The Governor of Nevada recently signed into law Senate Bill 386, which is Nevada’s version of the trending “return to work” or “right to recall” laws being passed in other jurisdictions throughout the country in response to the COVID-19 pandemic. These laws typically require that employees who were laid off due to the pandemic be given priority to be offered their former jobs before external candidates are considered. Nevada’s law, the Nevada Hospitality and Travel Workers Right to Return Act (“the Act”), does not apply to all businesses, but generally to such businesses that were most affected by the pandemic, including hospitality and airports. The Act is set to expire on the latter of either the date that the governor terminates the Declaration of Emergency issued on March 12, 2020, or August 31, 2022. Due to the uniqueness of Nevada’s economy, employers should be aware of some key takeaways about the Act and be prepared to implement this law on its effective date of July 1, 2021.
Which Employers are Covered by this Law?
The Act applies to any “covered enterprise,” which is defined to include an airport hospitality operation, an airport service provider, a casino, an event center, or a hotel that is located in a county that has a population of 100,000 or more. The Act has specific definitions of those terms.
If an employer is a covered enterprise, this law applies only to employers that control the wages, hours, or working conditions of 30 or more employees, or, pursuant to this definition, controlled 30 or more employees on March 12, 2020.
Which Employees are Covered by this Law?
The law applies to any laid-off employee who was employed by the employer “for not less than 6 months during the 12 months immediately preceding March 12, 2020.” The layoff must have taken place and been due to a governmental order, a lack of business, a reduction in force, or another economic, nondisciplinary reason.
The term “employee” does not include employees who were employed in “a managerial or executive capacity,” and exempt from the Fair Labor Standards Act pursuant to 29 U.S.C. § 213(a)(1), or to theatrical and stage performers. If, upon separation, a laid-off employee was a party to a valid severance agreement, then the law does not apply to these employees, either.
What Notices Does the Act Require?
The Act implements a notice requirement. An employer is required to provide written notice of the layoff to any employee who is to be laid off “either in person or mailed to the last known address of the employee,” and, if the employer has electronic contact information for the employee, then the employer must also notify the employee “by telephone, text message or electronic mail.”
A compliant notice must also be sent to any employee that was laid off after March 12, 2020. Employers should be aware that this statute has a retroactive requirement, imposing an obligation to ensure that previous layoffs comply with this notice requirement. Pursuant to the Act, employers that conducted a layoff after March 12, 2020, and before July 1, 2021, have until July 21, 2021, to provide the notice.
Moreover, the Act requires employers to retain certain records for at least two years after an employee is laid off, and these records must include a copy of the written notice regarding the layoff that was provided to the employee, as well as each offer made by the employer to the employee pursuant to this law, including the date and time of each offer. The two-year timeline begins on the date that the written notice of layoff was provided to the employee.
What Should the Notice Contain?
The notice must be offered in English, Spanish, and any other language “that is spoken by not less than 10 percent of the employer’s workforce.” It must include: (1) a notice of the layoff and the effective date of the layoff; (2) a summary of the right to reemployment (discussed more thoroughly below) or instructions on the means by which the employee may access the information regarding that right; and (3) contact information for the employer’s designated point-person to whom an aggrieved employee’s written notice of an alleged violation can be directed.
What are the Recall Rights, or the Right to Reemployment, Provided in the Statute?
The Act requires that a laid-off employee be offered each position:
- Which becomes available after July 1, 2021; and
- For which the laid-off employee is qualified.
A laid-off employee is qualified for a job position if the employee:
- Held the same position at the employer at the time of the laid-off employees’ most recent separation from active service with the employer; or
- Held a similar position within the same job classification at the employer at the time of the laid-off employees’ most recent separation from active service with the employer.
The job positions must be offered to laid-off employees in an order of preference based on whether it is the same position or a similar position. If more than one employee is entitled preference to a certain position, the position must be offered to the employee with the greatest length of service for the employer.
The employer extending a job position must provide the employee at least 24 hours after the time of the employee’s receipt of the offer to accept or decline it. A laid-off employee who is offered a job position must be available to return to work within five calendar days after accepting the offer. If an employee does not accept or decline the offer within 24 hours, or is not available to return to work within five calendar days after acceptance, then the employer may recall the next available employee in the specified order of preference.
An employer is not required to extend additional offers if the employee states in writing that the employee does not wish to be considered for future open positions with the employer, or the employee does not want to work in the position that has a schedule different from what the employee worked in the previous position. The Act also provides guidelines as to when the employer can cease attempting to contact laid-off employees if they do not respond.
If an employer declines to recall a laid-off employee because the employee lacks qualifications and hires a person other than the laid-off employee, the employer must, not later than 30 days after making that decision, provide the laid-off employee with a written notice that identifies the reason for the decision.
What Happens if the Statute is Violated?
If an employee believes that the employer has violated this law, the employee can seek recourse through either the Nevada Labor Commissioner or through a civil action. Prior to filing such a complaint, an employee must first provide the employer with written notice by electronic mail of the alleged violation and the facts known by the employee to support the allegation. The employer has 15 days after the date of receipt of the written notice to cure any alleged violation. Remedies that can be awarded to employees include reinstatement, and front and back pay. An employer in violation also may be subject to civil penalties, compensatory and liquidated damages that accrue each day that the rights are violated, and an attorneys’ fees award.
Next Steps for Employers
Nevada employers that are “covered enterprises” under the Act should promptly consider taking proactive steps to ensure compliance with the new law. Employers should carefully assess whether the law applies to their operations and any layoffs that may have occurred or be planned. In addition:
- For any layoff that occurred from March 12, 2020 to June 30, 2021, employers should be prepared to provide their notices of layoff to affected employees by July 21, 2021. For any layoff that occurs on or after July 1, 2021, the employer must be prepared to provide the notice of layoff at the time of layoff.
- Employers must be prepared to offer laid-off employees job positions that become available for which the laid-off employees are qualified pursuant to the preference order outlined in the Act.
- Employers need to designate an individual who will be a point of contact to receive any aggrieved employee’s written notice of an alleged violation of the Act, to be identified in the notice. This individual should be familiar with the requirements of this law and how to potentially cure an alleged violation within 15 days of receipt of a written notice from a laid-off employee.
- Employers should implement appropriate record retention policies to ensure that the requisite records are maintained for two years from the date the written layoff notice is provided to the employee.
Employers with questions about the Act and its requirements should contact knowledgeable employment counsel.