2019 Nevada Employment Legislation Updates

Holland & Hart - Employers' Lawyers

Holland & Hart - Employers' Lawyers

Over the last two years, the Nevada Legislature has passed a substantial number of laws affecting Nevada employers. Some of the most notable employment laws that recently passed are summarized below.  

AB 132 (Pre-Employment Marijuana Drug Testing, effective January 1, 2020)

Starting with one of the most controversial bills, AB 132 addresses pre-employment marijuana screening of job applicants. When the recreational marijuana initiative passed in 2016 (effective 2017), it specifically stated that it did not prohibit “[a] public or private employer from maintaining, enacting, and enforcing a workplace policy prohibiting or restricting actions or conduct otherwise permitted under this chapter.” AB 132 provides that, subject to certain exceptions, it is unlawful for any employer in Nevada to “fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana.” AB 132 also provides that if an employer requires an employee to submit to a screening test within the initial 30 days of employment, the employee has the right to submit to an additional screening test (at the employee’s expense) to rebut the results of the initial test. The employer is required to accept and give appropriate consideration to the results of the second test.

For the full text of the bill, click here.

AB 456 (Minimum Wage Increase, effective July 1, 2019)

Effective July 1, 2020, the minimum wage in Nevada will rise to $8/hour (if the employer offers qualifying health benefits) and to $9/hour (if the employer does not offer qualifying health benefits). For the next four years thereafter (2021-2024), on July 1, the respective minimum wage rates raise by $0.75, until they reach $11/hour (with qualifying benefits) and $12/hour (without qualifying benefits), beginning July 1, 2024. By placing these automatic increases in NRS 608.250, AB 456 removes the establishment of the applicable minimum wage rate from the Nevada Labor Commissioner’s purview.

For the full text of the bill, click here.

SB 192 (Qualifying Health Benefits for Minimum Wage Purposes, effective January 1, 2020)

Related to AB 456 is the issue what constitutes “qualifying health benefits” that would entitle an employer to pay the lower tier minimum wage.

The Minimum Wage Amendment (MWA) to the Nevada Constitution (Article 15, Section 16) currently allows an employer who provides qualifying health benefits to pay employees a $7.25/hour minimum wage, instead of a $8.25/hour minimum wage. One of the applicable requirements to be able to pay the lower minimum wage is the mandate that health insurance must be made available to an employee and the employee’s dependents at a total premium cost to the employee of not more than 10 percent of the employee’s gross taxable income from the employer. Prior to May 31, 2018, employer-provided health benefit plans also had to meet certain substantive coverage requirements under NRS Chapters 689A and 689B. These requirements were removed from consideration based on a Nevada Supreme Court decision issued on May 31, 2018.

The Nevada Legislature passed SB 192, which re-introduces substantive requirements that a health plan must meet to qualify for payment of the lower tier minimum wage.

For the full text of the bill, click here.

AB 221 (Employment of Persons Under 21 in Casinos, effective July 1, 2019)

AB 221 amends NRS Chapter 463 to permit a person who is of the age of majority (18 or 16, in some circumstances) to be employed as a gaming employee by a licensed manufacturer or distributor at the business premises of the licensed manufacturer or distributor if the person is engaged in the performance of certain duties.

For the full text of the bill, click here.

SB 493 (Employee/Contractor Misclassification, effective July 1, 2019)

SB 493 adds sections to NRS Chapter 608, precluding an employer from using coercion, misrepresentation, or fraud to require a person to be classified as an independent contractor or form a business entity in order to classify the person as an independent contractor. SB 493 also prohibits employers from willfully misclassifying or “otherwise willfully fail to properly classify a person as an independent contractor.” The bill also addresses certain independent contractor definitions. Employers who violate SB 493 may be subject to administrative penalties imposed by the Labor Commissioner.

In addition, SB 493 creates a Task Force on misclassification issues and requires the offices of the Labor Commissioner, the Division of Industrial Relations of the Department of Business and Industry, the Employment Security Division of the Department of Employment, Training, and Rehabilitation, the Department of Taxation, and the Attorney General to share information regarding suspected misclassification of employees collected in the course of performing their official duties, which has not otherwise been declared confidential under applicable law.

SB 493 also requires that the mandatory workers’ compensation posters include the definitions of “employee” and “independent contractor,” as those terms are defined in Nevada’s workers’ compensation statutes.

For the full text of the bill, click here.

AB 181 (Employee Attendance Requirements, already effective)

AB 181 adds a new section to NRS Chapter 613 to make it unlawful for an employer to require an employee to be physically present at the employee’s place of work in order to notify the employer that the employee is sick or has sustained a non-work-related injury and cannot work. An employer may, however, require an employee to provide notification that the employee is sick or injured and cannot report to work.

For the full text of the bill, click here.

SB 312 (Mandatory Paid Leave for Certain Private Employers, effective January 1, 2020)

SB 312 states that every Nevada private employer who has 50 or more employees in private employment in Nevada is obligated to provide paid leave to “each employee of the employer,” subjects to certain exceptions and stipulations. Under SB 312, an employee is entitled to at least 0.01923 hours of paid leave for each hour of work performed (meaning, part-time employees also accrue paid leave, unless otherwise excluded). Employers can provide more generous paid leave benefits.

Employers can limit paid leave use to 40 hours per benefit year. Employers can also limit the amount of paid leave carried over from one benefit year to the other to 40 hours per benefit year. Employers are allowed to set a minimum increment of paid leave (not to exceed 4 hours) that an employee may use at one time. Accounting and record-keeping requirements apply.

Employers may, but are not required to, pay out accrued but unused paid leave upon termination of employment. However, if the employment separation was not due to the employee’s voluntary resignation and the employee is rehired within 90 days, any previously unused paid leave hours available for use by the employee must be reinstated.

Exceptions to SB 312 apply.

For the full text of the bill, click here.

AB 248 (Settlement Agreements, effective July 1, 2019)

AB 248 provides that, except as otherwise indicated in NRS 233.190 (dealing with confidentiality of Nevada Equal Rights Commission settlements and related information), a settlement agreement must not include provisions that prohibit or otherwise restrict a party from disclosing factual information related to a claim in a civil or administrative action, if the claim relates to: (a) conduct that would constitute a sexual offense under NRS 179D.097 and be punishable as a felony (regardless of whether criminal investigation, prosecution, or conviction of such conduct ultimately occurred); (b) discrimination on the basis of sex; or (c) retaliation by an employer against the employee for the employee’s reporting of sex discrimination. Any settlement agreement executed after July 1, 2019 that contains any provisions banned by AB 248 is void and unenforceable, and a court shall not enter an order that restricts the disclosure of the factual information outlined above.

Except where a governmental agency or a public officer is a party to the settlement agreement, upon the claimant’s request, the settlement agreement must contain a provision that prohibits disclosure of the claimant’s identity and any facts relating to the action that could lead to the disclosure of the claimant’s identity. If a governmental agency or a public officer is a party to the settlement agreement, such a provision cannot be requested.  A “claimant” is a person who filed a claim in a civil action, or an administrative action based on the grounds set forth in sections (a) through (c) above.

Interestingly, AB 248 also applies to landlords, and the definition of “employer” it uses is the definition set forth in NRS 33.220 (“a public or private employer in this state, including, without limitation, the State of Nevada, an agency of this state and a political subdivision of this state.”)

For the full text of the bill, click here.

SB 177 (Title VII-Like Remedies for Nevada Law Violations, effective October 1, 2019)

Finally, in relevant part, SB 177 provides that an employee who successfully brings a claim under NRS Chapter 613 may recover the same legal or equitable remedies that may be awarded to the employee pursuant to Title VII of the Civil Rights Act of 1964 (federal anti-discrimination law).

For the full text of the bill, click here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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