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Total Articles: 50

Nevada Labor Commissioner Issues Advisory Opinions Clarifying Mandatory PTO Law

The Nevada Labor Commissioner issued two advisory opinions concerning Senate Bill (SB) 312, which, effective January 1, 2020, requires private employers with 50 or more employees in Nevada to provide paid leave that employees can use for any reason. SB 312 left several significant questions unanswered. In the advisory opinions, the Labor Commissioner addresses some of these issues, based on the state labor department's understanding of “the plain and unambiguous language of the bill and the intent of the Legislative Sponsors.” Below we summarize important clarifications the Labor Commissioner’s formal guidance provides.

Nevada Opts Out Before California: A Reminder to Review Website Privacy Statements

The California Consumer Privacy Act takes effect January 1, 2020. Businesses within the scope of the CCPA are taking steps to prepare, including drafting notices to inform California consumers of their right to opt out of the sale of their personal information. However, California will not be the first state to provide a consumer with the right to opt out of the sale of their personal information.

Nothing Ventured, Nothing Gained: New Employment Laws in Nevada

The Nevada Legislature had a busy 80th session in 2019, enacting a vast array of new laws affecting employers. Some highlights of this year’s session are new Nevada laws expanding remedies available for employment discrimination claims, expanding mandatory occupational safety training to employees involved in conventions and trade shows, codifying the definition of “health benefits” under the Minimum Wage Amendment Act, increasing the minimum wage, requiring annual paid leave for employees, redefining disclosure agreements regarding sex discrimination or sexual offenses settlements, and providing legal protections for applicants and employees with positive marijuana test results. This article will briefly discuss additional key labor and employment laws enacted this session that are in effect or will become effective in the State of Nevada.

Nevada Employers Invited to Comment on New Workplace Laws

The Nevada Legislature’s 80th session recently came to a close after a flurry of activity resulted in over 25 new laws affecting employers. Now, the Nevada Labor Commissioner, charged with enacting and/or amending regulations interpreting the new laws (through the Nevada Administrative Code or NAC), is inviting public comments on a few of the newly enacted laws.

Nevada Signs into Law Consumer Privacy Law

The California Consumer Privacy Act (CCPA), which goes into effect January 1, 2020, is considered the most robust state privacy law in the United States. The CCPA seems to have spurred a flood of similar legislative proposals on the state level, and started a shift in the consumer privacy law landscape. Many of these proposals end up dying somewhere along the rigorous legislative process, but in the last few weeks both Maine and Nevada signed into law bills that, although much more narrow than the CCPA, certainly bear resemblance.

Nevada Applicants and New Employees with Positive Marijuana Test Results Will Receive Legal Protections

Beginning January 1, 2020, new legislation in Nevada will require employers to think carefully about whether and which applicants should be tested for marijuana. Under A.B. 132, employers are generally prohibited from withholding a job offer because a candidate tests positive for marijuana use. Marijuana testing limitations will also apply to testing of employees within their first 30 days of employment. As detailed below, the law does not apply to certain types of positions. Nevada employers with current marijuana testing programs, and those considering implementation of marijuana testing, will be faced with a number of strategy and policy decisions as they prepare to comply with the new law.1

Settlement Agreements Cannot Prevent Nevada Employees from Disclosing Workplace Sex Discrimination or Harassment

Under a new Nevada law, effective July 1, 2019, employers that settle certain allegations involving sex discrimination or sexual offenses will not be able to bar the claimant from talking about the existence of the settlement, or the facts and circumstances giving rise to the claim.

The Competition over Revising and Enforcing Noncompete Agreements in Nevada

The Nevada Legislature and Nevada Supreme Court have not always seen eye-to-eye in the interpretation of noncompetition covenants. Historically, the two bodies have parried back and forth in trying to decide where Nevada will draw the line in enforcing restrictive covenants.1 In many cases, the Nevada Supreme Court opted for a strict stance and invalidated noncompetition agreements the court viewed as overly broad. In response, the Nevada legislature pushed back with a mandate that the court should broadly modify, or “blue-pencil,” these agreements to make them enforceable. Despite these efforts, this conflict and the overall discretionary nature of injunctive relief enforcement continue to create challenges in drafting strongly reliable noncompetition agreements in Nevada.

Nevada’s Continued Efforts to Increase the Minimum Wage

In 2006, Nevada’s Constitution was amended to establish a two-tier minimum wage system dependent upon whether an employer provides “health benefits” to its employees.

Nevada Enacts Minimum Wage Increase to $12 Per Hour

Nevada’s minimum wage will increase to $12.00 per hour (or $11.00 for employees offered health insurance) by mid-2024, based on a new bill signed into law by Nevada Governor Steve Sisolak. Beginning July 1, 2020, Nevada’s current minimum wage rates of $8.25 (without health insurance) and $7.25 (with health insurance) will increase by $0.75 to $9.00 and $8.00 respectively per hour, and will increase annually at that same rate until reaching $12.00 (or $11.00) per hour on July 1, 2024.

Jackpot! New Nevada Laws Provide Additional Benefits for Employees

This week, Governor Steve Sisolak signed a law requiring private employers with 50 or more employees in Nevada to provide 0.01923 hours of paid leave for each hour an employee works. Employees must be permitted to use up to forty hours of available paid leave “without providing a reason to his or her employer.” Nevada’s paid leave law is similar to the new paid leave law in Maine that requires employers provide paid leave that employees can use for any reason. New York City Council is reportedly considering similar legislation that would require paid personal time in addition to the safe/sick time that many employees are already entitled to. Nevada’s law takes effect on January 1, 2020 and Maine’s law takes effect on January 1, 2021.

Paid Leave Soon to be the Law in Nevada

Nevada Governor Steve Sisolak has announced his intent to sign Senate Bill No. 312, which will require, for the first time, that Nevada private-sector employers provide employees with up to 40 hours of paid leave per benefit year. Although originally styled as “sick leave” legislation, the final bill as enrolled requires that paid leave be made available to employees to be used for any reason. With limited exceptions, employers with 50 or more employees must provide paid leave to their employees in proportion to the number of hours worked. The bill makes no exception for part-time employees. The legislation becomes effective on January 1, 2020.

Nevada Codifies What Constitutes “Health Benefits” for Purposes of Nevada’s Minimum Wage Laws

On May 21, 2019, Nevada Governor Steve Sisolak signed a bill that seeks to clarify what type of health benefits an employer must provide in order to pay its employees the lower-tier minimum wage under the Minimum Wage Amendment (MWA) Act. The enactment of Senate Bill No. 192 appears to be in response to a Nevada Supreme Court decision issued last year that addressed this issue. Although the new law effectively overrules the court decision and codifies a new standard, questions about the range of new benefits that must be provided to qualify as “health benefits” and their resulting cost will likely remain.

Nevada Expands Remedies Available for Employment Discrimination Claims

The Nevada Legislature recently passed Senate Bill No. 177, which greatly expands the remedies available under Nevada’s anti-discrimination statute and provides other significant changes to the administrative process before the Nevada Equal Rights Commission (“NERC”). Senate Bill No. 177 passed both legislative houses with overwhelming support and Governor Sisolak signed the bill on May 21, 2019. The measure becomes effective on October 1, 2019.

Time Spent in Security Screening Compensable under Laws of Nevada and Arizona, Federal Court Rules

The laws of Nevada and Arizona require employers to pay their workers for time spent going through security screenings at the end of their shifts, the federal appeals court in Cincinnati has ruled. Busk et al. v. Integrity Staffing Solutions et al., Nos. 17-5784 and 17-5785 (6th Cir. Sept. 19, 2018).

Non-Compete Covenants Must be Reasonable for Preliminary Injunction, Nevada Supreme Court Affirms

A non-compete agreement in Nevada “must be limited to the geographical areas in which an employer has particular business interests,” the Nevada Supreme Court has affirmed. Shores v. Global Experience Specialists, Inc., 134 Nev. Adv. Op. 61 (Aug. 2, 2018).

Nevada Employer Pays $3.5 Million To Settle “100-Percent Healed” Claim

Slots chain employer Dotty’s recently agreed to pay $3.5 million to settle litigation alleging its “100-percent-healed” policy discriminates against disabled workers. The June 5 settlement and consent decree entered in the federal court case of EEOC v. Nevada Restaurant Services Inc. is just the most recent victory in the EEOC’s campaign to target employer “maximum-leave” and “100-percent-healed” policies.

Nevada Supreme Court Rejects an Interpretation of ‘Health Insurance’ that Would Nullify State Wage System

In the last of a series of decisions reached by the Nevada Supreme Court interpreting the Minimum Wage Amendment (“MWA”) to the Nevada Constitution, the Court concluded that an employer may pay the lower of the state’s two-tier minimum wage “if the employer offers health insurance at a cost to the employer of the equivalent of at least an additional dollar per hour in wages, and at a cost to the employee of no more than 10 percent of the employee’s gross taxable income from the employer.” MDC Restaurants, LLC, et al. v. Eighth Judicial District Court, 134 Nev. Adv. Op. 41, 2018 Nev. LEXIS 42 (May 31, 2018).

Nevada Supreme Court Determines Definition of Health Insurance for Nevada’s Minimum Wage Laws

On May 31, 2018, the Nevada Supreme Court issued a unanimous decision in MDC Restaurants, LLC v. The Eighth Judicial Dist. Court, 134 Nev. Op. 41 (May 31, 2018), addressing arguably the most hotly contested issue of law regarding the Nevada Constitution’s Minimum Wage Amendment, Nev. Cost. art. XV § 16 (“MWA” or the “Amendment”). Specifically, the court was asked to clarify what constitutes “health benefits” for purposes of paying Nevada’s lower-tier minimum wage. The court answered that question by determining, based on “common sense,” that “the MWA requires an employer who pays one dollar per hour less in wages to provide a benefit in the form of health insurance at least equivalent to the one dollar per hour in wages that the employee would otherwise receive.”

Nevada Employers Prepare to Provide Leave for Domestic Violence Victims

In the new year, Nevada employers will be required to provide workplace protections for employees who are victims of domestic violence. Nevada Senate Bill 361, which was signed into law by Governor Brian Sandoval over the summer, will become effective on January 1, 2018. This law modifies Chapter 608 of the Nevada Revised Statutes to require employers to provide leave to an employee “who has been employed by an employer for at least 90 days and who is a victim of an act which constitutes domestic violence.” Specifically, an eligible employee is entitled to 160 hours of leave (which may be taken in a block or intermittently) during a 12-month period following the date on which the domestic violence occurs. The leave allowed under this law may be paid or unpaid.

Sued by an ADA Serial Litigant in Nevada? Help May Be On the Way!

On August 8, 2017, the Nevada attorney general moved to intervene in an action brought by Americans with Disabilities Act (ADA) serial litigant Kevin Zimmerman and to consolidate it with the more than 150 other pending Zimmerman actions in the U.S. District Court for the District of Nevada. The attorney general cited the state’s “strong interest in protecting the public interest from malicious or premature lawsuits that threaten Nevada businesses [sic] owners and adversely impact Nevada’s general economy.”

Expecting A Big Change: Nevada’s New Pregnant Workers’ Fairness Act

The state legislature recently enacted the Nevada Pregnant Workers’ Fairness Act (NPWFA) to expand the scope of protection for employees and applicants. The NPWFA is based on the federal Pregnancy Discrimination Act (PDA), and is also strongly influenced by the American with Disabilities Act (ADA). It applies to employers in the state with 15 or more employees, as well as to state and local governments. Although many portions of the Act are not effective until October 1, 2017, the notice provisions took effect on June 2. If you are not yet familiar with this new law, the time to educate yourself is now.

What You Need To Know About Nevada’s New Domestic Violence Victims’ Law

By the turn of the New Year, employers in Nevada will have an obligation to provide workplace protections to domestic violence victims, including time off from work. Starting January 1, 2018, Nevada employees will be entitled to leave above and beyond what may already be owed to them under the federal Family and Medical Leave Act (FMLA). Employers should begin preparing for this change to the law, revising policies, practices, and training sessions to reflect the change.

Nevada Follows Trend By Passing Strict New Wage Disclosure Law

Many legitimate reasons exist to explain differences in compensation within a company, such as job qualifications and prior experience. Although employers may wish to maintain the privacy of this information, they could face legal consequences if they prevent employees from discussing their wages. Under the National Labor Relations Act (NLRA), employers cannot discriminate against non-supervisory employees when they discuss their wages as part of a “concerted activity,” regardless of whether they are unionized. Similarly, in 2014, the Obama administration issued an executive order prohibiting discrimination from federal contractors against employees or applicants who inquire about, discuss, or disclose their wages.

Nevada Changes The Game On Non-Compete Agreements

The Nevada Supreme Court has long recognized the legality of non-compete agreements between employers and employees. Recently, however, the Nevada state legislature updated the rules on non-compete agreements, specifying how employers should draft their provisions and preventing employers from restricting former employees from providing services to customers or clients. If you use a non-compete agreement in Nevada, it is critical to review that agreement and determine if revisions are necessary.

Get To Know New Nursing Mothers’ Law For Nevada Workers

Although the federal Fair Labor Standards Act (FLSA) already protects nursing mothers from employment discrimination and retaliation while requiring employers to provide them with reasonable break time and a private space to express breast milk, Nevada has taken things a step further. The state just enacted a broad new nursing mothers law for all public and private employers, other than the Department of Corrections, certain small employers, and certain licensed contractors.

The Nevada Pregnant Workers’ Fairness Act Official Notice Is Here

The Nevada Equal Rights Commission has published its official notice for the new Nevada Pregnant Workers’ Fairness Act. As you likely know by now, Nevada employers with at least 15 employees must immediately post this notice in the workplace in a conspicuous place (e.g., where other legal employee notices are currently posted). The notice is available on the Nevada Department of Employment, Training and Rehabilitation’s website.

Nevada Issues Official Notice for Pregnant Workers’ Fairness Act for Immediate Posting

The Nevada Equal Rights Commission has issued an official Notice for the Nevada Pregnant Workers’ Fairness Act.

Nevada Mandates Employer Provided Leave and Accommodations for Victims of Domestic Violence

The 2017 Nevada Legislature saw a flurry of proposed legislation directly and indirectly affecting private employment in the state of Nevada. One of the proposed measures is Senate Bill 361 which was approved by Governor Sandoval on March 8, 2017. Senate Bill 361, designated simply as an Act relating to domestic violence, becomes fully effective January 1, 2018.

New Law Brings Changes to Nevada’s Non-Compete Law

Over the last year, Nevada’s non-compete law has undergone a number of changes. The latest is a new law setting forth a new standard by which non-compete agreements are to be evaluated.

Nevada’s All-New Non-Compete Statute

Once again, Nevada has re-written the landscape the law regarding enforcement of post-employment non-competition agreements. Please see the article posted on our website, written by Elayna J. Youchah and Joshua A. Sliker of our Las Vegas office. They analyze Assembly Bill 276, amending Chapter 613 of the Nevada Revised Statutes, signed into law by Governor Brian Sandoval on June 3, 2017.

Tectonic Shift Affecting Enforcement of Noncompetition Agreements Emanates from the 2017 Nevada Legislative Session and Passage of AB 276

Nevada noncompetition law has historically had few seismic shifts, which changed in 2016 when the Nevada Supreme Court issued its opinion in Golden Road Motor Inn, Inc. v. Islam, 376 P.3d 151 (Nev. 2016). That case sent shockwaves affecting noncompetition agreements employers already had in place, especially with respect to whether their agreement’s restriction had any limits on the scope of work restricted at a competing entity or whether the restriction effectively prohibited an employee from working for a competitor in any capacity – even “as a custodian.”

Make Room on Your Bulletin Board for the Nevada Pregnant Workers’ Fairness Act Notice

Nevada employers must post a notice on the Nevada Pregnant Workers’ Fairness Act immediately. Governor Brian Sandoval signed the Act into law on June 2, 2017, and the notice provisions took effect upon signing. All other provisions of the Act will take effect on October 1, 2017.

Nevada Labor Commissioner Advises that Employers May Compensate Certain Employees Under Fluctuating Work Week Method

On May 25, 2017, the Nevada Labor Commissioner posted an Advisory Opinion1 stating that the fluctuating work week method (FWW) may be used to compensate certain nonexempt employees. The Advisory Opinion stated the FWW method of compensation is permissible for a nonexempt employee who is paid a fixed-salary for all hours worked, for overtime hours worked in excess of 40 per week under NRS 608.018, Nevada’s overtime statute. This Advisory Opinion is significant because it is the first time Nevada has formally endorsed the FWW for use under state law.

Nevada Expands Protections for Pregnant Workers

Nevada first included sex as a protected category in 1967. That year, the legislature passed Assembly Bill No. 7, which included for the first time sex discrimination as an unlawful employment practice. Twenty-one years later, in 1989, Nevada passed legislation that required employers to provide pregnant employees the same benefits provided to other employees due to sickness or disability related to a medical condition. Fast forward another 28 years. On June 2, 2017, Governor Sandoval signed into law Senate Bill No. 253, which greatly expands the legal protections for pregnant employees.

Nevada Supreme Court Weighs in Again on the Nevada Constitution’s Minimum Wage Amendment

On March 16, 2017, the Nevada Supreme Court issued yet another 6-0 en banc decision regarding the Nevada Constitution’s oft-litigated Minimum Wage Amendment, Nev. Cost. art. XV § 16 (“MWA” or the “Amendment”). The issues before the Court in Western Cab Co. v. Eighth Jud. Dist. Court, 133 Nev. Adv. Op. 10 (Mar. 16, 2017), were twofold: (1) whether the MWA is federally preempted by the National Relations Act (NLRA) or the Employee Retirement Income Security Act of 1974 (ERISA); and (2) whether the MWA is unconstitutionally vague due to lack of clarity on what “health benefits” are required by the Amendment.

Nevada Employers: Time To Review Your Non-Competes

If you are using a noncompetition agreement in Nevada, you may want to consider reviewing that agreement. The Nevada Supreme Court recently held that state courts shall not modify – or “blue pencil” – non-compete agreements in order to bring them into compliance with the law. The court explained that if a non-compete agreement contains even a single provision which “extends beyond what is necessary” to protect a company’s interests, then the entire agreement will be deemed unenforceable.

Nevada’s New Recreational Marijuana Law: What Employers Need to Know

On November 8, 2016, voters approved Nevada’s Initiative to Regulate and Tax Marijuana (more commonly known as Question 2) by a margin of 54 percent to 46 percent. When codified and enacted, this law will be cited as the Regulation and Taxation of Marijuana Act. This act will become effective on January 1, 2017, and Nevada’s Department of Taxation will be required to adopt all regulations necessary to execute the act’s provisions no later than twelve months after this date. The passage of Question 2 places Nevada in a group of eight states (plus the District of Columbia) that will allow for recreational use of marijuana, four of which passed such initiatives in the November 8, 2016 election.

Nevada’s Trio of Cases: State Supreme Court Resolves Questions on the Minimum Wage Amendment

On October 27, 2016, the Supreme Court of Nevada issued decisions in a trio of cases resolving important questions about Nevada’s Minimum Wage Amendment.

Nevada Supreme Court Rules that Overly Broad Non-Compete Agreements are Wholly Unenforceable

In April 2012, the Equal Employment Opportunity Commission (EEOC) issued its long-awaited “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (2012 Guidance). The updated guidance does not prohibit employers from using criminal records, but outlines what the EEOC considers recommended best practices, including a recommendation that employers, among other things: (1) remove from employment applications the question that asks job applicants to self-disclose their criminal record; (2) not make an employment decision based solely on the fact of an arrest record; and (3) conduct an “individualized assessment” before rejecting an applicant or terminating an employee because of a conviction.

Nevada Confirms Its Restrictive Covenant Law, But Rejects Blue Penciling

In the first decision to reach the Nevada Supreme Court on whether state district courts may modify or “blue pencil” non-competition agreements, the high court has concluded that doing so would violate Nevada law. Golden Road Motor Inn Inc. d/b/a Atlantis Casino Resort Spa v. Islam, 132 Nev. Adv. Op. 49 (July 21, 2016). The 4-3 decision signals a clear change in direction that affects the enforceability of non-competition agreements in Nevada.

Nevada Updated Its Definition of Personal Information, Have You?

When businesses set out to safeguard “personal information,” a fundamental consideration is what that term means. Likewise, when negotiating a third-party vendor agreement, it typically is not enough to rely on the standard definition for “confidential information.”

Background Screening Companies May Now Report Convictions Older Than Seven Years in Nevada

Under the federal Fair Credit Reporting Act (FCRA), background screening companies (or consumer reporting agencies) are generally prohibited from reporting certain types of derogatory information that the FCRA considers to be too old to be useful, i.e., obsolete. For example, background screening companies typically cannot report certain bankruptcies that are older than 10 years and civil suits and civil judgments that are older than seven years.

Nevada Establishes Conclusive Presumption for Independent Contractor Status

Labor Standard Act (FLSA)’s "economic realities" test to determine whether workers can be classified as independent contractors under Nevada law for purposes of minimum wage payments under Nevada Revised Statutes' (NRS) Chapter 608. In an apparent move to overrule Terry, the Nevada Legislature passed Senate Bill 224 (S.B. 224). Signed into law on June 2, 2015 by Governor Brian Sandoval, S.B. 224 establishes a “conclusive presumption” that a person is an independent contractor, rather than an employee, if certain conditions are met. A “conclusive presumption” is a presumption that must be taken as true regardless of any evidence to the contrary. As a result, it is likely that more workers can properly be classified as independent contractors under NRS Chapter 608. Significantly, S.B. 224 applies to any currently ongoing dispute relating to whether a worker is an independent contractor and therefore owed minimum wage under Nevada law.

Nevada Latest State to Limit Employer Access to Employee Social Media Accounts

Nevada has become the eleventh state in the nation to enact a law restricting employer access to employee social media accounts. Beginning October 1, 2013, it will be illegal for Nevada employers to require or request that an employee disclose his or her username, password, or any other information that would allow the employer to access the employee’s social media accounts. Assembly Bill No. 181, signed into law by Governor Brian Sandoval in June, also prohibits an employer from discharging, disciplining, or otherwise discriminating against an employee that refuses to provide such information. Similarly, employers cannot condition an applicant’s employment on providing employer access to his or her social media accounts.

Nevada: Inquiring About Personal Social Media Will Be Illegal

Unless it is necessary to comply with a state or federal law or regulation, effective October 1, 2013, it will be illegal for a Nevada employer to require, request, or even suggest that an employee or a prospective employee disclose the user name, password or other access information to his or her personal social media account.

What Employers Need to Know About Nevada’s “Hands-Free” Cell Phone Law

In 2011, Nevada joined the growing number of states that prohibit the use of cell phones while driving, unless the driver uses a “hands-free” device, by passing Senate Bill 140. Beginning January 1, 2012, Nevada drivers can be ticketed for violating this law.

New Nevada Law Limits Cell Phone Use While Driving

Nevada has now joined the ranks of several other states that limit cell phone usage while driving. The new law, effective October 1, 2011, but not to be enforced until January 1, 2012, generally makes it unlawful to talk or text on a cell phone while driving without the use of a hands-free device. Here are the details.

Gender Identity and Expression Anti-Discrimination Law

On May 24, 2011, Nevada Governor Brian Sandoval signed into law Assembly Bill 211, which amends Nevada law and provides for protection from discrimination in employment based upon the gender identity or expression of a person. The bill defines "gender identity or expression" as "a gender-related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth." Specifically, the bill states, in part, that it is an unlawful employment practice for an employer "[t]o fail or refuse to hire, or to discharge any person, or otherwise discriminate against any person with respect to the person's compensation, terms, conditions, or privileges of employment, because of his or her...gender identity or expression

Nevada Expands Leave Rights For Employees Attending School Activities.

August 15, 2009 marked the effective date for a new law, which dramatically expands leave rights for those parents who choose to participate in school-related activities of their children.
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