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Retaliatory Employment Discrimination Act

Position: NCCBI opposes the position of the North Carolina Department of Labor's Workplace Retaliatory Discrimination Office (WORD) that it is unlawful for a private employer to terminate an employee pursuant to a facially neutral leave of absence policy where the absence was due to a work related injury. NCCBI believes that WORD's contention that this is a violation of the provisions of North Carolina's Retaliatory Employment Discrimination Act (REDA) is erroneous.

Explanation:   Historically, private sector employers in North Carolina have had the right to establish non-discriminatory leave of absence policies which provide for a maximum time that any employee for any reason can be absent. These policies are referred to as 6-12 policies" by the Department of Labor because they typically provide for a maximum time for leaves of absence of six (6) to twelve (12) months, after which the employee will be automatically discharged due to the excessive absence, regardless of the reason for the absence.

In 1994 a complaint was filed with WORD claiming that an employee was terminated in violation of the individual's Workers' Compensation rights under Chapter 97 of the North Carolina General Statutes. WORD found reasonable cause to believe that the allegation of prohibited discrimination was true. WORD contended that an employee's termination for failure to return to work after a specified period of time is a violation of REDA, if the reason for the employee's absence is related to the exercise of a right under one of the statutes listed in REDA, even where the policy is facially neutral.

N.C.G.S. Section 95-241 (b) provides as affirmative defense for employers where the employer "would have taken the same unfavorable action in absence of the protected activity of the employee." The affirmative defense has been recognized in at least one court decision. In Watkins v. Martin Mills, Inc., the United States District Court for the Middle District of North Carolina granted summary judgment, finding in part that the company's policy of automatically terminating employees who exceeded its maximum allowable leave was an affirmative defense to a REDA action. In Martin Mills the maximum period was twelve (12) months.

The establishment of non-discriminatory maximums for leaves of absence are consistent with the mandates of both federal and state anti-discrimination laws. Such policies are necessary for North Carolina businesses to be able to operate in an effective and predictable manner. Requiring companies to leave positions open for extended, and possibly very lengthy periods of time, can cause unreasonable hardships on a business, especially small businesses where staffing is necessarily limited.

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