HB2 Repeal Brings Unwanted Surprise for Employers

Blog Post created by 1002028 on Apr 17, 2017

Last week the NC legislature repealed the controversial HB2 and the new law was quickly signed by Governor Cooper on March 30th.  In repealing HB2, HB142 enacts a new statute preempting state agency and local governments from regulating access to multiple occupancy restrooms, showers, or changing facilities except to the extent authorized by the General Assembly. HB142 also imposes a moratorium on local government ordinances regulating private employment practices and public accommodations. The moratorium expires on December 1, 2020.


Now for the unwanted surprise. HB142 also repeals House Bill 169, giving employees up to three years to sue their former employer in state court for discrimination based wrongful discharge. HB169 was signed by Governor Pat McCrory in July 2016.  


HB169 did two things.  First, it restored the right to sue in state court for discrimination-based wrongful discharge (taken away by HB2).   In the 1980's and 1990's, our courts created that right in appellate decisions. No EEOC charge was required.  HB2 deleted that judge-made law. HB169 (Sec. 1-54(12)) specifically restored that right by statute:  "For wrongful discharge in violation of the public policy set forth in G.S. 143-422.2."  Second, HB169 changed the statute of limitations on this right to one year, versus the three year statute in prior years.  So, employers got a shorter statue of limitations and employees got an actual law that would theoretically be immune from fluctuations in future appellate court decisions.  Now with the repeal of HB2 and HB169, employees have up to three years to sue for discrimination based wrongful discharge in state court, however that right is not codified in statute so the courts could affect that time frame going forward.  


As with HB2, the bathroom provisions of HB142 do not affect private employers and enforcement provisions haven't been spelled out.  For a good read on HB142, check out this blog post by Norma Houston with the UNC School of Government.  


If you have any questions about this bill or need help with an employee termination, please call our Advice & Resolution team.