United States: Nevada Employers Invited To Comment On New Workplace Laws

The Nevada Legislature's 80th session recently came to a close after a flurry of activity resulted in over 25 new laws affecting employers. Now, the Nevada Labor Commissioner, charged with enacting and/or amending regulations interpreting the new laws (through the Nevada Administrative Code or NAC), is inviting public comments on a few of the newly enacted laws. Comments "should include proposed changes and/or additions and discuss any potential impacts to small businesses" and are due to the Labor Commissioner within a very short time frame—by August 1, 2019. In addition, the comments sought at this time are limited to the following:

The comments are intended to assist the Nevada Labor Commissioner in crafting regulations through the NAC that will clarify, without modifying or conflicting with, the language of the new laws. Ideally, commentary provided to the Office of the Labor Commissioner will identify immediate concerns about the bills that employers will face and provide suggestions as to how proposed updates to the NAC can address those concerns. Thereafter, the Office of the Labor Commissioner will prepare draft regulations and invite public comment.

The Nevada Supreme Court gives great deference to an agency's interpretation of a statute that the agency is charged with enforcing. As such, this public comment period is an excellent opportunity for employers to shape interpretation of the laws identified above.

Below is a brief summary of the laws that are open for public comment, including links to articles analyzing them in greater detail, where applicable.

AB 456 (minimum wage) : Pursuant to the Minimum Wage Amendment to the NV Constitution (MWA), the minimum wage is $7.25/hour if health benefits are offered, and $8.25/hour if no health benefits are offered. Incremental wage increases are tied to the greater of the federal minimum wage or the cumulative increase in the cost of living as measured by the CPI (not to exceed 3% in any 1-year period). AB 456 is designed to raise the Nevada minimum wage by increasing the minimum wage and retaining the two-tiered system. AB 456 establishes $0.75 yearly increases starting at $8.00/hour in July 2020 ($9.00 if no health benefits are offered), with the goal to reach $11.00/hour in July 2024 ($12.00 if no health benefits are offered). The portion of the bill increasing the minimum wage may be subject to challenges based on constitutionality. This law took effect on July 1, 2019 (although the first wage increase will not take place until July 2020). Click here for Littler's ASAP discussing the bill.

SB 192 (prescribing certain requirements for health benefits for purpose of determining minimum wage): Nevada employers are required to pay minimum wage pursuant to the MWA and its Nevada Supreme Court interpretations. To pay the lower-tier rate, an employer must offer health benefits to an employee and dependents, the premiums of which cannot represent more than 10% of the employee's gross taxable income (and no tips count toward the 10%). The Nevada Supreme Court determined that the health insurance an employer offers to its employee must cost the employer at least one dollar per hour in wages that the employee would otherwise receive if no health benefits were available. SB 192 defines what health benefits services are required for the lower minimum wage. This law became effective upon passage and approval for the purpose of adopting regulations and performing any other administrative tasks that are necessary to carry out the provisions of this act, and on January 1, 2020, for all other purposes. Click here for a link to Littler's ASAP discussing the bill.

SB 312 (paid leave/paid time off): Private Nevada employers with 50 or more employees must now provide paid time off, for any reason, to all employees, accrued at the rate of 0.01923/hour worked, which equates to approximately 40 hours per 365 days worked (or "benefit year") for a full-time employee. Employees will need to give notice to their employer as soon as practicable of their intent to use the leave, but need not provide a reason for the leave; retaliation for requesting/using such leave is prohibited. This law goes into effect January 1, 2020. Click here for a link to Littler's ASAP a discussing the bill.

SB 493 (employee misclassification task force and employee misclassification): Existing Nevada law provides that a person is conclusively presumed to be an independent contractor in certain circumstances (NRS 608.0155). 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 or subcontractors also may be presumed to be independent contractors. SB 493 requires various state agencies to share among their respective offices information related to suspected employee misclassification that is received in the performance of their official duties, depending on confidentiality requirements. SB 493 also defines employee misclassification as "the practice by an employer of improperly classifying employees as independent contractors to avoid any legal obligation under state labor, employment and tax laws, including, without limitation, the laws governing minimum wage, overtime, unemployment insurance, workers' compensation insurance, temporary disability insurance, wage payment, and payroll taxes." SB 493 further creates and sets forth the membership of the Task Force on Employee Misclassification, including its duties. This law took effect on July 1, 2019.

Comments are to be sent directly to the Office of the Labor Commissioner, via e-mail at mail1@labor.nv.gov or the addresses below:1

Office of the Labor Commissioner

1818 College Parkway, Suite 102

Carson City, Nevada 89706

(775) 684-1890

Office of the Labor Commissioner

3300 W. Sahara Ave., Suite 225

Las Vegas, NV 89102

(702) 486-2650

Footnotes

1 Littler's Workplace Policy Institute® (WPI") was formed several years ago to ensure that policymakers at the federal, state and local levels hear the voice of employers. WPI – Nevada is evaluating whether to forge a coalition of like-minded employers to provide input on these important new laws. If you are interested in exploring this further, please contact Katy Branson, WPI's Nevada liaison, at kbranson@littler.com.

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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