customers of his former employer and gain an unfair advantage. If so, equity will interpose on behalf of the employer and restrain the breach.
Public Policy
Sixth, the covenant cannot violate public policy. A court cannot rewrite a covenant to be reasonable unless it is stipulated in the employment contract.
At Hopler, Wilms, and Hanna, we can help you draft, review, or negotiate a North Carolina non-compete prior to employment or as part of a severance package.
If you would like to contact an Employment Law Attorney to draft, review, or negotiate a non-compete under North Carolina law, you can reach us here.
Severance Agreements for North Carolina Clients
When the employment relationship comes to an end, the employee may have an uncertain financial future, and has to consider many things very quickly. One of these things that occasionally occurs is whether the employee will sign a severance agreement drafted by the employer.
The Severance Agreement, often called a Separation and Release Agreement, often gives the employee some type of compensation and perhaps some health benefits in exchange for many non-economic things, such as a release of claims, confidentiality, and non-disparagement. There also could be a non-compete provision in the agreement which takes away your ability to work for a period of time. Given the complexity of these agreements and the short window of consideration, it’s not uncommon for an employee to seek a review by an attorney.
Some severance plans are covered under ERISA, are subject to many rules regarding eligibility, and include appeal rights if you are denied severance. However, most severance agreements are the result of a voluntary act on the part of the Employer. Many do so as a gesture of good will to a departing employee, some do it to thank the employee for their years of service or for the accolades they received when they were employed. Others provide severance to protect their reputation or to eliminate the possibility of being sued by the employee.
A recipient of severance is often giving up many rights, and it is advisable to seek legal counsel to review the severance agreement with you. In fact, the severance agreements often state that you have been advised to seek counsel and have sought counsel to the extent you wanted.
The Employment Law Attorneys at Hopler, Wilms, and Hanna can review your severance agreement, consult with you about your severance package, and often negotiate severance on your behalf.
If you are interested in discussing a severance agreement with the Employment Law Attorneys at Hopler, Wilms, and Hanna you can contact us here.
Employment Discrimination
Unlawful Discrimination and harassment in the workplace is common and is prohibited by state and federal law. Below is more information about the the categories of discrimination which are prohibited.
Racial Discrimination
Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features). Color discrimination involves treating someone unfavorably because of skin color complexion.
Race/color discrimination also can involve treating someone unfavorably because the person is married to (or associated with) a person of a certain race or color or because of a person’s connection with a race-based organization or group, or an organization or group that is generally associated with people of a certain color.
Discrimination can occur when the victim and the person who inflicted the discrimination are the same race or color.
Race/Color Discrimination & Work Situations
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Race/Color Discrimination & Harassment
It is unlawful to harass a person because of that person’s race or color.
Harassment can include, for example, racial slurs, offensive or derogatory remarks about a person’s race or color, or the display of racially-offensive symbols. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Race/Color Discrimination & Employment Policies/Practices
An employment policy or practice that applies to everyone, regardless of race or color, can be illegal if it has a negative impact on the employment of people of a particular race or color and is not job-related and necessary to the operation of the business.
National Origin Discrimination
National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not).
National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin or because of their connection with an ethnic organization or group.
Discrimination can occur when the victim and the person who inflicted the discrimination are the same national origin.
National Origin Discrimination & Work Situations
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
National Origin & Harassment
It is unlawful to harass a person because of his or her national origin. Harassment can include, for example, offensive or derogatory remarks about a person’s national origin, accent or ethnicity. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
National Origin & Employment Policies/Practices
The law makes it illegal for an employer or other covered entity to use an employment policy or practice that applies to everyone, regardless of national origin, if it has a negative impact on people of a certain national origin and is not job-related or necessary to the operation of the business.
An employer can only require an employee to speak fluent English if fluency in English is necessary to perform the job effectively. An “English-only rule”, which requires employees to speak only English on the job, is only allowed if it is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.
An employer may not base an employment decision on an employee’s foreign accent, unless the accent seriously interferes with the employee’s job performance.
Age Discrimination
Age discrimination involves treating someone (an applicant or employee) less favorably because of his age.
The Age Discrimination in Employment Act (ADEA) only forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination.
It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older.
Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.
Age Discrimination & Work Situations
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Age Discrimination & Harassment
It is unlawful to harass a person because of his or her age.
Harassment can include, for example, offensive remarks about a person’s age. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Age Discrimination & Employment Policies/Practices
An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age.
Disability Discrimination
Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act, as amended, or the Rehabilitation Act, as amended, treats a qualified individual with a disability who is an employee or applicant unfavorably because she has a disability.
Disability discrimination also occurs when a covered employer or other entity treats an applicant or employee less favorably because she has a history of a disability (such as cancer that is controlled or in remission) or because she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if she does not have such an impairment).
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).
The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability.
Disability Discrimination & Work Situations
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Disability Discrimination & Harassment
It is illegal to harass an applicant or employee because he has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Harassment can include, for example, offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Disability Discrimination & Reasonable Accommodation
The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.
A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.
While the federal anti-discrimination laws don’t require an employer to accommodate an employee who must care for a disabled family member, the Family and Medical Leave Act (FMLA) may require an employer to take such steps.
Disability Discrimination & Reasonable Accommodation & Undue Hardship
An employer doesn’t have to provide an accommodation if doing so would cause undue hardship to the employer.
Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.
Definition Of Disability
Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law.
A person can show that he or she has a disability in one of three ways:
- A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
- A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
- A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).
Disability & Medical Exams During Employment Application & Interview Stage
The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability.
For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability). An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.
Disability & Medical Exams After A Job Offer For Employment
After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.
Disability & Medical Exams For Persons Who Have Started Working As Employees
Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.
The law also requires that employers keep all medical records and information confidential and in separate medical files.
Religious Discrimination
Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.
Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion or because of his or her connection with a religious organization or group.
Religious Discrimination & Work Situations
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Religious Discrimination & Harassment
It is illegal to harass a person because of his or her religion.
Harassment can include, for example, offensive remarks about a person’s religious beliefs or practices. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Religious Discrimination and Segregation
Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or feared customer preference.
Religious Discrimination & Reasonable Accommodation
The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.
Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.
Religious Accommodation/Dress & Grooming Policies
Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices. This applies not only to schedule changes or leave for religious observances, but also to such things as dress or grooming practices that an employee has for religious reasons. These might include, for example, wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf), or wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard). It also includes an employee’s observance of a religious prohibition against wearing certain garments (such as pants or miniskirts).
When an employee or applicant needs a dress or grooming accommodation for religious reasons, he should notify the employer that he needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If it would not pose an undue hardship, the employer must grant the accommodation.
Religious Discrimination & Reasonable Accommodation & Undue Hardship
An employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.
Religious Discrimination And Employment Policies/Practices
An employee cannot be forced to participate (or not participate) in a religious activity as a condition of employment.
Sex-Based Discrimination
Sex discrimination involves treating someone (an applicant or employee) unfavorably because of that person’s sex.
Sex discrimination also can involve treating someone less favorably because of his or her connection with an organization or group that is generally associated with people of a certain sex.
Sex Discrimination & Work Situations
The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
Sex Discrimination Harassment
It is unlawful to harass a person because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Sex Discrimination & Employment Policies/Practices
An employment policy or practice that applies to everyone, regardless of sex, can be illegal if it has a negative impact on the employment of people of a certain sex and is not job-related or necessary to the operation of the business.
Sexual Harassment
It is unlawful to harass a person (an applicant or employee) because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.
Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).
The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Pregnancy Discrimination
Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.
Pregnancy Discrimination & Work Situations
The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.
Pregnancy Discrimination & Temporary Disability
If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees.
Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense). The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.
Pregnancy Discrimination & Harassment
It is unlawful to harass a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.
Pregnancy, Maternity & Parental Leave
Under the PDA, an employer that allows temporarily disabled employees to take disability leave or leave without pay, must allow an employee who is temporarily disabled due to pregnancy to do the same.
An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.
Further, under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.
Pregnancy & Workplace Laws
Pregnant employees may have additional rights under the Family and Medical Leave Act (FMLA), which is enforced by the U.S. Department of Labor. Nursing mothers may also have the right to express milk in the workplace under a provision of the Fair Labor Standards Act enforced by the U.S. Department of Labor’s Wage and Hour Division.
Genetic Information Discrimination
Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Title II of GINA prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs – referred to as “covered entities”) from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.
The EEOC enforces Title II of GINA (dealing with genetic discrimination in employment). The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.
Definition of “Genetic Information”
Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e. family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.
Discrimination Because of Genetic Information
The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information is not relevant to an individual’s current ability to work.
Harassment Because of Genetic Information
Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employee’s genetic information, or about the genetic information of a relative of the applicant or employee. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area of the workplace, a co-worker, or someone who is not an employee, such as a client or customer.
Retaliation
Under GINA, it is illegal to fire, demote, harass, or otherwise “retaliate” against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination.
Rules Against Acquiring Genetic Information
It will usually be unlawful for a covered entity to get genetic information. There are six narrow exceptions to this prohibition:
- Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family member’s illness.
- Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met.
- Family medical history may be acquired as part of the certification process for FMLA leave (or leave under similar state or local laws or pursuant to an employer policy), where an employee is asking for leave to care for a family member with a serious health condition.
- Genetic information may be acquired through commercially and publicly available documents like newspapers, as long as the employer is not searching those sources with the intent of finding genetic information or accessing sources from which they are likely to acquire genetic information (such as websites and on-line discussion groups that focus on issues such as genetic testing of individuals and genetic discrimination).
- Genetic information may be acquired through a genetic monitoring program that monitors the biological effects of toxic substances in the workplace where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary.
Acquisition of genetic information of employees by employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination.
Confidentiality of Genetic Information
It is also unlawful for a covered entity to disclose genetic information about applicants, employees or members. Covered entities must keep genetic information confidential and in a separate medical file. (Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.) There are limited exceptions to this non-disclosure rule, such as exceptions that provide for the disclosure of relevant genetic information to government officials investigating compliance with Title II of GINA and for disclosures made pursuant to a court order.
Equal Pay/Compensation Discrimination
The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. The jobs need not be identical, but they must be substantially equal. Job content (not job titles) determines whether jobs are substantially equal. All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.
An individual alleging a violation of the EPA may go directly to court and is not required to file an EEOC charge beforehand. The time limit for filing an EPA charge with the EEOC and the time limit for going to court are the same: within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years. The filing of an EEOC charge under the EPA does not extend the time frame for going to court.
Equal Pay/Compensation and Sex Discrimination
Title VII also makes it illegal to discriminate based on sex in pay and benefits. Therefore, someone who has an Equal Pay Act claim may also have a claim under Title VII.
Other Types of Discrimination
Title VII, the ADEA, and the ADA prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. Unlike the EPA, there is no requirement under Title VII, the ADEA, or the ADA that the jobs must be substantially equal.
Retaliation
All of the laws we enforce make it illegal to fire, demote, harass, or otherwise “retaliate” against people (applicants or employees) because they filed a charge of discrimination, because they complained to their employer or other covered entity about discrimination on the job, or because they participated in an employment discrimination proceeding (such as an investigation or lawsuit).
For example, it is illegal for an employer to refuse to promote an employee because she filed a charge of discrimination with the EEOC, even if EEOC later determined no discrimination occurred.
Retaliation & Work Situations
The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.
If you feel you have been discriminated against, harassed, or retaliated against, you can contact Hopler, Wilms, and Hanna to learn more about your rights.
Unpaid Wages for North Carolina Clients
Hopler, Wilms, and Hanna PLLC has experienced North Carolina Employment Law Attorneys that can assist clients with recovering unpaid wages from employers.
Wage Laws and Unpaid Wages
There are both State and Federal Laws which govern the pay of employees. The typical types of cases we help people with in this area include:
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Non-payment of Overtime
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Non-payment of Wages that were promised
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Non-payment of Minimum Wage
The Wage and Hour Act and the Fair Labor Standards Act each have rules dictating how employees are to be paid and when they are exempt from certain rules. Often, employers will incorrectly characterize the status of an employee so that they may be exempt from certain wage requirements. The term “wages” is a very broad term and includes lots of types of pay.
Wage Laws seek to ensure that a maximum number of jobs are paid a minimum wage. By requiring overtime compensation for hours worked in excess of forty (40) in a given workweek, the law creates a monetary penalty for employers that do not spread work among a greater number of employees. In other words, the law provides an incentive to hire more individuals rather than to increase the number of hours worked by existing employees.
If you have unpaid wages, whether in the form of promised but unpaid wages, minimum wage, overtime, commissions, bonuses, last paycheck, or vacation pay, you can contact us to learn about the various options available to you and which option might lead to the best results. While every case is different, in many situations there are statutory damages available in addition to the owed wages designed to punish employers for not paying what they are supposed to pay.
If you would like to contact one of our North Carolina Employment Law Attorneys about your Unpaid Wages, you can reach us here.
Retaliatory Employment Discrimination in North Carolina
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NC REDA (Retaliatory Employment Discrimination Act)
REDA (Retaliatory Employment Discrimination Act) is one of several laws enacted after the disastrous 1991 Imperial Food Products fire in which 25 employees were killed and 49 employees were injured. An investigation found numerous violations of the various laws designed to protect workers. Prior to REDA becoming effective on Oct.1, 1992, the N.C. Occupational Safety and Health Act, the N.C. Wage and Hour Act, the Mine Safety and Health Act, and the Workers’ Compensation Act all had provisions protecting workers who filed claims or complaints. At that time, the enforcement of these laws was handled by the different government agencies. The passage of REDA brought the enforcement all of these worker protection provisions under a single agency, the N.C. Department of Labor. Workers and employers now deal with a single state agency that provides technical assistance, answers questions, and investigates complaints made by workers. Workers can file written complaints with the NC Dept of Labor if they feel they have been retaliated or discriminated against because they have engaged in activities protected under:
In short, REDA (Retaliatory Employment Discrimination Act) protects workers from Workers Comp Retaliation, being retaliated against for Filing Complaints with the Department of Labor for Unpaid Wages, reporting safety/health hazards that violate OSHA, and several other things.
If you have a Retaliatory Employment Discrimination Act claim or think you may have one, this statute provides a VERY short window of opportunity to act. Failing to file a complaint with the NC Dept of Labor within 180 days may preclude you from raising the claim.
The following are types of remedies available under the Retaliatory Employment Discrimination Act:
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An injunction to stop the continuing violation of REDA.
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Reinstatement of the complainant to the same position held before the retaliatory action or discrimination or to an equivalent position.
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Reinstatement of full fringe benefits and seniority rights.
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Compensation for lost wages, lost benefits, and other economic losses that were proximately caused by the retaliatory action or discrimination.
Additional things a court can award include:
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If the court finds there was a willful violation of the Retaliatory Employment Discrimination Act, the court can triple the amount awarded from compensation for lost wages, lost benefits, and other economic losses that were proximately caused by the retaliatory action or discrimination.
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Assess the respondent costs and expenses including attorneys’ fees for bringing the action.