It’s that time again. New year (or decade) = new laws! While new laws and amendments to existing ones are nothing unusual, this article aims to highlight some of the important changes in Nevada and federal laws that may directly impact Nevada employers. While certainly not an exhaustive list, here are some of the hot button issues that went into effect the beginning of this year. Be sure to take heed as some of these come with pretty steep penalties if you don’t.
VAPING IS SO HOT RIGHT NOW.
The Nevada Clean Indoor Air Act (NRS 202.2483 – 202.2497, the “NCIAA”), originally established in 2006, previously prohibited smoking tobacco products in indoor places of employment. As of January 1, 2020, the words “tobacco products” have been removed from the statute (NRS 202.2483) and smoking in any form is now prohibited from a slew of indoor places of employment. The result here is that the NCIAA now prohibits, in addition to tobacco products, the use or smoking of vaporizers, e-cigarettes, and similar products, regardless of what substance is being used in them. While there are many other factors to consider under the NCIAA, the purpose here is to draw employers’ attention to the amendment prohibiting smoking of any kind, not just tobacco products. Essentially, employees and/or customers who want to “vape” should do so in the same places designated or allowed for other smokers.
This one may be a biggie for a lot of employers. On September 24, 2019, the U.S. Department of Labor (“DOL”) made its final ruling on the salary threshold for white-collar exempt status employees under the Fair Labor Standards Act (“FLSA”). If you recall, there was quite the hoopla in 2016 related to the proposed increase of such salary levels for exempt employees to $47,476 per year. The good news is that effort was unsuccessful. The bad news, for employers, is that as of January 1, 2020, the previous exempt salary rate of $455 per week, or $23,660 per year, has been increased to $684 per week, or $35,568 per year. While not double, as proposed in 2016, the rate increase is still fairly significant. In a nutshell, all of your employees must be paid at least $684 per week to consider them exempt. This change also raises the requirement of “highly compensated employees” to $107,432 per year (previously enforced at $100,000 per year). The new rule allows employers to use non-discretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10% of the standard salary level.
- In addition to the new minimum salary requirement, an employee’s position must also comply with and meet the tests set forth under the FLSA pertaining to Executive, Administrative, Professional, Computer, Outside Sales, and/or Highly Compensated employees to qualify for exempt status. Job titles alone do not determine the exemption.
- “Blue-collar” employees as defined by the DOL, are never considered exempt regardless of how highly they may be paid.
THE TOKE TEST.
Some prospective employees may be rejoicing over this next change. Effective January 1, 2020, NRS 613.132 makes it unlawful for employers to fail or refuse to hire a person because of a screening test which indicates the presence of marijuana. However, there are several exceptions in this statute, one of which is arguably somewhat of a catchall IMHO.
The new law does not apply to employees that are applying for positions:
As Emergency Medical Technicians;
That require employees to operate motor vehicles and for which federal or state law require employees to submit to screening for marijuana; or
That, in the determination of the employer, could adversely affect the safety of others. This is likely a concession made for employers as the statute offers no guidance on what constitutes “adversely affecting the safety of others” and appears simply to leave that to the employers’ discretion.
Similarly, the provisions of this new law do not apply:
To the extent that they are inconsistent or otherwise in conflict with the provisions of an employment contract or collective bargaining agreement;
To the extent that they are inconsistent or otherwise in conflict with the provisions of federal law; or
To a position of employment funded by a federal grant.
NRS 613.132(3) also provides employees who are required to submit to a screening test within the first 30 days of employment, the right to rebut the initial (assumingly positive) screening test results with the results of a subsequent screening test taken at the employee’s own expense. Where the employee has chosen to exercise such rebuttal rights, the employer must accept and give appropriate consideration to the results of such subsequent screening test. Importantly, this provision is not limited to just marijuana as the statute goes on to define “screening test” as a test of a person’s blood, urine, hair or saliva to detect the general presence of a controlled substance or any other drug. NRS613.132(5). However, the statute is silent on what “appropriate consideration” actually is or may be. Is such consideration left to the employer’s discretion? Hm…
While I understand that it is impractical and impossible to define or provide guidance on every word or phrase in a statute, the failure here could easily result in a S*%! Storm of claims related to an employer’s failure to hire for a position that could “adversely affect the safety of others” and where employers fail to give “appropriate consideration” to subsequent screening test results. Just sayin’.
I DIDN’T COME HERE TO WORK TODAY.
NRS 608.0197 went into effect – wait for it – January 1, 2020. There are lot of words in the statute but the gist of it is that employers with 50 or more employees are required to provide those employees with mandatory paid leave. The paid leave must accrue at a minimum rate of 0.01923 hours for each hour of work performed. That’s about 40 hours per year for a full-time employee (who works 40 hours per week). Employers may impose a delay in usage until the employee’s 90th day of employment, but accrual starts upon hire. Employers may also cap use of leave at 40 hours per year and require a minimum of four-hour increments for use. These requirements set forth the minimum and employers can certainly choose to provide their employees with more if the wish. Keep in mind that the required paid leave under this statute does not apply to temporary, seasonal, or on-call employees.
MO MONEY, MO MONEY, MO MONEY.
We’ve got a little different time frame on this one. Nevada’s minimum wage increase (NRS 608.250) went into effect July 1, 2019 (what’s up now, January 1, 2020?!), but the first annual increase doesn’t actually occur until July 1, 2020. It boils down to essentially an annual increase of $0.75 per hour for the next 5 years for each tier of minimum wage. What does that mean? Well, Nevada is a two-tiered minimum wage system and there is a $1 per hour difference from one tier to the other. For employers who make qualified health benefits available to their employees, the current rate of $7.25 per hour applies. For those employers who do not offer those benefits to its employees, the current rate of $8.25 per hour applies. Here’s how the annual scheduled increases will shake out based on the two tiers:
|Date||Benefits Offered||No Benefits Offered|
|July 1, 2019||$7.25||$8.25|
|July 1, 2020||$8.00||$9.00|
|July 1, 2021||$8.75||$9.75|
|July 1, 2022||$9.50||$10.50|
|July 1, 2023||$10.25||$11.25|
|July 1, 2024||$11.00||$12.00|
Again, this is by no means an exhaustive list (we’d be here forever) of the changes in the laws impacting employers, but we hope this quick and dirty article helped make at least some sense of the word salads that are these particular new laws. As always, please feel free to reach out to us here at Bongiovi Law Firm for further information, questions, or concerns regarding your transactional business needs. Thanks for stopping by!