Yet North Carolina’s civil law may be the most powerful yet passed by a state to protect its agricultural operations.
In his veto message, McCrory said he supports the purpose of House Bill 405, but that he just wanted lawmakers to do more work on it to protect the “honest employees” who “uncover criminal activity.”
But North Carolina legislators would not wait. With override votes greater than the three-fifths majorities required, the House voted 79-36 and the Senate voted 33-15 to override. The two bodies acted within 30 minutes of one another on Wednesday, June 3.
Strictly speaking, HB 405 does not meet what had been the definition of an “ag-gag” bill, but opponents were quick to call it that. Indeed, HB 405 was called more far-reaching than traditional “ag-gag” bills by Chloe Waterman, senior manager of government relations for the American Society for the Prevention of Cruelty to Animals.
Waterman sees HB 405 as vaguely worded, failing to take into account an employee’s intent at the time they were hired, and applying too broadly to all industries, not just agriculture.
State Rep. John Szoka (R-Fayetteville), the bill’s chief sponsor, insists that nothing in the bill will stop regular employees from reporting illegal workplace activities or practices.
The newly adopted North Carolina law, which will take effect on Jan. 1, 2016, provides for “civil remedies for interference with property.” It establishes a civil “right of action” for the owner or person in lawful possession of property if that property is wrongfully taken or carried away.
The target of recovery can be any person who enters the non-public area of another’s premises, including an employee who captures or removes data, paper records or documents and then uses the information to breach the person’s “loyalty to the employer.” The same liability falls on the employee who records images or sound or conducts electronic surveillance in non-public areas.
In a civil lawsuit, the employer could seek up to $5,000 per day for every day that violations continue. Civil payments going to the employer are not found in the typical criminal “ag-gag” law. The potential for “ag-gag” lawsuits has both animal welfare activists and industry talking about the North Carolina law.
Animal welfare activists working undercover have frequently collected evidence of alleged animal abuse. It is sometimes viewed as serious by independent animal welfare experts, and sometimes not. Animals in severe stress or extended pain are considered a food safety risk, and evidence of that has led to both recalls and dropped suppliers.
Any civil litigation emerging from the North Carolina law will likely be closely watched by both activist groups and the animal agriculture industry. Since animal welfare activists often attempt to bring negative publicity to larger companies or brands connected to a site where abuse is occurring, the potential for large damage claims is always there.
North Carolina’s was the only “ag-gag” bill to make it through the legislative process this year. It’s too early to know whether other states might follow the model, but clearly there is interest in the civil approach.
Utah and Idaho “ag-gag” laws are currently being challenged in federal court on constitutional grounds.
Before the North Carolina civil bill, criminal “ag-gag” bills were adopted in two spurts. The first came during the 1990-91 legislative season when Montana, North Dakota and Kansas adopted their “ag-gag” laws. Then, after 2010, about half the state legislatures in the country considered such measures, and they were passed in Iowa, Missouri, Idaho and Utah.
