LABOR LAWS
Administered by the
NORTH CAROLINA
DEPARTMENT OF LABOR
Including Amendments through August 2009
Reprinted from the North Carolina General Statutes
Mailing Address:
1101 Mail Service Center
Raleigh, North Carolina 27699-1101
Physical Address:
4 West Edenton Street
Raleigh, North Carolina 27601
(919) 807-2796 or 1-800-NC-LABOR (1-800-625-2267)
Cherie Berry
Commissioner of Labor
For the convenience of the reader, please see the
information box immediately following each chapter
title. This information includes a mailing address
and telephone number within the N.C. Department
of Labor, which we invite you to use to address your
questions concerning that particular section of Labor
Laws of North Carolina. For the added convenience
of citizens outside the Raleigh area, we invite you to
call 1-800-NC-LABOR for further information.
The following statutes are reprinted for the
convenience of the reader. The official statutes are
published by Michie under the supervision of the
N.C. Department of Justice.
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Table of Contents
Page
Introduction.....................................................................................................................................xii
I. Department of Labor...........................................................................................................1
§95-1. Department of Labor established.
§95-2. Election of Commissioner; term; salary; vacancy.
§95-3. Divisions of Department; Commissioner; administrative officers.
§95-4. Authority, powers and duties of Commissioner.
§95-5. Annual report to Governor; recommendation as to legislation needed.
§95-6. Statistical report to Governor; publication of information given by
employers.
§95-7. Power of Commissioner to compel the giving of such information; refusal
as contempt.
§95-8. Employers required to make statistical report to Commissioner; refusal as
contempt.
§95-9. Employers to post notice of laws.
§95-11. Division of Standards and Inspection.
§95-12. Division of Statistics.
§95-13. Enforcement of rules and regulations.
§95-14. Agreements with certain federal agencies for enforcement of Fair Labor
Standards Act.
§95-14.1. Department review fees biennially.
Administrative Reorganization...........................................................................................7
§143A-67. Creation.
§143A-68. Commissioner of Labor; powers and duties.
§143A-69. Commissioner of Labor; transfer of powers and duties to Department.
§143A-70. Board of Boiler Rules and Bureau of Boiler Inspection; transfer.
§143A-71. Apprenticeship Council; transfer.
§143A-72. Voluntary arbitration of labor disputes; appointment of arbitrator or panel;
Commissioner of Labor; transfer.
II. Wage and Hour Act .............................................................................................................8
§ 95-25.1 Short Title and Legislative Purpose
§ 95-25.2 Definitions
§ 95-25.3 Minimum Wage
§ 95-25.3A REPEALED
§ 95-25.4 Overtime
§ 95-25.5 Youth Employment
§ 95-25.6 Wage Payment
§ 95-25.7 Payment to Separated Employees
§ 95-25.7A Wages in Dispute
§ 95-25.8 Withholding of Wages
§ 95-25.9 REPEALED
§ 95-25.10 REPEALED
§ 95-25.11 Employers’ Remedies Preserved
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§ 95-25.12 Vacation Pay
§ 95-25.13 Notification, Posting, and Records
§ 95-25.14 Exemptions
§ 95-25.15 Investigations and Inspection of Records; Notice of Law
§ 95-25.16 Enforcement
§ 95-25.17 Wage and Hour Division Established
§ 95-25.18 Legal Representation
§ 95-25.19 Rules
§ 95-25.20 Records
§ 95-25.21 Illegal Acts
§ 95-25.22 Recovery of Unpaid Wages
§ 95-25.23 Violation of Youth Employment; Civil Penalty
§ 95-25.23A Violation of Record-Keeping Requirement; Civil Penalty
§ 95-25.23B Civil Penalty Collection
§ 95-25.23C Report on youth employment enforcement activities
§ 95-25.24 Restraint of Violations
§ 95-25.25 Construction of Article and Severability
III. Conciliation Service and Mediation of Labor Disputes....................................................25
§95-32. Declaration of policy.
§95-33. Scope of Article.
§95-34. Administration of Article.
§95-35. Conciliation service established; personnel; removal; compensation.
§95-36. Powers and duties of Commissioner and conciliator.
IV. Voluntary Arbitration of Labor Disputes. ........................................................................27
§95-36.1. Declaration of policy.
§95-36.2. Scope of Article.
§95-36.3. Administration of Article.
§95-36.4. Voluntary arbitrators.
§95-36.5. Fees and expenses.
§95-36.6. Appointment of arbitrators.
§95-36.7. Arbitration procedure.
§95-36.8. Enforcement of arbitration agreement and award.
§95-36.9. Stay of proceedings.
V. Regulation of Private Personnel Services. .........................................................................31
§95-47.1. Definitions.
§95-47.2. Licensing procedures.
§95-47.3. Fees and contracts; filing with Commissioner.
§95-47.3A. Fee reimbursement from employers due to overstated earnings
expectations.
§95-47.4. Contracts; contents; approval; tying contracts forbidden.
§95-47.5. Records.
§95-47.6. Prohibited acts.
§95-47.7. Private Personnel Service Advisory Council.
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§95-47.8. Duties of Personnel Service Advisory Council.
§95-47.9. Enforcement of Article; rules; hearing; penalty; criminal penalties.
§95-47.10. Power of Commissioner to seek injunction.
§95-47.11. Government employment agencies unaffected.
§95-47.12. License taxes placed upon agencies not affected.
§95-47.13. Severability.
§95-47.14. Notification requirement.
§95-47.15. Certification requirement.
VI. Regulation of Job Listing Services. ....................................................................................43
§95-47.19. Definitions.
§95-47.20. License required.
§95-47.21. Violation of this Article; criminal and civil penalty.
§95-47.22. Licensing procedure.
§95-47.23. Enforcement.
§95-47.24. Certain practices prohibited.
§95-47.25. Contracts; contents; approval.
§95-47.26. Advertising and publication.
§95-47.27. Fee receipts.
§95-47.28. Prohibited job listings.
§95-47.29. Records of the job listing service.
§95-47.30. Administration of this Article.
§95-47.31. Review of job listing services.
§95-47.32. Severability.
VII. Uniform Boiler and Pressure Vessel Act. ..........................................................................47
§ 95-69.8 Short Title
§ 95-69.9 Definitions
§ 95-69.10 Application of Article; Exemptions
§ 95-69.11 Powers and Duties of Commissioner
§ 95-69.12 Boiler Safety Bureau Established
§ 95-69.13 Board of Boiler and Pressure Vessels Rules Created; Appointment, Terms,
Compensation and Duties
§ 95-69.14 Rules and Regulations Governing the Construction, Operation and Use of
Boilers and Pressure Vessels
§ 95-69.15 Classification of Inspectors; Qualifications; Examinations; Certificates of
Competency; Inspector’s Commission
§ 95-69.16 Inspection Certificate Required
§ 95-69.17 Noncomplying devices; appeal
§ 95-69.18 Operation without inspection certificate; operation not in compliance with
this Article; operation after nonissuance or revocation of certificate
§ 95-69.19 Violations; civil penalties; appeals
§ 95-69.20 Violations; criminal penalties
VIII. Earnings of Employees in Interstate Commerce...............................................................57
§95-73. Collections out of State to avoid exemptions forbidden.
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§95-74. Resident not to abet collection out of State.
§95-75. Remedies for violation of §95-73 or 95-74; damages; indictment.
§95-76. Institution of foreign suit, etc., evidence of intent to violate.
§95-77. Construction of Article.
IX. Declaration of Policy as to Labor Organizations..............................................................59
§95-78. Declaration of public policy.
§95-79. Certain agreements declared illegal.
§95-80. Membership in labor organization as condition of employment prohibited.
§95-81. Nonmembership as condition of employment prohibited.
§95-82. Payment of dues as condition of employment prohibited.
§95-83. Recovery of damages by persons denied employment.
§95-84. Application of Article.
X. Units of Government and Labor Unions, Trade Unions, and Labor Organizations,
and Public Employee Strikes. .............................................................................................61
§95-97. Employees of units of government prohibited from becoming members of
trade unions or labor unions.
§95-98. Contracts between units of government and labor unions, trade unions or
labor organizations concerning public employees declared to be illegal.
§95-98.1. Strikes by public employees prohibited.
§95-98.2. Strike defined.
§95-99. Penalty for violation of Article.
§95-100. No provisions of Article 10 of Chapter 95 applicable to units of
government or their employees.
XI. Payments To or For Benefit of Labor Organizations.......................................................63
§95-101. Definition.
§95-102. Certain payments to and agreements to pay labor organizations unlawful.
§95-103. Acceptance of such payments unlawful.
§95-104. Penalty.
XII. Inspection Service Fees........................................................................................................65
§95-105. Elevator, escalator, dumbwaiter, and special equipment inspection fees.
§95-106. Amusement, aerial tramway, and inclined railroad inspection fees.
§95-107. Assessment and collection of fees; certificates of safe operation.
§95-108. Disposition of fees.
XIII. Elevator Safety Act. .............................................................................................................67
§95-110.1. Short title and legislative purpose.
§95-110.2. Scope.
§95-110.3. Definitions.
§95-110.4. Elevator and Amusement Device Division established.
§95-110.5. Powers and duties of Commissioner.
§95-110.6. Noncomplying devices and equipment; appeal.
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§95-110.7. Operation without certificate; operation not in accordance with Article or
rules and regulations; operation after refusal to issue or after revocation of
certificate.
§95-110.8. Operation of unsafe device or equipment.
§95-110.9. Reports required.
§95-110.10. Violations; civil penalties; appeals.
§95-110.11. Violations; criminal penalties.
§95-110.12. Legal representation.
§95-110.13. Authorization for similar safety and health federal-State programs.
§95-110.14. Confidentiality of trade secrets.
§95-110.15. Construction of Article and rules and regulations and severability.
XIV. Amusement Device Safety Act. ...........................................................................................75
§95-111.1. Short title and legislative purpose.
§95-111.2. Scope.
§95-111.3. Definitions.
§95-111.4. Powers and duties of Commissioner.
§95-111.5. Pre-opening inspection and test; records; revocation of certificate of
operation.
§95-111.6. Noncomplying devices; appeal.
§95-111.7. Operation without certificate; operation not in accordance with Article or
rules and regulations; operation after refusal to issue or after revocation of
certificate.
§95-111.8. Location notice.
§95-111.9. Operation of unsafe device.
§95-111.10. Reports required.
§95-111.11. Operators.
§95-111.12. Liability insurance.
§95-111.13. Violations; civil penalties; appeal.
§95-111.14. Denial of permission to enter amusement device.
§95-111.15. Legal representation.
§95-111.16. Authorization for similar safety and health federal-State programs.
§95-111.17. Confidentiality of trade secrets.
§95-111.18. Construction of Article and rules and regulations and severability.
XV. Passenger Tramway Safety Act. .........................................................................................83
§ 95-116 Declaration of Policy
§ 95-117 Definitions
§ 95-118 Registration Required; Application Procedures
§ 95-119 Certification Criteria; Procedures; Display of Certificate
§ 95-120 Powers and Duties of the Commissioner
§ 95-120.1 Liability Insurance
§ 95-121 Inspections and Reports
§ 95-122 Emergency Shutdown
§ 95-123 Orders
§ 95-124 Suspension of Registration
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§ 95-125 Effective Date of Initial Applications
XVI. Occupational Safety and Health Act..................................................................................89
§95-126. Short title and legislative purpose.
§95-127. Definitions.
§95-128. Coverage.
§95-129. Rights and duties of employers.
§95-130. Rights and duties of employees.
§95-131. Development and promulgation of standards; adoption of federal standards
and regulations.
§95-132. Variances.
§95-133. Office of Director of Occupational Safety and Health; powers and duties
of the Director.
§95-134. Advisory Council.
§95-135. Safety and Health Review Board.
§95-136. Inspections.
§95-136.1. Special emphasis inspection program.
§95-137. Issuance of citations.
§95-138. Civil penalties.
§95-139. Criminal penalties.
§95-140. Procedures to counteract imminent dangers.
§95-141. Judicial review.
§95-142. Legal representation of the Department of Labor.
§95-143. Record keeping and reporting.
§95-144. Statistics.
§95-145. Reports to the Secretary.
§95-146. Continuation and effectiveness of this Article.
§95-147. Training and employee education.
§95-148. Safety and health programs of State agencies and local governments.
§95-149. Authority to enter into contracts with other State agencies and
subdivisions of government.
§95-150. Assurance of adequate funds to enforce Article.
§95-151. Discrimination.
§95-152. Confidentiality of trade secrets.
§95-154. Authorization for similar safety and health federal-state programs.
§95-155. Construction of Article and severability.
XVII. Hazardous Chemicals Right To Know Act........................................................................113
Part 1. General Provisions.
§95-173. Short title.
§95-174. Definitions.
Part 2. Public Safety and Emergency Response Right to Know.
§95-191. Hazardous Substance List.
§95-192. Material safety data sheets.
§95-193. Labels.
§95-194. Emergency information.
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§95-195. Complaints, investigations, penalties.
§95-196. Employee rights.
§95-197. Withholding hazardous substance trade secret information.
§95-198. Medical emergency and nonemergency situations.
Part 3. Community Right to Know.
§95-208. Community information on hazardous chemicals.
Part 4. Implementation.
§95-216. Exemptions.
§95-217. Preemption of local regulations.
§95-218. Severability.
XVIII. Migrant Housing Act. ..........................................................................................................121
§95-222. Short title; legislative purpose.
§95-223. Definitions.
§95-224. Scope.
§95-225. Adoption of standards and interpretations.
§95-226. Application for inspection.
§95-227. Enforcement.
§95-228. Waiver of rights.
§95-229. Construction of Article; severability.
§95-299. Actions upon finding uninhabitable migrant housing.
XIX. Overhead High-Voltage Line Safety Act. ..........................................................................127
§95-229.5. Purpose; scope.
§95-229.6. Definitions.
§95-229.7. Prohibited activities.
§95-229.8. Warning signs.
§95-229.9. Notification.
§95-229.10. Precautionary safety arrangements.
§95-229.11. Exemptions.
§95-229.12. Application.
§95-229.13. Severability.
XX. Controlled Substance Examination and Regulation Act..................................................135
§95-230. Purpose.
§95-231. Definitions.
§95-232. Procedural requirements for the administration of controlled substance
examinations.
§95-233. No duty to examine.
§95-234. Violation of controlled substance examination regulations; civil penalty.
§95-235. Certain federal agencies exempted.
XXI. Retaliatory Employment Discrimination Act....................................................................139
§95-240. Definitions.
§95-241. Discrimination prohibited.
§95-242. Complaint; investigation; conciliation.
§95-243. Civil action.
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§95-244. Effect of Article on other rights.
§95-245. Rules.
XXII. Safety and Health Programs and Committees. .................................................................143
§95-250. Definitions.
§95-251. Safety and health programs.
§95-252. Safety and health committees required.
§95-253. Additional rights.
§95-254. Rules.
§95-255. Reports.
§95-255.1. Technical assistance.
§95-256. Penalties.
XXIII. Workplace Violence Prevention. ........................................................................................149
§95-260. Definitions.
§95-261. Civil no-contact orders; persons protected.
§95-262. Commencement of action; venue.
§95-263. Process for action for no-contact order.
§95-264. Civil no-contact order; remedy.
§95-265. Temporary civil no-contact order; court holidays and evenings.
§95-266. Permanent civil no-contact order.
§95-267. Duration; extension of orders.
§95-268. Notice of orders.
§95-269. Violation of valid order.
§95-270. Employment discrimination unlawful.
§95-271. Scope of Article; other remedies available.
XXIV. Mine Safety and Health Act................................................................................................155
§74-24.1. Short title and legislative purpose.
§74-24.2. Definitions.
§74-24.3. Coverage.
§74-24.4. Safety and health standards.
§74-24.5. Modification of safety and health standards.
§74-24.6. Advisory Council.
§74-24.7. Inspections and investigations.
§74-24.8. Findings, notices, and orders.
§74-24.9. Issuance and delivery of notices, orders, and decisions.
§74-24.10. Administrative and judicial review of decisions on mine safety.
§74-24.12. Injunctions.
§74-24.13. Mandatory reporting.
§74-24.14. Criminal penalties.
§74-24.15. Rights and duties of miners.
§74-24.16. Education, training, technical assistance, and research.
§74-24.17. State-federal plan.
§74-24.18. Legal representation.
§74-24.19. Administrative provisions.
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§74-24.20. Construction of Article and severability.
XXV. Apprenticeship. ....................................................................................................................165
§94-1. Purpose.
§94-2. Apprenticeship Council.
§94-3. Director of Apprenticeship.
§94-4. Powers and duties of Director of Apprenticeship.
§94-5. Apprenticeship committees and program sponsors.
§94-6. Definition of an apprentice.
§94-7. Contents of agreement.
§94-8. Approval of apprentice agreements; signatures.
§94-9. Rotation of employment.
§94-11. Limitation.
§94-12. Fees.
XXVI. Actions Relating to Skier Safety and Skiing Accidents. ...................................................171
§99C-1. Definitions.
§99C-2. Duties of ski operators and skiers.
§99C-3. Violation constitutes negligence.
§99C-4. Competition.
§99C-5. Operation of passenger tramway.
XXVII. Miscellaneous Provisions...................................................................................................175
§1-539.12. Immunity from civil liability for employers disclosing information.
§7B-2705. Employment discrimination unlawful.
§14-355. Blacklisting employees.
§14-357.1. Requiring payment for medical examination, etc., as condition of
employment.
§44-5.1. Wages for two months’ lien on assets.
§58-2-230. Commissioner to share information with Department of Labor.
§58-36-16. Bureau to share information with Department of Labor.
§95-28.1. Discrimination against any person possessing sickle cell trait or
hemoglobin C trait prohibited.
§95-28.1A Discrimination against persons based on genetic testing or genetic
information prohibited.
§95-28.2. Discrimination against persons for lawful use of lawful products during
nonworking hours prohibited.
§95-28.3. Leave for parent involvement in schools.
§95-31. Acceptance by employer of assignment of wages.
§126-18. Compensation for assisting person in obtaining State employment barred;
exception.
§127A-111. Civilian leave option.
§127A-202.1. Discrimination against persons who serve in the North Carolina National
Guard and acts of reprisal prohibited.
§130A-460. Report to Department of Labor.
§143-139. Enforcement of building code.
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Introduction
The N.C. Department of Labor ("NCDOL") is pleased to make this publication
available to citizens interested in the North Carolina General Statutes affecting employers
and employees in our State. This publication includes all pertinent amendments enacted
through August 2009.
The statutes for which NCDOL has direct responsibility and which are administered
by NCDOL divisions and bureaus are included in these Labor Laws. These divisions and
bureaus include:
• Agricultural Safety and Health Bureau
• Apprenticeship and Training Bureau
• Boiler Safety Bureau
• Elevator and Amusement Device Bureau
• Employment Discrimination Bureau
• Mine and Quarry Bureau
• Occupational Safety and Health Division
• Wage and Hour Bureau
An information box follows each chapter title and provides a mailing address and
telephone number for the bureau or division having responsibility for that particular
section of the law. Citizens outside the Raleigh area are invited to call 1-800-NC-LABOR
with any questions. You can also access other information about NCDOL at our
website: www.nclabor.com.
We encourage and solicit public comments concerning these laws. Please direct your
comments and questions to the Legal Affairs Division, N.C. Department of Labor, 1101
Mail Service Center, Raleigh, North Carolina 27699-1101.
Cherie K. Berry
Commissioner of Labor
September 2009
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I. DEPARTMENT OF LABOR
Chapter 95, Article 1
For information about the work of the N.C. Department of Labor, contact the N.C.
Department of Labor, 1101 Mail Service Center, Raleigh, North Carolina 27699-1101, (919)
807-2796 or 1-800-NC-LABOR.
§ 95-1. Department of Labor established.
A Department of Labor is hereby created and established. The duties of said Department
shall be exercised and discharged under the supervision and direction of a commissioner, to be
known as the Commissioner of Labor. (Rev., s. 3909; 1919, c. 314, s. 4; C.S., s. 7309; 1931, c.
312, s. 1.)
§ 95-2. Election of Commissioner; term; salary; vacancy.
The Commissioner of Labor shall be elected by the people in the same manner as is provided
for the election of the Secretary of State. The term of office of the Commissioner of Labor shall
be four years, and the salary of the Commissioner of Labor shall be set by the General Assembly
in the Current Operations Appropriations Act. Any vacancy in the office shall be filled by the
Governor, until the next general election. The office of the Department of Labor shall be kept in
the City of Raleigh and shall be provided for as are other public offices of the State. In addition
to the salary set by the General Assembly in the Current Operations Appropriations Act,
longevity pay shall be paid on the same basis as is provided to employees of the State who are
subject to the State Personnel Act. (Rev., ss. 3909, 3910; 1919, c. 314, s. 4; C.S., s. 7310; 1931,
c. 312, s. 2; 1933, c. 282, s. 5; 1935, c. 293; 1937, c. 415; 1939, c. 349; 1943, c. 499, s. 2; 1947,
c. 1041; 1949, c. 1278; 1953, c. 1, s. 2; 1957, c. 1; 1963, c. 1178, s. 5; 1967, c. 1130; c. 1237, s.
5; 1969, c. 1214, s. 5; 1971, c. 912, s. 5; 1973, c. 778, s. 5; 1975, 2nd Sess., c. 983, s. 20; 1977, c.
802, s. 42.11; 1983, c. 761, s. 207; 1983 (Reg. Sess., 1984), c. 1034, s. 164; 1987, c. 738, s.
32(b).)
§ 95-3. Divisions of Department; Commissioner; administrative officers.
The Department of Labor shall consist of the following officers, divisions and sections:
A Commissioner of Labor.
A Division of Standards and Inspections.
A Division of Statistics.
Each division shall be in the charge of a chief administrative officer and shall be organized
under such rules and regulations as the Commissioner of Labor and the head of the division
concerned, with the approval of the Governor, shall prescribe and promulgate. The
Commissioner of Labor, with the approval of the Governor, may make provision for one person
to act as chief administrative officer of two or more divisions, when such is deemed advisable.
The chief administrative officers of the several divisions shall be appointed by the Commissioner
of Labor with the approval of the Governor. The Commissioner of Labor, with the approval of
the Governor may combine or consolidate the activities of two or more of the divisions of the
Department, or provide for the setting up of other divisions when such action shall be deemed
advisable for the more efficient and economical administration of the work and duties of the
Department. (1931, c. 277; c. 312, s. 4; 1933, c. 46; 1963, c. 313, s. 2.)
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§ 95-4. Authority, powers and duties of Commissioner.
The Commissioner of Labor shall be the executive and administrative head of the
Department of Labor. In addition to the other powers and duties conferred upon the
Commissioner of Labor by this Article, the said Commissioner shall have authority and be
charged with the duty:
(1) To appoint and assign to duty such clerks, stenographers, and other employees
in the various divisions of the Department, with approval of said director of
division, as may be necessary to perform the work of the Department, and fix
their compensation, subject to the approval of the Department of
Administration. The Commissioner of Labor may assign or transfer
stenographers, or clerks, from one division to another, or inspectors from one
division to another, or combine the clerical force of two or more divisions, or
require from one division assistance in the work of another division, as he
may consider necessary and advisable: Provided, however, the provisions of
this subdivision shall not apply to the Industrial Commission, or the Division
of Workers' Compensation.
(2) To make such rules and regulations with reference to the work of the
Department and of the several divisions thereof as shall be necessary to
properly carry out the duties imposed upon the said Commissioner and the
work of the Department; such rules and regulations to be made subject to the
approval of the Governor.
(3) To take and preserve testimony, examine witnesses, administer oaths, and
under proper restriction enter any public institution of the State, any factory,
store, workshop, laundry, public eating house or mine, and interrogate any
person employed therein or connected therewith, or the proper officer of a
corporation, or file a written or printed list of interrogatories and require full
and complete answers to the same, to be returned under oath within 30 days of
the receipt of said list of questions.
(4) To secure the enforcement of all laws relating to the inspection of factories,
mercantile establishments, mills, workshops, public eating places, and
commercial institutions in the State. To aid him in the work, he shall have
power to appoint factory inspectors and other assistants. The duties of such
inspectors and other assistants shall be prescribed by the Commissioner of
Labor.
(5) To visit and inspect, personally or through his assistants and factory
inspectors, at reasonable hours, as often as practicable, the factories,
mercantile establishments, mills, workshops, public eating places, and
commercial institutions in the State, where goods, wares, or merchandise are
manufactured, purchased, or sold, at wholesale or retail.
(6) To enforce the provisions of this section and to prosecute all violations of
laws relating to the inspection of factories, mercantile establishments, mills,
workshops, public eating houses, and commercial institutions in this State
before any court of competent jurisdiction. It shall be the duty of the district
attorney of the proper district upon the request of the Commissioner of Labor,
or any of his assistants or deputies, to prosecute any violation of a law, which
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it is made the duty of the said Commissioner of Labor to enforce. (1925, c.
288; 1931, c. 277; c. 312, ss. 5, 6; 1933, cc. 46, 244; 1945, c. 723, s. 2; 1957,
c. 269, s. 1; 1973, c. 47, s. 2; c. 108, s. 41; 1991, c. 636, s. 3.)
§ 95-5. Annual report to Governor; recommendation as to legislation needed.
The Commissioner of Labor shall annually, on or before the first day of January, file with the
Governor a report covering the activities of the Department, and the report so made on or before
January 1 of the years in which the General Assembly shall be in session shall be accompanied
by recommendations of the Commissioner with reference to such changes in the law applying to
or affecting industrial and labor conditions as the Commissioner may deem advisable. The report
of the Commissioner of Labor shall be printed and distributed in such manner and form as the
Director of the Budget shall authorize. (1931, c. 312, s. 7.)
§ 95-6. Statistical report to Governor; publication of information given by employers.
It shall be the duty of the Commissioner of Labor to collect in the manner herein provided
for, and to assort, systematize, and present to the Governor as a part of the report provided for in
G.S. 95-5, statistical details relating to all divisions of labor in the State, and particularly
concerning the following: the extent of unemployment, the hours of labor, the number of
employees and sex thereof, and the daily wages earned; the conditions with respect to labor in all
manufacturing establishments, hotels, stores, and workshops; and the industrial, social,
educational, moral, and sanitary conditions of the labor classes, in the productive industries of
the State. Such statistical details shall include the names of firms, companies, or corporations,
where the same are located, the kind of goods produced or manufactured, the period of operation
of each year, the number of employees, male or female, the number engaged in clerical work and
the number engaged in manual labor, with the classification of the number of each sex engaged
in such occupation and the average daily wage paid each: Provided, that the Commissioner shall
not, nor shall anyone connected with his office, publish or give or permit to be published or
given to any person the individual statistics obtained from any employer, and all such statistics,
when published, shall be published in connection with other similar statistics and be set forth in
aggregates and averages. (1931, c. 312, s. 8.)
§ 95-7. Power of Commissioner to compel the giving of such information; refusal as
contempt.
The Commissioner of Labor, or his authorized representative, for the purpose of securing the
statistical details referred to in G.S. 95-6, shall have power to examine witnesses on oath, to
compel the attendance of witnesses and the giving of such testimony and production of such
papers as shall be necessary to enable him to gain the necessary information. Upon the refusal of
any witness to comply with the requirements of the Commissioner of Labor or his representative
in this respect, it shall be the duty of any judge of the superior court, upon the application of the
Commissioner of Labor, or his representative, to order the witness to show cause why he should
not comply with the requirements of the said Commissioner, or his representative, if in the
discretion of the judge such requirement is reasonable and proper. Refusal to comply with the
order of the judge of the superior court shall be dealt with as for contempt of court. (1931, c. 312,
s. 9.)
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§ 95-8. Employers required to make statistical report to Commissioner; refusal as
contempt.
It shall be the duty of every owner, operator, or manager of every factory, workshop, mill,
mine, or other establishment, where labor is employed, to make to the Department, upon blanks
furnished by said Department, such reports and returns as the said Department may require, for
the purpose of compiling such labor statistics as are authorized by this Article, and the owner or
business manager shall make such reports and returns within the time prescribed therefor by said
Commissioner, and shall certify to the correctness of the same. Upon the refusal of any person,
firm, or corporation to comply with the provisions of this section, it shall be the duty of any
judge of the superior court, upon application by the Commissioner or by any representative of
the Department authorized by him, to order the person, firm, or corporation to show cause why
he or it should not comply with the provisions of this section. Refusal to comply with the order
of the judge of the superior court shall be dealt with as for contempt of court. (1931, c. 312, s.
10.)
§ 95-9. Employers to post notice of laws.
It shall be the duty of every employer to keep posted in a conspicuous place in every room
where five or more persons are employed a printed notice stating the provisions of the law
relative to the employment of adult persons and children and the regulation of hours and
working conditions. The Commissioner of Labor shall furnish the printed form of such notice
upon request. (1933, c. 244, s. 6.)
§ 95-10. Repealed by Session Laws 1963, c. 313, s. 1.
§ 95-11. Division of Standards and Inspection.
(a) The chief administrative officer of the Division of Standards and Inspection shall be
known as the Director of the Division. It shall be his duty, under the direction and supervision of
the Commissioner of Labor, and under rules and regulations to be adopted by the Department as
herein provided, to make or cause to be made all necessary inspections to see that all laws, rules
and regulations concerning the safety and well-being of labor are promptly and effectively
carried out.
(b) The Division shall make studies and investigations of special problems connected
with the labor of women and children, and create the necessary organization, and appoint an
adequate number of investigators, with the consent of the Commissioner of Labor and the
approval of the Governor; and the Director of said Division, under the supervision and direction
of the Commissioner of Labor and under such rules and regulations as shall be prescribed by said
Commissioner, with the approval of the Governor, shall perform all duties devolving upon the
Department of Labor, or the Commissioner of Labor with relation to the enforcement of laws,
rules, and regulations governing the employment of women and children.
(c) The Director shall report annually to the Commissioner of Labor the activities of the
Division, with such recommendations as may be considered advisable for the improvement of
the working conditions for women and children.
(d) The Division shall collect and collate information and statistics concerning the
location, estimated and actual horsepower and condition of valuable water powers, developed
and undeveloped, in this State; also concerning farmlands and farming, the kinds, character, and
quantity of the annual farm products in this State; also of timber lands and timbers, truck
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gardening, dairying, and such other information and statistics concerning the agricultural and
industrial welfare of the citizens of this State as may be deemed to be of interest and benefit to
the public. The Director shall also perform the duties of mine inspector as prescribed in the
Chapter on Mines and Quarries.
(e) The Division shall conduct such research and carry out such studies as will contribute
to the health, safety, and general well-being of the working classes of the State. The finding of
such investigations, with the approval of the Commissioner of Labor and the Governor and the
cooperation of the chief administrative officer of the Division or Divisions directly concerned,
shall be promulgated as rules and regulations governing work places and working conditions. All
recommendations and suggestions pertaining to health, safety, and well-being of employees shall
be transmitted to the Commissioner of Labor in an annual report which shall cover the work of
the Division of Standards and Inspection.
(f) The Division shall make, promulgate and enforce rules and regulations for the
protection of employees from accident and from occupational disease; and shall upon request,
and after such investigation as it deems proper, issue certificates of compliance to such
employers as are found by it to be in compliance with the rules and regulations made and
promulgated in accordance with the provisions of this paragraph. (1931, c. 312, s. 12; c. 426;
1935, c. 131.)
§ 95-12. Division of Statistics.
The Division of Statistics shall be in charge of a Chief Statistician. It shall be his duty, under
the direction and supervision of the Commissioner of Labor, to collect, assort, systematize, and
print all statistical details relating to all divisions of labor in this State as is provided in G.S.
95-6. (1931, c. 312, s. 13.)
§ 95-13. Enforcement of rules and regulations.
In the event any person, firm or corporation shall, after notice by the Commissioner of Labor,
violate any of the rules or regulations promulgated under the authority of this Article or any laws
amendatory hereof relating to safety devices, or measures, the Attorney General of the State,
upon the request of the Commissioner of Labor, may take appropriate action in the civil courts of
the State to enforce such rules and regulations. Upon request of the Attorney General, any
district attorney of the State of North Carolina in whose district such rule or regulation is violated
may perform the duties hereinabove required of the Attorney General. (1939, c. 398; 1973, c. 47,
s. 2.)
§ 95-14. Agreements with certain federal agencies for enforcement of Fair Labor
Standards Act.
The North Carolina State Department of Labor may and it is hereby authorized to enter into
agreements with the Wage and Hour Division, and the Children's Bureau, United States
Department of Labor, for assistance and cooperation in the enforcement within this State of the
act of Congress known as the Fair Labor Standards Act of 1938, approved June 25, 1938, and is
further authorized to accept payment and/or reimbursement for its services as provided by said
act of Congress. Any such agreement may be subject to the regulations of the administrator of
the Wage and Hour Division, or the chief of the Children's Bureau of the United States
Department of Labor, as the case may be, and shall be subject to the approval of the Director of
the State Budget. Nothing in this section shall be construed as authorizing the State Department
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of Labor to spend in excess of its appropriation from State funds, except to the extent that such
excess may be paid and/or reimbursed to it by the United States Department of Labor. All
payments received by the State Department of Labor under this section shall be deposited in the
State treasury and are hereby appropriated to the State Department of Labor to enable it to carry
out the agreements entered into under this section. (1939, c. 245.)
§ 95-14.1. Department review fees biennially.
No later than February 1 of each odd-numbered year, the Department of Labor shall review all
fees charged under its authority to determine whether any of the fees should be changed and shall
report its findings to the House of Representatives and Senate Appropriations Subcommittees on
Natural and Economic Resources and the Fiscal Research Division. The report required by this
section shall include all of the information reported to the Office of State Budget and
Management for its Biennial Fee Report and all of the following:
(1) The names of the programs or division supported by the fee.
(2) The total expenditures of the programs or divisions.
(3) Any recommendations for increasing or decreasing the amount of the fee
(4) An evaluation of inflation since the last change to the amount of the fee.
(5) Any other information deemed relevant to the review. (2009-451, s. 12.2.)
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ADMINISTRATIVE REORGANIZATION
Chapter 143A, Article 8
§ 143A-67. Creation.
There is hereby created a Department of Labor. The head of the Department of Labor is the
Commissioner of Labor. (1971, c. 864, s. 10.)
§ 143A-68. Commissioner of Labor; powers and duties.
The Commissioner of Labor shall have such powers and duties as are conferred on him by
this Chapter, delegated to him by the Governor, and conferred by the Constitution and laws of
this State. (1971, c. 864, s. 10.)
§ 143A-69. Commissioner of Labor; transfer of powers and duties to Department.
Except as otherwise provided in the Constitution or in this Chapter, all powers, duties and
functions vested by law in the Commissioner of Labor are transferred by a Type I transfer to the
Department of Labor. (1971, c. 864, s. 10.)
§ 143A-70. Board of Boiler Rules and Bureau of Boiler Inspection; transfer.
The Board of Boiler Rules and the Bureau of Boiler Inspection, as contained in Article 7 of
Chapter 95 of the General Statutes and the laws of this State, are hereby transferred by a Type I
transfer to the Department of Labor. (1971, c. 864, s. 10.)
§ 143A-71. Apprenticeship Council; transfer.
The Apprenticeship Council, as contained in Chapter 94 of the General Statutes and the laws
of this State, is hereby transferred by a Type I transfer to the Department of Labor. (1971, c. 864,
s. 10.)
§ 143A-72. Voluntary arbitration of labor disputes; appointment of arbitrator or panel;
Commissioner of Labor; transfer.
All of the powers, duties and functions of the Commissioner of Labor under Article 4A of
Chapter 95 of the General Statutes and the laws of this State, are transferred by a Type I transfer
to the Department of Labor. (1971, c. 864, s. 10.)
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II. WAGE AND HOUR ACT
Chapter 95, Article 2A
For information about the Wage and Hour Act, contact the Wage and Hour Bureau, 1101
Mail Service Center, Raleigh, North Carolina 27699-1101, (919) 806-2796 or 1-800-NC-LABOR.
§ 95-25.1. Short title and legislative purpose.
(a) This Article shall be known and may be cited as the "Wage and Hour Act."
(b) The public policy of this State is declared as follows: The wage levels of employees,
hours of labor, payment of earned wages, and the well-being of minors are subjects of concern
requiring legislation to promote the general welfare of the people of the State without
jeopardizing the competitive position of North Carolina business and industry. The General
Assembly declares that the general welfare of the State requires the enactment of this law under
the police power of the State. (1937, c. 409, s. 2; 1979, c. 839, s. 1.)
§ 95-25.2. Definitions.
In this Article, unless the context otherwise requires:
(1) "Agriculture" includes farming in all its branches performed by a farmer or on
a farm as an incident to or in conjunction with farming operations.
(2) "Commissioner" means the Commissioner of Labor.
(3) "Employ" means to suffer or permit to work.
(4) "Employee" includes any individual employed by an employer.
(5) "Employer" includes any person acting directly or indirectly in the interest of
an employer in relation to an employee.
(6) "Establishment" means a physical location where business is conducted.
(7) "The Fair Labor Standards Act" means the Fair Labor Standards Act of 1938,
as amended and as the same may be amended from time to time by the United
States Congress.
(8) "Hours worked" includes all time an employee is employed.
(9) "Payday" means that day designated for payment of wages due by virtue of
the employment relationship.
(10) "Pay periods" may be daily, weekly, biweekly, semimonthly, or monthly.
(11) "Person" means an individual, partnership, association, corporation, business
trust, legal representative, or any organized group of persons. For the purposes
of G.S. 95-25.2, G.S. 95-25.3, G.S. 95-25.14, and G.S. 95-25.20, it also means
the State of North Carolina, any city, town, county, or municipality, or any
State or local agency or instrumentality of government. The Government of
the United States and any agency of the United States (including the United
States Postal Service and Postal Rate Commission) are not included as
persons for any purpose under this Article.
(12) "Seasonal food service establishment" means a restaurant, food and drink
stand or other establishment generally recognized as a commercial food
service establishment, preparing and serving food to the public but operating
180 days or less per year.
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(13) "Seasonal religious or nonprofit educational conference center or a seasonal
amusement or recreational establishment" means an establishment which does
not operate for more than seven months in any calendar year, or during the
preceding calendar year had average receipts for any six months of such year
of not more than thirty-three and one-third percent (33 1/3%) of its average
receipts for the other six months of that year.
(14) "Tipped employee" means any employee who customarily receives more than
twenty dollars ($20.00) a month in tips.
(15) "Tip" shall mean any money or part thereof over and above the actual amount
due a business for goods, food, drink, services or articles sold which is paid in
cash or by credit card, or is given to or left for an employee by a patron or
patrons of the business where the employee is employed.
(16) "Wage" paid to an employee means compensation for labor or services
rendered by an employee whether determined on a time, task, piece, job, day,
commission, or other basis of calculation, and the reasonable cost as
determined by the Commissioner of furnishing employees with board,
lodging, or other facilities. For the purposes of G.S. 95-25.6 through G.S.
95-25.13 "wage" includes sick pay, vacation pay, severance pay,
commissions, bonuses, and other amounts promised when the employer has a
policy or a practice of making such payments.
(17) "Workweek" means any period of 168 consecutive hours.
(18) "Enterprise" means the related activities performed either through unified
operations or common control by any person or persons for a common
business purpose and includes all such activities whether performed in one or
more establishments or by one or more corporate units but shall not include
the related activities performed for such enterprise by an independent
contractor or franchisee. (1959, c. 475; 1961, c. 652; 1969, c. 34, s. 2; c. 218;
1971, c. 1231, s. 1; 1975, c. 413, s. 1; c. 605; 1977, c. 653; c. 672, s. 1; c. 826,
s. 1; 1979, c. 839, s. 1; 1981, c. 663, ss. 10, 11; 1983, c. 708, s. 3; 1991, c.
330, s. 1.)
§ 95-25.3. Minimum wage.
(a) Every employer shall pay to each employee who in any workweek performs any
work, wages of at least six dollars and fifteen cents ($6.15) per hour or the minimum wage set
forth in paragraph 1 of section 6(a) of the Fair Labor Standards Act, 29 U.S.C. 206(a)(1), as that
wage may change from time to time, whichever is higher, except as otherwise provided in this
section.
(b) In order to prevent curtailment of opportunities for employment, the wage rate for
full-time students, learners, apprentices, and messengers, as defined under the Fair Labor
Standards Act, shall be ninety percent (90%) of the rate in effect under subsection (a) above,
rounded to the lowest nickel.
(c) The Commissioner, in order to prevent curtailment of opportunities for employment,
may, by regulation, establish a wage rate less than the wage rate in effect under section (a) which
may apply to persons whose earning or productive capacity is impaired by age or physical or
mental deficiency or injury, as such persons are defined under the Fair Labor Standards Act.
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(d) The Commissioner, in order to prevent curtailment of opportunities for employment
of the economically disadvantaged and the unemployed, may, by regulation, establish a wage
rate not less than eighty-five percent (85%) of the otherwise applicable wage rate in effect under
subsection (a) which shall apply to all persons (i) who have been unemployed for at least 15
weeks and who are economically disadvantaged, or (ii) who are, or whose families are, receiving
Work First Family Assistance or who are receiving supplemental security benefits under Title
XVI of the Social Security Act.
Pursuant to regulations issued by the Commissioner, certificates establishing eligibility for
such subminimum wage shall be issued by the Employment Security Commission.
The regulation issued by the Commissioner shall not permit employment at the subminimum
rate for a period in excess of 52 weeks.
(e) The Commissioner, in order to prevent curtailment of opportunities for employment,
and to not adversely affect the viability of seasonal establishments, may, by regulation, establish
a wage rate not less than eighty-five percent (85%) of the otherwise applicable wage rate in
effect under subsection (a) which shall apply to any employee employed by an establishment
which is a seasonal amusement or recreational establishment, or a seasonal food service
establishment.
(f) Tips earned by a tipped employee may be counted as wages only up to the amount
permitted in section 3(m) of the Fair Labor Standards Act, 29 U.S.C. 203(m), if the tipped
employee is notified in advance, is permitted to retain all tips and the employer maintains
accurate and complete records of tips received by each employee as such tips are certified by the
employee monthly or for each pay period. Even if the employee refuses to certify tips accurately,
tips may still be counted as wages when the employer complies with the other requirements of
this section and can demonstrate by monitoring tips that the employee regularly receives tips in
the amount for which the credit is taken. Tip pooling shall also be permissible among employees
who customarily and regularly receive tips; however, no employee's tips may be reduced by
more than fifteen percent (15%) under a tip pooling arrangement. (1959, c. 475; 1963, c. 816;
1965, c. 229; 1969, c. 34, s. 1; 1971, c. 138; 1973, c. 802; 1975, c. 256, s. 1; 1977, c. 519; 1979,
c. 839, s. 1; 1981, c. 493, s. 1; c. 663, s. 13; 1983, c. 708, s. 1; 1985, c. 97; 1987, c. 79; 1991, c.
270, ss. 1, 2; c. 330, s. 5; 1997-146, s. 1; 1997-443, s. 12.25; 2006-114, s. 1; 2006-259, s.18.)
§ 95-25.3A. Repealed by Session Laws 2003-308, s. 8, effective July 1, 2003.
§ 95-25.4. Overtime.
(a) Every employer shall pay each employee who works longer than 40 hours in any
workweek at a rate of not less than time and one half of the regular rate of pay of the employee
for those hours in excess of 40 per week; provided that employers of seasonal amusement or
recreational establishment employees are required to pay those employees the overtime rate only
for hours in excess of 45 per workweek.
(b) Repealed by Session Laws 1991, c. 330, s. 2. (1973, c. 685, s. 1; 1979, c. 839, s. 1;
1991, c. 330, s. 2, c. 492, s. 1.)
§ 95-25.5. Youth employment.
(a) No youth under 18 years of age shall be employed by any employer in any occupation
without a youth employment certificate unless specifically exempted. The Commissioner of
Labor shall prescribe regulations for youths and employers concerning the issuance, maintenance
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and revocation of certificates. Certificates will be issued, subject to review by the Department of
Labor, by county directors of social services and such of their designees as are approved by the
Commissioner; provided, the Commissioner may also issue certificates, both directly and
electronically.
(a1) During the regular school term, no youth under 18 years of age who is enrolled in
school in grade 12 or lower may be employed between 11 P.M. and 5 A.M. when there is school
for the youth the next day. This restriction does not apply to youths 16 and 17 years of age if the
employer receives written approval for the youth to work beyond the stated hours from the
youth's parent or guardian and from the youth's principal or the principal's designee.
(b) No youth under 18 years of age may be employed by an employer in any occupation
which the United States Department of Labor shall find and by order declare to be hazardous and
without exemption under the Fair Labor Standards Act, or in any occupation which the
Commissioner of Labor after public hearing shall find and declare to be detrimental to the health
and well-being of youths.
(c) No youth 14 or 15 years of age may be employed by an employer in any occupation
except those determined by the United States Department of Labor to be permitted occupations
under the Fair Labor Standards Act; provided, such youths may be employed by employers:
(1) No more than three hours on a day when school is in session for the youth;
(2) No more than eight hours on a day when school is not in session for the youth;
(3) Only between 7 A.M. and 7 P.M., except to 9 P.M. during the summer (when
school is not in session);
(4) No more than 40 hours in any one week when school is not in session for the
youth;
(5) No more than 18 hours in any one week when school is in session for the
youth; and
(6) Only outside school hours.
Notwithstanding the above, enrollees in high school apprenticeships or in work experience
and career exploration programs as defined under the Fair Labor Standards Act may work up to
23 hours in any one week when school is in session, any portion of which may be during school
hours.
(d) No youth 13 years of age or less may be employed by an employer, except youths 12
and 13 years of age may be employed outside school hours in the distribution of newspapers to
the consumer but not more than three hours per day. An employment certificate shall not be
required for any youth under 18 years of age engaged in the distribution of newspapers to the
consumer outside of school hours.
(e) No youth under 16 years of age shall be employed for more than five consecutive
hours without an interval of at least 30 minutes for rest. No period of less than 30 minutes shall
be deemed to interrupt a continuous period of work.
(f) For any youth 13 years of age or older, the Commissioner may waive any provision
of this section and authorize the issuance of an employment certificate when:
(1) He receives a letter from a social worker, court, probation officer, county
department of social services, a letter from the North Carolina Alcohol
Beverage Control Commission or school official stating those factors which
create a hardship situation and how the best interest of the youth is served by
allowing a waiver; and
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(2) He determines that the health or safety of the youth would not be adversely
affected; and
(3) The parent, guardian, or other person standing in loco parentis consents in
writing to the proposed employment.
(g) Youths employed as models, or as actors or performers in motion pictures or
theatrical productions, or in radio or television productions are exempt from all provisions of this
section except the certificate requirements of subsection (a).
(h) Youths employed by an outdoor drama directly in production-related positions such
as stagehands, lighting, costumes, properties and special effects are exempt from all provisions
of this section except the certificate requirements of subsection (a). Positions such as office
workers, ticket takers, ushers and parking lot attendants have no exemption and are subject to all
provisions of this section.
(i) Youth under 18 years of age employed by their parent, guardian, or other person
standing in loco parentis are exempt from all provisions of this section, except for all of the
following:
(1) The certificate requirements of subsection (a) of this section.
(2) The prohibition from hazardous or detrimental occupations of subsection (b)
of this section.
(3) The prohibitions of subsection (j)(2) of this section if the youths only work at
the establishment when another employee at least 21 years of age is in charge
of and present at the licensed premises.
(j) No person who holds any ABC permit issued pursuant to the provisions of Chapter
18B of the General Statutes for the on-premises sale or consumption of alcoholic beverages,
including any mixed beverages, shall employ a youth:
(1) Under 16 years of age on the premises for any purpose, unless the youth is at
least 14 years of age and each of the following conditions is met:
a. The person obtains the written consent of a parent or guardian of the
youth.
b. The youth is employed to work on the outside grounds of the premises
for a purpose that does not involve the preparation, serving,
dispensing, or sale of alcoholic beverages.
(2) Under 18 years of age to prepare, serve, dispense or sell any alcoholic
beverages, including mixed beverages.
(k) Persons and establishments required to comply with or subject to regulation of child
labor under the Fair Labor Standards Act are exempt from all provisions of this section, except
the certificate requirements of subsection (a), the provisions of subsection (a1), the prohibition
from occupations found and declared to be detrimental by the Commissioner of Labor pursuant
to subsection (b), and the prohibitions of subsection (j). In addition, employment certificates will
not be issued if such person's employment will be in violation of the applicable child labor
provisions of the Fair Labor Standards Act. Such employers may also be assessed civil penalties
pursuant to G.S. 95-25.23 for each violation of the provisions of this section or any regulation
issued hereunder from which there is no exemption.
(l) Notwithstanding any other provision of this section, any youth who holds a North
Carolina driver's license valid for the type of driving involved may be assigned as part of his
employment to drive an automobile or truck not exceeding 6,000 pounds gross vehicle weight
within a 25-mile radius of the principal place of employment, provided that the youth has
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completed a State-approved driver-education course, and provided that the assignment does not
involve the towing of vehicles. "Gross vehicle weight" includes the truck chassis with lubricants,
water and full tank or tanks of fuel, plus the weight of the cab or driver's compartment, body and
special chassis and body equipment, and payload.
(m) Notwithstanding any other provision of this section, youths who are enrolled at an
institution of higher education may be employed by the institution provided the employment is
not hazardous. As used in this subsection, "institution of higher education" means any
constituent institution of The University of North Carolina, any North Carolina community
college, or any college or university that awards postsecondary degrees.
(n) Nothing in this section prohibits qualified youths under 18 years of age from
participating in training through their fire department, the Office of State Fire Marshal, or the
North Carolina Community College System. As used in this subsection, the term “qualified
youth under 18 years of age” means an uncompensated fire department or rescue squad member
who is over the age of 15 and under the age of 18 and who is a member of a bona fide fire
department, as that term is defined in G.S. 58-86-25, or of a rescue squad described in G.S. 58-
86-30. (1937, c. 317, ss. 1-3, 6, 9, 18; 1943, c. 670; 1951, c. 1187, s. 1; 1967, cc. 173, 764; 1969,
c. 962; 1973, c. 649, s. 1; c. 758, s. 1; 1977, c. 551, ss. 1-4; 1979, c. 839, s. 1; 1981, c. 412, ss. 3,
4; c. 489, ss. 1-7; c. 747, s. 66; 1985, c. 97, s. 1; 1987, c. 154; 1991, c. 492, s. 2; 1991 (Reg.
Sess., 1992), c. 991, s. 1; 1993, c. 239, s. 1; 1995, c. 214, s. 1; 1999-237, s. 14.1; 2001-312, s. 3;
2001-515, s. 5; 2005-453, s. 15; 2009-21, s. 2.)
§ 95-25.6. Wage payment.
Every employer shall pay every employee all wages and tips accruing to the employee on the
regular payday. Pay periods may be daily, weekly, bi-weekly, semi-monthly, or monthly. Wages
based upon bonuses, commissions, or other forms of calculation may be paid as infrequently as
annually if prescribed in advance. (1975, c. 413, s. 3; 1977, c. 826, s. 3; 1979, c. 839, s. 1.)
§ 95-25.7. Payment to separated employees.
Employees whose employment is discontinued for any reason shall be paid all wages due on
or before the next regular payday either through the regular pay channels or by mail if requested
by the employee. Wages based on bonuses, commissions or other forms of calculation shall be
paid on the first regular payday after the amount becomes calculable when a separation occurs.
Such wages may not be forfeited unless the employee has been notified in accordance with G.S.
95-25.13 of the employer's policy or practice which results in forfeiture. Employees not so
notified are not subject to such loss or forfeiture. (1975, c. 413, s. 4; 1979, c. 839, s. 1; 1981, c.
663, s. 1; 1993, c. 214, s. 1.)
§ 95-25.7A. Wages in dispute.
(a) If the amount of wages is in dispute, the employer shall pay the wages, or that part of
the wages, which the employer concedes to be due without condition, within the time set by this
Article. The employee retains all remedies that the employee might otherwise be entitled to
regarding any balance of wages claimed by the employee, including those remedies provided
under this Article.
(b) Acceptance of a partial payment of wages under this section by an employee does not
constitute a release of the balance of the claim. Further, any release of the claim required by an
employer as a condition of partial payment is void. (1989, c. 687, s. 1.)
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§ 95-25.8. Withholding of wages.
(a) An employer may withhold or divert any portion of an employee's wages when:
(1) The employer is required or empowered to do so by State or federal law;
(2) When the amount or rate of the proposed deduction is known and agreed upon
in advance, the employer must have written authorization from the employee
which (i) is signed on or before the payday(s) for the pay period(s) from
which the deduction is to be made; (ii) indicates the reason for the deduction;
and (iii) states the actual dollar amount or percentage of wages which shall be
deducted from one or more paychecks. Provided, that if the deduction is for
the convenience of the employee, the employee shall be given a reasonable
opportunity to withdraw the authorization; or
(3) When the amount of the proposed deduction is not known and agreed upon in
advance, the employer must have written authorization from the employee
which (i) is signed on or before the payday(s) for the pay period(s) from
which the deduction is to be made; and (ii) indicates the reason for the
deduction. Prior to any deductions being made under this section, the
employee must (i) receive advance written notice of the actual amount to be
deducted; (ii) receive written notice of their right to withdraw the
authorization; and (iii) be given a reasonable opportunity to withdraw the
authorization in writing.
(b) The withholding or diversion of wages owed for the employer's benefit must comply
with the following requirements:
(1) In nonovertime workweeks, an employer may reduce wages to the minimum
wage level.
(2) In overtime workweeks, employers may reduce wages to the minimum wage
level for nonovertime hours.
(3) No reductions may be made to overtime wages owed.
(c) In addition to complying with the requirements in subsections (a) and (b) of this
section, an employer may withhold or divert a portion of an employee's wages for cash
shortages, inventory shortages, or loss or damage to an employer's property after giving the
employee written notice of the amount to be deducted seven days prior to the payday on which
the deduction is to be made, except that when a separation occurs the seven-day notice is not
required.
(d) Notwithstanding subsections (a) and (b), above, an overpayment of wages to an
employee as a result of a miscalculation or other bona fide error, advances of wages to an
employee or to a third party at the employee's request, and the principal amount of loans made
by an employer to an employee are considered prepayment of wages and may be withheld or
deducted from an employee's wages. Deductions for interest and other charges related to loans
by an employer to an employee shall require written authorization in accordance with subsection
(a), above.
(e) Notwithstanding subsections (a) and (c), above, if criminal process has issued against
an employee, an employee has been indicted, or an employee has been arrested pursuant to
Articles 17, 20, and 32 of Chapter 15A of the General Statutes for a charge incident to a cash
shortage, inventory shortage, or damage to an employer's property, an employer may withhold or
divert a portion of the employee's wages in order to recoup the amount of the cash shortage,
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inventory shortage, or damage to the employer's property, without the written authorization
required by this section, but the amount of such withholdings shall comply with the provisions of
subsection (b) of this section. If the employee is not found guilty, then the amount deducted shall
be reimbursed to the employee by the employer.
(f) For purposes of this section, a written authorization or written notice may be in the
form of an electronic record in compliance with Article 40 of Chapter 66 (the Uniform
Electronic Transactions Act).
(g) Nothing in this Article shall preclude an employer from bringing a civil action in the
General Court of Justice to collect any amounts due the employer from the employee. (1975, c.
413, s. 6; 1979, c. 839, s. 1; 1981, c. 663, s. 2; 2005-453, s. 16.)
§ 95-25.9. Repealed by Session Laws 2005-453, s. 17, effective October 1, 2005.
§ 95-25.10. Repealed by Session Laws 2005-453, s. 18, effective October 1, 2005.
§ 95-25.11. Employers' remedies preserved.
(a) Repealed by Session Laws 2005-453, s. 19.
(b) Nothing in this Article shall preclude an employer from bringing a civil action in the
General Court of Justice to collect any amounts due the employer from the employee. (1979, c.
839, s. 1; 1981, c. 663, s. 5; 2005-453, s. 19.)
§ 95-25.12. Vacation pay.
No employer is required to provide vacation pay plans for employees. However, if an
employer provides these promised benefits for employees, the employer shall give all vacation
time off or payment in lieu of time off in accordance with the company policy or practice.
Employees shall be notified in accordance with G.S. 95-25.13 of any policy or practice which
requires or results in loss or forfeiture of vacation time or pay. Employees not so notified are not
subject to such loss or forfeiture. (1979, c. 839, s. 1; 1981, c. 663, s. 6; 2005-453, s. 20.)
§ 95-25.13. Notification, posting, and records.
Every employer shall:
(1) Notify its employees, orally or in writing at the time of hiring, of the promised
wages and the day and place for payment;
(2) Make available to its employees, in writing or through a posted notice
maintained in a place accessible to its employees, employment practices and
policies with regard to promised wages;
(3) Notify employees, in writing or through a posted notice maintained in a place
accessible to its employees, at least 24 hours prior to any changes in promised
wages. Wages may be retroactively increased without the prior notice required
by this subsection; and
(4) Furnish each employee with an itemized statement of deductions made from
that employee's wages under G.S. 95-25.8 for each pay period such
deductions are made. (1975, c. 413, s. 7; 1979, c. 839, s. 1; 1981, c. 663, s. 12;
1993, c. 203; 2005-453, s. 21.)
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§ 95-25.14. Exemptions.
(a) The provisions of G.S. 95-25.3 (Minimum Wage), G.S. 95-25.4 (Overtime), and G.S.
95-25.5 (Youth Employment), and the provisions of G.S. 95-25.15(b) (Record Keeping) as they
relate to these exemptions, do not apply to:
(1) Any person employed in an enterprise engaged in commerce or in the
production of goods for commerce as defined in the Fair Labor Standards Act:
a. Except as otherwise specifically provided in G.S. 95-25.5;
b. Notwithstanding the above, any employee other than a learner,
apprentice, student, or handicapped worker as defined in the Fair
Labor Standards Act who is not otherwise exempt under the other
provisions of this section, and for whom the applicable minimum wage
under the Fair Labor Standards Act is less than the minimum wage
provided in G.S. 95-25.3, is not exempt from the provisions of G.S.
95-25.3 or G.S. 95-25.4;
c. Notwithstanding the above, any employer or employee exempt from
the minimum wage, overtime, or child labor requirements of the Fair
Labor Standards Act for whom there is no comparable exemption
under this Article shall not be exempt under this subsection except that
where an exemption in the Fair Labor Standards Act provides a
method of computing overtime which is an alternative to the method
required in 29 U.S.C.S. § 207(a), the employer or employee subject to
that alternate method shall be exempt from the provisions of G.S.
95-25.4(a); provided that, persons not employed at an enterprise
described in subdivision (1) of this subsection shall also be subject to
the same alternative methods of overtime calculation in the
circumstances described in the Fair Labor Standards Act exemptions
providing those alternative methods;
(2) Any person employed in agriculture, as defined under the Fair Labor
Standards Act;
(3) Any person employed as a domestic, including baby sitters and companions,
as defined under the Fair Labor Standards Act;
(4) Any person employed as a page in the North Carolina General Assembly or in
the Governor's Office;
(5) Bona fide volunteers in medical, educational, religious, or nonprofit
organizations where an employer-employee relationship does not exist;
(6) Persons confined in and working for any penal, correctional or mental
institution of the State or local government;
(7) Any person employed as a model, or as an actor or performer in motion
pictures or theatrical, radio or television productions, as defined under the Fair
Labor Standards Act, except as otherwise specifically provided in G.S.
95-25.5;
(8) Any person employed by an outdoor drama in a production role, including
lighting, costumes, properties and special effects, except as otherwise
specifically provided in G.S. 95-25.5; but this exemption does not include
such positions as office workers, ticket takers, ushers and parking lot
attendants.
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(b) The provisions of G.S. 95-25.3 (Minimum Wage) and G.S. 95-25.4 (Overtime), and
the provisions of G.S. 95-25.15(b) (Record Keeping) as they relate to these exemptions, do not
apply to:
(1) Any employee of a boys' or girls' summer camp or of a seasonal religious or
nonprofit educational conference center;
(2) Any person employed in the catching, processing or first sale of seafood, as
defined under the Fair Labor Standards Act;
(3) The spouse, child, or parent of the employer or any person qualifying as a
dependent of the employer under the income tax laws of North Carolina;
(4) Any person employed in a bona fide executive, administrative, professional or
outside sales capacity, as defined under the Fair Labor Standards Act;
(5) Repealed by Session Laws 1989, c. 687, s. 2.
(6) Any person while participating in a ridesharing arrangement as defined in
G.S. 136-44.21;
(7) Any person who is employed as a computer systems analyst, computer
programmer, software engineer, or other similarly skilled worker, as defined
in the Fair Labor Standards Act.
(b1) The provisions of G.S. 95-25.3 (Minimum Wage) and G.S. 95-25.4 (Overtime), and
the provisions of G.S. 95-25.15(b) (Record Keeping) as they relate to the exemptions provided
for in this subsection, do not apply to any of the following:
(1) Hours worked as a bona fide volunteer firefighter in an incorporated,
nonprofit volunteer or community fire department.
(2) Hours worked as a bona fide volunteer rescue and emergency medical
services personnel in an incorporated, nonprofit volunteer or community fire
department, or an incorporated, nonprofit rescue squad.
Hours worked in accordance with this subsection shall not be considered hours worked for
purposes of G.S. 95-25.3 or G.S. 95-25.4.
(c) The provisions of G.S. 95-25.4 (Overtime), and the provisions of G.S. 95-25.15(b)
(Record Keeping) as they relate to this exemption, do not apply to:
(1) Drivers, drivers' helpers, loaders and mechanics, as defined under the Fair
Labor Standards Act;
(2) Taxicab drivers;
(3) Seamen, employees of railroads, and employees of air carriers, as defined
under the Fair Labor Standards Act;
(4) Salespersons, mechanics and partsmen employed by automotive, truck, and
farm implement dealers, as defined under the Fair Labor Standards Act;
(5) Salespersons employed by trailer, boat, and aircraft dealers, as defined under
the Fair Labor Standards Act;
(6) Live-in child care workers or other live-in employees in homes for dependent
children;
(7) Radio and television announcers, news editors, and chief engineers, as defined
under the Fair Labor Standards Act.
(d) The provisions of this Article do not apply to the State of North Carolina, any city,
town, county, or municipality, or any State or local agency or instrumentality of government,
except for the following provisions, which do apply:
(1) The minimum wage provisions of G.S. 95-25.3;
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(2) The definition provisions of G.S. 95-25.2 necessary to interpret the applicable
provisions;
(3) The exemptions of subsections (a) and (b) of this section;
(4) The complainant protection provisions of G.S. 95-25.20.
(e) Employment in a seasonal recreation program by the State of North Carolina, any
city, town, county, or municipality, or any State or local agency or instrumentality of
government, is exempt from all provisions of this Article, including G.S. 95-25.3 (Minimum
Wage). (1937, c. 406; c. 409, s. 3; 1939, c. 312, s. 1; 1943, c. 59; 1947, c. 825; 1949, c. 1057;
1959, cc. 475, 629; 1961, cc. 602, 1070; 1963, c. 1123; 1965, c. 724; 1967, c. 998; 1973, c. 600,
s. 1; 1975, c. 19, s. 26; c. 413, s. 2; 1977, c. 146; 1979, c. 839, s. 1; 1981, c. 493, s. 2; c. 606, s. 2;
c. 663, s. 7; 1983, c. 708, s. 2; 1989, c. 687, s. 2; 1991, c. 330, s. 3; 1993, c. 214, s. 2; 1995, c.
509, s. 47; 1997-146, s. 2; 2002-113, s. 2.)
§ 95-25.15. Investigations and inspection of records; notice of law.
(a) The Commissioner or his designated representative shall have the power and authority to
enter any place of employment and gather such facts as are essential to determine whether or not
the employer is covered by any provision of this Article.
With respect to any provision of this Article under which the employer is covered, the
Commissioner or the Commissioner's designated representative may inspect such places and
such records, make transcriptions of any and all such records, question employees and
investigate such facts, conditions, practices, or matters as are necessary to determine whether the
employer has violated said provision of this Article.
With respect to the provisions of G.S. 95-25.6 through 95-25.12 (Wage Payment) as those
provisions apply to persons covered by the Fair Labor Standards Act, the Commissioner or his
designated representative shall have no authority under this subsection unless the Commissioner
or his designated representative has received a complaint from an employee of the covered
establishment.
(b) Except as otherwise provided in this Article, every employer subject to any provision of
this Article shall make, keep, and preserve such records of the persons employed by the
employer, including the ages of employees, and of the wages, hours, and other conditions and
practices of employment which are essential to the enforcement of this Article and are prescribed
by regulation of the Commissioner, except that the Commissioner shall have no authority to
prescribe records for the State of North Carolina, a city, town, county or other municipality or
agency or instrumentality of government.
(c) A poster summarizing the major provisions of this Article shall be displayed in every
establishment subject to this Article. (1937, c. 317, ss. 5, 19; 1959, c. 475; 1971, c. 1231, s. 2;
1973, c. 649, s. 4; 1975, c. 413, ss. 7, 9; 1979, c. 839, s. 1; 2005-453, s. 22; 2009-351, s. 2)
§ 95-25.16. Enforcement.
(a) The Commissioner shall enforce and administer the provisions of this Article, and the
Commissioner or his authorized representative is empowered to hold hearings and to institute
criminal and civil proceedings hereunder.
(b) The Commissioner or his authorized representative shall have power to administer
oaths and examine witnesses, issue subpoenas, compel the attendance of witnesses and the
production of papers, books, accounts, records, payrolls, documents, and take depositions and
affidavits in any proceeding hereunder.
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(c) The Commissioner is empowered to enter into reciprocal agreements with the labor
department or corresponding agency of any other state or with the person, board, officer, or
commission authorized to act on behalf of the department or agency, for the collection in the
other state of claims and judgments for wages based upon investigations and findings made by
the Commissioner or his authorized representative.
The Commissioner may, to the extent provided for by any reciprocal agreement entered into
by law or with an agency of another state, as provided in this section, maintain actions in the
courts of any other state for the collection of claims or judgments for wages and may assign the
claims and judgments to the labor department or agency of the other state for collection to the
extent that such an assignment may be permitted or provided for by the law of that state or by
reciprocal agreement.
Except as provided in subsection (d) of this section, the Commissioner may, upon the written
consent of the labor department or corresponding agency of any other state or of any person,
board, officer, or commission authorized to act on behalf of the department or agency, maintain
actions in the courts of this State upon assigned claims and judgments for wages arising in the
other state in the same manner and to the same extent that these actions by the Commissioner are
authorized when arising in this State.
(d) Subsection (c) of this section applies only to those states that extend comity to this
State. (1937, c. 317, s. 19; c. 409, s. 7; 1971, c. 1231, s. 2; 1973, c. 649, s. 4; 1975, c. 473, s. 9; c.
475; 1979, c. 839, s. 1; 1989, c. 687, s. 3.)
§ 95-25.17. Wage and Hour Division established.
The Commissioner of Labor is charged with enforcement of this Article. The Commissioner
shall appoint a Wage and Hour Director and any other employees the Commissioner deems
necessary for enforcement of this Article. The Commissioner shall continue to prescribe the
powers, duties, and responsibilities of the Director and employees engaged in the administration
of this Article. (1979, c. 839, s. 1; 2005-453, s. 23.)
§ 95-25.18. Legal representation.
It shall be the duty of the Attorney General of North Carolina, when requested, to represent
the Department of Labor in actions or proceedings in connection with this Article. (1979, c. 839,
s. 1.)
§ 95-25.19. Rules.
The Commissioner may adopt rules needed to implement this Article. (1937, c. 317, s. 18;
1975, c. 413, s. 12; 1979, c. 839, s. 1; 1987, c. 827, s. 262.)
§ 95-25.20. Records.
Files and other records relating to investigations and enforcement proceedings pursuant to
this Article, or pursuant to Article 21 of this Chapter with respect to Wage and Hour Act
violations, shall not be subject to inspection and examination as authorized by G.S. 132-6 while
such investigations and proceedings are pending. Nothing under this section shall impede the
right to discovery under G.S. 1A-1, Rules of Civil Procedure. (1979, c. 839, s. 1; 1981, c. 663, s.
8; 1991 (Reg. Sess., 1992), c. 1021, s. 3.)
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§ 95-25.21. Illegal acts.
(a) It shall be unlawful for any person to interfere unduly with, hinder, or delay the
Commissioner or any authorized representative in the performance of official duties or refuse to
give the Commissioner or his authorized representative any information required for the
enforcement of this Article.
(b) It shall be unlawful for any person to make any statement or report, or keep or file
any record pursuant to this Article or regulations issued thereunder, knowing such statement,
report, or record to be false in a material respect.
(c) Any person who violates this section shall be guilty of a Class 2 misdemeanor. (1937,
c. 409, ss. 6, 8; 1979, c. 839, s. 1; 1993, c. 539, s. 661; 1994, Ex. Sess., c. 24, s. 14(c).)
§ 95-25.22. Recovery of unpaid wages.
(a) Any employer who violates the provisions of G.S. 95-25.3 (Minimum Wage), G.S.
95-25.4 (Overtime), or G.S. 95-25.6 through 95-25.12 (Wage Payment) shall be liable to the
employee or employees affected in the amount of their unpaid minimum wages, their unpaid
overtime compensation, or their unpaid amounts due under G.S. 95-25.6 through 95-25.12, as the
case may be, plus interest at the legal rate set forth in G.S. 24-1, from the date each amount first
came due.
(a1) In addition to the amounts awarded pursuant to subsection (a) of this section, the
court shall award liquidated damages in an amount equal to the amount found to be due as
provided in subsection (a) of this section, provided that if the employer shows to the satisfaction
of the court that the act or omission constituting the violation was in good faith and that the
employer had reasonable grounds for believing that the act or omission was not a violation of
this Article, the court may, in its discretion, award no liquidated damages or may award any
amount of liquidated damages not exceeding the amount found due as provided in subsection (a)
of this section.
(b) Action to recover such liability may be maintained in the General Court of Justice by
any one or more employees.
(c) Action to recover such liability may also be maintained in the General Court of
Justice by the Commissioner at the request of the employees affected. Any sums thus recovered
by the Commissioner on behalf of an employee shall be held in a special deposit account and
shall be paid directly to the employee or employees affected.
(d) The court, in any action brought under this Article may, in addition to any judgment
awarded plaintiff, order costs and fees of the action and reasonable attorneys' fees to be paid by
the defendant. In an action brought by the Commissioner in which a default judgment is entered,
the clerk shall order attorneys' fees of three hundred dollars ($300.00) to be paid by the
defendant.
The court may order costs and fees of the action and reasonable attorneys' fees to be paid by
the plaintiff if the court determines that the action was frivolous.
(e) The Commissioner is authorized to determine and supervise the payment of the
amounts due under this section, including interest at the legal rate set forth in G.S. 24-1, from the
date each amount first came due, and the agreement to accept such amounts by the employee
shall constitute a waiver of the employee's right to bring an action under subsection (b) of this
section.
(f) Actions under this section must be brought within two years pursuant to G.S. 1-53.
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(g) Prior to initiating any action under this section, the Commissioner shall exhaust all
administrative remedies, including giving the employer the opportunity to be heard on the
matters at issue and giving the employer notice of the pending action. (1959, c. 475; 1975, c.
413, s. 11; 1979, c. 839, s. 1; 1989, c. 687, s. 4; 1991, c. 298.)
§ 95-25.23. Violation of youth employment; civil penalty.
(a) Any employer who violates the provisions of G.S. 95-25.5 (Youth Employment) or
any regulation issued thereunder, shall be subject to a civil penalty not to exceed five hundred
dollars ($500.00) for the first violation and not to exceed one thousand dollars ($1,000.00) for
each subsequent violation. In determining the amount of such penalty, the appropriateness of
such penalty to the size of the business of the person charged and the gravity of the violation
shall be considered. The determination by the Commissioner shall be final, unless within 15 days
after receipt of notice thereof by certified mail with return receipt, by signature confirmation as
provided by the U.S. Postal Service, by a designated delivery service authorized pursuant to 26
U.S.C. § 7502(f)(2) with delivery receipt, or via hand delivery, the person charged with the
violation takes exception to the determination, in which event final determination of the penalty
shall be made in an administrative proceeding pursuant to Article 3 of Chapter 150B and in a
judicial proceeding pursuant to Article 4 of Chapter 150B.
(b) The amount of such penalty when finally determined may be recovered in the manner
set forth in G.S. 95-25.23B.
(c) The clear proceeds of civil penalties provided for in this section shall be remitted to
the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.
(d) Assessment of penalties under this section shall be subject to a two-year statute of
limitations commencing at the time of the occurrence of the violation. (1979, c. 839, s. 1; 1981,
c. 663, s. 9; 1989, c. 687, s. 6; 1993, c. 225, s. 1; 1998-215, s. 107; 2003-308, s. 1; 2007-231, s.
4; 2009-351, s. 1)
§ 95-25.23A. Violation of record-keeping requirement; civil penalty.
(a) Any employer who violates the provisions of G.S. 95-25.15(b) or any regulation
issued pursuant to G.S. 95-25.15(b), shall be subject to a civil penalty of up to two hundred fifty
dollars ($250.00) per employee with the maximum not to exceed two thousand dollars ($2,000)
per investigation by the Commissioner or the Commissioner’s authorized representative. In
determining the amount of the penalty, the Commissioner shall consider each of the following:
(1) The appropriateness of the penalty for the size of the business of the employer
charged.
(2) The gravity of the violation.
(3) Whether the violation involves an employee under 18 years of age.
The determination by the Commissioner shall be final, unless within 15 days after receipt of
notice thereof by certified mail with return receipt, by signature confirmation as provided by the
U.S. Postal Service, by a designated delivery service authorized pursuant to 26 U.S.C. §
7502(f)(2) with delivery receipt, or via hand delivery, the person charged with the violation takes
exception to the determination, in which event final determination of the penalty shall be made in
an administrative proceeding pursuant to Article 3 of Chapter 150B and in a judicial proceeding
pursuant to Article 4 of Chapter 150B.
(b) The amount of the penalty when finally determined may be recovered in the manner
set forth in G.S. 95-25.23B.
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(c) The clear proceeds of civil penalties provided for in this section shall be remitted to
the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2.
(d) Assessment of penalties under this section shall be subject to a two-year statute of
limitations commencing at the time of the occurrence of the violation. (1989, c. 687, s. 5; 1993,
c. 225, s. 2; 1998-215, s. 108; 2003-308, s. 2; 2007-231, s. 5; 2009-351, s. 3.)
§ 95-25.23B. Civil penalty collection.
The Commissioner may file in the office of the clerk of the superior court of any county a
certified copy of an assessment, either unappealed from or affirmed in whole or in part upon
appeal, of a civil money penalty under G.S. 95-25.23 or G.S. 95-25.23A. Upon such filing, the
clerk shall enter judgment in accordance with the unappealed or affirmed portion of the
assessment and shall notify the parties. Such judgment shall have the same effect, and all
proceedings in relation to the judgment shall thereafter be the same, as though the judgment had
been rendered in a suit duly heard and determined by the superior court of the General Court of
Justice. (1993, c. 225, s. 3.)
§ 95-25.23C. Report on youth employment enforcement activities.
(a) Findings. – The General Assembly finds that:
(1) There is an increasing need to protect the educational opportunities of youths
under age 18 and to prohibit their employment in jobs and under conditions that are
detrimental to their health and well-being.
(2) Although the statutory protections available for youths under age 18 who are
employed in this State are comprehensive, those protections are rendered meaningless
without effective enforcement.
(3) It is in the best interest of the State and its youngest workers to ensure that
North Carolina employers are in full compliance with the youth employment
laws and regulations enacted under the Wage and Hour Act.
(b) Intent. – Recognizing that the Department of Labor is the State agency charged with
enforcing the Wage and Hour Act as it pertains to youth employment, the General Assembly
intends to review the Department's education and enforcement activities on a regular basis in
order to identify effective measures for enhancing youth employment protections in this State.
(c) Report. – No later than February 1 of each year, the Commissioner shall submit a written
report to the General Assembly, the Legislative Study Commission on Children and Youth, and
the Fiscal Research Division of the General Assembly on the Department of Labor's
investigative, inspection, and enforcement activities under the Wage and Hour Act pertaining to
youth employment. Each report submitted pursuant to this subsection shall contain data and
information about the calendar year preceding the date on which the last written report was
submitted. The report shall include at least all of the following:
(1) All activities the Department of Labor has sponsored or participated in for the purpose
of educating employers about their responsibilities under the Wage and Hour Act.
(2) The total number of complaints received by the Department of Labor alleging youth
employment violations under the Wage and Hour Act, or any regulations issued under the
Wage and Hour Act, or both.
(3) The specific types of youth employment violations alleged and the ages of the youths
referenced in the complaints received by the Department of Labor.
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(4) The total number of investigations conducted by the Department of Labor concerning
alleged youth employment violations, the length of the investigations, and the number of
investigators assigned to conduct the investigations. For purposes of this subdivision, the
Commissioner shall provide a separate analysis of (i) investigations initiated by the
Department in response to a complaint, (ii) investigations initiated by the Department in
the absence of a complaint, and (iii) alleged record-keeping violations pertaining to youth
employment.
(5) The total number of administrative proceedings involving youth employment
violations.
(6) The total number and identity of employers cited for youth employment violations
and the industries or occupations that received the greatest and the least number of
complaints alleging youth employment violations.
(7) The total number and dollar amount of civil penalties assessed pursuant to G.S. 95-
25.23 and the total number and dollar amount of civil penalties actually collected
pursuant to that section. For purposes of this subdivision, the Commissioner shall provide
a detailed, itemized list of each civil penalty represented in the total number and dollar
amounts reported pursuant to this subdivision and indicate whether each civil penalty is
the result of a complaint.
(8) The total number and dollar amount of civil penalties assessed pursuant to G.S. 95-
25.23A and the total number and dollar amount of civil penalties actually collected
pursuant to that section. For purposes of this subdivision, the Commissioner shall provide
a detailed, itemized list of each civil penalty represented in the total number and dollar
amounts reported pursuant to this subdivision and indicate whether each civil penalty is
the result of a complaint.
(9) An explanation of any obstacles that prevented the Department of Labor from
enforcing any provision of the Wage and Hour Act as it pertains to youth employment,
any recommended changes to the Wage and Hour Act to strengthen the Department of
Labor's oversight and enforcement of youth employment laws and regulations in this
State, and any other information related to the Department of Labor's enhanced
enforcement of the State's youth employment laws and regulations.
(10) Recommendations about the funding needed by the Department to (i) eliminate any
identified obstacles to enforcement of youth employment laws and regulations and (ii)
effectively implement any recommended changes. (2009-139, s. 1.)
§ 95-25.24. Restraint of violations.
The General Court of Justice has jurisdiction and authority upon application of the
Commissioner to enjoin or restrain violations of this Article, including the restraint of any
withholding of payment of unpaid wages, minimum wages, or overtime compensation found by
the court to be due to employees under this Article (except sums which employees are barred
from recovering, at the time of the commencement of the action to restrain the violations, by
virtue of the applicable statute of limitations). (1979, c. 839, s. 1; 1991, c. 330, s. 4.)
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§ 95-25.25. Construction of Article and severability.
This Article shall receive a liberal construction to the end that the welfare of adult and minor
workers may be protected. If any provisions of this Article or the application thereof to any
person or circumstance is held to be invalid, such invalidity shall not affect the provisions or
application of the Article which can be given effect without the invalid provision or application,
and to this end the provisions of this Article are severable. (1979, c. 839, s. 1.)
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III. CONCILIATION SERVICE AND
MEDIATION OF LABOR DISPUTES
Chapter 95, Article 4
For information about the conciliation service and mediation of labor disputes, contact the
Legal Affairs Division, 1101 Mail Service Center, Raleigh, North Carolina 27699-1101, (919)
733-0368 or 1-800-NC-LABOR.
§ 95-32. Declaration of policy.
It is hereby declared as the public policy of this State that the best interests of the people of
the State are served by the prevention or prompt settlement of labor disputes; that strikes and
lockouts and other forms of industrial strife, regardless of where the merits of the controversy lie,
are forces productive ultimately of economic waste; that the interests and rights of the consumers
and the people of the State, while not direct parties thereto, should always be considered,
respected and protected; and that the conciliation and voluntary mediation of such disputes under
the guidance and supervision of a governmental agency will tend to promote permanent
industrial peace and the health, welfare, comfort and safety of the people of the State. To carry
out such policy, the necessity for the enactment of the provisions of this Article is hereby
declared as a matter of legislative determination. (1941, c. 362, s. 1.)
§ 95-33. Scope of Article.
The provisions of this Article shall apply to all labor disputes in North Carolina. (1941, c.
362, s. 2.)
§ 95-34. Administration of Article.
The administration of this Article shall be under the general supervision of the Commissioner
of Labor of North Carolina. (1941, c. 362, s. 3.)
§ 95-35. Conciliation service established; personnel; removal; compensation.
There is hereby established in the Department of Labor a conciliation service. The
Commissioner of Labor may appoint such employees as may be required for the consummation
of the work under this Article, prescribe their duties and fix their compensation, subject to
existing laws applicable to the appointment and compensation of employees of the State of North
Carolina. Any member of or employee in the conciliation service may be removed from office
by the Commissioner of Labor, acting in his discretion. (1941, c. 362, s. 4.)
§ 95-36. Powers and duties of Commissioner and conciliator.
Upon his own motion in an existent or imminent labor dispute, the Commissioner of Labor
may, and, upon the direction of the Governor, must order a conciliator to take such steps as seem
expedient to effect a voluntary, amicable and expeditious adjustment and settlement of the
differences and issues between employer and employees which have precipitated or culminated
in or threaten to precipitate or culminate in such labor dispute.
The conciliator shall promptly put himself in communication with the parties to such
controversy, and shall use his best efforts, by mediation, to bring them to agreement.
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The Commissioner of Labor, any conciliator or conciliators and all other employees of the
Commissioner of Labor engaged in the enforcement and duties prescribed by this Article, shall
not be compelled to disclose to any administrative or judicial tribunal any information relating
to, or acquired in the course of their official activities under the provisions of this Article, nor
shall any reports, minutes, written communications, or other documents or copies of documents
of the Commissioner of Labor and the above employees pertaining to such information be
subject to subpoena: Provided, that the Commissioner of Labor, any conciliator or conciliators
and all other employees of the Commissioner of Labor engaged in the enforcement of this
Article, may be required to testify fully in any examination, trial, or other proceeding in which
the commission of a crime is the subject of inquiry. (1941, c. 362, s. 5; 1949, c. 673.)
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IV. VOLUNTARY ARBITRATION OF LABOR DISPUTES
Chapter 95, Article 4A
For information about the conciliation service and arbitration of labor disputes, contact the
Legal Affairs Division, 1101 Mail Service Center, Raleigh, North Carolina 27699-1101, (919)
733-0368 or 1-800-NC-LABOR.
§ 95-36.1. Declaration of policy.
It is hereby declared as the public policy of this State that the best interests of the people of
the State are served by the prompt settlement of labor disputes; that strikes and lockouts and
other forms of industrial strife, regardless of where the merits of the controversy lie, are forces
productive ultimately of economic waste; that the interests and rights of the consumers and the
people of the State, while not direct parties to such disputes, should always be considered,
respected and protected; and, where efforts at amicable settlement have been unsuccessful, that
the voluntary arbitration of such disputes will tend to promote permanent industrial peace and the
health, welfare, comfort and safety of the people of the State. To carry out such policies, the
necessity for the enactment of the provisions of this Article is hereby declared as a matter of
legislative determination. (1945, c. 1045, s. 1; 1951, c. 1103, s. 1.)
§ 95-36.2. Scope of Article.
The provisions of this Article shall apply only to voluntary agreements to arbitrate labor
disputes including, but not restricted to, all controversies between employers, employees and
their respective bargaining representatives, or any of them, relating to wages, hours, and other
conditions of employment. (1945, c. 1045, s. 2; 1951, c. 1103, s. 1.)
§ 95-36.3. Administration of Article.
(a) The administration of this Article shall be under the general supervision of the
Commissioner of Labor of North Carolina.
(b) There is hereby established in the Department of Labor an arbitration service. The
Commissioner of Labor may appoint such employees as may be required for the consummation
of the work under this Article, prescribe their duties and fix their compensation, subject to
existing laws applicable to the appointment and compensation of employees of the State of North
Carolina. Any member of or employee in the arbitration service may be removed from office by
the Commissioner of Labor, acting in his discretion.
(c) The Commissioner of Labor, with the written approval of the Attorney General as to
legality, shall have power to adopt, alter, amend or repeal appropriate rules of procedure for
selection of the arbitrator or panel and for conduct of the arbitration proceedings in accordance
with this Article: Provided, however, that such rules shall be inapplicable to the extent that they
are inconsistent with the arbitration agreement of the parties. (1945, c. 1045, s. 3; 1951, c. 1103,
s. 1.)
§ 95-36.4. Voluntary arbitrators.
(a) It shall be the duty of the Commissioner of Labor to maintain a list of qualified and
public-spirited citizens who will serve as arbitrators. All appointments of a single arbitrator or
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member of an arbitration panel by the Commissioner of Labor shall be made from the list of
qualified arbitrators maintained by him.
(b) No person named by the Commissioner of Labor to act as an arbitrator in a dispute shall
be qualified to serve as such arbitrator if such person has any financial or other interest in the
company or labor organization involved in the dispute. (1945, c. 1045, s. 4; 1951, c. 1103, s. 1.)
§ 95-36.5. Fees and expenses.
(a) All the costs of any arbitration proceeding under this Article, including the fees and
expenses of the arbitrator or arbitration panel, shall be paid by the parties to the proceeding in
accordance with any agreement between them. In the absence of such an agreement, the award
in the proceeding shall normally require the payment of such fees, expenses and other proper
costs by one or more of the parties: Provided, that if the Commissioner of Labor deems that the
public interest so requires, he may provide for the payment to any arbitrator appointed by him of
per diem compensation at the rate established by the Commissioner, and actual travel and other
necessary expenses incurred while performing duties arising under this Article.
(b) In cases where an arbitrator has been appointed by the Commissioner, the Department of
Labor may furnish necessary stenographic, clerical and technical service and assistance to the
arbitrator or arbitration panel.
(c) Expenditures of public funds authorized under this section shall be paid from funds
appropriated for the administration of this Article. (1945, c. 1045, s. 5; 1947, c. 379, ss. 1-3;
1951, c. 1103, s. 1.)
§ 95-36.6. Appointment of arbitrators.
The parties may by agreement determine the method of appointment of the arbitrator or
arbitration panel. If the parties have agreed upon arbitration under this Article and have not
otherwise agreed upon the number of arbitrators or the method for their appointment, the
controversy shall be heard and decided by a single arbitrator designated in such manner as the
Commissioner of Labor shall determine. Any person or agency selected by agreement or
otherwise to appoint an arbitrator or arbitrators shall send by registered mail to each of the
parties to the proposed proceeding notice of the demand for arbitration. The arbitrator or
arbitration panel, as the case may be, shall have such powers and duties as are conferred by the
voluntary agreement of the parties, and, if there is no agreement to the contrary, shall have power
to decide the arbitrability as well as the merits of the dispute. (1945, c. 1045, s. 5; 1947, c. 379,
ss. 1-3; 1951, c. 1103, s. 1.)
§ 95-36.7. Arbitration procedure.
Upon the selection or appointment of an arbitrator or arbitration panel in any labor dispute, a
statement of the issues or questions in dispute shall be submitted to said arbitrator or panel in
writing, signed by one or more of the parties or their authorized agents. The arbitrator or panel
shall appoint a time and place for the hearing, and notify the parties thereof, and may postpone or
adjourn the hearing from time to time as may be necessary, subject to any time limits which are
agreed upon by the parties. If any party neglects to appear before the arbitrator or panel after
reasonable notice, the arbitrator or panel may nevertheless proceed to hear and determine the
controversy. Unless the parties have otherwise agreed, the findings and decision of a majority of
an arbitration panel shall constitute the award of the panel and, if a majority vote of the panel
cannot be obtained, then the findings and decision of the impartial chairman of the panel shall
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constitute such award. To be enforceable, the award shall be handed down within 60 days after
the written statement of the issues or questions in dispute has been received by the arbitrator or
panel, or within such further time as may be agreed to by the parties. (1945, c. 1045, s. 5; 1947,
c. 379, ss. 1-3; 1951, c. 1103, s. 1.)
§ 95-36.8. Enforcement of arbitration agreement and award.
(a) Written agreements to arbitrate labor disputes, including but not restricted to
controversies relating to wages, hours and other conditions of employment, shall be valid,
enforceable and irrevocable, except upon such grounds as exist in law or equity for the rescission
or revocation of any contract, in either of the following cases:
(1) Where there is a provision in a collective bargaining agreement or any other
contract, hereafter made or extended, for the settlement by arbitration of a
controversy or controversies thereafter arising between the parties;
(2) Where there is an agreement to submit to arbitration a controversy or
controversies already existing between the parties.
(b) Any arbitration award, made pursuant to an agreement of the parties described in
subsection (a) of this section and in accordance with this Article, shall be final and binding upon
the parties to the arbitration proceedings. (1945, c. 1045, s. 5; 1947, c. 379, ss. 1-3; 1951, c.
1103, s. 1.)
§ 95-36.9. Stay of proceedings.
(a) If any action or proceeding be brought in any court upon any issue referable to arbitration
under an agreement described in subsection (a) of G.S. 95-36.8, the court where the action or
proceeding is pending or a judge of the superior court having jurisdiction in any county where
the dispute arose shall stay the action or proceeding, except for any temporary relief which may
be appropriate pending the arbitration award, until such arbitration has been had in accordance
with the terms of the agreement. The application for stay may be made by motion in writing of a
party to the agreement, but such motion must be made before answer or demurrer to the pleading
by which the action or proceeding was begun.
(b) Any party against whom arbitration proceedings have been initiated may, within 10 days
after receiving written notice of the issue or questions to be passed upon at the arbitration
hearing, apply to any judge of the superior court having jurisdiction in any county where the
dispute arose for a stay of the arbitration upon the ground that he has not agreed to the
arbitration of the controversy involved. Any such application shall be made in writing and heard
in a summary way in the manner and upon the notice provided by law or rules of court for the
making and hearing of motions generally, except that it shall be entitled to priority in the interest
of prompt disposition. If no such application is made within said 10-day period, a party against
whom arbitration proceedings have been initiated cannot raise the issue of arbitrability except
before the arbitrator and in proceedings subsequent to the award.
(c) Any party against whom an arbitration award has been issued may, within 10 days after
receiving written notice of such award, apply to any judge of the superior court having
jurisdiction in any county where the dispute arose for a stay of the award upon the ground that it
exceeds the authority conferred by the arbitration agreement. Any such application shall be made
in writing and heard in a summary way in the manner and upon the notice provided by law or
rules of court for the making and hearing of motions generally, except that it shall be entitled to
priority in the interest of prompt disposition. If no such application is made within said 10-day
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period, a party against whom arbitration proceedings have been initiated cannot raise the issue of
arbitrability except before the arbitrator or arbitrators, or in proceedings to enforce the award.
Any failure to abide by an award shall not constitute a breach of the contract to arbitrate, pending
disposition of a timely application for stay of the award pursuant to this paragraph. (1951, c.
1103, s. 1.)
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V. REGULATION OF PRIVATE PERSONNEL SERVICES
Chapter 95, Article 5A
For information about the regulation of Private Personnel Services, contact the Wage and
Hour Bureau, 1101 Mail Service Center, Raleigh, North Carolina 27699-1101, (919) 806-
2796 or 1-800-NC-LABOR.
§ 95-47.1. Definitions.
As used in this Article, unless the context clearly requires otherwise:
(1) "Accept" employment means to accept an employer's offer of employment or
to begin work for an employer.
(2) "Applicant," except where it refers to an applicant for a private personnel
services license, means any person who uses or attempts to use the services of
a private personnel service in seeking employment.
(3) "Commissioner" means the North Carolina Commissioner of Labor or any
person designated by the Commissioner as the representative of the
Commissioner.
(4) "Complaint" means a communication to the Commissioner or department
alleging facts that could support issuance of a warning or citation under G.S.
95-47.9.
(5) "Contract" means any agreement between a private personnel service and an
applicant obligating the applicant to pay a fee or any agreement subsequent to
such contract reducing the obligations of the private personnel service to the
applicant under the contract.
(6) "Employee" means a person performing work or services of any kind or
character for compensation.
(7) "Employer" means a person employing or seeking to employ a person for
compensation, or any representative or employee of such employer.
(8) "Employment" means any service or engagement rendered or undertaken for
wages, salary, commission, or other form of compensation.
(9) "Fee" means anything of value, including money or other valuable
consideration or services or the promise of any of the foregoing, required or
received by a private personnel service, in payment for any of its services, or
act rendered or to be rendered by any private personnel service.
(10) "Interview" means a meeting between an employer and an applicant to discuss
potential employment.
(11) "Job order" means an oral or written communication from an employer
authorizing a private personnel service to refer applicants for a position the
employer has available.
(12) "Licensee" means any person licensed by the Commissioner to operate a
private personnel service.
(13) "Manager" of a private personnel service means the person who is responsible
for the operation of an office of a private personnel service.
(14) "Owner" of a private personnel service means the sole proprietor of a private
personnel service operated as a sole proprietorship; any partner in a
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partnership that owns or operates a private personnel service; any stockholder
with a financial interest greater than 10 percent (10%) in a corporation that
owns or operates a private personnel service.
(15) "Person" means any individual, association, partnership or corporation.
(16) "Private personnel service" means any business operated in the State of North
Carolina by any person for profit which secures employment or by any form
of advertising holds itself out to applicants as able to secure employment or to
provide information or service of any kind purporting to promote, lead to or
result in employment for the applicant with any employer other than itself,
where any applicant may become liable for the payment of a fee to the private
personnel service, either directly or indirectly. "Private personnel service"
does not include:
a. Any educational, religious, charitable, fraternal or benevolent
organization which charges no fee for services rendered in securing
employment or providing information about employment;
b. Any employment service operated by the State of North Carolina, the
Government of the United States, or any city, county, or town, or any
agency thereof;
c. Any temporary help service that at no time advertises or represents
that its employee may, with the approval of the temporary help
service, be employed by one of its client companies on a permanent
basis and which does not act as a private personnel service or an
employer fee paid personnel service;
d. Any newspaper of general circulation or other business engaged
primarily in communicating information other than information about
specific positions of employment and that does not purport to adapt the
information provided to the needs or desires of an individual
subscriber;
e. Employment offices that charge no fee to the applicant other than
union dues or to the employer and which are used solely for the hiring
of employees under a valid union contract by the employer subscribing
to this contract;
f. Any employer fee paid personnel consulting service or temporary help
service that offers temporary to permanent placement when the service
operates on a one hundred percent (100%) employer fee paid service
basis, requires no applicant placement contract, and has no recourse
against an applicant for a fee under any circumstances.
(17) "Refer" an applicant means to submit resumes to an employer, arrange
interviews between an applicant and an employer, or to provide an employer
with the name of an applicant. (1929, c. 178, ss. 1, 10; 1979, c. 780, s. 1;
1989, c. 414, s. 1.)
§ 95-47.2. Licensing procedures.
(a) No person shall open, keep, maintain, own, operate or carry on a private personnel
service unless the person has first procured a license therefor as provided in this Article.
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(b) An application for license shall be made to the Commissioner. If the private personnel
service is owned by an individual, the application shall be made by that individual; if the service
is owned by a partnership, the application shall be made by all partners; if the service is owned
by a corporation, the application shall be made by all stockholders who own at least twenty
percent (20%) of the issued and outstanding voting stock of the corporation, or if the service is
owned by an association, society, or corporation in which no one individual owns at least twenty
percent (20%) of the issued and outstanding voting stock, the application shall be made by the
president, vice-president, secretary and treasurer of the owner, by whatever title designated. The
application shall state the name and address of the individual who is responsible for the direction
and operation of the placement activities of the private personnel service whether that individual
be one of the applicants or another person; whether or not that individual has ever been
employed in a private personnel service; the name and address of each of the license applicant's
prior employers during the five years immediately preceding the license application; and such
other information relating to the good moral character of that individual as the Commissioner
may require. No change in such persons shall take place without prior notification to the
Commissioner.
(c) Each application for license shall be in writing and in the form prescribed by the
Commissioner, and shall state truthfully the name under which the business is to be conducted;
the street and number of the building or place where the business is to be conducted.
(d) Upon the receipt of an application for a license the Commissioner:
(1) Shall publish a notice of the pending application in a newspaper of general
circulation in the area of the proposed location of the employment agency and
may publish the notice in a newspaper of general circulation in each area in
which the applicant (or if a corporation, the president and majority
shareholder) has resided during the five years preceding the time of the
application. The applicant shall incur the cost associated with the publication
of this legal advertisement. The notice shall include a statement informing
individuals of their right to protest the issuance of a license by filing within 10
days written comments with the Commissioner. The protest shall be in writing
and signed by the person filing the protest or by his authorized agent or
attorney, and shall state reasons why the license should not be granted. Upon
the filing of a protest, the Commissioner, if he determines the protest to be of
such a nature that a hearing should be conducted and that the protest is for a
cause on which denial of a license may properly be based, shall appoint a time
and place for a hearing on the application and shall give at least seven days'
notice of that time and place to the license applicant and to the person filing
the protest. The hearing shall be conducted in accordance with the provisions
of the rules of the Administrative Procedure Act.
(2) Shall investigate the character, criminal record and business integrity of each
applicant for agency license and shall investigate the criminal records of all
persons listed as agency owners, officers, directors or managers. The applicant
and all agency owners, officers, directors and managers shall assist the
department in obtaining necessary information by authorizing the release of
all relevant information. The applicant shall incur the cost associated with this
background investigation.
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(2a) The Department of Justice may provide a criminal record check to the
Commissioner for a person or agency who has applied for a license through
the Commissioner. The Commissioner shall provide to the Department of
Justice, along with the request, the fingerprints of all applicants, any
additional information required by the Department of Justice, and a form
signed by the applicants consenting to the check of the criminal record and to
the use of the fingerprints and other identifying information required by the
State or national repositories. The applicants' fingerprints shall be forwarded
to the State Bureau of Investigation for a search of the State's criminal history
record file, and the State Bureau of Investigation shall forward a set of the
fingerprints to the Federal Bureau of Investigation for a national criminal
history check. The Commissioner shall keep all information pursuant to this
subdivision privileged, in accordance with applicable State law and federal
guidelines, and the information shall be confidential and shall not be a public
record under Chapter 132 of the General Statutes.
The Department of Justice may charge each applicant a fee for conducting
the checks of criminal history records authorized by this subdivision.
(3) Upon completion of the investigation, or 60 days after the application was
received, whichever is later, but in no case more than 75 days after the
application was received, shall determine whether or not a license should be
issued. The license shall be denied for any of the following reasons:
a. If the applicant for agency license, or the president or majority
shareholder of a corporate applicant, omits or falsifies any material
information asked for in the application and required by the
Commissioner.
b. If any owner, officer, director or manager of the employment agency:
1. Has been convicted in any state of the criminal offense of
embezzlement, obtaining money under false pretenses, forgery,
conspiracy to defraud or any similar offense involving fraud or
moral turpitude;
2. Was an owner, officer, director or manager of an employment
agency or other business whose license was revoked or that
was otherwise caused to cease operation by action of any State
or federal agency or court because of violations of law or
regulation relating to deceptive or unfair practices in the
conduct of business;
3. As an owner or manager of an employment agency or other
business or as an employment counselor was found by any
State or federal agency or court to have violated any law or
regulation relating to deceptive or unfair practices in the
conduct of business; or
4. In any other demonstrable way engaged in deceptive or unfair
practices in the conduct of business.
c. If the employment agency will be operated on the same premises as a
loan agency (as defined in G.S. 105-88) or collection agency (as
defined in G.S. 58-70-15).
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(e) If it appears upon the hearing or from the inspection, examination or investigation
made by the Commissioner that the owners, partners, corporation officers or the agency manager
are not persons of good moral character or that the license applicant has not complied with the
provisions of this Article, the application shall be denied and a license shall not be granted. The
Commissioner shall find facts to substantiate his denial of the issuance of a license. Each
application shall be granted or refused within 60 days from the date of its filing, or if a hearing is
held, within 75 days. Any license heretofore or hereafter issued shall expire 12 months from the
date of its issuance, and shall be renewed as hereinafter provided unless sooner revoked by the
Commissioner.
(f) No license shall be granted to a person to operate as a private personnel service where
the name of the business is similar or identical to that of any existing licensed business (except
where a franchiser has licensed two or more persons to use the same name within the State) or
directly or indirectly expresses or connotes any limitation, specification or discrimination
contrary to current State or federal laws against discrimination in employment.
(g) Every license shall contain the name of the person licensed and shall designate the
city in which the license is issued, the name of the manager and date of the license. The license
shall be displayed in a conspicuous place in the area where job applicants are received by the
agency.
(h) A license granted as provided in this Article shall not be valid for any person other
than the person to whom it is issued or for any place other than that designated in the license and
shall not be assigned or transferred without the consent of the Commissioner, whose consent
must be based on the standards contained in this Article. Applications for consent to assign or
transfer shall be made in the same manner as an application for a license, and all the provisions
of this Article shall apply to applications for consent. The location of a private personnel service
shall not be changed without notice to the Commissioner, and any change of location shall be
endorsed upon the license. A person who has obtained a license in accordance with the
provisions of this Article may apply for additional licenses to conduct additional private
personnel services in accordance with the provisions of this Article. The manner of application,
and the conditions and terms applicable to the issuance of the additional licenses shall be the
same as for an original license. The same agency manager may be designated in all such licenses.
(i) Temporary license. – If ownership of a licensed private personnel service is
transferred, the department shall issue a temporary license to any new owner or successor if it
appears to the department that issuance of such a license would serve the public interest. A
temporary license shall be effective for a period of 90 days and shall not be renewed.
(j) Each licensee shall, before the license is issued or renewed, deposit with the
department a bond payable to the State of North Carolina and executed by a surety company duly
authorized to transact business in the State of North Carolina in the amount of ten thousand
dollars ($10,000) and upon condition that the private personnel service will pay to applicants all
refunds due under this Article and regulations adopted hereunder if the private personnel service
terminates its business. (1929, c. 178, ss. 2, 3; 1931, c. 312, s. 3; 1979, c. 780, s. 1; 1987, c. 282,
s. 12; 1989, c. 414, s. 2; 2002-147, s. 12; 2003-308, s. 9.)
§ 95-47.3. Fees and contracts; filing with Commissioner.
(a) Every license applicant shall file with the Commissioner a schedule of fees or charges
made by the private personnel service to applicants for employment for any services rendered,
stating clearly the conditions under which the private personnel service refunds or does not
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refund a fee, together with all rules or regulations that may in any manner affect the fees charged
or to be charged for any service. Every license applicant and licensee shall include in its schedule
of fees or charges a clear description of how it determines fees for placement of employment, the
compensation of which is based, in whole or in part, on commission. Changes in the schedule
may be made, but no change shall become effective until seven calendar days after the filing
thereof with the Commissioner. It is unlawful for a private personnel service to charge, demand,
collect or receive a greater compensation from an applicant for employment for any service
performed than as specified in the schedule filed with the Commissioner.
(b) Every license applicant shall file with the Commissioner a copy of the contract which
the private personnel service will require applicants for employment to execute. (1979, c. 780, s.
1; 1991 (Reg. Sess., 1992), c. 970, s. 1.)
§ 95-47.3A. Fee reimbursement from employers due to overstated earnings expectations.
(a) An applicant who accepts employment that is compensated in whole or in part on a
commission basis, and who pays a fee to the licensee calculated on the commission-based
compensation amount stated by the employer in the written job order, may file a written
complaint with the Commissioner if the applicant did not earn at least eighty percent (80%) of
the compensation amount stated by the employer in the written job order. If the applicant files
the written complaint before the period upon which the anticipated earnings is based has ended,
the Commissioner shall prorate the amount earned over the period of time the applicant worked
prior to the filing of the complaint in order to de