Hiring an employment law expert can cost you a pretty penny — though we all know it’s important for business. Well how about some absolutely free insights from an employment lawyer? The August Tech Café will offer just that, as Dora Lane, labor and employment partner at Holland & Hart LLP, discusses “What’s Hot in Employment Law?” Businesses of all sizes count on Lane to guide them through labor and employment issues to keep their operations running smoothly. She counsels and trains employers to hire, manage, and, when necessary, fire employees in compliance with federal and state employment laws. In this presentation, Lane will discuss various employment law changes or interpretations that have become particularly prominent in the last 12 months, including: · Status of the Department of Labor’s overtime regulations under the current administration; · The Nevada Labor Relations Board’s expanded reach into non-union workplaces; · Restrictive Covenant Agreements; · Marijuana legalization, its effect on the workplace and how to prepare for difficult employment situations; · Key day-to-day employment issues like hiring, managing, and firing employees in compliance with federal and state employment laws.

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WHAT’S HOT IN EMPLOYMENT LAW
Presented by:
Dora V. Lane, Esq.
Holland & Hart LLP

2. 2
OVERTIME REGULATIONS - STATUS
• New regulations were supposed to be effective
December 2016, but last minute injunction
stopped enforcement
• The DOL appealed, but after the administration
change, there was uncertainty whether the appeal
would be pursued
• June 30, 2017 – DOL filed a reply brief, arguing
that it had the authority to set a minimum salary
level (which had been previously questioned), but
backed away from the $913 level, signaling it
intended to undertake further analysis as to what
the salary level should be

3. 3
OVERTIME REGULATIONS - STATUS
• July 25, 2017 – DOL issued a new Request
for Information on the subject of the white
collar exemptions – 60 days to comment
• DOL essentially trying to hit the “reset” button
and start anew (but won’t implement until
Court rules on ability to set salary level)
• Areas where input sought indicate intent to
set a salary level lower than the 2016
standard

4. 4
OVERTIME REGULATIONS - STATUS
• Some questions posed:
– Should 2004 salary level, updated for inflation, be
the proper level?
– Should there be multiple salary levels based on
employer size, census region, etc.?
– Should there be a change in the duties test?
– Should there be an exemption test based solely
on the employee’s duties?
– Does the 2016 salary level exclude certain
occupations that have traditionally been exempt?
• Labor Secretary Acosta stated he would
support a revised salary level in the low $30K

5. 5
TIP POOLING ARRANGEMENTS
• Who can participate in a mandatory tip pool
under Nevada law? Under federal law?
• 2010 - Cumbie v. Woody Woo, Inc. - the
Ninth Circuit ruled that under the FLSA an
employer who did not take a tip credit was
permitted to have a mandatory tip pooling
policy requiring that tips be combined and
distributed to both customarily tipped and
non-tipped employees. 596 F.3d 577 (9th Cir.
2010).

6. 6
TIP POOLING ARRANGEMENTS
• 2011 – DOL issues tip pooling regulations,
stating that mandatory tip pools can only
include employees who are customarily and
regularly tipped by customers, regardless of
whether the employer takes tip credit
• 2016 – Oregon Restaurant v. Perez – Ninth
Circuit holds that DOL was within its authority
to promulgate the regulations (so, among
other things, no “back of the house”
participation in mandatory tip pools)

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TIP POOLING ARRANGEMENTS
• But the pendulum has swung again
• July 20, 2017 – Trump Administration
released an agenda of proposed
regulatory and deregulatory actions
• DOL will propose to rescind the restrictions
on tip pooling for employers who do not
take a tip credit (like Nevada employers)
• Notice of Proposed Rulemaking
contemplated some time in August 2017

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OSHA POST – ACCIDENT DRUG TESTING GUIDELINES STATUS
• May 2016 – OSHA advances an
interpretation on post-accident drug testing –
to be done only where there is a reasonable
possibility that employee drug/alcohol use
contributed to the accident
• Rule went into effect December 1, 2016
amidst litigation
• In 2017, under new administration, OSHA
indicated it intends to submit a proposal to
revise or reconsider the rule

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THE NLRB – THERE IS NO REST FOR THE WICKED
• Over the last several years, the NLRB has
been attacking traditionally “vanilla”
employment policies:
– At-will
– Confidentiality
– Standards of Conduct
• Reliance on Lutheran Heritage standard –
would employees reasonably construe the
policy as chilling their NLRA rights

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THE NLRB – THERE IS NO REST FOR THE WICKED
• Recent “hot button” policy issue –
prohibitions on recording in the workplace
– Blanket prohibitions on all recording ok?
– Is all recording protected?
– Can you prohibit recording on working time?
– Can you prohibit recording on nonworking
time?
– Can you restrict recording in working areas?
• Whole Foods and T-Mobile decisions

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THE TIDE ON MEDICAL MARIJUANA IS TURNING
• Must you allow medical marijuana as an ADA
accommodation?
• Medical marijuana as an accommodation under
NV state law?
• NRS 613.333 – can’t discriminate against an
employee for the lawful off-duty use of a product,
subject to limited exceptions
• Massachusetts, Rhode Island, and Connecticut
have now said you must accommodate (most
recent decisions on the issue, all go one way)
• Is the Federal Drug Free Workplace Act a
defense?

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NEVADA LEGISLATIVE UPDATE
Tick Segerblom was busy this year!
• Any wild guesses why?

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PREGNANT WORKERS’ FAIRNESS ACT
• Employers with 15 or more employees
• Protects both employees and applicants
• Makes it an unlawful employment practice for employer
to take adverse action or deny a reasonable
accommodation based on pregnancy, childbirth, or a
related medical condition
– “related” includes mental condition (incl. loss of pregnancy),
lactation related condition, diabetes, etc.
• Effective October 1, 2017 (notice provisions effective
June 2, 2017)

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EMPLOYER MAY NOT:
1. Refuse to provide a reasonable accommodation,
unless it would impose an undue hardship
2. Take an adverse action because the employee
requests or uses a reasonable accommodation
-NO RETALIATION
3. Deny an opportunity to an otherwise qualified
female employee or applicant based on her need
for a reasonable accommodation

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EMPLOYER MAY NOT:
4. Require the individual to accept an
accommodation that the employee or
applicant did not request or chooses not to
accept,
- Intent? Will it be interpreted to be broader
than ADA?
5. Require a female employee to take leave if
another reasonable accommodation would
allow her to continue to work
- Think about how this ties to No. 4

16. 16
EXCEPTIONS
• If action is based on a bona fide
occupational qualification
• Contractors licensed under NRS 624
excepted from:
– #4 and #5 in previous slide, if work duties
include the performance of manual labor
– accommodations for expressing breast milk, if
job site more than 3 miles from regular office

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REASONABLE ACCOMMODATIONS
The employer and employee “must”
engage in timely, good faith and interactive
process
• What if employee not engage in good
faith?
• Is the failure to engage in interactive
process independently actionable?

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REASONABLE ACCOMMODATIONS
Accommodations may include:
• modifying equipment
• different seating
• more frequent or longer breaks
• space (other than bathroom) to
express milk
• assistance with manual labor that is
incidental to primary work duties
• light duty
• temporary transfer to less strenuous
or hazardous position (recall prior
slide if employee not accept this?)
• restructuring position
• modifying work or break schedule

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MEDICAL CERTIFICATION
• Employer may require an explanatory
statement from the employee’s physician
concerning the specific accommodation
recommended by the physician

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NEED NOT:
• Create a new position
• Discharge any employee
• Transfer any employee with more seniority
• Promote any employee who is not
qualified to perform the job
UNLESS the employer has taken or would
take such action to accommodate other
classes of employees

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PREGNANCY LEAVE
If employer gives leave for sickness or
disability must extend same benefits
pregnancy or related medical condition.
• FMLA, sick/PTO/Vacation time, all pretty
easy scenarios
• What about if you give leave for a worker’s
compensation injury?
– If such leave is “sickness or disability” is the
leave unlimited?

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SO WHAT IF THE EMPLOYER DOES NOT COMPLY?
• Employee can file a complaint with NERC
• If NERC does not agree with the
employee, the employee can seek a court
order granting or restoring the rights to
which the employee is entitled
– So what if NERC does agree?
– Does the court order include monetary
damages, or just injunctive relief?

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NOTICE REQUIREMENTS
Written or electronic notice of rights under
the Act:
• to new employees upon commencement
of employment
• within 10 days after the employee notifies
her supervisor she is pregnant
Must also post notice in conspicuous place
at the business in area accessible to
employees

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NURSING MOTHERS
• Amends NRS Chapter 281 and 608
• Effective July 1, 2017
• Very close to ACA requirements (effective in 2010), but
ACA excepted exempt employees
• Applies to public employers
– except Dep’t of Corrections
• Applies to private employers, except
– employers with fewer than 50 employees if the
requirements would impose an undue hardship,
considering the size, financial resources, nature and
structure of the business.
• This may be interpreted to be a conditional exemption
– contractors licensed under NRS Ch 624 for employees
working at a job site 3+ miles from regular office

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REQUIREMENTS
Covered employers must provide an employee
who is the mother of a child under 1 year of age
with:
a) reasonable break time, with or without pay,
to express milk, as needed, and
-What is “reasonable break time”?
b) a place, other than a bathroom, that is
reasonably free from dirt or pollution,
protected from the view and intrusion of
others where employee may express milk
-What if bathroom only place available?
c) No Retaliation

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ALTERNATIVE ACCOMMODATION
• If an employer determines
that those requirements will
cause undue hardship, it
may meet with the
employee to agree upon a
reasonable alternative
• If no agreement is reached,
the employer may require
the employee to accept a
reasonable alternative
selected by the employer

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NON-COMPETE AGREEMENTS
• AB 276 amends NRS Ch 613
• Signed into law and became effective
June 3, 2017
• Sets forth new standard for non-compete
agreements

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VOID AND UNENFORCEABLE, UNLESS
a) Supported by valuable consideration
b) Does not impose any restraint that is
greater than is required for the protection
of the employer
c) Does not impose any undue hardship on
the employee, and
d) Imposes restrictions that are appropriate
in relation to the valuable consideration
supporting the noncompetition covenant

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CONSIDERATION
• Previously, continued
at-will employment
was sufficient
• Under new statute,
consideration must be
appropriate in relation
to restrictions
• Unclear what will pass
muster!

30. 30
FORMER CUSTOMERS
A non-compete agreement may not restrict a former employee
from providing service to a former customer, if:
a) the former employee did not solicit the former customer
b) the customer voluntarily chose to leave and seek services
from the former employee, and
-what if customer accepting services from both former and current
employers?
c) the former employee is otherwise complying with the
limitations in the agreement as to time, geographical area
and scope, other than any limitation on providing services to
a former customer who seeks services without any contact
instigated by the former employee
-Really applied as “any” contact?
-What if whole solicitation provision in separate contract than the
non-compete?

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REDUCTION IN FORCE, ETC.
If the termination is due to a reduction in
force, reorganization, or similar restructuring
of the employer, a non-compete agreement
is only enforceable during the period in
which the employer is paying the employee’s
salary, benefits or other compensation

32. 32
BLUE PENCILING
If court finds supported by
valuable consideration, but
impose greater restraint than
necessary, unreasonable or
undue burden, then court “shall”
revise non-competes to the
extent necessary and enforce
the revised restrictions
-Statutory language does
not directly address when
consideration not meet Section
1(d) “Imposes restrictions that
are appropriate in relation to the
valuable consideration
supporting the noncompetition
covenant”

33. 33
CONFIDENTIALITY & TRADE SECRETS
The new law does not prohibit agreements
to protect an employer’s confidential and
trade secret information, if the agreements:
• are supported by valuable consideration,
and
• are otherwise reasonable in scope and
duration
– This “reasonable” standard applying to
confidentiality is a potential quagmire.

34. 34
WAGE TRANSPARENCY
• AB 276 also amends NRS 613.330
• Makes it an unlawful employment practice for
an employer to discrimination against any
employee because the employee has
inquired about, discussed, or voluntarily
disclosed his or her wages or the wages of
another employee
• Does not apply to employees who have
access to information about the wages of
other persons as part of their essential job
functions

35. 35
DOMESTIC VIOLENCE LEAVE
• SB 361 amends NRS Ch 608
• Requires leave be provided to an
employee who is a victim of domestic
violence or whose family or household
member is a victim of domestic violence
• Effective January 1, 2018

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LEAVE REQUIREMENTS
• Employee must have been employed for at
least 90 days
• Up to 160 hours of leave in one 12-month
period
• Must be used within the 12 months
immediately following when domestic
violence occurred
– what if have new DV act each year?
• May be paid or unpaid by the employer
• May be used intermittently
• Runs concurrently with FMLA (if qualifies)

37. 37
LEAVE REQUIREMENTS
• Leave for employee or “family
or household member” who is
victim of domestic violence
– Family is spouse, domestic
partner, minor child or parent
– household member is adult who
is or was actually residing with
the employee at time of DV act
• Cannot require employee to
find a replacement worker as
condition to use leave

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REASONS FOR LEAVE
Diagnosis, care, or treatment of health
condition due to domestic violence
Obtain counseling or assistance “related to”
DV
Participate in court proceedings “related to”
DV
Plan or take “any” actions to increase safety

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WHAT IS DOMESTIC VIOLENCE
Domestic violence acts:
(a) A battery.
(b) An assault.
(c) Compelling the other person by force or threat of force to perform an act from which the other person
has the right to refrain or to refrain from an act which the other person has the right to perform.
(d) A sexual assault.
(e) A knowing, purposeful or reckless course of conduct intended to harass the other person. Such
conduct may include, but is not limited to:
(1) Stalking.
(2) Arson.
(3) Trespassing.
(4) Larceny.
(5) Destruction of private property.
(6) Carrying a concealed weapon without a permit.
(7) Injuring or killing an animal.
(f) A false imprisonment.
(g) Unlawful entry of the other person’s residence, or forcible entry against the other person’s will if there
is a reasonably foreseeable risk of harm to the other person from the entry.
The DV act must be to:
– the person’s spouse or former spouse, child or guardian of child,
– any person related by blood or marriage,
– person with whom residing,
– person had or is having a dating relationship, (frequent intimate associations)
– person with whom the person has a child in common,

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NOTICE AND DOCUMENTATION
• After taking any hours of leave
for domestic violence, the
employee must provide at least
48 hours’ advance notice of the
need to use additional leave
• May require the employee to
provide documentation that
confirms or supports the
reason for requesting the
leave, such as a police report,
application for restraining order,
documentation from physician
or victims’ services
organization

41. 41
RECORDS & NOTICE
• Employers must maintain
records of the hours of
domestic violence leave for
each employee for a 2-year
period following the entry of
such information in the
record
• Labor Commissioner may
inspect those records
• Post bulletin produced by
Labor Commissioner in
conspicuous place

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REASONABLE ACCOMMODATIONS
• SB 361 also amends NRS Ch 613
• Requires that employers make reasonable
accommodations, absent undue hardship, for
an employee who is a victim of domestic
violence or whose family or household
member is a victim:
– new telephone number at work
– modified schedule
– transfer or reassignment
– other reasonable accommodations deemed
necessary to ensure the safety of the employee
and workplace

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NO RETALIATION
• Employers may not retaliate or
discriminate against an employee because
the employee:
– requested to use domestic violence leave
– participated as a witness or interested party in
court proceedings related to domestic
violence
– requested an accommodation, or
– an act of domestic violence was committed
against the employee in the workplace

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NATIONAL GUARD PROTECTION
• AB 337 amends NRS 412.139
• Currently, employers may not
terminate a member of the Nevada
National Guard for participating in
training or service on active duty
• Now, law extends protection to
employees who are a member of
the National Guard of another state
• Effective July 1, 2017

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STUDY ON GENDER EQUALITY
• AB 423 directs the
Secretary of State to
design and conduct a
voluntary survey of
certain businesses (when
applying for or renewing
business licenses)
– if you do respond, must do
so under penalty of perjury
• To collect data “related to
issues of” gender equality
in the workplace

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MISCELLANEOUS OTHER NEW LAWS
• Domestic Workers’ Bill of Rights – SB 232
– allows agreement for wages to consist of
lodging, up to 5 times min wage for the work
week (e.g., $36.25 or $41.25) and up to min
wage for meals ($7.25 or $8.25) per day.
– exempts domestic workers who live in the
residence from OT if done in a written
agreement.
– Domestic workers must be given notice in
language the understand concerning
conditions of employment, get at least 1 day
off each week and a period of 2 days off each
month
– Employee can require 90-day and annual
evaluation
– if terminated without cause, must house them
for additional 30 days
– shall not monitor private communications

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MISCELLANEOUS OTHER NEW LAWS
• Domestic Services employees – SB 468
– written agreements on wages, OT, hours, etc.
• Personal Care Services workers – SB 318
– addresses sleeping periods
• Employee Management Relations Board –
SB 460
– increases board from 3 to 5 members, max of
3 from any political party and at least 3 from
southern Nevada

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THANK YOU!
QUESTIONS?
Dora V. Lane
Holland & Hart LLP
dlane@hollandhart.com
775-327-3045