Nevada-Specific Recent and Upcoming Employment Law Changes
Anti-Discrimination Policy – Hair Texture and Protective Hairstyles (2021)
S.B. 327, Amends Nevada’s definition of race under its anti-discrimination law to include traits associated with race, including hair texture and protective styles. “Protective hairstyles” includes, without limitation, hairstyles such as natural hairstyles, afros, bantu knots, curls, braids, locks, and twists. It is illegal for employers to discriminate based on a person’s protective hairstyle and employers may be subject to investigation by the Nevada Equal Rights Commission for claims of illegal hair-based discrimination. An employer may enforce health and safety requirements set in forth in federal and state law notwithstanding the new protections for hair texture and protective styles.
Domestic Violence Leave (2018)
NRS 608. An employee who has been employed for at least 90 days and who is a victim of an act which constitutes domestic violence, or whose family or household member is a victim of an act which constitutes domestic violence, and the employee is not the alleged perpetrator, is entitled to 160 hours of unpaid leave in one 12-month period. This leave may be consecutive or intermittent.
Employees will not be required to find a replacement worker and will not be retaliated against for using hours of leave.
Employee/Contractor Misclassification (2019)
SB 493. Added 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. It 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 may be subject to administrative penalties imposed by the Labor Commissioner.
In addition, it 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.
Hiring Practices – Salary History and Salary Ranges (2021)
SB 293. Employers and employment agencies are now prohibited from seeking job applicants’ wage or salary history when making decisions about whether to offer employment to an applicant or when determining the rate of pay to offer an applicant. “Wage or salary history” refers to the wages or salary paid to an applicant for employment by the current or former employer of the applicant, including any compensation and benefits received by the applicant.
Employers are also now required to provide an applicant who has completed an interview with the salary range or rate of pay for the position and the salary range or rate for a promotion or transfer if the employee has (1) applied for the promotion or transfer, (2) completed an interview for or been offered the position or transfer; and (3) requested the wage or salary range for the promotion or transfer.
Hospitality and Travel Workers Right to Return (2021)
SB 386. Requires certain employers in the casino, hospitality, stadium, and travel industries to offer former employees laid off or furloughed due to the COVID-19 pandemic the opportunity to return to work starting July 1, 2021. “Covered enterprises” include airport hospitality operations, airport service providers, casinos, and event centers or hotels that are in a county with a population of 100,000 or more. The bill applies to all employees, regardless of whether they are covered by a collective bargaining agreement, excepting managerial and executive employees exempt from the FLSA, theatrical or stage performers, and employees who are party to a valid severance agreement. To qualify, the laid-off employee must have been employed for at least six months during the period of March 12, 2019 through March 12, 2020. The employee’s separation must have occurred after March 12, 2020 and must have been due to “a governmental order, lack of business, reduction in force, or another economic, non-disciplinary reason.”
The employer must offer the laid-off employee each position when it becomes available after July 1, 2021 and for which the employee is qualified. An employee is “qualified” if they held the same position or a similar position within the same job classification at the time of separation. The offer must be in writing and sent by mail to the last known address of the employee and, if known, by electronic mail, telephone, or text message.
An employer is not required to make additional offers of employment after an initial offer to a laid-off employee if (1) the employee states in writing that they do not wish to be considered for future open positions; (2) the employer extends and the employee declines three “bona fide offers” of employment made no fewer than three weeks between each offer; or (3) the employer attempts to make three offers of employment and each offer by mail or electronic mail is returned as undeliverable and if the employee’s telephone number is no longer in service.
NRS 201.232. For up to one year after the child’s birth, any employee who is breastfeeding her child will be provided reasonable break times to express breast milk for her baby. A designated room is available for this purpose. A small refrigerator reserved for the specific storage of breast milk is available. Any breast milk stored in the refrigerator must be labeled with the name of the employee and the date of expressing the breast milk. Any nonconforming products stored in the refrigerator may be disposed of. Employees storing breast milk in the refrigerator assume all responsibility for the safety of the milk and the risk of harm for any reason, including improper storage, refrigeration, and tampering.
Breaks of more than 20 minutes in length will be unpaid, and the employee should indicate this break period on her time record.
There are provisions that small employers may not be able to accommodate.
AB 456. Increases the minimum wage required to be paid to employees in private employment through July 1, 2024. It identifies what constitutes “qualifying health benefits” that would entitle an employer to pay the lower-tier minimum wage. 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.
Non-Compete Statutes (2021)
AB 47. Makes it explicit that an employer is prohibited from bringing an action to restrict a former employee from providing services to a former customer or client if the former employee did not solicit the former customer or client, if the customer or client voluntarily chose to seek services from the former employee, and if the former employee is otherwise complying with the limitations in the noncompetition covenant. “Noncompetition covenant” refers to an agreement between employer and employee which, upon termination of the employment of the employee, prohibits the employee from pursuing a similar vocation in competition with or becoming employed by a competitor of the employer.
AB 47 also specifies that noncompetition covenants may not apply to employees who are paid solely on an hourly wage basis. Additionally, the bill requires the court award attorneys’ fees and costs to the employee in an action to enforce or challenge a noncompetition covenant if the court finds that the noncompetition covenant applies to an employee paid an hourly wage or if the employer impermissibly restricted the employee from providing services to former customers or clients.
SB 312. Employers with 50 or more employees are required to pay employees a minimum of .01923 hours of paid leave for all employees for each hour worked. An employee must be eligible to use the paid leave on the 90th calendar day of employment. Employees are not required to provide a reason for the leave.
Paid Leave Covid Vaccine (2021)
SB 209. Private employers must provide employees with paid leave to receive a COVID-19 vaccine. The amendment specifically provides that every private employer shall provide two consecutive hours of paid leave per absence to receive a dose of the vaccine, for a total of four hours of paid leave. The employee is to give notice of his or her intent to use such paid leave at least twelve hours prior to using it.
Employers are prohibited from denying the employee the right to use this paid leave option, requiring the employee to find a replacement worker as a condition of using said paid leave, and retaliating or taking adverse action against the employee. Such prohibited retaliation includes firing the employee, penalizing the employee, and deducting the paid leave provided to the employee from his or her salary or wages.
Pre-Employment Marijuana Drug Testing (2020)
AB132. 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.”
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.
Pregnant Workers’ Fairness Act (2017)
NRS 613.335. Employees have the right to be free from discriminatory or unlawful employment practices when working for an organization with 15 or more employee. Female employees have the right to a reasonable accommodation for a condition of the employee relating to pregnancy, childbirth, or a related medical condition. Refer to the FLSA for Federal non-discrimination as well.
Sick Leave Policies (2021)
AB 190. Requires employers that provide paid or unpaid sick leave to allow employees to use accrued sick leave for an absence for the care of an immediate family member to the same extent and under the same conditions that apply to the employee when taking such leave. “Immediate family” refers to the child, foster child, spouse, domestic partner, sibling, parent, mother or father-in-law, grandchild, grandparent, or stepparent of an employee or any person for whom the employee is the legal guardian.
The employer may limit the amount of sick leave the employee may use for the care of immediate family to an amount equal to “not less than the amount of sick leave that the employee accrues during a 6-month period.”
Statute of Limitations for Common-Law Wrongful Termination Claims (2021)
SB 107. Provides for a two-year statute of limitations for commencing common-law wrongful termination claims. The statute of limitations is tolled pending the EEOC or Nevada Equal Rights Commission review of the administrative complaint and for an additional 93 days after the conclusion of the administrative proceedings. It also requires that all claims without an express statute of limitations period must commence within four years after the cause of action accrues.
Wage Claims and the Labor Commissioner (2021)
SB 245. If a person files a complaint with the Nevada Labor Commissioner and that person is covered by a collective bargaining agreement that provides a remedy for relief, the labor commissioner must decline jurisdiction of the complaint until the remedies provided by the terms of the collective bargaining agreement are exhausted. SB 245 further requires the labor commissioner to take jurisdiction of such a claim if the commissioner determines that relief provided by the terms of the agreement are inadequate, unavailable, or non-binding, and that the agreement is in compliance with Nevada labor law.