GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2009
S D
SENATE DRS45002-LR-8C (11/24)
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Short Title: Create Employment Safety & Security Comm. |
(Public) |
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Sponsors: |
Senator Berger of Franklin. |
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Referred to: |
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A BILL TO BE ENTITLED
AN ACT enhancing worker safety in north carolina by creating the employment SAFETY and security commission and by TRANSFERRING to that commission the functions of the Occupational safety and health Division of the department of labor and certain other statutory powers and duties of the commissioner of labor relating to employee safety.
The General Assembly of North Carolina enacts:
PART I. TRANSFERS AND GENERAL PROVISIONS
SECTION 1.(a) Transfers of Agencies, Powers, Duties. – The statutory authority, powers, duties, functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds of the State agencies and subunits listed in this subsection are transferred from those entities to the Employment Safety and Security Commission, Department of Commerce, created by this act with all of the elements of a Type II transfer as defined by G.S. 143A‑6:
(1) Office of Occupational Safety and Health, Department of Labor.
(2) North Carolina Occupational Safety and Health Review Commission, Department of Labor.
(3) State Advisory Council on Occupational Safety and Health, Department of Labor.
(4) Agricultural Safety and Health Bureau, Department of Labor.
SECTION 1.(b) Recodifications. – Articles 16, 18, 19, 22, and 23 of Chapter 95 of the General Statutes are recodified as Articles 5, 6, 7, 8, and 9, respectively, of Chapter 96 of the General Statutes, except that the Revisor of Statutes may assign different numbering as necessary. The Revisor of Statutes may delete any reference in those articles to the Department of Labor, or any derivative thereof, and to substitute references to the Employment Safety and Security Commission wherever conforming changes are necessary.
The Revisor of Statutes shall make conforming changes to Chapter 96 of the General Statutes to effectuate the renaming of the Employment Security Commission, and derivatives thereof, to the Employment Safety and Security Commission, and derivatives thereof.
In addition, the Revisor of Statutes may substitute the name Employment Safety and Security Commission, the title Chief Deputy Commissioner, or a derivative of either, and delete reference to the Department of Labor or the Commissioner of Labor in any section of the General Statutes where the conforming change is required by virtue of this act.
SECTION 1.(c) Continuation of Duties. – Any previous assignment of duties of a quasi‑legislative and quasi‑judicial nature by the Governor or General Assembly shall have continued validity with the transfer under this act of any affected commission, board, division, office, or bureau. Except as otherwise specifically provided in this act, each enumerated commission, board, office, bureau, or other subunit of State government transferred to Chapter 96 of the General Statutes as enacted by this act is a continuation of the former entity for purposes of succession to all the rights, powers, duties, and obligations of the former. Where the former entities are referred to by law, contract, or other document in their former name, that reference shall apply to the commission, board, division, office, bureau, or other subunit within the Employment Safety and Security Commission exercising the functions of the former entity named in the document.
SECTION 1.(d) No action or proceeding pending on January 1, 2010, brought by or against any State office, commission, council, or other governmental subunit whose functions, powers, and duties are transferred by this act to the Employment Safety and Security Commission shall be affected by any provision of this act, but the same may be prosecuted or defended in the name of the Employment Safety and Security Commission. In these actions and proceedings, the Employment Safety and Security Commission shall be substituted as a party upon proper application to the courts or other administrative or quasi‑judicial bodies.
Any business or other matter undertaken or commanded by any State program or office or contract transferred by this act to the Employment Safety and Security Commission, or by the commissioners or directors thereof, pertaining to or connected with the functions, powers, obligations, and duties set forth herein, which is pending on the date this act becomes effective, may be conducted and completed by the Employment Safety and Security Commission in the same manner and under the same terms and conditions and with the same effect as if conducted and completed by the original program, office, or commissioners, or directors thereof.
PART II. MINE SAFETY
SECTION 2. G.S. 74‑24.1 reads as rewritten:
"§ 74‑24.1. Short title and legislative purpose.
(a) This Article shall be known as the Mine Safety and Health Act of North Carolina.
(b) Legislative findings and purpose:
(1) The General Assembly finds that the burden of operators and miners of this State's mines resulting from personal injuries and illnesses arising out of work situations is substantial; that the prevention of these injuries and illnesses is an important objective of the government of this State; that the greatest hope in attaining this objective lies in programs of research, engineering, education, and enforcement, and in earnest cooperation of the federal and state governments, operators, and miners.
(2) The General Assembly of North Carolina declares it to be its purpose and policy through the exercise of its powers to assure so far as possible every worker in North Carolina's mines safe and healthful working conditions and to preserve our human resources:
a. By encouraging operators and miners in their effort to reduce the number of occupational safety and health hazards in mines and to stimulate and assist operators and miners to institute new programs and to perfect existing programs for providing safe and healthful working conditions through technical assistance and consultation;
b. By recognizing that operators and miners have separate but interdependent responsibilities and rights with respect to achieving safe and healthful working conditions;
c. By authorizing the CommissionerEmployment
Safety and Security Commission to develop occupational safety and health
standards applicable to mines giving consideration to the needs of operators
and miners and to adopt standards promulgated from time to time by the federal
government;
d. By providing occupational health criteria which will assure insofar as practicable that no miner will suffer diminished health, functional capacity, or life expectancy as a result of his work experience in a mine;
e. By providing education and training programs to increase the number and competence of personnel engaged in the field of occupational safety and health;
f. By providing an effective enforcement program which shall include a prohibition against giving advance notice of a mine inspection;
g. By providing for appropriate reporting procedures with respect to occupational safety and health which will help achieve the objectives of this Article and accurately describe the nature of the occupational safety and health problems in mines;
h. By providing for research and technical assistance in the field of occupational safety and health in mines and by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems in mines; and
i. By authorizing the Commissioner Employment
Safety and Security Commission to enter into agreements and contracts with
public and private agencies, including agencies of the United States
government, organizations, and individuals in order to carry out the ends and
purposes of this Article.
(c) The General Assembly of North Carolina appoints
the North Carolina Department of Labor Employment Safety and Security
Commission as the designated agency to administer the Mine Safety and
Health Act of North Carolina."
PART III. OCCUPATIONAL SAFETY AND HEALTH
SECTION 3. G.S. 95‑126 reads as rewritten:
"§ 95‑126. Short title and legislative purpose.
(a) This Article shall be known as the "Occupational Safety and Health Act of North Carolina" and also may be referred to by abbreviations as "OSHANC."
(b) Legislative findings and purpose:
(1) The General Assembly finds that the burden of employers and employees of this State resulting from personal injuries and illnesses arising out of work situations is substantial; that the prevention of these injuries and illnesses is an important objective of the government of this State; that the greatest hope of attaining this objective lies in programs of research, education and enforcement, and in the earnest cooperation of the federal and State governments, employers and employees.
(2) The General Assembly of North Carolina declares it to be its purpose and policy through the exercise of its powers to ensure so far as possible every working man and woman in the State of North Carolina safe and healthful working conditions and to preserve our human resources:
a. By encouraging employers and employees in their effort to reduce the number of occupational safety and health hazards at the place of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;
b. By providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;
c. By authorizing the Commissioner Employment
Safety and Security Commission to develop occupational safety and health
standards applicable to business giving consideration to the needs of employers
and employees and to adopt standards promulgated from time to time by the Secretary
of Labor under the Occupational Safety and Health Act of 1970, and by creating
a safety and health review commission for carrying out adjudicatory functions
under this Article;
d. By building upon advances already made through employer and employee initiative for providing safe and healthful working conditions;
e. By providing occupational health criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience;
f. By providing for training programs to increase the number and competence of personnel engaged in the field of occupational safety and health;
g. By providing an effective enforcement program which shall include a prohibition against giving advance notice of an inspection and sanctions for any individual violating this prohibition;
h. By providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Article and accurately describe the nature of the occupational safety and health problem;
i. By encouraging joint employer‑employee efforts to reduce injuries and diseases arising out of employment;
j. By providing for research in the field of occupational safety and health, by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems;
k. By exploring ways to discover latent diseases, establishing causal connections between diseases and work in environmental conditions, and conducting other research relating to health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occupational safety;
l. By authorizing the Commissioner Employment
Safety and Security Commission to enter into contracts with the Department
of Health and Human Services, or any other State or local units, to the end the
Commissioner and the Department of Health and Human Services and other State or
local units may fully cooperate and carry out the ends and purposes of this
Article.
m. The General Assembly of North Carolina appoints and
elects the North Carolina Department of Labor Employment Safety and
Security Commission as the designated agency to administer the Occupational
Safety and Health Act of North Carolina."
SECTION 4. G.S. 95‑127 reads as rewritten:
"§ 95‑127. Definitions.
In this Article, unless the context otherwise requires:
(1) The term "Advisory Council" shall mean the Advisory Council or body established under this Article.
(2) The term "Commission" means the North Carolina Occupational Safety and Health Review Commission established under this Article.
(3) The term "classified service" means a position included in the State Merit System of Personnel Administration subject to the laws, rules and regulations of the State Personnel Board as administered by the State Personnel Director and as set forth in Chapter 126 of the General Statutes.
(4) The term "Commissioner" means the Commissioner
of Labor of North Carolina.Chief Deputy Commissioner of the Employment
Safety and Security Commission.
(5) The term "days" shall mean a calendar day unless otherwise noted.
(6) The term "Department" means the
Department of Labor of North Carolina.
(7) The term "Chief Deputy Commissioner"
means the Chief Deputy Commissioner of the North Carolina Department
of Labor, who is appointed by the Commissioner to aid and assist the
Commissioner in the performance of his duties. Employment Safety and
Security Commission. The Chief Deputy Commissioner shall exercise such
the power and authority as delegated to him the Chief
Deputy Commissioner by the Commissioner.Employment Safety and
Security Commission.
(8) The term "Director" means the officer or
agent appointed by the Commissioner of Labor Chief Deputy
Commissioner of the Employment Safety and Security Commission for the
purpose of assisting in the administration of the Occupational Safety and
Health Act of North Carolina.
(9) The term "employee" means an employee of an employer who is employed in a business or other capacity of his employer, including any and all business units and agencies owned and/or controlled by the employer.
(10) The term "employer" means a person engaged in a business who has employees, including any state or political subdivision of a state, but does not include the employment of domestic workers employed in the place of residence of his or her employer.
(11) The term "established federal standard" means any operative occupational safety and health standard established by any agency of the United States and presently in effect, or contained in any act of Congress in force on the date of enactment of this Article, and adopted by the Secretary of Labor under the Occupational Safety and Health Act of 1970.
(12) The term "federal act," as referred to in this Article, means the Occupational Safety and Health Act of 1970 (Public Law 91‑596, 91st Congress, Act of December 29, 1970, 84 Stat. 1950).
(13) The term "imminent danger" means any conditions or practices in any place of employment which are such that a danger exists which could reasonably be expected to cause death, or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Article.
(14) The term "issue" means an industrial, occupational or hazard grouping.
(15) The term "occupational safety and health standards" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, safety devices, operations or processes reasonably necessary and appropriate to provide safe and healthful employment and places of employment, and shall include all occupational safety and health standards adopted and promulgated by the Secretary which also may be and are adopted by the State of North Carolina under the provisions of this Article. This term includes but is not limited to interim federal standards, consensus standards, any proprietary standards or permanent standards, as well as temporary emergency standards which may be adopted by the Secretary, promulgated as provided by the Occupational Safety and Health Act of 1970, and which standards or regulations are published in the Code of Federal Regulations or otherwise properly promulgated under the federal act or any appropriate federal agencies.
(16) The term "person" means one or more individuals, partnerships, associations, corporations, business trusts, legal representatives.
(17) The term "Secretary" means the United States Secretary of Labor.
(18) A "serious violation" shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use at such place of employment, unless the employer did not know, and could not, with the exercise of reasonable diligence, know of the presence of the violation.
(19) The term "State" means the State of North Carolina."
SECTION 5. G.S. 95‑129(3) reads as rewritten:
"(3) Each employer shall refrain from any
unreasonable restraint on the right of the Commissioner Employment
Safety and Security Commission or Director, or their lawfully appointed
agents, to inspect the employer's place of business. Each employer shall assist
the Commissioner, Employment Safety and Security Commission, the
Director or the lawful agents of either or both of them, in the performance of
their inspection duties by supplying or by making available information, any
necessary personnel or necessary inspection aides;".
SECTION 6. G.S. 95‑131 reads as rewritten:
"§ 95‑131. Development and promulgation of standards; adoption of federal standards and regulations.
(a) All occupational safety and health standards
promulgated under the federal act by the Secretary, and any modifications,
revision, amendments or revocations in accordance with the authority conferred
by the federal act or any other federal act or agency relating to safety and
health and adopted by the Secretary, shall be adopted as the rules of the Commissioner
of this State Employment Safety and Security Commission unless the
Commissioner that Commission decides to adopt an alternative State
rule as effective as the federal requirement and providing safe and healthful
employment in places of employment as required by the federal act and standards
and regulations heretofore referred to and as provided by the Occupational
Safety and Health Act of 1970. Chapter 150B of the General Statutes governs the
adoption of rules by the Commissioner.
(b), (c) Repealed by Session Laws 1991, c. 418, s. 8.
(d) Rules adopted under this section shall provide
insofar as possible the highest degree of safety and health protection for employees;
other considerations shall be the latest available scientific data in the
field, the feasibility of the standard, and experience gained under this and
other health and safety laws. Whenever practical the standards established in a
rule shall be expressed in terms of objective criteria and of the performance
desired. In establishing standards dealing with toxic materials or harmful
physical agents, the Commissioner, Employment Safety and Security
Commission, after consultation and recommendations of the Department of
Health and Human Services, shall set a standard which most adequately assures,
to the extent possible, on the basis of the most available evidence that no
employee will suffer material impairment of health or functional capacity even
if such the employee has regular exposure to the hazard dealt
with by such standard for the period of his the employee's working
life.
(e) The Commissioner Employment Safety and
Security Commission may not adopt State standards, for products distributed
or used in interstate commerce, which are different from federal standards for
such products unless the adoption of such State standard, or standards, is
required by compelling local conditions and does not unduly burden interstate
commerce.
(f) Repealed by Session Laws 1991, c. 418, s. 8.
(g) Any rule, regulation, scope, or standard for agricultural employers adopted or promulgated prior to July 12, 1988, that differs from the federal rule, regulation, scope, or standard is repealed effective September 1, 1989, unless readopted pursuant to Chapter 150B of the General Statutes."
SECTION 7. G.S. 95‑132 reads as rewritten:
"§ 95‑132. Variances.
(a) Temporary Variances. –
(1) The Commissioner Employment Safety and
Security Commission may upon written application by an employer issue an
order granting such employer a temporary variance from standards adopted by
this Article or promulgated by the Commissioner Employment Safety and
Security Commission under this Article. Any such order shall prescribe the
practices, means, methods, operations and processes which the employer must
adopt or use while the variance is in effect and state in detail a program for
coming into compliance with the standard.
(2) An application for a temporary variance shall contain all information required as enumerated in 29 C.F.R. 1905.10(b) which is hereby incorporated by reference, as if herein fully set out.
(3) Upon receipt of an application for an order
granting a temporary variance, the Commissioner to whom such application is
addressed a Employment Safety and Security Commission may issue an
interim order granting such the temporary variance, for the
purpose of permitting time for an orderly consideration of such the application.
No such interim order may be effective for longer than 180 days.
(4) Such a A temporary variance may be
granted only after notice to employees and interested parties and opportunity
for hearing. The temporary variance may be for a period of no longer than
required to achieve compliance or one year, whichever is shorter, and may be
renewed only once. Application for renewal of a variance must be filed in
accordance with provisions in the initial grant of the temporary variance.
(5) An order granting a temporary variance shall be
issued only if the employer establishesestablishes:
a. (i) That he the employer is unable to
comply with the standard by the effective date because of unavailability of
professional or technical personnel or materials and equipment required or
necessary construction or alteration of facilities or technology, (ii) that all
available steps have been taken to safeguard his employees against the
hazards covered by the standard, and (iii) that he the employer has
an effective program for coming into compliance with the standard as quickly as
practicable, or
b. That he the employer is engaged in an
experimental program as described in subsection (c) of this section as
hereinafter stated.
(b) Permanent Variances. –
(1) Any affected employer may apply to the Commissioner
Employment Safety and Security Commission for a rule or order for a
permanent variance from a standard promulgated under this section. Affected
employees shall be given notice of each such application and an opportunity to
participate in a hearing. The Commissioner Employment Safety and
Security Commission shall issue such rule or order if he it determines
on the record, after opportunity for an inspection where appropriate and a
hearing, that the proponent of the variance has demonstrated by a preponderance
of the evidence that the conditions, practices, means, methods, operations, or
processes used or proposed to be used by an employer will provide employment
and places of employment to his employees which are as safe and healthful as
those which would prevail if he complied with the standard.
(2) The rule or order so issued shall prescribe the conditions the employer must maintain, and the practices, means, methods, operations, and processes which he must adopt and utilize to the extent they differ from the standard in question.
(3) Such a The rule or order may be
modified or revoked upon application by an employer, employees, or by the Commissioner
Employment Safety and Security Commission on his its own
motion, in the manner prescribed for its issuance under this subsection at any
time after six months from its issuance.
(c) Experimental Variances. – The Commissioner is
authorized to Employment Safety and Security Commission may grant a
variance from any standard or portion thereof whenever he it determines
that such the variance is necessary to permit an employer to
participate in an experiment approved by him the Employment Safety
and Security Commission designed to demonstrate or validate new and
improved techniques to safeguard the health or safety of workers."
SECTION 8. G.S. 95‑133 reads as rewritten:
"§ 95‑133. Office of Director of Occupational Safety and Health; powers and duties of the Director.
(a) There is hereby created and established in the North
Carolina Department of Labor Employment Safety and Security Commission a
division to be known as the Occupational Safety and Health Division. The Chief
Deputy Commissioner shall appoint a Director to administer this division
who shall be subject to the direction and supervision of the Chief Deputy Commissioner.
The Director shall carry out the responsibilities of the State of North
Carolina as prescribed under the Occupational Safety and Health Act of 1970,
and any subsequent federal laws or regulations relating to occupational safety
and health, and this Article, as written, revised or amended by legislative
enactment and as delegated or authorized by the Commissioner. Employment
Safety and Security Commission. The Commissioner Employment
Safety and Security Commission shall make and promulgate such adopt
rules, amendments, or revisions in rules, as he it may deem
advisable for the administration of the office, he it shall also
accept and use the services, facilities, and personnel of any agency of the
State or of any subdivision of State government, either as a free service or by
reimbursement. The Director shall devote full time to his the duties
of that office and shall not hold any other office. The Director,
subject to the approval of the Chief Deputy Commissioner, shall select a
professional staff of qualified and competent employees to assist in the
statewide administration of the Article. All of the employees referred to
herein shall be under the classified service, as herein defined in G.S. 95‑127,
subdivision (3).
(b) Subject to the general supervision of the Commissioner
Employment Safety and Security Commission and the Chief Deputy
Commissioner, the Director shall be responsible for the administration and
enforcement of all laws, rules and regulations which it is the duty of the
Division to administer and enforce. The Director shall have the power,
jurisdiction and authority to:
(1) Uniformly superintend, enforce and administer applicable occupational safety and health laws of the State of North Carolina;
(2) Make or cause to be made all necessary inspections, analyses and research for the purpose of seeing that all laws and rules and regulations which the office has the duty, power and authority to enforce are promptly and effectively carried out;
(3) Make all necessary investigations, develop information and reports upon conditions of employee safety and health, and upon all matters relating to the enforcement of this Article and all lawful regulations issued thereunder;
(4) Report to the Federal Occupational Safety and Health Administration any information which it may require;
(5) Recommend to the Commissioner such Employment
Safety and Security Commission rules, regulations, standards, or changes in
rules, regulations and standards which the Director deems advisable for the
prevention of accidents, occupational hazards or the prevention of industrial
or occupational diseases;
(6) Recommend to the Commissioner Employment
Safety and Security Commission that he it institute
proceedings to remove from his or her positionterminate from
employment any employee of the Office who accepts any favor, privilege,
money, object of value, or property of any kind whatsoever or who shall give
prior notice of a compliance inspection of a work place unless authorized under
the provisions of this Article;
(7) Employ experts, consultants or organizations for
work related to the occupational safety and health program of the Division and
compensate same with the approval of the Commissioner;Employment
Safety and Security Commission;
(8) Institute hearings, investigations, request the issuance of citations and propose such penalties as he may in his judgment consider necessary to carry out the provisions of this Article;
(9) The Commissioner Employment Safety and
Security Commission shall have the power and authority to issue all types
of notices, citations, cease and desist orders, or any other pleading, form or
notice necessary to enforce compliance with this Article as hereinafter set
forth. The Commissioner is also empowered and authorized toEmployment
Safety and Security Commission may apply to the courts of the State having
jurisdiction for orders or injunctions restraining unlawful acts and practices
prohibited by this Article or not in compliance with this Article and to apply
for mandatory injunctions to compel enforcement of the Article, and the
Commissioner is authorized, and further authorized by and through his agents,
to institute criminal actions or proceedings for such violations of the Article
as are subject to criminal penalties. The Director shall recommend to the Commissioner
Employment Safety and Security Commission the imposition and amount
of civil penalties provided by this Article, and the Commissioner Employment
Safety and Security Commission may institute such proceedings as
necessary for the enforcement and payment of such civil penalties
subject to such review of the Commission as hereinafter set forth.
(10) The Director may recommend to the Commissioner Employment
Safety and Security Commission that any person, firm, corporation or
witness be cited for contempt or for punishment as of contempt, and the Commissioner
is authorized to Employment Safety and Security Commission may enter
any order of contempt or as of contempt as he it may deem proper
and necessary, and any hearing examiner may recommend to the Commissioner Employment
Safety and Security Commission that such order or citation for contempt be
made.
(11) The Chief Deputy Commissioner or the
Director, or their authorized agents, shall have the power and authority to
issue subpoenas for witnesses and for the production of any and all papers and
documents necessary for any hearing or other proceeding and to require the same
to be served by the process officers of the State. The Chief Deputy Commissioner
and the Director may administer any and all oaths that are necessary in the
enforcement of this Article and may certify as to the authenticity of all
records, papers, documents and transcripts under the seal of the Department
of Labor.Employment Safety and Security Commission.
(12) All orders, citations, cease and desist orders, stop orders, sanctions and contempt orders, civil penalties and the proceedings thereon shall be subject to review by the Commission as hereinafter provided, including all assessments for civil penalties."
SECTION 9. G.S. 95‑134 reads as rewritten:
"§ 95‑134. Advisory Council.
(a) There is hereby established a State Advisory Council on
Occupational Safety and Health consisting of 11 members, appointed by the Commissioner,
Employment Safety and Security Commission, composed of three
representatives from management, three representatives from labor, four
representatives of the public sector with knowledge of occupational safety and
occupational health professions and one representative of the public sector
with knowledge of migrant labor. The Commissioner Employment Safety
and Security Commission shall designate one of the members from the public
sector as chairman and all members of the State Advisory Council shall be
selected insofar as possible upon the basis of their experience and competence
in the field of occupational safety and health.
(b) The Council shall advise, consult with, and make
recommendations to the Commissioner Employment Safety and Security
Commission on matters relating to the administration of this Article. The
Council shall hold no fewer than two meetings during each calendar year. All
meetings of the Advisory Council shall be open to the public and a transcript
shall be kept and made available for public inspection.
(c) The Director shall furnish to the Advisory Council such
secretarial, clerical and other services as he the Director deems
necessary to conduct the business of the Advisory Council. The members of the
Advisory Council shall be compensated for reasonable expenses incurred,
including necessary time spent in traveling to and from their place of
residence within the State to the place of meeting, and mileage and subsistence
as allowed to State officials. The members of the Advisory Council shall be
compensated in accordance with Chapter 138 of the General Statutes.
(d) In addition to its other duties, the Advisory Council
shall assist the Commissioner Employment Safety and Security
Commission in formulating and setting standards under the provisions of
this Article. For this purpose the Commissioner Employment Safety and
Security Commission may appoint persons qualified by experience and
affiliation to present the viewpoint of the employers involved, persons
similarly qualified to present the viewpoint of the workers involved, and some
persons to represent the health and safety agencies of the State. The
Commissioner for this purpose may include representatives or professional
organizations of technicians or professionals specializing in occupational
safety or health. Such persons appointed for temporary purposes may be paid
such per diem and expenses of attending meetings as provided in Chapter 138 of
the General Statutes."
SECTION 10. G.S. 95‑135 reads as rewritten:
"§ 95‑135. North Carolina Occupational Safety and Health Review Commission.
(a) The North Carolina Occupational Safety and Health Review Commission is hereby established. The Commission shall be composed of three members from among persons who, by reason of training, education or experience, are qualified to carry out the functions of the Commission under this Article. The Governor shall appoint the members of the Commission and name one of the members as chairman of the Commission. The terms of the members of the Commission shall be six years except that the members of the Commission first taking office shall serve, as designated by the Governor at the time of appointment, one for a term of two years, one for a term of four years, and the member of the Commission designated as chairman shall serve for a term of six years. Any vacancy caused by the death, resignation, or removal of a member prior to the expiration of the term for which he was appointed shall be filled by the Governor for the remainder of the unexpired term. The Governor shall fill all vacancies occurring by reason of the expiration of the term of any members of the Commission.
(a1) The Commission shall report quarterly to the Employment Safety and Security Commission on the status of North Carolina Occupational Safety and Health Act enforcement. The report shall include any recommendations that would enhance the safety of the State's workforce.
(b) The Commission shall hear and issue decisions on appeals entered from citations and abatement periods and from all types of penalties. Appeals from orders of the Director dealing with conditions or practices that constitute imminent danger shall not be stayed by the Commission until after full and adequate hearing. The Commission in the discharge of its duties under this Article is authorized and empowered to administer oaths and affirmations and institute motions, cause the taking of depositions, interrogatories, certify to official acts, and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed necessary as evidence in connection with any appeal or proceeding for review before the Commission.
(c) The Commission shall meet at least once each calendar quarter but it may hold call meetings or hearings upon at least three days' notice to each member by the chairman and at such time and place as the chairman may fix. The chairman shall be responsible on behalf of the Commission for the administrative operations of the Commission and shall appoint such hearing examiners and other employees as he deems necessary to assist in the performance of the Commission's functions and fix the compensation of such employees with the approval of the Governor. The assignment and removal of hearing examiners shall be made by the Commission, and any hearing examiner may be removed for misfeasance, malfeasance, misconduct, immoral conduct, incompetency, the commission of any crime, or for any other good and adequate reason as found by the Commission. The Commission shall give notice to such hearing examiner, along with written allegations as to the charges against him, and the same shall be heard by the Commission, and its decision shall be final. The compensation of the members of the Commission shall be on a per diem basis and shall be fixed by the Governor. The chairman of the Commission may be paid a higher rate of compensation than the other two members of the Commission. For the purpose of carrying out its duties and functions under this Article, two members of the Commission shall constitute a quorum and official action can be taken only on the affirmative vote of at least two members of the Commission. On matters properly before the Commission the chairman may issue temporary orders, subpoenas, and other temporary types of orders subject to the subsequent review of the Commission. The issuance of subpoenas, orders to take depositions, orders requiring interrogatories and other procedural matters of evidence issued by the chairman shall not be subject to review.
(d) Every official act of the Commission shall be entered of record and its hearings and records shall be open to the public. The Commission is authorized and empowered to make such procedural rules as are necessary for the orderly transaction of its proceedings. Unless the Commission adopts a different rule, the proceedings, as nearly as possible, shall be in accordance with the Rules of Civil Procedure, G.S. 1A‑1. The Commission may order testimony to be taken by deposition in any proceeding pending before it at any stage of such proceeding. Any person, firm or corporation, and its agents or officials, may be compelled to appear and testify and produce like documentary evidence before the Commission. Witnesses whose depositions are taken under this section, and the persons taking such depositions, shall be entitled to the same fees as are paid for like services in the courts of the State.
(e) The rules of procedure prescribed or adopted by the Commission shall provide affected employees or representatives of affected employees an opportunity to participate as parties to hearings under this section.
(f) Any member of the Commission may be removed by the Governor for inefficiency, neglect of duty, or any misfeasance or malfeasance in office. Before such removal the Governor shall give notice of hearing and state the allegations against the member of the Commission, and the same shall be heard by the Governor, and his decision shall be final. The principal office of the Commission shall be in Raleigh, North Carolina, but whenever it deems that the convenience of the public or of the parties may be promoted, or delay or expense may be minimized, the Commission may hold hearings or conduct other proceedings at any place in the State.
(g) In case of a contumacy, failure or refusal of any person to testify before the Commission, give any type of evidence, or to produce any books, records, papers, correspondence, memoranda or other records, such person upon such failure to obey the orders of the Commission may be punished for contempt or any other matter involving contempt as set forth and described by the general laws of the State. The Commission shall issue no order for contempt without first finding the facts involved in the proceeding. Witnesses appearing before the Commission shall be entitled to the same fees as those paid for the services of said witnesses in the courts of the State, and all such fees shall be taxed against the interested parties according to the judgment and discretion of the Commission.
(h) The Director shall consult with the chairman of the Commission with respect to the preparation and presentation to the Commission for adoption of all necessary forms or citations, notices of all kinds, forms of stop orders, all forms and orders imposing penalties and all forms of notices or applications for review by the Commission, and any and all other procedural papers and documents necessary for the administration of the Article as applied to employers and employees and for all procedures and proceedings brought before the Commission for review.
(h1) The Director shall consult with the Chief Deputy Commissioner monthly on the work of the Commission.
(i) A hearing examiner appointed by the chairman of the Commission shall hear, and make a determination upon, any proceeding instituted before the Commission and may hear any motion in connection therewith, assigned to the hearing examiner, and shall make a report of the determination which constitutes the hearing examiner's final disposition of the proceedings. A copy of the report of the hearing examiner shall be furnished to the Director and all interested parties involved in any appeal or any proceeding before the hearing examiner for the hearing examiner's determination. The report of the hearing examiner shall become the final order of the Commission 30 days from the date of the report as determined by the hearing examiner, unless within the 30‑day period any member of the Commission had directed that the report shall be reviewed by the entire Commission as a whole. Upon application for review of any report or determination of a hearing examiner, before the 30‑day period expires, the Commission shall schedule the matter for hearing, on the record, except the Commission may allow the introduction of newly discovered evidence, or in its discretion the taking of further evidence upon any question or issue. All interested parties to the original hearing shall be notified of the date, time and place of the hearing and shall be allowed to appear in person or by attorney at the hearing. Upon review of the report and determination by the hearing examiner the Commission may adopt, modify or vacate the report of the hearing examiner and notify the interested parties. The report of the hearing examiner, and the report, decision, or determination of the Commission upon review shall be in writing and shall include findings of fact, conclusions of law, and the reasons or bases for them, on all the material issues of fact, law, or discretion presented on the record. The report, decision or determination of the Commission upon review shall be final unless further appeal is made to the courts under the provisions of Chapter 150B of the General Statutes, as amended, entitled: "Judicial Review of Decisions of Certain Administrative Agencies."
(j) Repealed by Session Laws 1993, c. 300, s. 1."
SECTION 11. G.S. 95‑136 reads as rewritten:
"§ 95‑136. Inspections.
(a) In order to carry out the purposes of this Article, the Chief Deputy Commissioner or Director, or their duly authorized agents, upon presenting appropriate credentials to the owner, operator, or agent in charge, are authorized:
(1) To enter without delay, and at any reasonable time, any factory, plant, establishment, construction site, or other area, work place or environment where work is being performed by an employee of an employer; and
(2) To inspect and investigate during regular working hours, and at other reasonable times, and within reasonable limits, and in a reasonable manner, any such place of employment and all pertinent conditions, processes, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.
(3) The Chief Deputy Commissioner or Director, or their duly authorized agents, shall reinspect any place of employment where a willful serious violation was found to exist during the previous inspection and a final Order has been entered.
(b) In making his inspections and
investigations under this Article, the Chief Deputy Commissioner may
issue subpoenas to require the attendance and testimony of witnesses and the
production of evidence under oath. Witnesses shall be reimbursed for all travel
and other necessary expenses which shall be claimed and paid in accordance with
the prevailing travel regulations of the State. In case of a failure or refusal
of any person to obey a subpoena under this section, the district judge or
superior court judge of the county in which the inspection or investigation is
conducted shall have jurisdiction upon the application of the Commissioner to
issue an order requiring such person to appear and testify or produce evidence
as the case may require, and any failure to obey such order of the court may be
punished by such court as contempt thereof.
(c) Subject to regulations issued by the Commissioner
Employee Safety and Security Commission, a representative of the
employer and an employee authorized by the employees shall be given an
opportunity to consult with or to accompany the Chief Deputy Commissioner,
Director, or their authorized agents, during the physical inspection of any
work place described under subsection (a) for the purpose of aiding such
inspection. Where there is no authorized employee representative, the Chief
Deputy Commissioner, Director, or their authorized agents, shall consult
with a reasonable number of employees concerning matters of health and safety
in the work place.
(d) (1) Any employees or an employee representative of the employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice of such violation or danger to the Chief Deputy Commissioner or Director. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by employees or the employee representatives of the employees, and a copy shall be provided the employer or his agent no later than at the time of inspection. Upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy of any record published, released or made available pursuant to subsection (e) of this section. If upon receipt of such notification the Chief Deputy Commissioner or Director determines there are reasonable grounds to believe that such violation or danger exists, the Chief Deputy Commissioner or Director or their authorized agents shall promptly make a special investigation in accordance with the provisions of this section as soon as practicable to determine if such violation or danger exists. If the Chief Deputy Commissioner or Director determines there are not reasonable grounds to believe that a violation or danger exists he shall notify the employees or representatives of the employees, in writing, of such determination.
(2) Prior to, during and after any inspection of a work place, any employees or representative of employees employed in such work place may notify the inspecting Chief Deputy Commissioner, Director, or their agents, in writing, of any violation of this Article which they have reason to believe exists in such work place. The Chief Deputy Commissioner shall, by regulation, establish procedures for informal review of any refusal by a representative of the Chief Deputy Commissioner or Director to issue a citation with respect to any such alleged violation and shall furnish the employees or representatives of employees requesting such review a written statement of the reason for the Chief Deputy Commissioner's or Director's final disposition of the case.
(e) The Commissioner Employment Safety and
Security Commission is authorized to compile, analyze, and publish, in
summary or detailed form, all reports or information obtained under this
section. Files and other records relating to investigations and enforcement
proceedings pursuant to this Article shall not be subject to inspection and
examination as authorized by G.S. 132‑6 while such investigations
and proceedings are pending, except that, subject to the provisions of subsection
(e1) of this section, an employer cited under the provisions of this Article is
entitled to receive a copy of the official inspection report which is the basis
for citations received by the employer following the issuance of citations.
(e1) Upon the written request of and at the expense of
the requesting party, official inspection reports of inspections conducted
pursuant to this Article shall be available for release in accordance with the
provisions contained in this subsection and subsection (e) of this section. The
names of witnesses or complainants, and any information within statements taken
from witnesses or complainants during the course of inspections or
investigations conducted pursuant to this Article that would name or otherwise
identify the witnesses or complainants, shall not be released to any employer
or third party and shall be redacted from any copy of the official inspection
report provided to the employer or third party. Witness statements that are in
the handwriting of the witness or complainant shall, upon the request of and at
the expense of the requesting party, be transcribed so that information that
would not name or otherwise identify the witness may be released. A witness or
complainant may, however, sign a written release permitting the Commissioner
Employment Safety and Security Commission to provide information
specified in the release to any persons or entities designated in the release.
Nothing in this section shall be construed to prohibit the use of the name or
statement of a witness or complainant by the Commissioner Employment
Safety and Security Commission in enforcement proceedings or hearings held
pursuant to this Article. The Commissioner Employment Safety and
Security Commission shall make available to the employer 10 days prior to a
scheduled enforcement hearing unredacted copies of: (i) the witness statements
the Commissioner Employment Safety and Security Commission intends
to use at the enforcement hearing, (ii) the statements of witnesses the
Commissioner intends to call to testify, or (iii) the statements of witnesses
whom the Commissioner Employment Safety and Security Commission does
not intend to use that might support an employer's affirmative defense or
otherwise exonerate the employer; provided a written request for the statement
or statements is received by the Commissioner Employment Safety and
Security Commission no later than 12 days prior to the enforcement hearing.
If the request for an unredacted copy of the witness statement or statements is
received less than 12 days before a hearing, the statement or statements shall
be made available as soon as practicable. The Commissioner Employment
Safety and Security Commission may permit the use of names and statements
of witnesses and complainants and information obtained during the course of
inspections or investigations conducted pursuant to this Article by public
officials in the performance of their public duties.
(f) (1) Inspections conducted under this section shall be accomplished without advance notice, subject to the exception in subdivision (2) below this subsection.
(2) The Chief Deputy Commissioner or Director
may authorize the giving to any employer or employee advance notice of an
inspection only when the giving of such notice is essential to the
effectiveness of such inspection, and in keeping with regulations issued by the
Commissioner.Employment Safety and Security Commission.
(g) The Commissioner Employment Safety and
Security Commission shall prescribe such rules and regulations as he may deem
necessary to carry out his responsibilities under this Article, including rules
and regulations dealing with the inspection of an employer's establishment."
SECTION 12. G.S. 95‑136.1 reads as rewritten:
"§ 95‑136.1. Special emphasis inspection program.
(a) As used in this section, a "special emphasis
inspection" is an inspection by the Department'sEmployment
Safety and Security Commission's occupational safety and health division
that is scheduled because of an employer's high frequency of violations of
safety and health laws or because of an employer's high risk or high rate of
work‑related fatalities or work‑related serious injuries or
illnesses.
(b) The Department Employment Safety and
Security Commission shall develop and implement a special emphasis
inspection program that targets for special emphasis inspection employers who:
(1) Have a high rate of serious or willful violations of any standard, rule, order, or other requirement under this Article, or of regulations prescribed pursuant to the Federal Occupational Safety and Health Act of 1970, in a one‑year period;
(2) Have a high rate of work‑related deaths, or a high rate of work‑related serious injuries or illnesses, in a one‑year period; or
(3) Are engaged in a type of industry determined by the
Department Employment Safety and Security Commission to be at
high risk for serious or fatal work‑related injuries or illnesses.
(4) Repealed by Session Laws 1997‑443, s. 17(b).
To identify an employer for a special emphasis inspection,
the Department Employment Safety and Security Commission shall
use the most current data available from its own database and from other
sources, including State departments, divisions, boards, commissions, and other
State entities. The Department Employment Safety and Security
Commission shall ensure that every employer targeted for a special emphasis
inspection is inspected at least one time within the two‑year period
following targeting of the employer by the Department. The Department Employment
Safety and Security Commission shall update its special emphasis inspection
records at least annually.
(c) The Director shall make information about the special emphasis inspection program available prior to the date of implementation of the program.
(d) The Department Employment Safety and
Security Commission shall by March 1, 1995, and annually thereafter, report
to the Joint Legislative Commission on Governmental Operations and the Fiscal
Research Division of the General Assembly on the impact of the special emphasis
inspection program on safety and health compliance and enforcement."
SECTION 13. G.S. 95‑137(b)(1) reads as rewritten:
"(b) Procedure for Enforcement. –
(1) If, after an inspection or investigation, the
Director issues a citation under any provisions of this Article, the Director
shall, within a reasonable time after the termination of such inspection or
investigation, notify the employer by certified mail with return receipt, by
signature confirmation as provided by the U.S. Postal , U.S. Postal
Service by a designated delivery service authorized pursuant to 26 U.S.C. §
7502(f)(2) with delivery receipt, or via hand delivery of any penalty, if any,
the Director has recommended to the Commissioner to be proposed under the
provisions of this Article and that the employer has 15 working days within
which to notify the Director that the employer wishes to:
a. Contest the citation or proposed assessment of penalty; or
b. Request an informal conference.
Following an informal conference,
unless the employer and Department the Employment Safety and Security
Commission have entered into a settlement agreement, the Director shall
send the employer an amended citation or notice of no change. The employer has
15 working days from the receipt of the amended citation or notice of no change
to notify the Director that the employer wishes to contest the citation or
proposed assessment of penalty, whether or not amended. If, within 15 working
days from the receipt of the notice issued by the Director, the employer fails
to notify the Director that the employer requires an informal conference to be
held or intends to contest the citation or proposed assessment of penalty, and
no notice is filed by any employee or representative of employees under the
provisions of this Article within such time, the citation and the assessment as
proposed to the Commissioner Employment Safety and Security
Commission shall be deemed final and not subject to review by any court."
SECTION 14. G.S. 95‑138 reads as rewritten:
"§ 95‑138. Civil penalties.
(a) The Commissioner, Employment Safety and
Security Commission, upon recommendation of the Director, or the North
Carolina Occupational Safety and Health Review Commission in the case of an
appeal, shall have the authority to assess penalties against any employer who
violates the requirements of this Article, or any standard, rule, or order
adopted under this Article, as follows:
(1) A minimum penalty of five thousand dollars ($5,000) to a maximum penalty of seventy thousand dollars ($70,000) may be assessed for each willful or repeat violation.
(2) A penalty of up to seven thousand dollars ($7,000) shall be assessed for each serious violation.
(2a) A penalty of up to seven thousand dollars ($7,000) may be assessed for each violation that is adjudged not to be of a serious nature.
(3) A penalty of up to seven thousand dollars ($7,000) may be assessed against an employer who fails to correct and abate a violation, within the period allowed for its correction and abatement, which period shall not begin to run until the date of the final Order of the Commission in the case of any appeal proceedings in this Article initiated by the employer in good faith and not solely for the delay of avoidance of penalties. The assessment shall be made to apply to each day during which the failure or violation continues.
(4) A penalty of up to seven thousand dollars ($7,000) shall be assessed for violating the posting requirements, as required under the provisions of this Article.
(b) The Commissioner Employment Safety and
Security Commission shall adopt uniform standards that the Commissioner,
it, the Commission, and the hearing examiner shall apply when
determining appropriateness of the penalty. The following factors shall be used
in determining whether a penalty is appropriate:
(1) Size of the business of the employer being charged.
(2) The gravity of the violation.
(3) The good faith of the employer.
(4) The record of previous violations; provided that for purposes of determining repeat violations, only the record within the previous three years is applicable.
The report of the hearing examiner and the report, decision,
or determination of the Commission on appeal shall specify the standards
applied in determining the reduction or affirmation of the penalty assessed by
the Commissioner.Employment Safety and Security Commission.
(c) The clear proceeds of all civil penalties and
interest recovered by the Commissioner, Employment Safety and
Security Commission, together with the costs thereof, shall be remitted to
the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2."
SECTION 15. G.S. 95‑139 reads as rewritten:
"§ 95‑139. Criminal penalties.
Any employer who willfully violates any standard, rule, regulation or order promulgated pursuant to the authority of this Article, and said violation causes the death of any employee, shall be guilty of a Class 2 misdemeanor, which may include a fine of not more than ten thousand dollars ($10,000); except that if the conviction is for a violation committed after a first conviction of such person, the employer shall be guilty of a Class 1 misdemeanor which may include a fine of not more than twenty thousand dollars ($20,000). This section shall not prevent any prosecuting officer of the State of North Carolina from proceeding against such employer on a prosecution charging any degree of willful or culpable homicide. Any person who gives advance notice of any inspection to be conducted under this Article, without authority from the Chief Deputy Commissioner, Director, or any of their agents to whom such authority has been delegated, shall be guilty of a Class 2 misdemeanor. Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or any other document filed or required to be maintained pursuant to this Article, shall be guilty of a Class 2 misdemeanor, which may include a fine of not more than ten thousand dollars ($10,000). Whoever shall commit any kind of assault upon or whoever kills a person engaged in or on account of the performance of investigative, inspection, or law‑enforcement functions shall be subject to prosecution under the general criminal laws of the State and upon such charges as the proper prosecuting officer shall charge or allege."
SECTION 16. G.S. 95‑140 reads as rewritten:
"§ 95‑140. Procedures to counteract imminent dangers.
(a) The superior courts of this State shall have
jurisdiction, upon petition of the Commissioner, Employment Safety
and Security Commission to restrain any conditions or practices in any
place of employment which are such that a danger exists, which could reasonably
be expected to cause death or serious physical harm immediately or before the
imminence of such danger can be eliminated through the enforcement procedures
otherwise provided by this Article. Any order issued under this section may
require such steps to be taken as may be necessary to avoid, correct, or
remove such imminent danger and prohibit the employment or presence of any
individual in locations or under conditions where such imminent danger exists,
except those individuals whose presence is necessary to avoid, correct or
remove such imminent danger or to maintain the capacity of a continuous process
operation to assume normal operations without a complete cessation of
operations, or where a cessation of operations is necessary to permit such to
be accomplished in a safe and orderly manner.
(b) Upon the filing of any such petition the superior court shall, without the necessity of showing an adequate remedy at law, have jurisdiction to grant injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding pursuant to this Article. The proceeding shall be as provided under the statutes and Rules of Civil Procedure of this State except that no temporary restraining order issued without notice shall be effective for a period longer than five days.
(c) Whenever and as soon as an inspector concludes that
conditions or practices described in this section exist in any place of
employment, he the inspector shall inform the affected employees
and employers of the danger and that he or she is recommending to the Commissioner
Employment Safety and Security Commission that relief be sought. If
the Commissioner Employment Safety and Security Commission arbitrarily
or capriciously fails to seek relief under this section, any employee who may
be injured by reason of such failure, or the representative of such employee,
may bring an action against the Commissioner Employment Safety and
Security Commission in the superior court of the district in which the
imminent danger is alleged to exist or the employer has its principal office or
place of business, for a writ of mandamus to compel the Commissioner Employment
Security and Safety Commission to seek such an order for such relief as may
be appropriate."
SECTION 17. G.S. 95‑141 reads as rewritten:
"§ 95‑141. Judicial review.
Any person or party in interest who has exhausted all
administrative remedies available under this Article and who is aggrieved by a
final decision in a contested case is entitled to judicial review in accordance
with Article 4 of Chapter 150B of the General Statutes. The Commissioner Employment
Safety and Security Commission may file in the office of the clerk of the
superior court of the county wherein the person, firm or corporation under
order resides, or, if a corporation is involved, in the county wherein the
corporation maintains its principal place of business, or in the county wherein
the violation occurred, a certified copy of a final order of the Commissioner
Employment Safety and Security Commission unappealed from, or of a
final order of the Commissioner Employment Safety and Security
Commission affirmed upon appeal. Whereupon, the clerk of said court shall
enter judgment in accordance therewith and notify the parties. Such judgment
shall have the same effect, and all proceedings in relation thereto shall
thereafter be the same, as though said judgment had been rendered in a suit
duly heard and determined by the superior court of the General Court of
Justice."
SECTION 18. G.S. 95‑142 reads as rewritten:
"§ 95‑142.
Legal representation of the Department of Labor.Employment Safety and
Security Commission.
It shall be the duty of the Attorney General to represent the
Department of Labor Employment Safety and Security Commission or
designate some member of his or her staff to represent them it
in all actions or proceedings in connection with this Article."
SECTION 19. G.S. 95‑143 reads as rewritten:
"§ 95‑143. Record keeping and reporting.
(a) Each employer shall make available to the Commissioner,
Employment Safety and Security Commission, or his its agents,
in such manner as the Commissioner Employment Safety and Security
Commission shall require, copies of the same records and reports regarding his
the employer's activities relating to this Article as are required
to be made, kept, or preserved by section 8(c) of the Federal Occupational
Safety and Health Act of 1970 (P.L. 91‑596) and regulations made pursuant
thereto.
(b) Each employer shall make, keep and preserve and
make available to the Commissioner Employment Safety and Security
Commission such records regarding his the employer's activities
relating to this Article as the Commissioner Employment Safety and
Security Commission may prescribe by regulation as necessary and
appropriate for the enforcement of this Article or for developing information
regarding the causes and prevention of occupational accidents and illnesses. In
order to carry out the provisions of this section such regulations may include
provisions requiring employers to conduct periodic inspections. The Commissioner
Employment Safety and Security Commission shall also issue
regulations requiring that employers, through posting of notices or other
appropriate means, keep the employees informed of their protections and
obligations under this Article, including the provisions of applicable
standards. The Commissioner Employment Safety and Security Commission
shall prescribe regulations requiring employers to maintain accurate
records of, and to make reports at least annually on, work‑related
deaths, injuries and illnesses other than minor injuries requiring only first‑aid
treatment and which do not involve medical treatment, loss of consciousness,
restriction of work or motion, or transfer to another job.
(c) The Commissioner Employment Safety and
Security Commission shall issue regulations requiring employers to maintain
accurate records of employee exposure to potentially toxic materials of or
harmful physical agents which are required to be monitored or measured under
this Article. Such regulations shall provide employees or their representatives
with an opportunity to observe such monitoring or measuring, and to have access
to the records thereof. Such regulations shall also make appropriate provisions
for each employee or former employee to have access to such records as will
indicate his the employee's own exposure to toxic materials or
harmful physical agents. Each employer shall promptly notify any employee who
has been or is being exposed to toxic materials or harmful physical agents in
concentrations or at levels which exceed those prescribed by an applicable
safety and health standard promulgated under this Article and shall inform any
employee who is being thus exposed of the corrective action being taken.
(d) Any information obtained by the Commissioner Employment
Safety and Security Commission or his its duly authorized
agents under this Article shall be obtained with a minimum burden upon
employers, especially those operating small businesses. Unnecessary duplication
of efforts in obtaining information shall be reduced to the maximum extent
feasible."
SECTION 20. G.S. 95‑144 reads as rewritten:
"§ 95‑144. Statistics.
(a) In order to further the purposes of this Article,
the Commissioner Employment Safety and Security Commission shall
develop and maintain an effective program of collection, compilation, and
analysis of occupational safety and health statistics. The Commissioner Employment
Safety and Security Commission shall compile accurate statistics on work
injuries and illnesses which shall include all disabling, serious or
significant injuries or illnesses, whether or not involving loss of time from
work, other than minor injuries requiring only first‑aid treatment and
which do not involve medical treatment, loss of consciousness, restriction of
work or motion, or transfer to another job. On the basis of records made and
kept pursuant to the provisions of this Article, employers shall file such reports
with the Commissioner Employment Safety and Security Commission as
he it shall prescribe by regulations and as may be necessary to
carry out his or her functions.
(b) A listing of employment by area and industry of
employers who have an assigned account number by the Employment Security
Commission shall be supplied annually to the Commissioner by the Employment
Security Commission of this State. The listing of employment by area and
industry shall contain at least the following: employer name; Employment
Security Commission account number; indication of whether multiple or a single
report unit; number of reporting units; average employment; establishment size
code; geographical area; any four‑digit code; and any other information
deemed necessary by the Commissioner to meet federal reporting requirements.Beginning
January 1, 2010, and annually thereafter, the Employment Safety and Security
Commission shall submit annually a report of its occupational safety and health
statistics to the Governor, to the General Assembly, and to the Fiscal Research
Division."
SECTION 21. G.S. 95‑145 reads as rewritten:
"§ 95‑145. Reports to the Secretary.
(a) The Commissioner Employment Safety and
Security Commission shall require employers in the State to make reports to
the Secretary in the same manner and to the same extent as if the plan in force
under this Article were not in effect, and
(b) The Commissioner Employment Safety and
Security Commission shall make such reports to the Secretary in such form
and containing such information as the Secretary from time to time shall
require."
SECTION 22. G.S. 95‑146 reads as rewritten:
"§ 95‑146. Continuation and effectiveness of this Article.
The Commissioner Employment Safety and Security
Commission shall from time to time furnish to the Secretary information and
assurances that this Article is being administered by adequate methods and by
standards and enforcement procedures which are and will continue to be as
effective as federal standards."
SECTION 23. G.S. 95‑147 reads as rewritten:
"§ 95‑147. Training and employee education.
(a) The Commissioner, Employment Safety and
Security Commission, after consultation with appropriate departments and
agencies of the State and subdivisions of government, shall conduct, directly
or by grants or contracts, (i) education programs to provide an adequate supply
of qualified personnel to carry out the purposes of this Article, and (ii)
informational, educational and training programs on the importance of and
proper use of adequate safety and health equipment to encourage voluntary
compliance.
(b) The Commissioner is also authorized to Employment
Safety and Security Commission may conduct, directly or by grants or
contracts, short‑term training of personnel engaged in work related to the
Commissioner's its responsibilities under this Article.
(c) The Commissioner Employment Safety and
Security Commission shall provide employers and employees programs covering
recognition, avoidance and prevention of unsafe and unhealthful working conditions
in places of employment and shall advise employers and employees, or their
representatives, of effective means to prevent occupational injuries and
illnesses."
SECTION 24. G.S. 95‑148 reads as rewritten:
"§ 95‑148. Safety and health programs of State agencies and local governments.
It shall be the responsibility of each administrative department, commission, board, division or other agency of the State and of counties, cities, towns and subdivisions of government to establish and maintain an effective and comprehensive occupational safety and health program which is consistent with the standards and regulations promulgated under this Article. The head of each agency shall:
(1) Provide safe and healthful places and conditions of employment, consistent with the standards and regulations promulgated by this Article;
(2) Acquire, maintain, and require the use of safety equipment, personal protective equipment, and devices reasonably necessary to protect employees;
(3) Consult with and encourage employees to cooperate in achieving safe and healthful working conditions;
(4) Keep adequate records of all occupational accidents and illnesses for proper evaluation and corrective action;
(5) Consult with the Chief Deputy Commissioner as to the adequacy as to form and content of records kept pursuant to this section;
(6) Make an annual report to the Commissioner Employment
Safety and Security Commission with respect to occupational accidents and
injuries and the agency's program under this section.
The Commissioner Employment Safety and Security
Commission shall transmit annually to the Governor and the General Assembly
a report of the activities of the State agency and instrumentalities under this
section. If the Chief Deputy Commissioner has reason to believe that any
local government program or program of any agency of the State is ineffective,
he or she shall, after unsuccessfully seeking by negotiations to abate
such failure, include this in his the Employment Safety and Security
Commission's annual report to the Governor and the General Assembly,
together with the reasons therefor, and may recommend legislation intended to
correct such condition.
The Commissioner Employment Safety and Security
Commission shall have access to the records and reports kept and filed by
State agencies and instrumentalities pursuant to this section unless such
records and reports are required to be kept secret in the interest of national
defense, in which case the Commissioner shall have access to such information
as will not jeopardize national defense.
Employees of any agency or department covered under this section are afforded the same rights and protections as granted employees in the private sector.
This section shall not apply to volunteer fire departments not a part of any municipality.
Any municipality with a population of 10,000 or less may exclude its fire department from the operation of this section by a resolution of the governing body of the municipality, except that the resolution may not exclude those firefighters who are employees of the municipality.
The North Carolina Fire and Rescue Commission shall recommend regulations and standards for fire departments."
SECTION 25. G.S. 95‑149 reads as rewritten:
"§ 95‑149. Authority to enter into contracts with other State agencies and subdivisions of government.
The Commissioner Employment Safety and Security
Commission may enter into contracts with the Department of Health and Human
Services or any other State officer or State agency or State instrumentality,
or any municipality, county, or other political subdivision of the State, for
the enforcement, administration, and any other application of the provisions of
this Article."
SECTION 26. G.S. 95‑150 reads as rewritten:
"§ 95‑150. Assurance of adequate funds to enforce Article.
The Commissioner Employment Safety and Security
Commission shall submit to the General Assembly a budget and request for
appropriations to adequately administer this Article which shall be sufficient
to give satisfactory assurance that this State will devote adequate funds to
the administration and enforcement of the standards herein provided and the
proper administration of this Article as required by federal standards."
SECTION 27. G.S. 95‑152 reads as rewritten:
"§ 95‑152. Confidentiality of trade secrets.
All information reported to or otherwise obtained by the Commissioner
Employment Safety and Security Commission or his its agents
or representatives in connection with any inspection or proceeding under this
Article which contains or which might reveal a trade secret shall be considered
confidential, as provided by section 1905 of Title 18 of U.S.C., except as to
carrying out this Article or when it is relevant in any proceeding under this
Article. In any such proceeding the Commissioner, the Commission, Employment
Safety and Security Commission, the Chief Deputy Commissioner, or the court
shall issue such orders as may be appropriate to protect the confidentiality of
trade secrets."
SECTION 28. G.S. 95‑154 reads as rewritten:
"§ 95‑154. Authorization for similar safety and health federal‑state programs.
Consistent with the requirements and conditions provided in
this Article the State, upon the recommendation of the Commissioner of Labor
Employment Safety and Security Commission and approval of the
Governor, may enter into agreements or arrangements with other federal agencies
for the purpose of administering occupational safety and health measures for
such employees and employers within the State of North Carolina as may be
covered by such federal safety and health statutes."
PART IV. IDENTIFICATION OF TOXIC OR HAZARDOUS SUBSTANCES
SECTION 29. G.S. 95‑174 reads as rewritten:
(a) 'Chemical manufacturer' shall mean a manufacturing facility classified in Standard Industrial Classification (SIC) Codes 20 through 39 where chemicals are produced for use or distribution in North Carolina.
(b) 'Chemical name' shall mean the scientific designation of a chemical in accordance with the nomenclature system developed by the International Union of Pure and Applied Chemistry (IUPAC), or the Chemical Abstracts Service (CAS) rules of nomenclature or a name which will clearly identify the chemical for the purpose of conducting a hazard evaluation.
(c) 'Common name' shall mean any designation or identification such as a code name, code number, trade name, brand name or generic name used to identify a chemical other than by its chemical name.
(d) 'Distributor' shall mean any business, other than a chemical manufacturer or importer, which supplies hazardous chemicals to other distributors or to purchasers.
(e) 'Employee' shall mean any person who is employed by an employer under normal operating conditions.
(f) 'Employer' means a person engaged in business who has employees, including the State and its political subdivisions but excluding an individual whose only employees are domestic workers or casual laborers who are hired to work at the individual's residence.
(g) 'Facility' shall mean one or more establishments, factories, or buildings located at one contiguous site in North Carolina.
(h) 'Fire Chief' shall mean Fire Chief or Fire Marshall, or Emergency Response Coordinator in the absence of a Fire Chief or Fire Marshall for the appropriate local fire department.
(i) Repealed by Session Laws 1987, c. 489, s. 1.
(j) 'Fire Department' shall mean the fire department having jurisdiction over the facility.
(k) 'Hazardous chemical' shall mean any element,
chemical compound or mixture of elements and/or compounds which is a physical
hazard or health hazard as defined in subsection (c) of the OSHNC Standard or a
hazardous substance as defined in standards adopted by the Occupational Safety
and Health Division of the North Carolina Department of Labor in Title 13,
Chapter 7 of the North Carolina Administrative Code (13 NCAC 7).Employment
Safety and Security Commission and published in the North Carolina
Administrative Code.
(l) 'Hazardous Substance List' shall mean the list required by G.S. 95‑191.
(m) 'Hazardous substance trade secret' means any formula, plan, pattern, device, process, production information, or compilation of information, which is not patented, which is known only to the employer, the employer's licensees, the employer's employees, and certain other individuals, and which is used or developed for use in the employer's business, and which gives the employer possessing it the opportunity to obtain a competitive advantage over businesses who do not possess it, or the secrecy of which is certified by an appropriate official of the federal government as necessary for national defense purposes. The chemical name and Chemical Abstracts Service number of a substance shall be considered a trade secret only if the employer can establish that the identity or composition of the substance cannot be readily ascertained without undue expense by analytical techniques, laboratory procedures, or other lawful means available to a competitor.
(n) 'Label' shall mean any written, printed, or graphic material displayed on or affixed to containers of hazardous chemicals.
(o) 'Manufacturing facility' shall mean a facility classified in SIC Codes 20 through 39 which manufactures or uses a hazardous chemical or chemicals in North Carolina.
(p) 'Material Safety Data Sheets' or 'MSDS' shall mean
chemical information sheets adopted by the Occupational Safety and Health
Division of the North Carolina Department of Labor in Title 13, Chapter 7 of
the North Carolina Administrative Code (13 NCAC 7).Employment Safety and
Security Commission and published in the North Carolina Administrative Code.
(q) 'Nonmanufacturing facility' shall mean any facility in North Carolina other than a facility in SIC Code 20 through 39, the State of North Carolina (and its political subdivisions) and volunteer emergency service organizations whose members may be exposed to chemical hazards during emergency situations.
(r) 'OSHNC Standard' shall mean the current Hazard
Communication Standard adopted by the Occupational Safety and Health Division
of North Carolina Department of Labor in Title 13, Chapter 7 of the North
Carolina Administrative Code (13 NCAC 7).Employment Safety and Security
Commission and published in the North Carolina Administrative Code.
(s) 'Storage and Container' shall have the ordinary meaning however it does not include pipes used in the transfer of substances or the fuel tanks of self propelled internal combustion vehicles."
SECTION 30. G.S. 95‑195 reads as rewritten:
"§ 95‑195. Complaints, investigations, penalties.
(a) Complaints of violations of this Part shall be filed
in writing with the Commissioner of Labor. Employment Safety and
Security Commission. Such complaints Complaints received in
writing from any Fire Chief relating to alleged violations of this Part shall
be investigated in a timely manner by the Commissioner of Labor or his Chief
Deputy Commissioner or that officer's designated representative.
(b) Duly designated representatives of the Commissioner
of Labor, Employment Safety and Security Commission, upon
presentation of appropriate credentials to the employer, shall have the right
of entry into any facility at reasonable times to inspect and investigate
complaints within reasonable limits, and in a reasonable manner. Following the
investigation, the Commissioner Employment Safety and Security
Commission shall make appropriate findings. Either the employer or the
person complaining of a violation may request an administrative hearing
pursuant to Chapter 150B of the General Statutes. This request for an
administrative hearing shall be submitted to the Commissioner of Labor Employment
Safety and Security Commission within 14 days following the Commissioner
making his its findings. The Commissioner Employment
Safety and Security Commission shall within 30 days of receiving the
request hold an administrative hearing in accordance with Article 3 of Chapter
150B of the General Statutes.
(c) If the Commissioner of Labor Employment
Safety and Security Commission finds that the employer violated this
Article, the Commissioner Employment Safety and Security Commission shall
order the employer to comply within 14 days following receipt of written
notification of the violation. Employers not complying within 14 days following
receipt of written notification of a violation shall be subject to civil
penalties of not more than one thousand dollars ($1,000) per violation imposed
by the Commissioner of Labor. Employment Safety and Security
Commission. There shall be a separate offense for each day the violation
continues. The clear proceeds of civil penalties provided for in this section
shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2.
(d) Any order by the Commissioner Employment
Safety and Security Commission under subsection (b) or (c) of this section
shall be subject to judicial review as provided under Article 4 of Chapter 150B
of the General Statutes."
SECTION 31. G.S. 95‑196 reads as rewritten:
"§ 95‑196. Employee rights.
No employer shall discharge, or cause to be discharged, or
otherwise discipline or in any manner discriminate against an employee at the
facility because the employee has assisted the Commissioner of Labor Employment
Safety and Security Commission or his its representative or
the Fire Chief or his or her representative who may make or is making an
inspection under G.S. 95‑194(c) or G.S. 95‑195(b), or has
testified or is about to testify in any proceeding under this Article, or has
used the provisions of G.S. 95‑208."
SECTION 32. G.S. 95‑197 reads as rewritten:
"§ 95‑197. Withholding hazardous substance trade secret information.
(a) An employer who believes that all or any part of the information required under G.S. 95‑191, 95‑192, 95‑194(b) or 95‑194(d) is a hazardous substance trade secret may withhold the information, provided that (i) hazard information on chemicals the identity of which is claimed as a hazardous substance trade secret is provided to the Fire Chief who shall hold it in confidence and (ii) the employer claims that the information is a hazardous substance trade secret.
(b) Any person in North Carolina may request in
writing that the Commissioner of Labor Employment Safety and Security
Commission review in camera an employer's hazardous substance trade secret
claim. If the Commissioner of Labor Employment Safety and Security
Commission finds that the claim is other than completely valid, this
finding shall be appealable under subsection (d) of this section. If the Commissioner
of Labor Employment Safety and Security Commission finds that the
claim is valid, he it shall then determine whether the
nonconfidential information is sufficient for the Fire Chief to fulfill the
responsibilities of his that office. If the Commissioner of
Labor Employment Safety and Security Commission finds that the
information is not sufficient, he or she shall direct the employer to
supplement the information with such other information as will provide the Fire
Chief with sufficient information to fulfill the responsibilities of his
office, but this finding shall be appealable under subsection (d) of this
section.
(c) The Commissioner of Labor Employment
Safety and Security Commission and the Fire Chief shall protect from
disclosure any or all information coming into either or both of their
possession when such information is marked by the employer as confidential, and
they shall return all information so marked to the employer at the conclusion
of their determination by the Commissioner of Labor.Employment Safety
and Security Commission. Any person who has access to any hazardous
substance trade secret solely pursuant to this section and who discloses it
knowing it to be a hazardous substance trade secret to any person not
authorized to receive it shall be guilty of a Class I felony, and if knowingly
or negligently disclosed to any person not authorized, shall be subject to
civil action for damages and injunction by the owner of the hazardous substance
trade secret, including, without limitation, actions under Article 24 of
Chapter 66 of the General Statutes.
(d) The employer, Fire Chief, or person making the
original request who is an aggrieved party shall have 30 days after receipt of
notification by the Commissioner Employment Safety and Security
Commission of his its findings under subsection (b) to
request an administrative hearing on the determination. Any such hearing shall
be held in a manner similar to that provided for in G.S. Chapter 150B,
Article 3 and the decision upon the request of any aggrieved party shall be
subject to the judicial review provided for by G.S. Chapter 150B, Article
4, provided that these administrative and judicial hearings shall be conducted in
camera to assure the confidentiality of the information being reviewed."
SECTION 33. G.S. 95‑198 reads as rewritten:
"§ 95‑198. Medical emergency and nonemergency situations.
(a) Where a treating health care provider determines that a medical emergency exists and the specific chemical identity of a hazardous chemical is necessary for emergency or first‑aid treatment, the chemical manufacturer, importer, or employer shall immediately disclose the specific chemical identity of a hazardous substance trade secret substance to that treating physician or nurse, regardless of the existence of written statement of need or a confidentiality agreement. The chemical manufacturer, importer, or employer may require a written statement of need and a confidentiality agreement as soon as circumstances permit. The confidentiality agreement (i) may restrict the use of the information to the health purposes indicated in a written statement of need; (ii) may provide for appropriate legal remedies in the event of a breach of the agreement, including stipulation of a reasonable pre‑estimate of likely damages; and (iii) may not include requirements for the posting of a penalty bond. The parties are not precluded from pursuing noncontractual remedies to the extent permitted by law.
(b) In nonemergency situations, a chemical manufacturer, importer, or employer shall, upon request, disclose a specific chemical identity, otherwise permitted to be withheld under this section, to a responsible party, as defined in the standards adopted in Title 13, Subchapter 7F of the North Carolina Administrative Code (13 NCAC 7F), or other rules subsequently adopted by the Employment Safety and Security Commission, providing medical or other occupational health services to exposed persons if the request is in writing and states the medical need for the information. The employer may require that the responsible party sign a confidentiality agreement prior to release of the information. The parties are not precluded from pursuing noncontractual remedies to the extent permitted by law.
(c) If the chemical manufacturer, importer or employer
denies a written request for hazardous substance trade secret release, or does
not provide this information within 30 days, the Department of Labor Employment
Safety and Security Commission shall initiate the trade secret claim
determination process under G.S. 95‑197."
SECTION 34. G.S. 95‑208 reads as rewritten:
"§ 95‑208. Community information on hazardous chemicals.
(a) Any person in North Carolina may request in writing from the employer a list of chemicals used or stored at the facility. The request shall include the name and address of the person making the request and a statement of the purpose for the request. If the person is requesting the list on behalf of or for the use of an organization, partnership, or corporation, he shall also disclose the name and business address of such organization, partnership, or corporation. The request may include, at the option of the employer, a statement to the effect that the information will be used only for the purpose stated. The employer shall furnish to the person making the request a list containing, at a minimum, all chemicals included on the Hazardous Substance List, the class of each chemical as defined in G.S. 95‑191(a)(2), and an MSDS for each chemical for which an MSDS is available and is requested. Whenever an employer has withheld a chemical under the provisions of G.S. 95‑197 from the information provided under G.S. 95‑208, the employer must state that the information is being withheld and, upon request, must provide the MSDS for the chemical. Additional information may be furnished to the person making the request at the option of the employer. The employer shall provide, at a fee not to exceed the cost of reproducing the materials, the materials requested within 10 working days of the date the employer receives the written request for information.
(b) If the employer fails or refuses to provide the
information required under subsection (a) of this section, the person
requesting the information may request in writing that the Commissioner of
Labor Employment Safety and Security Commission review the request.
The Commissioner of Labor may conduct an investigation in the same manner as
provided in G.S. 95‑195(b). Following the investigation, the Commissioner
Employment Safety and Security Commission shall make appropriate
findings. Either the employer or the person making the initial request may
request an administrative hearing pursuant to Chapter 150B of the General
Statutes. This request for an administrative hearing shall be submitted to the Commissioner
of Labor Employment Safety and Security Commission within 30 days
following the Commissioner making his findings. The Commissioner of Labor Employment
Safety and Security Commission shall within 30 days of receiving the
request hold an administrative hearing to consider the request for information
under subsection (a) of this section. This hearing shall be held as provided
for in G.S. Chapter 150B, Article 3. If the Commissioner of Labor Employment
Safety and Security Commission finds that the request complies with the
requirements of subsection (a) of this section, the Commissioner of Labor Employment
Safety and Security Commission shall direct that the employer provide to
the person making the request a list containing, at a minimum, all chemicals
used or stored at the facility included on the Hazardous Substance List, the
class of each chemical as defined in G.S. 95‑191(a)(2), and an MSDS
for each chemical for which an MSDS is available and is requested and may in
his discretion assess civil penalties as provided in G.S. 95‑195(c);
provided that it shall be a defense to such disclosure if the employer proves
that the information has been requested directly or indirectly by, or in behalf
of, a competitor of the employer, or that such information is a Hazardous
Substance Trade Secret, or that the request did not comply with the
requirements of subsection (a) of this section.
(c) Any order by the Commissioner of Labor under subsection (b) of this section shall be subject to judicial review as provided under G.S. Chapter 150B, Article 4."
PART V. SAFETY AND HEALTH PROGRAMS AND COMMITTEES
SECTION 35. G.S. 95‑251 reads as rewritten:
"§ 95‑251. Safety and health programs.
(a) Establishment of safety and health programs.
(1) Except as provided in subdivision (2) of this subsection, each employer with an experience rate modifier of 1.5 or greater shall, in accordance with this section, establish and carry out a safety and health program to reduce or eliminate hazards and to prevent injuries and illnesses to employees.
(2) Employers with an experience rate modifier of 1.5 or greater which provide temporary help services shall, in accordance with this section, establish and implement a safety and health program to reduce or eliminate hazards and to prevent injuries and illnesses to its full‑time employees permanently located at the employer's worksite. Employers which provide temporary help services shall not be required to establish and implement a safety and health program under this section for its employees assigned to a client's worksite. This subdivision shall not apply to employee leasing companies.
(3) The Commissioner Employment Safety and
Security Commission may modify the application of the requirements of this
section to classes of employers where the Commissioner Employment Safety
and Security Commission determines that, in light of the nature of the
risks faced by the employees of these employers, such a modification would not
reduce the employees' safety and health protection.
(b) Safety and health program requirements. A safety and health program established and implemented under this section shall be a written program that shall include at least all of the following:
(1) Methods and procedures for identifying, evaluating, and documenting safety and health hazards.
(2) Methods and procedures for correcting the safety and health hazards identified under subdivision (1) of this subsection.
(3) Methods and procedures for investigating work‑related fatalities, injuries, and illnesses.
(4) Methods and procedures for providing occupational safety and health services, including emergency response and first aid procedures.
(5) Methods and procedures for employee participation in the implementation of the safety and health program.
(6) Methods and procedures for responding to the recommendations of the safety and health committee, where applicable.
(7) Methods and procedures for providing safety and health training and education to employees and to members of any safety and health committee established under G.S. 95‑252.
(8) The designation of a representative of the employer who has the qualifications and responsibility to identify safety and health hazards and the authority to initiate corrective action where appropriate.
(9) In the case of a worksite where employees of two or more employers work, procedures for each employer to protect employees at the worksite from hazards under the employer's control, including procedures to provide information on safety and health hazards to other employers and employees at the worksite.
(10) Any other provisions as the Commissioner Employment
Safety and Security Commission requires to effectuate the purposes of this
section.
(c) No loss of pay. The time during which employees are participating in training and education activities under this section shall be considered as hours worked for purposes of wages, benefits, and other terms and conditions of employment. The training and education shall be provided by an employer at no cost to the employees of the employer."
SECTION 36. G.S. 95‑252 reads as rewritten:
"§ 95‑252. Safety and health committees required.
(a) Establishment of safety and health committees. Except as provided in subsection (b) of this section, each employer with 11 or more employees and an experience rate modifier of 1.5 or greater shall provide for the establishment of safety and health committees and the selection of employee safety and health representatives in accordance with this section.
(b) Temporary help services. Temporary employees of employers which provide temporary help services shall not be counted as part of the 11 or more employees needed to establish a safety and health committee under this section, and employers which provide temporary help services shall not be required to establish a safety and health committee under this section for its employees assigned to a client's worksite. This subsection shall not apply to employee leasing companies.
(c) Safety and health committee requirements.
(1) In general. Each employer covered by this section shall establish a safety and health committee at each worksite of the employer, except as provided as follows:
a. An employer covered by this section whose employees do not primarily report to or work at a fixed location is required to have only one safety and health committee to represent all employees.
b. A safety and health committee is not required at a covered employer's worksite with less than 11 employees.
c. The Commissioner Employment Safety and
Security Commission may, by rule, modify the application of this
subdivision to worksites where employees of more than one employer are
employed.
(2) Membership. Each safety and health committee shall consist of:
a. The employee safety and health representatives selected or appointed under subsection (d) of this section.
b. As determined appropriate by the employer, employer representatives, the number of which may not exceed the number of employee representatives.
(3) Chairpersons. Each safety and health committee shall be cochaired by:
a. A representative selected by the employer.
b. A representative selected by the employee members of the committee.
(4) Rights. Each safety and health committee shall, within reasonable limits and in a reasonable manner, exercise the following rights:
a. Review any safety and health program established by the employer under G.S. 95‑251.
b. Review incidents involving work‑related fatalities, injuries and illnesses, and complaints by employees regarding safety or health hazards.
c. Review, upon the request of the committee or upon the request of the employer representatives or employee representatives of the committee, the employer's work injury and illness records, other than personally identifiable medical information, and other reports or documents relating to occupational safety and health.
d. Conduct inspections of the worksite at least once every three months and in response to complaints by employees or committee members regarding safety or health hazards.
e. Conduct interviews with employees in conjunction with inspections of the worksite.
f. Conduct meetings, at least once every three months, and maintain written minutes of the meetings.
g. Observe the measurement of employee exposure to toxic materials and harmful physical agents.
h. Establish procedures for exercising the rights of the committee.
i. Make recommendations on behalf of the committee, and in making recommendations, permit any members of the committee to submit separate views to the employer for improvements in the employer's safety and health program and for the correction of hazards to employee safety or health, except that recommendations shall be advisory only and the employer shall retain full authority to manage the worksite.
j. Accompany, upon request, the Commissioner or
the Commissioner's representative Chief Deputy Commissioner or that
officer's designee during any physical inspection of the worksite.
(5) Time for committee activities. The employer shall permit members of the committee established under this section to take the time from work reasonably necessary to exercise the rights of the committee without suffering any loss of pay or benefits for time spent on duties of the committee.
(d) Employee safety and health representatives.
(1) In general. Safety and health committees established under this section shall include:
a. One employee safety and health representative where the average number of nonmanagerial employees of the employer at the worksite during the preceding year was more than 10, but less than 50.
b. Two employee safety and health representatives where the average number of nonmanagerial employees of the employer at the worksite during the preceding year was 50 or more, but less than 100.
c. An additional employee safety and health representative for each additional 100 such employees at the worksite, up to a maximum of six employee safety and health representatives.
d. Where an employer's employees do not primarily
report to or work at a fixed location or at worksites where employees of more
than one employer are employed, a number of employee safety and health
representatives as determined by the Commissioner Employment Safety
and Security Commission by rule.
(2) Selection. Employee safety and health
representatives shall be selected by and from among the employer's
nonmanagerial employees in accordance with rules adopted by the Commissioner.
Employment Safety and Security Commission. The rules adopted by the Commissioner
Employment Safety and Security Commission may provide for different
methods of selection of employee safety and health representatives at worksites
with no bargaining representative, worksites with one bargaining
representative, and worksites with more than one bargaining representative."
SECTION 37. G.S. 95‑254 reads as rewritten:
"§ 95‑254. Rules.
(a) Safety and health programs. Not later than one
year after July 15, 1992, the Commissioner Employment Safety and
Security Commission shall adopt final rules concerning the establishment
and implementation of employer safety and health programs under G.S. 95‑251.
Rules adopted shall include provisions for the training and education of
employees and safety and health committee members. These rules shall include at
least all of the following:
(1) Provision for the training and education of employees, including safety and health committee members, in a manner that is readily understandable by the employees, concerning safety and health hazards, control measures, the employer's safety and health program, employee rights, and applicable laws and regulations.
(2) Provision for the training and education of the safety and health committee concerning methods and procedures for hazard recognition and control, the conduct of worksite safety and health inspections, the rights of the safety and health committee, and other information necessary to enable the members to carry out the activities of the committee under G.S. 95‑252.
(3) Requirement that training and education be provided to new employees at the time of employment and to safety and health committee members at the time of selection.
(4) Requirement that refresher training be provided on at least an annual basis and that additional training be provided to employees and to safety and health committee members when there are changes in conditions or operations that may expose employees to new or different safety or health hazards or when there are changes in safety and health rules or standards under Article 16 of this Chapter that apply to the employer.
(b) Safety and health committees. Not later than one
year after July 15, 1992, the Commissioner Employment Safety and
Security Commission shall adopt final rules for the establishment and
operation of safety and health committees under G.S. 95‑252. The
rules shall include provisions concerning at least the following:
(1) The establishment of such committees by an employer whose employees do not primarily report to or work at a fixed location.
(2) The establishment of committees at worksites where employees of more than one employer are employed.
(3) The employer's obligation to enable the committee to function properly and effectively, including the provision of facilities and materials necessary for the committee to conduct its activities, and the maintenance of records and minutes developed by the committee.
(4) The provision for different methods of selection of employee safety and health representatives at worksites with no bargaining representative, worksites with one bargaining representative, and worksites with more than one bargaining representative."
SECTION 38. G.S. 95‑255 reads as rewritten:
"§ 95‑255. Reports.
(a) Upon the final adoption of all rules required to
be adopted by the Commissioner Employment Safety and Security
Commission under this Article, the Commissioner Employment Safety
and Security Commission shall determine, based on information provided by
the North Carolina Rate Bureau, the employers with an experience rate modifier
of 1.5 or greater and shall notify these employers of the applicability of G.S. 95‑251
and the potential applicability of G.S. 95‑252.
(b) Within 60 days of notification by the Commissioner,
Employment Safety and Security Commission, the employer shall
certify on forms provided by the Commissioner Employment Safety and
Security Commission that he meets the requirements of G.S. 95‑251
and, if applicable, the requirements of G.S. 95‑252.
(c) The Commissioner Employment Safety and
Security Commission shall notify an employer when his experience rate
modifier falls below 1.5. An employer subject to the provisions of G.S. 95‑252
shall notify the Commissioner Employment Safety and Security
Commission if he the employer no longer employs 11 or more
employees and has discontinued or will discontinue the safety and health
committee."
SECTION 39. G.S. 95‑256 reads as rewritten:
"§ 95‑256. Penalties.
(a) The Commissioner Employment Safety and
Security Commission may levy a civil penalty, not to exceed the amounts
listed as follows, for a violation of this Article:
Employers with 10 or less employees $ 2,000
Employers with 11‑50 employees $ 5,000
Employers with 51‑100 employees $10,000
Employers with more than 100 employees $25,000.
(b) The Commissioner, Employment Safety and
Security Commission, in determining the amount of the penalty, shall
consider the nature of the violation, whether it is a first or subsequent
violation, and the steps taken by the employer to remedy the violation upon
discovery of the violation.
(c) An employer may appeal a penalty levied by the Commissioner
Employment Safety and Security Commission pursuant to this section
to the North Carolina Occupational Safety and Health Review Commission subject
to the procedures and requirements applicable to contested penalties under
Article 16 of this Chapter. The determination of the Commission shall be final
unless further appeal is made to the courts under the provisions of Chapter
150B of the General Statutes.
(d) All civil penalties and interest recovered by the Commissioner,
Employment Safety and Security Commission, together with any costs,
shall be paid into the General Fund of the State."
PART VI. EMPLOYMENT SAFETY AND SECURITY COMMISSION
SECTION 40. The title, and Article 1, of Chapter
96 of the General Statutes reads as rewritten:
"Chapter 96.
Employment Safety and Security.
Article 1.
Employment Safety and Security Commission."
SECTION 41. G.S. 96‑1 reads as rewritten:
"§ 96‑1. Title.
(a) This Chapter shall be known and may be cited as the 'Employment Safety Law' or the 'Employment Security Law.'
(b) Any reference to the Unemployment Compensation Commission shall be deemed a reference to the Employment Safety and Security Commission and all powers, duties, funds, records, etc., of the Unemployment Compensation Commission are transferred to the Employment Safety and Security Commission.
(c) Any reference to the 'Occupational Safety and Health Act of North Carolina' shall be deemed as reference to this Chapter."
SECTION 42. G.S. 96‑3 reads as rewritten:
"§ 96‑3. Employment Security Commission.
(a) Organization. – There is hereby created a
commission to be known as the Employment Safety and Security Commission
of North Carolina. The Commission shall consist of seven members to be
appointed by the Governor on or before July 1, 1941. members. The
Governor shall have the power to designate the member of said Commission who
shall act as the chairman thereof. The chairman of the Commission shall not
engage in any other business, vocation or employment. Three members of the
Commission shall be appointed by the Governor to serve for a term of two years.
Three members shall be appointed to serve for a term of four years, and upon
the expiration of the respective terms, the successors of said members shall be
appointed for a term of four years each, thereafter, and the member of said
Commission designated by the Governor as chairman shall serve at the pleasure
of the Governor. Any member appointed to fill a vacancy occurring in any of the
appointments made by the Governor prior to the expiration of the term for which
his predecessor was appointed shall be appointed for the remainder of such
term. The Governor may at any time after notice and hearing, remove any
Commissioner for gross inefficiency, neglect of duty, malfeasance, misfeasance,
or nonfeasance in office.
(b) Divisions. – The Commission shall establish two
coordinate divisions: divisions pertaining to employment security: the
North Carolina State Employment Service Division, created pursuant to G.S. 96‑20,
and the Unemployment Insurance Division. The Commission shall have at least
one division pertaining to employee safety and health.
(b1) Each division shall be responsible for the discharge of its distinctive functions. Each division shall be a separate administrative unit with respect to personnel and duties, except insofar as the Commission may find that such separation is impracticable. Notwithstanding any other provision of this Chapter, administrative organization of the agency shall be in accordance with that which the Commission finds most desirable in order to perform the duties and functions of the agency.
(b2) The Governor shall appoint one Chief Deputy Commissioner who shall be responsible for employment safety and health enforcement.
(c) Salaries. – (Effective until appointment of next chairman of the Employment Security Commission) The chairman of the Employment Safety and Security Commission of North Carolina, appointed by the Governor, shall be paid from the Employment Security Administration Fund a salary payable on a monthly basis, which salary shall be fixed by the General Assembly in the Current Operations Appropriations Act; and the members of the Commission, other than the chairman, shall each receive the same amount per diem for their services as is provided for the members of other State boards, commissions, and committees who receive compensation for their services as such, including necessary time spent in traveling to and from his place of residence within the State to the place of meeting while engaged in the discharge of the duties of his office and his actual traveling expenses, the same to be paid from the aforesaid fund. Notwithstanding G.S. 138‑4, the chairman of the Employment Security Commission shall not accrue longevity pay.
(c) Salaries. – (Effective upon the appointment of the next Chairman of the Employment Security Commission) The chairman of the Employment Safety and Security Commission of North Carolina, appointed by the Governor, shall be paid from the Employment Security Administration Fund a salary payable on a monthly basis, which salary shall be the same as the salary fixed by the General Assembly in the Current Operations Appropriations Act for the Secretary of Commerce, and the members of the Commission, other than the chairman, shall each receive the same amount per diem for their services as is provided for the members of other State boards, commissions, and committees who receive compensation for their services as such, including necessary time spent in traveling to and from his place of residence within the State to the place of meeting while engaged in the discharge of the duties of his office and his actual traveling expenses, the same to be paid from the aforesaid fund.
(d) Quorum. – The chairman or his designee and three members of the Commission shall constitute a quorum."
SECTION 43. G.S. 96‑8 reads as rewritten:
"(2) 'Commission' means the Employment Safety and Security Commission established by this Chapter.
. . .
(22) Average Weekly Insured Wage. – "Average weekly insured wage" is the quotient obtained by dividing the total of the wages, as defined in G.S. 96‑8(12) and (13), reported by all insured employers by the monthly average in insured employment under this Chapter during the immediately preceding calendar year and further dividing the quotient obtained by 52 to obtain a weekly rate. (For this computation the data as released annually in the Employment Safety and Security Commission's publication "North Carolina Insured Employment and Wage Payment" shall be used). The quotient thus obtained shall be deemed to be the average weekly wage for such year."
SECTION 44. G.S. 96‑12.1 reads as rewritten:
"§ 96‑12.1. Extended base period for certain job related injuries.
If an individual lacks sufficient base period wages because of a job related injury for which he received workers' compensation, upon written application by the claimant, an extended base period will be substituted for the current base period on a quarter‑by‑quarter basis as needed to establish a valid claim. "Extended base period" means the four quarters prior to the claimant's base period. These four quarters may be substituted for base period quarters on a quarter‑by‑quarter basis to establish a valid claim regardless of whether the wages have been used to establish a prior claim, except any wages earned that would render the Employment Safety and Security Commission of North Carolina out of compliance with applicable federal law will be excluded if used in a prior claim. Benefits paid on the basis of an extended base period, which would not otherwise be payable, shall be noncharged."
SECTION 45. G.S. 96‑13 reads as rewritten:
"§ 96‑13. Benefit eligibility conditions.
(a) An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that
(1) The individual has registered for work at and thereafter has continued to report at an employment office as directed by the Commission in accordance with such regulations as the Commission may prescribe;
(2) The individual has made a claim for benefits in accordance with the provisions of G.S. 96‑15(a);
(3) The individual is able to work, and is available for work: Provided that, unless temporarily excused by Commission regulations, no individual shall be deemed available for work unless he establishes to the satisfaction of the Commission that he is actively seeking work: Provided further, that an individual customarily employed in seasonal employment shall, during the period of nonseasonal operations, show to the satisfaction of the Commission that such individual is actively seeking employment which such individual is qualified to perform by past experience or training during such nonseasonal period: Provided further, however, that no individual shall be considered available for work for any week not to exceed two in any calendar year in which the Commission finds that his unemployment is due to a vacation. In administering this proviso, benefits shall be paid or denied on a payroll‑week basis as established by the employing unit. A week of unemployment due to a vacation as provided herein means any payroll week within which the equivalent of three customary full‑time working days consist of a vacation period. For the purpose of this subdivision, any unemployment which is caused by a vacation period and which occurs in the calendar year following that within which the vacation period begins shall be deemed to have occurred in the calendar year within which such vacation period begins. For purposes of this subdivision, no individual shall be deemed available for work during any week that the individual tests positive for a controlled substance if (i) the test is a controlled substance examination administered under Article 20 of Chapter 95 of the General Statutes, (ii) the test is required as a condition of hire for a job, and (iii) the job would be suitable work for the claimant. The employer shall report to the Commission, in accordance with regulations adopted by the Commission, each claimant that tests positive for a controlled substance under this subdivision. An unemployed individual shall not be disqualified for eligibility for unemployment compensation solely on the basis that the individual is in school.
(4) No individual shall be deemed able to work under this subsection during any week for which that person is receiving or is applying for benefits under any other State or federal law based on his temporary total or permanent total disability. Provided that if compensation is denied to any individual for any week under the foregoing sentence and such individual is later determined not to be totally disabled, such individual shall be entitled to a retroactive payment of the compensation for each week for which the individual filed a timely claim for compensation and for which the compensation was denied solely by reason of the foregoing sentence.
(5) The individual has participated in reemployment services, if the Division referred the individual to these services after determining, through use of a worker profiling system, that the individual would likely exhaust regular benefits and would need reemployment services to make a successful transition to new employment, unless the individual establishes justifiable cause for failing to participate in the services.
(6) An unemployed individual shall not be disqualified for eligibility for unemployment compensation benefits solely on the basis that the individual is only available for part‑time work. If an individual restricts his or her eligibility to part‑time work, the individual may be considered able and available to work if it is determined that all the following conditions exist:
a. The claimant's monetary eligibility is based predominately on wages from part‑time work.
b. The claimant is actively seeking and is willing to accept work under essentially the same conditions as existed while the claimant's reported wages were accrued.
c. The claimant imposes no other restriction and is in a labor market in which a reasonable demand exists for part‑time service.
This subdivision shall not be construed to amend subdivision (3) of this subsection as it applies to students or G.S. 96‑16 as it applies to seasonal workers.
(b) (1) The payment of benefits to any individual based on services for nonprofit organizations, hospitals, or State hospitals and State institutions of higher education, other institutions of higher education, or secondary schools and subdivisions of secondary schools subject to this Chapter shall be in the same manner and under the same conditions of the laws of this Chapter as applied to individuals whose benefit rights are based on other services subject to this Chapter. Except that with respect to services in the educational institutions listed above:
a. In an instructional, research, or principal administrative capacity, compensation shall not be payable based on such services for any week commencing during the period between two successive academic years or terms, or, when an agreement provides instead for a similar period between two regular but not successive terms, during that period, to any individual if he performs such services in the first of the academic years or terms and if there is a contract or reasonable assurance that the individual will perform services in any such capacity for any educational institution in the second of the academic years or terms; and,
b. In any other capacity for an educational institution:
1. Compensation shall be denied on the basis of such services for any week which commences during a period between two successive academic years or terms if the individual performs such services in the first of the academic years or terms and there is a reasonable assurance that the individual will perform such services in the second of the academic years or terms, except that
2. If compensation is denied to any individual for any week under subclause 1 and the individual was not offered an opportunity to perform such services for the educational institution for the second of the academic years or terms, the individual shall be entitled to a retroactive payment of the compensation for each week for which the individual filed a timely claim for compensation and for which compensation was denied solely by reason of subclause 1; and,
c. With respect to any services described in clause a or b, compensation payable on the basis of such services shall be denied to any individual for any week which commences during an established and customary vacation period or holiday recess, and there is a reasonable assurance that such individual will perform such services in the period immediately following the vacation period or holiday recess; and,
d. With respect to any services described in clause a or b, compensation on the basis of services in any such capacity shall be denied as specified in clauses a, b, and c. to any individual who performed such services in an educational institution while in the employ of an educational service agency, and for this purpose the term "educational service agency" means a governmental agency or governmental entity which is established and operated exclusively for the purpose of providing such services to one or more educational institutions; and,
e. With respect to any services to which G.S. 96‑13(b)(1) applies, if such services are provided to or on behalf of an educational institution, compensation shall be denied under the same circumstances as described in clauses a through d.
(2) Repealed by Session Laws 1983, c. 625, s. 5.
(c) Beginning February 16, 1977, an unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that he has been totally, partially, or part‑totally unemployed for a waiting period of one week with respect to each benefit year. No week shall be counted as a week of unemployment for waiting‑period credit under this provision unless the claimant except for the provisions of this subdivision was otherwise eligible for benefits. As to claims filed on or after September 5, 1999, the waiting period for a benefit year shall not be required of any claimant if all of the following conditions are met:
(1) The benefits are to be paid for unemployment due directly to a major natural disaster.
(2) The President of the United States has declared the disaster pursuant to the Disaster Relief Act of 1970, 42 U.S.C.A. 4401, et seq.
(3) The benefits are to be paid to claimants who would have been eligible for disaster unemployment assistance if they had not been eligible to receive unemployment insurance benefits with respect to that unemployment.
(4) The claimant files for a waiver of the waiting period week within 30 days after the date of notification or mailing of the notice of the right to have the waiting period week waived. The Employment Safety and Security Commission, for good cause shown, may at any time in its discretion, with or without motion or notice, order the period enlarged if the request for an enlargement of time is made before the expiration of the period originally prescribed or as extended by a previous order. After expiration of the specified period, the Employment Safety and Security Commission may permit the act to be done where the failure to act was a result of excusable neglect.
The benefits paid as a result of the waiver of the waiting period week shall not be charged to the account or accounts of the base period employer or employers in accordance with G.S. 96‑9(c)(2)d. The Employment Safety and Security Commission shall implement regulations prescribing the procedure for the waiver of the waiting period week in accordance with G.S. 96‑4(b).
(c1) As to claims filed on or after January 29, 2003, the waiting period for a benefit year shall not be required of a claimant if all of the following conditions are met:
(1) The benefits are to be paid for unemployment due directly to a major industrial disaster that destroys substantially all of the physical facilities of a manufacturing plant.
(2) The Governor has acknowledged the disaster through the creation of such task forces as are needed to coordinate State assistance to the manufacturer and its employees.
(3) The Governor has issued an Executive Order directing and authorizing the Employment Safety and Security Commission to waive the waiting week for employees of the manufacturer.
(4) The Employment Safety and Security Commission shall implement regulations prescribing the procedure for the waiver of the waiting period week in accordance with G.S. 96‑4(b).
(d) Benefit entitlement based on services for governmental entities that become subject to Employment Safety and Security Commission law effective January 1, 1978, will be administered in the same manner and under the same conditions of the laws of this Chapter as are applicable to individuals whose benefit rights are based on other service subject to this Chapter.
(e) Benefits shall not be payable to any individual on the basis of any services, substantially all of which consist of participating in sports or athletic events or training or preparing to so participate, for any week which commences during the period between two successive sport seasons (or similar periods) if such individual performs such services in the first of such seasons (or similar periods) and there is a reasonable assurance that such individual will perform such services in the latter of such seasons (or similar periods).
(f) (1) Benefits shall not be payable on the basis of services performed by an alien unless such alien is an individual who was lawfully admitted for permanent residence at the time such services were performed, or otherwise was permanently residing in the United States under color of law at the time such services were performed, or was lawfully present for purposes of performing such services (including an alien who is lawfully present in the United States as a result of the application of the provisions of section 203 (a)(7) or section 212 (d)(5) of the Immigration and Nationality Act). Any data or information required of individuals applying for benefits to determine whether benefits are not payable to them because of their alien status shall be uniformly required from all applicants for benefits. In the case of an individual whose application for benefits would otherwise be approved, no determination that compensation to such individual is not payable because of his alien status shall be made except upon a preponderance of the evidence.
(2) An individual who is not a citizen or national of the United States shall not be deemed available for work under subsection (a)(3) of this section unless the individual is in satisfactory immigration status under the laws administered by the United States Department of Justice, Immigration and Naturalization Service.
(g) (1) Except as herein provided, no individual shall be eligible for benefits for any week during any part of which the Commission finds that work was not available to the individual because he had been placed on a bona fide disciplinary suspension by his employer. To be bona fide, a disciplinary suspension must be based on acts or omissions which constitute fault on the part of the employee and are connected with the work but such acts or omissions need not alone be disqualifying under G.S. 96‑14.
(2) Ineligibility pursuant to the preceding paragraph based on a single disciplinary suspension shall not be imposed for any claims week beginning after the tenth consecutive calendar day of the suspension. If at the time a claim is filed for such a week the individual is still so suspended, the individual shall be deemed to have been discharged from his work because of all the acts or omissions that caused his suspension and the issue of whether that discharge was for disqualifying reasons under G.S. 96‑14 shall then be adjudicated pursuant to G.S. 96‑15.
(3) Any individual who files a claim for benefits for a week with respect to which he is ineligible under this subsection is deemed to be attached to his employer's payroll and any issue concerning separation from work that may be present under G.S. 96‑14 shall be held in abeyance until such time as a claim is filed for a week to which this subsection does not apply."
SECTION 46. G.S. 96‑15.2 reads as rewritten:
"§ 96‑15.2. Protection of witness before the Employment Safety and Security Commission.
If any person shall by threats, menace, or in any other manner intimidate or attempt to intimidate any person who is summoned or acting as a witness in any proceeding brought under the Employment Safety and Security Act, or prevent or deter, or attempt to prevent or deter any person summoned or acting as such witness from attendance upon such proceeding, he shall be guilty of a Class 1 misdemeanor."
SECTION 47. G.S. 96‑17(d)(2)c. reads as rewritten:
"c. Any amount deducted and withheld under paragraph b. of this subdivision shall be paid by the Employment Safety and Security Commission to the appropriate State or local child support enforcement agency."
SECTION 48. G.S. 96‑19 reads as rewritten:
"§ 96‑19. Enforcement of Employment Security Law discontinued upon repeal or invalidation of federal acts; suspension of enforcement provisions contested.
(a) It is the purpose of this Chapter to secure for employers and employees the benefits of Title III and Title IX of the Federal Social Security Act, approved August 14, 1935, as to credit on payment of federal taxes, of State contributions, the receipt of federal grants for administrative purposes, and all other provisions of the said Federal Social Security Act; and it is intended as a policy of the State that this Chapter and its requirements for contributions by employers shall continue in force only so long as such employers are required to pay the federal taxes imposed in said Federal Social Security Act by a valid act of Congress. Therefore, if Title III and Title IX of the said Federal Social Security Act shall be declared invalid by the United States Supreme Court, or if such law be repealed by congressional action so that the federal tax cannot be further levied, from and after the declaration of such invalidity by the United States Supreme Court, or the repeal of said law by congressional action, as the case may be, no further levy or collection of contributions shall be made hereunder. The enactment by the Congress of the United States of the Railroad Retirement Act and the Railroad Unemployment Insurance Act shall in no way affect the administration of this law except as herein expressly provided.
All federal grants and all contributions theretofore collected, and all funds in the treasury by virtue of this Chapter, shall, nevertheless, be disbursed and expended, as far as may be possible, under the terms of this Chapter: Provided, however, that contributions already due from any employer shall be collected and paid into the said fund, subject to such distribution; and provided further, that the personnel of the State Employment Safety and Security Commission shall be reduced as rapidly as possible.
The funds remaining available for use by the North Carolina Employment Safety and Security Commission shall be expended, as necessary, in making payment of all such awards as have been made and are fully approved at the date aforesaid, and the payment of the necessary costs for the further administration of this Chapter, and the final settlement of all affairs connected with same. After complete payment of all administrative costs and full payment of all awards made as aforesaid, any and all moneys remaining to the credit of any employer shall be refunded to such employer, or his duly authorized assignee: Provided, that the State employment service, created by Chapter 106, Public Laws of 1935, and transferred by Chapter 1, Public Laws of 1936, Extra Session, and made a part of the Employment Safety and Security Commission of North Carolina, shall in such event return to and have the same status as it had prior to enactment of Chapter 1, Public Laws of 1936, Extra Session, and under authority of Chapter 106, Public Laws of 1935, shall carry on the duties therein prescribed; but, pending a final settlement of the affairs of the Employment Safety and Security Commission of North Carolina, the said State employment service shall render such service in connection therewith as shall be demanded or required under the provisions of this Chapter or the provisions of Chapter 1, Public Laws of 1936, Extra Session.
(b) The Employment Safety and Security Commission may, upon receiving notification from the U.S. Department of Labor that any provision of this Chapter is out of conformity with the requirements of the federal law or of the U.S. Department of Labor, suspend the enforcement of the contested section or provision until the North Carolina Legislature next has an opportunity to make changes in the North Carolina law. The Employment Safety and Security Commission shall, in order to implement the above suspension:
(1) Notify the Governor's office and provide that office with a copy of the determination or notification of the U.S. Department of Labor;
(2) Advise the Governor's office as to whether the contested portion or provision of the law would, if not enforced, so seriously hamper the operations of the agency as to make it advisable that a special session of the legislature be called;
(3) Take all reasonable steps available to obtain a reprieval from the implementation of any federal conformity failure sanctions until the State legislature has been afforded an opportunity to consider the existing conflict."
SECTION 49. G.S. 96‑20 reads as rewritten:
"§ 96‑20. Duties of Division; conformance to Wagner‑Peyser Act; organization; director; employees.
The Employment Service Division of the Employment Safety and Security Commission shall establish and maintain free public employment offices in such number and in such places as may be necessary for the proper administration of this Chapter, and for the purpose of performing such duties as are within the purview of the act of Congress entitled "An act to provide for the establishment of a national employment system and for cooperation with the states in the promotion of such system and for other purposes," approved June 6, 1933, (48 Stat., 113; U.S.C., Title 29, section 49(c), as amended). The said Division shall be administered by a full‑time salaried director. The Employment Security Commission shall be charged with the duty to cooperate with any official or agency of the United States having powers or duties under the provisions of the said act of Congress, as amended, and to do and perform all things necessary to secure to this State the benefits of the said act of Congress, as amended, in the promotion and maintenance of a system of public employment offices. The provisions of the said act of Congress, as amended, are hereby accepted by this State, in conformity with section 4 of said act, and this State will observe and comply with the requirements thereof. The Employment Safety and Security Commission is hereby designated and constituted the agency of this State for the purpose of said act. The Commission is directed to appoint the director, other officers, and employees of the Employment Service Division."
SECTION 50. G.S. 96‑29 reads as rewritten:
"§ 96‑29. Openings listed by State agencies.
Every State agency shall list with the Employment Safety and Security Commission of North Carolina every job opening occurring within the agency which opening the agency wishes filled and which will not be filled solely by promotion or transfer from within the existing State government work force. The listing shall include a brief description of the duties and salary range and shall be filed with the Commission within 30 days after the occurrence of the opening. The State agency may not fill the job opening for at least 21 days after the listing has been filed with the Commission. The listing agency shall report to the Commission the filling of any listed opening within 15 days after the opening has been filled.
The Employment Safety and Security Commission may act to waive the 21‑day listing period for job openings in job classifications declared to be in short supply by the State Personnel Commission, upon the request of a State agency, if the 21‑day listing requirement for these classifications hinders the agency in providing essential services."
SECTION 51. G.S. 96‑31 reads as rewritten:
"§ 96‑31. Definitions.
As used in this Article, unless the context clearly requires otherwise, the term:
(1) "CFS" means the common follow‑up information management system developed by the Employment Safety and Security Commission of North Carolina as authorized under this Article.
(2) "ESC" "ESSC" means
the Employment Safety and Security Commission of North Carolina.
(3) Repealed by Session Laws 2000, c. 140, s. 93.1(d).
(4) "State job training, education, and placement program" or "State‑funded program" means a program operated by a State or local government agency or entity and supported in whole or in part by State or federal funds, that provides job training and education or job placement services to program participants. The term does not include on‑the‑job training provided to current employees of the agency or entity for the purposes of professional development."
SECTION 52. G.S. 96‑32 reads as rewritten:
"§ 96‑32. Common follow‑up information management system created.
(a) The Employment Safety and Security
Commission of North Carolina shall develop, implement, and maintain a common
follow‑up information management system for tracking the employment
status of current and former participants in State job training, education, and
placement programs. The system shall provide for the automated collection,
organization, dissemination, and analysis of data obtained from State‑funded
programs that provide job training and education and job placement services to
program participants. In developing the system, the ESC Employment
Safety and Security Commission shall ensure that data and information
collected from State agencies is confidential, not open for general public
inspection, and maintained and disseminated in a manner that protects the
identity of individual persons from general public disclosure.
(b) The ESC Employment Safety and Security
Commission shall adopt procedures and guidelines for the development and
implementation of the CFS authorized under this section.
(c) Based on data collected under the CFS, the ESCEmployment
Safety and Secuity Commission shall evaluate the effectiveness of
job training, education, and placement programs to determine if specific
program goals and objectives are attained, to determine placement and
completion rates for each program, and to make recommendations regarding the
continuation of State funding for programs evaluated."
SECTION 53. G.S. 96‑33 reads as rewritten:
"§ 96‑33. State agencies required to provide information and data.
(a) Every State agency and local government agency or
entity that receives State or federal funds for the direct or indirect support
of State job training, education, and placement programs shall provide to the
Employment Safety and Security Commission of North Carolina all data and
information available to or within the agency or entity's possession requested
by the ESC ESSC for input into the common follow‑up
information management system authorized under this Article.
(b) Each agency or entity required to report
information and data to the ESC Employment Safety and Security
Commission under this Article shall maintain true and accurate records of
the information and data requested by the ESC. Commission. The
records shall be open to ESC Employment Safety and Security
Commission inspection and copying at reasonable times and as often as
necessary. Each agency or entity shall further provide, upon request by ESC,
the Commission, sworn or unsworn reports with respect to persons
employed or trained by the agency or entity, as deemed necessary by the ESC Commission
to carry out the purposes of this Article. Information obtained by the ESC
Commission from the agency or entity shall be held by ESC the
Commission as confidential and shall not be published or open to public
inspection other than in a manner that protects the identity of individual
persons and employers."
SECTION 54. 96‑35 reads as rewritten:
"§ 96‑35. Reports on common follow‑up system activities.
(a) The Employment Safety and Security Commission of North Carolina shall present annually by May 1 to the General Assembly and to the Governor a report of CFS activities for the preceding calendar year. The report shall include information on and evaluation of job training, education, and placement programs for which data was reported by State and local agencies subject to this Article. Evaluation of the programs shall be on the basis of fiscal year data.
(b) The ESC ESSC shall report to the
Governor and to the General Assembly upon the convening of each biennial
session, its evaluation of and recommendations regarding job training,
education, and placement programs for which data was provided to the CFS."
PART VII. OTHER CONFORMING CHANGES
SECTION 55. G.S. 7A‑343.1 reads as rewritten:
"§ 7A‑343.1. Distribution of copies of the appellate division reports.
The Administrative Officer of the Courts shall, at the State's expense distribute such number of copies of the appellate division reports to federal, State departments and agencies, and to educational institutions of instruction, as follows:
Governor, Office of the 1
Lieutenant Governor, Office of the 1
Secretary of State, Department of the 2
State Auditor, Department of the 1
Treasurer, Department of the State 1
Superintendent of Public Instruction 1
Office of the Attorney General 11
State Bureau of Investigation 1
Agriculture and Consumer Services, Department of 1
Labor, Department of 1
Insurance, Department of 1
Budget Bureau, Department of Administration 1
Property Control, Department of Administration 1
State Planning, Department of Administration 1
Environment and Natural Resources, Department of 1
Revenue, Department of 1
Health and Human Services, Department of 1
Juvenile Justice and Delinquency Prevention, Department of 1
Commission for the Blind 1
Transportation, Department of 1
Motor Vehicles, Division of 1
Utilities Commission 8
Industrial Commission 11
State Personnel Commission 1
Office of State Personnel 1
Office of Administrative Hearings 2
Community Colleges, Department of 38
Employment Safety and Security Commission 1
Commission of Correction 1
Parole Commission 1
Archives and History, Division of 1
Crime Control and Public Safety, Department of 2
Cultural Resources, Department of 3
Legislative Building Library 2
Justices of the Supreme Court 1 ea.
Judges of the Court of Appeals 1 ea.
Judges of the Superior Court 1 ea.
Clerks of the Superior Court 1 ea.
District Attorneys 1 ea.
Emergency and Special Judges of the Superior Court 1 ea.
Supreme Court Library AS MANY AS
REQUESTED
Appellate Division Reporter 1
University of North Carolina, Chapel Hill 71
University of North Carolina, Charlotte 1
University of North Carolina, Greensboro 1
University of North Carolina, Asheville 1
North Carolina State University, Raleigh 1
Appalachian State University 1
East Carolina University 1
Fayetteville State University 1
North Carolina Central University 17
Western Carolina University 1
Duke University 17
Davidson College 2
Wake Forest University 25
Lenoir Rhyne College 1
Elon College 1
Campbell University 25
Federal, Out‑of‑State and Foreign Secretary of State 1
Secretary of Defense 1
Secretary of Health, Education and Welfare 1
Secretary of Housing and Urban Development 1
Secretary of Transportation 1
Attorney General 1
Department of Justice 1
Internal Revenue Service 1
Veterans' Administration 1
Library of Congress 5
Federal Judges resident in North Carolina 1 ea.
Marshal of the United States Supreme Court 1
Federal District Attorneys resident in North Carolina 1 ea.
Federal Clerks of Court resident in North Carolina 1 ea.
Supreme Court Library exchange list 1
Cherokee Supreme Court, Eastern Band of Cherokee Indians 1
Each justice of the Supreme Court and judge of the Court of Appeals shall receive for private use, one complete and up‑to‑date set of the appellate division reports. The copies of reports furnished each justice or judge as set out in the table above may be retained personally to enable the justice or judge to keep up‑to‑date the personal set of reports."
SECTION 56. G.S. 8‑45.3 reads as rewritten:
"§ 8‑45.3. Photographic reproduction of records of Department of Revenue and Employment Safety and Security Commission.
(a) The State Department of Revenue is hereby specifically authorized to have photographed, photocopied, or microphotocopied all records of the Department, including tax returns required by law to be made to the Department, and said photographs, photocopies, or microphotocopies, when certified by the Department as true and correct photographs, photocopies, or microphotocopies, shall be as admissible in evidence in all actions, proceedings and matters as the originals thereof would have been.
(a1) The Employment Safety and Security Commission is hereby specifically authorized to have photographed, photocopied, or microphotocopied all records of the Commission, including filings required by law to be made to the Commission, and said photographs, photocopies, or microphotocopies, when certified by the Commission as true and correct photographs, photocopies, or microphotocopies, shall be as admissible in evidence in all actions, proceedings, and matters as the originals thereof would have been.
(b) The provisions of this section shall apply to records stored on any form of permanent, computer‑readable media, such as a CD‑ROM, if the medium is not subject to erasure or alteration. Nonerasable, computer‑readable storage media shall not be used for preservation duplicates, as defined in G.S. 132‑8.2, or for the preservation of permanently valuable records as provided in G.S. 121‑5(d), except to the extent expressly approved by the Department of Cultural Resources pursuant to standards and conditions established by the Department."
SECTION 57. G.S. 52C‑5‑501 reads as rewritten:
"§ 52C‑5‑501. Employer's receipt of income‑withholding order of another state.
(a) An income‑withholding order issued in another state may be sent to the person or entity defined or identified as the obligor's employer under the income‑withholding provisions of Chapter 50 or Chapter 110 of the General Statutes, as applicable, without first filing a petition or comparable pleading or registering the order with a tribunal of this State. In the event that an obligor is receiving unemployment compensation benefits from the North Carolina Employment Safety and Security Commission, in accordance with G.S. 96‑17, an income‑withholding order issued in another state may be sent to the Employment Safety and Security Commission without first filing a petition or comparable pleading or registering the order with a tribunal of this State. Upon receipt of the order, the employer or the Employment Safety and Security Commission shall:
(1) Treat an income‑withholding order issued in another state which appears regular on its face as if it had been issued by a tribunal of this State;
(2) Immediately provide a copy of the order to the obligor; and
(3) Distribute the funds as directed in the withholding order. The Employment Safety and Security Commission shall not withhold an amount to exceed twenty‑five percent (25%) of the unemployment compensation benefits.
(b) Repealed by Session Laws 1997‑433, s. 10.8."
SECTION 58. G.S. 58‑89A‑120 reads as rewritten:
"§ 58‑89A‑120. Unemployment taxes; payroll.
A licensee is the employer of an assigned employee for purposes of Chapters 95, 96 and 105 of the General Statutes. Nothing in this section shall otherwise affect the levy and collection of unemployment insurance contributions or the assignment of discrete employer numbers pursuant to G.S. 96‑9(c)(4) and the definitions set forth in G.S. 96‑8(4), 96‑8(5), and 96‑8(6). The Employment Safety and Security Commission shall cooperate with the Commissioner in the investigation of applicants and licensees and shall provide the Commissioner with access to all relevant records and data in the custody of the Employment Safety and Security Commission."
SECTION 59. G.S. 84‑5(a) reads as rewritten:
"(a) It shall be unlawful for any corporation to practice law or appear as an attorney for any person in any court in this State, or before any judicial body or the North Carolina Industrial Commission, Utilities Commission, or the Employment Safety and Security Commission, or hold itself out to the public or advertise as being entitled to practice law; and no corporation shall organize corporations, or draw agreements, or other legal documents, or draw wills, or practice law, or give legal advice, or hold itself out in any manner as being entitled to do any of the foregoing acts, by or through any person orally or by advertisement, letter or circular. The provisions of this section shall be in addition to and not in lieu of any other provisions of Chapter 84. Provided, that nothing in this section shall be construed to prohibit a banking corporation authorized and licensed to act in a fiduciary capacity from performing any clerical, accounting, financial or business acts required of it in the performance of its duties as a fiduciary or from performing ministerial and clerical acts in the preparation and filing of such tax returns as are so required, or from discussing the business and financial aspects of fiduciary relationships. Provided, however, this section shall not apply to corporations authorized to practice law under the provisions of Chapter 55B of the General Statutes of North Carolina.
To further clarify the foregoing provisions of this section as they apply to corporations which are authorized and licensed to act in a fiduciary capacity:
(1) A corporation authorized and licensed to act in a fiduciary capacity shall not:
a. Draw wills or trust instruments; provided that this shall not be construed to prohibit an employee of such corporation from conferring and cooperating with an attorney who is not a salaried employee of the corporation, at the request of such attorney, in connection with the attorney's performance of services for a client who desires to appoint the corporation executor or trustee or otherwise to utilize the fiduciary services of the corporation.
b. Give legal advice or legal counsel, orally or written, to any customer or prospective customer or to any person who is considering renunciation of the right to qualify as executor or administrator or who proposes to resign as guardian or trustee, or to any other person, firm or corporation.
c. Advertise to perform any of the acts prohibited herein; solicit to perform any of the acts prohibited herein; or offer to perform any of the acts prohibited herein.
(2) Except as provided in subsection (b) of this section, when any of the following acts are to be performed in connection with the fiduciary activities of such a corporation, said acts shall be performed for the corporation by a duly licensed attorney, not a salaried employee of the corporation, retained to perform legal services required in connection with the particular estate, trust or other fiduciary matter:
a. Offering wills for probate.
b. Preparing and publishing notice of administration to creditors.
c. Handling formal court proceedings.
d. Drafting legal papers or giving legal advice to spouses concerning rights to an elective share under Article 1A of Chapter 30 of the General Statutes.
e. Resolving questions of domicile and residence of a decedent.
f. Handling proceedings involving year's allowances of widows and children.
g. Drafting deeds, notes, deeds of trust, leases, options and other contracts.
h. Drafting instruments releasing deeds of trust.
i. Drafting assignments of rent.
j. Drafting any formal legal document to be used in the discharge of the corporate fiduciary's duty.
k. In matters involving estate and inheritance taxes, gift taxes, and federal and State income taxes:
1. Preparing and filing protests or claims for refund, except requests for a refund based on mathematical or clerical errors in tax returns filed by it as a fiduciary.
2. Conferring with tax authorities regarding protests or claims for refund, except those based on mathematical or clerical errors in tax returns filed by it as a fiduciary.
3. Handling petitions to the tax court.
l. Performing legal services in insolvency proceedings or before a referee in bankruptcy or in court.
m. In connection with the administration of an estate or trust:
1. Making application for letters testamentary or letters of administration.
2. Abstracting or passing upon title to property.
3. Handling litigation relating to claims by or against the estate or trust.
4. Handling foreclosure proceedings of deeds of trust or other security instruments which are in default.
(3) When any of the following acts are to be performed in connection with the fiduciary activities of such a corporation, the corporation shall comply with the following:
a. The initial opening and inventorying of safe deposit boxes in connection with the administration of an estate for which the corporation is executor or administrator shall be handled by, or with the advice of, an attorney, not a salaried employee of the corporation, retained by the corporation to perform legal services required in connection with that particular estate.
b. The furnishing of a beneficiary with applicable portions of a testator's will relating to such beneficiary shall, if accompanied by any legal advice or opinion, be handled by, or with the advice of, an attorney, not a salaried employee of the corporation, retained by the corporation to perform legal services required in connection with that particular estate or matter.
c. In matters involving estate and inheritance taxes and federal and State income taxes, the corporation shall not execute waivers of statutes of limitations without the advice of an attorney, not a salaried employee of the corporation, retained by the corporation to perform legal services in connection with that particular estate or matter.
d. An attorney, not a salaried employee of the corporation, retained by the corporation to perform legal services required in connection with an estate or trust shall be furnished copies of inventories and accounts proposed for filing with any court and proposed federal estate and North Carolina inheritance tax returns and, on request, copies of proposed income and intangibles tax returns, and shall be afforded an opportunity to advise and counsel the corporate fiduciary concerning them prior to filing."
SECTION 60. G.S. 95‑25.3 reads as rewritten:
"(d) The Commissioner, in order to prevent curtailment of opportunities for employment of the economically disadvantaged and the unemployed, may, by regulation, establish a wage rate not less than eighty‑five percent (85%) of the otherwise applicable wage rate in effect under subsection (a) which shall apply to all persons (i) who have been unemployed for at least 15 weeks and who are economically disadvantaged, or (ii) who are, or whose families are, receiving Work First Family Assistance or who are receiving supplemental security benefits under Title XVI of the Social Security Act.
Pursuant to regulations issued by the Commissioner, certificates establishing eligibility for such subminimum wage shall be issued by the Employment Safety and Security Commission.
The regulation issued by the Commissioner shall not permit employment at the subminimum rate for a period in excess of 52 weeks."
SECTION 61. The Reviser of Statutes shall make conforming changes to the statutes listed in this section, as appropriate and in accordance with this act:
(a) G.S. 105‑259 Secrecy required of officials; penalty for violation.
(b) G.S. 105‑296 Powers and duties of assessor.
(c) G.S. 105A‑8 § 105A‑8. State agency notice; hearing; decision; and refund of setoff.
(d) G.S. 105A‑9 Appeals from hearings.
(e) G.S. 108A‑29 First Stop Employment Assistance; priority for employment services.
(f) G.S. 110‑129.2 State Directory of New Hires established; employers required to report; civil penalties for noncompliance; definitions.
(g) G.S. 110‑136.2 Use of unemployment compensation benefits for child support.
(h) G.S. 113‑276 Exemptions and exceptions to license and permit requirements.
(i) G.S. 132‑3 Destruction of records regulated.
(j) G.S. 135‑16 Employees transferred to North Carolina State Employment Service by act of Congress.
(k) G.S. 143‑341 Powers and duties of Department.
(l) G.S. 143B‑181 Governor's Advisory Council on Aging–members; selection; quorum; compensation.
(m) G.S. 143B‑407 North Carolina State Commission of Indian Affairs – membership; term of office; chairman; compensation.
(n) G.S. 143B‑417 North Carolina Internship Council – creation; powers and duties.
(o) G.S. 143B‑426.25 North Carolina Farmworker Council–creation; membership; meetings.
(p) G.S. 143B‑431 Department of Commerce – functions.
(q) G.S. 143B‑433 Department of Commerce – organization.
(r) G.S. 143B‑434 Economic Development Board – creation; duties; membership.
(s) G.S. 143B‑438.10 Commission on Workforce Development.
(t) G.S. 143B‑438.16 Trade Jobs for Success initiative established; funds; program components and guidelines.
(u) G.S. 143B‑438.17 Reporting.
(v) G.S. 147‑86.1 Pool account for local government unemployment compensation.
(w) G.S. 150B‑1 Policy and scope.
(x) G.S. 158‑7.1 Local development.
(y) G.S. 165‑10 Transfer of veterans' activities.
PART VIII. TRANSITION PERIOD
SECTION 62.(a) A transition period for staffing activities and administrative and programmatic planning shall begin on July 1, 2009, during which the Commissioner of Labor shall undertake necessary actions to ensure an orderly and efficient transfer of functions and personnel on January 1, 2010, including immediately assembling a transition team. Representatives designated by the Employment Security Commission shall also serve on the transition team.
SECTION 62.(b) By October 1, 2009, the Commissioner of Labor and the Employment Security Commission shall report to the Joint Legislative Commission on Governmental Operations and to the Fiscal Research Division on the status of the transition period established by this section.
SECTION 63. This act is effective when it becomes law, except that Part I through Part VII of this act become effective January 1, 2010.