United States: Nothing Ventured, Nothing Gained: New Employment Laws In Nevada

The Nevada Legislature had a busy 80th session in 2019, enacting a vast array of new laws affecting employers.  Some highlights of this year's session are new Nevada laws expanding remedies available for employment discrimination claims, expanding mandatory occupational safety training to employees involved in conventions and trade shows, codifying the definition of "health benefits" under the Minimum Wage Amendment Act, increasing the minimum wage, requiring annual paid leave for employees, redefining disclosure agreements regarding sex discrimination or sexual offenses settlements, and providing legal protections for applicants and employees with positive marijuana test results.  This article will briefly discuss additional key labor and employment laws enacted this session that are in effect or will become effective in the State of Nevada. 

Nevada Equal Rights Commission.  The Nevada Legislature substantially revised the Nevada Equal Rights Commission's procedure and power through SB 166. 

Regarding procedure, complaints still must be filed 300 days after the date on which the alleged unlawful discrimination occurred, but the Commission must notify the parties of the amount of time that a person may apply to a district court for relief. 

As to power, SB 166 gives the Commission: (1) the ability to award back pay up to two years before the filing of the complaint until the day the Commission issues an order on it; (2) the ability to order payment of lost wages or other economic damages for cases arising from sex discrimination; and (3) the ability to order a civil penalty.  This civil penalty has increased and will be applied to cases where the Commission finds that the employer willfully committed an unlawful employment practice.  The Commission will determine the amount of the penalty by considering how many incidents of unlawful conduct the person/entity has committed in the past five years.  Before imposing a civil penalty, however, the Commission will allow the person or the employer 30 days to take corrective action.  If the person takes corrective action, the Commission will not impose a penalty.  This law takes effect on January 1, 2020.   

Independent Contractors.  Under SB 493, the Nevada Legislature redefined how to determine the classification of an independent contractor.  Previously, Nevada courts used the "economic realities" test, which the Nevada Supreme Court had adopted and applied.  SB 493 clarifies existing law to require that individuals presumptively assumed to be independent contractors must also hold a state or local business license to operate in Nevada, and adds that certain contractors and subcontractors may also be presumed to be independent contractors. 

In addition, the law grants the Labor Commissioner the power to administer penalties of up to $5,000 per employee if workers are misclassified.  It also creates and sets forth the membership of the Task Force on Employee Misclassification.  This law became effective on July 1, 2019.    

Workers' Rights.  Nevada enacted AB 290, which governs courses in construction industry safety and health hazard.  Specifically, this new law requires the Division of Industrial Relations of the Department of Business and Industry to establish a registry to track the completion of these courses and to track the people authorized to train and provide the courses.  The Division must also publish the names of the workers who have completed OSHA-10 or OSHA-30 courses online so that the public can verify completion. This requirement applies also to entertainment industry workers and supervisory employees. AB 290 takes effect on January 1, 2020. 

Additionally, an employee seeking workers' compensation benefits is now entitled to choose a health care provider under SB 381.  The legislature determined that injured employees are owed a right to choose their health care providers, and insurers must therefore provide a list of at least 12 health care providers from which the employee may select.  This law also takes effect on January 1, 2020. 

Further, under SB 135, state employees now have the power to collectively bargain and the power to negotiate wages, hours, and other terms and conditions of employment.  This law became effective on June 13, 2019. 

Hospital Workplace Violence Plans.  The legislature enacted AB 348 to prevent and track workplace violence at medical facilities.  Specifically, this law creates a Nevada OSHA standard requiring health care employers to create comprehensive workplace violence prevention plans and track violent incidents in hospitals and other medical facilities.  In addition to delineating the requirements of what hospitals must include in their workplace violence plans—including plans created by both the employer and employees—the law also prohibits hospitals from retaliating against employees for reporting an incident or seeking assistance in an event of workplace violence.  No employee needs to be injured for the event to constitute workplace violence. 

In line with creating these plans, the Division is required to publish annually a report detailing incidents of workplace violence in hospitals.  This law not only applies to hospitals, but includes large agencies that provide nurses for home care, independent centers for emergency medical care, facilities for intermediate case, facilities for skilled nursing, rural clinics, facilities for modified medical detoxification, and community triage centers.  This law became effective on July 21, 2021. 

Sick Day Notifications.  Under AB 181, employers cannot require employees to be physically present at work in order to notify the employer of an illness or injury requiring the use of sick leave.  While an employee do not have to be physically present, the law allows employers to require the employee to notify the employer that the employee is sick and cannot come in for work.  Under this statute, the Labor Commissioner may fine employers for violating these provisions.  This law became effective on May 15, 2019. 

Restrictions Against Microchip Implantation.  Nevada enacted AB 226, which prevents any entity or person from requiring someone to have a microchip implanted, or any other permanent identification marker, as a condition of employment.  This law is similar to laws enacted in Arkansas and Montana, and will become effective on October 1, 2019. 

Call Center Employee Relocation. An employer that relocates a call center or operations of a call center to a foreign country must provide notice to the Labor Commissioner and the employees who will be displaced.  Under AB 271, the employer must provide this notice at least 90 days before the relocation or else it may incur civil penalties.  This law becomes fully effective on January 1, 2020.

Removal of Decriminalized Offenses Under AB 192, if an offense is decriminalized, any person who was convicted of the decriminalized offense may request that the records of such an offense be sealed so that they may not appear on a background check.  This law became effective on July 1, 2019. 

Vapor Products. The Nevada Clean Indoor Air Act prohibits smoking within indoor places of employment.  Pursuant to SB 263, smoking now includes an electronic smoking device.  Therefore, in any place where smoking tobacco is prohibited, with the use of electronic devices, such as vapes, is now prohibited as well.  Employers that violate this statute may be subject to a civil penalty.  This law became effective on July 1, 2019. 

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.

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