POSITION: NCCBI
has been the driving force behind blocking an ergonomics standard in North
Carolina and will continue to oppose any ergonomics standard at the state and
federal levels. There is no evidence that such a standard would improve the
safety and health of North Carolina employees and the costs would be
disproportionate to any unknown benefit. Thus, such a standard would put North
Carolina businesses at a competitive disadvantage with businesses in other
states.
EXPLANATION: Ergonomics
is generally defined as human engineering – an applied science concerned with
finding ways to make people safe, comfortable, and productive while they work.
In the workplace, North Carolina OSHA and federal OSHA have attempted to
regulate employers in the area of ergonomics by issuing citations based on
OSHA’s general duty clause where they feel that employees have been exposed to
risks of harm from repetitive motion injuries. However, when challenged, these
citations have not survived scrutiny because OSHA has been unable to prove
either (1) that workplace conditions cause the injury or illness; or (2) a
feasible means of abatement. This highlights the fact that the evidence
regarding the cause of such injuries or illnesses is uncertain. There is a lack
of agreement among doctors and industrial scientists on what causes repetitive
motion injuries and how to prevent them.
A state standard
adopted by the N.C. Department of Labor was blocked by the N.C. Rules Review
Commission in December 1999 and a lawsuit regarding that decision is currently
pending. NCCBI will continue to communicate with state officials about the
detrimental impact such a standard would have on North Carolina businesses.
North Carolina employers have over the past several years achieved noteworthy
reduction in workplace injury and illness rates through compliance with
existing regulations and self-imposed practices to help ensure the safety and
well-being of employees. North Carolina competes every day with other states,
particularly states in the southeast, to bring jobs to North Carolina. Eastern
North Carolina is suffering from recent hurricanes and flooding. Everything
needs to be done to boost North Carolina’s economy and continue to bring good
paying jobs to the state. A new layer of regulations would be a burdensome
deterrent for businesses and would put North Carolina at a competitive
disadvantage with the rest of the country.
NCCBI will also continue
to monitor the proposed federal ergonomics standard. The Small Business
Administration estimates such standards would cost businesses $63 billion to
implement. Federal OSHA have been working on a draft ergonomics rule for more
than 5 years, and considerable federal resources have been devoted to this
effort. As the U.S. Chamber of Commerce and other business groups at the
federal level are challenging the rules in court, NCCBI will work
collaboratively with these groups.
TORT REFORM
POSITION: NCCBI
applauds the North Carolina General Assembly for the actions taken in 1995 to
enact common sense tort reforms such as limiting punitive damages, and revising
our products liability statute. NCCBI believes that these were important first
steps toward bringing common sense and balance back to our civil justice
system. NCCBI would support further changes to eliminate punitive damages,
limit non-economic damages, end the collateral source rule, and provide a right
of subrogation to health insurers and others that may have paid a portion of
the damages suffered by an injured plaintiff.
EXPLANATION:
Punitive Damages. In 1995, the General Assembly enacted
legislation limiting punitive damages. That legislation went a long way toward
correcting the problems caused by punitive damages in our civil justice system,
particularly encouraging litigation and enriching plaintiffs and their
attorneys well beyond any amount lost by the plaintiff. However, by definition,
any punitive damage award is in addition to what is necessary to compensate a
plaintiff for the injuries sustained and, as such, is a windfall to the
plaintiff and his or her attorney. The general public pays for these windfalls
through increased product costs, insurance costs, and either increased taxes or
decreased public services, or both. These costs to the public rarely produce a
public benefit. The usual justification put forth for punitive damages is to
deter and punish intentional or malicious conduct. Yet, deterrence punishment
for such conduct is properly the province of our criminal courts, where fines
and probationary terms can be put to public benefit. The civil courts are not
the proper forum for deciding punishments.
Non-Economic Damage . Under our current system of civil
justice, a plaintiff may attempt to recover compensatory damages that include
past and future medical expenses, past and future lost wages, and
"non-economic" damages, which are those amounts awarded to the
plaintiff and that the Defendant must pay to compensate plaintiff for pain and
suffering the plaintiff claims to have endured as a result of the defendant's
conduct. These damages by their very nature are purely speculative. There is no
way for a jury to objectively measure pain and suffering and, as a result, the
award of such damages is merely a guessing game determined largely by the
amount of sympathy the jurors may feel for the plaintiff. These damages are the
primary cause of many lawsuits that could otherwise be easily settled without
litigation. "Pain and suffering" damage claims also cause inflated
settlements. Other states have recognized this and passed legislation limiting
or restricting non-economic damages. NCCBI urges the General Assembly to enact
legislation to provide objective guidance to juries in deciding the amount of
non-economic damages to award, such as caps or limits set as a multiple of
medical expenses. Such a system would preserve the plaintiffs right to fair and
reasonable compensation for damages actually incurred, including some
compensation for pain and suffering, while insuring that jurors act from reason
and evidence, and not sympathy.
Collateral Source Rule. When determining a compensatory
damage award, the collateral source rule prohibits both the judge and jury from
considering the fact that the plaintiff has already been compensated for much
of his or her financial loss, such as payment of medical costs through health
insurance or payment of income replacement benefits through a disability
insurance plan or workers' compensation plan. The goal of the civil justice
system is to reasonably and fairly compensate the plaintiff for actual losses.
When a plaintiff receives an award for medical bills that have already been
paid by another source, the plaintiff and the plaintiffs attorney receive a
windfall. These multiple recoveries contribute to the rising costs of medical
care and health and liability insurance. Elimination of these multiple
recoveries by abolishing the collateral source rule would be an important step
in controlling health and liability insurance costs.
Subrogation. As an alternative to eliminating the
collateral source rule, the General Assembly should consider enacting a statute
to specifically allow health insurers, disability insurers, and others that may
pay a portion of an injured party's expenses pursuant to a contract to recover
that money paid to the plaintiff out of any recovery the plaintiff receives
from a negligent third party. This would accomplish the same goal as
eliminating the collateral source rule; that being, to control health insurance
costs by preventing double recoveries that serve only to enrich a plaintiff or
his or her attorney.
POSITION: NCCBI
values privacy and strongly disapproves of unreasonable or unfair use of
information obtained in a business transaction. At the same time, NCCBI
disagrees with proposals for overly-burdensome or restrictive privacy rules.
Extreme proposals pressed by some would prevent North Carolina businesses from
meeting customer expectations, providing desired services, and competing on a
national or international basis.
Numerous federal and
international privacy provisions already affect North Carolina businesses. In
an age of e-commerce and intense national and global competition, North
Carolina businesses need a uniform standard, and will be placed at a severe
competitive disadvantage if they are subjected to additional privacy
requirements in North Carolina or in other places in which they do business.
For these reasons,
North Carolina should support uniform standards of reasonable privacy
protection.
EXPLANATION: Consumers
understandably are concerned about the privacy of their personal information.
This concern has grown with the increased precision and speed of computer
information processing. Much of the concern, however, stems from misconceptions
about the nature of consumer information businesses maintain and the use to
which they put this information.
In most instances,
the character of information utilized has not changed in the last 100 years.
The efficiency with which such information is employed, however, has improved.
One hundred years ago, a hardware dealer provided the names of “good prospects”
to a feed dealer. Fifty years ago, a department store tracked purchases by
customers and targeted catalogs and mailers on this basis. Twenty-five years
ago, a retailer exchanged mailing lists for direct mail contacts.
Today, this same kind
of information is used more efficiently to offer customers information that
covers more precisely the products and services they want. A furniture
manufacturer can identify customers likely to be particularly interested in
outdoor products. A grocery retailer can track purchases through discount cards
and send coupons and special offers in line with a customer’s preferences.
Although “personal” information related to purchases is used in these ways to
screen interested customers, no confidential financial information is made
available to the public.
Some consumers
identify marketing methods they dislike with invasions of privacy. Existing
federal and state regulations address telemarketing, direct mail, and e-mail
“spamming.” In those cases, it is the choice of marketing strategy, not the use
of personal information, that is the issue.
Financial information
and health information are of special concern. Federal regulators already have
imposed some stringent standards in both areas, and are in the process of
imposing more. In both cases, restrictions must be balanced to allow legitimate
access to appropriate information. For example, patients are ill-served if
medical care providers cannot share information necessary to proper diagnosis
and treatment. The public may be defrauded, and access to financial and
insurance products may be curtailed, if financial service providers cannot
obtain accurate information.
Some groups seek to
limit employers in monitoring the use of computers and other electronic
equipment by their employees. Employers provide this equipment, however, and
have the duty as well as the right to prevent its abuse. Problems that can
arise from a failure to supervise employee use of electronic equipment include
lack of productivity, infringement of the confidentiality of employer (and
customer) information, risk of harassment of other employees and customers, and
fraud.
NCCBI supports a
uniform, sensible, and balanced standard of privacy protection that:
JUDICIAL
DISCRETION TO LIMIT APPEAL BOND
POSITION: NCCBI supports new legislation granting North Carolina
trial judges the discretionary authority to establish reasonable appeal
bonds. Under the current system, many
defendants are effectively denied their right to appeal erroneous trial court
rulings due to the enormous financial burden required in posting an appeal
bond.
EXPLANATION: During the past year, the General Assembly adopted
legislation recognizing the inherent unfairness in requiring defendants to post
huge appeal bonds in order to prevent execution on a trial court judgment while
the judgment, and possibly erroneous trial court rulings, are on appeal. This recent legislation addressed the
problem of mandatory appeal bonds in a discrete context (the tobacco industry);
however, the issue is present in a number of other contexts and the underlying
public policy rationale should be expanded to include all civil judgments for
money damages. Specifically, the amount
at which to set a reasonable appeal bond should be left to the discretion of
the trial judge.
The
current non-discretionary formula used for setting appeal bonds often results
in the de facto denial of a defendant’s right of appeal. Following the issuance of a judgment for
money damages, North Carolina law requires a defendant to post an appeal bond
to stay execution on the judgment pending appeal. Under existing law, this appeal bond is set to equal the amount
of the money judgment plus an additional 10-15% to cover interest and damages
for delay. In trial court decisions
involving large, although erroneous, money judgments, many defendants are
incapable of raising sufficient funds to meet the appeal bond requirement and
thus cannot stay execution on the judgment.
As a result, defendants are forced into settling cases that they would
otherwise appeal because they cannot risk the chance that the plaintiff will
execute on the money judgment and force a sale of the defendant’s home or
business. Such injustice could be
prevented if trial judges had the discretionary power to place a reasonable
limit on appeal bonds.
JOINT AND
SEVERAL LIABILITY
POSITION: NCCBI
supports a change in our civil justice system to eliminate
joint
and several liability so that a defendant in a civil action is held financially
liable for only that portion of the plaintiff's damages actually caused by that
defendant's conduct.
EXPLANATION: Under our
current civil justice system, when the negligent acts of two or more defendants
combine to cause injury to another person, any of the defendants can be
required to pay the entire amount of the plaintiff's damages. This is true no
matter how slight that individual defendant's negligence may have been. Such a
system encourages litigation, rewards a plaintiff's attorney for taking a
"shotgun" approach to filing suit, firing lawsuits in every direction
instead of focusing on the defendant truly at fault, and discourages reasonable settlements of tort actions as the
plaintiffs attorney pursues the target defendant with the "deep
pocket."
For
example, assume a situation in which a person in a store buys something, then
runs from the store out to his car, knocking over a little old lady and
severely injuring her. The lady sues the patron for negligence in running
through the store and also sues the store for failing to have a sign posted
warning patrons against running in the store. If the jury finds that conduct on
the part of the store to be negligent, however slight, the store could be
required to pay the entire amount of the money judgment awarded by the jury to
the lady.
NCCBI
supports legislation that would eliminate joint and several liability by
limiting
a defendant's liability in a civil action to its pro rata share of
plaintiff's
damages, depending upon the number of defendants in the case.
POSITION: NCCBI
firmly supports continued changes in the way we select and retain judges in
North Carolina.
EXPLANATION: North
Carolina has good reason to be proud of its civil justice environment,
including a stable judiciary composed of learned, impartial, independent, and
career-minded judges. This is due to the fact that, even though our
Constitution provides for popular election of judges, and they all stand for
re-election periodically, almost all of them were initially appointed to by our
governors, and, until recently, were frequently re-elected.
This situation has
changed. The rise of the two party system has made elections contested and more
competitive. Special interests at both ends of the political spectrum have
contributed heavily to candidates in judicial elections. In one hotly contested
election in 1994, plaintiffs’ attorneys gave hundreds of thousands of dollars
to someone of no judicial experience to unseat a sitting Supreme Court Justice
because of his perceived conservative views. Although the plaintiffs’ lawyers’
candidate was eventually defeated, in all more than three-quarters of a million
dollars were spent by three candidates for this one seat on the Court.
Elections by popular
vote are for those who want to put in place certain governmental policies so
they can attract a constituency. This is not the case for judges who, except in
a very limited sense, do not establish policy. Judges decide cases. They
consider cases which are properly before them and brought by aggrieved parties.
For the most part, they decide them on the basis of legal Constitutional
principles, statutes, common law, and precedents. Judges most often make
decisions which are NOT popular.
The judiciary is
answerable to the people because the people can change the Constitution, and
legislatures can change the common law and the statutes. Also, North Carolina
judges are susceptible to administrative removal from office by action of the
Judicial Standards Commission and the Supreme Court for questions of
performance or ethics. Other officeholders are not accountable in this way.
NCCBI applauds the
Legislature for its first move in this direction: the approval of nonpartisan
elections of Superior Court Judges who
will run and be elected only in their own districts. We alre also encouraged by
the increased use of alternative dispute resolution, and urge its expansion.
Finally, we believe the Legislature should continue to weigh the
recommendations of the Commission on the Future of Justice and the Courts
(December 1996) for further meaningful reform, in particular for appellate
judges, appointment by Governor for both initial term and retention elections
every eight years thereafter.
POSITION: NCCBI supported the establishment of a North Carolina
business court and continues to support adequate funding for facilities,
equipment and personnel to enable the court to function justly and
effectively. NCCBI also supports the
passage of legislation providing automatic assignment of certain cases,
including those involving our corporate and business laws, to the court for
adjudication.
EXPLANATION: The General Assembly established a business court having
statewide jurisdiction over complex business litigation. The development of a stable, consistent body
of case law regarding business litigation issues is important to the continued
development of a strong economy here in North Carolina.
Largely by virtue of charitable grants and
other efforts by the business and legal community, the court has been able to
move from haphazard use of empty courtrooms (if available) to a more permanent
leased space with adequate technology and equipment. Funding from the state has been largely limited to personnel
and equipment. The state has never
provided recurring funding for a lease for a court facility. Similarly, counties have not been
forthcoming with any facility funding.
Recurring funding for the facility needs of the court is critical to its
continued success.
With
respect to assignment of cases to the business court, the process now involves
recommendation for assignment by a superior court judge and then a case-by-case
determination by the Chief Justice. As
a result of this cumbersome process, many cases which should be referred do not
get to the Business Court. This is
particularly true of complex business litigation, whether involving individuals
or businesses. Often these cases are
referred very late procedurally or not at all.
Automatic assignment of certain cases, for example those arising under
Chapter 55, is necessary to establish a consistent body of case law in this
area.
Expansion
of the business court to Raleigh and Charlotte (the current site is in
Greensboro) and the addition of jurisdiction in high tech and/or biotech cases
is also advisable. The continued growth
of the business court bolsters our justice system and serves as a good economic
tool at the same time.
POSITION: NCCBI urges the General Assembly to limit
legislative sessions to a specified number of legislative days for both the
long session and the short session. The
“short session” should be strictly limited to budget matters and should not
include carryover legislation from the long session -- unless legislation is
needed to address a true emergency situation.
EXPLANATION: During the last two years, the state budget was passed
before the beginning of the fiscal year.
But this was the first time that has happened in 20 years.
The 1998 regular
legislative “short” session convened on May 11 (after a six-week special
session) and adjourned October 29. When
legislative sessions last this long and a state budget is not adopted by July
1, public schools and state agencies experience extreme difficulty in planning
for the next fiscal year. It is
imperative that the legislature begins to adopt the state budget on time. Lengthy sessions also leave legislators
little time to meet between sessions for important study committees.
North Carolina is the
only state in the southeast without a limit on the length of sessions. Virginia has a 30-day calendar maximum in
odd numbered years and a 60-day calendar maximum in even numbered years. Tennessee limits pay and per diem allowances
to 90 legislative days. South
Carolina’s legislature must adjourn by the first Thursday in June. Georgia is limited to 40 legislative days
per year. The Texas legislature meets
every two years.
Lengthy legislative
sessions place a tremendous burden on people who wish to serve as citizen
legislators. For many, it is too great
a burden on family, business and career.
We need to continue electing people with different backgrounds,
experiences and occupations if we are going to represent all sectors of our
state’s population. Session limits
would help ensure that we keep this balance and do not end up with only
retirees and wealthy people serving in the General Assembly.
POSITION: NCCBI
continues to support the recommendations made by the Commission on the Future
of the Courts and urges the enactment of legislation implementing them.
EXPLANATION: Working
over the course of several years, a distinguished commission of citizens,
legislators and members of the business community came forward with
recommendations to improve our court
system. The Commission on the Future of the Courts, co-chaired by former Chief Justice Rhoda Billings and John
Medlin (and also known as the Medlin Commission), issued its report in 1996.
Legislation embodying the proposals was introduced and studied for two
legislative sessions. Portions of the report’s recommendations have been
enacted, but many critical improvements remain to be made, including a single
trial court level and larger districts. The most important recommendation,
judicial selection and retention, is the subject of a separate position by
NCCBI.
Without these
recommendations, the court system may not be able to handle the needs of our
state in the 21st century.
POSITION: NCCBI
strongly supports a constitutional amendment allowing four-year terms for all
legislators.
EXPLANATION: According
to The Book of the States, 37 other states currently allow four-year terms for
state senators. Five other states currently allow four-year terms for state
representatives.
NCCBI believes that
four-year terms for North Carolina Legislators, both House and Senate members,
would be beneficial for the state and for the business community for several
reasons.
First of all, having
legislators campaign every four years instead of every two years would be one
of the most effective ways to reduce the increasing costs of running for public
office. Secondly, legislators will have more time to become acquainted with the
legislative process, therefore, making them better policymakers for our state.
Lastly, longer terms would allow members of the business community, and
citizens in general, more time to build good working relationships with their
representatives in state government. It would allow more time for part-time
legislators to work at their jobs, to represent their constituents in Raleigh,
and to help the voters with problems they may be having with state government.
EMPLOYMENT-AT-WILL
POSITION: NCCBI
supports the employment-at-will doctrine because it is beneficial to employer
and employee alike: it allows businesses to respond to fluctuations in the
economy and to balance their labor force best, and it gives employees the
freedom to seek new job opportunities as their talents and inclinations
dictate. We oppose any erosion of employment-at-will.
EXPLANATION: Employers and
employees in North Carolina have operated under the doctrine of
"employment-at-will" for many years. This concept means that the
employment relationship continues at the discretion of both parties. In other
words, employees can decide to quit a job for any reason at any time, and
likewise, employers can terminate an employee for any reason at any time--as
long as the employer does not violate any state or federal law. We believe
these protections for the employee to be sufficient for those larger companies
affected; for the smallest businesses, any further requirements for written
contracts or regulations would be burdensome.
WORKERS'
COMPENSATION REFORM
POSITION: NCCBI
continues to support changes in the North Carolina Workers' Compensation Act to
fully restore that law to its original intent as a simple and efficient system
of compensating employees injured in workplace accidents while protecting
employers from civil litigation and unlimited and unpredictable compensation
liability. Specifically, NCCBI supports changes to protect employers from being
sued regarding workplace injuries where the employer is paying workers'
compensation benefits to the injured employee, to limit payment of workers' compensation
benefits only to those who are physically unable to work as a direct result of
their workplace accident, and to make the administration of the act simpler and
more efficient, thereby reducing the need for costly litigation.
EXPLANATION: NCCBI was the leading organization in the
successful fight to reform North Carolina's workers' compensation system in
1994. That reform achieved its goal of relieving the dramatic upward pressure
on workers' compensation costs to employers that had occurred during the decade
prior to that reform. Since 1994, however, court decisions and other events
have renewed the upward trend in workers' compensation costs. Some important
changes need to be made now to prevent the kinds of double digit rate increases
like those that occurred in the late 1980's.
For
example, there should be limitations on how much a claimant can receive when a
workplace injury combines with a pre-existing condition to cause a disability.
In such a situation, the employer should be liable only for that portion of the
disability caused by the workplace incident, and not that which results from a
pre-existing condition. Alternatively, an employer should be held liable for
compensation benefits only when the occupation is the primary cause of a disease
or injury. Second, consistent with the practice in all of our neighboring
states, there should be a limit on the number of weeks that a person can
receive workers' compensation benefits for any one injury. North Carolina's
Workers' Compensation Act originally limited a claimant to receiving 300 weeks
of compensation except in the most extreme cases. That limit was written out of
the law by a court decision and should be restored. Restoring the limit would
streamline the system and reduce litigation. Third, because of the ease with
which such claims can be fabricated, compensation for mental stress without
physical injury should be prohibited. Next, wage replacement benefits should
end at retirement age, when the employee would not have been earning wages to
be replaced even without an injury.
Perhaps
most importantly, once an injured employee is physically able to return to some
type of work, the employee should be required to return to work or else prove
circumstances that justify a decision to not return to work. In other words,
there should be no presumption in favor of the employee that benefits should
continue until the employee actually returns to work. The employee controls
whether or not he or she actually returns to work and the employer should not
be required to continue payment of benefits after the employee's treating
physician determines that the employee is physically able to work.
These
are the major changes that are necessary to restore our workers' compensation
system to its original intent. To the extent that these unaddressed issues
continue to cause unnecessary and unfair costs in our workers' compensation
system, they continue to be a hindrance to economic development, job creation,
and commercial competitiveness. So long as the workers' compensation system
remains a highly litigated scheme of general entitlement to unemployment
compensation and medical benefits, NCCBI believes that both employers and
employees are ill-served.
CONTRIBUTORY
NEGLIGENCE
POSITION: NCCBI firmly
supports the current system of Contributory Negligence, which has worked well
and generally kept settlement, judgments, and recoveries at a reasonable level.
Any change to some type of Comparative Fault erodes the economic well-being of
the State by increasing costs.
EXPLANATION: For well over
100 years, North Carolina has followed the doctrine of Contributory Negligence
in so-called tort or negligence cases. Simply stated, this doctrine holds that
a plaintiff cannot recover damages in a negligence suit if his own negligence
was one of the direct causes of the injury. Where the negligence of the
plaintiff is clear-cut, the presiding judge will dismiss the plaintiffs suit as
a matter of law. For example, under present law, if a drunk driver on the wrong
side of the road collides with a speeding vehicle in the opposite lane, the
court would dismiss any lawsuit by the drunk driver because of his clearly
negligent conduct. On the other hand, under the doctrine of Comparative Fault,
the judge would be compelled to submit the case to the jury. That fact alone
gives substantial value to otherwise valueless claims.
The
impetus for Comparative Fault legislation has come almost exclusively from
state and national associations of plaintiffs' attorneys specializing in
negligence practice. From the point of view of these groups, there are more and
larger recoveries under Comparative Fault.
Private
cost studies conducted in North Carolina in 1983, 1985, and 1989 by professors
at the School of Business at UNC-G indicate that automobile liability claims
alone under the Comparative Fault doctrine would add between $118 million and
$245 million (24 to 32% higher) annually to premium costs, and more recent
figures would increase that figure. More recent data from a study conducted in the
State of Maryland confirmed the substantial costs that would be imposed by a
change to comparative fault. Many more millions would be paid out in
settlements and judgements by homeowners, merchants, manufacturers, doctors,
and many other professionals and self-insurers. Some other groups that would be
vitally and adversely affected by Comparative Fault would be the counties,
cities, school boards, and even employees of the state.
An
article in the State Legislatures, published by the National Conference of
State Legislatures, assert that a state's civil justice environment is a
substantial element in rating its business climate. North Carolina's recent
success in economic development has resulted, in part, from our current civil
justice system.
RETALIATORY
EMPLOYMENT DISCRIMINATION ACT
POSITION: NCCBI opposes
the position of the North Carolina Department of Labor's Workplace Retaliatory
Discrimination Office (WORD) that it is unlawful for a private employer to
terminate an employee pursuant to a facially neutral leave of absence policy
where the absence was due to a work related injury. NCCBI believes that WORD's
contention that this is a violation of the provisions of North Carolina's
Retaliatory Employment Discrimination Act (REDA) is erroneous.
EXPLANATION: Historically,
private sector employers in North Carolina have had the right to establish
non-discriminatory leave of absence policies which provide for a maximum time
that any employee for any reason can be absent. These policies are referred to
as “6-12 policies" by the Department of Labor because they typically
provide for a maximum time for leaves of absence of six (6) to twelve (12)
months, after which the employee will be automatically discharged due to the
excessive absence, regardless of the reason for the absence.
In
1994, a complaint was filed with WORD claiming that an employee was terminated
in violation of the individual's Workers' Compensation rights under Chapter 97
of the North Carolina General Statutes. WORD found reasonable cause to believe
that the allegation of prohibited discrimination was true. WORD contended that
an employee's termination for failure to return to work after a specified
period of time is a violation of REDA, if the reason for the employee's absence
is related to the exercise of a right under one of the statutes listed in REDA,
even where the policy is facially neutral.
N.C.G.S.
Section 95-241 (b) provides as affirmative defense for employers where the
employer "would have taken the same unfavorable action in absence of the
protected activity of the employee." The affirmative defense has been
recognized in at least one court decision. In Watkins v. Martin Mills, Inc.,
the United States District Court for the Middle District of North Carolina
granted summary judgment, finding in part that the company's policy of
automatically terminating employees who exceeded its maximum allowable leave
was an affirmative defense to a REDA action. In Martin Mills the maximum period
was twelve (12) months.
The
establishment of non-discriminatory maximums for leaves of absence are
consistent with the mandates of both federal and state anti-discrimination
laws. Such policies are necessary for North Carolina businesses to be able to
operate in an effective and predictable manner. Requiring companies to leave
positions open for extended, and possibly very lengthy periods of time, can
cause unreasonable hardships on a business, especially small businesses where
staffing is necessarily limited.
PROMOTING
EMPLOYMENT REFERENCE QUALITY
POSITION: NCCBI
supports the giving and receiving of complete employment references between
employers and prospective employers.
EXPLANATION: NCCBI
applauds the 1997 action of the General Assembly which instituted protection
for employers sharing truthful, complete employment references. However, we
remain concerned that the current law does not offer enough protection to
address the concerns of employers who are increasingly wary of providing job
references to other employers. The fear of litigation over slander and libel
prompt most employers to provide only the barest information. These
"neutral references" (dates of employment and job title held) do
nothing to help the laid off worker prove their skills and qualifications for a
new job. Neutral references also mask serious problems which are relevant at
the new job site, including past violent acts and drug policy violations.
NCCBI
supports legislation providing absolute immunity for employers sharing truthful
employment references.
WAGE
GARNISHMENT
POSITION: NCCBI
believes that employers should not be unnecessarily involved in their employees
private business affairs or be burdened with the administrative time and
expense of collecting debts for their employees creditors and forwarding
payroll payments to various clerks of court throughout the state. For this
reason, NCCBI opposes any expansion of existing North Carolina law regarding
when creditors may garnish an employee's wages in order to collect a debt.
EXPLANATION: Currently,
garnishment is allowed in North Carolina for the recovery of child support and
public debts, such as taxes and charges for hospital and ambulance services.
Under these laws, North Carolina employers are burdened by the
administrative
time and expense required to carry out garnishment orders. Expansion of
existing North Carolina law to allow creditors to garnish an employee's wages
to satisfy judgments would cause additional undue administrative burden and
expense
for
employers. No administrative fee would be adequate to reimburse employers for
the administrative burden and expense or the negative impact on the
employer/employee relationship caused by withholding garnished wages. The
collection of such a fee, in
and
of itself, poses a real risk of
causing animosity by employees toward their employers. Moreover, employers are
opposed to becoming unnecessarily involved in the private business affairs of
their employees, which also will cause instability in the employer/employee
relationship, to the extent of encouraging "job hopping" by
employees. NCCBI believes any expansion of the garnishment laws in North
Carolina would unduly burden all employers, but that small employers in
particular would suffer a hardship by having to invest administrative time to
garnish wages and to bear the costs of implementing the garnishments.