#1       The pace of wage-hour claims did not slow down

We saw continued aggressive enforcement of minimum wage and overtime laws by the Nevada Labor Commission and the US DOL during 2013.  The following issues were the most troublesome for employers:

• Which Nevada Minimum Wage applies?  See this for help.
• When is daily overtime due under Nevada law?  See this for help.
• Can an employer force a tip sharing arrangement on employees?  The answer in Nevada is generally yes.  Despite the 9^th Circuit’s clear holding that the federal tip sharing rules do not apply to non-tip credit states like Nevada, you can expect the DOL to continue to try and meddle in tip-sharing programs.  The most fertile area for litigation in Nevada involves who can particpage in a tip pool.  For now Steve Wynn has cleared the way for certain employees who look like supervisors to participate in a tip pool.

The US DOL has set out its priorities in its 2014 budget justification document:

 

At the FY 2014 Request Level, WHD requests $243,254,000 and 1,872 FTE. These resources will support a continued shift to greater directed and complaint enforcement activity in priority industries and will offer an improved customer service approach to complaint handling in lower priority industries. WHD will continue to increase its number of compliance actions, but anticipates that continued gains in compliance actions concluded will be incremental as WHD maintains its emphasis on conducting quality case work and concentrates on no-violation cases through effective compliance screening and investigation targeting. At the request level, WHD is increasing its percentage of directed investigations. WHD data show a higher number of employees affected and greater back wages on average for directed investigations.

…

 The agency will continue to use its directed investigations to increase WHD presence in high risk industries, i.e., those industries with high minimum wage and overtime violations and among vulnerable worker populations where complaints are not common.

For more good information follow the Fisher & Phillips Wage and Hour Blog.

#2       The scrutiny of employers who use independent contractors did not stop

While state coffers continue to hurt, various agencies continue to aggressively audit employers who use independent contractors.  See this for assistance.

The US DOL also aggressively investigates misclassification issues.  In fact, in its budget justification document, the DOL requested $3.8 million in its FY 2014 budget to, among other things, hire 35 FTEs for increased enforcement related to misclassified workers.  In an effort to help out the states and put employers under further pressure the DOL also promised to “leverage its relationships with other federal, state, and local agencies and with worker, employer, and community organizations.”

For more good information follow the Fisher & Phillips Wage and Hour Blog.

 

#3       The NLRB did not formally issue its “quickie election” rules

 After a federal court quickly struck down the NLRB’s proposed quickie election rules nothing much happened.  However the proposed rule is still on the NLRB’s official agenda.  With a full and legally appointed and confirmed NLRB you can count on this rule be officially reissued during 2014.  Here (see Step #3) is how to start getting ready.

 

#4       A number of public sector unions in Nevada did not get the memo that local government budgets are in still in horrible shape

Some local governments are seeing their way to modest COLAs and some unions are getting them in arbitration.  But as for the long term structural changes that must be made to public sector compensation many unions just don’t get it.  Look for upcoming fact-finding and interest arbitration proceedings made necessary by unions who refuse to give up the kinds of benefits which are disappearing across the state and the country:

•  Longevity
• Automatic (“springing”) raises to pay the employees’ portion of PERS increases
• Employer payment of retiree health benefits

 

#5       The EEOC did not shrivel up and blow away

The EEOC did not stray much from its previously stated enforcement priorities.  It did have a setback in court when it tried to challenge an employer’s right to use criminal conviction information in hiring.  While the EEOC’s broad attack was unsuccessful in that particular case, you must exercise care not to make hiring decisions based solely on a criminal conviction without looking at the specifics of the situation.  See this for assistance.

Usually the powerful Nevada Resort Association (NRA) uses its considerable clout to protect employers from laws that further regulate them.  However, sometimes the NRA chooses to conserve its political capital for bigger issues or simply get gaming employers an exception to the applicability of a new law. That is why non-gaming employers must still be vigilant during a legislature.  In order to do that you must become active in the Chamber or your industry trade association.  During the last days of the legislature things happen very fast and behind the scenes.  Without an experienced lobbyist on the spot you are dead meat.

One point about hiring a lobbyist:  inquire about who his or her other clients are.   Unlike lawyers who can lose their licenses for violating the ethical rules against conflicts of interest, lobbyists have fewer constraints.

Employers dodged a major bullet thanks to a veto by Governor Sandoval. The legislature passed a bill changing the state discrimination statute in a way that would make it unnecessary for plaintiffs to sue under the federal law, Title VII of the Civil Rights Act of 1964.  By suing only under state law the plaintiffs’ attorneys would prevent employers from removing these types of cases to federal court.

Why do employers prefer federal court? Juries are generally larger and must reach a unanimous verdict instead of a simple majority verdict in state court.  Also the federal judges are usually more familiar with the discrimination laws and the rules of procedure are stricter in federal court.   A hidden benefit of the veto was also to save our state courts from the onslaught of an additional several hundred lawsuits each year.  Don’t rest too easy—you can expect the same bill to be introduced again in future legislatures.

There were three important employment law bills that passed and were signed by the governor.

Effective October 1, 2013 it will be unlawful to ask an employee or prospective employee to disclose the user name, password or other access information to his or her social media account.  This law should be relatively easy to comply with—as long you educate your HR staff and management team.  Also inform your security department about the prohibition —it could be counter-intuitive to some ex-law enforcement investigator types.  Get more detail on the new law here.

The use of credit reports by employers will be significantly limited effective October 1, 2013—except for gaming employers and financial institutions. To comply with this law you will have to pay close attention to your hiring procedures, forms and job descriptions.  Read more detail on the new law here.

Also note that all employers, (including gaming companies and financial institutions) will need to continue to comply with the federal Fair Credit Reporting Act (FCRA).   Remember that the FCRA imposes several requirements on employers who use credit or consumer reports. Those employer requirements include a disclosure-and-authorization requirement, a pre-adverse-action notice requirement, and a post-adverse-action notice requirement. The statute provides financial penalties for violations. These requirements don’t apply to those employers who do their own background checks directly, but they do apply when you use a third party – a consumer reporting agency – to compile the information.

Finally, the legislature looked at arbitration agreements.  Plaintiffs’ lawyers would of course love to have pre-dispute arbitration agreements declared illegal but that did not happen this year.

The new law says that any arbitration agreement entered into or renewed on or after October 1, 2013 will be void and unenforceable unless the employee has specifically authorized and agreed to arbitration. Arbitration agreements in existence before October 1 are not subject to these requirements (unless they are renewed after that date).

This will affect language that is commonly found in employment contracts, employment applications, employee handbooks, severance agreements and other documents.  For specifics on how best to comply with the new law read this.

If you would like to read the actual bills that were passed let me know.  Don’t be the first embarrassing test case under one of these new laws—if you need help getting ready to comply call your labor and employment lawyer.