Perhaps more important than the bills that passed, and certainly more alarming for employers, are those bills which did not make it out of the 2009 Legislative Session or were successfully vetoed by the Governor. Given the current activist approach in regulating Nevada’s employers and workplaces, these unsuccessful bills paint a disturbing picture of what employers may face during the 2011 Legislative Session if the composition of the State Legislature remains the same. The employment related bills that died are summarized below:
Assembly Bill 166
– Workplace Bullying and Workplace Appearance
: Sponsored by Richard “Tick” Segerblom, a Las Vegas plaintiff’s side employment lawyer turned legislator, and others, the first part of this bill sought to expand Nevada’s anti-discrimination statute to create liability for “abusive conduct in a work environment” which can be completely unrelated to a protected class. The bill defined “abusive conduct” as: “the conduct of an employer or employee . . . which a reasonable person would find hostile, offensive and unrelated to the legitimate business interests of the employer,” including “repeated verbal abuse,” threatening, humiliating or intimidating conduct, or “sabotage or undermining of a person’s work product.” Such anti-bullying legislation is a hot topic in state legislatures across the nation. For information on the growing list of states taking up such “model workplace” legislation, see bullybusters.org
This type of legislation should be alarming to all employers. While very few professionals would disagree that an abusive person in the workplace is not conducive to good morale or good business, it would be nearly impossible to determine when someone crosses the line and becomes a “bully” subjecting the employer to financial liability. The impact such legislation would have on managers’ ability to address poor performance and convey negative feedback would be very debilitating, as would the cost of fighting out such issues in the courts.
Even without an express anti-bullying law, employees are already using with some success state tort causes of action like negligent and/or intentional inflection of emotional distress, assault, battery, or defamation, which provide for punitive damages. Thus, employers are wise to broadly interpret their codes of conduct and anti-harassment policies to address abusive behavior in the workplace before it gets out of hand and leads to potential lawsuits.
The second part of AB166 would have limited employers’ ability to enforce appearance policies. The bill sought to make it unlawful for an employer to discriminate against an employee with respect to a physical characteristic of the employee which would include height, weight, and physical mannerisms beyond a person’s control. This type of legislation is also a hot topic around the United States, and some city governments and the District of Columbia have already adopting such laws.
Both of these proposed limitations on workplace bullying and appearance standards would have been added to the same state anti-discrimination laws that already prohibit discrimination on the basis of race, sex, age, religion, national origin, sexual orientation and disability and would have expanded the remedies available to employees to mirror those permitted under federal law, which include emotional distress damages, punitive damages and the payment of the employee’s attorney’s fees. Fortunately for employers and our struggling economy, this bill never made it out of the Committee on Commerce and Labor.
Assembly Bill 184 – Gender Identity and Expression Discrimination: This bill, which also failed to make it out of the Committee on Commerce and Labor, sought to make it unlawful for an employer to discriminate against an employee with respect to the gender identity or expression of the employee. “Gender identity or expression” was defined as a “gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.” The bill provided that an employer could still require employees to adhere to reasonable workplace appearance, grooming and dress standards as long as the employer allowed the employee to follow the standards for the gender he/she chose.
Assembly Bill 381 – Limitations on Employment Arbitration Agreements: This bill sought to invalidate arbitration provisions in certain employment agreements. Many employers have incorporated arbitration provisions into employment contracts and confidentiality/non-compete contracts so that the parties are required to arbitrate any dispute arising between them under those contracts. Some employers have used such provisions to require the arbitration of employment practices claims, such as discrimination claims. This bill sought to eliminate these options for employers, leaving parties to employment contracts without an effective, efficient and budget-friendly form of alternative dispute resolution and allowing a court to determine the parties’ rights and responsibilities under the contract, including, for example, whether a contract employee was discharged for cause.
While the bill passed in both Houses of the Legislature, it was vetoed by Governor Gibbons. The Governor specifically cited to the increased costs litigants would face if the bill were to pass and noted that the bill would force many disputes into “our already overburdened judicial system when they could have been resolved through arbitration under existing law.” In addition, the Governor stated that the proposed bill would disrupt “the well-established practice in Nevada favoring the use of alternate dispute resolution procedures” and make “unnecessary changes to a system that currently works as designed.” The Legislature made an unsuccessful attempt to overturn the Governor’s veto, thus preserving for now an employer’s ability to rely on arbitration as an alternative dispute resolution procedure.
Assembly Bill 395 – Expanded Labor Law Rights and Protections for State Employees: Patterned after the National Labor Relations Act, this bill sought to implement collective bargaining for state employees. The bill would enable state employees to discuss workplace relations through exclusive representatives and establish requirements concerning workplace relations agreements. Further, the bill would prescribe certain unfair labor practices in the context of discussions of workplace relations. The expansive bill contained additional provisions relating to workplace relations between public employees and the State. The bill was passed by both Houses of the Legislature but was vetoed by the Governor. Citing to the severe economic recession, resulting decrease in state revenues, and the enactment of “the largest tax increase in state history…to fund state expenditures,” the Governor stated that it was “unfathomable and unconscionable” that the Legislature would pass a bill that would “result in further increases in state spending and would require even further tax increases to fund that spending.”