The North Carolina Retaliatory Employment Discrimination Act (NCREDA) prohibits employers from retaliating against or penalizing employees for engaging in certain protected activities. N.C. Gen. Stat. Ann. §§ 95-240 to 95-245. In general, the activities protected by NCREDA involve employees in good faith taking action or threatening to take action under certain North Carolina worker’s rights laws.
NCREDA prohibits any person from discriminating or taking retaliatory action against an employee who in good faith takes or threatens to take action under any of the following North Carolina laws:
- Workers’ Compensation Act, N.C. Gen. Stat. Ann. §§ 97-1 to 97-101.1;
- Wage and Hour Act, N.C. Gen. Stat. Ann. §§ 95-25.1 to 95- 25.25;
- Occupational Safety and Health Act, N.C. Gen. Stat. Ann. §§ 95-126 to 95-160;
- Mine Safety and Health Act, N.C. Gen. Stat. Ann. §§ 74-24.1 to 74-24.20;
- Prohibitions against discrimination based on sickle cell or hemoglobin C trait, N.C. Gen. Stat. Ann. § 95-28.1;
- National Guard Reemployment Rights, N.C. Gen. Stat. Ann. §§ 127A-201 to 127A-203;
- Prohibitions against discrimination based on genetic testing or counselling, N.C. Gen. Stat. Ann. § 95-28.1A;
- North Carolina Pesticide Law, N.C. Gen. Stat. Ann. §§ 143-434 to 143-470.1;
- Drug Paraphernalia Control Act of 2009, N.C. Gen. Stat. Ann. §§ 90-113.80 to 90-113.84;
- Authority over Parents of Juveniles Adjudicated Delinquent or Undisciplined, N.C. Gen. Stat. Ann. §§ 7B-2700 to 7B-2706;
- Domestic Violence Law, N.C. Gen. Stat. Ann. §§ 50B-1 to 50B-9.
NCREDA defines “person” to mean any individual, partnership, association, corporation, business trust, legal representative, the State, a city, town, county, municipality, local agency, or other entity of government.
Retaliatory Action Defined
NCREDA defines the retaliatory actions it prohibits as including the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.
Administrative Complaint Process
If an employee experiences prohibited retaliation, NCREDA provides a process to file a written complaint with the Commissioner of Labor. The complaint must be filed within 180 days of the alleged violation.
The Commissioner will investigate the complaint. If the Commissioner finds a violation, the Commissioner may attempt to resolve the violation through a conciliation process or other informal methods, or by filing a civil action on behalf of the employee. If the Commissioner is unable to resolve the violation and decides not to file a civil action, or finds no reasonable cause to conclude a violation occurred, the Commissioner will issue to the employee a right-to-sue letter allowing the employee to bring his or her claims in court. The employee may also request a right-to-sue letter after 90 days.
Private Right of Action
The right-sue-letter authorizes the employee to bring a civil action in court regarding the violation. The action may be filed in the superior court of the county where the violation occurred, where the employee resides, or where the defendant resides or has his principal place of business.
Importantly, a civil action under NCREDA must be commenced by the employee within 90 days of the date the right-to-sue letter was issued, or by the Commissioner within 90 days of the date the Commissioner notifies the parties in writing that conciliation efforts have failed.
In the civil action, the employee or the Commissioner may seek and the court may award any or all of the following types of relief:
- An injunction to enjoin continued violations;
- Reinstatement of the employee to the same position held before the retaliatory action or discrimination or to an equivalent position;
- Reinstatement of full fringe benefits and seniority rights;
- Compensation for lost wages, lost benefits, and other economic losses that were proximately caused by the retaliatory action or discrimination;
Willful violations result in treble damages. If the court finds that the employee was injured by a willful violation, the court must treble the amount awarded under part (4) above (compensation for economic losses).
The court may award to the plaintiff employee and assess against the defendant the reasonable costs and expenses, including attorneys’ fees, of the plaintiff in bringing the civil action. But if the court determines that the plaintiff’s action is frivolous, it may award to the defendant and assess against the plaintiff the reasonable costs and expenses, including attorneys’ fees, of the defendant in defending the action brought pursuant to this section.
Parties to a civil action brought under NCREDA have the right to a jury trial. Importantly, an employee may only bring an action under this section when he has been issued a right-to-sue letter by the Commissioner.
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