Attorney David G. Schiller represents employees of the State of North Carolina.
Career State Employees
A career state employee is one who has worked for the State of North Carolina in a permanent position and who has been continuously employed for a period of at least 12 months. All career state employees are subject to the North Carolina Human Resources Act found in the North Carolina General Statutes, Chapter 126.
§ 126-1.1. Career State employee defined.
(a) For the purposes of this Chapter, unless the context clearly indicates otherwise, “career State employee” means a State employee or an employee of a local entity who is covered by this Chapter pursuant to G.S. 126-5(a)(2) who:
(1) Is in a permanent position with a permanent appointment, and
(2) Has been continuously employed by the State of North Carolina or a local entity as provided in G.S. 126-5(a)(2) in a position subject to the North Carolina Human Resources Act for the immediate 12 preceding months.
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.
Probably the most important employment right that career state employees enjoy is that they are not at-will employees. Rather, the State agency employer has to have just cause (i.e. a legitimate reason) to fire a career state employee.
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.
The State Humans Resources Act specifically lists all of the career state employee’s rights that can be enforced in the North Carolina Office of Administrative Hearings (OAH). OAH provides a forum for an independent hearing before an administrative law judge.
§ 126-34.02. Grievance appeal process; grounds.
(b) The following issues may be heard as contested cases after completion of the agency grievance procedure and the Office of State Human Resources review:
(1) Discrimination or harassment. – An applicant for State employment, a State employee, or former State employee may allege discrimination or harassment based on race, religion, color, national origin, sex, age, disability, genetic information, or political affiliation if the employee believes that he or she has been discriminated against in his or her application for employment or in the terms and conditions of the employee’s employment, or in the termination of his or her employment.
(2) Retaliation. – An applicant for State employment, a State employee, or former State employee may allege retaliation for protesting discrimination based on race, religion, color, national origin, sex, age, disability, political affiliation, or genetic information if the employee believes that he or she has been retaliated against in his or her application for employment or in the terms and conditions of the employee’s employment, or in the termination of the employee’s employment.
(3) Just cause for dismissal, demotion, or suspension. – A career State employee may allege that he or she was dismissed, demoted, or suspended for disciplinary reasons without just cause. A dismissal, demotion, or suspension which is not imposed for disciplinary reasons shall not be considered a disciplinary action within the meaning of this section. However, in contested cases conducted pursuant to this section, an employee may appeal an involuntary nondisciplinary separation due to an employee’s unavailability in the same fashion as if it were a disciplinary action, but the agency shall only have the burden to prove that the employee was unavailable. In cases of such disciplinary action the employee shall, before the action is taken, be furnished with a statement in writing setting forth the specific acts or omissions that are the reasons for the disciplinary action and the employee’s appeal rights. The employee shall be permitted 15 days from the date the statement is delivered to appeal under the agency grievance procedure. However, an employee may be suspended without warning pending the giving of written reasons in order to avoid undue disruption of work, to protect the safety of persons or property, or for other serious reasons.
(4) Veteran’s preference. – An applicant for State employment or a State employee may allege that he or she was denied veteran’s preference in violation of the law.
(5) Failure to post or give priority consideration. – An applicant for State employment or a State employee may allege that he or she was denied hiring or promotion because a position was not posted in accordance with this Chapter; or a career State employee may allege that he or she was denied a promotion as a result of a failure to give priority consideration for promotion as required by G.S. 126-7.1; or a career State employee may allege that he or she was denied hiring as a result of the failure to give him or her a reduction-in-force priority.
(6) Whistleblower. – A whistleblower grievance as provided for in this Chapter.
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.
§ 126-34.02 also provides attorneys fees for victorious employees.
The Office of Administrative Hearings may award attorneys’ fees to an employee where reinstatement or back pay is ordered or where an employee prevails in a whistleblower grievance.
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.
Contact Attorney David G. Schiller • Statewide Representation
You are welcome to contact Attorney Schiller regarding your employment law by either calling at (919) 789-4677 or by completing the State employee contact form.