Out With The Old, And In With The New
Welcome to TALG’s second article covering recent developments in Nevada employment law. Over the past two years, the Nevada Legislature passed several laws that were recently added to the Nevada Revised Statutes in 2022. The new laws may impact some existing employee policies or handbooks, and employers should evaluate their existing applications, policies, handbooks, and other employment-related agreements to ensure compliance with these new laws.
TALG also intends to conduct a webinar regarding these new changes impacting employers. Stay tuned for details!
Below are some of the recent changes to Nevada law that may impact workplace policies for Nevada employers.
Nevada’s Pay Equity Law
Senate Bill 293, codified as NRS 613.133, makes it unlawful for employers to:
- seek the wage or salary history of an applicant for employment,
- rely upon the wage or salary history to determine the rate of pay or whether to make an offer to the applicant, or
- refuse to interview, hire, promote, or employ an individual that does not provide a wage or salary history.
Following an interview, employers must also provide applicants with the wage or salary range for the position, which includes current employees that have applied for a promotion or transfer. Importantly, employers may ask applicants for their wage or salary expectation for the position, just not their past wage or salary history. To ensure compliance with Nevada’s pay equity law, employers should eliminate any questions relating to wage or salary history from employment applications and coach interviewers to avoid any questions to applicants regarding wage or salary history.
In two recent decisions from the Nevada Supreme Court — Uber Techs., Inc. v. Royz, 517 P.3d 905, 138 Nev. Adv. Rep. 66 (Nev. 2022) and Airbnb, Inc. v. Rice, 518 P.3d 88, 138 Nev. Adv. Rep. 65 (Nev. 2022)—the Court adopted the United States Supreme Court’s holding in Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 529, 202 L. Ed. 2d 480 (2019) and concluded that district courts have no power to determine the arbitrability of a dispute arising under the Federal Arbitration Act (FAA) if the contract delegates the question of arbitrability to an arbitrator. In light of this ruling, employers should review their arbitration agreements to ensure that the contracts expressly delegate the authority to determine threshold issues of arbitrability to an arbitrator to avoid the potential litigation of those issues in a district court.
Non-Competes and Non-Solicitation Agreements
Assembly Bill 47, which amended NRS 613.195, prohibits noncompetition agreements for hourly employees. The law also prohibits an employer from restricting former employees from providing services to former customers or clients if the employee did not solicit the former customers/clients, the customers/clients voluntarily choose to leave, and the former employee generally complies with the non-competition agreement. “Noncompetition agreement” is defined broadly under the statute as an agreement between an employee and employer that prohibits the employee from pursuing a “similar vocation in competition with or becoming employed by a competitor of the company” following the employee’s termination of employment. Employers that seek to enforce such agreements in violation of the new law may also be liable for attorneys’ fees and costs associated with the enforcement or defense of a non-compliant noncompetition agreement. Given the potential liability for attorneys’ fees and costs, employers should evaluate any restrictive covenants contained in policies, handbooks, and agreements for their employees to ensure compliance with NRS 613.195.
New or Revised Handbook Provisions
Nevada’s “Kin Care” Law
Assembly Bill 190, codified as primarily NRS 608.0197 and NRS 608.01975, requires employers who provide sick leave to employees to allow the employee to use a portion of the accrued sick leave to assist an immediate family member with an illness, injury, or medical need. However, employees subject to a collective bargaining agreement are exempted from the new law. Employers are required to post a bulletin created by the Labor Commissioner about the new law conspicuously for employees and should implement new policies or operating procedures to ensure compliance with this new law.
Complying with Nevada’s CROWN Act
Senate Bill 327, Nevada’s CROWN Act – “Creating a Respectful and Open World for Natural Hair” – made sweeping changes to several areas of the law, including employment, education, the scope of authority of the Nevada Equal Rights Commission (NERC), among others. The CROWN Act expanded the definition of race to include traits associated with race, such as hair texture and protective hairstyles. One caveat to the new law is that employers may enforce health and safety requirements relating to hair texture and protective hairstyles as required under state or federal law. Employers should take a look at any workplace policies regarding hairstyles—including appearance or grooming policies—to ensure that the policies do not conflict with this new law.
COVID Vaccine Leave
Senate Bill 209, codified as NRS 608.0197, provides that employers must provide up to 4 hours of paid leave to obtain the COVID-19 vaccination. Employees are permitted to receive 2 hours of paid leave per COVID dose, assuming the employee provides proper notice to the employer at least 12 hours in advance of the vaccine. This law is set to expire on December 31, 2023, if it is not extended by the Nevada Legislature during the 2023 legislative session.
Other Workplace Policies
Cannabis Use Outside of Work
The Nevada Supreme Court recently concluded that although NRS 613.333 creates a private right of action for an employee discharged from employment for engaging in the “lawful use” of a product outside the premises of the employee’s working hours, adult recreational marijuana use does not qualify as “lawful use” of a product falling within the protection of the statute. In Ceballos v. NP Palace, LLC, 514 P.3d 1074, 138 Nev. Adv. Rep. 58 (Nev. 2022), the Court concluded that although Nevada has decriminalized recreational marijuana use, it remains illegal under federal law and is therefore not “lawful” to use outside of the employee’s working hours. The Court also found that NRS 678D.510(1)(a), a law passed after Nevada decriminalized marijuana, does not prohibit an employer from “maintaining, enacting and enforcing workplace policy prohibiting or restricting actions or conduct” relating to recreational marijuana use. The Court believed that recent legislative action from the Nevada Legislature demonstrated that the Legislature was attempting to address the policy tensions between employment law and decriminalizing marijuana with strategic laws. However, none of those laws prohibited an employer from enacting and enforcing employee policies that prohibit recreational marijuana use when employees are off the clock. The Court further concluded that the employer’s decision to terminate the employee for failing a workplace drug test did not amount to tortious discharge, and upheld the district court’s dismissal of each of the employee’s claims.
Assembly Bill 60, codified as NRS 50.069, provides that any terms contained within a contract or settlement agreement prohibiting or restricting a party from testifying at a judicial or administrative proceeding against the other party regarding the commission of a criminal offense, sexual harassment, discrimination by an employer or landlord, or retaliation by an employer or landlord is prohibited. Employers (and landlords) should avoid any language in contracts, including settlement agreements, restricting or prohibiting an employee’s testimony required pursuant to:
- a court order,
- a subpoena, or
- the written request of an administrative agency.
As the Nevada Legislature gears up for another legislative session in 2023, TALG will continue to monitor all employment and workplace laws affecting its clients in Nevada, so that our clients can best prepare for and adjust to these laws.
Reach out to TALG with any questions, comments or concerns.