April 4, 2016
North Carolina’s HB2 “bathroom” bill that requires trans people to use the bathroom for the gender indicated on their birth certificates has received national attention. Unfortunately, coverage of the bill — really, the law, at this point — has largely been reduced to who should be able to use which bathroom.
It is more. There has been at least some discussion of how the new law prohibits a local government or any “political subdivision of the state” from establishing gender identity as a class protected from employment discrimination. What has received little attention is how an entire section of the law has nothing explicit to do with issues of gender identity. Instead, it prohibits local governments from affecting employment conditions in private companies.
Part 2 of the law, which reworks the state’s “Wage and Hour Act,” prevents any local government, whether city, town, or county, from regulating wage levels, hours of labor, or benefits of private employers. Here is the pertinent language:
The provisions of this Article supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement upon an employer pertaining to compensation of employees, such as the wage levels of employees, hours of labor, payment of earned wages, benefits, leave, or well-being of minors in the workforce.
A local government still can control benefits and compensation of its own employees, although it cannot place any requirements on contractors it uses to carry out work. In the past, according to the sections struck, a local government could place requirements on a contractor so long as it could have imposed the same requirements on all its employees.
Some of the advances in battling income inequality have come at the local level. Cities and counties have set higher minimum wages, regulated the number of hours employers must provide employees, required that employers give advanced notice of hours so employees can manage their personal and other work schedules, and instituted mandatory sick time.
Under HB2, that is not possible in North Carolina.
Plus, there’s an additional twist:
A city [or county] may not require a private contractor under this section to abide by regulations or controls on the contractor’s employment practices or mandate or prohibit the provision of goods, services, or accommodations to any member of the public as a condition of bidding on a contract or a qualification-based selection, except as otherwise required by state law.
That would seem to reinforce the last section of the law, meaning that a locality couldn’t require a contractor to service any particular group, like trans people, if not required to by state law.