United States: New Nevada Employment Law Developments Affect Social Media, Overtime

There have been several notable and recent developments in Nevada employment law both through enacted legislation and advisory opinions issued by the Nevada Labor Commissioner.  Specifically, the legislature has passed a law limiting employer access to employee and applicant social media information.  Additionally, Nevada's Office of the Labor Commissioner (Labor Commissioner) recently issued two advisory opinions regarding time clock rounding and the "4 10s" exception to the state's overtime laws.

Employee Social Media Information

During the most recent legislative session, Governor Brian Sandoval signed into law Assembly Bill 181, which makes Nevada the eleventh and latest state to enact employment-related provisions limiting employer access to employees' and applicants' social media information.

Under the law, an employer cannot:

  • Directly or indirectly require, request, suggest, or cause an employee or prospective employee to disclose a user name, password, or other information providing access to his or her personal social media account; or
  • Threaten to or actually discharge, discipline, discriminate in any manner, or deny employment or promotion to an employee or prospective employee who refuses, declines, or fails to disclose a user name, password, or any other information providing access to his or her personal social media account.

The new law defines "social media account" as "any electronic service or account or electronic content, including, without limitation, videos, photographs, blogs, video blogs, podcasts, instant and text messages, electronic mail programs or services, online services or Internet website profiles."

The law is far less detailed than some other analogous state laws, but lacks certain employer protections set forth in other state statutes.  For example, unlike California's statute, Nevada's social media provision does not include an exception that allows an employer to request that an employee divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct.  However, Nevada's new law does allow an employer to require an employee to disclose a user name, password, or other information to an account or service (other than a personal social media account), to access the employer's internal computer or information system.  Further, the law does not prevent an employer from complying with state or federal statutes or regulations.

In response to the new law, employers should review and revise, if necessary, policies and procedures concerning access to social media. Employers lacking policies that address the new law should consider implementing social media policies.  Further, employers should train supervisory, managerial, and human resources personnel not to ask employees for their log-in credentials for personal social media and not to discipline employees who refuse to provide those credentials.

Nevada Labor Commissioner Advisory Opinions

Rounding Opinion

The June 21, 2013 advisory opinion focused on whether the use of time clock rounding to calculate employee pay is appropriate under Nevada law.  Apparently reversing his previously-held position indicated in an article last year, the Labor Commissioner now asserts that "time clock rounding is appropriate so long as the rounding policy is used in a manner that does not result, over a period of time, in a failure to compensate employees properly for all the time actually worked."  In reaching this conclusion, the Labor Commissioner relied on the fact that (1) federal law permits time clock rounding, (2) other states follow federal law, and (3) time clock rounding is not inconsistent with Nevada law.  

The Labor Commissioner explained that the Fair Labor Standards Act (FLSA) permits employers to use time clock rounding under certain circumstances.  In fact, the applicable federal regulation specifically states that time clock rounding is permissible "provided that that it is used in such a manner that it will not result, over a period of time, in a failure to compensate the employees properly for all the time they have actually worked."1 The Labor Commissioner noted that pursuant to this regulation, courts will not find a violation of federal law if an employer uses time clock rounding, "as long as the time clock rounding policies do not result, over time, in a failure to compensate employees for all time actually worked."

In addition to the FLSA permitting time clock rounding, the Labor Commissioner noted that there are several other states, in addition to Nevada, that do not have a specific statute, regulation or case law regarding this long standing practice.  However, these states often rely on the FLSA when interpreting their wage and hour laws.  By way of illustration, in East v. Bullocks, Inc.,2 an Arizona court reasoned that because the state did not have a law that was inconsistent with the federal regulation regarding time clock rounding, it was reasonable to interpret Arizona law in a manner consistent with the federal regulation.  California also gave time clock rounding its stamp of approval in See's Candy Shops, Inc. v. Superior Court,3 and noted that time clock rounding allows employers to efficiently calculate hours worked without being overly burdensome on employees. 

Finally, the Labor Commissioner stated that time clock rounding is not inconsistent with Nevada's wage and hour laws.  For the reasons set forth above, the Labor Commissioner held that employers that "utilize a time clock rounding policy that will not result, over time, in failure to compensate employees properly for all time worked" will not be in violation of Nevada law.

"4 10s" Opinion

Under Nevada law, an employer is required to pay 1.5 times an employee's regular wage rate when an employee works more than 40 hours in any scheduled week of work or more than eight hours in any workday (if the employee earns less than 1.5 times the applicable Nevada minimum wage rate), whichever occurs first.4  There is an exception to the requirement for daily overtime.  If the employee and employer mutually agree to a schedule where the employee works a scheduled 10 hours per day for four days within any work week, the employer is NOT obligated to pay overtime for the two hours exceeding eight in a workday.  This exception is known as the "4 10s" exception. 

On July 25, 2013, the Labor Commissioner issued another advisory opinion that addressed this "4 10s" exception to Nevada's overtime law under N.R.S. 608.018 and N.R.S. 338.020.  In this opinion, the Labor Commissioner clarified his position and held "that an employer is not required to pay overtime when it is a decision of the employee that results in an employee failing to work a scheduled '4 10s.'"

The Labor Commissioner noted that there are several benefits to the "4 10s" exception, such as providing a flexible work week alternative for employees while at the same time ensuring that employers can still operate efficiently and effectively.  Despite the "4 10s" exception, there were still several scenarios in which an employer may have been required to pay overtime – for example, when an employee does not work a complete 10 hour shift on the employee's fourth 10 hour day.  A strict interpretation of the law in this example requires the employer to pay two hours of overtime for each of the three previous days and therefore defeats the purpose of the exception.  In the advisory opinion, the Labor Commissioner stated that in situations such as this, the employer incurs an additional and unexpected expense, which is often passed on to the employer's customers.  Further, these types of situations often negatively affect the employer-employee relationship.

In an effort to rectify this unintended consequence under the "4 10s" exception, the Labor Commissioner clarified that "[i]f an employee does not work a scheduled '4 10s' due to a decision made by the employee or for reasons within the employee's control or to the employee's benefit, the employer is only required to pay the employee's regular wage for the hours the employee actually worked during that work week."  However, employers should be aware that the key to this opinion is a factual premise that the employee made the decision not to work the "4 10s" schedule.  If the employee is unable to work his "4 10s" schedule as a result of action by the employer or for reasons outside of the employee's control, then the employer is required to pay overtime for any day during the work week where the employee worked more than 8 hours.

Footnotes

1 29 C.F.R. § 785.48(b).

2 34 F.Supp.2d 1176, 1184 (D. Ariz. 1998).

3 210 Cal. 4th 889, 907 (Cal. App. 4th Dist. 2012).

4 See N.R.S. 608.018; N.R.S. 338.020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions