Articles Discussing General Topics In Nevada Labor & Employment Law.

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.

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.”

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.

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.

Recently, the Nevada Supreme Court in Terry, et al., v. Sapphire Gentlemen’s Club, reversed a lower court’s ruling and held that performers at Sapphire Gentlemen’s Club meet the definition of “employees” under the Nevada Revised Statutes (NRS). For the first time, the court explicitly adopted the federal Fair Labor Standards Act’s (FLSA) “economic realities” test for assessing independent contractor versus employee status under Nevada law. The court concluded that as employees, these performers are entitled to be paid minimum wage for all hours worked.

The Nevada Constitution’s categories of individuals who are exempted from the payment of minimum wage supersede the exemptions previously provided by statute, the Nevada Supreme Court has ruled, clarifying a question that has troubled employers in Nevada. Thomas v. Nevada Yellow Cab, 130 Nev. Adv. Op. 52 (June 26, 2014). Accordingly, the Court held that the plaintiffs, taxicab drivers (as well as others identified as exempt from minimum wage under NRS 608.250(2)), are not exempt from minimum wage.

Nevada has amended its law to require that any agreement containing an arbitration clause include “specific authorization for the provision which indicates that the person has affirmatively agreed to the provision.” An arbitration clause that fails to include such an authorization is “void and unenforceable.” Nev. Rev. Stat. § 597.995(1), (2) (2013). Collective bargaining agreements are exempt from the new requirement.

Two notable developments to Nevada employment law took place in 2013. The Nevada Legislature not only clarified some ambiguities in the medical marijuana law as it relates to employers, but also enacted a new arbitration statute that will likely require Nevada employers to revise their current arbitration agreements in order for such agreements to be enforceable.

There have been several notable and recent developments in Nevada employment law both through enacted legislation and advisory opinions issued by the Nevada Labor Commissioner. Specifically, the legislature has passed a law limiting employer access to employee and applicant social media information. Additionally, Nevada’s Office of the Labor Commissioner (Labor Commissioner) recently issued two advisory opinions regarding time clock rounding and the “4 10s” exception to the state’s overtime laws.

Nevada has become the latest state to enact legislation restricting an employer’s access to employee and prospective employee personal social media accounts. The new law (Assembly Bill No. 181) prohibits Nevada employers from conditioning employment on disclosure of an applicant’s or employee’s personal social media account information, including user names and passwords. The legislation takes effect on October 1, 2013.

Nevada Governor Brian Sandoval has signed legislation limiting employers’ access to employees’ and job applicants’ consumer credit report and related information. Under the measure (SB 127), effective October 1, 2013, employers in Nevada may not “suggest, request, require or cause” employees or applicants to submit a consumer credit report or other credit information as a condition of employment. Additionally, employers may not “use, accept, refer to or inquire” about a consumer credit report or other credit information.

On May 25, 2013, Nevada Governor Brian Sandoval signed a new law making Nevada the third state in the last 12 months to enact legislation restricting use by employers of credit reports and other credit history information for hiring and other employment-related purposes. Nevada’s new law, which goes into effect October 1, 2013, follows closely on the heels of similar legislation enacted by Colorado in April 2013,1 and adds Nevada to the handful of other states that have similar laws: California, Connecticut, Hawaii, Illinois, Maryland, Oregon, Vermont, and Washington.

Nevada’s new cell phone law (SB 140) prohibits a person from manually typing or entering text into a cell phone or similar device, and from sending or reading data using a cell phone or other device, while operating a motor vehicle. The law also prohibits the use of cell phones for voice communication unless the phone is used with an accessory that allows for hands-free use. Global positioning systems (GPS) are not covered.

A new Nevada law prohibits employers in the state from discriminating against their employees based on “gender identity or expression.” While state law already prohibits employment discrimination based on an individual’s color, race, sex, religion, age, disability, national origin, and sexual orientation, the new law expands protection to gender identity or expression. “Gender identity or expression” is defined as “gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.”