North Carolina Human Resources Act

Chapter 126.

North Carolina Human Resources Act.

Article 1.

State Human Resources System Established.

§ 126-1.  Purpose of Chapter; application to local employees.

It is the intent and purpose of this Chapter to establish for the government of the State a system of personnel administration under the Governor, based on accepted principles of personnel administration and applying the best methods as evolved in government and industry. It is also the intent of this Chapter that this system of personnel administration shall apply to local employees paid entirely or in part from federal funds, except to the extent that local governing boards are authorized by this Chapter to establish local rules, local pay plans, and local personnel systems. It is also the intent of this Chapter to make provisions for a decentralized system of personnel administration, where appropriate, and without additional cost to the State, with the State Human Resources Commission as the policy and rule-making body. The Office of State Human Resources shall make recommendations for policies and rules to the Commission based on research and study in the field of personnel management, develop and administer statewide standards and criteria for good personnel management, provide training and technical assistance to all agencies, departments, and institutions, provide oversight, which includes conducting audits to monitor compliance with established State Human Resources Commission policies and rules, administer a system for implementing necessary corrective actions when the rule, standards, or criteria are not met, and serve as the central repository for State Human Resources system data. The agency, department, and institution heads shall be responsible and accountable for execution of Commission policies and rules for their employees.  (1965, c. 640, s. 2; 1997-349, s. 1; 2013-382, s. 9.1(c); 2014-115, s. 55.4(c).)

§ 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.

(b)        As used in this Chapter, “probationary State employee” means a State employee who is in a probationary appointment and is exempt from the provisions of the North Carolina Human Resources Act only because the employee has not been continuously employed by the State for the time period required by subsection (a) or (c) of this section.

(c)        Notwithstanding the provisions of subsection (a) above, employees who are hired by a State agency, department or university in a sworn law enforcement position or forensic scientist position and who are required to complete a formal training program prior to assuming law enforcement or forensic scientist duties with the hiring agency, department or university shall become career State employees only after being employed by the agency, department or university for 24 continuous months.  (1995, c. 141, s. 1; 2007-372, s. 1; 2013-382, ss. 3.1, 9.1(c); 2015-260, s. 1; 2016-87, s. 7.)

§ 126-1A:  Repealed by Session Laws 1995, c.  141, s. 2.

§ 126-2.  State Human Resources Commission.

(a)        There is hereby established the State Human Resources Commission (hereinafter referred to as “the Commission”).

(b)        Repealed by Session Laws 2013-382, s. 2.1, effective August 21, 2013.

(b1)      The Commission shall consist of nine members, appointed as follows:

(1)        One member appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives who shall be an attorney licensed to practice law in North Carolina.

(2)        One member appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate who shall be an attorney licensed to practice law in North Carolina.

(3)        One member appointed by the General Assembly upon the recommendation of the Speaker of the House of Representatives who shall be from private business or industry and who shall have a working knowledge of, or practical experience in, human resources management.

(4)        One member appointed by the General Assembly upon the recommendation of the President Pro Tempore of the Senate who shall be from private business or industry and who shall have a working knowledge of, or practical experience in, human resources management.

(5)        One member who is a veteran of the Armed Forces of the United States appointed by the Governor upon the nomination of the Veterans’ Affairs Commission and who is a State employee subject to this Chapter serving in a nonexempt supervisory position. The member may not be a human resources professional.

(6)        One member appointed by the Governor who is a State employee subject to this Chapter serving in a nonexempt nonsupervisory position. The member may not be a human resources professional. The Governor shall consider nominations submitted by the State Employees Association of North Carolina.

(7)        One member appointed by the Governor upon the recommendation of the North Carolina Association of County Commissioners who is a local government employee subject to this Chapter serving in a supervisory position. The member may not be a human resources professional.

(8)        One member appointed by the Governor upon the recommendation of the North Carolina Association of County Commissioners who is a local government employee subject to this Chapter serving in a nonsupervisory position. The member may not be a human resources professional.

(9)        One member of the public at large appointed by the Governor.

(c)        Each member of the Commission shall be appointed for a term of four years. Members of the Commission may serve no more than two consecutive terms. Appointments by the General Assembly shall be made in accordance with G.S. 120-121, and vacancies in those appointments shall be filled in accordance with G.S. 120-122. Vacancies in appointments made by the Governor occurring prior to the expiration of a term shall be filled by appointment for the unexpired term.

(d)       No member of the Commission may serve on a case where there would be a conflict of interest. The appointing authority may at any time remove any Commission member for cause.

(e)        Members of the Commission who are State or local government employees subject to this Chapter shall be entitled to administrative leave without loss of pay for all periods of time required to conduct the business of the Commission.

(f)        Five members of the Commission shall constitute a quorum.

(g)        The Governor shall designate one member of the Commission as chair.

(h)        The Commission shall meet quarterly, and at other times at the call of the chair.  (1965, c. 640, s. 2; 1975, c. 667, ss. 2-4; 1989, c. 540; 1998-181, s. 1(a), (b); 2000-140, s. 29; 2007-287, s. 1; 2011-183, s. 90; 2013-382, ss. 2.1, 9.1(c); 2015-241, s. 24.1(u); 2015-268, s. 7.3(a).)

§ 126-3.  Office of State Human Resources established and responsibilities outlined; administration and supervision; appointment, compensation and tenure of Director.

(a)        There is hereby established the Office of State Human Resources (hereinafter referred to as “the Office”) which shall be placed for organizational purposes within the Office of the Governor. Notwithstanding the provisions of North Carolina State government reorganization as of January 1, 1975, and specifically notwithstanding the provisions of Chapter 864 of the 1971 North Carolina Session Laws, Chapter 143A of the General Statutes, the Office of State Human Resources shall exercise all of its statutory powers in this Chapter, which shall be under the administration and supervision of a Director of the Office of State Human Resources (hereinafter referred to as “the Director”) appointed by the Governor and subject to the supervision of the Commission for purposes of this Chapter. The salary of the Director shall be fixed by the Governor. The Director shall serve at the pleasure of the Governor.

(b)        The Office shall be responsible for the following activities, and such other activities as specified in this Chapter:

(1)        Providing policy and rule development for the Commission and implementing and administering all policies, rules, and procedures established by the Commission.

(2)        Providing training in personnel management to agencies, departments, and institutions including train-the-trainer programs for those agencies, departments, and institutions who request such training and where sufficient staff and expertise exist to provide the training within their respective agencies, departments, and institutions.

(3)        Providing technical assistance in the management of personnel programs and activities to agencies, departments, and institutions.

(4)        Negotiating decentralization agreements with all agencies, departments, and institutions where it is cost-effective to include delegation of authority for certain classification and corresponding salary administration actions and other personnel programs to be specified in the agreements.

(5)        Administering such centralized programs and providing services as approved by the Commission which have not been transferred to agencies, departments, and institutions or where this authority has been rescinded for noncompliance.

(6)        Providing approval authority of personnel actions involving classification and compensation where such approval authority has not been transferred by the Commission to agencies, departments, and institutions or where such authority has been rescinded for noncompliance.

(7)        Maintaining a computer database of all relevant and necessary information on employees and positions within agencies, departments, and institutions in the State’s personnel system.

(8)        Developing criteria and standards to measure the level of compliance or noncompliance with established Commission policies, rules, procedures, criteria, and standards in agencies, departments, and institutions to which authority has been delegated for classification, salary administration, performance management, development, evaluation, and other decentralized programs, and determining through routine monitoring and periodic review process, that agencies, departments, and institutions are in compliance or noncompliance with established Commission policies, rules, procedures, criteria, and standards.

(9)        Implementing corrective actions in cases of noncompliance.

(10)      Administering the State employee suggestion program (NC-Thinks).  (1965, c. 640, s. 2; 1975, c. 667, s. 5; 1983, c. 717, s. 40; 1983 (Reg. Sess., 1984), c. 1034, s. 164; 1997-349, s. 2; 2011-224, s. 5; 2012-142, s. 25.1(c); 2012-194, s. 25; 2013-382, ss. 1.1, 1.2, 9.1(c).)

§ 126-4.  Powers and duties of State Human Resources Commission.

Subject to the approval of the Governor, the State Human Resources Commission shall establish policies and rules governing each of the following:

(1)        Position classification plans which shall provide for the classification and reclassification of all positions subject to this Chapter according to the duties and responsibilities of the positions.

(2)        Compensation plans which shall provide for minimum, maximum, and intermediate rates of pay for all employees subject to the provisions of this Chapter.

(3)        For each class of positions, reasonable qualifications as to education, experience, specialized training, licenses, certifications, and other job-related requirements pertinent to the work to be performed.

(4)        Recruitment programs designed to promote public employment, communicate current hiring activities within State government, and attract a sufficient flow of internal and external applicants; and determine the relative fitness of applicants for the respective positions.

(5)        Hours and days of work, holidays, vacation, sick leave, and other matters pertaining to the conditions of employment. The legal public holidays established by the Commission as paid holidays for State employees shall include Martin Luther King, Jr.’s Birthday and Veterans Day. The Commission shall not provide for more than 12 paid holidays per year, with three paid holidays being given for Christmas.

(5a)      In years in which New Year’s Day falls on Saturday, the Commission may designate December 31 of the previous calendar year as the New Year’s holiday, provided that the number of holidays for the previous calendar year does not exceed 12 and the number of holidays for the current year does not exceed 10. When New Year’s Day falls on either Saturday or Sunday, the constituent institutions of The University of North Carolina that adopt alternative dates to recognize the legal public holidays set forth in subdivision (5) of this section and established by the Commission may designate, in accordance with the rules of the Commission and the requirements of this subdivision, December 31 of the previous calendar year as the New Year’s holiday.

(5b)      A leave program that allows employees to volunteer in a literacy program in a public school for up to five hours each month.

(6)        The appointment, promotion, transfer, demotion and suspension of employees.

(7)        Cooperation with the State Board of Education, the Department of Public Instruction, the University of North Carolina, and the Community Colleges of the State and other appropriate resources in developing programs in, including but not limited to, management and supervisory skills, performance evaluation, specialized employee skills, accident prevention, equal employment opportunity awareness, and customer service; and to maintain an accredited Certified Public Manager program.

(7a)      The separation of employees.

(8)        A program of meritorious service awards.

(9)        The investigation of complaints and the issuing of such binding corrective orders or such other appropriate action concerning employment, promotion, demotion, transfer, discharge, reinstatement, and any other issue defined as a contested case issue by this Chapter in all cases as the Commission shall find justified.

(10)      Programs of employee assistance, productivity incentives, equal opportunity, safety and health as required by Part 1 of Article 63 of Chapter 143 of the General Statutes, and such other programs and procedures as may be necessary to promote efficiency of administration and provide for a fair and modern system of personnel administration.

(11)      In cases where the Commission finds discrimination, harassment, or orders reinstatement or back pay whether (i) heard by the Commission or (ii) appealed for limited review after settlement or (iii) resolved at the agency level, the assessment of reasonable attorneys’ fees and witnesses’ fees against the State agency involved.

(12)      Repealed by Session Laws 1987, c. 320, s. 2.

(13)      Repealed by Session Laws 1987, c. 320, s. 3.

(14)      The implementation of G.S. 126-5(e).

(15)      Recognition of State employees, public personnel management, and management excellence.

(16)      The implementation of G.S. 126-7.

(17)      An alternative dispute resolution procedure.

(18)      Delegation of authority for approval of personnel actions through decentralization agreements with the heads of State agencies, departments, and institutions.

a.         Decentralization agreements with Executive Branch agencies shall require a person, designated in the agency, to be accountable to the Director of the Office of State Human Resources for the compliance of all personnel actions taken pursuant to the delegated authority of the agency. Such agreements shall specify the required rules and standards for agency personnel administration.

b.         The Director of the Office of State Human Resources shall have the authority to take appropriate corrective actions including adjusting employee salaries and changing employee classifications that are not in compliance with policy or standards and to suspend decentralization agreements for agency noncompliance with the required personnel administration standards.

(19)      The implementation of G.S. 126-6.3 in a manner that is consistent across all affected State agencies.

The policies and rules of the Commission shall not limit the power of any elected or appointed department head, in the department head’s discretion and upon the department head’s determination that it is in the best interest of the Department, to transfer, demote, or separate a State employee who is not a career State employee as defined by this Chapter.  (1965, c. 640, s. 2; 1971, c. 1244, s. 14; 1975, c. 667, ss. 6, 7; 1977, c. 288, s. 1; c. 866, ss. 1, 17, 20; 1985, c. 617, ss. 2, 3; c. 791, s. 50(b); 1985 (Reg. Sess., 1986), c. 1028, s. 6; 1987, c. 25, s. 2; c. 320, ss. 1-3; 1991, c. 65, s. 1; c. 354, s. 2; c. 750, s. 1; 1991 (Reg. Sess., 1992), c. 994, s. 2; 1993, c. 388, s. 2; c. 522, s. 10; 1995, c. 141, s. 4; 1997-349, s. 3; 1998-135, s. 1; 2013-360, s. 9.1; 2013-382, ss. 1.3, 9.1(c); 2015-241, s. 26.2(f); 2015-260, s. 2.)

§ 126-4.1: Repealed by Session Laws 2011-398, s. 41, effective January 1, 2012, and applicable to contested cases commenced on or after that date.

§ 126-5.  Employees subject to Chapter; exemptions.

(a)        The provisions of this Chapter shall apply to:

(1)        All State employees not herein exempt, and

(2)        All employees of the following local entities:

a.         Area mental health, developmental disabilities, and substance abuse authorities, except as otherwise provided in Chapter 122C of the General Statutes.

b.         Local social services departments.

c.         County health departments and district health departments.

d.         Local emergency management agencies that receive federal grant-in-aid funds.

An employee of a consolidated county human services agency created pursuant to G.S. 153A-77(b) is not considered an employee of an entity listed in this subdivision.

(3)        County employees not included under subdivision (2) of this subsection as the several boards of county commissioners may from time to time determine.

(b)        As used in this section:

(1)        “Exempt position” means an exempt managerial position or an exempt policymaking position.

(2)        “Exempt managerial position” means a position delegated with significant managerial or programmatic responsibility that is essential to the successful operation of a State department, agency, or division, so that the application of G.S. 126-35 to an employee in the position would cause undue disruption to the operations of the agency, department, institution, or division.

(3)        “Exempt policymaking position” means a position delegated with the authority to impose the final decision as to a settled course of action to be followed within a department, agency, or division, so that a loyalty to the Governor or other elected department head in their respective offices is reasonably necessary to implement the policies of their offices. The term shall not include personnel professionals.

(4)        “Personnel professional” means any employee in a State department, agency, institution, or division whose primary job duties involve administrative personnel and human resources functions for that State department, agency, institution, or division.

(c)        Except as to the policies, rules, and plans established by the Commission pursuant to G.S. 126-4(1), 126-4(2), 126-4(3), 126-4(4), 126-4(5), 126-4(6), and 126-7, and except as to the provisions of Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to:

(1)        A State employee who is not a career State employee as defined by this Chapter.

(2)        One confidential assistant and two confidential secretaries for each elected or appointed department head and one confidential secretary for each chief deputy or chief administrative assistant.

(3)        Employees in exempt policymaking positions designated pursuant to G.S. 126-5(d).

(4)        The chief deputy or chief administrative assistant to the head of each State department who is designated either by statute or by the department head to act for and perform all of the duties of such department head during his absence or incapacity.

(c1)      Except as to the provisions of Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to:

(1)        Constitutional officers of the State.

(2)        Officers and employees of the Judicial Department.

(2a)      Deputy commissioners appointed pursuant to G.S. 97-79.

(3)        Officers and employees of the General Assembly.

(4)        Members of boards, committees, commissions, councils, and advisory councils compensated on a per diem basis.

(5)        Officials or employees whose salaries are fixed by the General Assembly, or by the Governor, or by the Governor and Council of State, or by the Governor subject to the approval of the Council of State.

(6)        Employees of the Office of the Governor that the Governor, at any time, in the Governor’s discretion, exempts from the application of the provisions of this Chapter by means of a letter to the Director of the Office of State Human Resources designating these employees.

(7)        Employees of the Office of the Lieutenant Governor, that the Lieutenant Governor, at any time, in the Lieutenant Governor’s discretion, exempts from the application of the provisions of this Chapter by means of a letter to the Director of the Office of State Human Resources designating these employees.

(8)        Instructional and research staff, information technology professionals, physicians, and dentists of The University of North Carolina, including the faculty of the North Carolina School of Science and Mathematics.

(8a)      Employees of a regional school established pursuant to Part 10 of Article 16 of Chapter 115C of the General Statutes.

(9)        Employees whose salaries are fixed under the authority vested in the Board of Governors of The University of North Carolina by the provisions of G.S. 116-11(4), 116-11(5), and 116-14.

(9a)      Employees of the North Carolina Cooperative Extension Service of North Carolina State University who are employed in county operations and who are not exempt pursuant to subdivision (8) or (9) of this subsection.

(10)      Repealed by Session Laws 1991, c. 84, s. 1.

(11)      Repealed by Session Laws 2006-66, s. 9.11(z), effective July 1, 2007.

(12),     (13) Repealed by Session Laws 2001-474, s. 15, effective November 29, 2001.

(14)      Employees of the North Carolina State Ports Authority.

(15)      Employees of the North Carolina Global TransPark Authority.

(16)      The executive director and one associate director of the North Carolina Center for Nursing established under Article 9F of Chapter 90 of the General Statutes.

(17)      Repealed by Session Laws 2004-129, s. 37, effective July 1, 2004.

(18)      Employees of the Tobacco Trust Fund Commission established in Article 75 of Chapter 143 of the General Statutes.

(19)      Employees of the Health and Wellness Trust Fund Commission established in Article 21 of Chapter 130A of the General Statutes.

(20)      Repealed by Session Laws 2008-134, s. 73(d), effective July 28, 2008.

(21)      Employees of the Clean Water Management Trust Fund.

(22)      Employees of the North Carolina Turnpike Authority.

(23)      The Executive Administrator of the State Health Plan for Teachers and State Employees.

(24)      Employees of the State Health Plan for Teachers and State Employees as designated by law or by the Executive Administrator of the Plan.

(25)      The North Carolina State Lottery Director and employees of the North Carolina State Lottery.

(26)      Repealed by Session Laws 2011-145, s. 7.31(c), as added by Session Laws 2011-391, s. 17, and by Session Laws 2011-266, s. 1.37(c), effective July 1, 2011.

(27)      The Chief Administrative Law Judge of the Office of Administrative Hearings.

(28)      The Executive Director and the Assistant Director of the U.S.S. North Carolina Battleship Commission.

(29)      The Executive Director, Deputy Director, all other directors, assistant and associate directors, and center fellows of the North Carolina Center for the Advancement of Teaching.

(30)      Employees of the Department of Commerce employed in the Rural Economic Development Division.

(30a)    Repealed by Session Laws 2018-5, s. 15.5(e), effective July 1, 2018.

(31)      Employees of the Office of Program Evaluation Reporting and Accountability of the Department of Health and Human Services.

(32)      Employees of the North Carolina Health Information Exchange Authority.

(33)      Employees of the Division of Health Benefits of the Department of Health and Human Services.

(34)      Employees of the Division of Medical Assistance of the Department of Health and Human Services hired on or after October 1, 2015.

(35)      The Associate Superintendent of Early Education who serves as chief academic officer of early education.

(c2)      The provisions of this Chapter shall not apply to:

(1)        Public school superintendents, principals, teachers, and other public school employees.

(2)        Recodified as G.S. 126-5(c)(4) by Session Laws 1985 (Regular Session, 1986), c. 1014, s. 41.

(3)        Employees of community colleges whose salaries are fixed in accordance with the provisions of G.S. 115D-5 and G.S. 115D-20, and employees of the Community Colleges System Office whose salaries are fixed by the State Board of Community Colleges in accordance with the provisions of G.S. 115D-3.

(4)        Employees of the Office of Proprietary Schools whose salaries are fixed by the State Board of Proprietary Schools in accordance with the provisions of G.S. 115D-89.2.

(5)        Officers, employees, and members of the governing board of a North Carolina nonprofit corporation with which the Department of Commerce has contracted pursuant to the authority granted in G.S. 143B-431.01.

(c3)      Except as to the policies, rules, and plans established by the Commission pursuant to G.S. 126-4(5) and the provisions of Article 6 of this Chapter, the provisions of this Chapter shall not apply to: Teaching and related educational classes of employees of the Division of Adult Correction and Juvenile Justice of the Department of Public Safety, the Department of Health and Human Services, and any other State department, agency or institution, whose salaries shall be set in the same manner as set for corresponding public school employees in accordance with Chapter 115C of the General Statutes.

(c4)      Repealed by Session Laws 1993, c. 321, s. 145(b).

(c5)      Notwithstanding any other provision of this Chapter, Article 14 of this Chapter shall apply to all State employees, public school employees, and community college employees.

(c6)      Article 15 of this Chapter shall apply to all State employees, public school employees, and community college employees.

(c7)      Except as to the policies, rules, and plans established by the Commission pursuant to G.S. 126-4(1), 126-4(2), 126-4(3), 126-4(4), 126-4(5), 126-4(6), 126-7, 126-14.3, and except as to the provisions of G.S. 126-14.2, G.S. 126-34.1(a)(2), and Articles 6 and 7 of this Chapter, the provisions of this Chapter shall not apply to exempt managerial positions.

(c8)      Except as to the provisions of Articles 5, 6, 7, and 14 of this Chapter, the provisions of this Chapter shall not apply to:

(1)        Employees of the University of North Carolina Health Care System.

(2)        Employees of the University of North Carolina Hospitals at Chapel Hill, as may be provided pursuant to G.S. 116-37(a)(4).

(3)        Employees of the clinical patient care programs of the School of Medicine of the University of North Carolina at Chapel Hill as may be provided pursuant to G.S. 116-37(a)(4).

(4)        Employees of the Medical Faculty Practice Plan, a division of the School of Medicine of East Carolina University.

(c9)      Notwithstanding any other provision of this section, the provisions of Article 16 of this Chapter shall apply to all exempt and nonexempt State employees in the executive, legislative, and judicial branches unless provided otherwise by Article 16 of this Chapter. The provisions of Article 16 of this Chapter shall not apply to employees described in subdivisions (2) and (3) of subsection (a) of this section.

(c10)    Notwithstanding any other provision of this section, the provisions of G.S. 126-8.5 shall apply to all exempt and nonexempt State employees in the executive, legislative, and judicial branch unless provided otherwise by G.S. 126-8.5. The provisions of G.S. 126-8.5 shall not apply to employees described in subdivisions (2) and (3) of subsection (a) of this section.

(c11)    The following are exempt from: (i) the classification and compensation rules established by the State Human Resources Commission pursuant to G.S. 126-4(1) through (4); (ii) G.S. 126-4(5) only as it applies to hours and days of work, vacation, and sick leave; (iii) G.S. 126-4(6) only as it applies to promotion and transfer; (iv) G.S. 126-4(10) only as it applies to the prohibition of the establishment of incentive pay programs; and (v) Article 2 of Chapter 126 of the General Statutes, except for G.S. 126-7.1:

(1)        The Office of the Commissioner of Banks and its employees; and

(2)        The following employees of the Department of Natural and Cultural Resources:

a.         Director and Associate Directors of the North Carolina Museum of History.

b.         Program Chiefs and Curators.

c.         Regional History Museum Administrators and Curators.

d.         North Carolina Symphony.

e.         Director, Associate Directors, and Curators of Tryon Palace.

f.          Director, Associate Directors, and Curators of Transportation Museum.

g.         Director and Associate Directors of the North Carolina Arts Council.

h.         Director, Assistant Directors, and Curators of the Division of State Historic Sites.

(3)        Employees of the Department of Information Technology (DIT), and employees in all agencies, departments, and institutions with similar classifications as DIT employees, who voluntarily relinquish annual longevity payments, relinquish any claim to longevity pay, voluntarily relinquish any claim to career status or eligibility for career status as approved by the State Chief Information Officer and the Director of the Office of State Human Resources (OSHR).

(c12)    Except as to G.S. 126-13, 126-14, 126-14.1, and the provisions of Articles 6, 7, 14, 15, and 16 of this Chapter, the provisions of this Chapter shall not apply to employees of the Department of State Treasurer possessing specialized skills or knowledge necessary for the proper administration of investment programs and compensated pursuant to G.S. 147-69.3(i2).

(c13)    Except as to G.S. 126-13, 126-14, 126-14.1, and the provisions of Articles 6, 7, 14, 15, and 16 of this Chapter, the provisions of this Chapter shall not apply to employees of the Department of State Treasurer possessing specialized skills or knowledge necessary for the proper administration of the Supplemental Retirement Plans and compensated pursuant to G.S. 135-91(c).

(c14)    Notwithstanding any provision of this Chapter to the contrary, each Council of State agency shall have the sole authority to set the salary of its exempt policymaking and exempt managerial positions within the minimum rates, and the maximum rates plus ten percent (10%), established by the State Human Resources Commission under G.S. 126-4(2).

(d)       (1)        Exempt Positions in Cabinet Department. – Subject to the provisions of this Chapter, which is known as the North Carolina Human Resources Act, the Governor may designate a total of 425 exempt positions throughout the following departments and offices:

a.         Department of Administration.

b.         Department of Commerce.

c.         Repealed by Session Laws 2012-83, s. 7, effective June 26, 2012, and by Session Laws 2012-142, s. 25.2E(a), effective January 1, 2013.

d.         Department of Public Safety.

e.         Department of Natural and Cultural Resources.

f.          Department of Health and Human Services.

g.         Department of Environmental Quality.

h.         Department of Revenue.

i.          Department of Transportation.

j.          Repealed by Session Laws 2012-83, s. 7, effective June 26, 2012, and by Session Laws 2012-142, s. 25.2E(a), effective January 1, 2013.

k.         Department of Information Technology.

l.,         m. Repealed by Session Laws 2016-126, 4th Ex. Sess., s. 7, effective December 19, 2016.

n.         Department of Military and Veterans Affairs.

(2)        Exempt Positions in Council of State Departments and Offices. – The Secretary of State, the Auditor, the Treasurer, the Attorney General, the Superintendent of Public Instruction, the Commissioner of Agriculture, the Commissioner of Insurance, and the Labor Commissioner may designate exempt positions. The number of exempt policymaking positions in each department headed by an elected department head listed above in this sub-subdivision shall be limited to 25 exempt policymaking positions or two percent (2%) of the total number of full-time positions in the department, whichever is greater. The number of exempt managerial positions shall be limited to 25 positions or two percent (2%) of the total number of full-time positions in the department, whichever is greater. The number of exempt policymaking positions designated by the Superintendent of Public Instruction shall be limited to 70 exempt policymaking positions or two percent (2%) of the total number of full-time positions in the department, whichever is greater. The number of exempt managerial positions designated by the Superintendent of Public Instruction shall be limited to 70 exempt managerial positions or two percent (2%) of the total number of full-time positions in the department, whichever is greater.

(2a)      Designation of Additional Positions. – The Governor or elected department head may request that additional positions be designated as exempt. The request shall be made by sending a list of exempt positions that exceed the limit imposed by this subsection to the Speaker of the North Carolina House of Representatives and the President of the North Carolina Senate. A copy of the list also shall be sent to the Director of the Office of State Human Resources. The General Assembly may authorize all, or part of, the additional positions to be designated as exempt positions. If the General Assembly is in session when the list is submitted and does not act within 30 days after the list is submitted, the list shall be deemed approved by the General Assembly, and the positions shall be designated as exempt positions. If the General Assembly is not in session when the list is submitted, the 30-day period shall not begin to run until the next date that the General Assembly convenes or reconvenes, other than for a special session called for a specific purpose not involving the approval of the list of additional positions to be designated as exempt positions; the policymaking positions shall not be designated as exempt during the interim.

(2b)      Designation of Liaison Positions. – Liaisons to the Collaboration for Prosperity Zones set out in G.S. 143B-28.1 for the Departments of Commerce, Environmental Quality, and Transportation are designated as exempt.

(2c)      Repealed by Session Laws 2017-6, s. 1, effective May 1, 2017.

(3)        Letter. – These positions shall be designated in a letter to the Director of the Office of State Human Resources, the Speaker of the House of Representatives, and the President of the Senate by July 1 of the year in which the oath of office is administered to each Governor unless the provisions of subsection (d)(4) apply.

(4)        Vacancies. – In the event of a vacancy in the Office of Governor or in the office of a member of the Council of State, the person who succeeds to or is appointed or elected to fill the unexpired term shall make such designations in a letter to the Director of the Office of State Human Resources, the Speaker of the House of Representatives, and the President of the Senate within 180 days after the oath of office is administered to that person.

(5)        Creation, Transfer, or Reorganization. – The Governor or elected department head may designate as exempt a position that is created or transferred to a different department, or is located in a department in which reorganization has occurred, after October 1 of the year in which the oath of office is administered to the Governor. The designation must be made in a letter to the Director of the Office of State Human Resources, the Speaker of the North Carolina House of Representatives, and the President of the North Carolina Senate within 180 days after such position is created, transferred, or in which reorganization has occurred.

(6)        Reversal. – Subsequent to the designation of a position as an exempt position as hereinabove provided, the status of the position may be reversed and made subject to the provisions of this Chapter by the Governor or by an elected department head in a letter to the Director of the Office of State Human Resources, the Speaker of the North Carolina House of Representatives, and the President of the North Carolina Senate.

(7)        Except for deputy commissioners appointed pursuant to G.S. 97-79 and as otherwise specifically provided by this section, no employee, by whatever title, whose primary duties include the power to conduct hearings, take evidence, and enter a decision based on findings of fact and conclusions of law based on statutes and legal precedents shall be designated as exempt. This subdivision shall apply beginning July 1, 1985, and no list submitted after that date shall designate as exempt any employee described in this subdivision.

(e)        (Repealed for State employees hired on or after August 21, 2013) An exempt employee may be transferred, demoted, or separated from his or her position by the department head authorized to designate the exempt position except as follows:

(1)        When an employee who has the minimum service requirements described in G.S. 126-1.1 but less than 10 years of cumulative service in subject positions prior to placement in an exempt position is removed from an exempt position, for reasons other than just cause, the employee shall have priority to any position that becomes available for which the employee is qualified, according to rules and regulations regulating and defining priority as promulgated by the State Human Resources Commission.

(2)        When an employee who has 10 years or more cumulative service, including the immediately preceding 12 months, in subject positions prior to placement in an exempt position is removed from an exempt position, for reasons other than just cause, the employee shall be reassigned to a subject position within the same department or agency, or if necessary within another agency, at the same grade and salary, including all across-the-board increases since placement in the position designated as exempt, as his or her most recent subject position.

(3)        When a career State employee as defined by G.S. 126-1.1 who has more than two but less than 10 years or more of cumulative service in a subject position moves from one exempt position covered by this subsection to another position covered by this subsection without a break in service and that employee is later removed from the last exempt position, for reasons other than just cause, the employee shall have priority to any position that becomes available for which the employee is qualified, according to the rules regulating and defining priority as adopted by the State Human Resources Commission.

(4)        When a career State employee as defined by G.S. 126-1.1 who has 10 years or more of cumulative service moves from one exempt position covered by this subsection to another position covered by this subsection without a break in service and that employee is later removed from the last exempt position, for reasons other than just cause, the employee shall be reassigned to a subject position within the same department or agency, or if necessary, within another department or agency. The employee shall be paid at the same grade and salary as the employee’s most recent subject position, including all across-the-board legislative increases awarded since the employee’s placement in the position that was designated as exempt.

(f)        (Repealed for State employees hired on or after August 21, 2013) A department head is authorized to use existing budgeted positions within his department in order to carry out the provisions of subsection (e) of this section. If it is necessary to meet the requirements of subsection (e) of this section, a department head may use salary reserve funds authorized for his department.

(g)        No employee shall be placed in an exempt position without 10 working days prior written notification that such position is so designated. A person applying for a position that is designated as exempt must be notified in writing at the time he makes the application that the position is designated as exempt.

(h)        In case of dispute as to whether an employee is subject to the provisions of this Chapter, the dispute shall be resolved as provided in Article 3 of Chapter 150B.  (1965, c. 640, s. 2; 1967, c. 24, s. 20; cc. 1038, 1143; 1969, c. 982; 1971, c. 1025, s. 2; 1973, c. 476, s. 143; 1975, c. 667, ss. 8, 9; 1977, c. 866, ss. 2-5; 1979, 2nd Sess., c. 1137, s. 40; 1983, c. 717, s. 41; c. 867, s. 2; 1985, c. 589, s. 38; c. 617, s. 1; c. 757, s. 206(c); 1985 (Reg. Sess., 1986), c. 955, s. 43; c. 1014, ss. 41, 235; c. 1022, s. 9; 1987, c. 320, s. 4; c. 395, s. 1; c. 809, s. 1; c. 850, s. 19; 1987 (Reg. Sess., 1988), c. 1064, s. 3; 1989, c. 168, s. 9; c. 236, s. 3; c. 484; c. 727, s. 218(85); c. 751, s. 7(13); 1991, c. 65, s. 2; c. 84, ss. 1, 2; c. 354, s. 3; c. 749, s. 4; 1991 (Reg. Sess., 1992), c. 879, s. 5; c. 959, s. 85; 1993, c. 145, s. 1; c. 321, s. 145(b); c. 553, ss. 39, 40; 1993 (Reg. Sess., 1994), c. 777, s. 4(g); 1995, c. 141, ss. 3, 5; c. 393, s. 1; 1995 (Reg. Sess., 1996), c. 690, s. 15; 1997-443, ss. 11A.118(a), 11A.119(a), 22.2(b); 1997-520, s. 3; 1998-212, s. 11.8(b); 1999-84, s. 21; 1999-253, s. 1; 1999-434, s. 25; 2000-137, s. 4(nn); 2000-147, s. 4; 2000-148, s. 3; 2001-92, s. 2; 2001-424, s. 32.16(a); 2001-474, s. 15; 2001-487, ss. 21(d), 30(a), (b); 2002-126, s. 28.4; 2002-133, s. 4; 2004-124, s. 31.27(b); 2004-129, s. 37; 2005-276, s. 29.34(b); 2005-344, s. 9; 2006-66, ss. 9.11(y), (z), 9.17(e), 18.2(e); 2006-204, s. 2; 2006-221, s. 20; 2006-259, s. 49; 2006-264, s. 11; 2007-117, s. 3(b); 2007-195, s. 1; 2007-323, s. 28.22A(o); 2007-345, s. 12; 2007-484, s. 9(c); 2008-134, s. 73(d); 2009-451, ss. 9.13(f), 27.31(c); 2011-145, ss. 7.31(c), 19.1(g), (h), (l); 2011-241, s. 5; 2011-266, s. 1.37(c); 2011-391, s. 17; 2012-83, s. 7; 2012-142, ss. 8.9A(c), 25.2E(a); 2012-151, s. 11(a); 2013-360, s. 15.10(d); 2013-382, ss. 4.1, 4.3, 4.4, 4.5, 9.1(c); 2013-410, s. 47.2(b); 2014-18, s. 1.4; 2014-100, ss. 7.17(a), 15.16(b), 33.2(b),  35.11(a); 2014-115, s. 55.3(a); 2015-164, s. 9(b); 2015-241, ss. 7A.4(k), 12A.3(b), 12A.5(e), 14.30(s), (u), 24.1(v); 2015-245, s. 20; 2015-268, s. 7.3(a); 2016-94, s. 15.10(b); 2016-126, 4th Ex. Sess., ss. 7, 8; 2017-6, s. 1; 2017-57, ss. 7.23I(b), 35.18C; 2017-186, s. 2(sssss); 2018-5, ss. 15.5(e), 35.19; 2018-84, s. 8(b).)

§ 126-6:  Repealed by Session Laws 1991, c.  65, s. 3.

§ 126-6.1:  Repealed by Session Laws 1993, c.  397, s. 1.

§ 126-6.2.  Reports.

(a)        Beginning January 1, 1998, and annually thereafter, the head of each State agency, department, or institution employing State employees subject to the North Carolina Human Resources Act shall report to the Office of State Human Resources on the following:

(1)        The costs associated with the defense or settlement of administrative grievances and lawsuits filed by current or former State employees and applicants for State employment, including the costs of settlements, attorneys’ fees, litigation expenses, damages, or awards incurred by the respective State agencies, departments, and institutions. The report shall include an explanation of the fiscal impact of these costs upon the operations of the State agency, department, or institution.

(2)        Any other human resources functions or actions as may be requested by the Director of the Office of State Human Resources in order for the Office to evaluate the efficiency, productivity, and compliance of a State agency, department, or institution with policies, including, but not limited to, the compensation of State employees, voluntary shared-leave programs, equal employment opportunity plans and programs, and work options programs.

(b)        Beginning May 1, 1998, and annually thereafter, the State Human Resources Commission shall report to the Joint Legislative Commission on Governmental Operations on the costs associated with the defense or settlement of lawsuits, and upon request, on the results of any other reports regarding human resources action or functions pursuant to subsection (a) of this section.

(c)        Repealed by Session Laws 2013-382, s. 7.5, effective August 21, 2013.  (1997-520, s. 8(a)-(c); 2013-382, ss. 7.5, 9.1(c); 2015-260, s. 4.)

§ 126-6.3.  Temporary employment needs of Cabinet and Council of State agencies; use of the Temporary Solutions Program.

(a)        Use of Temporary Solutions Required for Cabinet Agencies. – Notwithstanding G.S. 126-5 or any other provision of law, all Cabinet agencies that utilize temporary employees to perform work that is not information technology-related shall employ them through the Temporary Solutions Program administered by the Office of State Human Resources. The Director of the Office of State Human Resources may create exceptions to this requirement when doing so would be in the best interests of the State in the sole discretion of the Director. An exception shall be invalid unless it is in writing. Council of State agencies may use the Temporary Solutions Program in the discretion of the agency.

(b)        Compliance Monitoring. – The Office of State Human Resources shall monitor the employment of temporary employees by Cabinet and Council of State agencies and shall report biannually to the Joint Legislative Oversight Committee on General Government and to the Fiscal Research Division on agency compliance with this section and policies and rules adopted pursuant to it. Each State agency granted an exception under this section from using the Temporary Solutions Program and any Council of State agency that elected to not use the Temporary Solutions Program shall record the time worked by each temporary employee in the agency, including the number of hours worked per week, number of months worked, and the amount of time the employee was not employed after 11 consecutive months of service with the agency. To the extent possible for temporary employees, agencies shall use BEACON, or the State payroll system that supersedes BEACON, for payroll purposes. If it is not feasible for an agency to use BEACON, or the superseding system for payroll purposes, the agency shall report the information required by this section to the Office of State Human Resources in accordance with guidelines and requirements established by the Director of Temporary Solutions.

(c)        Definitions. – For purposes of this section, the following definitions shall apply:

(1)        Cabinet agency. – A unit of the executive branch of State government, such as a department, an institution, a division, a commission, a board, or a council that is under the control of the Governor. The term does not include an agency that is under the control of an official who is a member of the Council of State.

(2)        Council of State agency. – An agency that is under the control of an official who is a member of the Council of State.  (2015-241, s. 26.2(e); 2018-5, s. 26A.2.)

Article 2.

Salaries, Promotions, and Leave of State Employees.

§ 126-7: Repealed. See editor’s note.

§ 126-7.1.  Posting requirement; State employees receive priority consideration; reduction-in-force; Work First hiring; reorganization through reduction.

(a)        All vacancies for which any State agency, department, or institution openly recruit shall be posted in a place readily accessible to employees within at least the following:

(1)        The personnel office of the agency, department, or institution having the vacancy; and

(2)        The particular work unit of the agency, department, or institution having the vacancy.

If the decision is made, initially or at any time while the vacancy remains open, to receive applicants from outside the recruiting agency, department, or institution, the vacancy shall also be listed on a website maintained by the Office of State Human Resources for the purpose of informing current State employees and the public of such vacancy. The State agency, department, or institution may not receive approval from the Office of State Human Resources to fill a job vacancy if the agency, department, or institution cannot prove to the satisfaction of the Office of State Human Resources that it complied with these posting requirements. The agency, department, or institution which hires any person in violation of these posting requirements shall pay such person when employment is discontinued as a result of such violation for the work performed during the period of time between his initial employment and separation.

(b)        No loss of funds shall be required as a precondition for a reduction in force. State employees to be affected by a reduction in force shall be notified of the reduction in force as soon as practicable, and in any event, no less than 30 days prior to the effective date of the reduction in force.

(c)        The State Human Resources Commission shall adopt rules governing the priority and salary rights of State employees separated from State employment as the result of reductions in force who accept a position in State government to provide that the employee shall be paid a salary no higher than the maximum of the salary grade of the position accepted.

(d)       Subsection (a) of this section does not apply to vacancies which must be filled immediately to prevent work stoppage or the protection of the public health, safety, or security.

(e)        If a State employee subject to this section:

(1)        Applies for another position of State employment that would constitute a promotion; and

(2)        Has substantially equal qualifications as an applicant who is not a State employee;

then the State employee shall receive priority consideration over the applicant who is not a State employee. This priority consideration shall not apply when the only applicants considered for the vacancy are current State employees.

(f)        If a State employee who has been separated due to reduction in force or who has been given notice of imminent separation due to reduction in force:

(1)        Applies for another position of State employment equal to or lower in salary grade than the position held by the employee at the time of notification or separation; and

(2)        Has substantially equal qualifications as any other applicant;

then within all State agencies, the State employee who has been notified of or separated due to a reduction in force shall receive priority consideration over all other applicants. This priority shall remain in effect for a period of 12 months from the date the employee receives notification of separation by reduction in force. State employees separated due to reduction in force shall receive higher priority than other applicants with employment or reemployment priorities, except that the reemployment priority created by G.S. 126-5(e)(1) shall be considered as equal.

(f1)      If a State employee who has been separated due to reduction in force or who has been given notice of imminent separation due to reduction in force accepts or rejects an offer for a position of State employment that is equal to or higher than the position held or equal to or higher than the salary earned by the employee at the time of separation or notification, then the employee’s acceptance or rejection of that offer shall satisfy and terminate the one-time, 12-month priority granted by subsection (f) of this section.

(f2)      If a State employee who has been separated due to reduction in force or who has been given notice of imminent separation due to reduction in force and who applies for a position equal to or higher than the position held by the employee at the time of separation or notification, but declines an interview for the position for which the employee applied, then the employee’s rejection of an offer of the interview for the position shall satisfy and terminate the one-time, 12-month priority granted by subsection (f) of this section. The State Human Resources Commission shall adopt a policy to carry out this subsection.

(g)        “Qualifications” within the meaning of subsection (e) of this section shall consist of:

(1)        Training or education;

(2)        Years of experience; and

(3)        Other skills, knowledge, and abilities that bear a reasonable functional relationship to the abilities and skills required in the job vacancy applied for.

(h)        Each State agency, department, and institution is encouraged to hire into State government employment qualified applicants who are current or former Work First Program participants.

(i)         Each State agency, department, institution, university, community college, and local education agency shall verify, in accordance with the Basic Pilot Program administered by the United States Department of Homeland Security pursuant to 8 U.S.C. § 1101, et seq, each individual’s legal status or authorization to work in the United States after hiring the individual as an employee to work in the United States.

(j)         Any department or office listed in G.S. 126-5(d)(1) or (2) and The University of North Carolina and its constituent institutions may reorganize and restructure its positions through a voluntary separation process, in accordance with a policy approved by the State Human Resources Commission and subject to funding and approval by the Office of State Budget and Management.  (1987, c. 689, s. 2; 1991, c. 65, s. 4; c. 474, s. 1; 1995, c. 141, s. 9; c. 507, s. 7.20(a); 1997-443, s. 12.7(d); 2006-259, s. 23.1(a); 2011-145, s. 29.21A(a); 2011-391, s. 59(a), (b); 2013-382, ss. 5.1, 9.1(c); 2015-260, s. 5.1; 2018-5, s. 35.24.)

§ 126-7.2: Repealed by Session Laws 2013-382, s. 6.2, effective August 21, 2013, and applicable to grievances filed on or after that date.

§ 126-7.3.  Annual compensation surveys.

To guide the Governor and the General Assembly in making decisions regarding the compensation of State employees, the Office of State Human Resources shall conduct annual compensation surveys. The Commission shall present the results of the compensation survey to the Appropriations Committees of the House of Representatives and the Senate no later than two weeks after the convening of the legislature in odd-numbered years and May 1st of even-numbered years.  (2013-382, ss. 7.9(b), 9.1(c).)

§ 126-8.  Minimum leave granted State employees.

The amount of vacation leave granted to each full-time State employee subject to the provisions of this Chapter shall be determined in accordance with a graduated scale established by the State Human Resources Commission which shall allow the equivalent rate of not less than two weeks’ vacation per calendar year, prorated monthly, cumulative to at least 30 days. On December 31 of each year, any State employee who has vacation leave in excess of the allowed accumulation shall have that leave converted to sick leave. Sick leave allowed as needed to such State employees shall be at a rate not less than 10 days for each calendar year, cumulative from year to year. Notwithstanding any other provisions of this section, no full-time State employee subject to the provisions of Chapter 126, as the same appears in the Cumulative Supplement to Volume 3B of the General Statutes, on May 23, 1973, shall be allowed less than the equivalent of three weeks’ vacation per calendar year, cumulative to at least 30 days.  (1965, c. 640, s. 2; 1973, c. 697, ss. 1, 2; 1975, c. 667, s. 2; 1993, c. 321, s. 73(f); c. 561, s. 18(a); 2013-382, s. 9.1(c).)

§ 126-8.1.  Paid leave for certain athletic competition.

(a)        As used in this section, the term “United States team” includes any group leader, coach, official, trainer, or athlete who is a member of an official United States delegation in Pan American, Olympic or international athletic competition.

(b)        Any State employee or public school employee paid by State funds who has been chosen to be a member of a United States team for Pan American, Olympic or international competition shall be granted paid leave, in addition to annual and sick leave that person is otherwise entitled to, for the sole purpose of training for and competing in that competition. The paid leave shall be for the period of the official training camp and competition or 30 days a year, whichever is less.

(c)        The Office of State Human Resources may adopt such rules and regulations as are reasonable and necessary to carry out the provisions of this section, with the approval of the Governor.  (1979, c. 708; 1983, c. 717, s. 42; 1985, (Reg. Sess., 1986), c. 955, ss. 44, 45; 2006-203, s. 69; 2015-260, s. 5.2.)

§ 126-8.2.  Replacement of law-enforcement officer on final sick leave.

When a sworn law-enforcement officer employed by the State is on sick leave, and the head of the department employing the officer has obtained a certification from a physician that the officer will not recover and return to duty, a replacement for the officer may be hired even though the resulting number of employees in the department exceeds the number for which an appropriation was made in the Current Operations Appropriations Act, if sufficient funds are available from appropriations to the department for salaries to pay the salary of both the new employee and the officer on sick leave until the officer’s accumulated leave is exhausted or his employment is terminated. (1983 (Reg. Sess., 1984), c. 1034, s. 105.)

§ 126-8.3.  Voluntary shared leave.

(a)        The State Human Resources Commission, in cooperation with the State Board of Community Colleges and the State Board of Education, shall adopt rules and policies to allow any employee at a State agency to share leave voluntarily with an immediate family member who is an employee of a State agency, community college, or public school; and with a coworker’s immediate family member who is an employee of a State agency, community college, or public school. For the purposes of this section, the term “immediate family member” means a spouse, parent, child, brother, sister, grandparent, or grandchild. The term includes the step, half, and in-law relationships. The term “coworker” means that the employee donating the leave is employed by the same agency, department, institution, university, local school administrative unit, or community college as the employee whose immediate family member is receiving the leave.

(b)        The State Human Resources Commission shall adopt rules and policies for the voluntary shared leave program to allow an employee at a State agency to donate sick leave to a nonfamily member employee of a State agency. A donor of sick leave to a nonfamily member recipient shall not donate more than five days of sick leave per year to any one nonfamily member recipient. The combined total of sick leave donated to a recipient from nonfamily member donors shall not exceed 20 days per year. Donated sick leave shall not be used for retirement purposes, and employees who donate sick leave shall be notified in writing of the State retirement credit consequences of donating sick leave.

(c)        The State Human Resources Commission, the State Board of Education, and the State Board of Community Colleges and all State agencies, departments, and [institutions] shall annually report to the Office of State Human Resources on the voluntary shared leave program. For the prior fiscal year, the report shall include the total number of days or hours of vacation leave and sick leave donated and used by voluntary shared leave recipients and the total cost of the vacation leave and sick leave donated and used.  (1999-170, s. 1; 2003-9, s. 1; 2003-284, s. 30.14A(a); 2010-139, ss. 1, 3; 2013-382, ss. 7.8, 9.1(c).)

§ 126-8.4.  (See note on condition precedent) No sick leave taken for absences by State employees resulting from adverse reactions to vaccination.

(a)        Absence from work by an employee shall not count against the employee’s sick leave, and the employee’s salary shall continue during the absence when the employee receives in employment vaccination against smallpox incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)) and the absence is due to the employee having an adverse medical reaction resulting from the vaccination. The provisions of this subsection shall apply for a maximum of 480 employment hours. The employing department, agency, institution, or entity may require the employee to obtain certification from a health care provider justifying the need for leave after the first 24 hours of leave taken pursuant to this subsection.

(b)        Absence from work by an employee shall not count against the employee’s sick leave, and the employee’s salary shall continue during the absence when the employee is permanently or temporarily living in the home of a person who receives in employment vaccination against smallpox incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)) and the absence is due to (i) the employee having an adverse medical reaction resulting from exposure to the vaccinated person, or (ii) the need to care for the vaccinated person who has an adverse medical reaction resulting from the vaccination. The provisions of this subsection shall apply for a maximum of 480 employment hours. The employing department, agency, institution, or entity may require the employee to obtain certification from a health care provider justifying the need for leave after the first 24 hours of leave taken pursuant to this subsection.

(c)        Notwithstanding any other provisions of this Chapter, this section applies to all State employees. (2003-169, s. 4.)

§ 126-8.5.  Discontinued service retirement allowance and severance wages for certain State employees.

(a)        When the Director of the Budget determines that the closing of a State institution or a reduction in force will accomplish economies in the State Budget, he shall pay either a discontinued service retirement allowance or severance wages to any affected State employee, provided reemployment is not available. As used in this section, “economies in the State Budget” means economies resulting from elimination of a job and its responsibilities or from a lack of funds to support the job. In determining whether to pay a discontinued service retirement allowance or severance wages, the Director of the Budget shall consider the recommendation of the department head involved and any recommendation of the Director of the Office of State Human Resources. Severance wages shall not be paid to an employee who chooses a discontinued service retirement. Severance wages shall not be subject to employer or employee retirement contributions. Severance wages shall be paid according to the policies adopted by the State Human Resources Commission.

Notwithstanding any other provisions of the State’s retirement laws, any employee of the State who is a member of the Teachers’ and State Employees’ Retirement System or the Law-Enforcement Officers’ Retirement System and who has his job involuntarily terminated as a result of economies in the State Budget may be entitled to a discontinued service retirement allowance, subject to the approval of the employing agency and the availability of agency funds. An unreduced discontinued service retirement allowance, not otherwise allowed, may be approved for employees with 20 or more years of creditable retirement service who are at least 55 years of age; or a discontinued service retirement allowance, not otherwise allowed, may be approved for employees with 20 or more years of creditable retirement service who are at least 50 years of age, reduced by one-fourth of one percent (1/4 of 1%) for each month that retirement precedes his fifty-fifth birthday. In cases where a discontinued service retirement allowance is approved, the employing agency shall make a lump sum payment to the Administrator of the State Retirement Systems equal to the actuarial present value of the additional liabilities imposed upon the System, to be determined by the System’s consulting actuary, as a result of the discontinued service retirement, plus an administrative fee to be determined by the Administrator.

The salary used to determine severance wages under this section is the last annual salary except that if the employee was promoted within the previous 12 months, the last annual salary is that annual salary prior to the promotion. If the annual salary prior to the promotion is used, it shall be adjusted to account for any across-the-board legislative salary increases. Excluded from any calculation are any benefits such as, but not limited to, overtime pay, shift pay, holiday premium, or longevity pay.

(b)        Any employee separated from State government and paid severance wages under this section shall not be employed under a contractual arrangement by any State agency, other than the constituent institutions of The University of North Carolina and the constituent institutions of the North Carolina Community College System, until 12 months have elapsed since the separation. This subsection does not affect any reduction in force rights that the employee may have.  (1979, c. 838, s. 22; 1983, c. 761, s. 225; c. 923, s. 217(R); 1983 (Reg. Sess., 1984), c. 1034, s. 251; 1985 (Reg. Sess., 1986), c. 981, s. 1; c. 1024, s. 20; 1987, c. 177, s. 2; 1989 (Reg. Sess., 1990), c. 1066, s. 36(a); 1998-212, s. 28.28(a); 2006-203, s. 6; 2013-382, s. 9.1(c).)

Article 3.

Local Discretion as to Local Government Employees.

§ 126-9.  County or municipal employees may be made subject to rules adopted by local governing body.

(a)        When a board of county commissioners adopts rules and regulations governing annual leave, sick leave, hours of work, holidays, and the administration of the pay plan for county employees generally and the county rules and regulations are filed with the Director of the Office of State Human Resources, the county rules will supersede the rules adopted by the State Human Resources Commission as to the county employees otherwise subject to the provisions of this Chapter.

(b)        No county employees otherwise subject to the provisions of this Chapter may be paid a salary less than the minimum nor more than the maximum of the applicable salary range adopted in accordance with this Chapter without approval of the State Human Resources Commission. Provided, however, that subject to the approval of the State Human Resources Commission, a board of county commissioners may adjust the salary ranges applicable to employees who are otherwise subject to the provisions of this Chapter, in order to cause the level of pay to conform to local financial ability and fiscal policy. The State Human Resources Commission shall adopt policies and regulations to ensure that significant relationships within the schedule of salary ranges are maintained.

(c)        When two or more counties are combined into a district for the performance of an activity whose employees are subject to the provisions of this Chapter, the boards of county commissioners of the counties may jointly exercise the authority hereinabove granted in subsections (a) and (b) of this section.

(d)       When a municipality is performing an activity by or through employees which are subject to the provisions of this Chapter, the governing body of the municipality may exercise the authority hereinabove granted in subsections (a) and (b) of this section.  (1965, c. 640, s. 2; 1975, c. 667, s. 2; 2013-382, s. 9.1(c).)

§ 126-10.  Personnel services to local governmental units.

The State Human Resources Commission may make the services and facilities of the Office of State Human Resources available upon request to the political subdivisions of the State. The State Human Resources Commission may establish reasonable charges for the service and facilities so provided, and all funds so derived shall be deposited in the State treasury to the credit of the general fund.  (1965, c. 640, s. 2; 1975, c. 667, ss. 2, 12; 2013-382, s. 9.1(c).)

§ 126-11.  Local personnel system may be established; approval and monitoring; rules and regulations.

(a)        The board of county commissioners of any county may establish and maintain a personnel system for all employees of the county subject to its jurisdiction, which system and any substantial changes to the system, shall be approved by the State Human Resources Commission as substantially equivalent to the standards established under this Chapter for employees of local departments of social services, local health departments, and area mental health programs, local emergency management programs. If approved by the State Human Resources Commission, the employees covered by the county system shall be exempt from all provisions of this Chapter except Article 6.

(a1)      With approval of each of the boards of commissioners of the county or counties which comprise the area mental health authority, the area mental health authority may establish and maintain a personnel system for all employees of the area mental health authority, which system and any substantial changes to the system, shall be equivalent to the standards established under this Chapter for employees of area mental health authorities. If approved by the State Human Resources Commission, the employees covered by the area mental health authority system shall be exempt from all provisions of this Chapter except Article 6.

(b)        A board of county commissioners may petition the State Human Resources Commission to determine whether any portion of its total personnel system meets the requirements in (a) above. Upon such determination, county employees shall be exempt from the provisions of this Chapter relating to the approved portions of the county personnel system.

(b1)      The board of an area mental health authority, with the approval of each of the boards of commissioners of the county or counties which comprise the area mental health authority, may petition the State Human Resources Commission to determine whether any portion of its total personnel system meets the requirements in subsection (a1) above. Upon such determination, area mental health authority employees shall be exempt from the provisions of this Chapter relating to the approved portions of the area mental health authority personnel system except as provided in G.S. 122C-121.

(c)        The Office of State Human Resources shall monitor at least annually county or area mental health authority personnel systems approved under this section in order to ensure compliance.

(d)       In order to define “substantially equivalent,” the State Human Resources Commission is authorized to promulgate rules and regulations to implement the federal merit system standards and these regulations at a minimum shall include: recruitment and selection of employees; position classification; pay administration; training; employee relations; equal employment opportunity; and records and reports.  (1965, c. 640, s. 2; 1975, c. 667, s. 2; 1983, c. 674, s. 1; 1991, c. 65, s. 5; c. 564, s. 1; 2013-382, s. 9.1(c).)

Article 4.

Competitive Service.

§ 126-12.  Governor and Council of State to determine competitive service.

The Governor, with the approval of the Council of State, shall from time to time determine for which, if any of the positions subject to the provisions of Article 1 of this Chapter, appointments and promotions shall be based on a competitive system of selection. (1965, c. 640, s. 2.)

Article 5.

Political Activity of Employees.

§ 126-13.  Appropriate political activity of State employees defined.

(a)        As an individual, each State employee retains all the rights and obligations of citizenship provided in the Constitution and laws of the State of North Carolina and the Constitution and laws of the United States of America; however, no State employee subject to the North Carolina Human Resources Act or temporary State employee shall:

(1)        Take any active part in managing a campaign, or campaign for political office or otherwise engage in political activity while on duty or within any period of time during which he is expected to perform services for which he receives compensation from the State;

(2)        Otherwise use the authority of his position, or utilize State funds, supplies or vehicles to secure support for or oppose any candidate, party, or issue in an election involving candidates for office or party nominations, or affect the results thereof.

(b)        No head of any State department, agency, or institution or other State employee exercising supervisory authority shall make, issue, or enforce any rule or policy the effect of which is to interfere with the right of any State employee as an individual to engage in political activity while not on duty or at times during which he is not performing services for which he receives compensation from the State. A State employee who is or may be expected to perform his duties on a twenty-four hour per day basis shall not be prevented from engaging in political activity except during regularly scheduled working hours or at other times when he is actually performing the duties of his office. The willful violation of this subdivision shall be a Class 1 misdemeanor.  (1967, c. 821, s. 1; 1985, c. 469, s. 1; c. 617, s. 5; 1993, c. 539, s. 930; 1994, Ex. Sess., c. 24, s. 14(c); 2013-382, s. 9.1(c).)

§ 126-14.  Promise or threat to obtain political contribution or support.

(a)        It is unlawful for a State employee or a person appointed to State office, other than elective office or office on a board, commission, committee, or council whose function is advisory only, whether or not subject to the North Carolina Human Resources Act, to coerce:

(1)        a State employee subject to the North Carolina Human Resources Act,

(2)        a probationary State employee,

(3)        a temporary State employee, or

(4)        an applicant for a position subject to the North Carolina Human Resources Act

to support or contribute to a political candidate, political committee as defined in G.S. 163A-1411, or political party or to change the party designation of the individual’s voter registration by threatening that change in employment status or discipline or preferential personnel treatment will occur with regard to an individual listed in subdivisions (1) through (4) of this subsection.

(a1)      It is unlawful for an individual as defined in G.S. 163A-152(70)a. to coerce a person as described in G.S. 163A-212(d)(1), (2), or (3) to support or contribute to a political candidate, a political committee as defined in G.S. 163A-1411, or a political party by threatening discipline or promising preferential treatment with regard to that person’s business with the individual’s State office or that person’s activities regulated by the individual’s State office.

(b)        Any person violating this section shall be guilty of a Class 2 misdemeanor.

(c)        A State employee subject to the North Carolina Human Resources Act, probationary State employee, or temporary State employee who without probable cause falsely accuses a State employee or a person appointed to State office of violating this section shall be subject to discipline or change in employment status in accordance with the provisions of G.S. 126-35, 126-37, and 126-38 and may, as otherwise provided by law, be subject to criminal penalties for perjury or civil liability for libel, slander, or malicious prosecution.  (1967, c. 821, s. 1; 1985, c. 469, s. 2; 1991, c. 505, s. 1; 1993, c. 539, s. 931; 1994, Ex. Sess., c. 24, s. 14(c); 2010-169, s. 1(a); 2013-382, s. 9.1(c); 2017-6, s. 3.)

§ 126-14.1.  Threat to obtain political contribution or support.

(a)        It is unlawful for any person to coerce:

(1)        a State employee subject to the North Carolina Human Resources Act,

(2)        a probationary State employee,

(3)        a temporary State employee, or

(4)        an applicant for a position subject to the North Carolina Human Resources Act

to support or contribute to a political candidate, political committee as defined in G.S. 163A-1411, or political party or to change the party designation of his voter registration by explicitly threatening that change in employment status or discipline or preferential personnel treatment will occur with regard to any person listed in subdivisions (1) through (3) of this subsection.

(b)        Any person violating this section shall be guilty of a Class 2 misdemeanor.

(c)        A State employee subject to the North Carolina Human Resources Act, probationary State employee, or temporary State employee, who without probable cause falsely accuses a person of violating this section shall be subject to discipline or change in employment status in accordance with the provisions of G.S. 126-34.02 and may, as otherwise provided by law, be subject to criminal penalties for perjury or civil liability for libel, slander, or malicious prosecution.  (1985, c. 469, s. 3; 1991, c. 505, s. 2; 1993, c. 539, s. 932; 1994, Ex. Sess., c. 24, s. 14(c); 2013-382, ss. 6.3, 9.1(c); 2017-6, s. 3.)

§ 126-14.2.  Political hirings limited.

(a)        It is the policy of this State that State departments, agencies, and institutions select from the pool of the most qualified persons for State government employment based upon job-related qualifications of applicants for employment using fair and valid selection criteria.

(b)        All State departments, agencies, and institutions shall select from the pool of the most qualified persons for State government employment without regard to political affiliation or political influence. For the purposes of this section, “qualified persons” shall mean each of the State employees or applicants for initial State employment who:

(1)        Have timely applied for a position in State government;

(2)        Have the essential qualifications for that position; and

(3)        Are determined to be substantially more qualified as compared to other applicants for the position, after applying fair and valid job selection criteria, in accordance with G.S. 126-5(e), G.S. 126-7.1, Articles 6 and 13 of this Chapter, and State personnel policies approved by the State Human Resources Commission.

(c)        It is a violation of this section if:

(1)        The complaining State employee or applicant for initial State employment timely applied for the State government position in question;

(2)        The complaining State employee or applicant for initial State employment was not hired into the position;

(3)        The complaining State employee or applicant for initial State employment was among the most qualified persons applying for the position as defined in this Chapter;

(4)        The successful applicant for the position was not among the most qualified persons applying for the position; and

(5)        The hiring decision was based upon political affiliation or political influence.

(d)       The provisions of this section shall not apply to positions exempt from this Chapter, except that this section does apply to exempt managerial positions as defined by G.S. 126-5(b)(2).  (1997-520, s. 1; 2013-382, s. 9.1(c); 2014-115, s. 55.3(b); 2015-260, s. 5.3; 2017-57, s. 35.18.)

§ 126-14.3.  Open and fair competition.

The State Human Resources Commission shall adopt rules or policies to:

(1)        Assure recruitment, selection, and hiring procedures that encourage open and fair competition for positions in State government employment and that encourage the hiring of a diverse State government workforce.

(2)        Assure the proper and thorough advertisement of job openings in State government employment and lengthen, as appropriate, the period for submitting applications for State government employment.

(3)        Require that a closing date shall be posted for each job opening, unless an exception for critical classifications has been approved by the State Human Resources Commission.

(4)        Require that timely written notice shall be provided to each unsuccessful applicant for State employment who is in the pool of the most qualified applicants for a position, as defined by G.S. 126-14.2(b).

(5)        Assure that State departments, agencies, and institutions follow similar selection processes when hiring State employees in accordance with this Chapter.

(6)        Assure that State supervisory and management personnel, and personnel professionals, receive adequate training and continuing education to carry out the State’s policy of hiring from among the most qualified persons.

(7)        Establish a monitoring system to measure the effectiveness of State agency personnel procedures to promote fairness and reduce adverse impact on all demographic groups in the State government workforce.

(8)        Otherwise implement the State’s policy of nonpolitical hiring practices in accordance with this Chapter.  (1997-520, s. 1; 2013-382, s. 9.1(c).)

§ 126-14.4: Repealed by Session Laws 2013-382, s. 7.6, effective August 21, 2013.

§ 126-15.  Disciplinary action for violation of Article.

Failure to comply with this Article is grounds for disciplinary action which, in case of deliberate or repeated violation, may include dismissal or removal from office. (1967, c. 821, s. 1.)

§ 126-15.1: Repealed by Session Laws 2013-382, s. 3.2, effective August 21, 2013.

Article 6.

Equal Employment and Compensation Opportunity; Assisting in Obtaining State Employment.

§ 126-16.  Equal opportunity for employment and compensation by State departments and agencies and local political subdivisions.

All State agencies, departments, and institutions and all local political subdivisions of North Carolina shall give equal opportunity for employment and compensation, without regard to race, religion, color, national origin, sex, age, disability, or genetic information to all persons otherwise qualified.  (1971, c. 823; 1975, c. 158; 1977, c. 866, s. 7; 1979, c. 862, s. 3; 1983 (Reg. Sess., 1984), c. 1116, s. 111; 1985, c. 571, s. 2; 1991, c. 65, s. 6; 2013-382, s. 7.1.)

§ 126-16.1.  Equal employment opportunity training.

Each State agency, department, and institution and The University of North Carolina shall enroll each newly appointed supervisor or manager within one year of appointment in the Equal Employment Opportunity training offered or approved by the Office of State Human Resources.  (1991, c. 416, s. 1; 2013-382, ss. 7.2, 9.1(c).)

§ 126-17.  Retaliation by State departments and agencies and local political subdivisions.

No State department, agency, or local political subdivision of North Carolina shall retaliate against an employee for protesting alleged violations of G.S. 126-16. (1977, c. 866, s. 8.)

§ 126-18.  Compensation for assisting person in obtaining State employment barred; exception.

It shall be unlawful for any person, firm or corporation to collect, accept or receive any compensation, consideration or thing of value for obtaining on behalf of any other person, or aiding or assisting any other person in obtaining employment with the State of North Carolina; provided, however, any person, firm, or corporation that is duly licensed and supervised by the North Carolina Department of Labor as a private employment service acting in the normal course of business, may collect such regular and customary fees for services rendered pursuant to a written contract when such fees are paid by someone other than the State of North Carolina; however, any person, firm, or corporation collecting fees for this service must have been licensed by the North Carolina Department of Labor for a period of not less than one year.

Any person, firm or corporation collecting fees for this service must make a monthly report to the Department of Labor listing the name of the person, firm or corporation collecting fees and the person for whom a job was found, the nature and purpose of the job obtained, and the fee collected by the person, firm or corporation collecting the fee.  Violation of this section shall constitute a Class 1 misdemeanor. (1977, c. 397, s. 1; 1993, c. 539, s. 933; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 126-19.  Equal employment opportunity plans; reports; maintenance of services by Director of the Office of State Human Resources.

(a)        Each member of the Council of State under G.S. 143A-11, each of the principal departments enumerated in G.S. 143B-6, The University of North Carolina, the judicial branch, and the legislative branch, shall develop and submit on an annual basis an Equal Employment Opportunity plan which shall include goals and programs that provide positive measures to assure equitable and fair representation of North Carolina’s citizens. The plans developed by the judicial branch and by the Legislative Services Office on behalf of the legislative branch shall be submitted to the General Assembly on or before June 1 of each year. All other such plans shall be submitted to the Director of the Office of State Human Resources for review and approval on or before March 1, of each year.

(b)        Repealed by Session Laws 2013-382, s. 7.3, effective August 21, 2013.

(c)        The Director of the Office of State Human Resources will provide services of Equal Employment Opportunity technical assistance, training, oversight, monitoring, evaluation, support programs, and reporting to assure that State government’s work force is diverse at all occupational levels. These services shall be provided by qualified personnel.  (1991 (Reg. Sess., 1992) c. 919, ss. 2-4; 2013-382, ss. 7.3, 9.1(c).)

§ 126-20.  Reserved for future codification purposes.

§ 126-21.  Reserved for future codification purposes.

Article 7.

The Privacy of State Employee Personnel Records.

§ 126-22.  Personnel files not subject to inspection under § 132-6.

(a)        Except as provided in G.S. 126-23 and G.S. 126-24, personnel files of State employees shall not be subject to inspection and examination as authorized by G.S. 132-6.

(b)        For purposes of this Article the following definitions apply:

(1)        “Employee” means any current State employee, former State employee, or applicant for State employment.

(2)        “Employer” means any State department, university, division, bureau, commission, council, or other agency subject to Article 7 of this Chapter.

(3)        “Personnel file” means any employment-related or personal information gathered by an employer or by the Office of State Human Resources. Employment-related information contained in a personnel file includes information related to an individual’s application, selection, promotion, demotion, transfer, leave, salary, contract for employment, benefits, suspension, performance evaluation, disciplinary actions, and termination. Personal information contained in a personnel file includes an individual’s home address, social security number, medical history, personal financial data, marital status, dependents, and beneficiaries.

(4)        “Record” means the personnel information that each employer is required to maintain in accordance with G.S. 126-23.

(c)        Personnel files of former State employees who have been separated from State employment for 10 or more years may be open to inspection and examination except for papers and documents relating to demotions and to disciplinary actions resulting in the dismissal of the employee. Retirement files maintained by the Retirement Systems Division of the Department of State Treasurer shall be made public pursuant to G.S. 128-33.1 and G.S. 135-6.1.

(d)       Repealed by Session Laws 2016-108, s. 2(d), effective July 22, 2016.  (1975, c. 257, s. 1; 1977, c. 866, s. 9; 2007-508, s. 4.5; 2008-194, s. 11(a); 2013-382, s. 9.1(c); 2016-108, s. 2(d).)

§ 126-23.  Certain records to be kept by State agencies open to inspection.

(a)        Each department, agency, institution, commission and bureau of the State shall maintain a record of each of its employees, showing the following information with respect to each such employee:

(1)        Name.

(2)        Age.

(3)        Date of original employment or appointment to State service.

(4)        The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the agency has the written contract or a record of the oral contract in its possession.

(5)        Current position.

(6)        Title.

(7)        Current salary.

(8)        Date and amount of each increase or decrease in salary with that department, agency, institution, commission, or bureau.

(9)        Date and type of each promotion, demotion, transfer, suspension, separation, or other change in position classification with that department, agency, institution, commission, or bureau.

(10)      Date and general description of the reasons for each promotion with that department, agency, institution, commission, or bureau.

(11)      Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the department, agency, institution, commission, or bureau. If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the head of the department setting forth the specific acts or omissions that are the basis of the dismissal.

(12)      The office or station to which the employee is currently assigned.

(b)        For the purposes of this section, the term “salary” includes pay, benefits, incentives, bonuses, and deferred and all other forms of compensation paid by the employing entity.

(c)        Subject only to rules and regulations for the safekeeping of the records, adopted by the State Human Resources Commission, every person having custody of such records shall permit them to be inspected and examined and copies thereof made by any person during regular business hours. Except as provided in subsection (d) of this section, any person who is denied access to any such record for the purpose of inspecting, examining or copying the same shall have a right to compel compliance with the provisions of this section by application to a court of competent jurisdiction for a writ of mandamus or other appropriate relief.

(d)       Notwithstanding any other provision of this section, persons in the custody of, or under the supervision of, the Division of Adult Correction and Juvenile Justice and persons in the custody of local confinement facilities are not entitled to access to the records made public under this section and are prohibited from obtaining those records, absent a court order authorizing access to, or custody, or possession.

(e)        An attorney investigating allegations of unlawful misconduct or abuse by a Division of Adult Correction and Juvenile Justice employee may request, and shall be provided with, information sufficient to identify the full name or names of the employee alleged to be involved in the misconduct or abuse in the current position of the employee within the Division; or, the last position held by the employee and the last date of employment by the Division. The attorney may not give the offender copies of departmental records or official documents absent a court order authorizing access to, or custody, or possession.  (1975, c. 257, s. 1; c. 667, s. 2; 2007-508, s. 4; 2010-169, s. 18(a); 2011-145, s. 19.1(h); 2011-324, s. 1.1(b); 2013-382, s. 9.1(c); 2017-186, s. 2(ttttt).)

§ 126-24.  Confidential information in personnel files; access to such information.

All other information contained in a personnel file is confidential and shall not be open for inspection and examination except to the following persons:

(1)        The employee, applicant for employment, former employee, or his properly authorized agent, who may examine his own personnel file in its entirety except for (i) letters of reference solicited prior to employment, or (ii) information concerning a medical disability, mental or physical, that a prudent physician would not divulge to a patient. An employee’s medical record may be disclosed to a licensed physician designated in writing by the employee;

(2)        The supervisor of the employee;

(2a)      A potential State or local government supervisor, during the interview process, only with regard to performance management documents;

(3)        Members of the General Assembly who may inspect and examine personnel records under the authority of G.S. 120-19;

(4)        A party by authority of a proper court order may inspect and examine a particular confidential portion of a State employee’s personnel file; and

(5)        An official of an agency of the federal government, State government or any political subdivision thereof. Such an official may inspect any personnel records when such inspection is deemed by the department head of the employee whose record is to be inspected or, in the case of an applicant for employment or a former employee, by the department head of the agency in which the record is maintained as necessary and essential to the pursuance of a proper function of said agency; provided, however, that such information shall not be divulged for purposes of assisting in a criminal prosecution, nor for purposes of assisting in a tax investigation.

Notwithstanding any other provision of this Chapter, any department head may, in his discretion, inform any person or corporation of any promotion, demotion, suspension, reinstatement, transfer, separation, dismissal, employment or nonemployment of any applicant, employee or former employee employed by or assigned to his department or whose personnel file is maintained in his department and the reasons therefor and may allow the personnel file of such person or any portion thereof to be inspected and examined by any person or corporation when such department head shall determine that the release of such information or the inspection and examination of such file or portion thereof is essential to maintaining the integrity of such department or to maintaining the level or quality of services provided by such department; provided that prior to releasing such information or making such file or portion thereof available as provided herein, such department head shall prepare a memorandum setting forth the circumstances which the department head deems to require such disclosure and the information to be disclosed. The memorandum shall be retained in the files of said department head and shall be a public record.  (1975, c. 257, s. 1; 1977, c. 866, s. 10; 1977, 2nd Sess., c. 1207; 2015-260, s. 5.5.)

§ 126-25.  Remedies of employee objecting to material in file.

(a)        An employee, former employee, or applicant for employment who objects to material in the employee’s file may place in his or her file a written statement relating to the material the employee considers to be inaccurate or misleading.

(b)        An employee, former employee, or applicant for employment who objects to material in the employee’s file because he or she considers it inaccurate or misleading may seek the removal of such material from the file in accordance with a grievance procedure approved by the State Human Resources Commission. If the agency determines that material in the employee’s file is inaccurate or misleading, the agency shall remove or amend the inaccurate material to ensure that the file is accurate. Nothing in this subsection shall be construed to permit an employee to appeal the contents of a performance appraisal or written disciplinary action.  (1975, c. 257, s. 1; c. 667, s. 2; 1977, c. 866, s. 11; 1985, c. 638; 2013-382, s. 7.4; 2014-115, s. 55.3(c).)

§ 126-26.  Rules and regulations.

The State Human Resources Commission shall prescribe such rules and regulations as it deems necessary to implement the provisions of this Article.  (1975, c. 257, s. 1; c. 667, s. 2; 2013-382, s. 9.1(c).)

§ 126-27.  Penalty for permitting access to confidential file by unauthorized person.

Any public official or employee who shall knowingly and willfully permit any person to have access to or custody or possession of any portion of a personnel file designated as confidential by this Article, unless such person is one specifically authorized by G.S. 126-24 to have access thereto for inspection and examination, shall be guilty of a Class 3 misdemeanor and upon conviction shall only be fined in the discretion of the court but not in excess of five hundred dollars ($500.00). (1975, c. 257, s. 1; 1993, c. 539, s. 934; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 126-28.  Penalty for examining, copying, etc., confidential file without authority.

Any person, not specifically authorized by G.S. 126-24 to have access to a personnel file designated as confidential by this Article, who shall knowingly and willfully examine in its official filing place, remove or copy any portion of a confidential personnel file shall be guilty of a Class 3 misdemeanor and upon conviction shall only be fined in the discretion of the court but not in excess of five hundred dollars ($500.00). (1975, c. 257, s. 1; 1993, c. 539, s. 935; 1994, Ex. Sess., c. 24, s. 14(c).)

§ 126-29.  Access to material in file for agency hearing.

A party to a quasi-judicial hearing of a State agency subject to Article 7 of this Chapter, or a State agency subject to Article 7 of this Chapter which is conducting a quasi-judicial hearing, may have access to relevant material in personnel files and may introduce copies of such material or information based on such material as evidence in the hearing either upon consent of the employee, former employee, or applicant for employment or upon subpoena properly issued by the agency either upon request of a party or on its own motion.  Nothing in this Article shall impose liability on any agent or officer of the State for compliance with this provision, notwithstanding any other provision of this Article. (1977, c. 866, s. 12; 1987, c. 320, s. 5.)

§ 126-30.  Fraudulent disclosure and willful nondisclosure on application for State employment; penalties.

(a)        Any employee who knowingly and willfully discloses false or misleading information, or conceals dishonorable military service; or conceals prior employment history or other requested information, either of which are significantly related to job responsibilities on an application for State employment may be subjected to disciplinary action up to and including immediate dismissal from employment. Dismissal shall be mandatory where the applicant discloses false or misleading information in order to meet position qualifications. Application forms for State employment shall include a statement informing applicants of the consequences of such fraudulent disclosure or lack of disclosure.

(b)        The employing authority within each department, university, board, or commission, shall verify the status of credentials and the accuracy of statements contained in the application of each new employee within 90 days from the date of the employees employment. Failure to verify the application shall not bar action under subsection (a) above.

(c)        The State Human Resources Commission shall issue rules and procedures to implement this section for all departments, agencies and institutions which are not exempted from the North Carolina Human Resources Act under G.S 126-5(c1). Each agency, department and institution which is exempted under G.S. 126-5(c1) shall issue regulations to implement this section pursuant to the rulemaking procedures applicable to it.  (1987, c. 666, s. 1; 2013-382, s. 9.1(c).)

§ 126-31.  Reserved for future codification purposes.

§ 126-32.  Reserved for future codification purposes.

§ 126-33.  Reserved for future codification purposes.

Article 8.

Employee Appeals of Grievances and Disciplinary Action.

§ 126-34: Repealed by Session Laws 2013-382, s. 6.1, effective August 21, 2013, and applicable to grievances filed on or after that date.

§ 126-34.01.  Grievance; resolution.

Any State employee having a grievance arising out of or due to the employee’s employment shall first discuss the problem or grievance with the employee’s supervisor, unless the problem or grievance is with the supervisor. Then the employee shall follow the grievance procedure approved by the State Human Resources Commission. The proposed agency final decision shall not be issued nor become final until reviewed and approved by the Office of State Human Resources. The agency grievance procedure and Office of State Human Resources review shall be completed within 90 days from the date the grievance is filed.  (2013-382, ss. 6.1, 9.1(c).)

§ 126-34.02.  Grievance appeal process; grounds.

(a)        Once a final agency decision has been issued in accordance with G.S. 126-34.01, an applicant for State employment, a State employee, or former State employee may file a contested case in the Office of Administrative Hearings under Article 3 of Chapter 150B of the General Statutes. The contested case must be filed within 30 days of receipt of the final agency decision. Except for cases of extraordinary cause shown, the Office of Administrative Hearings shall hear and issue a final decision in accordance with G.S. 150B-34 within 180 days from the commencement of the case. In deciding cases under this section, the Office of Administrative Hearings may grant the following relief:

(1)        Reinstate any employee to the position from which the employee has been removed.

(2)        Order the employment, promotion, transfer, or salary adjustment of any individual to whom it has been wrongfully denied.

(3)        Direct other suitable action to correct the abuse which may include the requirement of payment for any loss of salary which has resulted from the improper action of the appointing authority.

An aggrieved party in a contested case under this section shall be entitled to judicial review of a final decision by appeal to the Court of Appeals as provided in G.S. 7A-29(a). The procedure for the appeal shall be as provided by the rules of appellate procedure. The appeal shall be taken within 30 days of receipt of the written notice of final decision. A notice of appeal shall be filed with the Office of Administrative Hearings and served on all parties to the contested case hearing.

(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.

(c)        Any issue for which an appeal to the Office of Administrative Hearings has not been specifically authorized by this section shall not be grounds for a contested case hearing.

(d)       In contested cases conducted pursuant to this section, the burden of showing that a career State employee was discharged, demoted, or suspended for just cause rests with the employer. In all other contested cases, the burden of proof rests on the employee.

(e)        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. The remedies provided in this subsection in a whistleblower appeal shall be the same as those provided in G.S. 126-87.

(f)        The Office of Administrative Hearings shall report to the Office of State Human Resources and the Joint Legislative Administrative Procedure Oversight Committee on the number of cases filed under this section and on the number of days between filing and closing of each case. The report shall be filed on a semiannual basis.  (2013-382, ss. 6.1, 9.1(c); 2014-115, s. 55.3(d).)

§ 126-34.1: Repealed by Session Laws 2013-382, s. 6.1, effective August 21, 2013, and applicable to grievances filed on or after that date.

§ 126-34.2.  Alternative dispute resolution.

In its discretion, the Commission may adopt alternative dispute resolution procedures for the resolution of matters constituting and not constituting grounds for a grievance under this Article. Any matters not constituting grounds for an appeal under G.S. 126-34.02 shall not be heard by the Office of Administrative Hearings as a contested case.  (1995, c. 141, s. 8; 2013-382, s. 6.1.)

§ 126-34.3.  Judicial review of fee awards.

With respect to a decision of the Office of Administrative Hearings assessing or refusing to assess reasonable witness fees or a reasonable attorneys’ fee, the decision shall be subject to judicial review in accordance with G.S. 126-34.02(a). The reviewing court may reverse or modify the decision of the Office of Administrative Hearings if the decision is unreasonable or the award is inadequate. An employee who obtains a reversal or modification of the Office of Administrative Hearings’ decision in an appeal under this section shall be entitled to recover court costs and a reasonable attorneys’ fee for representation in connection with the appeal.  (2013-382, s. 6.1.)

§ 126-35.  Just cause; disciplinary actions for State employees.

(a)        No career State employee subject to the North Carolina Human Resources Act shall be discharged, suspended, or demoted for disciplinary reasons, except for just cause. 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 to the head of the agency through the agency grievance procedure for a final agency decision. However, an employee may be suspended without warning for causes relating to personal conduct detrimental to State service, pending the giving of written reasons, in order to avoid undue disruption of work or to protect the safety of persons or property or for other serious reasons. If the employee is not satisfied with the final agency decision or is unable, within a reasonable period of time, to obtain a final agency decision, the employee may appeal to the Office of Administrative Hearings. Such appeal shall be filed not later than 30 days after receipt of notice of the final agency decision. The State Human Resources Commission may adopt, subject to the approval of the Governor, rules that define just cause.

(b)        through (d) Repealed by Session Laws 2013-382, s. 6.1, effective August 21, 2013, and applicable to grievances filed on or after that date.  (1975, c. 667, s. 10; 1989 (Reg. Sess., 1990), c. 1025, s. 2; 1991, c. 65, s. 7; c. 354, s. 5; c. 722, s. 1; 2000-190, s. 13; 2012-187, s. 8.4; 2013-382, ss. 6.1, 9.1(c).)

§§ 126-36 through 126-41: Repealed by Session Laws 2013-382, s. 6.1, effective August 21, 2013, and applicable to grievances filed on or after that date.

§ 126-42.  Reserved for future codification purposes.

Article 9.

The Administrative Procedure Act and Modifications.

§§ 126-43 through 126-44: Repealed by Session Laws 1987, c.  320, s. 9.

§ 126-45: Repealed by Session Laws 1977, c.  866, s. 18.

§§ 126-46 through 126-50.  Reserved for future codification purposes.

Article 10.

Interchange of Governmental Employees.

§ 126-51.  Short title.

This Article shall be known and may be cited as the “North Carolina Interchange of Governmental Employees Act of 1977.” (1977, c. 783, s. 1.)

§ 126-52.  Definitions.

For purposes of this Article:

(1)        “Assigned employee” means an employee of a sending agency who is assigned or detailed to a receiving agency as part of the employee’s regular duties with the sending agency.

(2)        “Employee on leave” means an employee on leave of absence without pay from a sending agency who becomes an employee of a receiving agency while on leave from the sending agency.

(3)        “Receiving agency” means any division, department, agency, instrumentality, authority, or political subdivision of the federal government or of a state or local government which, under this Article, receives an employee of another governmental division, department, agency, instrumentality, authority, or political subdivision of the federal government or of a state or local government.

(4)        “Sending agency” means any division, department, agency, instrumentality, authority, or political subdivision of the federal government or of a state or local government which, under this Article, sends any employee thereof to another governmental division, department, agency, instrumentality, authority, or political subdivision of the federal government or of a state or local government. (1977, c. 783, s. 1.)

§ 126-53.  Authority to interchange employees.

(a)        Any division, department, agency, instrumentality, authority, or political subdivision of the State of North Carolina is authorized to participate in a program of interchange of employees with divisions, departments, agencies, instrumentalities, authorities, or political subdivisions of the federal government, of another state, or of this State, as a sending agency or a receiving agency.

(b)        The period of individual assignment, detail, or leave of absence under an interchange program shall not exceed two years.

(c)        The temporary assignment of the employee may be terminated by mutual agreement between the sending agency and the receiving agency.

(d)       Elected officials may not participate in a program of interchange under this Article. (1977, c. 783, s. 1.)

§ 126-54.  Status of employees of sending agency.

(a)        Employees of a sending agency participating in an exchange of personnel authorized by G.S. 126-53 may be considered during such participation to be either assigned employees or employees on leave.

(b)        Assigned employees shall be entitled to the same salary and employment benefits to which they would be entitled as employees of the sending agency and shall remain employees of the sending agency for all purposes unless otherwise provided in this Article or in a written agreement between the sending agency and the receiving agency.

(c)        Employees on leave shall have the same rights, benefits and obligations as other State or local employees subject to this Chapter who are granted leaves of absences, unless otherwise provided in this Article, or in a written agreement between the sending agency and the receiving agency.

(d)       When a division, department, agency, instrumentality, authority or political subdivision of the State of North Carolina acts as a sending agency, employees participating in an exchange of personnel authorized by G.S. 126-53, whether considered assigned employees or employees on leave, shall have the same rights, benefits and obligations to participate in and receive benefits, including death benefits, from any retirement system of which they are members as employees of the sending agency, whether they are members of the Teachers’ and State Employees’ Retirement System, the North Carolina Local Governmental Employees’ Retirement System, the Law Enforcement Officers’ Benefit and Retirement Fund, or other Retirement System which has been or may be established by the State for public employees; provided, however, that the receiving agency agrees to and makes the employer contributions and deducts from the salary of the employee the employee contributions for continued membership in such Retirement System. Provided, further, that if no contributions are paid into the appropriate Retirement System during the period that the employee participates in the exchange of personnel authorized by this Article, such employee shall remain entitled to death benefits resulting from his death during the period of the exchange. Provided, that where duplicate benefits would otherwise be payable on account of disability or death, the employee or his estate shall elect, within one year of the date of disability or death, which benefits to receive. (1977, c. 783, s. 1.)

§ 126-55.  Travel expenses of employees from this State.

A sending agency in this State shall not pay the travel expenses of its assigned or on leave employees and shall not pay the travel expenses of such employees incurred in the course of performing work for the receiving agency. Such expenses shall be borne by the receiving agency. (1977, c. 783, s. 1.)

§ 126-56.  Status of employees of other governments.

(a)        When a division, department, agency, instrumentality, authority or political subdivision of the State of North Carolina acts as a receiving agency, assigned employees of the sending agency remain the employees of the sending agency and continue to receive the employment benefits of the sending agency unless otherwise specified in a written agreement between the sending agency and the receiving agency.

(b)        When a division, department, agency, instrumentality, authority or political subdivision of this State acts as a receiving agency, employees on leave from the sending agency will receive appointments as employees with the receiving agency and will be entitled to the same employment benefits as other employees of the receiving agency unless otherwise specified in a written agreement between the sending agency and the receiving agency. Such appointments may be made without regard to any rules or regulations of the receiving agency regarding the selection of employees; but all rules of the North Carolina Human Resources Act shall apply to State employees.  (1977, c. 783, s. 1; 2013-382, s. 9.1(c).)

§ 126-57.  Travel expenses of employees of other governments.

A receiving agency in the State of North Carolina may, in accordance with its travel regulations and travel regulations by law, pay the travel expenses incurred in the course of an assigned employee’s duties or incurred in the course of the duties of an employee on leave with the receiving agency on the same basis as the travel expenses of regular employees are paid. (1977, c. 783, s. 1.)

§ 126-58.  Administration.

The State Human Resources Commission and any State division, department, agency, instrumentality, authority or political subdivision participating in an interchange of employees program may promulgate rules or regulations necessary for the administration of such program, so long as such rules or regulations do not conflict with the provisions of this Article or any other provision of law.  (1977, c. 783, s. 1; 2013-382, s. 9.1(c).)

§§ 126-59 through 126-63.  Reserved for future codification purposes.

Article 11.

Governor’s Commission on Governmental Productivity.

§§ 126-64 through 126-73:  Repealed by Session Laws 1985, c.  479, s. 153(a).

Article 12.

Work Options Program for State Employees.

§ 126-74.  Work Options Program established.

There is established a Work Options Program for State employees in the Office of State Human Resources to be administered by the State Human Resources Commission. The Director of the Office of State Human Resources shall assign an employee within the Office of State Human Resources, to be known as the State Work Options Coordinator, to direct the Work Options Program as established in this Article.  (1981, c. 917, s. 1; 1991, c. 65, s. 8; 2013-382, s. 9.1(c).)

§ 126-75.  Work options for State employees.

(a)        The following work options allowed State employees are to be included in the program administered under this Article:

(1)        Flexible work hours as established by the State Human Resources Commission;

(2)        Job sharing as permitted by the State Human Resources Commission;

(3)        Permanent part-time positions as established under the North Carolina Human Resources Act.

(b)        The State Human Resources Commission shall examine the present options listed in subsection (a) of this section available to State employees and other options the State Human Resources Commission may make available for a comprehensive program of work options for State employees. The State Human Resources Commission shall, with the concurrence of the agency, determine the need for additional permanent part-time positions within State Government and how increased use of these positions could benefit employee morale and productivity as well as increase the use of the available labor force. None of the provisions of this Article shall be administered to reduce the total number of hours per day a State office normally is open to serve the public.  (1981, c. 917, s. 1; 2013-382, s. 9.1(c).)

§ 126-76.  Promoting Work Options Program.

The State Human Resources Commission shall develop a program to expand the use of work options. This program shall include training sessions for agency personnel to instruct them in the use of work options available to State employees. The State Human Resources Commission shall also provide technical assistance to agency personnel in developing a Work Options Program for each agency or expanding existing programs in each agency. The Work Options Coordinator shall also identify personnel positions within the State Human Resources system which can effectively be structured in job sharing or permanent part-time employment positions.  (1981, c. 917, s. 1; 2013-382, s. 9.1(c); 2014-115, s. 55.4(c).)

§ 126-77.  Authority of agencies to participate.

The State Human Resources Commission shall request from each agency assistance in formulating the Work Options Program. Any division, department, agency, instrumentality or authority shall participate in the program of work options as established in this Article.  (1981, c. 917, s. 1; 2013-382, s. 9.1(c).)

§ 126-78.  Administration.

The State Human Resources Commission and any State division, department, agency, instrumentality or authority participating in the State Work Options Program shall promulgate rules necessary for the administration of the program.  (1981, c. 917, s. 1; 1987, c. 827, s. 57; 2013-382, s. 9.1(c).)

§ 126-79: Repealed by Session Laws 2013-382, s. 7.7, effective August 21, 2013.

Article 13.

Veteran’s Preference.

§ 126-80.  Declaration of policy.

It shall be the policy of the State of North Carolina that, in appreciation for their service to this State and this country during a period of war, and in recognition of the time and advantage lost toward the pursuit of a civilian career, veterans shall be granted preference in employment for positions subject to the provisions of this Chapter with every State department, agency, and institution. (1987 (Reg. Sess., 1988), c. 1064, s. 1.)

§ 126-81.  Definitions.

As used in this Article:

(1)        “A period of war” includes World War I (April 16, 1917, through November 11, 1918), World War II (December 7, 1941, through December 31, 1946), the Korean Conflict (June 27, 1950, through January 31, 1955), the period of time between January 31, 1955, and the end of the hostilities in Vietnam (May 7, 1975), or any other campaign, expedition, or engagement for which a campaign badge or medal is authorized by the United States Department of Defense.

(2)        “Veteran” means a person who served in the Armed Forces of the United States on active duty, for reasons other than training, and has been discharged under other than dishonorable conditions.

(3)        “Eligible veteran” means:

a.         A veteran who served during a period of war; or

b.         The spouse of a disabled veteran; or

c.         The surviving spouse or dependent of a veteran who dies on active duty during a period of war either directly or indirectly as a result of such service; or

d.         A veteran who suffered a service-connected disability during peacetime; or

e.         The spouse of a veteran described in subdivision d. of this subsection; or

f.          The surviving spouse or dependent of a person who served in the Armed Forces of the United States on active duty, for reasons other than training, who died for service-related reasons during peacetime. (1987 (Reg. Sess., 1988), c. 1064, s. 1.)

§ 126-82.  State Human Resources Commission to provide for preference.

(a)        The State Human Resources Commission shall provide that in evaluating the qualifications of an eligible veteran against the minimum requirements for obtaining a position, credit shall be given for all military service training or schooling and experience that bears a reasonable and functional relationship to the knowledge, skills, and abilities required for the position. This preference applies to initial employment with the State and extends to other employment events including subsequent hirings, promotions, reassignments, and horizontal transfers.

(b)        The State Human Resources Commission shall provide that if an eligible veteran has met the minimum requirements for the position, after receiving experience credit under subsection (a) of this section, he shall receive experience credit as determined by the Commission for additional related and unrelated military service. This preference applies to initial employment with the State and extends to other employment events including subsequent hirings, promotions, reassignments, and horizontal transfers.

(c)        The State Human Resources Commission may provide that in reduction in force situations where seniority or years of service is one of the considerations for retention, an eligible veteran shall be accorded credit for military service.

(d)       Any eligible veteran who has reason to believe that he or she did not receive a veteran’s preference in accordance with the provisions of this Article or rules adopted under it may appeal that denial as provided by G.S. 126-34.01 and G.S. 126-34.02.

(e)        The willful failure of any employee subject to the provisions of Article 8 of this Chapter to comply with the provisions of this Article or rules adopted under it constitutes personal misconduct in accordance with the provisions and promulgated rules of this Chapter, including those for suspension, demotion, or dismissal.  (1987 (Reg. Sess., 1988), c. 1064, s. 1; 2007-286, s. 2; 2013-382, s. 9.1(c); 2014-115, s. 55.3(e).)

§ 126-83.  Exceptions.

Notwithstanding G.S. 126-5, and notwithstanding provisions in that section that only certain Articles of this Chapter apply to some employees, this Article applies to all persons covered by this Chapter except those exempted by G.S. 126-5(c)(2), G.S. 126-5(c)(3), G.S. 126-5(c)(4), G.S. 126-5(c1), G.S. 126-5(c2), or G.S. 126-5(c3), but this Article does not apply to those persons covered by G.S. 126-5(a)(2).  G.S. 128-15 shall apply to those persons exempted from coverage of this Article, but shall not apply to any person covered by this Article. (1987 (Reg. Sess., 1988), c. 1064, s. 1; 1991, c. 65, s. 9.)

Article 14.

Protection for Reporting Improper Government Activities.

§ 126-84.  Statement of policy.

(a)        It is the policy of this State that State employees shall have a duty to report verbally or in writing to their supervisor, department head, or other appropriate authority, evidence of activity by a State agency or State employee constituting any of the following:

(1)        A violation of State or federal law, rule or regulation.

(2)        Fraud.

(3)        Misappropriation of State resources.

(4)        Substantial and specific danger to the public health and safety.

(5)        Gross mismanagement, a gross waste of monies, or gross abuse of authority.

(b)        Further, it is the policy of this State that State employees be free of intimidation or harassment when reporting to public bodies about matters of public concern, including offering testimony to or testifying before appropriate legislative panels.  (1989, c. 236, s. 1; 1997-520, s. 5; 2018-41, s. 7.)

§ 126-85.  Protection from retaliation.

(a)        No head of any State department, agency or institution or other State employee exercising supervisory authority shall discharge, threaten or otherwise discriminate against a State employee regarding the State employee’s compensation, terms, conditions, location, or privileges of employment because the State employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, any activity described in G.S. 126-84, unless the State employee knows or has reason to believe that the report is inaccurate.

(a1)      No State employee shall retaliate against another State employee because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, any activity described in G.S. 126-84.

(b)        No head of any State department, agency or institution or other State employee exercising supervisory authority shall discharge, threaten or otherwise discriminate against a State employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the State employee has refused to carry out a directive which in fact constitutes a violation of State or federal law, rule or regulation or poses a substantial and specific danger to the public health and safety.

(b1)      No State employee shall retaliate against another State employee because the employee has refused to carry out a directive which may constitute a violation of State or federal law, rule or regulation, or poses a substantial and specific danger to the public health and safety.

(c)        The protections of this Article shall include State employees who report any activity described in G.S. 126-84 to the State Auditor as authorized by G.S. 147-64.6B or to the Program Evaluation Division as authorized by G.S. 120-36.12(10).  (1989, c. 236, s. 1; 1997-520, s. 6; 2008-196, s. 2(b); 2008-215, s. 8.)

§ 126-86.  Civil actions for injunctive relief or other remedies.

Any State employee injured by a violation of G.S. 126-85 who is not subject to Article 8 of this Chapter may maintain an action in superior court for damages, an injunction, or other remedies provided in this Article against the person or agency who committed the violation within one year after the occurrence of the alleged violation of this Article; provided, however, any claim arising under Article 21 of Chapter 95 of the General Statutes may be maintained pursuant to the provisions of that Article only and may be redressed only by the remedies and relief available under that Article.  (1989, c. 236, s. 1; 1991 (Reg. Sess., 1992), c. 1021, s. 6; 2013-382, s. 7.10.)

§ 126-87.  Remedies.

A court, in rendering a judgment in an action brought pursuant to this Article, may order an injunction, damages, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, costs, reasonable attorney’s fees or any combination of these.  If an application for a permanent injunction is granted, the employee shall be awarded costs and reasonable attorney’s fees.  If in an action for damages the court finds that the employee was injured by a willful violation of G.S. 126-85, the court shall award as damages three times the amount of actual damages plus costs and reasonable attorney’s fees against the individual or individuals found to be in violation of G.S. 126-84. (1989, c. 236, s.1)

§ 126-88.  Notice of employee protections and obligations.

It shall be the duty of an employer of a State employee to post notice in accordance with G.S. 95-9 or use other appropriate means to keep his employees informed of their protections and obligations under this Article. (1989, c. 236, s. 1.)

§ 126-89: Reserved for future codification purposes.

Article 15.

Communications With Members of the General Assembly.

§ 126-90.  Communications with members of the General Assembly.

A State employee’s right to speak to a member of the General Assembly at the member’s request shall not be directly or indirectly limited by the employee’s supervisor or by any policy of the department, agency, or institution that employs that State employee. (1997-443, s. 22.2(a).)

§ 126-91: Reserved for future codification purposes.

§ 126-92: Reserved for future codification purposes.

§ 126-93: Reserved for future codification purposes.

§ 126-94: Reserved for future codification purposes.

Article 16.

Flexible Compensation Plan.

§ 126-95.  Flexible compensation plan.

(a)        The Director of the Budget may provide eligible officers and employees of State departments, institutions, and agencies not covered by the provisions of G.S. 116-17.2 a program of dependent care assistance as available under section 129 and related sections of the Internal Revenue Code of 1986, as amended. The Director of the Budget may authorize State departments, institutions, and agencies to enter into annual agreements with employees who elect to participate in the program to provide for a reduction in salary. With the approval of the Director of the Budget, savings in the employer’s share of contributions under the Federal Insurance Contributions Act on account of the reduction in salary may be used to pay some or all of the administrative expenses of the program. Should the Director of the Budget decide to contract with a third party to administer the terms and conditions of a program of dependent care assistance, the Director of the Budget may select a contractor only upon a thorough and completely competitive procurement process.

(b)        Notwithstanding any other provisions of law relating to the salaries of officers and employees of departments, institutions, and agencies of State government, the Director of the Budget may provide a plan of flexible compensation to eligible officers and employees of State departments, institutions, and agencies not covered by the provisions of G.S. 116-17.2 for benefits available under section 125 and related sections of the Internal Revenue Code of 1986, as amended. This plan shall not replace, substitute for, or duplicate any benefits provided to employees and officers under Article 1A of Chapter 120 of the General Statutes and Articles 1, 3B, 4, and 6 of Chapter 135 of the General Statutes. The plan may, however, include offerings for products and benefits that are supplemental or additional to these statutory benefits. If a plan of flexible compensation is offered, then a TRICARE supplement shall be offered. In providing a plan of flexible compensation, the Director of the Budget may authorize State departments, institutions, and agencies to enter into agreements with their employees for reductions in the salaries of employees electing to participate in the plan of flexible compensation provided by this section. With the approval of the Director of the Budget, savings in the employer’s share of contributions under the Federal Insurance Contributions Act on account of the reduction in salary may be used to pay some or all of the administrative expenses of the program. Should the Director of the Budget decide to contract with a third party to administer the terms and conditions of a plan of flexible compensation as provided by this section, it may select such a contractor only upon a thorough and completely advertised competitive procurement process.

(c)        As used in this section, the term “eligible officers and employees” means any officer or employee authorized to participate in the Teachers’ and State Employees’ Retirement System and the State Health Plan.  (2007-117, s. 3; 2013-292, s. 4; 2013-382, s. 1.4.)

§ 126-96: Reserved for future codification purposes.

§ 126-97: Reserved for future codification purposes.

§ 126-98: Reserved for future codification purposes.

§ 126-99: Reserved for future codification purposes.