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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