North Carolina General Statutes 95-138. Civil penalties
(a) The Commissioner, 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, for amounts set in accordance with subsection (a1) of this section, except as otherwise provided, as follows:
(1) A penalty shall be assessed for each willful or repeat violation.
(2) A penalty shall be assessed for each serious violation.
(2a) A penalty of up to twenty-nine thousand dollars ($29,000) shall be assessed for each serious violation that involves injury to an employee under 18 years of age.
(2b) A penalty may be assessed for each violation that is adjudged not to be of a serious nature.
(3) A penalty shall 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 shall be assessed for violating the posting requirements, as required under the provisions of this Article.
(a1) The Commissioner shall adjust minimum and maximum civil penalties in this section in accordance with the requirements set forth in the United States Consumer Price Index for All Urban Consumers published by the United States Department of Labor as necessary to comply with federal law. The Commissioner shall have a period of 60 calendar days from the date a final rule is published in the Federal Register to publish the civil penalties in the North Carolina Register under 13 NCAC 07A .0301 or any related or subsequent regulations setting penalty standards in compliance with Part 1903 of Title 29 of the Code of Federal Regulations, and on its website.
(b) The Commissioner shall adopt uniform standards that the Commissioner, 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.
(5) Whether the violation involves injury to an employee under 18 years of age.
(b1) 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.
(c) The clear proceeds of all civil penalties and interest recovered by the Commissioner, together with the costs thereof, shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with N.C. Gen. Stat. § 115C-457.2 ?(1973, c. 295, s. 13; 1987 (Reg. Sess., 1988), c. 1111, s. 12; 1989 (Reg. Sess., 1990), c. 844; 1991, c. 329, s. 1; c. 761, s. 17; 1993, c. 474, s. 2; 1998-215, s. 111; 2004-203, s. 39(a); 2005-133, s. 8; 2006-39, s. 3; 2009-351, s. 4; 2022-74, s. 13.2(a).)
Terms Used In North Carolina General Statutes 95-138
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Commission: North Carolina Occupational Safety and Health Review Commission established under this Article. See North Carolina General Statutes 95-127
- Commissioner: The Commissioner of Labor of North Carolina. See North Carolina General Statutes 95-127
- Day: A calendar day unless otherwise noted. See North Carolina General Statutes 95-127
- Department: The North Carolina Department of Labor of North Carolina. See North Carolina General Statutes 95-127
- Director: The officer or agent appointed by the Commissioner of Labor for the purpose of assisting in the administration of the Occupational Safety and Health Act of North Carolina. See North Carolina General Statutes 95-127
- Employee: An employee of an employer who is employed in a business or other capacity of his or her employer, including any and all business units and agencies owned and/or controlled by the employer. See North Carolina General Statutes 95-127
- Employer: 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. See North Carolina General Statutes 95-127
- following: when used by way of reference to any section of a statute, shall be construed to mean the section next preceding or next following that in which such reference is made; unless when some other section is expressly designated in such reference. See North Carolina General Statutes 12-3
- Serious violation: A violation that 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. See North Carolina General Statutes 95-127
- United States: shall be construed to include the said district and territories and all dependencies. See North Carolina General Statutes 12-3