How to navigate the minefield of Nevada employment law
Employment law 101 for small businesses and startups
Special to the NNBV
This article is included in the 2019 edition of Northern Nevada Smart Money, a specialty publication of the Northern Nevada Business View. Stay tuned to http://www.nnbw.com this week and next week to read more articles published in the magazine, which will be inserted in the next print edition of the NNBV, coming out Monday, Aug. 26.
The one area of business operation that typically leaves business owners a bit worried and confused is employment law.
This article is intended to address the two main issues that employment lawyers observe and to provide some pointers for successfully navigating the minefield that is employment law in Nevada.
One of the most common pitfalls employers stumble on is failing to recognize the impact of their size on the employment law with which they must comply. For many federal and state employment laws, a business’ size matters.
Specifically, the applicability of many employment laws depends on the size of the workforce. For instance, a business employing 18 employees is subject to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on gender, race, ethnicity and religion.
However, that same business is not necessarily subject to the Age Discrimination in Employment Act, which prohibits discrimination based on age for employees who are 40 or older.
Similarly, in Nevada, NRS 609.109 entitles most employees to take meal and rest breaks. However, under NRS 608.0193, most employers employing 50 or more employees must also provide their employees with breast milk expression breaks.
These are just two examples of the many instances where a business’ size impacts more than the amount of space needed in the office. As a rule of thumb, employers should be aware that their size is likely to impact the employment laws that apply to their business.
On this basis, employers should plan for growth and prepare to implement changes bringing their business into compliance with newly applicable state and/or federal employment laws before they hire an employee who will trigger application of the new law or laws.
This planning will ensure that an employer remains compliant and is not subject to liability or fines for violating a statute that didn’t apply to the business before the new hire started work.
The second most common issue arises where an employer fails to keep detailed and consistent employment records. Failing to keep employment records is a serious problem for employers because, in addition to fact that this conduct can violate state and federal law, a failure to keep records opens employers up to serious liability.
In the case of missing records, the presumption will always be that the record is not available from an employer because the record is not in the employer’s favor.
Similarly, where records are not kept consistently, the presumption will be that the records were not kept in good faith — i.e., the employee in question was being retaliated against or discriminated against by the employer, and the inconsistencies in the records arise from the employer’s bad faith objective.
When it comes to keeping records, employers should record information in written format and strive to maintain records that establish a clear picture of the day-to-day operation of the business.
While not everything needs to be added to a file, records of the following employment information should always be maintained by an employer: the employer’s personnel policies; job descriptions; offers of employment; employee evaluations; disciplinary actions; information supporting a disciplinary action; the regular hours worked by an employee (for salaried and non-salaried employees alike); overtime hours worked by an employee; pay issued to employees; personal leave accrued and used by employees pursuant to an established personnel policy or S.B. 312 (Nev. 2019); requests for accommodation made by an employee under the American’s with Disability Act; an employer’s response to an ADA request for accommodation; complaints related to behavior in the workplace; and finally, an employer’s response to said complaints.
Having these records available to the business will not only help an employer to effectively and efficiently manage its workforce, it will also help the employer to limit its exposure to liability related to allegations of violations of employment law by standing as documentary evidence of compliance.
In summary, planning for the future and maintaining good employment records are integral to a well-managed workforce. Although time consuming, these endeavors will pay the employer back in dividends. If you have questions or need any assistance with your own employment practices you are advised to seek legal counsel.
Longtime journalist Steve Ranson, editor emeritus of the Lahontan Valley News — a sister publication of the NNBW — has published the 280-page book “Legacies of the Silver State: Nevada Goes to War.”