Ask Anything: 10 questions with N.C. Labor Commissioner Cherie Berry

N.C. Labor Commissioner Cherie Berry answers your questions about elevator safety, restaurant violations and overtime pay.

Posted 11:07 a.m. Jan 13, 2009 — Updated 6:03 p.m. Jul 13, 2018

Why does inspecting elevators come under the labor commission, and who really goes out to EVERY elevator in the state and checks them? – Denise Hughes, Nashville

The General Assembly gave the N.C. Department of Labor the responsibility for inspecting elevators under the Elevator Safety Act of North Carolina.

Our Elevator and Amusement Device Bureau has 32 elevator inspectors and five area supervisors who perform annual inspections on the 22,000 elevators, escalators, moving walks, dumbwaiters and handicapped lifts under the department’s jurisdiction.

These inspectors also perform more than 6,000 amusement ride inspections. All of our inspectors hold Qualified Elevator Inspector certificates.

Is it against the rules of the labor commission to have an office TOO COLD? I sit in my cubicle and freeze all day long because of the cold air blowing on my neck. What can we do about this??? – CallieCat, Durham

There is not an occupational safety and health regulation that covers an office being too cold. You could ask your employer if it is possible to install a diverter that would keep the cold air from blowing on you directly.

When one of your health and safety inspectors comes across a violation in a restaurant or a business, are they allowed to do anything about fixing the problems with enforcement of any applicable laws or do they just pat the business owner on the head and say don’t worry? – James L. Hall, Ahoskie

Our workplace safety and health professionals enforce the Occupational Safety and Health Act. They are trained to identify hazards of all types and severity and will issue citations where appropriate. Our goal is simply to make North Carolina workplaces as safe as possible. Currently our injury and illness rate is at an all-time low.

I work eight hours a day, five days a week. We are not given a lunch or break during the entire day. Is this lawful? Is it up to the discretion of the employer to be able to do this to us or is it required by the state that we have a lunch or at least a break? – Kerri, Henderson

Employers are not required by either state or federal wage and hour laws to give breaks to employees who are at least 16 years of age. Employees younger than 16 are required to have a rest break of at least 30 minutes after five consecutive hours of work.

For many years, I worked for a doctor in a very small office – only three employees. Sometimes, I worked two or three hours overtime a week. I was paid by the hour and he would never pay me overtime. He said he did not have to because it was a small office. Was he right? – Susan, Raleigh

Both state and federal wage and hour laws require employers to pay all non-exempt employees who actually work more than 40 hours in a given workweek overtime pay at the rate of one and one-half their regular hourly rate. All hourly employees are non-exempt. There is no exemption for small offices.

How do I start a claim for non-payment for hours of work? I have called both the N.C. Labor Board and the Federal Labor Board. The NCDOL tells me I need to call a federal number and the federal office tells me I need to call the NCDOL. – Nathan Brewer, Raleigh

This issue was presented to the Wage and Hour Director in December, who promptly addressed it with the USDOL national office for resolution. Steps have been taken to fix this problem and hopefully they are now in place.

We sometimes have to refer callers to the USDOL because of jurisdictional issues where the federal enforcement supersedes the protections of the North Carolina Wage and Hour Act.

If you continue to have these problems, please contact our Wage and Hour Director through the toll-free telephone number (1-800-625-2267) or by e-mail at ask.wageandhour@nclabor.com.

In order to file a wage payment complaint, citizens should call our toll free number above and an information specialist will be glad to take down the pertinent information.

Why are North Carolina state employees not protected by the N.C. Labor commission, as the employees of private businesses are? – Fay Bowden, Benson

North Carolina law states that: “The provisions of the North Carolina Wage and Hour Act do not apply to the State of North Carolina, any city, town, county, or municipality, or any State or local agency or instrumentality of government, . . .” (N.C. Gen. Stat. §95-25.14(c))

State and local government employees are protected under the Occupational Safety and Health Act of North Carolina. They can file complaints with our OSH Division concerning occupational safety and health problems on their jobs.

State and local government employees are also protected from retaliatory discrimination under the Retaliatory Employment Discrimination Act of North Carolina. This law covers employees in several areas, including workplace safety rights, mine safety and health, sickle cell and hemoglobin C carriers, genetic testing, National Guard service, juvenile justice system, and domestic violence.

Furthermore, state and local government agencies must follow the procedures of the Controlled Substance Examination Regulation Act if they perform employment-related drug testing.

I own a small business and carry workers comp. Is it necessary to have employees punch a time clock, even though they are paid on commission? – Stan Creech, Raleigh

Employers must keep an accurate record of the hours worked by each non-exempt employee for each day and each workweek whether they earn commission, an hourly wage or salary. However, the statutes do not specify the method to be used to keep such records such as time clocks or other methods.

What are the guidelines for temps? I was told that for the temp either had to be hired after one year or let go. What if you are not hired after one year and work several years as a temp? Is there a law for this? – Larry Melton, Stem

Neither state nor federal wage and hour laws define temporary versus full-time employees. Employers are allowed to come up with their own definitions for temporary and full-time workers. Employers are also allowed to create their own policies regarding temporary workers. Therefore, this is a matter outside the enforcement jurisdiction of NCDOL.

I noticed during the recent election – why I never thought of this before – but since your picture is on every elevator wall don't you think that is a good campaign strategy for name recognition? – V Brock, Chapel Hill

I’m sure the photo does help with name recognition. State agencies are often lumped together in people’s minds as one big bureaucracy. I wanted to put a face with a name – someone that the people could identify with when they thought of the N.C. Department of Labor.