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Involuntary Terminations: South Carolina

Involuntary Terminations requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Author: Meryl Gutterman, Nukk-Freeman & Cerra, P.C.

Summary

  • Where the at-will employment relationship has been modified by the terms of a specific verbal or written agreement, South Carolina employees may only be terminated for cause. See Termination for Cause.
  • The South Carolina Payment of Wages Act sets forth rules for how employers should make the final payment of wages. See Payment of Final Wages.
  • Some individuals may not be eligible for unemployment benefits, depending on the reason for termination. See Eligibility for Unemployment Benefits.
  • Public employees are protected by the South Carolina Whistleblower Act when reporting allegations of misconduct and wrongdoing by a public official or employee. See South Carolina Whistleblower Law.
  • South Carolina has a whistleblower protection statute for public and private employees who report violations of statutes, rules or regulations regarding occupational safety and health. See Occupational Safety and Health Act Whistleblower Protections.
  • South Carolina law restricts employers in their ability to terminate individuals based on their use of lawful products or political affiliations. See Other Restrictions on Termination.
  • South Carolina has laws that apply to certain employers planning or implementing a reduction in force, requiring those employers to disclose more information and seek pre-approval of any RIF from a state agency. See Layoffs, Reductions in Force and Plant Closings.

Termination for Cause

Where the at-will employment relationship has been modified by the terms of a specific verbal or written agreement, South Carolina employees may only be terminated for cause. This is a distinction from termination at will, which is permissible at any time, for any lawful reason.

There is no settled definition of for cause in South Carolina, so employers should review the information contained in the federal section for information regarding what constitutes good cause for termination of an employment contract. See Recruiting and Hiring > Employment At-Will > The Seven Rules for Just Cause.

Payment of Final Wages

The South Carolina Payment of Wages Act sets forth rules for how employers should make the final payment of wages, including salary, bonuses, and accrued vacation pay, to employees who leave their job either voluntarily or involuntarily.

The Act states that all wages owed to a separating employee must be paid either within 48 hours of the separating employee's last date of work or no later than the next regular pay date, whichever date comes later. In either event, the final payment must be made within 30 days of the employee's last day of employment. +S.C. Code Ann. §41-10-50.

Eligibility for Unemployment Benefits

Certain events will disqualify individuals from eligibility for unemployment benefits like resignation (without good cause), termination for misconduct or gross misconduct, termination for cause related to employment, discharge for illegal drug use, separation due to labor disputes, voluntary retirement and refusal to actively look for work. +S.C. Code Ann. §41-35-120.

For terminations related to illegal drug use, South Carolina requires that a positive blood, hair or urine specimen should be collected and labeled by a licensed health care professional or other authorized individual.

Additionally, the test used to collect the positive specimen must be performed by a laboratory certified by the National Institute on Drug Abuse, the Collect of American Pathologists, or the State Law Enforcement Division.

Finally, an initial positive test must be confirmed using the gas chromatography/mass spectrometry method or an equivalent method.

For more information on eligibility for unemployment benefits, see Unemployment Insurance: South Carolina.

Final Payment of Vacation, Holiday or Sick Days

If an employer has a policy or employment contract that provides for the payment of vacation, holiday or sick leave due an employee, the employer must treat such payments as wages and make all final payments in accordance with the the South Carolina Payment of Wages Act. +S.C. Code Ann. §41-10-10(2).

Under these circumstances, employees leaving their job would be entitled to the monetary value of their accrued vacation, holiday or sick pay.

South Carolina Whistleblower Law

Public employees are protected by the South Carolina Whistleblower Act when reporting allegations of misconduct or wrongdoing by a public official or employee. An employee may file a report of alleged misconduct or wrongdoing without fear of reprisal. +S.C. Code Ann. § 8-27-10 to +S.C. Code Ann. § 8-27-50.

South Carolina state employees are protected from retaliation or disciplinary actions when they report violations of state or federal laws or regulations or other wrongdoing including fraud, substance abuse, misuse, destruction or loss of substantial public funds or resources, or intentional violations of law, regulations, ordinances or codes of ethics. +S.C. Code Ann. § 8-27-10 to +S.C. Code Ann. § 8-27-50.

The Whistleblower Act prohibits a South Carolina public body from terminating public employees based on the employee's filing of a protected report of wrongdoing with an appropriate authority. +S.C. Code Ann. §8-27-20(A). The protected report must be made by the whistleblower in good faith and not be a mere technical violation. The Act does not apply to private, non-government employers or employees. +S.C. Code Ann. §8-27-50. Importantly, the good faith requirement also shields employees who conclude, in good faith, that violations of the law have occurred, but who prove to be wrong about their good faith beliefs regarding violations of the law.

Civil Remedies

If a South Carolina government employee is terminated within one year after having timely filed a protected report which alleged wrongdoing, the employee may institute a non-jury civil action against the public body employer after exhausting all available grievance or other administrative remedies. Further, the employee may only proceed to filing a civil action when such administrative proceedings have resulted in a finding that the employee would not have been disciplined but for the reporting of alleged wrongdoing. +S.C. Code Ann. §8-27-30.

The employee who makes a successful claim for retaliation in violation of the whistleblower protection may recover any or all of the following:

  • Reinstatement to his or her former employment position;
  • Lost wages;
  • Actual damages not to exceed Fifteen Thousand Dollars ($15,000); and
  • Reasonable attorney fees as determined by the court.

Occupational Safety and Health Act Whistleblower Protections

South Carolina has a whistleblower protection statute for public and private employees who report violations of statutes, rules or regulations regarding occupational safety and health. +S.C. Code Ann. §41-15-510. The protected activities include filing a complaint, instituting a proceeding, or testifying about OSHA violations.

Any private sector employee who believes they have been discharged or discriminated against in violation of §41-15-510 may, within 30 days after the violation occurs, file a complaint with the Director of the Department of Labor, Licensing and Regulation alleging the discrimination.

Upon receipt of the complaint, the director will, within 15 days, forward the complaint to the United States Department of Labor whistleblower program. Any public sector employee believing that they have been discharged or discriminated against in violation of §41-15-510 may proceed with a civil action. +S.C. Code Ann. §41-15-520.

Other Restrictions on Termination

Tobacco Use

Employers are prohibited from making the use of tobacco products outside the workplace the motivation for a personnel action, including employment, termination, demotion, or promotion of an employee. +S.C. Code Ann. §41-1-85.

Political Opinions

It is unlawful to discharge an employee because of political opinions or the exercise of political rights and privileges including voting or joining political affiliation groups. +S.C. Code Ann. §16-17-560.

Layoffs, Reductions in Force and Plant Closings

South Carolina has laws that apply to state agencies implementing a reduction in force (RIF). A state agency can only implement a RIF for one or more of the following reasons:

  • Reorganization;
  • Work Shortage, such as automation or declining enrollment;
  • Loss of Funding, such as budget cuts or grant revenue loss; or
  • Outsourcing/Privatization, such as contracting with a company for printing services.

South Carolina law sets forth regulations on implementing a public sector RIF, including laws on recall rights, reporting requirements, notification requirements, and grievance procedures.

Specifically, S.C. HR Reg. 19-719.04 requires public employers to establish a written RIF policy, excluding academic personnel. Educational institutions are still required to comply, but the policy need not pertain to teachers and professors.

The statute also requires the public employer to issue a written plan to the Office of Human Resources prior to implementing any RIF for review and approval. At minimum, the written plans must include the following:

  • A reason for the layoff;
  • The jobs to be affected by the layoff;
  • A proposed list of employees to be included, with their age, race, sex and "retention point order;"
  • Efforts that will be made to assist laid off employees to find other employment; and
  • Justification of the use of any retention of necessary qualifications as provided by the agency's RIF policy.

Once the RIF plan is approved by the Office of Human Resources, the employer must provide the following to the affected employees, in writing:

  • A reason for the layoff;
  • The jobs to be affected by the layoff;
  • The effects of inclusion in the RIF on state benefit entitlements;
  • Any assistance to be offered by the Office of Human Resources;
  • The employee's recall rights, if any; and
  • The method of notification the employee should expect, if another job should become available to him or her.

Further, +S.C. Code Ann. §8-11-185 requires state agencies to report RIFs to the Office of Human Resources, including information pertaining to all the employees affected by the reduction. The statute requires employers to disclose the name and social security number of all employees, the positions held, job classification, grade, years of experience, and the individual's priority status for being considered for other positions in the public sector.

The statute also requires that public employers seeking to fill a vacancy or new position must first obtain information from the Office of Human Resources and thus, provide priority consideration to employees terminated due to a RIF for any vacancy or new position in the same classification. Public employers are prohibited from filling open positions if they do not first seek to fill the position from among similarly qualified employees provided by the Office of Human Resources.

+S.C. Code Ann. §8-17-330 requires public employers to establish a written grievance procedure, to be approved by the Office of Human Resources. In the context of RIFs, if the employer or the Office of Human Resources finds that the employer inconsistently or improperly applied its grievance policy or written reduction in force policy, an employee's inclusion in a RIF may be considered an adverse employment action worthy of a grievance hearing.

Future Developments

There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.