GENERAL ASSEMBLY OF NORTH CAROLINA
1997 SESSION
S.L. 1997-153
AN ACT TO IMPLEMENT THE LESSONS LEARNED FROM HURRICANE FRAN WITH RESPECT TO THE MOBILIZATION OF THE NORTH CAROLINA NATIONAL GUARD.
The General Assembly of North Carolina enacts:
Section 1. Chapter 127A of the General Statutes is amended by adding a new section to read:
"§ 127A-202.1. Discrimination against persons who serve in the North Carolina National Guard and acts of reprisal prohibited.
(a) It is the policy of this State that all individuals shall be afforded the right to perform, apply to perform, or have an obligation to perform service in the North Carolina National Guard without fear of discrimination or retaliatory action from their employer or prospective employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.
(b) An individual who is a member of the North Carolina National Guard who performs, has performed, applies to perform, or has an obligation to perform service in the North Carolina National Guard shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.
(c) A person shall be considered to have denied a member of the North Carolina National Guard initial employment, reemployment, retention in employment, promotion, or a benefit of employment in violation of this section if the member's membership, application for membership, performance of service, application for service, or obligation for service in the North Carolina National Guard is a motivating factor in that person's action, unless the person can prove by the greater weight of the evidence that the same unfavorable action would have taken place in the absence of the member's membership, application for membership, performance of service, application for service, or obligation.
(d) Nothing in this section shall be construed to require a person to pay salary or wages to a member of the North Carolina National Guard during the member's period of active service.
(e) The Commissioner of Labor shall enforce the provisions of this section according to Article 21 of Chapter 95 of the General Statutes, including the rules and regulations issued pursuant to that Article."
Section 2. G.S. 127A-105 reads as rewritten:
"§ 127A-105. Rations and pay on State service.
The militia of the State, both officers and enlisted
personnel, when called into the service of the State by the Governor shall
receive the same pay as when called or ordered into the service of the United
States, and shall be rationed or paid the equivalent thereof, provided that no
officer or enlisted personnel shall receive less than 12 18 times
the minimum hourly wage per day as provided for in G.S. 95-87. G.S.
95-25.3(a)."
Section 3. G.S. 127A-107 reads as rewritten:
"§ 127A-107. Rate of pay for other service.
The Governor may, whenever the public service requires it,
order upon special or regular duty any officer or enlisted member of the
national guard or naval militia, and the expenses and compensation therefor of
such officer and enlisted member shall be paid out of the appropriations made
to the Department of Crime Control and Public Safety. Such officers and
enlisted members shall receive the same rate of pay as officers and enlisted
members of the same grade and like service of the regular service, provided
that no such officer or enlisted member shall receive less than 12 18
times the minimum hourly wage per day as provided for in G.S. 95-87. G.S.
95-25.3(a). Officers and enlisted members when on duty in connection
with examining boards, efficiency boards, advisory boards, courts of inquiry or
similar duty shall be allowed per diem and subsistence prescribed for lawful
State boards and commissions generally for such duty. Officers and enlisted
members serving on general or special courts-martial shall receive the base pay
of their rank. No staff officer or enlisted member who receives a
salary from the State as such shall be entitled to any additional compensation other
than actual and necessary expenses incurred while traveling upon orders issued
by the proper authority."
Section 4. Chapter 127A of the General Statutes is amended by adding a new section to read:
"§ 127A-111. Civilian leave option.
(a) A member of the North Carolina National Guard called into service of the State by the Governor shall have the right to take leave without pay from his or her civilian employment. No member of the North Carolina National Guard shall be forced to use or exhaust his or her vacation or other accrued leaves from his or her civilian employment for a period of active service. The choice of leave shall be solely within the discretion of the member.
(b) The Commissioner of Labor shall enforce the provisions of this section pursuant to Chapter 95 of the General Statutes."
Section 5. Chapter 127A of the General Statutes is amended by adding a new section to read:
"§ 127A-41.1. Stay of legal and court proceedings because of State military service.
At any stage of any legal proceeding in any court in which a person called into service of the State by the Governor is involved, either as plaintiff or defendant, during the period of service or within 60 days after the conclusion of the period of active service, all actions and proceedings:
(1) May be stayed by the court on its own motion; or
(2) Shall be stayed on application by the member or by a person acting on behalf of the member, unless, in the opinion of the court, the ability of the plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of the military service."
Section 6. G.S. 127A-106 reads as rewritten:
"§ 127A-106. Paid by the State.
When the militia or any portion thereof shall be ordered by
the Governor into State service, the pay, pay (including payment for
any leave earned as a result of more than 30 days of continuous service), subsistence,
transportation and other necessary expenses incident thereto shall be paid by
the State Treasurer, upon the approval of the Governor."
Section 7. G.S. 95-241(a) reads as rewritten:
"(a) No person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to do any of the following:
(1) File a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to any of the following:
a. Chapter 97 of the General Statutes.
b. Article 2A or Article 16 of this Chapter.
c. Article 2A of Chapter 74 of the General Statutes.
d. G.S. 95-28.1.
e. Article 16 of Chapter 127A.
(2) Cause any of the activities listed in subdivision (1) of this subsection to be initiated on an employee's behalf.
(3) Exercise any right on behalf of the employee or any other employee afforded by Article 2A or Article 16 of this Chapter or by Article 2A of Chapter 74 of the General Statutes."
Section 8. Sections 1 through 7 of this act become effective December 1, 1997. Section 8 of this act is effective when it becomes law.
In the General Assembly read three times and ratified this the 5th day of June, 1997.
s/ Marc Basnight
President Pro Tempore of the Senate
s/ Harold J. Brubaker
Speaker of the House of Representatives
s/ James B. Hunt, Jr.
Governor
Approved 11:26 a.m. this 6th day of June, 1997