Leaving the old and entering the new
Welcome to TALG’s second article covering recent developments in Nevada labor law. Over the past two years, the Nevada Legislature has passed several laws that were recently added to Nevada’s Revised Statutes in 2022. The new laws may impact some existing employee policies or handbooks, and employers should assess their applications, policies, manuals and others. employment-related agreements to ensure compliance with these new laws.
TALG also intends to host a webinar regarding these new changes impacting employers. Stay tuned for more details!
Below are some of the recent changes to Nevada law that may impact workplace policies for Nevada employers.
Nevada Pay Equity Law
Senate Bill 293, codified NRS 613.133, prohibits employers from:
- research the salary or salary history of a job candidate,
- rely on 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 anyone who does not provide a salary or salary history.
Following an interview, employers must also provide applicants with the salary or wage range for the position, which includes current employees who have applied for a promotion or transfer. It’s important to note that employers may ask candidates about their salary or salary expectations for the position, but not their salary or salary history. To ensure compliance with Nevada’s pay equity law, employers must eliminate any questions about salary or application processing history and coach interviewers to avoid any questions to applicants about employment history. salaries or wages.
In two recent Nevada Supreme Court decisions — Uber Techs., Inc. vs. Royz, 517 P.3d 905, 138 Nev. Adv. Rep. 66 (November 2022) and Airbnb, Inc. v. Rice, 518 P.3d 88, 138 Nev. Adv. Rep. 65 (Nev. 2022) – the Court adopted the decision of the Supreme Court of the United States in Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524, 529, 202 L. Ed. 2d 480 (2019) and held that district courts have no jurisdiction to determine the arbitrability of a dispute arising under the Federal Arbitration Act (FAA) if the contract delegates the issue of arbitrability to an arbitrator . In light of this decision, employers should review their arbitration agreements to ensure that contracts expressly delegate authority to determine threshold arbitrability issues to an arbitrator to avoid potential litigation of such issues in court. a district court.
Non-competition and non-solicitation agreements
Assembly Bill 47, which amended NRS 613.195, prohibits non-competition agreements for hourly employees. The law also prohibits an employer from restricting former employees from providing services to former customers or customers if the employee did not solicit the former customers/customers, if the customers/customers voluntarily choose to leave and whether the former employee generally complies with the non-competition agreement. A “non-competition agreement” is broadly defined in the statute as an agreement between an employee and an employer that prohibits the employee from pursuing a “similar vocation in competition with or becoming employed by a competitor of the ‘company’ after the termination of the employee’s employment. Employers who seek to enforce such agreements in violation of the new law may also be liable for attorneys’ fees and costs associated with enforcing or defending a nonconforming noncompetition agreement. Given the potential liability for attorneys’ fees and costs, employers should assess all restrictive covenants contained in policies, manuals and agreements for their employees to ensure compliance with NRS 613.195.
New or revised manual provisions
Nevada’s Kin Care Law
Assembly Bill 190, codified primarily NRS 608.0197 and NRS 608.01975, requires employers who grant sick leave to employees to allow the employee to use a portion of accrued sick leave to assist a member of immediate family suffering from an illness, injury or medical need. However, employees subject to a collective agreement are exempt from the new law. Employers are required to post a bulletin created by the Commissioner of Labor about the new law in a prominent place for employees and must implement new policies or operating procedures to ensure compliance with this new law.
Comply with Nevada’s CROWN law
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, 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. A caveat to the new law is that employers may enforce health and safety requirements relating to hair texture and protective headgear as required by state or federal laws. Employers should review all workplace policies regarding hairstyles, including appearance or grooming policies, to ensure that the policies do not conflict with this new law.
COVID vaccination leave
Senate Bill 209, codified NRS 608.0197, provides that employers must provide up to 4 hours paid leave to obtain the COVID-19 vaccination. Employees are allowed to receive 2 hours of paid leave per dose of COVID, assuming the employee gives proper notice to the employer at least 12 hours before the vaccine. This law is set to expire on December 31, 2023, unless extended by the Nevada Legislature in the 2023 legislative session.
Other Workplace Policies
Cannabis use outside of work
The Nevada Supreme Court recently held that although NRS 613.333 creates a private right of action for an employee terminated for engaging in “lawful use” of a product outside of the company’s working hours employee, the recreational use of marijuana by an adult is not considered “lawful use” of a legally protected product. In Ceballos vs. NP Palace, LLC, 514 P.3d 1074, 138 Nev. Adv. Rep. 58 (Nev. 2022), the Court found that although Nevada has decriminalized the use of recreational marijuana, it remains illegal under federal law and is therefore not “legal” to use outside of employee working hours. The Court also found that NRS 678D.510(1)(a), a law enacted after Nevada decriminalized marijuana, does not prohibit an employer from “maintaining, adopting and enforcing a policy on the place Prohibiting or Restricting Actions or Behaviors” regarding the recreational use of marijuana. . The Court found that recent legislative action by the Nevada Legislature demonstrated that the Legislature was attempting to resolve political tensions between labor law and the decriminalization of marijuana with policy legislation. However, none of these laws prohibited an employer from adopting and enforcing employee policies prohibiting the use of recreational marijuana when employees are not working. The court further found that the employer’s decision to terminate the employee for failing a workplace drug test did not constitute a tort discharge and upheld the district court’s dismissal of each employee requests.
Assembly Bill 60, codified NRS 50.069, provides that any term contained in a contract or settlement agreement prohibiting or restricting a party from giving evidence in any judicial or administrative proceeding against the other party relating to the commission of a criminal offence, sexual harassment, discrimination by an employer or owner, or retaliation by an employer or owner is prohibited. Employers (and owners) should avoid language in contracts, including settlement agreements, that restricts or prohibits employee testimony required under:
- a court decision,
- a subpoena or
- the written request of an administrative body.
As the Nevada Legislature prepares for another legislative session in 2023, TALG will continue to monitor all employment and labor laws affecting its clients in Nevada, so that our clients can better prepare for and adapt to these laws.