October 2015

Click to download a PDF file of the full issue of the October 2015 publication.

Articles from the “Social Media” and more “Legislative Wrap-Up” articles from the printed journal, Communiqué (October 2015) :

© 2015 The following articles were originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (October 2015, Vol. 36, No. 10). ll rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


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Laura Thalacker, Esq.

Ten Years of Facebook: Taking Stock of Social Media’s Impact on the Workplace

By Laura J. Thalacker, Esq.

Remember when social media was just a fad—a silly waste of time only for the younger generations? Employers were worried about this unfamiliar form of communication, which created new liability risks and headaches. Nearly ten years and counting into the general public’s widespread adoption of social media (Facebook has been publicly available since 2006!), where do things stand between employers and employees when it comes to social media? What real impacts has social media had in the workplace?

Here are some observations (although, time and space permitting, many more certainly could be made):

Employees still do stupid stuff (really stupid stuff) on social media

Oh, there are many, many examples of this, which range from disgusting (hello, employee who urinated on the Nachos BellGrande at a Taco Bell) to truly disturbing (did six HSBC bankers in England really think that they wouldn’t lose their jobs this past summer after they play-acted an ISIS beheading and posted the video on Instagram?).

After countless incidents of employees being fired over purported “jokes” on social media (shameless social media plug: collected at my Twitter feed @Fired4Facebook), you would think people would learn. Apparently, not yet. You should check out this Rolling Stone article compiling some of the most egregious recent examples – Katie Halper, A Brief History of People Getting Fired for Social Media Stupidity (July 13, 2015) at http://www.rollingstone.com/culture/lists/a-brief-history-of-people-getting-fired-for-social-media-stupidity-20150713#ixzz3lLQ7ZYxD.

But, not everything employees do on social media is bad

As recently reported by The Washington Post, there are many examples of employer’s benefiting from giving their employees some social media freedom. See Justin Brady, How trusting employees can help a company score viral hits (Sept. 4, 2015) at http://www.washingtonpost.com/news/innovations/wp/2015/09/04/how-trusting-employees-can-help-a-company-score-viral-hits. Companies can reap immeasurable marketing rewards and enjoy great press when employees, on their own initiative, score viral video hits or create viral social media posts reflecting positively on their employers. For example, a video of a Southwest Airlines flight attendant playfully rapping safety instructions and a humorous Amazon customer service chat under the aliases “Thor” and “Odin” which was posted online received loads of press coverage and have been viewed millions of times. Id.

It’s still a really bad idea for supervisors to be “friends” with their subordinates on personal social media sites

Enough said. There are a host of legal issues this can create so company policy should prohibit it and supervisors should avoid it like the plague.

However, supervisors connecting on a professional social media site, like LinkedIn, with employees they supervise might be okay, but only if the supervisor is careful and follows certain rules. For example, a supervisor should avoid posting reviews, endorsements, or recommendations for employees as it may come back to haunt the employer in a wrongful termination or other lawsuit. Likewise, to avoid claims of discrimination or favoritism, supervisors should make and accept connection requests with all employees, not just a select few.

It’s all but impossible to stop employee social media use at work

With the proliferation of smart phones and other mobile devices, employees can now access social media from anywhere, at any time, including on the job. Simply prohibiting employees from using company equipment to access social media doesn’t solve the problem. An effective policy should address employees’ use of their own mobile devices during working time, as well as a host of other issues, such as protecting the confidentiality of business information, prohibiting online harassment, barring disparagement of customers and competitors, and explaining the rules for employee endorsements and testimonials via social media.

Even with a more comprehensive policy, the ubiquitous nature of employee social media use makes it nearly impossible to police. And, an absolutist policy prohibiting workplace social media use may drive away coveted millennial workers. In a global survey of college students for the 2011 Cisco Connected World Technology Report, over half of those surveyed (56%) said “they would either not accept a job offer or would join and find a way to circumvent corporate policy” if an employer barred employees from accessing social media in the workplace. Cisco News Release, The New Workplace Currency – It’s Not Just Salary Anymore: Cisco Study Highlights New Rules for Attracting Young Talent Into the Workplace (Nov. 2, 2011). In that same report, nearly half (45%) of young employees surveyed said they would accept a lower paying job if it offered increased access to social media, flexibility for remote work, and an increased choice of devices available for use at work. Id.

The National Labor Relations Board “likes” (and I mean really “likes”) social media

Early on in the social media phenomenon, someone at the National Labor Relations Board apparently saw social media as a hot topic and thought it would be a useful tool for educating employers and employees alike about National Labor Relations Act protections for employees in both union and non-union workplaces. Over the past several years, the NLRB has emphasized and pursued numerous social media cases and the NLRB’s Office of General Counsel has released not one, but THREE lengthy, well-publicized guidance memos dealing with the application of Section 7 of the NLRA to employee social media activities. See NLRB General Counsel Memoranda (issued Aug. 18, 2011; Jan. 24, 2012; and May 30, 2012). Do not expect the NLRB’s focus on this issue to stop anytime soon.

Social media ownership disputes between employers and employees are still hard to figure out

Courts continue to grapple with these issues and there are no bright lines. The best strategy for employers is to address the ownership issues head on, in writing and preferably at the start of employment. If not addressed up front, then employers should not be afraid to tackle it at the end of the employment relationship. Employers should remember to recover an employee’s user name and password to work-related social media accounts at the time of termination just as they require the return of tangible employer property. Employers should specifically instruct departing employees that they are no longer authorized to access employer e-mail and social media accounts and that they are prohibited from changing user names and passwords to those accounts.

If an employer is providing severance to an employee in exchange for a waiver and release of claims, employers should consider addressing social media account ownership issues in the severance agreement. Likewise, if the severance agreement includes non-compete or non-solicitation provisions, address whether and what types of social media activities are permitted or runs afoul of the agreement. For example, does a former employee’s general, public LinkedIn announcement about a new job constitute a prohibited solicitation? What about a private, direct message on LinkedIn from the former employee to the employer’s customer? These issues have been and are continuing to be litigated so it is best to address and avoid them in advance, if possible.

Americans are bemoaning the loss of personal privacy on the Internet, but employee social media account information now enjoys unique legal protections, including in Nevada

It is widely acknowledged that employers, for a lawful purpose, may view an employee’s publicly available social media posts. And, in the age of near-weekly mass data breaches exposing personal information, the public has a growing awareness that nothing on the Internet is truly private. Yet, employees and lawmakers in a number of states since 2012 have maintained that there is a sphere of personal privacy related to employee social media use, despite employer arguments that access to an employee’s “personal” social media information is at times necessary for legitimate reasons such as, for example, in the course of a workplace investigation into illegal harassment, to protect employer trade secrets, or to comply with federal financial or state gaming regulations. Nevada law–NRS 613.135–and laws in 20 other states now provide varying levels of privacy protection for the personal social media account information of employees and prospective employees. See National Conference of State Legislatures, State Laws About Social Media Privacy (June 12, 2015) at http://www.ncsl.org/research/telecommunications-and-information-technology/state-laws-prohibiting-access-to-social-media-usernames-and-passwords.aspx.

Conclusion

Social media use by employees over the past ten years, while not all bad, has certainly created practical problems and liability risks for employers. What will happen in the next ten years of employee social media use? It is anyone’s guess, but there’s no doubt that as technology advances and social media becomes even more integrated into our daily lives, these complex challenges will continue well into the future.

Laura J. Thalacker is a founding Member of Hartwell Thalacker, Ltd., a Las Vegas labor and employment and business litigation law firm. Laura’s practice focuses on the representation of employers and she is certified as a senior human resources professional by both the Society for Human Resources Management and the Human Resources Certification Institute. Laura tweets about workplace social media issues @Fired4Facebook.


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Greg Gemignani, Esq.

Immunity and the Rise of Social Media

By Gregory R. Gemignani, Esq.

Although social media sites come in many flavors and varieties, a common element among all of these sites is that the primary source of content is from third-party users, not the online site operator. Another related common element is that third-party created content is available almost immediately to all or selected users of the social media site. Operating in such a manner would not be legally feasible without two key federal acts that limit liability of online service providers (“OSPs”) for content they disseminate that was created by a third-party. The first is the Communications Decency Act (“CDA”) and the second is the Digital Millennium Copyright Act (“DMCA”).

Communications Decency Act

In 1996, Congress embarked on an effort to “remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material.” See 47 U.S.C. § 230(b)(4). The resulting legislation was called the CDA. Like many pieces of federal legislation, the title of the act does not completely or accurately portray the language of the act. This is because when Congress enacted the CDA, it in part carved out a sphere of immunity from liability for providers of information services relative to content posted by third parties. See 47 U.S.C. § 230(c)(1). Courts have interpreted the CDA to extend this broad grant of immunity to online sites against anyone seeking to enjoin or seek damages for the continued dissemination of third-party content. See, e.g., Doe II v. MySpace Inc., 175 Cal. App. 4th 561, 96 Cal. Rptr. 3d 148, 52 A.L.R. Fed. 2d 603 (2d Dist. 2009), review denied, (Oct. 14, 2009). The CDA also expressly preempts state law in such matters. See 47 U.S.C. § 230(e)(3).

Because social media sites are generally built on the content of third parties, the CDA provides immunity to most controversial social media site operators from claims of libel, defamation, and slander. For example, the immunity provision was upheld in a matter against America Online (AOL) where America Online did not reasonably remove defamatory messages in a timely manner, failed to post retractions, and failed to screen for similar postings. See Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997). In another case, an online dating site was protected from liability for a third-party creation of a fake online dating profile about a real person. See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003). In Carafano, the dating site’s policies only allowed the profile creator to remove the posting. Id. Despite claims by the plaintiff of harassment related to the posting, the site’s immunity was upheld because the site was an OSP entitled to such protection. Id. In yet another case, even fraudulent content posted by a third party did not remove the shield of immunity from liability under state law claims. See Goddard v. Google, Inc., C 08-2738 JF (PVT), 2008 WL 5245490, 2008 U.S. Dist. LEXIS 101890 (N.D. Cal. Dec. 17, 2008).

Such broad immunity for the publishing of third-party content has led to the rise of sites that allow and encourage third parties to post information that is sometimes defamatory without any repercussions for the site operator. Even though business and personal reputations can be destroyed by postings on such sites, the site operators are able to profit from such inflammatory content while enjoying immunity from defamation claims.

For attorneys, the CDA is a mixed bag. On one hand, if you are representing social media site operators, it provides a strong level of immunity against liability for the content of third-party posts and contributions. On the other hand, if you are representing individuals or businesses that believe that they have been wronged by such online postings, it can be nearly impossible to remove such postings because it is difficult to determine who contributed such content, and it is expensive to pursue any remedies.

Often, attorneys must be creative in attacking such content on grounds other than defamation. Because the CDA does not provideimmunity from specific laws related to obscenity, the sexual exploitation of children, other federal criminal statutes, and intellectual property infringement, attorneys can pursue claims under these other laws. For example, if the post contains material that infringes the copyrights of the client, immunity under the CDA does not apply to such content and an attorney has a good chance of having the material removed under the DMCA, as explained in the next section.

There are additional avenues that may be pursued to remove such postings or to minimize the likelihood that such posting will be found. For example, if the third-party posting violates the site’s own terms and policies, that may create sufficient reason for having the site remove the post. This depends, however, on the site terms, the third-party content posted, and the circumstances of the dispute.

Copyright Infringement and Immunity Under the DMCA

Where the CDA provides immunity for social media site operators from the speech of their users, the DMCA can provide similar immunity for copyright infringement caused by third-party postings. See 17 U.S.C. § 512.

In general, copyrights are rights that vest with authors for creative works that they fix in a tangible medium. See 17 U.S.C. § 102. Copyrights can vest with employers for works created by true employees within the scope of their employment. See 17 U.S.C. § 201(b). Finally, copyrights can be assigned or acquired through an express written agreement. See 17 U.S.C. § 204.

In general, copyright infringement occurs when someone copies, alters, publicly displays, publicly performs, distributes, or transmits a work subject to copyright protection without the permission of or authority from the author or copyright owner. See 17 U.S.C. § 501. In addition to direct infringement, one can be liable for contributory infringement when “[o]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” See, e.g., Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996) (citing Gershwin Publishing Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)).
As you might expect, OSPs were nervous regarding potential liability for providing the medium and the method for third parties to engage in copyright infringement–particularly when it is so easy to copy, alter, and republish materials from online sources.

Congress came to the rescue with the DMCA, which provides immunity from copyright infringement liability for OSPs, if:

  1. The OSP doesn’t modify the material submitted by users;
  2. The OSP doesn’t charge for access to the infringing material;
  3. The OSP doesn’t know the material is infringing;
  4. The OSP has procedures for the removal of the infringing material; and
  5. The OSP has a designated copyright agent to review claims of infringement and such agent is registered with the Federal Copyright Office.

See 17 U.S.C. § 512.

If the OSP meets the safe harbor provisions of 17 U.S.C. § 512 and removes infringing content from its services, then the OSP will eligible for protection under the DMCA from liability for direct or contributory copyright infringement.

This immunity from copyright infringement was litigated between Viacom and Google regarding user-posted content on YouTube that contained unauthorized postings of clips of Viacom content. See Viacom Int’l Inc. v. YouTube, Inc., 940 F. Supp. 2d 110 (S.D.N.Y. 2013), appeal withdrawn (Mar. 19, 2014). In the Viacom matter, Viacom sued YouTube and its parent company Google for $1 billion over copyright infringement that kept appearing on the YouTube site. See id. Ultimately, the court held that YouTube had followed the requirements of the DMCA and was not liable for the infringement caused by third-party postings. See id.

One key difference between the DMCA and the CDA is that the DMCA requires an OSP to remove material that is reasonably deemed to be infringing by the OSP. The DMCA then shields the OSP from liability for the act of removing the allegedly infringing material.

For attorneys, the DMCA, like the CDA, also presents a bit of a mixed bag. For clients that are content providers, it provides a mechanism for having materials removed from sites when the content violates the content provider’s copyrights. However, as shown in the Viacom opinion, even though the OSP may be the only party profiting from the infringement, the OSP’s obligations are limited to removing the material, which may be posted again at a later time. For clients that are OSPs, it is a clear benefit provided that the OSP designates a copyright agent, files the agent forms with the copyright office, discloses its DMCA policies on its sites, and has a procedure for the removal of infringing content.

Summary

It is clear that the nature of social media would be very different without the CDA and DMCA. Although these laws may limit the rights of copyright holders and those that believe they are wronged by the content of third-party posts, they provide an environment where OSPs can provide a forum for the masses to engage in near-instant worldwide publishing of thoughts, ideas, and other content.

Gregory R. Gemignani is a member of Dickinson Wright PLLC. Gemignani’s practice focuses primarily on intellectual property law, gaming law, technology law, internet law, online gaming law, and online promotions law.


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Michael P. Lowry, Esq.

Four Questions to Answer Before Becoming a Blogger

By Michael P. Lowry, Esq.

The practice of law is highly competitive and lawyers, like many businesses, seek to distinguish themselves in an increasingly crowded marketplace. Blogs are often promoted as a relatively easy, inexpensive way to accomplish this. This is semi-true for bloggers who commit the time and energy needed to execute a well-planned blog. Is your blog idea well planned and ready for the big time? Before you jump onto the blogging bandwagon, ask yourself these four questions.

Why do you want to blog?

What is the goal you want to attain with your blog? Too often it seems blogs are started just because all the “cool kids” are blogging. Literally anyone can start a blog, but bloggers who know what they want to achieve through a blog have a far better chance of being successful, however success is defined. I started Compelling Discovery because I was tired of incessant e-mails asking how to solve the same, routine discovery disputes and then appearing in court to litigate them over and over. I wrote the blog with that goal in mind and now have fewer discovery disputes.

Why should I read your blog?

This is the question readers will ask. Of all the sources of information online, why should I use yours over another? I wanted Compelling Discovery to be a one-stop shop for not only solving discovery disputes, but also avoiding them. No matter the dispute, I wanted Compelling Discovery to be the first place readers came to find an answer. The idea was that this would then help educate my co-counsel and opposing counsel so I in turn have fewer discovery disputes. Again, I wrote with this in mind and it seemed to work.

This question also implicitly asks if your blog’s topic is interesting. Civil discovery is not the most interesting topic, but apparently it is interesting enough that people are willing to read a blog about it. Some of the blogs annually selected for the ABA Journal’s Blawg 100 seem to have some very uninteresting topics, yet have attracted such a following that they earned a highly coveted spot on the list.

Can you commit to blogging?

Can you commit the time, effort, and energy to a regular publication schedule? Can you find a new topic for a post and then draft and edit it on a schedule for weeks on end? Blogs with regular, reliable publication schedules are more successful than those that publish sporadically. Readers come to know your schedule and return to the blog when they know new content should be available. Compelling Discovery publishes new content on Monday and Thursday every week. Monday and Thursday are also usually the days with the most traffic.

Can you speak the vernacular?

Blogs are predominantly written, as opposed to video or podcasts. Do you like writing or do you avoid it at all costs? Can you write like a human being or do you write only like lawyers and 18th century English royalty? Like judges, if your readers have difficulty reading your blog, they are less likely to read it or understand your point. They are also less likely to return.

What you say is also just as important as how you say it. Readers are smart. They see through advertisements masquerading as blogs. Some law firm blogs post about how they are better than other attorneys and get better results. These are advertisements, not blogs. Posts and blogs that are primarily focused on self-promotion seem to succeed less than those focused on content.

If you have answered these four questions and have a confident idea of what you want to do with your blog and how you plan to achieve it, then entering the blogosphere may be just the thing for you.

Michael P. Lowry is a shareholder with Thorndal Armstrong Delk Balkenbush & Eisinger’s Las Vegas office and has a litigation-based practice. He began publishing the Compelling Discovery blog in June 2012. The ABA Journal selected it as one of the top 100 legal blogs in the country in both 2013 and 2014.


Homa Woodrum, Esq.
Homa Woodrum, Esq.

If You Can Send an E-mail, You Can Start Your Own (Legal) Blog

By Homa Sayyar Woodrum, Esq.

I’ve interviewed a number of people about how they found their attorney online and being able to see that the attorney has covered an issue similar to theirs is a big selling point. It is one thing to have a general description that mentions your criminal defense practice, but it is another to have an article about what to do if you’re pulled over. Most prospective clients are searching for phrases that would appear in the latter, such as “what should I do if a cop pulls me over?” instead of “criminal defense attorney in Las Vegas”.
Even if the terms HTML, CSS, and PHP sound like Greek to you – take heart! Blogging platforms have become turnkey over the years and accessible even to beginners. If you can send an e-mail, you can run your own blog and even set it up to let you post via e-mail or user-friendly mobile applications for those days where you are waiting through a long calendar and can dash off a post.

Content management systems

When you type an address into your browser’s search bar, that address is really directing you to a spot on the Internet associated with that address. Behind the scenes, it is not unlike opening a folder on your computer – inside are other folders or files and for a Web site you’ll find pages and links and images. On your computer, your operating system sets the rules for how files are displayed and organized generally but you are naming them and making the content. The same goes for a Web site.

Blogging platforms are really content management systems–you are organizing your articles or other content into sections for easy access. In fact, the more useful these systems have become, the more you’ll find complete law firm Web sites are built around them.

There are a number of platforms to build an online presence. For on-the-go attorneys, Instagram, Tumblr, or Twitter are ways to dip your toe into sharing articles, thoughts, and, yes, what you had for lunch. For a classic blog (short for “Web log”), two major options are Blogger (by Google) and WordPress. Both do a great job offering templates that scale to your visitor’s needs (phone, tablet, desktop) and they start out as free with minimal investments needed to remove advertising.

Since many firms use other companies to run their main sites, there is no harm in separating out another domain. I have even seen contracts with companies that may put into question the ownership of your content if you stop paying them. And if you see how easy it is to set up your own site, you may break free of those contracts in no time at all and run the show yourself.

Blogger

Blogger is a Google-based (now a subsidiary of Alphabet) content management system. Chances are that you already have a Google login if you use YouTube, Gmail, or other Google product. If not, set up a free Google account at the prompt when you go to http://www.Blogger.com. Otherwise, if you already have an account, just log in. You should see a button that reads “New Blog.” Much like WordPress, Blogger is going to offer you the chance to use a domain but you can go with your original address selection for now, which will end with “.blogspot.com”.

Be aware that if you comment on other sites using your Google account, people may be able to click your username and be taken to your blog. Therefore, you will want to create a new Google account if your personal one you use to comment on your favorite Star Wars Lego blog is one you do not want to connect back to your professional life.
What many people appreciate about Blogger is that the “New Post” screen is familiar for word processor users. Similar button placement for adding bold type, headings, images, and even using spellcheck will put new bloggers at ease. To post via e-mail, just click on the following: Settings > Mobile and e-mail > Publish e-mail immediately (or save e-mails as draft post). You will fill in a combination of words in the box above your publishing setting that will become a unique e-mail address you will send posts to in order to have them go onto your site. If anyone has that address they can post to your site so choose something you will remember, but is not easy to guess. Save your settings and you’re good to go.

WordPress

For WordPress, self-hosted (i.e., since you pay your hosting company for your domain and server space already, install the blog there) sites are run on the “.org” (WordPress.org) system that allows greater behind-the-scenes access to code and customization. A “.com” (WordPress.com) system blocks some avenues of customization, such as using JavaScript provided by other sites. You can get a domain via the “.com” framework or if you want your blog to be integrated as part of your existing firm site, you’ll be installing the “.org” scheme into your existing set up. For the purposes of discussion here, I’ll focus on WordPress.com.

To start a WordPress.com site, go to http://www.wordpress.com and click the “Create Website” button. It is going to ask you to pick an address (ending in “.wordpress.com”), so choose something easy to spell and remember.Bonus points if you can work in a good keyword, like “criminaldefensevegas”! Input your e-mail address, a username, and the password of your choice. At this point, WordPress is going to offer you a domain name for a small annual fee. If you don’t use it, you’ll have the address you started with at the initial screen (select “No Thanks”). After selecting a “theme” (design) for your page, they’ll offer you the free plan or a paid plan. You can always upgrade later, so test drive the free version for now. They do a great job guiding you through getting started, so just remember that your dynamic content (new articles you’ve written) will be created from the Publish > Add Post steps available and more static content (say, an “about you” or “links” page) will be created from Publish > Add Page.
To post by e-mail to your newly created WordPress.com site, follow the steps here: https://en.support.wordpress.com/post-by-email/

Learn by trial and error

No one will initially find your blog until you share the link. You should wait to share the link until you have a few articles up, by the way. Once the link is shared, Web search providers “crawl” (or index) your content for keywords. Try adding photos to your posts, try tinkering with headings, and, until you learn how to edit your template to have standard text appear on every page, be sure to have the right disclaimers about attorney advertising at the end of everything you post. This is especially a good tip since people who subscribe to your blog via e-mail or a reader subscription service such as Feedly are going to just see the body of your posts and not disclaimers that have been made part of your layout.

Look at other blogs you enjoy and inform you. We can’t all be as awesome as one of my favorite reads, Compelling Discovery ( https://www.compellingdiscovery.com), but that doesn’t mean we can’t try. The ABA keeps a list of notable legal blogs that might be a good place to start for inspiration: http://www.abajournal.com/blawg100/.
Remember that you’re not going to get the hang of things until you actually do it yourself, so give it a try. Blogger tends to be easier than WordPress for most users, but you may outgrow it quickly). Remember to back up your files so that you can move on to another platform down the line or use your own content for other formats like newsletters or posts to your firm’s other social media. My first WordPress blog was a recipe site, so you can start with a hobby blog to learn the ropes and then transition into something more law related.

Homa Sayyar Woodrum, Esq. is the founder of Woodrum Law LLC ( WoodrumLaw.com) and blogs at AllergyLawProject.com, OhMahDeehness.WordPress.com, and WLawReview.com.


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Jennifer Gaynor, Esq.

2015 Changes to Nevada’s Open Meeting Law and Public Records Statutes

By Jennifer Gaynor, Esq.

When the Nevada Legislature meets every second year, lawmakers inevitably are asked to revise Nevada’s Open Meeting Law (“OML”, NRS Chapter 241) and Public Records Statute (NRS Chapter 239). The 2015 Session was no exception, and some of the key changes to these laws are outlined below.

Open Meeting Law

The biggest changes to Nevada’s OML came with Senate Bill 70 (available at: https://www.leg.state.nv.us/Session/78th2015/Bills/SB/SB70_EN.pdf), which clarifies a number of the provisions of the OML. For example, the OML applies only to meetings of a quorum of the members of certain public bodies. Senate Bill 70 clarifies that “quorum” means a simple majority unless a different number is prescribed in law. The bill also clarifies the meaning of the term “working days” for purposes of interpreting the deadlines by which a public body must take certain actions, such as providing notice of its meetings and making available minutes or audio recordings of its meetings. Now, it is clear that “working day” for purposes of these requirements is every day of the week except Saturday, Sunday and legal holidays prescribed in existing law, even if an agency may be closed on certain days of the week. Senate Bill 70 also adds additional exemptions to those listed in the OML statute.

Senate Bill 70 also requires a public body to do the following:

  • List on its agenda the names of any persons who are the subject of potential administrative action during a public meeting, whether the action is potentially adverse (such as potential loss of a license) or not (for example, appointment of the person to a position);
  • Document in writing its compliance with the requirement to post a public notice at required locations for each of its meetings; and
  • Approve the minutes of a meeting of the public body within 45 days after the meeting or at the next meeting of the public body, whichever occurs later, unless good cause is shown.

In addition, SB 70 provides that a public body is prohibited from designating a person to attend a meeting of the public body in the place of a member of the public body unless expressly authorized to do so by the legal authority pursuant to which the public body was created.

Finally, Senate Bill 70 authorizes the filing of a complaint alleging a violation of the OML with the office of the Attorney General.

Other OML bills include Assembly Bill 40, which grants a limited exemption to the Gaming Control Board from the OML in connection with the Board’s investigation and treatment of gaming law violations. In addition, Senate Bill 33 authorizes the board of hospital trustees of a county hospital to hold a closed meeting to discuss “strategic plans,” such as the possibility of expanding services or facilities.

Public Records

When it comes to Nevada Public Records law, the most important changes were seen in Assembly Bill 135 (available at: https://www.leg.state.nv.us/Session/78th2015/Bills/AB/AB135_EN.pdf). This bill is intended to provide State employees with proper training regarding retention and disposal of official State records as well as provide State agencies with tools to encourage their employees to comply with the requirements for public records retention. The bill requires the Division of State Library and Archives to develop a training program and provides for additional disciplinary actions to deal with employees altering or destroying official State records through negligence or some other unintentional act.

There were also bills affecting a wide range of areas (from guardianships to the State Business Portal and motor vehicle registries, etc.) that provide for certain information to be public record and other information to be held as confidential. For example, Assembly Bill 43 was requested by the Nevada Department of Transportation (“NDOT”) to protect the confidentiality of its bidding and procurement process by providing that certain information submitted to the NDOT by persons seeking a contract are confidential until notice of intent to award the contract is issued, and Assembly Bill 97 clarifies that wills are public records open to inspection unless specifically sealed.

The Legislature has made every effort to include these and all new changes to the public records law in the State Public Records Statute. Review of the law in a particular area is recommended, however, when determining whether a certain record is public.

Jennifer Gaynor represents clients before the Nevada Legislature in Carson City, Nevada. She also practices before various professional and licensing boards and state and local tax authorities, and represents clients on matters involving First Amendment law, public records and open meeting law, gaming law and regulatory agency actions.


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Jennifer Roberts, Esq.

Legislative Update: Gaming & Liquor

By Jennifer Roberts, Esq.

It was an active legislative session for the gaming and alcohol industries in Nevada, resulting in laws that could significantly change privileged businesses, such as casinos or wineries. This was despite another attempt to amend our state constitution to allow for a lottery that quietly fizzled early in the session.
Here is a highlight of the important gaming and alcohol-related legislation from the 2015 Nevada State Legislature.

Skill gaming

There has been a lot of talk in the gaming industry about appealing to a wider market, especially patrons who have become accustomed to advanced technology. In Senate Bill 9, the legislature mandates the Nevada Gaming Commission to adopt regulations that encourages “innovative, alternative and advanced technology” for gaming devices and gaming-related equipment. The law also defines for Nevada games of skill, games of chance, and a game that is a hybrid of both skill and chance. When the regulations are adopted, you may see a much different casino floor, with competitive, multi-player gambling games, role-playing or interactive shooter games, or casual games. Basically, what is on your smartphone will probably also be found at the casino. This legislation will also likely result in a larger intersection between social media and gaming.

Nightclubs

The nightclub industry in Nevada continues to thrive among locals and tourists alike. As the popularity of these attractions increased, the Nevada Gaming Control Board has cautioned gaming establishments where these nightclubs are located to help prevent harmful activities that can occur there, such as over-intoxication, drug use, and sexual assaults. To ensure that those working in the nightclubs are suitable to work in a business located within a gaming establishment, Senate Bill 38 now requires nightclub employees, as well as employees of day clubs or party pools and lounges, to register with the Nevada Gaming Control Board, just like gaming employees.

Associated equipment manufacturer licensing

Under current law, the manufacturer of associated gaming equipment, ranging from cards and dice to slot machine monitoring systems are not subject to mandatory licensing by the Nevada Gaming Commission, but were subject to various levels of reporting or registration depending on the type of equipment provided to the industry. Senate Bill 38 provides that associated equipment providers must be registered with the Nevada Gaming Control Board and may continue to be subject to discretionary licensing. The law further mandates the Nevada Gaming Commission to adopt regulations effectuating this legislation.

Charitable lottery

Although Nevada does not permit Powerball or the like, charitable lotteries are permitted with certain restrictions. As part of a class project, students from the UNLV William S. Boyd School of Law successfully lobbied the legislature to pass Senate Bill 38 to expand Nevada’s charitable lottery provisions so that charitable lotteries may be offered statewide and not-for-profit alumni and legal bar associations can participate.

Race and sports wagering funds

Senate Bill 443 allows for a business entity, not just an individual, to place wagers on horse or dog races or sporting events at authorized Nevada race and sports books. This could create a whole new industry within the investment world — instead of buying stock in Apple or McDonalds, one buys an interest in whether the Miami Heat can make it to the playoffs.

Wineries

Until this legislative session, wineries could not operate in the Nevada’s two largest counties – Clark County (where Las Vegas is located) and Washoe County (where Reno is located). Assembly Bill 4 changes that so wineries can now operate in any county in Nevada. For wineries licensed for winemaking after October 1, 2015, they can sell or serve on its premises an unlimited amount of wine so long as 25 percent or more of the fruit used to produce, blend, or age the wine is grown in Nevada. Otherwise, a winery may not sell or serve more than 1,000 cases of its wine per year.

Distilleries

In the alcohol industry, craft distilling and craft brewing have grown rapidly and significantly in recent years. Senate Bill 246 allows a craft distillery in Nevada to now export 40,000 cases of product per year (versus 20,000), as well as provide samples of four ounces (versus two). Customers are now permitted to purchase an entire case of craft distilled product at a time, but no more than six cases per year.

Powdered alcohol

The market for adding flavoring to water, so that it becomes fruit punch or strawberry flavored, has grown. Now, what if that flavor suddenly became a tequila-infused margarita? Nevada is not the only state to prohibit powdered alcohol and there has been talk of creating a nationwide prohibition on the substance. Senate Bill 464 bans the sale, distribution, purchase, and possession of powdered alcohol.

Live entertainment tax

The live entertainment tax has been one of much discussion and debate both in and outside of the gaming industry. Senate Bill 266 modifies the live entertainment tax (LET) so that it imposes a 9% tax on admission charges only and not food, beverages, and merchandise. This is certainly a celebrated change! The bill also extends the LET to escort services. There are some new exclusions, such as complimentary admission, bottle service table reservations if an admission is paid, and certain luxury suite fees. Nevada professional sports team events will not be subjected to the LET and NASCAR will maintain an exemption if at least two races are held in a year. The LET will now be applied to outdoor events when an admission fee is assessed (i.e., Life is Beautiful, Burning Man Festival) and any performance by a DJ, whether interactive or not.
It will certainly be interesting to observe how these laws from the 2015 legislative session will impact business and tourism in Nevada.

Jennifer Roberts is a partner at Duane Morris and focuses her practice on gaming law, including gaming licensing, gaming compliance and gaming law development; federal, state and local alcohol beverage licensing control; land use and zoning; business licensing and regulatory and administrative law. She regularly appears before the Nevada Gaming Control Board and Nevada Gaming Commission, as well as local councils and commissions. Ms. Roberts is also an adjunct professor of gaming law at the William S. Boyd School of Law at the University of Nevada Las Vegas and S. J. Quinney College of Law at the University of Utah.