Administering the Vaccine:

Receiving a vaccine is not considered to be a “medical exam” pursuant to the ADA, and requiring an employee to provide proof that they received the vaccine is not a “disability related inquiry.”  However, any medical screening questions that are asked prior to receipt of the vaccine will be subject to the ADA standards for disability-related inquiries.  Therefore, an employer should make sure that such questions are “job related and consistent with business necessity.”

If an employee receives the vaccine from a third-party that does not have a contract with his/her employer (e.g. a pharmacy or other health care provider), this aforementioned restriction on disability-related inquiries would not apply to screening questions asked by that third-party.  This may make a third-party distribution process more attractive to employers who make the vaccine mandatory in the event that medical screening questions become common prior to inoculation.  Under any circumstances, an employer must keep any employee medical information it does receive confidential pursuant to the ADA.

Addressing disabled employees who cannot take the vaccine:

Certain employees may inform their employer that they are unable to receive the COVID-19 vaccine due to a disability.  Notably, the ADA has a qualification standard which contains “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  However, in the event that a safety-based qualification standard (e.g. a mandatory vaccine policy) tends to screen out a disabled individual, the employer would need to show that the unvaccinated employee poses a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  See 29 CFR 1630.2(r).

A direct threat would include a determination that an unvaccinated individual would expose others to COVID-19 at the workplace.  However, if an employer determines that a direct threat exists, the employer cannot exclude the disabled employee from the workplace (or take any other action) unless the employer is unable to provide a reasonable accommodation, absent undue hardship, that eliminates or reduces the risk so the unvaccinated employee is no longer a direct threat.

If the direct threat cannot be acceptably reduced, the employer may exclude the employee from entering the workplace, but that does not necessarily mean the employee can be terminated.  The employee may have other rights under the EEO laws or other federal, state, and local authorities, such as, for example, the opportunity to perform his/her job remotely.  Thus, it is important to train managers and supervisors to recognize such an accommodation request in the context of compliance with a mandatory vaccination policy so it can be properly examined.

Addressing employees who may reject the vaccine for religious reasons:

An employer who is on notice of an employee’s sincerely held religious practice or belief that would prevent him/her from taking the vaccine must provide a reasonable accommodation unless it would cause undue hardship pursuant to Title VII.  If no reasonable accommodation is possible, then it would be lawful for the employer to exclude the employee from entering the workplace.  However, as already discussed above, this is not a basis for automatic termination as the employee may have additional rights under other laws.  Further, managers and supervisors should again be trained to recognize these sorts of requests, and employers should be flexible in finding solutions that allow such employees to continue to perform their jobs while keeping the workplace safe.

If you are an employer who needs assistance with implementing a mandatory COVID-19 vaccination program for your employees, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss.  This blog post does not constitute legal advice and reading or interacting with this website does not create an attorney-client relationship.

The post The EEOC Releases Guidance for Mandatory COVID-19 Vaccination Policies appeared first on Nevada Employment Law.

NRS 608.100  Unlawful decrease in compensation by employer; unlawful requirement to rebate compensation; prerequisites to lawfully decreasing compensation.

1. It is unlawful for any employer to: (a) Pay a lower wage, salary or compensation to an employee than the amount agreed upon through a collective bargaining agreement, if any; (b) Pay a lower wage, salary or compensation to an employee than the amount that the employer is required to pay to the employee by virtue of any statute or regulation or by contract between the employer and the employee; or (c) Pay a lower wage, salary or compensation to an employee than the amount earned by the employee when the work was performed.
2. It is unlawful for any employer to require an employee to rebate, refund or return any part of the wage, salary or compensation earned by and paid to the employee.
3. It is unlawful for any employer who has the legal authority to decrease the wage, salary or compensation of an employee to implement such a decrease unless: (a) Not less than 7 days before the employee performs any work at the decreased wage, salary or compensation, the employer provides the employee with written notice of the decrease; or (b) The employer complies with the requirements relating to the decrease that are imposed on the employer pursuant to the provisions of any collective bargaining agreement or any contract between the employer and the employee.

As an initial matter, employers should make sure that there is no contractual agreement between the company and any affected employees which would prohibit a compensation decrease. While Nevada is an at-will employment state, employers who violate a collective bargaining agreement or an employment contract could face civil liability and will also run afoul of NRS 608.100(1). In the event that such an agreement allows for a decrease in compensation, it must be done in accordance with any relevant provisions (e.g. notice requirement, limitation on amount of decrease in compensation).

Assuming that no agreement exists, an employer must still give its employees at least 7 days written notice prior to the effective date of any decrease in compensation pursuant to NRS 608.100(3). Notably, the effective date is the date upon which the employee first performs work that will be compensated at the lower rate – not the date they first receive a paycheck reflecting the lower rate.

Finally, compensation may include other forms of consideration in addition to a salary and/or hourly wage, such as a non-discretionary performance bonus. Therefore, employers should always ensure they keep employees fully apprised of any upcoming compensation decrease of any kind in compliance with NRS 608.100.

If you are an employer who needs assistance with drafting a notice of salary decrease or otherwise complying with NRS 608, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss. This blog post does not constitute legal advice and reading or interacting with this website does not create an attorney-client relationship.

The post Nevada Employers Who Decrease Employee Compensation Must Comply With NRS 608.100 appeared first on Nevada Employment Law.

Regular Working Hours and Availability – The policy should provide specific working hours (e.g. 9:00am to 6:00pm) during which the employee must actively carry out his or her job duties.  In the event that an employee’s responsibilities may extend outside of regular working hours, this should be stated as well.  If you need a particular group of employees to be “on call” during certain times, there should be a schedule that is readily available and explicitly referenced in the policy.  Finally, make sure that you clarify how employees should communicate with one another.  You may want to specify that employees must be reachable by telephone, fax, e-mail, skype, Microsoft Teams, or any other platforms that are regularly used in your workplace.  It may also be helpful to have employees provide their current contact information so you can update your employee directory.

Equipment and Worksite – The policy should state that it is the employee’s duty to provide any necessary furniture and equipment in order to work from home.  In the event you allow employees to take company property home, such as a laptop or monitor, you should clarify that such equipment must be used exclusively by the employees (no friends or family) and solely for the purposes of conducting company business.  You should also state that the equipment remains the sole and exclusive property of the company and must be returned in the same condition when your employees return to work.

Confidentiality –The policy should have language concerning an employee’s duty to keep company information confidential and the general level of care expected while employees are working from home.  At a minimum, employees should be required to exercise reasonable caution, and abide by the same security protocols that are in place while working at the office.  You should provide employees with contact information for your IT Department and/or your third-party IT contractor so that any issues or suspected security breaches can be quickly reported.  Additionally, specific industries will require more robust language concerning confidentiality.  For example, healthcare companies will want to cite to specific legal requirements such as HIPAA, while law firms may require that certain levels of encryption be used to guarantee that client information remains sufficiently protected.

Expense Reimbursements/Incidental Costs – The policy should clearly state which specific expenses, if any, you will reimburse for employees who work from home.  For example, employees may incur additional costs for phone calls, internet access, or other means of communication that may be necessary to carry out their requisite duties.  It is important to list any covered expenses, the procedure and required documents for reimbursement of such expenses, and the time frame within which an employee should expect to receive a reimbursement.

Integration with Normal Policies and Procedures – You should already have an employee handbook that contains all of your policies and procedures under normal working conditions.  Your telecommuting policy should make it clear that the employee handbook still applies unless it is directly contradicted by the telecommuting policy, in which case the telecommuting policy controls.  You may also want to include language clarifying that in the event of any conflict between the terms of your telecommuting policy and any applicable laws (including, without limitation, any and all state and federal rules, regulations, orders, directives and declarations relating in any way to the COVID-19 pandemic) that the applicable laws will apply.

Once you are satisfied with your telecommuting policy, you should have your employees acknowledge receipt by signing/dating the policy.  By clarifying your expectations and parameters for employees who telecommute, you can mitigate risk, leverage new technology, and set your business up for continued success.

If you are an employer who needs assistance drafting a telecommuting policy, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss. This blog post does not constitute legal advice and reading or interacting with this website does not create an attorney-client relationship.

The post 5 Keys to a Successful Telecommuting Policy appeared first on Nevada Employment Law.

Following the decision in Fat Hat, many practitioners included name and address lines next to arbitration provisions in reliance on the Court’s specific example of an enforceable provision. It was unclear how much one could deviate from that particular model without taking the risk that an arbitration provision would later be ruled ineffective pursuant to NRS 597.995.

However, on September 5, 2019, the Supreme Court did an about-face, sharply undercutting NRS 597.995 by ruling that it is preempted by the Federal Arbitration Act, thus eliminating the “specific authorization“ requirement altogether. See MMAWC, LLC v. Zion Wood Obi Wan Tr., 135 Nev. Adv. Op. 38, 448 P.3d 568 (2019).

The rational for the application of the FAA was more thoroughly explained in the prior Nevada Supreme Court opinion for U.S. Home Corp. v. Michael Ballesteros Tr., 134 Nev. 180, 189, 415 P.3d 32, 40 (2018). In that decision, the Court noted that the FAA governs all transactions concerning interstate commerce, and will therefore apply to essentially any contract entered into under Nevada law. Under the FAA, a state may regulate contracts, including arbitration clauses, under general contract law principles, which include fraud, duress, and unconscionability. What a state may not do is decide that a contract is fair enough to enforce all of its basic terms (price, service, credit), but not fair enough to enforce its arbitration clause. Under the FAA, a state must place arbitration provisions on the same footing as other contractual provisions rather than singling out arbitration provisions for suspect status.

In MMAWC, the Court explicitly applied this preemption to the “specific authorization“ requirement, holding that Nevada state law could not subject an arbitration provision to this additional requirement. Going forward, this decision should make it much easier to enforce an arbitration provision in Nevada. However, it is still best practice to draft arbitration provisions which meets the higher standard set forth in Fat Hat to guard against the risk that a future decision may seek to limit the reach of FAA preemption.

If you are a Nevada employer who has questions regarding NRS 597 and drafting an enforceable arbitration provision, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss. This blog post does not constitute legal advice, and reading or interacting with this website does not create an attorney-client relationship.

The post The Nevada Supreme Court Expands Enforcement of Arbitration Provisions with Recent Holding appeared first on Nevada Employment Law.

With respect to (i) above, NRS 179D.097 lists 22 separate sexual offenses that are punished as felonies, including sexual assault, open or gross lewdness, indecent or gross lewdness, sexual conduct between certain employees of a school or volunteers at a school and a pupil, sexual conduct between certain employees of a college or university and a student, and any other offense that has an element involving a sexual act or sexual conduct with another.

 If a settlement agreement entered into on or after July 1, 2019 contains a provision that violates AB 248, that provision will be considered void and unenforceable, and Courts are prohibited from entering orders which restrict a party to a lawsuit from disclosing factual information of this nature. Finally, unless the agreement is entered into with a government agency or a public officer, the claimant may request that the settlement agreement include a provision that prohibits the disclosure of the claimant’s identity and any facts relating to the action that could lead to the disclosure of the claimant’s identity.

If you are a Nevada employer who has questions regarding AB 248 and drafting an enforceable settlement agreement, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss. This blog post does not constitute legal advice, and reading or interacting with this website does not create an attorney-client relationship.

The post AB 248 Puts New Limits on Confidentiality Provisions in Certain Settlement Agreements appeared first on Nevada Employment Law.

An employer who violates this statute may face potential liability, including, but not limited to a fine of up to $5,000.00 as determined by the Labor Commissioner. In addition, the Labor Commissioner also has the discretion to charge an employer for the cost of any related administrative proceeding, including any investigative costs and attorney’s fees.

If you are a Nevada employer who has questions regarding AB 181 and your current sick and/or injury leave policies, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss. This blog post does not constitute legal advice, and reading or interacting with this website does not create an attorney-client relationship.

The post AB 181 Adds New Rules For Employees Who Call-in Sick appeared first on Nevada Employment Law.

Pursuant to NRS 613.195(1), a covenant not to compete is enforceable if it is supported by valuable consideration, is reasonably limited in scope, does not impose any hardship on a former employee, and imposes restrictions that are appropriately related to the consideration supporting the covenant.  Here, the crux of the analysis is on the overall reasonableness of the agreement at issue.  Notably, “noncompetition covenant” is defined in NRS 613.195(6)(b) as “an agreement between an employer and employee…” so these restrictions should not affect other transactions such as a non-compete in conjunction with the sale of a business. 

Pursuant to NRS 613.195(2), a non-solicitation provision may not restrict a former employee of an employer from providing service to a prior customer if (a) the former employee did not solicit the former customer, (b) the customer voluntarily chose to leave and seek services from the former employee, and (c) the former employee is otherwise complying with the limitations of the restrictive covenants (e.g. time, geographic area, and restricted activity) concerning the provision of services to former customers without any contact being instigated by the former employee.

NRS 613.195(4) provides an important limit on potential enforcement, providing that if the termination of the employment of an employee is the result of a reduction of force, reorganization or similar restructuring of the employer, a noncompetition covenant is only enforceable during the period in which the employer is paying the employee’s salary, benefits or equivalent compensation, including, without limitation, severance pay.

Finally,  613.195(5) provides that in the event a Court should determine that a non-competition or non-solicitation clause is overly broad or not supported by sufficient consideration, the Court should revise the covenant so that it is restrictive enough to be enforceable.  In other words, it is now mandatory for a Court to apply a “blue pencil” rule to reduce the scope of a non-compete as necessary so that it is binding.

It is important to note that case law which predates the efficacy of NRS 613.195 should be analyzed with caution, as prior approaches taken by Nevada Courts may directly conflict with the requirements of this new law.

If you are a Nevada employer who has questions regarding NRS 613.195 and you current non-compete and/or non-solicit agreement, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss. This blog post does not constitute legal advice, and reading or interacting with this website does not create an attorney-client relationship.

The post Drafting an Enforceable Non-Compete Agreement Pursuant to NRS 613.195 appeared first on Nevada Employment Law.

My present interpretation of the statute is that it will be unlawful for an employer to deny employment to a Nevada-based employee because the prospective employee tests positive for marijuana in a pre-employment drug screen.  Importantly, this does not prohibit pre-employment drug screens, even if they include a test for marijuana metabolites, as long as the employee is not denied employment as a result of testing positive for marijuana.  That being said, I think that the best practice would be to remove marijuana from any pre-employment drug screens so that a candidate who is denied employment cannot accuse a prospective employer of discrimination in the event that his or her test is positive.

Notably, the law does not prohibit testing current employees for marijuana.  However, if the test is within the first 30 days of employment, the employee has the right to pay for and submit their own screening test, and the employer must “accept and give appropriate consideration” to any such rebuttal test.  It is still ambiguous whether such a test will automatically overrule the initial employer test, or whether the employer may still terminate the employee despite giving the rebuttal “appropriate consideration.”  However, I would likely advise an employer to error on the side of caution and accept an employee’s rebuttal test.  Earlier versions of the law also contained language making it generally illegal to discriminate against employees who use marijuana when they are not on the job if it does not affect their work (see similar protections for the consumption of other legal productions like drinking and smoking cigarettes pursuant to NRS 613.333), however, that language was ultimately deleted from the final version of the law.

In addition, there are certain job functions for which prospective employees may still be denied employment as the result of a positive pre-employment test for marijuana, namely, (i) firefighters, (ii) emergency medical technicians, (iii) any occupation that requires an employee to operate a motor vehicle and for which federal or state law requires the employee to submit to a screening test, or (iv) any other function that in the determination of the employer could adversely affect the safety of others.  The fourth category is obviously the most ambiguous.  Until our courts interpret the provision, it would be wise for any employer who is relying on that exception to make sure that they carefully document the job descriptions of any such positions, make sure they have a cognizable explanation of why the job could affect the safety of others, and also inform potential candidates that you consider the role to be exempt and will be denying employment to those who test positive for marijuana on a pre-hire screen.

Finally, the law excludes the terms of any employment agreements or collective bargaining agreements.  Hence, a prospective employee could agree to a different drug test policy subject to such an agreement.  The law also does not apply to any job funded by a federal grant, and states that it is ineffective to the extent it is in conflict with the provisions of federal law.

Employers must realize that this law has yet take effect, and so there is presently little to no have guidance from the courts or state government. At this time, it is impossible to know with absolute certainly how the statute will be applied to any particular circumstances.  However, I believe this interpretation is an objective view of the text of the statute and its legislative history.

If you are a Nevada employer who has questions regarding AB 132 and your current drug test policies, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss. This blog post does not constitute legal advice, and reading or interacting with this website does not create an attorney-client relationship.

The post AB 132 Requires Many Nevada-Based Employers to Revisit Their Drug Test Policies appeared first on Nevada Employment Law.

Pursuant to Article 15, Section 16(A) of the Nevada State Constitution, there is a requirement that the minimum wage for an employee who receives health benefits is $7.25 while an employee who does not receive health benefits must receive no less than $8.25**. Governor Sisolak signed a new bill into law on May 21, 2019 that updated the requirements for health coverage that qualifies an employer to pay the lower minimum wage rate, the details of which will be discussed in another blog post.

Nevada overtime laws are generally provided via NRS 608.018.  When an employee who receives less than 1.5 times the applicable minimum wage works more than 40 hours a week, or more than 8 hours in a workday (unless by mutual agreement that employee works 10 hours per day for 4 calendar days within any schedule week of work), his/her employer is required to pay 1.5 times that employee’s regular wage rate for any additional hours.  For an employee who makes at least 1.5 times the minimum wage, that employee only gets overtime for hours worked in excess of 40 hours per calendar week.

Many employers may be unaware of the fact that certain employees are entitled to overtime if they exceed an 8 hour workday, even if they work less than 40 hours per week, as this is in excess of what is required under federal law. However, employers may be subject to liability for failing to pay Nevada employees in accordance with NRS 608.

Pursuant to NRS 608.018(3), there are numerous types of “exempt” employees that are not entitled to overtime, regardless of hours worked.  Here is a non-exhaustive list of certain jobs that can properly be considered exempt from overtime:

1.  Outside buyers;

2. Outside salespersons whose earnings are based on commissions;

3. Employees in retail or service businesses who get a regular pay rate over 1.5 times min wage with more than half their compensation coming for commissions on goods/services;

4. Employees is bona fide executive, administrative, or professional capacities;

5. Employees subject to collective bargaining agreements that provide for overtime;

6. Drivers or drivers’ helpers making local deliveries and paid on a trip-rate basis or other delivery payment plan;

7. Drivers of taxicabs or limousines;

8. Agricultural employees;

9. Employees of business enterprises having a gross sales volume of less than $250,000 per year;

10. Any salesperson or mechanic primarily engaged in selling or servicing automobiles, trucks or farm equipment;

It is important to remember that even if an employee is paid a salary, it does not mean they are automatically an exempt employee. If a non-exempt employee is paid a salary, NAC 608.125(2) provides that their effective rate of compensation is determined by dividing the amount paid to that employee in a week by the number of hours worked by the employee during the week.

**Note that on July 1, 2020, AB 456 will increase the minimum wage in Nevada to $8 an hour with qualifying health benefits and $9 without qualifying health benefits. The minimum wage will continue to rise by $0.75 annually until it hits $11/$12 respectively on July 1, 2024.

If you are a Nevada employer who has questions regarding Nevada minimum wage and overtime laws, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss. This blog post does not constitute legal advice, and reading or interacting with this website does not create an attorney-client relationship.

The post Nevada Laws Provide Additional Overtime Pay for Certain Hourly Employees appeared first on Nevada Employment Law.

On May 21, 2019, Governor Sisolak signed SB 192 into law which will take effect on January 1, 2020. Section 1 of SB 192 seeks to further clarify the requirements for an employee health plan that will entitle an employer to pay an employee the lower minimum wage.

Specifically, Subsection 1 of the statute states that in order to qualify, the employer must provide its employees and their dependents either:

(a) a health benefit plan that satisfies 11 specific areas of coverage ((i) ambulatory patient services, (ii) emergency services, (iii) hospitalization, (iv) maternity and newborn care, (v) mental health and substance use disorder services including behavioral health treatment, (vi) prescription drugs, (vii) rehabilitative and habilitative services and devices, (viii) laboratory services, (ix) preventative and wellness services and chronic disease management, (x) pediatric services, and (xi) any other health care service or coverage legal required to be included in an individual or group health benefit plan pursuant to title 57 of the NRS) and which also provides an overall level of coverage designed to provide benefits that are actuarially equivalent to at least 60 percent of the full actuarial value of the benefits provided under the plan; or

(b) health benefits pursuant to a Taft-Hartley trust which is formed pursuant to 29 U.S.C. § 186(c)(5) and qualifies as an employee welfare benefits plan under ERISA or the Internal Revenue Code.

In addition, Subsection 2 of the statute provides that an employer will not qualify for the lower minimum wage rate if it makes available to the employee and the employee’s dependents a hospital indemnity insurance plan or fixed indemnity insurance plan, unless the employer separately makes available to the employee and the employee’s dependents at least one health benefit plan that complies with the requirements of Subsection 1.

**Note that on July 1, 2020, AB 456 will increase the minimum wage in Nevada to $8 an hour with qualifying health benefits and $9 without qualifying health benefits. The minimum wage will continue to rise by $0.75 annually until it hits $11/$12 respectively on July 1, 2024.

Despite the additional guidance provided by SB 192, employers may still have questions concerning the health plans they offer to employees and whether they are permitted to pay a lower minimum wage rate. If you are a Nevada employer who has questions regarding Nevada minimum wage and overtime laws, feel free to contact Jordan Wolff at Saltzman Mugan Dushoff to discuss. This blog post does not constitute legal advice, and reading or interacting with this website does not create an attorney-client relationship.

The post Nevada Clarifies the Definition of “Qualified Health Plan” for Lower Minimum Wage appeared first on Nevada Employment Law.