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2015 Overview: Labor And Employment Law Developments For Nevada Employers

Volume 14, Issue 29
December 29, 2015

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The year 2015 brought sweeping changes to the administration of the National Labor Relations Act and complications in the areas of pregnancy discrimination and religious discrimination. Conversely, on a state level, Nevada law solidified and clarified. The following is KZA's take on the year's most important labor and employment law developments for Nevada employers:

The NLRB's Ambush Election Rule Took Effect
In April, the National Labor Relations Board's new union election rule (commonly known as the " ambush election rule") became effective.  These procedures severely shorten the time between the filing of a union election petition and the election itself, reducing the ability of employers to educate their employees about the impact of unionization and depriving employees of time to fairly assess their options.   Legal challenges to the new rule failed in July, and employers are now beginning to see how these new procedures have changed the landscape of elections.

The NLRB Expanded Its Standard For Joint Employer Status
In August, the National Labor Relations Board (NLRB) redefined and expanded the standard for determining when two or more separate companies are a "joint employer" of employees for purposes of collective bargaining under the National Labor Relations Act. The new standard, set forth in Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (Aug. 27, 2015), represents one of the most sweeping and significant changes made by the Democrat-controlled NLRB in recent years. It is expected to have far-reaching consequences on the business operations of countless companies, especially those using contingent/temporary employees supplied by staffing agencies.

The New Year Will Bring Revisions To The FLSA's White Collar Exemptions
In June, the U.S. Department of Labor (DOL) announced a proposal to update its regulations governing the minimum wage and overtime exemptions to the Fair Labor Standards Act for executive, administrative and professional employees ("white collar" employees). These are the rules that govern whether an employer can avoid paying overtime to salaried employees such as managers. The proposed changes are significant, including raising the minimum salary an employer must pay to qualify for the overtime exemption from $455 per week (or $23,660 per year) to $970 per week (or $50,440 per year). In November we learned that the regulations would not be issued until 2016, which may result in a shortened time period for employers to comply with the changes.

The U.S. Supreme Court Complicated Pregnancy Discrimination Claims
In March, the United States Supreme Court dealt a blow to employers by inventing new legal requirements making it easier for plaintiffs to have their pregnancy discrimination claims heard by a jury. While the Court's decision in Young v. United Parcel Service, Inc. was expected to bring much-needed clarity to the issue of what the Pregnancy Discrimination Act (PDA) requires of employers, it brought only added confusion and arguably provided pregnant employees the one thing the Court reasoned the PDA was not designed to do: a preferential status as amongst employees who are given workplace accommodations.

The U.S. Supreme Court Lessened The Standard For Religious Discrimination Claims
In June, the United States Supreme Court addressed the issue of whether Title VII's prohibition on a prospective employer refusing to hire an applicant in order to avoid accommodating a religious practice applies only where the applicant has actually informed the prospective employer of her need for an accommodation.   The Court found, in EEOC v. Abercrombie & Fitch Stores, Inc., that neither an express request for a religious accommodation, nor any other form of actual knowledge of a conflict between an applicant's religious practice and a work rule, is necessary for liability under Title VII.  Instead, there only needs to be evidence that avoiding a potential religious accommodation obligation was a motivating factor behind the prospective employer's actions - with such a motivating factor based on nothing more than an unsubstantiated suspicion that a religious accommodation may be needed.

The Nevada Supreme Court Upheld A Waiver Of Class Actions In A Mandatory Arbitration Agreement
In September, the Nevada Supreme Court upheld an arbitration agreement with a waiver of class actions in Tallman v. CPS Security (USA) and Mika v. CPS Security (USA).  The Court agreed that the plaintiffs must individually arbitrate their wage and hour claims - rather than requiring the employer to defend a class action lawsuit. This development, in conjunction with the U.S. Supreme Court's recent ruling in favor of arbitration in DIRECTV v. Imburgia, significantly fortifies a Nevada employer's use of arbitration agreements.

The Nevada Legislature Addressed Medical Marijuana Use By Public Employees
In July, the Nevada Legislature adopted Senate Bill 62.  A portion of this Bill provided the State Personnel Commission with discretionary authority to adopt regulations governing when a Nevada public employer can impose disciplinary upon a state employee who holds a valid registry identification card to engage in the use of medical marijuana.  The Personnel Commission addressed portions of Senate Bill 62 in its December 2015 meeting, voting to amend sections of the Nevada Administrative Code.   The Commission meets again in March 2016.

Additionally, the Nevada Legislature amended NRS 453A.800 to provide that law enforcement agencies are not prohibited from adopting policies or procedures precluding employees from engaging in the medical use of marijuana.   This change became effective in July and applies to several types of employers.

The Nevada Legislature Limited Workers' Compensation Benefits
The Nevada Legislature enacted Senate Bill 231 which limits the amount of a controlled substance that healthcare providers dispense to an injured employee to a fifteen day supply.  This Bill also disallows workers' compensation benefits whenever an injury occurs to an employee who is intoxicated or under the influence of a controlled or prohibited substance, unless the employee can prove by clear and convincing evidence that his intoxication was not the proximate cause of the injury. The new law provides that an employee is "intoxicated or under the influence of a controlled or prohibited substance" whenever the employee meets or exceeds the limits for intoxication or use of a controlled or prohibited substance set forth in NRS 484C.110, which prescribes such limits in the context of driving under the influence.   This law takes effect January 1, 2016.

Nevada Enacted A Law Defining Independent Contractors
The Nevada Legislature enacted Senate Bill 224 that sets forth the circumstances under which a person will be presumed to be an independent contractor instead of an employee.  This law, which amends Chapter 608 of the Nevada Revised Statutes and was intended to overturn the definition of "independent contractor" adopted by the Nevada Supreme Court in Terry v. Sapphire/Sapphire Gentlemen's Club, became effective in June 2015.

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.