There were several important developments in labor and employment law last year in the State of Nevada, including changes to the hiring process, anti-discrimination protections, and COVID-19 vaccine-related and re-hire legislation. Below is a summary of these key changes.

Anti-Discrimination Policy – Hair Texture and Protective Hairstyles

S.B. 327, passed on June 2, 2021, amends Nevada’s definition of race under its anti-discrimination law to include traits associated with race, including hair texture and protective styles. “Protective hairstyles” includes, without limitation, hairstyles such as natural hairstyles, afros, bantu knots, curls, braids, locks, and twists. It is illegal for employers to discriminate based on a person’s protective hairstyle and employers may be subject to investigation by the Nevada Equal Rights Commission for claims of illegal hair-based discrimination. An employer may enforce health and safety requirements set in forth in federal and state law notwithstanding the new protections for hair texture and protective styles.

Hiring Practices – Salary History and Salary Ranges

Effective October 1, 2021, employers and employment agencies are now prohibited from seeking job applicants’ wage or salary history when making decisions about whether to offer employment to an applicant or when determining the rate of pay to offer an applicant. Under S.B. 293, “wage or salary history” refers to the wages or salary paid to an applicant for employment by the current or former employer of the applicant, including any compensation and benefits received by the applicant.

Employers are also now required to provide an applicant who has completed an interview with the salary range or rate of pay for the position and the salary range or rate for a promotion or transfer if the employee has (1) applied for the promotion or transfer, (2) completed an interview for or been offered the position or transfer; and (3) requested the wage or salary range for the promotion or transfer.

A person may file a complaint with the Labor Commissioner against an employer or employment agency for violating the provisions of S.B. 293. The Labor Commissioner may impose against any employer found to have violated any provision of SB 293 an administrative penalty of up to $5,000 for each such violation.

Minimum Wage Increases

Pursuant to A.B. 456, passed by the 2019 Nevada legislature, the minimum wage increased July 1, 2021 by 75 cents and will increase another 75 cents on July 1, 2022. This increase also impacts the daily overtime rate for non-exempt employees for the same period, starting July 1. Until June 30, 2022, Nevada’s minimum wage rate is $8.75 per hour if the employee is offered qualifying health benefits and $9.75 per hour if the employee is not offered qualifying health benefits. Effective July 1, 2022, the minimum wage rates will be $9.50 and $10.50 per hour respectively.

Sick-Leave Policies

On May 29, 2021, Nevada enacted A.B. 190, requiring employers that provide paid or unpaid sick leave to allow employees to use accrued sick leave for an absence for the care of an immediate family member to the same extent and under the same conditions that apply to the employee when taking such leave. “Immediate family” refers to the child, foster child, spouse, domestic partner, sibling, parent, mother or father-in-law, grandchild, grandparent, or stepparent of an employee or any person for whom the employee is the legal guardian.

The employer may limit the amount of sick leave the employee may use for the care of immediate family to an amount equal to “not less than the amount of sick leave that the employee accrues during a 6-month period.”

Employers who provide sick leave to employees are required by the Office of the Labor Commissioner to post the Labor Commissioner’s bulletin on this topic in a conspicuous location in each workplace maintained by the employer. Any person who violates section 1 of A.B. 190 is guilty of a misdemeanor and can face a penalty of $5,000 for each such violation.

S.B. 209, also signed into law on May 29, 2021, provides that private employers must provide employees with paid leave to receive a COVID-19 vaccine. The amendment specifically provides that every private employer shall provide two consecutive hours of paid leave per absence to receive a dose of the vaccine, for a total of four hours of paid leave. The employee is to give notice of his or her intent to use such paid leave at least twelve hours prior to using it.

Employers are prohibited from denying the employee the right to use this paid leave option, requiring the employee to find a replacement worker as a condition of using said paid leave, and retaliating or taking adverse action against the employee. Such prohibited retaliation includes firing the employee, penalizing the employee, and deducting the paid leave provided to the employee from his or her salary or wages.

S.B. 209 does not apply to employers who provide a clinic on the premises where the employee may receive a COVID-19 vaccination during regular work hours.

Non-Compete Statutes

Nevada also enacted A.B. 47 on May 25, 2021, amending multiple provisions of Nevada’s Unfair Trade Practice Act, N.R.S. 613.195. A.B. 47 makes explicit that an employer is prohibited from bringing an action to restrict a former employee from providing services to a former customer or client if the former employee did not solicit the former customer or client, if the customer or client voluntarily chose to seek services from the former employee, and if the former employee is otherwise complying with the limitations in the noncompetition covenant. “Noncompetition covenant” refers to an agreement between employer and employee which, upon termination of the employment of the employee, prohibits the employee from pursuing a similar vocation in competition with or becoming employed by a competitor of the employer.

A.B. 47 also specifies that noncompetition covenants may not apply to employees who are paid solely on an hourly wage basis. Additionally, the bill requires the court award attorneys’ fees and costs to the employee in an action to enforce or challenge a noncompetition covenant if the court finds that the noncompetition covenant applies to an employee paid an hourly wage or if the employer impermissibly restricted the employee from providing services to former customers or clients.

Nevada’s Supreme Court also clarified on December 31, 2020 its power to reform or modify unreasonable non-compete agreements. The Nevada Supreme Court held that although district courts cannot, on their own, “blue-pencil” a non-compete agreement to remove unreasonably restrictive and unenforceable aspects, a district court can do so if the agreement itself allows for it. See Vinh Duong v. Fielden Hanson Isaacs Miyada Robison Yeh, Ltd., 2020 Nev. LEXIS 82 (Dec. 31, 2020).

Employee’s Right to Return

S.B. 386, the Nevada Hospitality and Travel Workers Right to Return Act, requires certain employers in the casino, hospitality, stadium, and travel industries to offer former employees laid off or furloughed due to the COVID-19 pandemic the opportunity to return to work starting July

1, 2021. “Covered enterprises” include airport hospitality operations, airport service providers, casinos, and event centers or hotels that are in a county with a population of 100,000 or more. The bill applies to all employees, regardless of whether they are covered by a collective bargaining agreement, excepting managerial and executive employees exempt from the FLSA, theatrical or stage performers, and employees who are party to a valid severance agreement. To qualify, the laid-off employee must have been employed for at least six months during the period of March 12, 2019 through March 12, 2020. The employee’s separation must have occurred after March 12, 2020 and must have been due to “a governmental order, lack of business, reduction in force, or another economic, non-disciplinary reason.”

The employer must offer the laid-off employee each position when it becomes available after July 1, 2021 and for which the employee is qualified. An employee is “qualified” if they held the same position or a similar position within the same job classification at the time of separation. The offer must be in writing and sent by mail to the last known address of the employee and, if known, by electronic mail, telephone, or text message.

An employer is not required to make additional offers of employment after an initial offer to a laid-off employee if (1) the employee states in writing that they do not wish to be considered for future open positions; (2) the employer extends and the employee declines three “bona fide offers” of employment made no fewer than three weeks between each offer; or (3) the employer attempts to make three offers of employment and each offer by mail or electronic mail is returned as undeliverable and if the employee’s telephone number is no longer in service.

Statute of Limitations for Common-Law Wrongful Termination Claims

S.B. 107 provides for a two-year statute of limitations for commencing common-law wrongful termination claims. Prior to S.B. 107, Nevada law did not expressly prescribe a statute of limitations for common-law wrongful termination claims. The statute of limitations is tolled pending the EEOC or Nevada Equal Rights Commission review of the administrative complaint and for an additional 93 days after the conclusion of the administrative proceedings. S.B. 107 also requires that all claims without an express statute of limitations period must commence within four years after the cause of action accrues.

Wage Claims and the Labor Commissioner

Pursuant to S.B. 245, if a person files a complaint with the Nevada Labor Commissioner and that person is covered by a collective bargaining agreement that provides a remedy for relief, the labor commissioner must decline jurisdiction of the complaint until the remedies provided by the terms of the collective bargaining agreement are exhausted. S.B. 245 further requires the labor commissioner to take jurisdiction of such a claim if the commissioner determines that relief provided by the terms of the agreement are inadequate, unavailable, or non-binding, and that the agreement is in compliance with Nevada labor law.

Further, if an employer fails to pay wages to an employee upon termination as required, the employee can bring a civil action against the employer for up to two years after the failure. Additionally, SB 245 redefines “wages” to include amounts owed to a discharged employee or an employee who resigns or quits and whose former employer fails to pay the employee by the statutory deadline.