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2005 Nevada Legislative Update: Labor and Employment Issues

Volume 4, Issue 10
August 4, 2005

There was a multitude of employment and labor related bills in the State Assembly and Senate during this latest legislative session. However, very few bills made their way out of the Nevada Legislature and to the Governor's desk. Still, those bills that did pass into law, while not ground-breaking, serve to further strengthen employee protections and benefits. This Update reviews the bills of particular interest.

Minimum Wage Bill Dies

Probably one of the most watched pieces of legislation by small businesses and their advocates was Assembly Bill 87, which provided for an immediate increase in the minimum wage from $5.15 per hour to $6.15 per hour with an annual cost of living increase. The Bill was later amended in the Senate to raise the minimum wage even higher, up to $6.40 per hour, but without any annual cost of living increase provision. Although Nevada voters overwhelmingly approved such an increase through a 2004 ballot initiative, the Senate-Assembly conference committee was unable to reach a compromise and the Bill died.

Nevada was one of nearly thirty states considering raising its minimum wage. While most states were considering a general increase, some states, such as Minnesota and Montana, examined different minimum wages based on an employer's gross annual sales. Others, including Nevada, considered indexing their minimum wage on an annual basis with the Consumer Price Index or inflation rate.

Notwithstanding the demise of Assembly Bill 87, an increase in the state minimum wage is still possible. In November 2006, voters will again be able to decide whether or not to support a proposed constitutional amendment that would raise the minimum wage and provide for a cost of living increase every year to employees working for private employers.

Extended Timeframe to File Charges of Discrimination with the Nevada Equal Rights Commission

In a Special Session, the Nevada Legislature passed Assembly Bill 5, which modifies NRS 233.160 and lengthens the time employees have to file Charges of Discrimination with the Nevada Equal Rights Commission from the current one hundred eighty (180) day timeframe to three hundred (300) days after the occurrence of an alleged discriminatory action. This new three hundred (300) day period mirrors the length of time afforded under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act for employees in "deferral states" like Nevada, i.e., states having their own agency with authority to address alleged employment discrimination. This extended charge filing deadline, which will become effective on October 1, 2005, will not have a significant impact on Nevada employers as plaintiff employees prefer to sue under the federal employment discrimination statutes, which provide for greater remedies than those available under Nevada law. However, as Nevada law protects against sexual orientation discrimination and the federal statutes do not, the new charge filing deadline will benefit employees alleging discrimination on the basis of their actual or perceived orientation for heterosexuality, homosexuality or bisexuality.

Expanded Powers for Labor Commissioner

The Legislature's trend of broadening the powers of the Nevada Labor Commissioner continued. During the 2003 legislative session, the Nevada Labor Commissioner's powers were substantially expanded to allow the Labor Commissioner to undertake "any appropriate action," regardless of whether or not a claim or complaint has been filed, if the Labor Commissioner has reason to believe that a person or entity is violating a state labor law or regulation. These powers extend to statutes specifically assigned to the Labor Commissioner to enforce, as well as any other Nevada labor law that is not specifically or exclusively enforced by another government entity. In addition, the Labor Commissioner was granted authority to issue administrative fines of up to $5,000. With the passage of Senate Bill 116, the Labor Commissioner's powers were broadened again.

First, the Labor Commissioner was given express authority to impose administrative penalties against governmental entities that are found to be in violation of the state laws and regulations governing the payment of prevailing wages for public works projects. Second, and more important to private employers, the Labor Commissioner received additional powers to enforce NRS 608.158, which obligates an employer to provide employees at least ten (10) days notice of either the employer's inability to pay or intention to cease paying premiums for group life or health insurance. If the proper notice is not given, the Labor Commissioner can now bring an action against an employer that "knowingly and willfully" stops paying such premiums without timely notice and recover, in addition to any other available remedy and penalty, a monetary amount not to exceed the amount of premiums that the employer would have been required to pay under the group life or health insurance, calculated on a monthly basis. Such money is to be distributed on a pro rata basis to employees who incurred expenses that would have been otherwise covered under the group policy between the time after coverage ceased and before the employees were given notice of the cessation of premium payments, except that employees will not be paid more than their actual claims. Any excess monies will be deposited in the State General Fund. These new provisions are effective as of May 10, 2005.

Extension of State Overtime Laws

Assembly Bill 44 broadened the scope of NRS 608.018, Nevada's overtime statute, by applying it to employees who are paid at a rate at or above one and one-half times the minimum wage prescribed by NRS 608.250 and work more than forty (40) hours in any scheduled week of work. Previously, such employees were not covered by NRS 608.018, leaving only the U.S. Department of Labor to enforce the applicable federal overtime laws with regard to employees that earned at least one and one-half times the minimum wage. While not immediately apparent, Assembly Bill 44 will impact some employers in another respect. The list of employees excluded from Nevada's overtime provisions is not as broad as the list under federal law. While the most common exemptions, including those for "white collar" employees and certain salesmen and drivers are recognized under state law, some of the more arcane job-specific exemptions recognized under federal law are not.

New Anti-Discrimination Protection for Nursing Employees

Assembly Bill 183 modifies NRS 449.205 and NRS 449.207 to create a new statutory cause of action for retaliation and discrimination against certain nursing employees (and contractors) for refusing to comply with particular types of job assignments. This new law prohibits medical facilities and any of their agents or employees from retaliating or discriminating unfairly against registered nurses, licensed practical nurses and nursing assistants, who, in accordance with an established policy of the medical facility should one exist, submit a written report to their supervisor stating that they do not have the necessary knowledge, skill or experience to comply with an assignment to provide patient nursing services and they refuse to provide patient nursing services for which they lack the necessary competence to perform, as verified by documentation in their personnel file. Aggrieved nursing employees may file an action in a court of competent jurisdiction for such relief as may appropriate under the law, effective October 1, 2005.

While the intent behind Assembly Bill 183 is indeed laudable, application of this new statutory protection may be difficult to apply. The Bill in several previously proposed iterations had a far broader reach. In scaling back the Bill's scope, language and concepts were used that may prove to be less than clear and easy to apply.

Additional Workers' Compensation Benefits

With respect to workers' compensation insurance, the Nevada Legislature continued to fine tune the system. Most notably, two new laws increase benefits for injured workers that must travel substantial distances to obtain medical treatment or vocational rehabilitation services. Assembly Bill 58 provides that an injured employee covered by workers' compensation, who qualified for temporary total disability and requires continued medical treatment once he has returned to work, is entitled to additional compensation for the time he is absent from employment if he must travel more than fifty (50) miles one way from his place of employment to receive such treatment. The compensation owed is at a rate equal to that paid for a temporary total disability and calculated in increments of four (4) or eight (8) hours. The only exception to the payment of such additional compensation is when an employer pays the employee his regular hourly rate for each hour he is absent from work to receive medical treatment. Additionally, employees receiving such medical treatment cannot be required to use sick leave or any other type of personnel leave when taking time off for the treatment. This new benefit will be available starting on January 1, 2006.

In turn, Senate Bill 66 permits an injured employee who resides in Nevada and is eligible for vocational rehabilitation services benefits to seek such services outside of Nevada so long as the services are within fifty (50) miles of the employee's residence. Beginning on October 1, 2005, this new law prohibits insurers from unreasonably denying a request made by an injured employee for vocational rehabilitation services outside of Nevada that are within the fifty (50) mile limit.

New Restrictions and Penalties Related to Unemployment Compensation Insurance

Assembly Bill 502 revises various aspects of Chapter 612 of the Nevada Revised Statutes, which pertains to unemployment compensation insurance. In addition to revising certain time lines, the Bill requires the Administrator of the Employment Security Division to craft regulations establishing procedures to identify transactions in which the transfer or acquisition of a business entity is for thesole or primary purpose of obtaining a lower unemployment insurance contribution rate. Such transactions will not be eligible for a transfer of the seller's or transferor's experience record. Additionally, businesses with common ownership, management or control that undertake such transactions will have their experience ratings combined into a single account and assigned a single rate. In that regard, the Administrator is also required to adopt regulations setting forth what shall constitute common ownership, management or control.

The penalties under Chapter 612 have also been augmented. Should the Administrator find that an employer, through deliberate ignorance, reckless disregard, intent to evade, fraud, misrepresentation, or willful nondisclosure, obtains or attempts to obtain a more favorable contribution rate, the Administrator is now required to assign the offending employer the maximum contribution rate, plus two percent for the each applicable rate year, the current year and the subsequent rate year; the greater of a $5,000 fine or ten (10) percent of the total amount of underreporting; as well as any other penalty available under NRS 612.730. Furthermore, any person or entity that is found to have knowingly advised another person or business entity to violate anyprovision of Chapter 612, such person or entity shall be issued a civil penalty of the greater of a $5,000 fine or ten (10) percent of the total amount of underreporting, as well as any other penalty available under NRS 612.730. Such offenses also constitute a category C felony. These statutory changes will take affect as of January 1, 2006.

Overall, the 2005 legislative session yielded a few interesting statutory refinements and additions in the area of employment and labor law, the practical application and impact of which remains to be seen. Those who hoped for bigger changes will have to wait until 2007.

© Clark County Bar Association. The majority of this article was originally published in the August 2005 edition of Communiqué, the official publication of the Clark County Bar Association (Communiqué, Vol. 26, No. 8) and authored by Gregory J. Kamer and Edwin A. Keller, Jr.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.