Employers generally hold their breath during the legislature, especially when democrats control both houses and the ranking democrat senator is a prominent plaintiffs’ employment law attorney.
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.