February 2020

Click cover image to download full 32-page issue (3.3 MB PDF file).

©2020 Clark County Bar Association. The content on this page was published in the “Labor & Employment” issue of Communiqué* (February 2020). This issue features content written by members of Nevada’s legal community including:

Additional content may be found in the full color issue of the publication (print and PDF versions), including:

  • CCBA President’s Message: “Becoming a Bar Leader” by Mariteresa Rivera-Rogers
  • View from the Bench: “View from the Bench: Red Flag Laws Take Effect” by Chief Judge Linda Marie Bell
  • Bar Activities
  • Member Moves
  • Court News
  • Marketplace

Special thanks to the following advertisers for their support of Communiqué* (February 2020):

© 2020 Clark County Bar Association.The content on this page was originally published in the “Labor & Employment” issue of COMMUNIQUÉ* (February 2020).*, the official publication of the Clark County Bar Association. All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


Paid Leave Is Now the Law in Nevada

By Roger L. Grandgenett II and Neil C. Baker

Roger L. Grandgenett II
Neil Baker

Although laws requiring paid leave for sickness, safety, or family reasons are familiar among state and local jurisdictions in the United States, mandatory paid time off remains mostly uncharted territory. But on June 12, 2019, Nevada joined Maine to become one of only two states in the nation to enact a law requiring employers to make paid leave available to employees for any reason. Senate Bill No. 312 became effective on January 1, 2020, and is codified at Chapter 608 of the Nevada Revised Statutes.

The Basics

Under SB 312, private employers with 50 or more employees in Nevada must provide each employee with at least 0.01923 hours of paid leave for each hour of work performed during a “benefit year,” which the law defines as any “365-day period used by an employer when calculating the accrual of paid leave.” An employee who works 40 hours in every week of the year will accrue approximately 40 hours of leave each year under this formula. Employers should note, however, that employees who work fewer hours—or more—are entitled to accrue leave at the same rate. Only “temporary, seasonal, or on-call employees” are excluded.

The law provides that employees who use their leave entitlements may do so without providing a reason for the use. It further provides that employers may not deny employees the right to use paid leave in accordance with the provisions of SB 312, require employees to find a replacement worker as a condition for using the leave, or retaliate against them for exercising their rights under the new law. On the other hand, the law requires employees to provide notice of their use of paid leave as soon as practicable. It also permits employers to establish a minimum usage increment, although the increment may not be larger than four hours.

Conferral Methods and Permissible Caps

The new law gives employers the option of conferring the entitlements by one of two methods. Under the accrual method, employers may confer employees’ paid leave entitlements on a gradual basis “over the course of the benefit year.” Alternatively, under the frontloading method, employers may confer all the paid leave their employees are entitled to accrue throughout the benefit year on the first day of that year. Regardless of which method the employer chooses, it may restrict new employees from using accrued leave until the 90th calendar day of employment.
While the law does not expressly allow employers to place a cap on the amount of leave that employees can accrue, it does allow them to cap employees’ use of paid leave at 40 hours in a benefit year. The law further provides that employers who elect the accrual method may limit the amount of accrued leave an employee may carry over from year to year to a maximum of 40 hours per benefit year.

Rate of Compensation

The law requires employers to compensate employees for the paid leave they use at the same rate and on the same day as the hours would have been paid if the employee had worked them. For hourly employees, SB 312 provides that the proper rate of compensation is the employee’s hourly rate. For employees paid by a method other than an hourly rate, such as salary, commission, or piece-rate employees, the law requires that compensation be based on an artificial hourly rate, which should be derived by dividing the employee’s “total wages” earned during the preceding 90 days by the number of hours worked during that period. The nonhourly compensation rate must “include any bonuses agreed upon and earned by the employee,” but it need not include overtime pay, hazardous duty pay, holiday pay, tips, or “any bonuses awarded at the sole discretion of the employer.”

Reporting, Posting, and Recordkeeping Requirements

Included among employer’s new obligations under SB 312 are certain reporting requirements. First, employers must “maintain a record of the receipt or accrual and use of paid leave” for a period of at least one year, which they must make available for the Labor Commissioner’s inspection on request. Second, on each payday, employers must provide an accounting to each employee of the paid leave available to that employee. Employers may provide the accounting using their existing payroll systems.

In addition, SB 312 directs the Commissioner to prepare a bulletin informing employees of their rights and obligations under the new law. The law further directs the Commissioner to require that employers place the bulletin in a conspicuous location in each workplace that they maintain.

Exempted Employers

Under certain circumstances, employers may be exempt from the requirements of SB 312. To begin with, the law excludes from its scope any entity that does not have “50 or more employees in private employment in this State.” The law also provides that employers need not comply during their “first 2 years of operation.” Finally, SB 312 expressly states that its provisions do not apply if, “pursuant to a contract, policy, collective bargaining agreement or other agreement,” the employer “provides employees with a policy for paid leave or a policy for paid time off to all scheduled employees at a rate of at least 0.01923 hours of paid leave per hour of work performed.”

Enforcement

The law directs the Commissioner to enforce the provisions of SB 312 and grants the office authority to impose administrative penalties of up to $5,000 for each violation. The law further provides that any person who violates the provisions of the law, “or any regulation adopted pursuant thereto,” is guilty of a misdemeanor.

As the law does not contain an express private right of action, at present the Office of the Labor Commissioner is the only clear enforcement mechanism for SB 312. Clearly, then, employers and their counsel should accord significant weight to any guidance provided by that office. To date, the Commissioner has issued two advisory opinions addressing a broad range of questions posed by employers following the law’s enactment. See AO 2019-02 Paid Leave. Among the most notable of the positions taken by the Commissioner in those opinions are the following:

  • “The intent and explicit, plain, and unambiguous language” of SB 312 “clearly provides that employers already providing leave that matches or exceeds the 0.01923 hours of paid leave per hour of work performed pursuant to a contract, policy, collective bargaining agreement or other agreement are explicitly exempt from the other requirements” of the law;
  • An employer is not covered by the law unless it “employs 50 or more employees in Nevada in 20 or more consecutive or nonconsecutive workweeks in the current or preceding calendar year”;
  • The Commissioner will review claims of unlawful denials of the right to use paid leave on a case-by-case basis. A notice period of three to five days or longer might be acceptable where the employee “is going on vacation” or “taking a voluntary day off” and where the employer’s notice requirements appear in a writing “provided to and signed for by the employee.”
  • Finally, the Commissioner provides definitions for the terms “temporary, seasonal, and on-call employees,” which terms are otherwise left undefined in SB 312.

Nevada is one of the first states in the nation to enact a mandatory paid time of law. But it is unlikely to be the last. As Nevada attorneys, we are among the first to address issues that may soon confront the nation.

Roger L. Grandgenett advises and represents employers in all aspects of labor and employment matters before the Equal Employment Opportunity Commission, the Nevada Equal Rights Commission and the National Labor Review Board, as well as the Department of Labor and the Nevada Labor Commissioner.

Neil C. Baker advises and represents Nevada and Utah employers in a broad range of employment matters and appears on their behalf before both federal and state courts, as well as before administrative agencies.


Is Discrimination Based Upon Sexual Orientation And Gender Identity Protected By Title VII?

Howard Cole
Jennifer Hostetler

By Howard Cole and Jennifer Hostetler

The U.S. Supreme Court is set to rule on a trio of cases that will (hopefully) settle the question as to whether the definition of “sex” under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) includes sexual orientation and gender identity. By its text, Title VII protects employees and job applicants against employment discrimination on the basis of “race, color, religion, sex, or national origin.” The definition of “sex” under Title VII has been the subject of much debate, with courts and the federal government coming out on opposite sides. Specifically, the Equal Employment Opportunity Commission (“EEOC”) and the United States Court of Appeals for the Second and Seventh Circuits have each determined that the term “sex” may be defined to include sexual orientation. The United States Court of Appeals for the Eleventh Circuit, however, has held that Title VII does not prohibit discrimination on the basis of sexual orientation – a position also currently held by the U.S. Department of Justice.

Sexual orientation discrimination

In 2017, the Seventh Circuit in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) was the first appeals court to recognize sexual orientation as a form of discrimination protected by Title VII. That ruling followed the EEOC’s 2015 decision in Baldwin v. Foxx, EEOC Decision No. 0120133080 (July 15, 2015) where the EEOC announced it will treat claims of sexual orientation discrimination as complaints of sex discrimination under Title VII.

In 2018, the Second Circuit followed suit and held that sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination for purposes of Title VII and sex stereotypes. In Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018) (en banc), Donald Zarda was a sky-diving instructor who told a client strapped to him for a tandem skydive that he was a homosexual. The client told her boyfriend that Zarda had inappropriately touched her and disclosed his sexual orientation in an effort to excuse his otherwise inappropriate behavior. After the client’s boyfriend complained, Altitude Express terminated Zarda’s employment. Zarda filed suit alleging that Altitude Express terminated his employment because of his sexual orientation and that this was protected under Title VII as sex stereotyping. The district court rejected the claim and the Second Circuit affirmed relying on precedent that a sex stereotyping claim cannot be predicated on sexual orientation. Upon rehearing en banc, a divided court overturned the panel decision.

The Eleventh Circuit in Bostock v. Clayton County, 723 Fed. App’x. 964 (11th Cir. 2018) reached the contrary conclusion, holding that sexual orientation is not protected by Title VII’s prohibition against discrimination on the basis of sex and reaffirming that circuit’s precedent. The plaintiff Gerald Lynn Bostock alleged that he was fired from his job as the Child Welfare Services Coordinator with Clayton County, Georgia because of his sexual orientation after disparaging comments were made about his sexual orientation.

The Zarda and Bostock cases were appealed to the U.S. Supreme Court and oral argument on the consolidated cases took place on October 8, 2019. Much of the debate centered on the meaning of “sex” when Title VII was passed in 1964. Justice Ruth Bader Ginsburg observed, at the time, male same-sex relations were a criminal offense and the American Psychiatric Association had labeled homosexuality a mental illness. Justice Samuel Alito expressed concerns about changing “the meaning of what Congress understood sex to mean.” Counsel for Zarda and Bostock responded that the Supreme Court has recognized other forms of sex discrimination that Congress could not have contemplated when it enacted Title VII, such as sexual harassment in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) and discrimination based upon sex-stereotypes in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Counsel for the employers argued that sex and sexual orientation are independent and distinct characteristics and sexual orientation discrimination by itself is not sex discrimination under Title VII. The Justices, however, probed counsel as to how a person’s sexual orientation can be independent of sex. Justice Neil Gorsuch appeared sympathetic to the employees’ arguments, suggesting that sex appears to be a factor in the terminations.

Gender identity discrimination

The Supreme Court also heard oral argument in R.G. & G.R. Harris Funeral Homes v. EEOC, 884 F.3d 560 (6th Cir. 2018), a case where the Sixth Circuit decided that Title VII prohibits discrimination on the basis of gender identity. The plaintiff, Aimee Stephens, worked as a funeral director. After appearing and dressing as a man for several years, she disclosed to her employer that she identified as female, intended to have sex-reassignment surgery, and the first step was to live and work as a woman for one year. Her employer responded that “this is not going to work out” and offered Ms. Stephens a severance agreement. Ms. Stephens sued and alleged discrimination on the basis of sex under Title VII. The district court granted summary judgment in favor of the employer, but the Sixth Circuit reversed, finding that discrimination on the basis of gender identity is unlawful sex stereotyping under Title VII.

In oral argument, counsel for Ms. Stephens argued that she is being treated differently because of the sex she was assigned at birth and her failure to conform to the sex stereotypes of her employer. If she had been assigned a female sex at birth, counsel argued, she would not have been fired for wanting to come to work dressed as a woman. Counsel for the employer argued that treating men and women equally does not mean that employers need to treat men as women.

During oral argument, hypotheticals took precedence, centered on the impact the Court’s decision will have for society and specifically, what it would mean for gender-specific restrooms and sports teams with transgender athletes. Justice Gorsuch remarked that the case was “really close” as a matter of textual interpretation, but raised concerns about the “massive social upheaval” that would flow from such a view of Title VII’s protections – an issue which may be more appropriate for the legislature to take up.

Potential impact of the Supreme Court’s opinion

For many years, Nevada has expressly prohibited discrimination based upon “sex, sexual orientation, gender identity or expression” by employers having 15 or more employees. NRS 613.330. Protections based upon sexual orientation were added in 1999 and protections for gender identity were added in 2011. And now, employees may recover the same damages available under Title VII. In the 2019 Legislative Session, Nevada legislators passed Senate Bill 177 which provides that if a court finds that an employee has been discriminated against in violation of NRS 613.330, the court may award the employee the same legal and equitable relief that may be awarded to a person pursuant to Title VII. Therefore, a ruling by the U.S. Supreme Court recognizing a cause of action under Title VII based upon sexual orientation or gender identity would bring federal law into conformity with state law in Nevada.

However, nationwide less than half of states offer similar protections for LGBT employees. The Supreme Court’s opinion could dramatically alter this landscape by federally prohibiting discrimination based on sexual orientation or gender identity. Justice Gorsuch’s questioning of the parties suggests he may be the swing vote on these closely watched pivotal cases. A decision is expected by early summer 2020.

Howard Cole and Jennifer Hostetler are labor and employment attorneys at Lewis Roca Rothgerber Christie LLP. Their employment practice focuses on the defense of employers in state and federal court against claims of discrimination, harassment, retaliation, wrongful termination, breach of contract, and violation of wage and hour laws. They also regularly represent employers before administrative agencies, such as the Equal Employment Opportunity Commission and National Labor Relations Board.


The Top Five Things to Consider About Retaliation Charges

Jill Garcia

By Jill Garcia

1. Retaliation claims remain the number one claim filed with the EEOC.

While we do not yet have 2019 data, FY 2018 data showed that retaliation claims continued to be the most frequently filed charge with the EEOC. In 2018, 51.9 percent of all charges were for retaliation, compared with 32.2 percent for sex, 32.2 percent for disability and 32.2 percent sex discrimination claims. The EEOC collected $505 million for retaliation charges and continues to focus on these types of charges.

2. An employer can be liable for retaliation even if it is not liable for the underlying discrimination complaint

Why are there so many retaliation charges? Retaliation issues need to be high on an employer’s list of concerns, as an employer can be liable for retaliation, even if there is no finding of discrimination. For example, assume an employee complains she was demoted due to her sex, and though it was already in place due to performance issues, she is now terminated post-complaint. A retaliation claim seed has now been planted.

3. An adverse action is much more than firing an employee

While it may seem obvious that a manager may not fire, demote, harass, or otherwise “retaliate” against an individual for filing a complaint of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination, an adverse action goes many steps further. Other employer actions that have been deemed to be adverse actions include: transferring an employee to a less desirable position; moving an employee’s office to a less desirable location; engaging in verbal abuse; increasing scrutiny; changing an employee’s shift, even if the shift pays more; and otherwise making an employee’s work more difficult.

4. Employers need to be careful of former employees as well

Title VII protects both current and former employees. Employers should recognize the inherent danger in making comments about former employees who have made complaints about discrimination. Actions that may interfere with an ex-employees future ability to secure work can also lead to a retaliation claim.

5. What can employers do?

The concern of a retaliation claim oftentimes leaves employers fearing they now have a lifelong employee. Engaging in a protected activity, however, does not shield an employee – in theory – from all discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. However, an employer is not allowed to do anything in response to protected activity that would discourage someone from reporting or complaining about future discrimination. EEOC guidance suggests that ways to help combat a retaliation claim include: (a) maintaining a written, plain language anti-retaliation policy, with practical guidance of what to do and not to do; (b) training all managers, supervisors, and employees on the employer’s written anti-retaliation policy; (c) providing managers and supervisors alleged to have engaged in discrimination guidance on how to handle any personal feelings about the allegations when carrying out management duties or interacting in the workplace; (d) checking in with managers and supervisors during the pendency of the investigation or charge; and (e) requiring decision-makers to identify their reasons for taking consequential actions.

Jill Garcia has over 18 years’ experience defending employers and educational institutions. Her practice areas include Title VII, the FMLA and discrimination law, and defending schools in student and teacher issues.


*About Communiqué

Communiqué is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.

© 2020 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

Communiqué accepts advertisements from numerous sources and makes no independent investigation or verification of any claim or statement made in the advertisement. All articles, letters, and advertisements contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Clark County Bar Association.

Communiqué is mailed to all paid members of CCBA, with subscriptions available to non-members for $75.00 per year. For advertising information and editorial policy, please contact Steph Abbott at (702) 387-6011 or stephabbott@clarkcountybar.org.