David G. Schiller represents North Carolina employees in a wide range of employment law cases — including representing state employees.
Career State Employees
A career state employee is defined as one who has a permanent position and who has been continuously employed by the State of North Carolina for a period of at least 24 months. All career state employees are subject to the State Personnel Act, found in the North Carolina General Statutes Chapter 126.
Career state employees enjoy the same protection from discrimination that non-state employees enjoy. However, career state employees also have certain legal employment rights, which non-state employees generally do not.
Career state employee can only be fired, demoted or suspended without pay for “just cause.” There are bases for “just cause”: (1) unsatisfactory job performance and (2) unacceptable personal conduct.
Before disciplinary action is taken, the employer must furnish the employee with a statement in writing, “setting forth the numerical order the specific acts or omissions that are the reasons for the disciplinary action and the employee’s appeal rights.” The failure to do so, in and of itself, may render the termination unlawful.
It is important to note that it is almost always easier to prove that the employer lacked “just cause” to fire an employee than it is to prove that the employer discriminated against or retaliated against the employee. The procedures for filing a just cause claim and a discrimination claim are often different. Career state employee should be careful to ensure that they are preserving their “just cause” claims. It is a fairly common mistake for an employee who is discriminated against to overlook the “just cause” claim and to fail to follow the employer’s grievance procedures.
Internal Grievance / Appeal Process
The employee usually has 15 days from the date the statement is delivered to appeal to the head of the department. The appeal procedure usually involves going through the employer’s 3-step procedure and then appealing to the Office of Administrative Hearings. The deadlines to appeal each step and to appeal to the Office of Administrative Hearings are usually very short, and the failure to appeal on time will almost always end the case for the employee.
Career State employees can file cases to contest the following actions:
1. Dismissal, demotion, or suspension without pay based upon an alleged violation of N.C. Gen. Stat. 126-35.;
2. An alleged unlawful State employment practice constituting discrimination;
3. Retaliation against an employee;
4. Denial of veteran’s preference;
5. Denial of promotion for failure to post or failure to give priority consideration for promotion or reemployment to a career State employee (see statement below);
6. Denial of an employee’s request for removal of allegedly inaccurate or misleading information from the employee’s personnel file;
7. Any retaliatory personnel action;
8. Denial of promotion;
9. Denial of employment; and
10. Harassment in the workplace based upon age, sex, race, color, national origin, religion, creed, or handicapping condition, whether the harassment is based upon the creation of a hostile work environment or upon a quid pro quo.
Failure to Promote
If a career state employee “applies for another position of State employment that would constitute a promotion” and has “substantially equal qualifications as an applicant who is not a State employee” then the State employee has priority consideration.
An employee’s status as a career state employee is a specific exception to the employment-at-will rule. The employee must meet all of requirements of being a career state employee to receive the legal rights described here.
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If you have any employment issue with an agency of the State of North Carolina (e.g. Department of Transportation)., please use the State employee contact form.