Pandemic-Born Rules: Nevada’s Newest Employment Laws

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In its 81st Session, the Nevada Legislature passed and Governor Sisolak signed into law approximately 140 pieces of new legislation, some of which affect employers. Highlights regarding key Nevada labor and employment laws enacted this legislative session that will soon take effect, or already are in effect, are discussed briefly below.

New Leave Requirements.  As previously reported, the Nevada Legislature enacted two separate bills—SB 209 and AB 190—covering workers’ leave rights. Under SB 209, private employers generally must provide employees with paid leave to receive a COVID-19 vaccine. This law took effect when signed on May 29, 2021. Under AB 190, effective October 1, 2021, employers that provide paid or unpaid sick leave must allow employees to use a portion of that leave for the care of immediate family.

Changes to Noncompetition Law. A separate article discusses how AB 47 modified Nevada’s noncompetition statute, NRS 613.195. AB 47 expressly provides that employers are prohibited from bringing certain actions against former employees, prohibits noncompetition covenants from applying to hourly employees, and requires courts to award attorney’s fees and costs to employees in certain circumstances.

Claimants Must Bring Claims for Wrongful Termination within Two Years. Nevada enacted SB 107 regarding the statute of limitations for commencing common-law wrongful termination claims. The law provides that an action for wrongful termination must be brought within two years of the termination date. Before SB 107, the law did not expressly prescribe a statute of limitations for common-law wrongful termination of employment actions.  SB 107 codified the Nevada Supreme Court’s decision in Patush v. Las Vegas Bistro, LLC, 135 Nev. 353 (2019), which held actions for wrongful termination of employment are governed by the two-year statute of limitations for commencing actions to recover damages for personal injury. Under SB 107, the statute of limitations is tolled the date an administrative complaint relating to the termination of employment is filed with a federal or state agency until 93 days after the administrative proceedings. This law became effective on May 27, 2021.

Employers are Prohibited from Discriminating Against Employees on the Basis of their Hair. SB 3271 went into effect on June 2, 2021, making hair-based discrimination illegal. The law prohibits discrimination based on traits typically associated with race including hair texture and hairstyle.

Under SB 327, the Nevada Legislature expanded prohibited race discrimination in employment and education. “Race” is redefined to include traits associated with race, which includes hair texture and protective hairstyles. “Protective hairstyles” include natural hairstyles such as afros, bantu knots, curls, braids, locks, and twists. This law does not prevent employers from enforcing health and safety requirements of federal or state law despite the protections provided by SB 327. Thus, it is illegal to discriminate based on a person’s hair texture or protective hairstyle. The Nevada Equal Rights Commission (NERC) may investigate claims of illegal hair-based discrimination.

Authority and Limitations of the Labor Commissioner and Wages Redefined.  Nevada enacted SB 245, which governs wages and the authority of the labor commissioner. This law becomes effective July 1, 2021.

This law provides, with certain exceptions, that if a person files a complaint with the labor commissioner and the claimant is covered by a collective bargaining agreement that provides a remedy or other relief for violation of its terms, the labor commissioner must decline jurisdiction of the claim or complaint until the remedies, other relief and appeals provided to the claimant by the terms of the collective bargaining agreement are exhausted.

However, the law requires the labor commissioner to take jurisdiction of such a claim or complaint if they determine that the remedies or other relief provided to the claimant by the terms of the collective bargaining agreement are inadequate, unavailable, or non-binding, and thereafter determine compliance with the labor laws of Nevada.

Additionally, if an employer fails to pay wages, compensation, or salary to an employee upon termination as required, the law authorizes the employee to bring a civil action against the employer for up to two years after the employer’s failure. This law also prohibits the labor commissioner from taking jurisdiction of a claim for unpaid wages upon termination during the pendency of a civil action for the same wages.

Last, this law revises the definition of “wages” to include amounts owed to a discharged employee or an employee who resigns or quits and whose former employer fails to pay the employee by the statutory deadlines, in addition to the previous requirements of NRS 608.

Garnishment of Wages Pursuant to a Child Support Order.  AB 37 amends the procedures applicable to employers’ garnishment of employees’ wages pursuant to a child support order.  The law takes effect on October 1, 2021. 

Namely, AB 37 revises the scope of employers’ garnishment of employees’ wages to include lump-sum payments made to employees, such as commission payments, discretionary and non-discretionary bonuses, incentive payments for moving or relocation, severance payments, or any other one-time, unscheduled payment of compensation.  An employer required to garnish the wages of an employee pursuant to a child support order must inform the enforcing authority, as identified in a child support order, at least 10 days before the employer intends to release a lump-sum payment of $150 or more to the employee. The Division of Welfare and Supportive Services of the Department of Health and Human Services (DWSS) subsequently provides written notice to the employer, identifying the amount of the lump-sum payment that the employer must withhold and deliver to the enforcing authority.

An employer is prohibited from releasing the lump-sum payment before: (1) the date that the employer provided that it intended to release the lump-sum payment; or (2) the eleventh day after the employer informed the enforcing authority of its intention to release a lump-sum payment or the date that the employer receives written notice from DWSS, whichever is earlier.  AB 37 also authorizes a court to impose penalties on an employer that refuses to withhold money or intentionally fails to deliver money from an employee’s wages to an enforcing authority pursuant to a child support order.

Employers May Not Seek the Salary History of an Employee.  Nevada enacted SB 293, which prohibits an employer or an employment agency from seeking the salary history of an applicant and prohibits an employer or an employment agency from discriminating against an applicant for not revealing the applicant’s salary history.  An employer or an employment agency may, however, ask an applicant about the applicant’s wage or salary expectation for the position for which the applicant is applying. 

In addition, SB 293 requires an employer or employment agency to provide an applicant who has completed an interview for the employment position: (1) the wage or salary range or rate for the position; and (2) the wage or salary range or rate for a promotion or transfer to a new position if certain conditions are satisfied.  An applicant who believes that an employer has not complied with this provision may file a complaint with the labor commissioner concerning such an alleged violation, which could subject an employer to administrative penalties.  The law takes effect on October 1, 2021.

Employers Must Post a Notice of Services Provided by the Department of Employment, Training and Rehabilitation (DETR).  AB 307 instructs DETR to prepare one or more notices regarding the job training and employment services it provides.  The law also requires each employer in private employment in Nevada to post and maintain DETR’s notice(s) concerning its job training services or employment programs.  Employers must post and maintain the notice(s) in a conspicuous location at the workplace.  The law takes effect on October 1, 2021.

Requirements for Single-Stall Restrooms for Places of Public Accommodation.  Nevada enacted AB 280, which requires places of public accommodation with a single-stall restroom to make the restroom as inclusive and accessible as possible to a person of any gender identity or expression.  It does not create a private right of action for violation of its provisions, nor does it authorize the filing of a complaint with the Nevada Equal Rights Commission for such violations.  The law takes effect October 1, 2021.

In the context of AB 280, a place of public accommodation means any establishment or place to which the public is invited or which is intended for public use, including, without limitation, inns, hotels, motels, restaurants, bars, gasoline stations, theaters, grocery stores, laundromats, museums, libraries, parks, private schools or universities, day care centers, gymnasiums, and health spas.  More specifically, a place of public accommodation with a single-stall restroom must allow: (1) a parent or guardian of a child to enter the single-stall restroom with the child; (2) a person with a disability to enter the single-stall restroom with his or her caregiver, if applicable; and (3) a person of any gender identity or expression to use the single-stall restroom as needed.  AB 280 prohibits the owner or operator of the place of public accommodation from labeling the single-stall restroom with signage that indicates the restroom is for a specific gender.  The law authorizes the labeling of the single-stall restroom as available for use by any person, including by posting a sign that states “All-Gender Bathroom” or “All-Accessible Bathroom.”

 

Footnotes

This law also contains a provision that makes it a category E felony to tamper with the score of a test taken by an employee where testing is a requirement for hiring or promotion of an employee.

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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