By Jessica A. Green, Esq., Lipson Neilson PC
The COVID-19 Pandemic has impacted nearly everyone and everything and employment laws definitely weren’t spared. The 81st Legislative Session resulted in Governor Sisolak signing into law nearly 140 new pieces of legislation – many of which apply to employees and their employers. Here are the highlights:
1. COVID Leave: SB 209 and AB 190 Apply to Worker’s Leave Rights in the Age of Covid.
SB 209 requires employers that have more than two years in business and employ at least 50 employees in Nevada to provide employees with up to 4 additional hours of paid leave to receive the COVID-19 vaccine. SB 209 took effect when signed by the Governor on May 29, 2021.
Employers subject to AB 209 can get around the requirement by providing a vaccination clinic on premises during regular work hours. This provision is set to expire on December 31, 2023. Let’s all hope Covid is a thing of the past by then!
Notably, SB 209 amended the existing NRS 608.0197 (which already provided that employees to not need to provide their reason for using their paid leave) to clarify that paid leave may also be used for:
- The treatment of mental or physical illness, injury, or health condition;
- Receiving or participating in preventative care;
- Receiving a medical diagnosis or medical care;
- Participating in caregiving; or
- Addressing other personal health needs.
As of October 1, 2021, AB 190 requires employers that provide sick leave – either paid or unpaid – to allow their employees to use a portion of their sick leave to care for a member of their immediate family. Immediate family includes the employee’s child, foster child, domestic partner, spouse, sibling, parents, parents-in-law, grandchild, grandparent, stepparent, and any other for whom the employee is a legal guardian.
The Nevada Labor Commissioner is to prepare a bulletin setting forth SB 209 and AB 190’s requirements and employers will be required to post the bulletin in a conspicuous location in each Nevada workplace maintained by the employer.
2. Gain a Competitive Edge: AB 47 Gutted Nevada’s Noncompete Rule – NRS 613.195.
Employers are now prohibited from bringing certain claims and actions against their former employees, employers cannot subject hourly workers to noncompetition covenants, and courts are now required to award attorney’s fees and costs to employees challenging noncompete agreements in certain circumstances. AB 47 preserved the court’s obligation to blue pencil overbroad agreements but created an additional requirement that any judicial revisions not impose undue hardship on the employee.
3. You Can Go Wherever You’d Like, Just Wash Your Hands When You’re Done.
Effective October 1, 2021, AB 280 requires places of public accommodation – think restaurants, hotels, doctor’s offices, etc. – to have a single stall restroom available to make restrooms as inclusive and accessible to people with any and all gender identity or expression. AB 280 prohibits 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.”
There are limits here, however. AB 280 doesn’t create a private right of action for any violations, nor does it authorize the filing of a Charge of Discrimination with the Nevada Equal Rights Commission.
4. Reworking the Labor Commissioner’s Purview and “Wages” Redefined.
AB 245, which went into effect July 1, 2021, removes the Labor Commissioner’s jurisdiction over employees subject to collective bargaining agreements until all of the employee’s available remedies under the CBA are exhausted. If the CBA doesn’t provide an adequate remedy to the alleged violation, the Labor Commissioner – at their own discretion – can take jurisdiction.
AB 245 revises the definition of “wages” to include all amounts owed to an employee who leaves the company and whose former employee fails to pay the employee by the statutory deadlines (read: the penalties are now “wages” under the statute in addition to the existing requirements of NRS 608).
Lastly, employees are able to bring a civil suit for failure to pay wages, compensation, or salary for two years following the employer’s failure. The Labor Commissioner prohibited from taking jurisdiction over a claim for the same wages due while the civil action is pending.
5. Child Support and Garnishment.
Effective October 1, 2021, the scope of wages that may be garnished is expanded to include lump-sum amounts made to employees in the form of commission payments, bonuses, incentive payments, severance payments – or any other one-time, unscheduled payment of compensation. Employers are required to report to the agency enforcing the garnishment order at least 10 days before the employer intends to make a lump-sum payment of $150 or more to the employee enforcing agency.
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 that the employer must withhold and deliver to the enforcing authority.
Employers are 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.
6. 2-Years to Bring Wrongful Termination Claims.
SB 107, Effective May 27, 2021, imposes a statute of limitations on bringing common-law wrongful termination claims. 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 90 days after the administrative proceedings.
7. 180 Days to Bring Charges of Discrimination.
AB 222, already effective, requires that actions under Nevada’s anti-discrimination laws and/or Title VII of the Civil Rights Act of 1964 must be brought no more than 180 days after the date of the claimed discriminatory act or no more than 90 days after the issuance of a right-to-sue notice issued either by the Nevada Equal Rights Commission (“NERC”) or by the United States Equal Employment Opportunity Commission (“EEOC”)—whichever is later.
AB 222 further clarifies that the filing of a complaint with NERC or the EEOC tolls the limitations periods to bring a lawsuit under Title VII or NRS 613.420.
8. Wear Your Hair How You’d Like.
As of June 2, 2021, SB 327 prohibits discrimination based on traits typically associated with race including hair texture and style. Protected hairstyles include natural styles such as afros, bantu knots, curls, braids, locks, and twists. Employers can still enforce health and safety requirements despite the protections provided by SB 327 (ie hairnets, etc.) NERC may now investigate claims of discrimination of this kind.
9. Money, Honey.
With SB 293, employers and employment agencies are prohibited from seeking the salary history of a potential employee, and they may not discriminate against an applicant for refusing to reveal their salary history. Employers and agencies can still ask about salary expectations.
SB 293 also requires an applicant that has completed an interview (1) the wage or salary range or rate for the position applied for; and (2) the wage or salary range or rate for a promotion or transfer to a new position if certain conditions are satisfied.
The Labor Commissioner can investigation compliance complaints and a violation can subject an employer to administrative penalties.
10. DETR Notices.
AB 307, effective October 1, 2021, instructs DETR to provide notices regarding job training and services it provides and requires private employers to post and maintain the notices in a conspicuous location in the workplace – like a break or lunchroom.
This synopsis is my reading of the new rules. The practical application will likely be known in the following months as the new laws are used, enforced, and tested within the applicable agencies and courts. The actual text is available here: https://www.leg.state.nv.us/Session/81st2021/
Jessica Green, Esq., Lipson Neilson, PC
An attorney in Lipson Neilson’s Las Vegas office. Ms. Green advises and counsels employers on all aspects of employment law, and helps clients avoid problems by reviewing and updating employee handbooks, workplace policies, severance agreements, employment contracts, confidentiality agreements, and non-compete agreements.
Ms. Green has successfully represented employers in state and federal courts as well as federal and state administrative agencies including the United States Equal Employment Opportunity Commission (EEOC), the Nevada Equal Rights Commission, the National Labor Relations Board (NLRB), the Occupational Safety and Health Administration, the Department of Labor, the Office the Nevada Labor Commissioner, and the Nevada Department of Employment Training, and Rehabilitation, among others.
In one of her cases, the Ninth Circuit Court of Appeals affirmed the District Court’s granting of Ms. Green’s Motion for Summary Judgment. The victory obtained complete summary dismissal of all Plaintiff’s claims including claims of race, age, genetic information, and disability discrimination, as well as retaliation, tortious discharge, and intentional infliction of emotional distress claims.
If you have any questions about updating your company’s policies, procedures, or handbooks, to comply with these – and many other – new laws, please contact Jessica at 702-382-1500 or JGreen@lipsonneilson.com.