Bill Text: NC S557 | 2011-2012 | Regular Session | Amended
Bill Title: Harvest of Dignity/Labor Reforms
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2011-04-12 - Ref To Com On Agriculture/Environment/Natural Resources [S557 Detail]
Download: North_Carolina-2011-S557-Amended.html
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2011
S 1
SENATE BILL 557*
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Short Title: Harvest of Dignity/Labor Reforms. |
(Public) |
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Sponsors: |
Senators McKissick; and Kinnaird. |
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Referred to: |
Agriculture/Environment/Natural Resources. |
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April 12, 2011
A BILL TO BE ENTITLED
AN ACT amending the Labor laws of north carolina relating to reporting on inspections of high hazard industries, agricultural workers' housing and employment conditions, employee access to toilet facilities, and heat illness prevention.
The General Assembly of North Carolina enacts:
SECTION 1. 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'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 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 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(4) Repealed by Session Laws 1997‑443, s. 17(b).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 shall use the most current data available from its own database and
from other sources, including State and federal departments, divisions,
boards, commissions, and other State governmental entities. The
Department 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 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 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. At a minimum, the written report shall include all of the following:
(1) The number of inspections conducted under the special emphasis program.
(2) The identification of employers inspected, the number and types of citations issued, and the amount of fines issued to each employer for each citation.
(3) The criteria by which each employer listed in subdivision (2) of this subsection was chosen for inspection.
(4) If employers fell into any of the criteria listed in subsection (b) of this section but were not inspected, the identity of those employers and why the Department did not conduct the inspection."
SECTION 2. G.S. 95‑223 reads as rewritten:
"§ 95‑223. Definitions.
As used in this Article, unless the context requires otherwise:
(1) "Agricultural employment" means
employment in any service or activity included within the provisions of Section
3(f) of the Fair Labor Standards Act of 1938, or section 3121(g) of the
Internal Revenue Code of 1986; and the handling, planting, drying, packing,
packaging, processing, freezing, or grading prior to delivery for storage of
any agricultural or horticultural commodity in its unmanufactured state and
including the harvesting of Christmas trees, the planting of trees, and
the harvesting of saltwater crabs;crabs.
(2) "Commissioner" means the Commissioner of
Labor of North Carolina;Carolina.
(3) "Day" means a calendar day;day.
(3a) "Director" means the Director of the Agricultural Safety and Health Bureau, who is the agent designated by the Commissioner to assist in the administration of this Article.
(4) "Established federal standard" means
those standards as set out in, and interpretations issued by, the Secretary of
the United States Department of Labor in 29 C.F.R. 1910.142, as amended;amended.
(5) "Migrant" means an individual, and his
dependents, who is employed in agricultural employment of a seasonal or
other temporary nature, and who is required to be absent overnight from his
permanent place of residence;employment.
(6) "Migrant housing" or "migrant
housing unit" means any facility, structure, real property, or other
unit that is established, operated, or used as living quarters for migrants;migrants.
(7) "Operator" means any person who owns or
controls migrant housing; and housing and any person who contracts
with or employs an operator to provide him or her with migrants for the purpose
of performing agricultural employment.
(8) "Person" means an individual,
partnership, association, joint stock company, corporation, trust, or legal representative;representative.
(8a) "Reasonable cost" does not include a profit to the operator and may not exceed actual cost or fair market value, whichever is less.
(8b) "Retaliatory action" means the discharge, suspension, demotion, retaliatory relocation of a migrant, eviction or summary ejectment, or other adverse action taken against a migrant or the migrant's dependent in the terms, conditions, privileges, and benefits of tenancy or employment.
(9) "Substantive violation" means a violation of a safety and health standard, including those that provide fire prevention, and adequate and sanitary supply of water, plumbing maintenance, structurally sound construction of buildings, effective maintenance of those buildings, provision of adequate heat as weather conditions require, and reasonable protection for inhabitants from insects and rodents. A substantive violation does not include technical or procedural violations of safety and health standards."
SECTION 3. G.S. 95‑224(a)(1) reads as rewritten:
"(a) The provisions of this Article shall apply to all operators and migrants except:
(1) Any person who, operator who owns housing
and who, in the ordinary course of that person's business, regularly
provides housing on a commercial basis to the general public; and public,
and who provides housing to migrants of the same character and on the same
or comparable terms and conditions as those provided to the general public; public
if more than fifty percent (50%) of the tenants are not migrants or their
dependents; or".
SECTION 4. G.S. 95‑225 reads as rewritten:
"§ 95‑225. Adoption of standards and interpretations.
(a) Unless otherwise provided, all established federal standards are adopted and shall be enforced by the Department of Labor of North Carolina.
(b) The Commissioner shall provide for publication in the North Carolina Register any modification by the federal government of the established federal standards within 30 days of their adoption.
(c) For the protection of the public health, the Commission for Public Health shall adopt and the Department of Environment and Natural Resources shall enforce rules that establish water quality and water sanitation standards for migrant housing under this Article.
(d) The requirements for the collection, treatment, and disposal of sewage, as provided in Article 11 of Chapter 130A, and the rules adopted pursuant to that Article shall apply to migrant housing.
(d1) Charges for migrant housing shall not exceed reasonable cost. The employer has the burden of providing reasonable cost through records or other credible evidence.
(e) Whenever the outside temperature falls below 50
degrees Fahrenheit and the migrant housing is occupied, heating equipment shall
be provided by the operator and operable.operable by the
migrant. Regardless of outside temperature, this equipment must be capable
of maintaining living areas of 65 degrees Fahrenheit. If housing is to be
occupied from May 15 until September 1 only, no heating equipment shall be
required at the time of preoccupancy inspection. No migrant shall be charged
for heat or fuel for heat.
(f) All migrant housing shall comply with the standards regarding fire safety for migrant housing as adopted by the Commission for Public Health and in effect on January 1, 1989.
(g) For purposes of this Article, the established federal standard provided in 29 C.F.R. 1910.142(i) does not apply. The following standards shall apply to migrant housing:
(1) Food preparation facilities and eating areas shall
be provided and maintained in a clean and sanitary manner;manner.
(2) A kitchen facility shall be provided with an
operable stove with at least one burner per five three people,
and in no event with less than two burners; an operable refrigerator with .75
two cubic feet per person minimum; a table; table and
chairs or benches providing sufficient seating and table space to accommodate
the number of migrants for which the housing is permitted; and a sink with
running hot and cold water;water.
(3) Surfaces with which food or drink come in contact
shall be easily accessible for cleaning, and shall be nontoxic, resistant to
corrosion, nonabsorbent, and free of open crevices;crevices.
(4) Acceptable storage facilities shall be provided and
shall be kept clean and free of vermin; andvermin.
(5) All food service facilities, other than those where migrants procure and prepare food for their own or their family's consumption, shall comply with the standards regarding kitchen and dining room facilities for migrant housing, as adopted by the Commission for Public Health and in effect on January 1, 1989.
(6) Migrants shall have access to all food preparation facilities and eating areas at all times during their occupancy of the migrant housing.
(h) Each migrant shall be provided with a bed that shall include a mattress in good repair with a clean cover. The Department of Labor of North Carolina inspector shall determine the condition of the mattress and cover during the preoccupancy inspection. If the mattress or cover is damaged beyond normal wear and tear during the migrant's occupancy of the housing, the operator may charge the migrant the reasonable cost of replacing the mattress or cover.
(i) Each migrant housing unit shall have at least one working telephone, and at least one working telephone line shall be provided for each 10 migrants in a migrant housing unit. Emergency contact information shall be posted near the telephone, or with other postings required by Article 16 of this Chapter and shall include 911, telephone number and location for the nearest health clinic or hospital, and contact information for the camp operator.
(j) Each toilet, water closet, chemical toilet, and urinal shall be separated by a wall on three sides at least six feet in height and by a door which can be locked from the inside.
(k) For purposes of this Article, the established federal standards provided in 29 C.F.R. § 1910.142(d)(5‑6) do not apply. The following standards shall apply to migrant housing:
(1) Where toilet facilities are shared, the number of water closets provided for each sex shall be based on the maximum number of persons of that sex which the camp is designed to house at any one time, in the ratio of one such unit to each 10 persons, with a minimum of two units for any shared facility.
(2) Urinals shall be provided on the basis of one unit or two linear feet of urinal trough for every 15 men. The floor from the wall and for a distance not less than 15 inches measured from the outward edge of the urinals shall be constructed of materials impervious to moisture. Where water under pressure is available, urinals shall be provided with an adequate water flush.
(3) Privies are not permitted.
(l) Each migrant housing unit in which three or more migrants live shall have a working washing machine and dryer, and at least one working washing machine and dryer shall be provided for every 10 migrants.
(m) All doors opening to the exterior shall have functioning deadbolt locks, and each migrant shall be provided a key to any door that opens into a common area and to any door that opens into his or her sleeping quarters.
(n) All exterior windows shall have functioning locks.
(o) A migrant is entitled to receive visitors to the migrant housing provided for lawful purposes. Nothing in this subsection prohibits an owner from banning or barring any visitors who are engaged in criminal activity.
(p) Operators shall be responsible for all maintenance of the migrant housing unit and surrounding grounds.
(q) For purposes of this Article, the established federal standard provided in 29 C.F.R. § 1910.142(b)(9) does not apply such that the following standards shall apply instead to migrant housing:
(1) Sleeping quarters shall be provided which are separate from cooking facilities.
(2) One shower head within a separate shower stall shall be provided for every five migrants."
SECTION 5. G.S. 95‑227 reads as rewritten:
"§ 95‑227. Enforcement.
(a) For the purpose of enforcing the standards
provided by this Article, the provisions of G.S. 95‑129, G.S. 95‑130
and G.S. 95‑136 through G.S. 95‑142 shall apply under
this Article in a similar manner as they apply to places of employment under OSHANC;
however, G.S. 95‑129(4), 95‑130(2), and 95‑130(6) do not
apply to migrant housing.the Occupational Safety and Health Act of North
Carolina. For the purposes of this Article, the term:
(1) "Employer" in G.S. 95‑129, G.S. 95‑130
and G.S. 95‑136 through G.S. 95‑142 shall be construed to
mean an operator.operator or the person or entity contracting with an
operator for the operator to provide that person or entity with migrants for
the purpose of performing agricultural employment.
(2) "Employee" shall be construed to mean a migrant.
(3) Repealed by Session Laws 2007‑548, s. 5, effective August 31, 2007.
(b) The Commissioner may establish a new division to enforce this Article.
(c) The Department of Labor of North Carolina shall maintain
a maintain all of the following:
(1) A list of operators and the physical
address of their migrant housing units. units, number of beds, and
the date of the annual preoccupancy inspection and certification.
(2) The total number of migrant housing units held by each operator.
(3) A summary of complaints filed against each operator annually.
(d) The Department of Labor of North Carolina shall
maintain a summary of any inspections filed annually with the Division that
enforce this Article, including the number and type of citations issued and the
violations found, if any.found. This information shall be made
available to the general public upon written request within 15 days of the
request.
(d1) The Department of Labor of North Carolina shall establish and implement procedures to identify and prosecute the most serious violators of this Article, including the failure to apply for and obtain permits to operate migrant housing pursuant to this Article.
(d2) The Department of Labor of North Carolina shall maximize the efforts of personnel implementing this Article by seeking continually new resources and utilizing nontraditional means, by coordinating with federal, State, and local agencies, and by training and coordinating with local health departments and building inspection departments.
(d3) The requirements of this Article shall be performed by employees of the Department of Labor of North Carolina who, to the extent feasible, shall be bilingual in both English and Spanish.
(e) The Commissioner shall report no later than May 1 of each year to the Chairpersons of the Senate Appropriations Committee on Natural and Economic Resources and the Chairpersons of the House of Representatives Appropriations Subcommittee on Natural and Economic Resources regarding the number of annual preoccupancy certifications issued, the number of operators with one hundred percent (100%) compliance at the preoccupancy inspection, the number of postoccupancy inspections conducted by the Department of Labor of North Carolina, the number and type of citations and fines issued, the total number of migrant worker beds in the State, and the identification of operators who fail to apply for or obtain permits to operate migrant housing pursuant to this Article.
(f) Any right or obligation declared by this Article is enforceable by civil action, in addition to other remedies at law and in equity."
SECTION 6. Article 19 of Chapter 95 of the General Statutes is amended by adding a new section to read:
"§ 95‑227.1. Nonretaliation; civil actions.
(a) An owner is prohibited from taking retaliatory action against a migrant because of the migrant's good faith attempt to exercise, secure, or enforce any rights or protections existing under this Article or any other federal, State, or local law.
(b) Any right or obligation declared by this Article is enforceable by a civil action, in addition to any other remedies at law or in equity."
SECTION 7. G.S. 95‑241(a)(1) 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 of the General Statutes.
f. G.S. 95‑28.1A.
g. Article 52 of Chapter 143 of the General Statutes.
h. Article 5F of Chapter 90 of the General Statutes.
i. Article 19 of Chapter 95 of the General Statutes."
SECTION 8. G.S. 143‑460 is amended by adding two new subdivisions to read:
"§ 143‑460. Definitions.
As used in this Article, unless the context otherwise requires:
…
(10a) "Employee" means an employee of an employer who is employed in a business or other capacity of the employer, including any and all business units and agencies owned or controlled by the employer.
(10b) "Employer" means a person engaged in a business that 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."
SECTION 9. G.S. 143‑466 reads as rewritten:
"§ 143‑466. Records; information; inspection; enforcement.
(a) The Board shall require licensees to maintain records with respect to the sale and application of such pesticides as it may from time to time prescribe. Such relevant information as the Board may deem necessary may be specified by rule. The records shall be kept for a period of three years from the date of the application of the pesticide to which the records refer, and shall be available for inspection and copying by the Board or its agents at its request.
(a1) The Board shall adopt rules requiring recording of the date, time, and field location of worker reentry to the treated area after completion of the pesticide application. Such records shall be subject to the requirements of subsection (a) of this section.
(b) The Board may publish information regarding injury which may result from improper application or use of pesticides and the methods and precautions designed to prevent such injury.
(c) The Board may provide for inspection of any equipment used for application of pesticides and may require repairs or other changes before its further use for pesticide application. A list of requirements that equipment shall meet may be adopted by the Board by regulation.
(d) The Board may provide for inspection of any place of business where pesticides are stored or sold and may require changes in methods of handling, displaying and storing of all pesticides. A list of requirements that places of business must meet may be adopted by regulation of the Board.
(e) For the purpose of carrying out the provisions of this Article, inspectors designated by the Board may enter upon any public or private premises at reasonable times, in order:
(1) To have access for the purpose of inspecting the premises and any equipment subject to this Article and such premises on which such equipment is kept or stored;
(2) To inspect lands actually or reported to be exposed to pesticides;
(3) To inspect storage or disposal areas;
(4) To inspect or investigate complaints of injury to humans, land or plants; or
(5) To sample pesticides being applied, or to be applied.
No person shall refuse entry or access to any authorized representative of the Board who requests entry for purposes of inspection, and who presents appropriate credentials, nor shall any person obstruct, hamper or interfere with any such representative while in the process of carrying out his official duties. Should the Board or its designated agent be denied access to any land where such access was sought for the purposes set forth in this Article, the Board may apply to any court of competent jurisdiction for a search warrant authorizing access to such land for said purposes. The court may upon such application issue the search warrant for the purposes requested.
(f) Any employee or any representative of an employee who suspects that a violation of this Article is occurring in any workplace where the employee is employed may request an inspection of that workplace by giving notice of the alleged violation to the Board or its designated inspectors. The employee's name and the names of individual employees referred to in the notice of violation shall not appear in any record published, released, or made available by the Department of Agriculture and Consumer Services, including the notice of violation. The Board and its designated inspectors may confidentially interview any employee when reasonably necessary for an investigation of a suspected violation of this Article. Nothing in this section shall be construed to prohibit the use of the name or statement of a witness or complainant to the Board in enforcement proceedings or hearings held pursuant to this Article. If a written request for any of the following statements is received by the Board no later than 12 days prior to the enforcement hearing, the Board shall make available to the employer at least 10 days prior to a scheduled enforcement hearing unredacted copies of:
(1) The statements of witnesses the Board intends to use at the enforcement hearing,
(2) The statements of witnesses the Board intends to call to testify, or
(3) The statements of witnesses whom the Board does not intend to use that might support an employer's affirmative defense or otherwise exonerate the employer.
If the request for an unredacted copy of any such statements of witnesses is received less than 12 days before a hearing, the statement requested shall be made available as soon as practicable. The Board 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."
SECTION 10. G.S. 143‑469 reads as rewritten:
"§ 143‑469. Penalties.
(a) Any person who shall be adjudged to have violated any provision of this Article, or any regulation of the Board adopted pursuant to this Article, shall be guilty of a Class 2 misdemeanor. In addition, if any person continues to violate or further violates any provision of this Article after written notice from the Board, the court may determine that each day during which the violation continued or is repeated constitutes a separate violation subject to the foregoing penalties.
(b) A Except as provided by subsection (b1)
of this section, a civil penalty of not more than two thousand dollars
($2,000) per violation may be assessed by the Board against any person
who violates or directly causes a violation of any provision of this Article or
any rule adopted pursuant to this Article.
(b1) If a serious violation is found by the Board, a civil penalty of not more than twenty thousand dollars ($20,000) per violation may be assessed. The Board may assess an additional penalty of up to one hundred thousand dollars ($100,000) for any violation that causes serious damage to the environment, serious injury to property, or serious injury to, or death of, any person. The Board or its designated representatives may in its discretion issue fines below these maximum amounts, taking into particular consideration whether the violation occurred at a small farm.
(c) Proceedings for the assessment of civil penalties under this section shall be governed by Chapter 150B of the North Carolina General Statutes. If the person assessed a civil penalty fails to pay the penalty to the North Carolina Department of Agriculture and Consumer Services, the Board may institute an action in the superior court of the county in which the person resides or has his principal place of business to recover the unpaid amount of said penalty. An action to recover a civil penalty under this section shall not relieve any party from any other penalty prescribed by law.
(d) Notwithstanding any other provision of
this Article, the maximum penalty which may be assessed under this section
against any person referred to in G.S. 143‑460(29)a shall not exceed
five hundred dollars ($500.00). Penalties may be assessed under this section
against a person referred to in G.S. 143‑460(29)a only for willful
violations.
(e) The clear proceeds of civil penalties assessed pursuant to this section shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2."
SECTION 11. Chapter 95 of the General Statutes is amended by adding a new Article to read:
"Article 24.
"Miscellaneous Provisions.
"§ 95‑275. Work break requirements.
(a) The federal standard provided in 29 C.F.R. § 1910.141(c)(1)(i) is adopted and shall be enforced by the Department of Labor of North Carolina. In addition, the following standards shall apply to employees in poultry processing plants as defined by Standard Industrial Classification (SIC) code 2015 (poultry slaughtering and processing) or North American Industry Classification System code 311615.
(b) Employees shall be provided prompt access to toilet facilities. The employee shall have sole authority over the timing of toilet breaks while being expected to recognize reasonable accommodation to workplace needs. Restrictions on access must be reasonable, and may not cause extended delays.
"§ 95‑276. Heat illness.
The North Carolina Department of Labor shall adopt rules to prevent heat illness in agricultural workers, requiring that workers have sufficient access to drinking water and shade; providing for training for employees, supervisors, and employers on heat stress prevention and signs and symptoms of heat illness; providing employees with the ability to communicate with emergency personnel if heat illness symptoms are experienced in the field or in migrant housing; and establishing special protocols for high heat working conditions to protect employee health.
For the purposes of this section, "heat illness" means a serious medical condition resulting from the body's inability to cope with a particular heat load, and includes heat cramps, heat exhaustion, heat syncope, and heatstroke."
SECTION 12. This act is effective when it becomes law.
