State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_126 > GS_126-5

§ 126‑5.  Employeessubject to Chapter; exemptions.

(a)        The provisions ofthis Chapter shall apply to:

(1)        All State employeesnot herein exempt, and

(2)        All employees of thefollowing local entities:

a.         Area mental health,developmental disabilities, and substance abuse authorities.

b.         Local socialservices departments.

c.         County healthdepartments and district health departments.

d.         Local emergencymanagement agencies that receive federal grant‑in‑aid funds.

Anemployee of a consolidated county human services agency created pursuant toG.S. 153A‑77(b) is not considered an employee of an entity listed in thissubdivision.

(3)        County employees notincluded under subdivision (2) of this subsection as the several boards ofcounty commissioners may from time to time determine.

(b)        As used in thissection:

(1)        "Exemptposition" means an exempt managerial position or an exempt policymakingposition.

(2)        "Exemptmanagerial position" means a position delegated with significantmanagerial or programmatic responsibility that is essential to the successfuloperation of a State department, agency, or division, so that the applicationof G.S. 126‑35 to an employee in the position would cause unduedisruption to the operations of the agency, department, institution, or division.

(3)        "Exemptpolicymaking position" means a position delegated with the authority toimpose the final decision as to a settled course of action to be followedwithin a department, agency, or division, so that a loyalty to the Governor orother elected department head in their respective offices is reasonablynecessary to implement the policies of their offices. The term shall notinclude personnel professionals.

(4)        "Personnelprofessional" means any employee in a State department, agency,institution, or division whose primary job duties involve administrativepersonnel and human resources functions for that State department, agency,institution, or division.

(c)        Except as to thepolicies, rules, and plans established by the Commission pursuant to G.S. 126‑4(1),126‑4(2), 126‑4(3), 126‑4(4), 126‑4(5), 126‑4(6),and 126‑7, and except as to the provisions of Articles 6 and 7 of thisChapter, the provisions of this Chapter shall not apply to:

(1)        A State employee whois not a career State employee as defined by this Chapter.

(2)        One confidentialassistant and two confidential secretaries for each elected or appointeddepartment head and one confidential secretary for each chief deputy or chiefadministrative assistant.

(3)        Employees in exemptpolicymaking positions designated pursuant to G.S. 126‑5(d).

(4)        The chief deputy orchief administrative assistant to the head of each State department who isdesignated either by statute or by the department head to act for and performall of the duties of such department head during his absence or incapacity.

(c1)      Except as to theprovisions of Articles 6 and 7 of this Chapter, the provisions of this Chaptershall not apply to:

(1)        Constitutionalofficers of the State.

(2)        Officers andemployees of the Judicial Department.

(3)        Officers andemployees of the General Assembly.

(4)        Members of boards,committees, commissions, councils, and advisory councils compensated on a perdiem basis.

(5)        Officials oremployees whose salaries are fixed by the General Assembly, or by the Governor,or by the Governor and Council of State, or by the Governor subject to theapproval of the Council of State.

(6)        Employees of theOffice of the Governor that the Governor, at any time, in the Governor'sdiscretion, exempts from the application of the provisions of this Chapter bymeans of a letter to the State Personnel Director designating these employees.

(7)        Employees of theOffice of the Lieutenant Governor, that the Lieutenant Governor, at any time,in the Lieutenant Governor's discretion, exempts from the application of theprovisions of this Chapter by means of a letter to the State Personnel Directordesignating these employees.

(8)        Instructional andresearch staff, physicians, and dentists of The University of North Carolina,including the faculty of the North Carolina School of Science and Mathematics.

(9)        Employees whosesalaries are fixed under the authority vested in the Board of Governors of TheUniversity of North Carolina by the provisions of G.S. 116‑11(4), 116‑11(5),and 116‑14.

(9a)      Employees of theNorth Carolina Cooperative Extension Service of North Carolina State Universitywho are employed in county operations and who are not exempt pursuant tosubdivision (8) or (9) of this subsection.

(10)      Repealed by SessionLaws 1991, c. 84, s. 1.

(11)      Repealed by SessionLaws 2006‑66, s. 9.11(z), effective July 1, 2007.

(12), (13) Repealed by SessionLaws 2001‑474, s. 15, effective November 29, 2001.

(14)      Employees of theNorth Carolina State Ports Authority.

(15)      Employees of theNorth Carolina Global TransPark Authority.

(16)      The executivedirector and one associate director of the North Carolina Center for Nursingestablished under Article 9F of Chapter 90 of the General Statutes.

(17)      Repealed by SessionLaws 2004‑129, s. 37, effective July 1, 2004.

(18)      Employees of theTobacco Trust Fund Commission established in Article 75 of Chapter 143 of theGeneral Statutes.

(19)      Employees of theHealth and Wellness Trust Fund Commission established in Article 21 of Chapter130A of the General Statutes.

(20)      Repealed by SessionLaws 2008‑134, s. 73(d), effective July 28, 2008.

(21)      Employees of theClean Water Management Trust Fund.

(22)      Employees of theNorth Carolina Turnpike Authority.

(23)      The ExecutiveAdministrator and the Deputy Executive Administrator of the State Health Planfor Teachers and State Employees.

(24)      Employees of theState Health Plan for Teachers and State Employees as designated by law or bythe Executive Administrator of the Plan.

(25)      The North CarolinaState Lottery Director and employees of the North Carolina State Lottery.

(26)      The ExecutiveDirector, associate and assistant directors, and instructional staff of theNorth Carolina Teacher Academy.

(27)      The ChiefAdministrative Law Judge of the Office of Administrative Hearings.

(28)      The ExecutiveDirector and the Assistant Director of the U.S.S. North Carolina BattleshipCommission.

(29)      The ExecutiveDirector, Deputy Director, all other directors, assistant and associatedirectors, and center fellows of the North Carolina Center for the Advancementof Teaching.

(c2)      The provisions ofthis Chapter shall not apply to:

(1)        Public schoolsuperintendents, principals, teachers, and other public school employees.

(2)        Recodified as G.S.126‑5(c)(4) by Session Laws 1985 (Regular Session, 1986), c. 1014, s. 41.

(3)        Employees ofcommunity colleges whose salaries are fixed in accordance with the provisionsof G.S. 115D‑5 and G.S. 115D‑20, and employees of the CommunityColleges System Office whose salaries are fixed by the State Board of CommunityColleges in accordance with the provisions of G.S. 115D‑3.

(c3)      Except as to thepolicies, rules, and plans established by the Commission pursuant to G.S. 126‑4(5)and the provisions of Article 6 of this Chapter, the provisions of this Chaptershall not apply to: Teaching and related educational classes of employees ofthe Department of Correction, the Department of Health and Human Services, andany other State department, agency or institution, whose salaries shall be setin the same manner as set for corresponding public school employees inaccordance with Chapter 115C of the General Statutes.

(c4)      Repealed by SessionLaws 1993, c. 321, s. 145(b).

(c5)      Notwithstanding anyother provision of this Chapter, Article 14 of this Chapter shall apply to allState employees, public school employees, and community college employees.

(c6)      Article 15 of thisChapter shall apply to all State employees, public school employees, andcommunity college employees.

(c7)      Except as to thepolicies, rules, and plans established by the Commission pursuant to G.S. 126‑4(1),126‑4(2), 126‑4(3), 126‑4(4), 126‑4(5), 126‑4(6),126‑7, 126‑14.3, and except as to the provisions of G.S. 126‑14.2,G.S. 126‑34.1(a)(2), and Articles 6 and 7 of this Chapter, the provisionsof this Chapter shall not apply to exempt managerial positions.

(c8)      Except as to theprovisions of Articles 5, 6, 7, and 14 of this Chapter, the provisions of thisChapter shall not apply to:

(1)        Employees of theUniversity of North Carolina Health Care System.

(2)        Employees of theUniversity of North Carolina Hospitals at Chapel Hill, as may be providedpursuant to G.S. 116‑37(a)(4).

(3)        Employees of theclinical patient care programs of the School of Medicine of the University ofNorth Carolina at Chapel Hill as may be provided pursuant to G.S. 116‑37(a)(4).

(4)        Employees of theMedical Faculty Practice Plan, a division of the School of Medicine of EastCarolina University.

(c9)      Notwithstanding anyother provision of this section, the provisions of Article 16 of this Chaptershall apply to all exempt and nonexempt State employees in the executive,legislative, and judicial branches unless provided otherwise by Article 16 ofthis Chapter. The provisions of Article 16 of this Chapter shall not apply toemployees described in subdivisions (2) and (3) of subsection (a) of thissection.

(c10)    Notwithstanding anyother provision of this section, the provisions of G.S. 126‑8.5 shallapply to all exempt and nonexempt State employees in the executive,legislative, and judicial branch unless provided otherwise by G.S. 126‑8.5.The provisions of G.S. 126‑8.5 shall not apply to employees described insubdivisions (2) and (3) of subsection (a) of this section.

(c11)    The following areexempt from: (i) the classification and compensation rules established by theState Personnel Commission pursuant to G.S. 126‑4(1) through (4); (ii)G.S. 126‑4(5) only as it applies to hours and days of work, vacation, andsick leave; (iii) G.S. 126‑4(6) only as it applies to promotion and transfer;(iv) G.S. 126‑4(10) only as it applies to the prohibition of theestablishment of incentive pay programs; and (v) Article 2 of Chapter 126 ofthe General Statutes, except for G.S. 126‑7.1:

(1)        The Office of theCommissioner of Banks and its employees; and

(2)        The followingemployees of the Department of Cultural Resources:

a.         Director andAssociate Directors of the North Carolina Museum of History.

b.         Program Chiefs andCurators.

c.         Regional HistoryMuseum Administrators and Curators.

d.         North CarolinaSymphony.

e.         Director, AssociateDirectors, and Curators of Tryon Palace.

f.          Director, AssociateDirectors, and Curators of Transportation Museum.

g.         Director andAssociate Directors of the North Carolina Arts Council.

h.         Director, AssistantDirectors, and Curators of the Division of State Historic Sites.

(d)       (1)        ExemptPositions in Cabinet Department. – The Governor may designate a total of 100exempt policymaking positions throughout the following departments:

a.         Department ofAdministration;

b.         Department ofCommerce;

c.         Department ofCorrection;

d.         Department of CrimeControl and Public Safety;

e.         Department ofCultural Resources;

f.          Department ofHealth and Human Services;

g.         Department ofEnvironment and Natural Resources;

h.         Department ofRevenue;

i.          Department ofTransportation; and

j.          Department ofJuvenile Justice and Delinquency Prevention.

TheGovernor may designate exempt managerial positions in a number up to onepercent (1%) of the total number of full‑time positions in each cabinetdepartment listed above in this sub‑subdivision, not to exceed 30positions in each department. Notwithstanding the provisions of thissubdivision, or the other requirements of this subsection, the Governor may atany time increase by five the number of exempt policymaking positions at theDepartment of Health and Human Services, but at no time shall the total numberof exempt policymaking positions exceed 105. The Governor shall notify theGeneral Assembly and the State Personnel Director of the additional positionsdesignated hereunder.

(2)        Exempt Positions inCouncil of State Departments and Offices. – The Secretary of State, theAuditor, the Treasurer, the Attorney General, the Commissioner of Agriculture,the Commissioner of Insurance, and the Labor Commissioner may designate exemptpositions. The State Board of Education may designate exempt positions in theDepartment of Public Instruction. The number of exempt policymaking positionsin each department headed by an elected department head listed above in this sub‑subdivisionshall be limited to 20 exempt policymaking positions or one percent (1%) of thetotal number of full‑time positions in the department, whichever isgreater. The number of exempt managerial positions shall be limited to 20positions or one percent (1%) of the total number of full‑time positionsin the department, whichever is greater.

(2a)      Designation ofAdditional Positions. – The Governor, elected department head, or State Boardof Education may request that additional positions be designated as exempt. Therequest shall be made by sending a list of exempt positions that exceed thelimit imposed by this subsection to the Speaker of the North Carolina House ofRepresentatives and the President of the North Carolina Senate. A copy of thelist also shall be sent to the State Personnel Director. The General Assemblymay authorize all, or part of, the additional positions to be designated asexempt positions. If the General Assembly is in session when the list issubmitted and does not act within 30 days after the list is submitted, the listshall be deemed approved by the General Assembly, and the positions shall bedesignated as exempt positions. If the General Assembly is not in session whenthe list is submitted, the 30‑day period shall not begin to run until thenext date that the General Assembly convenes or reconvenes, other than for aspecial session called for a specific purpose not involving the approval of thelist of additional positions to be designated as exempt positions; the policymakingpositions shall not be designated as exempt during the interim.

(3)        Letter. – Thesepositions shall be designated in a letter to the State Personnel Director, theSpeaker of the House of Representatives, and the President of the Senate by May1 of the year in which the oath of office is administered to each Governorunless the provisions of subsection (d)(4) apply.

(4)        Vacancies. – In theevent of a vacancy in the Office of Governor or in the office of a member ofthe Council of State, the person who succeeds to or is appointed or elected tofill the unexpired term shall make such designations in a letter to the StatePersonnel Director, the Speaker of the House of Representatives, and thePresident of the Senate within 120 days after the oath of office isadministered to that person. In the event of a vacancy in the Office ofGovernor, the State Board of Education shall make these designations in aletter to the State Personnel Director, the Speaker of the House ofRepresentatives, and the President of the Senate within 120 days after the oathof office is administered to the Governor.

(5)        Creation, Transfer,or Reorganization. – The Governor, elected department head, or State Board ofEducation may designate as exempt a position that is created or transferred toa different department, or is located in a department in which reorganizationhas occurred, after May 1 of the year in which the oath of office isadministered to the Governor. The designation must be made in a letter to theState Personnel Director, the Speaker of the North Carolina House ofRepresentatives, and the President of the North Carolina Senate within 120 daysafter such position is created, transferred, or in which reorganization hasoccurred.

(6)        Reversal. – Subsequentto the designation of a position as an exempt position as hereinabove provided,the status of the position may be reversed and made subject to the provisionsof this Chapter by the Governor, by an elected department head, or by the StateBoard of Education in a letter to the State Personnel Director, the Speaker ofthe North Carolina House of Representatives, and the President of the NorthCarolina Senate.

(7)        Hearing Officers. – Exceptas otherwise specifically provided by this section, no employee, by whatevertitle, whose primary duties include the power to conduct hearings, takeevidence, and enter a decision based on findings of fact and conclusions of lawbased on statutes and legal precedents shall be designated as exempt. Thissubdivision shall apply beginning July 1, 1985, and no list submitted afterthat date shall designate as exempt any employee described in this subdivision.

(e)        An exempt employeemay be transferred, demoted, or separated from his or her position by thedepartment head authorized to designate the exempt position except:

(1)        When an employee whohas the minimum service requirements described in G.S. 126‑1.1 but lessthan 10 years of cumulative service in subject positions prior to placement inan exempt position is removed from an exempt position, for reasons other thanjust cause, the employee shall have priority to any position that becomesavailable for which the employee is qualified, according to rules andregulations regulating and defining priority as promulgated by the StatePersonnel Commission; or

(2)        When an employee whohas 10 years or more cumulative service, including the immediately preceding 12months, in subject positions prior to placement in an exempt position isremoved from an exempt position, for reasons other than just cause, theemployee shall be reassigned to a subject position within the same departmentor agency, or if necessary within another agency, and within a 35 mile radiusof the exempt position, at the same grade and salary, including all across‑the‑boardincreases since placement in the position designated as exempt, as his mostrecent subject position.

(f)         A department headis authorized to use existing budgeted positions within his department in orderto carry out the provisions of subsection (e) of this section. If it isnecessary to meet the requirements of subsection (e) of this section, adepartment head may use salary reserve funds authorized for his department.

(g)        No employee shallbe placed in an exempt position without 10 working days prior written notificationthat such position is so designated. A person applying for a position that isdesignated as exempt must be notified in writing at the time he makes theapplication that the position is designated as exempt.

(h)        In case of disputeas to whether an employee is subject to the provisions of this Chapter, thedispute shall be resolved as provided in Article 3 of Chapter 150B.  (1965, c. 640, s. 2; 1967,c. 24, s. 20; cc. 1038, 1143; 1969, c. 982; 1971, c. 1025, s. 2; 1973, c. 476,s. 143; 1975, c. 667, ss. 8, 9; 1977, c. 866, ss. 2‑5; 1979, 2nd Sess.,c. 1137, s. 40; 1983, c. 717, s. 41; c. 867, s. 2; 1985, c. 589, s. 38; c. 617,s. 1; c. 757, s. 206(c); 1985 (Reg. Sess., 1986), c. 955, s. 43; c. 1014, ss.41, 235; c. 1022, s. 9; 1987, c. 320, s. 4; c. 395, s. 1; c. 809, s. 1; c. 850,s. 19; 1987 (Reg. Sess., 1988), c. 1064, s. 3; 1989, c. 168, s. 9; c. 236, s.3; c. 484; c. 727, s. 218(85); c. 751, s. 7(13); 1991, c. 65, s. 2; c. 84, ss.1, 2; c. 354, s. 3; c. 749, s. 4; 1991 (Reg. Sess., 1992), c. 879, s. 5; c.959, s. 85; 1993, c. 145, s. 1; c. 321, s. 145(b); c. 553, ss. 39, 40; 1993(Reg. Sess., 1994), c. 777, s. 4(g); 1995, c. 141, ss. 3, 5; c. 393, s. 1; 1995(Reg. Sess., 1996), c. 690, s. 15; 1997‑443, ss. 11A.118(a), 11A.119(a),22.2(b); 1997‑520, s. 3; 1998‑212, s. 11.8(b); 1999‑84, s.21; 1999‑253, s. 1; 1999‑434, s. 25; 2000‑137, s. 4(nn); 2000‑147, s. 4; 2000‑148, s. 3; 2001‑92,s. 2; 2001‑424, s. 32.16(a); 2001‑474, s. 15; 2001‑487, ss.21(d), 30(a), (b); 2002‑126, s. 28.4; 2002‑133, s. 4; 2004‑124,s. 31.27(b); 2004‑129, s. 37; 2005‑276, s. 29.34(b); 2005‑344,s. 9; 2006‑66, ss. 9.11(y), (z), 9.17(e), 18.2(e); 2006‑204, s. 2;2006‑221, s. 20; 2006‑259, s. 49; 2006‑264, s. 11; 2007‑117,s. 3(b); 2007‑195, s. 1; 2007‑323, s. 28.22A(o); 2007‑345, s.12; 2007‑484, s. 9(c); 2008‑134, s. 73(d); 2009‑451, s.9.13(f).)